argued in the Supreme Court, but were still undetermined. The noticeable point is that not only was there no jealousy of the jurisdiction and power of the court on the part of the President, or Congress, or the people; but, on the contrary, these were all calmly awaiting the judgment of the court, to be accepted, of course, whatever it might be, as authoritative, and to be acted on accordingly by the Government and the people. This extraordinary spectacle of an expectant Nation waiting for the court's deliverance shows how fine and true, fine because true, is Mr. Bryce's statement in that great work which displays in its every part such a deep and clear insight into our political and legal institutions and their workings: "No other man did half so much as Marshall, either to develop the Constitution by expounding it, or to secure for the judiciary its rightful place in the Government as the living voice of the Constitution." And among the chief lessons of Marshall Day is the revelation of the public as well as the professional consciousness that the Supreme Court is, verily, the living voice of the Constitution; and that it is such is due pre-eminently to Chief Justice Marshall.

VI.

It was inevitable that on Marshall Day renewed attention should be called to the original and distinctively American feature in our governmental polity which Jefferson called the "judicial veto." The definite establish

ment of that principle may truly be said to date from Marshall's decision in Marbury against Madison. The nature and effects of this doctrine are discussed in a great variety of aspects in the addresses here published. That its workings with us have been satisfactory is demonstrable from our experience, and, indeed, is now nowhere controverted. Since the time when that principle was settled beyond question by the repeated decisions of the State and Federal courts, all of the States have framed new Constitutions, many of them more than once, and have amended their Constitutions as often as they thought best, new States have been admitted into the Union; and yet in none of the Constitutions, even the latest, has this power of the courts been denied or limited. The doctrine itself was established against earnest opposition; but opposition has long since disappeared. The only existing difference of opinion amongst us is that some persons think the courts exercise too freely the grave power to hold legislative acts unconstitutional, and others that they exercise this salutary power too sparingly. The remarkable fact to be noted is that there is an absolute agreement of opinion as to the soundness and utility of the principle itself. It is still more remarkable that notwithstanding our favorable experience with the prac tical operation of the "judicial veto" on such an extended scale, National and State, for a hundred years, its importance as a factor in the growth and development of

Constitutional Government seems to attract no considerable attention elsewhere; and in those countries having written Constitutions, the Australian Confederation excepted, the power is expressly reserved to the Legislature to decide finally upon the constitutionality of its enactments, and such a power is expressly denied to the

courts.

Mr. Bryce, in a letter to the editor referring to Marshall Day, said: "You in the United States seem to be far more alive to the services rendered by your great legal and Constitutional luminaries than people are in England, where, I am sorry to say, not very many members of our Bar or Bench show much interest in the history of the development of the Constitution on its legal side; and one cannot doubt that this attention so given in America must have happy results on the ideals which ought to be cherished by the legal profession."

The judicial veto is the great original contribution of America to the science of Government. Whoever shall attentively consider its history from its immediate germ in the Colonial Charters and Colonial experience to its final establishment by the judgment in Marbury's Case will not fail to observe four striking facts, which I must content myself with stating without elaboration:

1. No express power is given in the Constitution to the Federal Judiciary in general or to the Supreme Court in particular, to declare void either acts of State Legisla

tures or acts of Congress because they are in conflict with the Federal Constitution, or for any other reason. On this subject the Constitution is utterly silent.

2. State jealousies of Federal power were so strong that the States would probably have defeated the adop tion of the Constitution if it had contained such an express provision.

3. So far from such power being conferred in terms upon the Federal Judiciary or the Supreme Court, the Constitution limits the function of the Federal courts to the usual and narrow one of deciding litigated cases. The courts can originate nothing, cannot call their own powers into action, and it depends, therefore, upon fortuitous circumstances, when, if ever, any particular question will arise, or, if it arises, whether those affected by it will resort to the judicial tribunals for relief or redress.

4. But herein consists, as it has turned out, the consummate wisdom of the Constitution. Whether in this its framers builded better than they knew, who can tell? But instead of erecting a separate tribunal whose distinct office is declared to be to guard the Constitution and to prevent the usurpation or exercise of unauthorized powers by the Executive or Congress, and to settle the respective powers of the States and the General Government, the Constitution left this authority in the courts, to result as an incident solely from the

exercise of the judicial function of determining litigated cases, namely cases arising under the Constitution, laws and treaties of the United States as provided in the Judiciary Article of the Constitution. Instead of the puerile device of placing the Constitution "under the guarantee of all the virtues," as France did, we in our Constitution gave the courts, in the indirect manner above pointed out, the power and made it their duty, but only at the instance of those adversely affected, to refuse to carry unconstitutional acts or legislation into effect. But since all executive action must be embodied in orders, and all legislative action in the form of written statutes, the door is at all times open for redress to all who are injured by unconstitutional acts or enactments; and thus the remedy, although indirect, is adequate and efficient. And albeit the decision of the Supreme Court only results in form in a judgment in the case of A v. B, yet the effect is that the principles of such judgment practically fix the meaning of the Constitution, for the strongest force in this country is the universal sentiment of legality and reverence for and obedience to law as declared by the judicial tribunals. In the end the decisions of the Supreme Court are submitted to, or, as has occasionally happened, the Constitution is legally amended in pursuance of provisions in that behalf therein contained. And thus the reign of law in this country is every where

supreme.