every system of jurisprudence tends. It is an ideal of which great publicists and judges have spoken as of something possible to attain. “The judges of the nation,” says Montesquieu, “are only the mouths that pronounce the words of the law, inanimate beings, who can moderate neither its force nor its rigor.”[1] So Marshall, in Osborne v. Bank of the United States, 9 Wheat. 738, 866: The judicial department “has no will in any case.... Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature; or in other words, to the will of the law.” It has a lofty sound; it is well and finely said; but it can never be more than partly true. Marshall's own career is a conspicuous illustration of the fact that the ideal is beyond the reach of human faculties to attain. He gave to the constitution of the United States the impress of his own mind; and the form of
- ↑ Montesquieu, "Esprit des Lois," LIV, XI, chap. VI, quoted by Ehrlich, "Die juristische Logik," p. 101; Gény, op. cit., p. 76; cf. Flavius, supra, p. 40.
