JUDGE-MADE LAW states, and finally in the Constitution of the United States. When that dogma, which assumes the impossibility of one de partment encroaching upon the domain of another, was thus embedded in the most solemn form in our organic laws, jurispru dence was brought face to face with the ultimate question: Can any kind of a writ ten code or constitution be devised by the wit of man for the government of an infant state, sufficiently elastic to adapt itself to its ever-changing conditions, through formal amendments, without the expanding and adapting power of judge-made law? Leav ing out of view the first twelve amendments to our federal Constitution, which were nearly contemporaneous with it, and really a completion of it, but three remain whose adoption, as all the world knows, was the outcome of civil war. Nothing is more generally admitted in the politics of this country than the fact that any reform is practically hopeless that depends upon the amendment, under normal conditions, of the Constitution of the United States. Ex perience has shown that the ponderous machinery provided can only be moved by the giant hand of revolution. Under such conditions, who can doubt for a moment that our federal Constitution, so justly re garded as "the most wonderful work ever struck off at a given time by the brain and purpose of man," would have been a hope less failure but • for the expanding and adapting power of judge-made law promul gated by that tribunal which has no pro totype in history, the Supreme Court of the United States? At the outset, neither the nature nor the extent of its powers were at all clearly understood. As late as January 2, 1801, John Jay, the first chief justice, in declining a reappointment, wrote to President Adams: "I left the Bench per fectly convinced that under a system so defective it would not obtain the energy, weight, and dignity which was essential to its affording due support to the national government; nor acquire the public con
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fidence and respect, which, as the last re sort of the justice of the nation, it should possess. Hence, I am induced to doubt both the propriety and expediency of my returning to the Bench under the present system." Fortunately for the cause of good government throughout the world, Jay's wail of despair was a bugle call to a jurist who has exercised a wider influence, perhaps, than any other in the history of mankind. On the day of the first meeting of the Supreme Court in the permanent capital of the nation, John Marshall took his place for -the first time as chief justice, and, as such, he sat in the midst of six associates for thirty-four years. The time was ripe for the advent of a jurist and statesman clear-visioned enough to sweep the entire horizon of federal power, and bold enough to press each element of it to its logical conclusion. The success of his life work was assured by the manner in which he solved the problem of problems that awaited him. Thirteen years after the organiza tion of the Supreme Court he announced, for the first time, in the case of Marbury v. Madison, that it possessed both the right and the power to declare null and void an act of Congress in violation of the Consti tution. The invincible logic employed in the demonstration rested necessarily upon the admission that the august right in ques tion was a mere deduction from the gen eral nature of a system of government whose Constitution had failed to grant it in express terms. Such deduction was, of course, a pure creation of judge-made law. The only precedents that existed were to be found in the states, where it had frequently been held that a state court could declare an act of the legislature void because of repugnancy to the state constition. The states had borrowed the idea from the action of the English Privy Coun cil, which sometimes annulled the acts of colonial legislatures when in conflict with colonial charters. After such charters were
