JUDGE-MADE LAW navigation was made by Robert Fulton, a revolution was wrought in the commerce, of the country through a transition from the primitive and ineffectual means of transpor tation by pack-horse and wagon to the methods in use to-day. A notable legal result of the change was a substitution for the ancient English rule of admiralty juris diction, resting on the ebb and flow of the tide, of a new one better adaped to totally different physical conditions. As' you all know, in Taney's time, the navigable char acter of the water was made the test; and thus, by the silent stroke of the judicial pen the admiralty jurisdiction of the federal courts was extended not only beyond the flow of the tide in all public navigable waters, but even over the great fresh-water lakes as well, inland seas upon which fleets have encountered. No one will deny that the unparalleled material development of this country has been largely worked out through the agency of corporations, the public confidence in whose stability has rested largely upon the famous decision rendered in 1819, in the Dartmouth College case, wherein it was held that the charter of a corporation is a contract, and as such protected from violation by article i, sec tion 10, of the federal constitution. Thus by a momentous stroke of the judicial pen American corporations were placed in a Condition of security as to the legislative power never before occupied by such bodies in any other country in the world. If, in the great case in question, Marshall, with the concurrence of his associates, had writ ten but a line declaring that such charters are not contracts within the meaning of the clause in question, the economic conditions of this country, so far as trusts and monopo lies are concerned, would stand in an en tirely different situation. Now, that an appeal is being made for relief from such conditions to the judicial tribunals, the fact cannot be ignored that the power that made can unmake, that the power that
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built up can destroy. In this grave matter, a silent stroke of the judicial pen could work a revolution. No other department of government is so capable as the judicial to deal with a problem whose complexity is as great as its influence is far-reaching. Our experience has demonstrated the fact that nothing so rapidly advances commer cial and industrial interests as legitimate corporations, exercising normal powers ac cording to law. The problem is how to pro tect such in their legal rights, and at the same time crush out the illegitimate and abnormal. After formal legislation has ex hausted its resources, the ultimate solution of the problem will still remain for the judi cial power — the last and decisive word must be spoken by the Supreme Court of the United States. When, in the light of what has now been said, the growth of the jurisdiction of that tribunal is viewed as one unbroken devel opment, is there anything in its history, taken as a whole, to disquiet us? When the intricacy and delicacy of the mighty task which it has been executing for more than a century is calmly considered, must not the scientific jurist frankly admit that it could only have been performed through the agency of judge-made law — that agency which silently expanded and adapted the primitive and unelastic codes of Rome and England to the ever-increasing wants of progressive societies? When viewed in the light of its beneficient history, as illus trated by those codes, there is no reason to apprehend that that kind of law may even tually undermine our federal constitution. On the contrary, there is every reason to believe that without the adjusting, defining, and expanding power of judge-made law it would have been impossible to adapt our complicated and rigid system of written con stitutions to the new and varied conditions which have so rapidly arisen out of an unparalled national development. WASHINGTON, D. C., August, 1905.
