no
THE GREEN BAG
is logically probative is excluded. Through the long — but by no means dry — dis cussion of the ruling in Bedingfield's case, we have not space to follow him. Then there is the interesting history of the liberty accorded to all witnesses in Massachusetts; and an extraordinary chapter on " Trial by Jury of Things Supernatural." But it is Constitutional Law, that almost new science, that is most important, if not most interesting, to us to-day. Mr. Thayer probably said the last word on that question most vexed at the birth of our Republic, whether the courts should have power to nullify the acts of the coordinate legislative branch of government. In all that he says of the need of caution and large wisdom in the exercise of so portentous a function, one must earnestly concur. But while appreciating the force, taken On a position de novo, of Justice Gibson's doubt; while recognizing that the power existed in no pre vious government, or even in any country other than ours; the great fact remains (as at the end our author recognizes) that it is the truth that we founded a new Republic, the like of which was never known on earth, and this, with the separation of the powers, was our own great discovery. As Mr. Thayer says elsewhere (p. 203), quoting Daniel Webster, " Though this government possesses sovereign power, it does not possess all sovereign power; and so the State governments, though sovereign in some respects, are not so in all. Nor could it be shown that the power of both, as dele gated, embraces the whole range of what might be called sovereign power." For with us the People remained sovereign; delegating of their power to the Nation and the States in a written charter; and they created the Supreme Court to determine to which these powers were given, and what remained behind. In Advisory Opinions we have the final criticism on that most dangerous practice of denning the law at the behest of a political body before the facts are born; and in Legal
Tender, as we have said, the most ardent nationalist can find no fault with the author's argument of inherent national powers. So, finally, in Our New Possessions — the article which led President McKinley to urge Thayer's acceptance of a place on the Phil ippine Commission — he rises to a height of patriotism and of wisdom that is only the more striking because he so evidently deplores the reversal of the lesson we were set to teach the world. " Had we appre ciated our great opportunity and been worthy of it, we might have worked out here that separate, peculiar, high destiny which our ancestors seemed to foresee for us and which . . . might tfiave done more for mankind than anything we may hope to accomplish now by taking a leading part in the politics of the world." But he pre dicts the ratification of the treaty of Paris; and says " in my judgment, there is no lack of power in our nation, — of legal, consti tutional power, to govern these islands as colonies, substantially as England might govern them;" and he surprisingly fore shadows the opinion of the majority of the Supreme Court, " when a new region is acquired it does not at once and necessarily become part of what we call the ' territory ' of the United States." On the other hand, "Never should we admit any extra-con tinental State into the Union" — and he closes with an earnest plea for a Constitu tional amendment to that effect. We come at last to the subject to which, in later years, he gave of his mind and of his heart. Would that the " century of dis honor " had ended in wisdom and fair dealing. But. the Indians — the "People without Law " — remain a people without law; until, with what heritage of discour agement and rankling injustice we may not foretell — the last reservation is thrown open, and the tribal Indians become free — as our own ancestors did a thousand years ago — by the ownership, in severalty, of freehold land. BOSTON, MASS., February, iqo8.
