It is the government of all; its powers are delegated by all; it represents all; and acts for all. The nation on those subjects on which it can act, must necessarily bind its component parts. This government is acknowledged by all to be one of enumerated powers. But the question respecting the extent of the powers actually granted is perpetually arising and will probably continue to arise as long as our system shall exist. "We think the sound construction of the Constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution are constitutional." The national banking system was upheld, the State was prohibited from taxing the corporation and it was declared that the national government should not be confined to the execution of the powers strictly enumerated in the Constitution. Marshall pleaded for a natural interpretation of the words of the Constitution: In Gibbons v. Ogden" he says: "If they contend for that narrow construction which, in support of some theory not to be found in the Constitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects of that instrument; for the narrow construction which would cripple the government and render it unequal to the objects for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent; then we cannot perceive the propriety of this construction nor adopt it as the rule by which the Constitution is to be expounded." "Powerful and ingenious minds, taking, as postulates, that the powers expressly granted to the government of the Union are to be contracted, by construction, into the narrowest possible compass, and that the original powers of the States are retained, if any possible construction will retain them, may, by a course of well digested, but "Gibbons v. Ogden, 9 Wheaton, 1. refined and metaphysical reasoning, founded on these premises, explain away the Constitution of our country, and leave it, a magnificent structure, indeed, to look at, but totally unfit for use. They may so entangle and perplex the understanding as to obscure principles which were before thought quite plain, and induce doubts where, if the mind were to pursue its own course, none would be perceived. In such a case it is peculiarly necessary to recur to safe and fundamental principles to sustain those principles, and when sustained, to make them the tests of arguments to be examined." The States had to submit to these authoritative expressions of the supreme court backed by the force of the federal government and upheld by the national political doctrines of the time. The foundation was firmly laid for a wide extension of the powers of the central government without recourse to the clumsy process of amendment, and the governmental policy was established by which the courts were carried into the field of the discussion and the determination of questions which are political, social, or economic. Chief Justice Marshall and his associates were largely responsible for this distinction in handing down a remarkable series of decisions upholding the jurisdiction of the court, favoring the extension of congressional authority, and limiting the powers of the States. By 1835, the constitutional system, which was inaugurated in 1789, had grown into a developed scheme of government, and the fundamental principles of political theory which were to become distinctly American in interpretation and practice had been thoroughly formulated in the great decisions of the federal supreme court. M. PRADIER-FODÉRÉ. E. G. ELLIOTT The appearance of the eighth and final volume of M. PradierFodéré's Traité de droit international public européen et américain seems a fitting occasion for a brief consideration of the life and works of this distinguished professor, counselor and author; more particularly is it appropriate to consider the extent and character of his services to that branch of public law dealt with in the above treatise, for it was to international law that he devoted the ripest years of a broad scholarship and the maturest judgments of an active life. M. Pradier-Fodéré was not simply and solely a student who looked out upon the hurly-burly of life from the secluded shelter of his study window; he was to no small extent a man of affairs who had come into close and intimate contact with matters of state on both sides of the Atlantic, and who, after a life of rich and varied experiences, settled down when over fifty to round out his life and his literary activity in the production of an extensive treatise on international law. Paul Louis Ernest Pradier-Fodéré was born at Strassburg on the eleventh of June, 1827; he studied law at the university of his native place and in due course of time became an advocate at Paris; at the age of thirty he was made professor of law at the Armenian college at Moorat, but soon returned to Paris to fill the chair of law at the Armenian college in that city where he remained until 1874, when he was called by the government of Peru to organize the department of political science and administration of the university at Lima. By this time he had established his reputation as an author in the field of public law by the publication of numerous works: among them may be noted Précis de droit administratif (1853-8) of which a seventh edition was issued in 1876; Traité de droit commercial (1854-62); Cours de droit politique et d'économie sociale (1859); Eléments de droit public et d'économie politique (1864); Translation of Grotius, Droit de la guerre et de la paix (1865-66); Principes généreaux de droit, de politique et de législation (1869); Documents pour l'histoire contemporaine and Portraits politiques (1871); la Question de l'Alabama et le droit des gens (1872); and Commentaire sur le code de justice militaire (1873) in collaboration with Le Faure. During the six years of his stay in Peru M. Pradier-Fodéré was in close touch with the government of the country and in 1879 published a brochure entitled Affaire du Luxor, which was a report to the minister of justice, culture and instruction on the capture of the German vessel Luxor, a case that grew out of the war then in progress between Chili and Peru. In this report M. Pradier-Fodéré showed a very enlightened spirit on some of the most difficult questions of international law; his ideas respecting the security of private property upon the high seas were most liberal and he advocated with vigor the rights of neutral commerce. He laid particular emphasis upon the fact that contraband trade was not in itself an illegal act nor an act of hostility, but that the basis of the right of seizure was the right of self defense on the part of the belligerent making the seizure; that the seizure of contraband goods was an exception to the rule of the freedom of neutral commerce and did not necessarily extend to the ship, which was liable to confiscation only when the owner authorized or tolerated the acts of the captain. Regarding the question of capture after the contraband articles have been deposited, the question, that is, of the "return voyage," he held that after the vessel has deposited the contraband, she then begins a new voyage and is not liable to capture; that the offense is deposited with the contraband—a position now all but universally recognized. The years spent in South America gave M. Pradier-Fodéré the experience which produced the happy combination of jurist and man of affairs, invaluable in the publication, soon after his return to France and his establishment as counselor to the court of appeals at Lyons, of his Cours de droit diplomatique a l'usage des agents politiques du ministère des affaires étrangères des états européens et américains (1881). At an age when most men begin to feel that the days of the sere and yellow leaf are at hand, and to say to themselves "I will take mine ease," M. Pradier-Fodéré began his exhaustive treatise on international law. One must marvel at the courage of the man who began when nearly sixty and who continued for twenty years a labor of such magnitude, and we cannot but join in the universal lament that his life was not spared till he had completed the few remaining chapters of the work to which he had devoted so many years. His death occurred on the twenty-eighth of June, 1904, and his son, "guided," as a note of the editor tells us, "by a sentiment of filial piety, manifested the desire that the work should stop at the precise point at which the pen dropped from the hand of his father;" and so the work, voluminous though it is, yet lacks any adequate treatment of neutrality. The first and second volumes of the Traité de droit international appeared in 1885, the third in 1887, the fourth in 1888, the fifth in 1891, the sixth in 1894, the seventh in 1897, and the eighth and final volume together with an index in 1906. To get an adequate conception of the size of this work we must know that the total number of pages is 8721, not including the index which was made after M. PradierFodéré's death and is itself a volume of nearly two hundred pages. In short the work is encyclopaedic and its greatest usefulness must always be as a reference book. The author's original idea contemplated four volumes, but the material grew to twice this size and the work is still incomplete. Of the criticisms that may justly be passed, one is that the work is too voluminous, that it contains too many digressions, particularly in the later volumes which are out of proportion to the earlier ones; that the citations and historical examples grow in length and number till it becomes a veritable compendium of the theory and practice of international law and much else besides. Any attempt to discuss these eight volumes within the limits of so brief a paper must necessarily be fragmentary; the most that can be successfully accomplished is to give some general notion of their extent and character, of the author's conception and treatment of some of the more fundamental questions, and of his attitude toward and his relation to the science of international law and its progress, and in conclusion to attempt an estimate of the value of the work as a contribution to the science. Before any fair judgment can be passed, we must know what M. Pradier-Fodéré had in mind to do. First of all then, we are told |