POLITICAL PHILOSOPHY 313 



tutional interpretation, and inconsistencies in political action, have 

 been almost surely the result. Chief Justice Marshall was great as 

 a political philosopher rather than as a lawyer. All of his chief 

 opinions were essentially essays in political theory. This is evident 

 from the fact that in them very rarely is a legal authority or pre- 

 cedent cited to sustain the reasoning employed or the conclusions 

 reached. And, since his time, though references to predecided 

 cases abound in its written opinions, the ratio decidendi of the deci- 

 sions of the United States Supreme Court has in all of the more 

 important cases been derived from the principles established by 

 pure political theory. Thus, to cite but a few instances, this is 

 seen in United States vs. Lee, where the right of a private citizen to 

 recover possession of property held by a federal officer under author- 

 ity of an unconstitutional executive order was sustained by basing 

 it upon the general principle that in a republican government no 

 authority can be so high that an act by it, unauthorized by a valid 

 law, can operate to divest the private citizen of a legal right. So 

 also in Texas vs. White, the distinction between a state and its gov- 

 ernment a distinction emphasized by political theory was 

 seized upon by the court to enable it to assert the continuance of 

 a state in the Union at the same time that the legitimacy of its 

 government was denied. Finally, in the recent cases dealing with 

 the constitutional rights of the inhabitants of our insular possessions, 

 the decisions are based upon the purest of political theorizing re- 

 garding the nature of the rights enumerated in the first eight articles 

 of amendment to the Constitution. 



In the field of international law the sphere and service of political 

 theory or philosophy is even more conspicuously manifested. In 

 the beginning, the principles of international law were deduced in 

 a purely philosophical manner, custom and precedent playing little 

 or no part. And though convention and custom are now the chief 

 sources of its rules, the part played by pure political theory is still 

 very important. This is due to the fact that at the same time 

 that the principles of international law, through the practice of 

 nations and the efforts of commentators, have been rendered fairly 

 definite and systematized, and the formal rights and duties of sove- 

 reign nations towards one another thus made, in the main, evident, 

 the application of these principles and the determination in concrete 

 cases of these respective rights and duties have been made, if any- 

 thing, more than ever difficult by the great increase in the com- 

 plexity of constitutional and international relations which has marked 

 the last century, and, especially, the last quarter of it. Instead of 

 a family of nations composed of members completely autonomous in 

 fact, as well as name, we find nations, each sovereign in name and 

 theory, associated in the closest of constitutional and international 



