the supreme law; that by the Constitution the people limited the power of each department of government; that the Constitution fixes these limits, and in order that they may not be mistaken or forgotten the Constitution is cast in a written form. In any case properly brought before the judicial department it is the duty of that department to say what is the law that governs. If the terms of the Constitution and of the legislative act both apply to the case, and these conflict, the Court necessarily has to decide whether it will follow the Constitution or the legislative act. If the statute controlled, then Marshall observed “it reduced to nothing what we have deemed the greatest improvement on political institutions - a written Constitution - and this is of itself sufficient in America, where written Constitutions have been viewed with so much reverence, for rejecting such a construction." The conclusion of the court was expressed in language which constitutes the foundation and superstructure of American constitutional law, namely:

"It is essential to all written Constitutions that a law repugnant to the Constitution is void, and that the courts, as well as the other departments, are bound by that instrument."

That is to say, the federal Constitution is the supreme law, binding not only upon the people, but upon every department of the government, and the Supreme Court is its accredited and lawful expositor. Two propositions were here affirmed, namely, that a statute in conflict with the Constitution was void, and also that it is within the power of the judiciary so to determine. Although, when this opinion of the Chief Justice was delivered, there had been a few, but on the whole inconclusive, decisions to that effect, the question had never been decided by the Supreme Court. Indeed, the very year before, in the Supreme Court, in the case of Cooper against Telfair, Chase, J., a very able judge, said:10

"The general principles contained in the Constitution are not to be regarded as rules to fetter and control, but as matter merely declaratory. * * * And, although it is alleged that all acts of the legislature in direct opposition to the prohibitions of the Constitution would be void, yet it still remains a question where the power resides to declare it void. There is no decision of the Supreme Court on this point."

Bound up in the decision of this cause were the essential elements of all that is distinctive in American governmental institutions. It is the American theory that all power proceeds from the people; that ours is a government, as Mr. Lincoln, on a memorable occasion, expressed it, of the people, by the people and for the people;" that, in establishing governments the people limit every department of governmental power; that these limits are prescribed in the Constitution to the end that they shall not be overpassed or disregarded. In short, that it is a gov(10) 4 Dallas Reports, 14, 1800.

to its authority, but for the officers who, for the time being, are charged with the administration of its affairs. It was a novel conception and device when it was established, and practically it has remained unique to this day. Its successful working for more than a century has attracted the observation and praise of foreign statesmen and publicists. Thus, Dicey says:

"This American system which makes the judges the guardians of the Constitution, provides the only adequate safeguard which has hitherto been invented against unconstitutional legislation. * * The glory of the founders of the United States is to have devised or adopted arrangements under which the Constitution became, in reality as well as in name, the supreme law of the land."'ll

In this America has given to the world the truest it is not extravagant to say, the most sublime conception of law that has ever existed. Let me make this plain. In other countries law is regarded as something that proceeds from the State, considered as sovereign, and therefore is binding alone upon the subject. This conception is defective in that it fails to realize that law has not reached its full development until it attains a complete supremacy by binding alike the State and the citizen or subject. This great conception has only been made a reality by the American device of written Constitutions, which are the supreme law of the land, since their provisions are obligatory upon rulers and those subjected to their rule, and equally enforceable against both in all judicial controversies, and, therefore, law in the fullest and strictest sense of the term. All these conceptions which lie at the very foundation of our political institutions, were decided in the case of Marbury against Madison, and are now an unquestioned part of the constitutional jurisprudence of this country.

HOW MARBURY'S DECISION WAS VIEWED BY

JEFFERSON.

This reference to the Marbury case would be historically incomplete without some notice of the manner in which the decision was received by the country. As the court held that it had no jurisdiction to issue the writ, none was issued, and therefore no judgment was entered in the cause which either the executive department or Mr. Madison, the defendant, was bound to obey. The executive department consequently had the power to disregard the decision without coming in conflict with the court, and it did so. I venture to say, however, that at the present day the executive department would not feel at liberty, at least in a case which involved only private rights, to pursue a court which was in conflict with the views of the Supreme Court, expressed in a deliberate opinion, although given in another cause, or in a cause wherein, as in Marbury's case, there was no judgment rendered capable of being

(11) Dicey, The Law of the Constitution, 2d ed., London, 1886, Lecture iv., p. 145.

enforced by the process of the court. But many things are settled in the year 1901-largely settled as the result of the acceptance of the principles of Marshall's judgments that were open and disputed in 1803, and, indeed, for many years thereafter. Marshall belonged to one political school, and Jefferson was the leader of the other. There were at that time reasonable grounds for the conflicting opinions. Marshall was penetrated by the sentiment and spirit of nationality, and believed that the Constitution properly construed, conferred upon the Union all the essential powers of national sovereignty. Jefferson believed that powers in the central government in such amplitude as Marshall held them to exist were dangerous to the existence of the States, and to the liberties of the people. He regarded Marshall's views with sincere alarm, and considered it a patriotic duty to resist and oppose them in every possible way. For this he should not be blamed, nor does it diminish our sentiments of respect and gratitude for his great public services. He will go down to posterity proudly holding in his hands the Declaration of Independence, and Marshall will go down holding in his the federal Constitution. I am not unmindful of the strength of party names and traditions and know how deeply the memory of Jefferson is still reverenced by our countrymen, but I am incapable, I trust, at any time, and especially at this time, of saying a word that could give the least offense to anyone who hears nie. I make these observations because I realize full well that "e'en in our ashes live their wonted fires," and in proceeding to state how Jefferson regarded the doctrines of Marbury's case, I wish it distinctly to appear that it is not done in any spirit of unfriendliness towards the memory of that distinguished patriot.

The fundamental article of Jefferson's creed was faith in the people, an assertion of their right to decide all matters pertaining to their welfare, and a firm conviction that their deliberate decision could be trusted; and the practical result of our national experience of more than one hundred years has justified Jefferson's faith in American popular government. As the champion of this principle Jefferson's triumph has been as great as the triumph of Marshall as the judicial expositor of the principle of nationality in the federal Constitution.

During the trial of Burr for treason, Jefferson wrote to United States District Attorney Hay, June 2, 1807:

"I observed that the case of Marbury v. Madison has been cited in the Burr case, and I think it material to stop at the threshold the citing that case as authority, and to have it denied to be law: 1. Because the other judges, in the outset, disclaimed all | cognizance of the case. * * This, then, was confessedly an extra-judicial opinion, and, as such, of no authority. 2. Because, had it been judicially | pronounced, it would have been against law; for to a commission, a deed, a bond, delivery is essential to give validity. * * * I have long

wished for a proper occasion to have the gratuitous opinion in Marbury v. Madison brought before the public and denounced as not law; and I think the present a fortunate one, because the case occupies such a place in the public attention. I should be glad, therefore, if, noticing that case, you could take occasion to express the determination of the executive that the doctrines of that case were given extrajudicially, and against law, and that their reverse will be the rule of action with the executive."12

Jefferson reiterated these views in his old age. In a letter to Justice Johnson, June 12, 1823, he criticises the Marbury case at length:

"This practice of Judge Marshall of travelling out of his case to prescribe what the law would be in a moot case not before the court, as in the case of Marbury v. Madison, is very irregular and very censurable. * * * Yet the case is continually cited by bench and bar as if it were settled law, without any animadversion on its being merely an obiter dissertation of the Chief Justice." "13

"No veto power, ancient or modern," said Jefferson on another occasion, "ever existed so formidable as this American irresponsible judicial veto - a power to dismiss laws as the president may dismiss officers under him."

The

THE DARTMOUTH COLLEGE CASE, 1819. In further illustration of the value and lasting influence of Marshall's constitutional judgments, I next refer to the case of Dartmouth College, perhaps the most celebrated of all the cases decided by him. Important it certainly is, but I do not consider it so vital to the Union as some other decisions of Marshall. In this assemblage of legislators and lawyers it cannot be necessary to state at any length the college case, even if time permitted. It involved the construction of the clause of the Constitution which ordains: No State shall make any law impairing the obligation of contracts." State of New Hampshire, without the consent and against the will of the college, made material changes in the mode of government of this institution as established in its charter, changes which took away the control of the college from the charter trustees, and subjected it to the control of officers, a majority of whom were to be appointed by the executive of the State. The highest court of New Hampshire sustained this legislation. Marshall, with the concurrence of all of his associates but one, reversed the judgment of the State court and held that the legislation of New Hampshire was in conflict with the clause of the Constitution which forbade the States from impairing the obligation of

tween individuals. The great, the peculiar question in the case was: does it apply to any other class of contracts? Is a legislative charter when accepted and acted on by the grantee a contract between the State and the corporation as to the essential franchises and rights therein granted within the meaning of the clause of the federal Constitution above mentioned? The Supreme Court held that a legislative charter was such a contract and the consequence of course followed that the grant was irrevocable and could not be altered without the consent of the corporation, unless the power to do so was reserved, either generally or specially, when the charter was granted.

No case in the history of the court has excited more discussion or criticism than this one. The principle that there may be a legislative contract with a corporation that falls within the restraints imposed by the federal Constitution upon the power of a State to impair or destroy, has been often reaffirmed by the Supreme Court, has been generally acquiesced in by the State courts, and is a settled principle in our constitutional jurisprudence. Its application in the later judgments of the Supreme Court has been restricted so as to confine it to cases where there is a plain purpose on the part of the State founded upon a sufficient consideration to make an actual contract which the parties intend shall not be subject to future conflicting legislation on the part of the State.

I may, perhaps, venture to add that while in my judgment a legislative charter to a private corporation, so-called, as distinguished from a public or municipal corporation, may, within the meaning of the Constitution, be a 'contract," still the precise point of decision in the Dartmouth College case that the royal charter was such a contract, I cannot but regard as of questionable soundness, and it may be doubted, in the light of subsequent decisions, whether if it were presented de novo to the Supreme Court it would now be so held.

The beneficent effect of the decision in this case consists in the sanctity which it gave to all contracts by protecting them from hostile legislation. This principle has been uniformly applied by the Supreme Court, and innumerable acts of State legislation in conflict with it have been held void, and dishonor and repudiation prevented. The doctrine of the Dartmouth College case, as applied by the Supreme Court in its various decisions, is not only sound, but has been one of the chief causes of our individual and national prosperity.

mined the conflicting claims of the general and State government on points of great moment, but also laid down the true principles of construction by which the respective limits of their powers are ascertained, and it is, moreover, among the most striking examples of the wisdom of the framers of the Constitution in constituting the Supreme Court of the United States the tribunal to determine finally and peacefully competing pretensions of the States and the general government. The case was, in fact, a controversy between the United States and the State of Maryland, and involved, on the one hand, the constitutionality of an act of congress, and on the other, the constitutionality of a revenue statute of the State.

The war of 1812 was followed by a period of great financial distress, during which congress rechartered, in 1816, the Bank of the United States as a fiscal agency of the government. The act was approved by President Madison. The Constitution contains no express power to charter a bank or to create any corporation, and under the principle of strict construction (that no power exists unless expressly granted), the act would be unconstitutional, and such was the contention of the State of Maryland. Branches of the principal bank were established in several States, among others, in 1817, in Maryland, and had power to issue notes to circulate as money. The legislature of Maryland, the next year, enacted a statute taxing all banks or branches thereof located in that State not chartered by its legislature by requiring that notes issued by them should be upon stamped paper of the State. This legislation was aimed at the branch bank and was probably intended to tax it out of existence in the State of Maryland. The government claimed that this act, if applied to the branch bank in Maryland, was repugnant to the Constitution of the United States, and was, therefore, void. The branch bank, having refused to pay the tax, an action was brought to recover the amount thereof against Mr. McCulloch, its cashier; and this was the case which was finally presented for the decision of the Supreme Court of the United States, to which it was carried from the judgment of the Supreme Court of Maryland in favor of the State and against the bank.

The momentous questions which lay at the foot of this controversy were fully appreciated at the time. The case attracted universal attention. Counsel the most eminent were concerned in the argument. Pinkney and Wirt, with reputations brilliant and long established, appeared for the bank, and associated with them was a younger man- a

FEDERAL CONSTITUTION.