The Portland daily press., 1901-02-05


Jefferson vas then Chief Justcs, for II
the views of the latter had prevailed, the
whole course OF our constitutional history
would have been altered, and the ourrent
OF our national life been restricted Wltnlh
much narrower bounds. The case was
presented upon 3 petition for maDdamus,
requiring Madison, who was tnen score
tary OF Siata, to deliver commission 70
Aiarbury, who had been appointed ahe
confirmed by the Senate as lnsslce OF
the peace for the District OF Columbia De-
fore President Adams retired from office,
brt whose commission had nos heen ds-
lfvered, although sighe1 by the President,
ana sealed with tthe ssal OF the Unlten
States when Jefferson came Into once
The court decided that Marbury was en-
titled to the commission, and that tne
withholding of It was n violation oil O
vested right but also held that the Su-
preme Court had no Jurisdiction over
the case, because ths act OF Congress
comforting the power on the Suprems
Court was unconstitutional,
How great 3 Landmark this was In con-
stitutonnl law, we OF this generationi
who have heoome accustomed to the exer'
else of the n gulatiye power OF tine gu
prene Court In matters OF Legislation.
can hardly apprec ate, but nc the time it
was made it seemed little less than revo-
lutionaty TO lawyers, who had peen
train 4 in the common law ana edoeatsa
In the English theory shat the leSisiatiVe
uipotent. For such men lt was uiUcot
20 conceive bow any law whton the Legis-
lature might pass, an 1 ths Executive ap-
prove, could be set aside by mers Judg-
ment OF court. IL was novelty IN
jurisprnoenoe, and no precedent could ps
found to sustain Ii In ancient or modern
nistorf Although the orstltutlon ds--
Glare that the judicial power should ex
send to ''all cases arising undsr the con-
stitution and t1e laws OF the Unitea
States,i when the q1estion was hrst
presented in federal court this power
see med so fraught with evil, and SO far
reaching In its consequences, tn4t esoaps
was sought by narrow anu ttraineu
construction Of Its provisions, HOW easily
NIarshall brushed aside these objections
and clearly laid down the principles
which have ever since governed our high
est court, may be seen by snort extraot
from the opinion ne dellvered-'Ihe
question whether an act repugnant TO the
constitution can teoome the law OF the
land Ia a question deeply interesting TO
the Unite states; but, happily, not OF
an iutrlcacy prop1rtionsd to It's Interest
IL an act of the Legislature repuRnant TO
the constitution Is void, docs 1t, not
with .tanding Its invalidlty, oind the court
anu oblige them TO give IL eHectt inns inns
woul1 be 10 overthrow in fact ~hat was
esatablished In theory; and womb sesm,
at first VIEW an absurdity too gross TO
be insisted on. 1t shall, however, IeeelVe
"A more a stentiye consideration, lt Is
empha ieally the Trovince ana duty OF the
judicial department TO say what the law
is Those who apply the rule to particn.
lar cases must, OF necessity, expound
AMI interpret that rule. lf two laws con-
fiict with each other, the courts mus de-
eide on the operation OF each. 30, II
law bs In opposition to the constitution;
n both the law and the constitution APP
ply TO o particular case, so that the court
must either decide that case oontormaoly
TO the constitution, ,or conforma-
bly, to the law disreRard1ng the
constitution disregArding the law,
the court must determine which OF these
conflicting ruIes governs the case. Inns
Is of the very essence OF judicial duty. III,
then, the courts are to regard the consul
tuition, and the constitution Is superior
to any ordinary act OF the legislature, the
constitution, and not such ordinary act
must govern the case to which they both
Following this the court was called
upon In Fletcher VS.. Peck to pass upon
the constituttonaiity OF an act Oh ene
Legislature of the state OF Georgia. Wnlcn
was pronounced to be null and void as
in violation of the United States consti :
tuition. The same objections which at
taehed TO the exercise of the power as,tis ." 4
court in the former case, wero ~ tnda,
an this case by a feeling that-thss 'Wks
--~.>.1----S.a ~ sne jurisdiction claimed bT
the court. The question at issue was the
ownership or tract OF land, for which
one legislature had granted patent
which q subsequent legislature had re-
psaIed. Again Marshall pronounced the
Judgment or the court which established
the doctrine that under the constitution
the states are prohibited from passing
laws impair ng the obligation OF contracts
and that the power Of the court was snffi-
cient to protect even an individual against
the injustice OF q state.
This principle was again invoked in the
celebrated Dartmouth College caFe. %
the opinion In which, TO quote the
language OF one Of the present justices Of
the Supreme Court, contributed as
much as any ne ever delivered to the
great reputation OF Chief Justice Mar
SHALL" and settled the doctrine that a
corporate charter is a contract within the
protection Of the federal constitution, SO
that it has ever since been recognized as
"canon of American Jurisprudence"
"whoss doctrines, in the language of
Chief Justice Waite, "have become 50 Inn
bedded in the Jurisprudence OF the United
States as to make them to all intents and
purposes pant Of tho constitution it
self.' The facts were these, a charter
had been granted by the crown to Dart
mouth College in 1863, placing its gov
ernment in the hands or board of trus-
tees. and providing for their succession,
and on the faith OF this charter the COL
lege had bsen privately endowed, In 1916
the legislature OF New Hampshire at
tempted TO amend the charter ant. change
its form OF government, but the trustses
Of the college refused TO accept the acts,
and recourse was had to the state ooor5s,
where judgment WAS given against them,
y and an appeal was taken to the Supreme
Court OF the United States, Mr.. Webster
and Mr.. Hopkinson appeared for the col
lege, and Mr.. Writ, then attorney gen.
eral of the United States, and Mr.
Holmes appeared on the other side. The
principal arguments were made by Mr..
Writ and Mr.. Webster. The latter had
argued tie case in the court below and
was familiar with the whole controversy.
He was a graduate OF the college, and
his devotion to his Alma Mater led him
to exert all his powers in her defense. his
argument was considered one of the
most mastery efforts OF his professional
life. Towards its close he was overcome
by emotion ana paused to recover his
composure. Looking at the chief jas
tice he said In those deep tones, which
G0O Iod fba hoa Of