Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1901-02-05

~AA AASSSN
by him stand today for ~perspicuity and
conclusiveness without peers in the Law
volumes of the world. Slowly, as case
after case was brought before the high
tribunal over which he presided, he un,
folded his views and brought out the
beauty, the fexibility and the capability
of the constitution. It was a fundamen-
tai principle with him that the
United States was a government with
certain expressly granted powers and
with certain necessarily implied forms.
That is to say, when he found express
power given to do a certain thing he
reasoned that it must have been the
| intention of the constitution trainers to
grant power to do all those things Incl
dental and necessary to the exercise of
the power expressly granted. From that
reasoning grew the doctrine of implied
powers-a doctrine long combatted-but
now universally conceded andR doctrine
which really gave the federal government
greater strength by reason of it's implied
powers than by reason of powersgranted
in terms.
1t might be interestingly certainly
would be beneficial-could we trace. the
steps through which the contested points
in the constitution secured their con
struction. We may not do so at this
time but can notice, and but briefly, a
very few points. The first case of
wide spread interest is known in the
law books as the case of Marbury VS..
Madison. 1t arose in this Manner: Mar
bury had been appointed by the presi-
dent as a justice in the District of Col
umbia. His commission had been sign
ed by the president and sent to the
secretary of state to receive the official
seal and be delivered. The defendant
Madison was secretary of state and he
failed to deliver the commission. Marbury
applied to the supreme court for a writ
of mandamus requiring Madison to de-
liver the commission. The first point
discussed and decided in the opinion
written by the chief Justice related to
the power of the judiciary department
to coerce the performance of a duty rest
ing upon a member of the administra-
tive or executive department.. That
power was affirmed as to certain classes
of duties, and the fact that Madison was
secretary of state did not place him be-
You'd the reach of a court authorized to
issue a writ of mapdamus. 1t was also held
that the facts developed in that case
showed that the plaintiff was entitled to
the writ prayed. That brought the
court face to face with the real question
in the case. The constitution said that
the jurisdiction of the supreme court
should be appellate only. Congress had
by statute declared that the supreme
court had power to issue writs of man
damus. This wa the exercise of original
and not appellate jurisdiction. The
court could not obey two contradictory
orders. It must disregard or the
other. The constitution coming from
the people was supreme. hence the act
of congress must fall. The court SO held
and in sc holding announced for the first
time that the judicial department of
government had the power to declare an
act of the legislative department which
was contrary to the provisions of a
written constitution adopted by the
people, unconstitutional and void. This
power was strenuoulsy denied. It was
said nothing of this kind could be done
in England whence came our laws. And
that was true because England had no
written constitution. Her boosted con-
stitution rests in tradition the bound
aries of which are 81 shadowy and unde-
fined that no one can say when they are
crossed. Thomas Jefferson bitterly de-
MED the power exercised by the court.
Writing on the subject later he termed
the court "a thief of jurisdiction" and
thought he saw the failure Of our repub
lican institutions in the encroachments
of the federal judiciary and he declared
his position to be "that each of the three
departments is equally to decide for it
self what is its duty under the constitu-
ton without regard for whatothers have
decided for themselves under a similar
question" and to show how bitterly the
principle was opposed by our political
party, as parties were then divided, /
call your attention to language used by
President jackson in 1887. Congress
had passed an act to re-charter the Bank
Of the United States, the first charter
having expired by limitation. One party
| had always opposed the bank. The
original act chartering the act had been
assaulted as unconstitutional, but the su-
preme court had held it constitu-
tional. The rechartering act was in the
same language. President jackson We
toed it upon the ground that it was un-
constitutional and said: .
The congress-, the executive and the
court, must each for itself be guided by
its own opinion OF the constitution * X
The opinion Of the judges has no more
authority oyer~congress than the opin-
ion of congress has over the judy es, and
on that point the executive is independ-
emit of both" Partisanship could hardly
go further. "a
As late as 1895 one Sylvester P%enoyer,
the erst-while governor of Oregon, pub
lished a violent philippe against the
supreme court because it nu1lifed an act
of congress, and declared that this gov
eminent existed not under the cons5itu-
ton but under certain sophistries Of
John Marshall. We Of today can smile
at the doctrines SO announced because
they have ceased to have an element of
harm in them. Had these principles
been followed, it had never been
necessary to attempt the disruption
of the nation by force OF arms. With
its three departments of government in
terpreting each for itself the constitution
and the laws, and each indiferent1to the
construction of the other, acting, not sin
concert, but often il direct opposition,
with no unity Of belief or unity Of pnr-
pose, the government must have fallen
to pieces Q quickly than 8 . p Of
sand.
8Haufnr fsalIsd vn,,r ATTENTION "a con,a