ment, 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 government of law, not only for the people subjected 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."

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

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

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.

This reference to the Marbury case would be historically incomplete without some notice of the manner in which the decision was received. .

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 me. 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 man.

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 observe 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. 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, in noticing that case, you could take occasion to express the determination of the executive that the doctrines of that case were given

extra-judicially, and against law, and that their reverse will be the rule of action with the executive."1

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

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

In further illustration of the value and lasting influence of Marshall's constitutional judgments, I next refer to the case of Dartmouth College, 1819, 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, judges 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." The State of New Hampshire 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

'Jefferson's Writings (Ford), Vol. IX, p. 53, note. 2 Art. I, sec. 10.

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 contracts.

No one ever questioned that this clause applied to private contracts, to all valid private contracts between 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.

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