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so completely overshadowed that it requires the special study of this occasion to recall its extent, its variety and its eminent usefulness.
In 1801, so little had the importance of the position been perceived that the learned, accomplished and patriotic Jay thought himself going to rust in the Chief Justiceship, preferred to be Governor of New York, and finally resigned to go as envoy to England. The court has as yet made but little impression on the jurisprudence of the country. The powers and limitations of the Constitution had been discussed, often with partisan heat and violence, in legislatures and conventions, but no principles of construction had been judicially settled, and the decision of the Supreme Court in the only important case that had yet come before it, Chisholm v. State of Georgia, 2 Dall. 419, in which it was held that a State might be made defendant in the Federal courts at the suit of an individual, had not only roused the wrath of the Staterights party, but so startled even the Federalists, that it led to an amendment of the Constitution. But questions were already looming up, full of ominous import, which could not be long delayed; questions of the inherent powers of the States as sovereignties, how far they had been surrendered to the central government, how far they had been retained, how far they were exclusive in one or the other or might be exercised concurrently; questions of the obligation of contracts, including chartered rights and their protection by the Federal courts from impairment by the States; questions of the regulation of commerce and the navigation of rivers between States and with foreign countries, as against State laws; questions of the restraints upon the issue of money by the States, and of taxation by the States of Federal offices, or corporations; questions of jurisdiction between State and Federal courts, including the control of State courts over Federal officers, and the revision by the Federal courts of the decisions of State courts on constitutional questions. And underlying all these was the fundamental question on which the solution of all of them was largely to depend, the strict or the liberal construction of the Constitution as an entire instrument. None of these questions bad been decided and there were no precedents to guide the decision. The science of constitutional law, as now known to us, had as yet no existence. Under the institutions first inherited from the mother country, and then made the models on which our own were reconstructed, lawyers and judges had been trained to view the legislative power vested in Parliament as infallible and omnipotent. That first lesson had to be unlearned, and a new field of jurisprudence opened.
Into this untrodden field the new Chief Justice entered with the firm step of conscious strength, trusting to his own clear perceptions and honest singleness of purpose to find the way. And how plain and broad and straight the way seems when he has once pointed it out.
Let me take one general illustration, the great question which as I have said underlies all the others, that of the strict or liberal construction of the Constitution as an entire instrument. It had been the subject of earnest, sincere and settled difference of opinion among some of the wisest statesmen of the day, and perhaps even more frequently of partisan and violent dispute. It may be said that it exists yet and will always exist, for it is inherent in the nature of the subject, the imperfection of language, and the varying temperaments of those who interpret it. In statutes, in private contracts, and most of all in wills, it is part of the lawyer's daily work to ask, Shall we adhere to the letter, or shall we look beyond it for the intent? The States, said the strict constructionists, the State-rights party, are independent sovereignties, the source of all political power; for certain expressed purposes they have transferred limited portions of that power to the Union, but in so doing they have only appointed an agent, and such agent has no power not literally within the terms of bis appointment; if authority is not shown in express words, it does not exist. The United States, said the Federalists on the other side, is not a mere league, but a government; with delegated and limited powers it is true, but nevertheless a government, and possessed of all powers inherent in the conception of a government, unless expressly withheld or prohibited in the instrument creating it. The Chief Justice took up the question in the very essence of judicial spirit. In politics he had been a life-long Federalist, and the champion of their views in many hardfought contests. But as a judge he saw only with the clear light of the law. The Constitution, he said, was to have neither a liberal nor a strict construction, but a natural one, according to the intention as shown by the words understood in their natural and usual meaning. The Union was a government of delegated powers. Therefore, when any power was claimed, the warrant for it should be clearly shown in the Constitution, and to that extent the construction must be strict. But though only of delegated powers, it was nevertheless a government, and must possess the full measure of all the powers intended to be given. Therefore the construction must be liberal as to every means of exercising the powers given
with full effect. How plain and how easy the solution seems when once it is said. Do not even my unprofessional hearers see what plain common sense it is ? A platitude that even the incipient law student could answer off-band. But when John Marshall first said it, it was new, and it is a platitude to-day because he said it in such terms that no man could fail to see its solid good sense, the foundation of all permanent law.
In this spirit the Chief Justice took up the varied questions as they arose, and discussed and decided them. Time and the limitations of a spoken address do not permit even a bare enumeration of the cases as they arose, or the points they involve; but speaking to-day as a lawyer to lawyers, I may make brief reference by way of illustration only to a few of them.
Marbury v. Madison, 1 Cranch, 137, was the first and in some respects the most important of the cases I shall mention. Marbury was appointed a justice of the peace in the District of Columbia by President Adams, was confirmed by the Senate, his commission signed by the President and passed under the seal of the State Department, but before it was delivered the administration changed, and, under instructions from President Jefferson, Secretary Madison refused to deliver it. The suit was for a mandamus to compel delivery. The court held that it had no original jurisdiction except that fixed by the Constitution, and that the Act of Congress giving it jurisdiction in such cases was to that extent void. The case is notable in that holding that it had no jurisdiction to issue such a writ, the court's opinion on Marbury's title to the office, and the power of the judiciary to compel the performance of duty by executive officers, was obiter. But
the Chief Justice, stating that the novelty and delicacy of some of the questions required a complete exposition of the principles on which the opinion of the court was founded, entered into the subject at large, and vindicated the power of the court to declare an Act of Congress void for unconstitutionality. This point had been decided more or less explicitly before. Indeed, it was a necessary conclusion from the equality of the judiciary as a co-ordinate branch of the government. But it encountered very resolute and even passionate political resistance, both from the legislative and the executive branches, bad been touched tenderly and with reluctance, even by Marshall himself in the debates on the Constitution, and had never commanded general acquiescence, nor received an authoritative exposition."
1 For the following very complete note of the prior cases I am in. debted to Ardemus Stewart, Esq., of the Philadelphia Bar. Comm. v. Caton, 4 Call, 5 (Va., 1782); Cases of the Judges of the Court of Appeals, 4 Call, 135 (Va., 1788); Trevett v. Weedon (R. I., 1786), Arnold's Hist. of R, I., vol. 2, ch. 24, and see Cooley's Constitutional Limitations, 193, n. 3; Den on Demise of Bayard v. Singleton, 1 Martin, 48 (N. C., 1787); Ogden v. Witherspoon, 2 Hayward, 227 (N. C., 1799); Bowman v. Middleton, 1 Bay, 252 (S. C., 1792); Austin's Lessee v. Trustees, etc. (Pa., 1793), referred to in Emerick v. Harris, 1 Binney, 416; case of Holmes and Walton, and Taylor v. Reading, in New Jersey, cited by Kirkpatrick, C. J., in State v. Parkhurst, 4 Halsted (9 N. J. Law), 427; Van Horne v. Dorrance, 2 Dall. 304 (1795).
On April 5, 1792, the Circuit Court for the District of New York, consisting of Chief Justice Jay, Justice Cushing, and Duane, District Judge, declared it as their unanimous opinion that the pension law passed by Congress on March 23, 1792, was invalid, because it attempted to assign to the judicial department duties which were not judicial; on June 8, 1792, the Circuit Court for the District of North Carolina made a similar declaration in a joint letter, addressed to the President of the United States; and on April 18, 1792, the Circuit Court for the District of Pennsylvania addressed a similar joint