RANK OF THE JUDICIARY. 467 in our system of government were clearly defined by ChiefJustice Marshall in 1803.1 He laid down the principle that it is the province and duty of the judiciary to say what the law is. The co-equal rank of the judiciary with the executive and legislative had been asserted and, in part, admitted, he said, at the time of making the national Constitution. That the judiciary, in cases of doubt where two laws conflict with each other, should be paramount in determining which should prevail, was practically a new doctrine, but one necessarily springing from the concept of democracy in America, that the original supreme will of the people had organized the government, had assigned to different departments their respective powers and had defined their boundaries by a written constitution: "So if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case so that the court must either decide that case conformably to the law, disregarding the Constitution, or, conformedly to the Constitution, disregarding the law, the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty." Thus the very existence of a supreme written law implies paramount functions in the court to determine whether an act of the legislature is repugnant to the Constitution. The court therefore exercised this paramount function because the Constitution is a paramount law, otherwise, as Marshall said, a written constitution which "we have deemed an improvement on political institutions" would be reduced to nothing, and there would exist no means by which to interpret the ultimate will of the sovereign body. Having declared this ultimatum, the court could go no further, for it could not execute its own decrees, but must depend upon the executive, and possibly upon 1 Marbury vs. Madison, 1 Cranch, 137. (1803.) 468 INDEPENDENCE OF THE LEGISLATURE. the legislative. The law of the Constitution was laid down, that in determining what shall be the supreme law of the land the Constitution itself comes first, and those laws only which are made in pursuance of it. This doctrine, familiar to us now, was a novel one at the opening of the nineteenth century, and placed the American judiciary in a position unparalleled in the history of government. Although the decision in the particular case was never executed,' the principle which Marshall laid down in the decision was destined to regulate all later interpretation of the functions of the judiciary. It has long been an established principle in English law, that an act of Parliament, duly made, is the exercise of the highest authority acknowledged in the Kingdom; that Parliament has power "to bind every subject in the land and the dominion thereunto belonging nay, even the King himself, if particularly named." And the act could not be altered, amended, dispensed with, suspended or repealed, except in the same forms and by the same authority of Parliament, according to the political maxim that it requires the same strength to dissolve as to create an obligation.2 One Parliament cannot bind an 1 President John Adams had nominated one Marbury to a judicial office and he had been confirmed by the Senate. His commission was made out and signed and sealed but had not been delivered to him. Madison, Secretary of State under Jefferson, refused to deliver it. Marbury claimed title to the office and applied directly to the Supreme Court for a written mandamus. Chief-Justice Marshall held that when the commission was signed and sealed the appointment was complete, and vested in Marbury a legal right to the office, but refused Marbury's application, holding that the thirteenth section of the judiciary act of 1789, purporting to give the Supreme Court jurisdiction in proceedings original and not appellate, to issue writs of mandamus to public officers was not warranted by the Constitution and was therefore inoperative and void. 2 Blackstone, Book I, Chap. ii, p. 186. THE CONSTITUTION A PROTECTION. 469 other. This principle was not accepted, in its entirety, in America, but as much of it as prevailed in our political system was defined by Chief-Justice Marshall in 1810, that "one legislature is competent to repeal any act which a former one was competent to pass; and that one legislature cannot abridge the powers of a succeeding one." At the same time he stated the relation between the United States and the several States. In adopting the Constitution the people manifested a determination to shield themselves and their property from the effects of sudden and strong passion to which men are exposed, and therefore, restrained the State legislatures from passing laws violating the obligation of contracts; the Constitution itself contains what may be deemed a Bill of Rights for the people of each State. This sustained the opinions of Hamilton and Wilson when the Constitution was before the States for ratification, that it is a Bill of Rights. It answered many objections advanced at the time of ratification and anticipated many more which arose later. It authoritatively expressed a sentiment, now more or less familiar but not generally accepted during the first seventy-five years of our national history, that all rights of the States and of individuals are guaranteed by the national Constitution. Marshall's opinion, in its varied application, placed the entire economic interests of the American people within the jurisdiction of the national government, and tended powerfully, during these years, to evolve that sentiment of nationality which found expression, almost for the first time, during the debates on the Compromise of 1850. It is difficult to realize the full significance of his de 1 Fletcher vs. Peck, March 16, 1810, 6 Cranch, 87. 2 Constitution, Article VII, Section 10, Clause 1. 8 Page 22, ante. 470 CHARACTER OF THE CONSTITUTION. cision. It is not too much to say that he laid down the principle on which civil homogeneity could be assured to the Nation. The decision and the long line of later ones in conformity with it gave to the national judiciary a prestige which may be compared to that secured to the national honor by adherence to the amendments of later years guaranteeing the validity of the public debt.1 With a written Constitution considered of such paramount authority in the American system, the time was sure to come when it would be necessary to define exactly, and with authority, the character of that Constitution and particularly its origin and the principles according to which it should be interpreted. The Articles of Confederation were established by the States in their sovereign capacity. The delegates to the Federal Convention of 1787 were chosen by the several State legislatures. The transition from the old Confederation to the new Nation was not marked by a corresponding change in public sentiment or by such an enlightenment of the public mind as to make clear to all the people of the United States the real character of the new government. Though the framers and supporters of the Constitution wrote freely and with authority of its scope and meaning, it was not until thirty years had passed that the nature of the new government was set forth by judicial authority. "The Constitution of the United States," said Mr. Justice Story, in one of the great decisions that has come down to us,2 "was ordained and established, not by the States in their sovereign capacity, but emphatically, as the preamble of the Constitution declares, by the 'people of the United States." They had the right "to prohibit to the States the exercise of any powers which were, in their judgment, 1 Article XIV, Clause 4. See Vol. III, Bk. VI, Ch. VII. RESERVATION OF POWERS. 471 incompatible with the objects of the general compact; to make the powers of the State governments, in given cases, subordinant to those of the Nation or to reserve to themselves those sovereignties which they might not choose to delegate to either. The Constitution was not, therefore, necessarily created out of the State sovereignties, nor by a surrender of powers already existing in State institutions; for the powers of the States depended upon their own constitutions; and the people of every State had the right to modify and restrain them, according to their own views of policy and principle. On the other hand, it is perfectly clear that the sovereign powers vested in the State governments, by their respective constitutions, remained unaltered and unimpaired, except so far as they were granted to the government of the United States." This deduction was clear from the nature and the language of the Constitution itself,-that, "all the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, was reserved to the States respectively or to the people." The conclusion followed, therefore, that the government of the United States, "can claim no powers which are not granted to it by the Constitution, and the powers actually granted must be such as are expressly given, or given by necessary implication." But the instrument, like every other grant, should receive a reasonable construction. A power expressly given in general terms was not to be restrained to particular cases "unless that construction grows out of the context expressly, or by necessary implication." Words were to be taken "in their natural and obvious sense and in no sense unreasonably restricted or enlarged." 1 Article X. |