and unanswerable force in the early case of Marbury vs. Madison, followed up from time to time by repeated decisions, and adopted by all jurists and all courts ever since, that the Constitution of this country has, by an inevitable necessity, reposed in the judicial department of the government the sole determination and construction of the fundamental law of the land. In England, whence our institutions were mainly derived, Parliament is omnipotent. It is the tribunal charged with the administration of the unwritten British Constitution. Their action in that sphere is final. Any statute they deem it proper to pass is a valid statute, and controls all rights, public and private. The American Constitution is based upon a different theory. That difference, as it seems to me, is the distinguishing and almost the only vital difference from the Constitution of Great Britain. The mere machinery of the administration of the governmentthe manner in which the chief magistrate shall be elected the term of his office the appointment of his subordinates-these and other details are subject to change, as time and experience shall point out. They are not essential to our system. It is not upon these that Republican government reposes. It is, I sayand I repeat in order to emphasize more clearly the proposition I desire to present-it is upon the intrusting to the judicial department of the whole subject of the constitutional law, for all purposes, that our government rests. While that stands and is maintained in its purity, this Constitution will stand. The ship will ride as long as the anchor holds, though storm after storm may sweep across the face of the sea. While that remains, the system will remain. Details may be

modified and changed, we cannot foresee to what extent. Changes of that sort have already taken place, but the principle I have stated is the fundamental idea.

That point once established by the Court, the simple, the ancient, the salutary, the perfectly intelligible and just principles of the common law became sufficient for all the purposes of constitutional construction. When the rule of construction of the great compact was shown to be simply a question of law, the law was found perfectly adequate to dispose of it.

No better illustration can be produced in history of the profound wisdom of that system of jurisprudence known as the common law than to observe how completely those rules that are applied to the humblest contract, between the obscurest individuals, were found sufficient for the emergency, when a court of justice was called upon for the first time in the history of the world, not merely to adjudicate upon private rights, but to promulgate from the bench the principles of civil government, and to adjust the rights and powers of conflicting sovereignties. If the eulogian of the common law seeks for the most signal illustration of its comprehensiveness, he will find it there. It was by the application to the Constitution of those plain and clear rules that all the results of its construction were satisfactorily worked out.

When we peruse those judgments, we are reminded, especially and above all, how absolutely free they are from all considerations of political expediency, all motives of party politics, all statecraft, or even statesmanship, unless it may be deemed the highest statesmanship to avoid the attempt at statesmanship in

judicial construction, and not to confound two very different systems of administration, belonging to two very different tribunals. How perfectly free from all suspicion of party or political bias or feeling those decisions stand! And that, as it appears to me, is one reason why they were accepted by the universal consent of the American people, and have always remained without question or dispute. No political party ever yet convinced its adversaries by argument. Discussion only intensifies the dispute; harmony with a political opponent is only obtained by the exercise of the courtesy which suspends all discussion on the points of difference. No living man could have addressed to the American people, in that first critical half-century of the Republic, a constitutional argument based upon party politics that would have stood an hour. It would have been universally rejected, denied by its opponents, despised by its friends. Marshall, as it is well known, was a Federalist. His political opinions were doubtless pronounced and decided. It was not because he was without political sentiments that he excluded them from his court. The Federal party, I may be permitted to observe in passing, will perhaps receive better justice from future history than it has from the past. It went to final wreck about the time of the last war with Great Britain, encountering the usual fate of a party which sets itself in opposition to any war it may be proposed to engage in. But I believe the ultimate justice will be done it of remembering that some of the greatest and purest men this country ever contained were the founders and leaders of that much-abused party. Their views have been generally misconceived. It

was not upon the construction of the Constitution we have that they differed from their opponents, but upon the previous question, whether we should have that Constitution or some other. It is idle to busy ourselves with conjectures of what might, would, or could have been the history of this country if the Constitution which Washington, Hamilton, Jay, and, doubtless, Marshall preferred had been adopted, because it was not adopted. But Federalist as he was, and whatever may be said of his party or their views, we can find no more trace in any line of those great judgments that would indicate the political sentiments or bias of the Chief Justice than if we were to study his opinions upon charter parties or policies of insurance.

Let me quote on this subject some very forcible and apposite language, from the resolutions adopted by the Charleston bar (I know not who was the author*) on the occasion of Chief Justice Marshall's death: "Even the spirit of party respected the unsullied purity of the Judge, and the fame of the Chief Justice has justified the wisdom of the Constitution, and reconciled the jealousy of freedom with the independence of the judiciary."

As every lawyer and every intelligent layman knows, the point of most danger and difficulty in constitutional construction, where the greatest risk of final shipwreck is incurred, is in the attempt to adjust those conflicting -sometimes doubtful-always very delicate-relative rights of the States and the Federal government. That point, of all others, was treated by the Court with the largest sagacity and the greatest wisdom. *Stated by General Lawton, of Georgia, to have been written by Mr. Pettigru.

Critical as were many of the emergencies that arose in those days out of that subject, they were all not only satisfactorily met, but buried and forgotten forever, under the wise and salutary administration of the law which they encountered.

Upon the distinction, so much and so long discussed in some parts of our country, between strict construction and liberal construction in respect to these relative rights, it was the view of the Chief Justice and his associates that they were unable to perceive what those words meant in that connection, or what just application they had. The Court had simply to ascertain the meaning of a written instrument, which upon common principles was to be construed both strictly and liberally; strictly in ascertaining what powers it contains, liberally in carrying into effect those powers it is found to contain.

Allow me, in taking leave of this point, to read a few words from the language of the Chief Justice himself, out of much that might be usefully quoted did time allow. "In the argument," says he, "we have been admonished of the jealousy with which the States of the Union view a revising power, intrusted by the Constitution and laws of the United States, to this tribunal. To observations of this character the answer uniformly given has been that the course of the judicial department is marked out by law. We must tread the direct and narrow path prescribed for us. As this Court has never grasped at ungranted jurisdiction, so will it never, we trust, shrink from the exercise of that which is conferred upon us." Words which are fit to be written in letters of gold over every tribunal in this country.