John Marshall.
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bound as it is, when regarded as a doctrine i as a check upon popular omnipotence, and, for the descendants of British colonists, in our own time, we see the same jealousy there are grave and far-reaching considera shown by socialistic innovators. Marshall tions — such, too, as affect today the proper thoroughly approved of, I will not say, "gov administration of this extremely important ernment by injunction," for the term is both power — not touched by Marshall, which inadequate and misleading, but of the very must have commanded his attention, if the widest field for judicial action and judicial subject had been deeply considered and fully influence, whether invoked to protect indi expounded. His reasoning does not answer vidual rights or to enforce public obliga the difficulties that troubled Swift, after tion. Of this no better illustration can be wards Chief Justice of Connecticut, and Gib found than his course in the case of Marson, afterwards Chief Justice of Pennsyl bury v. Madison, above mentioned. That vania, and many another strong man; not to case is best known as the first wherein an mention Jefferson's familiar and often ill- Act of Congress was pronounced void, be digested objections. It assumes as an essen cause unconstitutional, by the Supreme tial feature of a written constitution what Court, but it is no less worthy of note in an does not exist in any one of the written con other aspect. Vhen it became known at stitutions of Europe. It does not remark the seat of government that President the grave distinction between the power of Adams had been defeated as a candidate for disregarding the act of a co-ordinate depart re-election, the Federalists, who, for the ment and the action of a Federal Court in moment, controlled all branches of the na dealing thus with the legislation of the local tional government, were tempted to abuse States, a distinction important in itself and the brief period of supremacy left them observed under the written constitutions of for purposes of selfish and short-sighted Europe, which, as I have said, allow this partisan advantage. In this spirit they cre power in the last sort of case, while denying ated a number of new offices which the re tiring President hurriedly filled with incum it in the other.1 bents belonging to his own party, and among The doctrine [that "the very essence of these were certain Justices of the Peace for civil liberty consists in the right of every in the District of Columbia appointed for five dividual to claim the protection of the laws years. The act providing for their appoint whenever he receives an injuryT] he then ment was approved on February 27, 1801; asserted with such emphasis, which he treated on March 2 President Adams nominated Mr. later as "a political axiom." had been, at William Marbury and three others for the least in its practical application, vehemently positions thus established, late in the even denied in the earlier days of our government, ing of the third they were confirmed by the and it is denied with no less passion today Senate, and but a few minutes before mid by aliens to the spirit of the American pol night their commissiojis were signed and ity. That courts of law are the best instru sealed; these had not been delivered on the ments, nay, that they are the only good next day when Mr. Madison became Secre instruments, to determine all controversies tary of State, and passed into his possession. and vindicate all rights affecting the persons This action of the Federalist President and and estates of freemen, he deemed an axi Congress was unfair, unbecoming, and, as omatic truth, but when he took his seat as events soon showed, gravely impolitic; in Chief Justice a great political party looked fact, the indecorous attempt thus made to on the judiciary and, most of all. on the preserve patronage for a defeated party went Federal judiciary, with dislike and suspicion far to convert its defeat into irremediable ruin, but the whole proceeding has been 1 Professor Thayer.
