Page:The Green Bag (1889–1914), Volume 13.pdf/274

 John Marshall. which shall be made in pursuance thereof; and all treaties made, or which shall be made, tinder the authority of the United* States, shall be the supreme law of the land;" -and "the judicial power shall extend to all cases, in law or equity, arising- under this Constitu tion, the laws of the United States, and treaties made, or which shall be made, under their authority." The judicial power was, then, in a general sense, co-extensive with the legislative power, the executive power, and the treaty making power, and to the department created for its exercise was exclusively committed the ultimate construction of the Constitu tion, although that power could not be in voked save in litigated cases and could not act directly beyond the rights of the parties. And as a rule of construction was merely a question of law, it was to be, and it was, determined and applied according to law. The principles applicable to the construc tion of written documents were thoroughly settled, and in themselves exceedingly sim ple. Applying them to the Constitution, the Chief Justice declared that "the intention of the instrument must prevail; that this in tention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them, nor contemplated by its framers;" that while it was not open to dispute that an "enlarged construction which would extend words beyond their natural and obvious import," should not be indulged in, it was not proper, on the other hand, to adopt a narrow construction, ''which would deny to the government those powers which the words of the grant, as usually understood, import, and which were consistent with the general views and objects of the instrument: that narrow construction, which would crip ple the government, and render it unequal to the objects for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent."

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These were apparently plain legal rules of construction, yet in their application is to be found the basis of the national fabric; the seed of the national growth; the vindication of a written form of Government, and. simple ! as they now appear to be, their successful application, then, required the highest judi cial qualities. For we are to remember that there had been intense opposition to the adoption of the Constitution; that each of the Depart ments necessarily acted on its own judgment as to the extent of its powers; and that the operation of the sovereignty of the nation on the powers of the States was the subject of heated partisan controversy. To hold the balance true between these jarring poles; to tread the straight and nar row path marked out by law, regardless of political expediency and party politics on the one hand, and of jealousies of the revising erning principles in such manner as to leave the mind free to pursue its own course with out perplexity, and to commend the conclu sions reached to the sober second thought; these demanded that breadth of view; that power of generalization; that clearness of expression; that unerring discretion; that simplicity and strength of character; that in domitable fortitude; which, combined in Mar shall, enabled him to disclose the working lines of that great Republic, whosefoundations the men of the Revolution laid in the principles of liberty and self-government, lift ing up their hearts in the aspiration that they might never be disturbed, and looking to that future when its lofty towers would rise ''into the midst of sailing birds and silent air." During these first years of constitutional development in the due administration of the law. it was inevitable that bitter antagonisms should be engendered, but their shafts fell harmless before that calm courage of convic tion, which, perceiving no choice between dereliction of duty and subjection to obloquy, could exclaim with the Roman orator: "Tarnen hoc animo semper fui, ut inrnfiam virtute partant, gloriam, non invidiam,pufarem."
 * power on the other; to reason out the gov