puzzle to many thoughtful men.

When someone spoke to Thomas Carlyle about Washington's greatness, he replied: "George Washington? A good surveyor, maybe, but not a great man," and expressed the belief that it was not the republican character of our government that had made us a great and happy nation, but the fact that we have a great deal of land and very few people. In this Carlyle was clearly mistaken, for before Columbus came to this country, there was as much land as there is now, and not near so many people, and yet, this was not a happy and prosperous country, "when wild in woods the noble savage ran." Macauley's famous letter will be remembered, in which he spoke of our Constitution as all sail and no ballast. Enough has been said, we think, to show that our Constitution is well ballasted, and that there is no danger of our country being blown away by destructive winds. May our beloved country ever have a government powerful to protect rights and to redress injuries, and sustained by the affectionate loyalty and the prayers of the people and founded in the purpose of God. As time goes on, may great and good men continually arise who are able to shape the ages as they pass. To the end of time, on the roll of the names of the men who have shaped the ages high shall stand the name of John Marshall.

MARBURY v. MADISON.

By William Warwick Thum.

Ladies and Gentlemen:

It falls to me to make some brief comment upon the case of Marbury v. Madison, which was one of the earliest and one of the most important cases decided by Chief Justice Marshall. It is to be found in 1st Cranch, pp. 137178, and was decided on February 24, 1803. Marbury and others had been appointed justices of the peace for the District of Columbia, by President Adams, just before the expiration of of his term. Their commissions had been made out and signed, but were not delivered, when the President's term expired, and they came to the hands of James Madison, the Secretary of State of the new President, Thomas Jefferson. Marbury and the other justices applied for their commissions, but were refused. They then brought a special proceeding, in the Supreme Court of the United States, by moving for a rule for а mandamus against the Secretary of State of President Jefferson, to require the Secretary, Mr. Madison, to deliver to them their commissions as justices of the peace. The show-cause rule issued and the matter came on for hearing. The court decided, in a very able opinion, written by Chief Justice Marshall, that the Supreme Court had no jurisdiction to issue a mandamus as an orig

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inal proceeding; that its jurisdiction was purely appellate except in certain specified cases; and that it could only issue a mandamus in aid of its appellate jurisdiction. This was held to be the law, notwithstanding the fact that Congress had passed an act specially authorizing the Supreme Court to issue a mandamus in like case. The court held that such an act was void because repugnant to the Constitution of the United States, which outlined the powers of the Supreme Court, and confined it to matters of appellate, and not original, jurisdiction, except in the cases specified. To hold otherwise, that is, that the legislature was the final judge of the constitutionality of an act, and that the court had no right to inquire into the matter at all, seemed to the court contradictory of all the principles upon which the American Republic had been founded. Said the court:

"This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict its powers within narrow limits. It is prescribing limits and declaring that those limits may be passed at pleasure.

"That it thus reduces to nothing what we have deemed the greatest improvement on political institutions, a writ

ten constitution, would, of itself, be sufficient in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the Constitution of the United States furnish additional arguments in favor of its rejection.

"The judicial power of the United States is extended to all cases arising under the Constitution.

"Could it be the intention of those who gave this power to say that in using it the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises?

"This is too extravagant to be maintained.

"In some cases, then, the construction must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey?

"There are many other parts of the Constitution which serve to illustrate this subject.

"It is declared that 'no tax or duty shall be laid on articles exported from any state.' Suppose a duty on the export of cotton, of tobacco, or of flour, and a suit instituted to recover it. Ought judgment to be rendered in such a case? Ought the judges to close their eyes on the Constitution and only see the law?

"The Constitution declares that 'no bill of attainder or ex post facto law shall be passed.'

"If, however, such a bill should be passed and a person should be prosecuted under it, must a court condemn to death those victims whom the Constitution endeavors to preserve?

"No person,' says the Constitution, 'shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.'

"Here the language of the Constitution is addressed especially to the courts. It prescribes, direct for them, a rule of evidence not to be departed from. If the legislature should change that rule and declare one witness, or a confession out of court, sufficient for conviction, must the Constitution yield to the legislative act?

"From these and many other selections which might be made, it is apparent that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature.

"Why, otherwise, does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!"

The importance of this opinion was recognized at the time and its authority has been unquestioned ever since. Although it was not the first case in the United States which had decided this principle, it was this case which settled it.

Rose, the editor of the valuable series called "Notes on U. S. Reports," says:

"It can not be claimed for Marbury v. Madison that it is the first case in this country in which this point was involved and adjudicated in favor of the authority of the