could dispute the necessity of the constitu tional argument and therefore deny its au thority; saying that the Judge silently as sumed what was false to justify his resort to the constitutional question, and did not dare either to assert or argue the proposition assumed. Or, third: he could do as he did, first establish the applicant's right and then, the necessity of deciding the constitutional questions being shown, proceed finally to the argument of that. And so I am confident that there is not and never has been any real foundation for the criticisms of enemies or the half-doubt of friends; that the opinion is not marred by the presence of a single needless or extrajudicial word; that from the beginning to the end it moves on its way with a logic as fault less as it is irresistible, and with a simplicity that is massive and grand; a carving cut from flawless marble by a master hand.1 COHEN'S v. VIRGINIA.
In Cohens v. Virginia, 6 Wheat. 377, the question came directly before the Supreme Court as to its power to review the decisions of the highest tribunal of the State. Cohens had been convicted under a statute of Vir ginia for selling lottery tickets and plead permission under the laws of Congress. Vir ginia defended, first, upon the ground that the act of Congress was void; second, want of jurisdiction in the Supreme Court to re view the judgment of the State Court. In the language of Judge Marshall, "They maintain that the nation does not possess a department capable of restraining peaceably, and by authority of law any attempts which may be made by a part, against the legitimate power of the whole, and the government is reduced to the alternative of submitting to ¡ such attempts or of resisting them by force. They maintain that the Constitution of the United States has provided no tribunal for the final construction of itself, or of the laws and treaties of the nation, but that this power 1 Honorable Francis M. Finch, Dean of the College of Law at Cornell University.
may be exercised in the last resort in the courts of every State in the Union. That the Constitution, laws and treaties may receive as many constructions as there are States, and that this is not a mischief, or, if a mis chief, is irremediable." These questions so clearly stated by the Chief Justice had long been mooted in pri vate discussion, and the Legislatures of some of the States, notably Virginia and Kentucky, had passed resolutions announcing a similar doctrine as to the supremacy of the States, but now the question for the first time had come before the Supreme Court itself for solemn adjudication. It was an important question for the government. Republican institutions were on trial before the Court. Many of the strongest and ablest statesmen denied its power and jurisdiction and the emphasis and bitterness of feeling existing against the courts for presuming to exer cise such authority is best exhibited in the words of prominent statesmen of that day. Jefferson said: It has long been my opin ion that the germ of dissolution of our Fed eral government is in the Constitution of the Federal judiciary, an irresponsible bodyworking like gravity day and night, gaining a little to-day and a little tomorrow, advanc ing its noiseless step like a thief over the field of jurisdiction until all shall be usurped." Van Buren expressed the views of many of the most prominent men of his party when he complained of the encroachments of the Supreme Court and declared : "It would never have been created had the people fore seen the powers it would acquire." Against such influences, opposed to the views of such men, leaders of a great success ful political party, it required the courage and ability of a Marshall to construe the provi sions of the Constitution in accordance with the views he has expressed. You know the re sult. Every student has read and studied this great decision. A monument, if there were no other, to the learning and ability of that great jurist; and as we read it now, its plain simple language, stating premise after
