Joint Marshall. litical views. This is no reflection upon their integrity. It simply shows the sincerity of their convictions. We have more than once in our day seen our honored Federal Su preme Court divide practically, and some times exactly, upon party lines. Now it so happened that during nearly all the thirtyfive years that John Marshall was Chief Jus tice a majority of the Court were opposed to him politically. Yet we find very few cases where the Court divided, and no great con stitutional questions when John Marshall spoke for the minority. So strong were his arguments, so keen his logic, so great his influence that we find Judges of opposite po litical faith joining with him in his broad, strong, comprehensive views of the Consti tution. It is certain that had he possessed average powers only he would have spent most of his time in writing dissenting opin ions, while the opinions of the Court would have established rules of construction for our great charter that no patriot dares now contemplate. It was the conviction of John Marshall that the Constitution made and was intended to make this country a nation complete and strong in all its parts, an in divisible nation capable of protecting itself from within and from without. To his mind no construction of the Constitution was per missible that would conflict with its great purpose. He carried his associates with him. His rules of construction brought out the force and beauty of the Constitution, the power and cohesiveness of the nation it cre ated. It has often been noted and commented upon by lawyers that in his leading opinions upon constitutional questions John Marshall quoted but few authorities. He might have accounted for this by saying that written constitutions had not thus far in the world's history been brought to the Bar of an inde pendent, untrammeled judiciary for construc tion. But that, I conceive, was not the true explanation of the fact. His associates fre quently cited authorities which they deemed cognate. But John Marshall conceived that
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in a matter of such direct interest to every citizen of this Republic as the construction of their own new and untried charter, the people ought not to be required to ac cept the doctrines of some foreign court, but that the grounds and reasons for the Constitution ought to be stated in language so clear, and based upon logic so unanswer able that the construction could neither be rejected nor questioned. To that end he bent all his great powers, and the constitutional opinions written by him stand to-day for per spicuity and conclusiveness without peers in the law volumes of the world. Slowly, as case after case was brought before the high tribunal over which he presided, he unfolded his views and brought out the beauty, the flexibility and the capability of the Constitu tion. It was a fundamental principle with him that the United States was a govern ment with certain expressly granted powers and with certain necessarily implied powers. That is to say, when he found express power given to do a certain thing he reasoned that it must have been the intention of the Consti tution framers to grant power to do all those things incidental and necessary to the exer cise of the power expressly granted. From that reasoning grew the doctrine of implied powers — a doctrine long combatted — but now universally conceded and a doctrine which really gave the Federal government greater strength by reason of its implied powers than by reason of powers granted in terms.1 Marshall's rare talents found their greatest opportunity for exercise and triumph in the exposition and application of the Federal Constitution. That instrument, recently born of new conditions and for new rela tions, was in many vital particulars unlike any other that had ever been written. "The creation of a national government, by the terms of a written paper, was, as yet, a bold novelty, a brilliant but perilous experiment, 1 Honorable J. M. Bartholemew, Chief Justice of the Supreme Court of North Dakota.
