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77ic Green Bag.
tion, but did so without accepting or adopt ing its counterpart. Alexander Hamilton defined the rules of legal interpretation to be the rules of common sense, adopted by the courts in the construction of laws. The de liverances of the Chief Justice in Gibbons v. Ogden, Cohens v. Virginia and Osborn v. the Bank, afford striking examples of the application of common sense in the interpre tation of the organic law. To say that "men whose intentions require no concealment generally employ the words which most di rectly and aptly express the ideas they intend to convey," and that the makers of the Con stitution "must be understood to have em ployed words in their natural sense, and have intended what they have said," joins convic tion with simplicity and appeals directly to the common sense of the layman, as well as the lawyer, and of the uncultured man as well as the scholar. Such mies do not con flict in principle with Mr. Jefferson's rule that, on every question of Constitutional construction, we should carry ourselves back to the time when the Constitution was adopted, and recollect the spirit manifested in the debates, instead of trying what mean ing may be squeezed out of the text or in vented against it and conform to the proba ble one in which it was passed. Nor with his other rale, that "when an instrument admits of two constructions the one safe, the other dangerous; the one precise, the other in definite, I prefer that which is safe and pre cise." . . . The Chief Justice was a steadfast defender of the theory that the authority of the United States was derived from the people, but he did not agree with those who argued from this postulate that the grants were made by the people, disassociated from their relations to their individual States. When this claim was pressed on his atten tion he responded that: "No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people in one common mass; of conse
quence, when they act, they act in their States." He did not agree with those who claim that the States were never separately sov ereign or individual, but independent only as members of the American Union, before, as well as after, the acceptance and adoption of the Constitution. He considered the original confederation a league of sovereign and completely independent States, but held that the Union, under the Constitution, created a government which, though limited to its objects, is supreme with respect to those objects. He did not differ from Mr. Jeffer son's theory that "our citizens have wisely formed themselves into one nation as to others and several States as among them selves. To the United States belong the ex ternal and mutual relations; to each State severally the care of our persons, our prop erty, our reputation and religious freedom." Without pretending to respect the voice of the people, emotionally or hysterically ex pressed, John Marshall let no opportunity pass to announce that the people are the source of all power, and that their will within the limitations that they have permanently established, when regularly ajid deliberately declared, is the law of the land. His theory of our government was: "That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, there fore, so established, are deemed fundamental. And as the authority from which they pro ceed is supreme, and can seldom act, they are designated to be permanent. This origi nal and supreme will organizes the govern ment, and assigns to different departments their respective powers. It may stop here or establish certain limits not to be transcended by those departments." He did not reason after the manner of
