I entreat the committee unanimously to reject the bill. The gentleman from Virginia has rightly anticipated that, in regard to roads, I claim the power, under the grant, to establish postoffices and post roads. The whole question, on this part of the subject, turns upon the true meaning of this clause, and that again upon the genuine signification of the word "establish." According to my understanding of it, the meaning of it is, to fix, to make firm, to build. According to that of the gentleman from Virginia, it is to designate, to adopt. Grammatical criticism was to me always unpleasant, and I do not profess to be any proficient in it. But I will confidently appeal, in support of my definition, to any vocabulary whatever, of respectable authority, and to the common use of the word. That it cannot mean only adoption, is to me evident; for adoption presupposes establishment, which is precedent in its very nature. That which does not exist, which is not established, cannot be adopted. There is, then, an essential difference between the gentleman from Virginia and me. I consider the power as original and creative; he as derivative, adoptive. But I will show, out of the mouth of the President himself, who agrees with the gentleman from Virginia, as to the sense of this word, that what I contend for is its genuine meaning. The President, in almost the first lines of his message to this House, of the fourth of May, 1822, returning the Cumberland bill with his veto, says, “a power to establish turnpikes, with gates and tolls, etc., implies a power to adopt and execute a complete system of internal improvement." What is the sense in which the word "establish" is here used? Is it not creative? Did the President mean to adopt or designate some pre-existing turnpikes, with gates, etc., or, for the first time, to set them up, under the authority of Congress? Again, the President says, "if it exist as to one road [that is, the power to lay duties of transit, and to take the land on a valuation], it exists as to any other, and to as many roads as Congress may think proper to 'establish.'" In what sense does he here employ the word? The truth is, that the President could employ no better than the constitutional word, and he is obliged to use it in the precise sense for which I contend. But I go to a higher authority than that of the chief magistrate-to that of the Constitution itself. In expounding that instrument, we must look at all its parts; and if we find a word, the meaning of which it is desirable to obtain, we may safely rest upon the use which has been made of the same word in other parts of the instrument. The word "establish” is one of frequent recurrence in the Constitution; and I venture to say that it will be found uniformly to express the same idea. In the clause enumerating our powers, Congress has power "to establish a uniform rule of naturalization," etc. In the preamble, "We, the people of the United States, in order to form a more perfect union, establish justice, etc., do ordain and establish this Constitution," etc. What pre-existing code of justice was adopted? Did not the people of the United States, in this high, sovereign act, contemplate the construction of a code adapted to their federal condition? The sense of the word, as contended for, is self-evident, when applied to the Constitution. But let us look at the nature, object and purposes of the power. The trust confided to Congress was one of the most beneficial character. It was the diffusion of information among all the parts of this republic. It was the transmission and circulation of intelligence; it was to communicate knowledge of the laws and acts of government; and to promote the great business of society in all its relations. This was a great trust, capable of being executed in a highly salutary manner. It could be executed only by Congress, and it should be as well performed as it could be, considering the wants and exigencies of government. And here I beg leave to advert to the principle which I some time ago laid down, that the powers granted to this government are to be carried into execution by its own inherent force and energy, without necessary dependence upon the State governments. If my construction secures this object; and if that of my opponents places the execution of this trust at the pleasure and mercy of the State governments, we must reject theirs and assume mine. But the construction of the President does not make it so dependent. He contends that we can only use, as postroads, those which the States shall have previously established; that they are at liberty to alter, to change, and of course to shut them up at pleasure. It results from this view of the President that any of the great mail routes now existing, that, for example, from south to north, may be closed at pleasure or by caprice, by any one of the States, or its authorities, through which it passes-by that of Delaware or any other. Is it possible that that construction of the Constitution can be correct, which allows a law of the United States, enacted for the good of the whole, to be obstructed or defeated in its operation by any one of twenty-four sovereignties? The gentleman from Virginia, it is true, denies the right of a State to close a road which has been designated as a post-road. But suppose the State, no longer having occasion to use it for its own separate and peculiar purposes, withdraws all care and attention from its preservation. Can the State be compelled to repair it? No! the gentleman from Virginia must say, and I will say-may not the general government repair this road which is abandoned by the State power? May it not repair it in the most efficacious manner? And may it not protect and defend that which it has thus repaired, and which there is no longer an interest or inclination in the State to protect and defend? Or does the gentleman mean to contend that a road may exist in the statute book, which a State will not, and the general government cannot, repair and improve? And what sort of an account should we render to the people of the United States, of the execution of the high trust confided, for their benefit, to us, if we were to tell them that we had failed to execute it, because a State would not make a road for us? JOHN MARSHALL JOHN MARSHALL was born at Germantown, Virginia, September 24, 1755. He was the eldest of fifteen children. He never attended college, but was well educated by his father. During the Revolution he served as a captain, and in 1781 began to practice law. He was chosen a member of the Virginia House of Delegates in 1782. When the question of adopting the new constitution came up Marshall earned his first fame by the powerful speeches he made in favor of a National Union. With the election of Washington he became one of the most prominent of the Federal leaders. He served in Congress in 1799, and in 1800 was appointed Secretary of State by President Adams. He was made Chief Justice in 1801 and served until his death in July, 1835. Under his influence the Supreme Court gradually came to assume the commanding position it now occupies, and his decisions did more to strengthen the National power than all the contemporary years of a State-sovereignty, Republican rule could do to awaken. In 1803 in the case of Marbury vs. Madison he decided that the constitution is, contrary to the case in England, superior to any legislative act and that it is the duty of the judicial department to decide on occasion whether a law be constitutional. In the case of the United States vs. Judge Peters in 1809, he decided that the federal laws are superior to those of a state and the federal judiciary superior to either a state court or legislature. In the case of M'Culloch vs. The State of Maryland (1819), he developed the doctrine of implied powers, supported the constitutionality of the National Bank and denied the right of a state to interfere with the execution of national laws. In 1821 in the case of Cohens vrs. The State of Virginia, he decided that the fact that a state is a party brings the case under the jurisdiction of the Supreme Court. It was in this case that he developed especially the idea that the United States Supreme Court is the final arbiter in all questions between two states or between any state and the national government. Such were the great principles he developed. They have become the foundation of our present conception of the nation and together with his other less public rulings have made him probably the equal of any constitutional justice the world has ever known. THE SUPREME COURT SUPERIOR TO STATE THE UNITED STATES VS. JUDGE PETERS [5 Cranch's Reports, 115-141.] The United States district court for the district of Pennsylvania gave, in a certain admiralty case, sentence in favor of Gideon Olmstead and others against Elizabeth Serjeant and Esther Waters. A copy of this sentence was served on said Serjeant and Waters, which they refused to obey. Judge Peters of the district court was then applied to for a process which should enforce obedience, but this he would not grant. At the February term of 1808 the supreme court was applied to for a rule to the said judge, requiring him to show cause why a mandamus should not issue commanding him to grant the desired process. He made a return stating that the legislature of Pennsylvania had passed an act to protect Elizabeth Serjeant and Esther Waters against the process of any United States court issued under the suits in question, that he was unwilling to embroil the United States with Pennsylvania, and refused to grant the process in order to bring the case before the supreme court. On the 20th of February Chief Justice Marshall delivered the VIII. 11 opinion of the court; and as he gives the leading facts in this very complicated case, we need only say further that Serjeant and Waters were the executrixes of Rittenhouse, referred to. The opinion was in these words: With great attention, and with serious concern, the court has considered the return made by the judge for the district of Pennsylvania to the mandamus directing him to execute the sentence pronounced by him in the case of Gideon Olmstead and others vs. Rittenhouse's Executrixes, or to show cause for not so doing. The cause shown is an act of the legislature of Pennsylvania, passed subsequent to the rendition of this sentence. This act authorizes and requires the governor to demand, for the use of the state of Pennsylvania, the money which had been decreed to Gideon Olmstead and others, and which was in the hands of the executrixes of David Rittenhouse; and in default of payment, to direct the attorney general to institute a suit for the recovery thereof. This act further authorizes and requires the governor to use any further means he may think necessary for the protection of what it denominates "the just rights of the state," and also to protect the persons and properties of the said executrixes of David Rittenhouse, deceased, against any process whatever issued out of any federal court. in consequence of their obedience to the requisition of the said act. If the legislatures of the several states may at will annul the judgments of the courts of the United States, and destroy the right acquired under those judgments, the Constitution itself becomes a solemn mockery, and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals. So fatal a result must be deprecated by all; and the people of Pennsylvania, not less than the citizens of every other state, must feel a deep interest in resisting principles so destructive of the Union, and in averting consequences so fatal to themselves. The act in question does not, in terms, assert the universal right of the state to interpose in every case whatever; but assigns, as a motive for its interposition in this particular case, that the sentence, the execution of which it prohibits, was rendered in a cause over which the federal courts have no jurisdiction. If the ultimate right to determine the jurisdiction of the courts of the Union is placed by the Constitution in the several state legislatures, then this act concludes the subject; but if that power necessarily resides in the supreme judicial tribunal of the nation, then the jurisdic |
