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thought, await on each and all that come within the borders of our country. But, without further comment, we will quote from the case Marbery vs. Madison. In this case, Mr. Marbery asked for a mandamus to be issued against James Madison, for not giving him his commission when he had received an appointment from John Adams. The court decided, that, after he had received the appointment, and it was signed by the president, and the seal of the state was attached, he had a right to the office, and the court fortified the position they assumed on these grounds: among others they say,
“This brings us to the second inquiry, which is, - if he has a right, and that right has been violated, do the laws of his country afford him a remedy ? “The very essence of civil liberty certainly consists in the right of every individual to claim protection of the laws whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britian, the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court. “In the third volume of his commentaries, page 23, Blackstone states two cases by which a remedy is afforded by mere operation of law. “ . In all other cases,” he says, “it is a general and indispensable rule, that, where there is a legal right, there is a legal remedy by suit, or action of law, whenever that right is invaded.” “And afterwards, page 109 of the same volume, he says, – ‘I am next to consider such injuries as are cognizable by the courts of the common law. And herein
w I shall, for the present, only remark that all possible injuries whatsoever, that did not fall within the exclusive
cognizance of either the ecclesiastical, military, or maritime tribunals are, for that very reason, within the cognizance of the common law courts of justice ; for it is a settled and invariable principle in the laws of England, that every right, when withheld, must have a remedy, and every injury its proper redress.”
“The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for a vested legal right.
“If this obloquy is to be cast upon the jurisprudence of our country, it must arise from the peculiar character of the case.”"
Further on, in the same case, he says, –
“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, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.””
It is certainly hoped Mr. Marshall, in the expressions “vested legal rights,” and “the peculiar character of the case,” meant not any peculiar character in the American Constitution, and that these expressions were used to avoid making observations that would, in their consequences, carry him too far in the cause of individual liberty and rights; and, as these latter were specially confided to the keeping of the United States, when a State could not or would not maintain them, we must presume he meant in the expressions “vested legal rights,” &c. all the rights of an individual, unless those rights had been forfeited by some peculiar criminal act on the part of the individual. The case of Sturgis vs. Crowningshield. — This was a case on the obligation of contracts. An argument was adduced, when the States had, from their earliest legislation, discharged contracts, and, consequently, as this was a case that would be beneficial in the operation of a discharge, it would not come within the meaning of the Constitution. The court answer this objection by saying, — “That, although the spirit of an instrument, especially of a constitution, is to be respected, not less than its letter, yet the spirit is to be collected chiefly from its words. It would be dangerous in the extreme to infer, from extrinsic circumstances, that a case, for which the words of an instrument expressly provide, should be exempted from its operation. When words conflict with each other, when the different clauses of an instrument bear upon each other, and would be inconsistent unless the natural and common import of words be varied, construction becomes necessary, and a departure from the obvious meaning of words is justifiable. But if in any case the plain meaning of a provision, not contradicted by any other provision in the same instrument, is to be disregarded, because the framers of that instrument did not mean what they say, it must be one in which the absurdity and injustice of applying the provisions to the case would be so monstrous, that all mankind would, without hesitation, unite in rejecting the application.” "
| Marshall on the Constitution, p. 24. * Idem, p. 161.
In the Constitution of the United States, what is the spirit to be gathered from the words, and what construction should be put upon them 2 Are the amendments made to this instrument in conflict with other parts of it do they contradict any other of its provisions, or are they not rather in harmony 2 or were they not meant to elucidate or to fortify the principles of liberty, which were thought not to be sufficiently clear or prominent in the instrument proposed ? or did the framers of these amendments not intend what they said Would the applying the provisions here made to all the people of the land be so “monstrous,” or “absurd ” and “unjust,” “that all mankind would, without hesitation, unite in rejecting the application; ” or is the not applying them, as was the known intention of those by whose influence they were introduced in the form they were, the crying sin of the land, producing the monstrosities, absurdities, and injustice that are now manifested, and that have exhibited themselves in almost all the legislative halls of our land 2 For ourselves, we cannot but suppose our practices, having been so opposed to the general principles of that instrument, have been the cause of nearly all our internal dissensions, and that our departure from these general principles is the cause why we may be pointed at by the finger of scorn for our inconsistency. We know of no other reason why it could be done. The case of McCulloch vs. the State of Maryland. — This case was one for testing the right of the State in taxing a branch of the United States Bank by the State of Maryland, and in which the constitutionality of establishing such an institution at all was called in question ; and for our purpose we quote, “The first question made in the cause is, has congress power to incorporate a bank 2 “It has been truly said this can scarcely be considered an open question, entirely unprejudiced by former proceedings of the nation respecting it The principle now contested was introduced at a very early period of our history, has been recognized by many successive legislatures, and has been acted upon, by the judicial department, in cases of peculiar delicacy, as a law of undoubted obligation.” “The power now contested was exercised by the first congress elected under the present Constitution. The bill for incorporation of the Bank of the United States did not steal upon an unsuspecting legislature, and pass unobserved. Its principles were completely understood, and was opposed with equal zeal and ability. After being resisted first in the fair and open field of debate, and, afterwards in the executive cabinet, with as much persevering talent as any measure has ever experienced, and being supported by arguments which convinced minds as pure and as intelligent as this country can boast, it became a law. The original act was permitted to expire;
* Marshall on the Constitution, p. 155.