impossible to think. It is hardly within the power of our comprehension to believe for example, that the framers of the Constitution had any idea of the application of this clause of the Constitution by Congress, as has been demonstrated in the passage of the Sherman law in 1890, and the operation of it in the various recent decisions. It is hardly possible to suppose that the framers of the Constitution could have contemplated the ruling of the Supreme Court of the United States in a recent case where it held that the transportation of goods from one point in Texas to another point in Texas, there to rest until export, was within the protection of the Constitution of the United States, of the laws of the United States regulating commerce, from the simple fact that the owners of the goods had, from the very time of shipment, had in mind the ultimate exporting of the goods to a foreign country.

It is hardly probable to think that the framers of the Constitution had in mind a proposition which would enable the federal government to dismember a business organization in the State of Tennessee, for example, upon the proposition that it is in restraint of, and an interference with, trade between the States. It is not possible to say either as to whether the framers of the Constitution had in mind in using the word "Regulate," the power to prohibit commerce between States, in certain given articles, as is now done, for example with reference to the handling of whiskey from one State to another.

But going back to the Magna Charta, as we might call it, of the power of the government in this particular, let us again refer to the rule laid down by the Chief Justice in the cause of Gibbons v. Ogden.

The case of Gibbons v. Ogden went to the Supreme Court of the United States from the Supreme Court of New York, called then the Court for the trial of impeachments and correction of errors. The State of New York had granted to Livingston and Fulton, the exclusive right to navigation of all the waters within the jurisdiction of the State, with boats moved by fire or steam, for a term of years. This right had finally become vested in one Ogden. Gibbons, on the other hand, possessed two steamboats, running them between New York and Elizabethtown, N. J., he having procured a license from the government. Ogden

filed a bill to enjoin Gibbons from going into the waters of New York, upon the ground that he had the exclusive right to navigate in such waters. The Courts of New York sustained the right and made the injunction perpetual. The case was taken to the Supreme Court of the United States on writ of error. The first question of interest in this case was the announcement of the Chief Justice as to the rule of construction. He said in replying to the proposition "That the powers should be strictly construed"; "If they contend for the narrow construction which, in support of some theory not to be found in the Constitution, would deny to the government those powers which the word of the grant, as usually understood, impart, and which are consistent with the general views an objects of the instrument; for that narrow construction which would cripple the government, and render it unequal to the objects for which it is declared to be submitted, and to which the powers given, as fairly understood, render it competent; then we cannot perceive the propriety of this strict construction, nor adopt it as the rule by which the Constitution is to be expounded. As men whose intentions require no concealment, generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed the Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said. If, from the imperfection of human language, there should be serious doubts respecting the extent of any given power, it is a well settled rule that the objects for which it was given, especially when those objects are expressed in the instrument itself, should have great influence in the construction. We know of no reason for excluding this rule from the present case." This and other similar language in the opinion is the announcement on the part of the Court, speaking through the Chief Justice, of the soundness of the proposition that the Constitution should be construed in a way to give to the Government such power as is necessary to effectuate the purposes of its organization. It may be said, without quoting from the opinion, that a rule of strict construction may be applied to the Constitution in determining what objects are committed to its power and control, yet it having once been

determined that a certain phase of activity is committed to the control of the federal government, the Constitution would be liberally construed to effectuate its control in that particular sphere. That this ruling did not meet with universal acquiescence is manifest by the subsequent history of the country for many decades. That the result was the war, is common history, and one of the effects of the war was the strengthening of this interpretation, is beyond controversy.

No more important announcement was made by the Court that the announcement of this rule of interpretation, for it has been the basis of the power of government under every clause granting the federal government power. The last rule made in this case was as to the power to regulate commerce, meaning the power to regulate the buying and selling of goods and commodities. The court in this regard said: "Commerce, undoubtedly, is traffic, but it is something more—it is intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse. The mind can scarcely conceive a system for regulating commerce between nations, which shall exclude all laws concerning navigation, which shall be silent on the admission of the vessels of one nation into the ports of the other, and be confined to prescribing rules for the conduct of individuals in the actual employment of buying and selling or of barter. The Court laid down a general proposition as follows: "This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. These are expressed in plain terms, and do not affect the questions which arise in this case, or which have been discussed at the bar. If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations and among the several States, is vested in Congress as absolutely as it would be in a single government, having in its Constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States."

The Court further said: "It has been contended by the counsel for the appellant, that, as the word to 'regulate' implies

in its nature, full power over the thing to be regulated, it excludes necessarily the action of all others that would perform the same operation on the same thing."

It may be said then in brief summary of the case of Gibbons v. Ogden, that it first established a rule of interpretation, liberal it may be said; second, that it undertook to define commerce as being broad enough to cover everything relative to commercial transactions; and third, that Congress not only had the right to assert such prerogatives, but had the right to exclude activities between the States. This case has been cited and quoted in each case before the Supreme Court, involving the power of Congress, and particularly the power of Congress over interstate commerce. It has not only formed the basis of decisions under the Sherman Act, even down to the Tobacco case and Standard Oil case, but it has been the basis for Congress to prescribe safety appliances on railway trains, regulating the liability of the employer to the employe, for injuries sustained, and the distribution of the proceeds recovered. It is impossible to fully appreciate the effect that this decision has had upon establishing the power and influence of the Federal Government. As learned a lawyer as Chancellor Kent had taken a different view of the proposition in the courts of New York. It would have been an easy matter for the Chief Justice to have followed the opinion of the learned Kent and to have there adopted the propositions that would have sustained the courts of New York had he given such an inclination to interpretate. Yet he made the announcement that commerce consisted not only of buying and selling, but all that is incident to com

merce.

When the case of Gibbons v. Ogden was decided, there was ample opportunity for the Court to have taken either view as to the powers of the Federal Government to regulate interstate commerce. It would have been an easy matter for the Chief Justice to have accepted the conclusions of the learned Cancellor Kent, whose ability and character were safe enough guarantees to justify the adoption of his views. But he didn't. His vision was broader and more comprehensive, and he went the way of strengthening the power of the Federal Government.

What would have been the effect had he followed the opinion of Kent, would be difficult for us to portray. Certain it is that in the years that came after, there would have been an unworkable rule.

In his interpretation of the Constitution, and particularly of this case, Marshall seemed to have an insight into the future beyond the insight of mortal man. He manifested not only capacity as a judge, but the mental grasp of a statesman. He had even more than the imagination of a poet-he had the vision of a prophet. The declaration of the rule seems as if it might have been by inspiration. In his mind's eye, he seemed to have beheld the marvelous commercial development of the century that was to follow, and to have arisen to the exigencies of the picture his eyes beheld. He seems, from some elevated place, to have a perfect vision of the land of Promise-a land which he clearly saw, and almost divinely understood, but into which he was never to be permitted to place his foot.

The length of time that I have devoted to the discussion of the cases of Marbury v. Madison, the trial of Burr, and the case of Gibson v. Ogden, forbids any extended discussion of the other cases.

There remains, however, another case, the opinion in which was delivered by Chief Justice Marshall, that must always be discussed in discussing his effect upon the jurisprudence, and you might say, the statesmanship, of the county, and that is the case commonly known as the Dartmouth College case.

It would never be of any particular interest to this Association or to any persons generally to restate to any degree the history and nature of the litigation. Insofar as its effect upon the jurisprudence of the country is concerned, and the limitations of the power of the State are concerned, it is only necessary to say that it invoked the interpretation of the clause the Constitution of the United States that placed prohibition upon the States to the effect that they should not pass any law impairing the obligation of contract.

It is well known that under the original charter of Dartmouth College, the trustees of that institution were invested with the express authority of self perpetuation. It is also well known that the State within which the institution was located, passed