They
assumed a supreme function which can only be compared to the Dispensing
Power claimed by the Stuarts, or to the authority which, according to
the Council of Constance, inheres in the Church, to "grant indulgences
for reasonable causes." I suppose nothing in modern judicial history has
ever resembled this assumption; and yet, when we examine it, we find it
to be not only the logical, but the inevitable, effect of those
mechanical causes which constrain mankind to move along the lines of
least resistance.
Marshall, in a series of decisions, laid down a general principle which
had been proved to be sound when applied by ordinary courts, dealing
with ordinary social forces, and operating under the corrective power of
either a legislature or a praetor, but which had a different aspect
under the American constitutional system. He held that the fundamental
law, embodied in the Constitution, commanded that all contracts should
be sacred. Therefore he, as a judge, had but two questions to resolve:
First, whether, in the case before him, a contract had been proved to
exist. Second, admitting that a contract had been proved, whether it had
also been shown to have been impaired.
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