Cb42 179

YMJBUNIVERSIIY LIBRARY

John oMarsI^all "Day
in ^hode Island

zAddress by
LeBaron Bradford Colt

/>

^<_. <1^'C

u

JOHN MARSHALL DAY

CELEBRATION

BY THE

RHODE ISLAND BAR ASSOCIATION
« V «
AND
BROWN UNIVERSITY
February 4, 1901

ADDRESS BY
Hon. Le baron BRADFORD COLT
INTRODUCTORY ADDRESS BY
HON. FRANCIS COLWELL
PRESIDENT OF THE ASSOCIATION

John Marshall Day.

The celebration by the Rhode Island Bar Associ
ation, on the fourth day of February, 1901, of the
one hundredth anniversary of the installation of
John Marshall, as Chief Justice of the Supreme
Court of the United States, was one of the most
notable events in the history of the Association.
Brown University joined with the Association in
the celebration, which took place at three o'clock in
the afternoon, in Sayles Memorial Hall, tendered by
the University for the purpose.
The Lieutenant Governor, the Mayor of the
City of Providence, Ex-Chief Justice Durfee, and the
Judges of the United States and State Courts were
present, and also joined in the celebration.
The exercises were opened by prayer by the Presi
dent of Brown University, William H. P. Faunce,
after which the President of the Rhode Island Bar

4
Association, Hon. Francis Colwell, made the open
ing address, in which he stated the reasons for, and
the objects of, the celebration, and at the close of his
address introduced Hon. LeBaron B. Colt, Judge of
the United States Circuit Court, who delivered an
elaborate and scholarly address upon the life, char
acter, and public service of John Marshall.

INTRODUCTORY ADDRESS BY
Hon. Francis Colwell.

At the invitation of the Rhode Island Bar Asso
ciation, this notable audience has assembled here
to-day to unite in commemoration of the one hun
dredth anniversary of the day when the great guar
dian genius of our Constitution, John Marshall,
commenced his illustrious career of nearly thirty-five
years as Chief Justice of the Supreme Court of the
United States.
Said our great Judge Story, upon the death of
Judge Marshall in 1835: "The Constitution of the
United States owes more to John Marshall than to
any other single mind, for its true interpretation and
vindication." To-day, after the lapse of more than
sixty years, that opinion is concurred in all over the
civilized world.
For an instant, consider what contest in the
history of any people can be compared with that
waged over the adoption of our Constitution in the
days of the original thirteen States; what one
fraught with such portentous results?

Adopt a Constitution, and a nation was born to
us. Reject the Constitution, we were "dissev
ered, discordant and belligerent States," an easy
prey for every foreign foe, and open to foreign con
quest and subjugation. It is scarcely possible for
us now to measure or comprehend the stupendous
import of that struggle. But while we shall ever
glory in the lives of those who were inspired to fight
and win for us in that great contest for a Constitu
tion, let us not forget those who not only fought
for its adoption, but defended and vindicated it to
all the world.
The great and unique glory of him whom we meet
to honor to-day was that he not only battled for the
adoption of our Constitution against formidable
opposition, but after its adoption, as with a mind
inspired, out of his own brain, with no precedent to
guide, so interpreted and supported that instrument
with sound invincible opinions as to establish it
beyond all molestation.
And let us bear in mind that the establishment of
that Constitution, begot in our people a national
spirit and pride of nationality, which has survived
all shocks internal and external, and to-day so per
vades our whole land as to make us one of the
impregnable powers of the earth. '
Let us here and now give thanks that John Mar
shall of Virginia is the John Marshall of a united

people, joining to-day under the Constitution he loved
and lived for, in grateful plaudits to his memory.
I shall detain you but a moment to explain how
this celebration came about.
As early as August, 1899, the American Bar Asso
ciation appointed a committee of fifty, one member
from each State and Territory, and one from the
District of Columbia, with reference to the celebra
tion of John Marshall Day. Through the efforts of
the committee, a general interest was quickly awak
ened all over the country. The President of the
United States, officers and departments of our gov
ernment, joined heartily in the proposition to com
memorate the day. The President of the United
States, in his message of December, 1900, com
mended the observance of the day, to the whole
country, so that in a manner befitting the dignity of
a great nation, at her capital in Washington, and
generally throughout our country, this day is being
commemorated as John Marshall Day. This surely
must be regarded as a most auspicious indication of
our appreciation of the efforts and character of him
who may well be counted as one of the master build
ers in the construction of a government which offers
greater possibilities of glory and blessing, than any
other ever promulgated by man.
May it not also be regarded as a token of our
recognition of a Divine hand working with us that

raised up such men for the sublime undertaking of
our forefathers.
The Rhode Island Bar Association early voted to
commemorate the day in pursuance of the spirit of
the American Bar resolution.
•I desire in behalf of the Rhode Island Bar Associ
ation to express the sincere obligation we feel under
to our grand altna mater for its proposition to unite
with us in the observance of the day ; to her we are
indebted for the use of this spacious and beautiful
Memorial Hall, affording opportunity to all to par
ticipate in this celebration.
In furtherance of its purpose to celebrate this day
in as appropriate a manner as possible, the Rhode
Island Bar Association extended an invitation to
one of the Judges of the United States Court, whose
name has long been familiar to us, to speak to us of
John Marshall on this occasion. That invitation
was kindly accepted, and I now have the honor and
pleasure of presenting the Hon. LeBaron Bradford
Colt, United States Circuit Judge.

ADDRESS BY
Hon. Le Baron Bradford Colt.

Mr. President and Members of the
Rhode Isi<and Bar Association :
On the day of the first meeting of the Supreme
Court of the United States at the city of Washing
ton, one hundred years ago to-day, John Marshall
took his seat as Chief Justice. This day has been
appropriately called "John Marshall Day," and it is
a fitting time for the Bar Associations, the Courts,
and the representatives of our seats of learning,
assembled together, to recall the commanding and
unique position the great Chief Justice occupies in
our constitutional history, and to remind the people
of the inestimable blessings which have flowed from
his judicial labors. It is also fitting for the Presi
dent of the great Federal Commonwealth which
bears the indelible impress of his genius, to request
the Congress to observe with appropriate exercises
the centennial anniversary of the day he became the
head of the Supreme Court and began his immortal
work of upbuilding the Constitution.

It was recently said with much truth: "John Mar
shall yet remains the great unlaureled hero of early
American history." His work is not generally known
nor fully appreciated. Such is the common fate
of the highest judicial achievements. From their
nature they do not attract popular attention ; and
yet a simple entry on the docket of the Supreme
Court of the United States may affect the destiny
ofthe nation more than Webster's reply to Hayne,
or Dewey's victory in Manila Bay. We live under
a government of law. Our supreme law is embodied
in a written Constitution, and the judgments of the
highest court on constitutional questions may involve
the very existence of the Federal Union.
The life of Marshall has been called the constitu
tional history of the country from 1801 to 1835. He
set and fixed in its proper place the keystone of the
beautiful and symmetrical arch of States which now
spans a continent. He carried the Constitution
through its experimental and formative stages, de
fined its enumerated powers, and clothed them with
an authority and living force commensurate with
their purpose. He "gradually unveiled" the Con
stitution, in the words of Bryce, "till it stood revealed
in the harmonious perfection of the form which its
framers had designed."
We are to-day what the Constitution as ex
pounded by John Marshall has made us. The

II

character and supremacy of the national Govern
ment we owe largely to him. Marshall was more
than the interpreter of the Constitution, He was
the creator of constitutional law as applied to a writ
ten Constitution. His luminous judgments deter
mined whether the Constitution should stand or fall.
They proved the Constitution created, in the words
of Chief Justice Chase, "an indestructible Union,
composed of indestructible States." They demon
strated that a Federal Union strong enough to per
petuate itself, and supreme within its delegated
powers, was not a menace to the independence of
the States nor to individual liberty, but was the guar
dian and shield of both. They defined the relative
rights of the States and the Federal Government
under the Constitution, involving often the moment
ous question of sovereignty — the fatal rock on which
Federal Unions are broken into fragments. They
settled beyond challenge or debate the question of
sovereignty as a judicial question arising under the
Constitution. The only right to dissolve the Union
which remained with the States after these adjudi
cations was the right of revolution. They estab
lished the novel and striking feature of our political
system that the construction and interpretation of
the supreme law rests with the judiciary department.
They vindicated the supremacy of the Constitution
over all citizens and all States. They proved beyond

question that the Constitution created a government,
a composite republic, a nation ; not a league, a com
pact, or a mere confederacy. They undoubtedly pre
served the Union in 1861, when the attempt was made
to settle constitutional questions by force of arms.
Had not the judgments of the Supreme Court, during
the thirty-four years Marshall was Chief Justice,
established the supremacy of the Constitution as
opposed to the doctrine of State sovereignty, the
Civil War would have been a war of conquest,
and the Federal tie forever severed. "The South
ern Confederacy, as the embodiment of political
ideas," says Judge Phillips, "surrendered not to
Grant, not to Sherman, not to Thomas or to Sheri
dan, but to the statesman, the jurist and sage, — John
Marshall." The decisions of Marshall have instilled in us
the worship of the Constitution. They have built
up national spirit. They have not led to the con
solidation of the States, but to the consolidation of
national sentiment. They are the foundation of
the patriotism, affection, and pride which fills all our
hearts as we look upon our country at the opening
of a new century, and contemplate with emotion the
proud position she occupies among the nations of
the earth. They have elevated our form of govern
ment in the eyes of the world, and disproved the
judgment of mankind that a Federal Commonwealth

13
is weak and unstable. They have shown that, in
the hands of an intelligent people, such a political
system may exist in a perfect form for centuries,
that it may extend over a vast area, peopled by dif
ferent races, and may realize under such conditions
its high ideal of combining the energy, patriotism,
and freedom of a small republic, with the unity,
security, and power of a great empire. Speaking of
Marshall's decisions in an address before the Amer
ican Bar Association, Edward J. Phelps declared :
" They passed by universal consent, and without any
further criticism, into the fundamental law of the
land, axioms of the law, no more to be disputed.
They have remained unchanged, unquestioned, un
challenged. They will stand as long as the Consti
tution stands. And if that should perish, they will
remain, to display to the world the principles upon
which it rose, and by the disregard of which it fell."
Our national government was moulded and shaped
by the master hand of John Marshall. To compre
hend the character and greatness of his work, it is
important to understand the nature and tendency of
the form of government which was organized under
the Constitution. Of all political systems a Federal
Commonwealth is the most complex, delicate, and
elaborate. It can only exist among a highly civil
ized people, who have been educated for generations
in the art of civil government. It is an ideal gov-

14
ernment. It is founded upon a compromise between
opposite political systems, and it seeks to combine
the advantages of each ; the freedom of a small state
with the unity and security of a consolidated empire.
It is an artificial system ; and, inherently, it is
perhaps the weakest known form of government.
Based on a division of sovereignty, it is a sover
eign within sovereigns, a government within gov
ernments, a single state in some things and many
states in other things, a unit in its external relations
and on matters which affect the general welfare,
and composed of many units in its internal govern
ment. States and cities have repeatedly striven
to realize the Federal idea, but, with three or four
exceptions, they have been successful only in an
imperfect degree, and for a comparatively short
period of time. The most illustrious exception is
the United States. History teaches what we should
expect from the nature and artificial character of its
organization, — that the ever impending danger to this
political system is not consolidation, but the weak
ness of the Federal bond. The forces which tend to
direct the States towards the central union are less
strong than the forces which tend to drive them away
from it, because the ties of citizenship, local interests,
and a common history bind the people to the State
and its autonomy. Federal unions have always per
ished from the weakness of the Federal tie, or from

15
conquest. They have never grown into a consoli
dated state through the destruction of the separate
members of the Union. It was the weakness of the
Federal tie which constantly threatened the disrup
tion of the Achaian League. And the same is true
of the United Netherlands. The Swiss Confeder
ation has never suffered from the strengfth of the
central power, but rather from its inborn weakness.
The history of our own Federal Union is familiar.
We know that for three-quarters of a century after
the adoption of the Constitution the grave peril,
ever present, sometimes threatening, and once only
averted by civil war, was disunion, not consolidation.
Historians have always recognized the inherent
weakness of a Federal form of government. It was
not surprising, therefore, that in 1863 the eminent
English historian and scholar. Freeman, after ten
years of research and reflection on the subject, should
have begun the publication of a work entitled, "His
tory of Federal Government from the Foundation
of the Achaian League to the Disruption of the
United States," in which he prophesied the exchange
of ambassadors between the United States and
the Confederate States before the year 1869.
That Freeman never completed his work, that
his prophecy proved false, was owing, in a large
measure, to the constitutional decisions of Chief
Justice Marshall.

i6
Marshall's early conviction of the supreme danger
which confronted the Federal Union is stated by
Judge Story: "In his view the Republic is not des
tined to perish, if it shall perish, by the overwhelm
ing power of the National Government, but by the
resisting and counteracting power of the State sov
ereignties." Marshall met and overcame the danger,
except when revolution is attempted, by incorpor
ating into the fundamental law the great fact that
our Federal Constitution establishes a perpetual
government complete within itself.
Marshall's work was instrumental in building up a
national spirit. Constitutions grow. They do not
march alone. National spirit is the product of
growth. It is not a sudden creation. A national
constitution, to be effective and fulfill the purpose
for which it is designed, must reflect the spirit and
temper of the people. The life of such a constitu
tion is dependent on the growth of a strong national
sentiment. Our Federal Constitution at the time
of its adoption was a creation. It did not represent
a growth. It was an experiment, a hope, a dream.
There was no such reverence for the Constitution as
now exists. The people were full of apprehension
and dire forebodings as to the result. They saw the
spectre of a "kingly crown," the destruction of the
States, the subversion of their liberties. They had
not grown up to the national idea. Their spirit and

17
temper, their laws and governments, were colonial.
Their interests and affections, their habits, prejudices,
and past history, bound them to the States. The
Colony or State was their mother, the centre of their
political life, and to her they owed allegiance first of
all. They were citizens of Rhode Island, Massachu
setts, Virginia, — not American citizens.
Twelve years before Marshall took his seat, the
Constitution, in the words of John Quincy Adams,
had been "extorted from the grinding necessity of a
reluctant people." The popular vote was undoubt
edly against its adoption. The spirit of the times
is well illustrated by Patrick Henry, who exclaimed
in the Virginia Convention of i 788, when speaking
of the framers of the Constitution: "Who author
ized them to speak the language of 'We, the people'
instead of 'We, the States?' States are the charac
teristics and the soul of a confederation. If the
States be not the agents of this compact, it must be
one great, consolidated, national government, of the
people of all the States." It is seen in the adoption
of the Constitution by the narrow majority of three
in the New York Convention, ten in the Virginia
Convention, and nineteen in the Massachusetts Con
vention, after the most strenuous labors of its advo
cates, and under the pressure brought about by the
annihilation of public credit, the threatened paralysis
of commerce, and the impending dissolution of the

i8
Confederation. It is shown in bitterly denouncing
as unconstitutional abuses of power Washington's
proclamation of neutrality in 1 793 on the outbreak
of the war between England and the French Repub
lic, and the ratification of Jay's treaty with England
in 1795. It is exhibited in the statute of the State
of Georgia inflicting the penalty of death on any
one who should presume to enforce the process of
the Supreme Court in the case of Chishol-m v. State
of Georgia, where the State was held liable for the
payment of a private claim ; and in the case of the
United States v. Peters, where the Governor of
Pennsylvania ordered out a brigade of militia to
obstruct the service of a Federal writ.
"Not a year went by," says McMaster, "but one
or more States bade defiance to the Federal govern
ment." The Virginia and Kentucky resolutions of
1798 and 1799 also bear witness to the want of
national sentiment ; so, in like manner, the proposed
amendment to the Constitution submitted by John
Randolph : " The Judges of the Supreme Court
and all other Courts of the United States shall be
removed by the President on the joint address of
both houses of Congress." The same state of
public feeling is indicated in the popular revulsion
against the Federalists which soon swept that
party out of power, and later out of existence, and
installed the opposition, then known as the Repub-

19
lican party, thirty days after Marshall became Chief
Justice. For thirty-four years Marshall's decisions vindi
cated the necessity and value of the Constitution.
They incorporated the national idea into the funda
mental law, and they have been a most potent factor
in the development and promotion of the intense
national spirit which now pervades the country.
Marshall's soul was filled with the spirit of the
Constitution, — the soul of the patriot and statesman
as well as jurist. He loved the Constitution. It
was his life. His judgment and affections bound
him to it. His great intellectual powers were de
voted to it. He studied and mastered it. It was
his constant practice to read and re-read it. He
knew its scope and purpose, its strength and weak
ness, its powers and limitations, its checks and
balances. He was with it at its creation. He had
stood by its cradle. He had followed its history.
He realized the struggles and sufferings which pre
ceded its birth, and the ruin which was involved in
its fall. As he wrote those masterpieces of judicial
reasoning there seems ever present to his mind the
beautiful and stately preamble :
"We, the people of the United States, in order
to form a more perfect union, establish justice, insure
domestic tranquillity, provide for the common de
fence, promote the general welfare, and secure the

20

blessings of liberty to ourselves and our posterity,
do ordain and establish this Constitution for the
United States of America."
At the same time, his thoughts must have carried
him back to the struggles of the Revolutionary War
in which he participated, — to Brandywine, German-
town, and the blood-tracked snows of Valley Forge;
to his efforts in the Virginia legislature to secure a
more efficient Federal government ; to his exertions
in the convention of his own State in behalf of the
adoption of the Constitution ; to his triumphant
defence of Washington's administration in the Vir
ginia legislature ; to the insults heaped upon the
weakness of his country by Tallyrand during his
mission to France ; to his supreme effort at a critical
time in sustaining the rightful authority of the exec
utive in the Congress of 1 799, — these and other great
events in which he took part must have crowded
upon his memory, animated his whole being, and
deepened his conviction that the Constitution should
be interpreted in the spirit of the preamble, and so
secure to the people the blessings of liberty and a
perpetual Union.
The Constitution was the outcome of mutual con
cessions and many compromises. It was offered to
the people of the several States for ratification as
the best result attainable. It was regarded by the
advocates of a strong Union as too weak, and by

21

those of a weak Union as too strong. "Nobody
liked all its provisions, and everybody feared some of
them." It was adopted by its framers in a spirit of
harmony and patriotism, and lest their efforts might
prove fruitless. The general sentiment of the Con
vention finds expression in the words of the vener
able Franklin : "I agree to this Constitution with all
its faults — if they are such — because I think a general
government necessary for us. I consent to this Con
stitution because I expect no better, and because I
am not sure it is not the best. The opinions I have
had of its errors I sacrifice to the public good."
The wisdom, ripe experience, lofty patriotism, and
constructive powers of that remarkable body of men
who framed the Constitution, and the greatness of
their work, are universally recognized ; but it is
equally true that the instrument as it left their
hands was not a finished and complete work. The
Constitution is not merely the work of the framers,
says Mr. Bryce, "but the work of the judges, and
most of all of one man, the great Chief Justice
Marshall" It was designed as the framework of a
comparatively novel form of government, and not as
a complete code of laws. It was a skeleton, and
the heart and brain and nerves to make it a living
organism were in a large degree supplied by Mar
shall's construction and interpretation. The powers
enumerated are brief. They are broad in scope and

expressed in general terms. Much was necessarily
left to implication, and much was designedly omit
ted. This resulted from the jealousy of the States
and the fear of consolidation or despotism. The
framers realized that if all the powers essential to
accomplish the great purposes of the instrument had
been fully set out it probably never would have been
ratified. Had the Constitution contained a pro
vision that the Supreme Court should be the final
judge of the fundamental law and of its own juris
diction, with the power to nullify an Act of Congress
or a State statute, its adoption would have been ex
tremely doubtful. It was admitted at the time that
its success or failure depended upon its construction.
This was the great work which fell to Marshall, and
the saying is true : " He made of us a nation by
construction." The fame of Marshall rests largely upon his judi
cial judgments adjusting the relative powers of the
Federal government and the States, under the Con-
stitution. The settlement of these rights has always
been the battle-ground of Federal unions and a
menace to their perpetuity. It was this irrepressible
conflict which nearly wrecked the Confederation,
which divided the convention that framed the Con
stitution, and constantly imperilled that instrument
after its adoption. The people under a Federal
system are always divided into two great political

23
parties ; those who favor and those who oppose a
strong central authority ; those who believe such
authority is indispensable to the maintenance of a
permanent Union and free institutions, and those
who believe it dangerous to the rights of the States
and to individual liberty. Marshall refers to this
when he wrote: " The country was divided into two
great political parties, the one of which contemplated
America as a nation, and labored incessantly to invest
the Federal head with powers competent to the pres
ervation of the Union ; the other attached itself to
the State governments, viewed all the powers of
Congress with jealousy, and assented reluctantly to
measures which would enable the head to act in any
respect independently of the members." It is the
verdict of history that the danger to the rights and
independence of the States and the freedom of the
people from the encroachments of the central author
ity, does not exist under a Federal system entered
into by sovereign States ; and Marshall showed con
summate wisdom and statesmanship in so adjusting by
judicial construction the relative powers ofthe Federal
government and the States as to secure the supremacy
of the Constitution and a permanent Union.
The new government had been organized only a
short time when the momentous questions of consti
tutional construction endangered its stability and
existence.

24
Did the Constitution establish a sovereign nation
or a mere compact between sovereign States ? Is
the Federal government the final judge of the extent
of the powers granted under the Constitution } Is
the Supreme Court the sole judge of its own juris
diction ; and is it authorized to declare what the
supreme law is } Did the Constitution establish an
efificient and permanent government, or is the Consti
tution, in the words of Marshall, only "a solemn
mockery ;" " a magnificent structure, indeed, to look
at, but totally unfit for use?" Is it, as Pinkney ex
claimed in McCulloch v. Maryland, "a competent
guardian of all that is dear to us as a nation," or is
it " a mere phantom of political power, a pageant of
mimic sovereignty ?"
The supremacy of the Constitution was attacked
in many ways. It was insisted that the Constitution
did not destroy, as an ultimate question, the sover
eignty of the States. The Supreme Court is not
the judge of its own jurisdiction, because that would
make it sovereign. It might be a convenient agency
in the government, but it is inconsistent with the
nature of sovereignty that a sovereign State should
submit to its judgments. This would make the
agent the master, and the Supreme Court would
become a menace to the States. There is no super
visory power in the Supreme Court to revise the
action of a sovereign State. It has no right to

25
nullify the legislative act of a State. It has no
power to declare void an Act of Congress because,
under the Constitution, the Government is organized
into co-ordinate departments of equal authority.
The powers expressly granted to Congress and the
prohibitions imposed on the States, under the Con
stitution, should receive a strict construction. The
power of Congress to make all necessary and proper
laws to carry into effect the powers granted by the
Constitution should not be expanded by implication
to cover other powers not specifically enumerated.
The answers to these and other contentions are
found in Marshall's decisions, and they are embraced
in certain fundamental conclusions: The Constitu
tion organizes a government complete within itself
It establishes a perpetual Union and is the guardian
of the rights of the people. For these great pur
poses, the powers conferred by that instrument are
sufificient. Under the Confederation, the central
authority exerted its action upon sovereign States
and they were not compelled to obey its mandates.
Under the Constitution, the Federal powers are
exerted directly upon the people, and they establish
a government, as distinguished from a mere confed
eration, with the usual powers of a government, and
organized into different departments. The Consti
tution does not limit the exercise of Federal power
to strictly Federal subjects, but goes beyond ; and.

26
by its prohibitions upon the States, it shields the
personal rights of the individual. Sovereignty in
the United States resides in the people. It does
not rest, as in England, with Parliament, or with the
sovereign ruler as in many European countries.
The people have surrendered a portion of their
sovereignty in the form of a written Constitution,
and the people only can revoke, alter or amend their
own supreme law. The national authority is con
ferred and measured by the Federal Constitution,
and "prescription cannot aid it, nor precedent
enlarge it." The Constitution is the supreme law
of the land, and as such is supreme over all
citizens, and State authority. The reserve powers
of the States cannot stay the operation of the
supreme law.
The Union being perpetual, it cannot be dissolved
by a part of the States, or by the people of those
States. The Federal government is the final judge
of the nature and extent of its powers under the
Constitution. The Supreme Court is the judge of
its own jurisdiction, and of what the law is. It may
nullify an Act of Congress or of a State, and it has
a supervisory power over the judgments of the high
est courts of a State where a constitutional question
is involved. There are also implied powers in the
Constitution, and if the end be legitimate, the means
appropriate to that end, when not prohibited, are

27
constitutional, if within the spirit and scope of that
instrument. Such were some of the principles of construction
applied to the Constitution in Marshall's decisions,
which, for lucid and cogent reasoning, power of
analysis, comprehensiveness and broad generaliza
tion, have never been surpassed. They cover the
great underlying problems of constitutional interpret
ation. They deal with the questions of the powers
granted to Congress ; the reserve powers of the
States, and the restrictions imposed upon the States
by the express and implied powers of Congress.
Marbury v. Madison was one of Marshall's earlier
and most famous decisions. It was there held that
the Constitution is the supreme law ; that an Act of
Congress repugnant thereto is void ; and that the
Supreme Court is the final judge of the funda
mental law.
"The question," said the Chief Justice, "whether
an act repugnant to the Constitution can become the
law of the land is a question deeply interesting to the
United States. * * * That the people have
an original right to establish, for their future govern
ment, 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. * *
This original and supreme will organizes the govern
ment, and assigns to different departments their

28
respective powers. * * * The Constitution is
either a superior, paramount law, unchangeable by
ordinary means, or it is on a level with ordinary
legislative acts, and like other acts, is alterable when
the legislative shall please to alter it. If the former
part of the alternative be true, then a legislative act
contrary to the Constitution is not law; if the latter
part be true, then written constitutions are absurd
attempts on the part of the people, to limit a power
in its own nature illimitable.
"Certainly all those who have framed written con
stitutions contemplate them as forming the funda
mental and paramount law of the nation, and, conse
quently, the theory of every such government must
be, that an act of the legislature repugnant to the
Constitution is void.
"This theory is essentially attached to a written
constitution, and is consequently to be considered
by this Court as one of the fundamental principles
of our society. * "' * It is emphatically the
province and duty of the judicial department to say
what the law is. * * * This is of the very
essence of judicial duty. * *'' * Those then,
who controvert the principle that the Constitution
is to be considered in court as a paramount law are
reduced to the necessity of maintaining that courts
must close their eyes on the Constitution, and see
only the law. This doctrine would subvert the very

29
foundation of all written constitutions. It would
declare that an act which, according to the principles
and theory of our government, is entirely void, is
yet, in practice, completely obligatory. It would
declare that, if the legislature shall do what is
expressly forbidden, such act, notwithstanding the
express prohibition, is in reality effectual. * * *
It is prescribing limits, and declaring that those
limits may be passed at pleasure.
" That it thus reduces to nothing what we have
deemed the greatest improvement on political insti
tutions, a written Constitution, would of itself be
sufficient, in America, where written constitutions
have been viewed with so much reverence, for reject
ing the construction."
It was by such unanswerable reasoning that Mar
shall reached his conclusions.
In United States v. Peters, where the question
arose of the power of a State by statute to disregard
a judgment of the Supreme Court, the Chief Justice
declared :
" If the legislatures of the several States may,
at will, annul the judgments of the courts of the
United States, and destroy the rights 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."

30
The power of the Supreme Court to review the
judgment of the highest court of a State, where a
Constitutional question is involved, was afifirmed in
Cohens v. Virginia. In his great opinion in that
case, the Chief Justice observed :
"The questions presented to the Court by the
first two points made at the bar are of great magni
tude, and may be truly said vitally to affect the
Union. They exclude the inquiry whether the
Constitution and laws of the United States have
been violated by the judgment which the plaintiffs
in error seek to review ; and maintain that, admit
ting such violation, it is not in the power of the
government to apply a corrective. They maintain
that the nation does not possess a department capa
ble of restraining peaceably, and by authority of law,
any attempts which may be made by a part, against
the legitimate powers of the whole ; and that the
Government is reduced to the alternative of submit
ting to such attempts, or of resisting them by force.
They maintain that the Constitution of the United
States has provided no tribunal for the final con
struction of itself or of the laws or treaties of the
nation ; but that this power may be exercised, in
the last resort, by the Courts of every State in the
Union. That the Constitution, laws, and treaties,
may receive as many constructions as there are
States ; and that this is not a mischief, or, if a

31
mischief, is irremediable. * * * If such be the
Constitution, it is the duty of the Court to bow with
respectful submission to its provisions. If such be
not the Constitution, it is equally the duty of the
Court to say so ; and to perform that task which
the American people have assigned to the judicial
department." After quoting Article 6 of the Con
stitution, which declares that the Constitution, laws
and treaties shall be the supreme law of the land,
the opinion proceeds: "This is the authoritative
language of the American people ; and, if the gentle
men please, of the American States. It marks, with
lines too strong to be mistaken, the characteristic
distinction between the government of the Union,
and those of the States. The general government,
though limited as to its objects, is supreme with
respect to those objects. This principle is a part of
the Constitution ; and if there be any who deny its
necessity, none can deny its authority. * * *
A Constitution is framed for ages to come, and is
designed to approach immortality as nearly as human
institutions can approach it. Its course cannot
always be tranquil. It is exposed to storms and
tempests ; and its framers must be unwise statesmen,
indeed, if they have not provided it, as far as its
nature will permit, with the means of self-preserva
tion from the perils it may be destined to encounter.
* * * The people made the Constitution, and

32
the people can unmake it. It is the creature of their
will, and lives only by their will. But this supreme
and irresistible power to make or to unmake, resides
only in the whole body of the people ; not in any,
subdivision of them. The attempt of any of the
parts to exercise it is usurpation, and ought to be
repelled by those to whom the people have delegated
their power of repelling it."
This opinion, which is tinged with patriotic emo
tion, points out the primary and elemental princi
ples on which the Constitution rests.
McCtilloch v. Maryland is a notable decision.
The case involved the power of the Government to
establish a bank, as an implied power under Article
I, Section 8, giving Congress power to make all nec
essary and proper laws for carrying into execution
the powers vested by the Constitution in Congress
or in the Government. The power was affirmed by
the Chief Justice, "We admit", he said, "and all
must admit, that the powers of the Government are
limited, and that its limits are not to be transcended.
But we think the sound construction of the Consti
tution must allow to the national legislature that
discretion, with respect to the means by which the
powers it confers are to be carried into execution,
which will enable that body to perform the high
duties assigned to it, in the manner most beneficial
to the people. Let the end be legitimate, let it be

33
within the scope of the Constitution, and all means
which are appropriate, which are plainly adapted to
that end, which are not prohibited, but consist with
the letter and spirit of the Constitution, arc consti
tutional." Another great question decided in that case related
to the power of a State to tax a bank established by
the Government. On this point the Chief Justice
declared :
" That the power to tax involves the power to
destroy ; that the power to destroy may defeat and
render useless the power to create ; that there is a
plain repugnance, in conferring on one Government
a power to control the constitutional measures of
another, which other, with respect to those very
measures, is declared to be supreme over that which
exerts the control, are propositions not to be denied.
* * * If the States may tax one instrument,
employed by the Government in the execution of
its powers, they may tax any and every other instru
ment." The necessity of uniform regulations of commerce
was the most powerful cause which led to the adop
tion of the Constitution. The construction of the
commerce clause in that instrument came under con
sideration in Gibbons v. Ogden. The State of New
York had granted the exclusive right to Robert
Fulton and Livingston to navigate all the waters of

34
New York with vessels propelled by steam. This
right had been assigned to Ogden, the original
plaintiff". The highest court of New York had re
strained the original defendant. Gibbons, from navi
gating the Hudson River with steamboats licensed
under an Act of Congress. The State law was held
void. "Commerce," said the Chief Justice, "un
doubtedly, is traffic, but it is something more : it is
intercourse. * * * All America understands,
and has uniformly understood, the word 'commerce'
to comprehend navigation. * * ''' The power
over commerce, including navigation, was one ofthe
primary objects for which the people of America
adopted their government, and must have been con
templated in forming it. * '*¦ * 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 pre
scribed in the Constitution. * * * 'j-j^g
power of Congress, then, comprehends navigation
within the limits of every State in the Union ; so far
as that navigation may be, in any manner, connected
with 'commerce with foreign nations, or among the
several States, or with the Indian tribes.' * * *
" Powerful and ingenious minds, taking, as postu
lates, that the powers expressly granted to the Gov
ernment of the Union, are to be contracted by con
struction, into the narrowest possible compass, and

35
that the original powers of the States are retained,
if any possible construction will retain them, may,
by a course of well digested, but refined and meta
physical reasoning, founded on these premises, ex
plain away the Constitution of our Country, and
leave it a magnificent structure, indeed, to look at,
but totally unfit for use."
In The American Insurance Company v. Canter,
where the validity and effect of the treaty of 1819,
by which Spain ceded Florida to the United States,
was before the Court, the Chief Justice said: "The
Constitution confers absolutely on the Government
of the Union, the powers of making war, and of
making treaties ; consequently, that government pos
sesses the power of acquiring territory, either by
conquest or by treaty."
Marshall was not in favor of a narrow construction
of the Constitution, nor of an enlarged construction
beyond the natural meaning of the words. Upon
this general question, he observed, in Gibbons v.
Ogden :
"What do the gentlemen mean by a strict con
struction ? If they contend only against that enlarged
construction, which would extend words beyond
their natural and obvious import, we might question
the application of the term, but should not contro
vert the principle. If they contend for that narrow
construction which, in support of some theory not

36
to be found in the Constitution, would deny to the
Government those powers which the words of the
grant, as usually understood, import, and which are
consistent with the general views and 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 insti
tuted, 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. * * * The enlightened
patriots who framed our 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." This occasion will not permit a more extended
reference to Marshall's opinions. It is sufficient to
observe that they constitute in a large measure the
judicial structure of the nation.
When we speak of the Supreme Court decisions
on constitutional questions as those of Marshall, we

37
are doing no injustice to the other members of the
Court. His master mind directed and governed
that tribunal on this subject. This was the verdict
of his contemporaries. In dedicating his "Com
mentaries on the Constitution" to Marshall, Judge
Story wrote : " Other judges have attained an ele
vated reputation by similar labors in a single depart
ment of jurisprudence. But in one department (it
need scarcely be said that I allude to that of consti
tutional law) the common consent of your country
men has admitted you stand without a rival. Pos
terity will surely confirm by its deliberate award what
the present age has approved as an act of undisputed
justice." Of the six decisions involving questions of consti
tutional law from the organization of the Court in
1790 to Marshall's appointment in 1801, only two
were of grave importance. From 1801 to 1835,
covering the period Marshall was Chief Justice,
sixty-two decisions on constitutional questions were
given, in thirty-six of which the opinion of the Court
was written by him. Although this was his most
important work, it comprises only a fraction of his
judicial labors. In the thirty volumes of reports
extending from the first of Cranch to and including
the ninth of Peters, there are eleven hundred and
six cases in which opinions were filed, and five hun
dred and nineteen of these were delivered by Marshall.

38
These opinions cover questions on nearly every
important branch of jurisprudence. The case of
Ogden V. Saunders was the only case raising a con
stitutional question where the majority of the Court
differed from the Chief Justice.
In the department of constitutional law, the field
was new. There were few precedents, because the
construction and declaration of the supreme law by
a court, under a written constitution, was unknown.
Marshall's only light was the inward light of reason.
He had "no guides but the primal principles of truth
and justice." He does not cite a single decision on
the great constitutional questions determined in
Marbury v. Madison, Cohens v. Virginia, Sturges
V. Crowninshield, McCulloch v. Maryland and Dart-
¦mouth College v. Woodward. Judge Story said,
"When I examine a question, I go from headland
to headland, from case to case ; Marshall has a com
pass, puts out to sea, and goes directly to his result."
Tradition records (we will not say truthfully) that
when Marshall had finished reading his great opin
ions, he would sometimes observe, "These seem to
me to be the conclusions to which we are conducted
by the reason and spirit of the law. Brother Story
will furnish the authorities."
Marshall's decisions are demonstrations founded
upon pure reason. They are chains of compact
reasoning leading to inevitable conclusions. They

39
are almost devoid of illustration or analogy. They
show profound meditation and deep penetration.
They grapple with great underlying principles, and
exclude extraneous circumstances. In the words of
a contemporary : "When we regard their original
ity, their depth, their clearness and their adamantine
strength, we look upon them as the highest efforts
ofthe human mind." Webster declared: "When
Judge Marshall says, ' It is admitted,' — Sir, I am pre
paring for a bomb to burst over my head and demol
ish all my points." After hearing Marshall deliver
several opinions, William Pinkney exclaimed : " He
was born to be the Chief Justice of any country in
which he lived." And John Adams said that his
gift of John Marshall to the United States was the
proudest act of his life.
When Marshall, at the age of forty-five, was
appointed Chief Justice, he had been engaged in the
leading events of his time. His previous life was a
training and preparation for the high office he then
assumed. He was already distinguished as a patriot,
lawyer, legislator, statesman and diplomatist ; and.
soon after he became Chief Justice, his "Life of
Washington" was published.
Born on September 24, 1755, in Germantown,
Fauquier County, Virginia, his early youth was
passed in a sparsely settled country thirty miles
west, near the Blue Ridge Mountains. His father

40
was a friend and companion of Washington ; a
colonel in the Revolutionary Army ; a man of marked
courage and energy, and well read in the English
classics ; and he was deeply interested in the
education of his children.
I,n his youth, Marshall was fond of out-door sports.
He loved nature, and poetic longings filled his soul.
He early showed a taste for literature, which he
retained throughout his life. Two years instruc
tion in Latin comprised his education, except
what was obtained at home. When the storm
of the Revolutionary War broke upon the Colonies,
the youthful spirit of Marshall burned with patri
otic zeal. Abandoning his studies, he formed a
company. He was made lieutenant and afterwards
captain ; and he remained with the army, except
for a short period, until the end of the war.
" He fought," says a recent writer, "at the battles of
Brandywine, Germantown and Monmouth. He was
with Mad Anthony Wayne at Stony Point. He was
with Lighthorse Harry Lee in the brilliant action
at Paulus Hook. He suffered hardships with the
patriot army in the winter encampment upon the
impregnable heights of Morristown. He was with
his great commander during the dreary mid
night of the Revolution at Valley Forge. In all
his military service he was steadfast, capable and
valiant."

41
At the age of twenty-five, after attending a course
of lectures by Chancellor Wythe at William and
Mary College, Marshall was admitted to the bar, and
rose rapidly to eminence. The same qualities which
afterwards distinguished him as a judge marked
his career as a lawyer. Calmness, moderation,
penetration, and mental grasp characterized his fo
rensic arguments. In describing Marshall's powers,
William Wirt declared that he possessed "one origi
nal and almost supernatural faculty, — the faculty of
developing a subject by a single glance of his mind,
and detecting at once the very point on which every
controversy depends. No matter what the question,
though ten times more knotty than the gnarled oak,
the lightning of heaven is not more rapid nor more
resistless than his astonishing penetration." It was
not long before he ranked first among the leaders
of the bar in his native State. The two volumes
by Washington of the cases adjudged in the Vir
ginia Court of Appeals disclose his name as counsel
in a large majority of the cases reported.
His professional reputation became national in
the celebrated case of Ware v. Hylton, known as
the English Debt case, which raised the question
whether, under the treaty of peace of 1783, British
creditors could recover debts sequestrated during
the Revolutionary War by act of the Virginia Leg
islature. The honor of the State and the fortunes

42
of many of its citizens were involved in the issue.
The case was argued before the Supreme Court in
Philadelphia in the winter of 1796. There were
engaged in it the most learned and eloquent mem
bers of the Virginia bar, which at that time was said
to rank first in the country. Marshall appeared as
leading counsel for the defendants ; and, although
on the losing side of the case, his masterly argu
ment excited the admiration of the Court and the bar.
Speaking of Marshall's effort, Wirt says, "Marshall
spoke, as he always does, to the judgment merely,
and for the simple purpose of convincing. Marshall
was justly pronounced one of the greatest men of
the country. He was followed by crowds, looked
upon and courted with every evidence of admiration
and respect for the great powers of his mind. Mar
shall's maxim seems always to have been, ' Aim
exclusively at strength.'"
Marshall's career as a legislator was a school and
training for his great work of expounding the Con
stitution. He was a member of the Virginia Legis
lature for several years following the close of the
Revolutionary War and before the adoption of the
Constitution in 1789. Questions of the highest
importance and statesmanship occupied the attention
of the Legislature during this period. The Articles
of Confederation had proved entirely inadequate
for the purposes of an efificient government. The

43
requisitions of Congress were ignored, and the disrup
tion ofthe Confederation was imminent. On all the
important political questions then pending before the
Legislature, Marshall stood with Madison in plead
ing for a stronger and more effective Federal Union.
The bitter and cruel experience of the Colonies
during these years made a deep impression on his
mind which he could not afterwards cast aside when
called upon to determine the grave questions affect
ing the supremacy and efficiency of the new Consti
tution. Marshall was a delegate to the Virginia Conven-
tion of 1788, to which was submitted the question
of the ratification of the Constitution. The Con
vention was composed of the most eloquent and
illustrious body of men ever gathered together
in the State. Marshall and Madison, by their
supreme exertions, were hardly able to stem the
fiery eloquence of Patrick Henry and the powerful
arguments of Grayson and George Mason in oppo
sition. In his forcible speech of June loth, 1788,
in reply to Patrick Henry, Marshall answered
the various objections urged against the Consti
tution. He begins with a calmness, moderation,
and judicial temper which marks the entire speech.
"I conceive that the object of the discussion now
before us is whether democracy or despotism be most
eligible. I am sure that those who framed the

44
system submitted to our investigation, and those who
now support it intend the establishment and security
of the former. The supporters of the Constitution
claim the title of being firm friends of the liberty
and the rights of mankind. They say that they
consider it as the best means of protecting liberty.
We, sir, idolize democracy. Those who oppose it
have bestowed eulogiums on monarchy. We pre
fer this system to any monarchy, because we are
convinced that it has a greater tendency to secure
our liberty and promote our happiness. We admire
it, because we think it a well-regulated democracy."
The acts of Washington's administration after
the new government was organized were bitterly
denounced. The ratification of Jay's Treaty with
England in 1 795 excited intense opposition. Con
stitutional objections to the treaty were raised and
supported by powerful arguments. The memorable
speech of Marshall in the Virginia Legislature in
defence of the constitutional power of the executive
to negotiate commercial treaties raised him into
national fame as a statesman, and placed him among
the foremost leaders of the Federal Party.
As an indication of the popular feeling of the
time it may be noticed that, upon the presentation
in the Legislature of a resolution expressing confi
dence in the "virtue, patriotism and wisdom" of
Washington, a motion to strike out the word "wisdom"

45
was defeated by a bare majority. "Will it be
believed," exclaimed Marshall, "that the word was
retained by a very small majority ? A very small
majority in the Legislature of Virginia acknowl
edged the wisdom of General Washington."
It was about this time that Washington tendered
Marshall the office of Attorney General and the
mission to France, both of which he declined.
In consequence of Jay's Treaty with England, our
relations with the French Republic had reached a
critical stage ; and, from a sense of patriotic duty,
Marshall finally accepted the appointment of Envoy
to France in conjunction with Pinckney and Gerry.
During this trying and humiliating mission the let
ters addressed to Tallyrand defining and defending
our country's position have always been attributed
to Marshall's pen. They aroused the warmest
praise, and on his return in 1798 he received ovations
in New York and Philadelphia.
Upon resuming the practice of his profession in
Virginia, at the earnest solicitation of Washington,
who was filled with dark forebodings as to the future
of the country, Marshall became a candidate for
Congress, after declining a position on the Supreme
Court tendered him by President Adams. He was
elected in the spring of 1 799. Hardly had he taken
his seat a few months later, when he was called upon
to announce the death of Washington. "Those who

46
were present on the occasion," says Binney, "can
never forget the suppressed voice, and deep emotion.
with which he introduced the subject on the follow
ing day; or the thrill which pervaded the House at
the concluding resolution."
On questions which related to the Constitution,
Marshall was the acknowledged leader of the House.
The most notable debate in this Congress was upon
the resolutions of Edward Livingston, censuring the
President for his conduct in the extradition of Jon
athan Robbins. This executive interference was
violently attacked as an unconstitutional exercise of
power. The speech of Marshall in reply to Liv
ingston, in the language of Judge Story, "settled
then and forever the points of national law upon
which the controversy hinged;" and "is one of the
most consummate juridical arguments which was
ever pronounced in the halls of legislation."
During this term of Congress, Marshall was ten
dered the office of Secretary of War, which he
declined ; and subsequently, the office of Secretary
of State, which he accepted. The latter position
brought before him our relations with foreign coun
tries, and especially with England. His State papers
upon the various questions arising out of the execu
tion of the British Treaty, which had threatened to
interrupt the peaceful relations of the two countries,
were strong, dignified, and diplomatic.

47
While serving as Secretary of State he was nom
inated by President Adams for Chief Justice ; his
nomination was unanimously confirmed by the Sen
ate ; and he was commissioned January 31, 1801.
He took his seat on February 4, to enter upon a
career the most remarkable in judicial annals.
Marshall possessed intellectual powers of the
highest order. The commanding features of his
mind were calmness, penetration and profound wis
dom. In judicial acquirements he was not the equal
of some of his contemporaries. He was not what
is termed a learned man, and he had none of the
arts of an advocate. He relied upon the original
powers of his mind, and not upon knowledge gained
from others. He worked out the great problems of
constitutional jurisprudence as Newton worked out
the great problems of natural science. He mastered
new subjects by his powers of analysis and intuitive
perception of the truth. "He seized, as it were
by intuition," says Judge Story, "the very spirit of
juridical doctrines, though cased up in the armor of
centuries ; and he discussed authorities, as if the very
minds of the judges themselves stood disembodied
before him."
Marshall's moral nature was in harmony with his
intellectual. His affections were strong and pure.
His character was spotless. It is said he never had
an enemy. The affectionate regard which bound

48
Others to him in his youth, and during his long public
career, became, towards the closing days of his life,
an exalted veneration. His nature was marked by
deep sensibility and tenderness. Speaking of his
domestic virtues. Judge Story, in his beautiful eulogy,
declares: "After all, whatever may be his fame in
the eyes of the world, that which in a just sense
was his highest glory, was the purity, affectionate-
ness, liberality, and devotedness of his domestic life.
Home, home, was the scene of his real triumphs."
Though distinguished for moderation and good
temper, he was immovable in his performance of
judicial duty. The trial of Aaron Burr is an illustra
tion of his firmness and impartiality under the most
trying circumstances. The country was convinced
of Burr's guilt, and Marshall's rulings were severely
censured. " Marshall," exclaimed Wirt, " has stepped
in between Burr and death." But the great Chief
Justice stood unmoved while the storm of passion
and prejudice raged about him. The English law of
treason, he declared, had not been imported into the
Constitution. Treason under the Constitution con
sists in some overt act, and it is not treason for the
subject to "imagine the death of the King." Mar
shall's deepest feelings were aroused in this memor
able trial. Listen to these words : "That this Court
dares not usurp power is most true. That this Court
dares not shrink from its duty is not less true. No

49
man is desirous of placing himself in a disagreeable
situation. No man is desirous of becoming the
peculiar subject of calumny. No man, might he let
the bitter cup pass from him without self-reproach,
would drain it to the bottom. But if he has no
choice in the case ; if there is no alternative presented
to him but a dereliction of duty or the opprobrium
of those who are denominated the world, he merits
the contempt as well as the indignation of his coun
try who can hesitate which to embrace."
When the question was put to Wirt after the trial :
" Why did you not tell Judge Marshall that the
people of America demanded a conviction ?" "Tell
him, that!" was the reply. "I would as soon have
gone to Herschel, and told him that the people of
America insisted that the moon had horns as a rea
son why he should draw her with them."
Marshall's personal traits were winning. Nothing
seemed to disturb his temper or equanimity. His
manners on the bench were a model of dignity, sim
plicity and courtesy. He heard the arguments of
counsel with unsurpassed patience and strict atten
tion. " The gravity of the judge was tempered with
the courtesy ofthe gentleman."
An English traveller gives us a touching picture of
the Chief Justice during his last days : "The Judge is
a tall, venerable man, about eighty years of age, his
hair tied in a queue according to olden custom ; and

50
with a countenance indicating that simplicity of mind
and benignity which so eminently distinguish his
character. His house is small, and more humble in
appearance than those of the average successful law
yers or merchants. I called three times upon him.
There was no bell to the door. Once I turned the
handle of it and walked in unannounced. On the
other two occasions he had seen me coming and had
lifted the latch and received me at the door, although
he was at the time suffering from some very severe
contusions received in the stage while travelling on
the road from Fredericksburg to Richmond. I verily
believe there is not a particle of vanity in his compo
sition." Such was the man, simple, kindly, great —
the noble attributes of true manhood.
Perhaps no tribute after his death is more beau
tiful than is expressed in the words : "The fame of
the Chief Justice has justified the wisdom of the
Constitution, and reconciled the jealousy of freedom
to the independence ofthe judiciary."
The affection and veneration of the bar are feel
ingly shown by the resolutions adopted by the Cir
cuit Court of Virginia, which declare that he had
presided for thirty-five years "with such modesty
that he seemed wholly unconscious of his own
gigantic powers ; with such equanimity, such benig
nity of temper, such amenity of manners, that not only
none of the judges, who sat with him on the bench,

51
but no member of the bar, no officer of the court,
no juror, no witness, no suitor, in a single in
stance, ever found or imagined, in anything said
or done, or omitted by him, the slightest cause of
offence." The providence of God has been made manifest
to this nation " in raising up from time to time men
of pre-eminent goodness and wisdom" — Washing
ton, Lincoln, Marshall, each fitted for his special
work. The name and services of Marshall are less
known because what he did lies more hidden from
the eyes of men. But it only requires examination
and reflection to reveal the incalculable value of his
labors, and his title to the gratitude of his country.
In the beautiful emblem of the nation which hangs
from these historic walls it was by his hand the silken
threads were woven into the folds in which are set
and held forever those shining stars.
To comprehend Marshall's work we must stand
upon the mountain top and survey the nation ; its
cluster of proud States stretching from ocean to
ocean ; its groups of islands encircling the sea ; its
strings of great cities ; its countless towns and
villages, farms and homes ; its temples of worship
on every hillside whose spires are the first to greet
the morning sun at his coming ; its schools and uni
versities ; its hospitals and charities ; its commerce
and arts ; its science and invention ; its industries

52
and wealth, — the whole picture of national life which
is spread before our vision.
Behold the change ! We are no longer a feeble
confederation of colonies fringing the Atlantic coast ;
but a mighty composite Republic standing in the
front rank of nations, beckoning the poor and heavy
burdened of other climes to this home of material
comfort, civilization and orderly liberty ; and march
ing to the financial and commercial supremacy of the
world. Our political system is no longer threatened
by discordant or belligerent States, but we behold a
loyal, united and enduring Union, — the highest type
of government, a Federal Commonwealth in its per
fect form. We see no longer a weak and struggling
national spirit, but the throb of seventy million patri
otic hearts as the Maine sinks beneath the waters in
Havana's harbor. The symbol of our country's
power is no longer the frigate Constitution, or the
wooden ships of Perry built in a night to cross an
inland sea, but the majestic and invincible Oregon,
traversing two oceans from Pacific's Golden Gate to
battle for the oppressed of other lands and the
nation's honor.
As we enter the gateway of a new century with
hearts overflowing with gratitude to Almighty God
for our unnumbered national blessings, and awaiting
with high anticipation and conscious strength the
grander destiny of the coming years, we may well

53

pause to lay our wreath of laurel on the uncrowned
head of the great jurist who sank deep and immov
able the constitutional pillars on which the nation
rests.

YALE UNIVERSITY LIBRARY

3 9002 04023 3570

ii '

nil !a ,11

li;

]m-

^%'m\

IJffiiiHi