A COMMEMORATIVE ADDRESS ON CHIEF gave his reasons in language like a wail of despair. JUSTICE MARSHALL.

Supreme Court of the United States, and held the judicial calmness the language in which the eulogy place until his death, July 6, 1835. is pronounced. Let us strive not to fall into this danger; it is not necessary and would defeat its OUR GROWTH, AND OUR INDEBTEDNESS TO THE object, for, if we are able to get a clear, exact and CONSTITUTION AND THE UNION. true view of Marshall's genius, character and public services just as they are, this, without more, is the best eulogy possible, and would be weakened by rhetorical coloring and exaggeration. In the case of Marshall we have the paradox that the most effective eulogy is to give it the force which comes from restraint and understatement.

When Marshall became Chief Justice the American Union had sixteen States a territory of 900,000 square miles, with a population, in round numbers, of 5,000,000-far less than the present population of this Empire State of New York. In the century that has since elapsed the States, under the stimulus and protection of republican institutions, have in- The fame of a great and good man happily is becreased from sixteen to forty-five, our territorial yond the dominion of death. It is an inheritance area — now facing both of the great oceans for that descends through successive generations. In many thousand miles - has more than quadrupled, his life he is rarely seen through a just medium. and the recent national census shows our popula- | The interests and the passions of the moment, the tion to exceed 76,000,000 of people-free, happy, partiality of friendship or party, the envy and prosperous and united. These in this western prejudice of opponents, the very nearness of the world are the marvelous fruits of American institu- object of our vision-all these obscure or distort tions" broad-based upon the people's will"- our view. The true, the historical, the final valuaand we owe it all, with the favor of Heaven, to the tion must be reserved for those who come afterunion of these States under the federal Constitution. wards, for they alone are enabled, by lapse of time This amazing, this unexampled growth—I weigh and the absence of anything to bias the judgment, the word this growth, unexampled in the history to see him in the clear, the serene, the impartial of the world, has been under the Constitution with- light of history, just as he was and is. Contemout substantial change in its original plan or essen-porary mists have cleared away, revealing more distial features, for the amendments adopted soon after tinctly Marshall's mountainous magnitude -"like the Constitution went into effect and those which were afterwards rendered necessary as the result of the Civil War, did not alter the general scope or plan of the Union, although the latter amendments enlarged somewhat the powers of the general government and abridged in certain specified and most important respects the powers of the States. The existence and autonomy of the States, with exclusive power over all persons and property within their boundaries and over all local, civil and domestic affairs, subject only to the federal Constitution, and the general government supreme within the limits of the Constitution as respects all purposes made national by it, "anything in the Constitution or laws of any State to the contrary notwithstanding," these original and essential features of the government of the Union remain, I repeat, without structural or radical change, just as they were devised by the wisdom and skill of the founders of the republic.

Teneriff or Atlas unremoved." We can form to-day a juster estimate of Marshall and of his public services to our profession and to our country, and of his claims on our gratitude and veneration, than was possible for his contemporaries.

On the recommendation of the American Bar Association, the bar of the United States at the city of Washington and in the different States, are celebrating this day in honor of the centennial anniversary of the commencement of the judicial term of Chief Justice Marshall. Its observance was recommended in the annual message of the president. The spontaneous and voluntary character of this homage, on the part of lawyers and laymen throughout the entire country, gives to it its chiefest value. It is, indeed, a most gratifying spectacle. It is in itself a eulogy more impressive than any words. however eloquent. The universality and warmth of the commemoration are the more remarkable since Marshall's life, though full of interest, arising from his long career in varied military, civil and public employments, and the signal ability with which he discharged their respective duties, has yet little that is striking or dramatic. A monument of bronze or marble, however imposing, is silent, and we do not know how far it awakens sentiments of admiration or gratitude in the beholder. But such observances as this day witnesses throughout the republic make manifest to us all and to the world that Marshall has an enduring place in the esteem and affections of his countrymen, and that he has a monument in the hearts of a people grateful for sacrifices unselfishly made, and for great services greatly performed for the good of his country and his fellow-men. Such a monument is of more worth

than marble or bronze, since it is a living voice, torians. Madison was the acknowledged chief, but vocal with reverence, praise and gratitude.

And now the inquiry fitly comes, whether this veneration for Marshall is a mistaken and superstitious idolatry or whether it rests upon rational, solid and enduring grounds. And, if the latter, what are these grounds and what is the just measure of Marshall's fame and of our indebtedness to him. To this inquiry our thoughts will mainly be directed.

SCOPE OF THIS ADDRESS.

The purpose of this occasion being to commemorate the judicial services of Marshall, this determines the character and scope of the present address. The general incidents of Marshall's life belong to his biography, and will be referred to by me very briefly, and only because they throw light upon the formation and character of the principles which he afterwards embodied in his celebrated decisions relating to the constitutional powers of the general government.

GROUNDS OF MARSHALL'S FAME- HIS WHOLE
PREVIOUS LIFE A PREPARATION FOR HIS JUDI-
CIAL CAREER.

Marshall took a leading part, and some of his speeches which have been preserved are strongly marked by the same intellectual qualities for which he was afterwards so distinguished. The contest raged for more than three weeks, and in the end the vote, June 25, 1788, in favor of the Constitution, was carried by the narrow majority of only ten, eighty-nine against seventy-nine, and even this was delayed until nine out of the thirteen States (the requisite number to establish the Constitution between the States ratifying the same) had assented to it.

ern

In New York the Constitution was in greater peril. New York was more tardy than Virginia. Hamilton saved the day, and the Constitution was ratified at Poughkeepsie July twenty-sixth, by a majority of but three votes, thirty to twenty-seven. If any historical fact is certain, it is that this result saved the Union, for the Northern and Southassenting States could not have existed separated by the State of New York; and New York's assent to the Union is due to the genius, writings and labors of Hamilton. Afterwards, as the great minister of finance in Washington's administration, it fell to the lot of Hamilton to render services only less important than those just mentioned services to which, when viewing them, Webster, in a celebrated metaphor, ascribed miraculous energy: "He smote the rock of our national resources and abundant streams of revenue gushed forth. He touched the dead corpse of the public credit and it sprang upon its feet." Honor and praise, unstinted and perpetual' on all proper occasions, and this is one, are due to this great son of New York, whose spirit so sadly went out in his own blood a few years afterwards on the heights of Weehawken.

Marshall, as I have already said, had rendered great public services before he went upon the bench. He was for years a soldier of the revolution. He was engaged in numerous battles. He was present during the terrible winter at Valley Forge. He often acted as judge-advocate, and was well acquainted with Washington, whose biographer he became, and with Hamilton, whose talents he admired, and whose political principles he approved. He was a self-made man. He never had the advantages of a regular and systematic education. He was graduated from no institution of learning. His professional training was so desultory and irregular that it is a marvel to this day how, under such circumstances, he acquired such a thorough knowledge of the principles of his profession. He was repeat- | He warmly advocated Jay's treaty, unpopular as it edly elected to the legislature of his State in the critical period of our history between 1782 and 1792, not because he desired it, but because he was too patriotic to refuse. He had seen the fatal defects and the pitiable failure of the Articles of Confederation, the bankruptcy of the new government and the public and private distress. Anarchy and chaos stared the people in the face and Marshall was fully convinced that nothing but a firmer Union could save the country. Under the Confederation no remedy was possible.

For the five years succeeding 1792, Marshall was in full practice at the bar, and went to the head.

was in Virginia. He supported the government in its controversy with France. In 1797 he accepted a joint mission to that country, serving with Cotesworth Pinckney and Elbridge Gerry. He had a year's experience with the almost incredible sinuosities, duplicities and insolences of Talleyrand's diplomacy, and his services, as Adams declared,

were entirely satisfactory and ought to be marked with the most decided approbation of the public." And they were.

He declined a seat on the supreme brench in When the adoption of the Constitution hung order, at Washington's request, to serve his countrembling in the balance, he became, in 1788, at the try in congress. War with France being then immiage of thirty-three, a member of the Virginia con- nent, Washington had been unanimously appointed, vention called to adopt or reject the Constitution, July 3, 1798, lieutenant-general and commander-inand, with Pendleton, Madison and Randolph, chief of the armies raised and to be raised in the championed its ratification against Patrick Henry, George Mason and William Grayson. The history of that struggle has been made familiar to lawyers by the glowing and pictured pages of Wirt's Henry, and to the world by Bancroft, Fiske and other his

United States. Marshall's first service in congress was the mournful one of announcing the death of Washington. He defended the rightfulness of the surrender of Nash by the president in a speech so conclusively reasoned that it was unanswerable.

Adams appointed him secretary of State, and he
was exercising the important and at that juncture
extremely delicate duties of this office, January 31,
1801, when he was appointed, at the age of forty-
five, to be Chief Justice of the Supreme Court.
I have given this outline sketch of Marshall to
show whence his political opinions were formed,
and that his whole life, public and professional,
was a preparation for the greater and more difficult
duties and responsibilities of the judicial career on
which he was about to enter. On this point we
have his own interesting statement. Years after-
wards he said: "I ascribe my devotion to the
Union and to a government competent to its
preservation to sentiments which I imbibed when
in the army so thoroughly that they constituted
a part of my being." "My legislative experience
gave a high value to that article in the Constitution
which imposes restrictions on the States. I was
consequently a determined advocate for its adop-
tion. * * * I was convinced that no safe or per-
manent remedy could be found, but in a more
efficient and better organized general government."
This tells the whole story. It might stand as
a syllabus to all of his great constitutional
judgments.

Chief Justice, and we may be sure that in speaking to the public on a matter so delicate as the influence of the Chief Justice in the court he would weigh with judicial circumspection and care every word he used. Story wrote as follows:

'We resume the subject of the constitutional labors of Chief Justice Marshall. We emphatically say of Chief Justice Marshall. For though we would not be unjust to those learned gentlemen who have, from time to time, been his associates on the bench, we are quite sure they would be ready to admit, what the public universally believe, that his master mind has presided in their deliberations, and given to the results a cogency of reasoning, a depth of remark, a persuasiveness of argument, a clearness and elaboration of illustration, an elevation and comprehensiveness of conclusion, to which none others offer a parallel. Few decisions upon constitutional questions have been made in which he has not delivered the opinion of the court; and in those few the duty devolved upon others to their own regret, either because he did not sit in the case, or from motives of delicacy abstained from taking an active part."

MARSHALL THE ACKNOWLEDGED LEADER OF THE against the sombre background of an untried and

COURT.

That during Marshall's chief justiceship he was the leader of the bench, and that his dominating intellect carried the other judges with him, is the general and popular belief, and it is one which is well founded. In Marshall's time more than 1,200 cases were decided, and of the 1,106 opinions filed, 519 were written by the Chief Justice, the remainder by the different associate justices, Marshall dissenting in only eight cases. Sixty-one of these decisions were on questions of constitutional law, of which thirty-six were written by Marshall and only twenty-five by all of the other members of the

court.3

MARSHALL'S DUTIES UNTRIED AND DIFFICULT. To appreciate Marshall justly we must view him most difficult situation. The controversies which the progress of the formation and adoption of the Constitution had made manifest, survived and took on a partisan form. A written Constitution as an organic law for a government of novel and complex construction, whose powers and limitations were expressed in the most general language, required to be interpreted, expounded and applied for the first time. For a situation so absolutely unique, precedents and authorities there were none. The usual and most useful function of a judge is, by careful study, to ascertain from the sages of his profession, and from the opinions and judgments of the courts what the law is, and to declare and

apply it faithfully and without innovation to the

case in hand. He has the accumulated and re

The Chief Justice had the good fortune to have, on the whole, able associates, some of them very eminent. But he was the planetary center of the corded wisdom of ages as an unfailing and sacred court, holding every orb in place, giving, and in deposit from which to draw the principles which turn receiving back "the gladsome light" which are to guide his inquiries, enlighten his understandhas made that tribunal resplendent. Mr. Justice ing and determine his judgment. But no such Story sat at Marshall's side for twenty-four years. resource was open to Marshall in the decision of No one had better opportunities of knowing Mar- the new questions of federal authority and right shall's relation to the labors of the court than arising under the Constitution of the United States, Story, and no one, certainly, was capable of forming a juster estimate of them. When such a lawyer and judge as Story looks up to Marshall and publicly salutes him as master, no more impressive proof is possible of Marshall's intellectual greatness and supremacy. In 1828, in Marshall's lifetimea few years before his death-Story published in the North American Review an article on the

(3) Hitchcock, Const. Hist. of U. S.. p. 57; table of cases, ib. pp. 20; Carson, Hist. Sup. Court, p. 286.

and he was, from necessity, thrown back almost wholly upon his own native powers. The situation in this respect at the time when Marshall took his seat on the bench one hundred years ago this day, was shortly stated by Chief Justice Waite at the unveiling of the Marshall statue in Washington in 1884:4

""

The court had then been in existence but eleven years, and in that time less than one hundred cases (4) 112 United States Reports, 745.

had passed under its judgment. Its reported de- in every quarter of the globe, wherever, in its cisions fill but five hundred pages of three volumes widening conquest, the English language has carof the reports published by Mr. Dallas. The courts ried the English law." No writer has considered of the several colonies before the revolution, and of the respective powers and duties of the federal and the States afterwards, had done all that was required State judiciaries so satisfactorily as Chancellor of them, and yet the volumes of their decisions Kent, whose chapters on that subject are characterpublished before 1801 can be counted on little more ized by precision, justness and elegance. Although than the fingers of a single hand. The reported his judicial labors were mainly confined to objects decisions of all the circuit and district courts of the of State jurisdiction, yet he pointed out that there United States were put into a little more than two was enough in them to cheer and animate the culhundred pages of Dallas. In this condition of the tivation of the jurisprudence of the States, saying: jurisprudence of the country, Marshall took his "The vast field of the law of property, the very place at the head of the national judiciary. The extensive head of equity jurisdiction, and the pringovernment, under the Constitution, was only or- cipal rights and duties which flow from our civil ganized twelve years before, and in the interval and domestic relations, fall within the control, and eleven amendments of the Constitution had been we might almost say the exclusive cognizance, of regularly proposed and adopted. Comparatively the State governments. We look essentially to the nothing had been done judicially to define State courts for protection to all these momentous the powers or develop the resources of the interests. They touch, in their operation, every chord of human sympathy, and control our best destinies."

Constitution."

MARSHALL THE CREATOR OF OUR FEDERAL CONSTITUTIONAL LAW. FEDERAL AND STATE CIARY. JAMES KENT DAY Suggested. Men of our profession are apt to distrust gen- suitable time, under the auspices of the bar assoeralities and to demand specifications and proofs. | ciations, we shall have a James Kent Day, in order Appreciating that with them specific and concrete that we may suitably make manifest our appreciaexamples are more effective than general unsupported statements, I have, with some hesitation, lest I should drift into too much detail and prolixity, concluded that the nature and value of Marshall's judicial services can only be satisfactorily shown by selecting and briefly stating a few of his leading judgments which determined the boundaries and established the vital and fundamental principles of our Constitution.

Such is the general regard for him, as man, JUDI-judge and author, that it will, I am sure, be permitted, on this occasion, to suggest that at some

This was his distinctive work. On this his fame chiefly rests. Before Agamemnon there were many heroes. There are in English and American jurisprudence many great judges. Aside from Marshall's services as the main creator of federal constitutional law, there are English and American judges, not a few, who have as wide or a wider fame than Marshall. I may mention among his contemporaries in this country Story, Shaw and

Kent.

tion of the great services which he rendered to general jurisprudence, and particularly to the jurisprudence of the State of New York, and this in the hope that it may result in the erection of a statue, in honor of his memory, either here in the capital city, where he labored so long, or in the city of New York, where he died. I cannot doubt that if application were made to the legislature, it would lend its powerful sanction and authorize the governor and chief judge of the Court of Appeals to select a suitable site on the capitol grounds, which, if done, I am sure the bar and the people of New York will furnish the means to place thereon a memorial worthy of the State, worthy of our profession and worthy of this distinguished jurist and judge. If I may be pardoned for venturing to express any mere personal feelings, I will add that I have often wished that my own life might be prolonged to see Chancellor Kent thus appropriately commemorated.

Unlike Kent, Marshall does not owe the eminence and renown which inspire the public honors of this day, to services in the field of general jurisprudence, although these were great, but to his judicial work as the first and greatest expounder of the principles of the federal Constitution. It has not been easy for me to find any single term which precisely and fully describes the labors of Marshall in this respect. He was, indeed, an expounder of the Constitution. But he was much more than a mere expounder. Mr. Webster, in his day, was called, and not unjustly, the great expounder of the Constitution.

Having mentioned Chancellor Kent, perhaps you will give me leave, in this capital city and before the bar of this State, to repeat what I have elsewhere said concerning him. It is not inappropriate to this occasion: "As a judge and author, he will not suffer when compared with the greatest names which have adorned the English law. * * * The American bar and people venerate his name and character. Simple as a child in his tastes and habits throughout his tranquil and useful life; more than any other judge the creator of the equity system of this country; the author of Commentaries which, in accuracy and learning, in elegance, purity and vigor of style, rival those of Sir William Blackstone, his name is admired, his writings prized, In our jurisprudence as Marshall left it, our Conand his judgments at law and in equity respected stitution means what the judicial department holds