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Cornell University Law Library. 
 
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Cornell University Library 
 KF 8745.M36C39 
 The Centennial anniversai^ of the elevat 
 
 3 1924 020 621 599 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
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 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924020621599 
 
COPYRIGHT, 19C1, BY F. GUTEKUNST 
 
 J^/^^^^-C-t^^x 
 
The Centennial Anniversary 
 
 Of the elevation of 
 
 JOHN MARSHALL 
 
 * 
 
 To the office of 
 
 Chief Justice 
 
 Of the Supreme Court of the 
 
 United States of America 
 
 Monday, February Fourth, 1901 
 
 Celebration in the City of Philadelphia 
 
 Under the auspices of 
 
 The Law Association of Philadelphia 
 The Lawyers' Club of Philadelphia 
 The Pennsylvania Bar Association 
 
 The Law School of the University 
 OF Pennsylvania 
 
 Philadelphia 
 Printed by George H Buchanan and Company 
 
 1901 
 
John Marshall Day 
 
 At a meeting of the Law Association of Philadelphia, 
 held October 2, 1900, the following resolutions were 
 adopted : 
 
 Resolved, That a committee of five be appointed by 
 the Chancellor to provide for a suitable observance, on Feb- 
 ruary 4, 1 90 1, of the Centennial Anniversary of the eleva- 
 tion of John Marshall to the office of Chief Justice of the 
 United States ; and 
 
 Resolved, That the State Bar Association, the Law- 
 yers' Club of Philadelphia and the other Bar Associations 
 throughout the state and members of the Bar in general be 
 invited to unite with this Association in carrying out the 
 object of the above resolution. 
 
 The Chancellor appointed the following gentlemen 
 members of that Committee : 
 
 John Cadwalader, Esq., Chairman. 
 Hon. Wm. W. Wiltbank, 
 George Tucker Bispham, Esq., 
 Wm. Brooke Rawle, Esq., 
 Alexander Simpson, Jr., Esq. 
 
 Subsequently the Committee was increased to nine 
 members, and Messrs. Henry Flanders, William H. Staake, 
 Edward P. Allinson and Hampton L. Carson, were added 
 to the Committee. 
 
In response to this resolution, the Lawyers' Chtb of 
 Philadelphia appointed the following Committee : 
 
 Hon. C. Y. Audenried, 
 John R. Read, Esq., 
 Richard C. Dale, Esq., 
 John Marshall Gest, Esq., 
 Joseph DeF. Junkin, Esq. 
 
 The Pennsylvania Bar Association : 
 
 Hon. John B. McPherson, 
 Victor Guillou, Esq., 
 D. T. Watson, Esq., 
 Hon. W. U. Hensel, 
 C. La Rue Munson, Esq., 
 J, B. Colahan, Jr., Esq. 
 
 The Faculty of the Law School, University of Penn- 
 sylvania : 
 
 Hon. George M. Dallas, 
 
 Prof. William Draper Lewis, 
 
 Prof. John W. Patton. 
 as members of "a joint committee upon the suitable observ- 
 ance of the Centennial Anniversary of the elevation of John 
 Marshall to the office of Chief Justice of the United States." 
 
 At a meeting of the Committee, held on the fifteenth 
 day of October 1900, it was 
 
 Resolved, That the Chairman of the Committee be 
 requested to confer with Mr. Justice Mitchell of the 
 Supreme Court of Pennsylvania, and invite him to deliver 
 an address upon the occasion. 
 
 At a meeting of the Committee held on the thirtieth 
 day of October, 1900, after some informal discussion, on 
 
motion of ilr. Alliiison, duly seconded, the chair was 
 authorized to appoint a sub-committee consisting of two 
 representatives from each organization represented on the 
 joint committee, of wliich committee the Chairman should 
 be a member es oMcio, which should formulate a program 
 or order of exercises for the day and report on the most 
 advisable place of meeting, the sub-committee to report at 
 the next meeting of the general committee. The Chair 
 announced the following Committee : 
 
 Hon. John B. McPherson, Chairman; with him 
 Mr. Victor Guillou, representing the Pennsylvania Bar 
 Association; Hon. W. W. Wiltbank and Mr. Wm. H. 
 Staake, representing the Law Association ; Mr. Jos. DeF. 
 Junkin and Mr. John R. Read, representing the Lawyers' 
 Club. 
 
 This sub-committee organized by the election of Mr. 
 William H. Staake, as Secretary. To this Committee on 
 the eighth day of November, 1900, were referred all further 
 details in connection with the celebration, with direction to 
 report at a meeting of the General Committee, to be called 
 on notification of the sub-committee. 
 
 At the same meeting the sub-committee recommended 
 the following action, which was afterwards approved by the 
 General Committee : 
 
 "That on Marshall Day, at 11 o'clock a. m., there 
 be a meeting of the Bar in the room of the United States 
 Circuit Court of Appeals, at which a formal minute should 
 be presented to the Court, on behalf of the Bar, and your 
 committee recommends that Samuel Dickson, Esq., Chan- 
 cellor of the Liw Association, an ex-President of the Penn- 
 sylvania Bar Association, and a member of the Board of 
 Governors of the Lawyers' Club, be requested to draft and 
 present this minute to the Court." 
 
 Colonels Wendell P. Bowman, Henry T. Dechert and 
 Robert Ralston, Jr., were appointed as marshals of the 
 procession of the Bench and Bar; the Presidents of the 
 
Three Law Classes of the University of Pennsylvania, were 
 appointed marshals of their respective classes. 
 
 The following was the official form of invitation and 
 the order of exercises : 
 
 The Law Association of Philadelphia, 
 
 The Lawyers' Club of Philadelphia, 
 
 The Pennsylvania Bar Association, 
 
 The Law School of the University of Pennsylvania, 
 
 request the honor of your presence 
 
 at the celebration of 
 
 "John Marshall" Day 
 
 in PhiJadelphia, 
 on Monday, February 4th, 1901. 
 
 ORDER OF EXERCISES 
 "JOHN MARSHALL" DAY 
 
 Monday, February 4, 1901. 
 
 A. M. — Eleven — Presentation of minute to the Judges of the United 
 States Courts, in the Circuit Court of Appeals, 
 United States Government Building, by Samuel 
 Dickson, Esquire, Chancellor of the Law Asso- 
 ciation of Philadelphia, on behalf of the Bar. 
 
 To be responded to by one of the Judges of the United 
 States Court. 
 
 Eleven-twenty — Procession of the Bench, Bar and Students at Law 
 to Musical Fund Hall. 
 
 Eleven-thirty — -Address in Musical Fund Hall by the Honorable 
 James T. Mitchell, Justice of the Supreme Court 
 of the Commonwealth of Pennsylvania. 
 
 MUSIC by hassler's orchestra 
 
 All of the Couits of the United States ; the Supreme 
 Court of Pennsylvania, and Courts of the County of 
 Philadelphia, in response ^o the request of the General 
 Committee, adjourned on Monday, February 4, 1901, John 
 ■Marshall Day, with the exception of the United States Cir- 
 
7 
 
 cuit Court of Appeals, which held a special session, to 
 receive the Minute presented to the Court on behalf of the 
 Bar. This Minute was prepared by Samuel Dickson, Esq., 
 the Chancellor of the Law Association, and was presented 
 in the unavoidable absence of Mr. Dickson, on account of 
 sickness, by Richard C. Dale, Esq., of the Philadelphia Bar. 
 The following official notice of formation and order of 
 procession was issued by the marshals : 
 
 "JOHN MARSHALL" DAY 
 Formation and Order of Procession 
 
 " For the convenience of the members of the Bar attend- 
 ing the ceremonies on "John Marshall " Day, February 4, 
 it is requested by the Committee that the following forma- 
 tion and order of procession be observed: 
 
 "The formation will take place at 11 o'clock, and the 
 procession will move on the completion of the ceremonies 
 in the United States Court of Appeals. 
 
 "The First Division will form in the north corridor of 
 the third floor of the Post Office Building; the Second Divis- 
 ion will form in the east corridor of the same floor; the 
 Third Division will form in the east and south corridors of 
 the same floor; the Fourth Division will form on the north 
 side of Chestnut Street west of Ninth Street. The points 
 of formation will be indicated by placards. 
 
 "The First Division will be composed of the judiciary, 
 the committees and their guests, and members of the Bar 
 admitted prior to i860. Marshal, Wendell P. Bowman. 
 
 "The Second Division will be composed of members of 
 the Bar admitted from i860 to 1880. Marshal, Henry T. 
 Dechert. 
 
 "The Third Division will be composed of members of 
 the Bar admitted since 1880. Marshal, Robert Ralston. 
 
 "The Fourth Division will be composed of the members 
 of the Law Academy of Philadelphia, the under-graduates 
 
of the Law School of the University of Pennsylvania, the 
 under-graduates of the Philadelphia Law School of Temple 
 College, and other students-at-law. Marshal, John McClin- 
 tcck, Jr." 
 
 The expenses of the celebration, of the publication of 
 the proceedings and of placing a suitable memorial tablet 
 in the room of the United States Circuit Court of Appeals, 
 were borne by a voluntary subscription of the members of 
 the Bar of the City of Philadelphia. 
 
 A meeting of the General Committee was held on the 
 eighteenth day of February, 1901, at which it was formally 
 resolved, that the residue of the moneys subscribed and such 
 other funds as may be received, should be used in procuring 
 a tablet to be placed in the room of the United States Circuit 
 Court of Appeals, and if the funds of the Committee should 
 be sufficient, a tablet should also be placed on the house No. 
 426 Walnut Street (the old Crimm Boarding House) where 
 Chief Justice Marshall died in 1835. 
 
 It was further resolved, that the selection of the two 
 tablets, and the publication of the proceedings of the cele- 
 bration, should be referred to a special committee as fol- 
 lows: 
 
 Henry Flanders, Esq., 
 
 Hon. George M. Dallas, 
 
 Samuel Dickson, Esq., 
 
 Victor Guillou, Esq., 
 
 Joseph DeF. Junkin, Esq., 
 together with John Cadwalader, Esq., the Chairman and 
 William H. Staake, Esq., the Secretary of the General 
 Committee. This Committee organized on the twenty-fifth 
 day of February, 1901, by the selection of Henry Flanders, 
 Esq., as Chairman and William H. Staake, Esq., as Secre- 
 tary. Messrs. Dickson, Guillou and Junkin, were appointed 
 a sub-committee to propose and report the literary compo- 
 
sition of the inscription to be placed upon the tablet in the 
 Court room. 
 
 Messrs. Cadwalader, Junkin and Guillou, a sub-com- 
 mittee to propose and report upon the physical composition 
 and form of the tablet and the contract for its erection. 
 
 Messrs. Cadwalader, Dallas and Staake, a sub-commit- 
 tee to confer with the Judges of the United States Circuit 
 Court of Appeals, as to an appropriate site for the tablet. 
 
 By resolution of the Committee the following will be the 
 inscription upon the tablet : 
 
 Upon February 4th, 1901 
 being the One Hundredth Anniversary of the day upon which 
 
 JOHN MARSHALL 
 
 took his seat as Chief Justice of the Supreme Court of the United States 
 the Chancellor of the Law Association of Philadelphia 
 on behalf of 
 
 The Law Association of Philadelphia 
 
 The Lawyers' Club of Philadelphia 
 
 The Pennsylvania Bar Associatjon 
 
 The Department of Law of the University of Pennsylvania 
 
 acting for the members of the Bar of the 
 
 Supreme Court and other Courts of Pennsylvania, 
 
 moved the United States Circuit Court of Appeals 
 
 for the Third Circuit 
 
 then specially convened 
 
 to enter upon its records a Minute 
 
 expressing their appreciation of his character and work 
 
 And it was thereupon 
 SO ORDERED. 
 
lO 
 
 THE MEETING IN THE UNITED STATES 
 
 CIRCUIT COURT OF APPEALS, MONDAY, 
 
 FEBRUARY 4, 1901, AT 11 A. M. 
 
 The Honorable George M. Dallas, the Senior Judge, 
 presided. Sitting with him were the Honorable George 
 Gray, Honorable William Butler, Honorable John B. 
 McPherson and Honorable Andrew Kirkpatrick. The ora- 
 tor of the day. Honorable James T. Mitchell, LL.D., was 
 also present upon the bench. 
 
 THE COURT BEING FORMALLY OPENED 
 
 Mr. Richard C. Dale, of the Philadelphia Bar, in the 
 absence of Mr. Samuel Dickson, the Chancellor of the Law 
 Association of Philadelphia, then addressed the Court, as 
 follows : 
 
 May it please your Honors : 
 
 At the approach of the one hundredth anniversary of 
 the day on which John Marshall took his seat upon the Bench 
 of the Supreme Court of the United States, there grew up a 
 feeling throughout the country that the day should be marked 
 by appropriate exercises, in which the services of the great 
 Chief Justice might be recalled and some expression given to 
 the affectionate veneration in which his memory is held by 
 the Bench and Bar of the United States. For reasons which 
 will at once suggest themselves to your Honors, it was 
 recognized that, irrespective of what might be done elsewhere, 
 it was essential that the day should be properly observed in 
 this city, and the Law Association of Philadelphia accordingly 
 appointed a Committee, and requested the appointment of 
 similar committees by the Pennsylvania Bar Association and 
 the Lawyers' Club of Philadelphia, that they might unite in 
 making the necessary arrangements for the occasion. A joint 
 
1 1 
 
 Committee was then made up from representatives of the three 
 organizations to take charge of the proceedings, and, by way 
 of introduction to the exercises of the day, the Committee 
 appointed the Chancellor of the Law Association to prepare 
 and present a Minute to your Honors, to be entered upon the 
 records of the Court ; and with your Honors' permission, I 
 will now read the Minute prepared in pursuance of such 
 appointment. 
 
 And now, February 4, 1901, the Law Association of 
 Philadelphia, the Pennsylvania Bar Association, the Lawyers' 
 Club of Philadelphia, and the Law Department of the Uni- 
 versity 'of Pennsylvania, acting on behalf of the Bar of Penn- 
 sylvania, move that the following Minute be entered upon the 
 records of this Court : 
 
 It is the hereditary privilege of the members of this Bar 
 to express, upon every proper occasion, their veneration for 
 the character of Chief Justice Marshall and their appreciation 
 of his judicial work. He had been personally well known to 
 the lawyers of this City while serving as a member of the 
 House of Representatives in the session of 1799— 1 800, and 
 when again herein 1 831, he was requested by the Bar of 
 Philadelphia to give sittings to Henry Inman, who painted the 
 portrait which has passed into the custody of the Law Associ- 
 ation and is the one authentic record of the form and features 
 of the original. It was in pursuance, also, of the action taken 
 at a meeting of this Bar, upon the announcement of his death, 
 that the sculptor. Story, the son of his old colleague and 
 friend, was engaged to model the statue now placed at the 
 foot of Capitol Hill ; but better than the hkeness of the outer 
 man by painter or sculptor, is the masterly delineation of his 
 mind and life in the Memorial Addresses delivered by Horace 
 Binney and William Henry Rawle, and in the biographies by 
 members of the Bar of this City, still living. Thus by the 
 canvas of the painter and the bronze of the sculptor, and by 
 words more lasting than either, this Bar has been diligent to 
 
12 
 
 preserve the memory of what manner of man the Chief Justice 
 was in person and in achievement. 
 
 To the estimate made up by men so competent to meas- 
 ure his worth and to pass judgment upon his work, nothing 
 can profitably be added ; and in his case contemporary 
 opinion is exceptionally trustworthy. He was so simple and 
 unassuming, so free from self-seeking or from any thought of 
 self — 30 clear in his great office — and of such transparent 
 simplicity and sincerity of character, that it has always been 
 manifest that he was at heart just what he seemed to be, and 
 it would never occur to any eulogist to claim, as a merit, that 
 no record could ever leap to light to shame his memory. Nor 
 is it possible, perhaps, to appreciate his opinions at this day 
 as fully as at the time of their delivery. They are now 
 familiar to every lawyer, and are become an integral part of 
 the great body of law, which is learned by the student as 
 established and accepted doctrine ; but the lawyers who 
 declared, in the address presented upon the occasion of his 
 visit in 183 1, that they could not but 
 
 " consider the whole nation indebted to one who 
 for so long a series of years has illuminated its juris- 
 prudence and enforced with equal mildness and firmness 
 its constitutional authority ; who has never sought to 
 enlarge the judicial power beyond its proper bounds, nor 
 feared to carry it to the full extent that duty required', ' 
 
 belonged to a period when the questions with which he had 
 been called upon to deal and decide were still unsettled, and 
 when the law libraries of the day were barren of authority, so 
 that they could understand the full force of Mr. Justice Story's 
 saying that " these exquisite judgments were the fruits of his 
 own unassisted meditations.'' 
 
 It is true, however, that time now enables us to 
 understand, as they could not, how broad and deep 
 and abiding was the impress which the Chief Justice 
 was making upon the institutions and jurisprudence of 
 the country. It is now apparent that the Federal Judiciary 
 
13 
 
 took shape and earned its commanding place in the life of 
 the nation through his labors. He began by proving that the 
 Government of the United States deserved, as he himself ex- 
 pressed it, " the high appellation of a government of laws and 
 not of men." The course of reasoning by which he demon- 
 strated that all the departments of the Government were 
 defined and limited by the Constitution, and that an Act of 
 Congress, contrary to the Constitution was not law, and that 
 the Courts as well as other departments were bound by that 
 instrument, compelled assent. The Constitution was thus 
 made in fact the supreme law of the land and the test by 
 which the Court might be required, by any suitor, to measure 
 the validity of any other law and the legality of any executive 
 act. What followed was the development and illustration of 
 this seminal principle, and in working out the problems as they 
 subsequently arose, he laid down canons for the construction 
 of the Constitution of the United States which are accepted 
 as final authority, not only in determining the true meaning of 
 the Constitution of the United States, but of the Constitution 
 of every State in the Union ; and while his judgments fixed 
 the relations of the Federal and State Governments and of the 
 States as between themselves ; of the Executive and the Leg- 
 islature to the Judiciary, and to one another, and defined the 
 immunities and duties of foreign sovereigns — they did a work 
 no less important in making effectual the safeguards of per- 
 sonal rights and of private contracts, of the freedom of inter- 
 state commerce and of the navigable waters of the United 
 States. 
 
 When his work is thus surveyed as a whole, it is mani- 
 fest that this plain, simple man, who eschewed all ceremony 
 and whose pleasure it was to live undistinguished from his 
 fellow-citizens ; who wore none of the insignia and wielded 
 none of the resources of worldly rank or power, was exercising 
 an influence — decisive then, and accumulating and reduplicat- 
 ing ever since — greater than that of any statesman or soldier 
 at home or abroad. The monarchs of Europe, who were his 
 
14 
 
 contemporaries, are scarcely remembered by name, with the 
 exception of one, who gave his name to a code, compiled by 
 others, and the Code Napoleon is the only memorial left of the 
 imperial sway which dominated the Continent. But the work 
 of Marshall Hves to-day and is more potent than ever. It 
 constitutes an integral part of the body of law which enters 
 into the daily life of every citizen, which maintains the auton- 
 omy of the States and the integrity of the Union, and by which 
 the civilized nations of the world regulate their intercourse ; 
 and what is possibly of greater importance, the ready accept- 
 ance by the people of the United States of the decisions of 
 their Supreme Court, in loyal submission to the supremacy of 
 the law, is largely due to the impression made upon the country 
 by his character and career as a man and as a judge. 
 
 To the tribunal which secured under him as its pre- 
 siding magistrate, the confidence of a nation of freemen, 
 sovereign states gladly submit their strifes, and the destiny 
 of millions of an alien race now awaits its decision. 
 When the greatest of English Chancellors was about to 
 determine the rights and boundaries of " two great Provin- 
 cial governments" — as he styled the colonies of Maryland and 
 Pennsylvania — he said that " the cause was of a nature worthy 
 the judicature of a Roman Senate rather than a single judge, 
 and his consolation was that if he should err in his judgment, 
 there was a judicature equal in dignity to a Roman Senate 
 that would correct it." The colonies of which he was to 
 draw the boundary line were then comparatively uninhabited, 
 but now equal or excel in numbers and wealth the Kingdom 
 of Great Britain at the time when Lord Hardwicke took his 
 seat upon the woolsack ; and the Supreme Court would pro- 
 ceed to decide to-day a question of boundaries or any other 
 controversy between them as if it were a question between 
 private litigants. Compared to such an arbitrament as an 
 instrument for ascertaining and declaring the very right of a 
 dispute, armies and navies are but the surviving agencies of a 
 lower civilization ; and if the future is to attain to the ideal 
 
15 
 
 of a " Parliament of man and a Federation of the world," 
 it will find the exemplar of its ultimate judicature in the Court 
 which John Marshall made a living reality. 
 
 It is, therefore, with heartfelt gratitude that we assemble 
 on this anniversary to make, once more, formal and public 
 acknowledgment of the obligation of our country and our 
 profession to the wise and upright Judge, who, one hundred 
 years ago, assumed the duties of Chief Justice of the Supreme 
 Court of the United States. 
 
 The Minute having been presented, the Honorable 
 George M. Dallas replied as follows : 
 
 Gentlemen of the Bar : 
 
 The constrained absence of Mr. Justice Shiras and of 
 Judge Acheson, which we all regret, is especially deplored by 
 that member of the court to whom, in consequence, the honor 
 of speaking on its behalf has most inauspiciously descended. 
 We regret, too, that Judge Buffington and Judge Bradford 
 have been prevented from attesting by their presence the 
 sympathetic interest which we have been assured they feel 
 in the memorable proceedings of to-day. 
 
 This court has been convened solely for the purpose of 
 enabling us to unite with you, and with our brethren of the 
 Pennsylvania courts, in rendering tribute to the memory of 
 one whose title to the homage of the noble profession to 
 which we all belong time has but strengthened and con- 
 firmed. The value of John Marshall's services to his 
 country's jurisprudence can, even at this day, scarcely be 
 appreciated, and we will make no attempt to estimate it. His 
 meed of praise could not be reckoned in hurried words, and 
 the teeming field of befitting eulogy has been so happily 
 allotted as to warn us that any encroachment there would be 
 a trespass without pretext of occasion or color of excuse. 
 There is, however, abundant precedent for borrowing from 
 Marshall himself the best expression of the eligible thought, 
 and this, at least, may now be done, and yet no bounds be 
 
i6 
 
 broken ; for it seems to be peculiarly appropriate that in this 
 
 place, where justice is judicially administered, there should 
 
 be applied to our most perfect pattern of judicial excellence, 
 
 the singularly apposite encomium with which he closed his 
 
 Life of Washington. We need do no more than recall it to 
 
 remembrance : its pertinence is plain. 
 
 " Endowed by nature with a sound judgment, and an accurate 
 discriminating mind, he feared not that laborious attention which made 
 him perfectly master of those subjects, in all their relations, on which 
 he was to decide; and this essential quality was guided by an unvarying 
 sense of moral right, which would tolerate the employment, only, of 
 those means that would bear the most rigid examination; by a fairness 
 of intention which neither sought nor required disguise; and by a 
 purity of virtue which was not only untainted, but unsuspected." 
 
 Gentlemen, the felicitous memorial which you have 
 caused to be so suitably presented, is unanimously concurred 
 in by the court, and will be transcribed at length upon its 
 minutes. 
 
 The proceedings in the United States Circuit Court of 
 Appeals being closed, the Court adjourned. 
 
 The Court room notwithstanding the inclemency of the 
 weather was crowded with members of the Bench and Bar, 
 to its full capacity. 
 
 THE PROCESSION OF THE BENCH AND BAR 
 
 Following the adjournment of the Court, the mem- 
 bers of the Judiciary of the United States Courts, of the 
 Supreme and Superior Courts of the Commonwealth of 
 Pennsylvania, of the Courts of counties outside of Phila- 
 delphia, and of the Courts of Common Pleas and the 
 Orphans' Court of the County of Philadelphia, together 
 with visiting members of the bar, the members of the bar 
 of the County of Philadelphia, and the students of the Law 
 School of the University of Pennsylvania, the members 
 of the Law Academy of Philadelphia, the students of the 
 Philadelphia Law School of Temple College and the 
 unorganized body of students at law, properly marshaled, 
 formed in procession in the following order : 
 
17 
 
 The First Division composed of the judiciary, the com- 
 mittees and their guests, and members of the Bar admitted 
 prior to i860. Marshal, Wendell P. Bowman. 
 
 The Second Division composed of members of the 
 Bar admitted from i860 to 1880. Marshal, Henry T. 
 Dechert. 
 
 The Third Division composed of members of the Bar 
 admitted since 1880. Marshal, Robert Ralston. 
 
 The Fourth Division composed of the members of the 
 Lawr Academy of Philadelphia, the under-graduates of the 
 Law School of the University of Pennsylvania, the under- 
 graduates of the Philadelphia Law School of Temple Col- 
 lege, and other students-at-law. Marshal, John McClin- 
 tcck, Jr. 
 
 The line of march was from the United States Govern- 
 ment Building at Ninth and Chestnut Streets, along the 
 south side of Chestnut Street to Independence Hall, through 
 the main hallway, passing the old Liberty Bell — which was 
 cracked in tolling for the funeral of Chief Justice Mar- 
 shall — into Independence Square, through the square in 
 sight of the house in which Chief Justice Marshall died, 
 across Sixth Street, into and across Washington Square 
 to Locust Street, and along Locust Street to Musical Fund 
 Hall, where the principal celebration took place. 
 
 The order of exercises at the Hall was as follows : 
 
 Music by Hassler's Orchestra. 
 
 Prof. Mark Hassler, Conductor, 
 
 Meeting called to order by Hon. George M. Dallas, Chairman. 
 
 Prayer by Right Reverend O. W. Whitaker, D.D., Bishop of the 
 
 Diocese of Philadelphia. 
 
 Music. 
 
 Introductory Address, Hon. George M. Dallas. 
 Address, "John Marshall," Hon. Ja.wes T. Mitchell, LL.D. 
 
 Music. 
 
i8 
 
 PROCEEDINGS IN MUSICAL FUND HALL 
 
 The meeting in Musical Fund Hall was presided over 
 by the Honorable George M. Dallas, of the United States 
 Circuit Court, who in calling the meeting to order said : 
 Ladies and Gentlemen: 
 
 The high dignity of presiding in this notable assemblage 
 having devolved upon me, I now call the meeting to order. 
 The Right Reverend O. W. Whitaker will open its proceed- 
 ings with prayer. 
 
 PRAYER 
 
 by the 
 RIGHT REVEREND O. W. WHITAKER, D.D. 
 
 O Lord, our Heavenly Father, Almighty and everlast- 
 ing God, Who has safely brought us to this day ; defend us in 
 the same with Thy mighty power; and grant that this day 
 we fall into no sin, neither run into any kind of danger ; but 
 that all our doings being ordered by Thy governance, may 
 be righteous in Thy sight, through Jesus Christ our Lord. 
 
 Amen. 
 
 We thank Thee, O God, for the land in which we live : 
 for our civil, religious, educational, and social privileges, 
 and for all the blessings which we enjoy. 
 
 We thank Thee that Thou hast blessed the United States 
 and this Commonwealth with an able and honest judiciary. 
 
 We thank Thee for all the great and good men whom 
 Thou hast raised up to be leaders in our nation's history. 
 We thank Thee for George Washington, and especially do 
 we thank Thee at this time for John Marshall, whom Thou 
 didst call one hundred years a^o to be the Chief Justice of 
 the United States, and in whose memory we are here 
 assembled. 
 
 We thank Thee for his great ability, his incorruptible 
 integrity, his reverence for truth, his devotion to duty, his 
 love for righteousness. 
 
19 
 
 We thank Thee for his interpretation of the Constitu- 
 tion; for his clear perception of the respective functions of 
 the Departments of our Government, for the standing and 
 character which he gave to the Supreme Court. 
 
 We thank Thee for his pure domestic hfe; for his 
 modesty and courtesy; for his recognition of merit whether 
 in an opponent or an associate ; for his unwavering faith in 
 Jesus Christ as the Redeemer and Saviour of men. 
 
 May we draw inspiration from the contemplation of his 
 character and life, and be led to follow his example in manly 
 and righteous living, in fearless advocacy of the truth wher- 
 ever it may lead. 
 
 O Almighty Lord, Who fashionest the hearts of men 
 and considerest all their works : Grant, we beseech Thee, to 
 us and all the people of this land, the spirit of obedience to 
 Thy commandments; that, walking humbly in Thy fear, 
 under Thy mighty protection, we may dwell in righteousness 
 and peace. Defend our liberties ; preserve our unity ; save us 
 from lawlessness, dishonesty and violence ; from discord and 
 confusion; from pride and arrogance, and from every evil 
 way. Continue Thy goodness to us, that the heritage 
 received from our fathers may be preserved in our time and 
 transmitted, unimpaired, to the generations to come ; that all 
 nations of the earth may know that Thou, O Lord, art our 
 Saviour and mighty Deliverer and our King forever. Grant 
 this, we beseech Thee, through Jesus Christ our Lord, Who 
 has taught us when we pray to say : 
 
 Our Father, Who art in heaven, hallowed be Thy 
 Name, Thy kingdom come, Thy will be done on earth as it is 
 in heaven. Give us this day our daily bread, and forgive us 
 our trespasses, as we forgive those who trespass against us. 
 And lead us not into temptation, but deliver us from evil, for 
 Thine is the kingdom, and the power, and the glory, forever 
 and ever. 
 
 Amen. 
 
20 
 
 INTRODUCTION 
 
 of the 
 
 HONORABLE JAMES T. MITCHEl-L 
 (the Orator of the Day) 
 
 by the 
 
 HON. GEORGK M. DALLAS 
 
 We have come together, ladies and gentlemen, to com- 
 memorate the accession to the office of Chief Justice of these 
 United States of the foremost in the line of illustrious 
 lawyers who have adorned that exalted station, and to 
 acclaim our grateful sense of the inestimable benefits which, 
 after the lapse of one hundred years, our country still derives 
 from that event. For this opportunity to evince the venera- 
 tion with which as citizen, soldier, statesman and jurist, we 
 bear John Marshall in remembrance, we are indebted to the 
 Law Association of Philadelphia, the Lawyers' Club of Phil- 
 adelphia, the Pennsylvania Bar Association, and the Law 
 School of the University of Pennsylvania. The members 
 of the joint committee of these several bodies have dis- 
 charged all the duties confided to them with ardent zeal, and 
 now — despite the inclemency of the weather — assured suc- 
 cess ; but, above all, they are to be congratulated upon having 
 most aptly selected, and most fortunately secured, as the 
 orator of the day, a distinguished member of the highest 
 judicial tribunal of this Commonwealth, at whose feasts of 
 reason, good digestion always waits on appetite. I know it 
 will be as gratifying to you to receive as it is to the chair to 
 present the Honorable James T. Mitchell. 
 
21 
 
 Mr. Justice Mitchell : 
 
 Brethren of the Bench and the Bar 
 Ladies and Gentlemen: 
 
 To the dweller on the plain, the neighboring hills which 
 shut out the distant horizon, seem to be the summits of the 
 earth. But the traveler as he journeys onward, finds the 
 encircling heights gradually sinking to the general level of 
 his enlarged and widening view, till the perspective brings 
 all things to their true proportions. 
 
 In the estimate of men and of events the perspective 
 of time is no less potential and no less necessary than the 
 perspective of distance in the estimation of things visible. 
 The popular idols of to-day are forgotten of the morrow, 
 while the silent and unnoticed great come forward to their 
 true place. It is the habit of our minds to measure by 
 periods. The new year suggests the retrospect of its pre- 
 decessor with respect to ourselves and our daily lives, and 
 so the new century naturally turns our thoughts to the 
 wider field of history and our country in the century that 
 has closed. The small prominences of ephemeral measures 
 and men have come down to the common level, but when 
 through the long vista of a hundred receding years one lofty 
 figure has steadily risen above even the height at which its 
 cotemporaries placed it, then indeed we have the last and 
 indisputable proof of its true eminence. 
 
 We have lived in an age of centennial commemorations. 
 Twenty-five years ago, here in its birthplace, the Republic 
 celebrated the first century of its existence, and revealed to 
 itself as well as to the half incredulous world the unparalleled 
 progress of the thirteen weak and scattered colonies to a place 
 in the front rank of tbe nations of the earth. Since then we 
 have had other centennials with appropriate celebrations, but 
 none more notable than that which brings us together to-day. 
 We are here to celebrate one of the greatest of the heroes 
 of peace, to pay our willing and affectionate tribute of appre- 
 
22 
 
 ciation, of gratitude and of reverence to great public services, 
 exalted personal character, and clear pre-eminence in the least 
 showy and least obtrusive path of all the fields of intellectual 
 effort. There is no criterion of any man's w^orth and v^^ork so 
 sure as professional approval, and in no profession is judg- 
 ment more unerring than in the lawyer's final estimate of the 
 judge. For the judge must do his daily work in the open, 
 before a trained and sharply observant audience of critics 
 learned in the subjects on which he is called to act, more 
 minutely informed on each case than he can be, and viewing 
 it with the stereoscopic result of eyes sharpened by individ- 
 ual interests at a different and conflicting angle. When, 
 therefore, at the «nd of a century we find his countrymen, led 
 by the legal profession, turning spontaneously to a fitting 
 commemoration of the day that John Marshall took his seat 
 as Chief Justice of the Supreme Court of the United States, 
 we have a tribute not due to the glamour of temporary popu- 
 larity, but to the cool and deliberate judgment of men who 
 know. The honoi: of the first public suggestion belongs, I 
 believe, to the Bar of Illinois. On a bronze tablet in one of the 
 busiest streets of the second city in the Union you may read 
 the date 1812 and recall from the accompanying inscription 
 that eleven years after he took his seat as Chief Justice all 
 that Marshall knew of the site of Chicago was the dread 
 news that came from the depths of the Western wilderness 
 that the Indians had massacred the little garrison of Fort 
 Dearborn. History affords no more striking note of the 
 changes a century may produce than that the site of that 
 gallant little out-post, now the home of a larger population 
 than that of the three largest states in 1801, first summons 
 the Bar of the country to the commemoration of the great- 
 ness of the Chief Justice whose work was done for a young 
 and experimental government, but was laid down on such 
 broad and sure and permanent lines that expanding territory 
 and teeming populations have riot lessened its usefulness, nor 
 in the least impaired its vigor. 
 
The suggestion once made struck a responsive chord 
 over the whole land, and to-day his fellow citizens, his breth- 
 ren in the profession, are gathered in every centre of legal 
 activity to bear witness that the lofty figure who was placed 
 at the head of the judiciary a hundred years ago has con- 
 tinued to grow in height and eminence with the increasing 
 years. 
 
 John Marshall was born September 24, 1755, at a small 
 place called Germantown, now Midland, within the sunset 
 shadow of the Blue Ridge in the valley of Fauquier County, 
 Virginia. His ancestor who had been a royalist cavalry offi- 
 cer in the service of King Charles, came to Virginia and 
 settled in the famous county of \Vestmoreland, the birth place 
 of Washington, of Monroe, of Richard Henry Lee and his 
 famous brothers. There his descendant, Thomas, father of 
 the Chief Justice, was born in the same year with Washing- 
 ton, was schoolmate with him in the scanty school days of 
 their youth, acted with him as assistant in making surveys for 
 the great landed proprietor of that day, Lord Fairfax, and 
 served under him as Colonel of the Third Virginia Line at 
 Brandywine, at Valley Forge and at Trenton. 
 
 In the history of that time few things are more notable 
 than the precocity of the men. The situation called for early 
 development. Men were scarce and work of every kind was 
 all around them waiting for their hands. Energy and activ- 
 ity were in the air they breathed, and the impatience of the 
 youthful spirit to assume the rights and duties of manhood, 
 was stimulated by the surrounding opportunities at an age 
 which in an older community would have found them con- 
 tented to be school boys. The surveys, the field notes and the 
 maps made by Washington at the age of sixteen, some of 
 which you may see to-day in the collections of the Historical 
 Society of Pennsylvania, attest the maturity as well as the 
 activity of mind and body which resulted in the Virginia 
 Colonel at twenty-three taking practical command and cover- 
 
24 
 
 ing the retreat of the British regulars on the banks of the 
 Monongahela. And the youthful Washington was but 
 primus inter pares, with his associates. 
 
 Thomas Marshall moved to Fauquier County, married 
 Mary Isham Keith, the daughter of an Episcopal minister, 
 and they had fifteen children of whom John was the oldest. 
 Fauquier was a frontier county, sparsely settled, and the 
 opportunities of education of the future Chief Justice were 
 limited. At the age of fourteen he was sent to Westmore^ 
 land to the school of the Rev. Archibald Campbell, where 
 he had James Monroe for a fellow student. After a year 
 there he returned home and received further instruction in 
 the classics from the Rev. James Thomson, for another 
 year. This ended his regular education, but his father, 
 though of limited early opportunities, was a diligent reader, 
 and not only instructed his son in mathematics, but guided 
 his taste in reading the best English authors both in prose 
 and. poetry. Judge-Story relates how the Chief Justicp was 
 accustomed to say with affectionate emphasis, "My father 
 was a far abler man than any of his sons. To him I owe 
 the solid foundation of all my own success in life." It is 
 recorded of the Chief Justice that at twelve years of age 
 he had copied the whole of Pope's Essay on Man, and that 
 his early taste was for poetry, of which he not only read but 
 wrote a great deal. Prof. Theophilus Parsons in some 
 Reminiscences of Marshall says that he early showed the 
 sagacity which always distinguished him, for though he 
 wrote a good many verses he never published any of them. 
 The genius of the Chief Justice was certainly not poetic, 
 yet I have no doubt it found nourishment as well as recrea- 
 tion in his early reading in that field, and the pure and classic 
 English of his writings may be justly attributed in part at 
 least to a taste fashionfed on those incomparable models. 
 Both in matter and in manner it must be admitted that 
 Pope's Essay on Man is very solid food for a boy of twelve. 
 
 A little later his attention was given to the more serious 
 
25 
 
 study of military matters. He was born, as we have seen, in 
 the year of Braddock's defeat, the French and Indian war 
 was almost within his recollection and must have been the 
 topic of frequent discussion in all his boyhood, and as he 
 grew towards manhood the disputes of the colonies with 
 the mother country and the prophetic feeling of the approach- 
 ing collision, turned his mind in that direction. When the 
 news came that blood had been shed at Lexington he was 
 already lieutenant of a militia company of which his father 
 had been captain and during the same summer he was 
 appointed lieutenant in a Battalion of Minute Men, and 
 saw his first service in the encounter at Great Bridge near 
 Norfolk with the Loyalists under Lord Dunmore. In July, 
 
 1776, he was made lieutenant in the Eleventh Virginia 
 Regiment of the Continental Line, became captain in May, 
 
 1777, a-nd remained in active service till 1779, having been 
 present at the battles of Brandywine, Germantown, and 
 Monmouth, the assault at Stony Point and at Paulus Hook, 
 as well as through the memora"bJe winter at Valley Forge. In 
 1779 the number of officers in the Virginia line being found 
 excessive he was ordered to return to Virginia to await 
 the raising of fresh levies, but these being delayed, he 
 resigned. He re-entered the army, however, in October, 1780, 
 on the invasion of Virginia by the British under Arnold, and 
 served through that campaign. 
 
 On this occasion when we are met to commemorate his 
 entrance on judicial office, I must necessarily touch thus 
 briefly his military career, but it would be a mistake to pass 
 it lightly by as a mere incident of his youth, and doubly so to 
 overlook its effect upon him. It colored his whole future 
 life and opinions. Though his rank was not high he appears 
 to have impressed himself upon his fellow officers not only 
 as a brave and patriotic soldier, but also as a man of clear 
 and impartial mind, with a judgment mature beyond his 
 years. He was often called upon to act as arbiter of private 
 disputes and officially as judge advocate, and earned the 
 
26 
 
 affection as well as the respect of officers and men. A fellow 
 officer (Lieutenant Philip Slaughter) who left a record of 
 his experiences, wrote of him, "Marshall was the best tem- 
 pered man I ever knew. During our sufferings at Valley 
 Forge nothing discouraged, nothing disturbed him. If he 
 had only bread to eat, it was just as well; if only meat it 
 made no difference. If any of the officers murmured at their 
 deprivations he would shame them by good natured raillery, 
 or encourage them by his own exuberance of spirits." But 
 the effect of his military experience on the man himself was 
 even more notable. It broadened his ideas, his opinions, his 
 feelings, and fixed indelibly his ardent patriotism. He entered 
 'the army a Virginian, he left it an American. He' has him- 
 self written, "I found myself associated with brave men from 
 different states who were risking life and everything valuable 
 in a common cause believed by all to be most precious, and 
 I was in the habit of considering America as my country, and 
 Congress as my government." 
 
 In 1779, as already said, he returned to Virginia, and 
 reported at Williamsburg where the legislature was then sit- 
 ting. While waiting for the fresh forces to be raised, he 
 commenced his professional studies with a course of lectures 
 on law by the famous Chancellor Wythe of William and 
 Mary College, also attending a course on Natural Philosophy 
 by the learned and accomplished Madison, afterwards Bishop 
 of Virginia. With the short interruption of the campaign 
 of 1780, he continued his studies at Williamsburg, was 
 admitted to the bar in 1781 and returned to his native county 
 of Fauquier. 
 
 He rose rapidly into practice and a position of note. 
 He was himself fond of attributing this to the partiality of 
 "fiis former friends and companions in arms, and perhaps with 
 some justice, for he knew their sufferings, their necessities, 
 and their wrongs, and he lacked neither courage nor ability 
 to espouse their cause. But we know there were more potent 
 
27 
 
 reasons than this for his success. How many of my 
 younger hearers to-day have any adequate realization of the 
 hardships and miseries of that time, of the poverty and dis- 
 tress of the people, the exhaustion and helplessness of the 
 government ? The v^^ar practically ended with the surrender 
 of Cornwallis at Yorktown, in October, 1781, and officers 
 and men began to return to their homes. But peace was not 
 yet, and until peace nothing was settled or secure. A cessa- 
 tion of hostilities in Europe, or a resolute War Minister in 
 England might at any time see the renewal of the effort to 
 subdue the colonies and all the patriots' exertions and sacri- 
 fices must begin again or their cause be finally lost. The men 
 who returned home at the end of their enlistment returned 
 to houses falling into decay, to fences gone, and unploughed 
 fields grown rank with weeds, with herds scattered or per- 
 ished, and desolation and ruin impending on every hapd. 
 The Marshall family were well to do among their neighbors, 
 yet a great-granddaughter has told (8 Green Bag, 480) how 
 when John came from the army to Fauquier to see his par- 
 ents, bringing with him some French officers, his companions, 
 his mother made into bread a little wheat flour, the last she 
 had which had been saved for some such hospitable occa- 
 sion, and the young children cried for some of the unwonted 
 dainty, so that John first learned of the straits to which his 
 family were reduced. It is added that with characteristic 
 self denial he avoided eating any of the bread so that the 
 younger children might have some. Every biography of 
 every officer of the time bears witness to the same condition 
 of things, scant food, no supplies, no money. The commis- 
 sioned officers of the Quartermaster's Department, under so 
 capable and so energetic a Quartermaster General as Nathan- 
 ael Greene memorialized Congress that a year's salary in the 
 depreciated currency was scarcely sufficient to buy a suit of 
 clothes, and even that salary was unpaid. 
 
 This was the state of affairs when Marshall came to the 
 bar. Virginia was an agricultural state, and the wealth of 
 
28 
 
 the people was in their land. The land was in the condi- 
 tion I have already alluded to, and the troubles that arose 
 from neglected and deserted homesteads or encroaching 
 neighbors went inevitably into litigation. Fauquier, more- 
 over was a frontier county, and "land cases" from over- 
 lapping surveys, conflicting boundary lines, dubious titles and 
 the like, filled the dockets of the courts. To such business 
 Marshall brought special adaptation from his knowledge of 
 the country and the people, his practical familiarity with 
 the questions, his clear and penetrating mind, his untiring 
 industry and the confidence inspired everywhere by his per- 
 sonal character. It was inevitable that he should come 
 rapidly to the front of the bar. 
 
 In 1782, at the age of twenty-seven, he was elected by 
 his neighbors in Fauquier to the legislature, and soon after 
 moved to Richmond. The bar there was one of the most dis- 
 tinguished in the country. It was led by Patrick Henry and 
 Edmund Randolph, and included John Wickham, James 
 Innes, Alexander Campbell and Benjamin Botts, names 
 which have still a national celebrity. Among these Marshall 
 took and held an honorable position, and his practice and 
 reputation continued to increase steadily, notwithstanding 
 the interruptions of his public legislative duties. 
 
 He had come now to what we may call the second period 
 of his career, to practical acquaintance with politics and leg- 
 islation. The problems that confronted him were those which 
 have most keenly tried the knowledge, the wisdom, and the 
 courage of statesmen in all ages and in every country — how, 
 without making their burdens unbearable, to procure from 
 a land and a people prostrated and exhausted by years of war, 
 the means of meeting the public obligations, of preserving 
 the public credit, and the maintenance of the government. 
 When the sword is drawn in defence of home and liberty, 
 men stop not to count the cost. Moreover in a brave and 
 energetic people there is always a large and influential party 
 
29 
 
 with whom war is for its own sake unfortunately popular. 
 The gaudium certaminis itself supplies incentive and men are 
 apt to throw away even the little effort to look beyond the 
 moment. But when the fight is ended, and the exhausted 
 combatant returns to a wasted homestead and the daily pres- 
 sure of poverty on his household, then indeed comes the need 
 of a resolute facing of the cost and the consequences. This 
 was the situation, and these the serious problems that engaged 
 Marshall's attention from his entrance into political life. 
 I may not stop to dwell on particulars, for I must pass on to 
 even larger questions that were approaching. Suffice it 
 here to say that with two short intermissions caused by his 
 voluntary refusal of re-election, he continued in the legis- 
 lature for ten years with constantly increasing reputation, 
 and during part of that time was also member of the Privy 
 Council of the State, elected by the legislature under the 
 Constitution of 1776, to "assist in the administration of 
 government," a sort of independent cabinet to advise and in 
 some degree control, the executive. 
 
 The years following the close of the Revolution were 
 full of political doubt and danger and confusion. The condi- 
 tion I have mentioned in Virginia prevailed in all the states. 
 The common peril from the common enemy no longer held 
 them unquestioningly together, and under the pressure of 
 their domestic difficulties they were becoming impatient of 
 even the slight interference of the central government. 
 Congress under the Articles of Confederation had no power 
 of compulsion on the states or their citizens. It could not 
 levy taxes, or enforce obedience to its laws. It represented 
 merely a league, not a government and its feebleness is thus 
 forcibly summed up by Judge Story. "Congress could mak^ 
 contracts, but could not provide means to discharge them. 
 They could pledge the public faith, but they could not redeem 
 it. They could make public treaties, but every state in the 
 Union might disregard them with impunity. They could 
 
30 
 
 enter into alliances, but they could not command men or 
 money to give them vigor. They could declare war, but they 
 could not raise troops, and their only resort was to requisi- 
 tions on the states. In short all the powers given by the 
 Confederation, which did not execute themselves without 
 external aid were at the mere mercy of the states, and might 
 be trampled upon at pleasure." The pressure of these evils 
 produced the Convention which framed the Constitution of 
 the United States, and then came the momentous question of 
 its ratification by the states. It is difficult for us with our 
 experience of its benefits to appreciate the depth and fervor 
 of opposition to it. Yet in all the states there was a party 
 who saw in it the portentous shadow of imperialism, which 
 would ultimately crush and obliterate the states and build 
 on their ruins a central despotism. Nor was the party small 
 in numbers nor insignificant in abilities or patriotism. No 
 man may question the patriotism of Patrick Henry, yet in the 
 Virginia Convention he devoted his fiery eloquence to the 
 opposition and he was ably supported by George Mason, 
 who had been a member of the convention that framed the 
 Constitution, had had great influence in molding its final 
 form, and yet had been so dissatisfied with it that he refused 
 to sign it. On the other side was Edmund Randolph who 
 like Mason was one of the members who refused to sign the 
 Constitution, but who though dissatisfied had become con- 
 vinced that it was preferable to the evils and dangers under 
 the Confederation. With him was James Madison, a reso- 
 lute supporter from the first of the Constitution which he 
 too had helped to frame and which he had done so much to 
 make known to the people in that series of papers, unrivaled 
 in the literature of the world for masterly discussion of the 
 principles of government, since known as the Federalist. 
 These were the leaders, and their state was the battle ground 
 on which for a time depended the fate of the Union. Virginia 
 was the most important of all the states. Its population was 
 as large as that of Pennsylvania and New York combined, 
 
3' 
 
 and included nearly one-fifth of the whole population of the 
 thirteen states. Its geographical position was such that its 
 refusal to enter the Union would have cut the country in two 
 so evenly that it might almost have disputed with Pennsyl- 
 vania the title of the Keystone State. Parties in it were 
 very equally divided. Marshall was already a federalist. 
 His military experience, as we have from himself, had accus- 
 tomed him to look upon the whole country as one, and it 
 had taught him how real and how dangerous were the ills 
 that menaced that country. His clear practical sense saw the 
 weakness of the Confederation and made him thus early an 
 advocate of a government strong enough to protect and 
 maintain itself. His abiding faith in the people's patriotism, 
 constancy and innate love of liberty deprived the spectre of 
 imperialism of its terrors. In the community in which he 
 lived the opponents of the Constitution, the state rights party, 
 or Republicans, as they called themselves, were largely in the 
 majority. But his neighbors knew and esteemed John Mar- 
 shall, and -they wanted him as their representative in the 
 convention. But they wanted a pledge that he would vote in 
 accordance with their views. This he refused, and at once 
 entered the canvass with a bold and resolute announcement of 
 his convictions and his action if elected. After a close and 
 earnest contest he was elected. There could be no more con- 
 vincing illustration of the unflinching courage and integrity 
 ■of the man, and the w^eight and influence of his character 
 among the people who knew him. His conduct in the 
 convention was in accordance with his announced views. 
 He ranged himself at once with Madison and Edmund Pen- 
 dleton, the eloquent Innes and Henry Lee, as a vigorous and 
 untiring supporter of the Constitution, but so even of temper, 
 so conciliatory of manner, and of such strength and force 
 of argument as to be reckoned among the foremost men 
 on his side. Of his speeches in the convention, time only 
 permits the mention of one, and it is significant of the under- 
 current of circumstances that was even then shaping his 
 
32 
 
 future career. The judiciary article of the Constitution was 
 one that the opponents regarded with special animosity, 
 as in it they saw the federal arm reaching across state lines 
 and enforcing the central authority. Marshall's speeches on 
 this article were regarded as the ablest and most convincing 
 presentations of the necessity of a strong and independent 
 judiciary and it is notable that in them he foreshadowed the 
 great question that was to arise later, of the power of the 
 judiciary to declare an act of Congress unconstitutional. 
 George Mason had argued that the federal tribunals would 
 absorb the litigation of the country, that the laws of the 
 United States being paramount to the laws of the particular 
 state, there would be no case to which those laws might not 
 be extended. To this Marshall replied that the government 
 of the United States could not go beyond their delegated 
 authority. "If they were to make a law not warranted by 
 any of the powers enumerated, it would be considered by the 
 judges as an infringement of the Constitution which they are 
 to guard. They would not consider such a law as coming 
 under their jurisdiction. They would declare it void." The 
 convention accepted the Constitution by the narrow majority 
 of ten, and not the least of Marshall's services to his country 
 was his part in bringing about that result. The required nine 
 states had adopted the Constitution before Virginia came to a 
 final vote, and the United States would therefore have started 
 even if that vote had been adverse. But without Virginia 
 it would not have been the Union as our fathers and our- 
 selves have known it, and he would be a bold prophet who 
 even now in the light of all our experience would undertake 
 to say that it would have endured. 
 
 The next few years were given to practice with ever 
 increasing r-eputation. In public matters Marshall con- 
 tinued to be an active federalist and especially devoted to the 
 defence of Washington's administration. At public meetings 
 at Richmond he debated with the most distinguished oppo- 
 
33 
 
 nents, the President's Proclamation of Neutrality between 
 England and France, Jay's treaty with England, the treaty 
 making power of the President and Senate, and the duty of 
 the House of Representatives to make the appropriations 
 necessary to give the treaties effect, and other questions of 
 most serious import, on which the prevailing sentiment of 
 Virginia then was opposed to Washington's policy. 
 
 In 1 796, he came to Philadelphia to argue the great case 
 of the Virginia debts. Ware vs. Hylton, 3 Dallas, 199. In 
 1777, Virginia had passed a sequestration act, authorizing 
 any of its citizens who owed money to British subjects, to pay 
 it into the loan office and receive a discharge of his debt. 
 The defendant being indebted on a bond to plaintiff, paid the 
 amount into the loan office, and after the treaty of peace 
 was sued on the bond in the United States Circuit Court of 
 Virginia, where he pleaded the discharge, and it was held 
 to be a full defence. The case came by appeal to the Supreme 
 Court, then sitting in Philadelphia, and Marshall was pitted 
 against three of the most eminent lawyers at this Bar, Wil- 
 liam Lewis, Edward Tilghman and Alexander Wilcocks. 
 He defended first the right of Virginia as an independent 
 state, at war against Great Britain, to confiscate debts, 
 secondly, that it had done so by the Act of 1777, and lastly 
 that the debt being extinguished by confiscation before the 
 treaty, could not be revived by it. It is noticeable that fed- 
 eralist as he was he argued the state rights view even of the 
 third proposition. But he put it upon the ground that Arti- 
 cle 4, of the Treaty of 1783, "creditors on either side shall 
 meet with no lawful impediment to the recovery of the 
 full value of all bona fide debts heretofore contracted," only 
 included debts existing at that date, and here the debt was 
 no longer existing. It had been extinguished under the Vir- 
 ginia act, and if any remedy existed under the treaty it must 
 be against the State of Virginia, which had received the 
 money. He did not sacrifice his views on the supremacy of 
 national authority in matters of foreign relations, but put his 
 
34 
 
 argument on the consistent ground of construction of the 
 treaty. He lost his case, but gained great reputation by the 
 candor and strength of his argument. By it his reputation 
 as a lawyer, which had been chiefly confined to his native 
 state, spread over the whole country. 
 
 Since his retirement from the Virginia legislature he had 
 steadily declined public office. He had refused the Attorney 
 Generalship of the United States offered to him by Wash- 
 ington on the death of William Bradford, the position of 
 Minister to France also offered by Washington, and on the 
 death of James Wilson, the vacant seat on the Supreme 
 Court, offered to him by President Adams. Fortunately his 
 time for this had not yet come. He declined it and Bushrod 
 Washington was appointed. In all his career there is noth- 
 ing more notable than the fact that every office he ever held 
 was offered to him without seeking, and accepted with 
 reluctance. No man ever took office under prouder circum- 
 stances. His genuine preference was for private life and the 
 practice of his profession. 
 
 In 1798, however, the state of affairs between the 
 United States and France had become so threatening that he 
 was persuaded by President Adams to accept the special mis- 
 sion to France in the interest of peace, with Charles Cotes- 
 worth Pinckney and Elbridge Gerry. The rude and insult- 
 ing treatment which the envoys received from the French 
 Directory is one of the most painful episodes in our history, 
 but it is redeemed from humiliation by the dignified firmness 
 of our envoys. Marshall wrote the dispatches to his govern- 
 ment, and they gave universal satisfaction. "As state papers" 
 says Judge Story, "there are not in the annals of our diplo- 
 macy any upon which an American can look back with more 
 pride." On his return he was received with popular enthu- 
 siasm. As he approached Philadelphia where Congress was 
 in session, the City Cavalry and a procession of citizens met 
 him at Frankford and escorted him into the city. Con- 
 
35 
 
 gress gave him a public dinner, at which the famous reply of 
 Pinckney was first put into the popular form it has ever 
 since retained. 
 
 The envoys having had it hinted to them in no uncertain 
 terms that if they expected to be recognized they must ofifer 
 a bribe to the Directory, had plainly refused, and on being 
 sneeringly asked by Talleyrand's agent if the Americans 
 were too poor to pay a little money, had replied through 
 Pinckney, "America has millions for defence, but not a cent 
 for tribute." 
 
 I doubt if any of my hearers under middle age can 
 fully appreciate the potency of that saying. In their time the 
 United States has been too great and too strong for its 
 standing in the community of nations to be questioned. But 
 in 1798 its position was far different. The sanctity of its 
 flag on the ocean was insolently violated by England in its 
 asserted right of search for seamen, and remonstrances were 
 disregarded almost with contemptuous avowal that what 
 consideration they received was due more to concern about 
 Napoleon than to recognition of our rights. The causes 
 which produced the war of 1812, justly called the second 
 war of independence, were already in active operation. On 
 the other hand the conduct of France was equally contemptu- 
 ous. The insolence of Genet had led to his recall only under 
 the firm demand of Washington, and the French government 
 instead of relying on the gratitude of the American people 
 for the assistance of France in the revolution had demanded 
 aid as a right, and strained almost to the breaking point 
 the forbearance even of the Republicans who sympathized 
 with her. The treatment of our envoys has been already 
 mentioned, and the firmness and dignity of their conduct 
 was approved by all parties. The effect of Pinckney's saying 
 was electrical. It struck the popular heart and became almost 
 a popular war cry. Medals and tokens bearing that legend 
 were struck off in great numbers, and down even to my early 
 days a boy's handful of coppers was apt to contain at least one 
 
36 
 
 token that passed current everywhere as a cent, but bearing 
 the words, "Not a cent for tribute, millions for defence." The 
 conduct of Marshall won the approval even of his political 
 opponents. Patrick Henry, one of the most vigorous of them, 
 wrote, "Tell Marshall I love him because he felt and acted 
 as a Republican, as an American." 
 
 In 1799 at the earnest solicitation of Washington, who 
 in view of the expected war with France had again accepted 
 the command of the army, Marshall became candidate for 
 Congress and was elected. His earliest duty in that post was 
 the sad one of announcing the death of Washington, which 
 he did in a short speech of great power and pathos, ending 
 with the resolutions declaring Washington the first in war, 
 first in peace, and first in the hearts of his countrymen. 
 
 In 1800, President Adams offered him the post of Sec- 
 retary of War, but before he could assume office the Secre- 
 taryship of State became vacant, and was accepted by Mar- 
 shall. The ability, firmness and moderation with which he 
 held the United States to a position of neutrality under the 
 difficulties, foreign and domestic, of the situation, com- 
 manded the admiration of his cotemporaries and completed 
 his reputation as a statesman. In his letter of instructions 
 to Rufus King, our Minister to England, he wrote, "The 
 United States do not hold themselves in any degree respon- 
 sible to France or to Great Britain for their negotiations with 
 one or the other of those powers, but they are ready to make 
 amicable and reasonable explanations to either. The aggres- 
 sions, sometimes of one and sometimes of another belliger- 
 ent power, have forced us to contemplate and prepare for war 
 as a probable event. We have repelled, and we will continue 
 to repel, injuries not doubtful in their nature, and hostilities 
 not to be misunderstood. But this is a situation of necessity, 
 not of choice; it is one in which we are placed, not by our 
 own acts, but by the acts of others, and which we will change 
 as soon as the conduct of others will permit us to change it." 
 
 Marshall continued to fill the office of Secretary oL State 
 
37 
 
 until the end of the Adams administration in March, 1801, 
 but on the resignation of Chief Justice Ellsworth and the 
 declination of Jay to resume the office, Marshall was 
 appointed and entered upon the duties one hundred years ago 
 to-day. 
 
 The Constitution of the United States was the first 
 instance in the history of the world where the whole frame- 
 work of a government was rested upon and embodied in a 
 written instrument. Leagues and confederations there had 
 been from the dawn of history, based upon treaties and sanc- 
 tions of various kinds, but resting finally on voluntary good 
 faith or force the ultima ratio re gum. But of governments 
 this was the first. It had no precedent, as it has had no suc- 
 cessor that was not a copy. The germ of the system was 
 undoubtedly found in the colonial charters by which powers 
 of government more or less ample w&re conceded to the 
 settlers of the colonies which by the Re\-olution had become 
 independent states. The men who framed the Constitution, 
 in common with their associates in public life, were 
 versed in the history and the principles of free government 
 as perhaps no other body has ever been. They had deeply 
 studied the writings of the fathers of political thought from 
 Aristotle, through Macchiavelli, and Milton and Locke, down 
 to Montesquieu. One of their cotemporaries had but a few 
 years before penned a declaration of the rights of man in 
 terms of imperishable force and beauty. 
 
 The Constitution though it had no precedent was 
 framed on the principles of English liberty by men who 
 knew them, both in theory and in practice. They had 
 studied English history and English law, and they worked 
 in the light of both. Blackstone's first volume was published 
 in 1765, and Edmund Burke has recorded that a leading- 
 London publisher had sold more copies in the colonies than in 
 England. The common law of England is the most nearly 
 perfect system of remedial justice between man and man. 
 
38 
 
 and of effectual safeguards of liberty with order, between 
 sovereign and subject, that the world has ever seen. And 
 its noblest and most legitimate daughter is the Constitution 
 of the United States. The feature of the Constitution, 
 which is, or was, its novelty as well as its crowning excel- 
 lence, is the clear line it drew between the different func- 
 tions and powers of government. The wonder and despair 
 of foreign jurists to understand, is the complicated but per- 
 fectly adjusted balance in the division of powers between 
 the Federal government and the states, the imperiuni in 
 impcrio which leaves to each state the general regulation of 
 domestic affairs touching its citizens in their daily life, yet 
 vests in the United States such direct contact and control 
 as replace the weakness of the Confederation and substitute 
 powers of self -protection, brought home to the people in 
 their individual capacity so that they are made to feel that 
 the Union is as much their government as is that of the state 
 in which they live, and yet without any thought of clash of 
 jurisdiction. Familiar to us as a tale that is told, we are 
 apt to forget the perfection of the unprecedented achieve- 
 ment, the knowledge and discrimination with which the 
 separation was conceived in theory and the clear and abiding 
 judgment with which the lines of demarcation were laid 
 down in practice. The latter was largely the work of John 
 Marshall. 
 
 The distinction between the powers of government, as 
 legislative, executive and judicial, was evolved in practice 
 from the long struggles of English liberty, and came to us 
 as an inheritance. It was put into philosophic form by the 
 brilliant Montesquieu from his admiring contemplation of 
 English history. But it was never before so clearly and 
 firmly drawn as in the Constitution. England made her 
 judges personally and politically independent, but the Con- 
 stitution of the United States first made the judiciary as a 
 department of the government not only independent, but 
 equal, and, therefore, supreme within its own province. 
 
39 
 
 The conception of a judicial department was a logical 
 necessity of the scheme of government which the Conven- 
 tion had projected. Without it many of the most serious 
 defects of the Confederation would still remain. But the 
 form which it should receive was the subject of anxious 
 thought and much difference of opinion. The most imminent 
 danger to be guarded against was from the states, any one 
 of which might at any time pass a law contrary to the Con- 
 stitution. How should such a law be rendered harmless? 
 It was proposed that Congress should have a veto upon the 
 laws enacted by the states. But it was at once foreseen that 
 the exercise of this veto would be subject to political influ- 
 ences and passions, and would lead to a direct and open con- 
 flict between Congress and the state legislature. Another 
 plan was to establish a Council of Revision, to be composed 
 partly of the executive and partly of the federal judiciary, 
 to whom this veto power should be entrusted. This plan was 
 analogous to the system with which the people were already 
 familiar. In Pennsylvania and most if not all of the other 
 colonies having popular legislative assemblies, the Crown, 
 acting through the Judicial Committee of the Privy Council, 
 exercised the power of annulling, or refusing assent to the 
 acts of such assemblies. But this power, though admitted 
 and unquestionable by the colonies, led to protracted disputes. 
 There is no more interesting and instructive chapter in 
 Pennsylvania history, than the persistent, unremitting and 
 ingenious efforts of the Assembly to have its own way by the 
 re-enactment often in forms only colorably varied, of stat- 
 utes set aside by the Privy Council. Such a conflict between 
 a state and Congress was full of foreboding of peril. 
 
 But the danger of departure from the Constitution was 
 not alone to be jqjprehended from the states. The Execu- 
 tive vested in a single head might usurp powers beyond even 
 its ample constitutional authority. Out of such usurpation 
 had come the dictators, the kings and emperors of the past. 
 And again Congress was not to be left altogether without 
 
40 
 
 restraint. The legislative branch, which holds the nation's 
 purse, is always the most powerful in a free government. 
 The colonists had fought George the Third, but the Conven- 
 tion did not forget that his Parliament was as tyrannical 
 as the king. 
 
 Out of all these most serious considerations, came 
 finally the establishment of a single Supreme Court with 
 jurisdiction over all questions arising under the Constitu- 
 tion and laws of the United States. The honor of having 
 proposed the plan which was substantially adopted, belongs 
 to William Paterson of New Jersey, afterwards a justice of 
 the court he was thus instrumental in creating. 
 
 The court thus established, though the logical and per- 
 haps inevitable outcome of the traditions, the ideas and the 
 circumstances of the men who made it, was nevertheless a 
 bold and imprecedented conception. For the first time in 
 history a co-ordinate branch of a sovereign government, it 
 was yet the weakest branch. More independent, less directly 
 responsible either to the other departments or to the people 
 a^ large, yet holding neither the purse nor the sword, its 
 authority depends wholly upon reason. But how transcend- 
 ent is its authority; to mark the limits of legislative and 
 executive power ; to administer the law and give commands 
 not only to individuals, but to presidents and congresses; 
 to sit in judgment on the proceedings and privileges of 
 sovereign states; and to give final form and effect to the 
 great charter of the Union, on which the rights, the peace, 
 the harmony, the prosperity, safety and honor of the whole 
 country depend. Well did de Tocqueville say "a more 
 imposing judicial power was never constituted by any 
 people. The Supreme Court is placed at the head of all 
 known tribunals, both by the nature of its rights, and the 
 class of justiciable parties which it controls." It was a 
 conception worthy of a free people, and possible only to 
 a people convinced beyond all doubt or hesitation, that last- 
 ing and orderly liberty can exist only in complete subor- 
 
41 
 
 dination to law. "None but a law fearing people," says 
 Prof. Dicey, "will be inclined to regard the decision of a 
 suit as equivalent to the enactment of a law. The main 
 reason why the United States has carried out the federal 
 system with unqualified success, is that the people of the 
 Union are more thoroughly imbued with legal ideas than 
 any other existing nation." 
 
 Into this great tribunal as its chief, one hundred years 
 ago to-day came John Marshall, henceforth forever to be 
 identified with it as the embodiment and greatest exponent 
 of judicial thought. 
 
 The justices of the Supreme Court need to be jurists in 
 the wide sense of that term as distinguished from mere 
 lawyers, however learned, and they, especially the Chief 
 Justice, should be statesmen with a broad appreciation of the 
 bearing of even technical questions of law, upon the funda- 
 mental principles of government, the polity and the course 
 of events in the country. Let us look for a moment at Mar- 
 shall's wide and varied, though unconscious training for 
 such place. Nihil siiniil invcntuin est et perfectum, in the 
 quaint expression and always interesting aphorisms of Coke. 
 Even the powers of John Marshall did not spring like Min- 
 erva, full grown, from the brain of Jove, but year after 
 year like the tree that is planted in fertile ground, grew to 
 maturity alike through sunshine and storm. His substantial 
 military service in his youth had matured and sharpened his 
 perceptions, his energies, his resolution, the practical facul- 
 ties of life; his service of years in the Virginia legislature 
 had made him familiar with public questions of government 
 and policy, and later he had studied legislative matters in the 
 broader field of Congress; as a member of the Virginia 
 State Council he had learned to consider methods of admin- 
 istration as well as of legislation and this experience was 
 again widened in the national cabinet as Secretary of State ; 
 and his service as Minister to France had shown him the 
 
42 
 
 devious ways of diplomacy. But where in all this busy life 
 did he find time for the learning and knowledge of the law ? 
 His training even in the routine of litigation was not incon- 
 siderable. He was by choice and desire a lawyer, he main- 
 tained his position at the bar uninterruptedly as far as com- 
 patible with the full performance of his public duties, and he 
 returned to practice promptly at every opportunity. That 
 he was profoundly versed in legal principles is manifest 
 in every page that he ever wrote. He worked on them and 
 from them always. But if we speak of technical knowledge 
 of cases and precedents, and the law as laid down by the 
 voice of authority, let us say frankly he has been surpassed 
 by many others. He had not the learning of Kent, or of 
 our own Tilghman, or of his most learned successor, Taney. 
 But he had that which for his time and place served him 
 far better, the lawyer's instinctive perception, an unerring 
 logic in reasoning and a vigor of intellect that went per 
 saltuni where others had to climb laboriously through the 
 maze of decisions. It is related of him by high authority, 
 that not unfrequently at the end of a long and close argu- 
 ment on some intricate and knotty question, listened to with 
 most exemplary patience, he would turn cheerfully to his 
 younger colleague and say, "Well, Story, the law is so and 
 so — look up the authorities and see if it isn't." And that 
 learned and accomplished book-lawyer always found that 
 the Chief Justice was right. No man of equal eminence ever 
 owed less to teaching and to what is usually called education. 
 But no man ever had his natural powers more perfectly 
 developed by experience in the school of life, leading up to 
 his crowning work. Fortunately the questions with which 
 he had to deal required less book-learning thah wide grasp 
 of principles. The constitution is expressed with remarkable 
 compactness in general terms, and it has been well said that 
 it is "an enumeration of powers, not a definition of them." 
 The definition of them was to be the work of Marshall and 
 the court. When at the age of forty-five he took his seat 
 
43 
 
 upon. the bench, little did he or his cotemporaries anticipate 
 that his distinguished public career of a quarter of a century, 
 was to be so completely overshadowed that it requires the 
 special study of this occasion to recall its extent, its variety 
 and its eminent usefulness. ' 
 
 In 1 80 1, so little had the importance of the position been 
 perceived that the learned, accomplished and patriotic Jay 
 thought himself going to rust in the Chief Justiceship, pre- 
 ferred to be Governor of New York, and finally resigned 
 to go as envoy to England. The court has as yet made 
 but little impression on the jurisprudence of the country. 
 The powers and limitations of the Constitution had been 
 discussed, often with partisan heat and violence, in legisla- 
 tures and conventions, but no principles of construction 
 had beefl judicially settled, and the decision of the Supreme 
 Court in the only important case that had yet come before it, 
 Chisholm vs. State of Georgia, 2 Dall., 419, in which it was 
 held that a state might be made defendant in the Federal 
 Courts at the suit of an individual, had not only roused the 
 wrath of the State Rights Party, but so startled even the 
 Federalists, that it led to an amendment of the Constitu- 
 tion. But questions were already looming up, full of ominous 
 import, which could not be long delayed; questions of the 
 inherent powers of the states as sovereignties, how far they 
 had been surrendered to the central government, how far 
 thev had been retained, how far they were exclusive in one 
 or the other or might be exercised concurrently; questions of 
 the obligation of contracts including chartered rights and 
 their protection by the Federal Courts from impairment by 
 the states ; questions of the regulation of commerce and the 
 navigation of rivers between states and with foreign coun- 
 tries, as against state laws ; questions of the restraints upon 
 the issue of money by the states, and of taxation by the states 
 of Federal offices, or corporations ; questions of jurisdiction 
 between state and Federal courts, including the control of state 
 
44 
 
 courts over Federal officers, and the revision by the Federal 
 courts of the decisions of state courts on constitutional ques- 
 tions. And underlying all these was the fundamental ques- 
 tion on which the solution of all of them was largely to 
 depend, the strict or the liberal construction of the Consti- 
 tution as an entire instrument. None of these questions had 
 been decided and there were no precedents to guide the deci- 
 sion. The science of constitutional law, as now known to us, 
 had as yet no existence. Under the institutions first inher- 
 ited from the mother country, and then made the models on 
 which our own were reconstructed, lawyers and judges had 
 been trained to view the legislative power vested in Parlia- 
 ment as infallible and omnipotent. That first lesson had 
 to be unlearned, and a new field of jurisprudence opened. 
 
 Into this untrodden field the new Chief Justice entered 
 with the firm step of conscious strength, trusting to his own 
 clear perceptions and honest singleness of purpose to find 
 the M'ay. And how plain and broad and straight the way 
 seems when he has once pointed it out. 
 
 Let me take one general illustration, the great question 
 which as I have said underlies all the others, that of the 
 strict or the liberal construction of the Constitution as an 
 entire instrument. It had been the subject of earnest, sincere 
 and settled difference of opinion among some of the wisest 
 statesmen of the day, and perhaps even more frequently of 
 partisan and violent dispute. It may be said that it exists 
 yet and will always exist, for it is inherent in the nature of 
 the subject, the imperfection of language, and the varying 
 temperaments of those who interpret it. In statutes, in 
 private contracts and' most of all in wills, it is part of the 
 lawyer's daily work to ask, shall we adhere to the letter, 
 or shall we look beyond it for the intent? The states, said 
 the strict constructionists, the State Rights party, are inde- 
 pendent sovereignties, the source of all political power ; 
 for certain expressed purposes they have transferred limited 
 portions of that power to the Union, but in so doing they 
 
45 
 
 ha\-e onl}^ appointed an agent, and such agent has no power 
 not hterally within the terms of his appointment ; if authority 
 is not shown in express words, it does not exist. The 
 United States, said the FederaHsts on the other side, is 
 not a mere league but a government; with delegated and 
 limited powers it is true, but nevertheless a government, 
 and possessed of all powers inherent in the conception of a 
 government, unless expressly withheld or prohibited in the 
 instrument creating it. The Chief Justice took up the ques- 
 tion in the very essence of judicial spirit. In politics he had 
 been a life long Federalist, and the champion of their views 
 in many hard fought contests. But as a judge he saw only 
 with the clear light of the law. The Constitution, he said, 
 was to have neither a liberal nor a strict construction but a 
 natural one, according to the intention as shown by the 
 words understood in their natural and usual meaning. The 
 Union was a government of delegated powers. Therefore, 
 when any power was claimed, the warrant for it should be 
 clearly shown in the Constitution, and to that extent the 
 construction must be strict. But though only of delegated 
 powers, it was nevertheless a government, and must possess 
 the full measure of all the powers intended to be given. 
 Therefore the construction must be liberal as to every means 
 of exercising the powers given, with full effect. How plain 
 and how easy the solution seems when once it is said. Do not 
 even my unprofessional hearers see what plain common 
 sense it is ? A platitude that even the incipient law student 
 could answer off-hand. But when John Marshall first said 
 it, it was new, and it is a platitude to-day because he said it 
 in such terms that no man could fail to see its solid good 
 sense, the foundation of all permanent law. 
 
 In this spirit the Chief Justice took up the varied ques- 
 tions as they arose, and discussed and decided them. Time 
 and the limitations of a spoken address do not permit 
 even a bare enumeration of the cases as they arose, or the 
 
46 
 
 points they imolve, but speaking to-day as a lawyer to 
 lawyers, I may make brief reference by way of illustration 
 only to a few of them. 
 
 Marbury z's. Madison, i Cranch, 137, was the first and 
 in some respects the most important of the cases I shall 
 mention. Marbury was appointed a justice of the peace in the 
 District of Columbia by President Adams, was confirmed by 
 the Senate, his commission signed by the President and 
 passed under the seal .of the State Department, but before 
 it was delivered the administration changed and under 
 instructions from President Jefferson, Secretary Madison 
 refused to deliver it. The suit was for a mandamus to com- 
 pel delivery. The court held that it had no original jurisdic- 
 tion except that fixed by the Constitution and that the Act 
 of Congress giving it jurisdiction in such cases was to that 
 extent void. The case is notable in that holding that it had 
 no jurisdiction to issue such a writ, the court's opinion on 
 Marbury's title to the office, and the power of the judiciary 
 to compel the performance of duty by executive officers 
 was obiter. But the Chief Justice stating that the novelty 
 and delicacy of some of the questions required a complete 
 exposition of the principles on which the opinion of the 
 court was founded, entered into the subject at large, and vin- 
 dicated the power of the court to declare an Act of Congress 
 void for unconstitutionality. This point had been decided 
 more or less explicitly before. Indeed it was a necessary 
 conclusion from the equality of the judiciary as a co-ordinate 
 branch of the government. But it encountered very resolute 
 and even passionate political resistance, both from the legis- 
 lative and the executive branches, had .been touched tenderly 
 and with reluctance, even by Marshall himself in the debates 
 on the Constitution, and had never commanded general 
 acquiescence, nor received an authoritative exposition.* 
 
 *For the following very complete note of the prior cases I am indebted to 
 Ardemus Stewart, Esq., of the Philadelphia Bar. Comm. vs. Caton, 4 Call 5, 
 (Va., 1782) ; Cases of the Judges of the Court of Appeals, 4 Call 135 (Va. 1788); 
 
47 
 
 The court, however, went a step farther and asserted the 
 duty and power of the judiciary to compel obedience to tiie 
 law in all matters not political or discretionary even by 
 .the highest executive officers. This decision was of tran- 
 scendent importance in establishing the principles on which all 
 ■our present views of constitutional law rest. It settled once 
 for all that the Constitution had created a government of 
 law, and it established the authority of the court on a footing 
 ■never since shaken, as the final interpreter of the Constitu- 
 tion and the supreme tribunal for the settlement of all 
 matters, even though touching the other departments, that 
 are judicial in their nature. 
 
 Trevett z>s. Weedon (R. I. 1786), Arnold's Hist, of R. I., Vol. 2, ch. 24, and 
 see Cooley's Constitutional Limitations 19?, n. 3; Den on demise of Bayard 
 vs. Singleton, i Martin 48 (N. C, 1787); Ogden vs. Witherspoon, 2 Haywood 
 227 (N. C, 1799); Bowman OT. Middleton,i Bay 252 (S.C, 1792); Austin's Lessee 
 vs. Trustees, etc.. Pa. 1793, referred to in Emerick vs. Harris, I Binney 416; 
 ■case of Holmes and Walton, and Taylor ? j. Reading, in New Jersey, cited by 
 Kirkpatrick, C. J., in State vs. Parkhurst, 4 Halsted (9 N. J. Law), 427; Van 
 Home vs. Dorrance, 2 Dall. 304 (1795). 
 
 On April 5, 1792, the Circuit Court for the District of New York, consisting 
 •of Chief Justice Jay, Justice Cusbing, and Duane, District Judge, declared it as 
 •their unanimous opinion that the pension law passed by Congress, on March 23, 
 €792, was invalid, because it attempted to assign to the judicial department 
 •duties which were not judicial ; on June 8, 1792, the Circuit Court for the Dis- 
 trict of North Carolina, made a similar declaration in a joint letter, addressed to 
 the President of the United States; and on April 18, 1792, the Circuit Court for 
 the District of Pennsylvania addressed a similar joint lelter to the President. 
 Somewhat later in the same year, the -Supreme Court of the United .States, in 
 Hayburn's Case (1792), 2 Dall. 409, refused to carry the act into effect. 
 
 In Emerick f.f. Harris (l8o8), I Binn. (Pa.), 416, the right of the courts 
 to pass upon the constitutionality of an Act of the Legislature was asserted, 
 though the act in question was held to be constitutional. Mr. Justice Yeates 
 stated that Marbury t's. Madison was not published until after his opinion had 
 been prepared. 
 
 The constitutionality of statutes had been argued without expressly stating 
 the power of theConrTto declare them void, if unconstitutional, in several other 
 cases, (r.^., Hilton OT. United States (1796), 3 Dall. (U. S.), 171, where the 
 statute was held constitutional, and Respublica vs. Cobbett (1798) ; Respublica 
 vs. Duguet (1799), and Respublica vs. Franklin (1802), unreported cases in the 
 Supreme Court of Pennsylvania, cited by Mr. Justice Yeates in his opinion in 
 Emerick vs. Harris (1808), I Binn. (Pa.), 416, 422. 
 
48 
 
 In U. S. z'S. Peters, 5 Cranch, 115, a conflict of jurisdic- 
 tion had arisen between the Pennsylvania and the Federal 
 courts of admiralty over a question of prize, and Judge 
 Peters had been reluctant to enforce a judgment which 
 might bring on a collision. But the Supreme Court without 
 hesitation laid down the rule of the superior authority of 
 the Federal Courts and the total invalidity of state statutes 
 interfering with it. 
 
 In Fletcher vs. Peck, 6 Cranch, 87, the clause of the 
 Constitution prohibiting the states from the passage of any 
 law impairing the obligation of contracts, was construed and 
 applied to grants of land by a state. In State of New Jersey 
 vs. AA'ilson, 7 Cranch, 164, the same clause was held to pre- 
 vent a state taxing lands which had been purchased by the 
 colony under convention with the Indians, with an agreement 
 that they should not be taxed thereafter. And in Trustees 
 of Dartmouth College vs. AA^oodward, 4 Wheaton, 518, the 
 same clause received a masterly and final exposition and 
 extension to the protection of the charter of a private cor- 
 poration. This is perhaps the most noted of all Marshall's 
 decisions, on account of the wide public interest it excited, its 
 far-reaching consequences, and the eminence of the counsel 
 on both sides, including Joseph Hopkinson, Daniel Webster 
 and William Wirt. 
 
 In Sturges vs. Crowninshield, 4 Wheaton, 122, the 
 impairment of the obligation of contracts was further con- 
 sidered in connection with the authority of the states to 
 pass insolvency and bankruptcy acts, not in conflict with a 
 national bankruptcy law. 
 
 McCulloch vs. State of Maryland, 4 Wheaton, 316,. 
 was a case of great importance. Congress had chartered the 
 Bank of the United States, and a branch having been estab- 
 lished in Baltimore, the State of Maryland levied a tax upon 
 it, which the bank refused to pay. The state courts gave 
 judgment against the bank, but the Supreme Court reversed it. 
 Tlie opinion of the Chief Justice was a masterly exposition of 
 
49 
 
 the liberal construction of powers granted. He held that 
 the United States possesses authority to employ all means 
 appropriate and convenient, as well as those absolutely neces- 
 sary for the full exercise of powers specifically granted to 
 Congress by the Constitution ; that a bank was a legitimate 
 instrument of the financial power; that the states cannot 
 burden or impede the exercise of the federal powers by inter- 
 ference with their instruments, and that as the power to tax 
 implies the power to burden to the extent of destruction, 
 the states cannot tax any of the federal instrumentalities. 
 In the course of his opinion the Chief Justice said, "The 
 government of tlie Union is a government of the people. 
 In form and in substance it emanates from them. Its powers 
 are granted by them, and are to be exercised directly on them 
 and for their benefit" — the same thought which was put 
 into lasting popular form in Lincoln's expression, "Govern- 
 ment of the people, by the people and for the people." 
 
 Time does not permit further details, but even from 
 these illustrations it will be perceived how serious the ques- 
 tions were, how deeply they reached into the very founda- 
 tions of government, and how materially and permanently 
 they affected all constitutional questions that were to come. 
 It is true that jNIarshall had a clear field. He had no light 
 from precedents, but he had no obstructions from them. 
 As a matter of mere legal construction he might have decided 
 many questions differently, and no lawyer then or since could 
 have said with confidence that he was wrong. But he had 
 one steadfast guide through all the conflicting claims and 
 theories, the firm conviction that the Union under the Con- 
 stitution was a national government, and that as a weak 
 government could not conduce to orderly and lasting liberty, 
 the United States, as a government, must possess powers 
 adequate to protect and preserve itself. In 1834 the legisla- 
 ture of South Carolina, under the express sanction of the 
 Nullification Convention of 1832, had prescribed a test oath 
 for its militia officers, and the question of its constitutionality 
 
53 
 
 came before the Court of Appeals in the case of State ex reL 
 McCready vs. Hunt, 2 Hill (S. C.)- i- The majority of 
 the court held the oath unconstitutional, Harper, J., dissent- 
 ing. In a private letter to one of the distinguished counsel 
 in the case, Thomas S. Grimke, acknowledging the receipt 
 of a copy of the opinions, the Chief Justice wrote: 
 "Judges Johnson and O'Neall appear to have' decided the 
 question on the Constitution of the state ; Judge Harper takes 
 into view the Constitution of the United States. His opinion 
 unquestionably displays talent and acute reasoning powers,, 
 but is obviously founded on the assumption that our Con- 
 stitution is essentially a league and not a government.* 
 
 "This is the true and substantial dividing line between 
 parties in the United States. One of more vital importance 
 cannot be drawn. As the one opinion or the other prevails,, 
 will the Union, as I firmly believe, be preserved or dissolved. 
 If a mere league has never been of long duration, if it has 
 never been of sufficient efficacy to preserve a lasting peace 
 between its members, we must be irrationally sanguine to- 
 indulge a hope that ours will furnish an exception to any and 
 every thing which has heretofore occurred in the history of" 
 man. If such be the true spirit of the instrument such must 
 be its construction, but we cannot, I think, fail to ask our- 
 selves for what purpose was it made? Was it worth the 
 effort of all the wisdom, virtue and patriotism of the country 
 merely to exchange one league for another? Did the con- 
 vention — did the people — believe that they were framing a 
 league and not a government?" 
 
 The underlying principle on which the permanence of 
 the Union under the Constitution must depend, came, it is 
 true, to the final arbitrament of the sword. But the conflict, . 
 perhaps inevitable, came in the fullness of time with a north 
 grown superior in numbers and resources, and a great west 
 as a controlling factor, and was fought out on that side by 
 three generations of men grown up in profound belief and_ 
 
 *The capitals are ibe Chief Justice's. 
 
5' 
 
 reverence for the supremacy of the national government as 
 declared by Marshall. And when slavery, the exciting cause 
 of contention, was ended in the only way that Marshall 
 thought it could be, by a great social convulsion or civil 
 war, the Constitution and the Union, as he expounded them, 
 resumed their hold on the affections of a united nation. 
 
 How important was a right start, and how much we owe 
 to the firm hand that carried the Constitution through its 
 formative period of trial and experiment we may see by a 
 glance at the consequences of a different line of decision. 
 Let me take a single illustration. A hundred years ago this 
 active, ingenious, energetic, tireless people found themselves 
 in possession of a vast and fertile continent whose original 
 inhabitants were so few, so scattered, so inferior, so heathen, 
 that their rights need not be regarded — a view, let us say with 
 humility, if not with shame, that the race has not yet lost on 
 either side of the ocean. The boundless opportunities that 
 were to open to the near future were then but dimly if at all 
 foreseen. The "west" began at Pittsburgh, which was 
 remoter from Philadelphia in time, and infinitely so in acces- 
 sibility, than San Francisco is to-day, and the "far west" 
 ended with the French settlements on the banks of the Missis- 
 sippi. Three years were yet to elapse before the heroic 
 expedition of Lewis and Clark was to set out to explore 
 whither the great wilderness of the west would lead. Rail- 
 roads were not yet, and steamboats were but among the 
 experiments of Philadelphia's inventors. Li this condition 
 of things the state of New York granted to Livingston and 
 Fulton an exclusive right of navigation of the waters of the 
 state with vessels moved by fire or steam, and a few years 
 later this right was sustained by the highest courts of New 
 York by an injunction against the owner of a steamboat ply- 
 ing between the city of New York and Elizabethtown, with 
 a license under the navigation act of Congress of 1793. The 
 case under the name of Gibbons 7'^. Ogden, 9 Wheaton, i, 
 came by appeal to the Supreme Court, and the decision was 
 
reversed. The Chief Justice, in one of the greatest of his 
 opinions, vindicated the supremacy of Congress on all ques- 
 tions of the regulation of commerce and laid down the canon 
 of construction by which the commerce clause of the Con- 
 stitution has been read from that day to this. Consider for 
 a moment the effect had the court taken the other view and 
 sustained the New York decision. If every ferry boat that 
 crossed the North River could do so only under license from 
 New York or the grantees of her monopoly, if every boat 
 load of lumber or of coal from the Allegheny and the Monon- 
 gahela had had to run the blockade of license and pilotage 
 fees and commercial regulations of every state between the 
 line of Pennsylvania and the Gulf of Mexico, how long 
 would the spirit of our people have endured such shackles to 
 free movement ? The wonderful development of mechanical 
 invention, and the steady sweep of material progress would 
 have soon burst the bonds of such narrow construction, and 
 he would be a bold man to say that in the breaking of the 
 court's construction the authority of the court and even the 
 Constitution itself, not yet jnatured and settled in the confi- 
 dence of the nation, might not have been destroyed by con- 
 stant change or open and flagrant violation. 
 
 It would be too much to claim that even the broad fore- 
 sight of Marshall had measured the force of the under cur- 
 I'ent of development leading to the unprecedented career that 
 lay before his country. But he knew his countrymen, their 
 history and their institutions. He knew that the spirit of the 
 people was fast molding a harmonious and homogeneous 
 nation, which must be bound together by a national consti- 
 tution. And he labored in the spirit of a patriot, a states- 
 man, and, above all, a far-seeing judge, to make the bond 
 strong enough to endure inevitable strains, yet elastic enough 
 not to break with expanding empire. To be thus man of 
 practical affairs for his own day, yet prophet in his foresight 
 for the years to come, what higher summit could there be in 
 the achievements of human judgment, patriotism and wis- 
 dom ? 
 
53 
 
 In the four and thirty years that he sat in judgment 
 the court made fift3^-one decisions on constitutional questions, 
 and the Chief Justice wrote thirty-four of them. In only 
 one did the majority of the court fail to agree with him. In, 
 Ogden vs. Saunders, 12 Wheaton, 213, the construction of 
 the bankruptcy clause in the Constitution arose, with respect 
 to the exclusion of state legislation on the subject. Three 
 judges, including Marshall, thought the power of Congress 
 exclusive, but the majority held that the states might legis- 
 late on the subject except where the power is actually exer- 
 cised by Congress and the state laws conflict with the law 
 of Congress. In the three-quarters of a century that have 
 elapsed since then, we have had bankruptcy acts passed and 
 repealed by Congress, insolvency laws of every variety of; 
 scope and effect passed and repealed and passed again by 
 state legislatures, and the subject cannot be said to be 
 settled yet. In the light of all this additional experience the. 
 best lawyers of to-day are far from sure that the opinion of. 
 the Chief Justice was not the wisest and most correct. . : 
 
 In speaking of Marshall, we do not forget that he had 
 learned and able colleagues, and was aided by an exception- 
 ally brilliant and able bar. But he was easily the master 
 of them all, and by the pure force of reason, especially on 
 constitutional questions, he dominated the court with the 
 free consent and admission of his brethren. In 181 1 Presi- 
 dent Madison appointed Joseph Story to the Supreme Court 
 for the undisguised purpose of neutralizing the influence of 
 ^Marshall. Story was young, aggressive, and, as Josiah 
 Quincy says, "A bitter Democrat in those days." But he 
 came under the influence of Marshall, and, like the others, 
 he soon yielded to the weight of superior intellect and force 
 of character. He became an affectionate and admiring 
 disciple, and the friendship lasted throughout his life^— a 
 friendship highly honorable to both men; to Story that he 
 had the breadth and largeness of mind to become and' coft'fesi 
 himself a convert, to Marshall that he: could make of such ari 
 antagonist an admiring follower. --^^ 
 
54 
 
 More than half a century ago Henry Brougham said 
 that no judge could afford to be often wrong, and the time 
 liad gone by when any court could rest long on mere author- 
 ity. It must justify itself by its reasons. No tribunal was ever 
 more dependent on this principle than the Supreme Court 
 of the United States, and no judge ever sustained the burden 
 with more unfailing strength than Chief Justice Marshall. 
 He brought to the judicial office as we have seen, a profound 
 knowledge of the history and institutions of his country, a 
 political sagacity trained by long and varied experience in 
 the legislative and administrative departments of the govern- 
 ment, a firm and comprehensive grasp of the fundamental 
 principles of law, and above all an unswerving fidelity to the 
 highest conceptions of judicial duty. Through all the intri- 
 cacies of conflicting evidence or discordant principles his 
 intuitive perceptions saw the connection between premises 
 and conclusion, and with an unrivaled grasp of every phase 
 and bearing of the subject his vigorous and unerring logic 
 marked out the path with such cogent and convincing reasons 
 as to meet the criticism of opposing views, and still more 
 to .stand the test of the future in the development of corol- 
 laries and consequences. His intellectual integrity and cour- 
 age took him straight to his conclusion, turning his eye 
 neither to the right nor left for irrelevant objects by the way. 
 
 It is related of the great literary autocrat of the eigh- 
 teenth centviry, that he said of a future Lord Chancellor, "I 
 like Ned Thurlow, he lays his mind fairly against yours, 
 and never flinches." If Dr. Johnson had known John Mar- 
 shall he would have liked him for the same reason. He 
 never flinched. He never underestimated or understated the 
 strength of his opponent's position, or the difficulties of his 
 own. He laid his reason bare for all men to see and to chair 
 lenge, and those who would not be convinced against their 
 will were at least silenced by their inability to refute him. 
 Even the caustic and unfriendly John Randolph said "I 
 know John Marshall's opinion is wrong, but there is no man 
 in the country who can take it up and show how it is wrong." 
 
55 
 
 In this country the prominence and importance of Mar- 
 shall's opinions on constitutional questions have absorbed our 
 attention. But abroad, outside of special students of 
 American institutions, such as Bryce and Sir Henry Maine, 
 his reputation rests largely on his judgments in admiralty 
 and international law. In these he ranks with Lord Stowell. 
 The breadth of his views was prophetic. He held that the 
 English doctrine limiting the admiralty jurisdiction to tide 
 waters could not properly be applied to our great rivers, but 
 that the test should be navigability from the sea. And 
 he was among the earliest to recognize that our great lakes 
 were inland seas and the law should so treat them. 
 
 The opinions of Marshall are models of judicial style. 
 No legal writings were ever freer from technicalities of lan- 
 guage or thought. In plain words which reach even the 
 unlearned understanding, without ornament, and absolutely 
 devoid of flourish or by-play or looking to side effects of any 
 kind, they present a calm and steady flow of pure and sus- 
 tained reason from postulate to conclusion. And they read 
 to the lawyers of to-day, as they read to the lawyers in the 
 cases they decided, for the argument has no trace of personal, 
 or party, or temporary considerations. Though his individ- 
 ual convictions were deep and strenuous and the contests of 
 his time were fierce and unsparing, his personality no more 
 appears than the personality of Shakespeare in Hamlet or 
 Macbeth. He wrote as Shakespeare wrote, not in the taste 
 or fashion of his age, but on the foundations of human 
 wisdom in the hght of pure and enduring reason. And 
 he wrote as Thucydides wrote, not for a day but as a pos- 
 session for all time. 
 
 From Marshall's assumption of the Chief Justiceship 
 his life is necessarily identified with his judicial career. But 
 at least a passing mention must be made of two or three inci- 
 dental matters. 
 
56 
 
 On the death of Washington his papers passed into the 
 possession of his fa\-orite nephew, Judge Bushrod Washing- 
 ton, at whose urgent sohcitation Marshall undertook the 
 writing of his life. It \\-as a great labor, performed in the 
 midst of exacting judicial duties. It is in reality a history, 
 and indeed the first volume was revised and issued separately 
 as a school history of the United States. It was, however, 
 laid out on too large a plan as a biography, and the result 
 is somewhat cumbersome. But it is a storehouse of informa- 
 tion, clear and authoritative narration, and sound judgment 
 on men and affairs at the birth and early days of the republic. 
 
 In 1807, occurred the first and in many respects the 
 greatest of what may be called our state trials, that of Aaron 
 Burr for treason, before the Chief Justice at Richmond. 
 The circumstances are familiar and I need not recount them. 
 But I make this passing mention of the trial as it shows by 
 a shining example the impartiality and fearlessness of Mar- 
 shall. Burr was detested by the Federalists as a leading and 
 violent Republican, and there was added to this political 
 antagonism a personal animosity against him as the slayer 
 of the beloved Hamilton. On the other hand his treacherous 
 effort to supplant Jefferson in the choice for the presidency 
 when the accident of the vote in the electoral college under 
 the first system provided in the Constitution, gave him an 
 apparent but wholly unintended opportunity, had drawn upon 
 him the vindictive wrath of his own party. Jefferson was 
 President, and the whole enei'gies and influence of the admin- 
 istration were exerted for the prosecution. Never certainly 
 in America was a prisoner brought to the bar of a state trial 
 under a fiercer hue and cry, popular and official, for convic- 
 tion, and before a judge personally and politically hostile. 
 And never were the scales of justice held with steadier and 
 more impartial hand. The Chief Justice took his stand on the 
 clear text of the Constitution that treason against the United 
 States shall consist only in levying war against them, and 
 no person shall be convicted unless on the testimonv of two 
 
57 
 
 witnesses to the same overt act. and he held this position 
 resolutely against all the arguments and almost threats of 
 the prosecution, backed by the whole administration. The 
 result was an acquittal and it was bitterly said that "Marshall 
 has stepped in between Burr and death." A storm of angry 
 disapproval burst forth from both parties, but the Chief 
 Justice werit calmly on, swerving neither to right nor left, 
 confident in his OAvn rectitude and the approval of his con- 
 science. He outlived the censure even of his opponents, 
 and his countrymen to-day may proudly challenge the annals 
 of jurisprudence to show a more signal exhibition of judicial 
 impartiality and courage. 
 
 The last public service that the Chief Justice rendered 
 to his native state was his attendance at the Convention of 
 1829, to revise the Constitution. It was a very notable 
 assemblage, which included in its membership the venerable 
 ex-presidents, Madison and Monroe. Chief Justice Alarshall, 
 William B. Giles, the Governor of the state, John Randolph 
 of Roanoke, Philip P Barbour, Benjamin ^A'atkins Leigh, 
 Littleton W. Tazewell, and others hardly less distinguished. 
 Even among these the Chief Justice was a conspicuous figure, 
 and his views commanded great attention. I must content 
 myself with a reference to only one, his successful effort in 
 behalf of the independence of the judiciary. "The judicial 
 department," he said, "comes home in its effects to everj^ 
 man's fireside; it passes on his propert}-, his reputation, his 
 life, his all. Is it not to the last degree important that he 
 should be rendered perfectly and completely independent, 
 with nothing to influence or control him but God and his 
 conscience? * * * j haA'e always thought from my 
 earliest youth until now that the greatest scourge an angry 
 Heaven ever inflicted upon an ungrateful and sinning people 
 was an ignorant, a corrupt, or a dependent judiciary." 
 
 Though we are met to-day to commemorate especially 
 his judicial career, yet we should fail to do full justice to 
 
5« 
 
 the occasion did we not turn our attention for a brief time to 
 his personal qualities. For the man was as nearly perfect 
 as the magisti-ate. His cheerful fortitude in youth under 
 the hardships of Valley Forge, I have already mentioned, 
 and it never forsook him. His feelings were warm and his 
 opinions firm, but a heart of universal kindness governed his 
 actions and his manners. I have searched every rnemoir and 
 reminiscence and anecdote, and found no single instance 
 recorded of an exhibition of temper, unless it may be 
 implied in the terms of Horace Binney's comment on his 
 patience, "when he ceased to hear it was not because his 
 patience was exhausted, but because it had ceased to be a vir- 
 tue." But that he had a temper there can be no doubt. He 
 could not have been the judge he was, without it. No judge 
 can afford to be without a firm temper, just as no judge can 
 afford to let his temper break out of control. The fact that 
 it is known to be there if it is called for, suffices for all 
 but the most extraordinary occasions. And no man that 
 has knowledge of the unparalleled rancor of the political 
 and personal passions of that time can read the trial of Aaron 
 Burr without feeling that the calm and impartial serenity 
 with which the Chief Justice held in check the violence of 
 both prosecution and defence, had behind it a firmness of 
 temper which even the representative of the government 
 could not venture to encounter. 
 
 His domestic affections were warm and enduring. At 
 an early age he married a charming girl, for she was but 
 little past fifteen, and they lived together in unchanging 
 affection for nearly fifty years. Her loss he never ceased to 
 regret, and during the three years between her death and his 
 own, it is said he never omitted to visit her grave at least 
 once a week. 
 
 His most striking quality in private life was the unaf- 
 fected simplicity of his character and manners, the lack of 
 all vanity, or affectation, or assumption of superiority. 
 
 In some reminiscences of him furnished to the Louisiana 
 
59 
 
 Lazv Journal, by a cotemporary, Mr. Gustavus Schmidt, 
 afterwards a distinguished member of the New Orleans Bar, 
 I find the following just and graphic description : 
 
 "In ordinary life the conduct of Mr. Alarshall was 
 afifable and iDolite, and when entering the court room, which 
 was usually before the appointed hour, for he was extremely 
 punctual in the discharge of his duties, his conversation was 
 cheerful, and evinced a remarkable freedom of mind, which 
 in men of eminent attainments in any particular science, is 
 almost an invariable criterion of superiority of nitellect. 
 
 "In his colloquies on such occasions with the members 
 of the bar, which were frequent, no attempt was ever made 
 to claim superiority, either on account of his age or his great 
 acquirements; neither was there any effort to acquire popu- 
 larity; but his conduct was evidently dictated by a benevo- 
 lent interest in the ordinary affairs of life, and a relish 
 for social intercourse. The moment, however, he took his 
 seat on the bench, his character assumed a striking change. 
 He still continued the same kind and bene\-olent being as 
 before ; but instead of the gay and cheerful expression which 
 distinguished the features while engaged in social conversa- 
 tion, his brow assumed a thoughtfulness and an air of grav- 
 ity and reflection, which in\'ested his whole appearance with 
 a certain indefinable dignity, which bore, however, not the 
 slightest resemblance to sternness. The impression made on 
 the beholder was that of a man engaged in some highly 
 important and grave deliberation, which he apparently pur- 
 sued with pleasure, but which at the same time seemed to 
 absorb his whole attention and require the full exercise of 
 his faculties." 
 
 That he had a just confidence in his own powers is mani- 
 fest in the direct and straightforward way in which he grap- 
 pled with the most difficult problems that came before him. 
 But it was a confidence free from all vanity and conceit. 
 The Hon. Charles Augustus Murray, grandson of Lord 
 Dunmore, the last Royal Governor of A^irginia, wrote of 
 
Go 
 
 his travels in America and speaking admiringly of Chief 
 Justice Marshall, said that the only indication of vanity he 
 showed was the hospitable one of being able to give his guests 
 the best glass of Madeira in Virginia. His great-grand- 
 daughter has told us that he brought the wine from France 
 in 1798, and it was carefully preserved in the family for use 
 at weddings and special occasions. And it adds a touch of 
 pathos to the memory of the kindly and hospitable patriot, 
 that thirty years after his death, some of his wine was sold 
 to repair the fortunes of his descendants who had suffered 
 by the unsparing hardships of civil war. "And so," writes his 
 great-granddaughter, "it came by the fortunes of war that 
 I drank my great-grandfather's wine in a stranger's house." 
 
 In this connection there is another aiiecdote of pleasant 
 interest. The Hon. Josiah Quincy, when a young man, 
 accompanied Judge Story to Washington, and in his "Figures 
 of the Past," relates that the judges of the Supreme Court 
 usually dined together, and their custom was to allow them- 
 selves wine only when it was raining. But "the Chief," said 
 Story, "was brought up on Federalism and Madeira," and 
 occasionally even on a sunshiny day would say, "Brother 
 Story, will you step to the window and see if there are signs 
 of rain?" Story would be obliged reluctantly to report that 
 he saw none, whereupon the Chief Justice would say cheer- 
 fully, with a gleam of humor in his piercing eyes, "Well, this 
 is a very large territory over which we have jurisdiction and 
 I feel sure it is raining in some part of it. I think we may 
 have a bottle to-day." 
 
 In person, he was plain, and, it is said, without advan- 
 tages of appearance, voice, attitude or manner. He was very 
 tall and thin, and careless though not untidy in his dress. 
 Josiah Quincy says that he was plain and almost rustic in 
 appearance, and might easily be taken for "an ordinary politi- 
 cal judge" until you encountered his brilliant eyes. In his 
 youth he was active and athletic, and he remained in vigor- 
 ous good health almost until the last. Mr. Binney relates 
 
6i 
 
 thatini775,asayouthof nineteen, Marshall walked ten miles 
 to the militia muster, and back again in the evening, having 
 in the meantime di'llled his company and afterwards 
 addressed them on the issues of the impending revolution. 
 In 1832. when sevent3'-seven years of age, he wrote his son 
 that he walked daily two miles to the court and back again 
 to dinner. He never failed, when at home, to attend the 
 meetings of the Richmond quoit club, of which he was an 
 honored and always welcome member, and it is related that 
 when an old man he could still throw a three-pound quoit 
 to a fifty-foot hub with almost unerring accuracy. I do not 
 know how much my younger hearers, particularly those of 
 city birth, in these days of tennis and golf may know of that 
 time-honored and classic game, but even down to my day it 
 was almost the only out door game in which grown men 
 indulged. I have played more than once with the late Chief 
 Justice Sharswood, and have seen him triumph in a success- 
 ful "ringer" with the zest of a boy. 
 
 There are many portraits of the Chief Justice, but most 
 of them by inferior artists who failed wholly to catch or 
 portray the spirit and character of the man. The profile by 
 St. [Nlemin, being taken with the physionotrace, is of course 
 mechanically accurate, and St. Memin being an artist of 
 ability has given us an interesting and valuable likeness by 
 which to test the others. But being in profile we miss the 
 alert and beaming eye which was the noticeable feature of 
 the face. The standard and only satisfactorjr likeness is 
 the one painted by Henry Inman for the Philadelphia Bar. 
 which now hangs in the library of the Law Association of 
 this city. It gives us the mature man, with all the qualities 
 that his cotemporaines ascribe to him — the thin, rather small 
 face, the broad brow with a mass of dark hair growing low 
 down on it, the benignant half smile, and the keen but kindly 
 black eyes that William Wirt said "possess an irradiating 
 spirit which proclaims the imperial powers of the mind with- 
 
62 
 
 in." The full length portrait by Chester Harding now in the 
 Boston Atheneeum, gives a good representation of the tall, 
 thin figure and the general outlines of the face, but the eyes 
 wholly fail to indicate the "irradiating spirit." Iri this 
 respect the portrait is little better than the many silhouettes 
 thatshow,both sitting and standing, the long, thin limbs, the 
 round head and small features which made up his general 
 appearance. The eye was the electric lamp that lighted up 
 the whole countenance, and without it the features failed 
 to reveal the vital spirit of the man.* 
 
 Philadelphia has special claims upon this celebration, 
 for outside of his own home at Richmond, nowhere was he 
 , so known and beloved in his lifetime, or more honored since, 
 than here. 
 
 It was in Philadelphia in 1 796 that he argued the great 
 case of Ware vs. Hylton, which first established his national 
 fame as a lawyer; here, in 1798, on his return from the 
 mission to France, he was received as in a triumphal march 
 by the military and the citizens who went out to Frankford 
 to meet him, and by Congress, who gave a dinner to him at 
 which, as I have already related, Pinckney's famous answer 
 to Talleyrand was put into its sententious popular form; 
 here, in 1799, he took his seat in Congress as a member from 
 Virginia, and, in announcing the death of Washington, crys- 
 tallized his description into one immortal phrase : here, from 
 time to time in his judicial labors, he so established himself 
 in the afifectionate respect of the bar that they, in happy testi- 
 
 *.Since this address was delivered I have had the opportunity of seeing in 
 the Green Bag for February, a reproduction of a portrait by John Wesley Jarvis 
 which is interesting as presenting Marshall at an earlier age than mc^t of the 
 others. It has the feature."; and shows the darkness of the hair and eyes with the 
 prominence that his cotemporaries uniformly ascribed to his appearance. But 
 the attitude is stiff and conventional and the expression dull and common-place. 
 The countenance has neither the weight of character and benevolent dignity of 
 the Inman portrait, nor even the lighter and more social expression of that by 
 Harding. 
 
63 
 
 monial, had his portrait painted by Henry Inman ; here, from 
 the press of a Philadelphia publisher, he sent forlh that store- 
 house of accurate and impartial history, the Life of Wash- 
 ington ; here, to the pre-eminent skill of Philadelphia's physi- 
 cians, he came in his old age for that relief from suffering 
 ■which was so fortunately attained ; and here, at the last, he 
 •came again when unhappily relief was beyond human skill, 
 and on July 6, 1835, ended his long and honored life. 
 
 On the day following his death a meeting of the citizens 
 was held, at which the venerable Bishop White, then in his 
 •eighty-eighth year, presided, and a meeting of the Bar 
 -appointed a committee, composed of some of its most eminent 
 members, Judge Baldwin, John Sergeant, Richard Peters, 
 Jr., William Rawle, the younger, and Edward D. Ingraham, 
 "who accompanied the remains to their final resting place at 
 Richmond. 
 
 The Mayor and city officials escorted the body as far as 
 New Castle, and as if to give the last connection with Phila- 
 delphia a final touch of pathetic sentiment the venerated bell 
 that had proclaimed liberty throughout the land unto all the 
 inhabitants thereof tolled its last peal at his funeral. 
 
 On the invitation of the city councils, Horace Binney, 
 a few months later, delivered that admirable eulogium to 
 which nothing since written has made any substantial addi- 
 tion. No tribute of affection and veneration was wanting 
 that Philadelphia could pay, and that it might not be merely 
 transitory the Bar subscribed a fund for a memorial which, 
 after years of careful nursing and investment, resulted in the 
 noble statue by Story, the lawyer-artist son of Marshall's 
 admiring colleague, erected at the National Capital in our 
 own day, with a memorable oration from one of our own 
 Bar, the late William Henry Rawle. 
 
 By the uniform concurrence alike of cotemporaries and 
 posterity, we unhesitatingly claim for Marshall the foremost 
 place in the list of eminent judges. Pinkney said, "He was 
 born to be the Chief Justice of any country into which Provi- 
 
64 
 
 dence should have cast him." The Bar of Charleston, never 
 converts to his view of the Constitution, yet paid this tribute 
 to the man in a resolution passed on hearing of his death : 
 "Though his authority as Chief Justice of the United 
 States was protracted far beyond the ordinary term of public 
 life, no man dared to covet his place, or express a wish to 
 see it filled by another. Even the spirit of party respected 
 the unsullied purity of the judge, and the fame of the Chief 
 Justice has justified the wisdom of the Constitution, and 
 reconciled the jealousy of freedom to the independence of the 
 judiciary." This tribute, specially eloquent from its source, 
 is believed to have been drawn by the pen of the learned and 
 patriotic Petigru, the bold and eminent figure who in his 
 venerable age attested his fidelity to the principles of Mai^- 
 shall through all the terrible years of civil war by standing 
 out alone and unyielding against the heresy of secession. 
 
 And more recently the keenest and best informed of 
 transatlantic critics of American institutions has justly 
 written : 
 
 "Another fact which makes the function of an American 
 judge so momentous is the brevity, the laudable brevity, of 
 the Constitution. The words of that instrument are general, 
 laying down a few large principles. The cases which will 
 arise as to the construction of these general words cannot be 
 foreseen till they arise. When they do arise the generality 
 of the words leaves open to the interpreting judges a far 
 wider field than is afforded by ordinary statutes, which, since 
 they treat of one particular subject, contain enactments com- 
 paratively minute and precise. Hence, although the duty of 
 a court is only to interpret, the considerations affecting inter- 
 pretation are more numerous than in the case of ordinai-y 
 statutes, more delicate, larger in their reach and scope. They 
 sometimes need the exercise not merely of legal acumen and 
 judicial fairness, but of a comprehension of the nature and 
 methods of government which one does not demand from the 
 European judge who walks in the narrow path traced for 
 him by ordinary statutes. It is therefore hardly an exagger- 
 
05 
 
 ation to saj^ that the American Constitution as it now stands, 
 with the mass of fringing decisions which explain it, is a 
 far more complete and finished instrument than it was when 
 it came fire-new from the liands of tlie convention. It is not 
 merely their work, but the work of the judges, and most of 
 all of one man, the great Chief Justice Marshall." (Bryce's 
 Am. Commonwealth.) 
 
 If we challenge the array of names in that country 
 whose system has produced the historic exemplars of judicial 
 greatness, where shall we find quite his equal ? Not in Coke, 
 prodigy of learning and relentless logic and courageous 
 asserter of judicial independence as he was, for he was nar- 
 row and technical in his law, illiberal and even vindictive in 
 his personality. Let me not be misunderstood. I speak as 
 a devoted and reverent disciple of the common law and of 
 Coke as a master in it. But it is given to few men to be 
 larger minded than their age, and it is no disparagement 
 to Coke to say that he was not one of the few. Nor shall we 
 find him in Ellesmere or Nottingham or Hardwicke, fathers 
 of equity as they were, nor even in Mansfield, the first great 
 master of technicalities, who yet saw through them all that 
 the true vitality of the common law was its adaptability to 
 the changing afl^airs of men. Great as these were, and they 
 are the honored of the legal profession wherever their 
 language is known, j'fet' viewing the magnitude, . breadth, 
 variety and importance of his labors, or the ability with 
 which he performed them, Marshall ha§ had no equal, 
 hardly a second. 
 
 The world's great man who helps to mold its history, is 
 he who, with great abilities, has great opportunities, and by 
 his use of them produces great results. Tried by this exact- 
 ing standard, in the light of his work as time has proved it, 
 Marshall is the foremost in all the long line of judicial 
 eminence. 
 
 A century and a decade have passed since the Consti- 
 tution of the United States was adopted. Dynasties have 
 risen and fallen ; boundaries have expanded and shrunken till 
 
66 
 
 continents seemed almost the playthings of ambition and 
 war; nationalities have been asserted and subdued; govern- 
 ments built up only to be overthrown, and the kingdoms of 
 the earth from the Pillars of Hercules to the Yellow Sea have 
 been shaken to their foundations. Through all this change 
 and destruction, the Republic, shortest lived of all forms of 
 government in the prior history of the world, surviving the 
 perils of foreign and domestic war, has endured and flour- 
 ished. The band of vmion framed to hold together thirteen 
 small communities fringing the Atlantic coast has expanded, 
 to unite forty-five states into a mighty nation of more than, 
 twenty times the population, spread from ocean to ocean 
 over the breadth of the continent. That it has done this and 
 is still adequate, is due more than to any other one man to the 
 great Chief Justice who defined its terms in such broad and 
 wise and far-seeing and enduring form. 
 
 Fortes ante Agamemnona, said the Roman poet. There 
 were great men before Agamemnon, there were just men 
 before Aristides. But even as the Greeks cherished the name 
 of Aristides the just, and sent it down to the admiring cen- 
 turies, so shall Americans cherish and send down to all time 
 the name of John Marshall as the greatest of jurists. More 
 fortunate than Aristides, no envious countryman was tired of 
 hearing his praise while he lived, he shall be more fortunate 
 in his fame as not only the just man but the just judge. 
 
67 
 
 The celebration in Philadelphia was honored by the 
 presence of a number of lineal descendants of Chief Justice 
 Marshall, those accepting the invitation being 
 
 Mrs. J. Harry Chesley, of Claymont, Delaware. 
 
 Miss Madge Marshall Chesley, " 
 
 Miss Claudia Dare Chesley, 
 
 Miss Bessie Hall Chesley, 
 
 Miss Etta Harry Chesley, 
 
 Mrs. Robert Wright Forsyth, of Philadelphia. 
 
 Miss Charlotte Elizabeth Forsyth, 
 
 Master Rohert Wright Forsyth, J];., " 
 
 Master Thomas Marshall Forsyth, 
 
 Master Augustine Warner Lewis Forsyth, " 
 
 Mrs. Chesley and Mrs. Forsyth are grand-daughters of 
 Thomas Marshall, the eldest son of Chief Justice Marshall, 
 and the Misses Chesley, Miss Forsyth and Masters Forsyth 
 are the great grandchildren of Thomas Marshall and the 
 great great-grandchildren of the Chief Justice. 
 
 An interesting feature of the John Marshall celebration 
 was the exhibition in charge of the Legal Biography Com- 
 mittee of the Pennsylvania Bar Association, at its gallery 
 and museum in the University of Pennsylvania Law Build- 
 ing. 
 
 This consisted of a collection of valuable portraits of 
 the great Chief Justice and his associates on the Bench ; loan 
 exhibitions of the Law Association of Philadelphia, of 
 Hampton L. Carson, Charles Roberts and Alfred Percival 
 Smith, Esqs. ; and the exhibit of the venerable Law 
 Academy of Philadelphia. 
 
 Of all the organizations which united to honor the 
 memory of Marshall, the Law Academy was the only one 
 which existed as an active living body at the time Marshall 
 received his appointment. The distinguished founder and 
 patron of the Academy, Peter S. Du Ponceau, presided at 
 the meeting of the Philadelphia Bar on the death of Mar- 
 shall. Among the manuscripts was an autograph letter of 
 
68 
 
 his, accepting a re-election as Provost of the Academy ; a 
 minute book referring to the Constitution and By-Laws 
 adopted in 1783; the original copy of those adopted in 1806;, 
 printed copies of the numerous addresses prepared especially 
 for the Law Academy from Du Ponceau's time to the pres- 
 ent, and numerous other interesting manuscripts. 
 
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