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DUKE UNIVERSITY LIBRARY 
 
 DURHAM, N. C. 
 
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 Form 934— MM— 8-34 — C.P.Co. 
 
Digitized by the Internet Archive 
 in 2017 with funding from 
 Duke University Libraries 
 
 https://archive.org/details/addressonlifecha01gray 
 
AN 
 
 ADDRESS 
 
 ON THE 
 
 LIFE CHARACTER AND INFLUENCE 
 
 OF 
 
 CHIEF JUSTICE MARSHALL 
 
 DELIVERED AT RICHMOND ON THE FOURTH DAY OF FEBRUARY 1901 
 AT THE REQUEST OF THE STATE BAR ASSOCIATION OF 
 VIRGINIA AND THE BAR ASSOCIATION OF 
 THE CITY OF RICHMOND 
 
 BY 
 
 HORACE GRAY 
 
 WASHINGTON 
 PEARSON PRINTING OFFICE 
 1901 
 

 / 
 
 / 
 
 -*7 
 
 /j 
 
 ADDRESS. 
 
 Gentlemen of the Bar of the Commonwealth 
 
 of Virginia, and of the City of Richmond : 
 
 One hundred years ago to-day, the Supreme Court of 
 the United States, after sitting for a few years in Phila- 
 delphia, met for the first time in Washington, the per- 
 manent capital of the Nation; and John Marshall, a citi- 
 zen of Virginia, having his home in Richmond, and a 
 member of this bar, took his seat as Chief Justice of the 
 United States. 
 
 In inviting a citizen of another ancient Commonwealth 
 to take part in your commemoration of that epoch in our 
 national history, by addressing you on the Life, Character 
 and Influence of Chief Justice Marshall, you have been 
 pleased to mention that it was President John Adams, of 
 Massachusetts, w T ho gave Chief Justice Marshall to the 
 Nation, and that I am a citizen of Massachusetts and a 
 member of the court over which Chief Justice Marshall 
 presided; and to refer to the most cordial relations 
 formerly existing between your State and my own, now T 
 happily restored, and, as w T e all trust, being reestablished 
 in a closer degree. 
 
 Heartily reciprocating your kindly sentiments, and 
 deeply touched in my inmost feelings and convictions, 
 your invitation has had the force of a summons that 
 could not be gainsaid. 
 
 Permit me, in this connection, to recall one or two 
 allusions by Marshall himself to the sympathy which 
 existed between Virginia and Massachusetts in the trying 
 times of the Revolutionary War and of the Continental 
 Congress. 
 
 P33595 
 
9 
 
 In the earliest known speech of his, (as described by a 
 kinsman' who heard it,) made in May, 1775, when he was 
 under twenty years old, upon assuming command as 
 lieutenant of a company of the Virginia militia, he 
 told his men “that he had come to meet them as fellow- 
 soldiers, who were likely to be called on to defend their 
 country, and their own rights and liberties invaded by the 
 British ; that there had been a battle at Lexington in 
 Massachusetts, between the British and Americans, in 
 which the Americans were victorious, but that more 
 fighting was expected ; that soldiers were called for, and 
 that it was time to brighten their fire-arms, and learn to 
 use them in the field.” 
 
 Many years afterwards, in a letter to a friend, (quoted 
 by Mr. Justice Story, to whom it was perhaps addressed,) 
 he wrote: “When I recollect the wild and enthusiastic 
 notions with which my political opinions of that day 
 were tinctured, I am disposed to ascribe my devotion to 
 the Union, and to a government competent to its preser- 
 vation, at least as much to casual circumstances, as to 
 judgment. I had grown up at a time when the love of 
 the Union, and the resistance to the claims of Great 
 Britain, were the inseparable inmates of the same bosom ; 
 when patriotism and a strong fellow-feeling with our 
 suffering fellow-citizens of Boston were identical; when 
 the maxim, ‘United we stand; divided we fall,’ was the 
 maxim of every orthodox American. And I had im- 
 bibed these sentiments so thoroughly, that they constituted 
 a part of my being. I carried them with me into the 
 army, where I found myself associated with brave men 
 from different States, who were risking life and every- 
 thing valuable in a common cause, believed by all to be 
 most precious; and where I was confirmed in the habit of 
 considering America as my country, and Congress as my 
 government.” 
 
 Before the. adoption of the Constitution, one of the 
 chief defects in the government of the United States 
 
3 
 
 was the want of a national judiciary, of which there was 
 no trace other than in the tribunals constituted lyy the 
 Continental Congress, under powers specifically conferred 
 by the Articles of Confederation, for the decision of prize 
 causes, or of controversies between two or more States. 
 
 Among the objects of the Constitution, as declared in 
 the preamble, the foremost, next after the paramount aim 
 “to form a more perfect Union,” is to “establish justice.” 
 It ordains that the judicial power of the United States 
 shall be vested in “ one Supreme Court,” and in such 
 inferior courts as Congress may from time to time estab- 
 lish; that the judicial power shall extend to “all cases, 
 in law and equity, arising under this Constitution, the 
 laws of the United States, and treaties made, or which 
 shall be made, under their authority,” and to other classes 
 of cases specified ; that the Supreme Court, in cases affect- 
 ing ambassadors, public ministers and consuls, or to which 
 a State shall be party, shall have original jurisdiction ; 
 and, in all the other cases before mentioned, shall have 
 appellate jurisdiction, with such exceptions and under 
 such regulations as Congress shall make; and that “this 
 Constitution, and the laws of the United States which 
 shall be made in pursuance thereof, and all treaties made, 
 or wdiich shall be made, under the authority of the United 
 States, shall be the supreme law of the land; and the 
 judges in every State shall be bound thereby, anything 
 in the constitution or laws of any State to the contrary 
 notwithstanding.” 
 
 On the 24th of September, 1789, the first Congress 
 under the Constitution passed the Judiciary Act, which 
 had been framed by Oliver Ellsworth, then a Senator from 
 Connecticut. That act has always been regarded as a con- 
 temporaneous construction of the Constitution; and, with 
 some modifications, remains to this day the foundation of 
 the jurisdiction and practice of the courts of the United 
 States. (Jt provided that the Supreme Court should consist 
 of a Chief Justice, and of five Associate Justices who should 
 
 P 8 3 5 9 5 
 
4 
 
 have precedence according to the date of their commis- 
 sions; established the Circuit and District Courts ; defined 
 the jurisdiction, original and appellate, of all the Federal 
 courts; and empowered the Supreme Court to reexamine 
 and reverse or affirm, on writ of error, any final judgment 
 or decree, rendered by the highest court of a State in 
 which a decision in the case could be had, against a right 
 claimed under the Constitution, laws or treaties of the 
 United States. 
 
 President Washington, on the very day of his approval 
 of that act, nominated John Jay, of New York, as Chief 
 Justice; and John Rutledge, of South Carolina, William 
 Cushing, of Massachusetts, Robert H. Harrison, of Mary- 
 land, James Wilson, of Pennsylvania, and John Blair, of 
 Virginia, as Associate Justices of the Supreme Court; 
 and the nominations were all confirmed by the Senate on 
 the 26th of September. The commissions of Chief Justice 
 Jay and of Mr. Justice Rutledge were dated on that day, 
 and those of the other Justices on successive days, in the 
 order above named, thus determining their precedence. 
 President Washington, in a letter to each of the Asso- 
 ciate Justices, informing him of his appointment, re- 
 marked, “ Considering the judicial system as the chief 
 pillar upon which our National Government must rest;” 
 and in a letter to the Chief Justice, enclosing his commis- 
 sion, said that the judicial department “ must be consid- 
 ered as the keystone of our political fabric.” 
 
 During the first twelve years of the Supreme Court, 
 there were frequent changes in its membership : three by 
 the appointees preferring high offices in the governments 
 of their several States; three others by resignation ; one 
 by rejection by the Senate ; and two by death. 
 
 Rutledge never sat in the Supreme Court as Associate 
 Justice, and in 1791 resigned the office to accept that of 
 Chief Justice of South Carolina. Harrison declined his 
 appointment, preferring to become Chancellor of Mary- 
 land. James Iredell, of North Carolina, was appointed 
 
5 
 
 in 1790, in the stead of Harrison; and Thomas Johnson, 
 of Maryland, in 1791 , in the place of Rutledge. The other 
 Associate Justices before 1801 were two appointed by 
 President Washington : William Paterson, of New Jersey, 
 in 1793, in the place of Thomas Johnson, resigned ; and 
 Samuel Chase, of Maryland, in 1796, upon the resignation 
 of Blair; and two appointed by President John Adams: 
 Bushrod Washington, of Virginia, in 1798, upon the death 
 of Wilson; and Alfred Moore, of North Carolina, in 1799, 
 upon the death of Iredell. 
 
 President Washington, in his eight years of office, ap- 
 pointed four Chief Justices of the United States; John 
 Jay in 1789; .John Rutledge in 1795; William Cushing 
 and Oliver Ellsworth in 1796. Jay held the office for 
 about five years and nine months; and for the first six 
 months of that time, by the President’s request, also acted 
 as Secretary of State. Ellsworth held the office of Chief 
 Justice a little more than four years and a half. But 
 Jay, as well as Ellsworth, during the whole of his last year, 
 ceased to perform his judicial duties, by reason of being 
 employed on a diplomatic mission abroad. Rutledge, 
 after sitting as Chief Justice for a single term, was 
 rejected by the Senate; and Cushing, though confirmed 
 by the Senate, declined the appointment, and remained 
 an Associate Justice until his death in 1810. Ellsworth 
 resigned in 1800, owing to ill health; and Jay resigned 
 in 1795 to accept the office of Governor of the State 
 of New York, and in 1800, towards the close of his 
 second term of office as Governor, being in a depressed 
 condition of health and spirits, and having finally deter- 
 mined to retire from public life, declined a reappointment 
 as Chief Justice, offered him by President Adams on the 
 resignation of Ellsworth. 
 
 John Marshall, then Secretary of State, was nominated 
 as Chief Justice of th e United States by Presid e nt Adap as 
 on the 20th, confirmed by the Senate on the 27th, and 
 commissioned on the 31st of January, 1801, 
 
6 
 
 His characteristic letter of acceptance, addressed to the 
 President, and dated February 4th, 1801, was in these 
 words: 
 
 “Sir: I pray you to accept my grateful acknowledg- 
 ments for the honor conferred on me in appointing me 
 Chief Justice of the United States. 
 
 “ This additional and flattering mark of your good 
 opinion has made an impression on my mind which time 
 will not efface. 
 
 “ I shall enter immediately on the duties of the office, 
 and hope never to give you occasion to regret having 
 made this appointment. 
 
 “ With the most respectful attachment, 
 
 “ I am, Sir, 
 
 “ Your obedient servant, 
 
 “J. Marshall.” 
 
 On the same day, as is stated on the record of the 
 Supreme Court, his commission as Chief Justice, “bear- 
 ing date the 31st day of January, A. I). 1801, and of the 
 Independence of the United States the twenty-fifth,” was 
 “ read in open Court, and the said John Marshall, having 
 taken the oaths prescribed by law, took his seat upon the 
 Bench.” 
 
 In speaking of one who has been for a hundred years 
 the central and predominant figure in American juris- 
 prudence, little more can be expected, at this day, than 
 to echo what has been better said by others. Almost the 
 whole ground was covered, long ago, b}^ Mr. Binney, in 
 the admirable eulogy delivered before the Councils of the 
 City of Philadelphia on the 24th of September, 1835, the 
 eightieth anniversary of the Chief Justice’s birth, and 
 within three months after his death ; and by Mr. Justice 
 Story, in the interesting essay, first published in the North 
 American Review in 1828, and again, with some changes, 
 in the American National Portrait Gallery in 1833, and 
 finally developed into his discourse before the Suffolk 
 
7 
 
 Baron the 15th of October, 1885, and containing much 
 information derived from the Chief Justice himself. 
 
 In the researches incited by your invitation, my first 
 and most important discovery was a letter from Chief 
 Justice Marshall, dated “ Richmond, March 22d, 1818,” 
 and addressed to “Joseph Delaplaine, Esq., Philadelphia.” 
 Delaplaine was then publishing, in numbers, his Reposi- 
 tory of the Lives and Portraits of Distinguished Ameri- 
 can Characters, which was discontinued soon afterwards, 
 without ever including Marshall. The letter purports 
 to have been written in answer to one “requesting some 
 account ol my birth, parentage, &c.,” and contains a short 
 autobiography. 
 
 My earliest knowledge of the existence of such an auto- 
 biography was obtained from a thin pamphlet, published 
 at Columbus, Ohio, in 1848; found in an old bookstore in- 
 Boston; and containing (besides Marshall’s famous speech 
 in Congress on the case of Jonathan Robbins) only 
 this letter, entitling it “Autobiography of John Marshall.” 
 The internal evidence of its genuineness is very strong; 
 and its authenticity is put almost beyond doubt by a fac- 
 simile (recently shown me in your State Library) of a folio 
 sheet in Marshall’s handwriting, which, although it con- 
 tains neither the whole of the letter, nor its address, bears 
 the same date, and does contain the principal paragraph 
 of the letter, word for word, with the corrections of the 
 original manuscript, and immediately followed by his 
 signature. 
 
 An autobiography of Marshall is of so much interest, 
 that no apology is necessary for quoting it in full. 
 Except for one or two slips of the pen, corrected in the 
 printed pamphlet, it is as follows: 
 
 “ I was born on the 24th of September, 1755, in the 
 county of Fauquier in Virginia. My father, Thomas 
 Marshall, was the eldest son of John Marshall, who in- 
 termarried with a Miss Markham, and whose parents 
 migrated from Wales, and settled in the county of West- 
 
8 
 
 moreland in Virginia, where my father was horn. My 
 mother was named Mary Keith; she was the daughter of 
 a clergyman of the name of Keith who migrated from 
 Scotland, and intermarried with a Miss Randolph on 
 James River. I was educated at home, under the direc- 
 tion of my father, who was a planter, but was often called 
 from home as a surveyor. From my infancy I was des- 
 tined for the bar; but the contest between the mother 
 country and her colonies drew me from my studies and 
 my father from the superintendence of them ; and in Sep- 
 tember, 1775, I entered into the service as a subaltern. 
 I continued in the army until the year 1781, when, being 
 without a command, I resigned my commission, in the 
 interval between the invasions of Virginia by Arnold and 
 Phillips. In the year 1782, I was elected into the legis- 
 lature of Virginia; and in the fall session of the same 
 year, was chosen a member of the executive council of 
 that State. In January, 1783, I intermarried with Mary 
 Willis Ambler, the second daughter of Mr. Jacquelin 
 Ambler, then treasurer of Virginia, who was the third 
 son of Mr. Richard Ambler, a gentleman who had 
 migrated from England, and settled at Yorktown in Vir- 
 ginia. In April, 1784, I resigned my seat in the execu- 
 tive council, and came to the bar, at which I continued, 
 declining any other public office than a seat in the legis- 
 lature, until the year 1797, when I was associated with 
 General Pinckney and Mr. Gerry in a mission to France. 
 In 1798,1 returned to the United States; and in the 
 spring of 1799 was elected a member of Congress, a can- 
 didate for which, much against my inclination, I was in- 
 duced to become by the request of General Washington. 
 At the close of the first session, I was nominated, first to 
 the Department of War, and afterwards to that of State, 
 which last office I accepted, and in which I continued 
 until the beginning of the year 1801, when Mr. Ellsworth 
 having resigned, and Mr. Jay having declined his ap- 
 pointment, I was nominated to the office of Chief Justice, 
 which I still hold. 
 
9 
 
 “ I am the oldest of fifteen children, all of whom lived to 
 he married, and of whom nine are now living. My father 
 died when about seventy-four years of age; and my 
 mother, who survived him about seven years, died about 
 the same age. I do not recollect all the societies to which 
 I belong, though they are very numerous. I have written 
 no book, except the Life of Washington, whicli was exe- 
 cuted with so much precipitation as to require much cor- 
 rection.” 
 
 This brief outline of an autobiography, besides its 
 intrinsic value as a whole, is notable in several partic- 
 ulars. It shows that .John Marshall was of Welsh, and 
 of Scotch, as well as of English descent; and this through 
 persons who had not recently come over, but had all been 
 in this country long enough to become truly Americans. 
 It attests, over his own hand, that he was educated at 
 home under his father’s superintendence and direction, 
 and was destined from infancy for the bar; and also that 
 it was by the request of General Washington, and much 
 against his own inclination, that he was induced to 
 become a candidate for Congress. 
 
 Marshall passed his boyhood and early youth in the 
 country, in a healthful climate and beautiful scenery, 
 fond of field sports and athletic exercises, living in a 
 house containing a good English library, the eldest of a 
 large family of children, under the guidance and in the 
 companionship of a father of strong natural abilities, and 
 to whom, as he used to say, he owed the solid foundation 
 of all his own success in life. As Mr. Binney says: “ It 
 is the praise and the evidence of the native powers of 
 his mind, that by domestic instruction, and two years 
 of grammatical and classical tuition obtained from other 
 sources, Mr. Marshall wrought out in after life a com- 
 prehensive mass of learning both useful and elegant, 
 which accomplished him for every station that he filled, 
 and he filled the highest of more than one description.” 
 
 He was licensed to practice law in 1780,. and soon 
 
10 
 
 became one of the leaders of the bar of Virginia. The 
 Reports of Bushrod Washington and of Daniel Call show 
 that hardly any one argued so many cases before the 
 Court of Appeals of the State. 
 
 He was chosen in the spring of 1782 a representative 
 in the legislature of Virginia, and in the fall of the same 
 year a member of the executive council of the State. He 
 also served in the legislature in the years 1784, 1787 to 
 1792 and 1795. 
 
 Tn the convention of Virginia of 1788 upon the adop- 
 tion of the Constitution of the United States, Patrick 
 Henry, George Mason and William Grayson were the 
 principal opponents of the Constitution, and James Madi- 
 son, Governor Randolph, George Nicholas, Edmund Pen- 
 dleton and John Marshall its leading supporters ; and at 
 the close of its proceedings Marshall (then only thirty^- 
 three years of age) was made a member, both of the com- 
 mittee to report a form of ratification, and of the com- 
 mittee to report such amendments as by them should be 
 deemed necessary to be recommended ; and the only other 
 persons who were on both committees were Randolph, 
 Nicholas and Madison. 
 
 Patrick Henry said of him in that convention : “ I have 
 the highest veneration and respect for the honorable gen- 
 tleman ; and I have experienced his candour upon all occa- 
 sions.” And ten years after, when Marshall was a candi- 
 date for Congress, it being represented that Henry was 
 opposed to him, he wrote and published a letter saying 
 that he should give him his vote for Congress preferably 
 to any citizen of the State, General Washington only 
 excepted. 
 
 President Washington offered Marshall the District- 
 Attorneyship for the District of Virginia in 1789, and 
 the Attorney-Generalship, and the mission to France, 
 in 1796. President Adams offered him the office of 
 Associate Justice of the Supreme Court in 1798, upon the 
 death of Mr. Justice Wilson, and before appointing Bush- 
 rod Washington. 
 
11 
 
 In 1799, Marshall delivered in the House of Representa- 
 tives the speech vindicating the right and the duty of the 
 President to surrender Jonathan Robbins to the British 
 Government for trial for a murder on a British ship, of 
 which Mr. Binney justly says, that it has all the merits, 
 and nearly all the weight of a judicial sentence; and Mr. 
 Justice Story, that it placed him at once in the front 
 rank of constitutional statesmen, and settled then, and 
 forever, the points of national law upon which the con- 
 troversy hinged. 
 
 Mr. Wirt, himself eminent as a lawyer and as an orator, 
 who began the practice of the law but ten years later than 
 Marshall, and who knew him well, both at the bar and 
 on the bench, was so impressed with his style of argu- 
 ment, that he returned to it again and again in his 
 letters, which are the more interesting because of the abso- 
 lute contrast between the two men in that respect. 
 
 In the Letters of a British Spy, first published in 1803, 
 speaking of Marshall at the bar, Mr. Wirt said: “This 
 extraordinary man, without the aid of fancy, with- 
 out the advantages of person, voice, attitude, gesture, or 
 any of the ornaments of an orator, deserves to be consid- 
 ered as one of the most eloquent men in the world; if 
 eloquence may be said to consist in the power of seizing 
 the attention with irresistible force, and never permitting 
 it to elude the grasp until the hearer has received the con- 
 viction which the speaker intends.” “ He possesses one 
 original, and almost supernatural faculty: the faculty of 
 developing a subject by a single glance of his mind, and 
 detecting, at once, the very point on which every contro- 
 versy depends. No matter what the question ; though ten 
 times more knotty than ‘ the gnarled oak,’ the lightning of 
 heaven is not more rapid, nor more resistless, than his 
 astonishing penetration. Nor does the exercise of it 
 seem to cost him an effort. On the contrary, it is as easy 
 as vision. I am persuaded that his eyes do not fly over 
 a landscape, and take in its various objects with more 
 
12 
 
 promptitude and facility, than his mind embraces and 
 analyzes the most complex subject. Possessing this intel- 
 lectual elevation which enables him to look down and 
 comprehend the whole ground at once, he determines im- 
 mediately, and without difficulty, on which side the ques- 
 tion may be most advantageously approached and assailed. 
 In a bad cause, his art consists in laying his premises so 
 remotely from the point directly in debate, or else in 
 terms so general and so specious, that the hearer, seeing 
 no consequence which can be drawn from them, is just 
 as willing to admit them as not; but his premises 
 once admitted, the demonstration, however distant, fol- 
 lows as certainly, as cogently, as inevitably, as any 
 demonstration in Euclid. All his eloquence consists in 
 the apparently deep self-conviction and emphatic earnest- 
 ness of his manner; the correspondent simplicity and 
 energy of his style; the close and logical connection of 
 his thoughts; and the easy gradations by which he opens 
 his lights on the attentive minds of his hearers.” 
 
 Again, in a letter of May 6th, 1806, to Benjamin 
 Edwards, a friend of his youth, Mr. Wirt wrote: “Here is 
 John Marshall, whose mind seems to be little else than 
 a mountain of barren stupendous rocks, an inexhaustible 
 quarry from which he draws his materials and builds his 
 fabrics, rude and gothic, but of such strength that neither 
 time nor force can beat them down; a fellow who would 
 not turn off a single step from the right line of his argu- 
 ment, though a paradise should rise to tempt him.” 
 
 Once more, on December 20th, 1833, within two months 
 of his own death, in a letter of advice to a law student, he 
 wrote: “Learn (I repeat it) to think — to think deeply, com- 
 prehensively, mwerfully — and learn the simple, nervous 
 language which is appropriate to that kind of thinking. 
 Read the legal and political arguments of Chief Justice 
 Marshall, and those of Alexander Hamilton, which are 
 coming out. Read them, study them; and observe with 
 what an omnipotent sweep of thought they range over the 
 
13 
 
 whole field of every subject they take in hand — and that 
 with a scythe so ample and so keen, that not a straw is 
 left standing behind them.” 
 
 Before Ma rshall became Chief J ustice, very few casespof 
 constitutional law were decided by the Supreme Court. 
 
 The most important one was the case of Chisholm 
 against the State of Georgia, in which it was held in 1793, 
 by Chief Justice Jay and his associates, Mr. Justice Iredell 
 dissenting, that the Supreme Court had original jurisdic- 
 tion of an action brought against a State by a citizen of 
 another State. That decision proceeded upon the ground 
 that such was the effect of the Constitution, established 
 by the people in their sovereign capacity. But it was 
 inconsistent with the view which had been maintained by 
 Marshall in the Virginia convention of 1788; and it 
 was presently, as the Supreme Court has since said, 
 reversed and overruled by the people themselves, in 
 the Eleventh Amendment of the Constitution, which 
 declared that “ the judicial power of the United States 
 shall not be construed to extend to any suit in law 
 or equity, commenced or prosecuted against one of the 
 United States by citizens of another State, or by citizens 
 or subjects of any foreign State.” 
 
 Two cases from the Virginia Circuit were argued at 
 Philadelphia, in February, 1796, before Justices Cushing, 
 Wilson, Paterson and Chase, just before the appointment 
 of Chief Justice Ellsworth. In one of them, Ware against 
 Hylton, the case of the British debts, Marshall was of 
 counsel against the debts, and the court held them to be 
 protected by the treaty of peace. In the other, Hylton 
 against the United States, in which the court upheld the 
 constitutionality of the carriage tax, Marshall is said by 
 Judge Tucker to have been of counsel against the tax in 
 the Circuit Court; and Mr. Wirt, in a letter to Francis W. 
 Gilmer of November 2d, 1818, more than twenty years 
 after, spoke of Marshall as having argued this case in 
 Philadelphia ; but Mr. Wirt probably had in mind the 
 case of the British debts. 
 
14 
 
 John Marshall was Chief Justice of the United States 
 for more than thirty-four years, from his taking the oath of 
 office on February 4th, 1801, to his death on July 6th, 1835. 
 
 After his accession, the changes in the membership of 
 the Supreme Court became much less frequent than they 
 had been during the earlier }^ears of the court. Of the 
 Associate Justices on the bench at the time of his appoint- 
 ment, Moore continued to serve for three years ; Paterson 
 for nearly five years; Cushing and Chase for nearly 
 eleven years; and Bushrod Washington for nearly twenty- 
 nine years. William Johnson, appointed on the resigna- 
 tion of Moore in 1804, served thirty years, dying within 
 a year before Chief Justice Marshall; Livingston, ap- 
 pointed on the death of Paterson in 1806, served sixteen 
 years; Todd, appointed in 1807, (under an act of Con- 
 gress increasing the number of Associate Justices to six,) 
 nineteen years; and Duvall, appointed in 1811, on the death 
 of Chase, twenty-three years, resigning in January, 1835. 
 Story, also appointed in 1811, on the death of Cushing, 
 served nearly thirty-four years; and Thompson, appointed 
 in 1823, on the death of Livingston, twenty years. Trim- 
 ble, appointed in 1826, on the death of Todd, died in little 
 more than two years; and McLean, appointed in his 
 place in 1829, served thirty-two years. Justices Story, 
 Thompson and McLean remained on the bench at the 
 time of Chief Justice Marshall’s death. The other Asso- 
 ciate Justices at that time were Baldwin, appointed in 
 1830, on the death of Bushrod Washington; and Wayne, 
 appointed January 5th, 1835, in the place of William 
 Johnson. 
 
 Chief Justice Marshall’s conduct in regard to the ap- 
 pointment of some of his associates is worthy of mention. 
 
 On the death of Mr. Justice Trimble in 182S, President 
 John Quincy Adams offered his place to Henry Clay, who 
 declined it, and (as Mr. Adams states in his diary) “ read 
 me a letter from Chief Justice Marshall, speaking very 
 favorably of J. J. Crittenden to fill the office of Judge of 
 
15 
 
 the Supreme Court, but declining to write to me.” Crit- 
 tenden was nominated by President Adams, but was not 
 confirmed by the Senate. 
 
 In January, 1835, upon the resignation of Mr. Justice 
 Duvall, President Jackson nominated Roger B. Taney as 
 Associate Justice in bis place. While the nomination 
 was pending before the Senate, Chief Justice Marshall 
 wrote a note to Mr. Leigh, then a Senator from Virginia, 
 in these terms: “If you have not made up your mind on 
 the nomination of Mr. Taney, I have received some in- 
 formation in his favor which I would wish to communi- 
 cate.” Taney’s nomination as Associate Justice was in- 
 definitely postponed by the Senate; but within a year 
 afterwards, upon the death of Chief Justice Marshall, he 
 was nominated and confirmed as Chief Justice of the 
 United States. 
 
 Before Marshall’s appointment, the practice appears to 
 have been for all the justices to deliver their opinions seri- 
 atim — a practice which tends to bring into prominence the 
 subordinate points of view in which they differ, and to 
 obscure the principal point on which they agree; and, 
 while it sometimes makes the report of the case more in- 
 teresting, tends to impair its weight as a precedent for the 
 determination of future controversies. Under Marshall, 
 all subordinate differences seem to have been settled in 
 conference, or at any rate less often displayed to the public; 
 and the opinion of the court was usually delivered by one 
 justice, and in the majority of important, and especially 
 of constitutional cases, by Marshall himself. During his 
 time there were few dissenting opinions. 
 
 The only constitutional case in which Chief Justice Mar- 
 shall dissented from the judgment of the court was 
 Ogden against Saunders in 1827, which was decided by a 
 bare majority of the court against the opinion of Mar- 
 shall, Duvall and Story. But in Boyle against Zacharie 
 in 1832, notwithstanding a change in the membership of 
 the court, Marshall declared that the principles estab- 
 
16 
 
 lished in the former opinion were to be considered no 
 longer open for controversy. 
 
 Chief Justice Marshall, as appears by letters from him 
 to his associates on April 18th, 1802, was originally of 
 opinion that the Justices of the Supreme Court could 
 not hold Circuit Courts without distinct commissions as 
 circuit judges. But in Stuart against Laird in 1803, ap- 
 parently deferring to the opinions of his associates, he acted 
 as circuit judge ; and the Supreme Court, in an opinion 
 delivered by Mr. Justice Paterson, affirmed his judgment, 
 upon the ground that practice and acquiescence for 
 several years, commencing with the organization of the 
 judicial system, had fixed the construction beyond dispute. 
 
 Marshall’s judicial demeanor is best stated in the words 
 of an eye-witness. Mr. Binney, who had been admitted 
 to the bar of the Supreme Court in 1809, and who had 
 often practised before him, tells us: 
 
 “ He was endued by nature with a patience that was 
 never surpassed — patience to hear that which he knew 
 already, that which he disapproved, that which questioned 
 himself. When he ceased to hear, it was not because his 
 patience was exhausted, but because it ceased to be a 
 virtue. 
 
 “His carriage in the discharge of his judicial business 
 was faultless. Whether the argument was animated or 
 dull, instructive or superficial, the regard of his expres- 
 sive eye was an assurance that nothing that ought to 
 affect the cause was lost by inattention or indifference ; 
 and the courtesy of his general manner was only so far 
 restrained on the bench, as was necessary for the dignity 
 of office, and for the suppression of familiarity. 
 
 “ His industry and powers of labor, when contemplated 
 in connection with his social temper, show a facility that 
 does not generally belong to parts of such strength.” 
 
 “To qualities such as these, he joined an immovable 
 firmness befitting the office of presiding judge in the 
 highest tribunal of the country. It was not the result of 
 
17 
 
 excited feeling, and consequently never rose or fell with 
 the emotions of the day. It was the constitution of his 
 nature, and sprung from the composure of a mind undis- 
 turbed by doubt, and of a heart unsusceptible of fear.” 
 
 “ In.him his country have seen that triple union of law- 
 yer, statesman, and patriot, which completes the frame 
 of a great constitutional judge.” 
 
 He had not the technical learning in the common 
 law of Coke, or of several of Coke’s successors. But, in the 
 felicitous words of Mr. Justice Story, “ he seized, as it 
 were by intuition, the very spirit of juridical doctrines, 
 though cased up in the armor of centuries; and he dis- 
 cussed authorities, as if the very minds of the judges 
 themselves stood disembodied before him.” 
 
 He had not the learning of Nottingham or of Hard- 
 wicke in the jurisdiction and practice of the court of chan- 
 cery, or of Mansfield in the general maritime law. But 
 his judgments show that he was a master of the principles 
 of equity, and of commercial law. 
 
 He had not the elegant scholarship of Stowell. But it 
 is not too much to say that his judgments in prize causes 
 exhibit a broader and more truly international view of 
 the law of prize. Upon the question of the exemption 
 of ships of war and some other ships, it was observed 
 by Lord Justice Brett in the English Court of Appeal in 
 1880, “the first case to be carefully considered is, and 
 always will be, The Exchange,” decided by Chief Justice 
 Marshall in 1812. 
 
 The jurisdiction of the court over which he presided 
 was not confined to one department or branch of the law; 
 it included common law, equity, maritime law, the law 
 of admiralty and prize, and, in some degree, the civil law 
 of Spain and of France. 
 
 Beyond all this, the jurisdiction of his court extended 
 to constitutional law, in a more comprehensive sense than 
 ever belonged to the courts of any other country. 
 
 2 
 
18 
 
 In England, there is no law of higher sanction than 
 an act of Parliament; and Parliament has uncontrolled 
 power to change or to repeal even Magna Charta. It is 
 otherwise in this country. 
 
 One of the earliest and most important judgments of 
 Marshall is Marbury against Madison, decided in 1803, 
 in which the paramount obligation of the Constitution 
 over all ordinary statutes was declared and established 
 by a course of reasoning which may be indicated by a 
 few extracts from the opinion. 
 
 “ The Constitution is either a superior paramount law, 
 unchangeable by ordinary means; or it is on a level with 
 ordinary legislative acts, and, like other acts, is alterable 
 when the legislature shall please to alter it. If the former 
 part of the alternative be true, then a legislative act con- 
 trary to the Constitution is not law; if the latter part be 
 true, then written constitutions are absurd attempts, on 
 the part of the people, to limit a power in its own nature 
 illimitable. 
 
 “Certainly all those who have framed written con-j| 
 stitutions contemplate them as forming the fundamental 
 and paramount law of the nation, and consequently the 
 theory of every such government must be, that an act of 
 the legislature, repugnant to the Constitution, is void. 
 This theory is essentially attached to a written consti- 
 tution, and is consequently to be considered by this court 
 as one of the fundamental principles of our society.” 
 
 “ It is emphatically the province and duty of the judi- 
 cial department to say what the law is. Those who apply 
 the rule to particular cases must of necessity expound 
 and interpret that rule. If two laws conflict with each 
 other, the courts must decide on the operation of each. 
 So if a law be in opposition to the Constitution; if both 
 the law and the Constitution apply to a particular case, 
 so that the court must either decide that case conformably 
 to the law, disregarding the Constitution ; or conformably 
 to the Constitution, disregarding the law; the court must 
 
19 
 
 determine which of these conflicting rules governs the 
 case. This is of the very essence of judicial duty. If then, 
 the courts are to regard the Constitution, and the Constitu- 
 tion is superior to any ordinary act of the legislature, the 
 Constitution, and not such ordinary act, must govern the 
 case to which they both apply.” 
 
 “ The particular phraseology of the Constitution of the 
 United States confirms and strengthens the principle, 
 supposed to be essential to all written constitutions, that 
 a law repugnant to the Constitution is void ; and that 
 courts , as well as other departments, are bound by that 
 instrument.” 
 
 In the light of experience, it is curious to look back 
 upon the doubt and apprehension entertained by some 
 of the Northern Federalists with regard to Marshall 
 shortly before he became Chief Justice. For instance, 
 on the 29th of December, 1799, when he had just en- 
 tered the House of Representatives, Oliver Wolcott, 
 then Secretary of the Treasury under President Adams, 
 wrote to Fisher Ames: “He is doubtless a man of 
 virtue and distinguished talents; but he will think much 
 of the State of Virginia, and is too much disposed to 
 govern the world according to rules of logic; he will 
 read and expound the Constitution as if it were a penal 
 statute, and will sometimes be embarrassed with doubts of 
 which his friends will not perceive the importance.” 
 
 Why should he not “think much of the State of Vir- 
 ginia?” What State of the Union had produced such a 
 galaxy of great men? And what American, worthy of 
 the name, does not cherish a peculiar affection for the 
 State of his birth and his home? But such an affection 
 for one’s own State is by no means incompatible with a 
 paramount allegiance and devotion to the United States 
 as one’s country. There is no more striking illustration 
 of this truth than Chief Justice Marshall himself. 
 
 It was upon writs of error to the highest court of Vir- 
 ginia in which a decision in the case could be had — at first 
 
20 
 
 in 1816, in the case of Martin against Hunter’s Lessee, 
 a case between private individuals; and afterwards in 
 1821, in the case of Cohens against Virginia, a criminal 
 prosecution instituted by the State — that the Supreme 
 Court, under the lead of Chief Justice Marshall, up- 
 held and established its appellate jurisdiction, under 
 the Constitution and the Judiciary Act, to review the 
 judgment of the State court against a right claimed under 
 the Constitution or the laws of the United States. In the 
 first case, indeed, perhaps because it came from his own 
 State, he allowed Mr. Justice Story to draw up the opinion 
 of the court. But in the second case he himself expressed 
 the unanimous conclusion of the court in one of his most 
 elaborate and most powerful judgments. 
 
 The idea that he would “ read and expound the Con- 
 stitution as if it were a penal statute” seems now almost 
 ludicrous. Take, for instance, his judgments in the cases 
 of McCulloch against Maryland in 1819, and of Wiltberger 
 in 1820. In Wiltberger’s case, he clearly stated the reasons 
 and the limits of the rule that penal statutes are to be con- 
 strued strictly. But in McCulloch’s case, when dealing 
 with the question what powers may be implied from the 
 express grants to Congress in the Constitution, he said : “A 
 constitution, to contain an accurate detail of all the sub- 
 divisions of which its great powers will admit, and of all 
 the means by which they may be carried into execution, 
 would partake of the prolixity of a legal code, and could 
 hardly be embraced by the human mind. It would prob- 
 ably never be understood by the public. Its nature, 
 therefore, requires, that only its great outlines should be 
 marked, its important objects designated, and the minor 
 ingredients which compose those objects be deduced from 
 the nature of the objects themselves. That this idea was 
 entertained by the framers of the American Constitution, 
 is not only to be inferred from the nature of the instru- 
 ment, but from the language. Why else were some of 
 the limitations, found in the ninth section of the first 
 
21 
 
 article, introduced? It is also, in some degree, warranted 
 by their having omitted to use any restrictive term which 
 might prevent its receiving a fair and just interpretation. 
 In considering this question, then, we must never forget, 
 that it is a constitution we are expounding.” 
 
 In McCulloch’s case, after full discussion, he thus de- 
 fined the rule: “We admit, as all must admit, that the 
 powers of the government are limited, and that its limits 
 are not to be transcended. But we think the sound con- 
 struction of the Constitution must allow to the national 
 legislature that discretion, with respect to the means by 
 which the powers it confers are to be carried into execu- 
 tion, which will enable that body to perform the high duties 
 assigned to it, in the manner most beneficial to the people. 
 Let the end be legitimate, let it be within the scope of the 
 Constitution, and all means which are appropriate, which 
 are plainly adapted to that end, which are not prohibited, 
 but consist with the letter and spirit of the Constitution, 
 are constitutional.” “Where the law is not prohibited, 
 and is really calculated to effect any of the objects en- 
 trusted to the government, to undertake here to inquire 
 into the degree of its necessity would be to pass the line 
 which circumscribes the judicial department, and to tread 
 on legislative ground. This court disclaims all preten- 
 sions to such a power.” 
 
 Among his other greatest judgments are United States 
 against Peters, on the sanctity of judgments of the courts 
 of the United States; Fletcher against Peck, and Dart- 
 mouth College against Woodward, that a grant by a State 
 is a contract, the obligation of which cannot afterwards 
 be impaired; Gibbons against Ogden, and Brown against 
 Maryland, on the paramount nature of the power of Con- 
 gress to regulate commerce with foreign nations and 
 among the several States ; Sturges against Crowninshield, 
 on the power of the States to pass insolvent laws; and 
 Osborn against the Bank of the United States, on the 
 subject of suits by the Bank of the United States. 
 
22 
 
 But he gave clue weight to the decisions of the courts 
 of the several States, saying, in Elmendorf against Taylor : 
 “This court has uniformly professed its disposition, in 
 cases depending on the laws of a particular State, to adopt 
 the construction which the courts of the State have given 
 to those laws. This course is founded on the principle, 
 supposed to be universally recognized, that the judicial 
 department of every government, where such department 
 exists, is the appropriate organ for construing the legis- 
 lative acts of that government. Thus, no court in the 
 universe, which professed to be governed by principle, 
 would, we presume, undertake to say that the courts of 
 Great Britain, or of France, or of any other nation, had 
 misunderstood their own statutes, and therefore erect itself 
 into a tribunal which should correct such misunderstand- 
 ing. We receive the construction given by the courts of 
 the nation as the true sense of the law, and feel ourselves 
 no more at liberty to depart from that construction, than 
 to depart from the words of the statute. On this principle, 
 the construction given by this court to the Constitution 
 and laws of the United States is received by all as the 
 true construction ; and on the same principle, the con- 
 struction given by the courts of the several States to the 
 legislative acts of those States is received as true, unless 
 they come in conflict with the Constitution, laws or 
 treaties of the United States.” 
 
 In the cases of Bollman and Swartwout in the Supreme 
 Court, and in the trial of Aaron Burr in this Circuit, he 
 set bounds to the doctrine of constructive treasons. As 
 showing the pains taken by the Chief Justice, it may be 
 interesting to note, what is not generally known, that on 
 June 29th, 1807, after the indictments had been found 
 against Burr and others, and more than a month before 
 the trial, he wrote letters to each of his associates, asking 
 their opinions upon questions of law that would arise, and 
 saying: “I am aware of the unwillingness with which a 
 judge will commit himself by an opinion on a case not 
 
23 
 
 before him, and on which he has heard no argument. 
 Could this case be readily carried into the Supreme Court, 
 I would not ask an opinion in its present stage. But these 
 questions must be decided by the judges separately on 
 their respective circuits, and I am sure there would be a 
 strong and general repugnance to giving contradictory 
 decisions on the same points. Such a circumstance would 
 be disreputable to the judges themselves, as well as to our 
 judicial system. This consideration suggests the propri- 
 ety of a consultation on new and difficult subjects, and 
 will, I trust, apologize for this letter.” 
 
 His letters to Mr. Justice Story show that he often con- 
 sulted him on admiralty cases pending in the Circuit 
 Court. 
 
 One is apt to forget that Mr. Justice Story was origin- 
 ally a Democrat, and was appointed to the court by James 
 Madison, a Democratic President. He soon became a 
 devoted adherent of Chief Justice Marshall, and fully 
 recognized his leadership. 
 
 In an article in the North American Review in 1828, 
 he wrote: “We resume the subject of the constitutional 
 labors of Chief Justice Marshall. We emphatically say, 
 of Chief Justice Marshall; for though we would not be 
 unjust to those learned gentlemen who have from time 
 to time been his associates on the bench, we are quite 
 sure that they would be ready to admit, what the public 
 universally believe, that his master mind has presided 
 in their deliberations, and given to the results a cogency 
 of reasoning, a depth of remark, a persuasiveness of 
 argument, a clearness and elaboration of illustration, 
 and an elevation and comprehensiveness of conclusion, 
 to which none others offer a parallel. Few decisions upon 
 constitutional questions have been made, in which he has 
 not delivered the opinion of the court; and in these few, 
 the duty devolved upon others to their own regret, either 
 because he did not sit in the cause, or from motives of- 
 delicacy abstained from taking an active part.” 
 
24 
 
 Five years later, in dedicating his Commentaries on the 
 Constitution of the United States to Chief Justice Marshall, 
 Mr. Justice Story said : “When I look back upon your 
 judicial labors during a period of thirty-two years, it is 
 difficult to suppress astonishment at their extent and 
 variety, and at the exact learning, the profound reasoning 
 and the solid principles which they everywhere display. 
 Other judges have attained an elevated reputation by 
 similar labors, in a single department of jurisprudence. 
 But in one department, (it need scarcely be said that I 
 allude to that of constitutional law,) the common consent 
 of your countrymen has admitted you to stand without 
 a rival. Posterity will assuredly confirm, by its deliber- 
 ate award, what the present age has approved as an act of 
 undisputed justice.” 
 
 Upon two important points in which decisions made 
 in Chief Justice Marshall’s time have been since over- 
 ruled, the later decisions are in accord with the opinions 
 which he finally entertained. 
 
 The court, in 1809, in opinions delivered by him, 
 decided that a corporation aggregate could not be a citi- 
 zen; and could not litigate in the courts of the United 
 States, unless in consequence of the character of its 
 members, appearing by proper averments upon the 
 record. In Louisville Railroad Company against Let- 
 son, in 1844, those decisions w^ere overruled; and it 
 appears by the opinion of the court, as well as by a letter 
 from Mr. Justice Story to Chancellor Kent of August 31st, 
 1844, that Chief Justice Marshall had become satisfied 
 that the early decisions were wrong. 
 
 In the case of The Thomas Jefferson, in 1825, it was 
 decided by a unanimous opinion of the court, delivered 
 by Mr. Justice Stoiy, that the jurisdiction of the courts of 
 admiralty of the United States was limited by the ebb 
 and flow of the tide. But an article published in the 
 New York Review for October, 1838, by one who was 
 evidently intimate with Chief Justice Marshall, tells 
 
25 
 
 us: “He said, (and he spoke of it as one of the most 
 deliberate opinions of his life,) at a comparatively late 
 period, that he had always been of opinion that we in 
 America had misapplied the principle upon which the 
 admiralty jurisdiction depended — that in England the 
 common expression was, that the admiralty jurisdiction 
 extended only on tide waters, and as far as the tide ebbed 
 and flowed; and this was a natural and reasonable exposi- 
 tion of the jurisdiction in England, where the rivers were 
 very short, and none of them navigable from the sea 
 beyond the ebb and flow of the tide — that such a narrow 
 interpretation was wholly inapplicable to the great rivers 
 of America; that the true principle, upon which the 
 admiralty jurisdiction in America depended, was to ascer- 
 tain how far the river was navigable from the sea; and 
 that consequently, in America, the admiralty jurisdiction 
 extended upon our great rivers not only as far as the 
 tide ebbed and flow r ed in them, but as far as they were 
 navigable from the sea ; as, for example, on the Mississippi 
 and its branches, up to the falls of the Ohio. He also 
 thought that our great lakes at the west were not to be 
 considered as mere inland lakes, but were to be deemed 
 inland navigable seas, and as such were subject, or ought 
 to be subject, to the same jurisdiction.” He thus fore- 
 shadowed the decision made in 1851 in the case of The 
 Genesee Chief, by which the decision in The Thomas 
 Jefferson was explicitly overruled. 
 
 Among the most interesting records of the impression 
 made by Chief Justice Marshall upon his contemporaries 
 are entries written presently after his death (although 
 not published until much later) in the diary of John 
 Quincy Adams, who was then sixty-eight years old; had 
 been a member of either House of Congress; charged with 
 many a diplomatic mission abroad; Secretary of State 
 throughout the administration of President Monroe, and 
 himself President of the United States; had long before 
 been an active member of the bar of the Supreme Court, 
 
26 
 
 and had declined the appointment of Associate Justice, 
 offered him by President Madison before he appointed 
 Mr. Justice Story; and who, as his diary shows, was not 
 given to indiscriminate or excessive laudation. 
 
 In that diary, under date of July 10th, 1835, Mr. Adams 
 wrote: “John Marshall, Chief Justice of the United 
 States, died at Philadelphia last Monday, the 4th instant. 
 He was one of the most eminent men that this country has 
 ever produced. He has held this appointment thirty-five 
 years. It was the last act of my father’s administration, 
 and one of the most important services rendered by him 
 to his country. All constitutional governments are flexi- 
 ble things; and as the Supreme Judicial Court is the 
 tribunal of last resort for the construction of the Consti- 
 tution and the laws, the office of Chief Justice of that 
 court is a station of the highest trust, of the deepest 
 responsibility, and of influence far more extensive than 
 that of the President of the United States. John Marshall 
 was a Federalist of the Washington school. The Asso- 
 ciate Judges from the time of his appointment have gen- 
 erally been taken from the Democratic or Jeffersonian 
 party.” “Marshall, by the ascendency of his genius, by 
 the amenity of his deportment, and by the imperturbable 
 command of his temper, has given a permanent and sys- 
 tematic character to the decisions of the court, and settled 
 many great constitutional questions favorably to the 
 continuance of the Union.” 
 
 In the same diary, again, a month later, Mr. Adams 
 wrote: “The office of Chief Justice requires a mind 
 of energy sufficient to influence generally the minds 
 of a majority of his associates ; to accommodate his judg- 
 ment to theirs, or theirs to his own ; a judgment also 
 capable of abiding the test of time and of giving sat- 
 isfaction to the public. It requires a man profoundly 
 learned in the law of nations, in the commercial and 
 maritime law, in the civil law, in the common law of 
 England, and in the general statute laws of the several 
 
27 
 
 States of the Union. With all these powers steadily 
 exercised during a period of thirty -four years, Chief 
 Justice Marshall has settled many questions of constitu- 
 tional law, certainly more than all the Presidents of the 
 United States together.'’ 
 
 The late Mr. Justice Bradley, after a distinguished 
 service of nearly twenty years on the bench of the Supreme 
 Court, wrote in 1889 of Chief Justice Marshall as fol- 
 lows: “It is needless to say that Marshall’s reputation 
 as a great constitutional judge is peerless. The char- 
 acter of his mind and his previous training were such 
 as to enable him to handle the momentous questions, 
 to which the conflicting views upon the Constitution 
 gave rise, with the soundest logic, the greatest breadth of 
 view, and the most far-seeing statesmanship. He came 
 to the bench with a reputation already established — the 
 reputation not only of a great lawyer, but of an eminent 
 statesman and publicist.” “ It may truly be said that the" 
 Constitution received its final and permanent form from 
 the judgments rendered by the Supreme Court during 
 the period in which Marshall was at its head. With a 
 few modifications, superinduced by the somewhat differ- 
 ing views on two or three points of his great successor, 
 and aside from the new questions growing out of the late 
 civil war and the recent constitutional amendments, 
 the decisions made since Marshall’s time have been little 
 more than the application of the principles established 
 by him and his venerated associates.” 
 
 “ The American Constitution as it now stands,” says 
 Mr. James Bryce, in his book on The American Com- 
 monwealth, “is a far more complete and finished instru- 
 ment than it was when it came fire-new from the hands 
 of the Convention. It is not mere]) 7 their work, but the 
 work of the judges, and most of all of one man, the great 
 Chief Justice Marshall.” “ His w 7 ork of building up and 
 working out the Constitution was accomplished not so 
 much by the decisions he gave, as by the judgments in 
 
28 
 
 which he expounded the principles of these decisions, 
 judgments which for their philosophical breadth, the 
 luminous exactness of their reasoning, and the fine 
 political sense which pervades them, have never been 
 surpassed and rarely equalled by the most famous jurists 
 of modern Europe or of ancient Rome.” “ He grasped 
 with extraordinary force and clearness the cardinal idea 
 that the creation of a national government implies the 
 grant of all such subsidiary powers as are requisite to 
 the effectuation of its main powers and purposes; but 
 he developed and applied this idea with so much pru- 
 dence and sobriety, never treading on purely political 
 ground, never indulging the temptation to theorize, but 
 content to follow out as a lawyer the consequences of legal 
 principles, that the Constitution seemed not so much to 
 rise under his hands to its full stature, as to be gradually 
 unveiled by him till it stood revealed in the harmonious 
 perfection of the form which its framers had designed.” 
 
 The very greatness and completeness of the work of 
 Chief Justice Marshall tends to prevent our appreciating 
 how great it was. 
 
 He was a great statesman, as well as a great lawyer, 
 and yet constantly observed the distinction between law, 
 as judicially administered, and statesmanship. 
 
 The Constitution of the United States created a nation 
 upon the foundation of a written constitution ; and, as 
 expounded by Marshall, transferred in large degree the 
 determination of the constitutionality of the acts of the 
 legislature or the executive from the political to the judi- 
 cial department. 
 
 Marshall grew up with the Constitution. He served in 
 the legislature of Virginia before and after its adoption, 
 and in the convention of Virginia by which it was ratified. 
 He took part in its administration, abroad and at home, 
 in a foreign mission, in the House of Representatives, 
 and in the Department of State, before he became the 
 head of the judiciary, within a quarter of a century after 
 
29 
 
 the Declaration of Independence, and less than twelve 
 years after the Constitution was established. 
 
 During the thirty-four years of his Chief Justiceship he 
 expounded and applied the Constitution, in almost every 
 aspect, with unexampled sagacity, courage and caution. 
 
 He had an intuitive perception of the real issue of 
 every case, however complicated, and of the way in which 
 it should be decided. 
 
 His manner of reasoning was peculiarly judicial. It 
 was simple, direct, clear, strong, earnest, logical, compre- 
 hensive, demonstrative, starting from admitted premises, 
 frankly meeting every difficulty, presenting the case in 
 every possible aspect, and leading to philosophical and 
 profound^ wise conclusions, sound in theory and practi- 
 cal in result. He recognized that, next to a right de- 
 cision, it was important that reasons for the decision 
 should be fully stated so as to satisfy the parties and the 
 public. And it may be said of him, as Charles Butler, 
 in his Reminiscences, says of Lord Camden, that he 
 sometimes “rose to sublime strains of eloquence: but 
 their sublimity was altogether in the sentiment; the dic- 
 tion retained its simplicity, and this increased the effect.” 
 
 It was in the comparatively untrodden domain of con- 
 stitutional law, in bringing acts of the legislature and of 
 the executive to the test of the fundamental law of the 
 Constitution, that his judicial capacity was preeminently 
 shown. Deciding upon legal grounds, and only so much 
 as was necessary for the disposition of the particular case, 
 he constantly kept in mind the whole scheme of the Con- 
 stitution. And he answered all possible objections with 
 such fulness and such power as to make his conclusions 
 appear natural and inevitable. 
 
 The principles affirmed by his judgments have become 
 axioms of constitutional law. And it is difficult to over- 
 estimate the effect which those judgments have had in 
 quieting controversies on constitutional questions, and 
 in creating or confirming a sentiment of allegiance to the 
 
30 
 
 Constitution, as loyal and devoted as ever was given to 
 any sovereign. 
 
 You will, I hope, forgive me one personal anecdote. 
 While I had the honor to be Chief Justice of Massachu- 
 setts, I was a guest of a Boston merchant at a dinner party 
 of gentlemen, which included Mr. Bartlett, then the fore- 
 most lawyer of Massachusetts, and one of the leaders at 
 the bar of the Supreme Court of the United States. In 
 the course of the dinner, the host, turning to me, asked, 
 “How great a judge was this Judge Marshall, of whom 
 you lawyers are always talking?” I answered, “The 
 greatest judge in the language.” Mr. Bartlett spoke up, 
 “Is not that rather strong, Chief Justice?” I rejoined, 
 “ Mr. Bartlett, what do you say?” After a moment’s pause, 
 and speaking with characteristic deliberation and empha- 
 sis, he replied: “ I do not know but you are right.” 
 
 A service of nearly twenty years on the bench of the 
 Supreme Court has confirmed me in this estimate. We 
 must remember that, as has been well said b} 7 an eminent 
 advocate of our own time, Mr. Edward J. Phelps, in 
 speaking of Chief Justice Marshall: “The test of his- 
 torical greatness — the sort of greatness that becomes im- 
 portant in future history — is not great ability merely. 
 It is great ability, combined with great opportunity, 
 greatly employed.” None other of the great judges of 
 England or of America ever had the great opportunity 
 that fell to the lot of Marshall. 
 
 John Marshall, during his term of office as Chief Justice, 
 undertook no other public employment, except that, at 
 the beginning of that term, and at the particular request 
 of President John Adams, he continued to hold the office 
 of Secretary of State for the last month of his adminis- 
 tration ; and that, at seventy-four years’of age, and after 
 having been Chief Justice twenty -eight years, he was 
 persuaded to serve as a member of the Virginia conven- 
 tion of 1829-30 to revise the constitution of the State. 
 
31 
 
 At the time of becoming a member of that convention, 
 he wrote to Mr. Justice Story an amusingly apologetic 
 letter, dated Richmond, June 11th, 1829, in which he 
 said: “ I am almost ashamed of my weakness and irreso- 
 lution, when I tell } T ou that I am a member of our con- 
 vention. I was in earnest when I told you that I would 
 not come into that body, and really believed that I should 
 adhere to that determination ; but I have acted like a girl 
 addressed by a gentleman she does not positively dislike, 
 but is unwilling to marry. She is sure to yield to the 
 advice and persuasion of her friends.” “ I assure you I 
 regret being a member, and could I have obeyed the dic- 
 tates of my own judgment I should not have been one. 
 I am conscious that I cannot perform a part I should wish 
 to take in a popular assembly ; but I am like Moliere’s 
 Medecin Malgre Lui.” 
 
 Mr. Grigsby tells us that “ he spoke but seldom in the 
 convention, and always with deliberation,” and that “ an 
 intense earnestness was the leading trait of his manner.” 
 Some remarks of his on the judicial tenure may fitly be 
 quoted, without comment. 
 
 Strenuously upholding, as essential to the independ- 
 ence of the judiciary, the tenure of office during good 
 behavior, he said: “I have grown old in the opinion, 
 that there is nothing more dear to Virginia, or ought to 
 be dearer to her statesmen, and that the best interests of 
 our country are secured by it. Advert, Sir, to the duties 
 of a judge. He has to pass between the government and 
 the man whom that government is prosecuting : between 
 the most powerful individual in the community, and the 
 poorest and most unpopular.” “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? You do not 
 allow a man to perform the duties of a juryman or a judge, 
 if he has one dollar of interest in the matter to be decided ; 
 and will you allow a judge to give a decision when his 
 
32 
 
 office may depend upon it? When his decision may 
 offend a powerful and influential man? ” “And will you 
 make me believe that if the manner of his decision may 
 affect the tenure of that office, the man himself will not 
 be affected by that consideration?” “I have always 
 thought, from my earliest youth till now, that the greatest 
 scourge an angry Heaven ever inflicted upon an ungrate- 
 ful and a sinning people was an ignorant, a corrupt, or 
 a dependent judiciary.” 
 
 The question of the weight, as a precedent, of the act 
 of Congress of 1802, abolishing the circuit judgeships 
 created by Congress in 1801, having been discussed by 
 other members of the convention, and Chief Justice Mar- 
 shall’s opinion having been requested, he said, “that it 
 was with great, very great repugnance, that he rose to utter 
 a syllable upon the subject. His reluctance to do so was 
 very great indeed ; and he had, throughout the previous 
 debates on this subject, most carefully avoided expressing 
 any opinion whatever upon what had been called a con- 
 struction of the Constitution of the United States by the 
 act of Congress of 1802. He should now, as far as possi- 
 ble, continue to avoid expressing any opinion on that act 
 of Congress. There was something in his situation, which 
 ought to induce him to avoid doing so. He would go no 
 farther than to say, that he did not conceive the Consti- 
 tution to have been at all definitively expounded by a 
 single act of Congress. He should not meddle with the 
 question, whether a course of successive legislation should 
 or should not be held as a final exposition of it; but he 
 would say this — that a single act of Congress, unconnected 
 with any other act by the other departments of the Fed- 
 eral Government, and especially of that department more 
 especially entrusted with the construction of the Consti- 
 tution in a great degree, when there was no union of de- 
 partments, but the legislative department alone had acted, 
 and acted but once, even admitting that act not to have 
 passed in times of high political and party excitement, 
 could never be admitted as final and conclusive.” 
 
33 
 
 A discussion of the merits of his Life of Washington 
 would be out of place on this occasion. But I may men- 
 tion having been favored with a sight of his letter of 
 November 25th, 1833, accepting the Presidency of the 
 AVashington National Monument Society, in which he 
 said: “You are right in supposing that the most ardent 
 wish of my heart is to see some lasting testimonial of the 
 grateful affection of his country erected to the memory of 
 her first citizen. I have always wished it, and have 
 always thought that the metropolis of the Union was the 
 first place for this national monument.” 
 
 His letter to Delaplaine, containing the autobiography 
 already quoted, contains another passage too character- 
 istic to he omitted: “I received also a letter from you, 
 requesting some expression of my sentiments respecting 
 your repository, and indicating an intention to publish in 
 some conspicuous manner the certificates which might be 
 given by Air. Wirt and myself. I have been ever particu- 
 larly unwilling to obtain this kind of distinction, and 
 must insist on not receiving it now. I have, however, no 
 difficulty in saying, that your work is one in which the 
 nation ought to feel an interest, and I sincerely wish it 
 may be encouraged, and that, you may receive ample com- 
 pensation for your labor and expense. The execution is, 
 I think, in many respects praiseworthy. The portraits, 
 an object of considerable interest, are, so far as my 
 acquaintance extends, good likenesses ; and the printing 
 is neatly executed with an excellent type. In the charac- 
 ters there is of course some variety. Some of them are 
 drawn with great spirit and justice; some are, perhaps, 
 rather exaggerated. There is much difficulty in giving 
 living characters, at any rate until they shall have with- 
 drawn from the public view.” And Air. AATrt, then 
 Attorney General, wrote a similar letter November 5th, 
 ISIS, to Delaplaine. 
 
 Alarshall was, like Lord Camden and other eminent 
 judges, a great reader of novels. On November 26th, 
 3 
 
34 
 
 1826, he wrote to Mr. Justice Story that he had just fin- 
 ished reading Miss Austen’s novels, and was much pleased 
 with them, saying: “Her flights are not lofty, she does 
 not soar on eagle’s wings, but she is pleasing, interesting, 
 equable and yet amusing.” 
 
 To his latest years, he retained his love of country life, 
 and his habits of exercise in the open air. He continued 
 to own the family place in Fauquier County, where he 
 had passed his boyhood, and usually visited it in the 
 summer. And he had another farm three or four miles 
 from Richmond, and often walked out or in. 
 
 Mr. Binney, in his sketches of the Old Bar of Phila- 
 delphia, incidentally mentions: “After doing my best, 
 one morning, to overtake Chief Justice Marshall in his 
 quick march to the Capitol, when he was nearer to eighty 
 than to seventy, I asked him to what cause in particular 
 he attributed that strong and quick step ; and he replied 
 that he thought it was most due to his commission in the 
 army of the Revolution, in which he had been a regular 
 foot practitioner for nearly six years.” 
 
 You would not forgive me, were I to omit to mention 
 the Quoit Club, or Barbecue Club, which for many 
 years used to meet on Saturdays at Buchanan’s Spring in 
 a grove on the outskirts of Richmond. The city has 
 spread over the place of meeting, the spring has been 
 walled in and the grove cut down, and the memories of 
 the Club are passing into legend. 
 
 According to an account preserved in an article on 
 Chief Justice Marshall in the number for February, 1836, 
 of the Southern Literary Messenger, (which I believe has 
 always been considered as faithfully recording the senti- 
 ments and the traditions of Virginia,) the Quoit Club was 
 coeval with the Constitution of the United States, having 
 been organized in 1788 by thirty gentlemen, of whom 
 Marshall was one; and it grew out of informal fortnightly 
 meetings of some Scotch merchants to play at quoits. 
 
35 
 
 "Who can doubt that, if those Scotchmen had only intro- 
 duced their national game of golf, the Chief Justice would 
 have become a master of that game? 
 
 There are several picturesque descriptions of the part 
 he took at the meetings of the Quoit Club. It is enough 
 to quote one, perhaps less known than the others, in 
 which the artist, Chester Harding, visiting Richmond 
 during the session of the State convention of 1829-30, 
 when the Chief Justice was nearly seventy-five years old, 
 and the last survivor of the founders of the Club, tells us: 
 “I again met Judge Marshall in Richmond, whither I 
 went during the sitting of the convention for amending the 
 constitution. He was a leading member of a quoit club, 
 which I was invited to attend. The battle-ground was 
 about a mile from the city, in a beautiful grove. I went 
 early, with a friend, just as the party were beginning to 
 arrive. J watched for the coming of the old chief. He 
 soon approached with his coat on his arm, and his hat in 
 his hand, which he was using as a fan. He walked 
 directly up to a large bowl of mint-julep, which had been 
 prepared, and drank off a tumbler full of the liquid, 
 smacked his lips, and then turned to the company with a 
 cheerful ‘How are you, gentlemen?’ He was looked 
 upon as the best pitcher of the party, and could throw 
 heavier quoits than any other member of the club. The 
 game began with great animation. There were several 
 ties; and, before long, I saw the great Chief Justice of the 
 Supreme Court of the United States down on his knees, 
 measuring the contested distance with a straw, with as 
 much earnestness as if it had been a point of law ; and 
 if he proved to be in the right, the woods would ring 
 with his triumphant shout.” 
 
 In the summer and autumn of 1831, the Chief Justice 
 had a severe attack of stone, which was cured by lithot- 
 omy, performed by the eminent surgeon, Dr. Physick, 
 of Philadelphia, in October, 1831. Another surgeon, 
 who assisted at the operation, tells us that his recovery 
 
36 
 
 was in a great degree owing to his extraordinary self- 
 possession, and to the calm and philosophical views 
 which he took of his case, and of the various circum- 
 stances attending it. Just before the operation, he wrote 
 to Mr. Justice Story: “I am most earnestly attached to 
 the character of the department, and to the wishes and 
 convenience of those with whom it has been my pride 
 and my happiness to be associated for so many years. 
 I cannot be insensible to the gloom which lowers over 
 us. I have a repugnance to abandoning you under 
 such circumstances, which is almost invincible. But the 
 solemn convictions of my judgment, sustained by some 
 pride of character, admonish me not to hazard the dis- 
 grace of continuing in office a mere inefficient pageant.” 
 He concluded by saying that he had determined to 
 postpone until the next term the question whether he 
 should resign his office. After the operation, he wrote: 
 “ Thank Heaven, I have reason to hope that I am relieved. 
 I am, however, under the very disagreeable necessity of 
 taking medicine continually to prevent new formations. 
 I must submit, too, to a severe and most unsociable 
 regimen. Such are the privations of age.” He contin- 
 ued to perform the duties of his office, with undimin- 
 ished powers of mind, for nearly four years more, and 
 ultimately died, in his eightieth year, of a disease of a 
 wholly different character, an enlarged condition of the 
 liver. 
 
 There are many testimonies to his great modesty, self- 
 effacement and true humility, in any company, whether 
 of friends or of strangers. Let me quote but one, recently 
 made known to me by the kindness of the President of 
 your Supreme Court of Appeals, (a kinsman of Chief 
 Justice Marshall,) and which, with his permission, is 
 given in his own words: “I have an aunt in Fau- 
 quier County, Miss Lucy Chilton, now in her ninety-first 
 year. I asked her on one occasion if she had known 
 Judge Marshall. She replied that she had spent weeks 
 
37 
 
 at a time in the same house with him. I then asked her 
 what trait or characteristic most impressed her. She re- 
 plied without hesitation : ‘ His humility. He seemed to 
 think himself the least considered person in whatever 
 company he chanced to be.’ ” This quality in him may 
 help us to understand the saying, that the great lawgiver 
 and judge of the Hebrews — who, we are told, “was learned 
 in all the wisdom of the Egyptians, and was mighty in 
 words and in deeds ” — was “ very meek, above all men 
 which were upon the face of the earth.” 
 
 Chief Justice Marshall was a steadfast believer in the 
 truth of Christianity, as revealed in the Bible. He 
 was brought up in the Episcopal Church ; and Bishop 
 Meade, who knew him well, tells us that he was a con- 
 stant and reverent worshipper in that church, and 
 contributed liberally to its support, although he never 
 became a communicant. All else that we know of his 
 personal religion is derived from the statements (as 
 handed down by the good bishop) of a daughter of the 
 Chief Justice, who was much with him during the last 
 months of his life. She said that her father told her he 
 never went to bed without concluding his prayer by 
 repeating the Lord’s Prayer and the verse beginning, 
 “Now I lay me down to sleep,” which his mother had 
 taught him when he was a child; and that the reason 
 why he had never been a communicant was that it was 
 but recently that he had become fully convinced of the 
 divinity of Christ, and he then “ determined to apply for 
 admission to the communion of our church — objected to 
 commune in private, because he thought it his duty to 
 make a public confession of the Saviour — and, while 
 waiting for improved health to enable him to go to the 
 church for that purpose, he grew worse and died, without 
 ever communing.” 
 
 His private character cannot be more felicitously or 
 more feelingly summed up than in the resolutions drawn 
 up by Mr. Leigh, and unanimously adopted by the Bar of 
 
38 
 
 this Circuit, soon after the death of the Chief Justice: 
 “His private life was worthy of the exalted character he 
 sustained in public station. The unaffected simplicity of 
 his manners ; the spotless purity of his morals; his social, 
 gentle, cheerful disposition; his habitual self-denial, and 
 boundless generosity towards others; the strength and 
 constancy of his attachments; his kindness to his friends 
 and neighbors ; his exemplary conduct in the relations 
 of son, brother, husband, father; his numerous charities; 
 his benevolence towards all men, and his ever active 
 beneficence ; these amiable qualities shone so conspicu- 
 ously in him, throughout his life, that, highly as he was 
 respected, he had the rare happiness to he yet more 
 beloved.” 
 
 Let me add a few words from the address of Mr. Wil- 
 liam Maxwell before the Virginia Historical and Philo- 
 sophical Society on March 2d, 1836, preserved in the South- 
 ern Literary Messenger: “He came about amongst us, 
 like a father amongst his children, like a patriarch 
 amongst his people — like that patriarch whom the sacred 
 Scriptures have canonized for our admiration — ‘when 
 the eye saw him, it blessed him; when the ear heard 
 him, it gave witness to him; and after his words men 
 spake not again.’” 
 
 The earliest and most lifelike description that we have 
 of his face and figure is one given by the kinsman who was 
 present on the occasion, already mentioned, of his taking 
 command of a militia company in 1775, when not quite 
 twenty years of age: “He was about six feet high, 
 straight and rather slender; of dark complexion, showing 
 little if any rosy red, yet good health; the outline of the 
 face nearly a circle, and, within that, eyes dark to black- 
 ness, strong and penetrating, beaming with intelligence 
 and good nature; an upright forehead, rather low, was 
 terminated in a horizontal line by a mass of raven-black 
 hair of unusual thickness and strength ; the features of the 
 face were in harmony with this outline, and the temples 
 
39 
 
 fully developed; the result of this combination was inter- 
 esting and very agreeable. The body and limbs indicated 
 agility rather than strength, in which, however, he was 
 by no means deficient.” A few words more may be 
 quoted, completing the picture: “He wore a purple or 
 pale-blue hunting-shirt, and trousers of the same material 
 fringed with white. A round black hat, mounted with 
 the bucks-tail for a cockade, crowned the figure and the 
 man.” 
 
 “This is a portrait to which,” adds Mr. Binney, “in 
 everything but the symbols of the youthful soldier, and 
 one or two of those lineaments which the hand of time, 
 however gentle, changes and perhaps improves, he never 
 lost his resemblance. All who knew him well will recog- 
 nize its truth to nature.” 
 
 Of all the portraits by various artists, that which 
 best accords with the above description, especially in the 
 “eyes dark to blackness, strong and penetrating, beaming 
 with intelligence and good nature,” is one by Jarvis, 
 (perhaps the best American portrait painter of his time, 
 next to Stuart,) which I have had the good fortune to 
 own for thirty years, and of which, before I bought it, Mr. 
 Middleton, then the clerk of the Supreme Court, who had 
 been deputy clerk for eight years under Chief Justice 
 Marshall, wrote me: “It is an admirable likeness; better 
 than the one I have, which has always been consid- 
 ered one of the best.” This portrait was taken while 
 his hair was still black, or nearly so ; and, as shown by 
 the judicial robe, and by the curtain behind and above 
 the head, was intended to represent him as he sat in 
 court. 
 
 The most important of the later portraits are those 
 painted by Harding in 1828-30, and by Inman in 1831, 
 with a graver expression of countenance, with the hair 
 quite gray, and with deep lines in the face. 
 
 Harding’s portraits were evidently thought well of, by 
 the subject, as well as by the artist. One of them, after- 
 
40 
 
 wards bequeathed b) r Mr. Justice Story to Harvard Col- 
 lege, was sent to him by the Chief Justice in March, 
 1828, with a letter saying, “I beg you to accept my por- 
 trait, for which I sat in Washington to Mr. Harding, to 
 be preserved when I shall sleep with my fathers, as a tes- 
 timonial of sincere and affectionate friendship;” and in 
 the same letter he gave directions for paying Harding 
 “for the head and shoulders I have bespoke for myself.” 
 Harding’s principal portrait of Marshall was painted in 
 1830 for the Boston Athenaeum, in whose possession it still 
 is ; it has the advantage of being a full length, showing 
 that in his seventy-fifth year he retained the erect and 
 slender figure of his youth ; and the artist wrote of it in 
 His autobiography: “ I consider it a good picture. I had 
 great pleasure in painting the whole of such a man.” 
 
 Inman’s careful portrait, in the possession of the Phila- 
 delphia Law Association, has often been engraved, and is 
 perhaps the best known of all. 
 
 The crayon portrait in profile, drawn by St. Memim 
 in 1S08, which has always remained in the family 
 of the Chief Justice, and been considered by them an 
 excellent likeness, and is now owned by a descendant 
 in Baltimore; the bust by Frazee, bequeathed by Mr. 
 Justice Story to Harvard College, and familiarly known 
 by numerous casts; and that executed by Powers, by 
 order of Congress, soon after the Chief Justice’s death, for 
 the Supreme Court Room — all show that, while his hair 
 grew rather low on the forehead, his head was high and 
 well shaped, and that, as was then not unusual, he wore 
 his hair in a queue. 
 
 His dress, as shown in the full length portrait by Hard- 
 ing, and as described by his contemporaries, was a simple 
 and appropriate, but by no means fashionable, suit of 
 black, with knee breeches, long stockings, and low shoes 
 with buckles. 
 
 You may think, my friends, that I have been led on to 
 spend too much time in endeavoring to bring before you 
 
41 
 
 the bodily semblance of the great Chief Justice. Yet you 
 must admit, as he did in his letter to Delaplaine, that 
 portraits of eminent men are “an object of considerable 
 interest.” 
 
 But, after all, it is not the personal aspect of a great man, 
 it is his intellect and his character, that have a lasting 
 influence on mankind. JJt vultus hominum, ita simulacra 
 vultus imbecilla ac mortalia sunt. Forma mentis seterna ; 
 quam tenere et exprimere, non per alienam materiam et artem, 
 sed tuis ipse moribus possis. 
 
 Brethren of the Bar of the Old Dominion; Fellow- 
 citizens of the United States: 
 
 To whatsoever professional duty or public office we may 
 any of us be called, we can find, in the long line of emi- 
 nent judges with whom Almighty Providence has blessed 
 our race, no higher inspiration, no surer guide, than in 
 the example and in the teachings of John Marshall. 
 
SUPREME COURT DECISIONS 
 REFERRED TO. 
 
 Bank of United States v. Deveaux (1809) 5 Cranch, 61. 
 Bollman & Swartwout, ex parte (1807) 4 Cranch, 75. 
 
 Boyle v. Zacharie ( 1832 ) 6 Peters, 348, 635. 
 
 Brown v. Maryland (1827) 12 Wheaton, 419. 
 
 Chisholm v. Georgia (1793) 2 Dallas, 419. 
 
 Cohens v. Virginia (1821) 6 Wheaton, 264. 
 
 Dartmouth College v. Woodward (1819) 4 Wheaton, 518. 
 Elmendorf v. Taylor (1825) 10 Wheaton, 152. 
 
 The Exchange (1812) 7 Cranch, 116. 
 
 Fletcher v. Peck (1810) 6 Cranch, 87. 
 
 The Genesee Chief (1851) 12 Howard, 443. 
 
 Gibbons v. Ogden (1824) 9 Wheaton, 1. 
 
 Hans v. Louisiana (1890) 134 United States, 1. 
 Hollingsworths. Virginia (1798) 3 Dallas, 378. 
 
 Hope Insurance Company v. Boardman (1809 ) 5 Cranch, 57. 
 Hylton v. United States (1796) 3 Dallas, 171. 
 
 Louisville Railroad Company v. Letson (1844 ) 2 Howard, 497. 
 McCulloch v. Maryland (1819) 4 Wheaton, 316. 
 
 Marbury v. Madison (1803) 1 Cranch, 137. 
 
 Martin v. Hunter’s Lessee (1816) 1 Wheaton, 304. 
 
 Ogden v. Saunders (1827) 12 Wheaton, 213. 
 
 Osborn v. Bank of United States (1824) 9 Wheaton, 738. 
 Stuart v. Laird ( 1803 ) 1 Cranch, 299. 
 
 Sturges v. Crowninshield (1819) 4 Wheaton, 122. 
 
 The Thomas Jefferson (1825) 10 Wheaton, 428. 
 
 United States v. Peters (1809) 5 Cranch, 115. 
 
 v. Wiltberger (1820) 5 Wheaton, 76. 
 
 Ware v. Hylton (1796) 3 Dallas, 199. 
 
AUTHORITIES CONSULTED, OTHER THAN 
 SUPREME COURT DECISIONS. 
 
 Adams, John. Works, vol. is. Boston, 1854. 
 
 Adams, John Quincy. Memoirs, vols. viii, is. Philadelphia, 1876. 
 Binney, Horace. Eulogy on Marshall. Philadelphia, 1835. 
 
 Old Bar of Philadelphia, p. 83. Philadelphia, 1859. 
 
 Bradley, Joseph P. St. Memim’s Portrait of Marshall. Century 
 Magazine of September, 1889. New York, 1889. 
 
 Bryce, James. The American Commonwealth. London, 1888. 
 
 Burr, Aaron. Trial. Robertson’s Report ; Philadelphia, 1808. 
 Butler, Charles. Reminiscences, vol. i, (4th ed. ) p. 133. London, 
 1824. 
 
 Carson, Hampton L. The Supreme Court of the United States. 
 (2d ed. ) Philadelphia, 1892. 
 
 Cooley, Thomas M. The Federal Supreme Court. Lecture at Uni- 
 versity of Michigan in 1889. New York, 1890. 
 
 Flanders, Henry. Lives of the Chief Justices. Philadelphia, 1881. 
 Gibbs, George. Administrations of Washington and John Adams, 
 vol. ii, p. 314. New York, 1846. 
 
 Grigsby, Hugh B. Discourse on Virginia Convention of 1829-30. 
 Richmond, 1853. 
 
 Harding, Chester. Autobiographical Sketch. Cambridge, 1866. 
 Boston, 1890. 
 
 Henry, Patrick. Life by William Wirt Henry. New York, 1891. 
 Hitchcock, Henry. Constitutional Development of the United States 
 as influenced by Marshall. Lecture at University of Michigan 
 in 1889. New York, 1890. 
 
 Hopkinson, Joseph. Memoir of Marshall. Brockenbrough’s Re- 
 ports of Marshall’s Decisions in Circuit Court, vol. i, p. ix. 
 Philadelphia, 1837. 
 
 Jay, John. Life by William Jay. New York, 1833. 
 
 Life by George Pellew. Boston, 1890. 
 
 Law Reports, Probate Division, vol. v, pp. 197, 208. London, 1880. 
 Magruder, Allan B. Life of Marshall. Boston, 1885. 
 
46 
 
 Marshall, John. Letters to John Adams. In possession of Adams 
 Family at Quincy. MSS. 
 
 Letters to William Cushing. In possession of 
 
 General Charles J. Paine of Boston. MSS. 
 
 Letter to James Delaplaine. Columbus, Ohio; 
 
 published by J. H. Riley & Co., 1848. 
 
 Letters to Joseph Story. Massachusetts Historical 
 
 Society Proceedings. November, 1900. 
 
 Life of Washington. Philadelphia, 1804-7 ; (2d ed. ) 
 
 Philadelphia, 1833. 
 
 Speech in Congress on Case of Jonathan Robbins. 
 
 Philadelphia, 1800. Wheaton’s Reports of Cases in Supreme 
 Court, vol. v, appendix; New York, 1820. 
 
 Meade, William. Old Churches and Families of Virginia, vol. i, 
 p. 30; vol. ii, pp. 216-224. Philadelphia, 1872. 
 
 New York Review. Article on Marshall, vol. iii, p. 328. New York, 
 1838. 
 
 Phelps, Edward J. Address on Marshall. Philadelphia, 1879. Ameri- 
 can Bar Association Reports, vol. ii. 
 
 Physick, Philip S. Memoir by J. Randolph, M. D. pp. 96-101. 
 Philadelphia, 1839. 
 
 Rawle, William H. Oration on Unveiling of Marshall’s Statue. 
 
 United States Reports, vol. cxii, appendix. 
 
 Senate Executive Journal, 1789-1837. Washington, 1828-87. 
 
 Southern Literary Messenger. Articles on Marshall, vol. ii, pp. 
 
 183, 258, 260, 317. Richmond, 1836. 
 
 State Department. Commissions. 1789-1836. MSS. 
 
 Story, Joseph. Article on Marshall. North American Review of 
 January, 1828. Boston, 1828. 
 
 Biography of Marshall. National Portrait Gallery 
 
 of Distinguished Americans, vol. i, pt. iii. Phila- 
 delphia, 1833-34. Story’s Miscellaneous Writings; 
 Boston, 1835. 
 
 Commentaries on the Constitution of the United 
 
 States. Boston, 1833. 
 
 Discourse on Marshall. Boston, 1835. Story’s Mis- 
 cellaneous Writings ; Boston, 1852. 
 
 Life and Letters by William W. Story. Boston, 1851. 
 
 Taney, Roger B. Life by Samuel Tyler. Baltimore, 1872. 
 
 Tucker, St. George. Edition of Blackstone’s Commentaries, vol. i, 
 pt. i, appendix, p. 294. Philadelphia, 1803. 
 
 Van Santvoord, George. Lives of the Chief Justices. (2d ed. ) 
 Albany, 1882. 
 
 Virginia Bar. Resolutions on Marshall’s Death. Brockenbrough’s 
 Reports of Marshall’s Decisions in Circuit Court, vol. i, p. 
 xvii. Philadelphia, 1837. 
 
47 
 
 Virginia Convention on Federal Constitution, 1788. Petersburg, 
 17S8. 3 Elliot’s Debates, (2d ed. ) Washington, 1836. 
 
 on State Constitution, 1829-30. pp. 616, 619, 
 
 871, 872. Richmond, 1830. 
 
 Waite, Morrison R. Address on Unveiling of Marshall’s Statue. 
 
 United States Reports, vol. csii, appendix. 
 
 Washington, George. Writings. (Sparks’s ed. ) vol. x; Boston, 
 1836. (Ford’s ed.) vol. xi; New York, 1891. 
 
 Wirt, William. Letters of a British Spy. Richmond, 1803 ; ( 10th 
 ed. ) New York, 1832. 
 
 . Life by John P. Kennedy. Philadelphia, 1849. 
 
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