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 John Marshall :the tribute of Massachuse 
 
 3 1924 020 622 936 
 
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 the Cornell University Library. 
 
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 which this is No. ...^7... ':,...(:. 
 
JOHN MARSHALL 
 
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John Marshall, 1831 
 Photogravure from the original portrait by Henry Inman 
 
JOHN MARSHALL 
 
 Clje Cribute of jftajsgac^itfetts 
 
 BEING 
 
 THE ADDRESSES DELIVERED AT BOSTON 
 AND CAMBRIDGE, February 4, 1901 
 
 IN COMMEMORATION OF 
 
 THE ONE HUNDREDTH ANNIVERSARY OF HIS 
 
 ELEVATION TO THE BENCH AS CHIEF 
 
 JUSTICE OF THE SUPREME COURT 
 
 OF THE UNITED STATES 
 
 EDITED BY 
 
 MARQUIS F. DICKINSON, Esq. 
 
 OF THE BOSTON BAR 
 
 BOSTON 
 
 LITTLE, BROWN, AND COMPANY 
 
 1901 
 
Copyright, IQOI 
 By M. F. Dickinson 
 
 UNIVERSITY PRESS . JOHN WILSON 
 AND SON ■ CAMBRIDGE, ff. S. A. 
 
CONTENTS 
 
 Page 
 Introduction x ; 
 
 Proceedings in tije Supreme JJuoicial Court, Boston 
 
 Address of Hosea Morrill Knowlton, Attorney-General 
 
 of Massachusetts i 
 
 Response by Oliver Wendell Holmes, LL.D., Chief 
 
 Justice of the Supreme Judicial Court of Massachusetts 1 3 
 
 Proceedings in Santera Ejjeatre, fifarnaro Sfoi&ersitg 
 
 Introductory Remarks by Henry Pickering Walcott, 
 
 M.D., Acting President of the University .... 21 
 
 Address of James Bradley Thayer, LL.D., Weld Pro- 
 fessor of Law Z j 
 
 Proceedings at tjje dinner, Ne&j Algonquin CIuo 
 
 Introductory Remarks by John Chipman Gray, LL.D., 
 
 President of the Bar Association of the City of Boston 71 
 
 Address of Henry St. George Tucker, LL.D., Dean 
 of the Law School of Washington and Lee University, 
 Lexington, Virginia 73 
 
 Introductory Remarks by President Gray . . . . 106 
 
 Address of Richard Olney, LL.D., of the Boston Bar . 107 
 
ILLUSTRATIONS 
 
 John Marshall, 183 1 Frontispiece 
 
 Photogravure from the original portrait by Henry Inman 
 
 To face page 
 
 John Marshall, 1808 xi 
 
 From a crayon by Saint-Memin 
 
 Hosea Morrill Knowlton 3 
 
 Oliver Wendell Holmes 15 
 
 Henry Pickering Walcott 21 
 
 James Bradley Thayer 25 
 
 John Chipman Gray 71 
 
 Henry St. George Tucker 75 
 
 Richard Olney 109 
 
Copyright by Thos. Marshall Smith, 1901. 
 
 Published by C. Klackncr, 7 West 28th St., New York. 
 
John Marshall, 1808 
 
 From a crayon by Saint-Memin 
 
INTRODUCTION 
 
 THE proposal to celebrate the one-hundredth 
 anniversary of the elevation of John Mar- 
 shall to the Bench of the Supreme Court 
 of the United States as its third Chief Justice, was 
 made at the annual meeting of the Illinois Bar 
 Association in July, 1899. The suggestion, being 
 adopted, was communicated by circular to all the 
 members of the American Bar Association, and at 
 the annual meeting of that body at Buffalo, in 
 August of the same year, was referred 'to with ap- 
 proval in the address of the president, Charles F. 
 Manderson, of Nebraska. A special committee of 
 fifteen members was thereupon appointed, to con- 
 sider the matter and to suggest appropriate action. 
 The report of the committee, made on the following 
 day, recommended, among other things, that Mon- 
 day, the fourth day of February, 1901, be observed 
 by the Bench and Bar of the United States as 
 " John Marshall Day ; " that a national committee 
 of fifty-one, representing the several states and ter- 
 
 xi 
 
INTRODUCTION 
 
 ritories and the District of Columbia, be appointed 
 by the president of the Association from among its 
 members ; and that this committee be charged with 
 the duty of publishing an address to the legal pro- 
 fession of the United States, setting forth the pur- 
 pose of the celebration and making suggestions for 
 the proper observance of the day. These recom- 
 mendations were adopted by the Association. 
 William Wirt Howe, of New Orleans, La., was 
 appointed chairman of the national committee, and 
 Adolph Moses, of Chicago, 111., its secretary. The 
 following gentlemen represented the New England 
 states upon the committee : Charles F. Libby, Port- 
 land, Me. ; Joseph W. Fellows, Manchester, N. H. ; 
 Elihu B. Taft, Burlington, Vt. ; Marquis F. Dick- 
 inson, Boston, Mass. ; Amasa M. Eaton, Provi- 
 dence, R. I. ; Simeon E. Baldwin, New Haven, 
 Conn. 
 
 At the next annual meeting of the Association, 
 held at Saratoga in August, 1900, the national com- 
 mittee announced that it was already certain " John 
 Marshall Day " would be observed in some appro- 
 priate manner at the national capital and also in at 
 least thirty-six of the states. The committee was 
 continued in existence, and its members were charged 
 with the duty of making special arrangements for 
 
 xii 
 
INTRODUCTION 
 
 the observance of the day in their respective states. 
 In Massachusetts the following members of the bar 
 were selected to act as a general committee of 
 arrangements : Marquis F. Dickinson, chairman ; 
 James Barr Ames; Patrick A. Collins; Lewis S. 
 Dabney; Henry S. Dewey; Frederick P. Fish; 
 John C. Gray ; Charles S. Hamlin ; Alfred Hemen- 
 way; Robert M. Morse; and Moorfield Storey. 
 
 It was found that plans had already been made 
 at Harvard University for the delivery of an 
 address before the Harvard Law School on the 
 character and services of Chief Justice Marshall, by 
 Professor James Bradley Thayer of that school. 
 The committee were glad of the opportunity thus 
 presented to make that address a part of the general 
 programme of the day. This programme included 
 appropriate ceremonies in the Supreme Judicial Court 
 at Boston in the morning, the address of Professor 
 Thayer in Sanders Theatre at Cambridge in the 
 afternoon, and a dinner at the new Algonquin Club 
 in Boston, under the auspices of the Bar Association 
 of the City of Boston'^ in the evening. The follow- 
 ing gentlemen, officers of the Boston Bar Associa- 
 tion, were appointed by that body to have charge 
 of the arrangements for the dinner : Charles P. 
 Greenough, vice-president ; William F. Wharton, 
 
 xiii 
 
INTRODUCTION 
 
 secretary ; William S. Hall, treasurer ; Charles B. 
 Southard, representing the executive committee. 
 
 Inasmuch as the appointment of John Marshall 
 of Virginia was made by President John Adams of 
 Massachusetts, it was thought by the committee to 
 be appropriate that the union of the two states in 
 so auspicious an event should be recognized at the 
 proposed celebration by inviting some distinguished 
 member of the bar of Virginia to be the special 
 guest of the day. Accordingly, Professor Henry 
 St. George Tucker, Dean of the Law School of 
 Washington and Lee University, Lexington, Vir- 
 ginia, was invited, and honored the occasion by his 
 presence. 
 
 The exercises in the Supreme Judicial Court 
 were brief but deeply impressive. The court room 
 proved entirely inadequate for the accommodation 
 of those seeking admittance. 'Hundreds turned 
 reluctantly away from its doors. ! The bar was 
 thronged by many of its best known members, 
 together with a few distinguished citizens not of 
 the legal profession, especially invited to be present. 
 The justices of the Superior and Municipal Courts, 
 led by their respective Chief Justices, Mason and 
 Parmenter, were in attendance. At ten o'clock the 
 justices of the Supreme Judicial Court came in, led 
 
 xiv 
 
INTRODUCTION 
 
 by his Honor Oliver Wendell Holmes, Chief Jus- 
 tice, and accompanied by his Excellency W. Mur- 
 ray Crane, Governor of the Commonwealth, who 
 occupied a place upon the bench at the right of the 
 Chief Justice. All remained standing while procla- 
 mation was made by the Crier, according to the 
 ancient formula used in opening the courts of 
 Massachusetts. The address to the Court by At- 
 torney General Knowlton, representing the members 
 of the bar, and the response by Chief Justice 
 Holmes followed, after which the Court adjourned. 
 
 The address of Professor Thayer was delivered 
 in Sanders Theatre, Harvard University, Cambridge, 
 at four o'clock p. m. The severest snow storm 
 of the season had set in before midday, but this 
 did not prevent the attendance of a very large 
 audience, comprising the Faculty and students of 
 the Harvard Law School, heads of other depart- 
 ments in the University, judges and members of 
 the bar from different sections of the Common- 
 wealth. As President Eliot was absent from the 
 country, the speaker was introduced by Dr. Henry 
 Pickering Walcott, Acting President of the Uni- 
 versity. 
 
 Two hundred and twenty-five persons sat down 
 at the dinner given in the evening under the 
 
 xv 
 
INTRODUCTION 
 
 auspices of the Bar Association of the City of 
 Boston, in the banquet hall of the New Algonquin 
 Club. It has been a source of regret to the com- 
 mittee that the size of the room so closely limited 
 the number who could be accommodated that a 
 large number of the members of the Bar were 
 necessarily excluded from attendance upon the 
 dinner. Professor John Chipman Gray, of the 
 Harvard Law School, President of the Bar Asso- 
 ciation of the City of Boston, presided, and intro- 
 duced the speakers of the evening, who were 
 Professor Tucker of Virginia and Richard Olney 
 of Massachusetts. Their addresses closed the exer- 
 cises of the day. 
 
 Some words of acknowledgment are due in 
 reference to the two pictures of Chief Justice 
 Marshall which appear in this volume. The 
 frontispiece is a copy of the celebrated portrait 
 painted by Henry Inman in 1 831, the original of 
 which is in the possession of the Philadelphia Bar 
 Association. The plate from which these impres- 
 sions are made has been generously loaned for the 
 purpose by its owner, James M. Barnard, Esq., of 
 Boston, who had it prepared for the purpose of a 
 free distribution of a portrait of Marshall among law 
 
 xvi 
 
INTRODUCTION 
 
 students and others. The Saint-Memin crayon was 
 made in 1808, when the Chief Justice was in the 
 .fifty-third year of his age. The original, which has 
 always remained in the family, is owned by Thomas 
 Marshall Smith, Esq., of Baltimore, a great-grand- 
 son of the Chief Justice. The reproduction appear- 
 ing in this volume is from a full-sized facsimile 
 made and owned by C. Klackner, Esq., the well 
 known fine art publisher of New York, who has 
 kindly consented to its use in these pages. 
 
 xvu 
 
proceedings in tbe 
 Supreme 3ubicial Court of flDassacbusetts 
 
 ADDRESS OF 
 ATTORNEY-GENERAL KNOWLTON 
 
Hosea Morrill Kmrwlton 
 
JOHN MARSHALL 
 
 ADDRESS OF 
 ATTORNEY-GENERAL KNOWLTON 
 
 May it please the Court: — 
 
 UPON this morning, a century ago, the Supreme 
 Court of the United States assembled for 
 the first time in the city of Washington. The term 
 city was one of courtesy rather than of description ; 
 for it was a place of swamps and woods, a city with- 
 out inhabitants, a town without houses. Even 
 Pennsylvania Avenue, to-day the most distinctly 
 national, if not the most historic, street in America, 
 was a morass covered with underbrush, impassable 
 to horse or foot, without visible demarkation, a 
 tangled wilderness. There was only the dream of 
 a capital. But in that city and upon the very 
 eminence where it met this day one hundred years 
 ago, the court has since always been held, though 
 more than once within sound, even within the very 
 sight, of the guns of the enemies of the Republic. 
 
 It happened, moreover, that on this same day, 
 and in this same place, the commission of a new 
 
 3 
 
JOHN MARSHALL 
 
 chief justice was read ; and the term was presided 
 over for the first time by one who was destined, for 
 more than a third of the century that has since inter- 
 vened, to direct and control the policy of the court, 
 and to establish the place which it has since main- 
 tained, not only as one of the three great and co- 
 ordinate departments of the Government of the 
 Republic, but also as the most august and powerful 
 tribunal in the civilized world. This new chief 
 justice was John Marshall of Virginia. 
 
 The bar of the United States has deemed these 
 two auspicious events of sufficient moment to 
 deserve the attention of the courts upon the occa- 
 sion of this anniversary. Occurring,Mby one of those 
 signal coincidences with which history is replete,' upon 
 the first judicial day of the nineteenth century, they 
 also marked the birth and beginning, if not the 
 creation and the cause, of the national grandeur 
 which has characterized that century. Indeed, so 
 closely have we come to trace cause and effect 
 between the judgments of that court and the growth 
 of the nation, that to-day, even upon this threshold 
 of another century, when, as then, men are at issue 
 upon a momentous question of the future policy of 
 the United States, the voice of clamor is hushed, 
 and Congress waits until this same august tribunal 
 pronounces the decree which shall bind or expand, 
 as the case may be, the wings of national ambition. 
 
 4 
 
ATTY.-GEN. KNOWLTON'S ADDRESS 
 
 ' Up to that time the importance of the Supreme 
 Court in the scheme of the Federal Government 
 had scarcely been appreciated. In the original 
 proposals^ for the erection of a capitol, prepared, I 
 believe, under the direction of George Washington 
 himself, no provision was made for the accommoda- 
 tion of the court. The founders of the nation had 
 inherited the traditions of the mother country, 
 where, owing to the absolute power of Parliament, 
 the function of the judiciary was limited to the 
 settlement of private disputes, its only relation to 
 the Government being on the criminal side. The 
 idea of enforcement of constitutional limitations by 
 the judiciary upon the other departments of the 
 Government and upon the States,^axiomatic as such 
 doctrines appear to us, was at that time by no 
 means understood, much less conceded.! 
 
 Even the justices themselves failed to realize 
 their importance. Appointments to the bench were 
 often declined, and resignations were frequent. 
 Some judges retired to go upon the bench of a 
 State court. Both of the Chief Justices who pre- 
 ceded Marshall (not counting Rutledge, whose 
 appointment was not confirmed, and who presided 
 only one term) resigned their offices to become 
 ministers to foreign courts, and Jay, the first Chief 
 Justice, when asked after an interval of retirement to 
 resume his position, declined, saying, " I left the 
 
 5 
 
JOHN MARSHALL 
 
 bench perfectly convinced that, undejr A_systejn_SQ- 
 defective, it could not attain the energy, weight, 
 and dignity which were essential to its affording due 
 support to the national Government." 
 
 The whole business of the court during the first 
 eleven years of its existence is recorded in less than 
 a single volume of the size of current reports. 
 Most of the questions before it concerned procedure 
 and practice in the Federal courts. The meagre^ 
 decisions touching the scope of its own powers and 
 duties, were for the most part confined to denial 
 rather than assertion, like its refusal to advise the 
 President, and its deciding, or rather its hesitation 
 in deciding, in Hayburn's case, that Congress could 
 not impose upon it ^the duty of acting as auditor 
 £g hear pension claims. It did assert the right to 
 hear the case of a citizen against a State, and to* 
 enter judgment against the State ;^ but this right 1 
 was promptly taken away by an amendment to the 
 Constitution. 7 Even Marshall continued to be a 
 member of the President's Cabinet after his appoint- 
 ment to the bench, until the close of the presidential 
 term. So little was the true function of the, court 
 understood that one of the earliest cases reported 
 seems to have consisted of the trial of issues of fact ; 
 
 ■*. 
 
 by a jury, the charge being given by one of the 
 justices. It had been a court of vweak beginnings 
 and of insignificant achievements. It had not found 
 
 6 
 
ATTY.-GEN. KNOWLTON'S ADDRESS 
 
 its place in the scheme of Government. When the 
 nineteenth century came in its great work was yet 
 before it. 
 
 |~The Federal Constitution was no spontaneous 
 utterance of a united people. It was the result of 
 a long, a bitter, and an_unending contest. The con- 
 flict between the sovereignty of the State and the . 
 sovereignty of the nation did not then begin, nor 
 is it yet _ended. Although, When the only alterna- 
 tive in sight was anarchy] a sullen assent was vouch- 
 safed to .the terms of the Constitution, both, sides 
 reserved the right to continue the contest. Both 
 claimed that it could be interpreted to meet their 
 views. Moreover, upon its adoption other con- | 
 tentions arose upon the question of how far it acted I 
 as a restraint upon the executive and the legislat- 
 ive departments. The beginning of this century 
 saw these contentions, and especially that relating 
 to the sovereignity of the States, existing in all 
 their fierceness, N threatening the destruction of the 
 Republic? The nation was at the parting of the 
 ways. 
 
 The only power adequate to the settlement of 
 these questions under the Constitution (and even 
 this was not then conceded) was the Supreme Court. 
 But a chief was needed to direct the work of that 
 court, who should have the courage to assert its dig- 
 nity and power. He must be one who had partici- 
 
 7 
 
JOHN MARSHALL 
 
 pated in the discussions leading to the adoption of 
 the Constitution, familiar with its origin and its 
 history. He must be not only a great and sound 
 lawyer, but one whose public career, no less than 
 the spotlessness of his personal reputation, had 
 earned for him the respect and confidence of all 
 men. He must be one who was willing to put aside") 
 all private ambition, and make it his life work tpj 
 establish the rank of the court given to it by the^ 
 Constitution, but which hitherto had scarcely been.) 
 conceded to it ; in concession to her importance itj 
 were better that he be a citizen of Virginia ; and John 
 Adams naturally believed he should be a Federalist. 
 He found all these essentials in John Marshall. 
 liThe hour of fate had come ; and he was the man of 
 ithe hour. 
 
 Speculations on what {night have been the result 
 had important events happened otherwise than they 
 did, are usually profitless. But one cannot forbear 
 indulging in a shudder at the contemplation of what 
 might have been the destiny of the nation had the ap- 
 pointment of Chief Justice been made a few months 
 later by that apostle of the anti-Federalists, Thomas 
 Jefferson. One experiment of a league of sovereign 
 States had been tried and had failed. Another would ! 
 have meant hopeless wreck.. More than once, as! 
 we review the events of our history, are we led to I 
 recognize with reverence the hand of an overruling j) 
 
 8 
 
ATTY.-GEN. KNOWLTON'S ADDRESS 
 
 Providence, guiding our path, shielding us from 
 danger and destruction, chastening us when we 
 have gone astray, and leading us on to become 
 the lamp of liberty enlightening the world. 
 
 John Marshall grasped the helm with the hand 
 of a master. There was no chart to guide his 
 course, excepting his conception of the spirit of the 
 Constitution. But that conception was based upon 
 a belief in the sovereignty of the nation, and was 
 elevated by a conviction of the power and dignity '• 
 of the judicial branch of the Government. Within 
 three years he had disposed of a contention, seri- 
 ously made, that Congress was not bound by the 
 Constitution, excepting as it might interpret for 
 itself the terms of that instrument. He pronounced 
 one of its statutes void, and thus asserted the 
 supremacy of his court over the legislative depart- 
 ment, — a supremacy which has never since been 
 challenged, and which it is difficult for us now to 
 conceive ever to have been challenged. Soon after 
 he pronounced void an act of a State legislature 
 which was in violation of the Constitution of the 
 United States. Then men began to appreciate the 
 fact that the Federal power was supreme, and that, 
 under the interpretation of John Marshall, the Con- 
 stitution did not provide a mere rope of sand for 
 the States, but was the strong tie which bound them 
 together into a nation. 
 
 9 
 
JOHN MARSHALL 
 
 From these sound beginnings he proceeded with 
 unfaltering steps, literally building up a nation upon 
 the foundation of the Constitution. His views did 
 not at first, nor even during his life, meet with uni- 
 versal acquiescence. During the whole of the two 
 generations of his judicial service, he was the subject 
 of bitter criticism, and more than once there was 
 almost open revolt. He himself at times became, 
 disheartened, and in a letter to his associate, Joseph •-,, 
 Story, in 1832, he said : " I yield slowly and reluc- ''' 
 tantly to the conviction that our Constitution cannot 
 last." This was but three years before his death, 
 and it may well be that his last hours were clouded 
 with doubts of the future of his country. But he' 
 had builded more wisely and surely than he knew.; 
 His interpretation of the spirit of the Constitution,! 
 besides having the weight of authority, came even-j' 
 tually to be accepted as well for the truth of its, 
 resistless logic. He was not merely a great and ^ 
 learned judge. There have been others. His titled 
 to the eternal gratitude of his countrymen is found 
 in the fact that he was the creator of constitutional 
 government, as we now understand that term. The 
 result of his work is the grandeur of the imperial 
 flag under which we live. 
 
 Of the life and career of John Marshall it is not 
 for me to speak in detail on this occasion. It will 
 be better done on this anniversary by others more 
 
 10 
 
ATTY.-GEN. KNOWLTON'S ADDRESS 
 
 competent for the task. Beyond declaring his part 
 in the growth of the nation, as I have briefly at- 
 tempted to do, I will content myself with observing 
 that, Considered merely as a judge, his career was a 
 model for all who have come afterr' Dignified and 
 genial, patient in attention, learned and logical, 
 luminous and convincing in opinions ; welcoming 
 the help that the bar can give to the court; not 
 lacking in respect for the executive and legislative 
 departments, and for that presumption of right 
 which should be accorded to them, but never 
 forgetting that the function of the court is to be 
 true to its own lights and not subservient to the 
 standard of the Legislature, — he created for the 
 court a respect and esteem which has never since 
 been shaken, and established a standard of judicial 
 deportment which may well be followed to-day. 
 
 But it is by the high principles he promulgated 
 and upheld, and upon which this nation has grown 
 to grandeur, rather than by any mere judicial 
 eminence, that he will be remembered while the 
 nation endures. 
 
 As I stood, last month, upon the steps of the 
 national Capitol, I was led to contrast in my mind 
 the splendid panorama there unfolded with the rude 
 beginnings of a century ago. But I also reflected 
 that in the luminous clearness of John Marshall's 
 vision there has been, there can be, no advance. 
 
 ii 
 
JOHN MARSHALL 
 
 A hundred years hence the material achievements 
 of the nation may eclipse those of to-day, even as 
 we have surpassed those of the founders of the Re- 
 public ; or, on the other hand, some future Marius 
 may contemplate from the same eminence upon 
 which I stood the ruins of a great nation. The 
 things of this world pass away and are forgotten. 
 But the prophetic wisdom and truth of the principles 
 enunciated by John Marshall will endure as long 
 as the nation lives, and his courage and sagacity in 
 discovering and establishing them will be his death- 
 less renown. 
 
 In view of the solemnity of this anniversary and 
 of what it means to us and to our fathers and to our 
 children as well, I have the honor to suggest in be- 
 half of my associates that the work of the court be 
 suspended for the day, that the bar and the court 
 may appropriately celebrate the occasion ; and to 
 that end I move that the Court do now adjourn. 
 
 12 
 
CHIEF JUSTICE HOLMES'S RESPONSE 
 
Oliver Wendell Holmes 
 
CHIEF JUSTICE HOLMES'S RESPONSE 
 
 AS we walk down Court Street in the midst of 
 a jostling crowd, intent like us upon to-day 
 and its affairs, our eyes are like to fall upon the 
 smalf, dark building that stands at the head of 
 State Street, and, like an ominous reef, divides the 
 stream of business in its course to the gray cliffs 
 that tower beyond. And, whoever we may be, 
 we may chance to pause and forget our hurry 
 for a moment, as we remember that the first 
 waves that foretold the coming storm of the Re- 
 volution broke around that reef. But, if we are 
 lawyers our memories and our reverence grow : 
 more profound. In the Old State House, we 
 remember, James Otis argued the case of the writs 
 of assistance, and in that argument laid one of the 
 foundations for American constitutional law. Just 
 as that little building is not diminished, but rather 
 is enhanced and glorified, by the vast structures 
 which somehow it turns into a background, so the 
 beginnings of our national life, whether in battle 
 or in law, lose none of their greatness by contrast 
 with all the mighty things of later date, beside 
 
 15 
 
JOHN MARSHALL 
 
 which, by every law of number and measure, they 
 ought to seem so small. To us who took part in 
 the Civil War, the greatest battle of the Revolution 
 seems little more than a reconnoissance in force, and 
 Lexington and Concord were mere skirmishes that 
 would not find mention in the newspapers. Yet , 
 veterans who have known battle on a modern scale/ 
 are not less aware of the spiritual significance of 
 those little fights, I venture to say, than the en-" 
 lightened children of commerce who tell us that; 
 soon war is to be no more. 
 
 If I were to think of John Marshall simply by 
 number and measure in the abstract, I might hesi- 
 tate in my superlatives, just as I should hesitate 
 over the battle of the Brandywine if I thought of 
 it apart from its place in the line of historic cause.i 
 But such thinking is empty in the same proportion 
 that it is abstract. It is most idle to take a man v 
 apart from the circumstances which, in fact, were 
 his. To be sure, it is easier in fancy to separate a 
 person from his riches than from his character.; 
 But it is just as futile. Remove a square inch of [ 
 mucous membrane, and the tenor will sing no more.j 
 Remove a little cube from the brain, and the orator 
 will be speechless ; or another, and the brave, gen--; 
 erous and profound spirit becomes a timid and 
 querulous trifler. A j*reat^ man represents a great 
 ganglion in the nerves of society, or, to vary the 
 
 16 
 
CHIEF JUSTICE HOLMES'S RESPONSE 
 
 figure, a strategic point irr the campaign of history, 
 -and part of his greatness consists in his being there. 
 I no more can separate John Marshall from the 
 fortunate circumstance that the appointment of 
 Chief Justice fell to John Adams, instead of to 
 Jefferson a month later, and so gave it to a Federal- 
 ist and loose constructionist to start the working 
 of the Constitution, than I can separate the black 
 line through which he sent his electric fire at Fort 
 Wagner from Colonel Shaw. When we celebrate 
 Marshall we celebrate at the same time and indi- 
 visibly the inevitable fact that the oneness of the 
 nation and the supremacy of the national Constitu- 
 tion were declared to govern the dealings of man 
 with man by the judgments and decrees of the 
 most august of courts. 
 h I do not mean, of course, that personal estimates 
 are useless or teach us nothing. No doubt to-day 
 there will be heard from able and competent per- 
 sons such estimates of Marshall. But I will not 
 trench upon their field of work. It would be out 
 of place when I am called on only to express the 
 answer to a motion addressed to the Court and 
 when many of those who are here are to listen 
 this afternoon to the accomplished teacher who has 
 had every occasion to make a personal study of the 
 judge, and again this evening to a gentleman who 
 shares by birth the traditions of the man. My own 
 2 17 
 
JOHN MARSHALL 
 
 impressions are only those that I have gathered 
 in the common course of legal education and prac- 
 tice. ^In them I am conscious, perhaps, of some 
 little revolt from our purely local or national 
 estimates, and of a wish to see things and people 
 judged by more cosmopolitan standards. A man 
 is bound to be parochial in his practice — to give 
 his life, and if necessary his death, for the place 
 where he has his roots. But his thinking should 
 be cosmopolitan and detached. He should be able 
 to criticise what he reveres and loves. 
 
 The " Federalist," when I read it many years ago 
 seemed to me a truly original and wonderful pro- 
 duction for the time. I do not trust even that 
 judgment unrevised when I remember that the 
 " Federalist " and its authors struck a distinguished 
 English friend of mine as finite ; and I should feel 
 a greater doubt whether, after Hamilton and the 
 Constitution itself, Marshall's work proved more 
 than a strong intellect, a good style, personal ascen- 
 dency in his court, courage, justice and the convic- 
 tions of his party. My keenest interest is excited, 
 not by what are called great questions and great; 
 cases, but by Jittle decisions which the common 
 run of selectors would pass by because they did not; 
 r deal with the Constitution or a telephone company, 
 -.yet which have in them the germ of some wider 
 theory, and therefore of some profound interstitial 
 
 18 
 
CHIEF JUSTICE HOLMES'S RESPONSE 
 
 change in the very tissue of the law. The men 
 whom I should be tempted to commemorate would 
 be the originators of transforming thought. They 
 often are half obscure, because what the world pays 
 for is judgment, not the original mind. 
 
 But what I have said does not mean that I shall 
 join in this celebration or in granting the motion 
 before the Court in any half-hearted way. Not 
 only do I recur to what I said in the beginning, 
 and remembering that you cannot separate a man 
 from his place, remember also that there fell to 
 Marshall perhaps the greatest place that ever was 
 filled by a judge ; but when I consider his might, 
 his justice, and his wisdom, I do fully believe that 
 if American law were to be represented by a single 
 figure, sceptic and worshipper alike would agree 
 without dispute that the figure could be but one 
 alone, and that one John Marshall. 
 
 A few words more and I have done. We live 
 by symbols, and what shall be symbolized by any 
 image of the sight ^depends upon the mind of him 
 who sees it. The setting aside of this day in honor 
 of a great judge may stand to a Virginian for the 
 glory of his glorious State ; to a patriot for the fact 
 that time has been on Marshall's side, and that the 
 theory for which Hamilton argued, and he decided, 
 and Webster spoke, and Grant fought, and Lincoln 
 died, is now our cornerstone. To the more 
 
 l 9 
 
JOHN MARSHALL 
 
 abstract but farther-reaching contemplation of the 
 lawyer, it stands for the rise of a new body of juris- 
 prudence, by which guiding principles are raised 
 above the reach of statute and State, and judges 
 are entrusted with a solemn and hitherto unheard- 
 of authority and duty. To one who lives in what 
 may seem to him a solitude of thought, this day — 
 as it marks the triumph of a man whom some 
 Presidents of his time bade carry out his judgments 
 as he could — this day marks the fact that all 
 thought is social, is on its way to jactipnj that, 
 to borrow the expression of a French writer, every 
 idea tends to become first a catechism and then a 
 code ; and that according to its worth his un- 
 helped meditation may one day mount a throne, 
 ; and without armies, or even with them, may shoot 
 across the world the electric despotism of an 
 unresisted power. It is all a symbol, if you like", ' 
 but so is the flag. The flag is but a bit of bunting 
 to one who insists on prose. Yet, thanks to Mar- 
 shall and to the men of his generation — and 
 for this above all we celebrate him and them — its 
 red is our life-blood, its stars our world, its blue 
 our heaven. It owns our land. At will it throws 
 away our lives. 
 
 The motion of the bar is granted, and the Court 
 will now adjourn. 
 
 20 
 
****S4 
 
Henry Pickering Walcott 
 
lproceefcings in San&ers Ubeatre 
 Darvarfc TUniversits 
 
 Introductory remarks by Henry Pickering 
 Walcott, M. D.j Acting President of Harvard 
 University. 
 
 Ladies and Gentlemen, — 
 
 ONE hundred years ago President John Adams of 
 Massachusetts nominated John Marshall of Virginia, 
 then Secretary of State, Chief Justice of 'the Supreme Court 
 of the United States. 
 
 For more than a generation he presided there and largely 
 in consequence of his influence it became the most august 
 judicial tribunal on the face of the earth, of which De 
 Tocqueville wrote, " In the hands of the Supreme Court 
 repose unceasingly the peace, the prosperity, the existence 
 even, of the Union." 
 
 In the year 1806 Harvard College bestowed upon Mar- 
 shall its highest honorary degree, and now, in another 
 century, we meet here in this Memorial Hall to again do 
 honor to the undiminished memory of John Marshall. 
 
 I have the honor of presenting to you the orator of this 
 afternoon, James Bradley Thayer, Weld Professor of 
 Law. 
 
 21 
 
PROFESSOR THAYER'S ADDRESS 
 
"James Bradley Thayer 
 
PROFESSOR THAYER'S ADDRESS 
 
 Mr. President, Ladies and Gentlemen : — 
 
 IT is one hundred years ago to-day since the 
 Supreme Court of the United States first sat 
 at Washington, the new capital, — that " wilderness 
 city, set in a mud-hole," of whose beginnings we 
 have lately been reading. The court sat with a new 
 chief justice, John Marshall, of Virginia. It is 
 in commemoration of him and of this event, so 
 auspicious, the beginning of inestimable benefits to 
 his country, that we have gathered now, moved 
 by an impulse that brings together others of our 
 countrymen all over the United States. Outside 
 of Virginia, few have a better right to celebrate this 
 event than we who are here assembled ; for the 
 President who selected and commissioned Marshall 
 was John Adams of Massachusetts, alumnus of 
 Harvard and member of the Suffolk bar. 
 
 At that time Marshall was something over forty- 
 five years old. He was born on September 24, 1755. 
 His home had always been in Virginia. The first 
 twenty years of his life were passed wholly in that 
 
 25 
 
JOHN MARSHALL 
 
 part of Prince William County which became, two 
 or three years after his birth, the new, wide-spread- 
 ing frontier county of Fauquier, — so named, after 
 a Virginia fashion, from the new royal governor 
 of 1758. He was born in the eastern part of it, 
 and after some ten years, went with his father to the 
 western part, at Oakhill and the neighborhood, just 
 under the Blue Ridge. They show you still at 
 Midland, on the Southern Railroad, a little south 
 of Manassas, a small, rude heap of bricks and 
 rubbish, as being all that is left of the house where 
 Marshall was born ; and children on the farm reach 
 out to you a handful of the bullets with which that 
 sacred spot and the whole region were thickly sown 
 before a generation had passed, after Marshall's 
 death. His education was got partly from his 
 father, a man of character and marked courage and 
 capacity, who served as colonel in the War of 
 Independence, and partly from such teachers as the 
 neighborhood furnished. For about a year, also, 
 he was at a school in Westmoreland County, where 
 his father and George Washington had attended; 
 and there James Monroe was his schoolmate. At 
 home, when he was about eighteen years old, he 
 took up Blackstone, a book then lately printed. 
 But he dropped it soon, for difficulties with the 
 mother country were thickening, and Marshall 
 began the military drill. 
 
 26 
 
PROFESSOR THAYER'S ADDRESS 
 
 From 1773, for eight years, he was mainly a sol- 
 dier, at first learning and teaching the drill, and 
 then for five or six years in active service, as an 
 officer in the Virginia Militia and the Continental 
 Army. 
 
 During a lull, for a few months, in the latter part 
 of this period, he studied law and philosophy at 
 William and Mary College; and, in 1780, was 
 admitted to the bar. Beginning practice the next 
 year, for the following sixteen years, before entering 
 the field of national politics, he practised law, at 
 first in his native county, and then, after his mar- 
 riage in 1783, at Richmond — a little town in the 
 upland, whither for safety the State archives had 
 been transferred from Williamsburg, and which had 
 now become the capital of the State. From the 
 beginning he was successful. Soon his success was 
 distinguished, and he led the Richmond bar. Dur- 
 ing this period he was eight times a member of the 
 Assembly ; for two years on the Executive Council ; 
 and a member of the Virginia Federal Convention 
 in 1788. Once only he argued a case before the 
 Supreme Court in Philadelphia. Although he lost 
 it in 1796, yet his argument made him famous, and 
 he came then to know the leaders in politics. 
 Having declined, in 1795, the office of Attorney- 
 General of the United States, and in 1796, that 
 of Minister to France, both offered him by 
 
 27 
 
JOHN MARSHALL 
 
 Washington, he accepted the next year, at the 
 hands of Adams, the position of Envoy-Extraor- 
 dinary to France, in connection with Charles Cotes- 
 worth Pinckney of South Carolina and Elbridge 
 Gerry of Massachusetts. 
 
 He returned to the United States in 1798, and 
 new honors poured in upon him fast. Very un- 
 willingly, at the urgent request of Washington, he 
 allowed himself to be a candidate for Congress in 
 that year, and was elected. In the same year, he 
 declined the place of justice of the Supreme Court 
 of the United States, offered him by President 
 Adams. In the spring of 1799, without his own 
 knowledge, he was nominated Secretary of War, 
 and against his request to withdraw the nomination, 
 it was confirmed. But he did not enter upon this 
 office ; for the sudden withdrawal of Timothy 
 Pickering as Secretary of State led to Marshall's 
 appointment as his successor. He accepted that 
 office, and filled it for the remainder of the Presi- 
 dent's term. And finally, while he had still to serve ': 
 as Secretary of State for a month or more, on the 
 31st of January, 1801, he was commissioned Chief 
 Justice of the United States. During the following 
 month, at the President's request, he joined in his 
 own person, strangely enough as it seems to us of 
 the present day, the functions of the head of the. 
 judiciary and head of the executive Cabinet. This 
 
 28 
 
PROFESSOR THAYER'S ADDRESS 
 
 had happened, however, twelve years before, in the 
 case of John Jay. 
 
 Such was the experience, and such the training, 
 that of a soldier, a lawyer and a statesman, with 
 which our great Chief Justice began his new 
 career. 
 
 During the thirty-four years and more that were 
 to follow, before Marshall died in office, in his 
 eightieth year, he bore himself with that distinction 
 of intellect, that competent learning, and that 
 strength, dignity, sweetness, and unaffected sim- 
 plicity of character that all men know, and that 
 made him no less beloved by his friends than he 
 was honored and admired by all his countrymen. 
 
 A strange felicity it was for our country in those 
 early shaping days, when the character of its 
 leaders meant so much," that the career of Wash- 
 ington, as its Chief Executive, should have been 
 followed so soon by that of Marshall in its chief 
 judicial seat. Hardly can two nobler public men 
 be found in the history of mankind than these two 
 Virginians. Yes, Virginians ! and we like to think 
 of that to-day as we welcome here our distinguished 
 guest [Mr. Tucker]. 
 
 Virginia gave us these imperial men, — 
 She gave us these unblemished gentlemen : 
 What can we give her back but love and praise, 
 As in the dear, old, unestranged days. 
 
 20 
 
JOHN MARSHALL 
 
 I have now given a short summary of Marshall's 
 life up to the time that he became Chief Justice. It 
 is with great regret that I pass over most of the 
 details of his personal history. A few of them 
 only may be mentioned. 
 
 It was on his visit to Virginia, towards the end 
 of 1779, that he met at Yorktown the beautiful little 
 lady, fourteen years old, who became his wife three 
 years later, and who was to be the mother of his ten 
 children x and to receive from him the tenderest 
 devotion until the day of her death, in 1831. 
 Some letters of her older sister, Mrs. Carrington, 
 written to another sister, give us a glimpse of Cap- 
 tain Marshall in his twenty-fifth year. These ladies 
 were the daughters of Jaquelin Ambler, treasurer of 
 the colony, living next door to the family of Colo- 
 nel Marshall. Their mother was that Rebecca 
 Burwell for whom, under the name of " Belinda," 
 Jefferson had languished, in his youthful correspon- 
 dence of some twenty years before. The girls had 
 the highest expectations when they heard that Cap- 
 tain Marshall was coming home from the war. 
 They were to meet him first at a ball, and were 
 contending for the prize beforehand. Mary, the 
 youngest, carried it off. "At the first introduc- 
 tion," writes her sister, who was but one year older, 
 " he became devoted to her. For my own part," 
 
 1 Only six of his children grew to full age. 
 3° 
 
PROFESSOR THAYER'S ADDRESS 
 
 she adds, " I felt not the smallest wish to contest 
 the prize with her. . . . She, with a glance, divined 
 his character, . . . while I, expecting an Adonis, 
 lost all desire of becoming agreeable in his eyes 
 when I beheld his awkward, unpolished manner and 
 total negligence of person. How trivial now seem 
 all such objections," she adds, writing in 1810. 
 " His exemplary tenderness to our unfortunate 
 sister is without parallel." She had early become 
 subject to a nervous affection, that lasted all her life. 
 " But this," it is added, " has only seemed to in- 
 crease his care and tenderness, and he is, as you 
 know, as entirely devoted as at the moment of their 
 first being married. Always, and under every cir- 
 cumstance an enthusiast in love, I have very 
 lately heard him declare that he looked with aston- 
 ishment at the present race of lovers, so totally 
 unlike what he had been himself. His never-fail- 
 ing cheerfulness and good humor are a perpetual 
 source of delight to all connected with him, and 
 . . . have been the means of prolonging the life of 
 her he is so tenderly devoted to." 
 
 "He was her devoted lover to the very end of 
 her life," another member of his family has said. 
 And Judge Story, in speaking of him after his wife's 
 death, described him as " the most extraordinary 
 man I ever saw for the depth and tenderness of his 
 feelings." 
 
 3i 
 
JOHN MARSHALL 
 
 A little touch of his manner to his wife is seen in 
 a letter written to her from the city of Washington, 
 on February 23, 1825, in his seventieth year. He 
 had had an injury to his knee, about which Mrs. 
 Marshall was anxious. " I shall be out," he writes, 
 "in a few days. All the ladies of the secretaries 
 have been to see me ; some more than once, and have 
 brought me more jelly than I could eat, and many 
 other things. '' I thank them and stick to my barley- 
 broth. Still I have lots of time on my hands. 
 How do you think I beguile it ? I am almost 
 tempted to leave you to guess until I write again. 
 You must know I begin with the ball at York, our 
 splendid Assembly in the Palace in Williamsburg, 
 my visit to Richmond for a fortnight, my return to 
 the field, and the very welcome reception you gave 
 me on my arrival at Dover, pur little tiffs and mak- 
 ings-up, my feelings when Major Dick 1 was court- 
 ing you, my trip to the Cottage [the Ambler home 
 in Hanover County, where the marriage took 
 place], the thousand little incidents, deeply affect- 
 ing in turn." 
 
 This was the ball of which Mrs. Carrington 
 wrote ; and of the " Assembly at the Palace " she 
 also gave an account, remarking that " Marshall 
 was devoted to my sister." 
 
 After his marriage, and when he had begun prac- 
 
 1 Richard Anderson, the father of the hero of Fort Sumter. 
 
 32 
 
PROFESSOR THAYER'S ADDRESS 
 
 tice at Richmond, he still retained certain simple 
 and rustic ways, brought from the army and his 
 life in the mountain region, that troubled some per- 
 sons at Richmond, whose conception of greatness 
 was associated with very different models of dress 
 and behavior. " He was one morning strolling," 
 we are told, " through the streets of Richmond, 
 attired in a plain linen roundabout and shorts, with 
 his hat under his arm, from which he was eating 
 cherries, when he stopped in the porch of the Eagle 
 Hotel, indulged in a little pleasantry with the land- 
 lord, and then passed on." A gentleman from the 
 country was present who had a case coming on 
 before the Court of Appeals, and was referred by 
 the landlord to Marshall as the best lawyer to 
 employ. But "the careless and languid air" of 
 Marshall had prejudiced the man, and he refused 
 to employ him. The clerk of the court, by and 
 by, also recommended Marshall, but without suc- 
 cess. The client observed in court an elderly law- 
 yer in black, with a powdered wig, and retained 
 him. In the first case this man and Marshall 
 spoke on opposite sides. The gentleman listened, 
 and secured Marshall at once ; frankly telling him 
 the whole story, and adding that of the hundred 
 dollars he had brought to pay his lawyer, only five 
 were left. Marshall good-naturedly took it, and 
 helped in the case. 
 
 3 33 
 
JOHN MARSHALL 
 
 In the Virginia Federal Convention of 1788, at 
 the age of thirty-three, he is described, rising after 
 Monroe had spoken, as " a tall young man, slovenly 
 dressed in loose summer apparel. . . . His man- 
 ners," it is said, " like those of Monroe, were in 
 strange contrast with those of Edmund Randolph, 
 or of Grayson." 
 
 o^In such stories as these, one is reminded, as he 
 is often reminded, of a resemblance between Mar- 
 shall and Lincoln. Very different men they were, 
 but both thorough Americans, with unborrowed 
 character and manners, and a lifelong flavor derived 
 from no other soil. 
 
 In those efforts, on the part of some of the 
 leaders of Virginia and the South, early in the cen- 
 tury, to rid themselves of slavery, to which we at 
 the North have never done sufficient justice, Mar- 
 shall took an active part. The American Coloni- 
 zation Society was organized in 18 16 or 18 17, with 
 Bushrod Washington for president. In 1823 an%r 
 auxiliary society was organized at Richmond, of 
 which Marshall was president, an office which he 
 held nearly or quite up to the time of his death. 
 It is interesting to observe that one of the Virginia 
 plans for colonization was to have worked out the 
 abolition of slavery in the year 190 1. 
 
 Of slavery Marshall wrote to a friend, in 1826: 
 " I concur with you in thinking that nothing por- 
 
 34 
 
PROFESSOR THAYER'S ADDRESS 
 
 tends more calamity and mischief to the Southern 
 States than their slave population. Yet, they seem 
 to cherish the evil, and to view with immovable 
 prejudice and dislike everything which may tend to 
 diminish it. I do not wonder that they should 
 resist any attempt, should one be made, to interfere 
 with the rights of property, but they have a feverish 
 jealousy of measures which may do good without 
 the hazard of harm, that I think very unwise." 
 
 We often hear of the Chief Justice at his " Quoit 
 Club." He was a famous player at quoits, and 
 kept it up all his life. Chester Harding, the artist 
 who painted the full length portrait of Marshall that 
 hangs in the Harvard Law School, tells us of him as 
 he saw him at the Quoit Club, in his seventy-fifth 
 year. Fortunately, language did not, like paint, 
 limit the artist to a single moment of time ; he 
 gives us the Chief Justice in action. The club 
 used to meet every week in a grove, about a mile 
 from the city. Harding went early. " I watched," 
 he says, "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 tumblerful of 
 the liquid, smacked his lips, and then turned to the 
 company with a cheerful ' How are you, gentle- 
 men ? ' He was looked upon as the best pitcher 
 
 35 
 
JOHN MARSHALL 
 
 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 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." 1 
 
 An entertaining account has been preserved by 
 the late Mr. George W. Munford, of a meeting of 
 this club, apparently while Marshall was still at the 
 bar, at which he and Wickham, a leading Virginia 
 lawyer, one of the counsel of Aaron Burr, were the 
 caterers. At the table Marshall announced that at 
 the last meeting two members had introduced poli- 
 tics, a forbidden subject, and had been fined a 
 basket of champagne, and that this was now pro- 
 duced as a warning to evil-doers. As the club 
 seldom drank this article, they had no champagne 
 glasses, and must drink it in tumblers. By and 
 by, the quoit players retired for a game. Most of 
 
 1 In speaking of this same club, another writer says: " We have 
 seen Mr. Marshall, . . . when he was Chief Justice of the United 
 States, on his hands and knees, with a straw and a penknife, the blade 
 of the knife stuck through the straw, holding it between the edge 
 of the quoit and the hub, and when it was a very doubtful question, 
 pinching or biting off the ends of the straw, until it would fit to a 
 hair." 
 
 36 
 
PROFESSOR THAYER'S ADDRESS 
 
 the members had smooth, polished brass quoits. 
 But Marshall's were iron, — large, rough, and 
 heavy, such as few of the members could throw 
 well from hub to hub. Marshall himself threw 
 them with great success and accuracy, and often 
 "rang the meg." On this occasion, Marshall and 
 Parson Blair led the two parties of players. Mar- 
 shall played first, and " rang the meg." Parson 
 Blair did the same : his quoit came down plumply I 
 on top of Marshall's. At this there was uproari- ' 
 ous applause, which drew out all the others from ; 
 the dinner. Then came an animated controversy 
 as to what should be the effect of this exploit. All 
 returned to the table, had another bottle of cham- 
 pagne, and listened to arguments, one from Mar- 
 shall,/)™ se, and one from Wickham, for Parson Blair. 
 The company decided against Marshall. His argu- 
 ment is a humorous companion-piece to any of his 
 elaborate judicial opinions. First he formulated 
 the question : " Who is winner when the adversary 
 quoits are on the meg at the same time ? " Then 
 he stated the facts, and added that the question was 
 one of the true construction and application of the 
 rules of the game. The first one ringing the meg, 
 he argued, has the advantage ; no other can succeed 
 who does not begin by displacing him. The par- 
 son, he willingly allowed, deserves to rise higher 
 and higher in everybody's esteem; but then he 
 
 37 
 
JOHN MARSHALL 
 
 must not do it by getting on his adversary's back. 
 That is more like leap-frog than quoits. Again, ) 
 the legal maxim is, Cujus est solum ejus est usque ad) 
 caelum. His own right, as first occupant, extended' 
 to the vault of heaven. No opponent can gain '■ 
 any advantage by squatting on his back, — he must 
 either bring a writ of ejectment, or drive him out 
 vi et armis. And then, after further argument of,- 1 
 the same sort, he asked judgment; and sat downj) 
 amidst great applause. 
 
 Mr. Wickham then rose and made an argument 
 of a similar pattern. No rule, he said, requires an 
 impossibility. Mr. Marshall's quoit is twice as 
 large as any other ; and yet it flies from his arm ) 
 like the iron ball, at the Grecian games, from the > 
 arm of Ajax. It is an iron quoit, unpolished, 
 jagged, and of enormous weight. It is impossible) 
 for an ordinary quoit to move it. With much 
 more of the same sort, he contended that it was a 
 drawn game. After animated voting, -protracting 
 the uncertainty as long as possible, it was so de- 
 cided. On another trial, Marshall clearly won. 
 
 Of Marshall's athletic powers when he was young, 
 President Quincy says that he used to hear them 
 celebrated among the men of the South whom he „„ 
 met in Washington early in the century. Thzy/Hf 
 said that, he was the only man in the army who could 
 put a stick on the heads of two persons of his own 
 
 38 
 
PROFESSOR THAYER'S ADDRESS 
 
 height (six feet) and clear it at a running jump. 
 He was famous also in the foot-race ; and, running 
 in his stocking feet, was nicknamed " Silverheels " 
 by the soldiers, from his uniform success, and the 
 color of the yarn with which his mother finished 
 off his blue stockings at the heel. 
 
 Of Marshall's appearance on the bench we have 
 a picture in one of Story's letters from Washington, 
 while he was at the bar. He is writing in 1808, 
 the year after the Burr trial — the year of the 
 St. Memin portrait. " Marshall," he says, " is of a 
 tall, slender figure, not graceful or imposing, but 
 erect and steady. His hair is black, his eyes small 
 and twinkling, his forehead rather low. His man- 
 ners are plain yet dignified,' and an unaffected 
 modesty diffuses itself through all his actions. His 
 dress is very simple, yet neat. I love his laugh, — 
 it is too hearty for an intriguer, — ^and his good 
 temper and unwearied patience are equally agree- 
 able on the bench and in the study." ' 
 
 And again, Story said of him in his address to 
 the Suffolk bar, after his death : " Upon a first 
 introduction he would be thought to be cold and 
 reserved ; "but he was neither the one nor the other!. 
 It was simply a habit of easy taciturnity, watching, 
 as it were, his own turn to follow the line of con- 
 versation, and not to presume to lead it. . . . He 
 had great simplicity of character, manners, dress, 
 
 39 
 
JOHN MARSHALL 
 
 and deportment/ and yet with a natural dignity that 
 suppressed impertinence and silenced rudeness. 
 His simplicity had an exquisite naivete which 
 ; charmed every one, and gave a sweetness to his 
 ^familiar conversation approaching to fascination." 
 In the autumn of 1831, Marshall went to Phila- 
 delphia to undergo the torture of the operation of 
 lithotomy, before the days of ether. It was the last 
 operation of the distinguished surgeon, Dr. Physick. 
 Another eminent surgeon who assisted him, Dr. 
 Randall, has given an account of this occasion. 
 After speaking of the danger of the operation on so 
 old a man, he adds that " his recovery was in a 
 great degree owing to his extraordinary self-posses- 
 sion, and to the calm and philosophical views which 
 he took of his case." 
 
 In making preparations, Dr. Randall visited the 
 patient about nine o'clock in the morning. " Upon 
 entering his room, I found him engaged in eating 
 his breakfast. He received me with a pleasant 
 smile . . . and said, 'Well, doctor, you find me 
 taking breakfast, and I assure you I have had a good 
 one. I thought it very probable that this might be 
 my last chance, and therefore I was determined to 
 enjoy it and eat heartily.' I expressed the great 
 pleasure which I felt at seeing him so cheerful, and 
 said that I hoped all would soon be happily over. 
 He replied to this that he did not feel the least anxi- 
 
 40 
 
/ 
 
 V 
 
 PROFESSOR THAYER'S ADDRESS 
 
 ety or uneasiness respecting the operation or its re- 
 sults ; . . . that he had not the slightest desire to live, 
 laboring under the sufferings to which he was then 
 subjected ; that he was perfectly ready to take all 
 the chances of an operation, and he knew there were 
 many against him ; and that if he could be relieved 
 by it he was willing to live out his appointed time, 
 but if not, would rather die than hold existence 
 
 |1 
 
 (accompanied with the pain and misery which he 
 then endured. 
 
 " After he finished his breakfast I administered 
 to him some medicine ; he then inquired at what 
 hour the operation would be performed. I men- 
 tioned the hour of eleven. He said, 'Very well; 
 do you wish me now for any other purpose, or may 
 I lie down and go to sleep ? ' I was a good deal 
 surprised at this question, but told him that if 
 he could sleep it would be very desirable. He 
 immediately placed himself upon the bed and fell 
 into a profound sleep, and continued so until I 
 was obliged to rouse him in order to undergo ) 
 the operation. He exhibited the same fortitude, V 
 scarcely uttering a murmur, throughout the whole | 
 procedure, which, from the peculiar nature of his 
 complaint, were necessarily tedious." 
 / From the patient over a thousand calculi were 
 jf taken ; he had a perfect recovery ; nor did the dis- 
 •'/ order ever return. 
 
 4i 
 
JOHN MARSHALL 
 
 It was at this period, in 1831 and 1832, that 
 Inman's fine portrait of him, now hanging in the 
 rooms of the Law Association of Philadelphia, was 
 taken for the bar of that city. A replica is on the\ 
 walls of the State library in Richmond, which Mar-J 
 shall himself bought for his only daughter. This 
 portrait is regarded as the best that was ever taken 
 of him in his later life. Certainly it best answers 
 the description of him by an English traveller, who 
 saw him in the spring of 1835, ant ^ sa ^ tnat " the\ 
 venerable dignity of his appearance would not 
 suffer in comparison with that of the most re- 
 spected and distinguished-looking peer in the J 
 British House of Lords." 
 
 After his recovery in 1831, Marshall seems to 
 have been in good health down to the early part of 
 1835. Then, we. are told, he suffered "severe con- 
 tusions " 1 in the stage-coach in returning from 
 Washington. His health now rapidly declined, and 
 he went again to Philadelphia for relief, where he 
 died on July 6, 1835, °^ a ser i° us disorder of the 
 liver. 
 
 1 Many a " severe contusion" must he have suffered in those 
 primitive days, from upsets and joltings, in driving every year be- 
 tween Richmond and Washington, some one hundred and twenty 
 miles each way ; from Richmond to Raleigh and back, in attending 
 
 1 his North Carolina circuit, about one hundred and seventy-five miles 
 each way ; and between Richmond and Oakhill, his country place, 
 
 ' every summer, about one hundred miles each way. 
 
 42 
 
PROFESSOR THAYER'S ADDRESS 
 
 He missed from his deathbed his eldest son, 
 whom he had expected and asked for ; and he never/, 
 learned the pathetic tragedy which you may read 
 now on the gravestone of that son behind the old! 
 house at Oakhill. Thomas Marshall, in hastening 
 to his father near the end of June, was passing 
 through the streets of Baltimore, when he was 
 suddenly killed in a storm by the blowing down of 
 a chimney. 
 
 The great Chief Justice was carried home with 
 every demonstration of respect and reverence, and 
 was buried by the side of his wife in the Shockoe 
 Hill Cemetery in Richmond. There to-day, upon 
 horizontal tablets, are two inscriptions of affecting 
 simplicity, both written by himself. The first runs 
 thus : " John Marshall, son of Thomas and Mary 
 Marshall, was born the 24th of September, 1755. 
 Intermarried with Mary Willis Ambler, the 3d of 
 January, 1783. Departed this life the [6th] day of 
 July, 1835." The second thus: "Sacred to the 
 memory of Mrs. Mary Willis Marshall, Consort 
 of John Marshall. Born the 13th of March, 1766. 
 Departed this life the 25th of December, 1831. 
 This stone is devoted to her memory by him who 
 best knew her worth, And most deplores her loss." 
 
 Marshall's accession to the bench was marked by 
 an impressive circumstance. For ten years or 
 
 43 
 
JOHN MARSHALL 
 
 more he alone gave all the opinions of the court 
 to which any name was attached, except where the 
 case came up from his own circuit, or where, for any 
 reason he did not sit. In the very few cases where i 
 opinions were given by the other justices, they were 
 given in the old way, seriatim, as they were usually 
 given before Marshall came in, and as they were 
 given in contemporary English courts. 
 
 Whatever may have been the purpose of the 
 Chief Justice in introducing this usage, there can be 
 no doubt as to the impression it was calculated to 
 produce. It seemed, all of a sudden, to give to thr.^ 
 judicial department a unity like that of the executive, 
 to concentrate the whole force of that department 
 in its chief, and to reduce the side justices to a sort 
 of cabinet advisers. In the very few early cases 
 where there was expressed dissent, it lost much of 
 its impressiveness when announced, as it sometimes 
 was, by the mouth that gave the opinions of the 
 court. 
 
 In 1 8 1 2, when a change took place, the court had 
 been for a year without a quorum. Moreover"^ 
 Judge Story had just come to the bench, a man of , 
 quite too exuberant an intellect and temperament;, 
 to work well as a silent side judge. We remark, 
 also, at the beginning of that term, that the Chief 
 Justice was not in attendance, haying, as the 
 reporter tells us, "received an injury by the over- 
 
 44 
 
PROFESSOR THAYER'S ADDRESS 
 
 setting of the stage-coach on his journey from 
 Richmond." And it may be added that just at 
 this time the anxious prayer of Jefferson was 
 answered, and a majority of the judges were Repub- 
 licans. From whatever cause, henceforward there 
 was a change; and, without returning to the old 
 habit of seriatim opinions, the side judges had their 
 turn, as they do now. 
 
 In coming to consider Marshall's judicial work, 
 as before, in dealing with the personal side of him, I 
 pass over much of what presses to be said ; for 
 I must not, on this occasion, transgress materially 
 that little compass of an hour, which prudence, and 
 usage, and the convenience of my hearers, on this 
 busy day, prescribe. A few things only can be^) 
 said, and these such as are not too technical and) 
 detailed to be quite unfit for your hearing to-day. 
 
 In most of Marshall's opinions, one observes the 
 style and the special touch of a thoughtful and 
 original mind; in some of them the powers of a 
 great mind in full activity. His opinions relating 
 to international law, as I am assured by those 
 competent to judge, rank with the best there are in 
 the books. As regards most of the more familiar 
 titles of the law, it would be too much to claim for 
 him the very first rank. In that region he is, in 
 many respects, equalled or surpassed by men of 
 greater learning, more deeply saturated with the 
 
 45 
 
JOHN MARSHALL 
 
 technicalities of the law, with that " artificial perfection 
 of reason " of which Coke used to talk, as surpass- f- 
 ing so much the reason of any one man, — men 
 such as Story, Kent, or Shaw, or the reformer Mans- 
 field whom Marshall greatly admired, Eldon, 
 Westbury, or Blackburn. But in_the field of con-'i") 
 stitutional law, and especially in one department of 
 it, that relating to the national Constitution, he was 
 pre-eminent, — first, with no one second. It is \ 
 hardly possible, as regards this part of the law, to I 
 say too much of the service he rendered to hi&J 
 country. Sitting in the highest judicial place fori) 
 more than a generation ; familiar from the begin- 
 ning, with the Federal Constitution, with the 
 purposes of its framers, and with all the objections \\ 
 of its critics ; accustomed to meet these objections j 
 from the time he had served in the Virginia Con-) I 
 vention of 1788; convinced of the purpose and',) 
 capacity of this instrument to create a strong nation, | 
 one competent to make itself respected at home and || 
 abroad, and able to speak with the voice and to l ; 
 strike with the strength of all ; assured that this l 
 was the paramount necessity of the country, and \\ 
 that the great source of danger was in the jealousies ' 
 and adverse interests of the States, — Marshall Z 
 
 acted on his convictions. He determined to give v 
 
 w 
 
 full effect to all the affirmative contributions of 
 power that went to make up a great and efficient " 
 
 46 
 
PROFESSOR THAYER'S ADDRESS 
 
 national Government; and fully also, to enforce the 
 national restraints and prohibitions upon the States. 
 In both cases he included not only the powers 
 expressed in the Constitution, but those also which 
 should be found, as time unfolded, to be fairly and 
 clearly implied in the objects for which the Federal 
 Government was established. In that long judicial i 
 life with which Providence blessed him, and! 
 blessed his country, he was able to lay down, in a J 
 succession of cases, the fundamental considerations ,|) 
 which fix and govern the relative functions of the '_,' 
 nation and the States, so plainly, with such fulness, / 
 such simplicity and strength of argument, such a, 
 candid allowance for all that was to be said upon the 
 other side, in a tone so removed from controversial) 
 bitterness, so natural and fit for a great man address- 
 ing the " serene reason " of mankind, — as to com- 
 mend these things to the minds of his countrymen, 
 and firmly to fix them in the jurisprudence of the; 
 nation ; so that " when the rain descended and the 
 floods came, and the winds blew and beat upon that 
 house, it fell not, because it was founded upon a 
 rock." 
 
 It was Marshall's strong constitutional doctrine, 
 explained in detail, elaborated, powerfully argued, 
 over and over again, with unsurpassable earnestness 
 and force, placed permanently in our judicial records, 
 holding its own during the long emergence of a 
 
 47 
 
JOHN MARSHALL 
 
 feebler political theory, and showing itself in all its 
 majesty when war and civil dissension-.. came, — it' 
 was largely this that saved the country from suc- 
 cumbing, in the great struggle of forty years ago, 
 and kept our political fabric from going to pieces., 
 I do not forget our own Webster, or others, in 
 saying that to Marshall (if we may use his own 
 phrase about Washington), "more than to any 
 other individual, and as much as to one individ- 
 ual was possible," do we owe that prevalence of 
 sound constitutional opinion and doctrine that held 
 the Union together; to that combination in him, 
 of a great statesman's sagacity, a great lawyer's 
 lucid exposition and persuasive reasoning, a great 
 man's candor and breadth of view, and that judicial 
 authority on the bench, allowed naturally and as of 
 right to ajarge, sweet nature, which all men loved,- 
 and trusted, and capable of harmonizing differences ] 
 and securing the largest possible amount of co-oper-p 
 ation among discordant associates. In a very great 
 degree, it was Marshall, and_ these things in him, 
 that have wrought out for us a strong and great 
 : nation, one that men can love and die for; that 
 "mother of a mighty race," which stirred the soul 
 of Bryant half a century ago, as he dreamed how, 
 
 " The thronging years in glory rise, 
 \ And as they fleet, 
 
 Drop strength and riches at thy feet ; " 
 48 
 
PROFESSOR THAYER'S ADDRESS 
 
 the nation whose image flamed in the heart of 
 Lowell, a generation since, as he greeted her com- 
 ing up out of the Valley of the Shadow of Death : 
 
 s 
 
 " Oh Beautiful, my country, ours once more ! . . . 
 Among the nations bright beyond compare ! . . . 
 What were our lives without thee ? 
 What all our lives to save thee ? 
 We reck not what we gave thee, 
 We will not dare to doubt thee, 
 But ask whatever else, .and we will dare ! " 
 
 It fell, for the first time, to the Supreme Court, 
 early in Marshall's day, to take the grave step of 
 disregarding an Act of Congress, — s a co-ordinate 
 department-7 — which conflicted with the national 
 Constitution. Had the question related to a con- 
 flict between that Constitution and the enactment 
 of a State, it would have been a simpler matter. J 
 /These two questions, under European written con- 
 ij stitutions are regarded as different ones. It is 
 almost necessary to the working of a federal system 
 that the general government, and any of its depart- 
 ments, should be free to disregard acts of any ; 
 department of the local states which may be 
 inconsistent with the federal constitution. And so) 
 in Switzerland and Germany the federal courts thus /. 
 treat local enactments. But there is not, under any 
 written constitution in Europe, a country where the 
 court deals in this way with the act of its co-ordi- 
 4 49 
 
JOHN MARSHALL 
 
 nate legislature/'" In Germany, at one time, this 
 was done, under the influence of a study of our 
 law, but it was soon abandoned. 
 
 I must omit, very reluctantly, the historical 
 considerations relating to this great question ; the 
 theory and the usage under our colonial charters, 
 which prepared our people for the peculiar doctrine 
 which we hold ; the debates and the differences of 
 opinion about it in our early conventions and 
 elsewhere ; the various contrivances for meeting 
 this danger of unconstitutional legislation which 
 were discussed; the early practices of our Federal 
 Executive as to asking opinions of the judges, and, 
 on their part, of communicating such opinions, 
 informally and privately, to the Executive, so that 
 he might see to it that the fundamental law was 
 faithfully executed ; these and other such matters 
 I must, at present, pass by. 
 
 It was in 1803, when Marshall had been two 
 years Chief Justice, that the great case above 
 referred to, that of Marbury v. Madison, came 
 up for final decision. It has been said in high 
 quarters that there were earlier decisions of the 
 Supreme Court holding an Act of Congress un- 
 constitutional ; but nothing yet in print justifies j 
 the statement. This was the first case. And it|i 
 was more than half a century before such a decision - 
 was again rendered by this court. 
 
 50 
 
PROFESSOR THAYER'S ADDRESS 
 
 Marbury v. Madison was a remarkable case. It 
 was intimately connected with certain executive 
 action for which Marshall, as Secretary of State, 
 was partly responsible. For various reasons, the 
 case must have excited a peculiar interest in his 
 mind. Within less than three weeks before the 
 end of Adams' administration, on February 13, 
 1 801, while Marshall was both Chief Justice and 
 Secretary of State, an Act of Congress had abol- 
 ished the old system of circuit and district courts, 
 and established a new one. This gave to the , 
 President the appointment of many new judges, 
 and kept him and his secretary busy, during the 
 last hours of the administration, in choosing and 
 commissioning the new officials. And another" 
 thing. The Supreme Court had consisted hereto- 
 fore of six judges. This same Act provided that 
 after the next vacancy on the bench, there should 
 be five judges only. Such arrangements as these, V 
 made by a party just going out of power, were not 
 ill calculated to create, in the mind of a party 
 coming in, the impression of an intention to keep 
 control of the judiciary as long as possible. There 
 were, to be sure, other reasons for some of this ' 
 action. Several judges had signified to Washing- 
 ton, in 1790, the opinion that the Judiciary Act of 
 1789 was unconstitutional in^making. them judges „ 
 of the Circuit Court. ' The new statute corrected 
 
 5* 
 
JOHN MARSHALL 
 
 that> Yet, in regard to the time chosen for this \ 
 action, it was observable that ten years and more 
 had been suffered to elapse before the mischief 
 then pointed out by the judges was corrected. 
 
 Another matter relating to the Supreme Court 
 had been dealt with. This Act of February 13, 
 
 1 801, provided that the two terms of the court, 
 instead of being held, as hitherto, in February and 
 August, should thereafter be held in June and 
 December. Accordingly, the court sat in Decem- 
 ber, 1 801. It adjourned, as it imagined, to June, 
 
 1802. But on March 8 of that year, Congress, 
 under the new administration, repealed the law of 
 1 801, unseated all the new judges, and reinstated 
 the old system, with its August and February . 
 terms. And then, a little later in the year, the '-' 
 August term of the court was abolished ; leaving 
 only one term a year, to begin on the first Monday 
 in February. Thus, since the June term was abol- 
 ished, and February had then passed, and there was 
 no longer a December or an August term, the court ; 
 found itself, in effect, adjourned, by Congress from ; 
 December 1801 to February 1803; and it had no i 
 session at all during the whole of the year 1802.; 
 
 If the legislation of 1801 was calculated to show 
 the importance attached by an outgoing political 
 party to control over the judiciary, that of 1802 was 
 well adapted to show how entirely the incoming 
 
 S 2 
 
PROFESSOR THAYER'S ADDRESS 
 
 party agreed with them, and how well inclined they \ 
 were to profit by their own opportunities. 
 
 How was it, meantime, with the judiciary itself? 
 Unfortunately, the Supreme Court had already been 
 drawn into the quarrel. For at the single Decem- 
 ber term, in 1801, held under the statute of that 
 year, an application had been made to the court by 
 four persons in the District of Columbia, for a rule 
 upon James Madison, Secretary of State, to show 
 cause why a writ of mandamus should not issue re- 
 quiring him to deliver to these persons certain com- 
 missions as Justice of the Peace, which had been 
 left in Marshall's office, undelivered, at the time 
 when he ceased to add to his present functions those 
 of Secretary of State. They had been made out, 
 sealed, and signed, and were supposed to have been 
 found by Madison when he came into office, and to 
 be now withheld by him. This motion was pend- 
 ing when the court adjourned, in December, 1801. 
 Of course, such a motion as that, — for a mandamus 
 to the head of the Cabinet, — must have attracted no 
 little attention on the part of the new administra- 
 tion and its supporters. Abolishing the August 
 term postponed any early action by the court ; and 
 was calculated to remind the judiciary very forcibly/ 
 of the power of the Legislature. At last the court; 
 came together, in February 1803, and found the! 
 mandamus case awaiting its action. It is the first 
 
 53 
 
JOHN MARSHALL 
 
 one reported at that term. Since Marshall had • 
 taken his seat, there had been only five reported / 
 cases before this one. The opinions had all been 
 given by Marshall himself unless a few lines " by 
 the court " may be an exception ; and according to 
 the new custom by which the Chief Justice became, 
 wherever it was possible, the sole organ of the court, 
 Marshall now gave the opinion in Marbury v. - 
 Madison. It may reasonably be wondered that he 
 should have been willing to give the opinion in 
 such a case ; and especially that he should have 
 handled the case as he did. But he was sometimes 
 curiously regardless of conventions. 
 
 What was decided in Marbury v. Madison, and 
 all that was decided, was that the court had no 
 jurisdiction ; and that a statute purporting to 
 confer on it power to issue a writ of mandamus 
 in the exercise of original jurisdiction was uncon- 
 stitutional. It is the decision upon this point 
 that makes the case famous ; and undoubtedly it 
 was reached in the legitimate exercise of the court's 
 power. 
 
 But, unfortunately, instead of proceeding in the 
 usual way, the opinion began by passing upon all 
 the points which the denial of its own jurisdiction 
 took from it the right to treat. It was thus elabo- 
 rately laid down, in about twenty pages, out of the 
 
 54 
 
PROFESSOR THAYER'S ADDRESS 
 
 total twenty-seven which comprise the opinion, that 
 Madison had no right to detain the commissions 
 which Marshall had left in his office ; and that 
 mandamus would be the proper remedy, in any 
 court which had jurisdiction to grant it. 
 
 Thus, as the court, by its decision, was remind- 
 ing the Legislature of its limitations, so, also, and by 
 this irregular method, it intimated to the Executive 
 department its amenability to judicial control ; and 
 two birds were neatly reached with the same stone. 
 Marshall made a very noticeable remark in this 
 opinion, seeming to point to the Chief Executive 
 himself, and not merely to his Secretary, when he 
 said, " It is not the office of the person to whom 
 the writ is directed, but the nature of the thing to ) 
 be done, by which the propriety or impropriety of 
 
 issuing the mandamus is to be determined." — a 
 
 . . . I'i 
 
 hint that on an appropriate occasion the judiciary 
 
 might issue its orders personally to him. This 
 remark gets illustration by what happened a few 
 years later, in 1807, when the Chief Justice, at, 
 the trial of Aaron Burr in Richmond, ordered 
 a subpoena to the same President, Thomas Jeffer- 
 son, directing him to bring thither certain docu- 
 ments. It was a strange conception of the relations 
 of the different departments of the Government to! 
 each other, to imagine that an order, with a penalty,; 
 was a legitimate judicial mode of addressing the 
 
 SS 
 
JOHN MARSHALL 
 
 .Chief Executive. On Jefferson's part this order 
 was received with the utmost discontent. He had. 
 a serious apprehension of a purpose to arrest him • 
 by force, and was prepared to . protect himself..' 
 Meantime, he sent to the United States Attorney 
 at Richmond the papers called for ; but explained, 
 with dignity, that while the Executive was willing to 
 testify in Washington, it could not allow itself to 
 be " withdrawn from its station by any co-ordinate 
 ', authority." 
 
 It was partly to the same tendency on Marshall's 
 part, already mentioned, to give little thought to 
 ordinary conventions, and partly to his kindness 
 of heart, that we should attribute another singular 
 occurrence, the fact that he attended a dinner at the 
 house of an old friend, Wickham, one of Burr's 
 counsel, when he knew that Burr was to be present ; 
 and when that individual, having previously been 
 brought to Richmond under arrest, examined before 
 Marshall and admitted to bail, was still awaiting the 
 action of the grand jury with reference to further judi- 
 cial proceedings before Marshall himself. Marshalf\ 
 had accepted the invitation before he knew that Burr J 
 was to be of the company. I have been informed 
 by one of his descendants that his wife advised him 
 not to go; but he thought it best not to seem too' - '*' 
 fastidious, or to appear to censure his friend, by 
 staying away. It is said that he sat at the opposite 
 
 5 6 
 
PROFESSOR THAYER'S ADDRESS 
 
 end of the table, Had no communication with Burr, 
 and went away early. But we must still wonder : 
 at his action ; and he himself, it is said, afterwards; 
 much regretted it. 
 
 Marshall's leading constitutional opinions may 
 be divided into three classes : First, such as discuss 
 the general character and reach of the Federal Con- 
 stitution, and the relation of the Federal Govern- 
 ment to the States. Of this class, McCulloch v. 
 Maryland, probably his greatest opinion, is the 
 chief illustration. Second, those cases which are 
 concerned with the specific restraints and limitations 
 upon the States, imposed by the Federal Constitu- 
 tion. To this class may be assigned Fletcher v. 
 Peck, the bankruptcy cases of Sturgis v. Crownin- 
 shield and Ogden v. Saunders, and Dartmouth 
 College v. Woodward. Third, such as deal with \ 
 the general theory and principles of constitutional/ 
 law. There is Jittle. of .this., sort. Except as it is 
 incidentally touched, — perhaps the only case is 
 Marbury v. Madison. 
 
 I cannot now speak of these cases in detail ; only 
 on one or two of them is there time to comment 
 at all. If we regard at once the greatness of the 
 questions at issue in the particular case, the in- 
 fluence of the opinion, and the large method and 
 clear and skilful manner in which it is worked out, 
 
 57 
 
JOHN MARSHALL 
 
 there is nothing so fine as the opinion in McCul- 
 loch v. Maryland. The questions were, first, 
 whether the United States could constitutionally 
 incorporate a bank ; and second, if it could, whether 
 a State might tax the operations of the bank ; as, in 
 this instance, by requiring it to use stamped paper 
 for its notes. The bank was sustained and the tax 
 condemned. In working this out, it was laid down 
 that while the United States is merely a govern- 
 ment of enumerated powers, and these do not in 
 terms include the granting of an incorporation ; 
 yet it is a government whose powers, though limited 
 in number, are, in general, supreme, and also ade- 
 quate to the great national purposes for which they 
 are given ; that these great purposes carry with 
 them the power of adopting such means, not pro- 
 hibited by the Constitution, as are fairly conducive 
 to the end ; and that incorporating a bank is not 
 forbidden, and is useful for several ends. Further, 
 the paramount relation of the national Government, 
 whose valid laws the Constitution makes the su- 
 preme law of the land, forbids the States to tax or 
 to " retard, impede, burden or in any manner con- 
 trol " the operations of the Government in any of 
 its instrumentalities. 
 
 The opinion was that of a unanimous court, in 
 which five out of the seven judges had been nomi- 
 nated by a Republican President. 
 
 58 
 
PROFESSOR THAYER'S ADDRESS 
 
 As regards the third class of cases mentioned just 
 now, that which deals with the fundamental con- 
 ceptions and theory of our American doctrine of 
 constitutional law, Marbury v. Madison, as I said, 
 is the chief case. I have purposely delayed until 
 this point any reference to this aspect of the case. 
 While this, historically, is what gives the case its 
 chief importance, yet it occupies only about a 
 quarter of the opinion. In outline, the argument 
 is as follows : The question is whether a court can 
 give effect to an unconstitutional act of the Legis- 
 lature. This is answered, as having little difficulty, 
 by referring to a few " principles long and well 
 established." i. The people, in establishing a 
 written Constitution and limiting the powers of the 
 Legislature, intend to control it ; else the Legislature 
 could change the Constitution by an ordinary act. 
 i. If a superior law is not thus changeable, then 
 an unconstitutional act is not law. This theory, 
 it is added, is essentially attached to a written con- 
 stitution. 3. If the act is void, it cannot bind the 
 court. The court has to say what the law is, and 
 in saying this must judge between the Constitution 
 and the act. Otherwise, a void act wouid be obli- 
 gatory ; and this would be saying that constitu- 
 tional limits upon legislation may be transgressed 
 by the Legislature at pleasure, and thus these limits 
 would be reduced to nothing. 4. The language 
 
 59 
 
JOHN MARSHALL 
 
 of the instrument gives judicial power in " cases 
 arising under the Constitution." Judges are thus 
 in terms referred to the Constitution ; they are re- 
 quired by the Constitution to be sworn to support 
 it, and cannot violate it. And so, it is said in con- 
 clusion, the peculiar phraseology of the instrument 
 confirms what is supposed to be essential to all 
 written constitutions, that a law repugnant to it is 
 void, and that the courts, as well as other depart- 
 ments, are bound by it. 
 
 This reasoning is mainly that of Hamilton, in his 
 short essay of a few years before, in the " Federalist." 
 It answered the purpose of the case in hand ; but 
 this short and dry treatment of the subject, as being 
 one of no real difficulty, is in sharp contrast with 
 the protracted reasoning of McCulloch v. Mary- 
 land, Cohens v. Virginia, and other great cases; 
 and it is much to be regretted. Absolutely settled 
 as the general doctrine is to-day, and sound as it 
 is when regarded as a doctrine for the descendants 
 of British colonists, there are grave and far-reaching 
 considerations, not touched by Marshall, which 
 affect to-day the proper administration of this ex- 
 tremely important power, and must have commanded 
 his attention, if the subject had been deeply con- 
 sidered and fully expounded. His reasoning does 
 not answer the difficulties that troubled Swift, after- 
 wards Chief Justice of Connecticut, and Gibson, 
 
 60 
 
PROFESSOR THAYER'S ADDRESS 
 
 afterwards Chief Justice of Pennsylvania, and many 
 another strong man ; not to mention Jefferson's 
 familiar and often ill-digested objections. It assumes 
 as an essential feature of a written constitution, what 
 does not exist in any one of the written constitu- 
 tions of Europe. It does not remark the grave 
 distinction between the power of a Federal court in 
 disregarding the acts of a co-ordinate department, 
 and in dealing thus with the legislation of the 
 local states ; a distinction important in itself, and 
 observed under the written constitutions of Europe, 
 which, as I have said, allow this power in the last 
 sort of case, while denying it in the other. 
 
 Had Marshall dealt with this subject after the 
 fashion of his greatest opinions, he must also have 
 passed upon certain serious suggestions arising out 
 of the arrangements of our own constitutions and 
 the exigencies of the other departments. All the 
 departments, and not merely the courts, are sworn 
 to support the Constitution. All are bound to 
 decide for themselves, in the first instance, what 
 this instrument requires of them. None can have 
 help from the courts unless, in course of time, some 
 litigated case should arise ; and of some questions it 
 is true that they never can arise in the way of 
 litigation. What was Andrew Johnson to do when 
 the Reconstruction Acts in 1867 had been passed 
 over his veto by the constitutional majority, while 
 
 61 
 
JOHN MARSHALL 
 
 his veto had gone on the express ground that they 
 were unconstitutional ? He had sworn to support 
 the Constitution. Should he put in force a law 
 which was contrary to the Constitution, or should 
 he say, as he did say to the court, through his 
 attorney-general, " I recognize no duty now except 
 faithfully to carry out and execute the law " ? And 
 why is he to say this ? 
 
 Again, what is the House of Representatives to 
 do when a treaty duly made and ratified by the 
 constitutional authority, namely, the President and 
 Senate, comes before it for an appropriation of 
 money to carry it out? Has the House, under 
 these circumstances, anything to do with the 
 question of constitutionality ? If it thinks the 
 treaty unconstitutional, can it vote to carry it out ? 
 If it can, how is this justified? 
 
 Is the situation necessarily different when a court 
 is asked to enforce a legislative act? The courts 
 are not strangers to the case of political questions, 
 where they refuse to interfere with the action of the 
 other departments, as in the case relating to Andrew 
 Johnson just referred to; and to the need of dealing 
 with what are construed to be merely directory 
 provisions of the Constitution ; and to the cases, 
 well approved in the Supreme Court of the United 
 States, where they refuse to consider whether pro- 
 visions of the Constitution have been complied with, 
 
 62 
 
PROFESSOR THAYER'S ADDRESS 
 
 requiring certain formalities in passing laws, — and 
 where they accept as final the certificate of the 
 officers of the political departments. A question, 
 passed upon by those departments, is thus refused 
 any discussion in the judicial forum, on the ground, 
 to quote the language of the Supreme Court, that 
 " the respect due to co-equal and independent 
 departments requires the judicial department to act 
 upon this assurance." 
 
 So far as any necessary conclusion is concerned, it 
 might fairly have been said with us, as it is said in 
 Europe, that the real question in all these cases is 
 not whether the act is constitutional, but whether 
 its constitutionality can properly be brought in 
 question before a given tribunal. 
 
 I have drawn your attention to the immense ser- 
 vices that Chief Justice Marshall rendered to his 
 country in the field of constitutional law, and have 
 considered a few of the cases. 
 
 Since his time not twice the length of his term of 
 thirty-four years has gone by, but five times the 
 number of volumes that sufficed for the opinions of 
 the Supreme Court during his period will not hold 
 those of his successors on that bench. Nor does 
 even that proportion approximate the increase in 
 the quantity of the court's business which is refer- 
 able to this particular part of the law. This has 
 
 63 
 
JOHN MARSHALL 
 
 enormously increased. When one reflects upon 
 the multitude, variety, and complexity of questions 
 relating to the regulation of inter-State commerce ; 
 upon the portentous and ever increasing flood of 
 litigation to which the fourteenth amendment has 
 given rise ; upon the new problems in business, 
 government, and police which have' come in with 
 steam and electricity, and their ten thousand appli- 
 cations ; upon the growth of corporations and of 
 wealth ; the changes of opinion on social questions, 
 such as the relations of capital and labor ; and 
 upon the recent expansions of our control over 
 great and distant islands, we seem to be living in 
 a different world from Marshall's. Under these 
 strange, new circumstances what is happening in ; 
 the region of constitutional law? Very serious,/ 
 things indeed. 
 
 The people of the States in making new constitu- 
 tions have long been adding more and more pro- 
 hibitions and restraints upon their legislatures. The 
 courts, meantime, often enter into the harvest thus 
 provided for them with a light heart, and promptly 
 and easily proceed to set aside acts of the legisla- 
 tures. The legislatures grow accustomed to this 
 distrust, and more and more readily incline to 
 justify it, and to shed all consideration of consti- 
 tutional restraints, — as concerning the exact extent 
 of these restraints, — turning that subject over to 
 
 64 
 
PROFESSOR THAYER'S ADDRESS 
 
 the courts ; and, what is worse, they fall into a habit I 
 of assuming that whatever they can constitutionally ' 
 do, they may do, — as if honor and fair dealing! 
 and common honesty were not relevant to their 
 inquiries. 
 
 The people all this while grow careless as to whom 
 they send to the legislature ; they cheerfully vote 
 for men whom they would not trust with an impor- 
 tant private affair, and if these unfit persons pass 
 foolish and bad laws, and the courts step in and 
 freely disregard them, the people are glad that these 
 few, wiser gentlemen on the bench, are there to pro- 
 tect them against their more immediate representa- 
 tives. 
 
 / From these causes there has developed a vast 
 and growing increase of judicial interference with 
 legislation. This is a very different state of things 
 from what our fathers contemplated, a century and 
 more ago, in framing the new system. Seldom, in- 
 deed, as they imagined, would this great, novel, 
 tremendous power of the courts be exerted, ■ — would 
 this sacred ark of the covenant be taken from within 
 the veil. Marshall himself expressed truly one 
 aspect of the matter, when he said in one of the 
 later years of his life, " No questions can be brought 
 before a judicial tribunal of greater delicacy than 
 those which involve the constitutionality of legisla- 
 tive acts. If they become indispensably necessary 
 5 6 5 
 
JOHN MARSHALL 
 
 to the case, the court must meet and decide them ; 
 but if the case may be determined on other grounds, 
 a just respect for the Legislature requires that the 
 obligation of its laws should not be unnecessarily 
 and wantonly assailed." 
 
 And again, a little earlier than this, he laid down 
 the one true rule of duty for the courts. When he 
 went to Philadelphia in 1 831, on that painful errand 
 of which I have spoken, in answering a cordial tri- 
 bute from the bar of that city, he remarked that if 
 he might be permitted to claim for himself and his 
 associates any part of the kind things they had said, 
 it would be this, that they had " never sought to 
 enlarge the judicial power beyond its proper bounds, 
 nor feared to carry it to the full extent that duty 
 required." 
 
 That is the safe twofold rule ; nor is the first part 
 of it any whit less important than the second ; nay 
 more, to-day it is the part which most requires to 
 be emphasized. For just here comes in a consid- 
 eration of very great weight. Great, and indeed 
 inestimable, as are the advantages in a popular gov- 
 ernment of this conservative influence, — the power 
 of the judiciary to disregard unconstitutional legisla- 
 tion, — it should be remembered that the exercise 
 of it, even when unavoidable, is always attended 
 with a serious evil, namely, that the correction of 
 legislative mistakes comes from the outside, and the 
 
 66 
 
PROFESSOR THAYER'S ADDRESS 
 
 people lose the political experience and the moral 
 education and stimulus that come from fighting the 
 question out in the ordinary way, and correcting 
 their own errors. If the decision in Munn v. Illi- 
 nois, and the Granger cases, twenty-five years ago, 
 and in the Legal Tender cases, nearly thirty years 
 ago, had been different; and the legislation there in 
 question, thought by many to be unconstitutional and 
 by many more to be ill-advised, had been set aside, 
 we should have been saved some trouble and some 
 harm. But I venture to think that the good which 
 came to the country and its people from the vigor- 
 ous thinking that had to be done in the political 
 debates that followed, the infiltration through every 
 part of the population of sound ideas and senti- 
 ments, the rousing into activity of opposing ele- 
 ments, the enlargement of ideas, the strengthening 
 of moral fibre, and the growth of political experience 
 which came out of it all, — far more than out- 
 weighed any evil which ever flowed from the refusal 
 of the court to interfere with the work of the 
 legislature. 
 
 The tendency of a common and easy resort to 
 this great function, now lamentably too common, is 
 to dwarf the political capacity of the people, and to 
 deaden its sense of moral responsibility. It is no 
 light thing to do that. 
 
 67 
 
JOHN MARSHALL 
 
 What should be done ? It is the courts that can 
 do most to cure the evil ; and their opportunity is a 
 very great one. Let them adhere to first principles, 
 and consider how narrow is the function which the 
 constitutions have conferred on them, — the office 
 merely of deciding litigated cases. How large, there- 
 fore, is the duty entrusted to others, and above all 
 to the Legislature. It is this body which is charged, 
 primarily with the duty of judging of the constitu- 
 tionality of its work. The constitutions, generally, 
 give them no authority to call upon a court for 
 advice ; they decide for themselves, and the courts, 
 owing to their limited function, may never be able 
 to say a word. Such a body, charged, in every State, 
 with almost all the legislative power of the people, 
 is entitled to the most entire and real respect; 
 is entitled, as among all rationally permissible opin- 
 ions as to what the Constitution allows, to its own 
 choice. Courts, as has often been said, are not id\ 
 think of the legislators but of the legislature, the 
 great, continuous body itself, abstracted from all> ( 
 the transitory individuals who may happen to holdj 
 its power. It is this majestic representative of the 
 people whose action is in question, — a co-ordinate 
 department of the Government, charged with the 
 greatest functions, and invested, in contemplation of 
 law, with all the wisdom, virtue, and knowledge 
 that the exercise of such functions requires. 
 
 68 
 
PROFESSOR THAYER'S ADDRESS 
 
 To set aside the acts of such a body, representing 
 in its own field the very highest of all, the ultimate 
 sovereign, should be a solemn, unusual, and painful 
 act. Something is wrong when it can ever be other 
 than that. And if it be true that the holders of 
 legislative power are careless or evil, the constitu- 
 tional duty of the court remains wholly untouched ; 
 it cannot rightly undertake to protect the people by 
 attempting a function not its own. On the other 
 hand by adhering to its own place a court may help, 
 as nothing else can, to fix the spot where responsi- 
 bility rests, viz., on the careless and reckless legis- 
 lators, and to bring down on that precise locality 
 the thunder-bolt of popular condemnation. The 
 judiciary, to-day, in dealing with the acts of co-ordi- 
 nate legislatures, owes to the country no greater 
 or clearer duty than that of keeping its hands off 
 these acts wherever it is possible to do it. That 
 course, — the true course of judicial duty always, — 
 will powerfully help to bring the people and their 
 representatives to a sense of their own responsibility. 
 
 There will still remain to the judiciary an ample 
 field for the determinations of this remarkable juris- 
 diction, of which our American law has so much 
 reason to be proud, — a jurisdiction which has had 
 some of its chief illustrations and its greatest 
 triumphs, as in Marshall's time, so in ours, while 
 the courts were refusing to exert it. 
 
 6 9 
 
JOHN MARSHALL 
 
 And now I must stop, I have tried, however 
 imperfectly, to give some picture of the singularly 
 attractive personality of the great man whom we 
 commemorate, some intimation of his remarkable 
 qualities and achievements as a judge, some com- 
 ment, and even some criticism here and there, some 
 reflections upon the present aspects of that great 
 subject in which he was most distinguished, and 
 some forecast of what is to be desired and hoped for 
 in that field. 
 
 Poor indeed must my efforts have been if they 
 do not leave on your minds a feeling of affectionate 
 reverence for Chief Justice Marshall, of admiration 
 for his surpassing powers and his patriotic devotion 
 of them to the service of his country, of gratitude 
 to the Almighty Father of nations and of men that 
 such a life, such a character, and such gifts were 
 vouchsafed to our country in its early days, and of 
 devout trust that as God has been to our fathers, so 
 he will be to us, and to our children, and our chil- 
 dren's children. 
 
 70 
 
'John Chipman Gray 
 
proceedings at tbe 2)inner given at 
 
 tbe IRew Blgonguin Club unoer tbe auspices 
 
 of tbe Boston Bar association 
 
 Introductory Remarks of John C. Gray, Presi- 
 dent of the Boston Bar Association, at the Pinner 
 given at the Algonquin Club. 
 
 Brethren, — 
 
 I HAVE two telegrams which I wish to read. The first 
 is from Mr. Beverly B. Mumford, the Chairman of 
 the Joint Committee of the State of Virginia and of the 
 Richmond City Bar Association : " Virginia sends her first 
 greetings to Massachusetts on this centennial anniversary. 
 All honor to Marshall, the great Chief Justice, and to 
 Massachusetts who called him to the bench." (Applause.) 
 
 I have another telegram from the coming city of the 
 country — Chicago ! " Illinois sends greeting to Massa- 
 chusetts. The American bench and bar are united in one 
 common brotherhood on this historic day." (Applause.) 
 
 Brethren, there has been so much eloquence to-day 
 about Chief Justice Marshall, and we hope that there will 
 be so much more, that I have but one word to say, and 
 that, I think, is a word appropriate to this occasion. Chief 
 Justice Marshall was a star of the first magnitude, but he 
 was one of a constellation. 'Great bars make great judges." 
 Chief Justice Marshall would never have reached his emi- 
 nence alone, nor if his early legal associates had been a 
 company of ignorant and pettifogging attorneys. He was 
 
 71 
 
a member of a bar which has had no superior in ability and 
 no equal in learning, and the bar of Virginia may take to 
 itself a considerable portion of the praise which is the just 
 i, : due of the great Chief Justice. 
 
 We are fortunate here to-night in having an eminent 
 member of the bar of Virginia with us. As with us, so 
 with them, the profession is apt to be hereditary. For four 
 generations the family of our distinguished guest has fur- 
 nished eminent lawyers to the bar of Virginia, and it gives 
 me a particularly personal pleasure to say that for four 
 generations they have furnished eminent professors of law. 
 Gentlemen, let me introduce to you the Hon. Henry 
 St. George Tucker, of Virginia. (Loud applause, the 
 members of the Association rising to their feet.) 
 
 72 
 
ADDRESS OF PROFESSOR TUCKER 
 
Henry St. George Tucker 
 
ADDRESS OF PROFESSOR TUCKER 
 
 THE interest which this occasion inspires is 
 enhanced no little by the reflection that on 
 this day, throughout the length and breadth of the 
 land, courts of justice are closed to litigants, com- 
 merce and trade partially suspended, and the asso- 
 ciation of lawyers in forty-five States of the Union, 
 as well as schools devoted to instruction in the 
 science of the law, have temporarily laid aside 
 their daily routine, to unite in doing honor to the 
 memory of the great Chief Justice. The partiality 
 of your committee, to which I owe the privilege, as 
 a son of Virginia, of uniting with this goodly fellow- 
 ship of kindred spirits of the ancient Commonwealth 
 of Massachusetts in the celebration of this day, will 
 always be cherished by me as among the most 
 pleasing compliments of my life. The renewal of 
 the ties of friendship between the two States of 
 Virginia and Massachusetts can be no less happy in 
 its results than the study and exaltation of the life 
 and character of the great man whose memory we 
 meet to honor. 
 
 75 
 
JOHN MARSHALL 
 
 Diversity of race, of institutions, of modes of life, 
 of habits of thought, and of political ambitions have 
 in the years gone by often brought them into serious 
 and dangerous antagonism ; but the mutual respect 
 of each for the other in the sturdy maintenance of 
 its peculiar views has been steadfastly maintained 
 and rarely questioned, even by the most extreme, in 
 the time of hottest conflict. Nor should it be for- 
 gotten that, when by the act of 6th George III. the 
 power to legislate in all cases for the colonies by 
 Parliament was asserted, followed by the passage of 
 the Boston Port Bill, these bills were communicated 
 to the Assembly of Virginia, their indignant protest 
 was entered at once against them, and that, though 
 dissolved by Lord Dunmore, and prevented from 
 further action by him in their official capacity, the 
 members of that body at once assembled as individ- 
 uals in the long room at the Raleigh Tavern in 
 the city of Williamsburg, unawed by official des- 
 potism, and adopted those resolutions never to be 
 forgotten by the sons of these two great Common- 
 wealths, — " We are, farther clearly, of the opinion 
 that an attack made on one of our sister-colonies to 
 compel submission to arbitrary taxes is an attack 
 made on all British America, and threatens ruin to 
 the rights of all, unless the united wisdom of the 
 whole be applied." May we not pause to express 
 the hope that the spirit of these resolutions may be 
 
 76 
 
PROFESSOR TUCKER'S ADDRESS 
 
 the future spirit of the States of this great Union, 
 that the threatened blow of arbitrary power at any 
 one of them from foreign or domestic foe may unite 
 the hearts of all to defend the one, as part of the 
 whole ? 
 
 Judge Marshall's judicial reputation can safely be 
 left in the masterful opinions which filled our 
 reports for more than a third of a century, and will 
 remain unimpaired after the musty volumes which 
 contain them have fallen to dust. In logical power 
 and power of analysis they have certainly never 
 been excelled, and it may well be doubted if they 
 have ever been equalled on any bench. 
 
 It is my purpose to ask you to turn for a moment 
 with me this evening from a consideration of John 
 Marshall the judge, to that of John Marshall 
 the citizen ; and I do this the more readily because 
 of the ample vindication which his judicial career 
 has received this day at the hands of our distin- 
 guished brother Thayer, of Harvard University. 
 
 At an early period of Virginia's history, at Turkey 
 Island, a plantation some fifteen or twenty miles 
 from the city of Richmond, near the scene of the 
 terrific battle of Malvern Hill, lived the Virginia 
 planter, William Randolph. He was the ancestor of 
 all of that name in Virginia, and from him descended, 
 in direct line, Thomas Jefferson, John Marshall, 
 and Robert E. Lee, — a triumvirate of civic, judicial, 
 
 77 
 
JOHN MARSHALL 
 
 and military power. Sprung from a distinguished 
 lineage, trained in a school where the amenities of 
 life as well as " the humanities " were taught in 
 their highest excellence, John Marshall practised 
 from his earliest childhood a scrupulous regard for 
 the rights and feelings of others and an indulgence 
 to all faults except his own. 
 
 With a self-control and equipoise which were 
 rarely disturbed under the most trying circumstances, 
 and a graciousness of manner which broke down all 
 barriers, giving to the humblest as well as to the 
 highest the assurance of his friendly consideration, 
 and a mind well-disciplined by education in the 
 highest schools and under the tutelage of his father, 
 a man of superior education and intelligence, it was 
 impossible that he could have been other than a 
 man of mark and influence in his State. 
 
 Would it be claiming too much to say that John 
 Marshall, the citizen, was the natural product of 
 the civilization existing in Virginia during his boy- 
 hood and manhood, — a civilization which, alas, ex- 
 cept here and there in certain localities, is fast pass- 
 ing away. The home, not the club, was its centre ; 
 the family, its unit. The father was the head of the 
 family, not the joint-tenant with the wife of a house, 
 nor the tenant-at-will of his wife. The wife and 
 the mother was the queen of the household, not 
 merely a housekeeper for a husband and family. 
 
 78. 
 
PROFESSOR TUCKER'S ADDRESS 
 
 Obedience to those in authority was the first lesson 
 exacted of the boy. Inculcated with tenderness, it 
 was enforced with severity if need be, until the word 
 of the father or the expressed wish of the mother 
 carried with it the force of law as completely as the 
 decree of a court or the mandate of a king. 
 
 Reverence for superiors in age and deference to 
 all, rather than an arrogant self-assertion, was mag- 
 nified as a cardinal virtue ; not as teaching humility 
 and enforcing a lack of proper self-respect, but 
 rather to exalt high ideals and stimulate an admira- 
 tion for " the true, the beautiful, and the good." 
 
 Fidelity to truth ; the maintenance of personal 
 honor; deference for the opinions and feelings of 
 others, without abating one's own or aggressively 
 thrusting them on others ; a kindliness of manner 
 to dependants ; a knightly courtesy to all, but with 
 special and tender regard in thought, word, and 
 action toward woman, — were in turn patiently taught 
 in all the lessons of the fireside and at the family 
 altar, and earnestly insisted upon in the formation 
 of the character of a true gentleman. " Any man 
 will be polite to a beautiful young woman, but it 
 takes a gentleman to show the same respect to a 
 homely old woman," was the stinging rebuke of a 
 father to his son who failed to remove his hat in 
 passing a forlorn old woman on a public highway 
 in Virginia. 
 
 79 
 
JOHN MARSHALL 
 
 The old field school, the private tutor, the high 
 school, the college, led the young mind by easy 
 stages to its full intellectual maturity. 
 
 Nowhere was the principle " sana mens in sano 
 corpore " more scrupulously taught than in Virginia. 
 The rod and stream, the gun, the " hounds and 
 horns," the chase with the music of the pack, the 
 bounding steed, all lent their ready aid in develop- 
 ing the physical manhood of the boy. In the pure 
 atmosphere of his country home, amid its broad 
 fields and virgin forests, contracted houses in 
 narrow streets had no charms for him. To join 
 the chase was the first promotion to which the boy 
 looked as evidencing his permanent release from 
 the nursery, and gun and dog became his constant 
 companions. Skill in horsemanship was essential, 
 and breaking colts was naturally followed by broken 
 limbs ; but manhood found a race of trained horse- 
 men, both graceful and skillful in the saddle, un- 
 excelled, I dare venture to assert, by any civilized 
 people. A child of nature, the Virginia boy com- 
 muned with her as his mother, and from her purest 
 depths drew the richest inspirations. To him no 
 mountains were so blue as hers, no streams so 
 clear, no forests so enchanting, no homes so sweet. 
 
 Religion, the duty of man to his Creator — not 
 sectarianism — was scrupulously taught, and Sunday 
 morning found the family alive in preparations for 
 
 80 
 
PROFESSOR TUCKER'S ADDRESS 
 
 attending religious service at Zion or Trinity, as it 
 might happen to be the first or the fourth Sunday 
 of the month. From this duty none were exempt, 
 from the least to the greatest. The pastor was the 
 friend on whom all troubles, temporal and spiritual, 
 were cast, and his visits were long remembered and 
 talked of in the life of each family. Deference to 
 his wishes and reverence for his character were well- 
 nigh universal. 
 
 A man he was to all the country dear, 
 
 And passing rich with forty pounds a year ; 
 
 Remote from towns he ran his godly race, 
 
 Nor e'er had changed, nor wished to change, his place. 
 
 Such was the atmosphere in which John Marshall 
 was reared and by which he was surrounded when 
 at nineteen years of age he enlisted for the War of 
 Independence under the magic influence of Henry's 
 fiery eloquence. 
 
 We cannot trace his record as a soldier through- 
 out that great struggle. Suffice it to say that, 
 entering the army as a lieutenant, he left it as a 
 captain, and during the whole course of the war 
 displayed the highest qualities of a soldier; and 
 surely it is not without interest to remember that 
 the hand which penned the weighty judgment of 
 the court in McCulloch v. the State of Maryland 
 cut the firewood with the axe for the campfire of 
 6 81 
 
JOHN MARSHALL 
 
 the soldier, and that the feet which bore him 
 to the judgment hall to deliver the marvellous 
 opinion in Gibbons v. Ogden had reddened the 
 snow at Valley Forge with the patriotic blood of 
 the soldier. 
 
 At the age of twenty-six he became a member of 
 the legislature of Virginia, and lent the aid of his 
 mighty mind to settling the intricate problems 
 which arose out of that disturbed period. Let his 
 own words tell of his sentiments at this date: 
 " 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 pres- 
 ervation, 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 fellow-citizens of Boston were iden- 
 tical ; when the maxim, ' United we stand, divided we 
 fall,' was the maxim of every orthodox American. 
 And I had imbibed 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 everything valuable in a com- 
 mon cause, believed by all to be most precious, and 
 
 82 
 
PROFESSOR TUCKER'S ADDRESS 
 
 where I was in the habit of considering America as 
 my country and Congress as my government." 
 
 Among the questions which called forth his 
 deepest interest at this time was the necessity for 
 making immediate provision for the payment of the 
 officers and soldiers of the disbanded army ; and so 
 loyal was he to their interests, that ever after they be- 
 came his fast and devoted friends. He represented 
 his native county of Fauquier, and subsequently 
 his adopted county of Henrico in the legislature. 
 
 As a lawyer he was ever faithful to the interests 
 of his clients, and from the very beginning of his 
 career was recognized as a man of great ability in 
 his chosen profession. His argument in the case 
 of Ware v. Hilton in the Federal Court in Rich- 
 mond produced a profound impression, and was 
 only excelled, perhaps, in the effectiveness of the 
 argument by his great speech in the Jonathan 
 Robbins case in the House of Representatives. 
 
 I purpose, however, to confine my remarks to 
 two occasions in Judge Marshall's life which 
 afforded him special opportunities for exhibiting his 
 vast powers for the benefit of his people ; and to 
 attempt, in a brief form, a sketch of the Virginia 
 Convention of 1788, called to ratify the Federal 
 Constitution, and of the Virginia Convention of 
 1829—30 called to change the Constitution of the 
 State, in both of which he took a prominent part, — 
 
 83 
 
JOHN MARSHALL 
 
 two bodies which, were I not standing on the soil of 
 Massachusetts, I should be tempted to affirm had 
 never been surpassed on this continent in the 
 ability and broad patriotism of their members. 
 
 Monday, June 2, 1788, found the little city of 
 Richmond on the James all astir. The streets for 
 that day were crowded with eager men hastening 
 toward the capitol ; handsome equipages laden 
 with Virginia's fairest daughters lined the main 
 thoroughfares leading to the city. A stranger 
 standing on one of the hills of the city looking in 
 any direction, would have noticed clouds of dust 
 rising in the distance from the county roads. The 
 roads, not railroads, leading into Richmond were 
 lined with travellers approaching the city, some 
 in gigs, some in phaetons, and many on horseback 1 
 with saddlebags as their Saratogas. Nor were 
 they only those who expected to participate in the 
 proceedings of the Convention. Distinguished 
 strangers from other States ; planters from every 
 portion of the Commonwealth, — statesmen though 
 planters; while the ambitious youth from its re- 
 motest corners was eagerly hastening to the scene to 
 witness the most gigantic struggle in the history of 
 the Old Dominion. Comely maidens and stately 
 matrons, whose grace had lent its charms to many 
 official functions in the ancient capitol, formed a 
 bouquet of rarest fragrance, and diffused its brilliancy 
 
 84 
 
PROFESSOR TUCKER'S ADDRESS 
 
 over the gathered assembly. Many members 
 arrived late Sunday evening, and they continued to 
 come until the hour of assembling on the next day 
 at twelve. The steam-engine brought none to the 
 city ; the trolley lines that now pierce the centres of 
 commerce and population were unpopular in those 
 days. While the delegates from beyond the Blue 
 Ridge on horseback would scarcely dare to scale the 
 mountains in the ample and comfortable carriage used 
 for neighborhood purposes. Nor was the bicycle 
 or the automobile used as a mode of conveyance by 
 members, and the picture of Chancellor Wythe or 
 of the venerable Pendleton arriving at the capitol 
 in an automobile is one that the wildest imagina- 
 tion is unable to draw. Patrick Henry in his gig, 
 Pendleton in his phaeton and others on horseback 
 travelled the dusty roads and across broad streams 
 after many days of wearisome journey, to take part 
 in the deliberations of this great body. 
 
 In their elevated character and the loftiness of 
 their patriotism, it is no disparagement to claim that 
 the Convention about to assemble was not inferior 
 to that which adopted the instrument now pre- 
 sented for their consideration. 
 
 Pendleton, the President of the Court of Ap- 
 peals, and Wythe, the venerable Chancellor and 
 teacher of the law, who, with patient skill, had laid 
 deep the foundations of learning in the minds of 
 
 85 
 
JOHN MARSHALL 
 
 Marshall, Randolph, and others, were fit representa- 
 tives of the ancient glory of the Commonwealth. 
 George Mason of Gunsten Hall, Edmund Ran- 
 dolph, Richard Bland, Patrick Henry, James Madi- 
 son and Grayson, Henry Lee of the legion, 
 Benjamin Harrison the elder, the accomplished 
 Innes, Monroe, and Marshall constitute some of the 
 names which appear on the records of that body. 
 
 George Washington, Patrick Henry, Edmund 
 Randolph, John Blair, James Madison, George 
 Mason, and George Wythe were the accredited rep- 
 resentatives of the State of Virginia to the Federal 
 Convention. Patrick Henry declined to serve — 
 McClurg became his successor. With the exception 
 of the names of Washington, Blair, and Madison, 
 the Constitution contained the signatures of no 
 other delegates from Virginia. Mason and Henry 
 were its active and implacable foes, and by pen and 
 voice from the time of its adoption to the assem- 
 bling of the Virginia Convention, they made known 
 their objections to the people of the State with a 
 power unexcelled in that day, The selection of the 
 venerable Pendleton as President of the Conven- 
 tion was in no way a test of the strength of the 
 parties, and until the final roll was called, it was in 
 doubt what would be the fate of the Constitution 
 in Virginia. Judge Marshall, in writing of the 
 results, said, " that so small in many instances was 
 
 86 
 
PROFESSOR TUCKER'S ADDRESS 
 
 the majority in its favor as to afford strong ground 
 for the opinion that had the influence of character 
 been removed the intrinsic merits of the instrument 
 would not have secured its adoption." As an illus- 
 tration of the influence of character, it may be said 
 that no four men exerted more influence in favor of 
 the Constitution than George Washington, Edmund 
 Pendleton, George Wythe, and James Madison, 
 and four purer names were probably never recorded 
 in profane history. 
 
 Marshall, the future expounder of this instru- 
 ment, was not a member of the Convention which 
 framed it, and was thirty-three years of age when he 
 took his seat as a member of the Virginia Conven- 
 tion called to ratify it. The impassioned eloquence 
 of Patrick Henry, and the keen and incisive logic 
 of Mason, day by day hurled with what seemed to 
 be irresistible effect against the instrument, bore 
 heavily upon its friends and caused them to feel 
 the keenest doubt of the ultimate result. Madison 
 and Wythe had met with signal ability the shafts of 
 the opposition. The public press, the great com- 
 manding influence of Washington, and the solid 
 phalanx of the soldiery were brought to bear by 
 every ingenuity which skill and tact could devise 
 in favor of its adoption. 
 
 Monroe, a young man of thirty, had just ad- 
 dressed the Convention in opposition to the 
 
 87 
 
JOHN MARSHALL 
 
 Constitution, which in subsequent years he was 
 called upon to defend and execute. "He was suc- 
 ceeded on the floor by a tall, young man slovenly 
 dressed, with piercing black eyes that would leave 
 the observer to believe that their possessor was 
 more destined to toy with the Muses than to 
 worship at the sterner shrine of Themis. He was 
 destined, like Monroe, to fill the mission of France, 
 and to preside in the Department of War and in 
 the Department of State under the Federal Con- 
 stitution. Marshall was in his thirty-third year, 
 and from the close of the war to the meeting of 
 the Convention, with the exception of an occasional 
 session of the House of Delegates, was engaged 
 in the practice of law. His manners, like those of 
 Monroe, were in strong contrast with those of 
 Madison and Grayson. His habits were convivial 
 almost to excess ; and he regarded as matters be- 
 neath his notice those appliances of dress and 
 demeanor which are commonly considered im- 
 portant to advancement in a public profession. 
 Nor should those personal qualities which cement 
 friendship and gain the affections of men and which 
 he possessed in an eminent degree, be passed 
 over in a likeness of this young man, — qualities 
 as prominently marked in the decline of his honored 
 life when his robe had for a third of a century been 
 fringed with ermine, as when, in the heyday of his 
 
 88 
 
PROFESSOR TUCKER'S ADDRESS 
 
 youth, dressed in the light roundabout, he won his 
 way to every heart." 
 
 His speech on this occasion received marked 
 attention, and bears the characteristic marks of the 
 speeches of his riper years. His exordium attracts 
 the attention at once by presenting the prominent 
 ideas in his mind without preliminaries. " I per- 
 ceive," said he " that the object of the discussion 
 now before us is whether democracy or despotism 
 be most eligible. I am sure that those who framed 
 the instrument now submitted to our investigation, 
 and those who now support it, intend the establish- 
 ment and security of the former. The supporters 
 of the Constitution claim the title of being firm 
 friends of liberty and the rights of mankind. They 
 say that they consider it as the best means of pro- 
 tecting liberty. We, sir, idolize democracy. Per- 
 mit me to attend to what the honorable gentleman 
 [Henry] has said. He has expatiated on the neces- 
 sity of due attention to certain maxims and certain 
 principles from which a free people ought never to 
 depart. I concur with him in the propriety of 
 the observance of such maxims. They are necessary 
 in any government, but more essential to a democ- 
 racy than to any other. What are the favorite 
 maxims of democracy ? A strict observance of 
 justice and public faith and a steady adherence to 
 virtue. These, sir, are the principles of a good 
 
 89 
 
JOHN MARSHALL 
 
 government. No mischief, no misfortune, ought to 
 deter us from a strict observance of justice and 
 public faith. Would to heaven that these prin- 
 ciples had been observed under the present govern- 
 ment. Had this been the case the friends of liberty 
 would not be so willing now to part with it." 
 
 The speech from which this extract has been 
 taken, in fairness it must be said, exhibited chiefly 
 the skill of the lawyer, rather than the breadth of 
 the statesman. He did not, by a masterful array of 
 the advantages of the Federal Constitution and its 
 beneficent effects upon the people of the country, 
 seek to induce its acceptance by the Convention on 
 its merits, but rather accepting the action of the 
 Federal Convention as a prima facte conclusion of 
 the beneficence of the instrument, he sought by 
 skillfulness and tact to avert the ponderous blows 
 of Henry and Mason, hurled at it from time to 
 time from their well-equipped armories. 
 
 At a subsequent day, in defending the militia 
 clause of the Constitution, Judge Marshall said: 
 " Are gentlemen serious when they assert that if the 
 State governments had power to interfere with the 
 militia, it is by implication ? If they were, he asked 
 the committee whether the least attention would 
 not show that they were mistaken. The State gov- 
 ernments don't derive their powers from the general 
 
 9° 
 
PROFESSOR TUCKER'S ADDRESS 
 
 Government, but each government derives its powers 
 from the people, and each was to act according to 
 the powers given it. Would any gentleman deny 
 this ? He demanded if powers not given were 
 retained by implication. Could any one say so ? 
 Could any man say that this power was not retained 
 by the States, as they had not given it away ? For 
 does not a power remain until it is given away ? " 
 And in closing he said, " that the power of govern- 
 ing the militia was not vested in States by implica- 
 tion, because being possessed of it antecedent to 
 the adoption of the government, and not being 
 divested of it by any grant or restriction in the 
 constitution, they must necessarily be as fully 
 possessed of it as ever they had been ; and it could 
 not be said that the States derived any powers from 
 that system, but retained them, though not acknowl- 
 edged in any part of it." 
 
 By far the most interesting speech made by 
 Judge Marshall in the Convention was one in 
 which he elaborated his views on the judicial system 
 provided for in the Constitution. As we read this 
 speech, made thirteen years before he assumed the 
 position of Chief Justice, we see many traces of 
 views which became his judicial judgments. I can- 
 not stop to quote largely from it, but it is an able 
 defence of the rights of the Federal Government 
 to establish and maintain its own judicial system. 
 
 9 1 
 
JOHN MARSHALL 
 
 Mason had made the objection that the Federal 
 Courts would be used to oppress the people ; that 
 their judgments would not be impartial ; and that 
 Federal offenders would escape the penalties of the 
 law because of the partialities of the courts for them. 
 " Let us examine each of them [grants of federal 
 jurisdiction] with a supposition that the same 
 impartiality will be observed there, as in other 
 courts, and then see if any mischief will result from 
 them. With respect to its cognizance in all cases 
 arising under the Constitution and the laws of the 
 United States, he [Mason] says, that the laws of 
 the United States being paramount to the laws of 
 the particular States, there is no case but what this 
 will extend to. Has the government of the United 
 States power to make laws on all subjects ? Does 
 he understand it so ? Can they make laws affect- 
 ing the modes of transferring property, or contracts, 
 or claims between citizens of the same State ? Can 
 they go beyond the delegated powers ? 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!" 
 
 Further on, I quote, " With respect to disputes 
 between a State and the citizens of another State — 
 
 9 2 
 
PROFESSOR TUCKER'S ADDRESS 
 
 its jurisdiction has been descried with unusual 
 vehemence. I hope no gentleman will think a 
 State will be called at the bar of a Federal Court. 
 Is there no such case at present? Are there not 
 many cases in which the legislature of Virginia is a 
 party, and yet the State is not sued ? It is not 
 rational to suppose that the sovereign power shall 
 be dragged before a court. The intent is to enable 
 States to recover claims of individuals residing in 
 other States. I contend this construction is war- 
 ranted by the words." It may be doubted whether 
 the Supreme Court at the time of the decision of 
 Chisholm v. Georgia had these views of the great 
 Chief Justice before them, though Mr. Hamilton's 
 views in the eighty-first number of the Federalist 
 were in accord with them. 
 
 While it cannot be said in justice that Judge 
 Marshall was the leader of the Constitutional forces 
 in this Convention, it can with truth be affirmed 
 that on the subjects which he discussed, he dis- 
 played the same abilities for which he was after- 
 ward so justly distinguished, and won the respect 
 and admiration of all of his colleagues. When by 
 the narrow margin of ten votes in a total of 180, 
 the Constitution was ratified and a committee was 
 appointed by the President to report a form of rati- 
 fication, we find his name on that committee with 
 Governor Randolph, Mr. Nicholas, Mr. Madison, 
 
 93 
 
JOHN MARSHALL 
 
 and Mr. Corbin as his associates ; and when, in 
 order to meet the views of the large minority of the 
 Convention and quiet their fears, a committee was 
 appointed to prepare and report such amendments 
 as should be deemed necessary, we find Judge 
 Marshall's name on that committee, associated with 
 George Wythe, Benjamin Harrison, Patrick Henry, 
 Edmund Randolph, George Mason, James Madi- 
 son, John Tyler, James Monroe, Richard Bland, 
 John Blair, and others. And so on the 27th of 
 June, 1788, the Constitution was ratified by the 
 Convention. 
 
 As we look back upon the great record which he 
 was permitted to make for a third of a century in 
 expounding the instrument which he exhorted the 
 people of Virginia to adopt, it may well be doubted 
 whether that instrument would ever have been 
 ratified by the people of Virginia in so close a con- ' 
 test had John Marshall been its foe instead of its 
 friend ; and as we view the history and development 
 of our country in its mutation of parties, and the 
 advancement of this remarkable people in every 
 department of human endeavor, it may well be 
 doubted if he ever did a greater service to the 
 country than in throwing the weight of his great 
 influence in favor of the adoption of the Constitution. 
 
 The scene shifts. Forty-one years have passed. 
 The young man in the glow of youthful strength 
 
 94 
 
PROFESSOR TUCKER'S ADDRESS 
 
 with all of the enthusiasm and zeal of youth is 
 transformed. Age has mellowed his zeal but has 
 not impaired his intellect. His judgments, which 
 for twenty-eight years have been the admiration of 
 the legal world, have added dignity, power, and 
 reverence to the man. At home and abroad the 
 endorsement by Marshall of any legal proposition 
 is eagerly sought and triumphantly adopted. Wis- 
 dom and experience are added to his matchless 
 powers ; and though his physical form lacks the 
 athletic power which it possessed on the 2d of 
 June, 1788, those lustrous eyes have lost none of 
 their power, — the windows of a fully developed 
 soul. Perhaps the world fails to record a more 
 striking instance of unselfish patriotism than that of 
 Judge Marshall leaving the bench of the Supreme 
 Court with its important and pressing work, its 
 questions of far-reaching import, involving the 
 interests of the whole country, and offering him- 
 self as a candidate for a State Convention in a 
 district which seemed hopelessly opposed to him. 
 His election was the triumph of the man, the citi- 
 zen. Richmond was to be the scene of another 
 Convention, called to change the Constitution 
 of the State of Virginia ; and Judge Marshall 
 regarded the making of a State Constitution the 
 highest duty that a citizen could be called upon to 
 discharge. Pause with me for a moment as that 
 
 95 
 
JOHN MARSHALL 
 
 venerable body of men passes in review before us : 
 James Madison, now "fallen into the sear and 
 yellow leaf," rich in stores of wisdom and experience, 
 a member of the Convention which framed the 
 Federal Constitution, — its reputed father; Mar- 
 shall's colleague in the Virginia Convention of 1788 ; 
 Cabinet officer ; twice President ; and now leaving 
 the quiet repose of Montpelier to aid in the work 
 of constructing a suitable Constitution for his peo- 
 ple. James Monroe, twice President, was there, — 
 another of Marshall's colleagues in the Convention 
 of 1788. John Tyler, the son of the senior Tyler, 
 a member of the Convention of 1788, the future 
 President of the United States, was there. John 
 Randolph of Roanoke, quaint, peculiar, satirical, 
 eloquent, in public life for a third of a century, was 
 there. Benjamin Watkins Leigh, Robert Stanard, 
 and Chapman Johnson the great legal triumvirate, 
 who swayed the Appellate Court of Virginia by 
 their power and eloquence for a quarter of a century, 
 were there. Nicholas, Drumgoole, William B. 
 Giles, John Y. Mason, Philip P. Barbour, Charles 
 Mercer, Alfred H. Powell, Philip Doddridge, John 
 S. Barbour, Littleton W. Tazewell, Lucas P. 
 Thompson, Abel P. Upshur, and many others 
 were names of which any Commonwealth might be 
 justly proud, and than whom none worthier deserved 
 the wreath of immortality. When Madison, upon 
 
 96 
 
PROFESSOR TUCKER'S ADDRESS 
 
 the assembling of the Convention, arose and nomi- 
 nated James Monroe for President, there was a hush 
 throughout the whole assembly. He was elected 
 without opposition and conducted to the chair by 
 Madison and Marshall. 
 
 Two great questions were presented for the con- 
 sideration of this body, in the discussion of which 
 Judge Marshall took a prominent part. 
 
 The first was the question of the basis of repre- 
 sentation in the legislature, — one party advocating 
 what was known as the white basis, and the other 
 insisting that the slaves should be represented as 
 laid down in Article I. Section 3 of the Constitution 
 of the United States. 
 
 The Blue Ridge Mountains constituted the 
 dividing line between the two sections of the State. 
 The country east of the Blue Ridge contained a 
 large slave population, that west contained but few 
 slaves. 
 
 The views of the delegates naturally, in a large 
 degree, were controlled by their location. Philip 
 Doddridge was the leader of the west on this great 
 question, Marshall was among the leaders of the 
 east, and voted for the resolution of Mr. Leigh, 
 providing that " representation in the House of 
 Delegates be apportioned among the several coun- 
 ties, cities, and towns of the Commonwealth accord- 
 ing to their respective numbers, which shall be 
 7 97 
 
JOHN MARSHALL 
 
 determined by adding to the whole number of free 
 persons, including those bound to service for a term 
 of years and excluding Indians not taxedj three- 
 fifths of all other persons" (page 322, Debates 
 for Virginia Convention). 
 
 In discussing this question, Judge Marshall sum- 
 marizes it as follows : " Several different plans are 
 contemplated. The basis of white population alone ; 
 the basis of free population alone ; a basis of popu- 
 lation alone ; a basis compounded of taxation and 
 white population — or, which is the same thing, a 
 basis of federal numbers. Two other bases were 
 also proposed. One referring to the total popula- 
 tion of the State, the other to taxation alone. 
 
 " Now of these various propositions, the basis of 
 white population and the basis of taxation alone 
 are the two extremes. Between the free population 
 and the white population there is almost no differ- 
 ence. Between the basis of total population and 
 the basis of taxation there is but little difference. 
 The people of the East thought they offered a fair 
 compromise when they proposed the compound 
 basis of population and taxation, or the basis of 
 federal numbers. We thought that we had Re- 
 publican precedent for this — a precedent given us 
 by the wisest and truest patriots that ever were 
 assembled ; but that is now passed, — we are now 
 willing to meet on a new middle ground, beyond 
 
 98 
 
PROFESSOR TUCKER'S ADDRESS 
 
 what we thought was a middle ground, and the 
 extreme on the other side." 
 
 The Convention, after a long and heated debate, 
 practically adopted Judge Marshall's basis of rep- 
 resentation. 
 
 The other question, which was only second in 
 importance to the first, was the attempt to do away 
 with the old county court system composed of 
 magistrates appointed by the Governor with the 
 power of self-perpetuation in the court. They 
 were generally men of the highest intelligence, 
 probity, and character ; not learned in the law per- 
 haps, in the modern sense, but saturated with the 
 principles of natural justice and equity. It was 
 regarded by many as the most conservative in- 
 fluence in the organization of the State government; 
 and the attempt to overturn it was met by the best 
 ability of the Convention. 
 
 Judge Marshall and John Randolph of Roa- 
 noke led the fight to sustain it, — and they were 
 successful. 
 
 At a later day, speaking of the tenure of office 
 of the judges, and the necessity for their independ- 
 ence, Judge Marshall used this language ( page 
 616 of the Debates ) : "Avert, 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 com- 
 
 99 
 
JOHN MARSHALL 
 
 munity and the poorest and most unpopular. It 
 is of the last importance that in the exercise of 
 these duties he should observe the utmost fairness. 
 Need I press the necessity of this ? Does not every 
 man feel that his own personal security and the 
 security of his property depends on that fairness ? 
 The judicial department comes home in its effects 
 to every man's fireside — it passes on his property, 
 his reputation, his life, his all. Is it not to the 
 last degree important that he should be rendered 
 perfectly and completely independent with noth- 
 ing to influence or control him but God and his 
 conscience ? " 
 
 Later on, in advocacy of the principle of the 
 tenure of judicial position to be for good behavior 
 ( page 619 of the Debates), he used this memorable 
 language : " Will the gentleman recollect that, in 
 order to secure the administration of justice, judges 
 of capacity and of legal knowledge are indispensable. 
 And how is he to get them ? How are such men 
 to be drawn off from a lucrative practice ? Will 
 any gentleman of the profession, whose practice will 
 secure him a comfortable independence, leave that 
 practice and come to take an office which may be 
 taken from him the next day? You may invite 
 them, but they will not come. You may elect them, 
 but they will not accept the appointment. You 
 don't give salaries that will draw respectable men, 
 
 100 
 
PROFESSOR TUCKER'S ADDRESS 
 
 unless by the certainty of permanence connected 
 with them ; but if they may be removed at pleas- 
 ure, will any lawyer of distinction come upon your 
 bench? No, sir. / have always thought, from my 
 earliest youth till now, that the greatest scourge an 
 angry heaven ever inflicted upon an ungrateful and 
 sinning people was an ignorant, a corrupt, or a depen- 
 dent judiciary. Will you draw down this curse upon 
 Virginia? Our ancestors thought so, and we 
 thought so till very lately, and I trust the vote of 
 this day will show that we think so still." 
 
 The Constitution adopted contains a provision for 
 judicial tenure during good behavior. 
 
 It would be exceeding the bounds of truth to 
 affirm that Judge Marshall was an orator in the 
 sense in which that word is ordinarily used ; but 
 if the power to control and convince men by the 
 presentation of one's views may be regarded as 
 oratory, he may justly be placed in that category. 
 A reputable writer has well described his powers as 
 an orator in this Convention : " There are hundreds 
 yet living who can recall with delight the modest 
 and the deep, thoughtful lines of his benignant face, 
 — those piercing black eyes which never let the image 
 of a friend any more than the semblance of an 
 argument escape his vision, and his lofty figure 
 clothed in the plainest dress of an ordinary citizen, 
 and mingling constantly and kindly with his fellow- 
 
 IOI 
 
JOHN MARSHALL 
 
 men in the street, in the market, on the quoit- 
 ground, or reverently bent in the humblest posture 
 at the Throne of Grace. But, intimate as was his 
 knowledge of the human heart, gathered from a 
 long experience in the camp and at the bar, — those 
 fruitful schools of human nature, — it was not by 
 appeals to the interests and to the passions of men 
 that he sought to lay the stress of his public efforts. 
 Indeed, so utterly did he disregard all such appeals, 
 that he launched in the opposite extreme, and, as if 
 conscious of the true sources of his power, he 
 avoided everything that might influence the mind 
 through the eye. Indeed, like his friend Monroe, 
 he had no manner at all as a public speaker, if by 
 manner we mean something deliberate and studied 
 in action ; and he might be as readily expected to 
 speak in a court-room with his hands on a chair, or 
 with one of his legs over its back, or within two 
 feet of a presiding officer in a public body, as in any 
 other way. 
 
 . . . "In the common parts of his discourse he 
 spoke with a serious earnestness and with an occa- 
 sional swing of his right arm, but when he became 
 animated, as we once beheld him, by the delivery 
 of his theme, which was the true import of certain 
 words of the Federal Constitution relating to the 
 judiciary, and by the presence of several of the 
 most astute men of that age who were opposed to 
 
 I02 
 
PROFESSOR TUCKER'S ADDRESS 
 
 him in debate, and who were watching him to his 
 destruction, he rose to the highest pitch of pathetic 
 declamation, thoroughly blended with argument, — 
 the most powerful of all declamation ; and he might 
 have been seen leaning forward with both arms 
 outstretched towards the chair, as if in the act of 
 calling down vengeance on his opponents, or of 
 deprecating some enormous evil which was about to 
 befall his country ; while the tones of his voice, 
 exalted above his usual habit, were in plaintive 
 unison with his action. . . . The triumph of 
 Marshall's eloquence was heightened by the almost 
 unequalled talents which were arrayed against him 
 — by the subtle and terrible strength of Tazewell ; 
 by the severe and sustained logic of Barbour ; by 
 the versatile and brilliant but vigorous sallies of 
 Randolph, whose fame as the chairman of the 
 judiciary committee of 1802, which reported the 
 bill of repeal of the law passed by the Federalists, 
 altering the judiciary system to the House of Rep- 
 resentatives, was at stake ; and by the extraordinary 
 skill and blasting sarcasm of Giles, heightened and 
 stimulated by the recollections of ancient feuds 
 which still burned brightly in the breast of his 
 antagonist and in his own (and from a sense of 
 personal reputation which was involved in the 
 passage of the act of repeal in the House of Repre- 
 sentatives, which he mainly carried through that 
 
 103 
 
JOHN MARSHALL 
 
 body). Of all the scenes which occurred in the Con- 
 vention of 1 829-30, varied, animated, and intellectual 
 as they were, whether we respect the exciting nature 
 of the topic in debate, the zeal, the abilities, the pub- 
 lic service, the venerable age, and the historical 
 reputation of those who engaged in the discussion, — 
 all enhanced in interest by the unequal division of 
 the combatants in the field, — this was, perhaps, the 
 most striking which occurred in that body." 
 
 The whole world lays its tribute of admiration at 
 the feet of John Marshall for his great judgments. 
 Virginia in this act joins most reverently. But with- 
 out disparagement of his great services to the 
 country and to the world in his lofty position as 
 Chief Justice, she lays her sincerest tribute of affec- 
 tion upon his grave this day as her peerless citizen. 
 His life, Mr. Chairman, was a truly noble one. It 
 was on the highest plane. His character had no 
 spot or blemish upon it that sweet charity would 
 now consign to oblivion, but it was robust, well- 
 rounded, and symmetrical, — open as day. He was 
 dutiful as a son ; affectionate as a parent ; tender as 
 a husband ; courageous as a soldier ; honest and 
 able as a lawyer ; wise as a legislator ; profound as 
 a judge ; he measured up to the highest standard 
 of American citizenship, and furnishes a noble 
 example to the youth of our country for all coming 
 
 104 
 
PROFESSOR TUCKER'S ADDRESS 
 
 generations. He possessed a mind that created 
 something, a heart that adored something, a faith 
 that believed something, a hope that expected 
 something, a life that was lived for something, and 
 a patriotism that was ready to die for something. 
 
 May we not, on this day appointed for honoring 
 his memory, unite with our brethren throughout the 
 Union in grateful thankfulness to God that he has 
 given to the country such a patriot, to the State 
 such a citizen, to the administration of the law such 
 a magistrate, to Christianity such a defender, and to 
 those who loved him such as a friend ? 
 
 105 
 
Remarks of President Gray, Introducing Hon. 
 Richard Olney. 
 
 Brethren, — 
 
 IN this inclement weather we have been dwelling to-day 
 in imagination in a more southern clime, but it is well 
 before we part that our own little corner of the land should 
 not be forgotten. I am going to call upon a New Eng- 
 lander of New Englanders, one who in office knew how to 
 bring the whole power of the United States to sustain the 
 majesty of her law and the judgments of her courts (loud 
 applause), one who is, perhaps, no worse a representative of 
 New England, because he does not always go with the 
 majority (laughter and applause) but one whom, whether 
 we agree with him or not, we are always glad to hear and 
 of whom we are all proud. I call upon the Hon. Richard 
 Olney. (Loud applause, the audience rising.) 
 
 1 06 
 
ADDRESS OF RICHARD OLNEY 
 
Richard Olney 
 
ADDRESS OF RICHARD OLNEY 
 
 MR. PRESIDENT, — I have felt much hesita- 
 tion about taking even a small part in these 
 exercises. The theme is too large for treatment in ; 
 short space ; it must suffer at the hands of whoever 
 undertakes it without a command of time and leisure ' 
 which but few favored mortals possess ; it has been 
 spoken to and written of by orators, historians, and 
 statesmen for nearly seventy years ; and it is to-day 
 freshly and elaborately dealt with throughout the 
 Union by many of its most eminent citizens. 
 Indeed, for present purposes, what could be more 
 intimidating than what has been just going on in 
 this very community ; than to know that the inter- 
 esting utterances to which we have just listened 
 only supplement a morning of official and judicial 
 eloquence at the Court House and an afternoon of 
 learned dissertation at Sanders Theatre ? In de- 
 pressing circumstances like these, I can only hope 
 for indulgence if you find me reiterating a thrice- 
 told tale and can promise nothing except to make 
 your ordeal tolerably brief. 
 
 109 
 
JOHN MARSHALL 
 
 I wish to remark upon but three things connected 
 with the career of John Marshall. It is not obvi- 
 ous what most of us are born for, nor why almost 
 any one might as well not have been born at all. 
 -■■•■g-- Occasionally, however, it is plain that a man is sent 
 into the world with a particular work to perform, 
 if the man is commonly, though not always, uncon- 
 scious of his mission, his contemporaries are as a 
 rule equally blind, and it remains for after genera- 
 tions to discover that a man has lived and died for 
 whom was set an appointed task, who has attempted 
 and achieved it, and who has made the whole course 
 of history different from what it would have been 
 u without him. John Marshall had a mission of that :) 
 sort to whose success intellect and learning of the 
 highest order as well as special legal ability and 1 
 training .might well have proved inadequate. Yet — ; 
 the, mission being. assumed — the first thing I wish 
 to note and the wonderful thing, is that to all human 
 appearances Marshall was meant to be denied any-/y 
 thing like a reasonable opportunity to prepare for it/ 
 jFor education generally, for instance, he was in- 
 debted principally to his father, a small planter, who 
 could have snatched but little leisure from the daily 
 demands of an exacting calling and presumably 
 ' could not have spent all that little on the eldest of 
 ' his fifteen children. The parental tuition was sup- 
 plemented only by the son's attendance for a short 
 
 no 
 
MR. OLNEY'S ADDRESS 
 
 period at a country academy and by the efforts of a 
 couple of Scotch clergymen, each of whom succes- 
 sively tutored him for about a year and in that time 
 did something to initiate him into the mysteries of 
 Latin. Such, briefly put, was the entire Marshall 
 curriculum in the way of general education. It was 
 all over before he was eighteen, when the shadow 
 of the revolutionary struggle began to project itself 
 over the land and Marshall joined the Virginia 
 militia and became immersed in military affairs. As 
 lieutenant of militia and lieutenant and captain in the 
 Continental army, he was in active service during 
 almost the entire war, fought at Brandywine, > 
 German town, and Monmouth, was half-starved and 
 half-frozen at Valley Forge, and during that terrible: 
 winter ate his share of the Dutch apple pies ever since 
 historically famous for their capacity to be thrown, 
 across a room without damage to either inside or ' 
 outside. Marshall's opportunities as a student of 
 law were on a par with his educational opportunities 
 generally. Though he is said to have begun his 
 legal studies when he was eighteen, they were at once 
 and continuously interrupted by the military pur- 
 suits which occupied him until near the close of the 
 war. The only exception to be noted is that, in an 
 interval between the expiration of one military com- 
 mission and the issuance of another, he attended a 
 course of law lectures by Chancellor Wythe of Wil- 
 
 m 
 
JOHN MARSHALL 
 
 Ham and Mary College. Meagre as the knowledge "\ 
 and training thus acquired would seem to be, they 
 sufficed to procure him his license, and in 1780 or '8 1 / 
 he began to practise. In view of what he subse- 
 quently became and achieved, itjvould be a natural 
 supposition that during the next twenty years he 
 must have been exclusively devoted to his profession 
 and by the incessant and uninterrupted study and 
 application of legal principles must have made up for 
 the deprivations of earlier years. Nothing could be'! 
 further from the truth. During those twenty years 
 he was almost constantly in public employment and( 
 in public employment of an exciting and engrossing^) 
 nature. In this period arose and were settled the"- 
 novel and difficult questions following in the wake 
 of the War of Independence, questions of vital 
 moment to each State as well as to the country at 
 large. Marshall was in the thick of every discus- jj 
 sion and every struggle. He was a member of the ' 
 Virginia Assembly ; an executive councillor ; gen- 
 eral of militia ; delegate to the State Convention f 
 which adopted the Federal Constitution ; member j 
 of Congress ; envoy to France ; and when he was I 
 appointed Chief Justice at the end of January, 1801, j 
 he was Secretary of State in John Adams's Cabinet/ 
 and continued to act as such until after Jefferson's^ 
 inauguration. During this entire period I doubt if 
 there were any three consecutive years during which 
 
 112 
 
MR. OLNEY'S ADDRESS 
 
 Marshall was giving his entire time and attention to 
 the practice of his profession. 
 
 Contrast the poverty of this preparation with the 
 greatness of the work before him. He probably 
 did not appreciate it himself — it is certain, I think, 
 that his fellow-citizens and contemporaries were far 
 from appreciating it. To most of them the State 
 was closer, dearer, and vastly more important than 
 the nation — by all of them the significance of the 
 place of the judiciary in the new government was 
 but dimly, if at all, perceived — while to the world 
 at large the judiciary of a new nation of thirteen; 
 small States strung along the North Atlantic sea- ; 
 board, comprising a population of some four million ( 
 souls^necessarily seemed a tribunal of the smallest/ 
 possible accounr.7! To-day the "American Em- 
 pire," as Marshall himself was the first to call it, 
 with its immense territory and its seventy-five 
 millions of people, is_a negligible factor nowhere 
 oji earth, and its national Supreme Court ranks as . 
 the most exalted and potent judicial tribunal thatj 
 human skill has yet organized. But the work 
 Marshall was destined to undertake can be 
 estimated only by considering its inherent char- 
 acter. All minor features being disregarded, there / 
 are two of capital importance. In the first place, / 
 here was a ship of state just launched which was to( 
 be run rigidly by chart — by sailing directions laid 
 8 113 
 
JOHN MARSHALL 
 
 down in advance and not to be departed from 
 whatever the winds or the waves or the surprises 
 or perils of the voyage -^in accordance with grants 
 and limitations of power set forth in writing and 
 not to be violated or ignored except at the risk and 
 cost of revolution and civil warT^ The experiment 
 thus inaugurated was unique in the history of civil- 
 ized peoples and believed to be of immense 
 consequence both to the American people and to 
 the human race. But there were also wheels within 
 wheels, and the experiment of government accord- 
 ing to a written text entailed yet another, namely, 
 that of a judicial branch designed to keep all other 
 branches within their prescribed spheres. To that 
 end it was not enough to make the judicial 
 branch independent of the legislative and executive 
 branches. It was necessary to make it the final'" 
 judge not^ only of the powers jof those other 
 departments, but of its own powers as well. Thus^ 
 the national judiciary became the keystone of the 
 arch supporting the new political edifice and was 
 invested with the most absolute and far-reaching 
 authority. Since almost all legislative and executive ; 
 action can in some way be put in issue in a suit, it . 
 is an authority often involving and controlling^ 
 matters^ of highjstate policy external as well as, 
 internal. At this very moment is It not believed,' 
 indeed proclaimed in high quarters, that the 
 
 114 
 
MR. OLNEY'S ADDRESS 
 
 question of Asiatic dependencies for the United 
 States and incidentally of its foreign policy gener- 
 ally, practically hinges upon judgments of the 
 national Supreme Court in cases requiring the 
 exercise of its function as the final interpreter of 
 the Constitution ? What judicial tribunal in Chris- } 
 tendom is or _has ever been, directly or indirectly, ) 
 the arbiter of issues of that character ? 
 
 It was a national judiciary of this sort of which 
 John Marshall became the head one hundred years 
 ago. That he dominated his court on all constitu- 
 tional questions is indubitable. That he exercised 
 his mastery with marvellous sagacity and tact, that ) 
 he manifested a profound comprehension of the\ 
 principles of our constitutional government and 
 declared them in terms unrivalled for their com- 
 bination of simplicity and exactness, that he justi-/ 
 fled his judgments by reasoning impregnable in, 
 point of logic and irresistible in point of persuasive- ! 
 ness — has not all this been universally conceded j 
 for the two generations since his death and will its, 
 not be found to have been universally voiced to-day 
 wherever throughout the land this centenary has; 
 been observed ? " All wrong," said John Randolph 
 of one of Marshall's opinions — "aH wrong — but 
 no man in the United States can tell why or wherein 
 he is wrong." If we consider the work to which 
 he was devoted, it must be admitted to have been 
 
 "5 
 
JOHN MARSHALL 
 
 I of as high a nature as any to which human faculties 
 can be addressed. If we consider the manner in, 
 which the work was done, it must be admitted that \ 
 anything better in the way of execution it is difficult J 
 to conceive. And if we consider both the greatness! 
 of the work and the excellence of its performance^ 
 relatively to any opportunities of Marshall to duly ■ 
 equip himself for it, he must be admitted to be one 
 of the exceptional characters of history seemingly 
 foreordained to some grand achievement because / 
 fitted and adapted to it practically by natural genius |; 
 alone. 
 
 If it be true — as it is, beyond cavil — that to 
 
 , Washington more than to any other man is due the 
 
 birth of the American nation, it is equally true 
 
 //beyond cavil that to Marshall more than to any 
 
 1 1 other man is it due that the nation has come safely 
 
 ! through the trying ordeals of infantile weakness 
 and youthful effervescence and has triumphantly 
 
 \ emerged into well developed and lusty manhood. 
 Had the Constitution at the outset been committed 
 to other hands>it could have been and probably 
 would have been construed in the direction of mini- 
 mizing its scope and efficiency — of dwarfing and) 
 frittering away the powers conferred by it and of/ 
 making the sovereignty of the nation but a petty) 
 thing as compared with the sovereignty of the State.) 
 
 \ Under Marshall's auspices, however, and his inter- 
 
 116 
 
MR. OLNEY'S ADDRESS 
 
 pretation and exposition of the Constitution, the 
 sentiment of nationality germinated and grew apace, 
 a vigorous national life developed, and an inde- 
 structible union of indestructible States became a 
 tangible and inspiring entity, appealing alike to thel 
 affections and the reason of men and in which thusi 
 far at least they have seen both the ark of their t 
 safety and an ideal for which to willingly lay down; 
 their lives. I refer thus to the past because the i 
 past is assured and because there are those who'j 
 look to the future with apprehension — who do not\ 
 disguise their fear that the Republic of Washington;. 
 and Marshall is now suffering a mortal assault not',; 
 from without but from within — not from " foreign J. A 
 levy" but from "malice domestic." Those who'^ 
 take this view include men of both the great politi- 
 cal parties and men who deservedly command the 
 highest respect and deference from their fellow- 
 countrymen. Nevertheless, they must not be al- 
 lowed to lessen our faith in the final triumph of the j 
 fundamental ideas which underlie our national life.) 
 | The fathers did not build upon a quicksand but 
 upon a rock — else the structure they reared could 
 hardly have survived foreign aggression, a disputed 
 succession, and a civil war the greatest and most A 
 sanguinary of modern times. But their work was-'v/ 
 by human hands for human use, and even their 
 wisdom could not guard it against the follies and the 
 
 117 
 
JOHN MARSHALL 
 
 sins of all future custodians. That gross blunders 
 have been committed, blunders unaccountable in 
 their origin and as yet unfathomable in their con- 
 sequences, may be admitted, is indeed sorrowfully) 
 admitted by many, if not a majority, of those who ty 
 have nevertheless since contributed to keep their ' 
 official authors in power. But blunders, however 
 inexcusable or apparently injurious, must be deemed 
 irretrievable only in the last resort, and Heaven 
 forbid any admission that the American Republic 
 can be wrecked by any one or even two adminis- 
 trations. The truth here, as almost always, lies! 
 between extremes — between ultra-conservatives and 
 pessimists on the one hand and ultra-progressives] 
 and optimists on the other. The former would \\ 
 put back the hands of the clock a hundred years | 
 — would have us live and act as if the conditions )| 
 of the Washington and Marshall era were still' 
 about us — in effect would have us tear up the' 
 railroad and sink the steamship and return the 
 lightning to the heavens whence Franklin brought';. 
 it down. The latter would have us believe that, 
 to act well our part on_the world-wide stage which 
 alone limits thejictivities of modern civilized states, 
 we must ape the fashionable international follies 
 and vices of the period even to the point of war- 
 ring upon, subjugating, and exploiting for.„trade 
 purposes eight millions of alien peoples in the 
 
 118 
 
MR. OLNEY'S ADDRESS 
 
 Pacific seas seven thousand miles from our own 
 shores. Between these extremes lies the path of \ 
 honor, of morality, of safety, and of patriotism, and! 
 notwithstanding present aberrations the American J 
 people may be absolutely trusted sooner or later j; 
 to find it and to walk in it. They will certainly! 
 not forget that this is the dawn of the twentieth, 
 not of the nineteenth century. They will just as f 
 certainly determine that to be in touch with the best I 
 thought and temper of the time, to be the most) 
 truly progressive of all peoples, to do every duty) 
 and fulfil every function required by its high place j 
 in the world — they will certainly determine that I 
 to do and to be all this — neither means that the; 
 American nation must imitate the most questionable 
 practices of other states nor requires any abandon- 
 ment of American principles or American ideals. 
 To believe or to hold otherwise is to despair of 
 v the Republic, and to despair of the Republic is to 
 lose faith in humanity and in the future of the 
 race. 
 
 The incalculable debt of the country to the two 
 great Virginians, impossible of repayment, can never 
 be too often or too emphatically recognized by the 
 entire body of the American people. Upon the. ' 
 bar, however, devolves an especial duty, namely, to 
 see to it that the merits of its incomparable chief are 
 not obscured by the showier deeds of warriors and 
 
 u 9 
 
JOHN MARSHALL 
 
 statesmen. The observance of this day, therefore, 
 by the lawyers of the country generally is eminently 
 appropriate, while we in this corner of the land are 
 exceptionally favored in that Virginia has lent us 
 for our celebration one of the foremost of her lawyers 
 and citizens. In recognition of the honor of his 
 presence and in appreciation of the immense services 
 of his native State to the cause of a stable and 
 coherent nationality, I propose that the company 
 rise and drink to the ever-increasing prosperity of 
 the Commonwealth of Virginia and to the good 
 health and long life of her distinguished representa- 
 tive on this occasion. 
 
 120