Page images
PDF
EPUB

States, and by his masterly and far-reaching decisions to win a place side by side with Madison and Hamilton among the founders of our national government. John Marshall, second to none among all the illustrious jurists of the English race, was then, at the age of thirty-three, the foremost lawyer of Virginia. He had already served for several terms in the State legislature; but his national career began in this convention, where his arguments, with those of Madison, re-enforcing each other, bore down all opposition."

Yet in that convention the Constitution was only carried by ten votes. In New York it was only adopted by a majority of three votes, notwithstanding the superhuman efforts of Hamilton; and after that so little interest in the new government was felt in that State that her people took no part in the first election of Washington to the presidency.

When Marshall accepted the position of Chief Justice we may well suppose that he did so with great reluctance. Now when our country has become a giant among the nations of the earth it is difficult for us to have a realizing sense of the feebleness of our infancy a hundred years ago when the only great thing to be noted in our condition was the group of great men that moulded the national destiny. At that time the entire population of the United States, settled almost wholly along the Atlantic coast, was about the same as that of the present State of Illinois; and of these nearly one-fifth were slaves. The territory now forming the States of Alabama and Mississippi was in possession of the Indians, and was appropriately called the Indian Territory. The vast extent of country north of the Ohio River, extending from the Alleghenies to the Mississippi River, and from the Ohio to the lakes, was a wilderness. Only a few hardy pioneers had immigrated from beyond the mountains to Kentucky and Tennessee. Florida belonged to Spain, Louisiana to France, and all of the country west of the Mississippi, reaching to the Pacific, nearly the whole of which was unexplored, belonged to those two countries. With the exception of New York, which had sixty thousand inhabitants, there was not a city in the United States as large as Little Rock is now. Philadelphia had 41,000, and Boston nearly 25,000. The national capital, recently established at Washington, might then be considered as a sort of Tadmor in the Wilderness, since a city begun but not yet built and a city that has been destroyed possess certain features in common. The total revenues of the government for the year 1800 were less than $13,000,000. Communication between the different parts of the country was slow and difficult. It took the daily stage coach, traveling at what was then considered a dizzy rate of speed, from a week to ten days to traverse the distance from Boston to New York, a longer time than it takes now to go from Maine to California. The country, still suffering from the exhaustion caused by the Revolution, and from the weakness of the late Confederation, was depressed, and the future looked dark and uncertain. The Supreme Court had as yet acquired no prestige; and its tremendous influence on the future destiny of the government was as yet unforeseen. The salary of the Chief Justice was fixed at $4,000 a year. Marshall had only a short time previously declined a seat in the same court. Plainly the offer under these circumstances of the place of Chief Justice to a man in the very noonday of life who was the acknowledged leader of the bar in Virginia, was not very tempting. Had he imbibed that commercial spirit, as it is called, that so largely prevails to-day, he certainly would have declined. If he had declined, and a weak man had succeeded to the position, it is probable that the consequences would have been eminently disastrous. Nearly all of the decisions that have been rendered by the Supreme Court on great constitutional questions have been by a divided court; and several times by a majority of only one. If you would see what abysses we have escaped you have only to read the dissenting opinions from the organization of the court down to the present time. Nothing could have been more fortunate than the appointment of Marshall; and it has been well said that it redeemed all of the faults of the administration of the elder Adams, a man of intense patriotism and of great ability, but sometimes wanting in practical wisdom. When Marshall took his seat on the bench one hundred years ago to-day the government was endowed with a new force; the judicial department had a man at the helm with a clear head, a pure heart and a strong arm, in all things qualified to perform the momentous duties assigned to him, destined to maintain the Constitution and uphold the majesty of the law for more than a third of a century. The influence of such a man under such circumstances is something that is wholly beyond human computation.

When the Constitution had been once adopted, men read into it different meanings according to their predilection or their prejudices. It began by the words: “We, the people of the United States." After it had been engrossed a member suggested that the words, Done in convention by the unanimous consent of the States present," be added; which was done without objection; the purpose being to show that it was equally binding on the people and on the States. Though there was nothing inconsistent in these two phrases, yet each became the watchword of two different political parties, one asserting that the whole people were bound by the compact, and the other that the Constitution was only a league between the several States; a controversy which called into existence immense libraries of books and pamphlets, with speeches innumerable, and which was not definitely settled until the close of our Civil War. But that was not the only question to be passed on. The Constitution is extremely terse and concise; necessarily so, because in the grant of powers to a government it is quite impossible to foresee and to provide for the special circumstances under which they are to be exercised. If the Constitution had gone more into details, the difficulties of construction

of construction would have been increased, because prolixity and perspicuity are by no means convertible terms. The real meaning of the Constitution as applied to any particular state of facts could only be understood as occasion should arise; and to the Supreme Court was delegated this duty, the most important that ever devolved on any court of justice. To the old lawyers of the common law, of whom Coke is the most famous example, the only way to construe a written law was to regard it much as a military order is regarded by subordinates; that is, literally, by the most obvious meaning of the words, and by the aid of a dictionary, if need be. It may be said that it is mostly due to Lord Nottingham and to Lord Hardwicke that this literal method, which often resulted in the grossest absurdities, has been generally superseded, except in the domain of the criminal law, by a method that looks not only to the words, but to the time, place and circumstances under which they were used, so as to get at the true legislative intent. It was natural that those who had opposed the adoption of the Constitution should favor such a strict construction as would confine the powers of the Federal government to the narrowest range possible. On the other hand there were those who favored such a latitudinarian construction as would immeasurably enlarge the Federal power, and would tend to dwarf the States down to the last fraction of insignificance. It was the sincere aim of Marshall to avoid either extreme; and the general verdict is that he succeeded in doing so in a manner quite impossible to anyone not possessed of like abilities joined to the most impartial judgment.

No one ever had finer opportunities for understanding the Constitution than Marshall. He had heard its provi. sions and its objects discussed from every possible standpoint by men of extraordinary talents from his youth up, and in that immortal discussion he had himself taken an important part; in the settling of the questions that arose for decision he had the aid of lawyers of preeminent ability, at a time when the bar had a luster which perhaps it has never since recovered; and he gave to them the deliberate and laborious attention of a mind whose vigor and acuteness in the solution of legal questions excited and still commands universal respect and admiration. But clear as his convictions undoubtedly were, no one can read his decisions on grave constitutional disputes without perceiving that he was habitually oppressed by a profound sense of the heavy responsibility which he incurred in the discharge of so sacred a duty. In such cases that sentiment seems to pervade his opinions like the deep and solemn undertone of the sea. Many of these questions had an importance far greater than any that had ever been presented to any human tribunal. When Lord Hardwicke in 1750 decided the case of Penn vs. Lord Baltimore, that had been pending in his court for more than seventy years, and which involved the boundary between the provinces of Pennsylvania and Maryland, being impressed with the magnitude of the controversy, he spoke of it as one "for the determination of the right and boundaries of two great provincial governments and three counties, of a nature worthy of the judicature of a Roman senate rather than of a single judge." And yet that controversy was but small and insignificant contrasted with many that came before Marshall, involving the future of our country for all time to come.

That he was absolutely infallible his

« PreviousContinue »