JOHN MARSHALL-CHIEF JUSTICE OF THE UNITED STATESERECTED BY THE BAR AND THE CONGRESS OF THE

UNITED STATES-A. D. MDCCCLXXXIV.

No more "suitable public reservation" could be found than the ground on which we stand, almost within the shadow of the Capitol in which for more than thirty years he held the highest judicial position in the country.

It may well be that the even tenor of his judicial life has driven from some minds the story of his brilliant and eventful youth. The same simplicity, the same modesty which marked the child distinguished the great Chief Justice; but as a judge, his life was necessarily one of thought and study, of enforced retirement from much of the busy world, dealing more with results than processes, and the surges of faction and of passion, the heat of ambition, the thirst of power reached him not in his high judicial station. Yet he had himself been a busy actor on the scenes of life, and if his later days seemed colorless, the story of his earlier years is full of charm.

The eldest of a large family, reared in Fauquier County, in Virginia, he was one of the tenderest, the most lovable children. He had never, said his father, seriously displeased him in his life. To his mother-to his sisters especially-did he bear that chivalrous devotion which to the last hour of his life he showed to women. Such education as came to him was little got from schools, for the thinly-settled country and his father's limited means forbade this. A year's Latin at fourteen at a school a hundred miles from his home, and another year's Latin at home with the rector of the parish was the sum of his classical teaching. What else of it he learned was with the unsympathetic aid of grammar and dictionary. But his father-who, Marshall was wont to say, was a far abler man than any of his sons, and who in early life was Washington's companion as a land surveyor, and, later, fought gallantly under him-his father was well read in English literature, and loved to open its treasures to the quick, receptive mind of his eldest child, who in it all, especially in history and still more in poetry, found an enduring delight. Much of his time was passed in the open air, among the hills and valleys of that beautiful country, and thus it was that in active exercise, in day dreams of heroism and poetry, in rapid and eager mastery, of such learning as came within his reach, and surrounded by the tender love, the idolatry of a happy family, his early days were passed.

The first note of war that rang through the land called him to arms, and from 1775, when was his first battle on the soil of his own State, until the end of 1779, he was in the army. Through the battles of Iron Hill, of Brandywine, of Germantown, and of Monmouth, he bore himself bravely, and through the dreary privations, the hunger, and the nakedness of that ghastly winter at Valley Forge, his patient endurance and his cheeriness bespoke the very sweetest temper that ever man was blessed with. So long as any lived to speak, men would tell how he was loved by the soldiers and by his brother officers; how he was the arbiter of their differences and the composer of their disputes, and when called to act, as he often was, as judge advocate, he exercised that peculiar and delicate judgment required of him who is not only the prosecutor but the protector of the accused. It was in the duties of this office that he first met and came to know well the two men whom of all others on earth he

most admired and loved and whose impress he bore through his life, Washington and Hamilton.

While of Marshall's life war was but the brief opening episode, yet before we leave these days, one part of them has a peculiar charm. There were more officers than were needed, and he had come back to his home His letters from camp had been read with delight by his sisters and his sisters' friends. His reputation as a soldier had preceded him, and the daughters of Virginia, then, as ever, ready to welcome those who do service to the State, greeted him with their sweetest smiles. One of these was a shy, diffident girl of fourteen ; and to the amazement of all, and perhaps to her own, from that time his devotion to her knew no variableness neither shadow of turning. She afterwards became his wife, and for fifty years, in sickness and in health, he loved and cherished her, till, as he himself said, "her sainted spirit fled from the sufferings of life." When her release came at last, he mourned her as he had loved her, and the years were few before he followed her to the grave.

But from this happy home he tore himself away, and at the college of William and Mary attended a course of law lectures, and in due time was admitted to practice. But practice there was none, for Arnold had then invaded Virginia, and it was literally true that inter arma silent leges. To resist the invasion, Marshall returned to the army, and at its end, there being still a redundance of officers in the Virginia line, he resigned his commission &nd again took up his studies. With the return of peace the courts were opened and his career at the bar began. Tradition tells how even at that early day his characteristic traits began to show themselves -his simple, quiet bearing, his frankness and candor, his marvellous grasp of principle, his power of clear statement, and his logical reasoning. It is pleasant to know that his rapid rise excited no envy among his associates, for his other high qualities were exceeded by his modesty. In after life, this modesty was wont to attribute his success to the "too partial regard of his former companions in arms, who, at the end of the war had returned to their families and were scattered over the States." But the cause was in himself, and not in his friends.

In the spring of 1782, he was elected to the State legislature, and in the autumn chosen to the executive council. In the next year took place his happy marriage, his removal to Richmond, thenceforth his home, and soon after, his retirement, as he supposed, from public life. But this was not to be, for his election again and again to the legislature called on him for service which he was too patriotic to withhold, even had he felt less keenly how full of trouble were the times. Marshall threw himself, heart and soul, into the great questions which bid fair to destroy by dissension what had been won by arms, and opposed to the best talent of his own State, he ranged himself with an unpopular minority. In measured words, years later, when he wrote the Life of Washington, be defined the issue which then threatened to tear the country asunder. It was, he said, "divided into two great political parties, the one of which contemplated America as a nation, and labored incessantly to invest the Federal head with powers competent to the preservation of the Union. The other attached itself to the State government, viewed all the powers of Congress with jealousy, and assented reluctantly to measures which would enable the head to act in any respect independently of the members." Though the proposed Constitution might form, as its preamble declares, “a

more perfect union" than had the Articles of Confederation, though it might prevent anarchy and save the States from becoming secret or open enemies of each other, though it might replace “a Government depending upon thirteen distinct sovereignties for the preservation of the public faith" by one whose power might regulate and control them all-the more numerous and powerful, and certainly the more clamorous party, insisted that such evils, and evils worse than these, were as nothing compared to the surrender of State independence to Federal sovereignty. In public and private, in popular meetings, in legislatures and in conventions; on both sides passion was mingled with argument. Notably in Marshall's own State did many of her ablest sons, then and afterwards most dear to her, throw all that they had of courage, of high character and of patriotism, into the attempt to save the young country from its threatened yoke of despotism. Equally brave and able were those few who led the other party, and chief among them were Washington, Madison, Randolph and, later, Marshall. Young as he was, it was felt that such a man could not be left out of the State convention to which the Constitution was to be submitted, but he was warned by his best friends that unless he should pledge himself to oppose it his defeat was certain. He said plainly that, if elected, he should be "a determined advocate for its adoption," and his integrity and fearlessness overcame even the prejudices of his constituents. And in that memorable debate, which lasted five-and-twenty days, though, with his usual modesty, he contented himself with supporting the lead of Madison, three times he came to the front, and to the questions of the power of taxation, the power over the militia, and the power of the judiciary, he brought the full force of his fast developing strength. The contest was severe and the vote close. The Constitution was ratified by a majority of only ten. But as to Marshall, it has been truly said that "in sustaining the Constitution, he unconsciously prepared for his own glory the imperishable connection which his name now has with its principles." And again his modesty would have it that he builded better than he knew, for in later times he would ascribe the course which he took to casual circumstances as much as to judgment; he had early, he said, caught up the words, "united we stand, divided we fall;" the feelings they inspired became a part of his being; he carried them into the army, where, associating with brave men from different States who were risking life and all else in a common cause, he was confirmed in the habit of considering America as his country, and Congress as his Government.

The convention was held in 1788. Again Marshall was sent to the legislature, where in power of logical debate he confessedly led the House, until in 1792 he left it finally.

During the next five years he was at the height of his professional reputation. The Federal reports and those of his own State show that among a bar distinguished almost beyond all others, he was engaged in most of the import ant cases of the time. A few of these he has reported himself; they are modestly inserted at the end of the volume, and are referred to by the reporter as contributed "by a gentleman high in practice at the time, and by whose permission they are now published."

And here a word must be said as to the nature and extent of his technical learning, for it is almost without parallel that one should admittedly have held the highest position at the bar, and then for thirty-five years should, as

admittedly, have held the reputation of a great judge, when the entire time between the very commencement of his studies and his relinquishment of practice was less than seventeen years. In that generation of lawyers and the generation which succeeded them, it was not unusual that more than half that time passed before they had either a cause or a client. Marshall had emphatically what is called a legal mind; his marvellous instinct as to what the law ought to be doubtless saved him much labor which was necessary to those less intellectually great. With the principles of the science he was of course familiar; with their sources he was scarcely less so. A century ago there was less law to be learned and men learned it more completely. Except as to such addition as has of late years come to us from the civil law, the foundation of it was the same as now-the same common law, the same decisions, the same statutes-and in that day, a century's separation from the mother country had wrought little change in the colonies except to adapt this law to their local needs with marvellous skill. Save as to this, the law of the one country was the law of the other, and the decisions at Westminster Hall before the Revolution were of as much authority here as there. There was not a single published volume of American reports. The enormous superstructure which has since been raised upon the same foundation, bewildering from its height, the number of its stories, the vast number of its chambers, the intricacies of its passages, has been a necessity from the growth of a country rapid beyond precedent in a century to which history knows no parallel. But the foundation of it was the same, and the men of the last century had not far to go beyond the foundation, and hence their technical learning was, as to some at least, more complete, if not more profound. There were a few who said that Marshall was never what is called a thoroughly technical lawyer. If by this is meant that he never mistook the grooves and ruts of the law for the law itself that he looked at the law from above and not from below, and did not cite precedent where citation was not necessary—the remark might have semblance of truth, but the same might be said of his noted abstinence from illus tration and analogy, both of which he could, upon occasion, call in aid; but no one can read those arguments at the bar or judgments on the bench in which he thought it needful to establish his propositions by technical precedents, without feeling that he possessed as well the knowledge of their existence and the reason of their existence, as the power to analyze them. But he never mistook the means for the end.

Even in the height of his prosperous labor he never turned his back upon public duty. Not all the excesses of the French revolution could make the mass of Americans forget that France had been our ally in the war with England, and when, in 1793, these nations took arms against each other, and our proclamation of neutrality was issued to the world, loud and deep were the curses that rang through the land. Hated as the proclamation was, Marshall had no doubt of its wisdom. Great was his grief to oppose himself to the judgment of Madison, but he was content to share the odium heaped upon Hamilton and Washington, and to be denounced as an aristocrat, a loyalist, and an enemy to republicanism. With rare courage, at a public meeting at Richmond, he defended the wisdom and policy of the administration, and his argument as to the constitutionality of the proclamation anticipated the judgment of the world.

Two years later came a severer trial. Without his knowledge and against his will, Marshall had been again elected to the legislature. Our minister to Great Britain had concluded a commercial treaty with that power, and its ratification had been advised by the Senate and acted on by the President. The indignation of the people knew no bounds. In no State was it greater than in Virginia. The treaty was "insulting to the dignity, injurious to the interests, dangerous to the security, and repugnant to the Constitution of the United States "--so said the resolutions of a remarkable meeting at Richmond, and these words echoed through the country. Had not the Constitution given to Congress the right to regulate commerce, and how dared the Executive, without Congress, negotiate a treaty of commerce? Marshall's friends begged him, for his own sake, not to stem the popular torrent. He hoped at first that his own legislature might, as he wrote to Hamilton from Richmond, “ultimately consult the interest or honor of the nation. But now," he went on to say, "when all hope of this had vanished, it was deemed advisable to make the experiment, however hazardous it might be. A meeting was called which was more numerous than I have ever seen at this place; and after a very ardent and zealous discussion, which consumed the day, a decided majority declared in favor of a resolution that the welfare and honor of the nation required us to give full effect to the treaty negotiated with Britain." Thus measuredly he told the story of one of his greatest triumphs, and afterwards, in his place in the House, he again met the constitutional objection in a speech which, men said at the time, was even stronger than the other. As he spoke reason asserted her sway over passion, party feeling gave way to conviction, and for once the vote of the House was turned. Of this speech no recorded trace remains, but even in that time, when news travelled slowly, its fame spread abroad, and the subsequent conduct of every administration has to this day rested upon the construction then given to the Constitution by Marshall.

Henceforth his reputation became national, and when, a few months later, he came to Philadelphia to argue the great case of the confiscation by Virginia of the British debts, a contemporary said of him, "Speaking, as he always does, to the judgment merely, and for the simple purpose of convincing, he was justly pronounced one of the greatest men in the country." He were less than human not to be moved by this, but, in writing to a friend, he modestly said, "A Virginian who supported with any sort of reputation the measures of the Government was such a rara avis that I was received with a degree of kindness which I had not anticipated." Soon after Washington offered him the office of Attorney-General, and some months later the mission to France. Both he declined. His determination to remain at the bar was, he thought, unalterable.

And again he altered it. Neither France herself nor the "French patriots" here had forgotten or forgiven the treaty with Great Britain, and if the disgust at our persistent neutrality did not break into open war it was because France knew, or thought she knew, that the entire American opposition to the Government was on her side. Just short of war she stopped. Privateers fitted out by orders of the French minister here preyed upon our commerce; the very ship which brought him to our shores began to capture our vessels before even his credentials had been presented; later, by order of the Directory he suspended his diplomatic functions here and VOL. CXII-48