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CHIEF JUSTICE MARSHALL

MR. PRESIDENT AND GENTLEMEN OF THE ASSOCIATION,- I had hoped to have offered you, this morning, what you may perhaps regard as due to the occasion, a written address. Circumstances not foreseen when I accepted the invitation of your committee have placed that preparation out of my power, and have reduced me to the necessity either of appearing before

you

without it, or not appearing at all. I should have accepted the latter alternative, if I had felt myself quite at liberty to disregard such an engagement; and if I had not felt so much solicitude for the success of this, our first annual meeting, that I was reluctant to have any of its announcements fail. It seems to me that if these meetings are to succeed, we should regard such invitations somewhat as politicians profess to regard nominations for the Presidency: not supposed to be sought, but not under any circumstances whatever to be declined.

Allow me one word further on this subject. While we shall always listen, I am sure, with greater pleasure and advantage to the elaborate preparation that produces such admirable papers as we heard yesterday, in the address and the essays that were read to us, I hope that the precedent will not be established among us that such preparation is indispensable. We all know how difficult in our busy lives it is at all times to command it. I trust, therefore, we shall always feel at liberty, when we are fortunate enough to have anything to say, and to be asked to say it, to address each other in the simple, unpremeditated style that prevails in courts of justice. In other words, if gentlemen cannot always redeem their obligations in gold, let us have the silver, even at ninety-two cents on the dollar; it is much better than total repudiation.

I shall ask your attention to some observations, more desultory than I hoped to make them, on the subject of Chief Justice Marshall and the constitutional law of his time.

If Marshall had been only what I suppose all the world admits he was, a great lawyer and a very great judge, his life, after all, might have had no greater historical significance, in the strict sense of the term, than the lives of many other illustrious Americans who in their day and generation have served and adorned their country.

A soldier of the Revolution—the companion and friend of Washington, as afterwards his complete and elegant biographer-greatly distinguished at the bar and in the public service before he became Chief Justice -and then presiding in that capacity for so long a time with such extraordinary ability, with such unprecedented success—if the field of his labors had been only the ordinary field of elevated judicial duty, his life would still have been, in my judgment, one of the most cherished memories of our profession, and best worthy to be held in perpetual remembrance. Pinkney summed up his whole character when he declared that Marshall was born to be the Chief Justice of whatever country his lot might happen to be cast in. He stood pre-eminent and unrivalled, as well upon the unanimous testimony of his great contemporaries, as by the whole subsequent judgment of his countrymenthe best judicial fruit our profession has produced.

Another interest, less important, but perhaps to the lawyer who dwells upon the history of his profession more fascinating, attaches to the life of Marshall. He was the central figure—the cynosure-in what may well be called the Augustan age of the American bar; golden in its jurisprudence, golden in those charged with its service, and sharing in its administration. We cannot expect, since change is the law of systems as well as of individuals, and of all human affairs, we can never expect to see hereafter a jurisprudence so simple, so salutary, so elevated, so beneficent, as the jurisprudence of those days. Perplexed as the law has become with infinite legislation, confused and distracted with a multitude of incongruous and inconsistent precedents that no man can number, it is a different system now, although still the same in name, from that which Marshall dealt with. And it is no disparagement to the bar of our day—and no man esteems its ability and character higher than I doto say that we can hardly hope to behold again such a circle of advocates, displayed upon a stage at once distinctive and conspicuous, as gathered round the tribunal over which the great Chief Justice presided. The Livingstons, Emmet, Oakley, Dexter, Webster, Pinkney, Wirt, Sergeant, Binney, Hopkinson, Dallas -no need to name them all; their names are household words among lawyers. Well may it be said of them, “The dew of their birth was of the womb of the morning"; the morning of this country; the morning of Republican government; the morning of American

w, of American prosperity, of American peace. It is sad to remember, what we all have to remember, how largely the fame of such men rests in tradition; how much of it is in pais, and how little on the record. It is the fate of the advocate. However important his labors, or brilliant his talents, they are expended for the most part upon transitory affairs—the concerns that perish-the controversies that pass away. Like the actor, he has his brief and busy hour upon the stage, but his audience is of the hour, his applause of the moment. When the curtain falls, and he is

i with us no longer, very little remains of all his exertions. Even the memory of them perishes when the witnesses are gone.

But it is not, in my judgment, as a great judge merely, or in comparison with other great judges, that Chief Justice Marshall will have his place in ultimate history. The test of historical greatness—the sort of greatness that becomes important in future history—is not great ability merely. It is great ability combined with great opportunity, greatly employed. The question will be, how much a man did to shape the course of human affairs, or to mould the character of human thought. Did he make history, or did he only accompany and embellish it? Did he shape destiny, or was he carried along by destiny? These are the inquiries that posterity will address to every name that challenges per

1 manent admiration, or seeks a place in final history. Now it is precisely in that point of view, as it appears to me, and I venture to present the suggestion to your

better consideration, that adequate justice has not yet been done to Chief Justice Marshall. He has been estimated as the lawyer and the judge, without proper consideration of how much more he accomplished, and how much more is due to him from his country and the world, than can ever be due to any mere lawyer or judge. The assertion may perhaps be regarded as a strong one, but I believe it will bear the test of reflection, and certainly the test of reading in American history, that, practically speaking, we are indebted to Chief Justice Marshall for the American Constitution. I do not mean the authorship of it, or the adoption of it-although in that he had a considerable share -but for that practical construction, that wise and far-seeing administration, which raised it from a doubtful experiment, adopted with great hesitation, and

likely to be readily abandoned if its practical working I had not been successful-raised it, I say, from a doubt

ful experiment to a harmonious, a permanent, and a beneficent system of government, sustained by the judgment and established in the affection of the people. He was not the commentator upon American constitutional law; he was not the expounder of it; he was the author, the creator, of it. The future Hallam, who shall sit down with patient study to trace and elucidate the constitutional history of this country, to follow it from its origin, through its experimental period and its growth to its perfection—to pursue it from its cradle, not I trust to its grave, but rather to its immortality, will find it all, for its first half-century, in those luminous judgments in which Marshall, with an unanswerable logic, and a pen of light, laid before the world the conclusions of his Court. It is

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