all there, and there it will be found and studied by future generations. The life of Marshall was itself the constitutional history of the country from 1801 to 1835.

It is difficult for us, at this time, to comprehend the obstacles that attended the original construction and practical administration of the Constitution. Since the way through them has been pointed out by the labors of that Court, since experience has justified and established those propositions, they seem very plain and clear. Starting from our point of view, and going backward, we can hardly appreciate the embarrassments that attended them in the outset. But the student of history will discover, the lawyer who attends to the growth as well as the learning of his profession will never forget, the discouragements that surrounded that subject when it was first taken in hand. A Constitution adopted with great opposition, the subject of the gravest difference of opinion among the wisest men, on its most material points; quite likely to fail, as its predecessor, the Articles of Confederation, had failed; the object of a heated party spirit and a bitter political controversy; it not only demanded the highest order of judicial treatment, but such as could be reconciled to the universal judgment of the country. Popular opinion is a matter with which independent tribunals have usually but little concern. But in this case it became as vital as the law itself, because no constitution could stand that proved repugnant to the general sense.

The field was absolutely untried. Never before had there been such a science in the world as the law of a written constitution of government. There were no

precedents. Courts of justice sit usually to determine the existing law, in the light of authoritative precedents and statutes. Originality is neither expected nor tolerated. A magistrate who should bring much original invention to bear in expounding the law would be apt to prove one of those questionable blessings that "brighten only when they take their flight." An original field of judicial exertion very rarely offers itself. To no other judge, so far as I know, has it ever been presented, except to Mansfield, in the establishment of the commercial law; unless, perhaps, the remark may be extended to the labors of Lord Stowell in the department of English consistorial law, and to those of Lord Hardwicke in equity. Those are the only instances that the long history of our profession under the common law offers of what may be called an original field of judicial labor.

Such was the task that addressed itself, when Marshall took his seat upon the bench, to the Court over which he presided. A task of momentous importance -fraught with infinite difficulty-in a field without precedent and under the most peculiar and critical circumstances.

It is a singular fact that, although the Supreme Court had been in existence twelve years before 1801, when Marshall was appointed, and though three chief justices with brief terms of office had preceded him, only two decisions of that Court had been made on the subject of constitutional law-the case of Hylton vs. the United States, which affirmed the validity of a tax upon carriages, laid by the State of Virginia, and the case of Calder vs. Bull, in which it was held that an act of the Legislature of the State

of Connecticut, granting a new trial in a civil action, was not in contravention of any provision of the Constitution of the United States. Those were the only questions previously decided in respect to the American Constitution. Between that time and 1835, when Marshall died, fifty-one decisions will be found to have been made and reported by that Court on the subject of the law of the Federal Constitution. In thirty-four of those cases the opinion was delivered by the Chief Justice-being twice as many opinions as were delivered on that subject by all the other members of the Court together.

I have spoken of this great work as the work of the Chief Justice-not unmindful certainly of his eminent associates, and especially of Judge Story, who sat with him during a considerable portion of that time. And I take leave to refer to the testimony of Judge Story, lest some may think I have gone too far in attributing the merit of this system of law so largely to Chief Justice Marshall. Judge Story is perhaps the best witness who can testify on that point, because his means of knowledge were complete. He was not likely to undervalue or disparage the labors of his associates, nor entirely to overlook his own very valuable efforts in that branch of the law. He says, in an article contributed to the North American Review: "We resume the subject of the constitutional labors of Chief Justice Marshall. We emphatically say of Chief Justice Marshall. For though we would not be unjust to those learned gentlemen who have from time to time been his associates on the bench, we are quite sure they would be ready to admit, what the public universally believe, that his master mind has presided

in their deliberations, and given to the results a cogency of reasoning, a depth of remark, a persuasiveness of argument, a clearness and elaboration of illustration, an elevation and comprehensiveness of conclusion to which none others offer a parallel. Few decisions upon constitutional questions have been made in which he has not delivered the opinion of the Court; and in those few the duty devolved upon others to their own regret, either because he did not sit in the case, or, from motives of delicacy, abstained from taking an active part."

It is to be remembered, further, that in only one of all those decisions did the majority of the Court fail to concur with Marshall. In the case of Ogden vs. Sanders-where the power of the States to pass bankrupt or insolvent laws was discussed, he was, for the first and last time, in the minority. Four of the judges against the opinion of Judges Marshall, Story, and Duvall-sustained the power of the States to pass such a law; but all concurred in the judgment in that case, which was that a discharge under such a law could not affect a creditor outside the jurisdiction, who had not thought proper to appear and become a party to the proceeding. I need hardly say to an assemblage of lawyers that, as the half-century that has passed away since most of those decisions were rendered has completely established and confirmed and rendered plainer and plainer the soundness and the wisdom of the law they involve, so experience has likewise shown that, in this solitary instance in which his opinion was rejected, the Chief Justice was right. He correctly anticipated, with a far-reaching sagacity, what would be the result of a system of insolvency

that discharges a debtor in one State and fails to discharge him in another; that pays one creditor who is within the State and fails to pay another who is without it. And he clearly perceived that, if that great power was to be reposed at all in the Federal government, as it is, and of necessity must be, it ought to be an exclusive power. There is the only and mistaken instance in which his judgment on a constitutional question did not become the law of the land.

And therefore it is to be said, without injustice to his associates, and without injustice to those great lawyers to whom I have alluded, and whose genius and labors were contributed to build up this system of law, that the value and the credit of it, the authorship and creation of it, are principally due to Marshall. And I believe it will be seen in future history, that as Washington brought this people through the Revolution to a period when they were able to have a Constitution of their own, so Marshall carried the Constitution through that experimental period which settled the question whether it should stand or fall. If this country has profited, and if through this country the world has profited, by the raising of an instrument, doubtless the most important since Magna Charta, couched necessarily and wisely to a large degree in generalities, into the beneficent government under which we live, it is more largely due to Chief Justice Marshall than to any other man, or perhaps to all other men, who ever had anything to do with it. That is my proposition. Of course, if the Revolution had failed, it is not probable we should always have continued to be colonies of Great Britain. Some other leader, in some other rebellion, might have carried