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 countrymen— the 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 do— to 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 law, 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 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 permanent 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 had not been successful-raised it, I say, from a doubtful 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 countryto 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

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