RICHARD OLNEY

JOHN MARSHALL

[Address by Richard Olney, lawyer, statesman, Attorney-General and afterwards Secretary of State in the second cabinet of President Cleveland (born in Oxford, Mass., September 15, 1835; -), delivered in Boston, Mass., before the Boston Bar Association, February 4, 1901, at the celebration of the centennial of the installation c the first Chief Justice of the Supreme Court of the United States. The occasion brought together a large and distinguished gathering c lawyers, representing the Bar Associations of Massachusetts.]

GENTLEMEN OF THE BAR-I have felt much hesitation about taking even a small part in these exercises. The theme is too large for treatment in short space; it mus. suffer at the hands of whoever undertakes it without a command of time and leisure which but few favored mortals possess; it has been spoken to and written of by orators, historians, and statesmen for nearly seventy years, and it is to-day freshly and elaborately dealt with throughout the Union by many of its most eminent citizens. Indeed, for present purposes, what could be more intimidating than what has been just going on in this very community; than to know that the interesting utterances to which we have just listened [address of Henry St. George Tucker, of Virginia, special guest of the Association, whose remarks immediately preceded those of Mr. Olney] only supplement a morning of official and judicial eloquence at the Court-house and an afternoon of learned dissertation at Sanders Theater? In depressing circumstances like these, I can only hope for indulgence if you find me reiterating a thrice-told tale, and can promise nothing, except to make your ordeal tolerably brief.

I wish to remark upon but three things connected with the career of John Marshall. It is not obvious what most of us are born for, nor why almost any one might as well not have been born at all. Occasionally, however, it is plain that a man is sent into the world with a particular work to perform. If the man is commonly, though not always, unconscious of his mission, his contemporaries are as a rule equally blind, and it remains for after generations to discover that a man has lived and died for whom was set an appointed task, who has attempted and achieved it, and who has made the whole course of history different from what it would have been without him.

John Marshall had a mission of that sort to whose success intellect and learning of the highest order, as well as special legal ability and training, might well nave proved inadequate. Yet-the mission being assumed the first thing I wish to note, and the wonderful thing, is that to all human appearances Marshall was meant to be denied anything like a reasonable opportunity to prepare for it. For education generally, for instance, he was indebted principally to his father, a small planter, who could have snatched but little leisure from the daily demands of an exacting calling, and presumably could not have spent all that little on the eldest of his fifteen children. The parental tuition was supplemented only by the son's attendance for a short period at a country academy and by the efforts of a couple of Scotch clergymen, each of whom successively tutored him for about a year and in that time did something to initiate him into the mysteries of Latin.

Such, briefly put, was the entire Marshall curriculum in the way of general education. It was all over before he was eighteen, when the shadow of the revolutionary struggle began to project itself over the land, and Marshall joined the Virginia militia and became immersed in military affairs. As lieutenant of militia and lieutenant and captain in the Continental army he was in active service during almost the entire war, fought at Brandywine, Germantown, and Monmouth, was half-starved and halffrozen at Valley Forge, and during that terrible winter ate his share of the Dutch apple-pies, ever since historically famous for their capacity to be thrown across a room without damage to either inside or outside.

Marshall's opportunities as a student of law were on a par with his educational opportunities generally. Though he is said to have begun his legal studies when he was eighteen, they were at once and continuously interrupted by the military pursuits which occupied him until near the close of the war. The only exception to be noted is that, in an interval between the expiration of one military commission and the issuance of another, he attended a course of law lectures by Chancellor Wythe of William and Mary College.

Meagre as the knowledge and training thus acquired would seem to be, they sufficed to procure him his license, and in 1780 or 1781 he began to practise. In view of what he subsequently became and achieved, it would be a natural supposition that during the next twenty years he must have been exclusively devoted to his profession and by the incessant and uninterrupted study and application of legal principles must have made up for the deprivations of earlier years. Nothing could be further from the truth. During those twenty years he was almost constantly in public employment, and in public employment of an exciting and engrossing nature.

In this period arose and were settled the novel and difficult questions following in the wake of the War of Independence, questions of vital moment to each State as well as to the country at large. Marshall was in the thick of every discussion and every struggle. He was a member of the Virginia Assembly; an Executive Councillor; general of militia; delegate to the State convention which adopted the Federal Constitution; member of Congress; envoy to France; and when he was appointed Chief Justice at the end of January, 1801, he was Secretary of State in John Adams' cabinet and continued to act as such until after Jefferson's inauguration. During this entire period I doubt if there were any three consecutive years during which Marshall was giving his entire time. and attention to the practice of his profession.

Contrast the poverty of this preparation with the greatness of the work before him. He probably did not appreciate it himself-it is certain, I think, that his fellow citizens and contemporaries were far from appreciating it. To most of them the State was closer, dearer and vastly

more important than the nation-by all of them the significance of the place of the judiciary in the new Government was but dimly, if at all, perceived-while to the world. at large the judiciary of a new nation of thirteen small States strung along the North Atlantic seaboard, comprising a population of some 4,000,000 souls, necessarily seemed a tribunal of the smallest possible account. Today the "American Empire," as Marshall himself was the first to call it, with its immense territory and its 75,000,000 of people, is a negligible factor nowhere on earth, and its national Supreme Court ranks as the most exalted and potent judicial tribunal that human skill has yet organized.

But the work Marshall was destined to undertake can be estimated only by considering its inherent character. All minor features being disregarded, there are two of capital importance. In the first place, here was a ship of state just launched which was to be run rigidly by chartby sailing directions laid down in advance and not to be departed from, whatever the winds or the waves or the surprises or perils of the voyage-in accordance with grants and limitations of power set forth in writing and not to be violated or ignored except at the risk and cost of revolution and civil war. The experiment thus inaugurated was unique in the history of civilized peoples and believed to be of immense consequence both to the American people and to the human race. But there were also wheels within wheels, and the experiment of government according to a written text entailed yet another, namely, that of a judicial branch designed to keep all other branches within their prescribed spheres. To that end it was not enough to make the judicial branch independent of the legislative and executive branches. It was necessary to make it the final judge not only of the powers of those other departments, but of its own powers as well.

Thus the national judiciary became the keystone of the arch supporting the new political edifice and was invested with the most absolute and far-reaching authority. Since almost all legislative and executive action can in some way be put in issue in a suit, it is an authority often involving and controlling matters of high state policy external as well as internal. At this very moment is it not

believed, indeed proclaimed in high quarters, that the question of Asiatic dependencies for the United States and incidentally of its foreign policy generally, practically hinges upon judgments of the national Supreme Court in cases requiring the exercise of its function as the final interpreter of the Constitution? What judicial tribunal in Christendom is or has ever been, directly or indirectly, the arbiter of issues of that character?

It was a national judiciary of this sort of which John Marshall became the head one hundred years ago. That he dominated his court on all constitutional questions is indubitable. That he exercised his mastery with marvelous sagacity and tact, that he manifested a profound comprehension of the principles of our constitutional government and declared them in terms unrivaled for their combination of simplicity and exactness, that he justified his judgments by reasoning impregnable in point of logic and irresistible in point of persuasiveness-has not all this been universally conceded for the two generations since his death and will it not be found to have been universally voiced to-day wherever throughout the land this centenary has been observed? "All wrong," said John Randolph of one of Marshall's opinions-" All wrong-but no man in the United States can tell why or wherein he is wrong."

If we consider the work to which he was devoted, it must be admitted to have been of as high a nature as any to which human faculties can be addressed. If we consider the manner in which the work was done, it must be admitted that anything better in the way of execution it is difficult to conceive. And if we consider both the greatness of the work and the excellence of its performance relatively to any opportunities of Marshall to duly equip himself for it, he must be admitted to be one of the exceptional characters of history seemingly foreordained to some grand achievement because fitted and adapted to it practically by natural genius alone.

If it be true-as it is, beyond cavil-that to Washington more than to any other man is due the birth of the American nation, it is equally true beyond cavil that to Marshall more than to any other man is it due that the nation has come safely through the trying ordeals of