THOMAS JENKINS SEMMES

PERSONAL CHARACTERISTICS OF THE CHIEF

JUSTICES

[Address by Thomas J. Semmes, lawyer, one time professor of Civil Law in the University of Louisiana, President of the American Bar Association 1886 (born in Georgetown, D. C., December 16, 1824; died in New Orleans, La., June 23, 1899), delivered at the Centennial celebration of the Supreme Court of the United States, at the Metropolitan Opera-House, New York City, February 4, 1890. Grover Cleveland, as Chairman of the Executive Committee, occupied the chair.]

MR. PRESIDENT:-During the century of its existence seven persons, exclusive of the present incumbent, filled the office of Chief Justice of the Supreme Court of the United States: Jay, Rutledge, Ellsworth, Marshall, Taney, Chase, and Waite. Most of these were appointed in the prime of life. Taney at fifty-nine, was the oldest; Jay resigned when he was but fifty years of age. Marshall

and Taney presided in the Court for sixty-three years— Marshall from 1801 to July, 1835, and Taney from 1836 to 1864.

Marshall was appointed by John Adams about a month before the inauguration of President Jefferson; it was said that his appointment was due to his defence in Congress of the Administration in the case of Jonathan Robbins, who claimed to be an American citizen and who had been delivered up, by order of the President, to the British Government as a deserter, and was hanged at the yard-arm of a British man-of-war. Taney was appointed by Andrew Jackson shortly before the accession of Mr. Van Buren, and it is said he was appointed because of his aid to General Jackson on the bank question, and espe

cially as a reward for the act of removing the public deposits. Marshall was a legacy left by the defeated Federalists to the victorious Republicans of that day; Taney, with the address that he had prepared for the President, was a legacy left by General Jackson to the people of the United States. Taney had been nominated by General Jackson as an Associate Justice of the Supreme Court while Marshall was Chief Justice; the Senate under the domination of party spirit indefinitely postponed the nomination, although we know from a letter addressed to Benjamin Watkins Leigh, then a Senator from Virginia, that Marshall desired the appointment of Taney to be confirmed.

These two men were born, Marshall on one side of the Potomac, in the year 1755, in Fauquier County, Virginia, and Taney on the other side of the Potomac, in the year 1777, in Calvert County, Maryland. Marshall was a member of the Protestant Episcopal Church; Taney was a devout Roman Catholic.

Marshall was assailed by the Republicans of his day because of decisions in the case of Marbury vs. Madison, and on the trial of Aaron Burr. Taney met the same fate from the Republicans of his day because of his decisions in the case of Dred Scott, and in the Merryman habeas corpus case.

The criticism of Mr. Jefferson on the opinion of Marshall in the case of Marbury vs. Madison is not altogether unfounded. The Chief Justice having reached the conclusion that the Supreme Court had no power to issue a writ of mandamus to the Secretary of State, it being an exercise of original jurisdiction not warranted by the Constitution, could have, and perhaps should have, abstained from entering upon the discussion of other questions not necessary to be decided; it is this discussion which Mr. Jefferson sarcastically called an obiter dissertation. However that may be, Marshall vindicated the opinion entertained of him by the Federalists of that day, when he held that an act of Congress repugnant to the Constitution is not law, and that it is the province and duty of the Judicial Department to say what the law is; that the Constitution is to be considered in Courts as the paramount law, and that any other principle would subvert

the foundation of all written constitutions, and would give to the legislature a practical and real omnipotence, while the Constitution professed to restrict their powers within narrow limits. Before this decision was made there had been hesitancy and halting among judges as to the power of the Court to declare an act of Congress void because of its repugnancy to the Constitution. This decision invested the Supreme Court with, or rather secured to it, a power which no Court ever before possessed; and the possession of such power has elicited from a distinguished foreigner the remark that the Court is not only a most interesting but virtually unique creation of the founders of the Constitution. Ever since the decision rendered in the case of Marbury vs. Madison, except during a paroxysm of passion, the eyes of the nation have been fixed on the Court as the guardian of the National Constitution and the harmonious regulator of inter-state relations. The Romans regarded their Prætor "as the living voice of the civil law"; the Supreme Court is in fact the living voice of the Constitution; that is to say, it voices the will of the people as expressed in the Constitution. The Court is the conscience of the people who, to restrain themselves from hasty and unjust action have placed their representatives under the restrictions of paramount law. It is the spirit and tone of the people in their best moments. It is the guarantee of the minority against the vehement impulses of the majority.

The Court also exercises veto power on State action more potent than that proposed in the convention, although much less distasteful. Its veto power is constantly exerted, not, it is true, to annul State laws, but to declare in more euphemistic language that a State statute is no law, because it is repugnant to the Constitution.

Jefferson hated Marshall, who reciprocated his dislike. During the trial of Burr, Marshall did not hesitate to issue a subpoena duces tecum to the President, requiring him to appear in Court and produce a certain letter of General Wilkinson.

The determination of Marshall to decide Burr's case. according to law, unawed by public clamor or by the denunciations of those in power, is manifested in that part of his opinion where he says: "That this Court does not

usurp power is most true. That this Court does not shirk from its duty is no less true. No man, might he let the bitter cup pass from him without reproach, would drain it to the bottom. But if he has no choice in the case, if there is no alternative presented to him but a dereliction of duty or the opprobrium of those who are denominated 'the world,' he merits the contempt as well as the indignation of his country who can hesitate which to embrace."

Marshall's sturdy conduct as a member of the commission to France in 1797 gave origin to the celebrated dinner-toast: "Millions for defence, but not a cent for tribute." Pickering, whose pen was usually dipped in gall, said: "Of the three envoys to France, the conduct of Marshall has been entirely satisfactory, and ought to be marked by the most decided approbation of the public." And Patrick Henry, his political opponent, alluding to the bearing of Marshall as one of the envoys to France, says: "His temper and disposition were always pleasant, his talents and integrity unquestioned. I love him because he felt and acted as a Republican, as an American." Chief Justice Marshall when appointed, had reached the age of forty-five. William Wirt thus describes him:

"The Chief Justice of the United States is in his person tall, meagre, emaciated; his muscles so relaxed as not only to disqualify him apparently for any vigorous exertion of body, but destroy everything like harmony in his whole appearance and demeanor, dress, attitude, gesture; sitting, standing or walking he is as far removed from the idolized graces of Lord Chesterfield as any other gentleman on earth. His head and face are small in proportion to his height; his complexion swarthy; the muscles of his face being relaxed make him appear to be fifty years of age-nor can he be much younger. His countenance has a faithful expression of good-humor and hilarity, while his black eyes, that unerring index, possess an irradiating spirit, which proclaims the imperial powers of the mind that sits enthroned within."

In this man what a legacy the dying Federalists bequeathed to the country! When Wolcott heard of the appointment, he said that, although Marshall was a man of virtue and distinguished talents, "he will think much of the State of Virginia, and is too much disposed to govern the world according to rules of logic; he will read and

expound the Constitution as if it were a penal statute, and will sometimes be embarrassed with doubts of which his friends will not see the importance."

What has been the result? To use the language of Mr. Bryce: "It is hardly an exaggeration to say that the American Constitution as it now stands, with the mass of fringing decisions that explain it, is a far more complete and finished instrument than it was when it came fire-new from the hands of the convention. It is not merely their work, but the work of the Judges, and most of all of one man-the great Chief Justice Marshall."

In 1775, when rumors were in circulation of the occurrences near Boston, Marshall, not then twenty years of age, marched to the muster-field of the militia twenty miles distant, wearing a plain blue hunting-shirt and trousers of the same material fringed with white, and a round black hat mounted with the buck's-tail for a cockade. Elected a lieutenant he, with his men, joined Patrick Henry in his march on Williamsburg. With promoted rank, he was personally engaged in the battles of Iron Hill, Brandywine, Germantown, and Monmouth, and with Washington's exhausted troops he went into winter quarters at Valley Forge, where, says Slaughter: "He was the best-tempered man I ever knew. During his sufferings nothing discouraged, nothing disturbed him. If he had only bread to eat, it was just as well; if only meat, it made no difference. If any of the officers murmured at their deprivations, he would shame them by good-natured raillery, or encourage them by his own exuberance of spirits. He was an excellent companion and idolized by the soldiers and his brother officers, whose gloomy hours were enlivened by his inexhaustible fund of anecdote."

He was with Wayne at the assault on Stony Point, and subsequently covered Major Lee's retreat after his surprise of the enemy at Powle's Hook, July 19, 1779. His military career terminated in 1781, having in the interval served under Baron Steuben, and aided in defeating Arnold's invasion of Virginia. In the year 1780, while waiting in Williamsburg for the organization of a new corps of troops, he studied law under Chancellor Wythe.

It was during the summer after the war that he walked to Philadelphia in order to be inoculated for the small