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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
pox, and on his arrival he was refused admission to one of the hotels because of his shabby appearance, long beard, and worn-out garments. Some years afterwards his rustic appearance lost him a fee. A gentleman who wished to retain a lawyer met Marshall one morning strolling through the streets of Richmond, attired in a plain linen roundabout and shorts, with hat under his arm, from which he was eating cherries; and although Marshall had been reommended to him, the careless, languid air of the young lawyer created such an unfavorable impression that the gentleman did not engage him. He was always easy, frank, friendly, and cordial in his manners, and social in his habits. He was never very studious. Although temperate in his habits lie was very fond of his bottle of Madeira at dinner. Without possessing beauty of style, melody of voice, grace of person, or charm of manner, he became a distinguished advocate and achieved rapid and extraordinary success at the bar.
Yet Mr. Wirt says: “ This extraordinary man, without the aid of fancy, without the advantages of person, voice, attitude, gesture, or any of the ornaments of an orator, deserves to be considered as one of the most eloquent men in the world, if eloquence may be said to consist in the power of seizing the attention with irresistible force, and never permitting it to elude the grasp until the hearer has received the conviction which the speaker intends. His voice is dry and hard; his attitude, in his most effective orations, is often extremely awkward; while all his gestures proceed from his right arm and consist merely in a perpendicular swing of it, from about the elevation of his head to the bar, behind which he is accustomed to stand. As to fancy, if she holds a seat in his mind at all, his gigantic genius tramples with disdain on all her flowerdecked plats and blooming parterres. How then, you will ask, how is it possible that such a man can hold the attention of an audience enchained through a speech of even ordinary length? I will tell you. He possesses one original and almost supernatural faculty: the faculty of developing a subject by a single glance of his mind, and detecting at once the very point on which every controversy depends. No matter what the question, though ten times more knotted than the gnarled oak,' the lightning of
heaven is not more rapid or more resistless than his astonishing penetration. Nor does the exercise of it seem to cause him an effort. On the contrary, it is as easy as vision. I am persuaded that his eyes do not fly over a landscape and take its various objects with more promptitude and facility, than his mind embraces and analyses the most complex subject."
Marshall married Miss Ambler, one of the colonial belles of Williamsburg, whom he courted while he was a young soldier. This union endured more than forty years. She died December 25, 1831. The tender and assiduous attention he paid to her is one of the most interesting and striking features of his domestic life. Bishop Meade says: “She was nervous in the extreme. The least noise was sometimes agony to her whole frame, and his perpetual endeavor was to keep the house and outhouses from slightest cause of distressing her, walking himself at times about the house and yard without shoes. Judge Story said: “She must have been a very extraordinary woman, and I think he is the most extraordinary man I ever saw for the depth and tenderness of his feelings.” I cannot forbear to quote in full a tribute to her memory, written by himself, December 25, 1832, and found among
“This day of joy and festivity to the whole Christian world is, to my sad heart, the anniversary of the keenest affliction which humanity can sustain. While all around is gladness, my mind dwells on the silent tomb and cherishes the remembrance of the beloved object which it contains. On December 25, 1831, it was the will of Heaven to take to itself the companion who has sweetened the choicest part of my life, has rendered toil a pleasure, has partaken of all my feelings and was enthroned in the inmost recess of my heart. Never can I cease to feel the loss and to deplore it. Grief for her is too sacred ever to be profaned on this day, which shall be, during my existence, marked by a recollection of her virtue.
“On January 3, 1783, I was united by the holiest bonds to the woman I adored. From the moment of our union to that of our separation, I never ceased to thank Heaven for this, its best gift. Not a moment passed in which I did not consider her as a blessing from which the chief happiness of my life was derived. This never-dying sentiment, originating in love, was cherished by a long and close observation of as amiable and estimable qualities as ever adorned the female