the establishment of peace, sought to proceed in the State courts, they found the treaty unavailing, since those tribunals held themselves still to be bound by the local statutes. In order to remove this difficulty, as well as to provide a rule for the future, there was inserted in the Constitution of the United States the clause declaring that treaties then made, or which should be made, under the authority of the United States, should be the supreme law of the land, binding on the judges in every State, anything in the Constitution or laws of any State to the contrary notwithstanding. On the strength of this provision the question of the debts was raised again, and was finally brought before the Supreme Court in the case of Ware v. Hylton. Marshall appeared for the State of Virginia, to oppose the collection of the debt. He based his contention on two grounds: First, that by the law of nations the confiscation of private debts was justifiable; second, that as the debt had, by the law of Virginia, been extinguished by its payment into the State treasury, and had thus ceased to be due, the stipulation of the treaty was inapplicable, since there could be no creditor without a debtor.

It is not strange that this argument was unsuccessful. While it doubtless was the best that the cause admitted, it may serve to illustrate the right of the suitor to have his case, no matter how weak it may be, fully and fairly presented for adjudication. On the question of the right of confiscation the judges differed, one holding that such a right existed, while another denied it, two doubted, and the fifth was silent. But as to the operation of the treaty, all but one agreed that it restored to the original creditor his right to sue, without regard to the validity or the invalidity of the Virginia statute.

When Marshall took his seat upon the bench, the Supreme Court, since its organization in 1790, had rendered only six decisions involving constitutional questions. From 1801 to 1835, in the thirty-four years during which he presided in that great tribunal, sixty-two such decisions were given, and in thirty-six of these the opinion of the court was written by Marshall. In the remaining twentysix the preparation of the opinions was distributed among his associates, who numbered five before 1808, and after that date six. During the whole period of his service his dissenting opinions numbered eight, only one of which involved a constitutional question. Nor was the supremacy which this record indicates confined to questions of constitutional law. The reports of the court during Marshall's tenure fill thirty volumes, containing 1,215 cases. In ninety-four of these no opinions were filed, while fifteen were decided "by the court." In the remaining 1,106 cases the opinion of the court was delivered by Marshall in 519, or nearly one-half.1

No opportunity is afforded by the present occasion for an exposition of the questions of constitutional law decided by the Supreme Court during Marshall's term of service. Such an exposition would in reality involve a comprehensive examination of the foundations on which our constitutional system has been reared; and it is impracticable to do more than refer in the briefest terms to some of the leading cases. In one of his earliest opinions he established the vital principle that an act of Congress repugnant to the Constitution is void. He defined the

1 Hitchcock, The Development of the Constitution as influenced by Chief Justice Marshall. (1889.)

2 Marbury v. Madison, 1 Cranch, 137.

law of treason.' He declared the invalidity of State laws impairing the obligations of contracts, while he affirmed the right of the States to pass insolvency laws, in the absence of the exercise by Congress of its power "to establish uniform laws on the subject of bankruptcies." He upheld the supremacy of the judgments of the courts of the United States as against inconsistent State laws. He maintained the authority of Congress to make all laws necessary and proper to carry into effect the powers vested by the Constitution in the government of the United States, and, in the exercise of powers fairly implied, to incorporate a bank, free from the taxation, control or obstruction of any State. He affirmed that the power of Congress to regulate commerce embraced all the various forms of intercourse, including navigation, and that "wherever commerce among the States goes, the judicial power of the United States goes to protect it from invasion by State legislatures."7

5

To the rule that Marshall's great constitutional opinions continue to be received as authority, perhaps the chief exception is that delivered in the Dartmouth College case, the particular point of which that acts of incorporation constitute contracts which the State legislatures

1 Ex parte Bollman & Swartwout, 4 Cranch, 75; United States v. Aaron Burr, Ibid., App.

2 Fletcher v. Peck, 6 Cranch, 87; Dartmouth College v. Woodward, 4 Wheat. 518.

3 Sturges v. Crowninshield, 4 Wheat. 122.

4 United States v. Peters, 5 Cranch, 136; Cohens v. Virginia, 6 Wheat. 264.

United States v. Fisher, 2 Cranch, 358.

McCulloch v. Maryland, 4 Wheat. 316, 421.

7Gibbons v. Ogden, 9 Wheat. 1; Brown v. Maryland, 12 Wheat. 419. 8 Dartmouth College v. Woodward, 4 Wheat. 518.

can neither alter nor revoke - has been greatly limited by later decisions, while its effect has been generally obviated by express reservations of the right of amendment and repeal. With rare exceptions, however, his constitutional opinions not only remain unshaken, but continue to form the very warp and woof of the law, and "can scarcely perish but with the memory of the Constitution itself." Nor should we, in estimating his achievements, lose sight of the almost uncontested ascendency which he exercised, in matters of constitutional law, over the members of the tribunal in which he presided, in spite of what might have been supposed to be their predilec tions. When constitutional questions trench, as they often do, on the domain of statesmanship, it is natural, especially where precedents are lacking, that judges should divide upon them in accordance with the views of government maintained by the political parties with which they previously acted; and, after 1811, a majority of Marshall's associates on the bench held their appointment from administrations of the party opposed to that to which he had belonged. This circumstance, however, does not appear to have disturbed the consistent and harmonious development of the system to which he was devoted; and it was in the second half of his term of service that many of the most important cases — such as McCulloch v. Maryland, Cohens v. Virginia, and Gibbons v. Ogden, in which he asserted the powers of the National Government- were decided.

But it is not alone upon his decisions on questions of constitutional law that Marshall's fame as a judge rests. So marked was his supremacy in that domain, and so profoundly did his opinions affect the course of the National development, that we are accustomed to think of him in

the United States only as the expounder of the Constitution. This is not, however, his sole title to fame. He is known in other lands as the author of important opinions on questions which deeply concern the welfare and intercourse of all nations. In the treatment of questions of international law he exhibited the same traits of mind, the same breadth and originality of thought, the same power in discovering and the same certainty in applying fundamental principles that distinguished him in the realm of constitutional discussions; and it was his lot in more than one case to blaze the way in the establishment of rules of international conduct. During the period of his judicial service, decisions were rendered by the Supreme Court in one hundred and ninety-five cases involving questions of international law, or in some way affecting international relations. In eighty of these cases the opinion of the court was delivered by Marshall; in thirty-seven by Mr. Justice Story; in twenty-eight, by Mr. Justice Johnson; in nineteen, by Mr. Justice Washington; in fourteen, by Mr. Justice Livingston; in five, by Mr. Justice Thompson; and in one each, by Justices Baldwin, Cushing and Duvall. In eight the decision was rendered "by the court." In five cases Marshall dissented. As an evidence of the respect paid to his opinions by the publicists, the fact may be pointed out that Wheaton, in the first edition of his Elements of International Law, makes one hundred and fifty judicial citations, of which one hundred and five are English and forty-five American, the latter being mostly Marshall's. In the last edition he makes two hundred and fourteen similar citations, of which one hundred and thirty-five are English and seventy-nine American, the latter being largely Marshall's; and it is proper to add that one of the