fession and in the history of our highest court, but to gather fresh strength and inspiration by studying the mind, the character and the work of one who can safely be called ideal. Since there is but little in human life. that can be truly called transcendent, it is well that we should frequently recur to exalted characters and their achievements, not only as a grateful tribute, but to establish and re-establish our own ambitions and pursuits in the paths of high endeavor.

This day's work throughout the land will surely bring us to taste that omer of manna, some portion of which in every age is carefully kept and carried into the promised land of man's progress. For the first time in the country's history, the bench and the bar of the land meet throughout its breadth, and with one mind pay highest tribute to the memory of a judge. We are not moved by the influences that give birth to fulsome eulogies, such as personal associations, the shock of recent loss, the desire of gratifying a sad community, or conventional proprieties, but the conclusions of dispassionate history have gathered us in every State, to declare that the supreme worth of John Marshall's character and work as a judge has become more and more established by the flight of every one of the hundred years since he took his place as Chief Justice of our highest national

court.

By the efforts of members of the bar, we have been brought to study a career and work that closed twothirds of a century ago, and the closer our attention has been given to this remarkable man and his work, the more heartily have we indorsed the worth and usefulness of the theme.

We may also rejoice at a further happy situation, that

events were so shaped that the chief magistracy of the nation did not pass to Jefferson in 1801 quite soon enough to lose to the State this masterly mind in this greatest field of law.

The distinguishing features of Marshall's power as a judge are seen in clear light when he is compared with Judge Story, who sat with him on the bench from 1811 till Marshall's death. Story was a lawyer of remarkable ability and profound learning. As we all know, he attained great distinction, not only as a judge, but as a lecturer on law, and as an author. In the Dartmouth College case both these judges furnished opinions, and the methods of argument and effectiveness of each are perhaps as well seen in that case as in any of the cases in which both took part. Marshall begins every important case by putting aside all confusing issues not vital to the decision. He clears the atmosphere by stating all the points that materially affect the question, getting right at the marrow. He carefully answers all the adverse arguments, and usually leaves practically nothing for a rehearing. When he closes his opinion, counsel are convinced that the case is sealed. He does not attempt to convince or rivet his conclusions by an exhaustive array of authorities, or any complete analysis of them. While he shows respect for authorities, he spends very little effort in reviewing them. Story says, "He discussed authorities as if the very minds. of the judges themselves stood disembodied before him."

His chief aim in argument is to be unanswerably strong, wasting no force in a display of learning, nor allowing anything not vital to his conclusions to distract or confuse. He often alludes in the beginning of his opinion to the serious, if not solemn, importance, of the questions involved, and how it would be more agreeable to be rid

of deciding them, and then he states the fearless spirit with which the bench must address itself to the matter. Thus inspired with the soul of a just, weighty, and fearless purpose, the argument moves like a compact, irresistible body of soldiers.

It is hard to mention Judge Story and bestow upon him too much honor. He was most learned in all that had been written in the field of law, and he had one of the best minds that ever adorned our bench. Yet he was never the equal of Marshall in that incisiveness and originality which could go to the bottom of new questions, little aided by the investigations of the past, and unerringly reach the true conclusions.

In the Dartmouth College case Marshall did not cite a single authority, but with them Story began and ended his opinion. He was loaded with them, so much so that he was measurably hampered in his methods of developing the discussion. Marshall lost sight of a few points that Story discussed, yet you are carried along by Marshall's methods, and your doubts go down before him. You are no better satisfied by the more lengthy opinion of Story, nor does his array of authorities have any superior persuasive force after studying Marshall's opinion. Webster said of Marshall's method in the Dartmouth College case: "He reasoned along from step to step, and, not referring to the cases, adopted the principles of them, and worked the whole into a close, connected, and very able argument." His day upon the bench was not, as some one has said, the day of his "dictatorship." If his opinions were dominant, it was not the dominance of an overmastering, tyrannical will, crushing all before it, but the prevalence rather of the highest reason, pressed home under the influence of the loftiest motives and character.

There has been but one Marshall, as there has been but one Washington.

But I promised myself that I would be brief, and I am anxious to be true to my purpose, for, in common with you, I await with expectant pleasure the exact and reliable judgment, the delightful thoughts, the wide survey, and selected treasures from Marshall's work that our orator, Judge Smith, has now brought to us. True to his uniform kindness, he has sacrificed much in yielding to our invitation. He is assured of one thing, that this bar deeply appreciates his effort, just as it has ever appreciated the honor that his association with it has conferred. My attempted brevity has also had in view the addresses of Judges Aldrich and Wallace, looked forward to with great pleasure.

If I have occupied too much time, let extenuation be found, not in these very general views, but in the charming character and life of the great Chief Justice, a life so replete with high ideals and devotion to the immortality of our Constitution, and the solidity of the Nation, that not to be absorbed with interest in him were evidence enough of one's failure rightly to use the privileges of this occasion, or of one's poverty in all those sentiments and principles that make for the best and highest.

Oration by Jeremiah Smith, of Cambridge, Mass.

Why does the legal profession throughout the land celebrate this day? Why single out one judge for such marked reverence? Why is the centennial of John Marshall's accession to the bench to be thus honored above all other days in judicial history? Is it because he played

!

a double part in our national life; because he was a statesman as well as a jurist; a Cabinet officer before he was Chief Justice? No. That reason would also apply to both his immediate successors, Taney and Chase. Is it because, in dealing with the ordinary questions of jurisprudence, he so far excelled all other judges that he belongs to a distinct order? No. So far as such labor is concerned, although Marshall stands at the head, there are other American jurists who must be put in the same class. Not to multiply instances, it is sufficient to name Parsons of Massachusetts, Kent of New York, Gibson of Pennsylvania, and Gaston of North Carolina.

The cause of Marshall's extraordinary pre-eminence is to be found in the fact that he was a pioneer, and a successful pioneer, in a new field, that of constitutional law.

When Marshall came upon the bench a great political revolution was just taking place. John Adams had been defeated for re-election by Thomas Jefferson, who was to be inaugurated a month later. The Federalists had lost not only the Presidency, but also both Houses of Congress. Few members of the victorious Democracy then supposed that there could be any check upon the power of their party and its leaders. They saw that they had a majority of the popular vote; and that they had with them the public functionaries who made appointments, as well as a majority of the legislative bodies which levied taxes. and enacted statutes. It had not occurred to many of them (except the President-elect) that there was in the United States a department of the Government which, within its sphere, was, for the time being, superior to both President and Congress. Such, however, was in in fact the position of the Supreme Court. And, by reason of the appointment of Marshall in the last months