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February following, just a century ago, Marshall quietly, and in an unceremonious manner, took the oath of bis new office, and entered upon his judicial duties at the first session of the court held at Washington, unconscious of the great importance of the event to his countrymen in the centuries to follow. Before this appointment, he had been offered and declined the offices of AttorneyGeneral, Associate Justice, Secretary of War and Minister to France. His predecessors in the great office of Chief Justice were Ellsworth, Rutledge and Jay, in the order named. At the time he was made Chief Justice he was in the prime of life, being only forty-five. Some criticism has been made of his conduct, after his appointment to the Supreme Court, in remaining temporarily in Adams's cabinet and industriously assisting him in making new appointments to Federal offices that should have been left to Jefferson's incoming administration, especially in view of Jefferson's assurance that Federalists would not be removed or superseded without good and sufficient cause. It is, however, but just to the memory of Marshall to say that the facts upon which this criticism rests are disputed.
The appointment of Marshall as Chief Justice was one of the dying efforts of the Federal party to perpetuate its loose construction principles; but it was not without wholesome effect, as subsequent events in the Supreme Court, under Marshall's leadership, proved. It gave the judicial department of the Federal Government a Federalist or free movement that has finally molded the Constitution into its present acceptable form.
In February, 1801, near the end of the VIIth Congress, the Federalists, to further intrench themselves in the judicial department, passed an act creating new Federal
courts, which gave President Adams the appointment of sixteen new judges, whose commissions Adams made out and delivered just before the expiration of his term. These appointments were by the anti-Federalists derisively called the “Midnight Judges.”
Jefferson did not like Marshall either politically or personally, but, recognizing bis great ability, invited him to remain in his Cabinet until his successor should be selected; and at the same time denounced the appointment on March 3d of the midnight judges and other officials, by President Adams, without any censure of Marshall, who was said by some to have been employed in the scheme of filling all vacant offices with Federalists at the last moment of Adams's administration. Upon his elevation to the bench the degree of LL. D. was conferred upon him by Princeton College.
Marshall's appointment to the position of Chief Justice was the beginning of a new era in the history of government and constitutional law. No government had ever before been established by the people concerned, in which the sovereign powers were divided into three equal and co-ordinate departments — legislative, judicial, and executive; and it remained to be seen whether this distribution and balancing of powers would lead to harmony or confusion; whether the government so established would be perpetuated in order and peace or speedily dissolve and end in anarchy and war, and be succeeded by a stronger form of government with the sovereign powers confined to fewer hands, after European models. Virgin America was the place and Marshall's day the time for this great trial in the experiment of republican institutions, based upon the equal rights of all men before the law.
The force and effect of the judicial department on the future of the government was yet to be determined; whether it was to play an obsequious or inferior part in the scheme under the Constitution, or take and keep its high rank as one of the three equal powers of government, was to be settled; and very much at the start depended upon the composition and complexion of the Supreme Court, whose function was to declare the law relating to differences between States, and between citizens of different States, and as to treaties, acts of Congress, and the powers of the Executive under the Constitution.
Before the adoption of the Constitution, no court in the civilized world had ever been possessed of such vast jurisdiction and authority. The power of the judicial department of the government to define the limits of the fundamental written law was a novelty in government which the rest of the civilized world looked upon with wonder and amazement, and with the expectation of its speedy failure, inspired by the wish that it would not succeed. Marshall, therefore, as the head of the court, had an unexampled opportunity to do a great service to his country and to mankind, which his patriotism and his genius for the law enabled him to embrace and thereby enroll his name on the scroll of fame not below that of any other judge or jurist in the history of the world.
Ex-President Adams, in his old age, told Edward C. Marshall, the youngest son of the Chief Justice, that his gift of John Marshall to the people of the United States was the proudest act of his life. Marshall once speaking of himself told his son that he preferred to be Chief Justice to being President. It is to be hoped for the good of
the bench and the country that all future Chief Justices will entertain the same patriotic and noble sentiment.
He took hold of the judicial work of his court with the band of a master, and he guided it with such learning, probity and wise discrimination through all the intricate and doubtful labyrinths of the law as to elevate and keep the court, during his judicial career, on the high plane intended for it by the framers of the Constitution.
It was fortunate for the Supreme Court and for constitutional law that Marshall was a Federalist, and not in sympathy with Jefferson's strict constructionist ideas, else the former might have molded the law to suit the political views and policy of the administration of the latter, and placed the court under the domination of the Executive Department- a thing subversive of that independence requisite to the proper working of the constitutional scheme of our government.
As a judge, Marshall was not so much distinguished for his judicial learning, that is, knowledge of cases and mere book law, as for his clear comprehension of fundamental legal principles and of their appropriate application to any given case. Story, his associate on the bench, was noted for his great legal erudition and knowledge of authorities and acquaintance with books; and it is said that, in working together on a case, Marshall would not infrequently state the principles that should govern its determination and leave Story to furnish the authorities. Story once said of him, “that he readily evolved the true point of the case, even when it was manifest that he never before had caught even a glimpse of the learning upon which it depended.” He was not naturally a laborious student. He loved to work in the broad field of rea
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soning and generalization rather than in the cramped and narrow bounds of mere case-law founded upon dusty precedents.
The learned Pinkney of Maryland, after listening to the reading of several of Marshall's opinions, said: “He was born to be a Chief Justice in any country in which he lived." It has been said of him by another that he “was a judge solicitous to hear arguments and reluctant to decide cases without them.” How unlike some laterday judges, who seem to imagine that they cannot be informed or instructed by the argument of counsel, and listen to it as though it were a thing to be tolerated, but not in the least degree to be encouraged.
Marshall had the gentleness and diffidence that marks the truly great mind. It has been said that he never made an enemy. He presided over the court during the administrations of John Adams, Thomas Jefferson, James Madison, James Monroe, John Quincy Adams and Andrew Jackson - a period of thirty-four years; and his judicial labors are recorded in thirty-four vol. umes, commencing with 1st Cranch and ending with 9th Peters.
In the trial of Burr for his alleged treasonable practices in his Utopian attempt to found a Southwestern Empire, Marshall held that he was entitled to a subpæna duces tecum for President Jefferson. The propriety and legality of the Chief Justice's ruling on this point has not been universally accepted, but his decision to the effect that Burr was not technically guilty as charged, under the facts proved, has been generally received as entirely sound. While what he did seemed to imply that he was against Jefferson and for Burr, as he once was in politics, yet, as a matter of fact, he simply did with true judicial courage what he thought was right and according to law.