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the paramount authority controlling any legislative act repugnant to it, or the legislature can alter, amend or modify the effect of a constitutional provision, by an ordinary act. Between these two positions there is no middle ground. If the first be true, then a legislative act contrary to, not authorized by, the Constitution, is, ipso facto, null and void. If the other be true, written Constitutions are absurd attempts to limit a power in its own nature illimitable. He then went into a discussion of the relation between the powers of the executive and its relation to the court. He shows the complete independence of the executive in all matters within its discretion, but he vindicates the authority of the court in controlling its ministerial functions. He recognizes, however, that the Constitution limits and controls the powers of the Supreme Court, and dismisses the case because it does not come within its jurisdiction. The principles announced in Marbury v. Madison were applied and illustrated in many of his subsequent decisions. By them he gave life and vigor to the Constitution, elucidated many of its provisions and put them into practical operation.
Among the great judges who adorn the annals of English and American jurisprudence, there stand forth conspicuously four names, to whom it was the fortune to inaugurate as it were a new era in the law, to broaden its principles and to establish precedents which have controlled and directed the principles upon which the law is administered. Each of them enjoyed long tenure of office, and each in his day commanded the reverence and secured the applause of the profession. Hardwicke, building upon the improvements in the administration of equity, introduced by Nottingham, raised this branch of
the law into a science, and firmly established the wholesome and valuable jurisdiction of the Court of Chancery. Mansfield, bringing to the administration of the King's Bench his cultivated intellect and profound learning, and aided by knowledge and experience in the civil law, rescued the common law from the narrow technicalities so dear to the serjeants, and laid broad and deep the principles of the law merchant. Sir William Scott, Lord Stowell, raised the ecclesiastical and admiralty courts above the petty questions, crude methods and narrow principles which before his time characterized them, and created a body of admiralty and ecclesiastical law in decisions, whose charm and beauty of diction are still the admiration and envy and despair of the profession. Marshall excelled each of these in his massive intellect and convincing logic, and created a body of constitutional law, in wbich he had no other guide than bis own intellect, and for which the precedents were to be created by himself.
Not only did the Chief Justice demonstrate his ability in the appellate court; he was equally eminent on the circuit. It is a mistake to suppose that higher qualifications are necessary for the appeal bench than for the circuit bench. A judge on circuit must be learned, quick of apprehension, equable of mind, with clear common sense. He is constantly called upon to meet issues and to decide questions of which he has had no intimation. In the opening of a cause, in the examination of witnesses, in the requests for instructions, in the arguments of counsel, these questions are sprung not only on him but on the lawyers engaged in the case. They are presented with all the ingenious plausibility characteristic of the profession. They must be met and decided at once after argument,
often necessarily imperfect, and must be solved by the judge sitting alone, almost always unaided by authorities.
In an appellate court, counsel appear with full oppor. tunity of preparing their own case, fortified by authorities, provided by an endless number of digests, bearing more or less upon the case, and advised of the main points of their adversary. Both sides are usually exbaustively discussed. The court have full time for conference and consideration, and, the conclusion having been reached by an interchange of views, the opinion is prepared in the solitude of a library.
When all the disadvantages are considered under which the circuit judges labor, it is a matter on which we at our bar should congratulate ourselves that their decisions at nisi prius are so often affirmed.
At nisi prius the Chief Justice left nothing to be desired. By an excellent provision of the Federal law, the Justices of the Supreme Court are required to go upon circuit and thus practically administer the law. He held these courts in North Carolina and Virginia. Often in turning over the dusty files of decided cases in these courts, one comes upon a reported case heard by him, in which he displays his wonted power. The most famous of his circuit cases is the great trial of the United States v. Burr. The distinguished prisoner was prosecuted with all the power of the administration, stimulated not only by the serious character of the offense charged, but also by personal and political hostility. His name was execrated by a large and influential portion of the people, who were prepared to believe him guilty, not only of the treason charged, but of any or of all crimes in the decalogue. His politics and his principles differed, toto coelo, from those of the judge before whom he was tried.
The whole country looked on, anticipating, perhaps hoping for, but one result of the trial. Surrounded by these circumstances, during a long and exciting trial, in which were used all the learning, eloquence, ability and ingenuity of a most able bar prosecuting and defending, in which the accused himself took no unimportant part, the Chief Justice, with steady hand, kept the scales of justice evenly balanced, and, in the concurrent opinion of the prosecution and the defense, swerved ne'er a hairbreadth from the true line of justice. In the conclusion of his charge to the jury, he showed his appreciation of his position, and demonstrated the courage with which he met it. He ends with these words, which should be impressed on the mind of every judge:
" That this court dares not usurp power, is most true. That this court dares not shrink from its duty, is not less true. No man is desirous of placing himself in a disagreeable situation. No man is desirous of becoming the peculiar subject of calumny. No man, might he let the bitter cup pass from him without self-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."
Of his personal qualities we have not time to speak. Modest and unassuming, though full of dignity, amiable and affectionate; at all times easy of approach; of the most simple character in manners and dress, he was venerated, loved and honored in the city of Richmond, where he had made his home. His name and his memory are still fragrant in that historic city. Nor was this veneration
and love for him confined to this city or to the State of Virginia. The whole Union appreciated and honored their Chief Justice.
When, at the end of his long career, he laid down his office with his life, the entire land mourned him, and the Bar everywhere put on enduring record their estimate of the man. The resolutions adopted in South Carolina at a meeting of the Bar have been honored by the Supreme Court with a place among the official reports. They appear in 10th Peters and can well bear repetition here:
“Death has removed from the sphere of his duties John Marshall, the venerable Chief Justice of the United States, a magistrate endeared to his countrymen by a pure and spotless character; distinguished by pre-eminent abilities and illustrious by his long and varied public services. The sympathy of a whole people attends the funeral of a public benefactor, whose life conferred honor on his country. But the law and legal profession, of which he was the head and the ornament, are more than any others interested and affected by this solemn event. His high judicial station was equally above envy and reproach, and the honor of official dignity was enhanced and ennobled by his intrinsic worth and personal merit. Though his authority as Chief Justice of the United States was protracted beyond the ordinary term of public life, no man dared to covet his place or express a wish to see it filled by another. Even the spirit of party respected the unsullied purity of the judge, and the fame of the Chief Justice has justified the wisdom of the Constitution and reconciled the jealousy of freedom to the independence of the judiciary.”
Brethren of the profession of the law, we live in a