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Address of Waller C. Caldwell.

One of the most important and most fortunate events in all American history was the appointment of John Marshall by President Adams to the position of Chief Justice of the Supreme Court of the United States, on the 31st of January, 1801.

His rare talents found their greatest opportunity for exercise and triumph in he exposition and application of the Federal Constitution. That instrument, recently born of new conditions and for new relations, was in many vital particulars unlike any other that bad ever been written. “ The creation of a national government, by the terms of a written paper, was, as yet, a bold novelty, a brilliant but perilous experiment, made alarmingly complex by the establishment of collateral semi-sovereignties in the shape of the thirteen States.” (Magruder.)

The construction of that paper was concededly the paramount responsibility of the court. It presented some of the most momentous questions that ever came before a human tribunal; and, for their wise solution, it was the marvelous power of Chief Justice Marshall on which his associates mainly relied. By their choice he prepared and delivered the great majority of the court's opinions on constitutional questions. His insight was so keen, his reasoning so cogent, his argument so persuasive, his illustration so clear, and his conclusion so irresistible, that there were but few dissents from his matured views, and fewer instances in which he, from inability to convince the other judges, himself had occasion to dissent. Though largely so, his deliverances were, however, of course, not altogether the product of his own wonderful mind. He could but have been materially aided by conference with the other distinguished members of the

court, and by the arguments of one of the ablest bars that ever practiced before any tribunal. “He was so licitous,” says Judge Story, “to hear arguments, and not to decide causes without them. And no judge ever profited more by them.”

All men agreed that the prosperity and stability of the government depended on a right construction and enforcement of the Constitution, yet there were wide divergences of opinion as to its true meaning. The warm. est and most persistent rivalry was that between the Federalists who sought a liberal construction in the interest of a stronger general government, and the antiFederalists who contended for a strict construction in the interest of greater power in the States. These conflicting views were urged with tremendous 'zeal and earnestness upon the hustings, in the press, and at the bar, each side conscientiously believing that its view was the best for the people at large. In court and out of court, Hamilton and those of his faith honestly insisted that the Constitution meant wbat they thought it should mean, and Jefferson with his followers that it meant what they thought it should mean.

The court, through the Chief Justice, said that neither a liberal nor a strict construction was allowable, but that the words of the instrument should be given their natural meaning, without extension to objects not contemplated on the one hand, and without restriction to insignificance on the other hand. (9 Wheat. 187; 12 id. 332.) However, “ he was evidently more fearful of the centrifugal than of the centripetal force in our system; and, as a consequence, generally resolved all doubts in favor of that view which gave the General Government the greater scope and strength.

The powers of the Federal Government, like those of the States, are by the Constitution vested in three coordinate departments: the legislative, the executive, and the judicial; each of which is absolutely essential to the efficiency of the others, and yet entirely independent of them in its own peculiar sphere. Judge Peck, of the Tennessee Supreme Court, said: “The legislative, the executive, and the judicial departments are three lines of equal length, balanced against each other; and the framework, forming an equilateral triangle, becomes stronger the more its parts are pressed. Like the foundation of our religion, the trinity, it is the key on which the whole arch rests.” (2 Yerg. 611.)

In the construction of the Federal and State Constitutions, however, an important and ever-to-be-observed distinction is, that the Federal Government has only such powers as were delegated to it by the States, and the latter have all power not so surrendered. The Federal Government can rightly do only such things as are permitted by its Constitution; while the States can do everything not forbidden by that instrument or their own Constitution.

Though this distinction was readily recognized from the first, the lines of demarcation between delegated and reserved powers, and the limits within which the Federal Government might constitutionally act, were often very difficult of location and definition. This difficulty produced controversies innumerable, which were finally adjudged by Chief Justice Marshall and his associates on the bench.

There was in those times much jealousy between the different departments of the government as to their respective functions, and as to the power of one to question

another's action upon constitutional grounds or otherwise. This also gave rise to disputes involving great problems for ultimate solution by that court.

The subsequent development of this government into the best one on the face of the earth was due in large measure to the calm, fair, just and wise manner in which that tribunal, principally through its distinguished head, discharged those grave and onerous responsibilities.

The gravity and magnitude of some of the more important questions presented to that court can best be impressed by a brief reference to a few of the cases in which they arose.

The learned orator here reviews and comments on the cases of Marbury v. Madison, the Dartmouth College Case, McCulloch v. Maryland, and on the trial of Burr for high treason, and concludes with an interesting sketch of Marshall's private life and character.


At the annual meeting of the Ohio State Bar Association, July, 1900, it was voted to hold a special meeting of the association in Columbus on February 4, 1901, appropriately to observe Marshall Day. John A. Shauck, Chief Justice of the Supreme Court of the State, was selected to deliver the oration. An executive committee arranged the details. The place selected for the address and proceedings on Marshall Day was the auditorium of the Board of Trade in Columbus. The address was followed in the evening by a banquet at the Neil House, at which James H. Hoyt, of Cleveland, presided. Sentiments were responded to as follows: “Judicial Independence,” by William R. Day, formerly Secretary of State of the United States and now judge of the United States Circuit Court of Appeals; “Ohio's Place in the Supreme Court of the United States,” by W.Z. Davis, of the Ohio Supreme Court; “The Part of the Bar with the Work and History of the Supreme Court of the United States," by Judson Harmon, formerly Attorney-General of the United States; “ Trials of American Lawyers,” by Thomas E. Powell, of the Columbus bar; “The Ordinance of 1787,” by His Excellency, Governor Nash; and “ The Bench as it seems to Me,” by Clarence Brown, of the Toledo bar. Remarks were also made by Edward Colston, of Cincinnati, a grandnephew of Chief Justice Marshall."

1 The proceedings at Columbus, including the main address and responses so far as reported, were published at length in the Weekly Law Bulletin and Ohio Law Journal, vol. 45, No. 8, February 25, 1901.

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