a writ of error to the court of New York in Gibbons v. Ogden, 9 Wheaton, 1. [After an extended reference to Marshall's opinion in this case the orator proceeded:] Did time permit, I would be glad to give extracts from the opinion of the Chief Justice in Sturges v. Crowninshield, 4 Wheaton, 122, where the power of the State to pass a bankrupt law was decided, and Osborn v. United States Bank, 9 Wheaton, 738, where it was held that the United States court might in an equity suit, by injunction, restrain public officers of a State from destroying a franchise of the bank under a void law of the State, notwithstanding the State was the real party in interest; from Handly's Lessee v. Anthony, 5 Wheaton, 374, where the jurisdiction of Virginia and Kentucky over the Ohio river was settled; Weston v. Charleston, 2 Peters, 449, where it was held that neither the State nor any political subdivision of it might levy a tax upon the bonds of the United States; Schooner Exchange v. McFaddon et al., 7 Cranch, 116, where the question was presented of the right of the courts of this country to interfere with a public armed vessel of a foreign nation upon the claim that the vessel belonged to them and their title had been improperly divested; Brown et al. v. Maryland, 12 Wheaton, 419, where the question was presented of the right of a State to levy a tax upon importations while remaining in the original packages; Sexton v. Wheaton, 8 Wheaton, 229, where the relations between husband and wife were considered upon the charge that the wife had participated in the fraud upon her husband's creditors; Loughborough v. Blake, 5 Wheaton, 317, where it was held that Congress had plenary power to levy taxes within the District of Columbia; Cherokee Nation v. Georgia, 5 Peters, 1, where the doors of the United States courts were slammed in the face of the Indian; Craig et al. v. Missouri, 4 Peters, 410, where it was held that certificates contemplated to be circulated as money, issued by Missouri, were unconstitutional; American Insurance Co. v. Canter, 1 Peters, 511, where the court passed upon the power of Congress to legislate in the Territory of Florida, a matter of great interest at the present moment in these days of enlarged boundaries, enlarged responsibilities and embarrassing complications; Bank of the United States v. Planters' Bank of Georgia, 9 Wheaton, 904, where the court held that the fact that a State was the owner of stock in a corporation did not deprive the United States courts of jurisdiction, and that when a State accepted the position of a stockholder it abdicated its sovereignty; In re The Antelope, 10 Wheaton, 66, where the courts considered. and decided the morals and legal and international status of the slave trade; Johnson v. McIntosh, 8 Wheaton, 543, where the court held that a title to lands derived solely from a grant made by an Indian tribe could not be recognized by the courts of the United States; Worcester v. Georgia, 6 Peters, 515, where the court held that the acts of the State of Georgia, punishing a missionary for preaching to the Indians, with the permission of the President of the United States and the consent of the Cherokee nation, were unconstitutional, and the prisoner was ordered discharged; the great case of Dartmouth College v. Woodward, 4 Wheaton, 518, cited, perhaps, more frequently than any other case that has appeared in the law books, where the sacredness of the rights of property devoted to eleemosynary and educational purposes was placed beyond the limits of the legislature of a State; but I am admonished that life is short, although this paper is long, and I feel that, while your charity would be great, it is not like that described by Paul, in that, while "it suffers long and is kind, it never faileth," and I must leave those cases, household words to every lawyer, to the curiosity of those who have a desire to investigate them. John Marshall's brain and pen were as fertile and productive as were the loins of his father. Taking his seat upon the bench in 1801, he immediately assumed the reins and held them with an unfaltering hand until by death they fell from his nerveless grasp. During the six volumes of reports following his accession to the bench, from 1 to 7 Cranch, from 1801 to 1811, with scarcely an exception, and those apparently consisting of cases where he had been of counsel before his appointment, or his relations were such that he ought not to participate in the decision, every opinion was prepared and handed down by him. Upon the accession of Mr. Justice Story to the Supreme Bench in 1811, a new order seems to have obtained; thenceforth the other justices participated in the preparation and filing of separate opinions, but the great constitutional questions still fell to the Chief Justice. Story, with his wide reading and great learning in the law, not only of his own tongue and land, but of other lands and tongues, enforced and enriched his opinions by copious references to and quotations from the authorities, but the Chief Justice seldom broke the current of his opinion with references to authorities; an occasional reference to Blackstone, an allusion to the principle established in a particular case, an occasional analysis of authorities supposed to be adverse to or in support of the principle that his own great court was announcing, was as far as he seemed to think it was necessary to go. Law books were then rare, reports infrequent. In these later days, when the great publishing houses, not to speak of the forty-five States of the Union, are grinding out a fresh grist of new reports every few minutes; when law writers, with abundant law students in their offices to search out authorities with which to pad a new publication on the law of ; when a goodly por tion of a lawyer's time is spent in explaining that he will, perforce, endeavor to get along without the assistance of the invaluable publication that is urged upon him, the average practicing lawyer sighs for some incendiary Mohammedan, who should burn up all the law books — not kill all the lawyers — and give us a fresh and a fair start in the making of jurisprudence. Oh, for the halcyon days of John Marshall, when a legal question might be argued upon principle and decided upon reason, without reference to whether the Supreme Court of Idaho, or of Florida, has given an opinion upon the question! The literary field of a judge is somewhat circumscribed. Flights of fancy and imagination; soaring in the atmosphere and seeking the sun, not the sunlight; even the delicate exercise and play of humor, except in rare and occasional instances, constitute fields that are forbidden. to him in the nature of things. Who would tolerate the spectacle of Judge Dowling' reading an opinion from the Supreme Bench at its semi-annual open session, referring to the breaking of the day that "Night's candles are burnt out and jocund day Stands tiptoe on the misty mountain tops.” Or of Judge Monks,' after attending one of the many functions in connection with the dedication of the Co 1 Judges of the Supreme Court of Indiana. lumbia Club, excusing the quality of his work by saying: "No sleep till morn, while youth and pleasure meet Or of Judge Baker' opening a dissenting opinion with the expression: "Once more unto the breach, dear friends, once more." When Mr. Justice Harlan, or some other learned justice, shall announce from his high court the constitutional limitations and the powers of Congress over conquered and ceded territory in the Porto Rican cases, should he feel moved to emphasize and illustrate the added power and territory of this United States by speaking of it as a nation "whose morning drumbeat, following the sun and keeping company with the hours, circles the earth with one continuous and unbroken strain of the 'Star Spangled Banner,"" the very foundations of the Capitol would rock and sway under it, and the listeners would marvel at the strange and extraordinary spirit that had come over the Supreme Court of the United States and wonder if it were worth while to extend the territory and increase the power of the government at the expense of shocking all the traditions as to the judiciary and its methods of clothing its ideas with language. The qualities of thought and language that are required from a judge are those of clearness, lucidity, logical arrangement, force, fairness and honesty, and "whatsoever is more than these cometh of evil." While this is true, and while it is also true that Marshall never violated the traditions or went counter to the recognized literary limits as applied to the courts, his language was so chaste, so clear, so appropriate, so convincing, that his opinions. 1Judge of the Supreme Court of Indiana. |