of bank bills was not in violation of this provision of the Constitution. (Briscoe v. Bank, 11 Pet. 257.)

After serving upon that bench and dominating its opinions for more than a quarter of a century, Marshall wrote his first dissenting opinion in Ogden v. Saunders (in 1827), as to the effect of an insolvent law made after the contract, and which I shall not have time to explain. Meantime the natural changes which had been wrought in the complexion of the Supreme Court began to be made manifest; and, though he remained a long time in his full vigor of mind and body, he had passed the zenith of his powers.

When Marshall first took his place he found a majority of his associates holding different views from him upon the character of the powers granted to the Federal Government, as he had found a majority against him in the Virginia Convention upon the question of the ratification of the Constitution, and as he had found in the House of Representatives on the delivery up of Jonathan Robbins to the British government, by whose authority he was promptly hanged. But he seems always to have convinced or silenced or overborne his opponents. In all the lives and sketches of him the story is told of the excited state of public feeling against the President for the giving up of Robbins, of the debate in the House, of the appearance and argument of Marshall, of Gallatin, who was to reply to him, putting down his notes and giving up the task, admitting that the argument was unanswerable. It seems to have been the strength of his logic, the perfection of his reasoning, the cogency of his expression, which brought conviction or confusion to his adversaries.

In one month after he took his seat as Chief Justice, Jefferson succeeded to the Presidency, and on all these vital questions they were at daggers' points.

The August term of the Supreme Court was abolished, it was said, to put off an early decision in the case of Marbury v. Madison. You will see that it was not made until 1803, and you will also see that the elaborate opinion in favor of Marbury was what is called an obiter dictum, because the court admitted that it had no original jurisdiction to enforce it.

It was not long before he had an opportunity to hold the commander of a ship-of-war answerable in damages to a person injured by him in obedience to the command of the President, in relation to which these pleasantries were indulged in on either side. The Chief Justice, in his opinion, sententiously remarked: "Instructions". (referring to the President's orders as Commander-inChief) "not warranted by law cannot legalize a trespass."

Selecting one or two of the milder expressions of Jefferson concerning the Chief Justice and his court, "The great object of my fear is Federal judiciary. That body, like gravity, ever acting with noiseless foot and unalarming advance, gaining ground step by step, and, holding what it gains, is engulfing insidiously the special governments into the jaws of that which feeds them." If you wish to pursue this subject, let me refer you to the last number of The American Law Review, for January and February, 1901, for Jefferson's opinions of Marshall and his court, which only came to me on Saturday night.

Let me recall to you one other instance of conflict between the executive and the judiciary.

The State of Georgia claimed jurisdiction over the

Cherokee Indians and the territory occupied by them in that State, and the State had the sympathy of that old Indian fighter, President Jackson. Under the statute of Georgia, one Worcester, a missionary, had been convicted of preaching to the Indians, and had been imprisoned. The Supreme Court held the act unconstitutional, the Cherokee nation a distinct community, under the protection of the United States, and not subject to the laws of Georgia. But, like Marbury v. Madison, this was a case in which the Supreme Court had no original jurisdiction to issue an injunction, and, according to Mr. Jefferson, was only sitting as a moot court when it made its decision. "The State of Georgia," says Carson (History of the Supreme Court), "treated this decision with defiance; the missionary was still imprisoned in the penitentiary, doomed to hard labor, the Governor declaring he would rather hang him than liberate him under the mandate of the Supreme Court." The Federal Government gave no hope of interfering in the controversy. On the contrary Jackson is reported to have said: "John Marshall has made the decision; now let him execute it." And the Georgia authorities kept him until "cooling-time" came, in about a year and a half, and then let him go where he would.

But I only undertook to tell you of Marshall's influence upon the construction of the Constitution as to the strength of the Federal Government. In the years when he was gathering strength in the hill country of Virginia, the son of a country gentleman and a Virginian matron of gentle blood; attending the country schools or studying under a private tutor, or with his father reading the old books of a well-selected library, taking up the study of the law

at eighteen, and, like many another boy in the time yet to come, laying it aside to put on his armor and fight for independence; enduring hardship, by flood and field; growing in wisdom, distinguished as a soldier, taking a one year's course of law at William and Mary's; coming to the bar and speedily to the front; in the legislature, the constitutional convention, as a member of Congress, a skilled diplomat, a member of the cabinet, Secretary of State. This was the preparation which brought him to the Chief Justiceship at forty-five; and this training it was that enabled him in the succeeding thirty-four years to put such an imprint upon the Constitution, and so weld it and bind it around the Union of the States and the powers of the Federal Government that when the supreme test came it was found that his work had been perfected, and that this Union of States is one "large empire."

And why not one? It is bound together more securely than the States of the German Empire. They have no Supreme Court like ours, and their system of local selfgovernment is stronger than ours. And the same may be said of the British Empire. But this Constitution of ours, while it binds us together in an indestructible union of indestructible States, as was said by Chief Justice Chase in the case of Texas v. White, gathering up the decisions of Marshall and their re-enforcement by the thirteenth amendment; yet, under those same teachings, all the powers remain to the States of local government in each department so long as the same is not brought in conflict. with the so-called granted powers belonging to the Federal head.

It is upon these opinions of Marshall that all the granted powers are liberally construed. No great question such as those at this time before the Supreme Court (in the

Insular Cases) is ever determined without liberal quotations from the opinions of Marshall, and all conclusions as to powers and sovereignties and Federal strength are founded upon them. There may not be anything so frightful in the idea of such imperialism. The Constitution is what it is construed to be, as long as the people submit to the construction. There might be some point where it should be incumbent upon one people in the course of human events to dissolve the political ties which bind it to another; but with us the causes of physical division have passed away, the power and glory of this nation now depends upon its unity; its expansion by acquisition, by purchase or by consent, has steadily proceeded until now. The argument of unconstitutionality has been worn threadbare, but still goes on. It is now a question of honor and justice and right and humanity. How far shall it go? Shall other aspirations, after freedom from foreign bondage, be swallowed up in our freedom? Shall the blessings of liberty and free institutions be forced upon unwilling peoples? Shall bruised reeds be broken and smoking flax be quenched in the name of humanity and freedom and civilization? These constitutional questions now before the courts are not as to the power but as to the effect of conquest and expansion. When does the newly-acquired territory become a part of the United States? May it be, as we were in the times of reconstruction, a part of the government for some purposes and a conquered province for others? These questions are now in the bosoms of "the living oracles," the Justices of the Supreme Court.

I hope it is not necessary for me to say that in trying to point out to you the influence of this great judge in fixing in the minds of a majority of the people these prin