The unanswerable logic of Marshall's arguments gradually overcame all opposition, and although it was years before full acquiescence was accorded the decisions. of the Supreme Court, active hostility and forcible resistance to its mandates gradually melted away. The encroachments of the States upon the National domain have not yet ceased, and they probably will never cease. Within our own generation we have seen State legislatures attempting to control interstate commerce and regulate the navigation of the public waters of the Union but danger no longer lurks in these attempts. Marshall's decisions have furnished the exegete of organic and statutory law with guides so complete and infallible that they are regarded almost as a part of the Constitution itself. There is no ambiguity now as to the meaning of the Constitution. It means a nation and not a league. The list of cases involving constitutional questions might. of course, be increased indefinitely, but in each and all there. is the same unalterable determination so to construe the Constitution that the Union may develop along national lines untrammeled by the petty exigencies of sectionalism. As a constitutional lawyer Marshall was and is without a peer. In his address before the American Bar Association Mr. Edward J. Phelps says of these decisions of the Chief Justice: 66 They passed by universal consent and without any further criticism into the fundamental law of the land, axioms of the law, no more to be disputed. They have remained unchanged, unquestioned, unchallenged. They will stand as long as the Constitution stands. And if that should perish they will remain to display to the world the principles upon which it rose, and by the disregard of which it fell." Mr. R. T. Barton, in an address upon the "Life and Character of Marshall," before the Washington and Lee University, at Lexington, Va., says: "These decisions are the chief stones of the great Federal building; the foundation stones and arch keys which sustain the structure. He who would understand this amazing piece of architecture must not content himself with gazing at what seems to be the completed pile, but he must go down into the crypt and examine its arches and supporting pillars. On every foundation wall, on the span of every arch and the curve of every pillar he will find the words Marshall fecit.' When Marshall came to the chief justiceship in February, 1801, the Court had been in existence but eleven years. During that time less than one hundred cases had passed under its judgment, an average of nine a year. Each of the seven judges, assuming the work to be evenly divided, had on an average little more than one opinion to prepare each year. The decisions of the Supreme Court filled only five hundred pages of the reports published by Mr. Dallas. The published reports of the colonies and the States filled not more than six or seven volumes. The reported decisions of the circuit and district courts filled less than three hundred of the printed pages of Mr. Dallas. We have already seen that during the thirty-four years of Marshall's service only eleven hundred and six cases were decided by the Court. These decisions are reported in thirty volumes, from I Cranch to 9 Peters inclusive, but they occupy only eleven volumes of the edition of Mr. Curtis, which approximate more closely in size the Supreme Court reports as now published. The first term presided over by Marshall lasted but five days. The first volume of Cranch embraces the work of two years. All of the opinions, save one, are from the pen of the Chief Justice, and twenty-five cases only are reported. The court had, on an average, but one cause a month to decide. Of course the business increased, but the progress was slow, and in the year 1836, when Taney succeeded Marshall, the number of new causes was only thirty-seven. During all the time of Marshall's incumbency the Court was composed of seven judges, and had the work been equally distributed, as now, each judge would have had to prepare the opinions in about five causes annually, the total number disposed of yearly averaging about thirty-three. But as Marshall wrote in nearly half the causes his average was increased to about fifteen and that of his associates decreased to about three opinions annually. When this work is compared with the results of the present strenuous age, one marvels at the contrast, and, making due allowance for the work done on the circuit, almost wonders how the judges of that early period occupied their time. The Appellate Division of the First Department of New York disposes of over nine hundred causes annually; during the year 1902 it decided five hundred and eighty-five appeals from judgments and three hundred and sixty-six appeals from orders. The Supreme Court of the United States and the courts of last resort of the States must average three hundred and fifty causes annually. It has been estimated that more than three hundred thousand decisions are made. annually in the United States. Twenty thousand of these are by appellate tribunals. There are published each year four hundred and twenty volumes of Federal and State reports, about seventy volumes of digests, one hundred volumes of statutes, and one hundred and fifty text books. This makes a total of seven hundred and forty volumes put out annually by the law publishers of the United States-a library of no mean proportions, filling a book case of six shelves twenty feet in length. When Marshall took his seat, the American decisions, Colonial, Federal and State, were not sufficient to fill ten volumes of reports such as are now published by the official reporter of the Supreme Court, and the entire body of the English common law was less than the yearly product of the United States at the present day. In examining Marshall's opinions the observer is impressed by the absence of citations. He rarely cited an authority or quoted from text books or decisions. The opinion in McCulloch v. Maryland, covering thirtyseven pages, contains no citation, and that in the Dartmouth College case, covering thirty pages, contains but one, and that one to Blackstone. Close observers of the proceedings of the court assert that often after reading one of his opinions, the Chief Justice would say: 46 These seem to me to be the conclusions to which we are conducted by the reason and spirit of the law. Brother Story will furnish the authorities." But "Brother Story "and all the brethren had the same habit. They did not quote one authority where modern jurists quote a dozen. This was due no doubt in part to the fact that there were so few authorities to quote, but principally, I think, to the different style of judicial writing which then obtained. The clear, cool, sparkling spring from which those early jurists drank has been polluted by the tur gescent and turbid flood which has been pouring into it with increasing force for half a century. Marshall had few tools with which to work. He was a pathfinder. He had no trail blazed by others to follow. He cut one himself through an almost virgin forest. "When I examine a question," says Judge Story, "I go from headland to headland, from case to case. Marshall has a compass, puts out to sea and goes directly to his result." He had few precedents in this country to vex him and keep him near the shore, and, when dealing with the Constitution, he had none. It was then that he ventured chartless out upon an unknown sea, with naught but the infallible compass of his own judgment to guide him. ment. A written constitution was a new experiment in governFor a republic it was absolutely unique. The work of interpretation had never been undertaken before. He had ample time at his command. All things considered, there is small wonder that the decisions of that early time have been spoken of as "those exquisite judgments." There was then ample opportunity for ornament and embellishThere was no hurry, no tumult, no harassing social duties. The opinions of the Court were prepared with care and deliberation, and were the result of original thought. Marshall wrote in the most rarefied judicial atmosphere. His ears were not deafened by the jarring and discordant clamor of a hundred law mills, some of them in the hands of apprentices, grinding out decisions without number. ment. Then, too, there was something inspiring in the atmosphere which surrounded both bench and bar. It was in that golden age when the law was a profession and not a trade. It was before brains and ability had been syndicated. with audacity and nerve as "legal preferred," and culture, learning and graceful rhetoric had been dumped, with other odds and ends, into the class of "legal common" and inventoried as so much "water." The prizes contended for in the olden times were not only the pecuniary rewards of success, but there was something of the same emulation which inspired the knights of chivalry when they met each other in the lists. There was the "stern joy" which the warriors of the forum felt in meeting foemen worthy of their steel, the keen delight of the rivalry, the intoxication of victory, the praise of the men and the smiles of the women. It is a pleasure even now to contemplate those splendid old advocates with their ruffled shirts and blue swallow tails, their courtly manners and classic diction. There was Webster, the stately and magnificent, pleading for his Alma Mater; Clay, with his easy grace and fascinating smile; Pinkney, overwhelming the audience with his impassioned bursts of eloquence; Harper, profound in his knowledge of the law; and always, when a great argument was proceeding, there was a brilliant audience composed of the members of both Houses and the wealth and fashion of the capital. Small wonder at those dramatic scenes so often recounted when men turned pale and women wept. He must indeed have been a soulless advocate who did not feel the inspiration of the environment as he stood, "ringed round with the flame of fair faces" and the admiring gaze of the intellectual giants of the young republic. As an illustration of that "royal purple eloquence" which in those early days echoed through the halls of justice, listen to Pinkney pleading the cause of the captors of the Nereide.1 He is ridiculing the idea that an armed vessel of the enemy can be neutral in respect to her cargo, and that a condition of neutrality and war can exist under the same flag, and he thus proceeds: * "The prosopopoeia to which I invite you is scarcely, indeed, within the power of fancy, even in her most riotous and capricious mood, when she is best able and most disposed to force incompatibilities into fleeting and shadowy combination; but if you can accomplish it, it will give you * * a modern Amazon, more strangely constituted than those with whom ancient fable peopled the borders of the Thermodon-her voice compounded of the tremendous shout of the Minerva of Homer and the gentle accents of a shepherdess of Arcadia-with all the faculties and inclinations of turbulent and masculine War, and all the retiring modesty of virgin Peace. We shall have in one personage the pharetrata Camilla of the Æneid, and the Peneian maid of the Metamorphosis. We shall have Neutrality, soft and gentle, and defenceless in herself, yet clad in the panoply of her war-like neighbors-with the frown of defiance upon her brow, and the smile of conciliation upon her lip-with the spear of Achilles in one hand, and a lying protestation of innocence and helplessness enfolded in the other. Nay, if I may be allowed so bold a figure in a mere legal dis 1 |