at that time by no means understood, much less conceded.

Even the justices themselves failed to realize their importance. Appointments to the bench were often declined, and resignations were frequent. Some judges retired to go upon the bench of a State court. Both of the Chief Justices who preceded Marshall (not counting Rutledge, whose appointment was not confirmed, and who presided only one term) resigned their offices to become ministers to foreign courts; and Jay, the first Chief Justice, when asked after an interval of retirement to resume his position, declined, saying, "I left the bench perfectly convinced that, under a system so defective, it could not attain the energy, weight, and dignity which were essential to its affording due support to the National Government.”

The whole business of the court during the first eleven years of its existence is recorded in less than a single volume of the size of current reports. Most of the questions before it concerned procedure and practice in the Federal courts. The meagre decisions touching the scope of its own powers and duties were for the most part confined to denial rather than assertion, like its refusal to advise the President, and its deciding, or rather its hesitation in deciding, in IIayburn's case, that Congress could not impose upon it the duty of acting as auditor to hear pension claims. It did assert the right to hear the case of a citizen against a State, and to enter judgment against the State; but this right was promptly taken away by an amendment to the Constitution. Even Marshall continued to be a member of the President's Cabinet after his appointment to the bench, until the close of the Presidential term. So little was the true function of the court

understood, that one of the earliest cases reported seems to have consisted of the trial of issues of fact by a jury, the charge being given by one of the justices. It had been a court of weak beginnings and of insignificant achievements. It had not found its place in the scheme of government. When the nineteenth century came in. its great work was yet before it.

The Federal Constitution was no spontaneous utterance of a united people. It was the result of a long, a bitter, and an unending contest. The conflict between the sovereignty of the State and the sovereignty of the Nation did not then begin, nor is it yet ended. Although, when the only alternative in sight was anarchy, a sullen assent was vouchsafed to the terms of the Constitution, both sides reserved the right to continue the contest. Both claimed that it could be interpreted to meet their views. Moreover, upon its adoption other contentions arose upon the question how far it acted as a restraint upon the executive and the legislative departments. The beginning of this century saw these contentions, and especially that relating to the sovereignty of the States, existing in all their fierceness, threatening the destruction of the Republic. The Nation was at the parting of the ways.

The only power adequate to the settlement of these questions under the Constitution (and even this was not then conceded) was the Supreme Court. But a chief was needed to direct the work of that court, who should have the courage to assert its dignity and power. He must be one who had participated in the discussions leading to the adoption of the Constitution, familiar with its origin and its history. He must be not only a great and sound lawyer, but one whose public career, no less than the spotlessness of his personal reputation, had earned for

him the respect and confidence of all men. He must be one who was willing to put aside private ambition, and make it his life-work to establish the rank of the court given to it by the Constitution, but which hitherto had scarcely been conceded to it. As a concession to her importance it were better that he be a citizen of Virginia; and John Adams naturally believed he should be a Federalist. He found all these essentials in John Marshall. The hour of fate had come; and he was the man of the hour.

Speculations on what might have been the result had important events happened otherwise than they did, are usually profitless. But one cannot forbear indulging in a shudder at the contemplation of what might have been the destiny of the nation had the appointment of Chief Justice been made a few months later by that apostle of the anti-Federalists, Thomas Jefferson. One experiment of a league of sovereign States had been tried and had failed. Another would have meant hopeless wreck. More than once, as we review the events of our history, are we led to recognize with reverence the hand of an overruling Providence, guiding our path, shielding us from danger and destruction, chastening us when we have gone astray, and leading us on to become the lamp of liberty enlightening the world.

John Marshall grasped the helm with the hand of a master. There was no chart to guide his course, excepting his conception of the spirit of the Constitution. But that conception was based upon a belief in the sovereignty of the nation, and was elevated by a conviction of the power and dignity of the judicial branch of the Government. Within three years he had disposed of a contention, seriously made, that Congress was not bound by

the Constitution, excepting as it might interpret for itself the terms of that instrument. He pronounced one of its statutes void, and thus asserted the supremacy of his court over the legislative department,-a supremacy which has never since been challenged, and which it is difficult for us now to conceive ever to have been chailenged. Soon after he pronounced void an act of a State legislature which was in violation of the Constitution of the United States. Then men began to appreciate the fact that the Federal power was supreme, and that, under the interpretation of John Marshall, the Constitution did not provide a mere rope of sand for the States, but was the strong tie which bound them together into a Nation.

From these sound beginnings he proceeded with unfaltering steps, literally building up a nation upon the foundation of the Constitution. His views did not at first, nor even during his life, meet with universal acquiescence. During the whole of the two generations of his judicial service, he was the subject of bitter criticism, and more than once there was almost open revolt. He himself at times became disheartened, and in a letter to his associate, Joseph Story, in 1832, he said: "I yield slowly and reluctantly to the conviction that our Constitution cannot last." This was but three years before his death, and it may well be that his last hours were clouded with doubts of the future of his country. But he had builded more wisely and surely than he knew. His interpretation of the spirit of the Constitution, besides having the weight of authority, came eventually to be accepted as well for the truth of its resistless logic. He was not merely a great and learned judge. There have been others. His title to the eternal gratitude of his

countrymen is found in the fact that he was the creator of constitutional government, as we now understand that term. The result of his work is the grandeur of the imperial flag under which we live.

Of the life and career of John Marshall it is not for me to speak in detail at this time. It will be better done on this anniversary by others more competent for the task. Beyond declaring his part in the growth of the nation, as I have briefly attempted to do, I will content myself with observing that, considered merely as a judge, his career was a model for all who have come after. Digni fied and genial, patient in attention, learned and logical, luminous and convincing in opinions; welcoming the help that the bar can give to the court; not lacking in respect for the executive and legislative departments, and for that presumption of right which should be accorded to them, but never forgetting that the function of the court is to be true to its own lights and not subservient to the standard of the Legislature,— he created for the court a respect and esteem which has never since been shaken, and established a standard of judicial deportment which may well be followed to-day.

But it is by the high principles he promulgated and upheld, and upon which this nation has grown to grandeur, rather than by any mere judicial eminence, that he will be remembered while the nation endures.

As I stood, last month, upon the steps of the National Capitol, I was led to contrast in my mind the splendid panorama there unfolded with the rude beginnings of a century ago. But I also reflected that in the luminous clearness of John Marshall's vision there has been, there can be, no advance. A hundred years hence the material achievements of the nation may eclipse those of to-day,