making failed, for it could not rally to its support any faith in its inherent strength or genuineness. It simply collapsed when put to the pitiless test of those pitiless times. Great hopes had been centered in it, hopes of deliverance, hopes of happiness and hopes of peace, but Carlyle sums up the result in a single sentence, which he makes the heading for one of his grandly picturesque chapters: "CONSTITUTION WILL NOT MARCH."

But, gentlemen, the constitution our fathers made had the marching quality in it; and our history records how it has marched in good and evil days, sometimes through perils and difficulties, sometimes seeming almost ready to halt, but always moving forward. The people who framed it, and the people who adopted it, never considered it perfect; some of the members of the convention refused to sign it, and its adoption was fiercely opposed in many of the states. In the convention, Franklin, old and feeble in body, but with unimpaired intellectual vigor, urged the members to sink their personal objections for the sake of the great issue at stake. "Thus I consent, sir, to this constitution," he said, "because I expect no better and because I am not sure that it is not the best. The opinions I have had of its errors I sacrifice to the public good."

Though the work of the convention was not entirely satisfactory to any member, nearly all accepted it as the best then attainable, and only three refused to sign it. It was nearly three years before all the states came in under it, and when Rhode Island gave her tardy assent, the government of the Union was already in operation, George Washington was President, and the constitution had begun its march.

It is impossible to over-estimate the difficulties that confronted the men upon whom devolved the duty of administration in the new government. They were to be guided by the constitution, but the constitution itself was not entirely clear, and many different views were held as to its meaning. It was the result of a large number of compromises between different classes of political thinkers and between different localities and

interests.

As has been truly said, "Nobody liked all its provisions, and everybody feared some of them." And yet, no one can doubt that its adoption was a great, wise and patriotic act; for all experience has shown that statesmanship is not the obstinate reaching out for the unattainable, but the acceptance of the best that is within reach. It was the profound recognition of this truth that secured its adoption, without the provisions soon afterward incorporated in the first ten amendments, the absence of which in the original draft caused so much opposition. The good sense of the American people accepted the work of Washington and the convention over which he presided, as infinitely better than the Confederation, even if there were in it, to the minds of most men, obvious imperfections. Many, many great causes have been wrecked by the unyielding opposition of narrow minds, seeing only a single point of small and trifling moment in the great scope of the cause itself. Such minds there were in that day, and such there have been always, who, honestly believing that human wisdom is centered in them, cling fast to the things which are petty and insignificant, and sacrifice those which are of supreme value. But the constitution was adopted; and those who had opposed it were loud in their prophecies of failure; and those who had supported it were not without doubts. Its friends could only admit frankly that it was an experiment which must wait the test of time.

The organization of the government under the constitution was one of the greatest events in human history. It was not a dramatic affair, such as when Napoleon put upon his head the iron crown of Lombardy; it was grave and stately in a certain republican fashion, as became a people who were establishing a nation, with a fixed, a determinate organic law, and were proposing to move forward within its limits. But what were its limits? What were the powers of the new government? Were the people of the United States a nation with a national government, or only citizens of their respective states and of a federal union of states? These questions had not

been settled in any authoritative way. As Judge Cooley has said: "The decision upon them, when thus presented, might determine whether the constitution was to be a bond of union or a rope of sand; for the practical construction might make it one or the other."

This only means that, after all, the constitution which had been declared to be the supreme law of the land must needs be subjected to the test of construction and interpretation. The almost infinite variety of questions which might become subjects of litigation would surely call upon the courts, and finally upon the court of last resort, for judicial announcements of the scope and meaning of every provision. Such is the infirmity of human language that members of the convention who had voted for the constitution differed as to the meaning of its various provisions. It was plain from the first that the Supreme Court would have to grapple with great and difficult questions. The composition of the court, and particularly the order of mind which should be possessed by the Chief Justice, were matters of weighty importance. Again I quote from Judge Cooley, whose great learning, high character and eminent judicial abilities have so endeared him to our profession:

"When the time is considered, and the circumstances under which the duty of authoritative construction must be entered upon, one cannot fail to be impressed that peculiar qualifications were essential in the person who should preside over the body to whom that duty would be entrusted, and who would give direction to its thought. He ought certainly to be a learned and able lawyer; but he might be this and still fail to grasp the full significance of his task. A mere lawyer might see in the Constitution nothing but an agreement of parties, to be construed by technical rules; it required a statesman to understand its full significance, as an instrument of government, instinct with life and with authority."

You will note, I doubt not, in the language I have quoted, the phrase "a mere lawyer." Far be it from me to say that "a mere lawyer" may not be a very well-meaning and useful

man.

But he never was and never will be a great judge. In this country, every judge, state and federal, is, or may be, called upon to decide questions arising under constitutions, and such questions require historical knowledge, an insight into the meaning of organic laws, of the duties and obligations of citizenship, and, finally, of the great purposes of a constitutional and an institutional government. John Jay, our first Chief Justice, was lawyer, statesman and diplomat, a student of literature, and a man of unbending integrity and spotless character. To his hands and the hands of his associates the new and untried constitution was entrusted. It is interesting to read the proceedings of the court in those first days, when questions of practice and procedure were constantly coming up and receiving the careful consideration of the court, and were about the only questions before it. There was little business in the eleven years which preceded the appointment of Marshall, and only six constitutional cases were decided.

In one, Ware vs. Hylton reported in 3d Dallas, John Marshall was counsel for defendant in error, and was badly beaten, all the judges save Iredell being against him-and Iredell against him on part of the case. This was at the February Term, 1796. Five years later, on February 4, 1801, John Marshall himself took his seat as Chief Justice of the Court which had turned a deaf ear to the only argument he had made before it.

Thus far the constitution had marched; but it must be admitted its pathway had not been a smooth one. The people had already learned that the Supreme Court was a body claiming enormous powers-powers that thousands of good men viewed with sincere alarm. From the first the country had been divided on the question whether there should be a strong national government, operating directly upon the people, or a mere agency for certain purposes, while the vigor of effective government should remain in the several states. In the convention and before the people there had been earnest, sometimes angry, discussion of this question. Those who had

hoped that it would be settled by the language of the constitution itself were doomed to disappointment, for, studying it sentence by sentence and line by line, it was evident that the argument was not closed. The question was simply changed from: "What government is best?" to "What government has the constitution actually given us?"

The Supreme Court has been eloquently called "the living voice of the constitution," and from its organization it has courageously assumed the right to speak the final word as to its meaning, and as to the rights it grants and the obligations it imposes. We are so much accustomed to connecting the name of Marshall with the establishment of constitutional principles that we have hardly done justice to the court as it stood before his appointment. They were learned men, they were honest. men, and they were-which is scarcely less important-firm and unwavering in the performance of every judicial duty. When Chisholm vs. The State of Georgia was brought before them, the country was aflame with excitement. Mingled feelings of astonishment and indignation filled men's minds, at the thought of bringing a sovereign state into court like an ordinary debtor. The opinion of Justice Wilson-himself one of the signers of the constitution-is a quaint and curious piece. of judicial literature.

son.

"This is a case of uncommon magnitude," said Justice Wil"One of the parties to it is a State; certainly respectable, claiming to be sovereign. The question to be determined is, whether this State, so respectable, and whose claim. soars so high, is amenable to the jurisdiction of the Supreme Court of the United States? This question, important in itself, will depend on others more important still; and may, perhaps, be ultimately resolved into one, no less radical than this'Do the people of the United States form a Nation?""

This grim question was destined to rise from time to time until finally answered on the battlefield. Judge Wilson gave his own answer toward the close of his opinion in these words: