almost sublime. Napoleon had it; Cromwell had it, and Mansfield, according to Pope, was another Ovid, expounding the law when he might have been writing the poems of his own and of future ages.

Marshall opened his opinion by a few sentences which showed that the man was not unconscious of what the judge was about to decide. He said: "The constitution of our country, in its most interesting and vital parts, is to be considered; the conflicting powers of the government of the Union and of its members, as marked in that constitution, are to be discussed; and an opinion given, which may essentially influence the great operations of government. No tribunal can approach such a question without a deep sense of its importance, and of the awful responsibility involved in its decision."

Gentlemen, it is a masterful quality in a judge to be able to perceive the far-reaching effects of his decisions; for the responsibility increases as the consequences grow more distinct and formidable.

The next sentence of this great judgment is pathetic in the evidence it bears how gladly he would have found some honorable way of escape, some sanctuary in which his duty would suffer him to take refuge. But there was the question; and the court of which he was Chief Justice could not shrink. He added, with undaunted firmness: "But it must be decided peacefully, or remain a source of hostile legislation, perhaps hostility of a still more serious nature; and if it is to be so decided, by this tribunal alone can the decision be made. On the Supreme Court of the United States has the constitution of our country devolved this important duty."

You would not thank me to go over the decision point by point to show how unerringly he demonstrated that the government of the nation is supreme within the scope of its powers, that it may avail itself of all necessary and proper means of exercising those powers, and that neither Maryland nor any other state can interfere with, cripple or impede its lawful operations as a government. Jurists and statesmen, from that

day to this, have found the opinion a treasure-house of constitutional principles from which in many great emergencies they have liberally drawn.

1819.

McCulloch vs. Maryland was decided at the February Term, At the same term the decision in the celebrated Dartmouth College case was pronounced. More than any other case it has entered into the discussion of questions involving corporate rights, and their protection from legislative impairment. The court had already held in Fletcher vs. Peck, 6 Cranch, 87, that a legislative grant is a contract and entitled to the protection of the constitution from a subsequent legislative act annulling the grant. But the grant involved in Fletcher vs. Peck was one of lands made by the legislature of Georgia in 1795, and, therefore, after the adoption of the Federal Constitution, while in the Dartmouth College case, it was of a corporate charter granted by King George the Third, in 1769. It is a matter of familiar legal history that the old charter was held to be a contract, and that the legislature of New Hampshire could not amend or materially alter it without violating the constitution. It has sometimes been thought, both within and without the legal profession, that the court pushed the doctrine of the inviolability of contracts from legislative impairment too far in this case. But it seems to me the decision was not only sound, in law, but useful and salutary in its effects. It is not so frequently cited now as formerly, because almost all statutes for the organization of corporations contain provisions authorizing the legislature to alter or amend, and so the right to do so becomes a part of the contract itself.

As I have already said, and as you know from your famili arity with the history of the times, the subject of commerce, and the commercial relations of the different states, was one of the great inducing motives that led to the adoption of the constitution. It was not the only one, and perhaps not the principal one, but it was a very powerful one. Trade and traffic, buying and selling, exchanging commodities and carry

ing on the extensive operations which are incident to modern civilization, were in men's minds then as they are now, and will be always. Before the constitution, Maryland, Delaware and Virginia; New York, New Jersey and Pennsylvania, wrangled and disputed over duties, restrictions and regulations calculated to advance the interest of one against the others, for selfishness has always been a largely controlling motive of human action. When the framers of the constitution inserted the provision vesting in Congress the power to regulate commerce among the several states, they stamped upon their work the indubitable evidence of practical wisdom. But what is commerce? What is regulation? These questions have followed the path of our national progress. It has not always been easy to answer them, and they have left in their wake many unsettled and indeterminate inquiries. The present Interstate Commerce Law is an attempt to solve some of them, and is certainly a great forward step in the development of the constitution. I believe, and I think the belief is shared by our profession and by the business interests of the country, that the theory of the act is right, and that the time will come. when the great purpose of the constitution in respect to commerce will be attained. It takes time to build up the structure of legal right upon the basis of acknowledged principles, and we must remember that successful legislation seldom precedes the acquiesence of those most largely affected by it.

Gibbons vs. Ogden, decided in 1824, is the great source to which all must go who would understand the scope and import of the commerce clause of the constitution. Again, the great Chief Justice had to face the pretensions of a sovereign state, and to strike down one of its statutes. There is a certain solemnity in all of Marshall's constitutional decisions; a solemnity becoming a great magistrate with such duties to perform. No judge ever had to walk in a harder path. But he never faltered, and his judgments have stood every test, as the firm and convincing pronouncements of the law.

7

Gibbons vs. Ogden upheld the exclusive power of Congress to regulate commerce among the states, wherever it has legislated upon the subject. The argument in the case dealt largely with the question whether navigation is commerce, but Marshall, answering the question in the affirmative, added in that conclusive way which no other judge ever equaled or approached: "Commerce undoubtedly is traffic, but it is something more; it is intercourse." It would almost seem that he was prophet as well as judge, for in that sentence he unconsciously foretold the railroad, the telegraph, the telephone and all the wonderful appliances by which science compels nature to be the servant and minister of man.

In this great case Marshall rendered a service to his country in laying down the true principle of construction, as great, perhaps greater, than in construing the commerce clause which was before the court. He vindicated the constitution as a working instrument of government. He made it, if I may say so, what in modern litigation we call "a going concern." In all Marshall's opinions I recall nothing more filled with the wisdom of the hour nor more useful to the generations that were coming on, than his fine disposition of the argument that the constitution must be strictly construed. "What do gentlemen mean," he asks, "by a strict construction? If they contend only against that enlarged construction, which would extend words beyond their natural and obvious import, we might question the application of the term, but should not controvert the principle. If they contend for that narrow construction which, in support of some theory not to be found in the constitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects of the instrument; for that narrow construction, which would cripple the government, and render it unequal to the objects for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent; then we cannot perceive the propriety of this strict construction,

nor adopt it as the rule by which the constitution is to be expounded."

There is something very noble and elevating in the discusion towards the end of the opinion, of the powers of the states and of the general government, where he speaks of "powerful and ingenious minds," who would explain away the constitution "and leave it a magnificent structure, indeed, to look at, but totally unfit for use." Gentlemen, John Marshall was not "a mere lawyer."

His judicial career and his earthly career ended July 6, 1835. He had been Chief Justice thirty-four years, and it is only true of him to say that, "take him for all in all," he was the greatest judge that ever lived. By the common and unfettered judgment of the bar, by the unanimous voice of statesmen, jurists and scholars, he was the oracle of our constitutional law, the interpreter, the expounder, and in a certain sense the maker of the constitution. True, he was not a member of the convention that framed it, but he was a member of the Virginia convention that passed upon and adopted it, and when he came to the bench he took up as the cases came before him the great questions presented and solved them unerringly and, as we all know, conclusively. During all his long incumbency of the chief judicial office there never was a day that the constitution did not move forward, as a constitution should, to meet the crowding exigencies of human affairs.

And so, gentlemen, the constitution marched; and without exaggeration it may be truly declared that John Marshall was its guide, its light and its defender. Our profession looks upon him with a somewhat idolatrous feeling, but I do not think it is excessive. When we consider what might have been our fate if another and not he had occupied that great seat, we may well believe that Providence watched over the Republic. He interpreted the constitution, but he interpreted it in the comprehensive way which made it a thing of life instead of death; a chart of government instead of a collection of meaningless phrases. Only two Americans are better entitled to