a double part in our national life; because he was a statesman as well as a jurist; a Cabinet officer before he was Chief Justice? No. That reason would also apply to both his immediate successors, Taney and Chase. Is it because, in dealing with the ordinary questions of jurisprudence, he so far excelled all other judges that he belongs to a distinct order? No. So far as such labor is concerned, although Marshall stands at the head, there are other American jurists who must be put in the same class. Not to multiply instances, it is sufficient to name Parsons of Massachusetts, Kent of New York, Gibson of Pennsylvania, and Gaston of North Carolina.

The cause of Marshall's extraordinary pre-eminence is to be found in the fact that he was a pioneer, and a successful pioneer, in a new field, that of constitutional law.

When Marshall came upon the bench a great political revolution was just taking place. John Adams had been defeated for re-election by Thomas Jefferson, who was to be inaugurated a month later. The Federalists had lost not only the Presidency, but also both Houses of Congress. Few members of the victorious Democracy then supposed that there could be any check upon the power of their party and its leaders. They saw that they had a majority of the popular vote; and that they had with them the public functionaries who made appointments, as well as a majority of the legislative bodies which levied taxes and enacted statutes. It had not occurred to many of them (except the President-elect) that there was in the United States a department of the Government which, within its sphere, was, for the time being, superior to both President and Congress. Such, however, was in in fact the position of the Supreme Court. And, by reason of the appointment of Marshall in the last months

of the Adams administration, the Federalistic theories of the Constitution prevailed in that tribunal for more than a generation, and indeed long after the Federalist party had ceased to exist as a political organization.

The experiment of a written constitution, with its checks and balances and guaranties, was not attempted in America alone. France tried the plan at the same time, and came to a disastrous result. The great distinguishing feature of the United States Constitution is, that it creates an instrument by means of which its rules and principles can be effectively enforced. It provides for the establishment of a judicial tribunal which shall be the final arbiter upon all questions relating to the alleged infractions of the Constitution. "The Supreme Court of the United States," says Sir Henry Maine, "is a virtually unique creation of the founders of the Constitution." And the novelty consists, not only in the creation of such a tribunal, but also in the manner in which its great powers can be called into exercise. Many people would say that the court ought to be compellable to pronounce upon the constitutionality of any legislative act, whenever its opinion was requested by any considerable number of citizens; or, at all events, whenever requested by the executive or legislative departments. Fortunately, however, the framers of our National Constitution saw the inherent dangers of such a method and rejected it. The remarkable power of the court "is capable only of indirect exercise; it is called into activity by 'cases,' by actual controversies, to which individuals, or States, are parties. The point of unconstitutionality is raised by the arguments in such controversies; and the decision of the court follows the view which it takes of

the Constitution." "What the court does is simply to determine that in a given case A is or is not entitled to recover judgment against X; but in determining that case the court may decide that an act of Congress" (or a statute of a State) "is not to be taken into account, since it is an act beyond the constitutional powers of Congress" (or of the State Legislature).

But although the power of the court is thus exercised only in this indirect manner, it is none the less an authority of illimitable force. Professor Dicey does not overstate when he says: "The law courts become the pivot on which the constitutional arrangements of the country turn." The bench "can and must determine the limits to the authority both of the Government and of the Legislature; their decision is without appeal; the consequence follows that the bench of judges is not only the guardian but also the master of the Constitution." 3

To the headship of the court possessing this extraordinary power, John Marshall, of Virginia, was appointed by President Adams in the twelfth year of the United States Government. His age was then forty-five, and he had had the great benefit of an "all round" experience. He had known the vicissitudes of peace and war. As an officer of the Army of the Revolution, he had proved his courage on such battle-fields as Brandywine and Monmouth, and had exhibited the still higher quality of patient endurance during the horrors of the winter at Valley Forge. Almost at the very outset of his professional career, he had come to the front as one of the recognized leaders of the very able bar of Virginia, and had been

1 Maine on Popular Government, 217, 218.

2 Professor A. V. Dicey, in 1 Law Quarterly Review, 92.

31 Law Quarterly Review, 97.

intrusted with the conduct of important litigations. Repeatedly a member of the Virginia Legislature, when grave questions were pending, he had also served in the convention called to determine whether the State should adopt the newly-framed United States Constitution. As a member of the special embassy to France, and afterwards as a member of Congress and as Secretary of State under President Adams, he had had experience of public life on a large scale.

Up to the time of Marshall's appointment, few of the most important constitutional controversies had come before the court. Owing to the indirect method of raising questions, the court had, as yet, seldom been called upon to decide important points in this branch of the law. But Marshall and his colleagues were soon confronted with the most fundamental of all these questions: Shall the Constitution be a living reality, or the mere shadow of a name?

If an addition is ever made to the number of days celebrated as national anniversaries, I submit that the twentyfourth of February may well be added to the list. Upon that day, ninety-eight years ago, the Supreme Court of the United States, speaking through its Chief Justice in the famous case of Marbury v. Madison,' decided that if an act passed by the legislative body conflicts with the Constitution, it shall be treated as a nullity. This decision practically involves the affirmance of two propositions, and it is upon the second of these propositions that particular stress should be laid by a biographer of Marshall. The propositions here affirmed are: First, that a legisla tive body has no right to pass an act which violates the Constitution. Second, that, when such an act has been 11 Cranch, 137.

passed by the Legislature, the court can and must treat it as a nullity, i. e., the court must decide the particular case pending before it just as if such an act had never been placed upon the statute book. The affirmance by the court of proposition 1, if not followed by the affirmance of proposition 2, would have been an empty thunderbolt. Such a course would find its parallel in President Buchanan's message of December, 1860. In that celebrated document Mr. Buchanan vigorously denied the right of secession, but practically admitted that, should secession be attempted, there was no remedy, because, in his view, Congress had no right to coerce a State. No such lame and impotent conclusion was reached by Marshall and his colleagues. They held that there was a remedy for unconstitutional legislation, that it was their own peculiar province as judges to apply that remedy, and they did then and there apply it.

Our indebtedness to Marshall in this connection is not only based on the fact that he decided rightly, but also on the fact that he stated the reasons for this decision so forcibly that no lawyer can gainsay them. Two of the most effective portions of his opinion are: the paragraphs where he puts a series of deadly dilemmas; and the sentences in which he presents the practical results of the opposite view in the shape of a reductio ad absurdum.1 But the entire opinion as to the power and duty of the court to disregard an unconstitutional act fully deserves the eulogium of Chancellor Kent, who calls it "an argument approaching to the precision and certainty of a mathematical demonstration."2 Many years subsequently to this decision, an eminent lawyer, after quoting some of the most forcible sentences, said: "These are now 11 Cranch, 177, 178. 21 Kent's Com., 453.