lished in the former opinion were to be considered no longer open for controversy.

Chief Justice Marshall, as appears by letters from him to his associates on April 18th, 1802, was originally of opinion that the Justices of the Supreme Court could not hold Circuit Courts without distinct commissions as circuit judges. But in Stuart against Laird in 1803, apparently deferring to the opinions of his associates, he acted as circuit judge; and the Supreme Court, in an opinion delivered by Mr. Justice Paterson, affirmed his judgment, upon the ground that practice and acquiescence for several years, commencing with the organization of the judicial system, had fixed the construction beyond dispute.

Marshall's judicial demeanor is best stated in the words. of an eye-witness. Mr. Binney, who had been admitted to the bar of the Supreme Court in 1809, and who had often practised before him, tells us:

"He was endued by nature with a patience that was never surpassed--patience to hear that which he knew already, that which he disapproved, that which questioned himself. When he ceased to hear, it was not because his patience was exhausted, but because it ceased to be a virtue.

"His carriage in the discharge of his judicial business was faultless. Whether the argument was animated or dull, instructive or superficial, the regard of his expressive eye was an assurance that nothing that ought to affect the cause was lost by inattention or indifference; and the courtesy of his general manner was only so far restrained on the bench, as was necessary for the dignity of office, and for the suppression of familiarity.

"His industry and powers of labor, when contemplated in connection with his social temper, show a facility that does not generally belong to parts of such strength."

"To qualities such as these, he joined an immovable firmness befitting the office of presiding judge in the highest tribunal of the country. It was not the result of

excited feeling, and consequently never rose or fell with the emotions of the day. It was the constitution of his nature, and sprung from the composure of a mind undisturbed by doubt, and of a heart unsusceptible of fear.”

"In him his country have seen that triple union of lawyer, statesman, and patriot, which completes the frame of a great constitutional judge."

He had not the technical learning in the common law of Coke, or of several of Coke's successors. But, in the felicitous words of Mr. Justice Story, "he seized, as it were by intuition, the very spirit of juridical doctrines, though cased up in the armor of centuries; and he discussed authorities, as if the very minds of the judges themselves stood disembodied before him."

He had not the learning of Nottingham or of Hardwicke in the jurisdiction and practice of the court of chancery, or of Mansfield in the general maritime law. But his judgments show that he was a master of the principles of equity, and of commercial law.

He had not the elegant scholarship of Stowell. But it is not too much to say that his judgments in prize causes exhibit a broader and more truly international view of the law of prize. Upon the question of the exemption of ships of war and some other ships, it was observed by Lord Justice Brett in the English Court of Appeal in 1880, "the first case to be carefully considered is, and always will be, The Exchange," decided by Chief Justice Marshall in 1812.

The jurisdiction of the court over which he presided was not confined to one department or branch of the law; it included common law, equity, maritime law, the law of admiralty and prize, and, in some degree, the civil law of Spain and of France.

Beyond all this, the jurisdiction of his court extended to constitutional law, in a more comprehensive sense than ever belonged to the courts of any other country.

2

In England, there is no law of higher sanction than an act of Parliament; and Parliament has uncontrolled power to change or to repeal even Magna Charta. It is otherwise in this country.

One of the earliest and most important judgments of Marshall is Marbury against Madison, decided in 1803, in which the paramount obligation of the Constitution over all ordinary statutes was declared and established by a course of reasoning which may be indicated by a few extracts from the opinion.

"The Constitution is either a superior paramount law, unchangeable by ordinary means; or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.

Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the Constitution, is void. This theory is essentially attached to a written constitution, and is consequently to be considered by this court as one of the fundamental principles of our society."

"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the Constitution; or conformably to the Constitution, disregarding the law; the court must

determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply."

The particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void; and that courts, as well as other departments, are bound by that instrument."

In the light of experience, it is curious to look back upon the doubt and apprehension entertained by some of the Northern Federalists with regard to Marshall shortly before he became Chief Justice. For instance, on the 29th of December, 1799, when he had just entered the House of Representatives, Oliver Wolcott, then Secretary of the Treasury under President Adams, wrote to Fisher Ames: "He is doubtless man of virtue and distinguished talents; but he will think much of the State of Virginia, and is too much disposed to govern the world according to rules of logic; he will read and expound the Constitution as if it were a penal statute, and will sometimes be embarrassed with doubts of which his friends will not perceive the importance."

Why should he not "think much of the State of Virginia?" What State of the Union had produced such a galaxy of great men? And what American, worthy of the name, does not cherish a peculiar affection for the State of his birth and his home? But such an affection for one's own State is by no means incompatible with a paramount allegiance and devotion to the United States. as one's country. There is no more striking illustration of this truth than Chief Justice Marshall himself.

It was upon writs of error to the highest court of Virginia in which a decision in the case could be had—at first

in 1816, in the case of Martin against Hunter's Lessee, a case between private individuals; and afterwards in 1821, in the case of Cohens against Virginia, a criminal prosecution instituted by the State-that the Supreme Court, under the lead of Chief Justice Marshall, upheld and established its appellate jurisdiction, under the Constitution and the Judiciary Act, to review the judgment of the State court against a right claimed under the Constitution or the laws of the United States. In the first case, indeed, perhaps because it came from his own. State, he allowed Mr. Justice Story to draw up the opinion of the court. But in the second case he himself expressed the unanimous conclusion of the court in one of his most elaborate and most powerful judgments.

The idea that he would "read and expound the Constitution as if it were a penal statute" seems now almost ludicrous. Take, for instance, his judgments in the cases of McCulloch against Maryland in 1819, and of Wiltberger in 1820. In Wiltberger's case, he clearly stated the reasons and the limits of the rule that penal statutes are to be construed strictly. But in McCulloch's case, when dealing with the question what powers may be implied from the express grants to Congress in the Constitution, he said: "A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could hardly be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American Constitution, is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations, found in the ninth section of the first