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CHAPTER VII

THE DEATH OF CHIEF JUSTICE MARSHALL

CHIEF JUSTICE MARSHALL died July 6, 1835, at the age of eighty, having seen during his lifetime the firm establishment of nearly all the fundamental doctrines of American Constitional and International Law as applied by the courts of the country.

The bulk of this work was done by Chief Justice Marshall himself. As I have mentioned elsewhere in this volume, there were but five cases of any importance before the Supreme Court of the United States prior to 1801, when John Marshall was made Chief Justice. How great was his share of the work may be judged by the following figures. Between 1801 and 1835 there were 62 decisions of a Constitutional nature, in 36 of which Marshall wrote the opinion. Of a total of 1,215 cases during that period, in 94 no opinions were filed, in 15 the decision was "by the court," and of the remaining 1,106 cases Marshall delivered the opinion in 519.

During the same period of time there were 196 cases involving questions of International Law, or in some way affecting international relations. In 80 of these the opinion was delivered by Marshall; in 37, by Story; in 28, by Johnson; in one each by Baldwin, Cushing, and Duvall; and in 8 the opinion was given "by the court.'

"1

No doubt the members of the legal profession at that time looked forward to the appointment of Judge Joseph Story as Marshall's successor. But, as Jackson's phrase put it, "the school of Story and Kent" could expect no favors at the hands of the President, for their political constitutional views differed too widely. Story wrote: Story wrote: "Whoever suceeds Marshall will have a most painful and discouraging duty. He will follow a man who cannot be equalled, and all the public will see or think they see the difference. . . . I take it for granted that all of us who are on the bench are hors de combat."

1 Address by John Bassett Moore before the Delaware State Bar Association, February 5th, 1901.

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John Quincy Adams, in his diary of July 10, 1835, says: John Marshall died at Philadelphia last Monday. He was one of the most eminent men that this country has ever produced a Federalist of the Washington School. The Associate Judges from the time of his appointment have generally been taken from the Democratic or Jeffersonian party. Not one of them, excepting Story, has been a man of great ability. Several of them have been men of strong prejudices, warm passions, and contracted minds; one of them occasionally insane. Marshall, by the ascendancy of his genius, by the amenity of his deportment, and by the imperturbable command of his temper, has given a permanent and systematic character to the decisions of the Court, and settled many great constitutional questions favorably to the continuance of the Union. Marshall has cemented the Union which the crafty and quixotic democracy of Jefferson had a perpetual tendency to dissolve. Jefferson hated and dreaded him. It is much to be feared that a successor will be appointed of a very different character. The President of the United States now in office, has already appointed three Judges of the Supreme Court; with the next appointment he will have constituted the Chief Justice and a majority of the Court. He has not yet made one good appointment. His Chief Justice will be no better than the rest."

Six months after Chief Justice Marshall's death Roger B. Taney, of Maryland, was appointed by President Jackson. As Charles Warren in "The History of the American Bar " says, "This was a surprise to most of the Bar." Chief Justice Taney's decisions showed a decided reaction from the centralizing views of Chief Justice Marshall. This was first seen in three cases in 1837, in each of which a State Statute alleged to be in violation of the Federal Constitution was upheld.

BIBLIOGRAPHY

ANECDOTES of John Marshall. In World's Work, Vol. I, Feb. 1901, pp. 394-395.

BARRE, W. L. John Marshall. In his "Lives of Illustrious

Men of America," pp. 426-452. Cincinnati, 1859. 8°. BINNEY, HORACE. An eulogy on the life and character of John Marshall, Chief Justice of the Supreme Court of the United States. Philadelphia: J. Crissy & G. Goodman, 1835. 70 pp. 8°.

BINNEY, HORACE. Same. In Waldie, A. Select Circulating Library, Vol. 6, pp. 327-335. Philadelphia, 1835. 4°. BINNEY, HORACE. Binney's eulogy on Chief Justice Marshall.

In "American Jurist," Vol. 14, Oct., 1835, pp. 462-465. BLACK, JOHN C. John Marshall. In Illinois State Bar Association. Proceedings, Vol. 20, pt. 2, July 14-15, 1896, pp. 25-45.

BLACK, JOHN C. John Marshall. In Albany Law Journal. Vol. 54, July 25, 1896, pp. 55-62.

BRADLEY, JOSEPH P. Saint Mémin's Portrait of Marshall. In Century Magazine, Vol. 38, Sept., 1889, pp. 778-781. BROOKS, ELBRIDGE S. The Story of John Marshall, of Richmond, called "The great Chief Justice." In his "Historic Americans," pp. 161-174. New York, 1899. 8°.

BROWNE, IRVING. John Marshall. In his "Short Studies of Great Lawyers," pp. 201-217. Albany, N. Y., 1878.

BRYANT, JAMES R. M. Eulogium on Chief Justice Marshall, delivered in the Unitarian church, Washington city, on the 24th of September, 1835, at the request of the Union literary society. Washington: Printed by Jacob Gideon, Jr., 1835. 16 pp.

BARNES, WILLIAM HORATIO. "The Supreme Court of the United States: a series of Biographies." With an introduction, by Samuel F. Miller. Washington, D. C.: W. H. Barnes & Co., 1877. (2), 116 pp. Portraits. 4°. BATEMAN, HORATIO. Biographies of Two Hundred and Fifty Distinguished National Men. 1st ed. New York; John T. Giles & Co., 1871. 12°. P. 50.

CARSON, HAMPTON LAWRENCE. The Supreme Court of the United States: its History, and its Centennial Celebration, Feb. 4, 1890. Prepared under direction of the Judiciary Centennial Committee. Philadelphia: A. R. Keller Co.

1892. 2 vols. Portraits. 4°. Contains biographies of all the chief and associate Justices.

CURTIS, WILLIAM ELEROY. "The Seven Chief Justices of the United States." In Chautauquan, Vol. 25, July, 1897, pp. 339-347. John Jay, Oliver Ellsworth, John Marshall, Roger B. Taney, Salmon P. Chase, Morrison R. Waite, and Melville W. Fuller.

CASSODY, JOHN B. John Scott and John Marshall. In American Law Review, Vol. 33, Jan.-Feb., 1899, pp. 1-27. CENTENNIAL anniversary of the elevation of John Marshall to the office of Chief Justice of the Supreme Court of the United States of America. (The) . . . February 4th, 1901. Celebration in the City of Philadelphia under the auspices of the Law Association of Philadelphia. (etc.) Philadelphia: G. H. Buchanan and Co., 1901. 68 pp. Portrait. 8°. Oration by J. T. Mitchell.

CHIEF JUSTICE MARSHALL.

In American Quarterly Review, Vol. 18, Dec., 1835, pp. 473489.

In Green Bag, Vol. 3, Dec., 1891, pp. 541-542.

In National Quarterly Review, Vol. 33, Sept., 1876, pp. 229

242.

In New York Review, Vol. 3, Oct., 1838, pp. 328-361.

In North American Review, Vol. 42, Jan., 1836, pp. 217-241. A review of the life of John Marshall, by Joseph Story. CHIEF JUSTICE MARSHALL'S Public Life and Service. In North American Review, Vol. 26, Jan., 1828, pp. 1-40.

COOKE, JOHN ESTEN. Early Days of John Marshall. In Historical Magazine, Vol. 3, June, 1859, pp. 165-169. CRAIGHILL, ROBERT T. John Marshall. In his "The Virginia Peerage," Vol. 1, pp. 231-284. Richmond, 1880. 8°. DICKINSON, MARQUIS FAYETTE, JR. John Marshall. The tribute of Massachusetts; being the addresses delivered at Boston and Cambridge, February 4th, 1901, in commemoration of the one hundredth anniversary of his elevation to the bench as Chief Justice of the United States. Boston: Little, Brown and Company, 1901. xvii, 120 pp. Portraits. 8°.

DILLON, JOHN FORREST, ed. John Marshall; life, character, and judicial services as portrayed in the centenary and memorial addresses and proceedings throughout the United States on Marshall day, 1901, and in the classic orations of Binney, Story, Phelps, Waite, and Rawle; compiled and edited with an introduction by John F. Dillon. Chicago: Callaghan and Co., 1903, 3 vols. Plates, portraits, facsimiles. 8°.

DODD, WILLIAM E. Chief Justice Marshall and Virginia, 18131821. In American Historical Review, Vol. 12, July, 1907, pp. 776-787. FINCH, FRANCIS MILES. Chief Justice John Marshall. Marshall Day Address, Cornell University, Feb. 4th, 1901. Ithaca, N. Y., 1901. 11 p. Portrait. 8°. Reprinted from Cornell Alumni News, FLANDERS, HENRY. The Life of John Marshall. Philadelphia: T. & J. W. Johnson & Co., 1905. x, 278 pp. Portrait. 8°. Originally issued in the Author's "Lives and Times of the Chief Justices of the United States."

FULLER, MELVILLE W. Chief Justice Marshall. In the Dial (Chicago), Vol. 6, May, 1885, pp. 10-12. Reprinted in the Dial, Vol. 9, Oct., 1888, pp. 128-130.

GRAY, HORACE. An address on the life, character and influence of Chief Justice Marshall, delivered at Richmond on the fourth day of February, 1901, at the request of the State Bar Association of Virginia and the Bar Association of the city of Richmond. Washington, D. C.: Pearson print. office, 1901. (2), 49 pp. 8°. Authorities consulted other than Supreme Court decisions: pp. 45-47..

GREAT American Judge, A (John Marshall). In Spectator, Vol. 86; Feb. 9, 1901, pp. 198-199.

GRISWOLD, RUFUS WILMOT. John Marshall. In his "The Prose Writers of America," pp. 85-88. Philadelphia, 1847. 8°. GRISWOLD, RUFUS WILMOT. Marshall. In "Homes of American Statesmen," pp. 263-274. New York, 1858. 8°. HARDY, SALLIE E. MARSHALL. Chief Justice Marshall. In Magazine of American History, Vol. 12, July, 1884, pp. 62-71.

HARDY, SALLIE E. MARSHALL. John Marshall, Third Chief Justice of the United States, as son, brother, husband, and friend. In Green Bag, Vol. 8, Dec., 1896, pp. 479-492. HARDY, SALLIE E. MARSHALL. The Will of a Great Lawyer. How Chief Justice Marshall Devised His Estate. In Green Bag, Vol. 8, Jan., 1896, pp. 4-6.

HOUGHTON, WALTER R. John Marshall. In his "Kings of Fortune," pp. 437-456. Chicago, 1885. 8°.

JOHN MARSHALL. In Albany Law Journal, Vol. 13, June 24, 1876, pp. 442-445. Same in Washington Law Reporter, Vol. 3, July 1, 1876, pp. 156-157; July 8, 1876, pp. 163-164. JOHN MARSHALL. In American Law Record, Vol. 5, July, 1876,

pp. 55-59.

JOHN MARSHALL. I. Soldier, Lawyer, Statesman, and Man.

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