claimed under an act of congress had been denied. The jurisdiction had been exercised before with deliberation and upon reasoning which would now seem conclusive. But the heresy involved in its denial had many determined and aggressive adherents. The ingenuity of counsel in assailing it in this case, and the transcendent importance of the subject, aided no doubt by a desire to bring the bar and the people to a course of right thinking with respect to it, induced him to consider it in the light of the principles and reasons involved as though it had not been previously considered. In support of the constitutional validity of the judiciary act of 1789 he presented such a searching analysis of the provisions of the constitution and of the history of the period which brought it into being as indicative of the purposes which should be effectuated by its interpretation, that there is much reason for the judgment of those who regard it as his greatest opinion-that is, as the greatest of all judicial opinions.

We often hear it said that in the year 1865 the enduring character of the constitution as a national compact was affirmed by the arbitrament of war. The implication is that it had not been authoritatively affirmed before. But attend to a page of Cohens v. Virginia where an argument in favor of the finality of the judgment of the state's court of last resort is stated and answered thus: "No government ought to be so defective in its organization, as not to contain within itself the means of securing the execution of its own laws against other dangers than those which occur every day. Courts of justice are the means most usually employed; and it is reasonable to expect that a government should repose on its own courts, rather than on others. There is certainly nothing in the circumstances under which our constitution was formed; nothing in the history of the times, which would justify the opinion that the confidence reposed in the states was so implicit as to leave in them and their tribunals the power of resisting or defeating, in the form of law, the legitimate measures of the Union. The requisitions of congress, under the confederation, were as constitutionally obligatory as the laws enacted by the present congress. That they were habitually disregarded is a fact of universal notoriety. With the knowledge of this fact, and under its full pressure, a convention was assembled to change the system. Is it so

"The counsel for Virginia endeavor to obviate the force of these arguments by saying, that the dangers they suggest, if not imaginary, are inevitable; that the constitution can make no provision against them; and that, therefore, in construing that instrument, they ought to be excluded from our consideration. This state of things, they say, cannot arise until there shall be a disposition so hostile to the present political system as to produce a determination to destroy it; and, when that determination shall be produced its effects will not be restrained by parchment stipulations. The fate of the constitution will not then depend on judicial decisions. But, should no appeal be made to force, the states can put an end to the government by refusing to act. They have only not to elect senators, and it expires without a struggle. It is very true that, whenever hostility to the existing system shall become universal, it will be also irresistible. The people made the constitution, and the people can unmake it. It is the creature of their will. But this supreme and irresistible power to make or unmake, resides only in the whole body of the people; not in any subdivision of them. The attempt of any of the parts to exercise it is usurpation, and ought to be repelled by those to whom the people have delegated their power of repelling it.

"The acknowledged inability of the government, then, to sustain itself against the public will, and, by force or otherwise, to control the whole nation, is no sound argument in support of its constitutional inability to preserve itself against a section of the nation acting in opposition to the general will."

The case is reported in the sixth volume of Wheaton's Reports. It is the subject of lasting regret that in December, 1860, the volume had disappeared from the library of President Buchanan.

In Gibbons v. Ogden, decided in 1824, the grant of "power to congress to regulate commerce with foreign nations and among the

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several states," was subjected to his searching analysis. This was the power whose selfish and hostile exercise by the states in the days of the confederation had brought them to the verge of war, thus creating the most powerful of the incentives to the adoption of the constitution. But this case arose out of legislation and adjudication in the state of New York which proceeded as though the days of the confederation were not yet numbered. A suggestion, ingenious if not novel, in favor of the validity of the state's action with reference to the subject, notwithstanding the grant of power to congress and the exercise by congress of the power granted. was thus stated and swered: "As preliminary to the very able discussions of the constitution, which we have heard from the bar, and as having some influence on its construction, reference has been made to the political situation of these states. anterior to its formation. It has been said that they were sovereign, were completely independent, and were connected to each other only by a league. This is true. But, when these allied sovereigns converted their league into a government when they converted their Congress of Ambassadors, deputed to deliberate on their common concerns and to recommend measures of general utility, into a legislature, empowered to enact laws on the most interesting subjects, the whole character in which the states appear, underwent a change, the extent of which must be determined by a fair consideration of the instrument by which that change was effected."

Very many of the errors into which we fall in our processes of reasoning, and of the doubts which reflection and analysis should dispel result from the improper use of words. It would be interesting to know how materially the happiness and advancement of the nation would have beeen promoted if the congress of the United States had always been designated as the Legislature of the United States, and the offices of the states under our complex system as state functions, and never as state rights.

As if with a prevision of the magnificence of empire, commerce and statehood now realized, he so defined the boundaries of this important power as to enable the general government fully to accomplish the objects for which the power was conferred, and yet leave to every state the control of its internal commerce, and opportunity for the

appropriate exercise of its police power. The intermediate conclusions there stated are founded upon principles so clearly expressed as to suggest every limitation which subsequent experience has made necessary, and to make the conclusions the unerring guides to the nation and the states; and the principles of interpretation there invoked have been substantial aids in the interpretation of other provisions. Grants of power of this nature have no limitation which is not imposed by the constitution itself; commerce includes navigation and all modes of commercial intercourse; commerce among the states, though excluding that which is wholly within a state, includes that which traverses it or penetrates it from without; authority to pass inspection laws, health laws and other laws, not implying power to regulate commerce which is wholly or partly external, is in the mass of jurisdiction which resides in the states.

In the meantime the court. in diverse causes arising on land and sea, was developing all the departments of the law embraced within its wide jurisdiction with such learning and ability as to entitle the court to the confidence and respect of the nation, and attract to it the attention of the civilized world.

Marshall had devoted a third of a century to the duties of his high office when he came to Worcester v. Georgia, the last of his great opinions. The years had brought to his intellectual powers, not failure, but fruition. We are not now to look upon the flickering of a feeble light which is about to be extinguished, but upon the effulgence of a western sun, which, though it is soon to pass below the horizon will continue the guidance of its light reflected. This is not entitled to be considered his greatest opinon, because others involved questions much more vitally affecting the nation. What was the nature of the case? He comprehended it in a sweeping sentence: "The legislative power of a state, the controlling power of the constitution and laws of the United States, the rights, if they have any, and the political existence of a once-numerous and powerful people, the personal liberty of a c'tizen, are all involved in the subject now to be considered." Juridical literature does not suggest another whose resources would have been adequate to the production of this opinion. It is the opinion of the philanthropist the champion of treaty obligations, the

historian of the colonies and of the Revolution, the master of the law among nations and the father of constitutional interpretation.

In his day the Supreme Court was not only the tribunal for the final and authoritative determination of questions involving the powers of government and the rights of people, but it was for people and judges a school for the profound study of the constitution. The same questions of power were argued again and again, the desire of counsel apparently being to ascertain the effect of changes in the composition of the court, or of some new objection or the restatement of an old one. They were heard with patience and answered with care, as if the court deemed no time too important to be devoted to considering and expounding the provisions of the constitution. Outside the court the people and the politicians learned slowly, if at all. In it the judges learned rapidly. After Marbury v. Madison, and before the other cases to which special reference has been made, the composition of the court, excepting the Chief Justice and one associate, was completely changed. No one then suspected, no one familiar with the history of those times will suspect, that the new judges were appointed because of their enthusiastic acceptance of the national doctrines of the Chief Justice. But they were men of ability and patriotism, and when they met the grave responsibility of supporting the constitution as its meaning was revealed in the light which shone there, not one of them would consent that the government should fall by a decree of the tribunal which had been appointed to maintain it; and the life-giving national doctrines of those cases were laid down with the concurrence of all the judges.

Shortly before and after his death rapid changes in the composition of the court again occurred, and within a few years the change was nearly complete. No one in a responsible position, and having respect for his own fame, ever assailed the inexorable logic of his great opinions. No conclusion vital to the government which was reached by the court in his day was ever overruled. If it is possible to explain the process by which the constitution became atrophied in a few years, the explanation does not belong to this occasion. He viewed with anxiety the violence which at times marked the action of the centrifugal forces in our system,

and it is evident that he feared the strife which he did not live to see. To aid in averting it he never tired of appealing to reason. His broad national doctrines, so appropriate to the provisions of the constitution, so promotive of its well known objects, were founded in reason. When accumulating calamities attended the decline of their influence, it was restored by arms. Now, as if the payment of a great price had increased their value, those doctrines are accepted by all the people. In the court where he so long sat they are received without envy of his fame, and applied without intentional abridgement; and the court itself again occupies its rightful position high in the public confidence and respect.

To describe his reasoning, lawyers, judges, commentators and biographers have employed all the adjectives indicative of strength or lucidity. A great lawyer who often appeared before him characterized his power of reasoning as "almost superhuman." Some of his associates excelled him in knowledge of the precedents, but that was of small moment in the department of international law which was so rapidly outgrowing its precedents, and of no moment at all in the department of constitutional law where there was no precedent. His illustrious achievements in the field of highest intellectual endeavor resulted from a concurrence of favoring conditions which was unusual if not unprecedented. He was strong in body, mind and purpose. He had the intellectual integrity to apply knowledge to every purpose for which it might be useful, and to accept without abatement the conclusions indicated by reason. He may have been aided by safe in

stincts, but he did not find the truth by le ai

chance. He knew the ways which led to it. Extraordinary native endowments were strengthened by the study and reflection to which patriotism inclined him. More completely than any of his contemporaries he had assimilated the history of the colonies and the confederation. Hence the irresistible passages in his opinions in which he applies those trusted tests of interpretation the evils which were to be cast out, the objects which were to be attained. His mind was stored with lessons drawn from the experience of every nation which had ever aspired to be free, and he comprehended their demonstration that most of the crimes against liberty are committed in the name of liberty. We have no opportunity for the study of a

more constant character. From youth to age, for nearly sixty years, he was an unremitting force for order, for government, for liberty regulated by law and perpetuated by the law which regulates it. He brought adequate powers to the performance of grave and unprecedented duties. In their performance he was aided by a bar of deserved renown. Until near the close of his career his associates on the bench were all men of ability and of ambitions befitting their position. Not only was he favored by these conditions, but his powers matured early and endured long. Forty-four years intervened between his luminous addresses in the Virginia convention and his masterful opinion in Worcester v. Georgia. They were remarkable years, for they were exempt at their beginning from the unripeness of youth, and at their close from the infirmities of age. In estimating his character we find no words of mere eulogy, for it appears from abundant evidence that he had neither vice nor foible requiring a subtraction to be made from the large sum of his virtues. His life

is conspicuous among those which remind us of the sub'imeness of life. The value of his public services cannot now be estimated, for the course of the constitution is not yet finished. In thirty-six opinions in cases requiring interpretation of its provisions scarcely one of them escaped his analysis. So convincingly was their meaning unfolded, and with such felicity were the principles of interpretation defined, that it is to be doubted whether in sixty-five years a question of that character has arisen in federal or state court to whose proper solution his learning has not contributed. Among our nation builders, he was the finisher. To those who had wrought so well in the other departments of the work he had been attached by the strongest of bonds which can unite men-companionship in danger and glory. He survived them by a generation; and with pious devotion he guarded the constitution as the Ark of the nation's covenant, containing the treasures of the Revolution and of all our history. He was the last survivor of our great creative Triumvirate.