that army for bravery, for intelligence and for serenity in the midst of vexations-distinguished for the qualities which were subsequently to make his name so illustrious. That he attracted the admiration and confidence of the commander-in-chief was of abiding importance, for it was to call him into the public service in critical periods which were to follow the war.

On the reopening of the courts of Virginia after the surrender of Cornwallis he began the practice of the law. His professional studies had chiefly been pursued amid the turmoil and distractions of the war, and he could not have brought to the bar the fruits of extensive research.

His grasp of legal principles was intuitive. His aptitude for his chosen profession was apparent. Hosts of friends were attracted to him because of his splendid intellect, his lofty character and his genial nature. He at once took position in the foremost rank of the profession and fortified it at every trial of strength. He was entirely without those arts which are commonly designated by the phrase "the graces of oratory." The character and habits of his mind were already established. His talent was analytical and constructive. He would have been metaphysical if he had not been intensely practical. He never interrupted the flow of his own discourse. He restated no proposition. He made no room for catch phrases. His sentences were incisive, and every sentence was a step in the direct and resistless progress of his mind from premises to conclusion. A contemporary aptly likened one of his discourses to the easy but unremitting advance of the dawn. His speeches, like his opinions, abound in sententious questions, not only those general questions which comprehend cases and subjects, but those subordinate questions which occur in the process of analysis and argument, so stated as to suggest inevitable an

swers.

His aptness for his chosen profession was illustrated by conspicuous triumphs even in his youth. His devotion to it was shown by numerous refusals of tempting invitations to enter public life. But the dominant question of the times was in his estimation of vital importance. It was whether the liberty which had been achieved by the Revolution should be enshrined in a government capable of preserving it or be permitted to fall into anarchy and disappear in despotism.

Liberty had sojourned upon the earth before, and such had been its fate. He had seen the war of the Revolution prolonged through unnecessary years. He had passed through defeats which would have been victories if there had been a government authorized to command the military resources of the people. He was an appreciative and humiliated witness to the embarrassment which resulted from the inability of congress to perform its treaty obligation because it was without power to levy a tax. All about him his maimed and broken companions in arms were in want because congress was unable to pay them the promised compensation for military services. He had seen a nation conceived in patriotism born in repudiation. He could not refuse to aid a cause which he believed to be necessary to complete the work of the Revolution. He accordingly accepted service as a member of the legislature of Virginia, where he was tireless in his efforts to secure a favorable response to the calls of congress. Everywhere he was an earnest advocate of a competent general government.

Upon the submission of the proposed constitution he became an earnest advocate of its ratification. In seventeen hundred and eighty-eight he entered the Virginia convention which was called to decide whether that instrument should be ratified. Though known to favor ratification, he was chosen by a constituency opposed to ratification. He entered a convention which was confidently believed to be opposed to ratification. His contemporaries were familiar with sovereignties divided by geographical lines, but that there should be two sovereignties existing within the same limits and operating upon the same people was to many of them an incomprehensible suggestion. Imperium in imperio was not beyond their power to translate, but it was far beyond the power of many of them to comprehend. They were learned with respect to national constitutions consisting of fundamental principles which had received more or less sanction from usage, but which might be overthrown in a moment by an unlimited monarch or an unlimited parliament; but an instrument authoritatively locating and limiting the various functions of sovereignty and defining the modes of their exercise, as did the proposed constitution, had never been tried. The opponents of the instrument were active throughout the country and nearly nu

merous enough to prevent its ratification. Nowhere was the struggle of that critical period more intense than in Virginia. The psychologists have not attempted to explain the phenomenon, but many who in other respects seemed patriotic and sane believed that while from their representatives assembled at state capitals, the people might expect a reasonable regard for their liberties from those who should assemble at the capital of the nation they could anticipate only aggression and outrage. All had objected to taxation without representation; they objected to taxation without respect to its conditions or objects. They had or affected a dread of a federal judiciary with jurisdiction to uphold national authority by pacific means, and of military power sufficient to maintain order and resist foreign aggression. In support of these powers, and in answer to these objections, he spoke in the convention. In the opening sentence of one of these addresses he comprehended the entire controversy: "I conceive that the object of the discussion now before us is, whether democracy or despotism be more eligible." In this antithesis those who, assuming to be pre-eminently the friends of liberty, opposed the establishment of a competent general government were classed among the advocates of despotism. One who will thoughtfully read his speeches in amplification of that sentence, weighing all that is stated and suggested, must conclude that the classification was correct. He will also have compassed a volume on the philosophy of government. Axioms, maxims, analogies, the lessons of history remote and near, were invoked without formal statement. In the long and philosophic forecast of such a mind, the dictator is not to be dreaded more than the excesses of liberty-the intolerable license and disorder-which are the dictator's opportunity. * * * "All delegated powers are liable to be abused. Arguments drawn from that source go in direct opposition to all government, and in recommendation of anarchy. The friends of the constitution are as tenacious of liberty as its enemies. They wish to give the government power to secure and protect it."

He defined with clearness the boundaries between the subjects of state and federal cognizance. He outlined the powers of the federal judiciary to whose systematic development he was to contribute so much. To the objection that the federal legislature

might riot in unanticipated power he answered with one of the earliest--if indeed it was not the first-statement of the proposition, now so familiar, that a legislative enactment in excess of power conferred or in disregard of a constitutional limitation imposed is void, and that it is the duty of the courts so to declare it. His addresses were replete with an analysis of the functions of government and the provisions of the instrument considered, with the lessons of history and the admonitions of patriotism. His great influence in securing the small majority by which the instrument was ratified was universally admitted. If his career had ended with the Virginia convention, when he was only thirty-three years of age, he would have held a high and permanent place among the authors of constitutional liberty.

For the ensuing nine years he devoted himself to his profession with great and constantly increasing reputation, achieving high rank among the lawyers of the nation. He declined the invitation of the first president to become a member of his cabinet as at torney general, and also the mission to France. He did, however, for brief terms reluctantly, but dutifully, serve as a member of the Virginia legislature where the cause of nationality met stubborn opposition.

In seventeen hundred and ninety-seven when war with France seemed imminent he was appointed one of three commissioners to that country. His selection was determined chiefly by his thorough knowledge of the law among nations. He did not feel at liberty to decline the appointment. At Paris communications passed touching the relations of the two countries, those on the part of France being written by Talleyrand, those on the part of the United States by Marshall. The controversy concerned the rights of neutrals, or more precisely the right of the United States to remain neutral in the conflict between France and Great Britain and its right honestly to maintain the neutrality which it had declared. He was quite able to confound the minister with his learning and to refute every accusation brought against the United States. But after a few months of vain endeavor to bring either the minister or the Directory to a course of rational conduct, or even to honorable and respectful negotiation, he re turned to the United States. An abundance

of contemporaneous evidence shows that by his learning and bearing during this brief but trying mission, he exalted the American name in Europe, and his own name among patriotic Americans.

Upon his return, in view of the emergency then existing he consented to an election to congress in order that the government might be supported by the representative from his district. Before the expiration of his term the danger of war had passed and he resigned his seat. He then served for a few months as secretary of state in the cabinet of the second president, writing state papers of conspicuous ability and of permanent value. In the meantime he had declined the office of associate justice of the Supreme Court. In the legislative bodies in which he sat he had vindicated constitutional prerogatives of the President by arguments which carried conviction to unwilling minds, and dissipated the opposition of hostile majorities.

Thus prepared he came to the office of Chief Justice. Now indeed the days of the confederation were numbered and the efficacy of the constitution to develop the might of the nation was to be made manifest. The enemies of the constitution had not accepted its ratification as the conclusion of the struggle. In congress, in the legislatures and courts of the state and in public assemblies efforts to impede the government in the exercise of the powers conferred continued to be made. From this opposition the federal courts were not exempt. Their process was resisted, and the finality of the judgments of the court of last resort was often denied. France was exhibiting the abhorrent crimes which may be committed in the name of liberty; and many of our forefathers, applauding the spectacle, desired to reproduce it here. Although more than ten years had passed since the organization of the Supreme Court, but few constitutional questions had been decided. It had been decided in seventeen hundred and ninety-three that the federal courts had jurisdiction of a suit against a state by a citizen of another state. This was contrary to the view presented by Marshall in the Virginia convention; and the Eleventh Amendment, expressly denying such jurisdiction, had followed the decision. Although the judges of the court were men of ability and patriotism who neither abandoned their duty nor acquiesced in the degradation of the court, it had accomplished but

little of the great work which had been assigned to it. Its position was pathetically described in a sentence by the noble, but over-tried, Jay. The president had invited him to return to the office of chief justice for the purpose, as he said, of "furnishing the country with the best security afforded its inhabitants against its increasing dissolution of morals." In his letter of declination, written January 2, 1801, Jay said: "I left the bench perfectly convinced that under a system so defective it would not obtain the energy, weight and dignity which were essential to its affording due support to the general government; nor acquire the public confidence and respect which, as the last resort of the justice of the nation, it should possess." Surely, here was need for the intrepidity of John Marshall. His appointment followed.

Another lawyer never entered such a world of opportunities. It was known and said that the constitution was the result of many patriotic concessions. Perhaps no one who supported it in the general convention, or in the state conventions, was quite satisfied with its provisions. The concessions were not wholly, nor chiefly, with respect to its definite provisions, but rather to those which vested power in such general terms that the constitution, in respect to matters of gravest importance, was properly regarded as an instrument enumerating, rather than defining, the powers conferred. To the provisions of this character men of opposite views gave their support, each hoping that in its practical operation the instrument would be found expressive of his views. Of the many questions thus left for construction the most important, so far as we can yet see, were to be determined in the time of his service which embraced what has been aptly called "the golden age of the Supreme Court." It was now to be demonstrated that the feature of the constitution which was dictated by the purest patriotism was justifiable by the highest wisdom; that with respect to constitutions, as well as other departments of the law, that which is most valuable results from the slow processes of evolution, and that to the highest form of statesmanship faith in others and in the future is indispensable. Recalling, for this occasion, only the very greatest of Marshall's opportunities, the first in time-if, indeed, it was not first in importance-came in Marbury v. Madison, decided in 1803. The

case determined two questions of lasting importance. They arose out of the alleged unconstitutionality of the act by which congress had attempted to confer upon the Supreme Court the original jurisdiction which it was then asked to exercise. By reasoning so convincing that it does not appear to have been doubted since, he sustained the proposition that a constitutional grant of original jurisdiction to a court, accompanied by a grant of legislative authority to confer upon it appellate jurisdiction, excludes the power of the legislature to confer other original jurisdiction. The second question was whether a legislative act, repugnant to the constitution, can be the law of the land. The question was not quite new then, but it was undetermined. Some doubts and varying views respecting it had been expressed in the circuits, and opposite conclusions had been reached by courts of last resort in the states, some of them holding that a constitutional limitation upon legislative power is a mere admonition to legislative bodies. The remorseless reasoning with which he refuted that view remains a model of juridical literature: "The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act. Between these alternatives there is no middle ground. 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. tainly all those who have framed written constitutions contemplate them as forming

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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 was the realization of the promises of the constitution. It was the nation's escape from the insecurity of life and property which attend the exercise of unlimited power, whether it be exercised by king or parliament. It was the fulfillment of the hope which fifteen years before he had offered to those who feared congressional tyranny.

Then followed rapidly cases in which the same doctrine was applied to acts of state legislatures; and it was shown that the constitution of the United States contains what may be deemed a bill of rights for the people of each state. Numerous propositions of importance were decided in ex parte Bollman and another in 1807 and stated and supported with his accustomed clearness and vigor; that the jurisdiction of the court is derived from the constitution and laws consistent with it, that jurisdiction is authority to decide between individuals and between states and individuals, that it is clearly distinguishable from the inherent powers of courts to control their officers and enforce their process; that jurisdiction in habeas corpus was conferred upon the Supreme Court by the judiciary act of 1789 and that the inquiry concerned not guilt, but the legality of the detention. His definition of the elements of the crime of treason in that case and upon the trial of Burr which soon followed, evoked much criticism in the excitement of the time. If in the calmness of present retrospect there are those who think that too much was required of the prosecution, so long as the impartial administration of justice shall be held dear, there will be universal admiration for the judge unmoved by criticism of president or clamor of populace and unaffected by his own unfavorable opinion of the general character of the accused.

Whether it resulted from a deliberate purpose to defy authority, or from inveterate inability to locate the boundary between state and federal jurisdiction, it was found necessary in the case of the United States v. Peters, decided in 1809, to announce a vigorous opinion to enforce, if not to sustain, the proposition that the legislature of a state cannot determine the jurisdiction of the

courts of the United States, nor annul their judgments.

Now and then the admirers of political bric-a-brac advance the view that the constitution emanated from the states, and not from the people. Marshall's great opinion in McCullough v. Maryland (1819), left small reason for adhering to that view: "The powers of the general government, it has been said, are delegated by the states who alone are truly sovereign, and must be exercised in subordination to the states who alone possess supreme dominion. It would be difficult to sustain this proposition. The convention which framed the constitution was indeed elected by the state legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation or pretensions to it. It was reported to congress with a request that it 'might be submitted to a convention of delegates chosen in each state by the people thereof, under the recommendation of the legislature for their assent and ratification.' This mode of proceeding was adopted, and by the convention, by congress, and by the state legislatures, the instrument was submitted to the people. They acted on it in the only manner in which they can act safely, effectively and wisely on such a subject, by assembling in conventions. It is true they assembled in their several states-and where else should they have assembled? * * * The assent of the states, in their sovereign capacity, is implied in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it, and their act was final. 'It required not the affirmance of, and could not be negatived by, the state governments. The constitution when thus adopted, was of complete obligation, and bound the state sovereignties. * * *

"If any one proposition could command the universal assent of mankind, we might expect it would be this-that the government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result necessarily from its nature. It is the government of all, its powers are delegated by all, it represents all and acts for all. Though any one state may be willing to control its operations no state is willing to allow others to control them. The nation, on these subjects on which it can act, must necessarily bind its component parts."

* *

* * *

In that case he also pointed out the peculiar nature of a constitution as the subject of interpretation, and then was made manifest the wisdom of the employment of general terms in that instrument: "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 scarcely 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. In considering this question, then, we must never forget that it is a constitution we are expounding * A constitution is intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs, to have prescribed the means by which the government should, in all future time, execute its powers, would have been to change entirely the character of the instrument and give it the properties of a legal code. It would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. * * * But the constitution has not left the power of congress to employ the necessary means for the execution of the power conferred on the general government to general reasoning. To its enumeration of powers is added that of 'making all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this constitution in the government of the United States or any department thereof.""

The ultimate proposition established by the case is that a state government cannot tax any of the constitutional means employed by the general government to execute its constitutional powers. The same doctrine was defined and enforced in Osborn v. The Bank (in 1824), when the people of Ohio were called back from nullification to obedience. McCullough v. Maryland was followed closely in doctrine as well as time by Cohens v. Virginia. The most important question was whether the court had jurisdiction to review a judgment of the court of last resort in a state by which a right or immunity