John Forrest Dillon.

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 (Volume 03) online

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Online LibraryJohn Forrest DillonJohn 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 (Volume 03) → online text (page 1 of 40)
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JOHN MARSHALL

LIFE, CHARACTER AND
JUDICIAL SERVICES



As Portrayed in the Centenary and Memorial Ad=

dresses and Proceedings Throughout the United

States on Marshall Day, 1901, and in the

Classic Orations of Binney, Story,

Phelps, Waite and Kawle



Compiled and Edited with an Introduction
By

JOHN F. DILLON

ILLUSTRATED WITH PORTRAITS AND FAC-SIMILE
IN THRE,E VOLUMES

VOLUME III



CHICAGO

CALLAGHAN <5 COMPANY

1903




,1 <? " 5



COPYRIGHT, 1903,

BY
CALLAGHAN AND COMPANY.



STATE JOURNAL PRINTING COMPANY,
PRINTERS AND STEREOTYPERS,
MADISON, wis.



TABLE OF CONTENTS OF VOLUME III.



Commemorative Proceedings and Addresses on John Marshall Day,

1901, in the various States and Territories of the Union:

Page.

ARKANSAS 1

KANSAS 43

NEBRASKA 65

COLORADO 95

NORTH DAKOTA 136

SOUTH DAKOTA 145

NEW MEXICO 163

CALIFORNIA 178

IDAHO 197

MONTANA 206

OREGON 212

WASHINGTON 242

EULOGY OF HORACE BINNEY . .< 281

EULOGY OF MR. JUSTICE STORY 327

ADDRESS OF EDWARD J. PHELPS 381

ADDRESS OF CHIEF JUSTICE WAITE 402

ORATION OF WILLIAM HENRY RAWLE 408

RESOLUTIONS OF BAR ASSOCIATION OF PHILADELPHIA, 1831 430
ADDRESS OF NATIONAL COMMITTEE OF AMERICAN BAR AS
SOCIATION ON JOHN MARSHALL DAY 434

TABLE OF CASES 439

INDEX TO THE WORK 445



12.0937



ILLUSTRATIONS, VOL. Ill EXPLANATORY NOTES



PORTRAIT OF MARSHALL - - Frontispiece

The frontispiece of the present volume is engraved by Gutekunst
of Philadelphia, from what is known as the Inman portrait. The
correspondence which resulted in the production of this portrait is
given in the proceedings of the Bar Association of Philadelphia in
1831, contained in the Appendix to the present volume. Referring
to this portrait Professor Thayer says: "It was at this period, in
1831 and 1832, that Inman s fine portrait of him, now hanging in the
rooms of the Law Association of Philadelphia, was taken for the
Bar of that city. A replica is on the walls of the State Library in
Richmond, which Marshall himself bought for his only daughter.
The portrait is regarded as the best that was ever taken of him in
his later life. Certainly it best answers the description of him by
an English traveler, who saw him in the spring of 1835, and said
that the venerable dignity of his appearance would not suffer in
comparison with that of the most respected and distinguished-look
ing peer in the British House of Lords. " Of this portrait Mr. Jus
tice Mitchell of the Supreme Court of Pennsylvania says: "There
are many portraits of the Chief Justice, but most of them by in
ferior artists who failed wholly to catch or portray the spirit and
character of the man. The standard and only satisfactory like
ness is the one painted by Henry Inman for the Philadelphia Bar,
which now hangs in the Library of the Law Association of this
city. It gives us the mature man, with all the qualities that his
contemporaries ascribe to him the thin, rather small face, the
broad brow with a mass of dark hair growing low down on it, the
benignant half smile, and the keen but kindly black eyes that Will
iam Wirt said possess an irradiating spirit which proclaims the
imperial powers of the mind within. "



v Illustrations Explanatory Notes.

STATUE OF CHIEF JUSTICE MARSHALL, WASH
INGTON Page 327
This statue, which is in bronze, was unveiled in front of the Cap
itol, May 10, 1884. It is inscribed "John Marshall, Chief Justice of
the United States, erected by the Bar and the Congress of the United
States, A. D. MDCCCLXXXIV." Its history is set forth in the ad
dresses of Chief Justice Waite and Mr. Rawle, which are given in
the Appendix. A most interesting feature of the statue is that it
was the work of the eminent sculptor, William W. Story, son of
Mr. Justice Story, the devoted friend and associate of Marshall for
a quarter of a century.




JOHN MARSHALL MEMORIAL.



STATE OF ARKANSAS.

Pursuant to a resolution of the American Bar Associa
tion, which was concurred in by the Bar Association of
Arkansas, a committee was appointed at a meeting of the
Bar of Little Rock to make proper preparations for the
observance of February 4, 1901, as "John Marshall Day."
The committee selected the Federal court room at Little
Rock as the place for such observance, and chose as the
orators of the occasion Hon. John McClure, to speak upon
the life of the distinguished jurist, and Hon. U. M. Rose
to speak upon his services. Invitations were extended to
the judges of the Supreme Court of the State, the Honor-
ables Henry GLBunn, Chief Justice, BurrillB. Battle, Simon
P. Hughes, Carroll D. "Wood, and James E. Riddick, Asso
ciate Justices, to preside in conjunction with the Honor
able Jacob Trieber, United States District Judge; the
Chief Justice of the Supreme Court, Henry G. Bunn, to
be the active presiding officer.

The attendance was very large. The Senate and House
of Representatives at Little Rock, then in session, accepted
the invitation of the committee and attended in a body.
There was also present a large concourse of judges, law
yers and citizens, including many ladies.

The presiding officer in opening the meeting said:
You III 1



John Marshall Memorial. 2

Address of Henry G. Bunn.

We have met together on this, a day to be observed
throughout the United States, to celebrate, in the ap
pointed way, the one hundredth anniversary of the acces
sion of John Marshall as Chief Justice of the United
States. People in nearly all the other walks of life have
been in the habit of selecting and canonizing the most
deserving of their dead, and now for the first time the law
yers have bethought themselves to do the same thing, and
by common consent have named this great man as worthy
of universal acclaim.

Chief Justice Marshall, after having passed through the
soldier s and statesman s experience, was placed at the
head of the judiciary of the United States just one hun
dred years ago. The Supreme Court, until then, had
little promise of becoming a very important factor in the
development of this young Eepublic, but this was all
changed by the subject of these memorial services. Ex
cept in cases growing out of controversies between indi
viduals and of international law, the Chief Justice and
his associates had little or no help from precedents as
judges now have. This was a new government none
like it had appeared in all the world. He and his asso
ciates in most matters pertaining to the workings of the
government moved in new paths and with original ideas.
With an integrity and an ability unsurpassed in the
world s history, this man, in a long judicial career, did his
duty so well as to command universal respect and praise.
It is therefore the befitting thing to do, as we have met
to do, to commemorate his virtues as one of the nation s
greatest men.

Senator James K. Jones, who was unable to be present,
sent a letter to the committee in charge of the celebra-



3 Arkansas Address of John McCiure.

tion, which was read to the audience; there was also read
a telegram from Adolph Moses, Chairman of the Asso
ciated Committees of Illinois, sending greetings of Illinois
to Arkansas.

And these proceedings having been completed, the
orators of the day were introduced, and delivered the
orations which follow.

The address of Mr. McCiure deals with the life of Mar
shall, in accordance with the request of the Bar. Want
of space compels the editor to omit biographical details
concerning Marshall s private and public life prior to his
accession to the Bench ; but so much of the address as
relates to his judicial career is given in full.

Address of John McCiure.

On the reorganization of the cabinet of Mr. Adams,
Marshall was offered the position of Secretary of War,
and this he declined. Mr. Pickering was later removed
from the position of Secretary of State and Marshall was
tendered this position, and he accepted the same. This
position he held until he was appointed Chief Justice,
which was on the 31st of January, 1801.

When the Presidential election in 1800 resulted in trans
ferring the choice between Jefferson and Burr to the
House of Eepresentatives, Marshall s inclination was to
throw such influence as he had in favor of Burr. While
he was debating the matter in his own mind, Hamilton
wrote him telling him what kind of a man Burr was. In
response to Hamilton Marshall wrote: "To Mr. Jeffer
son, whose political character is better known than that
of Mr. Burr, I have felt almost insuperable objections.
His foreign prejudices seem to me to totally unfit him
for the chief magistracy. Your representations of Mr.
Burr, with whom I am entirely unacquainted, show that



John Marshall Memorial. 4

from him still greater danger than from Mr. Jefferson
may be apprehended. Such a man as you describe is
more to be feared, and may do more immediate if not
greater mischief. Believing that you know him well and
are impartial, my preference would certainly not be for
him ; but I can take no part in the business. I cannot
bring myself to aid Mr. Jefferson." Without the aid of
Marshall Mr. Jefferson was elected.

Between Marshall and Jefferson two different theories
existed as to the nature and powers of the government
created by the Constitution of the United States. Jeffer
son contended that the government formed by the Con
stitution was a compact; that a State, if it did not like
the legislation of Congress, could withdraw from the
compact at its pleasure; that the States, being distinct
sovereignties, had the right, each for itself, to determine
its course of action, and that no tribunal was created by
the Constitution to decide such a controversy in case of
dispute. The theory of Marshall was that the Consti
tution created the people of the United States into a
Nation; that if disputes arose affecting the life or prop
erty of its citizens, or as to the power conferred by the
Constitution upon the executive, legislative or judicial
departments, it was for the proper tribunal under the
Constitution, and not the States, to decide. You may
ask why I speak of these differences of Jefferson and
Marshall when I have been chosen to speak of Marshall
alone. I do it to show you the wisdom of Marshall and
the great results which flowed from his sagacity.

In referring to the differences between these men, it
it is not for the purpose of belittling Jefferson, but to ac
cord to Marshall his just meed of praise. As a President
compelled to follow the Marshall theory, it may well be
doubted whether any man who succeeded Mr. Jefferson



5 Arkansas Address of John McClure.

in the Presidential office ever contributed so much by his
policy to the greatness of this country.

Senator Chase, who was afterwards Chief Justice of
the United States, was making a speech in the Senate on
the subject of slavery, and after quoting from certain
utterances of Jefferson showing he was opposed to slav
ery, said: " I do not know that any monument has been
erected over Jefferson in Virginia." Senator Mason
said: "There is a granite obelisk." Chase replied:
" No monumental marble bears a nobler name." Senator
Seward said: "The inscription is: Here was buried
Thomas Jefferson, author of the Declaration of Ameri
can Independence, of the statute of Virginia for religious
freedom, and the father of the University of Virginia. "
Chase then said: "It is an appropriate inscription, and
worthily commemorates distinguished services. But, Mr.
President, if a stranger from some foreign country should
ask me for the monument of Jefferson, I would not take
him to Virginia and bid him look on a granite obelisk,
however admirable its proportions or its inscription. I
would ask him to accompany me beyond the Alle-
ghanies, into the great Northwest, and I would say to
him: Si monumentum requiris, circumspice behold on
every side his monument. These thronged cities; these
nourishing villages; these cultivated fields; these million
of happy homes of prosperous freemen; these churches;
these asylums for the unfortunate and helpless; these in
stitutions of education, religion and humanity; these
great States great in their present resources, but far
greater in their mighty energies by which the resources
are to be developed, these are the monuments of Jeffer
son. His monument is all over our western land

Our meanest rill, our mightiest river,
Rolls mingling with his fame forever. "



John Marshall Memorial 6

Such is the tribute rendered to Jefferson, not by one
who agreed with him as to his theory of the government
formed by the Constitution of the United States, and
such is the tribute now paid him by your orator.

But I do not stop where Senator Chase did. What he
described as Jefferson s monument no more describes an
other monument of his greatness than does the simple
granite obelisk in the State of Virginia. If a stranger
from a foreign land were to come to me and ask me
where is Jefferson s greatest monument, I would not
allow him to tarry long in the great Northwest, but would
bring him within the confines of the Louisiana Purchase,
out of which is carved Louisiana, Arkansas, Missouri,
Iowa, Minnesota, South Dakota, North Dakota, Colorado,
Wyoming, Montana, Oregon, Washington, Oklahoma and
Indian Territories, and last but not least, the great Missis
sippi river and its tributaries, with the right of navigation
free of toll from its source to its mouth. I would bid
him view the thronged cities therein; the flourishing
villages; the cultivated fields; the millions of happy
homes of prosperous freemen ; the churches ; the asylums
for the unfortunate and helpless; the institutions of edu
cation, religion and humanity, and say: "This, of all the
monuments evidencing the sagacity and foresight of Jef
ferson, is the greatest, the most lasting, and most endur
ing." Yet if, during the first term of Jefferson, South
Carolina had elected to do what it did in 1832, under
Jackson s administration, and he had adhered and allowed
his action to be controlled by the Virginia and Kentucky
resolutions, the monument to which we all now point
with pride would not exist. Marshall, by his construc
tion of the Constitution, created a Nation ; to that Nation,
through Jefferson, came the States of Ohio, Indiana;,



7 Arkansas Address of John McClure.

Illinois, Wisconsin and Michigan freed from the blight
of slavery. Jackson preserved that Nation, and these
three constitute a trinity, whose monuments are as one.

Later on the theory for which Jefferson contended led
to a conflict wherein men, who, as children, nursed the
same mother s breast; who repeated the same prayer at
her knee ; who were baptized at the same font and con
firmed at the same chancel, were arrayed against each
other, and ere it was ended, sorrow and grief were writ
ten on the glad brow of childhood ; the heart and hope
of youth were chilled ; the life current of early manhood
reddened an hundred battle fields; the step of the gray-
haired father and mother was quickened on its pace to the
grave, and the bridal wreath was turned into widow s
weeds in the honeymoon of wedlock. The conflict ended,
and that for which Marshall contended triumphed, and
that for which Jefferson contended became the "lost
cause."

Justice Story, in 1835, in an address before the Suf
folk Bar, in speaking of Marshall, says : " He who has
been enabled by the force of his talents and the ex
ample of his virtues to identify his own character with
the solid interests and happiness of his country; he who
has lived long enough to stamp the impressions of his
| own mind upon the age, and has left on record lessons
of wisdom for the study and improvement of all poster
ity, he, I say, has attained all that a truly good man
aims at, and all that a truly great man should aspire to.
He has erected a monument to his memory in the hearts
of men. Their gratitude will perpetually, though it may
be silently, breathe forth his praises; and the voluntary
homage paid to his name will speak a language more in
telligible and more universal than any epitaph inscribed on
Parian marble, or any image wrought out by the cunning



John Marshall Memorial. 8

hands of sculpture. . . . Even if the Constitution of his
country should perish, his glorious judgments will still re
main to instruct mankind, until liberty shall cease to be a
blessing, and the science of jurisprudence shall vanish
from the catalogue of human pursuits."

One hundred years ago to-day Marshall took the oath of
office as Chief Justice of the United States, and his seat on
the bench of the Supreme Court. I have heard men express
wonder as to where and when he acquired the wonderful
knowledge of the law which subsequent events showed him
to possess. The question is easily answered. He learned
it largely as all great judges have learned it, from the
lawyers appearing before them. It was taught him by
Dallas, Tilghman, McKean, Ingersoll, Lewis, Mason, Lee,
Minor, Key, Jones, Swann, Simms, Harper, Breckenridge,
Martin, Rodney, Hare, Rawle, Clay, Bradley, Broom,
Youngs, Adams, Binney, Winder, Pinkney, Dexter, Sedg-
wick, Webster, Wheaton, Ogden, Sergeant, Wirt, Wick-
liffe, Berrien, Taney, Peters, Grundy, Ewing, Yinton, Bibb,
Frelinghuysen, and a score of others.

He knew that it was not the knowledge of the law
which he acquired before he went on the Bench that
would make him a great judge. He knew that in a ju
dicial position if he acquired a knowledge of the law at
all it had to be acquired from the lawyers. It does not
appear that he ever left the Bench during the argument
of a cause, and let it proceed while he took his lunch ;
nor does it appear that during the argument of a cause
he spent his time reading his correspondence, or the
proof sheets of an opinion in another case; nor does
it appear he went to sleep on the Bench when a case
was being argued. Story, who was on the Bench with
him, says: "He was solicitous to hear arguments and



9 Arkansas Address of U. M. Rose.

reluctant to decide causes without them. No matter
whether the subject was new or old, familiar to his
thoughts or remote from them, buried under a mass of ob
solete learning or developed for the first time yesterday
whatever its nature, he courted argument, nay, he de
manded it." It was this, and not the gown and commis
sion, that made him a great judge. When he presided
over the court, you never saw a smile of satisfaction pass
over his face, or that of his associates, when it was an
nounced the cause would be submitted without argu
ment, nor would you hear a sigh of relief passing up
ward carrying the words: " Thank God for that."

Moses lies in a lonely grave by Nebo s mountain, in a
vale in the land of Moab. After the centuries which
have passed since his death, the law which he brought
from Sinai s mount has stood the test of time, and is
to-day the woof and warp of the morality of the civilized
world. He was at the birth of the ten commandments,
as Marshall was at the birth of constitutional law. The
law Moses found for the children of Israel has withstood
the centuries of the past and will withstand the centuries
to come. That which Marshall found has survived a
century, and will so continue as long as constitutional
government shall exist, and the winds that pass over
Beth-peor s hills, as they in their course pass over the
nation made by Marshall, will chant a requiem to the
greatest jurist of any age or any clime.

Address of U. M. Rose.

I am not here to pronounce a eulogy on John Marshall ;
but the language that would express the most sober and
discriminating estimate of his character might easily be
mistaken for eulogy. There is not a man living that



John Marshall Memorial 10

could add anything to his fame, or that could pluck a
single leaf from the chaplet of laurel with which he was
crowned by public acclamation long ago. Though younger
in years, he was contemporaneous with that remarkable
galaxy of men that sat around the cradle of American
liberty; men such as Washington, Hamilton, Franklin,
Madison, Jefferson, and a score of others that might be
mentioned, all men of extraordinary ability, all animated
by the same devotion to the cause of their country, which
was at the same time the cause of humanity. Never since
the age of Pericles had a country so small in population
produced so many men in the same generation of such
splendid endowments. Born with a keen thirst for knowl
edge, and impelled by an ardent emulation to profit by
their illustrious example,! John Marshall had the advan
tage of knowing personally in their declining years all
of these great fathers of the Eepublic, of observing their
lives, and storing in his memory words of wisdom which
in after days served him foi guidance and for inspira
tion ; so that his whole life became a sort of continuation
of their traditions and of their manly virtues.

The name of Marshall is as inseparably connected with
the Constitution of the United States as that of Hamilton
or Madison or of any one else that helped to frame that in
strument. If others conceived the form of government
which it was to ordain, it was Marshall that, more than any
other one man, gave precision to its meaning, and translated
it from a seeming abstraction into a practical force, suited
to the varied exigencies of national life. The value of
the Constitution and of the interpretation which it has re
ceived are both attested by the fact that under their com
bined influence we have increased in wealth, in popula
tion and in intelligence in a ratio of which history has



11 Arkansas Address of U. M. Rose.

never recorded a kindred example. If we have failed in
some things, and if, considering our opportunities, we are
neither as good nor as wise as we ought to be, the fault
has not been with the Constitution, nor with the decisions
of Marshall, but with ourselves. We have had the larg
est measure of personal freedom. We have had the selec
tion of our own rulers; so that we cannot lay any serious
miscarriage to the form of our government. It is im
perfect, as all things that we know are imperfect; but it
is extremely doubtful whether anything better could be
devised. Judging from the result of experiments that
have been made in other countries we have abundant
reason to be content with the instrument itself, and with
the interpretation of the powers of the government by
the great Chief Justice and his colleagues to whom this
grave and important duty was intrusted ; reflecting that
there is no government that by its own unaided action
will of itself work out satisfactory results. A popular
government must always reflect the follies and demerits
of those by whom it is controlled, as well as their vir
tues; and eternal vigilance is not only the price of lib
erty, but it is the price of almost everything else that is
worth having.

Mr. Gladstone spoke of the American Constitution as
" the most wonderful work ever struck off at a given time
by the brain and purpose of man." This saying has been
made the subject of rash and unmerited criticism, as if it
had been intended to convey the idea that the Constitu
tion owed nothing to pre-existing institutions, to the les
sons of history, or to the labors of many illustrious men
in the science of government. It is needless to say that
if the framers of that instrument had discarded such
obvious means of enlightenment their work would have



John Marshall Memorial. 12

proved but an abortion. In one sense it is certainly true
that there is nothing new under the sun. It detracts not
from the fame of the inventor of the steam-engine to say
that he only made use of a well-known force and of well-
known materials to accomplish his results. So it was
with the framers of the Constitution. The materials
with which to accomplish their task were at hand; but
the work of combination and adjustment between the
powers of the Federal Government and those of the sev
eral States, and between the different departments of the
Federal Government, required a discriminating wisdom
which might well excite the admiration of the great Eng
lish statesman. But Gladstone was not alone in his opin
ion ; for the American Constitution has been used as a
model for every written constitution that has been formed
in any part of the world since its adoption. If imitation is
the sincerest form of flattery it is because it affords evi
dence of real admiration.

The Constitution of the United States was indeed the
result of a long and a complex evolution. The Continen
tal Congress, organized in 1774, by the assumption of
powers not expressly granted, and by a display of vigi



Online LibraryJohn Forrest DillonJohn 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 (Volume 03) → online text (page 1 of 40)