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them not mere negations of power, but grants of power, and he reasoned from out the large political experience of the race as to what those grants meant, what they were intended to accomplish, not as a pedant but as a statesman; and every generation of statesmen since his day have recognized the fact that it was he more than the men in Congress or in the President's chair who gave to our federal government its scope and power. The greatest statesmen are always those who attempt their tasks with imagination, with a large vision of things to come, but with the conscience of the lawyer also, the knowledge that the law must be built, not wrested, to their use and purpose. And so, whether by force of circumstance or by deliberate design, we have married legislation with adjudication and look for statesmanship in our courts. Marshall fulfilled all requirements better perhaps than any other man of his day could have done.
Professor Thayer, of Harvard, in his book on Marshall, says: “No systematic attempt seems ever to have been made to collect Marshall's letters. It should be done. Only a few of his family letters have yet found their way into print.” Professor Beard in his book, “ The Supreme Court and the Constitution," says: How are we to know what was the intention of the framers of the constitution? The only method is to make an exhaustive search in the documents of the Convention, and in the writings, speeches, papers, and recorded activities of its members. New material, printed or in manuscript, may be produced at any moment. This essay therefore makes no claim to finality. It is designed to throw light on the subject and to suggest ways in which more light may be obtained." 3 More light is what is needed. John Marshall, more than any other man, knew what the intention of the framers of the Constitution was, therefore his point of view is important. His decisions and his letters and his speeches will show that intention to a greater degree than any other source. In this volume I have endeavored to give the kernel of his decisions, all the letters that could be obtained, and his most important speeches.
For suggestions from time to time I cheerfully acknowledge 2 Wilson, “ Constitutional Government in U. S.," p. 168. 3 Pages 15-16.
my obligations to Professor Charles A. Beard, who also first emphasized the importance of Marshall's letters; to Professor Frank Goodnow, of the Columbia Law School; to John Bassett Moore, Professor of Law, Columbia Law School; to William D. Guthrie, Professor of Constitutional Law, Columbia Law School, who also gave me valuable books on Constutional Decisions, and to Professor William Dunning, Columbia University.
I give my thanks to the Librarian of the Congressional Library at Washington, and especially to the Superintendent of Documents in the Manuscript Division for his kindness in giving me free access to the archives and files of manuscript letters; to Professor Mills, Librarian of the Ohio State Historical and Archæological Society Library; to the Librarian of Ohio State Library; to the attendants of the Toledo Public Library; to the Librarian of the New York Public Library; to the Librarian of the Columbia University Library, and especially to Mr. Erb and his efficient and courteous assistants; and to the Librarian of the Columbia Law School.
I have also received valuable aid from Arthur Murnen, Fae John, John A. McGeever, — of the Kentucky and Connecticut bars,— and Mae C. R. Newshafer, who read copy, suggested names of persons who might have or know of letters, and helped in the search for letters written by Chief Justice Marshall.
John EDWARD OSTER. Columbia University, New York City,
IN MARSHALL'S DAY NEW PROBLEMS WERE TO BE SOLVED
MARSHALL AN ACKNOWLEDGED LEADER OF THE
Not only, in the words of Chief Justice Waite, “were the nation, the Constitution, and the laws in their infancy,” but a brand-new problem of political science was to be solved, that is, whether or not it was possible to work successfully a scheme contemplating the contemporaneous supremacy in each of thirteen independent commonwealths of two governments, distinct and separate in their action, yet commanding with equal authority the obedience of the same people, so that each in its allotted sphere should perform its functions without impediment to or collision with the other.' Patrick Henry, in the Virginia Convention, denounced "these two coördinate, interfering, unlimited powers of harassing the community” as unexampled, unprecedented in history, the visionary projects of modern politicians ” and “a political solecism.” For other gloomy forebodings and disastrous predictions by Patrick Henry see Elliot's Debates pp. 47-51, 58, 156, 325-328, 436, 546, 549.
This problem has been completely solved for us by the experiences of a century. It has been so completely solved that few Americans realize what Professor Bryce calls" that immense complexity which startles and at first bewilders a student of American institutions.” The solution depended in a large measure upon the interpretation and enforcement of a written constitution which,- as Mr. Webster said in his argument, and Judge Marshall repeated in his decision, in Gibbons v. Ogden (9 Wheaton, p. 189), enumerated but did not define the powers that it granted; and thus that scheme assigned to the Supreme Court, as a co-ordinate department of the national government, a part never before undertaken by such a tribunal. Even if the Federal Constitution, when pro
1 “ Elliot's Debates," Vol. III, 2d ed. 1836, p. 148.
mulgated for adoption, had been accepted by all parties as theoretically perfect, and its provisions as open to but one construction, still a bitter and all but fatal experience gave warning of the dangers to be apprehended from the local and State jealousies, the selfish interests, which were at best conflicting, and which even during the struggle for independence had brought the government of the Confederation into contempt.2
At this time of its adoption there was no worship of the Constitution. This worship was of a later growth.3 Quoting John Quincy Adams, Von Holst says, “ The historical fact is that the Constitution had been extorted from the grinding necessity of a reluctant people." Again he says:
“We are compelled to say with Justice Story that we ought to wonder, not at the obstinacy of the struggle of 1787 and 1788, but at the fact that despite everything the Constitution was finally adopted. The simple explanation of this is that it was a struggle for existence, a struggle for the existence of the United States."
The fierce though unsuccessful opposition to the adoption of the Constitution, notably in the Massachusetts, New York, and Virginia Conventions, shows what the frame of mind of the people was at that time. John Marshall, — then thirty-three years old, but already a recognized leader of the Virginia Bar,- was an influential member of the Virginia Convention.
: Marshall's speeches in the Virginia Convention in defense of its provisions concerning taxation, the militia, and the judiciary were very strong and able and carried much weight."
With the ratification of the Constitution on June 21, 1788, by New Hampshire, the ninth State, followed by Virginia on June 25, and New York on July 26, the Union under the Constitution became an accomplished fact. It was carried by dangerously narrow majorities,- in the New York Convention by only 30 votes to 27; in that of Virginia by only 89 to 79, and in that of Massachusetts by 187 against 168. All evidence points to the fact that if it had been submitted to the vote of the people it would have without a doubt received a deathblow. It would have been rejected by the people if left to
2 Story's “Comm. I on Const. of U. S.” sec. 252-254.
3 Von Holst's “Constitutional History of the United States," Vol. I, pp. 68-75. *3 Elliot's "Debates," ad edition, 1836, pp. 222, 419, 551. 5 Fiske's “ Critical Period of American History," pp. 331, 338, 344.