In 1812, when a change took place, the court had been for a year without
a quorum. Moreover, Judge Story had just come to the bench, a man of
quite too exuberant an intellect and temperament to work well as a
silent side-judge. We remark, also, at the beginning of that term, that
the Chief Justice was not in attendance, having, as the reporter tells
us, “received an injury by the oversetting of the stage-coach on his
journey from Richmond.” And it may be added that just at this time the
anxious prayer of Jefferson was answered, and a majority of the judges
were Republicans. From whatever cause, henceforward there was a change;
and without returning to the old habit of _seriatim_ opinions, the
side-judges had their turn, as they do now.
In most of Marshall’s opinions, one observes the style and special touch
of a thoughtful and original mind; in some of them the powers of a great
mind, in full activity. His cases relating to international law, as I am
assured by those competent to judge, rank with the best there are in the
books. As regards most of the more familiar titles of the law, it would
be too much to claim for him the very first rank. In that region he is,
in many respects, equaled or surpassed by men more deeply versed in the
learning and technicalities of the law, in what constitutes that
“artificial perfection of reason” which Coke used to glorify as far
transcending any man’s natural reason,--men such as Story, Kent, or
Shaw, or even the reformer, Mansfield, whom he greatly admired, Eldon,
or Blackburn. But in the field of constitutional law, a region not open
to an English lawyer,--and especially in one department of it, that
relating to the nature and scope of the National Constitution, he was
preëminent,--first, with no one second. It is hardly possible, as
regards this part of the law, to say too much of the service he rendered
to his country. Sitting in the highest judicial place for more than a
generation; familiar, from the beginning, with the Federal Constitution,
with the purposes of its framers, and with all the objections of its
critics; accustomed to meet these objections from the time he had served
in the Virginia Convention of 1788; convinced of the purpose and
capacity of this instrument to create a strong nation, competent to make
itself respected at home and abroad, and able to speak with the voice
and strike with the strength of all; assured that this was the paramount
necessity of the country, and that the great source of danger was in the
jealousies and adverse interests of the States,--Marshall acted on his
convictions. He determined to give full effect to all the affirmative
contributions of power that went to make up a great and efficient
national government; and fully, also, to enforce the national
restraints and prohibitions upon the States. In both cases he included
not only the powers expressed in the Constitution, but those also which
should be found, as time unfolded, to be fairly and clearly implied in
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