JOHN MARSHALL. BY JOHN FREEMAN BAKER. their happiness. They have been taught by experience that this Union cannot exist without a government for the whole, and they have been taught by the same experience that this government would "The science of jurisprudence will forever acknowledge him be a mere shadow, that must disappoint all their as one of its greatest benefactors."- Story. I T IS a custom of date immemorial to celebrate the deeds and lives of great men. The mind loves to do homage to character and virtue. This is a desire altogether natural and beneficent. It uplifts the soul and inspires ambition. It points the way to grandeur and a nobler life. Of the eight chief justices of the Supreme Court of the United States, from 1790, when the court was organized, the name of John Marshall has always been most highly honored. In the formative period of the republic he decided many important questions arising under the federal and State Constitutions, and in doing this had to cleave his way, so to speak, through a pathless forest, with no guide but his instructive resolution, his genius and his sagacity. So clearly did he expound the meaning of the Constitution and such sound reasons did he give for his judgments, that he inspired the confidence of the people. They believed in him, in his honesty of purpose and in his desire to conserve the perpetuity of the Union. His opinions on constitutional questions were clear, concise and positive. His own intense earnestness wrought conviction in others. "Conscience made him firm, hopes, unless invested with large portions of that sovereignty which belongs to independent States. Under the influence of this opinion, and thus instructed by experience, the American people, in the conventions of their respective States, adopted the present Constitution." After the Constitution was adopted, it was thought by many that too much power was intrusted to the judiciary, and publicists of other countries were prone to characterize it as one of the weak features of the government. But, under the chief justiceship of John Marshall, who adorned the bench from 1801, for more than thirty-four years, all such fears were dispelled, for the court entered upon and continued in the performance of their duties with a spirit of lofty patriotism and a due appreciation of the responsibilities involved. The Supreme Court stands at the head of the entire federal judicial department, and cannot, without violation of law, be trenched upon by either of the other departments. It is, on every question which concerns the interpretation of the Constitution, a supreme and final court of appeal from the decision of every tribunal throughout the Union. ! While, under the confederation, there was no national court, and the decisions of the courts of the States were not in harmony, the Constitution was designed to remedy the evil of local adjudications in That boon companion, who her strong breast- respect of matters in which the States, in their plate Buckles on him, that fears no guilt within, His calm, logical reasoning, his analytical discrimination and his quickness of perception, gave him a commanding advantage and influence over many other jurists. Endowed in a pre-eminent degree with a judicial temperament, he did much to elevate the character of American jurisprudence. He believed that the favorite maxims of democracy were a strict observance of justice and public faith, and a steady adherence to virtue. These, he contended, on several occasions, were the principles of good government. From time to time, he safeguarded the republic, and judicially piloted the Constitution over many a troublesome breaker, wisely avoiding the Charybdis, on the one hand, and the Scylla on the other, upon which some of the ancient republic had foundered. Chief Justice Marshall clearly realized that to meet the requirements of an advancing civilization, the Constitution ought to receive a liberal and progressive interpretation. In Cohens v. Virginia (6 Wheaton, 380) he said: "The American States, as well as the American people, have believed a close and firm union to be essential to their liberty and to national attitude, were concerned. The appointment of John Marshall as chief justice at the particular time he was appointed, was most fortunate for the whole country, for, besides being a soldier, an advocate and a jurist, he was a diplomat and a statesman. He exemplified his diplomatic power and statesmanship in an important mission to France. The French government having issued orders directing the seizure of British property and persons on board American vessels, thereby violating a former treaty, and having refused to receive General Charles C. Pinckney as minister, or to grant him the usual card of hospitality, President Adams appointed Marshall as one of three envoys extraordinary to that country. The object of the embassy was to "dissipate umbrages, to remove prejudices, to rectify errors and to adjust all differences." The record shows that Marshall, on that occasion, exhibited a wise diplomacy. When John Marshall was appointed chief justice of the Supreme Court. Justices Cushing, Paterson, Chase, Washington and Moore were his associates. His personal appearance at that time is described by Justice Story as a tall, slender figure, not graceful or imposing, but erect and steady. His hair black, his eyes small and twinkling, his forehead rather low, his features in general harmonious. "His manners are plain, yet dignified, and an unaffected modesty diffuses itself through all his actions. His dress is very simple yet neat; his language chaste, but hardly elegant; it does not flow rapidly, but it seldom wants precision. I love his laugh,- it is too hearty for an intriguer, and his good temper and unwearied patience are equally agreeable on the bench and in the study." Down to the time when Marshall was appointed chief justice, only six cases had been decided which involved constitutional law. One of these, however, Chisholm v. The State of Georgia (3 Dallas, 419 [1793]), was of great importance, and induced the adoption of the Eleventh Amendment to the Constitution.* The first case involving constitutional law which came before Chief Justice Marshall, was Marbury v. Madison (1 Cranch, 49, 137 [1802]). The point decided was that an act, after having passed both houses of congress and signed by the president, was subject to the decision of the Supreme Court, and that the court had the right to say whether the act should be enforced or not. If Marshall had hesitated or flinched, says a commentator on this case, if he had parleyed with duty or compromised with consequences, our experiment of a constitutional government would have been a failure so great as to have carried destruction with it to all such experiments for generations to come. He decided in several cases, in Fletcher v. Peck (6 Cranch, 87 [1810]) and others, that laws which were enacted by a State and were repugnant to the Constitution, were null and void. In one case he said: "If the legislatures of the several States may at will annul the judgments of the courts of the United States and destroy the rights acquired under those judgments, the Constitution itself becomes a solemn mockery, and the nation is deprived of the, means of enforcing its laws by the instrumentality of its own tribunals. Before these decisions much uncertainty existed and there was considerable variance of opinion among jurists and statesmen on the question. The Constitution, article IV, section 3, provides that "New States may be admitted by the congress into the Union. The congress shall have power to dispose of and make needful rules and regulations respecting the territory or other property belonging to the United States." While the Supreme Court has, from time to time, applied to existing conditions the scope and meaning of the Constitution and the rights of the States, its conduct has been marked by a uniform independence of the legislative and executive branches of the government. The functions of the court are to declare what the law is, not to make it; or, as was said in Osborne v. Bank of United States (9 Wheaton, 738): "The judicial department has no will in any case. Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing." The original jurisdiction of the Supreme Court is limited to the cases described in the Constitution; and it has been decided that congress has no power to enlarge it. But in all cases in which original jurisdiction is given by the Constitution, the court may exercise it without any act of congress to confer jurisdiction, or regulate its process. To the judiciary is due the maintenance of justice, the existence of internal free trade, and the general respect for the rights of property; for, under the decisions, the Supreme Court is prepared to uphold, as consistent with the Constitution, any laws which prohibit modes of using private property which to the court seems inconsistent with public interest. In the main, it may be confidently said that the course and conduct of the court has been beyond reasonable criticism. In a degree, too, it may be said of the chief justices as was observed by Webster of John Jay, that, "when the ermine fell upon his shoulders it touched a being as spotless as itself." Besides hearing and deciding many questions arising under the Constitution, and volumes of other cases, Chief Justice Marshall presided over the court at Richmond in 1807, in the memorable and countrystirring trial of Aaron Burr. The indictment, it will be remembered, charged Burr with the crime of high treason in levying war against the United States, and for a misdemeanor in preparing a military expedition against Mexico, then a territory of the king of Spain, with whom the United States was at In the American Insurance Company v. Canter (1 Peters, 542) he said: "The Constitution confers absolutely on the government of the Union, the powers of making war and of making treaties, consequently, that government possesses the power of acquiring territory, either by conquest or by treaty." "The usage of the world is, if a nation be not entirely subdued, to consider the holding of conquered ¦ peace. territory as a mere military occupation, until its fate shall be determined at the treaty of peace. If it be ceded by the treaty, the acquisition is confirmed and the ceded territory becomes a part of the nation to which it is annexed; either on the terms stipulated in the treaty of cession or on such as its new master shall impose." * The said amendment is as follows: "The judicial power of the United States shall not be construed to extend to any suit. in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State." The prosecution sought to prove the two counts in the indictment and argued that the overt act of levying war was treason. The defense, having shown that Burr was not at the home of Blennerhassett and not within the jurisdiction of Virginia when the act of levying war charged to have been committed, Chief Justice Marshall held that all evidence to prove Burr guilty of treason was irrelevant and could not be introduced. He would not be swayed by the clamor of a prejudiced public. He discharged his duty with calmness and courage. Of his own temper and aim in the conduct of the trial, he said: That this court dares not usurp power is most true. That this court does not shrink from its duty is not less true. No man is desirous of placing himself in a disagreeable situation. No man is desirous of becoming the peculiar subject of calumny. No man, might he let the bitter cup pass from him without reproach, would drain it to the bottom. But if he has no choice in the case, if there is no alternative presented to him but a dereliction of duty, or the opprobrium of those who are denominated the world, he merits the contempt as well as the indignation of his country, who can hesitate which to embrace." * * abroad, and his singularly winning personal traits. that the history of his labors during that period should be in so great part the history of the Supreme Court itself. In the midst of all of his arduous duties as chief justice, Marshall wrote an elaborate "Life of Washington." While the work is an accurate record of events and of the career and public services of Washington, some critics have declared that it showed many marks of haste. Although the work did not satisfy Judge Washington, at whose urgent solicitation the "life" was written, nor the biographical critics of that day, it will stand as a faithful and valuable portrayal of Washington's life and public services. In a revised edition, Marshall realized that the work as originally written was composed under * circumstances which might afford some apology for its being finished with less care than its importance demanded. He expounded the law thus: The whole treason laid in the indictment is the levying of war on Blennerhassett's Island; the whole question to which the inquiry of the court is now directed is, whether the prisoner was legally present at that fact. If the assemblage on Blennerhassett's Island was an assemblage in force, was a military assemblage, in a condition to make war and having a treasonable object, it was in fact a levying of war and consequently treason. But as the accused was not present and performing a part as charged, evidence of his acts elsewhere was irrelevant. In other words, the indictment charged him with actually levying war on Blennerhassett's Island, and, therefore, could not be supported by evidence which showed that he was actually absent from the scene of action." This was the gist of the opinion. Burr was acquitted. Thus ended a State trial, the most famous which took place in the United States, prior to the impeachment of President Johnson. There was a prevailing sentiment in the country at the time that Burr planned nothing less than treason and deserved the punishment due to a traitor, notwithstanding the argument of counsel, the opinion of the chief justice and the verdict of the jury. In the nature of things it was impossible for any judge, sitting in such a case, when public feeling ran so high, to escape criticism; but the discriminating judgment of history has given him credit for absolute impartiality in the trial, and for a courageous and honest administration of justice. It is interesting to remember that in the Supreme Court Reports, from the 1st of Cranch to the 9th of Peters, both inclusive, covering the period of Marshall's chief justiceship, 1,215 cases are reported. That in 1,106 of these cases opinions were written, and that 519 of these were written by Chief Justice Marshall. During his term of service sixty-two decisions were rendered on constitutional questions, thirty-six of which were written by himself. Chief Justice Marshall sat on the Supreme bench for the last time at the January term, 1835. His six associates then were Justices Story, Duval, Thompson, McLean, Baldwin and Wayne. It is not strange (says a writer) that in view of Marshall's acknowledged intellectual supremacy, the exalted reputation which he had acquired in varied and highly-important public service at home and Judge Story said of the work that it could scarcely be doubted that his Life of Washington" would be invaluable for the truth of its facts and the accuracy and completeness of its narrative, and such has been and will continue to be its reputation. After the able, accurate and comprehensive work by Chief Justice Marshall, said Jared Sparks, it would be presumptuous to attempt a historical biography of Washington. In his official intercourse, Marshall exhibited the most accessible and unostentatious manners, neither affected by dignity of place, nor rendered overbearing by the exercise of power, a moralist, whose pure and incorruptible mind was a constant terror to dishonesty and fraud. As a jurist he exalted the value of the Constitution found it "paper and made it power," and demonstrated that it is not only worthy the wisdom and labors of its authors, but merits every sacrifice for its maintenance and preservation. It was always a source of honor and pride to John Adams that he appointed Marshall to the chief justiceship. In 1825 the venerable ex-president told a friend that his "gift of John Marshall to the people of the United States was the proudest act of his life." Unfortunate indeed would it have been for the government if, instead of such a strong personality on the Supreme bench, there had been a man of feeble and vacillating temper, or one not entirely in accord with the principles which on all occasions he manifested, of giving to the Constitution a broad and comprehensive construction. These are some of the results of the masterful judicial and constitutional determinations of the great chief justice, and more and more, as time rolls on, will the American people realize and appreciate his wisdom and his judicial labors. The future historian who shall rehearse the character and development of the federal Constitution will not fail to remember and record that Chief Justice Marshall, more than any other jurist, conceived and expounded its true import and meaning. It is REFORMS IN JURY TRIALS. scarcely an exaggeration to call him, as an eminent American jurist has done, a second maker of the Constitution. Some time after his death, by small popular subscriptions, money was raised to purchase a suitable monument to Marshall, the commission for which was given to the sculptor, W. W. Story, son of Justice Story. The monument stands upon a site near the west front of the capitol at Washington, and bears the inscription: JOHN MARSHALL, Chief Justice of the United States. The Bar and the Congress of the United States. William Wirt, in the "British Spy," pays a high tribute to Marshall's prescience and astonishing penetration. Webster was a great admirer of the chief justice, and on several occasions referred to his judicial wisdom and nobility of character. "I have never seen a man," he said, "of whose intellect I had a higher opinion." Senator Hoar, while pronouncing Justice Story the more learned judge, says that Chief Justice Marshall "excelled him in intellectual vigor." I revere his name, said Sumner, and I have read his judgments, which seem like “pure reason," with admiration and gratitude. Marshall's fame is the heritage of the nation. His genius, his learning and his virtues have conferred an imperishable glory on his country, whose liberties he fought to secure, and whose institutions he labored to perpetuate. By HON. ROBERT EARL, Former Judge of the New SHALL not now discuss the general merits of the jury system as it exists in this country. I will say, however, that from a long experience at the bar and upon the bench I am thoroughly convinced that it is the best system that has yet been devised among civilized men for the determination of questions of fact in both civil and criminal cases. I agree, in the main, with what the distinguished jurist, Jeremiah S. Black, so forcibly said, arguing in Ex Parte Milligan (4 Wallace, 65), as follows: We do not assert that the jury trial is an infallible mode of ascertaining truth. Like everything human, it has its imperfections. We only say that it is the best protection for innocence, and the surest mode of punishing guilt that has yet been discovered. It has borne the test of a longer experience, and borne it better than any other legal institution that ever existed among men. England owes more of her freedom, her grandeur and her prosperity to that than to all other causes put together." But it is not well to assume that, with the changing social conditions in our country, it may not, in some particulars, be reformed and some of its incidents improved. It is not a fetish to be worshipped, but an institution to be wisely used." I believe the time has come when three reforms. in the system can be wisely and safely adopted. First, the immoderate length of many jury trials It may well be asked, in the language of the poet: make them very burdensome to the public, to jurors How felt the land in every part The strong throb of a nation's heart, As its great jurist gave with reverent awe, His pledge to Union, Liberty and Law. What Grattan said of Lord Chatham may well be said of Marshall: "There was in this man something that could create, subvert or reform; an understand ing, a spirit and an eloquence, to summon mankind to society, or to break the bonds of slavery asunder and to rule the wilderness of free minds with unbounded authority." Take him for all in all Marshall's life was well rounded. His career must have been a supreme satisfaction to himself. And, most truly may it be said: His life was gentle, and the elements So mixed in him that nature might stand up And say to all the world: This was a man. May his teachings in jurisprudence and in constitutional law ever be perpetuated, and may the youth of the country be inspired and stimulated with a glory for his character and judicial learning, and be led to emulate his noble life. JOHN FREEMAN BAKER. 156 Broadway, NEW YORK, January, 1901. and to the litigant parties. Too much time is taken in getting a jury — sometimes several weeks, at enormous expense to the public, and inconvenience to the jurors and the court. The examination and cross-examination of jurors by astute counsel to test their qualifications to sit upon a trial are, many times, spun out to unreasonable lengths; and, as the years pass, new tests by hypothetical and other questions are invented, and yet, as a result, the jurors selected, many times, do not average as to fitness with the jurors of the whole panel from which they are selected. I believe it would be an improvement to confine the examination of the jurors, as to their qualification, exclusively to the presiding judge. By a brief examination, judging from the appearance of the jurors, and putting such questions as, with his large experience, occur to him, and as may be suggested by counsel, he could, in a short time, obtain a jury for the trial of any case which would generally be, at least, as fair and competent as the jurors obtained by the present method. The object of the law is or, at least, ought to be to obtain not a jury favorable or unfavorable to one party or the other, but one that will be fair and do justice between the parties; and I believe this end can be best obtained by the method I here suggest; and to obtain such a jury should rarely take to exceed least eleven minds in the verdict reached. I think this would be a safe reform, sanctioned by public policy, and that it would serve the ends of justice. The last two reforms would require an amendment of our Constitution. I know the conservatism of the members of the legal profession, and I do not, therefore, expect my views to receive ready concurrence. But that these reforms will inevitably come not, perhaps, by single bounds, but probably like most genuine reforms, by gradual evolution-I am firmly convinced. one day. With the right of review, which the law the ten or eleven jurors, to take their verdict, so now gives, and the extensive right of challenging that there will, in all cases, be the concurrence of at jurors, the reform I suggest would be reasonably free from danger to the substantial rights of parties. The question is, whether upon the whole, it would not be an improvement, and I think it would. Judges are almost invariably fair and honest, and they are always in the discharge of their judicial functions confronted by a vigilant public press and an alert public opinion; and so there is little danger that they would seek to pack a jury in the interests of any party to defeat the ends of justice; and, besides, there is possible the review of their action, which may always be had in the higher courts. Second. From the great length of many modern trials there is always danger that one or more jurors may become sick and disabled before the close of a trial, and thus the great burden of a new trial be cast upon the public and the party, and sometimes the ends of justice also defeated. What is the best practical remedy for such a case? It has been sug gested that an additional juror should be selected and sworn and sit with the twelve to take the place of the one who should thus be disabled. This method seems to me to be very awkward and absurd, as, to meet the emergency, the thirteenth juror would have to be chosen and sworn in every case, and be treated during the trial like the twelve. The simply remedy, it seems to me, in any case where not more than two become thus disabled, is to go on with the remaining jurors and take their verdict; and thus there will always be at least ten jurors who must all concur in any verdict rendered. While twelve jurors, as a general rule, may be the best number, would not the ends of justice be best promoted and public policy best subserved, by proceeding in the trial in such an exceptional" in civil actions three-fourths of the jury may render emergency with ten or eleven jurors? I think they would. There is no talismanic potency in numbers, and the law should be practicable. Third. It is quite wonderful that jurors can reach unanimity in as many cases as they do. But it sometimes happens that one or two jurors prevent a verdict. This they do from conscientious scruples, or from stubbornness, or from a desire to favor one party or the other, or from improper influences brought to bear upon them. The one or two jurors may not only prevent a verdict, but in many cases, in order to reach unanimity, they may compel the others to an unjust compromise. I know that the absolute unanimity of the twelve has generally been recognized by jurists as one of the dominant features of the jury system. But all must confess that, under modern conditions, with long and expensive jury trials, the failure of a verdict in the way I have mentioned is sometimes a great evil. Is there no practical remedy for it? I suggest that in such a case where not less than ten jurors agree the presiding judge, who is generally a judge or lawyer of large experience, accustomed to deal with questions of fact and to weigh witnesses, as well as evidence, be permitted, in his discretion, if he concurs with To show the drift of some modern thought in reference to the jury system, I call attention to provisions in a number of the most recent State Constitutions. It is provided in Wyoming that " a jury in civil cases in all courts or in criminal cases in courts not of record may consist of less than twelve men, as may be prescribed by law;" in Washington, that the legislature may provide “for a verdict by nine or more jurors in civil cases in any court of record; " in South Dakota, that the legislature may provide "for the decision of civil cases by threefourths of the jury in any court;" in Montana, that "in all civil cases, and in all criminal cases not amounting to felony, upon default of appearance, or by consent of the parties expressed in such manner as the law may prescribe, a trial by jury may be waived, or a trial had by any less number of jurors than the number provided by law," and that "in all civil action, and in all criminal cases not amounting to felony, two-thirds in number of the jury may render a verdict, and such verdict so rendered shall have the same force and effect as if all of such jurors concurred therein;" in Idaho, that " a verdict. A trial by jury may be waived in all criminal cases not amounting to felony by the consent of both parties expressed in open court, and in civil actions by the consent of the parties, signified in such manner as may be prescribed by law. In civil actions and cases of misdemeanor the jury may consist of twelve, or of any number less than twelve upon which the parties may agree in open court; " in Colorado, that a jury in civil cases in all courts, or in criminal cases in courts not of record may consist of less then twelve men as may be prescribed by law;" in Nevada, that "in civil cases, if three-fourths of the jurors agree upon a verdict, it shall stand and have the same force and effect as a verdict by the whole jury;" in Minnesota, that "the legislature may provide that the agreement of five-sixths of any jury in any civil action or proceeding after not less than six hours' deliberation shall be a sufficient verdict therein; " in California, that "in civil action three-fourths of a jury may render a verdict. A trial by jury may be waived in all criminal cases not amounting to felony." "In civil actions and cases of misdemeanor the jury may consist of twelve or of any number less than twelve upon which the parties may agree in open court; " |