John Marshall. filled by another. Even the spirit of party respected the unsullied purity of the Judge, and the fame of the Chief Justice has justi fied the wisdom of the Constitution, and rec onciled the jealousy of freedom to the inde pendence of the judiciary." This tribute, specially eloquent from its source, is believed to have been drawn by the pen of the learned and patriotic Petigru, the bold and eminent figure who, in his venerable age, attested his fidelity to the principles of Marshall through all the terrible years of civil war by standing out alone and unyielding against the heresy of secession. . . . If we challenge the array of names in that country whose system has produced the his toric exemplars of judicial greatness, where shall we find quite his equal? Not in Coke, prodigy of learning and relentless logic and courteous asserter of judicial independence as he was, for he was narrow and technical in his law, illiberal and even vindictive in his personality. Let me not be misunderstood. I speak as a devoted and reverent disciple of the common law and of Coke as a master of it. But it is given to few men to be larger minded than their age, and it is no dispar agement to Coke to say that he was not one of the few. Nor shall we find him in Ellesmere, or Nottingham, or Hardwicke, fathers of equity as they were, nor even in Mansfield, the first great master of technicalities, who yet saw through them all, that the true vitality of the common law was its adaptability to the changing affairs of men. Great as these were, and they are the honored of the legal profession wherever their language is known, yet, vieving the magnitude, breadth, variety and importance of his labors, or the ability with which he performed them, Marshall had no equal, hardly a second. The world's great man, who helps to mould its history, is he who, with great abilities, has great opportunities, and by his use of them produces great results. Tried by this exacting standard, in the light of his work as time has proved it, Marshall is the
219
foremost in all the long line of judicial eminence.1 JEFFERSON'S HOSTILITY.
lïut while the verdict of posterity is over whelmingly in favor of Marshall, yet it must be frankly admitted that the opinion of his contemporaries was by no means unanimous in his favor. No sketch of his life can be complete which omits to mention the com plaints of his critics. Severe and unjust criticism is the common experience of Judges. And there is an espe cial reason why Judges of the United States Supreme Court should be liable to this fate. They frequently have to pass upon matters of public interest, concerning which the peo ple have already taken sides, and upon which partisan passions have been excited. And dissatisfaction is especially likely to be mani fested when the members of the Court be long to a political party which is opposed to the existing administration. How Presi dent Jefferson chafed under the yoke of such a Court is apparent from his letters. In De cember, 1801, he said of the Federalists: "They have retired into the judiciary as a stronghold. . . . There the remains of Fed eralism are to be preserved and fed from the Treasury; and from that battery all the works of republicanism are to be beaten down and destroyed." (i Henry Adams' "History of the United States, 257.) Again, in 1807, he said: "And it is unfortunate that Federalism is still predominant in our judi ciary department, which is consequently in opposition to the legislative and executive branches, and is able to baffle their measures often." . . . His hostility to Marshall antedated the lattcr's appointment to the Bench. So early as 1795, he speaks of Marshall's "profound hypocrisy." During Marshall's judicial career Jefferson used lan guage which seems to question his honesty. In 1810 he speaks of "the ravenous hatred which Marshall bears to the government of 1 Honorable James T. Mitchell, Justice of the Supreme Court of Pennsylvania.
