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THE GREEN BAG
before the American Bar Association upon "The March of the Constitution," a subject suggested by a chapter title in Carlyle's French Revolution. In it he traced the his tory and growth of the immortal document, its adaptability and adaptation to the chang ing conditions of our people and our insti tutions, and the paramount influence of Chief Justice Marshall. He largely antici pated the learning and eloquence that were bestowed upon the great Chief Justice at the "Marshall Day" celebrations of the fol lowing year. Ever since the delivery of that masterly address, Mr. Peck has been known not only as a great lawyer, but as a stu dent of American institutions and law, and a master of English speech. Here are a few paragraphs that show its quality : "Unwritten constitutions are constitutions only by fiction. In England constitutional principles are much discussed, but no one ever claimed an act of Parliament could be ignored or disregarded for a supposed or real violation of that intangible and liquid ideal called the British Constitution. It seems strange to us, but yet in England an act of Parliament may be unconstitutional, and still be legal and valid. In other words, the British Constitution is perfect as a text, but worthless when Parliament preaches the sermon. But the omnipotence of Parlia ment is a very different thing from the acts of a legislature whose powers are circum scribed by the only omnipotent thing in our government, which is the constitution; not a list of precedents and prescriptive rights, but the deliberate will of the people set down in written words, by the only sov ereign authority — the people themselves. "Gibbons v. Ogden, decided in 1824, is the great source to which all must go who would understand the scope and import of the commerce clause of the Constitution. "There is a certain solemnity in all of Marshall's constitutional decisions; a solem nity becoming a great magistrate with such duties to perform. No judge ever had to walk in a harder path. But he never fal
tered, and his judgments have stood every test, as the firm and convincing pronounce ments of the law. "The argument in the case dealt largely with the question whether navigation is commerce, but Marshall, answering the question in the affirmative, added in that conclusive way which no other judge ever equalled or approached: 'Commerce un doubtedly is traffic, but it is something more; it is intercourse.' It would almost seem that he was prophet as well as judge, for in that sentence he unconsciously fore told the railroad, the telegraph, the tele phone, and all the wonderful appliances by which science compels nature to be the servant and minister of man. "There is something very noble and ele vating in the discussion towards the end of the opinion, of the powers of the states and of the general government where he speaks of 'powerful and ingenious minds,' who would explain away the Constitution 'and leave it a magnificent structure, indeed, to look at, but totally unfit for use.' "His judicial career and his earthly career ended July 6, 1835. He had been chief justice thirty-four years, and it is only true of him to say that, 'take him for all in all,' he was the greatest judge that ever lived. By the common and unfettered judgment of the Bar, by the unanimous voice of statesmen, jurists, and scholars, he was the oracle of our constitutional law, the interpreter, the expounder, and in a certain sense the maker of the Constitution. "During all his long incumbency of the chief judicial office there never was a day that the Constitution did not move forward, as a constitution should, to meet the crowd ing exigencies of human affairs. "And so, gentlemen, the constitution marched; and without exaggeration it may be truly declared that John Marshall was its guide, its light, and its defender. Our profession looks upon him with a somewhat idolatrous feeling, but I do not think it is excessive. When we consider what might
