Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1901-02-05

Ma, shall in that position. The oppertu-
nifty was given to Adams and the man
had been prepared for the place. 1t is
no extravaganza, it is but theiteration of
a plain fact to say that Of all then living
men John Marshall was best fitted to be
chief justice of the United States 1t
; was not the profound andastute common
lawyer that was then needed. Rather
it was the com bination2 Of jurist and
statesman who loved his country, and his
whole country, and whose mind was
limited by no state lines. Who would
love his country more than he who
fought for its independence, than he
who early declared that America was his
country, and who could love the
constitution more than he who ex
erted his every effort to bring it into
operation and who had since nursed it
as a tender child, and who so we'll fitted
to correctly interpret that constitution
as he who in its defense had been forced
to scrutiniZe the meaning of its every
word and line. All these conditions were
happily blended in John Marshall. But
Providence had not there stopped his
judgment. Its greatest gift t. the man
was his unanswerable logic and the
power that his pure, earnest, candid life
gave him over men with whom he was
called upon to daily associate. Most for
tunate is it for us, most fortunate for this
land that John Marshall was thus gifted.
Judges are but men,. They go upon the
bench CARRYING with them their existing
political principles and political bias.
Nearly all great constitutional questions
have a direct political bearing. In their
solution the judges carry with them
their political principles, and are always
inclined to that construction that con-
forms to their political views. This is
no reflection upon their integrity.
It simply shows the sincerity of
their convictions. We have more than
once in our day seen our honored federal
supreme court divide practically, and
sometimes exactly upon party lines. Now
it so happened that during nearly all the
thirty-five years that John Marshall was
chief justice a majority of the court were
opposed to him politically. Yet we find
very few cases where the court divided,
and no great constitutional questions
when John Marshall spoke for the mi
nority. So strong were his arguments,
so keen his logic, so great his influence
that we find judges of opposite political
faith joining with him in his broad,
strong, comprehensive views of the con-
stitution. It is certain that had he pos
sessed average powers only he would
have spent most of his time in writing
dissenting opinions, while the opinions
of the court would have established rules
of construction for our great charter
that no patriot dares row contemplate.
1t was the conviction of John
Marshall that the constitution made
and was intended to make this country a
nation complete and strong in all its
parts, an indivisible nation capable of
protecting itself from within and from
without. To his mind no construction
of the constitution was permissible that
would canlict with its great purpose.
He carried his associates with him., His
rules of construction brought out the
force and beauty of the constitution, the
power and cohesiveness of the nation it
created.
If I say that it was nothing but John
Marshall's construction of the constitu-
ton, accepted by the people and en-
forced by the government, that enabled
the nation to live from 81 to rs, let NO
one say that I give him too great praise.
Professor Bryce says of him that be
was SO singularly fitted for the office OF
chief justice, and rendered such incom-
parable service in it that the American
people have been wont to regard him
as the special gift of a favoring
providence. In so saying he speaks
only the truth. He further says that
his fame outshines that of all
American judges more than Papinian
overtops the ~jurists of Rome, or Lord
Mansfield the jurists of England
When it is remembered that America
has produced Story, Kent, Shaw. Grier,
Gibson, this language is praise h1yond
limit. Our " James A. Garfield said:
Marshall found the constitution paper
and he made it power; he found it a skele-
ton andhe clothed it with flesh and blood"
To understand how strictly true is this
picture WI must go back one hundred
years. The constitution had been dis
cussed, learnedly, bitterly discussed in
conventions and legislative halls. But
such discussion had only emphasized
the wide diversity of opinion as to it's
real meaning. No important provision
in it had ever been %iudicially construed
when John Marshall donned the gown
of chief Justice. The whole field was
unexplored' The world had seen written
constitution but never such as this na-
ton had adopted. No such complex and
dual form of government had ever been
put into operation. The world had never
seen sovereign states, Heretofore disrob-
ing themselves of 10 much of their sover-
eighty as vas necessary to create another
sovereignty superior to and absolutely
independent of themselves, for all the
purposes Of its creation, yet powerless
and possessing no sovereignty beyond
those purposes. But the extent of those
purposes, the limits of those powers were
yet to be judicially determined. The re-
~lations of these states to each other, and
to the federal government, and the rela-
ton of each to the Indian tribes were yet
to be defined. The limits of the power
of the different branches of the govern
ment now SO clearly marked, we're then
uncertain and shadowy. It was no mere
figure of speech to say that the constitu-
ton was paper. It was as yet
little or nothing more Our fathers had
launched a vast ship of state, but it was
constructed upon no model, and all its
machinery was yet to be tried, adjusted
and made to work tremendously. 1t
was to this task that John Marshall ad-
dressed himself, and it was the admir-
| able manner in which he performed the