A single illustration of his avoidance of all theory and his adherence to the words of the Constitution will suffice. In the case of the United States v. Fisher the constitutional question involved was the power of Congress to give to the United States a preference over all other creditors in the distribution of the assets of a bankrupt. Such an act can be upheld on the ground that all governments have necessarily the right to give themselves priority. Not so Marshall. To him the act must be supported, if supported at all, not on any theory of the innate nature of the government, national or otherwise, but as a reasonable means of carrying out one of the express powers conferred by the Consti tution on the Federal Government. Thus, he upholds the act in question because of the power expressly conferred on the Federal Government to pay the debts of the Union, and, as a necessary consequence of this power the right to make remit tances by bills or otherwise and to take precautions which will render the transactions safe.
It is important to emphasize the fact that Marshall adhered in his opinions to the Constitution as written, not only because it is a fact which must be recognized if we are to understand the correct value of his work in the field of constitutional law, but also because there exists to-day a popular impression that by implication he stretched to the utmost the powers of the Federal Government. This impression is due primarily to the ignorance of many of those who have undertaken to praise him. During his life he was charged by followers of the State's rights school of political thought with upholding Federal power in cases not warranted by the Constitution. Later, however, those who ad mired a strong national Government, without taking the trouble to ascertain whether the old criticism by members of the State's rights party was just, regarded the assumption on which it was founded as Marshall's best claim to his country's gratitude.
As a constitutional lawyer, Marshall stands without a rival. His work on international law and admiralty is of first rank. But though a good, he was not a great, common law or equity lawyer. In these fields he did not make new law nor clarify what was obscure, and his constitutional opinions which to-day are found least satisfactory are those in which the question to be solved necessarily involves the discussion of some common-law concept, especially those cases in which he was required to construe the restriction imposed by the Constitution on any State impairing the obligation of contracts. His decision in the celebrated case of Dartmouth College v. Woodward, in which he held that a State could not repeal a charter of a private corpora tion, because a charter is a contract which a subsequent act of the State repealing the charter impairs, though of great economic importance, does not touch any fundamental question of con stitutional law. The argument which he advances lacks the clearness and finality for which most of his opinions are cele brated. It is not certain with whom he thought the contract was made : with the corporation created by the charter, with the trus tees of the corporation, or with those who had contributed money to its objects.
Of the wonderful persuasive force of Marshall's personality there is abundant evidence. His influence over his associates,
already referred to, is but one example though a most impressive one. From the moment he delivered the opinion in Marbury v. Madison the legal profession knew that he was a great judge. Each year added to his reputation and made for a better apprecia tion of his intellectual and moral qualities. The bar of the Su preme Court during his chief-justiceship was the most brilliant which the United States has ever known. Leaders, not only of legal, but political thought were among its members; one, Web ster, was a man of genius and commanding position. To a very great degree Marshall impressed on the members of this bar and on the profession generally his own ideas of the correct inter pretation of the Constitution and his own love for the Union. He did this, not merely by his arguments but by the influence which was his by right of his strong, sweet nature. Statesmen and politicians, great and small, were at this time, almost without exception, members of the bar. To influence the political thought of the bar was to a great extent to influence the political thought of the people.
Though the direct influence of Marshall's constitutional argu ments was largely confined to the members of the bar, the in fluence of his personality was felt by practically all classes of people. When he was appointed he was perhaps the most popular Federalist in the country. His supreme fitness for the judicial office was, however, probably not generally recognized until after the trial of Aaron Burr. Over this trial, the most dramatic in American history, he presided with a dignity, impartiality and ability never surpassed. Burr, himself brilliant, erratic, casts a certain fascination over each succeeding generation of historical students. In his character there is something alluring. Its domi nant note is mystery. He was, next to Thomas Jefferson and perhaps James Madison, the leading Democrat of his day. When Jefferson became president he was elected holding that office from 180i to 5805. In 1804 he killed Alexander Hamil ton, his great political antagonist, in a duel. Burr was the chal lenging party. His enemy's death ended his own political career in the United States. His restless energy and great ambition led him to organize an armed expedition which assembled on the Ohio in 5806 on Blennerhasset's island. Though Burr lived many years after the trial, and though everything in connection with his ill-starred expedition has been subjected to the most painstak ing investigation, the real nature of his aims, whether to attack Mexico, or detach from the Union the portion of the United States west of the Alleghenies, or both, remains uncertain. To dream of conquest or of the dismemberment of the country is not treason. The Constitution provides that : "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." And it is also provided that : "No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court." The trial took place in the Federal circuit court for the district of Virginia; the island, though in the Ohio river, being at that time, in the State of Virginia.