Chief Justice Marshall remained at the head of the Supreme Court many years after the delivery of his opinion in the case of Marbury and Madison. During that long period he not only acquired, by the exercise of his great talent, the high distinction of which I have already spoken, but endeared himself by his personal demeanor to all who were drawn within the circle of his acquaintance. No generous mind could contemplate a man possessed of such towering intellect, placed in so elevated a position and bearing his honors with such modesty and unaffected simplicity as he habitually displayed, without being impressed with a deep interest in his character. I was not among the least cordial of his admirers, and would not for the world speak a wanton or unkind word in disparagement of his memory. But the public acts of public men are always and under all circumstances legitimate materials for history, and may be canvassed with freedom, provided they are spoken of truly, and reviewed "with good motives and for justifiable ends." To this limitation it shall be my endeavor to confine myself on this as on all other occasions.
No part of the fame which Chief Justice Marshall acquired on the bench was due to his course and conduct in the case of Marbury and Madison, which may with truth be regarded as his judicial début. He had been snatched from the political caldron, heated to redness by human passions, almost at the moment of his first appearance on the bench. In his rapid transition from the halls of Congress and the Departments of War and State to that of the Judiciary, he had, as it were, been driven to the bench as to a place of safety before a tempest of public indignation created by the abuses of the administration of which he had been a part. Among his first acts after reaching it, and before time had been allowed for his passions to cool, before he had acquired judicial habits or had leisure to think even of the amenities that should distinguish his new position, was a severe blow at the wizard who, he believed, had raised the wind and directed the storm. But Jefferson, the "dreaming Condorcet," as Hamilton sometimes called him, proved an accomplished statesman. Wide awake, he made ample preparations for the assault, interposed effectual resistance, and the recoil and ultimate abandonment were the result. I have heretofore referred to the non-observance in these proceedings of due respect toward the acts of a coördinate department of the Government,—an obligation on the part of each from which no consideration can release them, and which in this case was rendered still more imperative by the relations, personal and political, that had existed between the President and the Chief Justice. Whatever weaknesses I may be subject to,—and doubtless they are numerous,—dogmatism, I am very sure, is not one of them. My endeavor always is to state my positions with deference to the judgments of others. But on this point I cannot refrain from insisting that no man who can divest himself of prejudice to only a reasonable extent can review these proceedings without being satisfied that the objection I have made to the course of the Chief Justice in this regard is well founded. No such omission was ever chargeable to him at a more advanced period in his judicial career; whatever exception may have been taken to the course of his decisions no one ever had reason to complain of a want of courtesy toward any branch of the government or toward individuals.
FOOTNOTES:
[33] See [Appendix].
[34] Taken from the report of the case.
[35] See Cranch's Supreme Court Reports, Vol. I. p. 137.