"The present Judges are of varying, but in general of eminently respectable attainments. Some of them are very eminent in special departments, but no fact is more painfully apparent to those who have studied closely the course of that great tribunal than that its decisions lack the unity which marked them during the dictatorship of Marshall, and under the great triumvirate of the 'old bench'-Taney, Nelson and Campbell. For years it has had no commanding spirit on its quarter deck; it has lost its reckoning; it has been beating about in a storm; it has relapsed into a chaos of doubt and uncertainty which marked the earlier years of its existence when the politicians and statesmen of that day bivouacked in the chief-justiceship on their march from one political position to another." * * * "It has suffered from internal dissensions and outside pressure; it has sometimes done the things which it ought not to have done, and much oftener omitted to do those things which it ought to have done."

What particular spleen could have engendered some features of this criticism, we are not advised, and it may not be amiss to say that we do not concur in some of the things this writer says. We prefer to think of the Supreme Court, as was said of it by Charles Carroll of Carrollton, the last survivor of the signers of the Declaration of Independence, when he said:

"I consider the Supreme Court of the United States as the strongest guardian of the powers of Congress and the rights of the people. As long as that Court is composed of learned, upright and intrepid judges, the union will be preserved and the administration of justice will be safe in its extended and extending empire."

But, in so far as Mr. Shirley refers to Marshall, Taney, Nelson and Campbell, we fully concur with him; and whilst the names of other great judges who have sat on that bench at almost every period since that time could, with propriety, be added to the four named as "master spirits" of the Court, it

will scarcely be claimed that any of them were superior in any way to the two great Chief Justices, Marshall and Taney.

Judge Curtis, in his admirable address delivered before the Boston Bar Association at the time of the death of ChiefJustice Taney, said:

"It is one of the favors which the providence of God has bestowed on our once happy country, that for the period of sixty-three years this great office has been filled by only two persons, each of whom has retained to extreme old age his great and useful qualities and powers. The stability, uniformity and completeness of our national jurisprudence are in no small degree attributable to this fact."

I could not if I would, and would not if I could, detract one iota from the great name and fame of Chief-Justice Marshall, and especially from the great work done by him in the constructive period of the Government under the present Constitution; but candor compels me to say that, in my humble judgment, the trend of some of Chief-Justice Marshall's opinions has laid the foundation for that centralization of powers in the Federal Government which are not only a menace to the stability of the Republic as such, but to the liberties of the people as well. Mr. Tyler, in his life of Taney, says:

"In the case of McCulloch against the State of Maryland, Chief-Justice Marshall was made to swerve from his earlier strictness of construction by the moulding and transforming logic, aided by the delusive light of the seductive fancy of Pinckney. The great Orator put his own thoughts into the mind of the Chief-Justice without his knowing it, until he made him see in the auxiliary provision of the constitution, 'to make all laws which may be necessary and proper to carry into execution' the specific powers granted-powers as original as those they are to carry into execution, and the Chief-Justice never afterwards freed himself from the persuasive coercion of that master of the forum."

Mr. Carson, in his history of the Supreme Court, says of ChiefJustice Taney:

"He adhered closely to the language of the Constitution, never extending the words of the grant upon the ground of convenience or necessity. He was always anxious to protect the States in the full and unfettered exercise of their reserved powers." * * * "He read the Constitution as, strange to say, Oliver Wolcott once feared that Marshall would do-as if it were a penal statuteand was sometimes embarrassed with doubts of which his friends will not perceive the importance; yet on occasions his judgments bore the stamp of the broadest statesmanship. Limitations upon the doctrine of the Dartmouth College Case, as expressed in the Charles River Bridge case, have produced the happiest results in freeing the States from the grasp of monopolists and in leaving them uncrippled in the exercise of most important rights of sovereignty; while, in the case of Waring against Clarke, 5 Howard, and the Genesee Chief, 12 Howard, in which the admiralty and maritime jurisdiction of the federal courts is extended above Tidewater on the Mississippi and to the entire chain of the Great Lakes and the waters connected with them, his opinions are characterized by great judicial breadth of view; and in Ableman versus Booth, 21 Howard, he was most emphatic in the maintenance of the supremacy of the federal law."

And this same writer further says, that:

"In reviewing the decisions delivered by the Supreme Court during Taney's administration, it is clear that the doctrines announced by the Court are characterized by much closer adherence to the language of the constitution than had been common in the days of Marshall; and that, as a whole, the authority of the States had been extended and supported upon numerous occasions in a manner which qualified, if it did not restrict, the principles announced by the great Chief-Justice."

It will thus be seen, that the judicial administration of ChiefJustice Taney was a distinct reaction against the latter tendency of that of Chief-Justice Marshall. Taney believed with Jefferson in the "support of the State governments as the most competent administrations for our domestic concerns," and he sounded the key-note of his decisions in the first case in which he delivered the opinion of the Court, Charles River Bridge against Warren River Bridge, 11 Peters, in which he upheld the power of the States to regulate corporations within their limits, holding that where there is no express grant of an exclusive privilege, an implied contract to that effect will not be inferred. This case was a distinct limitation of the previous liberal construction given to that clause of the constitution which prohibits a State from passing any law impairing the obligation of contracts; and we are thankful to say, that several recent decisions of the Supreme Court upholding the police powers of the State and protecting State officers when acting within their proper spheres, are in line with these decisions of Chief-Justice Taney; and these decisions of the Supreme Court make that Court, in our opinion, the true "palladium of our liberties."

Whilst it is true that the appointments of both Marshall and Taney to the exalted office of Chief-Justice was due primarily to the fact that each had rendered some special service to the president making the appointment-that of Marshall for his masterly defence in Congress of President Adam's administration in the Jonathan Robbins case, and that of Taney for his services to Jackson on the bank question, and especially in the removal of the deposits; yet their successive administrations of this office by the great Virginia and great Marylander form, in our opinion, to use the language of another, the "noblest chapter in the history of our government." Indeed, few men have ever come to the discharge of the duties of any office better equipped in every respect than was Chief-Justice Taney when he assumed the duties of the office of Chief-Justice of this nation. As is said by Mr. Carson:

"In knowledge of technical details; in all the departments of legal learning; in the mastery of principles derived from

*

constant and varied occupation; in the argument of causes
in courts of inferior and superior jurisdiction, both State
and national, he excelled every one of his predecessors.” * * *
"He was singularly possessed of that insight, that un-
conscious sympathy with human affairs which induces a
judge, whilst scrupulously administering existing law to
expand and advance and develop it commensurate with
human needs."
"He was a man of the highest
integrity, of great simplicity and purity of character.
By watchfulness of himself, he had acquired perfect self-
control. His courage was unflinching; his industry was
great, and his powers of analysis were unusual, even among
men remarkable for such a gift. His judicial style was
admirable, lucid and logical, and his arguments displayed
a thorough knowledge of the intricacies of pleading and
niceties of practice as well as a thorough comprehension of
underlying principles."

The resolutions adopted by the Boston bar, which were drawn by his late associate, Justice Curtis, embodied, in a few words, the consensus of opinion of the bench and bar of the whole country, outside of those prejudiced and vindictive spirits to which we shall feel obliged to refer presently. The resolutions said:

"That the members of this bar render the tribute of their admiration and reverence for the pre-eminent abilities, profound learning, incorruptible integrity and signal private virtues exhibited in the long and illustrious judicial career of the late lamented Chief-Justice Taney."

At the great meeting of the bar of the Supreme Court, held on the 6th of December, 1864, when there were present many of the most distinguished lawyers of the country, and when splendid tributes were paid to the worth and work of the great Chief-Justice, by such men as James M. Carlisle, Thomas Ewing, Reverdy Johnson, Charles O'Conner and others, Mr. O'Conner, in the course of his remarks, said of the Chief-Justice: