220
TJie Green Bag.
his country," and "the cunning- and sophistry within which he is able to enshroud himself." Jefferson also says: "His (Marshall's) twistifications in the case of Marbury, in that of Burr and the late Yazoo case show how dex terously he can reconcile law to his personal biases. . . ." (Ford's Edition of the Writ ings of Thomas Jefferson, Vol. IX., 41; X., 247; IX., 527; VIL, 38; IX., 275, 276.) In a letter to Gallatin he speaks of the "gloomy malignity of Marshall's mind. (Note, i Henry Adams' "History of the United States, 194.) A letter to William Г.. Giles, in refer ence to the Burr case, contains more specific complaints. In that letter Jefferson alludes to "the tricks of the Judges to force trials before it is possible to collect the evidence. . . ." He also says : "The presiding Judge meant only to throw dust in the eyes of his audience." And he sarcastically adds, that "all the principles of law are to be perverted which would bear on the favorite offenders who endeavor to overrun this odious Repub lic." (Forman's "Life and Writings of Jef ferson," no.)1 MARSHALL AS CIRCUIT JUDGE. Chief Justice Marshall, as appears by let ters from him to his associates on April 18, 1802, was originally of opinion that the Justices of the Supreme Court could not hold Circuit Courts without distinct commissions as Circuit Judges. But in Stuart against Laird, in 1803, apparently deferring to the opinions of his associates, he acted as Cir cuit Judge; and the Supreme Court, in an opinion delivered by Mr. Justice Paterson, affirmed his judgment, upon the ground that practice and acquiescence for several years, commencing with the organization of the judicial system, had fixed the construction beyond dispute.2 Not only did the Chief Justice demon strate his ability on the Appellate Court; he was equally eminent on the Circuit. It is a 1 Professor Smith.
- Mr. Justice Gray.
mistake to suppose that higher qualifications are necessary for the Appeal Bench than for the Circuit Bench. A Judge en the circuit must be learned, quick of apprehension, equable of mind, with clear common sense. He is constantly called upon to meet issues and to decide questions of which he has had no intimation. In the opening of a cause, in the examination of witnesses, in the requests for instructions, in the arguments of counsel these questions are sprung, not only on him, but on the lawyers engaged in the case. They are presented with all the ingenious plausibility characteristic of the profession. They must be met and decided at once after argument, often necessarily imperfect, and must be solved by the Judge sitting alone, almost always unaided by authorities. In an Appellate Court counsel appear with full opportunity of preparing their own case, fortified by authorities, provided by an endless number of digests, bearing more or less upon the case, and advised of the main points of their adversary. Both sides are usually exhaustively discussed. The court have full time for conference and considera tion, and the conclusion having been reached by an interchange of views, the opinion is prepared in the solitude of a library. When all the disadvantages are considered under which the Circuit Judges labor, it is a matter on which we at our Bar should con gratulate ourselves, that their decisions at nisi priiis are so often affirmed. At nisi prius the Chief Justice left nothing to be desired. By an excellent provision of the Federal law, the Justices of the Supreme Court are required to go upon circuit and thus practically administer the law. He held these courts in North Carolina and Virginia. Often in turning over the dusty files of de cided cases in these courts one comes upon a reported case heard by him, in which he displays his wonted power.1 Sitting- alone in the Circuit Courts, his finest qualities were perhaps more clearly 1 Judge Simonton.
