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U. M. ROSE
LITTLE ROCK, ARKANSAS.
THE CASE BETWEEN JEFFERSON AND MARSHALL.
Mr. President and Gentlemen of the Colorado Bar Association:
The longevity of the fathers of the Republic was somewhat remarkable. Jefferson died at 83, Marshall at 80, Franklin at 84, Madison at 85, Samuel Adams at 81, and John Adams at 91. Washington died at 67, but his death seems to have been due to a prevailing delusion in medical science rather than to disease. Seventy was the average age of the signers of the Declaration of Independence. Having the same ends in view, most of these veterans lived and died apparently in peace and harmony with each other. Washington, with his sublime patience, occupying positions giving rise to the greatest amount of friction, and exposing him to every kind of criticism, managed in some strange way to remain at peace with all of them through all sorts of vicissitudes. He had enemies, bitter and vociferous; but they belonged to a smaller race of men.
The rule of universal harmony among the leaders that helped to launch the Republic, and to pilot it through the first stormy seas, was violated in the case of Jefferson, Hamilton and Marshall; and I propose, confiding in your indulgence, to consider in a cursory way, what, in legal phraseology, I may call the case between Jefferson and Marshall.
It is well known that these two great Virginians were antipathetic toward each other, and that they differed essentially as to the theory and practice of our government; and now, since they have both been so long ago received into the Pantheon of history, and the debt of gratitude that we owe to each is universally acknowledged, we may, I trust, venture to examine impartially the grounds of their mutual estrangement, without any feelings of irreverence for either.
In the stirring times beginning with the first aggressions of Great Britain on the rights of the colonies, extending onward to the death of Jefferson in 1826, there were many occasions for discord in the discussion of the most momentous questions that ever agitated the minds of men.
There was but little community of feeling between the original colonies. The trade of each was almost wholly with England; they differed in matters of religion, habits and customs; all most potent in young communities and in that age. It was the constraining force of foreign oppression that formed ties of union that rendered resistance possible. With the advent of peace the colonies gradually drifted apart, and it was nothing but the disastrous experience of lamentable years that led them to consider the means of forming a more perfect Union. The Articles of Confederation had proved to be a delusion and a snare. A government that depended solely on moral suasion was too ideal for practical life. What was called the central government could only recommend. When it needed money—as it always did-all that it could do was to pass the hat around among reluctant states for contributions; and, as in the case of the solicitations of the blind Belisarius, the quest was often unavailing. A phantom shorn of power inspired neither fear, respect nor affection. A lax feeling of despondency crept over the country. The movement that sent delegates to Philadelphia to form a Constitution for the United States was the most languid that ever gave birth to a great event. When the Constitution was finished and published it excited no general enthusiasm. It was the work of a few men living intellectual lives and entertaining hopes not easily apprehended by the multitude.
Nothing like it had ever been seen; wheels within wheels, imperium in imperio. History was ransacked for analogies; but all resemblances were illusive. The Constitution, though made of old materials, was substantially new. To many its novelty was disturbing, perplexing, incomprehensible. In Virginia it was carried by ten votes, in New York by three votes. As New York, by reason of its geographical position, was indispensable to the Union, it only required a change of two votes to defeat the whole scheme.
We of the legal profession may have somewhat definite ideas of the meaning of the Constitution; but we have got our ideas at second hand. We have sat at the feet of Gamaliel. Left to ourselves we do not know where we should have landed; and it is difficult now for us to put ourselves in the place of the men who saw it for the first time.
One of the arguments urged against the adoption of the Constitution was that though it looked well enough as a scheme on paper, yet that it could not be made to work. To many it was a curious puzzle, like a solemn creed but dimly understood; or like a game of chess as described in a book; a thing which you may read about, but concerning which you know almost nothing until you see it actually played, or play it yourself; or like dramas that are interesting and instructive when read in the closet, but which for some reason prove to be unsuited for representation on the stage. There have been many constitutions having such defects, plausible, giving evidence of profound thought, but not serving the practical ends of government; machinery attractive and beautiful in repose, in action self-impeding. Many accepted the Constitution submitted to the people of the United States simply as a sanctuary and place of refuge from present evils, leaving the final result to time and chance. Many thought it merely an experiment; and that if unsuccessful it might be revoked with but small inconvenience or discomfort. Doubts were certainly permissible when the delegates who framed the Constitution did not agree as to its meaning. It is hardly too much to say that the ability displayed in producing anything faintly approaching harmony out of