John Marshall and the Constitution

ii
Copyright, 1919
by Yale University Press

iii

The Establishment Of The National Judiciary

The monarch of ancient times mingled the
functions of priest and judge. It is therefore not altogether surprising
that even today a judicial system should be stamped with a certain
resemblance to an ecclesiastical hierarchy. If the Church of the Middle
Ages was “an army encamped on the soil of Christendom, with its
outposts everywhere, subject to the most efficient discipline, animated
with a common purpose, every soldier panoplied with inviolability and
armed with the tremendous weapons which slew the soul,”
the same words, slightly varied, may be applied to the Federal Judiciary
created by the American Constitution. The Judiciary of the United States,
though numerically not
2
a large body, reaches through its process every part of the nation; its
ascendancy is primarily a moral one; it is kept in conformity with final
authority by the machinery of appeal; it is “animated with a
common purpose”; its members are “panoplied”
with what is practically a life tenure of their posts; and it
is “armed with the tremendous weapons” which slay
legislation. And if the voice of the Church was the voice of God, so the
voice of the Court is the voice of the American people as this is recorded
in the Constitution.

The Hildebrand of American constitutionalism is John Marshall. The contest
carried on by the greatest of the Chief Justices for the principles today
associated with his name is very like that waged by the greatest of the
Popes for the supremacy of the Papacy. Both fought with intellectual
weapons. Both addressed their appeal to the minds and hearts of men. Both
died before the triumph of their respective causes and amid circumstances
of great discouragement. Both worked through and for great institutions
which preceded them and which have survived them. And, as the achievements
of Hildebrand cannot be justly appreciated without some knowledge of the
ecclesiastical system which he did so much to develop, neither can the
career of John
3
Marshall be understood without some knowledge of the
organization of the tribunal through which he wrought and whose power he
did so much to exalt. The first chapter in the history of John Marshall
and his influence upon the laws of the land must therefore inevitably deal
with the historical conditions underlying the judicial system of which it
is the capstone.

The vital defect of the system of government provided by the soon obsolete
Articles of Confederation lay in the fact that it operated not upon the
individual citizens of the United States but upon the States in their
corporate capacities. As a consequence the prescribed duties of any law
passed by Congress in pursuance of powers derived from the Articles of
Confederation could not be enforced. Theoretically, perhaps, Congress had
the right to coerce the States to perform their duties; at any rate, a
Congressional Committee headed by Madison so decided at the very moment
(1781) when the Articles were going into effect. But practically such a
course of coercion, requiring in the end the exercise of military power,
was out of the question. Whence were to come the forces for military
operations against recalcitrant States? From sister States which had
themselves neglected their
4
constitutional duties on various occasions? The
history of the German Empire has demonstrated that the principle of state
coercion is entirely feasible when a single powerful State dominates the
rest of the confederation. But the Confederation of 1781 possessed no such
giant member; it approximated a union of equals, and in theory it was
entirely such. ¹

In the Federal Convention of 1787 the idea of state coercion required
little discussion; for the
5
members were soon convinced that it involved an impracticable, illogical,
and unjust principle. The prevailing view was voiced by Oliver Ellsworth
before the Connecticut ratifying convention: “We see how necessary
for Union is a coercive principle. No man pretends to the
contrary.… The only question is, shall it be a coercion of law or
a coercion of arms? There is no other possible alternative. Where will
those who oppose a coercion of law come out? … A necessary
consequence of their principles is a war of the States one against the
other. I am for coercion by law, that coercion which acts only upon
delinquent individuals.” If anything, these words somewhat
exaggerate the immunity of the States from direct control by the National
Government, for, as James Madison pointed out in the
Federalist, “in several cases … they [the
States] must be viewed and proceeded against in their collective
capacities.” Yet Ellsworth stated correctly the controlling
principle of the new government: it was to operate upon individuals
through laws interpreted and enforced by its own courts.

A Federal Judiciary was provided for in every plan offered on the floor of
the Federal Convention. There was also a fairly general agreement among
the
6
members on the question of “judicial independence.” Indeed,
most of the state constitutions already made the tenure of the principal
judges dependent upon their good behavior, though in some cases judges
were removable, as in England, upon the joint address of the two Houses of
the Legislature. That the Federal judges should be similarly removable by
the President upon the application of the Senate and House of
Representatives was proposed late in the Convention by Dickinson of
Delaware, but the suggestion received the vote of only one State. In the
end it was all but unanimously agreed that the Federal judges should be
removable only upon conviction following impeachment.

But, while the Convention was in accord on this matter, another question,
that of the organization of the new judiciary, evoked the sharpest
disagreement among its members. All believed that there must be a national
Supreme Court to impress upon the national statutes a construction that
should be uniformly binding throughout the country; but they disagreed
upon the question whether there should be inferior national courts.
Rutledge of South Carolina wanted the state courts to be used as national
courts of the first instance
7
and argued that a right of appeal to the supreme national tribunal would
be quite sufficient “to secure the national rights and uniformity
of judgment.” But Madison pointed out that such an arrangement would
cause appeals to be multiplied most oppressively and that, furthermore,
it would provide no remedy for improper verdicts resulting from local
prejudices. A compromise was reached by leaving the question to the
discretion of Congress. The champions of local liberties, however, both
at Philadelphia and in the state conventions continued to the end to urge
that Congress should utilize the state courts as national tribunals of the
first instance. The significance of this plea should be emphasized because
the time was to come when the same interest would argue that for the
Supreme Court to take appeals from the state courts on any account was a
humiliation to the latter and an utter disparagement of
State Rights.

Even more important than the relation of the Supreme Court to the judicial
systems of the States was the question of its relation to the Constitution
as a governing instrument. Though the idea that courts were entitled to
pronounce on the constitutionality of legislative acts had received
countenance in a few dicta in some of the States and
8
perhaps in one or two decisions, this idea was still at best in 1787 but
the germ of a possible institution. It is not surprising, therefore, that
no such doctrine found place in the resolutions of the Virginia plan which
came before the Convention. By the sixth resolution of this plan the
national legislature was to have the power of negativing all state laws
which, in its opinion, contravened “the Articles of Union, or any
treaty subsisting under the authority of the Union,” and by the
eighth resolution “a convenient number of the national
judiciary” were to be associated with the Executive,
“with authority to examine every act of the national legislature
before it shall operate, and every act of a particular legislature
before a negative thereon shall be final” and to impose a
qualified veto in either case.

But, as discussion in the Convention proceeded, three principles obtained
clearer and clearer recognition, if not from all its members, certainly
from the great majority of them: first, that the Constitution is law, in
the sense of being enforcible by courts; secondly, that it is supreme law,
with which ordinary legislation must be in harmony to be valid; and
thirdly—a principle deducible from the doctrine of the separation of
powers—that, while the
9
function of making new law belongs to the
legislative branch of the Government, that of expounding the standing law,
of which the Constitution would be part and parcel, belongs to the
Judiciary. The final disposition of the question of insuring the
conformity of ordinary legislation to the Constitution turned to no small
extent on the recognition of these three great principles.

The proposal to endow Congress with the power to negative state
legislation having been rejected by the Convention, Luther Martin of
Maryland moved that “the legislative acts of the United States made
in virtue and in pursuance of the Articles of Union, and all treaties made
or ratified under the authority of the United States, shall be the supreme
law of the respective States, and the judiciaries of the several States
shall be bound thereby in their decisions, anything in the respective laws
of the individual States to the contrary notwithstanding.” The
motion was agreed to without a dissenting voice and, with some slight
changes, became Article VIII of the report of the Committee of Detail of
the 7th of August, which in turn became “the linch-pin of the
Constitution.” ¹ Then, on the 27th of August, it was
agreed that
10
“the jurisdiction of the Supreme Court” should “extend
to all cases arising under the laws passed by the Legislature of the
United States,” whether, that is, such laws should be in pursuance
of the Constitution or not. The foundation was thus laid for the Supreme
Court to claim the right to review any state decision challenging on
constitutional grounds the validity of any act of Congress. Presently this
foundation was broadened by the substitution of the phrase “judicial
power of the United States” for the phrase “jurisdiction of
the Supreme Court,” and also by the insertion of the words
“this Constitution” and “the” before the word
“laws” in what ultimately became Article III of the
Constitution. The implications of the phraseology of this part of the
Constitution are therefore significant:

Section I. The judicial power of the United States shall be vested in one
Supreme Court, and in such inferior courts as the Congress may from time
to time ordain and establish. The judges, both of the Supreme and inferior
courts, shall hold their offices during good behavior, and shall at stated
times receive for their services a compensation which shall not be
diminished during their continuance in office.

Section II. 1. The judicial power shall extend to all cases in law and
equity arising under this Constitution,
11
the laws of the United States, and
treaties made, or which shall be made, under their authority; to all cases
affecting ambassadors, other public ministers, and consuls; to all cases
of admiralty and maritime jurisdiction; to controversies to which the
United States shall be a party; to controversies between two or more
States, between a State and citizens of another State, between citizens of
different States, between citizens of the same State claiming lands under
grants of different States, and between a State, or the citizens thereof,
and foreign states, citizens, or subjects.

Such, then, is the verbal basis of the power of the courts, and
particularly of the Supreme Court, to review the legislation of any State,
with reference to the Constitution, to acts of Congress, or to treaties of
the United States. Nor can there be much doubt that the members of the
Convention were also substantially agreed that the Supreme Court was
endowed with the further right to pass upon the constitutionality of acts
of Congress. The available evidence strictly contemporaneous with the
framing and ratification of the Constitution shows us seventeen of the
fifty-five members of the Convention asserting the existence of this
prerogative in unmistakable terms and only three using language that can
be construed to the contrary. More striking than that, however, is the
fact that
12
these seventeen names include fully three-fourths of the leaders
of the Convention, four of the five members of the Committee of Detail
which drafted the Constitution, and four of the five members of the
Committee of Style which gave the Constitution its final form. And these
were precisely the members who expressed themselves on all the interesting
and vital subjects before the Convention, because they were its statesmen
and articulate members. ¹

No part of the Constitution has realized the hopes of its framers more
brilliantly than has Article III, where the judicial power of the United
States is defined and organized, and no part has shown itself to be more
adaptable to the developing needs of a growing nation. Nor is the reason
obscure: no part came from the hands of the framers in more fragmentary
shape or left more to the discretion of Congress and the Court.

Congress is thus placed under constitutional obligation to establish one
Supreme Court, but the size of that Court is for Congress itself to
determine, as well as whether there shall be any inferior Federal
13
Courts at all. What, it may be asked, is the significance of the word
“shall” in Section II? Is it merely permissive or is it
mandatory? And, in either event, when does a case arise under the
Constitution or the laws of the United States? Here, too, are questions
which are left for Congress in the first instance and for the Supreme
Court in the last. Further, the Supreme Court is given
“original jurisdiction” in certain specified cases and
“appellate jurisdiction” in all others—subject,
however, to “such exceptions and under such regulations as the
Congress shall make.” Finally, the whole question of the relation of
the national courts to the state judiciaries, though it is elaborately
discussed by Alexander Hamilton in the Federalist,
is left by the Constitution itself to the practically undirected wisdom
of Congress, in the exercise of its power to pass “all laws
which shall be necessary and proper for carrying into
execution” ¹ its own powers and those of the other
departments of the Government.

Almost the first official act of the Senate of the United States, after it
had perfected its own organization, was the appointment of a committee
“to bring in a bill for organizing the judiciary of the United
States.” This committee consisted of eight
14
members, five of whom, including Oliver Ellsworth, its chairman, had been
members of the Federal Convention. To Ellsworth is to be credited largely
the authorship of the great Judiciary Act of September 24, 1789, the
essential features of which still remain after 130 years in full force
and effect.

This famous measure created a chief justiceship and five associate
justiceships for the Supreme Court; fifteen District Courts, one for each
State of the Union and for each of the two Territories, Kentucky and Ohio;
and, to stand between these, three Circuit Courts consisting of two
Supreme Court justices and the local district judge. The
“cases” and “controversies” comprehended by the
Act fall into three groups: first, those brought to enforce the national
laws and treaties, original jurisdiction of which was assigned to the
District Courts; secondly, controversies between citizens of different
States ¹; lastly, cases brought originally under a state law and in
a State Court but finally coming to involve some claim of right based on
the National Constitution, laws, or treaties. For these the twenty-fifth
section of the Act provided that,
15
where the decision of the highest State Court competent under the
state law to pass upon the case was adverse to the claim thus set up, an
appeal on the issue should lie to the Supreme Court. This twenty-fifth
section received the hearty approval of the champions of State Rights,
though later on it came to be to them an object of fiercest resentment. In
the Senate, as in the Convention, the artillery of these gentlemen was
trained upon the proposed inferior Federal Judiciary, which they pictured
as a sort of Gargantua ready at any moment “to swallow up the state
courts.”

The first nominations for the Supreme Court were sent in by Washington two
days after he had signed the Judiciary Act. As finally constituted, the
original bench consisted of John Jay of New York as Chief Justice, and of
John Rutledge of South Carolina, William Cushing of Massachusetts, John
Blair of Virginia, James Wilson of Pennsylvania, and James Iredell of
North Carolina as Associate Justices. All were known to be champions of
the Constitution, three had been members of the Federal Convention, four
had held high judicial offices in their home States, and all but Jay were
on record as advocates of the principle of judicial review. Jay was one of
the authors of the Federalist,
16
had achieved a great diplomatic reputation in the negotiations of 1782,
and possessed the political backing of the powerful Livingston family
of New York.

The Judiciary Act provided for two terms of court annually, one commencing
the first Monday of February, and the other on the first Monday of August.
On February 2, 1790, the Court opened its doors for the first time in an
upper room of the Exchange in New York City. Up to the February term of
1793 it had heard but five cases, and until the accession of Marshall it
had decided but fifty-five. The justices were largely occupied in what one
of them described as their “post-boy duties,” that is, in
riding their circuits. At first the justices rode in pairs and were
assigned to particular circuits. As a result of this practice, the
Southern justices were forced each year to make two trips of nearly two
thousand miles each and, in order to hold court for two weeks, often
passed two months on the road. In 1792, however, Congress changed the law
to permit the different circuits to be taken in turn and by single
justices, and in the meantime the Court had, in 1791, followed the rest of
the Government to Philadelphia, a rather more central seat. Then, in 1802,
the abolition of the August term eased the burdens of the justices still
more.
17
But of course they still had to put up with bad roads, bad inns, and bad
judicial quarters or sometimes none at all.

Yet that the life of a Supreme Court justice was not altogether one of
discomfort is shown by the following alluring account of the travels of
Justice Cushing on circuit: “He traveled over the whole of the
Union, holding courts in Virginia, the Carolinas, and Georgia. His
traveling equipage was a four-wheeled phaeton, drawn by a pair of horses,
which he drove. It was remarkable for its many ingenious arrangements
(all of his contrivance) for carrying books, choice groceries, and other
comforts. Mrs. Cushing always accompanied him, and generally read aloud
while riding. His faithful servant Prince, a jet-black negro, whose
parents had been slaves in the family and who loved his master with
unbounded affection, followed.” ¹ Compared with that of a
modern judge always confronted with a docket of eight or nine hundred
cases in arrears, Justice Cushing’s lot was perhaps not so
unenviable.

The pioneer work of the Supreme Court in constitutional interpretation
has, for all but special
18
students, fallen into something like obscurity owing to the luster of
Marshall’s achievements and to his habit of deciding cases without
much reference to precedent. But these early labors are by no means
insignificant, especially since they pointed the way to some of
Marshall’s most striking decisions. In Chisholm vs. Georgia,
¹ which was decided in 1793, the Court ruled, in the face of an
assurance in the Federalist to the contrary, that an individual
might sue a State; and though this decision was speedily disallowed by
resentful debtor States by the adoption of the Eleventh Amendment, its
underlying premise that, “as to the purposes of the Union, the
States are not sovereign” remained untouched; and three years later
the Court affirmed the supremacy of national treaties over conflicting
state laws and so established a precedent which has never been disturbed.
² Meantime the Supreme Court was advancing, though with notable
caution, toward an assertion of the right to pass upon the
constitutionality of acts of Congress. Thus in 1792, Congress ordered the
judges while on circuit to pass upon pension claims, their determinations
to be reviewable by the Secretary of the Treasury. In protests which they
filed with the President, the
19
judges stated the dilemma which confronted them: either the new duty was
a judicial one or it was not; if the latter, they could not perform it,
at least not in their capacity as judges; if the former, then their
decisions were not properly reviewable by an executive officer. Washington
promptly sent the protests to Congress, whereupon some extremists raised
the cry of impeachment; but the majority hastened to amend the Act so as
to meet the views of the judges. ³ Four years later, in the Carriage
Tax case, 4 the only question argued
before the Court was that of the validity of a congressional excise. Yet
as late as 1800 we find Justice Samuel Chase of Maryland, who had
succeeded Blair in 1795, expressing skepticism as to the right of the
Court to disallow acts of Congress on the ground of their
unconstitutionality, though at the same time admitting that the prevailing
opinion among bench and bar supported the claim.

The great lack of the Federal Judiciary during these early years, and it
eventually proved well-nigh fatal, was one of leadership. Jay was a
satisfactory magistrate, but he was not a great force on the Supreme
Bench, partly on account of his peculiarities of temperament and his
ill
20
health, and partly because, even before he resigned in 1795 to run for
Governor in New York, his judicial career had been cut short by an
important diplomatic assignment to England. His successor, Oliver
Ellsworth, also suffered from ill health, and he too was finally
sacrificed on the diplomatic altar by being sent to France in 1799. During
the same interval there were also several resignations among the associate
justices. So, what with its shifting personnel, the lack of business, and
the brief semiannual terms, the Court secured only a feeble hold on the
imagination of the country. It may be thought, no doubt, that judges
anxious to steer clear of politics did not require leadership in the
political sense. But the truth of the matter is that willy-nilly the
Federal Judiciary at this period was bound to enter politics, and the only
question was with what degree of tact and prudence this should be done. It
was to be to the glory of Marshall that he recognized this fact perfectly
and with mingled boldness and caution grasped the leadership which the
circumstances demanded.

The situation at the beginning was precarious enough. While the
Constitution was yet far from having commended itself to the back country
democracy, that is, to the bulk of the American
21
people, the normal duties of the lower Federal Courts brought the judges
into daily contact with prevalent prejudices and misconceptions in their
most aggravated forms. Between 1790 and 1800 there were two serious
uprisings against the new Government: the Whisky Rebellion of 1794 and
Fries’s Rebellion five years later. During the same period the
popular ferment caused by the French Revolution was at its height.
Entrusted with the execution of the laws, the young Judiciary
“was necessarily thrust forward to bear the brunt in
the first instance of all the opposition levied against the federal
head,” its revenue measures, its commercial restrictions,
its efforts to enforce neutrality and to quell uprisings. In short, it
was the point of attrition between the new system and a suspicious,
excited populace.

Then, to make bad matters worse, Congress in 1798 passed the Sedition Act.
Had political discretion instead of party venom governed the judges, it is
not unlikely that they would have seized the opportunity presented by this
measure to declare it void and by doing so would have made good their
censorship of acts of Congress with the approval of even the Jeffersonian
opposition. Instead, they enforced the Sedition Act, often with gratuitous
rigor,
22
while some of them even entertained prosecutions under a supposed
Common Law of the United States. The immediate sequel to their action was
the claim put forth in the Virginia and Kentucky Resolutions that the
final authority in interpreting the National Constitution lay with the
local legislatures. Before the principle of judicial review was supported
by a single authoritative decision, it had thus become a partisan issue!
¹

A few months later Jefferson was elected President, and the Federalists,
seeing themselves about to lose control of the Executive and Congress,
proceeded to take steps to convert the Judiciary into an avowedly partisan
stronghold. By the Act of February 13, 1801, the number of associate
justiceships was reduced to four, in the hope that the new Administration
might in this way be excluded from the opportunity of making any
appointments to the Supreme Bench, the number of district judgeships was
enlarged by five, and six Circuit Courts were created which furnished
places for sixteen more new judges. When John Adams, the retiring
President, proceeded with the aid of the Federalist majority in the Senate
23
and of his Secretary of State, John Marshall, to fill up the new posts
with the so-called “midnight judges,” ¹ the rage and
consternation of the Republican leaders broke all bounds. The Federal
Judiciary, declared John Randolph, had become “an hospital of
decayed politicians.” Others pictured the country as reduced,
under the weight of “supernumerary judges” and
hosts of attendant lawyers, to the condition of Egypt under the Mamelukes.
Jefferson’s concern went deeper. “They have retired into the
judiciary as a stronghold,” he wrote Dickinson. “There
the remains of Federalism are to be preserved and fed from the Treasury,
and from that battery all the works of Republicanism are to be beaten down
and destroyed.” The Federal Judiciary, as a coördinate and
independent branch of the Government, was confronted with a fight for
life!

Meanwhile, late in November, 1800, Ellsworth had resigned, and Adams had
begun casting about for his successor. First he turned to Jay, who
declined on the ground that the Court, “under a system so
defective,” would never “obtain the
24
energy, weight, and dignity which were essential
to its affording due support to the National Government, nor acquire the
public confidence and respect which, as the last resort of the justice of
the nation, it should possess.” Adams now bethought himself of his
Secretary of State and, without previously consulting him, on January 20,
1801, sent his name to the Senate. A week later the Senate ratified the
nomination, and on the 4th of February Marshall accepted the appointment.
The task despaired of by Jay and abandoned by Ellsworth was at last in
capable hands.

Marshall’s Early Years

John Marshall was born on September 24, 1755,
in Fauquier County, Virginia. Though like Jefferson he was descended on
his mother’s side from the Randolphs of Turkey Island, colonial
grandees who were also progenitors of John Randolph, Edmund Randolph, and
Robert E. Lee, his father, Thomas Marshall, was “a planter of
narrow fortune” and modest lineage and a pioneer. Fauquier was then
on the frontier, and a few years after John was born the family moved
still farther westward to a place called “The Hollow,” a
small depression on the eastern slope of the Blue
Ridge. The external furnishings of the boy’s life were extremely
primitive, a fact which Marshall used later to recall by relating that his
mother and sisters used thorns for buttons and that hot mush flavored with
balm leaf was regarded as a very special dish. Neighbors of course, were
few and far between, but society was
26
not lacking for all that. As the
first of fifteen children, all of whom reached maturity, John found ample
opportunity to cultivate that affectionate helpfulness and gayety of
spirit which in after years even enemies accounted one of his most notable
traits.

Among the various influences which, during the plastic years of boyhood
and youth, went to shape the outlook of the future Chief Justice high rank
must be accorded his pioneer life. It is not merely that the spirit of the
frontier, with its independence of precedent and its audacity of
initiative, breathes through his great constitutional decisions, but also
that in being of the frontier Marshall escaped being something else. Had
he been born in lowland Virginia, he would have imbibed the intense
localism and individualism of the great plantation, and with his turn of
mind might well have filled the rôle of Calhoun instead of that very
different rôle he actually did fill. There was, indeed, one great
planter with whom young Marshall was thrown into occasional contact, and
that was his father’s patron and patron saint, Washington. The
appeal made to the lad’s imagination by the great Virginian was
deep and abiding. And it goes without saying that the horizons suggested
by the fame of
27
Fort Venango and Fort Duquesne were not those of seaboard Virginia but of
America.

Many are the great men who have owed their debt to a mother’s loving
helpfulness and alert understanding. Marshall, on the other hand, was his
father’s child. “My father,” he was wont to declare
in after years, “was a far abler man than any of his sons. To him
I owe the solid foundations of all my success in life.” What
were these solid foundations? One was a
superb physical constitution; another was a taste for intellectual
delights; and to the upbuilding of both these in his son, Thomas Marshall
devoted himself with enthusiasm and masculine good sense, aided on the one
hand by a very select library consisting of Shakespeare, Milton, Dryden,
and Pope, and on the other by the ever fresh invitation of the
mountainside to health-giving sports.

Pope was the lad’s especial textbook, and we are told that he had
transcribed the whole of the Essay on Man by the time he was twelve
and some of the Moral Essays as well, besides having
“committed to memory many of the most interesting passages of that
distinguished poet.” The result is to be partially discerned many
years later in certain tricks of Marshall’s style; but indeed the
28
influence of the great moralist must have penetrated far deeper. The
Essay on Man filled, we may surmise, much the same place in the
education of the first generation of American judges that Herbert
Spencer’s Social Statics filled in that of the judges of a
later day. The Essay on Man pictures the universe as a species of
constitutional monarchy governed “not by partial but by general
laws”; in “man’s imperial race” this
beneficent sway expresses itself in two principles, “self-love
to urge, and reason to restrain”; instructed by reason, self-love
lies at the basis of all human institutions, the state, government, laws,
and has “found the private in the public good”; so, on
the whole, justice is the inevitable law of life. “Whatever is,
is right.” It is interesting to suppose that while Marshall was
committing to memory the complacent lines of the Essay on Man,
his cousin Jefferson may have been deep in the Essay on the Origin
of Inequality.

At the age of fourteen Marshall was placed for a few months under the
tuition of a clergyman named Campbell, who taught him the rudiments of
Latin and introduced him to Livy, Cicero, and Horace. A little later the
great debate over American rights burst forth and became with Marshall,
29
as
with so many promising lads of the time, the decisive factor in
determining his intellectual bent, and he now began reading Blackstone.
The great British orators, however, whose eloquence had so much to do, for
instance, with shaping Webster’s genius, came too late to influence
him greatly.

The part which the War of Independence had in shaping the ideas and the
destiny of John Marshall was most important. As the news of Lexington and
Bunker Hill passed the Potomac, he was among the first to spring to arms.
His services at the siege of Norfolk, the battles of Brandywine,
Germantown, and Monmouth, and his share in the rigors of Valley Forge and
in the capture of Stony Point, made him an American before he had ever had
time to become a Virginian. As he himself wrote long afterwards: “I
had grown up at a time when the love of the Union and the resistance to
Great Britain were the inseparable inmates of the same bosom; …
when the maxim ‘United we stand, divided we fall’ was the
maxim of every orthodox American. And I had imbibed these sentiments so
thoroughly that they constituted a part of my being. I carried them with
me into the army, where I found myself associated with brave men from
different States, who were risking life and everything valuable in a
common
30
cause believed by
all to be most precious, and where I was confirmed in the habit of
considering America as my country and Congress as my government.”

Love of country, however, was not the only quality which soldiering
developed in Marshall. The cheerfulness and courage which illuminated his
patriotism brought him popularity among men. Though but a lieutenant, he
was presently made a deputy judge advocate. In this position he displayed
notable talent in adjusting differences between officers and men and also
became acquainted with Washington’s brilliant young secretary,
Alexander Hamilton.

While still in active service in 1780, Marshall attended a course of law
lectures given by George Wythe at William and Mary College. He owed this
opportunity to Jefferson, who was then Governor of the State and who had
obtained the abolition of the chair of divinity at the college and the
introduction of a course in law and another in medicine. Whether the
future Chief Justice was prepared to take full advantage of the
opportunity thus offered is, however, a question. He had just fallen heels
over head in love with Mary Ambler, whom three years later he married, and
his notebook seems to show us that his thoughts
31
were quite as much upon his sweetheart as upon the lecturer’s
wisdom.

None the less, as soon as the Courts of Virginia reopened, upon the
capitulation of Cornwallis, Marshall hung out his shingle at Richmond and
began the practice of his profession. The new capital was still hardly
more than an outpost on the frontier, and conditions of living were rude
in the extreme. “The Capitol itself,” we are told,
“was an ugly structure—‘a mere wooden
barn’—on an unlovely site at the foot of a hill. The
private dwellings scattered about were poor, mean, little wooden
houses.” “Main Street was still unpaved, deep with
dust when dry and so muddy during a rainy season that wagons sank up to
the axles.” It ended in gullies and swamps. Trade, which was still
in the hands of the British merchants, involved for the most part
transactions in skins, furs, ginseng, snakeroot, and “dried
rattlesnakes—used to make a viper broth for consumptive
patients.” “There was but one church building and
attendance was scanty and infrequent.” Not so, however, of
Farmicola’s tavern, whither card playing, drinking, and ribaldry
drew crowds, especially when the legislature was in session. ¹

32
But there was one institution of which Richmond could boast, even in
comparison with New York, Boston, or Philadelphia, and that was its Bar.
Randolph, Wickham, Campbell, Call, Pendleton, Wythe—these are names
whose fame still survives wherever the history of the American Bar is
cherished; and it was with their living bearers that young Marshall now
entered into competition. The result is somewhat astonishing at first
consideration, for even by the standards of his own day, when digests,
indices, and the other numerous aids which now ease the path of the young
attorney were generally lacking, his preparation had been slight. Several
circumstances, however, came to his rescue. So soon after the Revolution
British precedents were naturally rather out of favor, while on the other
hand many of the questions which found their way into the courts were
those peculiar to a new country and so were without applicable precedents
for their solution. What was chiefly demanded of an attorney in this
situation was a capacity for attention, the ability to analyze an
opponent’s argument, and a discerning eye for fundamental issues.
Competent observers soon made the discovery that young Marshall possessed
all these faculties to a marked degree and, what was
33
just as important, his modesty made recognition by his elders easy and
gracious.

From 1782 until the adoption of the Constitution, Marshall was almost
continuously a member of the Virginia Legislature. He thus became a
witness of that course of policy which throughout this period daily
rendered the state governments more and more “the hope of their
enemies, the despair of their friends.” The termination of
hostilities against England had relaxed the already feeble bonds
connecting the States. Congress had powers which were only recommendatory,
and its recommendations were ignored by the local legislatures. The army,
unpaid and frequently in actual distress, was so rapidly losing its morale
that it might easily become a prey to demagogues. The treaties of the new
nation were flouted by every State in the Union. Tariff wars and
conflicting land grants embittered the relations of sister States. The
foreign trade of the country, it was asserted, “was regulated,
taxed, monopolized, and crippled at the pleasure of the maritime powers of
Europe.” Burdened with debts which were the legacy of an era of
speculation, a considerable part of the population, especially of the
farmer class, was demanding measures of relief which threatened the
34
security of contracts. “Laws suspending the collection of debts,
insolvent laws, instalment laws, tender laws, and other expedients of a
like nature, were familiarly adopted or openly and boldly
vindicated.” ¹

From the outset Marshall ranged himself on the side of that party in the
Virginia Legislature which, under the leadership of Madison, demanded with
growing insistence a general and radical constitutional reform designed at
once to strengthen the national power and to curtail state legislative
power. His attitude was determined not only by his sympathy for the
sufferings of his former comrades in arms and by his veneration for his
father and for Washington, who were of the same party, but also by his
military experience, which had rendered the pretensions of state
sovereignty ridiculous in his eyes. Local discontent came to a head in the
autumn of 1786 with the outbreak of Shays’s Rebellion in western
Massachusetts. Marshall, along with the great body of public men of the
day, conceived for the movement the gravest alarm, and the more so since
he considered it as the natural
35
culmination of prevailing tendencies. In a letter to James Wilkinson
early in 1787, he wrote: “These violent …
dissensions in a State I had thought inferior in wisdom and virtue to no
one in our Union, added to the strong tendency which the politics of many
eminent characters among ourselves have to promote private and public
dishonesty, cast a deep shade over that bright prospect which the
Revolution in America and the establishment of our free governments had
opened to the votaries of liberty throughout the globe. I fear, and there
is no opinion more degrading to the dignity of man, that those have truth
on their side who say that man is incapable of governing himself.”

Marshall accordingly championed the adoption of the Constitution of 1787
quite as much because of its provisions for diminishing the legislative
powers of the States in the interest of private rights as because of its
provisions for augmenting the powers of the General Government. His
attitude is revealed, for instance, in the opening words of his first
speech on the floor of the Virginia Convention, to which he had been
chosen a member from Richmond: “Mr. Chairman, I conceive that the
object of the discussion now before us is whether democracy or despotism
be most eligible.… The
36
supporters of the Constitution claim the title of being firm friends of
liberty and the rights of man.… We prefer this system because we
think it a well-regulated democracy.… What are the favorite maxims
of democracy? A strict observance of justice and public faith.…
Would to Heaven that these principles had been observed under the present
government. Had this been the case the friends of liberty would not be
willing now to part with it.” The point of view which Marshall here
assumed was obviously the same as that from which Madison, Hamilton,
Wilson, and others on the floor of the Federal Convention had freely
predicted that republican liberty must disappear from the earth unless the
abuses of it practiced in many of the States could be eliminated.

Marshall’s services in behalf of the Constitution in the closely
fought battle for ratification which took place in the Virginia Convention
are only partially disclosed in the pages of Elliot’s
Debates. He was already coming to be regarded as one excellent in
council as well as in formal discussion, and his democratic manners and
personal popularity with all classes were a pronounced asset for any
cause he chose to espouse. Marshall’s part on the floor of the
Convention was, of course, much less conspicuous
37
than that of either Madison or Randolph, but in the second rank of the
Constitution’s defenders, including men like Corbin, Nicholas,
and Pendleton, he stood foremost. His remarks were naturally shaped first
of all to meet the immediate necessities of the occasion, but now and then
they foreshadow views of a more enduring value. For example, he met a
favorite contention of the opposition by saying that arguments based on
the assumption that necessary powers would be abused were arguments
against government in general and “a recommendation of
anarchy.” To Henry’s despairing cry that the proposed system
lacked checks, he replied: “What has become of his enthusiastic
eulogium of the American spirit? We should find a check and control, when
oppressed, from that source. In this country there is no exclusive
personal stock of interest. The interest of the community is blended and
inseparably connected with that of the individual.… When we consult
the common good, we consult our own.” And when Henry argued that a
vigorous union was unnecessary because “we are separated by the sea
from the powers of Europe,” Marshall replied: “Sir,
the sea makes them neighbors of us.”

38
It is worthy of note that Marshall gave his greatest attention to the
judiciary article as it appeared in the proposed Constitution. He pointed
out that the principle of judicial independence was here better
safeguarded than in the Constitution of Virginia. He stated in one breath
the principle of judicial review and the doctrine of enumerated powers.
If, said he, Congress “make a law not warranted by any of the powers
enumerated, it would be considered by the judges as an infringement of the
Constitution which they are to guard; they would not consider such a law
as coming within their jurisdiction. They would declare it void.”
¹ On the other hand, Marshall scoffed at the idea that the citizen of
a State might bring an original action against another State in the
Supreme Court. His dissections of Mason’s and Henry’s
arguments frequently exhibit controversial skill of a high order. From
Henry, indeed, Marshall drew a notable tribute to his talent, which was
at the same time proof of his ability to keep friends with his enemies.

39
On the day the great Judiciary Act became law, Marshall attained his
thirty-fourth year. His stride toward professional and political
prominence was now rapid. At the same time his private interests were
becoming more closely interwoven with his political principles and
personal affiliations, and his talents were maturing. Hitherto his outlook
upon life had been derived largely from older men, but his own
individuality now began to assert itself; his groove in life was taking
final shape.

The best description of Marshall shows him in the prime of his manhood a
few months after his accession to the Supreme Bench. It appears in William
Wirt’s celebrated Letters of the British Spy:

The [Chief Justice] of the United States is, in his person, tall, meager,
emaciated; his muscles relaxed, and his joints so loosely connected, as
not only to disqualify him, apparently for any vigorous exertion of body,
but to destroy everything like elegance and harmony in his air and
movements. Indeed, in his whole appearance, and demeanour; dress,
attitudes, gesture; sitting, standing or walking; he is as far removed
from the idolized graces of Lord Chesterfield, as any other gentleman on
earth. To continue the portrait: his head and face are small in proportion
to his height; his complexion swarthy; the muscles of his face, being
relaxed, give him the appearance of a man of fifty years of age, nor can
he be much younger; his countenance has a faithful expression of
40
great good humour and hilarity; while his black eyes—that unerring
index—possess an irradiating spirit, which proclaims the imperial
powers of the mind that sits enthroned within.

The “British Spy” then describes Marshall’s personality
as an orator at the time when he was still practicing at the Virginia bar:

His voice [the description continues] is dry and hard; his attitude, in
his most effective orations, was often extremely awkward, as it was not
unusual for him to stand with his left foot in advance, while all his
gestures proceeded from his right arm, and consisted merely in a vehement,
perpendicular swing of it from about the elevation of his head to the bar,
behind which he was accustomed to stand.… [Nevertheless] if
eloquence may be said to consist in the power of seizing the attention
with irresistible force, and never permitting it to elude the grasp until
the hearer has received the conviction which the speaker intends, [then]
this extraordinary man, without the aid of fancy, without the advantages
of person, voice, attitude, gesture, or any of the ornaments of an orator,
deserves to be considered as one of the most eloquent men in the
world.… He possesses one original, and, almost, supernatural
faculty; the faculty of developing a subject by a single glance of his
mind, and detecting at once, the very point on which every controversy
depends. No matter what the question; though ten times more knotty than
the gnarled oak, the lightning of heaven is not more rapid nor more
resistless, than his astonishing penetration. Nor does
41
the exercise of it seem to cost him an effort. On the contrary, it is as
easy as vision. I am persuaded that his eyes do not fly over a landscape
and take in its various objects with more promptitude and facility, than
his mind embraces and analyzes the most complex subject.

Possessing while at the bar this intellectual elevation, which enables
him to look down and comprehend the whole ground at once, he determined
immediately and without difficulty, on which side the question might be
most advantageously approached and assailed. In a bad cause his art
consisted in laying his premises so remotely from the point directly in
debate, or else in terms so general and so spacious, that the hearer,
seeing no consequence which could be drawn from them, was just as willing
to admit them as not; but his premises once admitted, the demonstration,
however distant, followed as certainly, as cogently, as inevitably, as any
demonstration in Euclid.

All his eloquence consists in the apparently deep self-conviction, and
emphatic earnestness of his manner, the correspondent simplicity and
energy of his style; the close and logical connexion of his thoughts; and
the easy gradations by which he opens his lights on the attentive minds of
his hearers.

The audience are never permitted to pause for a moment. There is no
stopping to weave garlands of flowers, to hang in festoons, around a
favorite argument. On the contrary, every sentence is progressive; every
idea sheds new light on the subject; the listener is kept perpetually in
that sweetly pleasurable vibration, with which the mind of man always
receives new truths; the dawn advances in easy but unremitting pace; the
subject opens gradually on the view; until, rising in high
42
relief, in all its native colors and proportions, the argument is
consummated by the conviction of the delighted hearer.

What appeared to Marshall’s friends as most likely in his early
middle years to stand in the way of his advancement was his addiction to
ease and to a somewhat excessive conviviality. But it is worth noting that
the charge of conviviality was never repeated after he was appointed Chief
Justice; and as to his unstudious habits, therein perhaps lay one of the
causes contributing to his achievement. Both as attorney and as judge, he
preferred the quest of broad, underlying principles, and, with plenty of
time for recuperation from each exertion, he was able to bring to each
successive task undiminished vitality and unclouded attention. What the
author of the Leviathan remarks of himself may well be
repeated of Marshall—that he made more use of his brains than of his
bookshelves and that, if he had read as much as most men, he would have
been as ignorant as they.

That Marshall was one of the leading members of his profession in
Virginia, the most recent biographical researches unmistakably prove.
“From 1790 until his election to Congress nine years
43
later,” Albert J. Beveridge ¹ writes, “Marshall argued
113 cases decided by the court of appeals of Virginia.… He
appeared during this time in practically every important cause heard and
determined by the supreme tribunal of the State.” Practically all
this litigation concerned property rights, and much of it was exceedingly
intricate. Marshall’s biographer also points out the interesting
fact that “whenever there was more than one attorney for the client
who retained Marshall, the latter almost invariably was retained to make
the closing argument.” He was thus able to make good any
lack of knowledge of the technical issues involved as well as to bring his
great debating powers to bear with the best advantage.

Meanwhile Marshall was also rising into political prominence. From the
first a supporter of Washington’s Administration, he was gradually
thrust into the position of Federalist leader in Virginia. In 1794 he
declined the post of Attorney-General, which Washington had offered him.
In the following year he became involved in the acrimonious struggle over
the Jay Treaty with Great Britain, and both in the Legislature and before
meetings of citizens defended the treaty so aggressively that its
44
opponents were finally forced to abandon their contention that it was
unconstitutional and to content themselves with a simple denial that it
was expedient. Early in 1796 Marshall made his first appearance before the
Supreme Court, in the case of Ware vs. Hylton. The fame of his
defense of “the British Treaty” during the previous
year had preceded him, and his reception by the Federalist leaders from
New York and New England was notably cordial. His argument before the
Court, too, though it did not in the end prevail, added greatly to his
reputation. “His head,” said Rufus King, who heard
the argument, “is one of the best organized of any one that I
have known.”

Either in 1793 or early in the following year, Marshall participated in a
business transaction which, though it did not impart to his political and
constitutional views their original bent, yet must have operated more or
less to confirm his opinions. A syndicate composed of Marshall, one of his
brothers, and two other gentlemen, purchased from the British heirs what
remained of the great Fairfax estate in the Northern Neck, a tract
“embracing over 160,000 acres of the best land in Virginia.”
By an Act passed during the Revolution, Virginia had decreed the
confiscation of all lands held by
45
British subjects; and though the State had never prosecuted the
forfeiture of this particular estate, she was always threatening to do
so. Marshall’s investment thus came to occupy for many years a
precarious legal footing which, it may be surmised, did not a little to
keep alert his natural sympathy for all victims of legislative oppression.
Moreover the business relation which he formed with Robert Morris in
financing the investment brought him into personal contact for the first
time with the interests behind Hamilton’s financial program, the
constitutionality of which he had already defended on the hustings.

It was due also to this business venture that Marshall was at last
persuaded to break through his rule of declining office and to accept
appointment in 1797, together with Pinckney and Gerry, on the famous
“X.Y.Z.” mission to France. From this single year’s
employment he obtained nearly $20,000, which, says his biographer,
“over and above his expenses,” was “three times his
annual earnings at the bar”; and the money came just in the nick
of time to save the Fairfax investment, for Morris was now
bankrupt and in jail. But not less important as a result of his services
was the enhanced reputation which Marshall’s correspondence
46
with Talleyrand brought him. His return to Philadelphia was a popular
triumph, and even Jefferson, temporarily discomfited by the
“X.Y.Z.” disclosures, found it discreet to go through the
form of paying him court—whereby hangs a tale. Jefferson called at
Marshall’s tavern. Marshall was out. Jefferson thereupon left a
card deploring how “unlucky” he had been. Commenting years
afterwards upon the occurrence, Marshall remarked that this was one time
at least when Jefferson came near telling the truth.

Through the warm insistence of Washington, Marshall was finally persuaded
in the spring of 1799 to stand as Federalist candidate for Congress in the
Richmond district. The expression of his views at this time is
significant. A correspondent of an Alexandria newspaper signing himself
“Freeholder” put to him a number of questions intended to call
forth Marshall’s opinions on the issues of the day. In answering a
query as to whether he favored an alliance with Great Britain, the
candidate declared that the whole of his “politics respecting
foreign nations” was “reducible to this single
position.… Commercial intercourse with all, but political
ties with none.” But a more pressing issue on which the public
wished information was
47
that furnished by the Alien and Sedition laws, which Marshall had
originally criticized on grounds both of expediency and of
constitutionality. Now, however, he defended these measures on
constitutional grounds, taking the latitudinarian position that
“powers necessary for the attainment of all objects which are
general in their nature, which interest all America … would be
naturally vested in the Government of the whole,” but he declared
himself strongly opposed to their renewal. At the same time he denounced
the Virginia Resolutions as calculated “to sap the foundations of
our Union.”

The election was held late in April, under conditions which must have
added greatly to popular interest. Following the custom in Virginia, the
voter, instead of casting a ballot, merely declared his preference in the
presence of the candidates, the election officials, and the assembled
multitude. In the intensity of the struggle no voter, halt, lame, or
blind, was overlooked; and a barrel of whisky near at hand lent further
zest to the occasion. Time and again the vote in the district was a tie,
and as a result frequent personal encounters took place between aroused
partisans. Marshall’s election by a narrow majority in a borough
which was strongly
48
pro-Jeffersonian was due, indeed, not to his principles but to
his personal popularity and to the support which he received from Patrick
Henry, the former Governor of the State.

The most notable event of his brief stay in Congress was his successful
defense of President Adams’s action in handing over to the British
authorities, in conformity with the twenty-seventh article of the Jay
treaty, Jonathan Robins, who was alleged to be a fugitive from justice.
Adams’s critics charged him with having usurped a judicial function.
“The President,” said Marshall in reply, “is sole organ
of the nation in its external relations, and its sole representative with
foreign nations. Of consequence, the demand of a foreign nation can only
be made on him. He possesses the whole executive power. He holds and
directs the force of the nation. Of consequence, any act to be performed
by the force of the nation is to be performed through him. He is charged
to execute the laws. A treaty is declared to be a law. He must then
execute a treaty where he, and he alone, possesses the means of executing
it.” This is one of the few speeches ever uttered on the floor of
Congress which demonstrably made votes. Gallatin, who had been set to
answer Marshall,
49
threw up his brief; and the resolutions against the President were
defeated by a House hostile to him.

Marshall’s course in Congress was characterized throughout by
independence of character, moderation of views, and level good sense, of
which his various congressional activities afford abundant evidence.
Though he had himself been one of the “X.Y.Z.” mission,
Marshall now warmly supported Adams’s policy of renewing diplomatic
relations with France. He took his political life in his hands to register
a vote against the Sedition Act, a proposal to repeal which was brought
before the House. He foiled a scheme which his party associates had
devised, in view of the approaching presidential election, to transfer to
a congressional committee the final authority in canvassing the electoral
vote—a plan all too likely to precipitate civil war. His Federalist
brethren of the extreme Hamiltonian type quite resented the frequency with
which he was wont to kick over the party traces. “He is
disposed,” wrote Sedgwick, the Speaker, “to express
great respect for the sovereign people and to quote their opinions as an
evidence of truth,” which “is of all things the most
destructive of personal independence and of that weight of
50
character which a great man
ought to possess.” ¹

Marshall had now come to be practically indispensable to the isolated
President, at whose most earnest insistence he entered the Cabinet as
Secretary of State, though he had previously declined to become Secretary
of War. The presidential campaign was the engrossing interest of the year,
and as it spread its “havoc of virulence” throughout the
country, Federalists of both factions seemed to turn to Marshall in the
hope that, by some miracle of conciliation, he could save the day. The
hope proved groundless, however, and all that was ultimately left the
party which had founded the Government was to choose a President from the
rival leaders of the opposition. Of these Marshall preferred Burr,
because, as he explained, he knew Jefferson’s principles better.
Besides having foreign prejudices, Mr. Jefferson, he continued,
“appears to me to be a man who will embody himself with the House of
Representatives, and by weakening the office of President, he will
increase his personal power.” Better political prophecy has, indeed,
rarely been penned. Deferring nevertheless to Hamilton’s
insistence—and, as events were to
51
prove, to his superior wisdom—Marshall kept aloof from the fight
in the House, and his implacable foe was elected.

Marshall was already one of the eminent men of the country when Adams,
without consulting him, nominated him for Chief Justice. He stood at the
head of the Virginia bar; he was the most generally trusted leader of his
party; he already had a national reputation as an interpreter of the
Constitution. Yet his appointment as Chief Justice aroused criticism even
among his party friends. Their doubt did not touch his intellectual
attainments, but in their opinion his political moderation, his essential
democracy, his personal amiability, all counted against him. “He
is,” wrote Sedgwick, “a man of very affectionate disposition,
of great simplicity of manners, and honest and honorable in all his
conduct. He is attached to pleasures, with convivial habits strongly
fixed. He is indolent therefore. He has a strong attachment to popularity
but is indisposed to sacrifice to it his integrity; hence he is disposed
on all popular subjects to feel the public pulse, and hence results
indecision and an expression of doubt.” ¹

It was perhaps fortunate for the Federal Judiciary,
52
of which he was now to take command, that John Marshall was on occasion
“disposed … to feel the public pulse.” A
headstrong pilot might speedily have dashed his craft on the rocks; a
timid one would have abandoned his course; but Marshall did neither. The
better answer to Sedgwick’s fears was given in 1805 when John
Randolph declared that Marshall’s “real worth was never
known until he was appointed Chief Justice.” And Sedgwick is
further confuted by the portraits of the Chief Justice, which, with all
their diversity, are in accord on that stubborn chin, that firm placid
mouth, that steady, benignant gaze, so capable of putting attorneys out
of countenance when they had to face it overlong. Here are the lineaments
of self-confidence unmarred by vanity, of dignity without condescension,
of tenacity untouched by fanaticism, and above all, of an easy conscience
and unruffled serenity. It required the lodestone of a great and
thoroughly congenial responsibility to bring to light Marshall’s
real metal.

Jefferson’s War On The Judiciary

By a singular coincidence Marshall took his
seat as Chief Justice at the opening of the first term of Court in
Washington, the new capital, on Wednesday, February 4, 1801. The most
beautiful of capital cities was then little more than a swamp, athwart
which ran a streak of mire named by solemn congressional enactment
“Pennsylvania Avenue.” At one end of this
difficult thoroughfare stood the President’s mansion—still in
the hands of the builders but already sagging and leaking through the
shrinkage of the green timber they had used—two or three partially
constructed office-buildings, and a few private edifices and boarding
houses. Marshall never removed his residence to Washington but occupied
chambers in one or other of these buildings, in company with some of the
associate justices. This arrangement was practicable owing to the brevity
of the judicial term,
54
which usually lasted little more than six weeks, and
was almost necessitated by the unhealthful climate of the place. It may be
conjectured that the life of John Marshall was prolonged for some years by
the Act of 1802, which abolished the August term of court, for in the late
summer and early autumn the place swarmed with mosquitoes and reeked with
malaria.

The Capitol, which stood at the other end of Pennsylvania Avenue, was in
1801 even less near completion than the President’s house; at this
time the south wing rose scarcely twenty feet above its foundations. In the
north wing, which was nearer completion, in a basement chamber, approached
by a small hall opening on the eastern side of the Capitol and flanked by
pillars carved to represent bundles of cornstalks with ears half opened at
the top, Marshall held court for more than a third of a century and
elaborated his great principles of constitutional law. This room,
untouched by British vandalism in the invasion of 1814, was christened by
the witty malignity of John Randolph, “the cave of Trophonius.”
¹

55
It was in the Senate Chamber in this same north wing that Marshall
administered the oath of office to Jefferson just one month after he
himself had taken office. There have been in American history few more
dramatic moments, few more significant, than this occasion when these two
men confronted each other. They detested each other with a detestation
rooted in the most essential differences of character and outlook. As good
fortune arranged it, however, each came to occupy precisely that political
station in which he could do his best work and from which he could best
correct the bias of the other. Marshall’s nationalism rescued
American democracy from the vaguer horizons to which Jefferson’s
cosmopolitanism beckoned, and gave to it a secure abode with plenty of
elbow-room. Jefferson’s emphasis on the right of the contemporary
majority to shape its own institutions prevented Marshall’s
constitutionalism from developing a privileged aristocracy. Marshall was
finely loyal to principles accepted from others; Jefferson was
speculative, experimental; the personalities of these two men did much to
conserve essential values in the American Republic.

As Jefferson turned from his oath-taking to deliver his inaugural,
Marshall must have listened
56
with attentive ears for some hint of the
attitude which the new Administration proposed to take with regard to the
Federal Judiciary and especially with regard to the recent act increasing
its numbers; but if so, he got nothing for his pains. The new President
seemed particularly bent upon dispelling any idea that there was to be a
political proscription. Let us, said he, “unite with one heart and
one mind. Let us restore to social intercourse that harmony and affection
without which liberty and even life itself are but dreary things.…
Every difference of opinion is not a difference of principle. We have
called by different names brethren of the same principle. We are all
Republicans, we are all Federalists.”

Notwithstanding the reassurance of these words, the atmosphere both of
official Washington and of the country at large was electric with
dangerous currents—dangerous especially to judges—and
Jefferson was far too well known as an adept in the manipulation of
political lightning to admit of much confidence that he would fail to turn
these forces against his enemy when the opportune moment should arrive.
The national courts were regarded with more distrust by the mass of
Republicans than any other part of the hated system
57
created by the once dominant Federalists. The reasons why this was so have
already been indicated, but the most potent reason in 1801, because it was
still freshest in mind, was the domineering part which the national judges
had played in the enforcement of the Sedition Act. The terms of this
illiberal measure made, and were meant to make, criticism of the party in
power dangerous. The judges—Federalists to a man and bred, moreover,
in a tradition which ill distinguished the office of judge from that of
prosecutor—felt little call to mitigate the lot of those who fell
within the toils of the law under this Act. A shining mark for the
Republican enemies of the Judiciary was Justice Samuel Chase of the
Supreme Court. It had fallen to Chase’s lot to preside successively
at the trial of Thomas Cooper for sedition, at the second trial of John
Fries for treason, and at the trial of James Thompson Callender at
Richmond for sedition. On each of the two latter occasions the
defendant’s counsel, charging “oppressive
conduct” on the part of the presiding judge, had thrown up
their briefs and rushed from the court room. In 1800 there were few
Republicans who did not regard Chase as “the bloody
Jeffreys of America.”

58
Local conditions also frequently accentuated the prevailing prejudice
against the Judiciary. The people of Kentucky, afraid that their badly
tangled land titles were to be passed upon by the new Federal Courts, were
already insisting, when Jefferson took office, that the Act of the 13th of
February creating these courts be repealed. In Maryland extensive and
radical alterations of the judicial system of the State were pending. In
Pennsylvania the situation was even more serious, for though the judges of
the higher courts of that commonwealth were usually men of ability,
education, and character, the inferior magistrates were frequently the
very opposite. By the state constitution judges were removable for serious
offenses by impeachment, and for lesser reasons by the Governor upon the
address of two-thirds of both branches of the Legislature. So long,
however, as the Federalists had remained in power neither remedy had been
applied; but in 1799, when the Republicans had captured both the
governorship and the Legislature, a much needed purgation of the lower
courts had forthwith begun.

Unfortunately this is a sort of reform that grows by what it feeds upon.
Having got rid of the less fit members of the local judiciary, the
Republican
59
leaders next turned their attention to some of their aggressive
party foes on the Superior Bench. The most offensive of these was
Alexander Addison, president of one of the Courts of Common Pleas of the
State. He had started life as a Presbyterian preacher and had found it
natural to add to his normal judicial duties the business of inculcating
“sound morals and manners.” ¹ Addison had at once taken
the Alien and Sedition laws under his wing, though their enforcement did
not fall within his jurisdiction, and he found in the progress of the
French Revolution numerous texts for partisan harangues to county juries.
For some reason Addison’s enemies decided to resort to impeachment
rather than to removal by address; and, as a result, in January, 1803, the
State Senate found him guilty of “misdemeanor,” ordered his
removal from office, and disqualified him for judicial office in
Pennsylvania. Not long afterwards the House of Representatives granted
without inquiry or discussion a petition to impeach three members of the
Supreme Court of the State for having
60
punished one Thomas Passmore for contempt of court without a jury trial.

Jefferson entered office with his mind made up that the Act of the 13th of
February should be repealed. ¹ He lacked only a theory whereby he
could reconcile this action with the Constitution, and that was soon
forthcoming. According to the author of this theory, John Taylor of
Caroline, a budding “Doctor Irrefragabilis” of the State
Rights school, the proposed repeal raised two questions: first, whether
Congress could
abolish courts created by a previous act of Congress; and second, whether,
with such courts abolished, their judges still retained office. Addressing
himself to the first question, Taylor pointed out that the Act of the 13th
of February had itself by instituting a new system abolished the then
existing inferior courts. As to the second point, he wrote thus:
“The Constitution declares that the judge shall hold his office
during good behavior. Could it mean that he should hold office after it
had been abolished? Could it mean that his tenure should be limited by
behaving well in an office which did not exist?” A
61
construction based on such absurdities, said he, “overturns the
benefits of language and intellect.”

In his message of December 8, 1801, Jefferson gave the signal for the
repeal of the obnoxious measure, and a month later Breckinridge of
Kentucky introduced the necessary resolution in the Senate. In the
prolonged debate which followed, the Republicans in both Senate and House
rang the changes on Taylor’s argument. The Federalists made a
twofold answer. Some, accepting the Republican premise that the fate of
the judge was necessarily involved with that of the court, denied
in toto the validity of repeal. Gouverneur Morris, for instance,
said: “You shall not take the man from the office but you may take
the office from the man; you may not drown him, but you may sink his boat
under him.… Is this not absurd?” Other Federalists, however,
were ready to admit that courts of statutory origin could be abolished by
statute but added that the operation of Congress’s power in this
connection was limited by the plain requirement of the Constitution that
judges of the United States should hold office during good behavior.
Hence, though a valid repeal of the Act in question would take from the
judges the powers which they derived from its provisions, the repeal
62
would still leave them judges of the United
States until they died, resigned, or were legally removed in consequence
of impeachment. The Federalist orators in general contended that the
spirit of the Constitution confirmed its letter, and that its intention
was clear that the national judges should pass finally upon the
constitutionality of acts of Congress and should therefore be as secure as
possible from legislative molestation.

The repeal of this Act was voted by a strict party majority and was
reënforced by a provision postponing the next session of the Supreme
Court until the following February. The Republican leaders evidently hoped
that by that time all disposition to test the validity of the Repealing
Act in the Court would have passed. But by this very precaution they
implied a recognition of the doctrine of judicial review and the whole
trend of the debate abundantly confirmed this implication. Breckinridge,
Randolph, and Giles, it is true, scouted the claim made for the courts as
“unheard-of doctrine,” and as “mockery of the
high powers of legislation”; but the rank and file of their
followers, with the excesses of the French Revolution a recent memory
and a “consolidated government” a recent fear,
were not to be seduced from what they clearly
63
regarded as established
doctrine. Moreover, when it came to legislation concerning the Supreme
Court, the majority of the Republicans again displayed genuine moderation,
for, thrusting aside an obvious temptation to swamp that tribunal with
additional judges of their own creed, they merely restored it to its
original size under the Act of 1789.

Nevertheless the most significant aspect in the repeal of the Act of the
13th of February was the fact itself. The Republicans had not shown a more
flagrant partisanism in effecting this repeal than had the Federalists in
originally enacting the measure which was now at an end. Though the
Federalists had sinned first, the fact nevertheless remained that in
realizing their purpose the Republican majority had established a
precedent which threatened to make of the lower Federal Judiciary the
merest cat’s-paw of party convenience. The attitude of the
Republican leaders was even more menacing, for it touched the security of
the Supreme Court itself in the enjoyment of its highest prerogative and
so imperiled the unity of the nation. Beyond any doubt the moment was now
at hand when the Court must prove to its supporters that it was still
worth defending and to all that the Constitution had an authorized final
interpreter.

64
Marshall’s first constitutional case was that of Marbury vs.
Madison. ¹ The facts of this famous litigation are simple. On March
2, 1801, William Marbury had been nominated by President Adams to the
office of Justice of the Peace in the District of Columbia for five
years; his nomination had been ratified by the Senate; his commission
had been signed and sealed; but it had not yet been delivered when
Jefferson took office. The new President ordered Madison, his Secretary
of State, not to deliver the commission. Marbury then applied to the
Supreme Court for a writ of mandamus to the Secretary of State under the
supposed authorization of the thirteenth section of the Act of 1789, which
empowered the Court to issue the writ “in cases warranted by the
principles and usages of law to … persons holding office under the
authority of the United States.” The Court at first took
jurisdiction of the case and issued a rule to the Secretary of State
ordering him to show cause, but it ultimately dismissed the suit for want
of jurisdiction on the ground that the thirteenth section was
unconstitutional.

Such are the lawyer’s facts of the case; it is the
65
historian’s facts about it which are today the interesting and
instructive ones. Marshall, reversing the usual order of procedure, left
the question of jurisdiction
till the very last, and so created for himself an opportunity to lecture
the President on his duty to obey the law and to deliver the commission.
Marshall based his homily on the questionable assumption that the
President had not the power to remove Marbury from office, for if he had
this power the nondelivery of the document was of course immaterial.
Marshall’s position was equally questionable when he contended that
the thirteenth section violated that clause of Article III of the
Constitution which gives the Supreme Court original jurisdiction
“in all cases affecting ambassadors, other public ministers, and
consuls, and those in which a State shall be party.” These words,
urged the Chief Justice, must be given an exclusive sense “or they
have no operation at all.” This position is quite untenable, for
even when given only their affirmative value these words still place the
cases enumerated beyond the reach of Congress, and this may have been
their only purpose. However, granting the Chief Justice his view of
Article III, still we are not forced to challenge the validity of what
Congress had done. For the
66
view taken a
little later by the Court was that it was not the intention of Congress by
this language to confer any jurisdiction at all, but only to give the
right to issue the writ where the jurisdiction already existed. What the
Court should have done, allowing its view of Article III to have been
correct, was to dismiss the case as not falling within the contemplation
of section thirteen, and not on the ground of the unconstitutionality of
that section.

Marshall’s opinion in Marbury vs. Madison was a political
coup of the first magnitude, and by it he achieved half a dozen
objects, some of the greatest importance. In the first place, while
avoiding a direct collision with the executive power, he stigmatized his
enemy Jefferson as a violator of the laws which as President he was
sworn to support. Again, he evaded the perilous responsibility of
passing upon the validity of the recent Repeal Act in quo warranto
proceedings, such as were then being broached. ¹ For if the Supreme
Court could not
67
issue the writ of mandamus in suits begun in it by individuals, neither
could it issue the writ of quo warranto in such suits. Yet again Marshall
scored in exhibiting the Court in the edifying and reassuring light of
declining, even from the hands of Congress, jurisdiction to which it was
not entitled by the Constitution, an attitude of self-restraint which
emphasized tremendously the Court’s claim to the function of
judicial review, now first definitely registered in deliberate judicial
decision.

At this point in Marshall’s handling of the case the consummate
debater came to the assistance of the political strategist. Every one of
his arguments in this opinion in support of judicial review will be found
anticipated in the debate on the Repeal Act. What Marshall did was to
gather these arguments together, winnow them of their trivialities,
inconsistencies, and irrelevancies, and compress the residuum into a
compact presentation of the case which marches to its conclusion with all
the precision of a demonstration from Euclid.

The salient passages of this part of his opinion are the following:

[In the United States] the powers of the legislature are defined and
limited; and that those limits may not be mistaken, or forgotten, the
Constitution is written. To
68
what purpose are powers limited, and to what
purpose is that limitation committed in writing if these limits may, at
any time, be passed by those intended to be restrained? The distinction
between a government with limited and unlimited powers is abolished, if
those limits do not confine the persons on which they are imposed, and if
acts prohibited and acts allowed are of equal obligation. It is a
proposition too plain to be contested: that the Constitution controls any
legislative act repugnant to it; or, that the legislature may alter the
Constitution by an ordinary act.

[If, then,] an act of the legislature, repugnant to the Constitution, is
void, does it, notwithstanding its invalidity, bind the courts, and oblige
them to give it effect? Or, in other words, though it be not law, does it
constitute a rule as operative as if it was a law? This would be to
overthrow in fact what was established in theory; and would seem, at first
view, an absurdity too gross to be insisted on. It shall, however, receive
a more attentive consideration.

It is emphatically the province and duty of the judicial department to
say what the law is. Those who apply the rule to particular cases, must of
necessity expound and interpret that rule. If two laws conflict with each
other, the courts must decide on the operation of each. So if a law be in
opposition to the Constitution; if both the law and the Constitution apply
to a particular case, so that the court must either decide that case
conformably to the law, disregarding the Constitution, or conformably to
the Constitution, disregarding the law, the court must determine which of
these conflicting rules governs the case. This is of the very essence of
judicial duty.

69
[However, there are those who maintain] that courts must close their eyes
on the Constitution, and see only the law.… This doctrine would
subvert the very foundation of all written constitutions. It would declare
that an act which, according to the principles and theory of our
government, is entirely void, is yet, in practice, completely obligatory.
It would declare that if the legislature shall do what is expressly
forbidden, such act, notwithstanding the express prohibition, is in
reality effectual.

[Moreover,] the peculiar expressions of the Constitution of the United
States furnish additional arguments in favor of its rejection. The
judicial power of the United States is extended to all cases arising under
the Constitution. Could it be the intention of those who gave this power,
to say that in using it the Constitution should not be looked into? That a
case arising under the Constitution should be decided without examining
the instrument under which it arises? This is too extravagant to be
maintained.

In some cases, then, the Constitution must be looked into by the judges.
And if they can open it at all, what part of it are they forbidden to read
or to obey? There are many other parts of the Constitution which serve to
illustrate this subject.… “No person,” says
the Constitution, “shall be convicted of treason unless on the
testimony of two witnesses to the same overt act, or on confession in
open court.” Here the language of the Constitution is addressed
especially to the courts. It prescribes, directly for them, a rule of
evidence not to be departed from. If the legislature should change that
rule, and declare one witness, or a confession out of court, sufficient
for conviction, must the constitutional principle yield to the
legislative act? …

70
It is also not entirely unworthy of observation, that in declaring what
shall be the supreme law of the land, the Constitution itself is first
mentioned; and not the laws of the United States generally, but those only
which shall be made in pursuance of the Constitution, have that rank.

Thus, the particular phraseology of the Constitution of the United States
confirms and strengthens the principle, supposed to be essential to all
written constitutions, that a law repugnant to the Constitution is void;
and that courts, as well as other departments are bound by that
instrument.

There is not a false step in Marshall’s argument. It is, for
instance, not contended that the language of the Constitution establishes
judicial review but only that it “confirms and strengthens the
principle.” Granting the finality of judicial decisions and that
they may not be validly disturbed by legislative enactment, the argument
is logically conclusive, whatever practical difficulties it may ignore.

Turning back to the case itself, we ought finally to note how Marshall
utilized this opportunity to make manifest the newly found solidarity of
the Court. For the first time in its history the Court was one voice,
speaking through its Chief Justice the ineluctable decrees of the law.
Ordinarily even Marshall would not have found this achievement an easy
task, for there were difficult personalities
71
among his associates. He had
in Adams’s Cabinet demonstrated his faculty “of putting his
ideas into the minds of others, unconsciously to them,” and of this
power he now made use, as well as of the advantage to be obtained from the
impending common danger.

The case of Marbury vs. Madison was decided on February 24, 1803,
and therefore fell between two other events which were immediately of
almost as great importance in the struggle now waxing over the judiciary.
The first of these was the impeachment of Judge Pickering of the New
Hampshire District Court, which was suggested by the President on the 3d
of February and voted by the House on the 18th of February; the other was
an address which Justice Chase delivered on the 2d of May to a Baltimore
grand jury, assailing the repeal of the Judiciary Act and universal
suffrage and predicting the deterioration of “our republican
Constitution … into a mobocracy, the worst of all possible
governments.” ¹ Considering the fact that the President was
still smarting from the Chief Justice’s lash and also that Chase
himself was more
72
heartily detested by the Republicans than any other member of the Supreme
Bench, nothing could have been more untimely than this fresh judicial
excursion into the field of “manners and morals,” and partisan
malice was naturally alert to interpret it as something even more
offensive. The report soon came from Baltimore that Chase had deliberately
assailed the Administration as “weak, pusillanimous, relaxed,”
and governed by the sole desire of continuing “in unfairly acquired
power.” But even before this intelligence arrived, Jefferson had
decided that the opportunity afforded by Chase’s outburst
was too good a one to be neglected. Writing on the 13th of May to
Nicholson of Maryland, who already had Pickering’s impeachment in
charge, the President inquired: “Ought this seditious and official
attack on the principles of our Constitution and the proceedings of a
State go unpunished?” But he straightway added: “The question
is for your consideration; for myself it is better I should not
interfere.”

Pickering’s trial began on March 2, 1804, and had a bearing on
Chase’s fate which at once became clear. The evidence against the
New Hampshire judge showed intoxication and profanity on the bench and
entire unfitness for office, but further
73
evidence introduced in his behalf
proved the defendant’s insanity; and so the question at once arose
whether an insane man can be guilty of “high crimes and
misdemeanors?” Greatly troubled by this new aspect of the case, the
Senate none the less voted Pickering guilty “as charged,” by
the required two-thirds majority, though eight members refused to vote at
all. But the exponents of “judge-breaking” saw only the action
of the Senate and were blind to its hesitation. On the same day on which
the Senate gave its verdict on Pickering, the House by a strictly partisan
vote decreed Chase’s impeachment.

The charges against Chase were finally elaborated in eight articles. The
substance of the first six was that he had been guilty of
“oppressive conduct” at the trials of John Fries and James
Thompson Callender. The seventh charged him with having attempted at some
time in 1800 to dragoon a grand jury at Newcastle, Delaware, into bringing
forward an accusation of sedition against a local paper. These seven
articles related therefore to transactions already four or five years old.
The eighth article alone was based on the address at Baltimore, which it
characterized as “an intemperate and inflammatory political
harangue,” delivered
74
“with intent to excite the fears and
resentment … of the good people of Maryland against their State
Government and Constitution, … and against the Government of the
United States.”

But the charges framed against Chase revealed only imperfectly the animus
which was now coming more and more to control the impeachers. Fortunately,
however, there was one man among the President’s advisers who was
ready to carry the whole antijudicial program as far as possible. This
uncompromising opponent was William Branch Giles, Senator from Virginia,
whose views on the subject of impeachment were taken down by John Quincy
Adams just as Chase’s trial was about to open. Giles, according to
this record, “treated with the utmost contempt the idea of an
independent judiciary—said there was not a word about their
independence in the Constitution.… The power of impeachment was
given without limitation to the House
75
of Representatives; the power of
trying impeachment was given equally without limitation to the Senate; and
if the Judges of the Supreme Court should dare, as they had done, to
declare an act of Congress unconstitutional, or to send a mandamus to the
Secretary of State, as they had done, it was the unreserved right of the
House of Representatives to impeach them, and that of the Senate to
remove them, for giving such opinions, however, honest or sincere they
may have been in entertaining them.” For “impeachment was not
a criminal prosecution, it was no prosecution at all.” It only
signified that the impeached officer held dangerous opinions and that his
office ought to be in better hands. “I perceive,” adds Adams,
on his own account, “that the impeachment system is to be pursued,
and the whole bench of the Supreme Court to be swept away, because
their offices are wanted. And in the present state of things I am
convinced it is as easy for Mr. John Randolph and Mr. Giles to do this as
to say it.”

The trial formally opened on January 2, 1805, though the taking of
testimony did not begin until the 9th of February. A contemporary
description of the Senate chamber shows that the apostles of Republican
simplicity, with the pomp of the Warren Hastings trial still fresh in
mind, were not at all averse to making the scene as impressive as possible
by the use of several different colors of cloth: “On the right and
left of the President of the Senate, and in a right line with his chair,
there are two rows of benches with desks in front, and the whole front and
seats covered with crimson cloth.…
76
A temporary semi-circular
gallery, which consists of three ranges of benches, is elevated on pillars
and the whole front and seats thereof covered with green cloth.…
In this gallery ladies are accommodated.… On the right and left
hand of the President … are two boxes of two rows of seats …
that facing the President’s right is occupied by the managers
… that on the other side of the bar for the accused and his counsel
… these boxes are covered with blue cloth.” To preside over
this scene of somewhat dubious splendor came Aaron Burr, Vice-President
of the United States, straight from the dueling ground at Weehawken.

The occasion brought forward one of the most extraordinary men of the day,
Luther Martin, Chase’s friend and the leader of his counsel. Born at
New Brunswick, New Jersey, in 1744, Martin graduated from Princeton in
1766, the first of a class of thirty-five, among whom was Oliver
Ellsworth. Five years later he began to practice law on the Eastern Shore
of Maryland and in the adjoining counties of Virginia, where he won an
immediate success, especially in criminal cases. At a single term of
court, out of thirty defendants he procured the acquittal of twenty-nine,
while the
77
thirtieth, indicted for murder, was convicted of manslaughter. In 1805
Martin was the acknowledged head of the American Bar, but at the same time
he was undoubtedly a drunkard and a spendthrift. With an income of $10,000
a year, he was always in need. His mediocre stature, thinning locks, and
undistinguished features created an impression which was confirmed by his
slovenly attire and ungrammatical speech, which seemed “shackled by
a preternatural secretion of saliva.” Here, indeed, for ugliness and
caustic tongue was “the Thersites of the law.” Yet once he was
roused to action, his great resources made themselves apparent: a memory
amounting to genius, a boyish delight in the rough-and-tumble of combat, a
wealth of passion, kept in perfect curb till the enemy was already in rout
before solid argument and then let loose with destroying effect. This
child of nature was governed in his practice of the law less by retainers
than by his personal loves and hatreds. Samuel Chase he loved and Thomas
Jefferson he hated, and though his acquaintance with criminals had
furnished him with a vituperative vocabulary of some amplitude, he
considered no other damnation quite so scathing as to call a man
“as great a scoundrel as Tom Jefferson.”

78
The impeachers had no one whom they could pit against this
“unprincipled and impudent Federalist bulldog,” as Jefferson
called him; and in other ways, too, from the first their lot was not easy.
For one thing, they could not agree among themselves as to the proper
scope of impeachment under the Constitution. Randolph, the leader of the
House managers, and Campbell adhered in essence to Giles’s theory.
But Rodney and Nicholson, both much abler lawyers, openly disavowed such
latitudinarian doctrine. In a general way, their view of the matter may be
stated thus: Because judges of the United States are guaranteed
continuance in office only during “good behavior,” and because
impeachment is the only method of removal recognized by the Constitution,
the “high crimes and misdemeanors” for which impeachment is
the constitutional resource must include all cases of willful misconduct
in office, whether indictable or not. This seems sound theory and appears
today to be established theory. But sound or not, the managers of the
Republicans were not a unit in urging it, while their opponents put
forward with confidence and unanimity the theory that “high
crimes and misdemeanors” were always indictable offenses.

More calamitous still for the accusers of Chase
79
was the way in which, when the evidence began to come in, the case against
him started crumpling at the corners. Lewis, who had been Fries’s
attorney and whose testimony they had chiefly relied upon to prove the
judge’s unfairness on that occasion, had not only acknowledged that
his memory was “not very tenacious” after so great a lapse of
time but had further admitted that he had really dropped the case because
he thought it “more likely that the President would pardon him
[Fries] after having been convicted without having counsel than if he
had.” Similarly Hay, whose repeated efforts to bring the question
of the constitutionality of the Sedition Act before the jury had caused
the rupture between court and counsel in Callender’s case, owned
that he had entertained “but little hopes of doing Callender any
good” but had “wished to address the public on the
constitutionality of the law.” Sensations multiplied on every side.
A man named Heath testified that Chase had told the marshal to strike all
Democrats from the panel which was to try Callender; whereupon a second
witness called to confirm this testimony stated facts which showed the
whole story to be a deliberate fabrication. The story that Chase had
attacked the Administration at Baltimore was also
80
substantially disproved by the managers’ own witnesses. But the
climax of absurdity was reached in the fifth and sixth articles of
impeachment, which were based on the assumption that an act of Congress
had required the procedure in Callender’s case to be in accordance
with the law of Virginia. In reply to this argument Chase’s
attorneys quickly pointed out that the statute relied upon applied only
to actions between citizens of different States!

The final arguments began on the 20th of February. The first speech in
behalf of Chase was delivered by Joseph Hopkinson, a young Philadelphia
attorney, whose effort stirred the admiration of Federalists and
Republicans alike. He dwelt upon “the infinite importance” of
the implications of this case for the future of the Republic, contrasted
the frivolity of the charges brought against Chase with the magnitude of
the crimes of which Warren Hastings had been accused, and pointed out
that, whereas in England only two judges had been impeached in half a
century, in America, “boasting of its superior purity and
virtue,” seven judges had been prosecuted within two years. More
loosely wrought, but not less effective was Martin’s address, the
superb climax of a remarkable forensic career! The accusation against
Chase
81
he reduced to a
charge of indecorum, and he was ready to admit that the manner of his
friend “bore a stronger resemblance to that of Lord Thurlow than of
Lord Chesterfield,” but, said he, our judges ought not to be
“like the gods of Epicurus lolling upon their beds of down, equally
careless whether the laws of their country are obeyed or violated,
instead of actively discharging their duties.”

The closing argument, which fell to the managers, was assigned to
Randolph. It was an unmitigated disaster for the cause in behalf of which
it was pronounced. “I feel perfectly inadequate to the task of
closing this important debate on account of a severe indisposition which
I labor under,” were Randolph’s opening words, but even this
prefatory apology gave little warning of the distressing exhibition of
incompetence which was to follow. “On the reopening of the
court,” records John Quincy Adams in his Memoirs, “he
[Randolph] began a speech of about two hours and a half, with as little
relation to the subject-matter as possible … without order,
connection, or argument; consisting altogether of the most hackneyed
commonplaces of popular declamation, mingled up with panegyrics
and invectives upon persons, with a few well-expressed ideas, a few
striking figures,
82
much distortion of face and contortion of body, tears,
groans and sobs, with occasional pauses for recollection, and continual
complaints of having lost his notes.” So ended the ambition of John
Randolph of Roanoke to prove himself another Burke!

But while their frontal assault on the reason of the court was thus
breaking down, the impeachers, led by the President, were attempting a
flank movement on its virtue. They especially distrusted the
“steadiness” of certain New England and New York Senators
and hoped to reach the hearts of these gentlemen through Aaron Burr,
the Vice-President. Burr had heretofore found himself vested with the
rôle of Lucifer in the Republican Paradise. Now he found himself
suddenly basking in a perpetual sunburst of smiles both from the great
central luminary, Jefferson, and his paler satellites, Madison and
Gallatin. Invitations to the President’s dinners were soon
followed by more substantial bribes. Burr’s step-son became
judge of the Superior Court at New Orleans; his brother-in-law, secretary
to the Louisiana Territory; his intimate friend Wilkinson, its military
commandant. Then Giles, whose view of impeachment left him utterly
shameless in the matter, drew up and circulated in the Senate itself a
petition to
83
the Governor of New Jersey asking him to quash the indictment
for murder which the Bergen County grand jury had found against Burr as a
result of the duel with Hamilton. At the same time, an act was passed
giving the retiring Vice-President the franking privilege for life. In the
debate Senator Wright of Maryland declared that dueling was justified by
the example of David and Goliath and that the bill was opposed “only
because our David had slain the Goliath of Federalism.”

Whether Burr made any attempt to render the expected quid pro quo
for these favors does not appear, but at least if he did, his efforts were
fruitless. The vote on the impeachment of Chase was taken on the 1st of
March, and the impeachers were crushingly defeated. On the first article
they could muster only sixteen votes out of thirty-four; on the second,
only ten; on the fifth, none; on the sixth, four. Even on the last
article, where they made their best showing, they were still four votes
short of the required constitutional majority. When the result of the last
ballot was announced, Randolph rushed from the Senate chamber to the House
to introduce a resolution proposing an amendment to the Constitution,
requiring that judges of the United States “shall be removed by
84
the
President on joint address of both Houses of Congress.” At the same
time Nicholson moved an amendment providing legislative recall for
Senators. Thus exasperation was vented and no harm done.

Meanwhile word had come from Philadelphia that the impeachment of the
State Supreme Court judges had also failed. Here, even more impressively
than in the case of Chase, had been illustrated that solidarity of Bench
and Bar which has ever since been such an influential factor in American
government. The Pennsylvania judge-breakers, failing to induce a single
reputable member of the Philadelphia bar to aid them, had been obliged to
go to Delaware, whence they procured Cæsar A. Rodney, one of the
House managers against Chase. The two impeachments were thus closely
connected and their results were similar. In the first place, it was
determined that impeachment was likely to be, in the petulant language of
Jefferson, “a farce” not soon to be used again for partisan
purposes. In the second place, it was probable that henceforth, in the
Commonwealths as well as in the National Government, political power
would be exercised subject to constitutional restraints applied
judicially. In the third place, however, the
85
judges would henceforth have to be content with the
possession of this magnificent prerogative and dispense with all judicial
homilies on “manners and morals.” It was a fair compromise and
has on the whole proved a beneficial one.

The Trial Of Aaron Burr

When, on March 30, 1807, Colonel Aaron Burr,
late Vice-President of the United States, was brought before Chief Justice
Marshall in the Eagle Tavern at Richmond on the charge of treason, there
began the greatest criminal trial in American history and one of the
notable trials in the annals of the law.

“The Burr Conspiracy” still remains after a hundred years an
unsolved enigma. Yet whether Burr actually planned treason against the
United States in the year of grace 1806 is after all a question of
somewhat restricted importance. The essential truth is that he was by
nature an adventurer who, in the words of Hamilton, “believed all
things possible to daring and energy,” and that in 1806 he was a
bankrupt and a social outcast to boot. Whether, therefore, his grandiose
project of an empire on the ruins of Spanish dominion in Mexico involved
also
87
an effort to separate some part of the West from the Union is a
question which, if it was ever definitely determined in Burr’s own
mind, was determined, we may be sure, quite independently of any moral or
patriotic considerations.

Burr’s activities after his term of public office ended in March,
1805, were devious, complicated, and purposely veiled, involving many men
and spread over a large territory. ¹ Near Marietta on an island in
the Ohio River, Burr came upon Harman Blennerhassett, a genial Irishman
living in a luxurious and hospitable mansion which was making a heavy
drain upon his already diminished resources. Here Burr, by his charm of
manner and engaging conversation, soon won from the simple Irishman his
heart and his remaining funds. He also made the island both a convenient
rendezvous for his adherents in his ambitious schemes and a starting point
for his own extended expeditions, which took him during the latter part of
this year to Natchez, Nashville, St. Louis, Vincennes, Cincinnati, and
Philadelphia, and back to Washington.

In the summer of 1806 Burr turned westward
88
a second time and with the assistance of Blennerhassett he began military
preparations on the latter’s island for a mysterious expedition.
On the 29th of July, Burr had dispatched a letter in cipher to Wilkinson,
his most important confederate. The precise terms of this document we
shall never know, but apparently it contained the most amazing claims of
the successful maturing of Burr’s scheme: “funds had been
obtained,” “English naval protection had been secured,”
“from five hundred to a thousand men” would be on the move
down the Mississippi by the middle of November. Unfortunately for Burr,
however, Wilkinson was far too expert in the usages of iniquity to be
taken in by such audacious lying as this. He guessed that the enterprise
was on the verge of collapse and forthwith made up his mind to abandon it.

Meanwhile exaggerated accounts of the size of Burr’s following were
filtering to Washington, together with circumstantial rumors of the
disloyalty of his designs. Yet for weeks Jefferson did nothing, until late
in November his alarm was aroused by a letter from Wilkinson, dated the
21st of October. On the 27th of November the President issued a
proclamation calling upon all
89
good citizens to seize “sundry
persons” who were charged with setting on foot a military expedition
against Spain. Already Burr, realizing that the West was not so hot for
disunion as perhaps he had supposed it to be, began to represent his
project as a peaceful emigration to the Washita, a precaution which,
however, came too late to allay the rising excitement of the people.
Fearing the seizure of their equipment, thirty or forty of Burr’s
followers under the leadership of Blennerhassett left the island in four
or five flatboats for New Orleans, on the night of the 10th of December,
and a few days later were joined by Burr himself at the mouth of the
Cumberland. When the little expedition paused near Natchez, on the 10th of
January, Burr was confronted with a newspaper containing a transcription
of his fatal letter to Wilkinson. A week later, learning that his former
ally, Wilkinson, had now established a reign of terror at New Orleans
directed against his followers, and feeling no desire to test the tender
mercies of a court-martial presided over by his former associate, Burr
surrendered himself into the custody of the acting Governor of
Mississippi Territory. But the refusal of the territorial grand jury to
indict him suggested the hope that he might
90
still escape from the reach of the law. He therefore
plunged into the wilderness, headed for the Spanish border, and had all
but reached his destination when he was recognized and recaptured at
Wakefield, Alabama.

Owing to the peculiar and complicated circumstances which led up to it,
Burr’s case was from the outset imbued with factional and partisan
politics of the most extreme kind. While the conspiracy was at its height,
Jefferson, though emphatically warned, had refused to lend it any credence
whatever; but when the danger was well over he had thrown the whole
country into a panic, and had even asked Congress to suspend the writ of
habeas corpus. The Federalists and the President’s enemies within
his own party, headed by the redoubtable Randolph, were instantly alert
to the opportunity which Jefferson’s inexplicable conduct afforded
them. “The mountain had labored and brought forth a mouse,”
quoted the supercilious; the executive dragnet had descended to envelop
the monster which was ready to split the Union or at least to embroil its
relations with a friendly power, and had brought up—a few peaceful
agriculturists! Nor was this the worst of the matter, contended these
critics of the Administration, for
91
the real source of the peril had been the President’s
own action in assigning the command at New Orleans to Wilkinson, a
pensioner of Spain, a villain “from the bark to the very
core.” Yet so far was the President from admitting this error that
he now attributed the salvation of the country to “the
soldier’s honor” and “the citizen’s
fidelity” of this same Wilkinson. Surely, then, the real defendants
before the bar of opinion were Thomas Jefferson and his precious ally
James Wilkinson, not their harried and unfortunate victim, Aaron Burr!

The proceedings against Burr occupied altogether some seven months, during
which the sleepy little town of Richmond became the cynosure of all eyes.
So famous was the case that it brought thither of necessity or out of
curiosity men of every rank and grade of life, of every species of renown.
The prosecution was in charge of the United States District Attorney,
George Hay—serious, humorless, faithful to Jefferson’s
interests, and absolutely devoid of the personal authority demanded by so
grave a cause. He was assisted by William Wirt, already a brilliant lawyer
and possessed of a dazzling elocution, but sadly lacking in the majesty of
years. At the head and forefront of the
92
defense stood Burr himself, an unerring legal tactician, deciding every
move of the great game, the stake of which for him was life itself. About
him were gathered the ablest members of the Richmond bar: John Wickham,
witty and ingenious, Edmund Randolph, ponderous and pontifical, Benjamin
Botts, learned and sarcastic, while from Baltimore came Luther Martin to
aid his “highly respected friend,” to keep the political pot
boiling, and eventually to fall desperately in love with Burr’s
daughter, the beautiful Theodosia. Among the 140 witnesses there were also
some notable figures: William Eaton, the hero of Derne, whom Burr’s
codefendant, Blennerhassett, describes for us as “strutting about
the streets under a tremendous hat, with a Turkish sash over colored
clothes,” and offering up, with his frequent libations in the
taverns, “the copious effusions of his sorrows”; Commodore
Truxton, the gallant commander of the Constellation; General
Andrew Jackson, future President of the United States, but now a vehement
declaimer of Burr’s innocence—out of abundant caution for his
own reputation, it may be surmised; Erick Bollmann, once a participant in
the effort to release Lafayette from Olmutz and himself just now released
from
93
durance vile on a writ of habeas corpus from the Supreme Court;
Samuel Swartwout, another tool of Burr’s, reserved by the same
beneficent writ for a career of political roguery which was to culminate
in his swindling the Government out of a million and a quarter dollars;
and finally the bibulous and traitorous Wilkinson, “whose
head” as he himself owned, “might err,” but
“whose heart could not deceive.” Traveling by packet from
New Orleans, this essential witness was heralded by the impatient
prosecution, till at last he burst upon the stage with all the
éclat of the hero in a melodrama—only to retire baffled and
perplexed, his villainy guessed by his own partisans.

By the Constitution treason against the United States consists “only
in levying war against them, or in adhering to their enemies, giving them
aid and comfort,” and no person may be convicted of it “unless
on the testimony of two witnesses to the same overt act, or on confession
in open court.” The motion to commit Burr for treason thus raised at
the outset the question whether in this case an “overt act”
existed. Marshall, who held that no evidence had been shown to this
effect, denied the motion, but consented to commit the prisoner on the
lesser charge that he had attempted a
94
military expedition against Spain. As this was a bailable
offense, however, Burr was soon at liberty once more.

Nor was this the only respect in which the preliminary proceedings sounded
a note of antagonism between the Chief Justice and the Administration
which was to recur again and yet again in the months following. Only a few
weeks earlier at Washington, Marshall had, though with some apparent
reluctance, ordered the release of Bollmann and Swartwout, two of
Burr’s tools, from the custody of the Federal authorities. Alluding
in his present opinion to his reason for his earlier action, he wrote:
“More than five weeks have elapsed since the opinion of the Supreme
Court has declared the necessity of proving the fact, if it exists. Why is
it not proved? To the executive government is entrusted the important
power of prosecuting those whose crimes may disturb the public repose or
endanger its safety. It would be easy, in much less time than has
intervened since Colonel Burr has been alleged to have assembled his
troops, to procure affidavits establishing the fact.”

This sharp criticism brought an equally sharp retort from Jefferson, to
which was added a threat.
95
In a private letter of the 20th of April, the President said: “In
what terms of decency can we speak of this? As if an express could go to
Natchez or the mouth of the Cumberland and return in five weeks, to do
which has never taken less than twelve!… But all the principles
of law are to be perverted which would bear on the favorite offenders who
endeavor to overturn this odious republic!… All this, however,
will work well. The nation will judge both the offender and judges for
themselves.… They will see then and amend the error in our
Constitution which makes any branch independent of the nation.… If
their [the judges] protection of Burr produces this amendment, it will do
more good than his condemnation would have done.” Already the case
had taken on the color of a fresh contest between the President and the
Chief Justice.

On the 22d of May the United States Court for the Fifth Circuit and the
Virginia District formally convened, with Marshall presiding and Judge
Griffin at his side. On the same day the grand jury was sworn, with John
Randolph as foreman, and presently began taking testimony. Unluckily for
the prosecution, the proceedings now awaited the arrival of Wilkinson and
the delay was
96
turned to skillful use by the defense to embroil further the
relations between the Chief Justice and the President. With this end in
view, Burr moved on the 9th of June that a subpœna duces
tecum issue to Jefferson requiring him to produce certain papers,
including the famous cipher letter to Wilkinson. The main question
involved, of course, was that of the right of the Court under any
circumstances to issue a subpœna to the President, but the abstract
issue soon became involved with a much more irritating personal one.
“This,” said Luther Martin, who now found himself in his
element, “this is a peculiar case, sir. The President has undertaken
to prejudge my client by declaring that ‘of his guilt there is no
doubt.’ He has assumed to himself the knowledge of the Supreme Being
himself and pretended to search the heart of my highly respected friend.
He has proclaimed him a traitor in the face of the country which has
rewarded him. He has let slip the dogs of war, the hell-hounds of
persecution, to hunt down my friend. And would this President of the
United States, who has raised all this absurd clamor, pretend to keep back
the papers which are wanted for this trial, where life itself is at
stake?”

Wirt’s answer to Martin was also a rebuke
97
to the Court. “Do they [the defense] flatter themselves,”
he asked, “that this court feel political prejudices which will
supply the place of argument and innocence on the part of the prisoner?
Their conduct amounts to an insinuation of the sort. But I do not
believe it.… Sir, no man, foreigner or citizen, who hears
this language addressed to the court, and received with all the
complacency at least which silence can imply, can make any inference from
it very honorable to the court.” These words touched
Marshall’s conscience, as well they might. At the close of the day
he asked counsel henceforth to “confine themselves to the point
really before the court”—a request which, however, was by no
means invariably observed through the following days.

A day or two later Marshall ruled that the subpœna should issue,
holding that neither the personal nor the official character of the
President exempted him from the operation of that constitutional clause
which guarantees accused persons “compulsory process for obtaining
witnesses” in their behalf. The demand made upon the President,
said the Chief Justice, by his official duties is not an unremitting one,
and, “if it should exist at the time when his attendance on a court
is
98
required, it would be sworn on the return of the subpœna and would
rather constitute a reason for not obeying the process of the court than
a reason against its being issued.” Jefferson, however, neither
obeyed the writ nor swore anything on its return, though he forwarded
some of the papers required to Hay, the district attorney, to be used as
the latter might deem best. The President’s argument was grounded
on the mutual independence of the three departments of Government; and he
asked whether the independence of the Executive could long survive
“if the smaller courts could bandy him from pillar to post, keep
him constantly trudging from North to South and East to West, and
withdraw him entirely from his executive duties?” The
President had the best of the encounter on all scores. Not only had
Marshall forgotten for the nonce the doctrine he himself had stated in
Marbury vs. Madison regarding the constitutional discretion of the
Executive, but what was worse still, he had forgotten his own discretion
on that occasion. He had fully earned his rebuff, but that fact did not
appreciably sweeten it.

On the 24th of June the grand jury reported two indictments against Burr,
one for treason and the other for misdemeanor. The former charged that
99
Burr, moved thereto “by the instigation of the devil,” had on
the 10th of December previous levied war against the United States at
Blennerhassett’s island, in the county of Wood, of the District of
Virginia, and had on the day following, at the same place, set in motion a
warlike array against the city of New Orleans. The latter charged that a
further purpose of this same warlike array was an invasion of Mexico.
Treason not being a bailable offense, Burr had now to go to jail, but, as
the city jail was alleged to be unhealthful, the Court allowed him to be
removed to quarters which had been proffered by the Governor of the State
in the penitentiary just outside the city. Burr’s situation here,
writes his biographer, “was extremely agreeable. He had a suite of
rooms in the third story, extending one hundred feet, where he was allowed
to see his friends without the presence of a witness. His rooms were so
thronged with visitors at times as to present the appearance of a levee.
Servants were continually arriving with messages, notes, and inquiries,
bringing oranges, lemons, pineapples, raspberries, apricots, cream,
butter, ice, and other articles—presents from the ladies of the
city. In expectation of his daughter’s arrival, some of his friends
in town provided
100
a house for her accommodation. The jailer, too, was all
civility.” ¹ Little wonder that such goings-on are
said to have “filled the measure of Jefferson’s
disgust.”

The trial itself opened on Monday, the 3d of August. The first business in
hand was to get a jury which would answer to the constitutional
requirement of impartiality—a task which it was soon discovered was
likely to prove a difficult one. The original panel of forty-eight men
contained only four who had not expressed opinions unfavorable to the
prisoner, and of these four all but one admitted some degree of prejudice
against him. These four were nevertheless accepted as jurors. A second
panel was then summoned which was even more unpromising in its make-up,
and Burr’s counsel began hinting that the trial would have to be
quashed, when Burr himself arose and offered to select eight out of the
whole venire to add to the four previously chosen. The offer was
accepted, and notwithstanding that several of the jurors thus obtained had
publicly declared opinions hostile to the accused, the jury was sworn in
on the 17th of August.

101
At first glance Burr’s concession in the selecting of a jury seems
extraordinary. But then, why should one so confident of being able to
demonstrate his innocence fear prejudice which rested on no firmer basis
than ignorance of the facts? This reflection, however, probably played
small part in Burr’s calculations, for already he knew that if the
contemplated strategy of his counsel prevailed the case would never come
before the jury.

The first witness called by the prosecution was Eaton, who was prepared to
recount the substance of numerous conversations he had held with Burr in
Washington in the winter of 1805-6, in which Burr had gradually unveiled
to him the treasonable character of his project. No sooner, however, was
Eaton sworn than the defense entered the objection that his testimony was
not yet relevant, contending that in a prosecution for treason the great
material fact on which the merits of the entire controversy pivots was the
overt act, which must be “an open act of war”; just
as in a murder trial the fact of the killing, the corpus delicti,
must be proved before any other testimony was relevant, so in the pending
prosecution, said they, no testimony was admissible until the overt act
102
had been shown in the manner required by the Constitution.

The task of answering this argument fell to Wirt, who argued, and
apparently with justice, that the prosecution was free to introduce its
evidence in any order it saw fit, provided only that the evidence was
relevant to the issue raised by the indictment, and that if an overt act
was proved “in the course of the whole evidence,” that would
be sufficient. The day following the Court read an opinion which is a
model of ambiguous and equivocal statement, but the purport was fairly
clear: for the moment the Court would not interfere, and the prosecution
was free to proceed as it thought best, with the warning that the
Damocles sword of “irrelevancy” was suspended over its head
by the barest thread and might
fall at any moment.

For the next two days the legal battle was kept in abeyance while the
taking of testimony went forward. Eaton was followed on the stand by
Commodore Truxton, who stated that in conversation with him Burr had
seemed to be aiming only at an expedition against Mexico. Then came
General Morgan and his two sons, who asserted their belief in the
treasonable character of Burr’s designs.
103
Finally a series of
witnesses, the majority of them servants of Blennerhassett, testified
that on the evening of December 10, 1806, Burr’s forces had
assembled on the island.

This line of testimony concluded, the prosecution next indicated its
intention of introducing evidence to show Burr’s connection with the
assemblage on the island, when the defense sprang the coup it had
been maturing from the outset. Pointing out the notorious fact that on the
night of the 10th of December Burr had not been present at the island but
had been two hundred miles away in Kentucky, they contended that, under
the Constitution, the assemblage on Blennerhassett’s island could
not be regarded as his act, even granting that he had advised it, for,
said they, advising war is one thing but levying it is quite another. If
this interpretation was correct, then no overt act of levying war, either
within the jurisdiction of the Court or stated in the indictment, had
been, or could be, shown against Burr. Hence the taking of
evidence—if not the cause itself, indeed—should be
discontinued.

The legal question raised by this argument was the comparatively simple
one whether the constitutional provision regarding treason was to be
104
interpreted in the light of the Common Law doctrine that “in treason
all are principals.” For if it were to be so interpreted and if
Burr’s connection with the general conspiracy culminating in the
assemblage was demonstrable by any sort of legal evidence, then the
assemblage was his act, his overt act, proved moreover by thrice the two
witnesses constitutionally required! Again it fell to Wirt to represent
the prosecution, and he discharged his task most brilliantly. He showed
beyond peradventure that the Common Law doctrine was grounded upon
unshakable authority; that, considering the fact that the entire
phraseology of the constitutional clause regarding treason comes from an
English statute of Edward III’s time, it was reasonable, if not
indispensable, to construe it in the light of the Common Law; and that,
certainly as to a procurer of treason, such as Burr was charged with
being, the Common Law doctrine was the only just doctrine, being merely a
reaffirmation of the even more ancient principle that “what one
does through another, he does himself.”

In elaboration of this last point Wirt launched forth upon that famous
passage in which he contrasted Burr and the pathetic victim of his
conspiracy:

105
Who [he asked] is Blennerhassett? A native of Ireland, a man of letters,
who fled from the storms of his own country to find quiet in ours.…
Possessing himself of a beautiful island in the Ohio he rears upon it a
palace and decorates it with every romantic embellishment of fancy. [Then]
in the midst of all this peace, this innocent simplicity, this pure
banquet of the heart, the destroyer comes … to change this paradise
into a hell.… By degrees he infuses [into the heart of
Blennerhassett] the poison of his own ambition.… In a short time
the whole man is changed, and every object of his former delight is
relinquished.… His books are abandoned.… His enchanted
island is destined soon to relapse into a wilderness; and in a few months
we find the beautiful and tender partner of his bosom, whom he lately
‘permitted not the winds of summer to visit too roughly,’
we find her shivering at midnight on the winter banks of the Ohio and
mingling her tears with the torrents that froze as they fell. Yet this
unfortunate man, thus ruined, and undone and made to play a subordinate
part in this grand drama of guilt and treason, this man is to be called
the principal offender, while he by whom he was thus plunged in misery is
comparatively innocent, a mere accessory! Is this reason? Is it law? Is it
humanity? Sir, neither the human heart nor the human understanding will
bear a perversion so monstrous and absurd!

But there was one human heart, one human understanding—and that, in
ordinary circumstances, a very good one—which was quite willing to
shoulder just such a monstrous perversion, or
106
at least its equivalent, and that heart was John Marshall’s. The
discussion of the motion to arrest the evidence continued ten days, most
of the time being occupied by Burr’s attorneys. ¹ Finally,
on the last day of the month, the Chief Justice
handed down an opinion accepting practically the whole contention of
Burr’s attorneys, but offering a totally new set of reasons for it.
On the main question at issue, namely, whether under the Constitution all
involved in a treasonable enterprise are principals, Marshall pretended
not to pass; but in fact he rejected the essential feature of the Common
Law doctrine, namely, the necessary legal presence at the scene of action
of all parties to the conspiracy. The crux of his argument he embodied in
the following statement: “If in one case the
107
presence of the individual make the guilt of the [treasonable] assemblage
his guilt, and in the other case, the procurement by the
individual make the guilt of the [treasonable] assemblage, his guilt, then
presence and procurement are equally component parts of the overt act, and
equally require two witnesses.” Unfortunately for this argument, the
Constitution does not require that the “component parts” of
the overt act be proved by two witnesses, but only that the overt
act—the corpus delicti—be so proved; and for the simple
reason that, when by further evidence any particular individual is
connected with the treasonable combination which brought about the overt
act, that act, assuming the Common Law doctrine, becomes his act, and he
is accordingly responsible for it at the place where it occurred.
Burr’s attorneys admitted this contention unreservedly. Indeed,
that was precisely the reason why they had opposed the Common Law
doctrine.

Marshall’s effort to steer between this doctrine and its obvious
consequences for the case before him placed him, therefore, in the curious
position of demanding that two overt acts be proved each by two witnesses.
But if two, why not twenty? For it must often happen that the
traitor’s connection
108
with the overt act is demonstrable not by a single act but a
series of acts. Furthermore, in the case of procurers of treason, this
connection will ordinarily not appear in overt acts at all but, as in
Burr’s own case, will be covert. Can it be, then, that the
Constitution is chargeable with the absurdity of regarding the procurers
of treason as traitors and yet of making their conviction impossible? The
fact of the matter was that six months earlier, before his attitude toward
Burr’s doings had begun to take color from his hatred and distrust
of Jefferson, Marshall had entertained no doubt that the Common Law
doctrine underlay the constitutional definition of treason. Speaking for
the Supreme Court in the case of Bollmann and Swartwout, he had said:
“It is not the intention of the Court to say that no individual can
be guilty of this crime who has not appeared in arms against his country;
on the contrary, if war be actually levied, that is, if a body of men be
actually assembled for the purpose of effecting by force a treasonable
purpose, all those who perform any part however minute, or however remote
from the scene of action, and who are actually leagued in the general
conspiracy, are to be considered traitors.” Marshall’s effort
to square this previous opinion
109
with his later position was as unconvincing as it was labored. ¹

Burr’s attorneys were more prudent: they dismissed Marshall’s
earlier words outright as obiter dicta—and erroneous at that!
Nevertheless when, thirty years later, Story, Marshall’s friend and
pupil, was in search of the best judicial definition of treason within the
meaning of the Constitution, he selected this sentence from the case of
Bollmann and Swartwout and passed by the elaborate opinion in Burr’s
case in significant silence. But reputation is a great magician in
transmuting heresy into accepted teaching. Posthumously Marshall’s
opinion has attained a rank and authority with the legal profession that
it never enjoyed in his own time. Regarding it, therefore, as today
established doctrine, we may say that it has quite reversed the relative
importance of conspiracy and overt act where the treason is by levying
110
war. At the Common Law, and in the view of the framers of the
Constitution, the importance of the overt act of war was to make the
conspiracy visible, to put its existence beyond surmise. By
Marshall’s view each traitor is chargeable only with his own overt
acts, and the conspiracy is of importance merely as showing the intention
of such acts. And from this it results logically, as Marshall saw, though
he did not venture to say so explicitly, that the procurer of treason is
not a traitor unless he has also participated personally in an overt act
of war. As Wirt very justifiably contended, such a result is
“monstrous,” and, what is more, it has not been possible to
adhere to it in practice. In recent legislation necessitated by the Great
War, Congress has restored the old Common Law view of treason but has
avoided the constitutional difficulty by labeling the offense
“Espionage.” Indeed, the Espionage Act of June 15, 1917,
scraps Marshall’s opinion pretty completely. ¹

On the day following the reading of Marshall’s
111
opinion, the prosecution, unable to produce two witnesses who had
actually seen Burr procure the assemblage on the island, abandoned
the case to the jury. Shortly thereafter the following verdict was
returned: “We of the jury say that Aaron Burr is not proved to be
guilty under this indictment by any evidence submitted to us. We
therefore find him not guilty.” At the order of the Chief Justice
this Scotch verdict was entered on the records of the
court as a simple Not Guilty.

Marshall’s conduct of Burr’s trial for treason is the one
serious blemish in his judicial record, but for all that it was not
without a measure of extenuation. The President, too, had behaved
deplorably and, feeling himself on the defensive, had pressed matters
with most unseemly zeal, so that the charge of political persecution
raised by Burr’s attorneys was, to say the least, not groundless.
Furthermore, in opposing the President in this matter, Marshall had shown
his usual political sagacity. Had Burr been convicted, the advantage must
all have gone to the Administration. The only possible credit the Chief
Justice could extract from the case would be from assuming that lofty
tone of calm, unmoved impartiality of which Marshall was such a
master—and never more than on
112
this occasion—and from setting himself sternly against popular
hysteria. The words with which his opinion closes have been often quoted:

Much has been said in the course of the argument on points on which the
Court feels no inclination to comment particularly, but which may, perhaps
not improperly receive some notice.

That this Court dare not usurp power is most true.

That this Court dare not shrink from its duty is not less true.

No man is desirous of placing himself in a disagreeable situation. No man
is desirous of becoming the popular subject of calumny. No man, might he
let the bitter cup pass from him without self-reproach, would drain it to
the bottom. But if he have no choice in the case, if there be no
alternative presented to him but a dereliction of duty or the opprobrium
of those who are denominated the world, he merits the contempt as well as
the indignation of his country who can hesitate which to embrace.

One could not require a better illustration of that faculty of
“apparently deep self-conviction” which Wirt had noted in
the Chief Justice.

Finally, it must be owned that Burr’s case offered Marshall a
tempting opportunity to try out the devotion of Republicans to that
ideal of judicial deportment which had led them so vehemently to criticize
Justice Chase and to charge him with
113
being “oppressive,” with
refusing to give counsel for defense an opportunity to be heard, with
transgressing the state law of procedure, with showing too great liking
for Common Law ideas of sedition, with setting up the President as a sort
of monarch beyond the reach of judicial process. Marshall’s conduct
of Burr’s trial now exactly reversed every one of these grounds of
complaint. Whether he intended it or not, it was a neat turning of the
tables.

But Jefferson, who was at once both the most theoretical and the least
logical of men, was of course hardly prepared to see matters in that
light. As soon as the news reached him of Burr’s acquittal, he
ordered Hay to press the indictment for misdemeanor—not for the
purpose of convicting Burr, but of getting the evidence down in a form in
which it should be available for impeachment proceedings against Marshall.
For some weeks longer, therefore, the Chief Justice sat listening to
evidence which was to be used against himself. But the impeachment never
came, for a chain is only as strong as its weakest link, and the weakest
link in the combination against the Chief Justice was a very fragile one
indeed—the iniquitous Wilkinson. Even the faithful and melancholy
Hay
114
finally abandoned him. “The declaration which I made in court in
his favor some time ago,” he wrote the President, “was
precipitate.… My confidence in him is destroyed.… I am
sorry for it, on his account, on the public account, and because you have
expressed opinions in his favor.” It was obviously impossible to
impeach the Chief Justice for having prevented the hanging of Aaron Burr
on the testimony of such a miscreant.

Though the years immediately following the Burr trial were not a time of
conspicuous activity for Marshall, they paved the way in more than one
direction for his later achievement. Jefferson’s retirement from the
Presidency at last relieved the Chief Justice from the warping influence
of a hateful personal contest and from anxiety for his official security.
Jefferson’s successors were men more willing to identify the cause
of the Federal Judiciary with that of national unity. Better still, the
War of 1812 brought about the demise of the Federalist party and thus
cleared the Court of every suspicion of partisan bias. Henceforth the
great political issue was the general one of the nature of the Union and
the Constitution, a field in which Marshall’s talent for debate made
him master.
115
In the meantime the Court was acquiring that personnel which
it was to retain almost intact for nearly twenty years; and, although the
new recruits came from the ranks of his former party foes, Marshall had
little trouble in bringing their views into general conformity with his
own constitutional creed. Nor was his triumph an exclusively personal one.
He was aided in very large measure by the fact that the war had brought
particularism temporarily into discredit in all sections of the country.
Of Marshall’s associates in 1812, Justice Washington alone had come
to the bench earlier, yet he was content to speak through the mouth of
his illustrious colleague, save on the notable occasion when he led the
only revolt of a majority of the Court from the Chief Justice’s
leadership in the field of Constitutional Law. ¹ Johnson of South
Carolina, a man of no little personal vanity, affected a greater
independence, for which he was on one occasion warmly congratulated by
Jefferson; yet even his separate opinions, though they sometimes challenge
Marshall’s more sweeping premises and bolder method of reasoning,
are after all mostly concurring ones. Marshall’s really invaluable
116
aid among his associates was Joseph Story, who in 1811, at the age of
thirty-two, was appointed by Madison in succession to Cushing. Still
immature, enthusiastically willing to learn, warmly affectionate, and with
his views on constitutional issues as yet unformed, Story fell at once
under the spell of Marshall’s equally gentle but vastly more
resolute personality; and the result was one of the most fruitful
friendships of our history. Marshall’s “original bias,”
to quote Story’s own words, “as well as the choice of his
mind, was to general principles and comprehensive views, rather than to
technical or recondite learning.” Story’s own bias, which was
supported by his prodigious industry, was just the reverse. The two men
thus supplemented each other admirably. A tradition of some venerability
represents Story as having said that Marshall was wont to remark:
“Now Story, that is the law; you find the precedents for it.”
Whether true or not, the tale at least illustrates the truth. Marshall
owed to counsel a somewhat similar debt in the way of leading up to his
decisions, for, as Story points out, “he was solicitous to hear
arguments and not to decide cases without them, nor did any judge ever
profit more by them.” But in the field of Constitutional Law, at
117
least, Marshall used counsel’s argument not so much to indicate
what his own judicial goal ought to be as to discover the best route
thereto—often, indeed, through the welcome stimulus which a clash of
views gave to his reasoning powers.

Though the wealth of available legal talent at this period was
impressively illustrated in connection both with Chase’s impeachment
and with Burr’s trial, yet on neither of these occasions appeared
William Pinkney of Maryland, the attorney to whom Marshall acknowledged
his greatest indebtedness, and who was universally acknowledged to be the
leader of the American Bar from 1810 until his death twelve years later.
Besides being a great lawyer, Pinkney was also a notable personality, as
George Ticknor’s sketch of him as he appeared before the Supreme
Court in 1815 goes to prove:

You must imagine, if you can, a man formed on nature’s most liberal
scale, who at the age of 50 is possessed with the ambition of being a
pretty fellow, wears corsets to diminish his bulk, uses cosmetics, as he
told Mrs. Gore, to smooth and soften a skin growing somewhat wrinkled and
rigid with age, dresses in a style which would be thought foppish in a
much younger man. You must imagine such a man standing before the gravest
tribunal in the land, and engaged in causes of the deepest moment;
118
but
still apparently thinking how he can declaim like a practised rhetorician
in the London Cockpit, which he used to frequent. Yet you must, at the
same time, imagine his declamation to be chaste and precise in its
language and cogent, logical and learned in its argument, free from the
artifice and affectation of his manner, and in short, opposite to what you
might fairly have expected from his first appearance and tones. And when
you have compounded these inconsistencies in your imagination, and united
qualities which on common occasions nature seems to hold asunder, you
will, perhaps, begin to form some idea of what Mr. Pinkney is.

Such was the man whom Marshall, Story, and Taney all considered the
greatest lawyer who had ever appeared before the Supreme Court.

At the close of the War of 1812, Marshall, though he had decided many
important questions of International Law, ¹ nevertheless found
himself only at the threshold of his real fame. Yet even thus early he had
indicated his point of view. Thus in the case of the United States
vs. Peters, ² which was decided in 1809, the question before
the Court was whether a mandamus should issue to the United States
District Judge of Pennsylvania ordering him to enforce, in the face of the
opposition of
119
the state Government, a decision handed down in a prize case more than
thirty years before by the old Committee of Appeals of the Continental
Congress. Marshall answered the question affirmatively, saying:
“If the legislatures of the several states may, at will, annul the
judgments of the courts of the United States and destroy the rights
acquired under those judgments, the Constitution itself becomes a solemn
mockery, and the nation is deprived of the means of enforcing its laws by
the instrumentality of its own tribunals.”

Marshall’s decision evoked a warm protest from the Pennsylvania
Legislature and led to a proposal of amendment to the Constitution
providing “an impartial tribunal” between the General
Government and the States; and these expressions of dissent in turn
brought the Virginia Assembly to the defense of the Supreme Court.

The commission to whom was referred the communication of the governor of
Pennsylvania [reads the Virginia document] … are of the opinion
that a tribunal is already provided by the Constitution of the United
States, to wit; the Supreme Court, more eminently qualified from
their habits and duties, from the mode of their selection, and from the
tenure of their offices, to decide the disputes aforesaid in an
enlightened and impartial manner than any other tribunal which could be
created.

120
The members of the Supreme Court are selected from those in the United
States who are most celebrated for virtue and legal learning.… The
duties they have to perform lead them necessarily to the most enlarged and
accurate acquaintance with the jurisdiction of the federal and several
State courts together, and with the admirable symmetry of our government.
The tenure of their offices enables them to pronounce the sound and
correct opinions they have formed, without fear, favor or partiality.

Was it coincidence or something more that during Marshall’s
incumbency Virginia paid her one and only tribute to the impartiality of
the Supreme Court while Burr’s acquittal was still vivid in the
minds of all? Or was it due to the fact that “the Great Lama of
the Little Mountain”—to use Marshall’s disrespectful
appellation for Jefferson—had not yet converted the Virginia
Court of Appeals into the angry oracle of his own unrelenting hatred of
the Chief Justice? Whatever the reason, within five years
Virginia’s attitude had again shifted, and she had become once more
what she had been in 1798-99, the rallying point of the forces of
Confederation and State Rights.

The Tenets Of Nationalism

“John Marshall stands in history as
one of that small group of men who have founded States. He was a
nation-maker, a state-builder. His monument is in the history of the
United States and his name is written upon the Constitution of his
country.” So spoke Senator Lodge, on John Marshall Day, February 4,
1901. “I should feel a … doubt,” declared Justice
Holmes on the same occasion, “whether, after Hamilton and the
Constitution itself, Marshall’s work proved more than a strong
intellect, a good style, personal ascendancy in his court, courage,
justice, and the convictions of his party.” Both these divergent
estimates of the great Chief Justice have their value. It is well to be
reminded that Marshall’s task lay within the four corners of the
Constitution, whose purposes he did not originate, especially since no
one would have been quicker than himself to
122
disown praise implying anything different.
None the less it was no ordinary skill and courage which, assisted by
great office, gave enduring definition to the purposes of the Constitution
at the very time when the whole trend of public opinion was setting in
most strongly against them. It must not be forgotten that Hamilton, whose
name Justice Holmes invokes in his somewhat too grudging encomium of
Marshall, had pronounced the Constitution “a frail and worthless
fabric.”

Marshall’s own outlook upon his task sprang in great part from a
profound conviction of calling. He was thoroughly persuaded that he knew
the intentions of the framers of the Constitution—the intentions
which had been wrought into the instrument itself—and he was equally
determined that these intentions should prevail. For this reason he
refused to regard his office merely as a judicial tribunal; it was a
platform from which to promulgate sound constitutional principles, the
very cathedra indeed of constitutional orthodoxy. Not one of the cases
which elicited his great opinions but might easily have been decided on
comparatively narrow grounds in precisely the same way in which he decided
it on broad, general principles, but with the probable result that it
would never
123
again have been heard of outside the law courts. To take a
timid or obscure way to a merely tentative goal would have been at
variance equally with Marshall’s belief in his mission and with his
instincts as a great debater. Hence he forged his weapon—the
obiter dictum—by whose broad strokes was hewn the highroad
of a national destiny.

Marshall’s task naturally was not performed in vacuo: he owed
much to the preconceptions of his contemporaries. His invariable quest, as
students of his opinions are soon aware, was for the axiomatic, for
absolute principles, and in this inquiry he met the intellectual demands
of a period whose first minds still owned the sway of the syllogism and
still loved what Bacon called the “spacious liberty of
generalities.” In Marshall’s method—as in the older
syllogistic logic, whose phraseology begins to sound somewhat strange to
twentieth century ears—the essential operation consisted in
eliminating the “accidental” or “irrelevant”
elements from the “significant” facts of a case, and then
recognizing that this particular case had been foreseen and provided for
in a general rule of law. Proceeding in this way Marshall was able to
build up a body of thought the internal consistency of which, even when it
did not convince, yet
124
baffled the only sort of criticism which contemporaries were disposed to
apply. Listen, for instance, to the despairing cry of John Randolph of
Roanoke: “All wrong,” said he of one of Marshall’s
opinions, “all wrong, but no man in the United States can tell
why or wherein.”

Marshall found his first opportunity to elaborate the tenets of his
nationalistic creed in the case of M’Culloch vs. Maryland,
which was decided at the same term with the Dartmouth College case and
that of Sturges vs. Crowinshield—the greatest six weeks in
the history of the Court. The question immediately involved was whether
the State of Maryland had the right to tax the notes issued by the branch
which the Bank of the United States had recently established at Baltimore.
But this question raised the further one whether the United States had in
the first place the right to charter the Bank and to authorize it to
establish branches within the States. The outcome turned on the
interpretation to be given the “necessary and proper” clause
of the Constitution.

The last two questions were in 1819 by no means novel. In the
Federalist itself Hamilton had boldly asked, “Who is to judge
of the necessity and propriety of the laws to be passed for executing the
125
powers of the Union?” and had announced that “the National
Government, like every other, must judge in the first instance, of
the proper exercise of its powers, and its constituents in the
last,” a view which seems hardly to leave room even for
judicial control. Three years later as Secretary of the Treasury,
Hamilton had brought forward the proposal which soon led to the chartering
of the Bank of 1791. The measure precipitated the first great discussion
over the interpretation of the new Constitution. Hamilton owned that
Congress had no specifically granted power to charter a bank but contended
that such an institution was a “necessary and proper” means
for carrying out certain of the enumerated powers of the National
Government such, for instance, as borrowing money and issuing a
currency. For, said he in effect, “necessary and proper”
signify “convenient,” and the clause was intended to
indicate that the National Government should enjoy a wide range of
choice in the selection of means for carrying out its enumerated
powers. Jefferson, on the other hand, maintained that the
“necessary and proper” clause was a restrictive clause,
meant to safeguard the rights of the States, that a law in order to be
“necessary and proper” must be both
“necessary”
126
and “proper,” and that both terms ought to be
construed narrowly. Jefferson’s opposition, however, proved
unavailing, and the banking institution which was created continued till
1811 without its validity being once tested in the courts.

The second Bank of the United States, whose branch Maryland was now trying
to tax, received its charter in 1816 from President Madison. Well might
John Quincy Adams exclaim that the “Republicans had outfederalized
the Federalists!” Yet the gibe was premature. The country at large
was as yet blind to the responsibilities of nationality. That vision of
national unity which indubitably underlies the Constitution was after all
the vision of an aristocracy conscious of a solidarity of interests
transcending state lines. It is equally true that until the Civil War, at
the earliest, the great mass of Americans still felt themselves to be
first of all citizens of their particular States. Nor did this
individualistic bias long remain in want of leadership capable of giving
it articulate expression. The amount of political talent which existed
within the State of Virginia alone in the first generation of our national
history is amazing to contemplate, but this talent unfortunately exhibited
one most damaging blemish. The intense individualism
127
of the
planter-aristocrat could not tolerate in any possible situation the idea
of a control which he could not himself ultimately either direct or
reject. In the Virginia and Kentucky resolutions of 1798 and 1799, which
regard the Constitution as a compact of sovereign States and the National
Government merely as their agent, the particularistic outlook definitely
received a constitutional creed which in time was to become, at least in
the South, a gloss upon the Constitution regarded as fully as
authoritative as the original instrument. This recognition of state
sovereignty was, indeed, somewhat delayed by the federalization of the
Republican party in consequence of the capture of the National Government
by Virginia in 1800. But in 1819 the march toward dissolution and civil
war which had begun at the summons of Jefferson was now definitely
resumed. This was the year of the congressional struggle over the
admission of Missouri, the most important result of which was the
discovery by the slave owners that the greatest security of slavery lay in
the powers of the States and that its greatest danger lay in those of the
National Government. Henceforth the largest property interest of the
country stood almost solidly behind State Rights.

128
It was at this critical moment that chance presented Marshall with the
opportunity to place the opposing doctrine of nationalism on the high
plane of judicial decision. The arguments in the Bank case, ¹ which
began on February 22, 1819, and lasted nine days, brought together a
“constellation of lawyers” such as had never appeared before
in a single case. The Bank was represented by Pinkney, Webster, and Wirt;
the State, by Luther Martin, Hopkinson, and Walter Jones of the District
of Columbia bar. In arguing for the State, Hopkinson urged the restrictive
view of the “necessary and proper” clause and sought to reduce
to an absurdity the doctrine of “implied rights.” The Bank,
continued Hopkinson, “this creature of construction,” claims
by further implication “the right to enter the territory of a State
without its consent” and to establish there a branch; then, by yet
another implication, the branch claims exemption from taxation. “It
is thus with the famous fig-tree of India, whose branches shoot from the
trunk to a considerable distance, then drop to the earth, where they take
root and become trees from which also other branches shoot …, until
gradually a vast surface is covered, and everything perishes
129
in the spreading shade.” But even granting that Congress did have
the right to charter the Bank, still that fact would not exempt the
institution from taxation by any State within which it held property.
“The exercise of the one sovereign power cannot be controlled by
the exercise of the other.”

On the other side, Pinkney made the chief argument in behalf of the Bank.
“Mr. Pinkney,” says Justice Story, “rose on Monday to
conclude the argument; he spoke all that day and yesterday and will
probably conclude to-day. I never in my whole life heard a greater speech;
it was worth a journey from Salem to hear it; his elocution was
excessively vehement; but his eloquence was overwhelming. His language,
his style, his figures, his argument, were most brilliant and sparkling.
He spoke like a great statesman and patriot and a sound constitutional
lawyer. All the cobwebs of sophistryship and metaphysics about State
Rights and State Sovereignty he brushed away with a mighty besom.”

Pinkney closed on the 3d of March, and on the 6th Marshall handed down his
most famous opinion. He condensed Pinkney’s three-day argument into
a pamphlet which may be easily read by the instructed layman in half an
hour, for, as is
130
invariably the case with Marshall, his condensation made for greater
clarity. In this opinion he also gives evidence, in their highest form,
of his other notable qualities as a judicial stylist: his “tiger
instinct for the jugular vein”; his rigorous pursuit of logical
consequences; his power of stating a case, wherein he is rivaled only by
Mansfield; his scorn of the qualifying “but’s,”
“if’s,” and “though’s”; the
pith and balance of his phrasing, a reminiscence of his early days with
Pope; the developing momentum of his argument; above all, his audacious
use of the obiter dictum. Marshall’s later opinion in
Gibbons vs. Ogden is, it is true, in some respects a greater
intellectual performance, but it does not equal this earlier opinion
in those qualities of form which attract the amateur and stir the
admiration of posterity.

At the very outset of his argument in the Bank case Marshall singled out
the question the answer to which must control all interpretation of the
Constitution: Was the Constitution, as contended by counsel for Maryland,
“an act of sovereign and independent States” whose political
interests must be jealously safeguarded in its construction, or, was it
an emanation from the American people and designed for their benefit?
Marshall answered
131
that the Constitution, by its own declaration, was “ordained and
established” in the name of the people, “in order to form a
more perfect union, establish justice, insure domestic tranquillity, and
secure the blessings of liberty to themselves and their posterity.”
Nor did he consider the argument “that the people had already
surrendered all their powers to the State Sovereignties and had nothing
more to give,” a persuasive one, for “surely, the question
whether they may resume and modify the power granted to the government
does not remain to be settled in this country. Much more might the
legitimacy of the General Government be doubted, had it been created by
the States. The powers delegated to the State sovereignties were to be
exercised by themselves, not by a distinct and independent sovereignty
created by them.” “The Government of the Union, then,”
Marshall proceeded, “is emphatically … a government of the
people. In form and in substance it emanates from them. Its powers are
granted by them, and are to be exercised on them, and for their
benefit.” And what was the nature of this Government? “If any
one proposition could command the universal assent of mankind we might
expect it would be this: that the government of the Union, though
132
limited in its powers, is supreme within the sphere of its action.
This would seem to result necessarily from its nature. It is the
government of all; its powers are delegated by all; it represents
all and acts for all.” However the question had not been left
to reason. “The people have in express terms decided it by
saying: ‘This Constitution and the laws of the United States
which shall be made in pursuance thereof … shall be the
supreme Law of the Land.’”

But a Government which is supreme must have the right to choose the means
by which to make its supremacy effective; and indeed, at this point again
the Constitution comes to the aid of reason by declaring specifically that
Congress may make all laws “necessary and proper” for carrying
into execution any of the powers of the General Government. Counsel for
Maryland would read this clause as limiting the right which it recognized
to the choice only of such means of execution as are indispensable; they
would treat the word “necessary” as controlling the clause and
to this they would affix the word “absolutely.” “Such
is the character of human language,” rejoins the Chief Justice,
“that no word conveys to the mind in all situations, one single
definite idea,” and the
133
word “necessary,” “like
others, is used in various senses,” so that its context becomes most
material in determining its significance.

And what is its context on this occasion? “The subject is the
execution of those great powers on which the welfare of a nation
essentially depends.” The provision occurs “in a Constitution
intended to endure for ages to come and consequently to be adapted to the
various crises of human affairs.” The purpose of the clause
therefore is not to impair the right of Congress “to exercise its
best judgment in the selection of measures to carry into execution the
constitutional powers of the Government,” but rather “to
remove all doubts respecting the right to legislate on that vast mass of
incidental powers which must be involved in the Constitution, if that
instrument be not a splendid bauble.… Let the end be legitimate,
let it be within the scope of the Constitution and all means which are
appropriate, which are plainly adapted to that end, which are not
prohibited but consist with the letter and spirit of the Constitution, are
constitutional.”

But was the Act of Maryland which taxed the Bank in conflict with the Act
of Congress which established it? If so, must the State yield to
134
Congress? In approaching this question Marshall again laid the basis for
as sweeping a decision as possible. The terms in which the Maryland
statute was couched indicated clearly that it was directed specifically
against the Bank, and it might easily have been set aside on that ground.
But Marshall went much further and laid down the principle that the
instrumentalities of the National Government are never subject to
taxation by the States in any form whatsoever, and for two reasons. In
the first place, “those means are not given by the people of a
particular State … but by the people of all the States. They are
given by all for the benefit of all,” and owe their presence in the
State not to the State’s permission but to a higher authority. The
State of Maryland therefore never had the power to tax the Bank in the
first place. Yet waiving this theory, there was, in the second place,
flat incompatibility between the Act of Maryland and the Act of
Congress, not simply because of the specific operation of the former, but
rather because of the implied claim which it made for state authority.
“That the power to tax involves the power to destroy,”
Marshall continued; “that the power to destroy may defeat and
render useless the power to create; that there is a plain
135
repugnance in conferring on one government a power to control the
constitutional measures of another, which other, with respect to those
very measures is declared to be supreme over that which exerts the
control, are propositions not to be denied.” Nor indeed is the
sovereignty of the State confined to taxation. “That is not the only
mode in which it might be displayed. The question is in truth, a question
of supremacy, and if the right of the States to tax the means employed by
the General Government be conceded, the declaration that the Constitution
and the laws made in pursuance thereof shall be supreme law of the land,
is empty and unmeaning declamation.… We are unanimously of
opinion,” concluded the Chief Justice, “that the law …
of Maryland, imposing a tax on the Bank of the United States is
unconstitutional and void.”

Five years later, in the case of Gibbons vs. Ogden, ¹ known to
contemporaries as the “Steamboat case,” Marshall received the
opportunity to apply his principles of constitutional construction to the
power of Congress to regulate “commerce among the States.” For
a quarter of a century Robert R. Livingston and Robert Fulton and
136
their successors had
enjoyed from the Legislature of New York a grant of the exclusive right to
run steamboats on the waters of the State, and in this case one of their
licensees, Ogden, was seeking to prevent Gibbons, who had steamers in the
coasting trade under an Act of Congress, from operating them on the Hudson
in trade between points in New York and New Jersey. A circumstance which
made the case the more critical was that New Jersey and Connecticut had
each passed retaliatory statutes excluding from their waters any vessel
licensed under the Fulton-Livingston monopoly. The condition of interstate
commercial warfare which thus threatened was not unlike that which had
originally operated so potently to bring about the Constitution.

The case of Gibbons vs. Ogden was argued in the early days of
February, 1824, with Attorney-General Wirt and Daniel Webster against the
grant, while two famous New York lawyers of the day, Thomas Addis Emmet,
brother of the Irish patriot, and Thomas J. Oakley, acted as Ogden’s
counsel. The arguments have the importance necessarily attaching to a
careful examination of a novel legal question of the first magnitude by
learned and acute minds, but some of the claims that have been
137
made for these arguments, and especially for Webster’s effort,
hardly sustain investigation. Webster, never in any case apt to regard
his own performance overcritically, seems in later years to have been
persuaded that the Chief Justice’s opinion “followed closely
the track” of his argument on this occasion; and it is true that
Marshall expressed sympathy with Webster’s contention that Congress
may regulate as truly by inaction as by action, since inaction may
indicate its wish that the matter go unregulated; but the Chief Justice
did not explicitly adopt this idea, and the major part of his opinion was
a running refutation of Emmet’s argument, which in turn was only an
elaboration of Chancellor Kent’s opinion upon the same subject in
the New York courts. ¹ In other words, this was one of those cases
in which Marshall’s indebtedness to counsel was far less for ideas
than for the stimulation which his own powers always received from
discussion; and the result is his profoundest, most statesmanlike opinion,
from whose doctrines the Court has at times deviated, but only to return
to them, until today it is more nearly than ever before the established
law on the many points covered by its dicta.

138
Marshall pronounced the Fulton-Livingston monopoly inoperative so far as
it concerned vessels enrolled under the Act of Congress to engage in the
coasting trade; but in arriving at this very simple result his opinion
takes the broadest possible range. At the very outset Marshall flatly
contradicts Kent’s proposition that the powers of the General
Government, as representing a grant by sovereignties, must be strictly
construed. The Constitution, says he, “contains an enumeration of
powers expressly granted by the people to their government,” and
there is not a word in it which lends any countenance to the idea that
these powers should be strictly interpreted. As men whose intentions
required no concealment, those who framed and adopted the Constitution
“must be understood to have employed words in their natural sense
and to have intended what they said”; but if, from the inherent
imperfection of language, doubts were at any time to arise
“respecting the extent of any given power,” then the
known purposes of the instrument should control the construction put on
its phraseology. “The grant does not convey power which might be
beneficial to the grantor if retained by himself … but is an
investment of power for the general
139
advantage in the hands of agents selected for the purpose, which power
can never be exercised by the people themselves, but must be placed in
the hands of agents or remain dormant.” In no other of
his opinions did Marshall so clearly bring out the logical connection
between the principle of liberal construction of the Constitution and the
doctrine that it is an ordinance of the American people.

Turning then to the Constitution, Marshall asks, “What is
commerce?” “Counsel for appellee,” he recites,
“would limit it to traffic, to buying and selling,”
to which he answers that “this would restrict a general term
… to one of its significations. Commerce,” he continues,
“undoubtedly is traffic, but it is something more—it is
intercourse,” and so includes navigation. And what is the power of
Congress over commerce? “It is the power to regulate, that is, the
power to prescribe the rule by which commerce is to be governed.”
It is a power “complete in itself,” exercisable “at its
utmost extent,” and without limitations “other than are
prescribed by the Constitution.… If, as has always been understood,
the sovereignty of Congress, though limited to specified objects, is
plenary as to those objects, the power over commerce with foreign nations
and among the several
140
States is vested in Congress as absolutely as it would be in a single
government having in its constitution the same restrictions on the
exercise of power as are found in the Constitution of the United
States.” The power, therefore, is not to be confined by state
lines but acts upon its subject-matter wherever it is to be found.
“It may, of consequence, pass the jurisdictional line of New
York and act upon the very waters to which the prohibition now under
consideration applies.” It is a power to be exercised within the
States and not merely at their frontiers.

But was it sufficient for Marshall merely to define the power of Congress?
Must not the power of the State also be considered? At least, Ogden’s
attorneys had argued, the mere existence in Congress of the power to
regulate commerce among the States did not prevent New York from
exercising the same power, through legislation operating upon subject
matter within its own boundaries. No doubt, he concedes, the States have
the right to enact many kinds of laws which will incidentally affect
commerce among the States, such for instance as quarantine and health
laws, laws regulating bridges and ferries, and so on; but this they do by
virtue of their power of “internal police,” not by virtue
141
of a “concurrent” power over commerce, foreign and interstate.
And, indeed, New York may have granted Fulton and Livingston their
monopoly in exercise of this power, in which case its validity would
depend upon its not conflicting with an Act of Congress regulating
commerce. For should such conflict exist, the State enactment, though
passed “in the exercise of its acknowledged sovereignty,”
must give place in consequence of the supremacy conferred by the
Constitution upon all acts of Congress in pursuance of it, over all
state laws whatsoever.

The opinion then proceeds to the consideration of the Act of Congress
relied upon by Gibbons. This, Ogden’s attorneys contended, merely
conferred the American character upon vessels already possessed of the
right to engage in the coasting trade; Marshall, on the contrary, held
that it conferred the right itself, together with the auxiliary right of
navigating the waters of the United States; whence it followed that New
York was powerless to exclude Gibbons’s vessels from the Hudson.
Incidentally Marshall indicated his opinion that Congress’s power
extended to the carriage of passengers as well as of goods and to vessels
propelled by steam as well as to those driven by wind. “The one
element,”
142
said he, “may be as legitimately used as the other for every
commercial purpose authorized by the laws of the Union.”

Two years later, in the case of Brown vs. Maryland, ¹ Marshall
laid down his famous doctrine that so long as goods introduced into a
State in the course of foreign trade remain in the hands of the importer
and in the original package, they are not subject to taxation by the
State. This doctrine is interesting for two reasons. In the first place,
it implies the further principle that an attempt by a State to tax
interstate or foreign commerce is tantamount to an attempt to regulate
such commerce, and is consequently void. In other words, the principle of
the exclusiveness of Congress’s power to regulate commerce among the
States and with foreign nations, which is advanced by way of dictum
in Gibbons vs. Ogden, becomes in Brown vs. Maryland a ground
of decision. It is a principle which has proved of the utmost importance
in keeping the field of national power clear of encumbering state
legislation against the day when Congress should elect to step in and
assume effective control. Nor can there be much doubt that the result was
intended by the framers of the Constitution.

143
In the second place, however, from another point of view this
“original package doctrine” is only an extension of the
immunity from state taxation established in M’Culloch vs.
Maryland for instrumentalities of the National Government. It thus
reflects the principle implied by that decision: where power exists to
any degree or for any purpose, it exists to every degree and for every
purpose; or, to quote Marshall’s own words in Brown vs.
Maryland, “questions of power do not depend upon the degree
to which it may be exercised; if it may be exercised at all, it may be
exercised at the will of those in whose hands it is placed.” The
attitude of the Court nowadays, when it has to deal with state
legislation, is very different. It takes the position that abuse of
power, in relation to private rights or to commerce, is excess of power
and hence demands to be shown the substantial effect of legislation, not
its mere formal justification. ¹ In short, its inquiry is into
facts. On the other hand, when dealing with congressional legislation,
the Court has hitherto always followed Marshall’s bolder method.
Thus Congress may use its taxing
144
power to drive out unwholesome
businesses, perhaps even to regulate labor within the States, and it may
close the channels of interstate and foreign commerce to articles
deemed by it injurious to the public health or morals. ² To date
this discrepancy between the methods employed by the Court in passing
upon the validity of legislation within the two fields of state and
national power has afforded the latter a decided advantage.

The great principles which Marshall developed in his interpretation of the
Constitution from the side of national power and which after various ups
and downs may be reckoned as part of the law of the land today, were the
following:

1. The Constitution is an ordinance of the people of the United States,
and not a compact of States.

2. Consequently it is to be interpreted with a view to securing a
beneficial use of the powers which it creates, not with the purpose of
safeguarding the prerogatives of state sovereignty.

3. The Constitution was further designed, as near as may be, “for
immortality,” and hence was to be “adapted to the various
crises of human affairs,” to be kept a commodious vehicle of the
national life and not made the Procrustean bed of the nation.

4. While the government which the Constitution
145
established is one of
enumerated powers, as to those powers it is a sovereign government, both
in its choice of the means by which to exercise its powers and in its
supremacy over all colliding or antagonistic powers.

5. The power of Congress to regulate commerce is an exclusive power, so
that the States may not intrude upon this field even though Congress has
not acted.

6. The National Government and its instrumentalities are present within
the States, not by the tolerance of the States, but by the supreme
authority of the people of the United States. ¹

Of these several principles, the first is obviously the most important and
to a great extent the source of the others. It is the principle of which
Marshall, in face of the rising tide of State Rights, felt himself to be
in a peculiar sense the official custodian. It is the principle which he
had in mind in his noble plea at the close of the case of Gibbons
vs. Ogden for a construction of the Constitution capable of
maintaining its vitality and usefulness:

Powerful and ingenious minds [run his words], taking as postulates that
the powers expressly granted to the Government of the Union are to be
contracted by construction into the narrowest possible compass and that
the original powers of the States are to be retained if any possible
construction will retain them, may by a course
146
of refined and metaphysical reasoning … explain away the
Constitution of our country and leave it a magnificent structure
indeed to look at, but totally unfit for use. They may so entangle
and perplex the understanding as to obscure principles which were
before thought quite plain, and induce doubts where, if the mind
were to pursue its own course, none would be perceived. In such a
case, it is peculiarly necessary to recur to safe and fundamental
principles.

The Sanctity Of Contracts

Marshall’s work was one of conservation
in so far as it was concerned with interpreting the Constitution in accord
with the intention which its framers had of establishing an efficient
National Government. But he found a task of restoration awaiting him in
that great field of Constitutional Law which defines state powers in
relation to private rights.

To provide adequate safeguards for property and contracts against state
legislative power was one of the most important objects of the framers, if
indeed it was not the most important. Consider, for instance, a colloquy
which occurred early in the Convention between Madison and Sherman of
Connecticut. The latter had enumerated “the objects of Union”
as follows: “First, defense against foreign danger; secondly,
against internal disputes and a resort to force; thirdly, treaties with
foreign
148
nations; fourthly, regulating foreign commerce and drawing revenue
from it.” To this statement Madison demurred. The objects mentioned
were important, he admitted, but he “combined with them the
necessity of providing more effectually for the securing of private rights
and the steady dispensation of justice. Interferences with these were
evils which had, more perhaps than anything else, produced this
Convention.”

Marshall’s sympathy with this point of view we have already noted.
¹ Nor was Madison’s reference solely to the then recent
activity of state Legislatures in behalf of the much embarrassed but
politically dominant small farmer class. He had also in mind that other
and more ancient practice of Legislatures of enacting so-called
“special legislation,” that is, legislation altering under
the standing law the rights of designated parties, and not infrequently
to their serious detriment. Usually such legislation took the form of
an intervention by the Legislature in private controversies pending in,
or already decided by, the ordinary courts, with the result that
judgments were set aside, executions canceled, new hearings granted,
new rules of evidence introduced, void wills validated, valid contracts
149
voided, forfeitures pronounced—all by legislative mandate. Since
that day the courts have developed an interpretation of the principle of
the separation of powers and have enunciated a theory of “due
process of law,” which renders this sort of legislative abuse quite
impossible; but in 1787, though the principle of the separation of powers
had received verbal recognition in several of the state Constitutions, no
one as yet knew precisely what the term “legislative power”
signified, and at that time judicial review did not exist. ² Hence
those who wished to see this nuisance of special legislation abated felt
not unnaturally that the relief must come from some source external to the
local governments, and they welcomed the movement for a new national
Constitution as affording them their opportunity.

The Constitution, in Article I, Section X, forbids the States to
“emit bills of credit, make anything but gold and silver a legal
tender in payment of debts, pass any bill of attainder, ex post facto law,
or law impairing the obligation of contracts.” Until 1798, the
provision generally regarded as offering the most promising weapon against
special
150
legislation was the ex post facto clause. In that year, however, in
its decision in Calder vs. Bull the Court held that this clause
“was not inserted to secure the citizen in his private rights of
either property or contracts,” but only against certain kinds of
penal legislation. The decision roused sharp criticism and the judges
themselves seemed fairly to repent of it even in handing it down.
Justice Chase, indeed, even went so far as to suggest, as a sort of
stop-gap to the breach they were thus creating in the Constitution, the
idea that, even in the absence of written constitutional restrictions,
the Social Compact as well as “the principles of our free
republican governments” afforded judicially enforcible limitations
upon legislative power in favor of private rights. Then, in the years
immediately following, several state courts, building upon this dictum,
had definitely announced their intention of treating as void all
legislation which they found unduly to disturb vested rights, especially
if it was confined in its operation to specified parties. ¹

Such was still the situation when the case of
151
Fletcher vs. Peck ¹
in 1810 raised before the Supreme Court the question whether the Georgia
Legislature had the right to rescind a land grant made by a preceding
Legislature. On any of three grounds Marshall might easily have disposed
of this case before coming to the principal question. In the first place,
it was palpably a moot case; that is to say, it was to the interest of the
opposing parties to have the rescinding act set aside. The Court would not
today take jurisdiction of such a case, but Marshall does not even suggest
such a solution of the question, though Justice Johnson does in his
concurring opinion. In the second place, Georgia’s own claim to the
lands had been most questionable, and consequently her right to grant them
to others was equally dubious; but this, too, is an issue which Marshall
avoids. Finally, the grant had been procured by corrupt means, but
Marshall ruled that this was not a subject the
152
Court might enter upon; and
for the ordinary run of cases in which undue influence is alleged to have
induced the enactment of a law, the ruling is clearly sound. But this was
no ordinary case. The fraud asserted against the grant was a matter of
universal notoriety; it was, indeed, the most resounding scandal of the
generation; and surely judges may assume to know what is known to all and
may act upon their knowledge.

Furthermore, when one turns to the part of Marshall’s opinion which
deals with the constitutional issue, one finds not a little evidence of
personal predilection on the part of the Chief Justice. He starts out by
declaring the rescinding act void as a violation of vested rights, of the
underlying principles of society and government, and of the doctrine of
the separation of powers. Then he apparently realizes that a decision
based on such grounds must be far less secure and much less generally
available than one based on the words of the Constitution; whereupon he
brings forward the obligation of contracts clause. At once, however, he is
confronted with the difficulty that the obligation of a contract is the
obligation of a contract still to be fulfilled, and that a grant is an
executed contract over and done with—functus officio. This
153
difficulty he meets by asserting that every grant is attended by an
implied contract on the part of the grantor not to reassert his right to
the thing granted. This, of course, is a palpable fiction on
Marshall’s part, though certainly not an unreasonable one. For
undoubtedly when a grant is made without stipulation to the contrary,
both parties assume that it will be permanent.

The greater difficulty arose from the fact that, whether implied or
explicit, the contract before the Court was a public one. In the
case of private contracts it is easy enough to distinguish the contract,
as the agreement between the parties, from the obligation of the contract
which comes from the law and holds the parties to their engagements. But
what law was there to hold Georgia to her supposed agreement not to
rescind the grant she had made? Not the Constitution of the United States
unattended by any other law, since it protects the obligation only after
it has come into existence. Not the Constitution of Georgia as construed
by her own courts, since they had sustained the rescinding act. Only one
possibility remained; the State Constitution must be the source of the
obligation—yes; but the State Constitution as it was construed by
the United States Supreme
154
Court in this very case, in the light of the
“general principles of our political institutions.” In short
the obligation is a moral one; and this moral obligation is treated by
Marshall as having been converted into a legal one by the United States
Constitution.

However, Marshall apparently fails to find entire satisfaction in this
argument, for he next turns to the prohibition against bills of attainder
and ex post facto laws with a question which manifests disapproval
of the decision in Calder vs. Bull. Yet he hesitates to overrule
Calder vs. Bull, and, indeed, even at the very end of his opinion
he still declines to indicate clearly the basis of his decision. The
State of Georgia, he says, “was restrained” from the passing
of the rescinding act “either by general principles which are
common to our free institutions, or by particular provisions of the
Constitution of the United States.” It was not until nine years
after Fletcher vs. Peck that this ambiguity was cleared up in the
Dartmouth College case in 1819.

The case of the Trustees of Dartmouth College vs. Woodward ¹
was a New England product and
155
redolent of the soil from which it sprang. In 1754 the Reverend
Eleazar Wheelock of Connecticut had established at his own expense
a charity school for instructing Indians in the Christian religion;
and so great was his success that he felt encouraged to extend
the undertaking and to solicit donations in England. Again success
rewarded his efforts; and in 1769 Governor Wentworth of New Hampshire,
George III’s representative granted the new institution, which was
now located at Hanover, New Hampshire, a charter incorporating twelve
named persons as “The Trustees of Dartmouth College” with the
power to govern the institution, appoint its officers, and fill all
vacancies in their own body “forever.”

For many years after the Revolution, the Trustees of Dartmouth College,
several of whom were ministers, reflected the spirit of Congregationalism.
Though this form of worship occupied almost the position of a state
religion in New Hampshire, early in this period difficulties arose in the
midst of the church at Hanover. A certain Samuel Hayes, or Haze, told a
woman named Rachel Murch that her character was “as black as
Hell,” and upon Rachel’s complaint to the session, he was
“churched” for “breach of the Ninth Commandment and
156
also for a violation of his covenant agreement.” This incident
caused a rift which gradually developed into something very like a
schism in the local congregation, and this internal disagreement finally
produced a split between Eleazar’s son, Dr. John Wheelock, who was
now president of Dartmouth College, and the Trustees of the institution.
The result was that in August, 1815, the Trustees ousted Wheelock.

The quarrel had thus far involved only Calvinists and Federalists, but in
1816 a new element was brought in by the interference of the Governor of
New Hampshire, William Plumer, formerly a Federalist but now, since 1812,
the leader of the Jeffersonian party in the State. In a message to the
Legislature dated June 6, 1816, Plumer drew the attention of that body to
Dartmouth College. “All literary establishments,” said he,
“like everything human, if not duly attended to, are subject to
decay.… As it [the charter of the College] emanated from royalty,
it contained, as was natural it should, principles congenial to
monarchy,” and he cited particularly the power of the Board of
Trustees to perpetuate itself. “This last principle,” he
continued, “is hostile to the spirit and genius of a free
government. Sound policy
157
therefore requires that the mode of election should be changed and that
Trustees in future should be elected by some other body of men.…
The College was formed for the public good, not for the benefit
or emolument of its Trustees; and the right to amend and improve acts of
incorporation of this nature has been exercised by all governments,
both monarchical and republican.”

Plumer sent a copy of his message to Jefferson and received a
characteristic answer in reply: “It is replete,” said the
Republican sage, “with sound principles.… The idea that
institutions established for the use of the nation cannot be touched
nor modified, even to make them answer their end … is most
absurd.… Yet our lawyers and priests generally inculcate
this doctrine, and suppose that preceding generations held the
earth more freely than we do; had a right to impose laws on us,
unalterable by ourselves; … in fine, that the earth belongs to
the dead and not to the living.” And so, too, apparently the
majority of the Legislature believed; for by the measure which it
promptly passed, in response to Plumer’s message, the College
was made Dartmouth University, the number of its trustees was
increased to twenty-one, the appointment of the
158
additional members being given to the Governor, and a board of
overseers, also largely of gubernatorial appointment, was created to
supervise all important acts of the trustees.

The friends of the College at once denounced the measure as void under
both the State and the United States Constitution and soon made up a test
case. In order to obtain the college seal, charter, and records, a mandate
was issued early in 1817 by a local court to attach goods, to the value of
$50,000, belonging to William H. Woodward, the Secretary and Treasurer of
the “University.” This was served by attaching a chair
“valued at one dollar.” The story is also related that
authorities of the College, apprehending an argument that the institution
had already forfeited its charter on account of having ceased to
minister to Indians, sent across into Canada for some of the aborigines,
and that three were brought down the river to receive matriculation, but
becoming panic-stricken as they neared the town, leaped into the water,
swam ashore, and disappeared in the forest. Unfortunately this
interesting tale has been seriously questioned.

The attorneys of the College before the Superior Court were Jeremiah
Mason, one of the best lawyers of the day, Jeremiah Smith, a former Chief
159
Justice of New Hampshire, and Daniel Webster. These three able lawyers
argued that the amending act exceeded “the rightful ends of
legislative power,” violated the principle of the separation of
powers, and deprived the trustees of their “privileges and
immunities” contrary to the “law of the land” clause
of the State Constitution, and impaired the obligation of contracts. The
last contention stirred Woodward’s attorneys, Bartlett and Sullivan,
to ridicule. “By the same reasoning,” said the latter,
“every law must be considered in the nature of a contract, until
the Legislature would find themselves in such a labyrinth of contracts,
with the United States Constitution over their heads, that not a subject
would be left within their jurisdiction”; the argument was an
expedient of desperation, he said, a “last straw.” The
principal contention advanced in behalf of the Act was that the College
was “a public corporation,” whose “various powers,
capacities, and franchises all … were to be exercised for the
benefit of the public,” and were therefore subject to public
control. And the Court, in sustaining the Act, rested its decision on the
same ground. Chief Justice Richardson conceded the doctrine of
Fletcher vs. Peck, that the obligation of contracts
160
clause “embraced all contracts relating to private property,
whether executed or executory, and whether between individuals,
between States, or between States and individuals,” but, he urged,
“a distinction is to be taken between particular grants by the
Legislature of property or privileges to individuals for their own
benefit, and grants of power and authority to be exercised for public
purposes.” Its public character, in short, left the College and its
holdings at the disposal of the Legislature.

Of the later proceedings, involving the appeal to Washington and the
argument before Marshall, early in March, 1818, tradition has made Webster
the central and compelling figure, and to the words which it assigns him
in closing his address before the Court has largely been attributed the
great legal triumph which presently followed. The story is, at least, so
well found that the chronicler of Dartmouth College vs. Woodward
who should venture to omit it must be a bold man indeed.

The argument ended [runs the tale], Mr. Webster stood for some moments
silent before the Court, while every eye was fixed intently upon him. At
length, addressing the Chief Justice, he proceeded thus: “This, sir,
is my case. It is the
161
case … of every college in our land.… Sir, you may destroy
this little institution.… You may put it out. But if you do so,
you must carry through your work! You must extinguish, one after another,
all those greater lights of science, which, for more than a century have
thrown their radiance over our land. It is, Sir, as I have said, a small
college. And yet there are those who love it—”

Here, the feelings which he had thus far succeeded in keeping down, broke
forth, his lips quivered; his firm cheeks trembled with emotion, his eyes
filled with tears.… The court-room during these two or three
minutes presented an extraordinary spectacle. Chief Justice Marshall, with
his tall and gaunt figure bent over, as if to catch the slightest whisper,
the deep furrows of his cheek expanded with emotion, and his eyes suffused
with tears; Mr. Justice Washington at his side, with small and emaciated
frame, and countenance more like marble than I ever saw on any other human
being.… There was not one among the strong-minded men of that
assembly who could think it unmanly to weep, when he saw standing before
him the man who had made such an argument, melted into the tenderness of
a child.

Mr. Webster had now recovered his composure, and, fixing his keen eyes on
Chief Justice Marshall, said in that deep tone with which he sometimes
thrilled the heart of an audience: “Sir, I know not how others may
feel … but for myself, when I see my Alma Mater surrounded, like
Cæsar in the Senate house, by those who are reiterating stab after
stab, I would not, for my right hand, have her turn to me and say,
Et tu quoque mi fili! And thou, too, my son!”

162
Whether this extraordinary scene, first described thirty-four years
afterward by a putative witness of it, ever really occurred or not, it is
today impossible to say. ¹ But at least it would be an error to
attribute to it great importance. From the same source we have it that at
Exeter, too, Webster had made the judges weep—yet they had gone out
and decided against him. Judges do not always decide the way they weep!

Of the strictly legal part of his argument Webster himself has left us a
synopsis. Fully three-quarters of it dealt with the questions which had
been discussed by Mason before the State Supreme Court under the New
Hampshire Constitution and was largely irrelevant to the great point at
issue at Washington. Joseph Hopkinson, who was now associated with
Webster, contributed far more to the content of Marshall’s opinion;
yet he, too, left one important question entirely to the Chief
Justice’s ingenuity, as will be indicated shortly. Fortunately for
the College its opponents were ill prepared to take advantage of the
vulnerable points of its defense. For some unknown reason,
163
Bartlett and Sullivan, who had
carried the day at Exeter, had now given place to William Wirt and John
Holmes. Of these the former had just been made Attorney-General of the
United States and had no time to give to the case—indeed he admitted
that “he had hardly thought of it till it was called on.” As
for Holmes, he was a “kaleidoscopic politician” and barroom
wit, best known to contemporaries as “the noisy eulogist and
reputed protégé of Jefferson.” A remarkable strategy
that, which stood such a person up before John Marshall to plead the right
of state Legislatures to dictate the fortunes of liberal institutions!

The arguments were concluded on Thursday, the 12th of March. The next
morning the Chief Justice announced that the Court had conferred, that
there were different opinions, that some of the judges had not arrived at
a conclusion, and that consequently the cause must be continued. Webster,
however, who was apt to be much in “the know” of such matters,
ventured to place the different judges thus: “The Chief and
Washington,” he wrote his former colleague Smith, “I have no
doubt, are with us. Duvall and Todd perhaps against us; the other three
holding up—I cannot much doubt but that Story will be with us in the
164
end, and I think we have much more
than an even chance for one of the others.”

The friends of the College set promptly to work to bring over the wavering
judges. To their dismay they learned that Chancellor James Kent of New
York, whose views were known to have great weight with Justices Johnson
and Livingston, had expressed himself as convinced by Chief Justice
Richardson’s opinion that Dartmouth College was a public corporation.
Fortunately, however, a little ransacking of the records brought to light
an opinion which Kent and Livingston had both signed as early as 1803,
when they were members of the New York Council of Revision, and which took
the ground that a then pending measure in the New York Legislature for
altering the Charter of New York City violated “due process of
law.” At the same time, Charles Marsh, a friend of both Kent and
Webster, brought to the attention of the former Webster’s argument
before Marshall at Washington in March, 1818. Then came a series of
conferences at Albany in which Chancellor Kent, Justice Johnson, President
Brown of Dartmouth College, Governor Clinton, and others participated. As
a result, the Chancellor owned himself converted to the idea that the
College was a private institution.

165
The new term of court opened on Monday, February 1, 1819. William Pinkney,
who in vacation had accepted a retainer from the backers of Woodward, that
is, of the State, took his stand on the second day near the Chief Justice,
expecting to move for a reargument. Marshall, “turning his blind
eye” to the distinguished Marylander, announced that the Court had
reached a decision, plucked from his sleeve an eighteen folio manuscript
opinion, and began reading it. He held that the College was a
“private eleemosynary institution”; that its charter was the
outgrowth of a contract between the original donors and the Crown, that
the trustees represented the interest of the donors, and that the terms of
the Constitution were broad enough to cover and protect this
representative interest. The last was the only point on which he confessed
a real difficulty. The primary purpose of the constitutional clause, he
owned, was to protect “contracts the parties to which have a vested
beneficial interest” in them, whereas the trustees had no such
interest at stake. But, said he, the case is within the words of the rule,
and “must be within its operation likewise, unless there be
something in the literal construction” obviously at war with the
spirit of the
166
Constitution, which was far from the fact. For, he continued, “it
requires no very critical examination of the human mind to enable us to
determine that one great inducement to these gifts is the conviction felt
by the giver that the disposition he makes of them is immutable. All such
gifts are made in the pleasing, perhaps delusive hope, that the charity
will flow forever in the channel which the givers have marked out for it.
If every man finds in his own bosom strong evidence of the universality of
this sentiment, there can be but little reason to imagine that the framers
of our Constitution were strangers to it, and that, feeling the necessity
and policy of giving permanence and security to contracts”
generally, they yet deemed it desirable to leave this sort of contract
subject to legislative interference. Such is Marshall’s answer to
Jefferson’s outburst against “the dead hand.”

Characteristically, Marshall nowhere cites Fletcher vs. Peck in his
opinion, but he builds on the construction there made of the
“obligation of contracts” clause as clearly as do his
associates, Story and Washington, who cite it again and again in their
concurring opinion. Thus he concedes that the British Parliament, in
consequence of its unlimited power, might at any time before the
Revolution
167
have annulled the charter of the College and so have disappointed the
hopes of the donors; but, he adds, “the perfidy of the
transaction would have been universally acknowledged.” Later
on, he further admits that at the time of the Revolution the people of
New Hampshire succeeded to “the transcendent power of
Parliament,” as well as to that of the King, with the result that
a repeal of the charter before 1789 could have been contested only under
the State Constitution. “But the Constitution of the United
States,” he continues, “has imposed this additional
limitation, that the Legislature of a State shall pass no act
‘impairing the obligation of contracts.’” In short,
as in Fletcher vs. Peck, what was originally a moral obligation is
regarded as having been lifted by the Constitution into the full status of
a legal one, and this time without any assistance from “the general
principles of our free institutions.”

How is the decision of the Supreme Court in the case of Dartmouth College
vs. Woodward to be assessed today? Logically the basis of it was
repudiated by the Court itself within a decade, albeit the rule it lays
down remained unaffected. Historically it is equally without basis, for
the intention of the obligation of contracts clause, as the
168
evidence amply shows, was to protect private executory contracts, and
especially contracts of debt. ¹ In actual practice, on the other
hand, the decision produced one considerable benefit: in the words of a
contemporary critic, it put private institutions of learning and charity
out of the reach of “legislative despotism and party
violence.”

But doubtless, the critic will urge, by the same sign this decision also
put profit-seeking corporations beyond wholesome legislative control. But
is this a fact? To begin with, such a criticism is clearly misdirected. As
we have just seen, the New Hampshire Superior Court itself would have felt
that Fletcher vs. Peck left it no option but to declare the
amending act void, had Dartmouth College been, say, a gas company; and
this was in all probability the universal view of bench and bar in 1819.
Whatever blame there is should therefore be awarded the earlier decision.
But, in the second place, there does not appear after all to be so great
measure of blame to be awarded. The opinion in Dartmouth College
vs. Woodward leaves it perfectly clear that legislatures may
reserve the right to alter or repeal at will the charters they grant.
169
If therefore alterations and repeals have not been as frequent as public
policy has demanded, whose fault is it?

Perhaps, however, it will be argued that the real mischief of the decision
has consisted in its effect upon the state Legislatures themselves, the
idea being that large business interests, when offered the opportunity of
obtaining irrepealable charters, have frequently found it worth their
while to assail frail legislative virtue with irresistible temptation. The
answer to this charge is a “confession in avoidance”; the
facts alleged are true enough but hardly to the point. Yet even if they
were, what is to be said of that other not uncommon incident of
legislative history, the legislative “strike,” whereby
corporations not protected by irrepealable charters are blandly
confronted with the alternative of having their franchises mutilated or of
paying handsomely for their immunity? So the issue seems to resolve itself
into a question of taste regarding two species of legislative
“honesty.” Does one prefer that species which, in the words of
the late Speaker Reed, manifests itself in “staying bought,”
or that species which flowers in legislative blackmail? The truth of the
matter is that Marshall’s decision has been condemned by
ill-informed or
170
ill-intentioned critics for evils which are much more simply and much more
adequately explained by general human cupidity and by the power inherent
in capital. These are evils which have been experienced quite as fully in
other countries which never heard of the “obligation of
contracts” clause.

The decisions reached in Fletcher vs. Peck and Dartmouth College
vs. Woodward are important episodes in a significant phase of
American constitutional history. Partly on account of the lack of
distinction between legislative and judicial power and partly on account
of the influence of the notion of parliamentary sovereignty, legislative
bodies at the close of the eighteenth century were the sources of much
anonymous and corporate despotism. Even in England as well as in this
country the value, and indeed the possibility, of representative
institutions had been frankly challenged in the name of liberty. For the
United States the problem of making legislative power livable and
tolerable—a problem made the more acute by the multiplicity of
legislative bodies—was partly solved by the establishment of
judicial review. But this was only the first step: legislative power had
still to be defined and confined. Marshall’s audacity in invoking
generally recognized moral principles
171
against legislative sovereignty in his interpretation of the
“obligation of contracts” clause pointed the way to the
American judiciaries for the discharge of their task of defining
legislative power. The final result is to be seen today in the Supreme
Court’s concept of the police power of a State as a power not of
arbitrary but of reasonable legislation.

While Marshall was performing this service in behalf of representative
government, he was also aiding the cause of nationalism by accustoming
certain types of property to look upon the National Government as their
natural champion against the power of the States. In this connection it
should also be recalled that Gibbons vs. Ogden and Brown vs.
Maryland had advanced the principle of the exclusiveness of
Congress’s power over foreign and interstate commerce. Under the
shelter of this interpretation there developed, in the railroad and
transportation business of the country before the Civil War, a property
interest almost as extensive as that which supported the doctrine of
State Rights. Nor can it be well doubted that Marshall designed some such
result or that he aimed to prompt the reflection voiced by King of
Massachusetts on the floor of the Federal Convention. “He was
filled with astonishment that, if we
172
were convinced that every man in America was secured in all
his rights, we should be ready to sacrifice this substantial good to
the phantom of state sovereignty.”

Lastly, these decisions brought a certain theoretical support to the
Union. Marshall himself did not regard the Constitution as a compact
between the States; if a compact at all, it was a compact among
individuals, a social compact. But a great and increasing number of his
countrymen took the other view. How unsafe, then, it would have been from
the standpoint of one concerned for the integrity of the Union, to
distinguish public contracts from private on the ground that the former,
in the view of the Constitution, had less obligation!

The Menace Of State Rights

Marshall’s reading of the Constitution
may be summarized in a phrase: it transfixed State Sovereignty with a
two-edged sword, one edge of which was inscribed “National
Supremacy,” and the other “Private Rights.”
Yet State Sovereignty, ever reanimated by the democratic impulse of the
times, remained a serpent which was scotched but not killed. To be sure,
this dangerous enemy to national unity had failed to secure for the state
Legislatures the right to interpret the Constitution with authoritative
finality; but its argumentative resources were still far from exhausted,
and its political resources were steadily increasing. It was still capable
of making a notable resistance even in withdrawing itself, until it paused
in its recoil and flung itself forward in a new attack.

The connecting link between the Supreme Court and the state courts has
already been pointed out
174
to be Section XXV of the Act of 1789 organizing the Federal Judiciary.
¹ This section provides, in effect, that when a suit is brought
in a state court under a state law, and the party against whom it is
brought claims some right under a national law or treaty or under the
Constitution itself, the highest state court into which the case can
come must either sustain such a claim or consent to have its decision
reviewed, and possibly reversed, by the Supreme Court. The defenders of
State Rights at first applauded this arrangement because it left to the
local courts the privilege of sharing a jurisdiction which could have been
claimed exclusively by the Federal Courts. But when State Rights began to
grow into State Sovereignty, a different attitude developed, and in 1814
the Virginia Court of Appeals, in the case of Hunter vs. Martin,
² pronounced Section XXV void, though, in order not to encourage the
disloyal tendencies then rampant in New England, the decision was not
published until after the Treaty of Ghent, in February, 1815.

The head and front of the Virginia court at this time was Spencer Roane,
described as “the most
175
powerful politician in the State,” an ardent Jeffersonian, and an
enemy of Marshall on his own account, for had Ellsworth not resigned so
inopportunely, late in 1800, and had Jefferson had the appointment of his
successor, Roane would have been the man. His opinion in Hunter vs.
Martin disclosed personal animus in every line and was written with a
vehemence which was more likely to discomfit a grammarian than its
designed victims; but it was withal a highly ingenious plea. At one point
Roane enjoyed an advantage which would not be his today when so much more
gets into print, for the testimony of Madison’s Journal,
which was not published till 1840, is flatly against him on the main
issue. In 1814, however, the most nearly contemporaneous evidence as
to the intention of the framers of the Constitution was that of the
Federalist, which Roane stigmatizes as “a mere
newspaper publication written in the heat and fury of the battle,”
largely by “a supposed favorer of a consolidated government.”
This description not only overlooks the obvious effort of the authors of
the Federalist to allay the apprehensions of state jealousy
but it also conveniently ignores Madison’s part in its composition.
Indeed, the enfant terrible of State Rights, the Madison of
1787-88, Roane
176
would fain conceal behind the Madison of ten years later; and the
Virginia Resolutions of 1798 and the Report of 1799 he regards the
earliest “just exposition of the principles of the
Constitution.”

To the question whether the Constitution gave “any power to the
Supreme Court of the United States to reverse the judgment of the supreme
court of a State,” Roane returned an emphatic negative. His
argument may be summarized thus: The language of Article III of the
Constitution does not regard the state courts as composing a part of the
judicial organization of the General Government; and the States, being
sovereign, cannot be stripped of their power merely by implication.
Conversely, the General Government is a government over individuals and
is therefore expected to exercise its powers solely through its own
organs. To be sure, the judicial power of the United States extends to
“all cases arising” under the Constitution and the laws of
the United States. But in order to come within this description, a case
must not merely involve the construction of the Constitution or laws of
the United States; it must have been instituted in the United States
courts, and not in those of another Government. Further, the Constitution
and the acts of Congress “in
177
pursuance thereof” are
“the supreme law of the land,” and “the judges in
every State” are “bound thereby, anything in the Constitution
or laws of any State to the contrary notwithstanding.” But they are
bound as state judges and only as such; and what the Constitution is, or
what acts of Congress are “in pursuance” of it, is for them
to declare without any correction or interference by the courts of
another jurisdiction. Indeed, it is through the power of its courts to
say finally what acts of Congress are constitutional and what are not,
that the State is able to exercise its right of arresting within its
boundaries unconstitutional measures of the General Government. For the
legislative nullification of such measures proposed by the Virginia and
Kentucky resolutions is thus substituted judicial nullification by the
local judiciaries.

In Martin vs. Hunter’s Lessee, ¹ which was decided in
February, 1816, Story, speaking for the Court, undertook to answer Roane.
Roane’s major premise he met with flat denial: “It is a
mistake,” he asserts, “that the Constitution was not designed
to operate upon States in their corporate capacities. It is crowded with
provisions
178
which restrain or annul the sovereignty of the States in some of the
highest branches of their prerogatives.” The greater part of the
opinion, however, consisted of a minute examination of the language of
Article III of the Constitution. In brief, he pointed out that while
Congress “may … establish” inferior courts and,
therefore, may not, it was made imperative that the judicial power of the
United States “shall extend to all cases arising …
under” the Constitution and acts of Congress. If, therefore,
Congress should exercise its option and not establish inferior courts,
in what manner, he asked, could the purpose of the Constitution be
realized except by providing appeals from the state courts to the
United States Supreme Court? But more than that, the practical
consequences of the position taken by the Virginia Court of Appeals
effectually refuted it. That there should be as many versions of the
Constitution, laws, and treaties as there are States in the Union was
certainly never intended by the framers, nor yet that plaintiffs alone
should say when resort should be had to the national tribunals, which
were designed for the benefit of all.

If Story’s argument is defective at any point, it is in its
failure to lay down a clear definition of
179
“cases arising under this Constitution,” and this defect in
constitutional interpretation is supplied five years later in
Marshall’s opinion in Cohens vs. Virginia. ¹ The facts
of this famous case were as follows: Congress had established a lottery
for the District of Columbia, for which the Cohens had sold tickets in
Virginia. They had thus run foul of a state law prohibiting such
transactions and had been convicted of the offense in the Court of
Quarterly Sessions of Norfolk County and fined one hundred dollars.
From this judgment they were now appealing under Section XXV.

Counsel for the State of Virginia again advanced the principles which had
been developed by Roane in Hunter vs. Martin but urged in addition
that this particular appeal rendered Virginia a defendant contrary to
Article XI of the Amendments. Marshall’s summary of their argument
at the outset of his opinion is characteristic: “They
maintain,” he said, “that the nation does not possess a
department capable of restraining peaceably, and by authority of law,
any attempts which may be made by a part against the legitimate powers of
the whole, and that the government is reduced to the alternative of
submitting to such attempts or of
180
resisting them by force.
They maintain that the Constitution of the United States has provided no
tribunal for the final construction of itself or of the laws or treaties
of the nation, but that this power must be exercised in the last resort by
the courts of every State in the Union. That the Constitution, laws, and
treaties may receive as many constructions as there are States; and that
this is not a mischief, or, if a mischief, is irremediable.”

The cause of such absurdities, Marshall continued, was a conception of
State Sovereignty contradicted by the very words of the Constitution,
which assert its supremacy, and that of all acts of Congress in pursuance
of it, over all conflicting state laws whatsoever. “This,” he
proceeded to say, “is the authoritative language of the American
People, and if gentlemen please, of the American States. It marks, with
lines too strong to be mistaken, the characteristic distinction between
the Government of the Union and those of the States. The General
Government, though limited as to its objects, is supreme with respect to
those objects. This principle is a part of the Constitution, and if there
be any who deny its necessity, none can deny its authority.” Nor
was this to say that the Constitution is unalterable. “The
181
people make the Constitution, and the
people can unmake it. It is the creature of their own will, and lives only
by their will. But this supreme and irresistible power to make or unmake
resides only in the whole body of the people, not in any subdivision of
them. The attempt of any of the parts to exercise it is usurpation, and
ought to be repelled by those to whom the people have delegated their
power of repelling it.”

Once Marshall had swept aside the irrelevant notion of State Sovereignty,
he proceeded with the remainder of his argument without difficulty.
Counsel for Virginia had contended that “a case arising under the
Constitution or a law must be one in which a party comes into court to
demand something conferred on him by the Constitution or a law”; but
this construction Marshall held to be “too narrow.” “A
case in law or equity consists of the right of the one party as well as of
the other, and may truly be said to arise under the Constitution or a law
of the United States whenever its correct decision depends on the
construction of either.” From this it followed that Section XXV
was a measure necessary and proper for extending the judicial power of the
United States appellately to such cases whenever they were first
182
brought in a state court. Nor did Article XI of the Amendments nullify
the power thus conferred upon the Court in a case which the State itself
had instituted, for in such a case the appeal taken to the national
tribunal was only another stage in an action “begun and
prosecuted,” not against the State, but by the State. The
contention of Virginia was based upon the assumption that the Federal
and the State Judiciaries constituted independent systems for the
enforcement of the Constitution, the national laws, and treaties, and
such an assumption Marshall held to be erroneous. For the purposes of the
Constitution the United States “form a single nation,” and in
effecting these purposes the Government of the Union may
“legitimately control all individuals or governments within the
American territory.”

“Our opinion in the Bank Case,” Marshall had written Story
from Richmond in 1819, a few weeks after M’Culloch vs.
Maryland, “has roused the sleeping spirit of Virginia, if indeed
it ever sleeps.” Cohens vs. Virginia, in 1821, produced an
even more decided reaction. Jefferson, now in retirement, had long since
nursed his antipathy for the Federal Judiciary to the point of monomania.
It was in his eyes “a subtle corps of sappers and
183
miners constantly working underground to undermine our confederated
fabric”; and this latest assault upon the rights of the States
seemed to him, though perpetrated in the usual way, the most outrageous
of all: “An opinion is huddled up in conclave, perhaps by a
majority of one, delivered as if unanimous, and with the silent
acquiescence of lazy or timid associates, by a crafty chief judge, who
sophisticates the law to his own mind by the turn of his own
reasoning.”

Roane, Jefferson’s protégé, was still more violent
and wrote a series of unrestrained papers at this time in the Richmond
Enquirer, under the pseudonym “Algernon Sidney.”
Alluding to these, Marshall wrote Story that “their coarseness and
malignity would designate the author of them if he was not avowed.”
Marshall himself thought to answer Roane, but quickly learned that the
Virginia press was closed to that side of the question. He got his
revenge, however, by obtaining the exclusion of Roane’s effusions
from Hall’s Law Journal, an influential legal periodical
published in Philadelphia. But the personal aspect of the controversy was
the least important. “A deep design,” Marshall again wrote his
colleague, “to convert our Government into a mere league of States
has
184
taken hold of a powerful and violent party in Virginia. The attack upon
the judiciary is in fact an attack upon the Union.” Nor was
Virginia the only State where this movement was formidable, and an early
effort to repeal Section XXV was to be anticipated.

That the antijudicial movement was extending to other States was indeed
apparent. The decision in Sturges vs. Crowinshield ¹ left for
several years the impression that the States could not pass bankruptcy
laws even for future contracts and consequently afforded a widespread
grievance. Ohio had defied the ruling in M’Culloch vs.
Maryland, and her Treasurer was languishing in jail by the mandate of the
Federal Circuit Court. Kentucky had a still sharper grievance in the
decision in Green vs. Biddle, ² which invalidated a policy
she had been pursuing for nearly a quarter of a century with reference to
squatters’ holdings; and what made the decision seem the more
outrageous was the mistaken belief that it had represented the views of
only a minority of the justices.

The Legislatures of the aggrieved States were soon in full hue and cry at
the heels of the Court; and from them the agitation quickly spread to
185
Congress. ¹ On December 12, 1821, Senator Johnson of Kentucky
proposed an amendment to the Constitution which was intended to
substitute the Senate for the Supreme Court in all constitutional
cases. In his elaborate speech in support of his proposition, Johnson
criticized at length the various decisions of the Court but especially
those grounded on its interpretation of the “obligation of
contracts” clause. More than that, however, he denied in
toto the rights of the Federal Courts to pass upon the
constitutionality either of acts of Congress or of state legislative
measures. So long as judges were confined to the field of jurisprudence,
the principles of which were established and immutable, judicial
independence was all very well, said Johnson, but “the science of
politics was still in its infancy”; and in a republican system of
government its development should be entrusted to those organs which were
responsible to the people. Judges were of no better clay than other folk.
“Why, then,” he asked, “should they be considered any
more infallible, or their decisions any less subject to investigation
and revision?”
186
Furthermore, “courts,
like cities, and villages, or like legislative bodies, will sometimes have
their leaders; and it may happen that a single individual will be the
prime cause of a decision to overturn the deliberate act of a whole State
or of the United States; yet we are admonished to receive their opinions
as the ancients did the responses of the Delphic oracle, or the Jews, with
more propriety, the communications from Heaven delivered by Urim
and Thummim to the High Priest of God’s chosen people.”

For several years after this, hardly a session of Congress convened in
which there was not introduced some measure for the purpose either of
curbing the Supreme Court or of curtailing Marshall’s influence on
its decisions. One measure, for example, proposed the repeal of Section
XXV; another, the enlargement of the Court from seven to ten judges;
another, the requirement that any decision setting aside a state law must
have the concurrence of five out of seven judges; another, the allowance
of appeals to the Court on decisions adverse to the constitutionality of
state laws as well as on decisions sustaining them. Finally, in January,
1826, a bill enlarging the Court to ten judges passed the House by a vote
of 132 to 27.
187
In the Senate, Rowan of Kentucky moved an amendment requiring in all cases
the concurrence of seven of the proposed ten judges. In a speech which was
typical of current criticism of the Court he bitterly assailed the judges
for the protection they had given the Bank—that “political
juggernaut,” that “creature of the perverted corporate powers
of the Federal Government”—and he described the Court itself
as “placed above the control of the will of the people, in a state
of disconnection with them, inaccessible to the charities and sympathies
of human life.” The amendment failed, however, and in the end the
bill itself was rejected.

Yet a proposition to swamp the Court which received the approval of
four-fifths of the House of Representatives cannot be lightly dismissed as
an aberration. Was it due to a fortuitous coalescence of local grievances,
or was there a general underlying cause? That Marshall’s principles
of constitutional law did not entirely accord with the political and
economic life of the nation at this period must be admitted. The Chief
Justice was at once behind his times and ahead of them. On the one hand,
he was behind his times because he failed to appreciate adequately the
fact that
188
freedom was necessary to frontier communities in meeting their peculiar
problems—a freedom which the doctrine of State Rights promised
them—and so he had roused Kentucky’s wrath by the pedantic
and, as the Court itself was presently forced to admit, unworkable
decision in Green vs. Biddle. Then on the other hand, the
nationalism of this period was of that negative kind which was better
content to worship the Constitution than to make a really serviceable
application of the national powers. After the War of 1812 the great and
growing task which confronted the rapidly expanding nation was that of
providing adequate transportation, and had the old federalism from which
Marshall derived his doctrines been at the helm, this task would
undoubtedly have been taken over by the National Government. By
Madison’s veto of the Cumberland Road Bill, however, in 1816, this
enterprise was handed over to the States; and they eagerly seized upon
it after the opening of the Erie Canal in 1825 and the perception of the
immense success of the venture. Later, to be sure, the panic of 1837
transferred the work of railroad and canal building to the hands of
private capital but, after all, without altering greatly the
constitutional problem. For with corporations
189
to be chartered, endowed
with the power of eminent domain, and adequately regulated, local policy
obviously called for widest latitude.

Reformers are likely to count it a grievance that the courts do not trip
over themselves in an endeavor to keep abreast with what is called
“progress.” But the true function of courts is not to reform,
but to maintain a definite status quo. The Constitution defined a
status quo the fundamental principles of which Marshall considered
sacred. At the same time, even his obstinate loyalty to “the
intentions of the framers” was not impervious to facts nor unwilling
to come to terms with them, and a growing number of his associates were
ready to go considerably farther.

While the agitation in Congress against the Court was at its height,
Marshall handed down his decision in Gibbons vs. Ogden, and shortly
after, that in Osborn vs. United States Bank. ¹ In the latter
case, which was initiated by the Bank, the plaintiff in error, who was
Treasurer of the State of Ohio, brought forward Article XI of the
Amendments to the Constitution as a bar to the action, but Marshall held
that this Amendment did not prevent a state officer from being sued for
acts
190
done in excess of his rightful powers. He also reiterated and amplified
the principles of M’Culloch vs. Maryland. Three years later
he gave his opinions in Brown vs. Maryland and Ogden vs.
Saunders. ² In the former Marshall’s opinion was dissented
from by a single associate, but in the latter the Chief Justice found
himself for the first and only time in his entire incumbency in the
rôle of dissenter in a constitutional case. The decision of the
majority, speaking through Justice Washington, laid down the principle
that the obligation of a private executory contract cannot be said to be
“impaired” in a constitutional sense by the adverse effect of
legislative acts antedating the making of the contract; and thus the
dangerous ambiguity of Sturges vs. Crowinshield was finally
resolved in favor of the States.

In the course of the next few years the Court, speaking usually through
the Chief Justice, decided several cases on principles favoring local
interest, sometimes indeed curtailing the operation of previously
established principles. For example, the Court held that, in the absence
of specific legislation by Congress to the contrary, a State may erect a
dam across navigable waters of the
191
United States for local purposes ¹; that the mere grant of a charter
to a corporation does not prevent the State from taxing such corporation
on its franchises, notwithstanding that “the power to tax involves
the power to destroy” ²; that the Federal Courts have no right
to set a state enactment aside on the ground that it had divested vested
rights, unless it had done so through impairing the obligation of
contracts ³; that the first eight Amendments to the Constitution do
not limit state power, but only Federal power
4; that decisions adverse to state laws
must have the concurrence of a majority of the Court.
5

Despite all these concessions which he made to the rising spirit of the
times, Marshall found his last years to be among the most trying of his
chief justiceship. Jackson, who was now President, felt himself the chosen
organ of “the People’s will” and was not disposed to
regard as binding anybody’s interpretation of the Constitution
except his own. The West and Southwest, the pocket boroughs of
192
the new Administration, were now deep in
land speculation and clamorous for financial expedients which the
Constitution banned. John Taylor of Caroline had just finished his task of
defining the principles of constitutional construction which were
requisite to convert the Union into a league of States and had laid his
work at the feet of Calhoun. Taylor was a candid man and frankly owned the
historical difficulties in the way of carrying out his purpose; but
Calhoun’s less scrupulous dialectic swept aside every obstacle that
stood in the way of attributing to the States the completest sovereignty.

In Craig vs. Missouri (1830) ¹ the Court was confronted with
a case in which a State had sought to evade the prohibition of the
Constitution against the emission of bills of credit by establishing loan
offices with authority to issue loan certificates intended to circulate
generally in dimensions of fifty cents to ten dollars and to be receivable
for taxes. A plainer violation of the Constitution would be difficult to
imagine. Yet Marshall’s decision setting aside the act was followed
by a renewed effort to procure the repeal of Section XXV of the Judiciary
Act. The discussion of the proposal
193
threw into interesting contrast two points of view. The
opponents of this section insisted upon regarding constitutional cases as
controversies between the United States and the States in their corporate
capacities; its advocates, on the other hand, treated the section as an
indispensable safeguard of private rights. In the end, the latter point of
view prevailed: the bill to repeal, which had come up in the House, was
rejected by a vote of 138 to 51, and of the latter number all but six came
from Southern States, and more than half of them from natives of Virginia.

Meantime the Supreme Court had become involved in controversy with Georgia
on account of a series of acts which that State had passed extending its
jurisdiction over the Cherokee Indians in violation of the national
treaties with this tribe. In Corn Tassel’s case, the appellant from
the Georgia court to the United States Supreme Court was hanged in
defiance of a writ of error from the Court. In Cherokee Nation vs.
Georgia, the Court itself held that it had no jurisdiction. Finally, in
1832, in Worcester vs. Georgia, ¹ the Court was confronted
squarely with the question of the validity of the Georgia acts. The State
put in no appearance,
194
the acts were pronounced void, and the decision went unenforced. When
Jackson was asked what effort the Executive Department would make to back
up the Court’s mandate, he is reported to have said: “John
Marshall has made his decision; now let him enforce it.”

Marshall began to see the Constitution and the Union crumbling before him.
“I yield slowly and reluctantly to the conviction,” he wrote
Story, late in 1832, “that our Constitution cannot last.…
Our opinions [in the South] are incompatible with a united government
even among ourselves. The Union has been prolonged this far by
miracles.” A personal consideration sharpened his apprehension.
He saw old age at hand and was determined “not to hazard the
disgrace of continuing in office a mere inefficient pageant,” but
at the same time he desired some guarantee of the character
of the person who was to succeed him. At first he thought of remaining
until after the election of 1832; but Jackson’s reëlection made
him relinquish altogether the idea of resignation.

A few months later, in consequence of the Administration’s vigorous
measures against nullification in South Carolina, things were temporarily
wearing a brighter aspect. Yet that the fundamental elements
195
of the situation had been thereby altered, Marshall did not believe.
“To men who think as you and I do,” he wrote Story, toward
the end of 1834, “the present is gloomy enough; and the future
presents no cheering prospect. In the South … those who support
the Executive do not support the Government. They sustain the personal
power of the President, but labor incessantly to impair the legitimate
powers of the Government. Those who oppose the rash and violent measures
of the Executive … are generally the bitter enemies of
Constitutional Government. Many of them are the avowed advocates of a
league; and those who do not go the whole length, go a great part of the
way. What can we hope for in such circumstances?”

Yet there was one respect in which the significance of Marshall’s
achievement must have been as clear to himself as it was to his
contemporaries. He had failed for the time being to establish his
definition of national power, it is true, but he had made the Supreme
Court one of the great political forces of the country. The very ferocity
with which the pretensions of the Court were assailed in certain quarters
was indirect proof of its power, but there was also direct testimony of a
high order.
196
In 1830 Alexis de Tocqueville, the French statesman, visited the United
States just as the rough frontier democracy was coming into its own. Only
through the Supreme Court, in his opinion, were the forces of renewal and
growth thus liberated to be kept within the bounds set by existing
institutions. “The peace, the prosperity, and the very existence of
the Union,” he wrote, “are vested in the hands of the seven
Federal judges. Without them the Constitution would be a dead letter: the
Executive appeals to them for assistance against the encroachments of the
legislative power; the Legislature demands their protection against the
assaults of the Executive; they defend the Union from the disobedience of
the States, the States from the exaggerated claims of the Union, the
public interest against private interests and the conservative spirit of
stability against the fickleness of the democracy.” The contrast
between these observations and the disheartened words in which Jay
declined renomination to the chief justiceship in 1801 gives perhaps a
fair measure of Marshall’s accomplishment.

Of the implications of the accomplishment of the great Chief Justice for
the political life of the country, let De Tocqueville speak again:
“Scarcely any
197
political question arises in the United States which is not resolved
sooner, or later, into a judicial question. Hence all parties are obliged
to borrow in their daily controversies the ideas, and even the language
peculiar to judicial proceedings.… The language of the law thus
becomes, in some measure, a vulgar tongue; the spirit of law, which is
produced in the schools and courts of justice, gradually penetrates beyond
their walls into the bosom of society, where it descends to the lowest
classes, so that at last the whole people contract the habits and the
tastes of the judicial magistrate.”

In one respect, however, De Tocqueville erred. American
“legalism,” that curious infusion of politics with
jurisprudence, that mutual consultation of public opinion and established
principles, which in the past has so characterized the course of
discussion and legislation in America, is traceable to origins long
antedating Marshall’s chief justiceship. On the other hand, there
is no public career in American history which ever built so largely upon
this pervasive trait of the national outlook as did Marshall’s, or
which has contributed so much to render it effective in palpable
institutions.

Among Friends And Neighbors

It is a circumstance of no little importance
that the founder of American Constitutional Law was in tastes and habit
of life a simple countryman. To the establishment of National Supremacy
and the Sanctity of Contracts Marshall brought the support not only of
his office and his command of the art of judicial reasoning but also the
whole-souled democracy and unpretentiousness of the fields. And it must
be borne in mind that Marshall was on view before his contemporaries as
a private citizen rather more of the time, perhaps, than as Chief Justice.
His official career was, in truth, a somewhat leisurely one. Until 1827
the term at Washington rarely lasted over six weeks and subsequently not
over ten weeks. In the course of his thirty-four years on the Bench, the
Court handed down opinions in over 1100 cases, which is probably about
four times the number of
199
opinions now handed down at a single term; and of this number Marshall
spoke for the Court in about half the cases. Toward the middle of March,
he left Washington for Richmond, and on the 22d of May opened court in his
own circuit. Then, three weeks later, if the docket permitted, he went on
to Raleigh to hold court there for a few days. The summers he usually
spent on the estate which he inherited from his father at Fauquier, or
else he went higher up into the mountains to escape malaria. But by the
22d of November at the latest he was back once more in Richmond for court,
and at the end of December for a second brief term he again drove to
Raleigh in his high-wheeled gig. With his return to Washington early in
February he completed the round of his judicial year.

The entire lack of pageantry and circumstance which attended these
journeyings of his is nowhere more gaily revealed than in the following
letter to his wife, which is now published for the first time through the
kindness of Mr. Beveridge:

Rawleigh,
Jan.y
2d, 1803.

My dearest Polly

You will laugh at my vexation when you hear the various calamities that
have befallen me. In the first place when I came to review my funds, I had
the mortification
200
to discover that I had lost 15 silver dollars out of my
waist coat pocket. They had worn through the various mendings the pocket
had sustained and sought their liberty in the sands of Carolina.

I determined not to vex myself with what could not be remedied &
ordered Peter to take out my cloaths that I might dress for court when to
my astonishment & grief after fumbling several minutes in the
portmanteau, starting [sic] at vacancy, & sweating most profusely he
turned to me with the doleful tidings that I had no pair of breeches. You
may be sure this piece of intelligence was not very graciously received;
however, after a little scolding, I determined to make the best of my
situation & immediately set out to get a pair made.

I thought I should be a sans-culotte only one day & that for the
residue of the term I might be well enough dressed for the appearance on
the first day to be forgotten.

But, the greatest of evils, I found, was followed by still greater. Not a
taylor in town could be prevailed on to work for me. They were all so busy
that it was impossible to attend to my wants however pressing they might
be, & I have the extreme mortification to pass the whole time without
that important article of dress I have mentioned. I have no alleviation
for this misfortune but the hope that I shall be enabled in four or five
days to commence my journey homeward & that I shall have the pleasure
of seeing you & our dear children in eight or nine days after this
reaches you.

In the meantime, I flatter myself that you are well and happy.

Adieu my dearest Polly

I am your own affectionate,

J. Marshall.

201
Marshall erected his Richmond home, called “Shockoe Hill,” in
1793 on a plot of ground which he had purchased four years earlier. Here,
as his eulogist has said, was “the scene of his real
triumphs.” At an early date his wife became a nervous invalid, and
his devotion to her brought out all the finest qualities of his sound and
tender nature. “It is,” says Mr. Beveridge, “the most
marked characteristic of his entire private life and is the one thing
which differentiates him sharply from the most eminent men of that heroic
but socially free-and-easy period.” From his association with his
wife Marshall derived, moreover, an opinion of the sex “as the
friends, the companions, and the equals of man” which may be said to
have furnished one of his few points of sympathetic contact with
American political radicalism in his later years. The satirist of woman,
says Story, “found no sympathy in his bosom,” and “he
was still farther above the commonplace flatteries by which frivolity
seeks to administer aliment to personal vanity, or vice to make its
approaches for baser purposes. He spoke to the sex when present, as he
spoke of them when absent, in language of just appeal to their
understandings, their tastes, and their duties.”

202
Marshall’s relations with his neighbors were the happiest possible.
Every week, when his judicial duties permitted or the more
“laborious relaxation” of directing his farm did not call
him away, he attended the meetings of the Barbecue Club in a fine grove
just outside the city, to indulge in his favorite diversion of quoits.
The Club consisted of thirty of the most prominent men of Richmond,
judges, lawyers, doctors, clergymen, and merchants. To quoits was added
the inducement of an excellent repast of which roast pig was the
pièce de résistance. Then followed a dessert of
fruit and melons, while throughout a generous stock of porter, toddy,
and of punch “from which water was carefully excluded,”
was always available to relieve thirst. An entertaining account of a
meeting of the Club at which Marshall and his friend Wickham were the
caterers has been thus preserved for us:

At the table Marshall announced that at the last meeting two members had
introduced politics, a forbidden subject, and had been fined a basket of
champagne, and that this was now produced, as a warning to evil-doers; as
the club seldom drank this article, they had no champagne glasses, and
must drink it in tumblers. Those who played quoits retired after a while
for a game. Most of the members had smooth, highly polished brass quoits.
But Marshall’s were large, rough, heavy, and
203
of iron, such as few of the members could throw well from hub to hub.
Marshall himself threw them with great success and accuracy, and
often “rang the meg.” On this occasion Marshall and the
Rev. Mr. Blair led the two parties of players. Marshall played first,
and rang the meg. Parson Blair did the same, and his quoit came down
plumply on top of Marshall’s. There was uproarious applause,
which drew out all the others from the dinner; and then came an animated
controversy as to what should be the effect of this exploit. They all
returned to the table, had another bottle of champagne, and listened to
arguments, one from Marshall, pro se, and one from Wickham for Parson
Blair. [Marshall’s] argument is a humorous companion piece to any
one of his elaborate judicial opinions. He began by formulating the
question, “Who is winner when the adversary quoits are on the meg
at the same time?” He then stated the facts, and remarked that the
question was one of the true construction and applications of the rules
of the game. The first one ringing the meg has the advantage. No other
can succeed who does not begin by displacing this first one. The parson,
he willingly allowed, deserves to rise higher and higher in
everybody’s esteem; but then he mustn’t do it by getting on
another’s back in this fashion. That is more like leapfrog than
quoits. Then, again, the legal maxim, Cujus est solum, ejus est usque
ad cœlum—his own right as first occupant extends to the
vault of heaven; no opponent can gain any advantage by squatting on his
back. He must either bring a writ of ejectment, or drive him out vi
et armis. And then, after further argument of the same sort, he
asked judgment, and sat down amidst great applause.
204

Mr. Wickham then rose, and made an argument of a similar pattern.
No rule, he said, requires an impossibility. Mr. Marshall’s
quoit is twice as large as any other; and yet it flies from his
arm like the iron ball at the Grecian games from the arm of Ajax. It is
impossible for an ordinary quoit to move it. With much more of the same
sort, he contended that it was a drawn game. After very animated voting,
designed to keep up the uncertainty as long as possible, it was so
decided. Another trial was had, and Marshall clearly won. ¹

Years later Chester Harding, who once painted Marshall, visited the Club.
“I watched,” says he, “for the coming of the old chief.
He soon approached, with his coat on his arm and his hat in his hand,
which he was using as a fan. He walked directly up to a large bowl of
mint julep which had been prepared, and drank off a tumblerful, smacking
his lips, and then turned to the company with a cheerful ‘How are
you, gentlemen?’ He was looked upon as the best pitcher of the
party and could throw heavier quoits than any other member of the club.
The game began with great animation. There were several ties; and before
long I saw the great Chief Justice of the United States
205
down on his knees measuring the contested distance with a straw, with
as much earnestness as if it had been a point of law; and if he proved
to be in the right, the woods would ring with his triumphant
shout.” ¹ What Wellesley remarked of the younger Pitt may be
repeated of Marshall, that “unconscious of his superiority,”
he “plunged heedlessly into the mirth of the hour” and was
endowed with “a gay heart and social spirit beyond any man of his
time.”

As a hero of anecdotes Marshall almost rivals Lincoln. Many of the tales
preserved are doubtless apocryphal, but this qualification hardly lessens
their value as contemporary impressions of his character and habits. They
show for what sort of anecdotes his familiarly known personality had an
affinity.

The Chief Justice’s entire freedom from ostentation and the
gentleness with which he could rebuke it in others is illustrated in a
story often told. Going early to the market one morning he came upon a
youth who was fuming and swearing because he could get no one to carry
his turkey home for him. Marshall proffered his services. Arriving at
the house the young man asked, “What shall I
206
pay you?” “Oh, nothing,” was the reply; “it was
on my way, and no trouble.” As Marshall walked away, the young man
inquired of a bystander, “Who is that polite old man that brought
home my turkey for me?” “That,” was the answer,
“is Judge Marshall, Chief Justice of the United States.”

Of the same general character is an anecdote which has to do with a much
earlier period when Marshall was still a practicing attorney. An old
farmer who was involved in a lawsuit came to Richmond to attend its trial.
“Who is the best lawyer in Richmond?” he asked of his host,
the innkeeper of the Eagle tavern. The latter pointed to a tall, ungainly,
bareheaded man who had just passed, eating cherries from his hat and
exchanging jests with other loiterers like himself. “That is
he,” said the innkeeper; “John Marshall is his name.”
But the old countryman, who had a hundred dollars in his pocket,
proposed to spend it on something more showy and employed a solemn,
black-coated, and much powdered bigwig. The latter turned out in
due course to be a splendid illustration of the proverb that “fine
feathers do not make fine birds.” This the crestfallen rustic soon
discovered. Meantime he had listened with amazement and growing admiration
to an argument by
207
Marshall in a cause which came on before his own. He now
went up to Marshall and, explaining his difficulty, offered him the five
dollars which the exactions of the first attorney still left him, and
besought his aid. With a humorous remark about the power of a black coat
and powdered wig Marshall good-naturedly accepted the retainer.

The religious bent of the Chief Justice’s mind is illustrated in
another story, which tells of his arriving toward the close of day at an
inn in one of the counties of Virginia, and falling in with some young
men who presently began ardently to debate the question of the truth or
falsity of the Christian religion. From six until eleven o’clock the
young theologians argued keenly and ably on both sides of the question.
Finally one of the bolder spirits exclaimed that it was impossible to
overcome prejudices of long standing and, turning to the silent visitor,
asked: “Well, my old gentleman, what do you think of these
things?” To their amazement the “old gentleman” replied
for an hour in an eloquent and convincing defense of the Christian
religion, in which he answered in order every objection the young men had
uttered. So impressive was the simplicity and loftiness of his discourse
that the erstwhile critics were completely silenced.

208
In truth, Marshall’s was a reverent mind, and it sprang
instinctively to the defense of ideas and institutions whose value had
been tested. Unfortunately, in his Life of Washington Marshall
seems to have given this propensity a somewhat undue scope. There were
external difficulties in dealing with such a subject apart from those
inherent in a great biography, and Marshall’s volumes proved to be
a general disappointment. Still hard pressed for funds wherewith to meet
his Fairfax investment, he undertook this work shortly after he became
Chief Justice, at the urgent solicitation of Judge Bushrod Washington,
the literary executor of his
famous uncle.
Marshall had hoped to make this incursion into the field of
letters a very remunerative one, for he and Washington had counted on some
thirty thousand subscribers for the work. The publishers however,
succeeded in obtaining only about a quarter of that number, owing partly
at least to the fact that Jefferson had no sooner learned of the
enterprise than his jealous mind conceived the idea that the biography
must be intended for partisan purposes. He accordingly gave the alarm to
the Republican press and forbade the Federal postmasters to take orders
for the book. At the same time he asked his friend Joel Barlow, then
209
residing in Paris, to prepare a counterblast, for which he declared
himself to be “rich in materials.” The author of the
Columbiad, however, declined this hazardous commission,
possibly because he was unwilling to stand sponsor for the malicious
recitals that afterwards saw light in the pages of the Anas.

But apart from this external opposition to the biography, Marshall found a
source of even keener disappointment in the literary defects due to the
haste with which he had done his work. The first three volumes had
appeared in 1804, the fourth in 1805, and the fifth, which is much the
best, in 1807. Republican critics dwelt with no light hand upon the
deficiencies of these volumes, and Marshall himself sadly owned that the
“inelegancies” in the first were astonishingly numerous. But
the shortcomings of the work as a satisfactory biography are more notable
than its lapses in diction. By a design apparently meant to rival the
improvisations of Tristram Shandy, the birth of the hero is
postponed for an entire volume, in which the author traces the settlement
of the country. At the opening of the second volume “the birth of
young Mr. Washington” is gravely announced, to be followed by an
account of the Father of his Country so devoid of intimate touches that it
might easily have
210
been written by one who had never seen George Washington.

Nevertheless, these pages of Marshall’s do not lack acute historical
judgments. He points out, for instance, that, if the Revolution had ended
before the Articles of Confederation were adopted, permanent disunion
might have ensued and that, faulty as it was, the Confederation
“preserved the idea of Union until the good sense of the Nation
adopted a more efficient system.” Again, in his account of the
events leading up to the Convention of 1787, Marshall rightly emphasizes
facts which subsequent writers have generally passed by with hardly any
mention, so that students may read this work with profit even today. But
the chief importance of these volumes lay, after all, in the additional
power which the author himself derived from the labor of their
preparation. In so extensive an undertaking Marshall received valuable
training for his later task of laying the foundations of Constitutional
Law in America. One of his chief assets on the bench, as we have already
seen, was his complete confidence in his own knowledge of the intentions
of the Constitution—a confidence which was grounded in the
consciousness that he had written the history of the
Constitution’s framing.

211
Most of Marshall’s correspondence, which is not voluminous, deals
with politics or legal matters. But there are letters in which the
personal side of the Chief Justice is revealed. He gives his friend
Story a touching account of the loss of two of his children. He praises
old friends and laments his inability to make new ones. He commends Jane
Austen, whose novels he has just finished reading. “Her
flights,” he remarks, “are not lofty, she does not soar on
eagle’s wings, but she is pleasing, interesting, equable, and yet
amusing.” He laments that he “can no longer debate and yet
cannot apply his mind to anything else.” One recalls Darwin’s
similar lament that his scientific work had deprived him of all liking
for poetry.

The following letter, which Marshall wrote the year before his death to
his grandson, a lad of fourteen or fifteen, is interesting for its views
on a variety of subjects and is especially pleasing for its characteristic
freedom from condescension:

I had yesterday the pleasure of receiving your letter of the 29th of
November, and am quite pleased with the course of study you are pursuing.
Proficiency in Greek and Latin is indispensable to an accomplished
scholar, and may be of great real advantage in our progress through human
life. Cicero deserves to be studied still more for his talents than for
the improvement in language
212
to be derived from reading him. He was unquestionably, with the single
exception of Demosthenes, the greatest orator among the ancients. He was
too a profound Philosopher. His “de officiis” is among the
most valuable treatises I have ever seen in the Latin language.

History is among the most essential departments of knowledge; and, to an
American, the histories of England and of the United States are most
instructive. Every man ought to be intimately acquainted with the history
of his own country. Those of England and of the United States are so
closely connected that the former seems to be introductory to the latter.
They form one whole. Hume, as far as he goes, to the revolution of 1688,
is generally thought the best Historian of England. Others have continued
his narrative to a late period, and it will be necessary to read them
also.

There is no exercise of the mind from which more valuable improvement is
to be drawn than from composition. In every situation of life the result
of early practice will be valuable. Both in speaking and writing, the
early habit of arranging our thoughts with regularity, so as to point them
to the object to be proved, will be of great advantage. In both, clearness
and precision are most essential qualities. The man who by seeking
embellishment hazards confusion, is greatly mistaken in what constitutes
good writing. The meaning ought never to be mistaken. Indeed the readers
should never be obliged to search for it. The writer should always express
himself so clearly as to make it impossible to misunderstand him. He
should be comprehended without an effort.

The first step towards writing and speaking clearly is
213
to think clearly.
Let the subject be perfectly understood, and a man will soon find words to
convey his meaning to others. Blair, whose lectures are greatly and justly
admired, advises a practice well worthy of being observed. It is to take a
page of some approved writer and read it over repeatedly until the matter,
not the words, be fully impressed on the mind. Then write, in your own
language, the same matter. A comparison of the one with the other will
enable you to remark and correct your own defects. This course may be
pursued after having made some progress in composition. In the
commencement, the student ought carefully to reperuse what he has written,
correct, in the first instance, every error of orthography and grammar. A
mistake in either is unpardonable. Afterwards revise and improve the
language.

I am pleased with both your pieces of composition. The subjects are well
chosen and of the deepest interest. Happiness is pursued by all, though
too many mistake the road by which the greatest good is to be successfully
followed. Its abode is not always in the palace or the cottage. Its
residence is the human heart, and its inseparable companion is a quiet
conscience. Of this, Religion is the surest and safest foundation. The
individual who turns his thoughts frequently to an omnipotent omniscient
and all perfect being, who feels his dependence on, and his infinite
obligations to that being will avoid that course of life which must harrow
up the conscience.

Marshall was usually most scrupulous to steer clear of partisan politics
both in his letters and in
214
his conversation, so that on one occasion he was much aroused by a
newspaper article which had represented him “as using language
which could be uttered only by an angry party man.” But on
political issues of a broader nature he expressed himself freely in the
strict privacy of correspondence at least, and sometimes identified
himself with public movements, especially in his home State. For instance,
he favored the gradual abolition of slavery by private emancipation rather
than by governmental action. In 1823 he became first president of the
Richmond branch of the Colonization Society; five years later he presided
over a convention to promote internal improvements in Virginia; and in
1829 he took a prominent part in the deliberations of the State
Constitutional Convention.

In the broader matters of national concern his political creed was in
thorough agreement with his constitutional doctrine. Nullification he
denounced as “wicked folly,” and he warmly applauded
Jackson’s proclamation of warning to South Carolina. But
Marshall regarded with dismay Jackson’s aggrandizement of
the executive branch, and the one adverse criticism he has left of
the Constitution is of the method provided for the election of the
President. In this connection
215
he wrote in 1830: “My own private mind has been slowly and
reluctantly advancing to the belief that the present mode of
choosing the Chief Magistrate threatens the most serious danger
to the public happiness. The passions of men are influenced to so
fearful an extent, large masses are so embittered against each other,
that I dread the consequences.… Age is, perhaps, unreasonably
timid. Certain it is that I now dread consequences that I once thought
imaginary. I feel disposed to take refuge under some less turbulent
and less dangerous mode of choosing the Chief Magistrate.” Then
follows the suggestion that the people of the United States elect a body
of persons equal in number to one-third of the Senate and that the
President be chosen from among this body by lot. Marshall’s
suggestion seems absurd enough today, but it should be remembered that
his fears of national disorder as a result of strong party feeling at
the time of presidential elections were thoroughly realized in 1860
when Lincoln’s election led to secession and civil war, and that
sixteen years later, in the Hayes-Tilden contest, a second dangerous
crisis was narrowly averted.

In the campaign of 1832 Marshall espoused privately the cause of Clay and
the United States
216
Bank, and could not see why Virginia should not be of the same opinion.
Writing to Story in the midst of the campaign he said: “We are
up to the chin in politics. Virginia was always insane enough to
be opposed to the Bank of the United States, and therefore hurrahs for the
veto. But we are a little doubtful how it may work in Pennsylvania. It is
not difficult to account for the part New York may take. She has sagacity
enough to see her interests in putting down the present Bank. Her
mercantile position gives her a control, a commanding control, over the
currency and the exchanges of the country, if there be no Bank of the
United States. Going for herself she may approve this policy; but Virginia
ought not to drudge for her.” To the end of his days Marshall seems
to have refused to recognize that the South had a sectional interest to
protect, or at least that Virginia’s interests were sectional; her
attachment to State Rights he assigned to the baneful influence of
Jeffersonianism.

The year 1831 dealt Marshall two severe blows. In that year his robust
constitution manifested the first signs of impairment, and he was forced
to undergo an operation for stone. In the days before anæsthetics,
such an operation, especially in the
217
case of a person of his advanced years,
was attended with great peril. He faced the ordeal with the utmost
composure. His physician tells of visiting Marshall the morning he was to
submit to the knife and of finding him at breakfast:

He received me with a pleasant smile … and said, “Well,
Doctor, you find me taking breakfast, and I assure you I have had a
good one. I thought it very probable that this might be my last chance,
and therefore I was determined to enjoy it and eat heartily.”
… He said that he had not the slightest desire to live,
laboring under the sufferings to which he was subjected, and that
he was perfectly ready to take all the chances of an operation, and
he knew there were many against him.… After he had finished
his breakfast, I administered him some medicine; he then inquired at
what hour the operation would be performed. I mentioned the hour of
eleven. He said “Very well; do you wish me for any other purpose,
or may I lie down and go to sleep?” I was a good deal surprised
at this question, but told him that if he could sleep it would be very
desirable. He immediately placed himself upon the bed and fell into a
profound sleep, and continued so until I was obliged to rouse him in
order to undergo the operation. He exhibited the same fortitude,
scarcely uttering a murmur throughout the whole procedure which,
from the nature of his complaint, was necessarily tedious.

The death of his wife on Christmas Day of the same year was a heavy blow.
Despite her
218
invalidism, she was a woman of much force of character and
many graces of mind, to which Marshall rendered touching tribute in a
quaint eulogy composed for one of his sons on the first anniversary of her
death:

Her judgment was so sound and so safe that I have often relied upon it in
situations of some perplexity.… Though serious as well as gentle in
her deportment, she possessed a good deal of chaste, delicate, and playful
wit, and if she permitted herself to indulge this talent, told her little
story with grace, and could mimic very successfully the peculiarities of
the person who was its subject. She had a fine taste for belle-lettre
reading.… This quality, by improving her talents for conversation,
contributed not inconsiderably to make her a most desirable and agreeable
companion. It beguiled many of those winter evenings during which her
protracted ill health and her feeble nervous system confined us entirely
to each other. I shall never cease to look back on them with deep interest
and regret.… She felt deeply the distress of others, and indulged
the feeling liberally on objects she believed to be meritorious.…
She was a firm believer in the faith inculcated by the Church in which
she was bred, but her soft and gentle temper was incapable of adopting the
gloomy and austere dogmas which some of its professors have sought to
engraft on it.

Marshall believed women were the intellectual equals of men, because he
was convinced that they
219
possessed in a high degree “those qualities
which make up the sum of human happiness and transform the domestic
fireside into an elysium,” and not because he thought they could
compete on even terms in the usual activities of men.

Despite these “buffetings of fate,” the Chief Justice was
back in Washington in attendance upon Court in February, 1832, and daily
walked several miles to and from the Capitol. In the following January
his health appeared to be completely restored. “He seemed,”
says Story, with whom he messed, along with Justices Thompson and Duval,
“to revive, and enjoy anew his green old age.” This year
Marshall had the gratification of receiving the tribute of Story’s
magnificent dedication of his Commentaries to him. With
characteristic modesty, the aged Chief Justice expressed the fear that
his admirer had “consulted a partial friendship farther than your
deliberate judgment will approve.” He was especially interested in
the copy intended for the schools, but he felt that “south of the
Potomac, where it is most wanted it will be least used,” for, he
continued, “it is a Mohammedan rule never to dispute with the
ignorant, and we of the true faith in the South adjure the contamination
of infidel political works. It
220
would give our orthodox nullifyer a fever
to read the heresies of your Commentaries. A whole school might be
infected by the atmosphere of a single copy should it be placed on one
of the shelves of a bookcase.”

Marshall sat on the Bench for the last time in the January term of 1835.
Miss Harriet Martineau, who was in Washington during that winter, has left
a striking picture of the Chief Justice as he appeared in these last days.
“How delighted,” she writes, “we were to see Judge Story
bring in the tall, majestic, bright-eyed old man,—old by chronology,
by the lines on his composed face, and by his services to the republic;
but so dignified, so fresh, so present to the time, that no compassionate
consideration for age dared mix with the contemplation of him.”

Marshall was, however, a very sick man, suffering constant pain from a
badly diseased liver. The ailment was greatly aggravated, moreover, by
“severe contusions” which he received while returning in the
stage from Washington to Richmond. In June he went a second time to
Philadelphia for medical assistance, but his case was soon seen to be
hopeless. He awaited
death with his usual serenity, and two days before it came he composed the
221
modest epitaph which appeared upon his tomb: John
Marshall, son of Thomas and Mary Marshall, was born on the 24th of
September, 1755, Intermarried with Mary Willis Ambler the 3d of January,
1783, departed this life the — day of —, 18—.
He died the evening of July 6, 1835, surrounded by three of his sons. The
death of the fourth, from an accident while he was hurrying to his
father’s bedside, had been kept from him. He left also a daughter
and numerous grandchildren.

Marshall’s will is dated April 9, 1832, and has five codicils of
subsequent dates attached. After certain donations to grandsons named John
and Thomas, the estate, consisting chiefly of his portion of the Fairfax
purchase, was to be divided equally among his five children. To the
daughter and her descendants were also secured one hundred shares of stock
which his wife had held in the Bank of the United States, but in 1835
these were probably of little value. His faithful body servant Robin was
to be emancipated and, if he chose, sent to Liberia, in which event he
should receive one hundred dollars. But if he preferred to remain in the
Commonwealth, he should receive but fifty dollars; and if it turned out to
“be impracticable to liberate
222
him consistently with law and his own inclination,” he was to
select his master from among the children, “that he may always
be treated as a faithful meritorious servant.”

The Chief Justice’s death evoked many eloquent tributes to his public
services and private excellencies, but none more just and appreciative
than that of the officers of court and members of the bar of his own
circuit who knew him most intimately. It reads as follows:

John Marshall, late Chief Justice of the United States, having departed
this life since the last Term of the Federal Circuit Court for this
district, the Bench, Bar, and Officers of the Court, assembled at the
present Term, embrace the first opportunity to express their profound and
heartfelt respect for the memory of the venerable judge, who presided in
this Court for thirty-five years—with such remarkable diligence in
office, that, until he was disabled by the disease which removed him from
life, he was never known to be absent from the bench, during term time,
even for a day,—with such indulgence to counsel and suitors, that
every body’s convenience was consulted, but his own,—with a
dignity, sustained without effort, and, apparently, without care to
sustain it, to which all men were solicitous to pay due
respect,—with such profound sagacity, such quick penetration, such
acuteness, clearness, strength, and comprehension of mind, that in his
hand, the most complicated causes were plain, the weightiest
223
and most difficult, easy and light,—with such striking impartiality
and justice, and a judgment so sure, as to inspire universal confidence,
so that few appeals were ever taken from his decisions, during his long
administration of justice in the Court, and those only in cases where he
himself expressed doubt,—with such modesty, that he seemed wholly
unconscious of his own gigantic powers,—with such equanimity, such
benignity of temper, such amenity of manners, that not only none of the
judges, who sat with him on the bench, but no member of the bar, no
officer of the court, no juror, no witness, no suitor, in a single
instance, ever found or imagined, in any thing said or done, or omitted
by him, the slightest cause of offence.

His private life was worthy of the exalted character he sustained in
public station. The unaffected simplicity of his manners; the spotless
purity of his morals; his social, gentle, cheerful disposition; his
habitual self-denial, and boundless generosity towards others; the
strength and constancy of his attachments; his kindness to his friends and
neighbours; his exemplary conduct in the relations of son, brother,
husband, father; his numerous charities; his benevolence towards all men,
and his ever active beneficence; these amiable qualities shone so
conspicuously in him, throughout his life, that, highly as he was
respected, he had the rare happiness to be yet more beloved.

There is no more engaging figure in American history, none more entirely
free from disfiguring idiosyncrasy, than the son of Thomas Marshall.

Epilogue

In the brief period of twenty-seven months
following the death of Marshall the Supreme Court received a new Chief
Justice and five new Associate Justices. The effect of this change in
personnel upon the doctrine of the Court soon became manifest. In the
eleventh volume of Peters’s Reports, the first issued while
Roger B. Taney was Chief Justice, are three decisions of constitutional
cases sustaining state laws which on earlier argument Marshall had
assessed as unconstitutional. The first of these decisions gave what
was designated “the complete, unqualified, and exclusive”
power of the State to regulate its “internal police” the right
of way over the “commerce clause” ¹; the second
practically nullified the constitutional prohibition against
“bills of credit” in deference to the same high prerogative
²; the third curtailed
225
the operation of the “obligation of contracts” clause as a
protection of public grants. ³ Story, voicing “an earnest
desire to vindicate his [Marshall’s] memory from the imputation
of rashness,” filed passionate and unavailing dissents. With
difficulty he was dissuaded from resigning from a tribunal whose days
of influence he thought gone by. 4
During the same year Justice Henry Baldwin, another of Marshall’s
friends and associates, published his View of the Constitution,
in which he rendered high praise to the departed Chief Justice’s
qualifications as expounder of the Constitution. “No
commentator,” he wrote, “ever followed the text more
faithfully, or ever made a commentary more accordant with its strict
intention and language.… He never brought into action the powers
of his mighty mind to find some meaning in plain words … above
the comprehension of ordinary minds.… He knew the framers of the
Constitution, who were his compatriots,” he was
226
himself the historian of its framing, wherefore, as its expositor,
“he knew its objects, its intentions.” Yet in the face
of these admissions, Baldwin rejects Marshall’s theory of the
origin of the Constitution and the corollary doctrine of liberal
construction. “The history and spirit of the times,”
he wrote, “admonish us that new versions of the Constitution
will be promulgated to meet the varying course of political events
or aspirations of power.”

But the radical impulse soon spent itself. Chief Justice Taney himself was
a good deal of a conservative. While he regarded the Supreme Court rather
as an umpire between two sovereignties than as an organ of the National
Government for the vigorous assertion of its powers, which was
Marshall’s point of view, Taney was not at all disposed to disturb
the law as it had been declared by his predecessor in binding decisions.
Then, too, the development of railroading and the beginning of immigration
from Europe on a large scale reawakened the interest of a great part of
the nation in keeping intercourse between the States untrammeled by local
selfishness; and in 1851 the Court, heeding the spirit of compromise of
the day, decisively accepted for the most important category of cases
Marshall’s
227
principle of the exclusive control of interstate and foreign commerce by
Congress. ¹

Still, until the eve of the Civil War, the theory of the Constitution held
by the great body of the people, North as well as South, was that it was a
compact of States. Then in December, 1860, South Carolina announced her
secession from the Union. Buchanan’s message of the same month
performed the twofold service of refuting secession on State Rights
principles and of demonstrating, albeit unwittingly, how impossible it was
practically to combat the movement on the same principles. Lincoln brought
the North back to Marshall’s position when he remarked in his
Inaugural Address: “Continue to execute all the express provisions
of our National Constitution, and the Union will endure forever.”

The Civil War has been characterized as “an appeal from the
judgments of Marshall to the arbitrament of war.” Its outcome
restored the concept of the National Government as a territorial
sovereign, present within the States by the superior mandate of the
American People, and entitled to “execute on every foot of
American soil the powers and functions that belong to
228
it.” ¹ These powers and functions are, moreover, today
undergoing constant enlargement. No one now doubts that in any clash
between national and state power it is national power which is entitled to
be defined first, and few persons question that it ought to be defined in
the light of Marshall’s principle, that a Constitution designed for
ages to come must be “adapted to the various crises of human
affairs.”

It is only when we turn to that branch of Constitutional Law which defines
governmental power in relation to private rights that we lose touch with
Marshall’s principles. As we have seen, he dealt in absolutes: either
power was given to an unlimited extent or it was withheld altogether.
Today, however, the dominant rule in this field of Constitutional Law is
the “rule of reason.” In the last analysis, there are few
private rights which are not subordinate to the general welfare; but, on
the other hand, legislation which affects private rights must have a
reasonable tendency to promote the general welfare and must not
arbitrarily invade the rights of particular persons or classes. Inasmuch
as the hard and fast rules of an age when conditions of life were simpler
are no longer practicable under
229
the more complex relationships of modern times, there is today an
inevitable tendency to force these rules to greater flexibility. ¹

And this difference in the point of view of the judiciary connotes a
general difference of outlook which makes itself felt today even in that
field where Marshall wrought most enduringly. The Constitution was
established under the sway of the idea of the balance of power, and with
the purpose of effecting a compromise among a variety of more or less
antagonistic interests, some of which were identified with the cause of
local autonomy, others of which coalesced with the cause of National
Supremacy. The Nation and the States were regarded as competitive forces,
and a condition of tension between them was thought to be not only normal
but desirable. The modern point of view is very different. Local
differences have to a great extent disappeared, and that general interest
which
230
is the same for all the States is an ever deepening one. The idea of
the competition of the States with the Nation is yielding to that of their
coöperation in public service. And it is much the same with the
relation of the three departments of Government. The notion that they have
antagonistic interests to guard is giving way to the perception of a
general interest guarded by all according to their several faculties. In
brief, whereas it was the original effort of the Constitution to preserve
a somewhat complex set of values by nice differentiations of power, the
present tendency, born of a surer vision of a single national welfare, is
toward the participation of all powers in a joint effort for a common end.

But though Marshall’s work has been superseded at many points, there
is no fame among American statesmen more strongly bulwarked by great and
still vital institutions. Marshall established judicial review; he
imparted to an ancient legal tradition a new significance; he made his
Court one of the great political forces of the country; he founded
American Constitutional Law; he formulated, more tellingly than any one
else and for a people whose thought was permeated with legalism, the
principles on which the integrity and ordered growth
231
of their Nation have depended.
Springing from the twin rootage of Magna Charta and the Declaration of
Independence, his judicial statesmanship finds no parallel in the salient
features of its achievement outside our own annals.

BIBLIOGRAPHICAL NOTE

All accounts of Marshall’s career
previous to his appointment as Chief Justice have been superseded by
Albert J. Beveridge’s two admirable volumes, The Life of John
Marshall (Boston, 1916). The author paints on a large canvas and with
notable skill. His work is history as well as biography. His ample plan
enables him to quote liberally from Marshall’s writings and from
all the really valuable first-hand sources. Both text and notes are
valuable repositories of material. Beveridge has substantially completed
a third volume covering the first decade of Marshall’s
chief-justiceship, and the entire work will probably run to
five volumes.

Briefer accounts of Marshall covering his entire career will be found in
Henry Flanders’s Lives and Times of the Chief Justices of the
Supreme Court (1875) and Van Santvoord’s Sketches of the
Lives, Times, and Judicial Services of the Chief Justices of the Supreme
Court (1882). Two excellent brief sketches are J. B.
Thayer’s John Marshall (1901) in the Riverside
Biographical Series, and W. D. Lewis’s essay in the second
volume of The Great American Lawyers, 8 vols. (Philadelphia, 1907),
of which he is also the editor. The latter is particularly happy in its
blend of the personal and legal, the biographical and critical.
A. B. Magruder’s John Marshall (1898) in the
American Statesman Series falls
234
considerably below the general standard maintained by that excellent
series.

The centennial anniversary of Marshall’s accession to the Supreme
Bench was generally observed by Bench and Bar throughout the United
States, and many of the addresses on the great Chief Justice’s life
and judicial services delivered by distinguished judges and lawyers on
that occasion were later collected by John F. Dillon and published in
John Marshall, Life, Character, and Judicial Services, 3 vols.
(Chicago, 1903). In volume XIII of the Green Bag will be found a
skillfully constructed mosaic biography of Marshall drawn from these
addresses.

The most considerable group of Marshall’s letters yet published are
those to Justice Story, which will be found in the Massachusetts
Historical Society Proceedings, Second Series, volume XIV, pp. 321-60.
These and most of the Chief Justice’s other letters which have thus
far seen the light of day will be found in J. E. Oster’s
Political and Economic Doctrines of John Marshall (New York, 1914).
Here also will be found a copy of Marshall’s will, of the
autobiography which he prepared in 1818 for Delaplaine’s
Repository but which was never published there, and of his eulogy
of his wife. The two principal sources of Marshall’s anecdotes are
the Southern Literary Messenger, volume II, p. 181 ff., and Henry
Howe’s Historical Collections of Virginia (Charleston, 1845).
Approaching the value of sources are Joseph Story’s Discourse
upon the Life, Character, and Services of the Hon. John Marshall
(1835) and Horace Binney’s Eulogy (1835), both of which were
pronounced by personal friends shortly after Marshall’s death and
both of which are now available in volume III of Dillon’s
235
compilation, cited above. The value of Marshall’s Life of
Washington as bearing on the origin of his own point of view in
politics was noted in the text (Chapter VIII).

Marshall’s great constitutional decisions are, of course, accessible
in the Reports, but they have also been assembled into a single
volume by John M. Dillon, John Marshall; Complete Constitutional
Decisions (Chicago, 1903), and into two instructively edited volumes
by Joseph P. Cotton, Constitutional Decisions of John Marshall
(New York, 1905). Story’s famous Commentaries on the
Constitution gives a systematic presentation of Marshall’s
constitutional doctrines, which is fortified at all points by historical
reference; the second edition is the best. For other contemporary
evaluations of Marshall’s decisions, often hostile, see early
volumes of the North American Review and Niles’s
Register; also the volumes of the famous John Taylor of Caroline.
A brief general account of later date of the decisions is to be found in
the Constitutional History of the United States as Seen in the
Development of American Law (New York, 1889), a course of lectures
before the Political Science Association of the University of Michigan.
Detailed commentary of a high order of scholarship is furnished by Walter
Malins Rose’s Notes to the Lawyers’ Edition of the
United States Reports, 13 vols. (1899-1901). The more valuable of
Marshall’s decisions on circuit are collected in J. W.
Brockenbrough’s two volumes of Reports of Cases Decided by the
Hon. John Marshall (Philadelphia, 1837), and his rulings at
Burr’s Trial are to be found in Robertson’s Reports of
the Trials of Colonel Aaron Burr, 2 vols. (1808).

Marshall’s associates on the Supreme Bench are pleasingly sketched
in Hampton L. Carson’s Supreme
236
Court of the United States (Philadelphia, 1891), which also gives
many interesting facts bearing on the history of the Court itself. In
the same connection Charles Warren’s History of the American
Bar (Boston, 1911) is also valuable both for the facts which it
records and for the guidance it affords to further material. Of
biographies of contemporaries and coworkers of Marshall, the most valuable
are John P. Kennedy’s Memoirs of the Life of William Wirt, 2
vols. (Philadelphia, 1860); William Wetmore Story’s Life and
Letters of Joseph Story, 2 vols. (Boston, 1851); and William
Kent’s Memoirs and Letters of James Kent (Boston, 1898).
Everett P. Wheeler’s Daniel Webster the Expounder of the
Constitution (1905) is instructive, but claims far too much for
Webster’s influence upon Marshall’s views. New England has
never yet quite forgiven Virginia for having had the temerity to take the
formative hand in shaping our Constitutional Law. The vast amount of
material brought together in Gustavus Myers’s History of the
Supreme Court (Chicago, 1912) is based on purely ex parte
statements and is so poorly authenticated as to be valueless. He writes
from the socialistic point of view and fluctuates between the desire to
establish the dogma of “class bias” by a coldly impartial
examination of the “facts” and the desire to start a scandal
reflecting on individual reputations.

The literature of eulogy and appreciation is, for all practical purposes,
exhausted in Dillon’s collection. But a reference should be made
here to a brief but pertinent and excellently phrased comment on the great
Chief Justice in Woodrow Wilson’s Constitutional Government in
the United States (New York, 1908), pp. 158-9.

A.

B.

C.

D.

E.

F.

G.

H.

I.

J.

K.

L.

M.

N.

O.

P.

R.

S.

T.

U.

V.

W.

X.

The Chronicles of America Series

1. The Red Man’s Continent
   by Ellsworth Huntington
2. The Spanish Conquerors
   by Irving Berdine Richman
3. Elizabethan Sea-Dogs
   by William Charles Henry Wood
4. The Crusaders of New France
   by William Bennett Munro
5. Pioneers of the Old South
   by Mary Johnson
6. The Fathers of New England
   by Charles McLean Andrews
7. Dutch and English on the Hudson
   by Maud Wilder Goodwin
8. The Quaker Colonies
   by Sydney George Fisher
9. Colonial Folkways
   by Charles McLean Andrews
10. The Conquest of New France
    by George McKinnon Wrong
11. The Eve of the Revolution
    by Carl Lotus Becker
12. Washington and His Comrades in Arms
    by George McKinnon Wrong
13. The Fathers of the Constitution
    by Max Farrand
14. Washington and His Colleagues
    by Henry Jones Ford
15. Jefferson and his Colleagues
    by Allen Johnson
16. John Marshall and the Constitution
    
    by Edward Samuel Corwin
17. The Fight for a Free Sea
    by Ralph Delahaye Paine
18. Pioneers of the Old Southwest
    by Constance Lindsay Skinner
19. The Old Northwest
    by Frederic Austin Ogg
20. The Reign of Andrew Jackson
    by Frederic Austin Ogg
21. The Paths of Inland Commerce
    by Archer Butler Hulbert
22. Adventurers of Oregon
    by Constance Lindsay Skinner
23. The Spanish Borderlands
    by Herbert Eugene Bolton
24. Texas and the Mexican War
    by Nathaniel Wright Stephenson
25. The Forty-Niners
    by Stewart Edward White
26. The Passing of the Frontier
    by Emerson Hough
27. The Cotton Kingdom
    by William E. Dodd
28. The Anti-Slavery Crusade
    by Jesse Macy
29. Abraham Lincoln and the Union
    by Nathaniel Wright Stephenson
30. The Day of the Confederacy
    by Nathaniel Wright Stephenson
31. Captains of the Civil War
    by William Charles Henry Wood
32. The Sequel of Appomattox
    by Walter Lynwood Fleming
33. The American Spirit in Education
    by Edwin E. Slosson
34. The American Spirit in Literature
    by Bliss Perry
35. Our Foreigners
    by Samuel Peter Orth
36. The Old Merchant Marine
    by Ralph Delahaye Paine
37. The Age of Invention
    by Holland Thompson
38. The Railroad Builders
    by John Moody
39. The Age of Big Business
    by Burton Jesse Hendrick
40. The Armies of Labor
    by Samuel Peter Orth
41. The Masters of Capital
    by John Moody
42. The New South
    by Holland Thompson
43. The Boss and the Machine
    by Samuel Peter Orth
44. The Cleveland Era
    by Henry Jones Ford
45. The Agrarian Crusade
    by Solon Justus Buck
46. The Path of Empire
    by Carl Russell Fish
47. Theodore Roosevelt and His Times
    by Harold Howland
48. Woodrow Wilson and the World War
    by Charles Seymour
49. The Canadian Dominion
    by Oscar D. Skelton
50. The Hispanic Nations of the New World
    by William R. Shepherd

The Chronicles of America Series has two similar editions of each volume in
the series. One version is the Abraham Lincoln edition of the series, a
premium version which includes full-page pictures. A textbook edition was
also produced, which does not contain the pictures and captions associated
with the pictures, but is otherwise the same book. This book was produced
to match the textbook edition of the book.

We have retained the original punctuation and spelling in the book, but
there are a few exceptions. Obvious errors were corrected–and all of
these changes can be found in the Detailed Notes Section of these
notes. The Detailed Notes Section also includes
issues that have come up during transcription. One common issue is that
words are sometimes split into two lines for spacing purposes in the
original text. These words are hyphenated in the physical book, but there
is a question sometimes as to whether the hyphen should be retained in
transcription. The reasons behind some of these decisions are itemized.

We place footnotes after the paragraph in which they are referenced.
The footnote may appear on a different page number in this e-book as
compared to the paper book. For example, the footnote with Nereide
appears on page 118 in the paper book, but on page 119 in this e-book.
For some index entries with notes, the reference may appear on the page
following the one mentioned in the index.

Detailed Notes Section:

On Page 27, health-giving was hyphenated between
two lines for spacing and could be transcribed as healthgiving. We
retained the hyphen in transcribing the word.

On Page 55, elbow-room was hyphenated between
two lines for spacing and could be transcribed as elbowroom. We
retained the hyphen in transcribing the word.

On Page 87, rendez-vous was hyphenated between
two lines for spacing and could be transcribed as rendezvous. In this
case, the latter option took preference: “He also made the island both
a convenient rendezvous for his adherents …”

On Page 208, add missing period after uncle to
conclude the clause “the literary executor of his famous uncle.”

On Page 220, add missing period after hopeless
to conclude the clause “but his case was soon seen to be hopeless.”