John Marshall and the Constitution,
by
Edward S. Corwin
Part 3 out of 3
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,* 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 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.
* 1 Wheaton, 304. Marshall had an indirect interest in the case.
See supra, Chapter II.
If Story's argument is defective at any point, it is in its
failure to lay down a clear definition of "cases arising under
this Constitution," and this defect in constitutional
interpretation is supplied five years later in Marshall's opinion
in Cohens vs. Virginia.* 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.
* 6 Wheaton, 264.
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 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 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
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
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 protege, 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 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* 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,** 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.
* 4 Wheaton, 122.
** 8 Wheaton, 1.
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 Congress.* 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?" 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 a good review of the contemporary agitation aroused by
Marshall's decisions, see two articles by Charles Warren in the
"American Law Review," vol. XLVII, pp. 1 and 161.
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. 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 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 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.* 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 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.** 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 role 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.
* 9 Wheaton, 738.
** 12 Wheaton, 213.
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 United States for local purposes*; 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"**; 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***; that the first eight Amendments to the Constitution
do not limit state power, but only Federal power**** that
decisions adverse to state laws must have the concurrence of a
majority of the Court.*****
* Wilson vs. Blackbird Creek Marsh Company (1829), 2 Peters, 245.
** Providence Bank vs. Billings (1830), 4 Peters, 514.
*** Satterlee vs. Matthewson (1829), 2 Peters, 380; and Watson
vs. Mercer (1834), 8 Peters, 110.
**** Barron vs. Baltimore (1833), 7 Peters, 243.
***** See in this connection the Chief Justice's remarks in
Briscoe vs. Bank of Kentucky, 8 Peters, 118.
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 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)* 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 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.
* 4 Peters, 410.
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,* the Court was confronted squarely with the question
of the validity of the Georgia acts. The State put in no
appearance, 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."
* 6 Peters, 515.
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 reelection 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 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. 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 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.
CHAPTER VIII. 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 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 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.
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."
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 piece de resistance. 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 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 coelum--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. 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."*
* J. B. Thayer, "John Marshall" ("Riverside Biographical Series,"
1904), pp. 13436, paraphrasing G. W. Munford, "The Two Parsons"
(Richmond, 1884), pp. 326-38.
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 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."* 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."
* Thayer, op. cit., pp. 132-33.
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 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 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
goodnaturedly 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.
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 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 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.
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
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 ofiiciis' 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 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 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 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 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 anaesthetics, such an operation, especially in the 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 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 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 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
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 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 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.
CHAPTER IX. 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"*;
the second practically nullified the constitutional prohibition
against "bills of credit" in deference to the same high
prerogative**; the third curtailed the operation of the
"obligation of contracts" clause as a protection of public
grants.*** 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.**** 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 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."
* Milton vs. New York. 11 Peters, 102.
** Briscoe vs. Bank of Kentucky, 11 Peters, 257.
*** Charles River Bridge Company vs. Warren Bridge Company, 11
Peters, 420.
**** He wrote Justice McLean, May 10, 1837: "There will not, I
fear, even in our day, be any case in which a law of a State or
of Congress will be declared unconstitutional; for the old
constitutional doctrines are fast fading away." "Life and Letters
of Joseph Story." vol. II, p. 272; see also p. 270, for
Chancellor Kent's unfavorable reaction to these decisions.
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 principle of the exclusive control
of interstate and foreign commerce by Congress.*
* Cooley vs. the Board of Wardens, 12 Howard, 299.
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 it."* 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."
* Justice Bradley in ex parte Siebold, 100 U.S., 371.
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 the more
complex relationships of modern times, there is today an
inevitable tendency to force these rules to greater flexibility.*
* Notwithstanding what is said above, it is also true that the
modern doctrine of "the police power" owes something to
Marshall's interpretation of the "necessary and proper" clause in
M'Culloch vs. Maryland, which is frequently offered nowadays as
stating the authoritative definition of "a fair legislative
discretion" in relation to private rights. Indeed this ingenious
transposition was first suggested in Marshall's day. See Cowen
(N. Y.), 585. But it never received his sanction and does not
represent his point of view.
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 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 cooperation 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 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 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 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 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, 1880); 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.
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