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´╗┐Title: John Marshall and the Constitution, a Chronicle of the Supreme Court
Author: Corwin, Edward Samuel, 1878-1963
Language: English
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Copyright Status: Not copyrighted in the United States. If you live elsewhere check the laws of your country before downloading this ebook. See comments about copyright issues at end of book.

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University, and Alev Akman



By Edward S. Corwin





CHAPTER I. 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 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

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 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 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. *

     * By the Articles of Confederation Congress itself was made
     "the last resort of all disputes and differences...between
     two or more States concerning boundary, jurisdiction, or any
     other cause whatever." It was also authorized to appoint
     "courts for the trial of piracies and felonies committed on
     the high seas" and "for receiving and determining finally
     appeals in all cases of capture." But even before the
     Articles had gone into operation, Congress had, as early as
     1779, established a tribunal for such appeals, the old Court
     of Appeals in Cases of Capture. Thus at the very outset, and
     at a time when the doctrine of state sovereignty was
     dominant, the practice of appeals from state courts to a
     supreme national tribunal was employed, albeit within a
     restricted sphere. Yet it is less easy to admit that the
     Court of Appeals was, as has been contended by one
     distinguished authority, "not simply the predecessor but one
     of the origins of the Supreme Court of the United States."
     The Supreme Court is the creation of the Constitution
     itself; it is the final interpreter of the law in every
     field of national power; and its decrees are carried into
     effect by the force and authority of the Government of which
     it is one of the three coordinate branches. That earlier
     tribunal, the Court of Appeals in Cases of Capture, was, on
     the other hand, a purely legislative creation; its
     jurisdiction was confined to a single field, and that of
     importance only in time of war; and the enforcement of its
     decisions rested with the state governments.

In the Federal Convention of 1787 the idea of state coercion required
little discussion; for the 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 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 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

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 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 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

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." * Then, on the 27th of August, it was
agreed that "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:

     * Article VI, paragraph 2.

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, 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 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. *

     * The entries under the names of these members in the Index
     to Max Farrand's "Records of the Federal Convention" occupy
     fully thirty columns, as compared with fewer than half as
     many columns under the names of all remaining members.

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 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" * its own powers and those of the other
departments of the Government.

    * Article I, section VIII, 18.

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 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 *; 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, 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."

     * Where the national jurisdiction was extended to these in
     the interest of providing an impartial tribunal, it was
     given to the Circuit Court.

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", 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 1798 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. 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." * 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.

     * Flanders, "The Lives and Times of the Chief-Justices of
     the Supreme Court," vol. II, p. 38.

The pioneer work of the Supreme Court in constitutional interpretation
has, for all but special 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, * 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.**
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 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.*** Four years later, in the Carriage Tax case,**** 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.

     * 2 Dallas, 419.

     ** Ware vs. Hylton, 3 ib., 199.

     *** See 2 Dallas, 409.

     **** Hylton vs. United States, 3 Dallas, 171.

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-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 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, 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! *

 * See Herman vs. Ames, "State Documents on Federal Relations,"
Nos. 7-15.

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 18, 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 and of his Secretary of State, John Marshall, to fill up
the new posts with the so-called "midnight judges," * 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
coordinate and independent branch of the Government, was confronted with
a fight for life!

 * So called because the appointment of some of them was supposed
to have taken place as late as midnight, or later, of March 3-4, 1801.
The supposition, however, was without foundation.

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 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.

CHAPTER II. 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 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 role of Calhoun instead of that
very different role 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 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 healthgiving 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 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,
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 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 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. *

 * Beveridge, vol. I, pp. 171-73.

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 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
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. *

 * This review of conditions under the later Confederation is
taken from Story's "Discourse," which is in turn based, at this point,
on Marshall's "Life of Washington" and certain letters of his to Story.

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
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 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

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 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."

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." * 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.

 * J. Elliot, "Debates" (Edition of 1836), vol. III, p. 503. As to
Bills of Rights, however, Marshall expressed the opinion that they were
meant to be "merely recommendatory. Were it otherwise, ...many laws
which are found convenient would be unconstitutional." Op. cit.,
vol. III, p. 509.

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 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 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 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 later," Albert J.
Beveridge * 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

 * "The Life of John Marshall," vol. II, p. 177.

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
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 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 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 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

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 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, 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 character which a great man ought to possess." *

 * Letter from Sedgwick to King, May 11, 1800. "Life and
Correspondence of Rufus King," vol. III, pp. 236-7.

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
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." *

 * Op. cit.

It was perhaps fortunate for the Federal Judiciary, 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.

CHAPTER III. 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, 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." *

 * It should, however, be noted in the interest of accuracy, that
the Court does not seem to have occupied its basement chamber during the
years 1814 to 1818, while the Capitol was under repair.

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 elbowroom. 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 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 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

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 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." * 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 punished one Thomas Passmore for contempt of court
without a jury trial.

 * President Dickinson of Pennsylvania wrote the Chief Justice and
judges of the Supreme Court of the Commonwealth, on October 8, 1785,
that they ought not to content themselves merely with enforcing the
law, but should also endeavor to "inculcate sound morals and manners."
"Pennsylvania Archives," vol. X, pp. 623-24.

Jefferson entered office with his mind made up that the Act of the 18th
of February should be repealed. * 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
construction based on such absurdities, said he, "overturns the benefits
of language and intellect."

 * In this connection Mr. Beveridge draws my attention to
Jefferson's letter to A. Stuart of April 5,1801. See the "Complete Works
of Jefferson" (Washington, 1857), vol. IV, p. 393.

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 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
reinforced 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 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. Marshall's first constitutional case was that of Marbury
vs. Madison. * 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

 * 1 Cranch, 137. The following account of the case is drawn
largely upon my "Doctrine of Judicial Review" (Princeton, 1914).

Such are the lawyer's facts of the case; it is the 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 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. * For if the Supreme Court could not 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.

 * See Benton's "Abridgment of the Debates of Congress," vol. II,
pp. 665-68. Marshall expressed the opinion in private that the repealing
act was "operative in depriving the judges of all power derived from the
act repealed" but not their office, "which is a mere capacity, without
new appointment, to receive and exercise any new judicial power which
the legislature may confer." Quoted by W. S. Carpenter in "American
Political Science Review," vol. IX, p. 528.

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 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.

"[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?...

"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

"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

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 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."
* Considering the fact that the President was still smarting from the
Chief Justice's lash and also that Chase himself was more 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

 * The account here given of Chase's trial is based on Charles
Evans's shorthand "Report" (Baltimore, 1805), supplemented by J.Q.
Adams's "Memoirs".

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 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 Dickering, the House by a strictly partisan vote decreed Chase's

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 "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 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.... 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 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."

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 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 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 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, 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 role
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 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 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 Caesar 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 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.

CHAPTER IV. 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 asocial
outcast to boot. Whether, therefore, his grandiose project of an empire
on the ruins of Spanish dominion in Mexico involved also 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

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. * 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.

 * An account of the Burr conspiracy will be found in "Jefferson
and his Colleagues," by Allen Johnson (in "The Chronicles of America").

In the summer of 1806 Burr turned westward 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 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 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 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 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 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 eclat
of the hero in a melodrama--only to retire bated 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 military expedition against Spain. As
this was a bailable offense, however, Burr was soon at liberty once

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

This sharp criticism brought an equally sharp retort from Jefferson, to
which was added a threat. 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
Grin 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 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 subpoena 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 subpoena 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 hellhounds 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 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 subpoena 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
required, it would be sworn on the return of the subpoena 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 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 a house for her accommodation. The jailer, too, was all
civility." * Little wonder that such goings-on are said to have "filled
the measure of Jefferson's disgust."

 * Parton's "Life and Times of Aaron Burr" (13th Edition, N.Y.,
1880), p. 479.

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.

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 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. 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
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

"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 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. * 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 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.

 * A recurrent feature of their arguments was a denunciation of
"constructive treason." But this was mere declamation. Nobody was
charging Burr with any sort of treason except that which is specifically
defined by the Constitution itself, namely, the levying of war against
the United States. The only question at issue was as to the method of
proof by which this crime may be validly established in the case of one
accused of procuring treason. There was also much talk about the danger
and injustice of dragging a man from one end of the country to stand
trial for an act committed at the other end of it. The answer was that,
if the man himself procured the act or joined others in bringing
it about, he ought to stand trial where the act occurred. This same
"injustice" may happen today in the case of murder!

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 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 with his later position was as
unconvincing as it was labored. *

 * The way in which Marshall proceeded to do this was to treat the
phrase "perform a part" as demanding "a levying of war" on the part
of the performer. (Robertson, "Reports," vol. II, p. 438.) But this
explanation will not hold water. For what then becomes of the phrase
"scene of action" in the passage just quoted? What is the difference
between the part to be performed "however minute," and the "action" from
which the performer maybe "however remote"? It is perfectly evident
that the "action" referred to is the assemblage which is regarded as the
overt act of war, and that the "part however minute" is something very

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 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. *

 * See especially Title I, Section 4, of the Act. For evidence of
the modern standing of Marshall's opinion, see the chorus of approval
sounded by the legal fraternity in Dillon's three volumes. In support
of the Common Law doctrine, see the authorities cited in 27 "Yale
Law Journal", p. 342 and footnotes; the chapter on Treason in Simon
Greenleaf's well-known "Treatise on the Law of Evidence;" United States
w. Mitchell, 2 Dallas, 348; and Druecker vs. Salomon, 21 Wis., 621.

On the day following the reading of Marshall's 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 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

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 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

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
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

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. 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. * 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 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 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.

 * This was in the case of Ogden vs. Saunders, 12 Wheaton, 213

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; 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, * 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, * * 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
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."

 * Two famous decisions of Marshall's in this field are those in
the Schooner Exchange vs. McFaddon et al, 7 Cranch, 116, and the case of
the Nereide, 9 ib., 388.

 * * 5 Cranch, 136.

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.

"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

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.

CHAPTER V. 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 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 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

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 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

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
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" 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
out-federalized 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 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.

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 * 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 figtree 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 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."

 * M'Culloch vs. Maryland (1819), 4 Wheaton, 316.

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 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 "buys," "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 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 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 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
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 far 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 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

Five years later, in the case of Gibbons vs. Ogden, * 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 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.

 * 9 Wheaton, 1.

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 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. * 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.

 * See Livingston vs. Van Ingen, 9 Johnson, 807 (1812); also
Kent's "Commentaries", I, 432-38.

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 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 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 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," 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, * 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.

 * 12 Wheaton, 419.

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. * 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 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. * * 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.

 * See Justice Bradley's language in 122 U.S., 326; also the more
recent case of Western Union Telegraph Company vs. Kan., 216 U.S., 1.

 * * See 195 U.S., 27; 188 U.S., 321; 227 U.S., 308. Cf. 247 U.S.,

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 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. *

 * For the application of Marshall's canons of constitutional
interpretation in the field of treaty making, see the writer's "National
Supremacy" (N. Y., 1913). Chaps. III and IV.

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 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."

CHAPTER VI. 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

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
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. *
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 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. * * 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.

 * See supra, Chapter II.

 * * On special legislation, see the writer's "Doctrine of Judicial
Review" (Princeton, 1914), pp. 36-37, 69-71.

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
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. *

 * In connection with this paragraph, see the writer's article
entitled "The Basic Doctrine of American Constitutional Law," in
the "Michigan Law Review," February, 1914. Marshall once wrote Story
regarding his attitude toward Section X in 1787, as follows: "The
questions which were perpetually recurring in the State legislatures
and which brought annually into doubt principles which I thought most
sacred, which proved that everything was afloat, and that we had no safe
anchorage ground, gave a high value in my estimation to that article of
the Constitution which imposes restrictions on the States." "Discourse."

Such was still the situation when the case of Fletcher vs. Peck * 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 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.

 * 6 Cranch, 87.

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
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 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

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

The case of the Trustees of Dartmouth College vs. Woodward * was a New
England product and 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."

 * The following account of this case is based on J. M. Shirley's
"Dartmouth College Causes" (St. Louis, 1879) and on the official report,
4 Wheaton, 518.

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 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 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 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 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 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 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
Caesar 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!'"

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. * 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!

 * Professor Goodrich of Yale, who is responsible for the story,
communicated it to Rufus Choate in 1853. It next appears on Goodrich's
authority in Curtis's "Webster," vol. II, pp. 169-71.

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, 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 protege 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 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.

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 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 have annulled
the charter of the College and so have disappointed the hopes of the
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

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 evidence
amply shows, was to protect private executory contracts, and especially
contracts of debt. * 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."

 * Much of the evidence is readily traceable through the Index to
Max Farrand's "Records of the Federal Convention."

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. 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
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 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 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!

CHAPTER VII. 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

The connecting link between the Supreme Court and the state courts has
already been pointed out to be Section XXV of the Act of 1789 organizing
the Federal Judiciary. * 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, 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.

 * See Chapter I.

 * * 4 Munford (Va.), 1. See also William E. Dodd's article on
"Chief Justice Marshall and Virginia in American Historical Review,"
vol. XII, p. 776.

The head and front of the Virginia court at this time was Spencer Roane,
described as "the most 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 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 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, * 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
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

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

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

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

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 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.

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,
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

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


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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