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John Marshall and the Constitution, by Edward S. Corwin

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Kelly Library Of St. Gregory's University; Thanks To Alev Akman.

John Marshall And The Constitution, A Chronicle Of The Supreme Court

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

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 Rights.

Even more important than the relation of the Supreme Court to the
judicial systems of the States was the question of its relation
to the Constitution as a governing instrument. Though the idea
that courts were entitled to pronounce on the constitutionality
of legislative acts had received countenance in a few dicta in
some of the States and 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 principles.

The proposal to endow Congress with the power to negative state
legislation having been rejected by the Convention, Luther Martin
of Maryland moved that "the legislative acts of the United States
made in virtue and in pursuance of the Articles of Union, and all
treaties made or ratified under the authority of the United
States, shall be the supreme law of the respective States, and
the judiciaries of the several States shall be bound thereby in
their decisions, anything in the respective laws of the
individual States to the contrary notwithstanding." The motion
was agreed to without a dissenting voice and, with some slight
changes, became Article VIII of the report of the Committee of
Detail of the 7th of August, which in turn became "the linch-pin
of the Constitution."* 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

* 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

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

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

>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
States. The foreign trade of the country, it was asserted, "was
regulated, taxed, monopolized, and crippled at the pleasure of
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
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
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
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 eliminated.

Marshall's services in behalf of the Constitution in the closely
fought battle for ratification which took place in the Virginia
Convention are only partially disclosed in the pages of Elliot's
"Debates." He was already coming to be regarded as one excellent
in council as well as in formal discussion, and his democratic
manners and personal popularity with all classes were a
pronounced asset for any cause he chose to espouse. Marshall's
part on the floor of the Convention was, of course, much less
conspicuous 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
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

"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

"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 advantage.

* "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
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 "un/lucky" 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 Union."

The election was held late in April, under conditions which must
have added greatly to popular interest. Following the custom in
Virginia, the voter, instead of casting a ballot, merely declared
his preference in the presence of the candidates, the election
officials, and the assembled multitude. In the intensity of the
struggle no voter, halt, lame, or blind, was overlooked; and a
barrel of whisky near at hand lent further zest to the occasion.
Time and again the vote in the district was a tie, and as a
result frequent personal encounters took place between aroused
partisans. Marshall's election by a narrow majority in a borough
which was strongly 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

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

* 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

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.

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 unconstitutional.

* 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

"[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

"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 rank.

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

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

Turning back to the case itself, we ought finally to note how
Marshall utilized this opportunity to make manifest the newly
found solidarity of the Court. For the first time in its history
the Court was one voice, speaking through its Chief Justice the
ineluctable decrees of the law. Ordinarily even Marshall would
not have found this achievement an easy task, for there were
difficult personalities 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 impeachment.

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

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

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 considerations.

Burr's activities after his term of public office ended in March,
1805, were devious, complicated, and purposely veiled, involving
many men and spread over a large territory.* 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

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

In the summer of 1806 Burr turned westward a second time and with
the assistance of Blennerhassett he began military preparations

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