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John Marshall and the Constitution, by Edward S. Corwin

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"That this Court dare not usurp power is most true.

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

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

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

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

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

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

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

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

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

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

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

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

** 5 Cranch, 136.

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

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

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

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

CHAPTER V. The Tenets Of Nationalism

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* 9 Wheaton, 1.

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

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

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

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

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

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

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

* 12 Wheaton, 419.

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

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

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

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

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

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

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

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

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

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

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

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

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

CHAPTER VI. The Sanctity Of Contracts

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

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

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

* See supra, Chapter II.

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

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

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

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

* 6 Cranch, 87.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CHAPTER VII. The Menace Of State Rights

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

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

* See Chapter I.

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

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

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

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