on the latter’s island for a mysterious expedition. On the 29th of July, Burr had dispatched a letter in cipher to Wilkinson, his most important confederate. The precise terms of this document we shall never know, but apparently it contained the most amazing claims of the successful maturing of Burr’s scheme: “funds had been obtained,” “English naval protection had been secured,” “from five hundred to a thousand men” would be on the move down the Mississippi by the middle of November. Unfortunately for Burr, however, Wilkinson was far too expert in the usages of iniquity to be taken in by such audacious lying as this. He guessed that the enterprise was on the verge of collapse and forthwith made up his mind to abandon it.
Meanwhile exaggerated accounts of the size of Burr’s following were filtering to Washington, together with circumstantial rumors of the disloyalty of his designs. Yet for weeks Jefferson did nothing, until late in November his alarm was aroused by a letter from Wilkinson, dated the 21st of October. On the 27th of November the President issued a proclamation calling upon all good citizens to seize “sundry persons” who were charged with setting on foot a military expedition against Spain. Already Burr, realizing that the West was not so hot for disunion as perhaps he had supposed it to be, began to represent his project as a peaceful emigration to the Washita, a precaution which, however, came too late to allay the rising excitement of the people. Fearing the seizure of their equipment, thirty or forty of Burr’s followers under the leadership of Blennerhassett left the island in four or five flatboats for New Orleans, on the night of the 10th of December, and a few days later were joined by Burr himself at the mouth of the Cumberland. When the little expedition paused near Natchez, on the 10th of January, Burr was confronted with a newspaper containing a transcription of his fatal letter to Wilkinson. A week later, learning that his former ally, Wilkinson, had now established a reign of terror at New Orleans directed against his followers; and feeling no desire to test the tender mercies of a court-martial presided over by his former associate, Burr surrendered himself into the custody of the acting Governor of Mississippi Territory. But the refusal of the territorial grand jury to indict him suggested the hope that he might still escape from the reach of the law. He therefore plunged into the wilderness, headed for the Spanish border, and had all but reached his destination when he was recognized and recaptured at Wakefield, Alabama.
Owing to the peculiar and complicated circumstances which led up to it, Burr’s case was from the outset imbued with factional and partisan politics of the most extreme kind. While the conspiracy was at its height, Jefferson, though emphatically warned, had refused to lend it any credence whatever; but when the danger was well over he had thrown the whole country into a panic, and had even asked Congress to suspend the writ of habeas corpus. The Federalists and the President’s enemies within his own party, headed by the redoubtable Randolph, were instantly alert to the opportunity which Jefferson’s inexplicable conduct afforded them. “The mountain had labored and brought forth a mouse,” quoted the supercilious; the executive dragnet had descended to envelop the monster which was ready to split the Union or at least to embroil its relations with a friendly power, and had brought up–a few peaceful agriculturists! Nor was this the worst of the matter, contended these critics of the Administration, for the real source of the peril had been the President’s own action in assigning the command at New Orleans to Wilkinson, a pensioner of Spain, a villain “from the bark to the very core.” Yet so far was the President from admitting this error that he now attributed the salvation of the country to “the soldier’s honor” and “the citizen’s fidelity” of this same Wilkinson. Surely, then, the real defendants before the bar of opinion were Thomas Jefferson and his precious ally James Wilkinson, not their harried and unfortunate victim, Aaron Burr!
The proceedings against Burr occupied altogether some seven months, during which the sleepy little town of Richmond became the cynosure of all eyes. So famous was the case that it brought thither of necessity or out of curiosity men of every rank and grade of life, of every species of renown. The prosecution was in charge of the United States District Attorney, George Hay–serious, humorless, faithful to Jefferson’s interests, and absolutely devoid of the personal authority demanded by so grave a cause. He was assisted by William Wirt, already a brilliant lawyer and possessed of a dazzling elocution, but sadly lacking in the majesty of years. At the head and forefront of the defense stood Burr himself, an unerring legal tactician, deciding every move of the great game, the stake of which for him was life itself. About him were gathered the ablest members of the Richmond bar: John Wickham, witty and ingenious, Edmund Randolph, ponderous and pontifical, Benjamin Botts, learned and sarcastic, while from Baltimore came Luther Martin to aid his “highly respected friend,” to keep the political pot boiling, and eventually to fall desperately in love with Burr’s daughter, the beautiful Theodosia. Among the 140 witnesses there were also some notable figures: William Eaton, the hero of Derne, whom Burr’s codefendant, Blennerhassett, describes for us as “strutting about the streets under a tremendous hat, with a Turkish sash over colored clothes,” and offering up, with his frequent libations in the taverns, “the copious effusions of his sorrows”; Commodore Truxton, the gallant commander of the Constellation; General Andrew Jackson, future President of the United States, but now a vehement declaimer of Burr’s innocence–out of abundant caution for his own reputation, it may be surmised; Erick Bollmann, once a participant in the effort to release Lafayette from Olmutz and himself just now released from durance vile on a writ of habeas corpus from the Supreme Court; Samuel Swartwout, another tool of Burr’s, reserved by the same beneficent writ for a career of political roguery which was to culminate in his swindling the Government out of a million and a quarter dollars; and finally the bibulous and traitorous Wilkinson, “whose head” as he himself owned, “might err,” but “whose heart could not deceive.” Traveling by packet from New Orleans, this essential witness was heralded by the impatient prosecution, till at last he burst upon the stage with all the eclat of the hero in a melodrama–only to retire bated and perplexed, his villainy guessed by his own partisans.
By the Constitution treason against the United States consists “only in levying war against them, or in adhering to their enemies, giving them aid and comfort,” and no person may be convicted of it “unless on the testimony of two witnesses to the same overt act, or on confession in open court.” The motion to commit Burr for treason thus raised at the outset the question whether in this case an “overt act” existed. Marshall, who held that no evidence had been shown to this effect, denied the motion, but consented to commit the prisoner on the lesser charge that he had attempted a military expedition against Spain. As this was a bailable offense, however, Burr was soon at liberty once 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 Justice.
On the 22d of May the United States Court for the Fifth Circuit and the Virginia District formally convened, with Marshall presiding and Judge Grin at his side. On the same day the grand jury was sworn, with John Randolph as foreman, and presently began taking testimony. Unluckily for the prosecution, the proceedings now awaited the arrival of Wilkinson and the delay was turned to skillful use by the defense to embroil further the relations between the Chief Justice and the President. With this end in view, Burr moved on the 9th of June that a subpoena duces tecum issue to Jefferson requiring him to produce certain papers, including the famous cipher letter to Wilkinson. The main question involved, of course, was that of the right of the Court under any circumstances to issue a subpoena to the President, but the abstract issue soon became involved with a much more irritating personal one. “This,” said Luther Martin, who now found himself in his element, “this is a peculiar case, sir. The President has undertaken to prejudge my client by declaring that ‘of his guilt there is no doubt.’ He has assumed to himself the knowledge of the Supreme Being himself and pretended to search the heart of my highly respected friend. He has proclaimed him a traitor in the face of the country which has rewarded him. He has let slip the dogs of war, the hellhounds of persecution, to hunt down my friend. And would this President of the United States, who has raised all this absurd clamor, pretend to keep back the papers which are wanted for this trial, where life itself is at stake?”
Wirt’s answer to Martin was also a rebuke to the Court. “Do they [the defense] flatter themselves,” he asked, “that this court feel political prejudices which will supply the place of argument and innocence on the part of the prisoner? Their conduct amounts to an insinuation of the sort. But I do not believe it…. Sir, no man, foreigner or citizen, who hears this language addressed to the court, and received with all the complacency at least which silence can imply, can make any inference from it very honorable to the court.” These words touched Marshall’s conscience, as well they might. At the close of the day he asked counsel henceforth to “confine themselves to the point really before the court”–a request which, however, was by no means invariably observed through the following days.
A day or two later Marshall ruled that the subpoena should issue, holding that neither the personal nor the official character of the President exempted him from the operation of that constitutional clause which guarantees accused persons “compulsory process for obtaining witnesses” in their behalf. The demand made upon the President, said the Chief Justice, by his official duties is not an unremitting one, and, “if it should exist at the time when his attendance on a court is required, it would be sworn on the return of the subpoena and would rather constitute a reason for not obeying the process of the court than a reason against its being issued.” Jefferson, however, neither obeyed the writ nor swore anything on its return, though he forwarded some of the papers required to Hay, the district attorney, to be used as the latter might deem best. The President’s argument was grounded on the mutual independence of the three departments of Government; and he asked whether the independence of the Executive could long survive “if the smaller courts could bandy him from pillar to post, keep him constantly trudging from North to South and East to West, and withdraw him entirely from his executive duties?” The President had the best of the encounter on all scores. Not only had Marshall forgotten for the nonce the doctrine he himself had stated in Marbury vs. Madison regarding the constitutional discretion of the Executive, but what was worse still, he had forgotten his own discretion on that occasion. He had fully earned his rebuff, but that fact did not appreciably sweeten it.
On the 24th of June the grand jury reported two indictments against Burr, one for treason and the other for misdemeanor. The former charged that Burr, moved thereto “by the instigation of the devil,” had on the 10th of December previous levied war against the United States at Blennerhassett’s island, in the county of Wood, of the District of Virginia, and had on the day following, at the same place, set in motion a warlike array against the city of New Orleans. The latter charged that a further purpose of this same warlike array was an invasion of Mexico. Treason not being a bailable offense, Burr had now to go to jail, but, as the city jail was alleged to be unhealthful, the Court allowed him to be removed to quarters which had been proffered by the Governor of the State in the penitentiary just outside the city. Burr’s situation here, writes his biographer, “was extremely agreeable. He had a suite of rooms in the third story, extending one hundred feet, where he was allowed to see his friends without the presence of a witness. His rooms were so thronged with visitors at times as to present the appearance of a levee. Servants were continually arriving with messages, notes, and inquiries, bringing oranges, lemons, pineapples, raspberries, apricots, cream, butter, ice, and other articles–presents from the ladies of the city. In expectation of his daughter’s arrival, some of his friends in town provided a house for her accommodation. The jailer, too, was all civility.”* Little wonder that such goings-on are said to have “filled the measure of Jefferson’s disgust.”
* Parton’s “Life and Times of Aaron Burr” (13th Edition, N.Y., 1880), p. 479.
The trial itself opened on Monday, the 3d of August. The first business in hand was to get a jury which would answer to the constitutional requirement of impartiality–a task which it was soon discovered was likely to prove a difficult one. The original panel of forty-eight men contained only four who had not expressed opinions unfavorable to the prisoner, and of these four all but one admitted some degree of prejudice against him. These four were nevertheless accepted as jurors. A second panel was then summoned which was even more unpromising in its make-up, and Burr’s counsel began hinting that the trial would have to be quashed, when Burr himself arose and offered to select eight out of the whole venire to add to the four previously chosen. The offer was accepted, and notwithstanding that several of the jurors thus obtained had publicly declared opinions hostile to the accused, the jury was sworn in on the 17th of August.
At first glance Burr’s concession in the selecting of a jury seems extraordinary. But then, why should one so confident of being able to demonstrate his innocence fear prejudice which rested on no firmer basis than ignorance of the facts? This reflection, however, probably played small part in Burr’s calculations, for already he knew that if the contemplated strategy of his counsel prevailed the case would never come before the jury.
The first witness called by the prosecution was Eaton, who was prepared to recount the substance of numerous conversations he had held with Burr in Washington in the winter of 1805-6, in which Burr had gradually unveiled to him the treasonable character of his project. No sooner, however, was Eaton sworn than the defense entered the objection that his testimony was not yet relevant, contending that in a prosecution for treason the great material fact on which the merits of the entire controversy pivots was the overt act, which must be “AN OPEN ACT OF WAR”; just as in a murder trial the fact of the killing, the corpus delicti, must be proved before any other testimony was relevant, so in the pending prosecution, said they, no testimony was admissible until the overt act had been shown in the manner required by the Constitution.
The task of answering this argument fell to Wirt, who argued, and apparently with justice, that the prosecution was free to introduce its evidence in any order it saw fit, provided only that the evidence was relevant to the issue raised by the indictment, and that if an overt act was proved “in the course of the whole evidence,” that would be sufficient. The day following the Court read an opinion which is a model of ambiguous and equivocal statement, but the purport was fairly clear: for the moment the Court would not interfere, and the prosecution was free to proceed as it thought best, with the warning that the Damocles sword of “irrelevancy” was suspended over its head by the barest thread and might fall at any moment.
For the next two days the legal battle was kept in abeyance while the taking of testimony went forward. Eaton was followed on the stand by Commodore Truxton, who stated that in conversation with him Burr had seemed to be aiming only at an expedition against Mexico. Then came General Morgan and his two sons who asserted their belief in the treasonable character of Burr’s designs. Finally a series of witnesses, the majority of them servants of Blennerhassett, testified that on the evening of December 10, 1806, Burr’s forces had assembled on the island.
This line of testimony concluded, the prosecution next indicated its intention of introducing evidence to show Burr’s connection with the assemblage on the island, when the defense sprang the coup it had been maturing from the outset. Pointing out the notorious fact that on the night of the 10th of December Burr had not been present at the island but had been two hundred miles away in Kentucky, they contended that, under the Constitution, the assemblage on Blennerhassett’s island could not be regarded as his act, even granting that he had advised it, for, said they, advising war is one thing but levying it is quite another. If this interpretation was correct, then no overt act of levying war, either within the jurisdiction of the Court or stated in the indictment, had been, or could be, shown against Burr. Hence the taking of evidence–if not the cause itself, indeed–should be discontinued.
The legal question raised by this argument was the comparatively simple one whether the constitutional provision regarding treason was to be interpreted in the light of the Common Law doctrine that “in treason all are principals.” For if it were to be so interpreted and if Burr’s connection with the general conspiracy culminating in the assemblage was demonstrable by any sort of legal evidence, then the assemblage was his act, his overt act, proved moreover by thrice the two witnesses constitutionally required! Again it fell to Wirt to represent the prosecution, and he discharged his task most brilliantly. He showed beyond peradventure that the Common Law doctrine was grounded upon unshakable authority; that, considering the fact that the entire phraseology of the constitutional clause regarding treason comes from an English statute of Edward III’s time, it was reasonable, if not indispensable, to construe it in the light of the Common Law; and that, certainly as to a procurer of treason, such as Burr was charged with being, the Common Law doctrine was the only just doctrine, being merely a reaffirmation of the even more ancient principle that “what one does through another, he does himself.”
In elaboration of this last point Wirt launched forth upon that famous passage in which he contrasted Burr and the pathetic victim of his 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 doctrine.
* A recurrent feature of their arguments was a denunciation of “constructive treason.” But this was mere declamation. Nobody was charging Burr with any sort of treason except that which is specifically defined by the Constitution itself, namely, the levying of war against the United States. The only question at issue was as to the method of proof by which this crime may be validly established in the case of one accused of procuring treason. There was also much talk about the danger and injustice of dragging a man from one end of the country to stand trial for an act committed at the other end of it. The answer was that, if the man himself procured the act or joined others in bringing it about, he ought to stand trial where the act occurred. This same “injustice” may happen today in the case of murder!
Marshall’s effort to steer between this doctrine and its obvious consequences for the case before him placed him, therefore, in the curious position of demanding that two overt acts be proved each by two witnesses. But if two, why not twenty? For it must often happen that the traitor’s connection with the overt act is demonstrable not by a single act but a series of acts. Furthermore, in the case of procurers of treason, this connection will ordinarily not appear in overt acts at all but, as in Burr’s own case, will be covert. Can it be, then, that the Constitution is chargeable with the absurdity of regarding the procurers of treason as traitors and yet of making their conviction impossible? The fact of the matter was that six months earlier, before his attitude toward Burr’s doings had begun to take color from his hatred and distrust of Jefferson, Marshall had entertained no doubt that the Common Law doctrine underlay the constitutional definition of treason. Speaking for the Supreme Court in the case of Bollmann and Swartwout, he had said: “It is not the intention of the Court to say that no individual can be guilty of this crime who has not appeared in arms against his country; on the contrary, if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered traitors.” Marshall’s effort to square this previous opinion with his later position was as unconvincing as it was labored.*
* The way in which Marshall proceeded to do this was to treat the phrase “perform a part” as demanding “a levying of war” on the part of the performer. (Robertson, “Reports,” vol. II, p. 438.) But this explanation will not hold water. For what then becomes of the phrase “scene of action” in the passage just quoted? What is the difference between the part to be performed “however minute,” and the “action” from which the performer maybe “however remote”? It is perfectly evident that the “action” referred to is the assemblage which is regarded as the overt act of war, and that the “part however minute” is something very 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 (1827).
Though the wealth of available legal talent at this period was impressively illustrated in connection both with Chase’s impeachment and with Burr’s trial, yet on neither of these occasions appeared William Pinkney of Maryland, the attorney to whom Marshall acknowledged his greatest indebtedness, and who was universally acknowledged to be the leader of the American Bar from 1810 until his death twelve years later. Besides being a great lawyer, Pinkney was also a notable personality, as George Ticknor’s sketch of him as he appeared before the Supreme Court in 1815 goes to prove:
“You must imagine, if you can, a man formed on nature’s most liberal scale, who at the age of 50 is possessed with the ambition of being a pretty fellow, wears corsets to diminish his bulk, uses cosmetics, as he told Mrs. Gore, to smooth and soften a skin growing somewhat wrinkled and rigid with age, dresses in a style which would be thought foppish in a much younger man. You must imagine such a man standing before the gravest tribunal in the land, and engaged in causes of the deepest moment; but still apparently thinking how he can declaim like a practised rhetorician in the London Cockpit, which he used to frequent. Yet you must, at the same time, imagine his declamation to be chaste and precise in its language and cogent, logical and learned in its argument, free from the artifice and affectation of his manner, and in short, opposite to what you might fairly have expected from his first appearance and tones. And when you have compounded these inconsistencies in your imagination, and united qualities which on common occasions nature seems to hold asunder, you will, perhaps, begin to form some idea of what Mr. Pinkney is.”
Such was the man whom Marshall, Story, and Taney all considered the greatest lawyer who had ever appeared before the Supreme Court.
At the close of the War of 1812, Marshall, though he had decided many important questions of International Law,* nevertheless found himself only at the threshold of his real fame. Yet even thus early he had indicated his point of view. Thus in the case of the United States vs. Peters,** which was decided in 1809, the question before the Court was whether a mandamus should issue to the United States District Judge of Pennsylvania ordering him to enforce, in the face of the opposition of the state Government, a decision handed down in a prize case more than thirty years before by the old Committee of Appeals of the Continental Congress. Marshall answered the question affirmatively, saying: “If the legislatures of the several states may, at will, annul the judgments of the courts of the United States and destroy the rights acquired under those judgments, the Constitution itself becomes a solemn mockery, and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals.”
* Two famous decisions of Marshall’s in this field are those in the Schooner Exchange vs. McFaddon et al, 7 Cranch, 116, and the case of the Nereide, 9 ib., 388.
** 5 Cranch, 136.
Marshall’s decision evoked a warm protest from the Pennsylvania Legislature and led to a proposal of amendment to the Constitution providing “an impartial tribunal” between the General Government and the States; and these expressions of dissent in turn brought the Virginia Assembly to the defense of the Supreme Court.
“The commission to whom was referred the communication of the governor of Pennsylvania [reads the Virginia document]…are of the opinion that a tribunal is already provided by the Constitution of the United States, to wit; the Supreme Court, more eminently qualified from their habits and duties, from the mode of their selection, and from the tenure of their offices, to decide the disputes aforesaid in an enlightened and impartial manner than any other tribunal which could be created.
“The members of the Supreme Court are selected from those in the United States who are most celebrated for virtue and legal Learning…. The duties they have to perform lead them necessarily to the most enlarged and accurate acquaintance with the jurisdiction of the federal and several State courts together, and with the admirable symmetry of our government. The tenure of their offices enables them to pronounce the sound and correct opinions they have formed, without fear, favor or partiality.”
Was it coincidence or something more that during Marshall’s incumbency Virginia paid her one and only tribute to the impartiality of the Supreme Court while Burr’s acquittal was still vivid in the minds of all? Or was it due to the fact that “the Great Lama of the Little Mountain”–to use Marshall’s disrespectful appellation for Jefferson–had not yet converted the Virginia Court of Appeals into the angry oracle of his own unrelenting hatred of the Chief Justice? Whatever the reason, within five years Virginia’s attitude had again shifted, and she had become once more what she had been in 1798-99, the rallying point of the forces of Confederation and State Rights.
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 Land.'”
But a Government which is supreme must have the right to choose the means by which to make its supremacy effective; and indeed, at this point again the Constitution comes to the aid of reason by declaring specifically that Congress may make all laws “necessary and proper” for carrying into execution any of the powers of the General Government. Counsel for Maryland would read this clause as limiting the right which it recognized to the choice only of such means of execution as are indispensable; they would treat the word “necessary” as controlling the clause and to this they would affix the word “absolutely.” “Such is the character of human language,” rejoins the Chief Justice, “that no word conveys to the mind in all situations, one single definite idea,” and the word “necessary,” “like others, is used in various senses,” so that its context becomes most material in determining its significance.
And what is its context on this occasion? “The subject is the execution of those great powers on which the welfare of a nation essentially depends.” The provision occurs “in a Constitution intended to endure for ages to come and consequently to be adapted to the various crises of human affairs.” The purpose of the clause therefore is not to impair the right of Congress “to exercise its best judgment in the selection of measures to carry into execution the constitutional powers of the Government,” but rather “to remove all doubts respecting the right to legislate on that vast mass of incidental powers which must be involved in the Constitution, if that instrument be not a splendid bauble….Let the end be legitimate, let it be within the scope of the Constitution and all means which are appropriate, which are plainly
adapted to that end, which are not prohibited but consist with the
letter and spirit of the Constitution, are constitutional.”
But was the Act of Maryland which taxed the Bank in conflict with the Act of Congress which established it? If so, must the State yield to Congress? In approaching this question Marshall again laid the basis for as sweeping a decision as possible. The terms in which the Maryland statute was couched indicated clearly that it was directed specifically against the Bank, and it might easily have been set aside on that ground. But Marshall went much further and laid down the principle that the instrumentalities of the National Government are never subject to taxation by the States in any form whatsoever, and for two reasons. In the first place, “those means are not given by the people of a particular State…but by the people of all the States. They are given by all far the benefit of all,” and owe their presence in the State not to the State’s permission but to a higher authority. The State of Maryland therefore never had the power to tax the Bank in the first place. Yet waiving this theory, there was, in the second place, flat incompatibility between the Act of Maryland and the Act of Congress, not simply because of the specific operation of the former, but rather because of the implied claim which it made for state authority. “That the power to tax involves the power to destroy,” Marshall continued; “that the power to destroy may defeat and render useless the power to create; that there is a plain repugnance in conferring on one government a power to control the constitutional measures of another, which other, with respect to those very measures is declared to be supreme over that which exerts the control, are propositions not to be denied.” Nor indeed is the sovereignty of the State confined to taxation. “That is not the only mode in which it might be displayed. The question is in truth, a question of supremacy, and if the right of the States to tax the means employed by the General Government be conceded, the declaration that the Constitution and the laws made in pursuance thereof shall be supreme law of the land, is empty and unmeaning declamation…. We are unanimously of opinion,” concluded the Chief Justice, “that the law…of Maryland, imposing a tax on the Bank of the United States is unconstitutional and 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 frontiers.
But was it sufficient for Marshall merely to define the power of Congress? Must not the power of the State also be considered? At least, Ogden’s attorneys had argued, the mere existence in Congress of the power to regulate commerce among the States did not prevent New York from exercising the same power, through legislation operating upon subject matter within its own boundaries. No doubt, he concedes, the States have the right to enact many kinds of laws which will incidentally affect commerce among the States, such for instance as quarantine and health laws, laws regulating bridges and ferries, and so on; but this they do by virtue of their power of “internal police,” not by virtue of a “concurrent” power over commerce, foreign and interstate. And, indeed, New York may have granted Fulton and Livingston their monopoly in exercise of this power, in which case its validity would depend upon its not conflicting with an Act of Congress regulating commerce. For should such conflict exist, the State enactment, though passed “in the exercise of its acknowledged sovereignty,” must give place in consequence of the supremacy conferred by the Constitution upon all acts of Congress in pursuance of it, over all state laws whatsoever.
The opinion then proceeds to the consideration of the Act of Congress relied upon by Gibbons. This, Ogden’s attorneys contended, merely conferred the American character upon vessels already possessed of the right to engage in the coasting trade; Marshall, on the contrary, held that it conferred the right itself, together with the auxiliary right of navigating the waters of the United States; whence it followed that New York was powerless to exclude Gibbons’s vessels from the Hudson. Incidentally Marshall indicated his opinion that Congress’s power extended to the carriage of passengers as well as of goods and to vessels propelled by steam as well as to those driven by wind. “The one element,” said he, “may be as legitimately used as the other for every commercial purpose authorized by the laws of the Union.”
Two years later, in the case of Brown vs. Maryland,* Marshall laid down his famous doctrine that so long as goods introduced into a State in the course of foreign trade remain in the hands of the importer and in the original package, they are not subject to taxation by the State. This doctrine is interesting for two reasons. In the first place, it implies the further principle that an attempt by a State to tax interstate or foreign commerce is tantamount to an attempt to regulate such commerce, and is consequently void. In other words, the principle of the exclusiveness of Congress’s power to regulate commerce among the States and with foreign nations, which is advanced by way of dictum in Gibbons vs. Ogden, becomes in Brown vs. Maryland a ground of decision. It is a principle which has proved of the utmost importance in keeping the field of national power clear of encumbering state legislation against the day when Congress should elect to step in and assume effective control. Nor can there be much doubt that the result was intended by the framers of the Constitution.
* 12 Wheaton, 419.
In the second place, however, from another point of view this “original package doctrine” is only an extension of the immunity from state taxation established in M’Culloch vs. Maryland for instrumentalities of the National Government. It thus reflects the principle implied by that decision: where power exists to any degree or for any purpose, it exists to every degree and for every purpose; or, to quote Marshall’s own words in Brown vs. Maryland, “questions of power do not depend upon the degree to which it may be exercised; if it may be exercised at all, it may be exercised at the will of those in whose hands it is placed.” The attitude of the Court nowadays, when it has to deal with state legislation, is very different. It takes the position that abuse of power, in relation to private rights or to commerce, is excess of power and hence demands to be shown the substantial effect of legislation, not its mere formal justification.* In short, its inquiry is into facts. On the other hand, when dealing with congressional legislation, the Court has hitherto always followed Marshall’s bolder method. Thus Congress may use its taxing power to drive out unwholesome businesses, perhaps even to regulate labor within the States, and it may close the channels of interstate and foreign commerce to articles deemed by it injurious to the public health or morals.** To date this discrepancy between the methods employed by the Court in passing upon the validity of legislation within the two fields of state and national power has afforded the latter a decided advantage.
* See Justice Bradley’s language in 122 U.S., 326; also the more recent case of Western Union Telegraph Company vs. Kan., 216 U.S., 1.
** See 195 U.S., 27; 188 U.S., 321; 227 U.S., 308. Cf. 247 U.S., 251.
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.” “Discourse.”
Such was still the situation when the case of Fletcher vs. Peck* in 1810 raised before the Supreme Court the question whether the Georgia Legislature had the right to rescind a land grant made by a preceding Legislature. On any of three grounds Marshall might easily have disposed of this case before coming to the principal question. In the first place, it was palpably a moot case; that is to say, it was to the interest of the opposing parties to have the rescinding act set aside. The Court would not today take jurisdiction of such a case, but Marshall does not even suggest such a solution of the question, though Justice Johnson does in his concurring opinion. In the second place, Georgia’s own claim to the lands had been most questionable, and consequently her right to grant them to others was equally dubious; but this, too, is an issue which Marshall avoids. Finally, the grant had been procured by corrupt means, but Marshall ruled that this was not a subject the Court might enter upon; and for the ordinary run of cases in which undue influence is alleged to have induced the enactment of a law, the ruling is clearly sound. But this was no ordinary case. The fraud asserted against the grant was a matter of universal notoriety; it was, indeed, the most resounding scandal of the generation; and surely judges may assume to know what is known to all and may act upon their knowledge.
* 6 Cranch, 87.
Furthermore, when one turns to the part of Marshall’s opinion which deals with the constitutional issue, one finds not a little evidence of personal predilection on the part of the Chief Justice. He starts out by declaring the rescinding act void as a violation of vested rights, of the underlying principles of society and government, and of the doctrine of the separation of powers. Then he apparently realizes that a decision based on such grounds must be far less secure and much less generally available than one based on the words of the Constitution; whereupon he brings forward the obligation of contracts clause. At once, however, he is confronted with the difficulty that the obligation of a contract is the obligation of a contract still to be fulfilled, and that a grant is an executed contract over and done with–functus officio. This difficulty he meets by asserting that every grant is attended by an implied contract on the part of the grantor not to reassert his right to the thing granted. This, of course, is a palpable fiction on Marshall’s part, though certainly not an unreasonable one. For undoubtedly when a grant is made without stipulation to the contrary, both parties assume that it will be permanent.
The greater difficulty arose from the fact that, whether implied or explicit, the contract before the Court was a PUBLIC one. In the case of private contracts it is easy enough to distinguish the contract, as the agreement between the parties, from the obligation of the contract which comes from the law and holds the parties to their engagements. But what law was there to hold Georgia to her supposed agreement not to rescind the grant she had made? Not the Constitution of the United States unattended by any other law, since it protects the obligation only after it has come into existence. Not the Constitution of Georgia as construed by her own courts, since they had sustained the rescinding act. Only one possibility remained; the State Constitution must be the source of the obligation–yes; but the State Constitution as it was construed by the United States Supreme Court in this very case, in the light of the “general principles of our political institutions.” In short the obligation is a moral one; and this moral obligation is treated by Marshall as having been converted into a legal one by the United States Constitution.
However, Marshall apparently fails to find entire satisfaction in this argument, for he next turns to the prohibition against bills of attainder and ex post facto laws with a question which manifests disapproval of the decision in Calder vs. Bull. Yet he hesitates to overrule Calder vs. Bull, and, indeed, even at the very end of his opinion he still declines to indicate clearly the basis of his decision. The State of Georgia, he says, “was restrained” from the passing of the rescinding act “either by general principles which are common to our free institutions, or by particular provisions of the Constitution of the United States.” It was not until nine years after Fletcher vs. Peck that this ambiguity was cleared up in the Dartmouth College case in 1819.
The case of the Trustees of Dartmouth College vs. Woodward* was a New England product and redolent of the soil from which it sprang. In 1754 the Reverend Eleazar Wheelock of Connecticut had established at his own expense a charity school for instructing Indians in the Christian religion; and so great was his success that he felt encouraged to extend the undertaking and to solicit donations in England. Again success rewarded his efforts; and in 1769 Governor Wentworth of New Hampshire, George III’s representative granted the new institution, which was now located at Hanover, New Hampshire, a charter incorporating twelve named persons as “The Trustees of Dartmouth College” with the power to govern the institution, appoint its officers, and fill all vacancies in their own body “forever.”
* The following account of this case is based on J. M. Shirley’s “Dartmouth College Causes” (St. Louis, 1879) and on the official report, 4 Wheaton, 518.
For many years after the Revolution, the Trustees of Dartmouth College, several of whom were ministers, reflected the spirit of Congregationalism. Though this form of worship occupied almost the position of a state religion in New Hampshire, early in this period difficulties arose in the midst of the church at Hanover. A certain Samuel Hayes, or Haze, told a woman named Rachel Murch that her character was “as black as Hell,” and upon Rachel’s complaint to the session, he was “churched” for “breach of the Ninth Commandment and also for a violation of his covenant agreement.” This incident caused a rift which gradually developed into something very like a schism in the local congregation, and this internal disagreement finally produced a split between Eleazar’s son, Dr. John Wheelock, who was now president of Dartmouth College, and the Trustees of the institution. The result was that in August, 1815, the Trustees ousted Wheelock.
The quarrel had thus far involved only Calvinists and Federalists, but in 1816 a new element was brought in by the interference of the Governor of New Hampshire, William Plumer, formerly a Federalist but now, since 1812, the leader of the Jeffersonian party in the State. In a message to the Legislature dated June 6, 1816, Plumer drew the attention of that body to Dartmouth College. “All literary establishments,” said he, “like everything human, if not duly attended to, are subject to decay…. As it [the charter of the College] emanated from royalty,
it contained, as was natural it should, principles congenial to monarchy,” and he cited particularly the power of the Board of Trustees to perpetuate itself. “This last principle,” he continued, “is hostile to the spirit and genius of a free government. Sound policy therefore requires that the mode of election should be changed and that Trustees in future should be elected by some other body of men…. The College was formed for the PUBLIC good, not for the benefit or emolument of its Trustees; and the right to amend and improve acts of incorporation of this nature has been exercised by all governments, both monarchical and republican.”
Plumer sent a copy of his message to Jefferson and received a characteristic answer in reply “It is replete,” said the Republican sage, “with sound principles…. The idea that institutions established for the use of the nation cannot be touched nor modified, even to make them answer their end…is most absurd…. Yet our lawyers and priests generally inculcate this doctrine, and suppose that preceding generations held the earth more freely than we do; had a right to impose laws on us, unalterable by ourselves;…in fine, that the earth belongs to the dead and not to the living.” And so, too, apparently the majority of the Legislature believed; for by the measure which it promptly passed, in response to Plumer’s message, the College was made Dartmouth University, the number of its trustees was increased to twenty-one, the appointment of the additional members being given to the Governor, and a board of overseers, also largely of gubernatorial appointment, was created to supervise all important acts of the trustees.
The friends of the College at once denounced the measure as void under both the State and the United States Constitution and soon made up a test case. In order to obtain the college seal, charter, and records, a mandate was issued early in 1817 by a local court to attach goods, to the value of $50,000, belonging to William H. Woodward, the Secretary and Treasurer of the “University.” This was served by attaching a chair “valued at one dollar.” The story is also related that authorities of the College, apprehending an argument that the institution had already forfeited its charter on account of having ceased to minister to Indians, sent across into Canada for some of the aborigines, and that three were brought down the river to receive matriculation, but becoming panic-stricken as they neared the town, leaped into the water, swam ashore, and disappeared in the forest. Unfortunately this interesting tale has been seriously questioned.
The attorneys of the College before the Superior Court were Jeremiah Mason, one of the best lawyers of the day, Jeremiah Smith, a former Chief Justice of New Hampshire, and Daniel Webster. These three able lawyers argued that the amending act exceeded “the rightful ends of legislative power,” violated the principle of the separation of powers, and deprived the trustees of their “privileges and immunities” contrary to the “law of the land” clause of the State Constitution, and impaired the obligation of contracts. The last contention stirred Woodward’s attorneys, Bartlett and Sullivan, to ridicule. “By the same reasoning,” said the latter, “every law must be considered in the nature of a contract, until the Legislature would find themselves in such a labyrinth of contracts, with the United States Constitution over their heads, that not a subject would be left within their jurisdiction”; the argument was an expedient of desperation, he said, a “last straw.” The principal contention advanced in behalf of the Act was that the College was “a public corporation,” whose “various powers, capacities, and franchises all…were to be exercised for the benefit of the public,” and were therefore subject to public control. And the Court, in sustaining the Act, rested its decision on the same ground. Chief Justice Richardson conceded the doctrine of Fletcher vs. Peck, that the obligation of contracts clause “embraced all contracts relating to private property, whether executed or executory, and whether between individuals, between States, or between States and individuals,” but, he urged, “a distinction is to be taken between particular grants by the Legislature of property or privileges to individuals for their own benefit, and grants of power and authority to be exercised for public purposes.” Its public character, in short, left the College and its holdings at the disposal of the Legislature.
Of the later proceedings, involving the appeal to Washington and the argument before Marshall, early in March, 1818, tradition has made Webster the central and compelling figure, and to the words which it assigns him in closing his address before the Court has largely been attributed the great legal triumph which presently followed. The story is, at least, so well found that the chronicler of Dartmouth College vs. Woodward who should venture to omit it must be a bold man indeed.
“The argument ended [runs the tale], Mr. Webster stood for some moments silent before the Court, while every eye was fixed intently upon him. At length, addressing the Chief Justice, he proceeded thus: ‘This, sir, is my case. It is the case…of every college in our land…. Sir, you may destroy this little institution…. You may put it out. But if you do so, you must carry through your work! You must extinguish, one after another, all those greater lights of science, which, for more than a century have thrown their radiance over our land. It is, Sir, as I have said, a small college. And yet there are those who love it–‘
“Here, the feelings which he had thus far succeeded in keeping down, broke forth, his lips quivered; his firm cheeks trembled with emotion, his eyes filled with tears…. The court-room during these two or three minutes presented an extraordinary spectacle. Chief Justice Marshall, with his tall and gaunt figure bent over, as if to catch the slightest whisper, the deep furrows of his cheek expanded with emotion, and his eyes suffused with tears; Mr. Justice Washington at his side, with small and emaciated frame, and countenance more like marble than I ever saw on any other human being…. There was not one among the strong-minded men of that assembly who could think it unmanly to weep, when he saw standing before him the man who had made such an argument, melted into the tenderness of a child.
“Mr. Webster had now recovered his composure, and, fixing his keen eyes on Chief Justice Marshall, said in that deep tone with which he sometimes thrilled the heart of an audience: ‘Sir, I know not how others may feel…but for myself, when I see my Alma Mater surrounded, like Caesar in the Senate house, by those who are reiterating stab after stab, I would not, for my right hand, have her turn to me and say, Et tu quoque mi fili! And thou, too, my son!’
Whether this extraordinary scene, first described thirty-four years afterward by a putative witness of it, ever really occurred or not, it is today impossible to say.* But at least it would be an error to attribute to it great importance. From the same source we have it that at Exeter, too, Webster had made the judges weep–yet they had gone out and decided against him. Judges do not always decide the way they weep!
* Professor Goodrich of Yale, who is responsible for the story, communicated it to Rufus Choate in 1853. It next appears on Goodrich’s authority in Curtis’s “Webster,” vol. II, pp. 169-71.
Of the strictly legal part of his argument Webster himself has left us a synopsis. Fully three-quarters of it dealt with the questions which had been discussed by Mason before the State Supreme Court under the New Hampshire Constitution and was largely irrelevant to the great point at issue at Washington. Joseph Hopkinson, who was now associated with Webster, contributed far more to the content of Marshall’s opinion; yet he, too, left one important question entirely to the Chief Justice’s ingenuity, as will be indicated shortly. Fortunately for the College its opponents were ill prepared to take advantage of the vulnerable points of its defense. For some unknown reason, Bartlett and Sullivan, who had carried the day at Exeter, had now given place to William Wirt and John Holmes. Of these the former had just been made Attorney-General of the United States and had no time to give to the case–indeed he admitted that “he had hardly thought of it till it was called on.” As for Holmes, he was a “kaleidoscopic politician” and barroom wit, best known to contemporaries as “the noisy eulogist and reputed protege of Jefferson.” A remarkable strategy that, which stood such a person up before John Marshall to plead the right of state Legislatures to dictate the fortunes of liberal institutions!
The arguments were concluded on Thursday, the 12th of March. The next morning the Chief Justice announced that the Court had conferred, that there were different opinions, that some of the judges had not arrived at a conclusion, and that consequently the cause must be continued. Webster, however, who was apt to be much in “the know” of such matters, ventured to place the different judges thus: “The Chief and Washington,” he wrote his former colleague Smith, “I have no doubt, are with us. Duvall and Todd perhaps against us; the other three holding up–I cannot much doubt but that Story will be with us in the end, and I think we have much more than an even chance for one of the others.”
The friends of the College set promptly to work to bring over the wavering judges. To their dismay they learned that Chancellor James Kent of New York, whose views were known to have great weight with Justices Johnson and Livingston, had expressed himself as convinced by Chief Justice Richardson’s opinion that Dartmouth College was a public corporation. Fortunately, however, a little ransacking of the records brought to light an opinion which Kent and Livingston had both signed as early as 1803, when they were members of the New York Council of Revision, and which took the ground that a then pending measure in the New York Legislature for altering the Charter of New York City violated “due process of law.” At the same time, Charles Marsh, a friend of both Kent and Webster, brought to the attention of the former Webster’s argument before Marshall at Washington in March, 1818. Then came a series of conferences at Albany in which Chancellor Kent, Justice Johnson, President Brown of Dartmouth College, Governor Clinton, and others participated. As a result, the Chancellor owned himself converted to the idea that the College was a private institution.
The new term of court opened on Monday, February 1, 1819. William Pinkney, who in vacation had accepted a retainer from the backers of Woodward, that is, of the State, took his stand on the second day near the Chief Justice, expecting to move for a reargument. Marshall, “turning his blind eye” to the distinguished Marylander, announced that the Court had reached a decision, plucked from his sleeve an eighteen folio manuscript opinion, and began reading it. He held that the College was a “private eleemosynary institution”; that its charter was the outgrowth of a contract between the original donors and the Crown, that the trustees represented the interest of the donors, and that the terms of the Constitution were broad enough to cover and protect this representative interest. The last was the only point on which he confessed a real difficulty. The primary purpose of the constitutional clause, he owned, was to protect “contracts the parties to which have a vested beneficial interest” in them, whereas the trustees had no such interest at stake. But, said he, the case is within the words of the rule, and “must be within its operation likewise, unless there be something in the literal construction” obviously at war with the spirit of the Constitution, which was far from the fact. For, he continued, “it requires no very critical examination of the human mind to enable us to determine that one great inducement to these gifts is the conviction felt by the giver that the disposition he makes of them is immutable. All such gifts are made in the pleasing, perhaps delusive hope, that the charity will flow forever in the channel which the givers have marked out for it. If every man finds in his own bosom strong evidence of the universality of this sentiment, there can be but little reason to imagine that the framers of our Constitution were strangers to it, and that, feeling the necessity and policy of giving permanence and security to contracts” generally, they yet deemed it desirable to leave this sort of contract subject to legislative interference. Such is Marshall’s answer to Jefferson’s outburst against “the dead hand.”
Characteristically, Marshall nowhere cites Fletcher vs. Peck in his opinion, but he builds on the construction there made of the “obligation of contracts” clause as clearly as do his associates, Story and Washington, who cite it again and again in their concurring opinion. Thus he concedes that the British Parliament, in consequence of its unlimited power, might at any time before the Revolution have annulled the charter of the College and so have disappointed the hopes of the donors; but, he adds, “THE PERFIDY OF THE TRANSACTION WOULD HAVE BEEN UNIVERSALLY ACKNOWLEDGED.” Later on, he further admits that at the time of the Revolution the people of New Hampshire succeeded to “the transcendent power of Parliament,” as well as to that of the King, with the result that a repeal of the charter before 1789 could have been contested only under the State Constitution. “But the Constitution of the United States,” he continues, “has imposed this additional limitation, that the Legislature of a State shall pass no act ‘impairing the obligation of contracts.'” In short, as in Fletcher vs. Peck, what was originally a moral obligation is regarded as having been lifted by the Constitution into the full status of a legal one, and this time without any assistance from “the general principles of our free institutions.”
How is the decision of the Supreme Court in the case of Dartmouth College vs. Woodward to be assessed today? Logically the basis of it was repudiated by the Court itself within a decade, albeit the rule it lays down remained unaffected. Historically it is equally without basis, for the intention of the obligation of contracts clause, as the 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, 1815.
* See Chapter I.
** 4 Munford (Va.), 1. See also William E. Dodd’s article on “Chief Justice Marshall and Virginia in American Historical Review,” vol. XII, p. 776.
The head and front of the Virginia court at this time was Spencer Roane, described as “the most powerful politician in the State,” an ardent Jeffersonian, and an enemy of Marshall on his own account, for had Ellsworth not resigned so inopportunely, late in 1800, and had Jefferson had the appointment of his successor, Roane would have been the man. His opinion in Hunter vs. Martin disclosed personal animus in every line and was written with a vehemence which was more likely to discomfit a grammarian than its designed victims; but it was withal a highly ingenious plea. At one point Roane enjoyed an advantage which would not be his today when so much more gets into print, for the testimony of Madison’s Journal, which was not published till 1840, is flatly against him on the main issue. In 1814, however, the most nearly contemporaneous evidence as to the intention of the framers of the Constitution was that of the “Federalist,” which Roane stigmatizes as “a mere newspaper publication written in the heat and fury of the battle,” largely by “a supposed favorer of a consolidated government.” This description not only overlooks the obvious effort of the authors of the “Federalist” to allay the apprehensions of state jealousy but it also conveniently ignores Madison’s part in its composition. Indeed, the enfant terrible of State Rights, the Madison of 1787-88, Roane would fain conceal behind the Madison of ten years later; and the Virginia Resolutions of 1798 and the Report of 1799 he regards the earliest “just exposition of the principles of the Constitution.”
To the question whether the Constitution gave “any power to the Supreme Court of the United States to reverse the judgment of the supreme court of a State,” Roane returned an emphatic negative. His argument may be summarized thus: The language of Article III of the Constitution does not regard the state courts as composing a part of the judicial organization of the General Government; and the States, being sovereign, cannot be stripped of their power merely by implication. Conversely, the General Government is a government over individuals and is therefore expected to exercise its powers solely through its own organs. To be sure, the judicial power of the United States extends to “all cases arising” under the Constitution and the laws of the United States. But in order to come within this description, a case must not merely involve the construction of the Constitution or laws of the United States; it must have been instituted in the United States courts, and not in those of another Government. Further, the Constitution and the acts of Congress “in pursuance thereof” are “the supreme law of the land,” and “the judges in every State” are “bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” But they are bound as state judges and only as such; and what the Constitution is, or what acts of Congress are “in pursuance” of it, is for them to declare without any correction or interference by the courts of