another jurisdiction. Indeed, it is through the power of its courts to say finally what acts of Congress are constitutional and what are not, that the State is able to exercise its right of arresting within its boundaries unconstitutional measures of the General Government. For the legislative nullification of such measures proposed by the Virginia and Kentucky resolutions is thus substituted judicial nullification by the local judiciaries.
In Martin vs. Hunter’s Lessee,* which was decided in February, 1816, Story, speaking for the Court, undertook to answer Roane. Roane’s major premise he met with flat denial: “It is a mistake,” he asserts, “that the Constitution was not designed to operate upon States in their corporate capacities. It is crowded with provisions which restrain or annul the sovereignty of the States in some of the highest branches of their prerogatives.” The greater part of the opinion, however, consisted of a minute examination of the language of Article III of the Constitution. In brief, he pointed out that while Congress “may…establish” inferior courts and, therefore, may not, it was made imperative that the judicial power of the United States “shall extend to all cases arising…under” the Constitution and acts of Congress. If, therefore, Congress should exercise its option and not establish inferior courts, in what manner, he asked, could the purpose of the Constitution be realized except by providing appeals from the state courts to the United States Supreme Court? But more than that, the practical consequences of the position taken by the Virginia Court of Appeals effectually refuted it. That there should be as many versions of the Constitution, laws, and treaties as there are States in the Union was certainly never intended by the framers, nor yet that plaintiffs alone should say when resort should be had to the national tribunals, which were designed for the benefit of all.
* 1 Wheaton, 304. Marshall had an indirect interest in the case. See supra, Chapter II.
If Story’s argument is defective at any point, it is in its failure to lay down a clear definition of “cases arising under this Constitution,” and this defect in constitutional interpretation is supplied five years later in Marshall’s opinion in Cohens vs. Virginia.* The facts of this famous case were as follows: Congress had established a lottery for the District of Columbia, for which the Cohens had sold tickets in Virginia. They had thus run foul of a state law prohibiting such transactions and had been convicted of the offense in the Court of Quarterly Sessions of Norfolk County and fined one hundred dollars. From this judgment they were now appealing under Section XXV.
* 6 Wheaton, 264.
Counsel for the State of Virginia again advanced the principles which had been developed by Roane in Hunter vs. Martin but urged in addition that this particular appeal rendered Virginia a defendant contrary to Article XI of the Amendments. Marshall’s summary of their argument at the outset of his opinion is characteristic: “They maintain,” he said, “that the nation does not possess a department capable of restraining peaceably, and by authority of law, any attempts which may be made by a part against the legitimate powers of the whole, and that the government is reduced to the alternative of submitting to such attempts or of resisting them by force. They maintain that the Constitution of the United States has provided no tribunal for the final construction of itself or of the laws or treaties of the nation, but that this power must be exercised in the last resort by the courts of every State in the Union. That the Constitution, laws, and treaties may receive as many constructions as there are States; and that this is not a mischief, or, if a mischief, is irremediable.”
The cause of such absurdities, Marshall continued, was a conception of State Sovereignty contradicted by the very words of the Constitution, which assert its supremacy, and that of all acts of Congress in pursuance of it, over all conflicting state laws whatsoever. “This,” he proceeded to say, “is the authoritative language of the American People, and if gentlemen please, of the American States. It marks, with lines too strong to be mistaken, the characteristic distinction between the Government of the Union and those of the States. The General Government, though limited as to its objects, is supreme with respect to those objects. This principle is a part of the Constitution, and if there be any who deny its necessity, none can deny its authority.” Nor was this to say that the Constitution is unalterable. “The people make the Constitution, and the people can unmake it. It is the creature of their own will, and lives only by their will. But this supreme and irresistible power to make or unmake resides only in the whole body of the people, not in any subdivision of them. The attempt of any of the parts to exercise it is usurpation, and ought to be repelled by those to whom the people have delegated their power of repelling it.”
Once Marshall had swept aside the irrelevant notion of State Sovereignty, he proceeded with the remainder of his argument without difficulty. Counsel for Virginia had contended that “a case arising under the Constitution or a law must be one in which a party comes into court to demand something conferred on him by the Constitution or a law”; but this construction Marshall held to be “too narrow.” “A case in law or equity consists of the right of the one party as well as of the other, and may truly be said to arise under the Constitution or a law of the United States WHENEVER ITS CORRECT DECISION DEPENDS ON THE CONSTRUCTION OF EITHER.” From this it followed that Section XXV was a measure necessary and proper for extending the judicial power of the United States appellately to such cases whenever they were first brought in a state court. Nor did Article XI of the Amendments nullify the power thus conferred upon the Court in a case which the State itself had instituted, for in such a case the appeal taken to the national tribunal was only another stage in an action “begun and prosecuted,” not against the State, but by the State. The contention of Virginia was based upon the assumption that the Federal and the State Judiciaries constituted independent systems for the enforcement of the Constitution, the national laws, and treaties, and such an assumption Marshall held to be erroneous. For the purposes of the Constitution the United States “form a single nation,” and in effecting these purposes the Government of the Union may “legitimately control all individuals or governments within the American territory.”
“Our opinion in the Bank Case,” Marshall had written Story from Richmond in 1819, a few weeks after M’Culloch vs. Maryland, “has roused the sleeping spirit of Virginia, if indeed it ever sleeps.” Cohens vs. Virginia, in 1821, produced an even more decided reaction. Jefferson, now in retirement, had long since nursed his antipathy for the Federal Judiciary to the point of monomania. It was in his eyes “a subtle corps of sappers and miners constantly working underground to undermine our confederated fabric”; and this latest assault upon the rights of the States seemed to him, though perpetrated in the usual way, the most outrageous of all: “An opinion is huddled up in conclave, perhaps by a majority of one, delivered as if unanimous, and with the silent acquiescence of lazy or timid associates, by a crafty chief judge, who sophisticates the law to his own mind by the turn of his own reasoning.”
Roane, Jefferson’s protege, was still more violent and wrote a series of unrestrained papers at this time in the Richmond “Enquirer,” under the pseudonym “Algernon Sidney.” Alluding to these, Marshall wrote Story that “their coarseness and malignity would designate the author of them if he was not avowed.” Marshall himself thought to answer Roane, but quickly learned that the Virginia press was closed to that side of the question. He got his revenge, however, by obtaining the exclusion of Roane’s effusions from Hall’s “Law Journal,” an influential legal periodical published in Philadelphia. But the personal aspect of the controversy was the least important. “A deep design,” Marshall again wrote his colleague, “to convert our Government into a mere league of States has taken hold of a powerful and violent party in Virginia. The attack upon the judiciary is in fact an attack upon the Union.” Nor was Virginia the only State where this movement was formidable, and an early effort to repeal Section XXV was to be anticipated.
That the antijudicial movement was extending to other States was indeed apparent. The decision in Sturges vs. Crowinshield* left for several years the impression that the States could not pass bankruptcy laws even for future contracts and consequently afforded a widespread grievance. Ohio had defied the ruling in M’Culloch vs. Maryland, and her Treasurer was languishing in jail by the mandate of the Federal Circuit Court. Kentucky had a still sharper grievance in the decision in Green vs. Biddle,** which invalidated a policy she had been pursuing for nearly a quarter of a century with reference to squatters’ holdings; and what made the decision seem the more outrageous was the mistaken belief that it had represented the views of only a minority of the justices.
* 4 Wheaton, 122.
** 8 Wheaton, 1.
The Legislatures of the aggrieved States were soon in full hue and cry at the heels of the Court; and from them the agitation quickly spread to Congress.* On December 12, 1821, Senator Johnson of Kentucky proposed an amendment to the Constitution which was intended to substitute the Senate for the Supreme Court in all constitutional cases. In his elaborate speech in support of his proposition, Johnson criticized at length the various decisions of the Court but especially those grounded on its interpretation of the “obligation of contracts” clause. More than that, however, he denied in toto the rights of the Federal Courts to pass upon the constitutionality either of acts of Congress or of state legislative measures. So long as judges were confined to the field of jurisprudence, the principles of which were established and immutable, judicial independence was all very well, said Johnson, but “the science of politics was still in its infancy”; and in a republican system of government its development should be entrusted to those organs which were responsible to the people. Judges were of no better clay than other folk. “Why, then,” he asked, “should they be considered any more infallible, or their decisions any less subject to investigation and revision?” Furthermore, “courts, like cities, and villages, or like legislative bodies, will sometimes have their leaders; and it may happen that a single individual will be the prime cause of a decision to overturn the deliberate act of a whole State or of the United States; yet we are admonished to receive their opinions as the ancients did the responses of the Delphic oracle, or the Jews, with more propriety, the communications from Heaven delivered by Urim and Thummim to the High Priest of God’s chosen people.”
*For a good review of the contemporary agitation aroused by Marshall’s decisions, see two articles by Charles Warren in the “American Law Review,” vol. XLVII, pp. 1 and 161.
For several years after this, hardly a session of Congress convened in which there was not introduced some measure for the purpose either of curbing the Supreme Court or of curtailing Marshall’s influence on its decisions. One measure, for example, proposed the repeal of Section XXV; another, the enlargement of the Court from seven to ten judges; another, the requirement that any decision setting aside a state law must have the concurrence of five out of seven judges; another, the allowance of appeals to the Court on decisions adverse to the constitutionality of state laws as well as on decisions sustaining them. Finally, in January, 1826, a bill enlarging the Court to ten judges passed the House by a vote of 132 to 27. In the Senate, Rowan of Kentucky moved an amendment requiring in all cases the concurrence of seven of the proposed ten judges. In a speech which was typical of current criticism of the Court he bitterly assailed the judges for the protection they had given the Bank– that “political juggernaut,” that “creature of the perverted corporate powers of the Federal Government”–and he described the Court itself as “placed above the control of the will of the people, in a state of disconnection with them, inaccessible to the charities and sympathies of human life.” The amendment failed, however, and in the end the bill itself was rejected.
Yet a proposition to swamp the Court which received the approval of four-fifths of the House of Representatives cannot be lightly dismissed as an aberration. Was it due to a fortuitous coalescence of local grievances, or was there a general underlying cause? That Marshall’s principles of constitutional law did not entirely accord with the political and economic life of the nation at this period must be admitted. The Chief Justice was at once behind his times and ahead of them. On the one hand, he was behind his times because he failed to appreciate adequately the fact that freedom was necessary to frontier communities in meeting their peculiar problems–a freedom which the doctrine of State Rights promised them–and so he had roused Kentucky’s wrath by the pedantic and, as the Court itself was presently forced to admit, unworkable decision in Green vs. Biddle. Then on the other hand, the nationalism of this period was of that negative kind which was better content to worship the Constitution than to make a really serviceable application of the national powers. After the War of 1812 the great and growing task which confronted the rapidly expanding nation was that of providing adequate transportation, and had the old federalism from which Marshall derived his doctrines been at the helm, this task would undoubtedly have been taken over by the National Government. By Madison’s veto of the Cumberland Road Bill, however, in 1816, this enterprise was handed over to the States; and they eagerly seized upon it after the opening of the Erie Canal in 1825 and the perception of the immense success of the venture. Later, to be sure, the panic of 1837 transferred the work of railroad and canal building to the hands of private capital but, after all, without altering greatly the constitutional problem. For with corporations to be chartered, endowed with the power of eminent domain, and adequately regulated, local policy obviously called for widest latitude.
Reformers are likely to count it a grievance that the courts do not trip over themselves in an endeavor to keep abreast with what is called “progress.” But the true function of courts is not to reform, but to maintain a definite status quo. The Constitution defined a status quo the fundamental principles of which Marshall considered sacred. At the same time, even his obstinate loyalty to “the intentions of the framers” was not impervious to facts nor unwilling to come to terms with them, and a growing number of his associates were ready to go considerably farther.
While the agitation in Congress against the Court was at its height, Marshall handed down his decision in Gibbons vs. Ogden, and shortly after, that in Osborn vs. United States Bank.* In the latter case, which was initiated by the Bank, the plaintiff in error, who was Treasurer of the State of Ohio, brought forward Article XI of the Amendments to the Constitution as a bar to the action, but Marshall held that this Amendment did not prevent a state officer from being sued for acts done in excess of his rightful powers. He also reiterated and amplified the principles of M’Culloch vs. Maryland. Three years later he gave his opinions in Brown vs. Maryland and Ogden vs. Saunders.** In the former Marshall’s opinion was dissented from by a single associate, but in the latter the Chief Justice found himself for the first and only time in his entire incumbency in the role of dissenter in a constitutional case. The decision of the majority, speaking through Justice Washington, laid down the principle that the obligation of a private executory contract cannot be said to be “impaired” in a constitutional sense by the adverse effect of legislative acts antedating the making of the contract; and thus the dangerous ambiguity of Sturges vs. Crowinshield was finally resolved in favor of the States.
* 9 Wheaton, 738.
** 12 Wheaton, 213.
In the course of the next few years the Court, speaking usually through the Chief Justice, decided several cases on principles favoring local interest, sometimes indeed curtailing the operation of previously established principles. For example, the Court held that, in the absence of specific legislation by Congress to the contrary, a State may erect a dam across navigable waters of the United States for local purposes*; that the mere grant of a charter to a corporation does not prevent the State from taxing such corporation on its franchises, notwithstanding that “the power to tax involves the power to destroy”**; that the Federal Courts have no right to set a state enactment aside on the ground that it had divested vested rights, unless it had done so through impairing the obligation of contracts***; that the first eight Amendments to the Constitution do not limit state power, but only Federal power**** that decisions adverse to state laws must have the concurrence of a majority of the Court.*****
* Wilson vs. Blackbird Creek Marsh Company (1829), 2 Peters, 245.
** Providence Bank vs. Billings (1830), 4 Peters, 514.
*** Satterlee vs. Matthewson (1829), 2 Peters, 380; and Watson vs. Mercer (1834), 8 Peters, 110.
**** Barron vs. Baltimore (1833), 7 Peters, 243.
***** See in this connection the Chief Justice’s remarks in Briscoe vs. Bank of Kentucky, 8 Peters, 118.
Despite all these concessions which he made to the rising spirit of the times, Marshall found his last years to be among the most trying of his chief justiceship. Jackson, who was now President, felt himself the chosen organ of “the People’s will” and was not disposed to regard as binding anybody’s interpretation of the Constitution except his own. The West and Southwest, the pocket boroughs of the new Administration, were now deep in land speculation and clamorous for financial expedients which the Constitution banned. John Taylor of Caroline had just finished his task of defining the principles of constitutional construction which were requisite to convert the Union into a league of States and had laid his work at the feet of Calhoun. Taylor was a candid man and frankly owned the historical difficulties in the way of carrying out his purpose; but Calhoun’s less scrupulous dialectic swept aside every obstacle that stood in the way of attributing to the States the completest sovereignty.
In Craig vs. Missouri (1830)* the Court was confronted with a case in which a State had sought to evade the prohibition of the Constitution against the emission of bills of credit by establishing loan offices with authority to issue loan certificates intended to circulate generally in dimensions of fifty cents to ten dollars and to be receivable for taxes. A plainer violation of the Constitution would be difficult to imagine. Yet Marshall’s decision setting aside the act was followed by a renewed effort to procure the repeal of Section XXV of the Judiciary Act. The discussion of the proposal threw into interesting contrast two points of view. The opponents of this section insisted upon regarding constitutional cases as controversies between the United States and the States in their corporate capacities; its advocates, on the other hand, treated the section as an indispensable safeguard of private rights. In the end, the latter point of view prevailed: the bill to repeal, which had come up in the House, was rejected by a vote of 138 to 51, and of the latter number all but six came from Southern States, and more than half of them from natives of Virginia.
* 4 Peters, 410.
Meantime the Supreme Court had become involved in controversy with Georgia on account of a series of acts which that State had passed extending its jurisdiction over the Cherokee Indians in violation of the national treaties with this tribe. In Corn Tassel’s case, the appellant from the Georgia court to the United States Supreme Court was hanged in defiance of a writ of error from the Court. In Cherokee Nation vs. Georgia, the Court itself held that it had no jurisdiction. Finally, in 1832, in Worcester vs. Georgia,* the Court was confronted squarely with the question of the validity of the Georgia acts. The State put in no appearance, the acts were pronounced void, and the decision went unenforced. When Jackson was asked what effort the Executive Department would make to back up the Court’s mandate, he is reported to have said: “John Marshall has made his decision; now let him enforce it.”
* 6 Peters, 515.
Marshall began to see the Constitution and the Union crumbling before him. “I yield slowly and reluctantly to the conviction,” he wrote Story, late in 1832, “that our Constitution cannot last …. Our opinions [in the South] are incompatible with a united government even among ourselves. The Union has been prolonged this far by miracles.” A personal consideration sharpened his apprehension. He saw old age at hand and was determined “not to hazard the disgrace of continuing in office a mere inefficient pageant,” but at the same time he desired some guarantee of the character of the person who was to succeed him. At first he thought of remaining until after the election of 1832; but Jackson’s reelection made him relinquish altogether the idea of resignation.
A few months later, in consequence of the Administration’s vigorous measures against nullification in South Carolina, things were temporarily wearing a brighter aspect. Yet that the fundamental elements of the situation had been thereby altered, Marshall did not believe. “To men who think as you and I do,” he wrote Story, toward the end of 1834, “the present is gloomy enough; and the future presents no cheering prospect. In the South…those who support the Executive do not support the Government. They sustain the personal power of the President, but labor incessantly to impair the legitimate powers of the Government. Those who oppose the rash and violent measures of the Executive…are generally the bitter enemies of Constitutional Government. Many of them are the avowed advocates of a league; and those who do not go the whole length, go a great part of the way. What can we hope for in such circumstances?”
Yet there was one respect in which the significance of Marshall’s achievement must have been as clear to himself as it was to his contemporaries. He had failed for the time being to establish his definition of national power, it is true, but he had made the Supreme Court one of the great political forces of the country. The very ferocity with which the pretensions of the Court were assailed in certain quarters was indirect proof of its power, but there was also direct testimony of a high order. In 1830 Alexis de Tocqueville, the French statesman, visited the United States just as the rough frontier democracy was coming into its own. Only through the Supreme Court, in his opinion, were the forces of renewal and growth thus liberated to be kept within the bounds set by existing institutions. “The peace, the prosperity, and the very existence of the Union,” he wrote, “are vested in the hands of the seven Federal judges. Without them the Constitution would be a dead letter: the Executive appeals to them for assistance against the encroachments of the legislative power; the Legislature demands their protection against the assaults of the Executive; they defend the Union from the disobedience of the States, the States from the exaggerated claims of the Union, the public interest against private interests and the conservative spirit of stability against the fickleness of the democracy.” The contrast between these observations and the disheartened words in which Jay declined renomination to the chief justiceship in 1801 gives perhaps a fair measure of Marshall’s accomplishment.
Of the implications of the accomplishment of the great Chief Justice for the political life of the country, let De Tocqueville speak again: “Scarcely any political question arises in the United States which is not resolved sooner, or later, into a judicial question. Hence all parties are obliged to borrow in their daily controversies the ideas, and even the language peculiar to judicial proceedings…. The language of the law thus becomes, in some measure, a vulgar tongue; the spirit of law, which is produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society, where it descends to the lowest classes, so that at last the whole people contract the habits and the tastes of the judicial magistrate.”
In one respect, however, De Tocqueville erred. American “legalism,” that curious infusion of politics with jurisprudence, that mutual consultation of public opinion and established principles, which in the past has so characterized the course of discussion and legislation in America, is traceable to origins long antedating Marshall’s chief justiceship. On the other hand, there is no public career in American history which ever built so largely upon this pervasive trait of the national outlook as did Marshall’s, or which has contributed so much to render it effective in palpable institutions.
CHAPTER VIII. Among Friends And Neighbors
It is a circumstance of no little importance that the founder of American Constitutional Law was in tastes and habit of life a simple countryman. To the establishment of National Supremacy and the Sanctity of Contracts Marshall brought the support not only of his office and his command of the art of judicial reasoning but also the whole-souled democracy and unpretentiousness of the fields. And it must be borne in mind that Marshall was on view before his contemporaries as a private citizen rather more of the time, perhaps, than as Chief Justice. His official career was, in truth, a somewhat leisurely one. Until 1827 the term at Washington rarely lasted over six weeks and subsequently not over ten weeks. In the course of his thirty-four years on the Bench, the Court handed down opinions in over 1100 cases, which is probably about four times the number of opinions now handed down at a single term; and of this number Marshall spoke for the Court in about half the cases. Toward the middle of March, he left Washington for Richmond, and on the 22d of May opened court in his own circuit. Then, three weeks later, if the docket permitted, he went on to Raleigh to hold court there for a few days. The summers he usually spent on the estate which he inherited from his father at Fauquier, or else he went higher up into the mountains to escape malaria. But by the 22d of November at the latest he was back once more in Richmond for court, and at the end of December for a second brief term he again drove to Raleigh in his high-wheeled gig. With his return to Washington early in February he completed the round of his judicial year.
The entire lack of pageantry and circumstance which attended these journeyings of his is nowhere more gaily revealed than in the following letter to his wife, which is now published for the first time through the kindness of Mr. Beveridge:
Rawleigh, Jan’y. 2d, 1803.
My Dearest Polly
You will laugh at my vexation when you hear the various calamities that have befallen me. In the first place when I came to review my funds, I had the mortification to discover that I had lost 15 silver dollars out of my waist coat pocket. They had worn through the various mendings the pocket had sustained and sought their liberty in the sands of Carolina.
I determined not to vex myself with what could not be remedied & ordered Peter to take out my cloaths that I might dress for court when to my astonishment & grief after fumbling several minutes in the portmanteau, starting [sic] at vacancy, & sweating most profusely he turned to me with the doleful tidings that I had no pair of breeches. You may be sure this piece of intelligence was not very graciously received; however, after a little scolding, I determined to make the best of my situation & immediately set out to get a pair made.
I thought I should be a sans-culotte only one day & that for the residue of the term I might be well enough dressed for the appearance on the first day to be forgotten.
But, the greatest of evils, I found, was followed by still greater. Not a taylor in town could be prevailed on to work for me: They were all so busy that it was impossible to attend to my wants however pressing they might be, & I have the extreme mortification to pass the whole time without that important article of dress I have mentioned. I have no alleviation for this misfortune but the hope that I shall be enabled in four or five days to commence my journey homeward & that I shall have the pleasure of seeing you & our dear children in eight or nine days after this reaches you.
In the meantime, I flatter myself that you are well and happy.
Adieu my dearest Polly
I am your own affectionate,
J. Marshall.
Marshall erected his Richmond home, called “Shockoe Hill,” in 1793 on a plot of ground which he had purchased four years earlier. Here, as his eulogist has said, was “the scene of his real triumphs.” At an early date his wife became a nervous invalid, and his devotion to her brought out all the finest qualities of his sound and tender nature. “It is,” says Mr. Beveridge, “the most marked characteristic of his entire private life and is the one thing which differentiates him sharply from the most eminent men of that heroic but socially free-and-easy period.” From his association with his wife Marshall derived, moreover, an opinion of the sex “as the friends, the companions, and the equals of man” which may be said to have furnished one of his few points of sympathetic contact with American political radicalism in his later years. The satirist of woman, says Story, “found no sympathy in his bosom,” and “he was still farther above the commonplace flatteries by which frivolity seeks to administer aliment to personal vanity, or vice to make its approaches for baser purposes. He spoke to the sex when present, as he spoke of them when absent, in language of just appeal to their understandings, their tastes, and their duties.”
Marshall’s relations with his neighbors were the happiest possible. Every week, when his judicial duties permitted or the more “laborious relaxation” of directing his farm did not call him away, he attended the meetings of the Barbecue Club in a fine grove just outside the city, to indulge in his favorite diversion of quoits. The Club consisted of thirty of the most prominent men of Richmond, judges, lawyers, doctors, clergymen, and merchants. To quoits was added the inducement of an excellent repast of which roast pig was the piece de resistance. Then followed a dessert of fruit and melons, while throughout a generous stock of porter, toddy, and of punch “from which water was carefully excluded,” was always available to relieve thirst. An entertaining account of a meeting of the Club at which Marshall and his friend Wickham were the caterers has been thus preserved for us:
“At the table Marshall announced that at the last meeting two members had introduced politics, a forbidden subject, and had been fined a basket of champagne, and that this was now produced, as a warning to evil-doers; as the club seldom drank this article, they had no champagne glasses, and must drink it in tumblers. Those who played quoits retired after a while for a game. Most of the members had smooth, highly polished brass quoits. But Marshall’s were large, rough, heavy, and of iron, such as few of the members could throw well from hub to hub. Marshall himself threw them with great success and accuracy, and often ‘rang the meg.’ On this occasion Marshall and the Rev. Mr. Blair led the two parties of players. Marshall played first, and rang the meg. Parson Blair did the same, and his quoit came down plumply on top of Marshall’s. There was uproarious applause, which drew out all the others from the dinner; and then came an animated controversy as to what should be the effect of this exploit. They all returned to the table, had another bottle of champagne, and listened to arguments, one from Marshall, pro se, and one from Wickham for Parson Blair. [Marshall’s] argument is a humorous companion piece to any one of his elaborate judicial opinions. He began by formulating the question, “Who is winner when the adversary quoits are on the meg at the same time?” He then stated the facts, and remarked that the question was one of the true construction and applications of the rules of the game. The first one ringing the meg has the advantage. No other can succeed who does not begin by displacing this first one. The parson, he willingly allowed, deserves to rise higher and higher in everybody’s esteem; but then he mustn’t do it by getting on another’s back in this fashion. That is more like leapfrog than quoits. Then, again, the legal maxim, Cujus est solum, ejus est usque ad coelum–his own right as first occupant extends to the vault of heaven; no opponent can gain any advantage by squatting on his back. He must either bring a writ of ejectment, or drive him out vi et armis. And then, after further argument of the same sort, he asked judgment, and sat down amidst great applause. Mr. Wickham then rose, and made an argument of a similar pattern. No rule, he said, requires an impossibility. Mr. Marshall’s quoit is twice as large as any other; and yet it flies from his arm like the iron ball at the Grecian games from the arm of Ajax. It is impossible for an ordinary quoit to move it. With much more of the same sort, he contended that it was a drawn game. After very animated voting, designed to keep up the uncertainty as long as possible, it was so decided. Another trial was had, and Marshall clearly won.”*
* J. B. Thayer, “John Marshall” (“Riverside Biographical Series,” 1904), pp. 13436, paraphrasing G. W. Munford, “The Two Parsons” (Richmond, 1884), pp. 326-38.
Years later Chester Harding, who once painted Marshall, visited the Club. “I watched,” says he, “for the coming of the old chief. He soon approached, with his coat on his arm and his hat in his hand, which he was using as a fan. He walked directly up to a large bowl of mint julep which had been prepared, and drank off a tumblerful, smacking his lips, and then turned to the company with a cheerful ‘How are you, gentlemen?’ He was looked upon as the best pitcher of the party and could throw heavier quoits than any other member of the club. The game began with great animation. There were several ties; and before long I saw the great Chief Justice of the United States down on his knees measuring the contested distance with a straw, with as much earnestness as if it had been a point of law; and if he proved to be in the right, the woods would ring with his triumphant shout.”* What Wellesley remarked of the younger Pitt may be repeated of Marshall, that “unconscious of his superiority,” he “plunged heedlessly into the mirth of the hour” and was endowed with “a gay heart and social spirit beyond any man of his time.”
* Thayer, op. cit., pp. 132-33.
As a hero of anecdotes Marshall almost rivals Lincoln. Many of the tales preserved are doubtless apocryphal, but this qualification hardly lessens their value as contemporary impressions of his character and habits. They show for what sort of anecdotes his familiarly known personality had an affinity.
The Chief Justice’s entire freedom from ostentation and the gentleness with which he could rebuke it in others is illustrated in a story often told. Going early to the market one morning he came upon a youth who was fuming and swearing because he could get no one to carry his turkey home for him. Marshall proffered his services. Arriving at the house the young man asked, “What shall I pay you?” “Oh, nothing,” was the reply; “it was on my way, and no trouble.” As Marshall walked away, the young man inquired of a bystander,” Who is that polite old man that brought home my turkey for me?” “That,” was the answer, “is Judge Marshall, Chief Justice of the United States.”
Of the same general character is an anecdote which has to do with a much earlier period when Marshall was still a practicing attorney. An old farmer who was involved in a lawsuit came to Richmond to attend its trial.” Who is the best lawyer in Richmond?” he asked of his host, the innkeeper of the Eagle tavern. The latter pointed to a tall, ungainly, bareheaded man who had just passed, eating cherries from his hat and exchanging jests with other loiterers like himself.” That is he,” said the innkeeper; “John Marshall is his name.” But the old countryman, who had a hundred dollars in his pocket, proposed to spend it on something more showy and employed a solemn, black-coated, and much powdered bigwig. The latter turned out in due course to be a splendid illustration of the proverb that “fine feathers do not make fine birds.” This the crestfallen rustic soon discovered. Meantime he had listened with amazement and growing admiration to an argument by Marshall in a cause which came on before his own. He now went up to Marshall and, explaining his difficulty, offered him the five dollars which the exactions of the first attorney still left him, and besought his aid. With a humorous remark about the power of a black coat and powdered wig Marshall goodnaturedly accepted the retainer.
The religious bent of the Chief Justice’s mind is illustrated in another story, which tells of his arriving toward the close of day at an inn in one of the counties of Virginia, and falling in with some young men who presently began ardently to debate the question of the truth or falsity of the Christian religion. From six until eleven o’clock the young theologians argued keenly and ably on both sides of the question. Finally one of the bolder spirits exclaimed that it was impossible to overcome prejudices of long standing and, turning to the silent visitor, asked: “Well, my old gentleman, what do you think of these things?” To their amazement the “old gentleman” replied for an hour in an eloquent and convincing defense of the Christian religion, in which he answered in order every objection the young men had uttered. So impressive was the simplicity and loftiness of his discourse that the erstwhile critics were completely silenced.
In truth, Marshall’s was a reverent mind, and it sprang instinctively to the defense of ideas and institutions whose value had been tested. Unfortunately, in his “Life of Washington” Marshall seems to have given this propensity a somewhat undue scope. There were external difficulties in dealing with such a subject apart from those inherent in a great biography, and Marshall’s volumes proved to be a general disappointment. Still hard pressed for funds wherewith to meet his Fairfax investment, he undertook this work shortly after he became Chief Justice, at the urgent solicitation of Judge Bushrod Washington, the literary executor of his famous uncle Marshall had hoped to make this incursion into the field of letters a very remunerative one, for he and Washington had counted on some thirty thousand subscribers for the work. The publishers however, succeeded in obtaining only about a quarter of that number, owing partly at least to the fact that Jefferson had no sooner learned of the enterprise than his jealous mind conceived the idea that the biography must be intended for partisan purposes. He accordingly gave the alarm to the Republican press and forbade the Federal postmasters to take orders for the book. At the same time he asked his friend Joel Barlow, then residing in Paris, to prepare a counterblast, for which he declared himself to be “rich in materials.” The author of the “Columbiad,” however, declined this hazardous commission, possibly because he was unwilling to stand sponsor for the malicious recitals that afterwards saw light in the pages of the “Anas.”
But apart from this external opposition to the biography, Marshall found a source of even keener disappointment in the literary defects due to the haste with which he had done his work. The first three volumes had appeared in 1804, the fourth in 1805, and the fifth, which is much the best, in 1807. Republican critics dwelt with no light hand upon the deficiencies of these volumes, and Marshall himself sadly owned that the “inelegancies” in the first were astonishingly numerous. But the shortcomings of the work as a satisfactory biography are more notable than its lapses in diction. By a design apparently meant to rival the improvisations of “Tristram Shandy”, the birth of the hero is postponed for an entire volume, in which the author traces the settlement of the country. At the opening of the second volume “the birth of young Mr. Washington” is gravely announced, to be followed by an account of the Father of his Country so devoid of intimate touches that it might easily have been written by one who had never seen George Washington.
Nevertheless, these pages of Marshall’s do not lack acute historical judgments. He points out, for instance, that, if the Revolution had ended before the Articles of Confederation were adopted, permanent disunion might have ensued and that, faulty as it was, the Confederation “preserved the idea, of Union until the good sense of the Nation adopted a more efficient system.” Again, in his account of the events leading up to the Convention of 1787, Marshall rightly emphasizes facts which subsequent writers have generally passed by with hardly any mention, so that students may read this work with profit even today. But the chief importance of these volumes lay, after all, in the additional power which the author himself derived from the labor of their preparation. In so extensive an undertaking Marshall received valuable training for his later task of laying the foundations of Constitutional Law in America. One of his chief assets on the bench, as we have already seen, was his complete confidence in his own knowledge of the intentions of the Constitution–a confidence which was grounded in the consciousness that he had written the history of the Constitution’s framing.
Most of Marshall’s correspondence, which is not voluminous, deals with politics or legal matters. But there are letters in which the personal side of the Chief Justice is revealed. He gives his friend Story a touching account of the loss of two of his children. He praises old friends and laments his inability to make new ones. He commends Jane Austen, whose novels he has just finished reading. “Her flights,” he remarks, “are not lofty, she does not soar on eagle’s wings, but she is pleasing, interesting, equable, and yet amusing.” He laments that he “can no longer debate and yet cannot apply his mind to anything else.” One recalls Darwin’s similar lament that his scientific work had deprived him of all liking for poetry.
The following letter, which Marshall wrote the year before his death to his grandson, a lad of fourteen or fifteen, is interesting for its views on a variety of subjects and is especially pleasing for its characteristic freedom from condescension:
“I had yesterday the pleasure of receiving your letter of the 29th of November, and am quite pleased with the course of study you are pursuing. Proficiency in Greek and Latin is indispensable to an accomplished scholar, and may be of great real advantage in our progress through human life. Cicero deserves to be studied still more for his talents than for the improvement in language to be derived from reading him. He was unquestionably, with the single exception of Demosthenes, the greatest orator among the ancients. He was too a profound Philosopher. His ‘de ofiiciis’ is among the most valuable treatises I have ever seen in the Latin language.
“History is among the most essential departments of knowledge; and, to an American, the histories of England and of the United States are most instructive. Every man ought to be intimately acquainted with the history of his own country. Those of England and of the United States are so closely connected that the former seems to be introductory to the latter. They form one whole. Hume, as far as he goes, to the revolution of 1688, is generally thought the best Historian of England. Others have continued his narrative to a late period, and it will be necessary to read them also.
“There is no exercise of the mind from which more valuable improvement is to be drawn than from composition. In every situation of life the result of early practice will be valuable. Both in speaking and writing, the early habit of arranging our thoughts with regularity, so as to point them to the object to be proved, will be of great advantage. In both, clearness and precision are most essential qualities. The man who by seeking embellishment hazards confusion, is greatly mistaken in what constitutes good writing. The meaning ought never to be mistaken. Indeed the readers should never be obliged to search for it. The writer should always express himself so clearly as to make it impossible to misunderstand him. He should be comprehended without an effort.
“The first step towards writing and speaking clearly is to think clearly. Let the subject be perfectly understood, and a man will soon find words to convey his meaning to others. Blair, whose lectures are greatly and justly admired, advises a practice well worthy of being observed. It is to take a page of some approved writer and read it over repeatedly until the matter, not the words, be fully impressed on the mind. Then write, in your own language, the same matter. A comparison of the one with the other will enable you to remark and correct your own defects. This course may be pursued after having made some progress in composition. In the commencement, the student ought carefully to reperuse what he has written, correct, in the first instance, every error of orthography and grammar. A mistake in either is unpardonable. Afterwards revise and improve the language.
“I am pleased with both your pieces of composition. The subjects are well chosen and of the deepest interest. Happiness is pursued by all, though too many mistake the road by which the greatest good is to be successfully followed. Its abode is not always in the palace or the cottage. Its residence is the human heart, and its inseparable companion is a quiet conscience. Of this, Religion is the surest and safest foundation. The individual who turns his thoughts frequently to an omnipotent omniscient and all perfect being, who feels his dependence on, and his infinite obligations to that being will avoid that course of life which must harrow up the conscience.”
Marshall was usually most scrupulous to steer clear of partisan politics both in his letters and in his conversation, so that on one occasion he was much aroused by a newspaper article which had represented him “as using language which could be uttered only by an angry party man.” But on political issues of a broader nature he expressed himself freely in the strict privacy of correspondence at least, and sometimes identified himself with public movements, especially in his home State. For instance, he favored the gradual abolition of slavery by private emancipation rather than by governmental action. In 1823 he became first president of the Richmond branch of the Colonization Society; five years later he presided over a convention to promote internal improvements in Virginia; and in 1829 he took a prominent part in the deliberations of the State Constitutional Convention.
In the broader matters of national concern his political creed was in thorough agreement with his constitutional doctrine. Nullification he denounced as “wicked folly,” and he warmly applauded Jackson’s proclamation of warning to South Carolina. But Marshall regarded with dismay Jackson’s aggrandizement of the executive branch, and the one adverse criticism he has left of the Constitution is of the method provided for the election of the President. In this connection he wrote in 1830: “My own private mind has been slowly and reluctantly advancing to the belief that the present mode of choosing the Chief Magistrate threatens the most serious danger to the public happiness. The passions of men are influenced to so fearful an extent, large masses are so embittered against each other, that I dread the consequences…. Age is, perhaps, unreasonably timid. Certain it is that I now dread consequences that I once thought imaginary. I feel disposed to take refuge under some less turbulent and less dangerous mode of choosing the Chief Magistrate.” Then follows the suggestion that the people of the United States elect a body of persons equal in number to one-third of the Senate and that the President be chosen from among this body by lot. Marshall’s suggestion seems absurd enough today, but it should be remembered that his fears of national disorder as a result of strong party feeling at the time of presidential elections were thoroughly realized in 1860 when Lincoln’s election led to secession and civil war, and that sixteen years later, in the Hayes-Tilden contest, a second dangerous crisis was narrowly averted.
In the campaign of 1832 Marshall espoused privately the cause of Clay and the United States Bank, and could not see why Virginia should not be of the same opinion. Writing to Story in the midst of the campaign he said: “We are up to the chin in politics. Virginia was always insane enough to be opposed to the Bank of the United States, and therefore hurrahs for the veto. But we are a little doubtful how it may work in Pennsylvania. It is not difficult to account for the part New York may take. She has sagacity enough to see her interests in putting down the present Bank. Her mercantile position gives her a control, a commanding control, over the currency and the exchanges of the country, if there be no Bank of the United States. Going for herself she may approve this policy; but Virginia ought not to drudge for her.” To the end of his days Marshall seems to have refused to recognize that the South had a sectional interest to protect, or at least that Virginia’s interests were sectional; her attachment to State Rights he assigned to the baneful influence of Jeffersonianism.
The year 1831 dealt Marshall two severe blows. In that year his robust constitution manifested the first signs of impairment, and he was forced to undergo an operation for stone. In the days before anaesthetics, such an operation, especially in the case of a person of his advanced years, was attended with great peril. He faced the ordeal with the utmost composure. His physician tells of visiting Marshall the morning he was to submit to the knife and of finding him at breakfast:
“He received me with a pleasant smile…and said, ‘Well, Doctor, you find me taking breakfast, and I assure you I have had a good one. I thought it very probable that this might be my last chance, and therefore I was determined to enjoy it and eat heartily.’… He said that he had not the slightest desire to live, laboring under the sufferings to which he was subjected, and that he was perfectly ready to take all the chances of an operation, and he knew there were many against him …. After he had finished his breakfast, I administered him some medicine; he then inquired at what hour the operation would be performed. I mentioned the hour of eleven. He said ‘Very well; do you wish me for any other purpose, or may I lie down and go to sleep?’ I was a good deal surprised at this question, but told him that if he could sleep it would be very desirable. He immediately placed himself upon the bed and fell into a profound sleep, and continued so until I was obliged to rouse him in order to undergo the operation. He exhibited the same fortitude, scarcely uttering a murmur throughout the whole procedure which, from the nature of his complaint, was necessarily tedious.”
The death of his wife on Christmas Day of the same year was a heavy blow. Despite her invalidism, she was a woman of much force of character and many graces of mind, to which Marshall rendered touching tribute in a quaint eulogy composed for one of his sons on the first anniversary of her death:
“Her judgment was so sound and so safe that I have often relied upon it in situations of some perplexity…. Though serious as well as gentle in her deportment, she possessed a good deal of chaste, delicate, and playful wit, and if she permitted herself to indulge this talent, told her little story with grace, and could mimic very successfully the peculiarities of the person who was its subject. She had a fine taste for belle-lettre reading….
This quality, by improving her talents for conversation, contributed not inconsiderably to make her a most desirable and agreeable companion. It beguiled many of those winter evenings during which her protracted ill health and her feeble nervous system confined us entirely to each other. I shall never cease to look back on them with deep interest and regret…. She felt deeply the distress of others, and indulged the feeling liberally on objects she believed to be meritorious…. She was a firm believer in the faith inculcated by the Church in which she was bred, but her soft and gentle temper was incapable of adopting the gloomy and austere dogmas which some of its professors have sought to engraft on it.”
Marshall believed women were the intellectual equals of men, because he was convinced that they possessed in a high degree “those qualities which make up the sum of human happiness and transform the domestic fireside into an elysium,” and not because he thought they could compete on even terms in the usual activities of men.
Despite these “buffetings of fate,” the Chief Justice was back in Washington in attendance upon Court in February, 1832, and daily walked several miles to and from the Capitol. In the following January his health appeared to be completely restored. “He seemed,” says Story, with whom he messed, along with Justices Thompson and Duval, “to revive, and enjoy anew his green old age.” This year Marshall had the gratification of receiving the tribute of Story’s magnificent dedication of his “Commentaries” to him. With characteristic modesty, the aged Chief Justice expressed the fear that his admirer had “consulted a partial friendship farther than your deliberate judgment will approve.” He was especially interested in the copy intended for the schools, but he felt that “south of the Potomac, where it is most wanted it will be least used,” for, he continued, “it is a Mohammedan rule never to dispute with the ignorant, and we of the true faith in the South adjure the contamination of infidel political works. It would give our orthodox nullifyer a fever to read the heresies of your Commentaries. A whole school might be infected by the atmosphere of a single copy should it be placed on one of the shelves of a bookcase.”
Marshall sat on the Bench for the last time in the January term of 1835. Miss Harriet Martineau, who was in Washington during that winter, has left a striking picture of the Chief Justice as he appeared in these last days. “How delighted,” she writes, “we were to see Judge Story bring in the tall, majestic, bright-eyed old man,–old by chronology, by the lines on his composed face, and by his services to the republic; but so dignified, so fresh, so present to the time, that no compassionate consideration for age dared mix with the contemplation of him.”
Marshall was, however, a very sick man, suffering constant pain from a badly diseased liver. The ailment was greatly aggravated, moreover, by “severe contusions” which he received while returning in the stage from Washington to Richmond. In June he went a second time to Philadelphia for medical assistance, but his case was soon seen to be hopeless. He awaited death with his usual serenity, and two days before it came he composed the modest epitaph which appeared upon his tomb: JOHN MARSHALL, SON OF THOMAS AND MARY MARSHALL, WAS BORN ON THE 24TH OF SEPTEMBER, 1755, INTERMARRIED WITH MARY WILLIS AMBLER THE 3D OF JANUARY, 1783, DEPARTED THIS LIFE THE — DAY OF –,18 — . He died the evening of July 6,1835, surrounded by three of his sons. The death of the fourth, from an accident while he was hurrying to his father’s bedside, had been kept from him. He left also a daughter and numerous grandchildren.
Marshall’s will is dated April 9, 1832, and has five codicils of subsequent dates attached. After certain donations to grandsons named John and Thomas, the estate, consisting chiefly of his portion of the Fairfax purchase, was to be divided equally among his five children. To the daughter and her descendants were also secured one hundred shares of stock which his wife had held in the Bank of the United States, but in 1835 these were probably of little value. His faithful body servant Robin was to be emancipated and, if he chose, sent to Liberia, in which event he should receive one hundred dollars. But if he preferred to remain in the Commonwealth, he should receive but fifty dollars; and if it turned out to “be impracticable to liberate him consistently with law and his own inclination,” he was to select his master from among the children, “that he may always be treated as a faithful meritorious servant.”
The Chief Justice’s death evoked many eloquent tributes to his public services and private excellencies, but none more just and appreciative than that of the officers of court and members of the bar of his own circuit who knew him most intimately. It reads as follows:
“John Marshall, late Chief Justice of the United States, having departed this life since the last Term of the Federal Circuit Court for this district, the Bench, Bar, and Officers of the Court, assembled at the present Term, embrace the first opportunity to express their profound and heartfelt respect for the memory of the venerable judge, who presided in this Court for thirty-five years–with such remarkable diligence in office, that, until he was disabled by the disease which removed him from life, he was never known to be absent from the bench, during term time, even for a day,–with such indulgence to counsel and suitors, that every body’s convenience was consulted, but his own,–with a dignity, sustained without effort, and, apparently, without care to sustain it, to which all men were solicitous to pay due respect,–with such profound sagacity, such quick penetration, such acuteness, clearness, strength, and comprehension of mind, that in his hand, the most complicated causes were plain, the weightiest and most difficult, easy and light,–with such striking impartiality and justice, and a judgment so sure, as to inspire universal confidence, so that few appeals were ever taken from his decisions, during his long administration of justice in the Court, and those only in cases where he himself expressed doubt,–with such modesty, that he seemed wholly unconscious of his own gigantic powers,– with such equanimity, such benignity of temper, such amenity of manners, that not only none of the judges, who sat with him on the bench, but no member of the bar, no officer of the court, no juror, no witness, no suitor, in a single instance, ever found or imagined, in any thing said or done, or omitted by him, the slightest cause of offence.
“His private life was worthy of the exalted character he sustained in public station. The unaffected simplicity of his manners; the spotless purity of his morals; his social, gentle, cheerful disposition; his habitual self-denial, and boundless generosity towards others; the strength and constancy of his attachments; his kindness to his friends and neighbours; his exemplary conduct in the relations of son, brother, husband, father; his numerous charities; his benevolence towards all men, and his ever active beneficence; these amiable qualities shone so conspicuously in him, throughout his life, that, highly as he was respected, he had the rare happiness to be yet more beloved.”
There is no more engaging figure in American history, none more entirely free from disfiguring idiosyncrasy, than the son of Thomas Marshall.
CHAPTER IX. Epilogue
In the brief period of twenty-seven months following the death of Marshall the Supreme Court received a new Chief Justice and five new Associate Justices. The effect of this change in personnel upon the doctrine of the Court soon became manifest. In the eleventh volume of Peters’s “Reports,” the first issued while Roger B. Taney was Chief Justice, are three decisions of constitutional cases sustaining state laws which on earlier argument Marshall had assessed as unconstitutional. The first of these decisions gave what was designated “the complete, unqualified, and exclusive” power of the State to regulate its “internal police” the right of way over the “commerce clause”*; the second practically nullified the constitutional prohibition against “bills of credit” in deference to the same high prerogative**; the third curtailed the operation of the “obligation of contracts” clause as a protection of public grants.*** Story, voicing “an earnest desire to vindicate his [Marshall’s] memory from the imputation of rashness,” filed passionate and unavailing dissents. With difficulty he was dissuaded from resigning from a tribunal whose days of influence he thought gone by.**** During the same year Justice Henry Baldwin, another of Marshall’s friends and associates, published his “View of the Constitution,” in which he rendered high praise to the departed Chief Justice’s qualifications as expounder of the Constitution. “No commentator,” he wrote, “ever followed the text more faithfully, or ever made a commentary more accordant with its strict intention and language…. He never brought into action the powers of his mighty mind to find some meaning in plain words…above the comprehension of ordinary minds…. He knew the framers of the Constitution, who were his compatriots,” he was himself the historian of its framing, wherefore, as its expositor, “he knew its objects, its intentions.” Yet in the face of these admissions, Baldwin rejects Marshall’s theory of the origin of the Constitution and the corollary doctrine of liberal construction. “The history and spirit of the times,” he wrote, “admonish us that new versions of the Constitution will be promulgated to meet the varying course of political events or aspirations of power.”
* Milton vs. New York. 11 Peters, 102.
** Briscoe vs. Bank of Kentucky, 11 Peters, 257.
*** Charles River Bridge Company vs. Warren Bridge Company, 11 Peters, 420.
**** He wrote Justice McLean, May 10, 1837: “There will not, I fear, even in our day, be any case in which a law of a State or of Congress will be declared unconstitutional; for the old constitutional doctrines are fast fading away.” “Life and Letters of Joseph Story.” vol. II, p. 272; see also p. 270, for Chancellor Kent’s unfavorable reaction to these decisions.
But the radical impulse soon spent itself. Chief Justice Taney himself was a good deal of a conservative. While he regarded the Supreme Court rather as an umpire between two sovereignties than as an organ of the National Government for the vigorous assertion of its powers, which was Marshall’s point of view, Taney was not at all disposed to disturb the law as it had been declared by his predecessor in binding decisions. Then, too, the development of railroading and the beginning of immigration from Europe on a large scale reawakened the interest of a great part of the nation in keeping intercourse between the States untrammeled by local selfishness; and in 1851 the Court, heeding the spirit of compromise of the day, decisively accepted for the most important category of cases Marshall’s principle of the exclusive control of interstate and foreign commerce by Congress.*
* Cooley vs. the Board of Wardens, 12 Howard, 299.
Still, until the eve of the Civil War, the theory of the Constitution held by the great body of the people, North as well as South, was that it was a compact of States. Then in December, 1860, South Carolina announced her secession from the Union. Buchanan’s message of the same month performed the twofold service of refuting secession on State Rights principles and of demonstrating, albeit unwittingly, how impossible it was practically to combat the movement on the same principles. Lincoln brought the North back to Marshall’s position when he remarked in his Inaugural Address: “Continue to execute all the express provisions of our National Constitution, and the Union will endure forever.”
The Civil War has been characterized as “an appeal from the judgments of Marshall to the arbitrament of war.” Its outcome restored the concept of the National Government as a territorial sovereign, present within the States by the superior mandate of the American People, and entitled to “execute on every foot of American soil the powers and functions that belong to it.”* These powers and functions are, moreover, today undergoing constant enlargement. No one now doubts that in any clash between national and state power it is national power which is entitled to be defined first, and few persons question that it ought to be defined in the light of Marshall’s principle, that a Constitution designed for ages to come must be “adapted to the various crises of human affairs.”
* Justice Bradley in ex parte Siebold, 100 U.S., 371.
It is only when we turn to that branch of Constitutional Law which defines governmental power in relation to private rights that we lose touch with Marshall’s principles. As we have seen, he dealt in absolutes: either power was given to an unlimited extent or it was withheld altogether. Today, however, the dominant rule in this field of Constitutional Law is the “rule of reason.” In the last analysis, there are few private rights which are not subordinate to the general welfare; but, on the other hand, legislation which affects private rights must have a reasonable tendency to promote the general welfare and must not arbitrarily invade the rights of particular persons or classes. Inasmuch as the hard and fast rules of an age when conditions of life were simpler are no longer practicable under the more complex relationships of modern times, there is today an inevitable tendency to force these rules to greater flexibility.*
* Notwithstanding what is said above, it is also true that the modern doctrine of “the police power” owes something to Marshall’s interpretation of the “necessary and proper” clause in M’Culloch vs. Maryland, which is frequently offered nowadays as stating the authoritative definition of “a fair legislative discretion” in relation to private rights. Indeed this ingenious transposition was first suggested in Marshall’s day. See Cowen (N. Y.), 585. But it never received his sanction and does not represent his point of view.
And this difference in the point of view of the judiciary connotes a general difference of outlook which makes itself felt today even in that field where Marshall wrought most enduringly. The Constitution was established under the sway of the idea of the balance of power, and with the purpose of effecting a compromise among a variety of more or less antagonistic interests, some of which were identified with the cause of local autonomy, others of which coalesced with the cause of National Supremacy. The Nation and the States were regarded as competitive forces, and a condition of tension between them was thought to be not only normal but desirable. The modern point of view is very different. Local differences have to a great extent disappeared, and that general interest which is the same for all the States is an ever deepening one. The idea of the competition of the States with the Nation is yielding to that of their cooperation in public service. And it is much the same with the relation of the three departments of Government. The notion that they have antagonistic interests to guard is giving way to the perception of a general interest guarded by all according to their several faculties. In brief, whereas it was the original effort of the Constitution to preserve a somewhat complex set of values by nice differentiations of power, the present tendency, born of a surer vision of a single national welfare, is toward the participation of all powers in a joint effort for a common end.
But though Marshall’s work has been superseded at many points, there is no fame among American statesmen more strongly bulwarked by great and still vital institutions. Marshall established judicial review; he imparted to an ancient legal tradition a new significance; he made his Court one of the great political forces of the country; he founded American Constitutional Law; he formulated, more tellingly than any one else and for a people whose thought was permeated with legalism, the principles on which the integrity and ordered growth of their Nation have depended. Springing from the twin rootage of Magna Charta and the Declaration of Independence, his judicial statesmanship finds no parallel in the salient features of its achievement outside our own annals.
BIBLIOGRAPHICAL NOTE
All accounts of Marshall’s career previous to his appointment as Chief Justice have been superseded by Albert J. Beveridge’s two admirable volumes, “The Life of John Marshall” (Boston, 1916). The author paints on a large canvas and with notable skill. His work is history as well as biography. His ample plan enables him to quote liberally from Marshall’s writings and from all the really valuable first-hand sources. Both text and notes are valuable repositories of material. Beveridge has substantially completed a third volume covering the first decade of Marshall’s chief-justiceship, and the entire work will probably run to five volumes.
Briefer accounts of Marshall covering his entire career will be found in Henry Flanders’s “Lives and Times of the Chief Justices of the Supreme Court” (1875) and Van Santvoord’s “Sketches of the Lives, Times, and Judicial Services of the Chief Justices of the Supreme Court” (1882). Two excellent brief sketches are J. B. Thayer’s “John Marshall” (1901) in the “Riverside Biographical Series,” and W. D. Lewis’s essay in the second volume of “The Great American Lawyers,” 8 vols. (Philadelphia, 1907), of which he is also the editor. The latter is particularly happy in its blend of the personal and legal, the biographical and critical. A. B. Magruder’s “John Marshall” (1898) in the “American Statesman Series” falls considerably below the general standard maintained by that excellent series.
The centennial anniversary of Marshall’s accession to the Supreme Bench was generally observed by Bench and Bar throughout the United States, and many of the addresses on the great Chief Justice’s life and judicial services delivered by distinguished judges and lawyers on that occasion were later collected by John F. Dillon and published in “John Marshall, Life, Character, and Judicial Services,” 3 vols. (Chicago, 1903). In volume XIII of the “Green Bag” will be found a skillfully constructed mosaic biography of Marshall drawn from these addresses.
The most considerable group of Marshall’s letters yet published are those to Justice Story, which will be found in the “Massachusetts Historical Society Proceedings,” Second Series, volume XIV, pp. 321-60. These and most of the Chief Justice’s other letters which have thus far seen the light of day will be found in J. E. Oster’s “Political and Economic Doctrines of John Marshall” (New York, 1914). Here also will be found a copy of Marshall’s will, of the autobiography which he prepared in 1818 for Delaplaine’s “Repository” but which was never published there, and of his eulogy of his wife. The two principal sources of Marshall’s anecdotes are the “Southern Literary Messenger,” volume II, p.181 ff., and Henry Howe’s “Historical Collections of Virginia” (Charleston, 1845). Approaching the value of sources are Joseph Story’s “Discourse upon the Life, Character, and Services of the Hon. John Marshall” (1835) and Horace Binney’s “Eulogy” (1835), both of which were pronounced by personal friends shortly after Marshall’s death and both of which are now available in volume III of Dillon’s compilation, cited above. The value of Marshall’s “Life of Washington” as bearing on the origin of his own point of view in politics was noted in the text (Chapter VIII).
Marshall’s great constitutional decisions are, of course, accessible in the Reports, but they have also been assembled into a single volume by John M. Dillon, “John Marshall; Complete Constitutional Decisions” (Chicago, 1903), and into two instructively edited volumes by Joseph P. Cotton, “Constitutional Decisions of John Marshall” (New York, 1905). Story’s famous “Commentaries on the Constitution” gives a systematic presentation of Marshall’s constitutional doctrines, which is fortified at all points by historical reference; the second edition is the best. For other contemporary evaluations of Marshall’s decisions, often hostile, see early volumes of the “North American Review” and Niles’s “Register;” also the volumes of the famous John Taylor of Caroline. A brief general account of later date of the decisions is to be found in the “Constitutional History of the United States as Seen in the Development of American Law” (New York, 1889), a course of lectures before the Political Science Association of the University of Michigan. Detailed commentary of a high order of scholarship is furnished by Walter Malins Rose’s “Notes” to the Lawyers’ Edition of the United States Reports, 13 vols. (1899-1901). The more valuable of Marshall’s decisions on circuit are collected in J. W. Brockenbrough’s two volumes of “Reports of Cases Decided by the Hon. John Marshall” (Philadelphia, 1837), and his rulings at Burr’s Trial are to be found in Robertson’s “Reports of the Trials of Colonel Aaron Burr,” 2 vols. (1808).
Marshall’s associates on the Supreme Bench are pleasingly sketched in Hampton L. Carson’s “Supreme Court of the United States” (Philadelphia, 1891), which also gives many interesting facts bearing on the history of the Court itself. In the same connection Charles Warren’s “History of the American Bar” (Boston, 1911) is, also valuable both for the facts which it records and for the guidance it affords to further material. Of biographies of contemporaries and coworkers of Marshall, the most valuable are John P. Kennedy’s “Memoirs of the Life of William Wirt,” 2 vols. (Philadelphia, 1880); William Wetmore Story’s “Life and Letters of Joseph Story,” 2 vols. (Boston, 1851); and William Kent’s “Memoirs and Letters of James Kent” (Boston, 1898). Everett P. Wheeler’s “Daniel Webster the Expounder of the Constitution” (1905) is instructive, but claims far too much for Webster’s influence upon Marshall’s views. New England has never yet quite forgiven Virginia for having had the temerity to take the formative hand in shaping our Constitutional Law. The vast amount of material brought together in Gustavus Myers’s “History of the Supreme Court” (Chicago, 1912) is based on purely ex parte statements and is so poorly authenticated as to be valueless. He writes from the socialistic point of view and fluctuates between the desire to establish the dogma of “class bias” by a coldly impartial examination of the “facts” and the desire to start a scandal reflecting on individual reputations.
The literature of eulogy and appreciation is, for all practical purposes, exhausted in Dillon’s collection. But a reference should be made here to a brief but pertinent and excellently phrased comment on the great Chief Justice in Woodrow Wilson’s “Constitutional Government in the United States” (New York, 1908), pp.158-9.