DUKE UNIVERSITY So Aal. Ap aie de »: ede’ ( - must be “an open act of war’; just as in a mur- der trial the fact of the killing, the corpus deiict, must be proved before any other testimony was relevant, so in the pending prosecution, said they, no testimony was admissible until the overt act 102 MARSHALL AND THE CONSTITUTION 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 evi- dence was relevant to the issue raised by the indict- ment, and that if an overt act was proved “in the course of the whole evidence,” that would be suf- ficient. The day following the Court read an opin- ion which is a model of ambiguous and equivo- cal 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 Damo- cles 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 for- ward. Eaton was followed on the stand by Com- modore 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 be- lief in the treasonable character of Burr’s designs. — THE TRIAL OF AARON BURR 103 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 prosecu- tion next indicated its intention of introducing evidence to show Burr’s connection with the as- semblage on the island, when the defense sprang the cowp 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 Con- stitution, the assemblage on Blennerhassett’s is- land 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 con- stitutional provision regarding treason was to be 104 MARSHALL AND THE CONSTITUTION interpreted in the light of the Common Law doc- trine 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 as- semblage 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 per- adventure that the Common Law doctrine was grounded upon unshakable authority; that, con- sidering 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 re- affirmation 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: THE TRIAL OF AARON BURR 105 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 embellish- ment 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 des- tined 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? Isitlaw? Isit 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 circum- stances, a very good one — which was quite willing to shoulder just such a monstrous perversion, or 106 MARSHALL AND THE CONSTITUTION 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 ques- tion at issue, namely, whether under the Constitu- tion all involved in a treasonable enterprise are - principals, Marshall pretended not te pass; but in. fact he rejected the essential feature of the Com- mon 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 t 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 spe- cifically 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! THE TRIAL OF AARON BURR 107 oresence 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 delictt — 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 pre- cisely the reason why they had opposed the Com- mon Law doctrine. 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 108 MARSHALL AND THE CONSTITUTION with the overt act is demonstrable not by a sin- gle 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 ab- surdity of regarding the procurers of treason as traitors and yet of making their conviction im- possible? 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 inten- tion 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 ac- tually 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 THE TRIAL OF AARON BURR 109 with his later position was as unconvincing as it was labored.' Burr’s attorneys were more prudent: they dis- missed Marshall’s earlier words outright as obzter dicta— and erroneous at that! Nevertheless when, thirty years later, Story, Marshall’s friend and pu- pil, was in search of the best judicial definition of treason within the meaning of the Constitution, he selected this sentence from the case of Boll- mann and Swartwout and passed by the elabo- rate opinion in Burr’s case in significant silence. But reputation is a great magician in transmut- ing heresy into accepted teaching. Posthumously Marshall’s opinion has attained a rank and au- thority with the legal profession that it never en- joyed in his own time. Regarding it, therefore, as today established doctrine, we may say that it has quite reversed the relative importance of conspir- acy and overt act where the treason is by levying I 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. u, 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 differ- ence between the part to be performed “however minute,” and the “‘action”’ from which the performer may be “however remote”? Itis 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. {10 MARSHALL AND THE CONSTITUTION 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 visi- ble, to put its existence beyond surmise. By Mar- shall’s view each traitor is chargeable only with his own overt acts, and the conspiracy is of impor- tance 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 legis- lation 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.* On the day following the reading of Marshall’s It 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 vs. Mitchell, 2 Dallas, 348; and Druecker vs. Salomon, 21 Wis., 621. THE TRIAL OF AARON BURR 111 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 in- dictment 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 ex- tenuation. The President, too, had behaved de- plorably 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 *rom the case would be from assuming that lofty tone of calm, unmoved impartiality of which Mar- shall was such a master — and never more than on 112 MARSHALL AND THE CONSTITUTION this occasion — and from setting himself sternly against popular hysteria. The words with whick 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 com- ment particularly, but which may, perhaps not im- properly 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 1s desirous of placing himself in a disagree- able 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 of- fered Marshall a tempting opportunity to try out the devotion of Republicans to that ideal of judi- cial deportment which had led them so vehemently to criticize Justice Chase and to charge him with THE TRIAL OF AARON BURR 113 being “‘oppressive,”’ with refusing to give counsel for defense an opportunity to be heard, with trans- gressing the state law of procedure, with showing too great liking for Common Law ideas of sedi- tion, 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 ac- quittal, 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 weak- est link in the combination against the Chief Jus- tice was a very fragile one indeed — the iniquitous Wilkinson. Even the faithful and melancholy Hay 8 ) 114 MARSHALL AND THE CONSTITUTION 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 re- tirement from the Presidency at last relieved the Chief Justice from the warping influence of a hate- ful personal contest and from anxiety for his official security. Jefferson’s successors were men more will- ing to identify the cause of the Federal Judiciary with that of national unity. Better still, the War oi 1812 brought about the demise of the Feder- alist 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. THE TRIAL OF AARON BURR 115 In the meantime the Court was acquiring that personnel which it was to retain almost intact for nearly twenty years; and, although the new re- cruits came from the ranks of his former party foes, Marshall had little trouble in bringing their views into general conformity with his own constitution- al 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 occa- sion 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, af- fected a greater independence, for which he was on one occasion warmly congratulated by Jefferson; yet even his separate opinions, though they some- times challenge Marshall’s more sweeping premises and bolder method of reasoning, are after all most- ly concurring ones. Marshall’s really invaluable t This was in the case of Ogden vs. Saunders, 12 Wheaton, 213 (1827). 116 MARSHALL AND THE CONSTITUTION 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 im- mature, enthusiastically willing to learn, warmly affectionate, and with his views on constitutional issues as yet unformed, Story feli 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 illus- trates the truth. Marshall owed to counsel a some- what similar debt in the way of leading up to his decisions, for, as Story points out, “‘he was solicit- ous to hear arguments and not to decide cases with- out them, nor did any judge ever profit more by them-”’ But in the field of Constitutional Law, at THE TRIAL OF AARON BURR 11? 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, in- deed, through the welcome stimulus which a clash of views gave to his reasoning powers. Though the wealth of available legal talent at this period was impressively illustrated in connec- tion both with Chase’s impeachment and with Burr’s trial, yet on neither of these occasions ap- peared William Pinkney of Maryland, the attorney to whom Marshall acknowledged his greatest in- debtedness, 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 person- ality, 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 tribu- nal in the land, and engaged in causes of the deepest 118 MARSHALL AND THE CONSTITUTION moment; but still apparently thinking how he can de- claim 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 com- mon 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 him- self 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 order- ing him to enforce, in the face of the opposition of I 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. 25 Cranch, 136. THE TRIAL OF AARON BURR 119 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, say- ing: “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.”’ 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 Govern- ment and the States; and these expressions of dis- sent in turn brought the Virginia Assembly to the defense of the Supreme Court. The commission to whom was referred the communica- tion of the governor of Pennsylvania [reads the Virginia document] .. . are of the opinion that a tribunal is al- ready 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. 120 MARSHALL AND THE CONSTITUTION 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 dur- ing Marshall’s incumbency Virginia paid her one and only tribute to the impartiality of the Su- preme 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 |“ Joun Marsuatz stands in history as one of that small group of men who have founded States. He | was a nation-maker, a state-builder. His monu- | ment is in the history of the United States and his name is written upon the Constitution of his coun- try.” So spoke Senator Lodge, on John Marshall Day, February 4, 1901. “I should feela... doubt,’ declared Justice Holmes on the same oc- -easion, ‘“‘whether, after Hamilton and the Con- stitution itself, Marshall’s work proved more than _a strong intellect, a good style, personal ascend- ancy in his court, courage, justice, and the con- victions of his party.” Both these divergent esti- _ mates 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 te 121 122 MARSHALL AND THE CONSTITUTION 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 for- gotten 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 in- strument 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 pro- mulgate 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 compara- tively 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 ‘THE TENETS OF NATIONALISM 123 again have been heard of outside the law courts. To take a timid or obscure way to a merely tenta- tive goal would have been at variance equally with Marshall’s belief in his mission and with his instincts - asa 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 axio- matic, 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 consist- ency of which, even when it did not convince, yet 124 MARSHALL AND THE CONSTITUTION baffled the only sort of criticism which contem- poraries were disposed to apply. Listen, for in. stance, 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 ebburais 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 with- in the States. The outcome turned on the inter- pretation 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 pro- priety of the laws to be passed for executing the | sary and proper _ clause was intended to indicate that the National THE TENETS OF NATIONALISM 125 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 te 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 1 “neces- sary and proper” means for carrying out certain of the enumerated powers of the National Govern- ment such, for instance, as borrowing money and issuing a currency. For, said he in effect, “neces- 29 « signify “‘“convenient,”’ and the Government should enjoy a wide range of choice in the selection of means for carrying out its enu- merated 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 ” 126 MARSHALL AND THE CONSTITUTION and “‘proper,” and that both terms ought to be construed narrowly. Jefferson’s opposition, how- ever, proved unavailing, and the banking institu- tion 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 “‘Re- publicans had outfederalized 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 in- terests 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 expres- sion. The amount of political talent which existed within the State of Virginia alone in the first gener- ation of our national history is amazing to contem- plate, but this talent unfortunately exhibited one most damaging blemish. [The intense individualism THE TENETS OF NATIONALISM 127 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 rej ect} In the Virginia and Kentucky resolutions of 1798 and 1799, which regard the Constitution as a com- pact of sovereign States and the National Govern- ment 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, some- what delayed by the federalization of the Republi- can 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 Na- tional Government. Henceforth the largest prop- erty interest of the country stood almost solidly behind State Rights. 128 MARSHALL AND THE CONSTITUTION It was at this critical moment that chance pre- sented 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 “constella- tion 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 Dis- trict of Columbia bar. In arguing for the State, Hopkinson urged the restrictive view of the “‘neces- sary 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 exemp- tion from taxation. “‘Itis thus with the famous fig- tree 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 t M’Culloch vs. Maryland (1819), 4 Wheaton, 316. THE TENETS OF NATIONALISM 129 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.”’ On the other side, Pinkney made the chief argu- ment 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 exces- sively vehement; but his eloquence was over- whelming. 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 argu- ment into a pamphlet which may be easily read by the instructed layman in half an hour, for, as is 9 130 MARSHALL AND THE CONSTITUTION invariably the case with Marshall, his condensation made for greater clarity. In this opinion he also ives evidence, in their highest form, of his other notable qualities as a judicial stylist: his “tiger in- stinct 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 “but’s,”’ “if’s,” and “though’s”’; the pith and balance of his phrasing, a reminiscence of his early days with Pope; the developing momen- tum 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 | ' THE TENETS OF NATIONALISM 131 that the Constitution, by its own declaration, was “ordained and established” in the name of the peo- ple, “‘in order to form a more perfect union, establish justice, insure domestic tranquillity, and secure the blessings of liberty to themselves and their poster- ity.” Nor did he consider the argument “that the people had already surrendered al] thet 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 ex- ercised by themselves, not by a distinct and inde- pendent sovereignty created by them.” ‘‘The Goy- ernment of the Union, then,”’ Marshail proceeded, “is emphatically . . . a government of the peo- ple. 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 132 MARSHALL AND THE CONSTITUTION 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 Gov- ernment. 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 “neces- sary” 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 THE TENETS OF NATIONALISM 133 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 judg- ment in the selection of measures to carry into execution the constitutional powers of the Govern- ment,” but rather “‘to remove all doubts respect- ing 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 Constitutien and all means which are appropriate, which are plainly adapted to that end, which are not prohibited hut con- sist 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 tc 134 MARSHALL AND THE CONSTITUTION Congress? In approaching this question Marshall again laid the basis for as sweeping a decision as possible. The terms in which the Maryland stat- ute was couched indicated clearly that it was di- rected specifically against the Bank, and it might easily have been set aside on that ground. But Marshall went much further and iaid 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 for 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 be- cause 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 in- volves 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 THE TENETS OF NATIONALISM 135 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 de- nied.”’ 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 decla- ration that the Constitutien 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 thelaw . . . of Maryland, im- posing 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 ‘“‘Steam- boat 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 t9 Wheaton, 1. 136 MARSHALL AND THE CONSTITUTION 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 retalia- tory statutes excluding from their waters any vessel licensed under the Fulton-Livingston mo- nopoly. The condition of interstate commercial warfare which thus threatened was not unlike that which had originally operated so potently to bring about the Constitution. The case of Gibbons vs. Ogden was argued in the early daysof 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 at- taching 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 THE TENETS OF NATIONALISM 137 made for these arguments, and especially for Web- ster’s effort, hardly sustain investigation. Webster, never in any case apt to regard his own perform- ance 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 opin- jon was arunning 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 eases 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. t See Livingston vs. Van Ingen, 9 Johnson, 807 (1812); also Keni’n Commentaries, 1, 432-38. 138 MARSHALL AND THE CONSTITUTION Marshall pronounced the Fulton-Livingston mo- nopoly 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 sim- ple result his opinion takes the broadest possible range. At the very outset Marshall flatly con- tradicts 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 ai 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 “Tre- specting 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 bene- ficial to the grantor if retained by himself. . . but is an investment of power for the general THE TENETS OF NATIONALISM 139 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 b of agents or remain dormant.”’ In no other of his opinions did Marshall so clearly bring out the logi- cal connection between the principle of liberal con- struction 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 re- strict a general term . . . to one of its significa- tions. Commerce,”’ he continues, ‘‘undoubtedly is traffic, but it is something more — it is inter- course,’ 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 “to 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 com- merce with foreign nations and among the several 140 MARSHALL AND THE CONSTITUTION States is vested in Congress as absolutely as it would be in a single government having in its con- stitution 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 de- fine 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 com- merce among the States, such for instance as quar- antine 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 THE TENETS OF NATIONALISM 141 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 sover- eignty,”» 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 con- ferred the American character upon vessels already possessed of the right to engage in the coasting trade; Marshall, on the contrary, held that it con- ferred 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. In- cidentally Marshall indicated his opinion that Con- gress’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 ele- 142 MARSHALL AND THE CONSTITUTION ment,”’ said he, “‘may be as legitimately used as the other for every commercia) purpose authorized by the laws of the Union.” Two years later, in the case of Brown vs. Mary- land, 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 com- merce, 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 keep- ing the field of national power clear of encumber- ing state legislation against the day when Congress should elect to step in and assume effective con- trol. Nor can there be much doubt that the result was intended by the framers of the Constitution. 1 12 Wheaton, 419. THE TENETS OF NATIONALISM 143 Yn the second place, however, from anothe: point of view this “original package doctrine”’ is only an extension of the immunity from state taxa- tion established in M’Culloch vs. Maryland for in- strumentalities of the National Government. It thus reflects the principle implied by that decision: where power exists to any degree or for any pur- pose, 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 at- titude of the Court nowadays, when it has to deal with state legislation, is very different. It takes the position thai 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 bold- er method. Thus Congress may use its taxing T See Justice Bradley’s language in 122 U. S., 326; also the more recent case of Western Union Telegraph Company vs. Kan., 216 1 S., 1. 144 MARSHALL AND THE CONSTITUTION power to drive out unwholesome businesses, per- haps 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 dis- crepancy 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. 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 tSee 195 U.S., 27; 188 U. S., 321; 227 U.S., 308. Cf. 247 U.S. 251. THE TENETS OF NATIONALISM 145 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 instrumentali- ties are present within the States, not by the tolerance of the States, but by the supreme authority of the people of the United States. * Of these several principles, the first is obviously the most important and to a great extent the source of the others. Itis the principle of which Marshall, in face of the rising tide of State Rights, felt him- self to be in a peculiar sense the official custodian. Itis 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 main- taining its vitality and usefulness: owerful 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 con- struction 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 t For the application of Marshall’s canons of constitutional inter- pretation in the field of treaty making, see the writer’s National Supremacy (N. Y., 1913), Chaps. III and IV.- $0 146 MARSHALL AND THE CONSTITUTION of refined and metaphysical reasoning . . . explain away ‘the Constitution of our country and leave it a mag- nificent structure indeed to look at, but totally unfit for use. They may so entangle and perplex the understand- ing 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 /Marsuatt’s work was one of conservation in so far as it was concerned with interpreting the Con- stitution 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 Constitution- al 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 ob- jects of Union” as follows: “First, defense against foreign danger; secondly, against internal disputes and a resort to force; thirdly, treaties with foreign 147 148 MARSHALL AND THE CONSTITUTION nations; fourthly, regulating foreign commerce and drawing revenue fromit.” To this statement Madi- son demurred. The objects mentioned were im- portant, he admitted, but he “combined with them the necessity of providing more effectually for the securing of private rignts and the steady dispensa- tion of justice. Interferences with these were evils which had, more perhaps than anything else, pro- duced this Convention.” Marshall’s sympathy with this point of view we have already noted. Nor was Madison’s reference solely tothe 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 mere 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 legis- lation took the form of an intervention by the Legislature in private controversies pending in, or already decided by, the ordinary courts, with the re- sult that judgments were set aside, executions can- celed, new hearings granted, new rules of evidence introduced, void wills validated, valid contracts tSee supra, p. 34 ff. THE SANCTITY OF CONTRACTS 149 voided, forfeitures pronounced — all by legisla- tive 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 sev- eral 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 un- naturaily that the relief must come from some source external to the local governments, and they welcomed the movement for a new national Con- stitution as affording them their opportunity. 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 t On special legislation, see the writer’s Doctrine of Judicial Review (Princeton, 1914), pp. 36-37, 69-71. 150 MARSHALL AND THE CONSTITUTION 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 sug- gest, 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 re- strictions, the Social Compact as well as “the principles of our free republican governments” af- forded judicially enforcible limitations upon legis- lative 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.* Such was still the situation when the case of t 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 THE SANCTITY OF CONTRACTS 151 Fletcher vs. Peck’ in 1810 raised before the Su- preme 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 ease 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 ease, 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 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. 6 Cranch, 87. 152 MARSHALL AND THE CONSTITUTION Court might enter upon; and for the ordinary run of-cases in which undue influence is alleged to have induced theenactment 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 re- sounding scandal of the generation; and surely judges may assume to know what is known to all and may act upon their knowledge. Furthermore, when one turns to the part of Mar- shall’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 prin- ciples of society and government, and of the doc- trine of the separation of powers. Then he appar- ently 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 Con- stitution; whereupon he brings forward the obliga- tion 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 con- tract over and done with — functus officio. This THE SANCTITY OF CONTRACTS 153 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 unreason- able 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 con- tract, 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 pro- tects the obligation only after it has come into existence. Not the Constitution of Georgia as construed by her own courts, since they had sus- tained the rescinding act. Only one possibility re- mained; the State Constitution must be the source of the obligation — yes; but the State Constitution as it was construed by the United States Supreme 154 MARSHALL AND THE CONSTITUTION 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 obliga- tion is treated by Marshall as having been converted into a legal one by the United States Constitution. However, Marshall apparently fails to find en- tire satisfaction in this argument, for he next turns to the prohibition against bills of attainder and ex post facto laws with a question which mani- fests 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 Con- stitution of the United States.”’ It was not until nine years after Fletcher vs. Peck that this am- biguity 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 t 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. THE SANCTITY OF CONTRACTS — 156 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 Hamp- shire, 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.” For many years after the Revolution, the Trus- tees 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 Ra- chel’s complaint to the session, he was “‘churched” for “breach of the Ninth Commandment and 156 MARSHALL AND THE CONSTITUTION also for a violation of his covenant agreement.” This incident caused a rift which gradually de- veloped 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 Dart- mouth 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 Calvin- ists 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 Col- lege. ‘‘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 mon- archy,”’ 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 THE SANCTITY OF CONTRACTS — 157 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 Jeffer- _ son and received a characteristic answer in reply: _ “Tt 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 | theirend .. . ismost absurd. ... Yet ourlaw- _ yers and priests generally inculcate this doctrine, and suppose that preceding generations held the earth more freely than we do; had a right to im- | pose 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 Dart- mouth University, the number of its trustees was increased to twenty-one, the appointment of the 158 MARSHALL AND THE CONSTITUTION additional members being given to the Governor, and a board of overseers, also largely of guber- natorial 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 ia 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 ac- count 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 law- yers of the day, Jeremiah Smith, a former Chief THE SANCTITY OF CONTRACTS 159 Justice of New Hampshire, and Daniel Webster. ° These three able Jawyers argued that the amend- ing act exceeded “the rightful ends of legislative power,” violated the principle of the separation of powers, and deprived the trustees of their “privileges and immumities”’ contrary to the “law of the land” clause of the State Constitution, and impaired the obligation of contracts. The last con- tention 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 con- tracts, 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 cor- poration,” whose “various powers, capacities, and franchises all . . . were to be exercised for the bene- fit 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 160 MARSHALL AND THE CONSTITUTION if clause “embraced all contracts relating to pri- vate 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 privi- leges 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 Web- ster the central and compelling figure, and to the words which it assigns him in closing his ad- dress before the Court has largely been attriLut- ed the great legal triumph which presently fol- lowed. The story is, at least, so well found that the chronicler of Dartmouth College vs. Wood- ward 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 THE SANCTITY OF CONTRACTS 161 ease. 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. Itis, 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 fur- rows 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 Czesar 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 sop!” It 162 MARSHALL AND THE CONSTITUTION Whether this extraordinary scene, first described thirty-four years afterward by a putative wit- ness 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! Of the strictly legal part of his argument Web- ster 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 thé College its opponents were ill prepared to take advantage of the vulnerable points of its defense. For some unknown reason, t Professor Goodrich of Yale, who is responsible for the story, com- | municated it to Rufus Choate in 1853. It next appears on Goodrich’s authority in Curtis’s Webster, vol. u, pp. 169-71. THE SANCTITY OF CONTRACTS 163 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 ad- mitted that “he had hardly thought of it till it 3° was called on.”’ As for Holmes, he was a “‘kaleido- scopic politician” and barroom wit, best known to contemporaries as “‘the noisy eulogist and reputed protégé 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 Washing- ton,’ 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 '64 MARSHALL AND THE CONSTITUTION 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 dis- may 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 Jus- tice 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 Washing- ton in March, 1818. Then came a series of confer- ences at Albany in which Chancellor Kent, Justice Johnson, President Brown of Dartmouth College, Governor Clinton, and others participated. Asa result, the Chancellor owned himself converted to the idea that the College was a vrivate institution. THE SANCTITY OF CONTRACTS 165 The new term of court opened on Monday, Feb- | ruary 1,1819. William Pinkney, who in vacation | had accepted a retainer from the backers of Wood- ward, 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, an- - nounced that the Court had reached a decision, | plucked from his sleeve an eighteen folio manu- | script opinion, and began reading it. He held that the College was a “ stitution”’; that its charter was the outgrowth of private eleemosynary in- a contract between the original donors and the Crown, that the trustees represented the inter- est of the donors, and that the terms of the Con- stitution 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 con- struction” obviously at war with the spirit of the 166 MARSHALL AND THE CONSTITUTION Constitution, which was far from the fact. For, he “ec continued, “it requires no very critical examina- tion 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 wi!l 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 uni- versality of this sentiment, there can be but little reason to imagine that the framers of our Con- stitution were strangers to it, and that, feeling the necessity and policy of giving permanence and se- curity 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 Flet- cher vs. Peck in his opinion, but he builds on the construction there made of the “obligation of con- tracts”’ 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 un- limited power, might at any time before the Revo- THE SANCTITY OF CONTRACTS 167 lution 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 fur- ther 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 Con- stitution of the United States,’’ he continues, “‘has imposed this additional limitation, that the Legis- lature of a State shall pass no act ‘impairing the 999 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 prin- } ciples 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 re- pudiated by the Court itself within a decade. albeit the rule it lays down remained unaffected. His- torically it is equally without basis, for the inten- tion of the obligation of contracts clause, as the 168 MARSHALL AND THE CONSTITUTION 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 in- stitutions of learning and charity out of the reach of “legislative despotism and party violence.” But doubtless, the critic will urge, by the same sign this decision also put profit-seeking corpora- tions 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. barin 1819. Whatever blame there is skould there- fore 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 jt perfectly clear that legislatures may reserve the right to alter or repeal at will the charters they grant. t Much of the evidence is readily traceable through the Index to Max Farrand’s Records of ithe Federal Convention. THE SANCTITY OF CONTRACTS 169 lf 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 avoid- ance’; 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 legis- lative history, the legislative “strike,” whereby corporations not protected by irrepealable charters are blandly confronted with the alternative of hav- ing their franchises mutilated or of paying hand- somely 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 black- mail? The truth of the matter is that Marshall’s decision has been condemned by ill-informed or 170 MARSHALL AND THE CONSTITUTION ill-intentioned critics for evils which are much more simply and much more adequately explained by general human cupidity and by the power in- herent 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 consti- tutional 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. Evenin England as well as in this country the value, and indeed the possibility, of representative insti- tutions 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 multi- plicity 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 THE SANCTITY OF CONTRACTS 171 against jegislative 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 exten- sive 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 Massa- chusetts on the floor of the Federal Convention. “He was filled with astonishment that, if we 172 MARSHALL AND THE CONSTITUTION 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 theo- retical 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 in- tegrity of the Union, to distinguish public con- tracts from private on the ground that the former, in the view of the Constitution, had less obligation! 1 CHAPTER Vii THE MENACE OF STATE RIGHTS MarsHALL’s reading of the Constitution may be summarized in a phrase: it transfixed State Sover- eignty 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 po- litical 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 173 174 MARSHALL AND THE CONSTITUTION 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 ap- plauded 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 Ap- peals, in the case of Hunter vs. Martin,” pro- nounced 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. The head and front of the Virginia court at this time was Spencer Roane, described as “the most «See pages 14-15. | 24 Munford (Va.), 1. See also William E. Dodd’s article on Chief Justice Marshall and Virginia in American Historical Revier, vol. XII, p. 776. THE MENACE OF STATE RIGHTS 175 powertul politician in the State,” an ardent Jef- fersonian, and an enemy of Marshall on his own account, for had Ellsworth not resigned so inop- portunely, 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 writ- ten 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 onthe mainissue. In 1814, however, the most nearly contemporaneous evidence as to the inten- tion 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 af 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 176 MARSHALL AND THE CONSTITUTION 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 exposi- tion 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, can- not be stripped of their power merely by impli- cation. Conversely, the General Government is a government over individuals and is therefore ex- ected 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. Fur- ther, the Constitution and the acts of Congress “‘in THE MENACE OF STATE RIGHTS 177 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 Con- _ gress are “‘in pursuance ”’ of it, is for them to declare without any correction or interference by the courts _ of another jurisdiction. Indeed, it is through the _ power of its courts to say finally what acts of Congress are constitutional and what are not, that _ the State is able to exercise its right of arresting within its boundaries unconstitutional measures of the General Government. For the legislative nul- _ lification of such measures proposed by the Vir- _ ginia and Kentucky resolutions is thus substituted _ judicial nullification by the local judiciaries. In Martin vs. Hunter’s Lessee,t which was de- | cided in February, 1816, Story, speaking for the Court, undertook to answer Roane. Roane’s ma- jor premise he met with flat denial: “It is a mistake,’ he asserts, “‘that the Constitution was not designed to operate upon States in their cor- porate capacities. It is crowded with provisions I Wheaton, 304. Marshall had an indirect interest in the case. See supra, pp. 44-45. 12 178 MARSHALL AND THE CONSTITUTION 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 ex- ercise 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. If Story’s argument is defective at any point, it — is in its failure to lay down a clear definition of THE MENACE OF STATE RIGHTS 179 “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, fer 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 Quar- | terly Sessions of Norfolk County and fined one hun- dred dollars. From this judgment they were now | appealing under Section xxv. 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 defend- ant contrary to Article XI of the Amendments. Marshall’s summary of their argument at the out- set of his opinion is characteristic: ““They main- tain,”’ 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 16 Wheaton, 264. 180 MARSHALL AND THE CONSTITUTION 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 Constitu- tion, laws, and treaties may receive as many con- structions as there are States; and that this is nota mischief, or, if a mischief, is irremediable.” The cause of such absurdities, Marshall con- tinued, was a conception of State Sovereignty con- tradicted 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 Ameri- can People, and if gentlemen please, of the Ameri. can 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 Constitu- tion, 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 THE MENACE OF STATE RIGHTS 181 people make the Constitution, and the people can unmake it. Itis the creature of their own will, and lives only by their will. But this supreme and ir- | resistible power to make or unmake resides only | in the whole body of the people, not in any sub- | division of them. The attempt of any of the parts | to exercise it is usurpation, and ought to be re- | pelled 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 con- sists 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 construc- tion of either.”” From this it followed that Section XXV Was a measure necessary and proper for ex- tending the judicial power of the United States appellately to such cases whenever they were first 182 MARSHALL AND THE CONSTITUTION 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 Vir- ginia was based upon the assumption that the Federal and the State Judiciaries constituted inde- pendent systems for the enforcement of the Con- stitution, 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 “le- gitimately 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 retire- ment, 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 THE MENACE OF STATE RIGHTS _ 183 | miners constantly working underground to under- > | mine our confederated fabric”’’; and this latest as- | sault 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 protégé, was still more vio- lent and wrote a series of unrestrained papers at this time in the Richmend 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 Vir- ginia press was closed to that side of the ques- tion. 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 con- troversy was the least important. “A deep design,” Marshall again wrote his colleague, “‘to convert _ our Government into a mere league of States has 184 MARSHALL AND THE CONSTITUTION taken hold of a powerful and violent party in Vir- ginia. 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 bank- ruptcy laws even for future contracts and conse- quently 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 cen- tury 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. 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 «4 Wheaton, 122. 28 Wheaton, 1. THE MENACE OF STATE RIGHTS 185 _ Congress.* On December 12, 1821, Senator John- son of Kentucky proposed an amendment to the Constitution which was intended to substitute the Senate for the Supreme Court in all constitu- tional 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 - eontracts”’ 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 jurispru- _ dence, 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?”’ t For a good review of the contemporary agitation aroused by Mar- | shall’s decisions, see two articles by Charles Warren in the American Law Review, vol. Xuv11, pp. 1 and 161. 186 MARSHALL AND THE CONSTITUTION Furthermore, ‘courts, like cities, and villages, or like legislative bodies, will sometimes have their Jeaders; and it may happen that a single individ- ual will be the prime cause of a decision to over- turn 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 propri- ety, the communications from Heaven delivered by Urim and Thummim to the High Priest of God’s chosen people.” For several years after this, hardly a session of Congress convened in which there was not in- troduced some measure for the purpose either of curbing the Supreme Court or of curtailing Mar- shall’s influence on its decisions. One measure, for example, proposed the repeal of Section xxv; an- other, the enlargement of the Coust 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. THE MENACE OF STATE RIGHTS 187 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 jug- gernaut,”’ that “creature of the perverted corpo- rate 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 dis- connection with them, inaccessible to the chari- ties and sympathies of human life.”” The amend- ment 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 under- lying cause? That Marshall’s principles of con- stitutional 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 188 MARSHALL AND THE CONSTITUTION 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 open- ing 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 pri- vate capital but, after all, without altering greatly the constitutional problem. For with corperations THE MENACE OF STATE RIGHTS 189 _ to be chartered, endowed with the power of emi- nent 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 endea- _ vor 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 Constitu- tion defined a status quo the fundamental prin- eiples of which Marshall considered sacred. At the same time, even his obstinate loyalty to “the in- tentions 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 deci- sion 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 plain- tiff in error, who was Treasurer of the State of Ohio, brought forward Article XI of the Amend- ments 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 19 Wheaton, 738. 1909 MARSHALL AND THE CONSTITUTION done in excess of his rightful powers. He alsa reiterated and amplified the principles of M’Cul- loch 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 ncumbency in the réle of dissenter in a constitutional case. The decision of the majority, speaking through Justice Wash- ington, 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. In the course of the next few years the Court, speaking usually through the Chief Justice, de- cided several cases on principles favoring local in- terest, sometimes indeed curtailing the operation of previously established principles. For exam- ple, 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 112 Wheaton. 213. THE MENACE OF STATE RIGHTS 191 United States for local purposes'; that the mere grant of a charter to a corporation does not pre- vent 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 obliga- tion 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. 5 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 t Wilson vs. Blackbird Creek Marsh Company (1829), 2 Peters, 245 2 Providence Bank vs. Billings (1830), 4 Peters, 514. 3 Satterlee vs. Matthewson (1829), 2 Peters, 380; and Watson vs. Mercer (1834), 8 Peters, 110. 4 Barron vs. Baltimore (1833), 7 Peters, 243. 5 See in this connection the Chief Justice’s remarks in Briscoe vs. Bank of Kentucky, 8 Peters, 118. 192 MARSHALL AND THE CONSTITUTION 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 carry- ing 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 con- fronted 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 in- tended 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 — 14 Peters, 410. THE MENACE OF STATE RIGHTS 193 threw into interesting contrast two points of view. The opponents of this section insisted upon re- garding constitutional cases as controversies be- tween the United States and the States in their corporate capacities; its advocates, on the other hand, treated the section as an indispensable safe- ~* guard 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. Meantime the Supreme Court had become in- volved in controversy with Georgia on account of a series of acts which that State had passed extend- ing its jurisdiction over the Cherokee Indians in violation of the national treaties with this tribe. Tn Corn Tassel’s case, the appellant from the Geor- gia 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 con- fronted squarely with the question of the validity of the Georgia acts. The State put in no appearance, ™6 Peters, 515. 13 194 MARSHALL AND THE CONSTITUTION 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.” Marshall began to see the Constitution and the Union crumbling before him. “TI 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 apprehen- sion. 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 reélection made him relinquish altogether the idea of resignation. A fewmonths later, in consequence of the Adminis- tration’s vigorous measures against nullification in South Carolina, things were temporarily weaving a brighteraspect. Yetthatthefundamentalelements THE MENACE OF STATE RIGHTS 195 of the situation had been thereby altered, Mar- shall 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 fu- ture presents no cheering prospect. In the South . . . those who support the Executive do not sup- port 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 ene- mies 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 signifi- cance 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 politi- cal 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. Se 196 MARSHALL AND THE CONSTITUTION In 1830 Alexis de Tocqueville, the French states- man, 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 institu- tions. “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 ietter: 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 consery- ative spirit of stability against the fickleness of >’ the democracy.”’ The contrast between these ob- servations 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 coun- try, let De Tocqueville speak again: ““Searcely any - THE MENACE OF STATE RIGHTS 197 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 poli- tics with jurisprudence, that mutual consultation of public opinion and established principles, which in the past has so characterized the course of discus- sion and legislation in America, is traceable to origins long antedating Marshall’s chief justiceship. On the other hand, there is no public career in Amer- ican history which ever built so largely upon this pervasive trait of the national outlook as did Mar- shall’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 Mar- shall 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 198 AMONG FRIENDS AND NEIGHBORS 199 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 ma- laria. 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: Raw etcH, Jan.y 24, 1803. My pearest Potty You will laugh at my vexation when you hear the vari- ous calamities that have befallen me. In the first place when I came to review my funds, I had the mortification 200 MARSHALL AND THE CONSTITUTION 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 portman- teau, starting [sic] at vacancy, & sweating most pro- fusely 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 bea 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 im- possible 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 mis- fortune but the hope that I shall be enabled in four er 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. Tu the meantime, I[ flatter myself that you are well and happy. Adieu my dearest Polly I am your own affectionate, J. MarsHALL. AMONG FRIENDS AND NEIGHBORS 201 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 tri- umphs.” 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 associa- tion 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 con- tact 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.” 202 MARSHALL AND THE CONSTITUTION Marshall’s relations with his neighbors were the happiest possible. Every week, when his judicial duties permitted or the more “laborious relaxa- tion” of directing his farm did not call him away, he attended the meetings of the Barbecue Club ina 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 résistance. 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. Anentertain- ing account of a meeting of the Club at which Mar- shall and his friend Wickham were the caterers has been thus preserved for us: At the table Marshall announced that at the last meet- ing 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 cham- pagne 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 AMONG FRIENDS AND NEIGHBORS 203 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 contro- versy 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 Mar- shall, 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 will- ingly allowed, deserves to rise higher and higher in everybody’s esteem; but then he mustn’t do it by get- ting 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 celum — 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 v7 et armis. And then, after further argu- ment of the same sort, he asked judgment, and sat down amidst great applause. 204 MARSHALL AND THE CONSTITUTION Mr. Wickham then rose, and made an argument of a similar pattern. No rule, he said, requires an im- possibility. 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 pos- sible, it was so decided. Another trial was had, and Marshall clearly won.* Years later Chester Harding, who once painted Marshall, visited the Club. “I watched,” says he, “for the coming of the old chief. He soon ap- proached, 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, smack- ing 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 anima- tion. There were several ties; and before long I saw the great Chief Justice of the United States t J. B. Thayer, John Marshall (Riverside Biographical Series, 1904), pp. 134-36, paraphrasing G. W. Munford, The Two Parsons (Rich- mond, 1884), pp. 326-38. AMONG FRIENDS AND NEIGHBORS 205 down on his knees measuring the contested dis- | tance 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 trium- phant 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 en- _ dowed with “a gay heart and social spirit beyond any man of his time.” As a hero of anecdotes Marshall almost rivals Lincoln. Many of the tales preserved are doubt- less apocryphal, but this qualification hardly less- ens 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 osten- tation and the gentleness with which he could re- buke 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 be- cause he could get no one to carry his turkey home for him. Marshall proffered his services. Arriving at the house the voung man asked, “‘ What shall I t Thayer, op. cit., pp. 132-33. 206 MARSHALL AND THE CONSTITUTION 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 tur- : key forme?” “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 exchang- ing jests with other loiterers like himself. *‘‘ That is he,”’ said the innkeeper; “‘ John Marshall is his name.” But the old countryman, who had a hun- dred 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 il- lustration of the proverb that “fine feathers do not make fine birds.”’ This the crestfallen rustic soon discovered. Meantime he had listened with amaze- ment and growing admiration to an argument by AMONG FRIENDS AND NEIGHBORS 207 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 ex- actions of the first attorney still left him, and be- sought his aid. With a humorous remark about the power of a black coat and powdered wig Marshall good-naturedly accepted the retainer. The religious bent of the Chief Justice’s mind is illustrated in another story, which tells of his arriv- ing 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 preju- dices 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 objec- tion the young men had uttered. So impressive was the simplicity and loftiness of his discourse that the erstwhile critics were completely silenced. 208 MARSHALL AND THE CONSTITUTION In truth, Marshall’s was a reverent mind, and it sprang instinctively to the defense of ideas and institutions whose value had been tested. Unfor- tunately, 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 invest- ment, 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 remu- nerative 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 part- ly at least to the fact that Jefferson had no sooner Jearned of the enterprise than his jealous mind con- ceived the idea that the biography must be intend- ed for partisan purposes. He accordingly gave the alarm to the Republican press and forbade the Fed- eral postmasters to take orders for the book. At the same time he asked his friend Joel Barlow, then AMONG FRIENDS AND NEIGHBORS 208 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 un- willing 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 him- self sadly owned that the “inelegancies”’ in the first were astonishingly numerous. But the short- comings of the work as a satisfactory biography are more notable than its lapses in diction. By a design apparently meant to rival the improvisa- tions 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 open- ing 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 de- void of intimate touches that it might easily have 4 210 MARSHALL AND THE CONSTITUTION 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, perma- nent 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 sub- sequent 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 exten- sive 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. AMONG FRIENDS AND NEIGHBORS 211 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, interest- ing, 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 de- prived him of all liking for poetry. The following letter, which Marshall wrote the year before his death to his grandson, a lad of four- teen or fifteen, is interesting for its views on a vari- ety of subjects and is especially pleasing for its characteristic freedom from condescension: 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 histalents than forthe improvement in language 212 MARSHALL AND THE CONSTITUTION to be derived from reading him. He was unquestion- ably, with the single exception of Demosthenes, the greatest orator among the ancients. He was too a — profound Philosopher. His “de officiis” 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 Eng- — land 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 revolu- tion 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 com- position. 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 regu- larity, 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 mean- ing 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 com- prehended without an effort. The first step towards writing and speaking clearly is AMONG FRIENDS AND NEIGHBORS 213 to think clearly. Let the subject be perfectly under- | stood, 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 repe- ruse what he has written, correct, in the first instance, every error of orthography and grammar. A mistake in either is unpardonable. Afterwards revise and im- prove 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 success- fully 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 in- dividual who turns his theughts frequently to an om- nipotent omniscient and all perfect being, who feels his dependence on, and his infinite obligations to that be- ing 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 214 MARSHALL AND THE CONSTITUTION his conversation, so that on one occasion he was much aroused by a newspaper article which had x3 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 correspond- ence 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 gov- ernmental action. In 1823 he became first presi- dent of the Richmond branch of the Colonization Society; five years later he presided over a conven- tion to promote internal improvements in Virginia; and in 1829 he took a prominent part in the delib- erations 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 de- € nounced as “wicked folly,’? and he warmly ap- plauded Jackson’s proclamation of warning to South Carolina. But Marshall regarded with dis- may 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 AMONG FRIENDS AND NEIGHBORS 215 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. Cer- tain it is that I now dread consequences that I once thought imaginary. I feel disposed to take _ refuge under some less turbulent and less danger- ~ ous 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 dis- order 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 pri- vately the cause of Clay and the United States 216 MARSHALL AND THE CONSTITUTION 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 com- manding control, over the currency and the ex- changes 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 Vir- ginia’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 un- dergo an operation for stone. In the days before anesthetics, such an operation, especially in the AMONG FRIENDS AND NEIGHBORS 217 case of a person of his advanced years, was at- tended with great peril. He faced the ordeal with the utmost composure. His physician tells of vis- iting 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. [ thought it very probable that this might be my last chance, and there- fore 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 ad- ministered him some medicine; he then inquired at what hour the operation would be performed. I men- tioned 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 ques- tion, 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 opera- tion. 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 218 MARSHALL AND THE CONSTITUTION invalidism, she was a woman of much force of char- acter and many graces of mind, to which Marshall rendered touching tribute in a quaint eulogy com- posed 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 con- versation, contributed not inconsiderably to make her a most desirable and agreeable companion. It beguiled many of those winter evenings during which her pro- tracted 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 feel- ing 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 AMONG FRIENDS AND NEIGHBORS 219 possessed in a high degree “those qualities which make up the sum of human happiness and trans- form 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 Jus- tice 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 re- stored. “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 receiv- ing 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 friend- ship farther than your deliberate judgment will ap- prove.” 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 Mo- hammedan rule never to dispute with the igno- rant, and we of the true faith in the South adjure the contamination of infidel political works. It 220 MARSHALL AND THE CONSTITUTION 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 Marti- neau, 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 compas- sionate consideration for age dared mix with the contemplation of him.” Marshall was, however, a very sick man, suf- fering constant pain from a badly diseased liver. The ailment was greatly aggravated, moreover, by “severe contusions ’”’ which hereceived whilereturn- ing 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 seren- ‘ty, and two days before it came he comnased the AMONG FRIENDS AND NEIGHBORS 221 modest epitaph which appeared upon his tomb: JOHN MARSHALL, SON OF THOMAS AND MARY MAR- SHALL, 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 Com- monwealth, he should receive but fifty dollars; and if it turned out to “be impracticable to liberate 222 MARSHALL AND THE CONSTITUTION him consistently with law and his own inclination,” he was to select his master from among the chil- dren, “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 excel- lencies, 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 re- moved 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 solici- tous to pay due respect, — with such profound sagac- ity, such quick penetration, such acuteness, clearness, strength, and comprehension of mind, that in his hand, the most complicated causes were plain, the weightiest AMONG FRIENDS AND NEIGHBORS = 223 and most difficult, easy and light, — with such striking impartiality and justice, and a judgment so sure, as te inspire universal confidence, so that few appeals were ever taken from his decisions, during his long adminis- tration of justice in the Court, and those only in cases where he himself expressed doubt, — with such mod- esty, that he seemed wholly unconscious of his own gigantic powers, — with such equanimity, such benig- nity of temper, such amenity cf 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 simplic- ity 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 numer- ous charities; his benevolence towards all men, and his ever active beneficence; these amiable qualities shone sc 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 follow- ing the death of Marshall the Supreme Court received a new Chief Justice and five new Asso- ciate Justices. The effect of this change in per- sonnel upon the doctrine of the Court soon became manifest. In the eleventh volume of Peters’s Re- ports, the first issued while Roger B. Taney was Chief Justice, are three decisions of constitutional cases sustaining state laws which on earlier argu- ment Marshall had assessed as unconstitutional. The first of these decisions gave what was desig- nated “the complete, unqualified, and exclusive” power of the State to regulate its “internal police” ‘ 297, 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 t Milton vs. New York, 11 Peters, 102. 2 Briscoe vs. Bank of Kentucky, 11 Peters, 257. 224 EPILOGUE aos . the operation of the “obligation of contracts” clause as a protection of public grants. Story. voicing “an earnest desire to vindicate his [Mar- shall’s] memory from the imputation of rashness,”’ filed passionate and unavailing dissents. With dif- ficulty 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. pub- lished 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 lan- guage. ... 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 * Charles River Bridge Company rs. 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. 1, p. 272: see also p. 270, for Chancellor Kent’s unfavorable reaction to these decisions. 226 MARSHALL AND THE CONSTITUTION himself the historian of its framing, wherefore, as its expositor, “he knew its objects, its intentions.” Yet in the face of these admissions, Baldwin re- jects Marshall’s theory of the origin of the Con- stitution and the corollary doctrine of liberal con- struction. ‘‘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.” But the radical impulse soon spent itself. Chief Justice Taney himself was a good deal of a con- servative. 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 Mar- shall’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 de- velopment of railroading and the beginning of immi- gration 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 EPILOGUE 227 principle of the exclusive control of interstate and foreign commerce by Congress. * 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 prac- tically to combat the movement on the same prin- ciples. Lincoln brought the North back to Mar- shall’s position when he remarked in his Inaugu- ral 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 ter- ritorial sovereign, present within the States by the superior mandate of the American People, and entitled to “execute on every foot of Ameri- can soil the powers and functions that belong to t Cooley vs. the Board of Wardens, 12 Howard, 299. 228 MARSHALL AND THE CONSTITUTION 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.” It is only when we turn to that branch of Con- stitutional 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 un- / limited extent or it was withheld altogether. To- day, 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 ‘ Justice Bradley in ex parte Siebold, 100 U. S., 371. EPILOGUE 229 the more complex relationships of modern times, there is today an inevitable tendency to force these rules to greater flexibility.* 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 Consti- tution was established under the sway of the idea of the balance of power, and with the purpose of effecting a comproinise among a variety of more or less antagonistic interests, some of which were \dentified with the cause of local autonomy, others of which coalesced with the cause of National Su- premacy. The Nation and the States were regard- ed as competitive forces, and a condition of ten- sion 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 t Notwithstanding what is said above, it is also true that the modern doctrine of “the police power’’ owes something to Mar- shall’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. 230 MARSHALL AND THE CONSTITUTION 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 codpera- tion in public service. And it is much the same with the relation of the three departments of Goy- ernment. 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 differen- tiations 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 judi- cial review; he imparted to an ancient legal tradi- tion 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 prin- ciples on which the integrity and ordered growth EPILOGUE 231 of their Nation have depended. Springing from the twin rootage of Magna Charta and the Dec- laration of Independence, his judicial statesman- ship finds no parallel in the salient features of its achievement outside our own annals. BIBLIOGRAPHICAL NOTE Att accounts of Marshall’s career previous to his ap- pointment 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 partic- ularly 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 233 234 BIBLIOGRAPHICAL NOTE 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 xu of the Green Bag will be found a skillfully con- structed 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 Proceed- ings, 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 Mar- shall (New York, 1914). Here also will be found a copy of Marshall’s will, of the autobiography which he pre- pared 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 0, p. 181 ff., and Henry Howe’s Historical Collections of Virginia (Charles- ton, 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 per- sonal friends shortly after Marshall’s death and both of which are now available in volume 11 of Dillon’s BIBLIOGRAPHICAL NOTE 235 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 as- sembled 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 Mar- shall (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. , De- tailed commentary of a high order of scholarship is furnished by Walter Malins Rose’s Notes to the Law- yers’ Edition of the United States Reports, 13 vols. (1899-1901). The more valuable of Marshall’s de- cisions 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 236 BIBLIOGRAPHICAL NOTE 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 biog- raphies of contemporaries and coworkers of Marshall, the most valuable are John P. Kennedy’s Memoirs of the Life of William Wirt, 2 vols. (Philadelphia, 1860); 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 yalueless. 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 per- tinent and excellently phrased comment on the great Chief Justice in Woodrow Wilson’s Constitutional Gov- ernment in the United States (New York, 1908), pp. 158-9. INDEX Adams, John, and “midnight judges,’ 22-23; appoints Marshall Chief Justice, 23-24, 51; Marshall defends, 48 Adams, J. Q., Memoirs, cited, 71 (note); record of Giles’s views on impeachment, 74-75; on Randolph, 81-82; quoted, 126 Addison, Alexander, 59 Alien and Sedition laws, 47; see also Sedition Act Ambler, Mary, Marshall marries, 30; death, 217-18 Articles of Confederation, 3-4 Baldwin, Henry, View of the Con- stitution, praise of Marshall, 225-26 Bank, U. S., 124-26; Marshall and, !214-15; see also M’Cul- loch vs. Maryland Barbecue Club, 202-04 Barlow, Joel, 208-09 Barron vs. Baltimore, 191 Bartlett, attorney in Dartmouth College case, 159, 163 Benton, T. H., Abridgment of the Debates of Congress, cited, 66 (note) Beveridge, A. J., The Life of John Marshall, quoted, 31, 43, 201 Blair, Rev., and anecdote of Barbecue Club, 203-04 Blair, Justice John, of Virginia, 15, 19 Blennerhassett, Harman, and Burr, 87, 89, 105; describes Eaton, 92 Blennerhassett’s Island, 87, 103 Bollmann, Erick, witness at Burr’s trial, 92-93, 94, 108, 109 Botts, Benjamin, defends Burr, 92 Bradley, Justice J. P., cited, 144 (note); quoted, 227-28 Breckinridge, John, of Kentucky, 61, 62 Briscoe vs. Bank of Kentucky, 191 Brown, Francis, President of Dartmouth College, 164 Brown vs. Maryland, 142-44, 171, 190 Buchanan, James, and _seces- sion, 227 Burr, Aaron, and Marshall, 50; Vice-President, 76; favors to, 82-83; “‘conspiracy”’ and trial, 86 et seq. Calder vs. Bull, 150, 154 Calhoun, J. C., and state sover- eignty, 192 Callender, J. T., tried for sedi- tion, 57, 73, 79 Campbell, clergyman, John Marshall, 28 Campbell, lawyer of Richmond, 32, 78 Charles River Bridge Company vs. Warren Bridge Company, 225 (note) Chase, Justice Samuel, of Mary- land, 19, 57, 71-72, 150; im- peachment, 72, 73-83, 112-13 teaches 237 238 Cherokee Nation vs. Georgia, 193 Chisholm vs. Georgia, 18 Cincinnati, Burr goes to, 87 Civil War, 226 Clay, Henry, Marshall and, 214 Clinton, De Witt, Governor of New York, 164 Cohens vs. Virginia, 179 Commerce, Marshall’s opinion of congressional control of, 139-42; see also Congress Congress, and Supreme Court, 7, 12-13; impeachments, 71— 83; control of commerce, 139- 143, 145, 171, 226 Connecticut, statute excluding Fulton-Livingston vessels, 136 Constitution, relation of Su- preme Court to, 7-13; prin- ciples from Marshall’s inter- pretation of, 144-45 Constitutional Convention and state coercion, 4-5 Contracts, sanctity of, 147 et seq. Cooley vs. the Board of Wardens, 227 Cooper, Thomas, tried for sedi- tion, 57 Corn Tassel, Cherokee Indian, 193 Craig vs. Missouri, 192-93 Cumberland Road Bill vetoed, 188 Cushing, Justice William, of Massachusetts, 15, 17, 116 Cushing, Mrs., wife of Justice, 17 Dartmouth College vs. Wood- ward, 124, 154 et seq. Dickinson, John, of Delaware, on removal of judges, 6; Jef- ferson writes to, 23; President of Pennsylvania, 59 (note) Dodd, W. E., Chief Justice Mar- shall and Virginia, cited, 174 (note) Duval, Justice Gabriel, 219; and Dartmouth College case, 163 INDEX Eaton, William, witness at Burr’s trial, 92, 101 Elliot, J., Debates, 36, 38 Ellsworth, Oliver, 76; on state coercion, 5; author of Judici- ary Act (1789), 14; Chief Justice, 20; resigns, 23, 175 Emmet, T. A., lawyer of New York, 136 Enquirer, Richmond, 183 Espionage Act of June 15, 1917, 110 Evans, Charles, Report, cited, 71 (note) Federalist, 5, 18, 15, 18, 124, 175 Fletcher vs. Peck, 151-54, 159, 166 Fries, John, tried for treason, 57, 73, '79 Fries’s Rebellion, 21 Fulton, Robert, steamboat grant to, 135 Gallatin, Albert, 48, 82 Georgia, land grant case, 151-54; controversy with Supreme Court, 193-94 Gerry, Elbridge, 45 Gibbons vs. Ogden, 130, 135-42, 145, 171, 189 Giles, W. B., of Virginia, 62, 74-75, 78, 82 Goodrich, C. A., Professor of Yale, 162 (note) Green vs. Biddle, 184, 188 Griffin, Judge, at Burr’s trial, 95 Hamilton, Alexander, 13, 36, 45, 50, 86, 121, 122; and U. S. Bank, 124-26 Harding, Chester, quoted, 204— 205 Hay, George, and Sedition Act, 79; U. S. District Attorney, 91, 98, 113-14 Hayes, Samuel (or Haze), 155-56 Heath testifies against Chase, 79 INDEX Henry, Patrick, at Virginia Convention, 37, 38; supports Marshall, 48 Holmes, John, and Dartmouth College case, 163 Holmes, Justice O. W., on Mar- shall, 121 Hopkinson, Joseph, Chase, 80; in Bank case, 128; and Dartmouth College case, 162 Hunter vs. Martin, 174-77, 179 Impeachments, Pickering, 71- 73; Chase, 73-83; of Penn- sylvania State Supreme Court judges, 84 Indians, and Dartmouth College. 155, 158; and Georgia, 193 defends | | Tredell, Justice James, of North | Carolina, 15 Jackson, Andrew, and Burr, 92; President, 191; and contro- versy between Supreme Court and Georgia, 194 Jay, John, of New York, Chief | Justice, 15-16, 19-20, 196 Jefferson, Thomas, 25, 28, 166; elected President, 22; and the Judiciary, 23, 53, et seq., 182- 183; Governor of Virginia, 30; aad Marshall, 46, 50, 55, 94— 95, 96, 97-98, 108, 120; inau- guration, 55-56; Marbury vs. Madison, 64-66; and Martin, 77, 78; and Burr, 82, 88-89, 90, 111, 113; and Johnson, 115; and U. S. Bank, 125; on Dartmouth College question, 157; criticism of Marshall’s Life of Washington, 208-09 Johnson, Allen, Jefferson and his Colleagues, cited, 87 (note) Johnson, R. M., of Kentucky, 185 Johnson, Justice William, 115, 151, 164 Jones, Walter, in Bank case, 128 239 Judiciary, establishment, 1 et seq.; removal of judges, 6; Jefferson’s war on, 53 e¢ seq. Judiciary Act (1789), 14-16, 39, 192-93; Act (1801), 22, 60-63, 71 Kent, Chancellor James, of New York, 137, 138, 164, 225 (note) Kentucky, anti-judicial move- ment, 58, 184-86, 187, 188 Kentucky Resolutions, 22, 127, 177 King, Rufus, on John Marshall, 44 Law Journal, Hall’s, 183 Lee, R. E., 25 Lewis, attorney for Fries, 79 Lincoln, Abraham, and nation- alism, 226 Livingston, Justice Brockholst, 164 Livingston, R. R., steamboat grant to, 135 Livingston family of New York, 16 Livingston vs. Van Ingen, 137 (note) Lodge, H. C., on Marshall, 121 M’Culloch vs. Maryland, 124- 135, 143. 182, 184, 190 McLean, Justice John, letter of Story to, quoted, 225 (note) Madison, James, 82; on state coercion, 5; on state courts as national tribunals, 7; in Vir- ginia Legislature, 34; Virginia Convention, 36, 37; and U. S. Bank, 126; Journal, cited, 175 Marbury vs. Madison, 64-71 Marsh, Charles, 164 Marshall, John, 18, 20, 22; and American constitutionalism, 2-3; appointed Chief Justice, 24, 51; born (1755), 25; early life, 25 et seg.; education, 27- 28, 30; and the Revolution, 240 Marshall, John—Continued 29-30; marriage (1783), 30; practices law at Richmond, 31-32; in Virginia Legisla- ture, 33; and adoption of Constitution, 35-38; Wirt’s description of, 39-42: per- sonal! characteristics, 42; Federalist leader in Virginia, 43; and Jay Treaty, 43-44, 48; purchases Fairfax estate, 44-45; “X.Y.Z.” mission, 45- 46, 49; elected to Congress, 46-48; and Jefferson, 46, 50, 55, 94-95, 96, 97-98, 108, 120; in Washington, 53-54; first constitutional case, 64— 71; and trial of Burr, 93 et seq.; and nationalism, 121 et seq., 147; interpretation of Constitution, 144-45; and sanctity of contracts, 147 et seg.; and State Rights, 173 et seq.; as private citizen, 198 et seg.; aS hero of anecdote, 205-06; religious bent, 206; Life of Washington, 34 (note), 208-10; correspondence, 211— 213; and politics, 213-14; on method of electing President, 214-15; and U.S. Bank, 215- 216; illness, 216-17; death of wife, 217-18; last years, 219- 220; composes epitaph, 221; death, 221; will, 221-22; tribute, 221-22; Baldwin on, 925-26; bibliography, 233-36 Marshall, Thomas, father of John Marshall, 25, 27 Martin, Luther, of Maryland, on authority of federal legisla- tion, 9; defends Chase, 76-77; 80-81; defends Burr, 92, 96; in Bank case, 128 Martin vs. Hunter’s Lessee, 177— 182 Martineau, Harriet, Marshall, 220 Maryland, attitude toward Judi- describes INDEX ciary, 58; and U.S. Bank, see M’Culloch vs. Maryland Mason, George, 38 Mason, Jeremiah, 158, 162 Mexico, “Burr's Conspiracy”’ against, 99 Morgan, General, witness at Burr’s trial, 102 Morris, Gouverneur, quoted, 61 Morris, Robert, and Marshall, 4S Munford, G. W., The Two Par. sons, cited, 204 (note) Murch, Rachel, 155 Nashville (Tenn.), Burr goes to, 87 Natchez, Burr goes to, 87, 89 Nationalism, 121 et seq., 227 Nereide, case of the, 118 (note) New Jersey, statute excluding Fulton-Livingston vessels, 136 New Orleans, Wilkinson at, 89, 91; and Burr, 99 New York, and case,” 136-42 New York City, Supreme Court “Steamboat in, 16 Newcastle (Del.), Chase at, 73 Nicholas, W. C., at Virginia Convention, 37 Nicholson, Joseph, and impeach- ment, 78; recall for Senators, 84 Nullification, 194; Marshall and, 214 Oakley, T. J., counsel for Ogden, 136 J Ogden vs. Saunders, 190 Ohio, anti-judicial movement in, 184 Osborn vs. United States Bank, 189-90 Parton, James, Life and Times of Aaron Burr, quoted, 99-100 Passmore, ‘Thomas, punished for contempt-of court, 60 INDEX Pendleton, Edmund, lawyer of Richmond, 32 Pennsylvania, attitude toward Judiciary, 58, 84; protests Marshall's decision, 119 Philadelphia, Supreme Court at, 16; impeachment of judges at, 84; Burr goes to, 87 Pickering, Judge, of New Hamp- shire, impeachment, 71, 72-73 Pinckney, C. C., on “X-Y.Z.” mission, 45 Pinkney, William, of Maryland, greatest lawyer of his day, 117-18; in Bank case, 128— 129; im Dartmouth College case, 165 Plumer, Wiliam, Governor of New Hampshire, 156-58 Providence Bank vs. Billings, 191 Raleigh (N. C.), Marshall hoids court at, 199 Randolph, Edmund, 25; defends Burr, 92 Randolph, John, 25, 32, 37, 54, 62, 90, 124; on Judiciary, 23; on Marshall, 52; and impeach- ment of Chase, 75, 78, 81-82; proposes amendment to Con- stitution, S3-S4; at Burr’s trial, 95 Reed, T. B., 169 Revolution, Marshall and, 29-30 Richardson, Chief Justice, 159 Richmond (Va.), Marshall prac- tices law at, 31; Burr’s trial at, 86 ef seq-; Marshall holds court at, 199 Roane, Spencer, of Virginia, 174-78, 183 Robertson, Reports, cited, 109 (note) Robins, Jonathan, British fugi- tive from justice, 48 Rodney, C. A., 78, 84 Rowan, Senator, of Kentucky, 187 Rutledge, John, of South Caro- 241 Ima, on state courts as na- tional tribunals, 6-7; associate justice, 15 St. Louis, Burr goes to, 87 Satterlee vs. Matthewson, 191 Schooner Exchange vs. McFad- don ef al, 118 (note) Sedgwick, Theodore, on Mar- shall, 49-51 Sedition Act (1798), 21, 49, 57 Shays’s Rebellion (1786), 34 “Shockoe Hill,” Marshall’s home at Richmond, 201 “Sidney, Algernon,” pseudonym of Roane, 183 Smith, Jeremiah, 158-59, 163 South Carolia, nullification, 194; Jackson’s proclamation to, 214; secession, 227 Spam, “Burrs Conspiracy” against, 89 State Rights, 7, 173, ef seq. “Steamboat case,” see Gibbons os. Ogden Story, Justice Joseph, 109, 118, 220: Discourse, cited, 34 (note) ; and Marshall, 116, 150-51 (mote), 183, 194, 195, 211, 216, 219, 225; quoted, 129, 201; Dartmouth College case, 163, 166; answer to Roane, 177-79 Sturges ts. 184, 190 Sullivan, attorney in Dartmouth College case, 159, 163 Supreme Court, relation to Con- stitution, 7-13; powers, 11; establishment, 12-13, 14; origi- nal bench, 15; in New York City, 16; in Philadelphia, 16; pioneer work, 17-19; need of leadership, 19-20; Act of Feb. 13, 1801, 22, 60-63, 71; in Washington, 54; defended by Virginia Assembly, 119- 120; bill for enlargement, 186— 187; controversy with Geor Crowishield, 124, 242 Supreme Court—Continued gia, 193-94; number of cases during Marshall’s term of office, 198; changes on bench, 223 Swartwout, Samuel, 93, 94, 108, 109 Taney, R. B., Chief Justice, 118, 224, 226 Taylor, John, of Caroline, 60, 192 Thayer, J. B., John Marshall, quoted, 202-04 Thompson, Justice Smith, 219 Ticknor, George, describes Pink- ney, 117-18 Tocqueville, Alexis de, opinion of Supreme Court, 196-97 Todd, Justice Thomas, 163 Transportation, 188-89 Truxton, Commodore Thomas, 92, 102 United States vs. Peters, 118 Vincennes, Burr goes to, 87 Virginia, plan before Constitu- tional Convention, 8; Con- vention, 35-38; defends Su- preme Court, 119-20; and U.S. Bank, 216 Virginia Resolutions, 22, 176, 177 127, Wakefield (Ala.), Burr captured at, 90 Ware vs. Hylton, 44 Warren, Charles, (note) Washington, Justice Bushrod, 115, 161, 163, 166, 190, 208 cited, 185 INDEX | Washington, George, Marshall and, 26-27, 34, 46; Marshall’s Life of, 34 (note), 208-10 Washington (D. C.), 53; Capitol, 54; Burr goes to, 87 Watson vs. Mercer, 191 ; Webster, Daniel, 29; and Bank case, 128; Gibbons vs. Ogden, 138; Dartmouth College case, 159, 160-61, 163 Wentworth, John, Governor of New Hampshire, 155 Wheelock, Rev. Eleazar, of Connecticut, 155 Wheelock, Dr. John, son of Elea- zar Wheelock, 156 Whisky Rebellion (1794), 21 Wickham, John, of Richmond, 32, 92, 202, 203-04 Wilkinson, James, 113; Mar- shall’s letter to, 35; military commandant in Louisiana Territory, 82; and Burr, 88, 93, 95; at New Orleans, 89, 91 William and Mary College, 30 Wilson, Justice James, of Penn- sylvania, 15, 36 Wilson vs. Blackbird Creek Marsh Company, 191 Wirt, William, Letters of the British Spy, quoted, 39-42; at Burr’s trial, 91, 96-97, 102, 104-05, 110; Bank case, 128; Gibbons vs. Ogden, 135-36; Dartmouth College case, 162 Woodward, W. H., 158 Worcester vs. Georgia, 193-94 Wythe, George, 30, 32 “X.Y.Z.” mission, 45-46 DOO 00968880$