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American Founders
John Marshall
by Lord, John (LL.D.)


BY JOHN BASSETT MOORE, LL.D

While the Revolution had severed the tie which bound the colonies to the mother country and had established the independence of the United States, the task of organizing and consolidating the new nation yet remained to be performed. The Articles of Confederation, though designed to form a "perpetual union between the States," constituted in reality but a loose association under which the various commonwealths retained for the most part the powers of independent governments. In the treaty of peace with Great Britain of 1782-83, strong national ground was taken; but the general government was unable to secure the execution of its stipulations. The public debts remained unpaid, for want of power to levy taxes. Commerce between the States as well as with foreign nations was discouraged and rendered precarious by variant and obstructive local regulations. Nor did there exist any judicial authority to which an appeal could be taken for the enforcement of national rights and obligations as against inconsistent State laws and adjudications. These defects were sought to be remedied by the Constitution of the United States. But, as in the case of all other written instruments, the provisions of this document were open to construction. Statesmen and lawyers divided in their interpretation of it, according to their prepossessions for or against the creation and exercise of a strong central authority.

Among the organs of government created by the Constitution was "one Supreme Court," in which, together with such inferior courts as Congress might from time to time establish, was vested "the judicial power of the United States." This power was declared to extend to all cases, in law and equity, arising under the Constitution itself, the laws of the United States, and treaties made under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States should be a party; to controversies between two or more States, between a State and citizens of another State, and between citizens of different States, as well as between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign States, citizens, or subjects. In all cases affecting ambassadors, other public ministers and consuls, and those in which a State should be a party, the Supreme Court was vested with original jurisdiction, while in all the other enumerated cases its jurisdiction was to be appellate. With the exceptions of suits against a State by individuals, which were excluded by the Eleventh Amendment, the judicial power of the United States remains to-day as it was originally created.

But at the time when the Constitution was made, the importance to which the judicial power would attain in the political system of the United States could not be foreseen. The form was devised, but, like the nation itself, its full proportions remained to be developed. In that development, so far as it has been made by the judiciary, one man was destined to play a pre-eminent part. This man was John Marshall, under whose hand, as James Bryce has happily said, the Constitution "seemed not so much to rise ... to its full stature, as to be gradually unveiled by him, till it stood revealed in the harmonious perfection of the form which its framers had designed." For this unrivalled achievement there has been conceded to Marshall by universal consent the title of Expounder of the Constitution of the United States; and the general approval with which his work is now surveyed is attested by the tribute lately paid to his memory. The observance on the 4th of February, 1901, by a celebration spontaneously national, of the one hundredth anniversary of his assumption of the office of Chief Justice of the United States, is without example in judicial annals. It is therefore a matter of interest not only to every student of American history, but also to every American patriot, to study his career and to acquaint himself with that combination of traits and accidents by which his character and course in life were determined.

John Marshall was born Sept. 24, 1755, in Fauquier County, Virginia, at a small village then called Germantown, but now known as Midland, a station on the Southern Railway not far south of Manassas. His grandfather, John Marshall, the first of the family of whom there appears to be any record, was an emigrant from Wales. He left four sons, the eldest of whom was Thomas Marshall, the father of the Chief Justice. Thomas Marshall, though a man of meagre early education, possessed great natural gifts, and rendered honorable and useful public service both as a member of the Virginia Legislature, and as a soldier in the Revolutionary War, in which he rose to the rank of colonel. His son, John Marshall, was the eldest of fifteen children. Of his mother, whose maiden name was Keith, little is known, but it has been well observed by one of Marshall's biographers, that, as she reared her fifteen children--seven sons and eight daughters--all to mature years, she could have had little opportunity to make any other record for herself, and could hardly have made a better one.

Subsequently to his birth, Marshall's parents removed to an estate called Oak Hill, in the western part of Fauquier County. It was here that in 1775, when nineteen years of age, he heard the call of his country and entered the patriot army as a lieutenant. We have of him at this time the first personal description, written by a kinsman who was an eye-witness of the scene, and preserved in the eulogy delivered by Mr. Binney before the Select and Common Councils of Philadelphia on Sept. 24, 1835. "His figure," says the writer, "I have now before me. He was about six feet high, straight and rather slender, of dark complexion, showing little if any rosy red, yet good health, the outline of the face nearly a circle, and within that, eyes dark to blackness, strong and penetrating, beaming with intelligence and good nature; an upright forehead, rather low, was terminated in a horizontal line by a mass of raven-black hair of unusual thickness and strength; the features of the face were in harmony with this outline, and the temples fully developed. The result of this combination was interesting and very agreeable. The body and limbs indicated agility rather than strength, in which, however, he was by no means deficient. He wore a purple or pale-blue hunting shirt, and trousers of the same material fringed with white. A round black hat, mounted with the buck's tail for a cockade, crowned the figure and the man. He went through the manual exercise by word and motion deliberately pronounced and performed, in the presence of the company, before he required the men to imitate him, and then proceeded to exercise them, with the most perfect temper.... After a few lessons the company were dismissed, and informed that if they wished to hear more about the war, and would form a circle around him, he would tell them what he understood about it.... He addressed the company for something like an hour.... He spoke at the close of his speech of the Minute Battalion about to be raised, and said he was going into it and expected to be joined by many of his hearers. He then challenged an acquaintance to a game of quoits, and they closed the day with foot-races and other athletic exercises, at which there was no betting. He had walked ten miles to the muster field, and returned the same distance on foot to his father's house at Oak Hill, where he arrived a little after sunset."

The patriot forces in which Marshall was enrolled were described as minute-men, of whom it was said by John Randolph that they "were raised in a minute, armed in a minute, marched in a minute, fought in a minute, and vanquished in a minute." Their uniform consisted of homespun hunting shirts, bearing the words "Liberty or Death" in large white letters on the breast, while they wore bucks' tails in their hats and tomahawks and scalping-knives in their belts. We are told, and may readily believe, that their appearance inspired in the enemy not a little apprehension; but we are also assured, and may as readily believe, that this feeling never was justified by any act of cruelty. Their first active service was seen in the autumn of 1775, when they marched for Norfolk, where Lord Dunmore had established his headquarters. They saw their first fighting at Great Bridge, where the British troops were defeated with heavy loss. Subsequently, the Virginia forces to which Marshall belonged joined the army of Washington in New Jersey, and he saw service not only in that State, but also in Pennsylvania and New York, and, later in the war, again in Virginia. In May, 1777, he was appointed a captain. He took part in the battles of Iron Hill and Brandywine. He was also present at Monmouth, at Paulus (or Powles) Hook, and at the capture of Stony Point. He endured the winter's sufferings at Valley Forge, where because of his patience, firmness, and good humor, he won the special regard of the soldiers and his brother-officers. In the course of his military service he often acted as judge-advocate; and he made the acquaintance of Washington and Hamilton, with both of whom he contracted a lasting friendship.

As to the effect of these early experiences on the formation of his opinions, Marshall himself has testified. "I am," said he on a certain occasion, "disposed to ascribe my devotion to the Union, and to a government competent to its preservation, at least as much to casual circumstances as to judgment. I had grown up at a time ... when the maxim, 'United we stand, divided we fall' was the maxim of every orthodox American; and I had imbibed these sentiments so thoroughly that they constituted a part of my being. I carried them with me into the army, where I found myself associated with brave men from different States who were risking life and everything valuable in a common cause; ... and where I was confirmed in the habit of considering America as my country and Congress as my government."

In 1780 Marshall was admitted to the Bar, and after another term of service in the army he began, in 1781, the practice of the law in Fauquier County. His professional attainments must then have been comparatively limited. His education in letters he had derived solely from his father, who was fond of literature and possessed some of the writings of the English masters, and from two gentlemen of classical learning, whose tuition he enjoyed for the brief period of two years. Of legal education he had had, according to our present standards, exceedingly little. It is said that when about eighteen years of age he began the study of Blackstone; but apart from this his legal education seems to have been gained from a short course of lectures by Chancellor Wythe, at William and Mary College, and from such reading as he was able to indulge in during his military service. And yet, removing to Richmond about 1783, he almost immediately rose to professional eminence. "This extraordinary man," said William Wirt, "without the aid of fancy, without the advantages of person, voice, attitude, gesture, or any of the ornaments of an orator, deserves to be considered as one of the most eloquent men in the world, if eloquence may be said to consist of the power of seizing the attention with irresistible force, and never permitting it to elude the grasp until the hearer has received the conviction which the speaker intends.... He possesses one original and almost superhuman faculty,--the faculty of developing a subject by a single glance of his mind, and detecting at once the very point on which every controversy depends."

From 1782 to 1795, Marshall was repeatedly elected to the Virginia Legislature, the last time without his knowledge and against his wishes; and he also served one term as a member of the Executive Council of the State; but, as his residence was for the most part at Richmond, his public service did not seriously interrupt his career at the Bar. His experience in State politics, however, served to deepen his conviction of the need of an efficient and well-organized national government and of restrictions on the power of the States.

In the formation of the Constitution of the United States Marshall had no hand; he was not a member of the convention by which it was framed; but when it was submitted to the several States for their action, he became a determined advocate of its adoption. In the Virginia convention, which was called to act upon that question, the prospects of a favorable decision seemed at first to be most unpromising. Among those who opposed ratification we find the names of Henry, Mason, Grayson, and Monroe, names which sufficiently attest that the opposition was one, not of mere faction or obstruction, but of principle and patriotic feeling. Henry, who had been one of the first in earlier days to sound the note of revolution, saw in the proposed national government a portent to popular liberties. In the office of President he perceived "the likeness of a kingly crown." In the control of the purse and the sword, he foresaw the extinction of freedom. In the power to make treaties, to regulate commerce, and to adopt laws, he discerned an "ambuscade" in which the rights of the States and of the people would be destroyed unawares. To these alarming predictions the advocates of ratification replied with strong and temperate reasoning, and, while Madison was their leader, among those who won distinction in the contest stood Marshall. He argued that the plan adopted by the Federal Convention provided for a "regulated democracy," the only alternative to which was despotism. He contended for the establishment of an efficient government as the only means of assuring popular rights and the preservation of the public faith, violations of which were constantly occurring under the existing government. It is interesting to notice that, in replying to the suggestion that the legislative power of the proposed government would prove to be practically unlimited, he declared: "If they [the United States] were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution, which they are to guard against.... They would declare it void." In the end the Convention ratified the Constitution by a majority of ten votes, a result probably influenced by the circumstance that it had then been accepted by nine States, and had thus by its terms been established between the adhering commonwealths.

After the organization of the national government Marshall consistently supported the measures of Washington's administrations, including the Jay treaty, and became a leader of the Federalist party, which, in spite of Washington's great personal hold on the people, was in a minority in Virginia. But he did not covet office. He declined the position of Attorney-General of the United States, which was offered to him by Washington, as well as the mission to France as successor to Monroe. In 1797, however, at the earnest solicitation of President Adams, he accepted in a grave emergency the post of envoy-extraordinary and minister-plenipotentiary to that country on a special mission, in which he was associated with Charles Cotesworth Pinckney, of South Carolina, and Elbridge Gerry, of Massachusetts.

Few diplomatic enterprises have had so strange a history. When the plenipotentiaries arrived in Paris, the Directory was at the height of its power, and Talleyrand was its minister of foreign affairs. He at first received the envoys unofficially, but afterwards intimated to them, through his private secretary, that they could not have a public audience of the Directory till their negotiations were concluded. Meanwhile, they were waited upon by various persons, who represented that, in order to effect a settlement of the differences between the two countries, it would be necessary to place a sum of money at the disposal of Talleyrand as a douceur for the ministers (except Merlin, the minister of justice, who was already obtaining enough from the condemnation of vessels), and also to make a loan of money to the government. The plenipotentiaries, though they at first repulsed these suggestions, at length offered to send one of their number to America to consult the government on the subject of a loan, provided that the Directory would in the meantime suspend proceedings against captured American vessels. This offer was not accepted, and the American representatives, after further conference with the French intermediaries, stated that they considered it degrading to their country to carry on further indirect intercourse, and that they had determined to receive no further propositions unless the persons who bore them had authority to treat. In April, 1798, after spending in the French capital six months, during which they had with Talleyrand two unofficial interviews and exchanged with him an ineffectual correspondence, Pinckney and Marshall left Paris, Gerry, to the great dissatisfaction of his government, remaining behind. Marshall was the first to reach the United States. He was greeted with remarkable demonstrations of respect and approbation; for, although his mission was unsuccessful, he had powerfully assisted in maintaining a firm and dignified position in the negotiations. His entrance into Philadelphia "had the éclat of a triumph." It was at a public dinner given to him by members of both Houses of Congress that the sentiment was pronounced, "Millions for defence, but not a cent for tribute." This sentiment has often been ascribed to Pinckney, who is supposed to have uttered it when approached by the unofficial agents in Paris. The correspondence shows, however, that the words employed by Mr. Pinckney were, "No, no; not a sixpence!" The meaning was similar, but the phrase employed at Philadelphia is entitled to a certain immortality of its own.

On his return to the United States, Marshall resumed the practice of his profession; but soon afterwards, at the earnest entreaty of Washington, he became a candidate for Congress, declining for that purpose an appointment to the Supreme Court of the United States, as successor to Mr. Justice Wilson. He was elected after an exciting canvass, and in December, 1799, took his seat. He immediately assumed a leading place among the supporters of President Adams's administration, though on one occasion he exhibited his independence of mere party discipline by voting to repeal the obnoxious second section of the Sedition Law. But of all the acts by which his course in Congress was distinguished, the most important was his defence of the administration, in the case of Jonathan Robbins, alias Thomas Nash, By the twenty-seventh article of the Jay treaty it was provided that fugitives from justice should be delivered up for the offence of murder or forgery. Under this stipulation Robbins, alias Nash, was charged with the commission of the crime of murder on board a British privateer on the high seas. He was arrested on a warrant issued upon the affidavit of the British Consul at Charleston, South Carolina. After his arrest an application was made to Judge Bee, sitting in the United States Circuit Court at Charleston, for a writ of habeas corpus. While Robbins was in custody, the President, John Adams, addressed a note to Judge Bee, requesting and advising him, if it should appear that the evidence warranted it, to deliver the prisoner up to the representatives of the British government. The examination was held by Judge Bee, and Robbins was duly surrendered. It is an illustration of the vicissitudes of politics that, on the strength of this incident, the cry was raised that the President had caused the delivery up of an American citizen who had previously been impressed into the British service. For this charge there was no ground whatever; but it was made to serve the purposes of the day, and was one of the causes of the popular antagonism to the administration of John Adams. When Congress met in December, 1799, a resolution was offered by Mr. Livingston, of New York, severely condemning the course of the administration. Its action was defended in the House of Representatives by Marshall on two grounds: first, that the case was one clearly within the provisions of the treaty; and, second, that no act having been passed by Congress for the execution of the treaty, it was incumbent upon the President to carry it into effect by such means as happened to be within his power. The speech which Marshall delivered on that occasion is said to have been the only one that he ever revised for publication. It "at once placed him," as Mr. Justice Story has well said, "in the front rank of constitutional statesmen, silenced opposition, and settled forever the points of national law upon which the controversy hinged." So convincing was it that Mr. Gallatin, who had been requested by Mr. Livingston to reply, declined to make the attempt, declaring the argument to be unanswerable.

In May, 1800, on the reorganization of President Adams's Cabinet, Marshall unexpectedly received the appointment of Secretary of War. He declined it; but the office of Secretary of State also having become vacant, he accepted that position, which he held till the fourth of the following March. Of his term as Secretary of State, which lasted less than ten months, little has been said; nor was it distinguished by any event of unusual importance, save the conclusion of the convention with France of Sept. 30, 1800, the negotiation of which, at Paris, was already in progress, under instructions given by his predecessor, when he entered the Department of State. The war between France and Great Britain, growing out of the French Revolution, was still going on. The questions with which he was required to deal were not new; and while he exhibited in the discussion of them his usual strength and lucidity of argument, he had little opportunity to display a capacity for negotiation. Only a few of his State papers have been printed, nor are those that have been published of special importance. He gave instructions to our minister to Great Britain, in relation to commercial restrictions, impressments, and orders in council violative of the law of nations; to our minister to France, in regard to the violations of neutral rights perpetrated by that government; and to our minister to Spain, concerning infractions of international law committed, chiefly by French authorities, within the Spanish jurisdiction. Of these various State papers the most notable was that which he addressed on Sept. 20, 1800, to Rufus King, then United States Minister at London. Reviewing in this instruction the policy which his government had pursued, and to which it still adhered, in the conflict between the European powers, he said:--

"The United States do not hold themselves in any degree responsible to France or to Britain for their negotiations with the one or the other of these powers; but they are ready to make amicable and reasonable explanations with either.... It has been the object of the American government, from the commencement of the present war, to preserve between the belligerent powers an exact neutrality.... The aggressions, sometimes of one and sometimes of another belligerent power, have forced us to contemplate and prepare for war as a probable event. We have repelled, and we will continue to repel, injuries not doubtful in their nature and hostilities not to be misunderstood. But this is a situation of necessity, not of choice. It is one in which we are placed, not by our own acts, but by the acts of others, and which we [shall] change so soon as the conduct of others will permit us to change it."

For a month Marshall held both the office of Secretary of State and that of Chief Justice; but at the close of John Adams' administration he devoted himself exclusively to his judicial duties, never performing thereafter any other public service, save that late in life he acted as a member of the convention to revise the Constitution of Virginia.

It is an interesting fact that, prior to his appointment as Chief Justice, Marshall had appeared only once before the Supreme Court, and on that occasion he was unsuccessful. This appearance was in the case of Ware v. Hylton, which was a suit brought by a British creditor to compel the payment by a citizen of Virginia of a pre-Revolutionary debt, in conformity with the stipulations of the treaty of peace. During the Revolutionary War various States, among which was Virginia, passed acts of sequestration and confiscation, by which it was provided that, if the American debtor should pay into the State treasury the amount due to his British creditor, such payment should constitute an effectual plea in bar to a subsequent action for the recovery of the debt. When the representatives of the United States and Great Britain met in Paris to negotiate for peace, the question of the confiscated debts became a subject of controversy, especially in connection with that of the claims of the loyalists for the confiscation of their estates. Franklin and Jay, though they did not advocate the policy of confiscating debts, hesitated, chiefly on the ground of a want of authority in the existing national government to override the acts of the States. But when John Adams arrived on the scene, the situation soon changed. By one of those dramatic strokes of which he was a master, he ended the discussion by suddenly declaring, in the presence of the British plenipotentiaries, that, so far as he was concerned, he "had no notion of cheating anybody;" that the question of paying debts and the question of compensating the loyalists were two; and that, while he was opposed to compensating the loyalists, he would agree to a stipulation to secure the payment of debts. It was therefore provided, in the fourth article of the treaty, that creditors on either side should meet with no lawful impediment to the recovery in full sterling money of bona fide debts contracted prior to the war. This stipulation is remarkable, not only as the embodiment of an enlightened policy, but also as perhaps the strongest assertion to be found in the acts of that time of the power and authority of the national government. Indeed, when the British creditors, after the establishment of peace, sought to proceed in the State courts, they found the treaty unavailing, since those tribunals held themselves still to be bound by the local statutes. In order to remove this difficulty, as well as to provide a rule for the future, there was inserted in the Constitution of the United States the clause expressly declaring that treaties then made, or which should be made, under the authority of the United States, should be the supreme law of the land, binding on the judges in every State, anything in the Constitution or laws of any State to the contrary notwithstanding.

On the strength of this provision, the question of the debts was raised again, and was finally brought before the Supreme Court. Marshall appeared for the State of Virginia, to oppose the collection of the debt. He based his contention on two grounds: first, that by the law of nations the confiscation of private debts was justifiable; second, that, as the debt had by the law of Virginia been extinguished by its payment into the State treasury, and had thus ceased to be due, the stipulation of the treaty was inapplicable, since there could be no creditor without a debtor. It is not strange that this argument was unsuccessful. While it doubtless was the best that the cause admitted of, it may perhaps serve a useful purpose as an illustration of the right of the suitor to have his case, no matter how weak it may be, fully and fairly presented for adjudication. On the question of the right of confiscation the judges differed, one holding that such a right existed, while another denied it, two doubted, and the fifth was silent. But as to the operation of the treaty, all but one agreed that it restored to the original creditor his right to sue, without regard to the original validity or invalidity of the Virginia statute.

When Marshall took his seat upon the bench, the Supreme Court, since its organization in 1790, had rendered only six decisions involving constitutional questions. Of his three predecessors, Jay, Rutledge, and Ellsworth, the second, Rutledge, after sitting one term under a recess appointment, retired in consequence of his rejection by the Senate; and neither Jay nor Ellsworth, though both were men of high capacity, had found in their judicial station, the full importance of which was unforeseen, an opportunity for the full display of their powers, either of mind or of office. The coming of Marshall to the seat of justice marks the beginning of an era which is not yet ended, and which must endure so long as our system of government retains the essential features with which it was originally endowed. With him really began the process, peculiar to our American system, of the development of constitutional law by means of judicial decisions, based upon the provisions of a fundamental written instrument and designed for its exposition and enforcement. By the masterful exercise of this momentous jurisdiction, he profoundly affected the course of the national life and won in the knowledge and affections of the American people a larger and higher place than ever has been filled by any other judicial magistrate.

From 1801 to 1835, in the thirty-four years during which he presided in the Supreme Court, sixty-two decisions were rendered involving constitutional questions, and in thirty-six of these the opinion of the court was written by Marshall. In the remaining twenty-six the preparation of the opinions was distributed among his associates, who numbered five before 1808 and after that date six. During the whole period of his service, his dissenting opinions numbered eight, only one of which involved a constitutional question. Nor was the supremacy which this record indicates confined to questions of constitutional law. The reports of the court during Marshall's tenure fill thirty volumes, containing 1,215 cases. In ninety-four of these no opinions were filed, while fifteen were decided "by the court." In the remaining 1,106 cases the opinion of the court was delivered by Marshall in 519, or nearly one-half.

A full review of the questions of constitutional law decided by the Supreme Court during Marshall's term of service would involve a comprehensive examination of the foundations on which our constitutional system has been reared; but we may briefly refer to certain leading cases by which fundamental principles were established.

In one of his early opinions he discussed and decided the question whether an Act of Congress repugnant to the Constitution is void. This question was then by no means free from difficulty and doubt. The framers of the Constitution took care to assure its enforcement by judicial means against inconsistent State action, by the explicit provision that the Constitution itself, as well as Federal statutes and treaties, should be the "supreme law" of the land, and as such binding upon the State judges, in spite of anything in the local laws and constitutions. But as to the power of the courts to declare unconstitutional a Federal statute, the instrument was silent. There is reason to believe that this silence was not unintentional; nor would it be difficult to cite highly respectable opinions to the effect that the courts, viewed as a co-ordinate branch of the government, have no power to declare invalid an Act of the Legislature, unless they possess express constitutional authority to that effect. We have seen that Marshall expressed in the discussions of the Virginia convention a contrary view; but it is one thing to assert an opinion in debate and another thing to declare it from the bench, especially in a case involved in or related to political contests; and such a case was Marbury v. Madison.

Marbury was a citizen of the District of Columbia, who had been appointed as a justice of the peace by John Adams, just before his vacation of the office of President. It was one of the so-called "midnight" appointments of President Adams, which became a subject of heated political controversy. It was alleged that Marbury's commission had been made out, sealed, and signed, but that Mr. Madison, who immediately afterwards became Secretary of State, withheld it from him. Marbury therefore applied to the Supreme Court for a writ of mandamus to compel its delivery. In the course of the judgment, which was delivered by Marshall, opinions were expressed on certain questions the decision of which was not essential to the determination of the case, and into these it is unnecessary now to enter, although one of them has been cited and acted upon as a precedent. But on one point the decision of the court was requisite and fundamental, and that was the point of jurisdiction. It was held that the court had no power to grant the writ, because the Federal statute by which the jurisdiction was sought to be conferred was repugnant to the Constitution of the United States. This was the great question decided, and it was a decision of the first importance, since its assertion of the final authority of the judicial power, in the interpretation and enforcement of our written constitutions, came to be accepted almost as an axiom of American jurisprudence. In the course of his reasoning, Chief Justice Marshall expressed in terms of unsurpassed clearness the principle which lay at the root of his opinion. "It is," he declared, "emphatically the province and duty of the judicial department to say what the law is.... If two laws conflict with each other, the courts must decide on the operation of each.... If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary Act of the Legislature, the Constitution and not such ordinary Act must govern the case to which they both apply. Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the Constitution and see only the law. This doctrine would subvert the very foundation of all written constitutions." In subsequently applying this rule, Marshall affirmed that the courts ought never to declare an Act of Congress to be void "unless upon a clear and strong conviction of its incompatibility with the Constitution." Nevertheless, the power has been constantly and frequently exercised; and there can be no doubt that from its exercise the Supreme Court of the United States derives a political importance not possessed by any other judicial tribunal.

While the supremacy of the Constitution was thus judicially asserted over the acts of the national legislature, by another series of decisions its proper supremacy over acts of the authorities of the various States was in like manner vindicated. Of this series we may take as an example Cohens v. Virginia, decided in 1828. In this case a writ of error was obtained from the Supreme Court of the United States to a court of the State of Virginia, in order to test the validity of a statute of that State which was supposed to be in conflict with a law of the United States. It was contended on the part of Virginia that the Supreme Court could exercise no supervision over the decisions of the State tribunals, and that the clause in the Judiciary Act of 1789 which purported to confer such jurisdiction was invalid. In commenting upon this argument, Chief Justice Marshall observed that if the Constitution had provided no tribunal for the final construction of itself, or of the laws or treaties of the nation, then the Constitution and the laws and treaties might receive as many constructions as there were States. He then proceeded to demonstrate that such a power of supervision existed, maintaining that the general government, though limited as to its objects, was supreme with respect to those objects, and that such a right of supervision was essential to the maintenance of that supremacy.

In 1819, he delivered in the case of McCulloch v. Maryland what is generally regarded as his greatest and most carefully reasoned opinion. The particular questions involved were those (1) of the power of the United States to incorporate a bank, and (2) of the freedom of a bank so incorporated from State taxation or control. The United States bank, which Congress had rechartered in 1816, had established a branch in Maryland. Soon afterwards the Legislature passed an Act requiring all banks situated in the State to issue their notes on stamped paper, the object being to strike at the branch bank by indirectly taxing it. The case was 'argued before the Supreme Court by the most eminent lawyers of the day, Pinkney, Webster, and Wirt appearing for the bank, and Luther Martin, Joseph Hopkinson, and Walter Jones for the State of Maryland. The unanimous opinion of the court was delivered by Marshall. It asserted not only the power of the Federal government to incorporate a bank, but also the freedom of such a bank from the taxation, control, or obstruction of any State. While no express power of incorporation was given by the Constitution, yet it was found to be a power necessarily implied, since it was essential to the accomplishment of the objects of the Union. This principle Marshall laid down in these memorable words: "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional."

Of no less importance than the opinions heretofore mentioned are those that deal with the power of the general government to regulate commerce and to preserve it from hindrance on the part of the States. Of these the chief example is that which was delivered in the case of Gibbons v. Ogden, in 1824. By the Legislature of New York an exclusive right had been granted to Chancellor Livingston and Robert Fulton for a term of years to navigate the waters of the State with steam. The validity of this statute had been maintained by the judges in New York, including Chancellor Kent, and an injunction had been issued restraining other persons from running steamboats between Elizabethtown, New Jersey, and the city of New York, although they were enrolled and licensed as coasting vessels under the laws of the United States. The Supreme Court, speaking through Marshall, held the New York statute to be unconstitutional. By the Constitution of the United States, Congress is invested with power "to regulate commerce with foreign nations and among the several States." The term "commerce" Marshall declared to embrace all the various forms of intercourse, including navigation, and he affirmed that "wherever commerce among the States goes, the judicial power of the United States goes to protect it from invasion by State legislatures."

Mr. Justice Bradley declared that it might truly be said that "the Constitution received its permanent and final form from judgments rendered by the Supreme Court during the period in which Marshall was at its head;" and that, "with a few modifications, superinduced by the somewhat differing views on two or three points of his great successor, and aside from the new questions growing out of the Civil War and the recent constitutional amendments, the decisions made since Marshall's time have been little more than the applications of principles established by him and his venerated associates." To the rule that Marshall's great constitutional opinions continue to be received as authority, there are, however, a few exceptions, the chief of which is that delivered in the Dartmouth College Case, the particular point of which--that acts of incorporation constitute contracts which the State legislatures can neither alter nor revoke--has been greatly limited by later decisions, while its effect has been generally obviated by express reservations of the right of amendment and repeal. With rare exceptions, however, his constitutional opinions not only remain unshaken, but continue to form the very warp and woof of the law, and "can scarcely perish but with the memory of the Constitution itself." Nor should we, in estimating his achievements, lose sight of the almost uncontested ascendency which he exercised, in matters of constitutional law, over the members of the tribunal in which he presided, in spite of what might have been supposed to be their predilections. When constitutional questions trench, as they often do, on the domain of statesmanship, it is natural, especially where precedents are lacking, that judges should divide upon them in accordance with the views of government maintained by the political parties with which they previously acted; and after 1811, a majority of Marshall's associates on the bench held their appointment from administrations of the party opposed to that to which he had belonged. This circumstance, however, does not appear to have disturbed the consistent and harmonious development of the system to which he was devoted; and it was in the second half of his term of service that many of the most important cases--such as McCulloch v. Maryland, Cohens v. Virginia, and Gibbons v. Ogden, in which he asserted the powers of national government--were decided.

Nor is it alone upon his opinions on questions of constitutional law that Marshall's fame as a judge rests. The decisions of the Supreme Court on constitutional questions naturally attract greater popular interest than its judgments in other matters; but we have seen that its jurisdiction embraces a wide range of subjects. Nor is it desirable that its sphere of action should be circumscribed in the direction of confining it to questions that have a semi-political aspect. Indeed, it may be believed that the safety and permanence of the court would be best assured by extending rather than by contracting its jurisdiction in ordinary commercial subjects. In dealing with such subjects, however, Marshall did not achieve that pre-eminence which he acquired in the domain of constitutional law, a fact doubtless to be accounted for by the defects of his early legal education, since no originality of mind can supply the place of learning in matters which depend upon reasoning more or less technical and artificial. But in the domain of international law, in which there was greater opportunity for elementary reasoning, he exhibited the same traits of mind, the same breadth and originality of thought, the same power in discovering, and the same certainty in applying, fundamental principles that distinguished him in the realm of constitutional discussions; and it was his lot on more than one occasion to blaze the way in the establishment of rules of international conduct. During the period of his judicial service, decisions were rendered by the Supreme Court in 195 cases involving questions of international law, or in some way affecting international relations. In eighty of these cases the opinion of the court was delivered by Marshall; in thirty-seven by Mr. Justice Story; in twenty-eight by Mr. Justice Johnson; in nineteen, by Mr. Justice Washington; in fourteen by Mr. Justice Livingston; in five, by Mr. Justice Thompson; and in one each by Justices Baldwin, Gushing, and Duvall. In eight the decision was rendered "by the court." In five cases Marshall dissented. As an evidence of the respect paid to his opinions by publicists, the fact may be pointed out that Wheaton, in the first edition of his "Elements of International Law," makes 150 judicial citations, of which 105 are English and 45 American, the latter being mostly Marshall's. In the last edition he makes 214 similar citations, of which 135 are English and 79 American, the latter being largely Marshall's; and it is proper to add that one of the distinctive marks of his last edition is the extensive incorporation into his text of the words of Marshall's opinions. Out of 190 cases cited by Hall, a recent English publicist of pre-eminent merit, 54 are American, and in more than three-fifths of these the opinions are Marshall's.

One of the most far-reaching of all Marshall's opinions on questions of international law was that which he delivered in the case of the schooner "Exchange," decided by the Supreme Court in 1812. In preparing this opinion he was, as he declared, compelled to explore "an unbeaten path, with few, if any, aids from precedents or written laws;" for the status of a foreign man-of-war in a friendly port had not then been defined, even by the publicists. The "Exchange" was an American vessel, which had been captured and confiscated by the French under the Rambouillet decree,--a decree which both the Executive and the Congress of the United States had declared to constitute a violation of the law of nations. She was afterwards converted by the French government into a man-of-war, and commissioned under the name of the "Balaou." In this character she entered a port of the United States, where she was libelled by the original American owners for restitution. Seasoning by analogy, Marshall, in a remarkably luminous opinion, held that the vessel, as a French man-of-war, was not subject to the jurisdiction of the ordinary tribunals; and his opinion forms the basis of the law on the subject at the present day.

By this decision, the rightfulness or the wrongfulness of the capture and condemnation of the "Exchange" was left to be determined by the two governments as a political question. In this respect Marshall maintained, as between the different departments of government, when dealing with questions of foreign affairs, a distinction which he afterwards sedulously preserved, confining the jurisdiction of the courts to judicial questions. Thus he laid it down in the clearest terms that the recognition of national independence, or of belligerency, being in its nature a political act, belongs to the political branch of the government, and that in such matters the courts follow the political branch. Referring, on another occasion, to a similar question, he said: "In a controversy between two nations concerning national boundary, it is scarcely possible that the courts of either side should refuse to abide by the measures adopted by its own government.... If those departments which are entrusted with the foreign intercourse of the nation, which assert and maintain its interests against foreign powers have unequivocally asserted its rights of dominion over a country of which it is in possession, and which it claims under a treaty; if the legislature has acted on the construction thus asserted, it is not in its own courts that this construction is to be denied." (Foster v. Neilson).

In the case of the American Insurance Company v. Canter, he asserted the right of the government to enlarge the national domain, saying: "The Constitution confers absolutely on the government of the Union the power of making war and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty." But he held the rights of private property in such case to be inviolate (U.S. v. Percheman). The most luminous exposition of discovery as a source of title, and of the nature of Indian titles, is to be found in one of his opinions (Johnson v. McIntosh).

A fundamental doctrine of international law is that of the equality of nations. If a clear and unequivocal expression of it be desired, it may be found in the opinion of Marshall in the case of "The Antelope." "No nation," he declared, "can make a law of nations. No principle is more universally acknowledged than the perfect equality of nations. Russia and Geneva have equal rights." And when the representatives of the United States fifty years later sought to establish at Geneva the liability of Great Britain for the depredations of the "Alabama" and other Confederate cruisers fitted out in British ports in violation of neutrality, one of the strongest authorities on which they relied was his opinion in the case of the "Gran Para."

In the decision of prize cases, Marshall, unlike some of his associates, was disposed to moderate the rigor of the English doctrines, as laid down by Sir William Scott. "I respect Sir William Scott," he declared on a certain occasion, "as I do every truly great man; and I respect his decisions; nor should I depart from them on light grounds; but it is impossible to consider them attentively without perceiving that his mind leans strongly in favor of the captors." This liberal disposition, blended with independence of judgment, led Marshall to dissent from the decision of the court in two well-known cases. In one of these, which is cited by Phillimore as the "great case" of "The Venus," it was held that the property of an American citizen domiciled in a foreign country became, on the breaking out of war with that country, immediately confiscable as enemy's property, even though it was shipped before he had knowledge of the war. Marshall dissented, maintained that a mere commercial domicile ought not to be presumed to continue longer than the state of peace, and that the fate of the property should depend upon the conduct of the owner after the outbreak of the war, in continuing to reside and trade in the enemy's country or in taking prompt measures to return to his own. In the other case--that of the "Commercen"--he sought to disconnect the war in which Great Britain was engaged on the continent of Europe from that which she was carrying on with the United States, and to affirm the right of her Swedish ally to transport supplies to the British army in the Peninsula without infringing the duties of neutrality towards the United States. As to his opinion in the case of "The Venus," Chancellor Kent declared that there was "no doubt of its superior solidity and justice;" and it must be admitted that his opinion in the case of the "Commercen," rested on strong logical grounds, since the United States and the allies of Great Britain in the war on the Continent never considered themselves as enemies.

It is not, however, by any means essential to Marshall's pre-eminence as a judge, to show that his numerous opinions are altogether free from error or inconsistency. In one interesting series of cases, relating to the power of a nation to enforce prohibitions of commerce by the seizure of foreign vessels outside territorial waters, the views which he originally expressed in favor of the existence of such a right appear to have undergone a marked, if not radical, change, in favor of the wise and salutary exemption of ships from visitation and search on the high seas in time of peace (Rose v. Himely),--a principle which he affirmed on more than one occasion (The Antelope). In the reasoning of another case, though not in its result, we may perhaps discern traces of the preconceptions formed by the advocate in the argument concerning the British debts. This was the case of Brown v. United States, which involved the question of the confiscability of the private property of an enemy on land, by judicial proceedings, in the absence of an Act of Congress expressly authorizing such proceedings. On the theory that war renders all property of the enemy liable to confiscation, Mr. Justice Story, with the concurrence of one other member of the Court, maintained that the Act of Congress declaring war of itself gave ample authority for the purpose. The majority held otherwise, and Marshall delivered the opinion. Referring to the practice of nations and the writings of publicists, he declared that, according to "the modern rule," "tangible property belonging to an enemy and found in the country at the commencement of war, ought not to be immediately confiscated;" that "this rule" seemed to be "totally incompatible with the idea that war does of itself vest the property in the belligerent government;" and, consequently, that the declaration of war did not authorize the confiscation. Since effect was thus given to the modern usage of nations, it was unnecessary to declare, as he did in the course of his opinion, that "war gives to the sovereign full right to take the persons and confiscate the property of the enemy, wherever found," and that the "mitigations of this rigid rule, which the humane and wise policy of modern times has introduced into practice," though they "will more or less affect the exercise of this right," "cannot impair the right itself." Nor were the two declarations quite consistent. The supposition that usage may render unlawful the exercise of a right, but cannot impair the right itself, is at variance with sound theory. Between the effect of usage on rights, and on the exercise of rights, the law draws no precise distinction. A right derived from custom acquires no immutability or immunity from the fact that the practices out of which it grew were ancient and barbarous. We may therefore ascribe the dictum in question to the influence of preconceptions, and turn for the true theory of the law to an opinion of the same great judge, delivered twenty years later, in which he denied the right of the conqueror to confiscate private property, on the ground that it would violate "the modern usage of nations, which has become law" (U.S. v. Percheman).

United with extraordinary powers of mind, we find in Marshall the greatest simplicity of life and character. In this union of simplicity and strength he illustrated the characteristics of the earlier period of our history. He has often been compared with the great judges of other countries. He has been compared with Lord Mansfield; and although he did not possess the extensive learning and elegant accomplishments of that renowned jurist, the comparison is not inappropriate when we consider their breadth of understanding and powers of reasoning; and yet Mansfield, as a member of the House of Lords, defending the prerogatives of the Crown and Parliament, and Marshall as an American patriot, sword in hand, resisting in the field the assumptions of imperial power, represent opposite conceptions. He has been compared with Lord Eldon; and it may be that in fineness of discrimination and delicate perceptions of equity he was excelled by that famous Lord Chancellor; and yet no greater contrast could be afforded than that of Eldon's uncertainty and procrastination on the bench with Marshall's bold and masterful readiness. He has been compared with Lord Stowell, and it may be conceded that in clearness of perception, skill in argument, and elegance of diction, Lord Stowell has seldom if ever been surpassed. And yet it may be said of Marshall that, in the strength and clearness of his conceptions, in the massive force and directness of his reasoning, and in the absolute independence and fearlessness with which he announced his conclusions, he presents a combination of qualities which not only does not suffer by any comparison, but which was also peculiarly his own.

Mr. Justice Miller once declared that the Supreme Court of the United States was, "so far as ordinary forms of power are concerned, by far the feeblest branch or department of the Government. It must rely," he added, "upon the confidence and respect of the public for its just weight and influence, and it may be confidently asserted that neither with the people, nor with the country at large, nor with the other branches of the government, has there ever been found wanting that respect and confidence." The circumstance that this statement of the learned justice, himself one of the brightest ornaments of the tribunal of which he spoke, has been received with general assent, affords the strongest proof that the successors of the Great Chief Justice and his associates have in no way fallen short of the measure of their trust; for, no matter how deeply the court may as an institution have been planted in the affections of the people, and no matter how important it may be to the operation of our system of government, its position and influence could not have been preserved had its members been wanting either in character, in conduct, or in attainments.

AUTHORITIES.

Chief Justice Marshall: an address by Mr. Justice Story; Eulogy on the life and character of John Marshall, by Horace Binney; John Marshall, by Allan B. Magruder (American Statesmen Series); The Development of the Constitution as influenced by Chief Justice Marshall, by Henry Hitchcock; John Marshall, by J.B. Thayer; The Supreme Court of the United States, by W.W. Willoughby; John Marshall, by C.F. Libby; Chief Justice Marshall, by John F. Dillon; Mr. Justice Bradley, Century Magazine, December, 1889; and cases in the Reports of the Supreme Court of the United States as follows: Ware v. Hylton, 3 Dallas, 199; Marbury v. Madison, 1 Cranch, 137; Cohens v. Virginia, 6 Wheaton, 264; McCulloch v. Maryland, 4 Wheaton, 316, 421; Gibbons v. Ogden, 9 Wheaton, 1; Schooner Exchange v. McFaddon, 7 Cranch, 116; Foster v. Neilson, 2 Peters, 253; American Insurance Co. v. Canter, I Peters, 511; U.S. v. Percheman, 7 Peters, 51; Johnson v. McIntosh, 8 Wheaton, 543; The Antelope, 10 Wheaton, 66; 11 Wheaton, 413; The Gran Para, 7 Wheaton, 471; The Venus, 8 Cranch, 253, 299; The Commercen, 1 Wheaton, 382; Church v. Hubbart, 2 Cranch, 187; Rose v. Himely, 4 Cranch, 241; Brown v. United States, 8 Cranch, 110.

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