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A Constitutional History of the United States
Chapter XXXIV - Chief Justice Taney and the Supreme Court
by McLaughlin, Andrew C.

Chief Justice Marshall died in 1835, leaving to his country the example of a distinguished service. His task had not been easy or his life free from anxiety. The greatest task of all had been the establishment of the Court as the recognized final authority in determining the extent of state powers; he had not failed; but almost to the very end of his life he found one state or another denying the Court's authority or even, as in the case of Georgia, flouting it. South Carolina had put forth a doctrine contrary to all his philosophy and all his pronouncements. He had reason for fearing that the union might not survive.

The appointment of a successor was a matter of moment. Jackson named for the position Roger Brooke Taney. He had been Attorney-General in Jackson's cabinet and later Secretary of the Treasury; the latter position he had to surrender because the Senate refused to confirm the appointment. He had remained in office long enough, however, to carry out Jackson's scheme for the removal of the deposits and had effectively aroused the enmity of the Whigs. The conservatives looked upon him as a dangerous character, unfit to wear the robe of justice which had been so ably and gallantly borne by his great predecessor. The Whig newspapers burst forth in lamentation. Clay's mighty wrath was not held in perfect control. Webster of course was dissatisfied. Justice Story, who had served with Marshall for more than twenty years and ardently admired his chief, agreed with Webster that the Supreme Court was "gone".[1] The Senate hesitated to confirm the appointment, but finally consented after the passing of a winter which must have been filled with gloom for all those who believed the land unable to bear the burden of incompetent democracy. To carry the load of a Democratic President was bad enough, but a Democratic Chief Justice, who might well undo all the achievements of the past, was a tribulation hard to be endured. And yet the judgment to-day is that the new Chief Justice proved capable; the high office did not lose its distinction. In the later years, it is true, his name was darkened by the decision in the Dred Scott case and by his disapproval of Lincoln's suspension of habeas corpus; but during his term of service, at least up to the time of the Dred Scott decision, the influence of the Court probably increased rather than diminished. In a series of very important cases Taney displayed unquestionable ability and learning. The Court had already undergone significant changes in membership, but some of the old members continued to serve. Of these Joseph Story was the most conspicuous, and no history of American law would touch upon the vitals of the subject without mention of his name. His Commentaries on the Constitution of the United States appeared in 1833, to be labored over by law students during half a century and more. It is difficult to measure the influence of works of that kind and especially of this one, but it was unquestionably very great. It naturally presented with definite emphasis the fundamental precepts which Marshall's career had exemplified. In many respects, the second quarter of the century was of marked importance in the development of American law, and Story of course did not toil alone. Kent's Commentaries on American Law was published only a few years before Story published his Commentaries. Somewhat later Theophilus Parsons published his Treatise on the Law of Contracts (1853), and on the bench of the Massachusetts court Lemuel Shaw expounded the law in a series of influential decisions. There were able jurists at the bar, and we need to ask ourselves again whether the courts or, on the other hand, the lawyers at the bar create the law and direct its course. A competent authority, speaking of the sixty years before the Civil War, asserts that the achievements during that period compare favorably with any other period of growth and adjustment in legal history; in its many characteristics it was analogous to "the classical period in England — the age of Coke." [2] We need not suppose, therefore, that the years which we are entering upon with the accession of Taney were uneventful or unproductive; America was still in the making; able and learned publicists were clarifying and enlarging the law; and in the field of constitutional law questions of vital importance had to be met and solved.

The Court was now safely in the hands of the Democrats.[3] And that fact implies much. Though the justices were not limited and constrained by the bonds of a narrow partisanship, their outlook upon the problems and the movements of the day was not quite the same as under the previous order of things. It is sufficient to say that the justices breathed the air of their time. Taney, especially, had sympathy for the aspirations of the common people and for their zeal to manage their own affairs. If in the past there had been, as is frequently said, anxiety lest the rights of property and vested interests be trampled under the feet of an eager populace, that anxiety disappeared or was now not regnant. Despite the extravagant doctrines of Calhoun and his ardent followers, the Court was not agitated by dread lest the union crumble. From the very beginning of the government state sovereignty had found no shadow of recognition in the judicial councils of the nation; [4] nor did it find any support after the accession of Taney. The Chief Justice was not willing, however, that the Constitution should be so interpreted by implication and assumption as unduly to hamper the states in the performance of their duties; the right and the opportunity of the states to act within their sphere and to function within the union seemed to him quite as important as anything else.

The country was entering upon a new era; in fact it had already entered. The period of Jacksonian democracy was not characterized solely by declamation and noisy announcements of popular power. There was enthusiasm for social betterment. Reform was in the air. Governments were no longer considered merely necessary burdens to be endured; they were expected to obey the popular will. Commerce was expanding, railroads were coming on the scene, new industrial activities were productive of political and legal problems. Corporations were forming for new enterprises. Not many of the judicial questions resulting from all these changes and all this vitality came before the highest Court; but a number of cases did arise where the decisions were of epochal importance.[5] In later years, beginning about the end of Reconstruction, like problems flocked to the Court in plentiful numbers; for that period also, the permanence of the union being assured, was a time of expansion, of new corporations, of new social needs and demands, of industrial development. But in this later period the Court had the fourteenth amendment to deal with; that amendment placed restrictions upon the states, and the duty of enforcing those restrictions fell to the courts. In Taney's time the Constitution contained a few explicit prohibitions upon the states — notably not to impair the obligation of contracts, not to pass ex post facto laws, and not to emit bills of credit; and there were non-explicit but real prohibitions resulting from the grant of powers to the national government. The effect and extent of those grants inevitably depended upon the interpretation given to the words.

There was no attempt in the new Court to overthrow the great decisions of Marshall's day and to begin anew. That is not the way of courts. They move on from precedent to precedent, but as the times change, as new needs arise, as the social outlook is enlarged or modified, the courts are affected. The justices have the skill to adapt, construe, and apply the older formulas, and to defy the layman to discover how the course has altered or the current of the stream has shifted. Indeed, in that way the common law itself has been developed and adapted to an advancing and ever more intricate civilization in spite of the fact (or because of the fact) that the law is supposed to rest on unchanging foundations of everlasting justice. The Constitution, too, has been fitted to a new world under the gentle ministrations of bench as well as bar. If occasionally or frequently judges appear adamant, or if the courts seem to lag hopelessly behind social needs, the onlooker, glancing back through decades, will probably be convinced that they only delay the modification of the old.

The main problems of the time, as far as they concerned constitutional history, involved the task of adjustment and accommodation, the task of giving such recognition to the powers of the states and such acknowledgment of the authority of the national system that the whole intricate structure of federalism would work and not break down. The states, Taney believed with all his heart, had not only rights but duties. It was the business of the states and their governments — and not merely their technical right under the Constitution — to care for the safety and to promote the happiness of their people; for such purposes they existed. In carrying out these duties, they should not be hindered by vague implications and presumptions gathered from the Constitution by clever interpretation. Though the national government should be protected in secure possession of undoubted authority and not be obstructed by petty scruples, the courts were under no obligation to view the national power as an object of special solicitude. After all, the union was a union of states. That the tendency arose from an attitude of mind which was not the possession of a particular judge or a particular court is evidenced by the fact that the state courts were moving in the same direction. In those tribunals we find a readiness to accept enactments of legislatures and an unwillingness to throw obstacles in their path.[6]

If we look forward from the second quarter of the century to the fourth quarter and to the interpretation of the fourteenth amendment, the tendencies in the courts during the quarter of a century before the Civil War have peculiar significance. For in some respects the cases coming before the state courts in the earlier period presented the problems which were so conspicuous in the last years of the nineteenth century and in the early years of the twentieth. This statement is not meant to imply that the tendency of the judicial decisions after 1875 was similar to the tendency of the earlier period, but that the problems were similar; we see in the later period as well as in the earlier the influence of social need, and, on the other hand, the pressure of propertied interests appealing to the conservative instincts of the courts. In both periods the question arose as to whether wide opportunity should be allowed for social experiment or whether, on the other hand, legislatures should be bound by what the courts thought ought to be done. What principle or philosophy should be accepted in determining the scope and character of state legislative powers?

Before 1868, when the fourteenth amendment was adopted, the state courts, passing upon the validity of state legislation, were in the main free to interpret their constitutions as they chose. The legislatures, feeling the impact of popular demand, passed acts of social legislation which brought to the fore fundamental questions concerning personal rights to property, and, less conspicuously, to liberty. What should be the basis of decisions? If it were definitely and consistently held that the people, when drafting a constitution and setting up a government, bestowed upon that government all powers not denied to the government, or, in other words, if the legislature had all powers not specifically or by obvious implication denied it, would the courts enforce only the plainly-stated prohibitions and limitations? Or were there principles, not patent on the face of the document, which constituted restrictions on legislative competence? Could the legislature be restrained by the spirit of free institutions, by the doctrine of natural rights, by the implications of the social compact, or by any other similar method of approach? [7]

On the whole, the tendency of the state courts was to look upon the state legislation as the expression of popular will; they were not ready to determine the constitutionality of legislation by deciding whether or not there were extraneous principles binding on the legislature, though they lay beyond the region of the plain words and prohibitions of the constitution itself. The philosophy of the Revolution, a popular philosophy which was used to resist tyrannical government, was not to be freely utilized to prevent the people from achieving their purposes. Who could better determine what was best for the people than the people themselves? This conclusion was not reached, however, without argument and litigation.[8]

It is apparent, too, that, despite the general tendency to recognize legislative enactments as law and not to throw up obstacles in addition to those erected by the people themselves in their own constitutions, the courts were subjected to constant pressure; litigants and lawyers hoped for the judicial pronouncement of a principle or a method of construction whereby the legislatures could be checked and property could be protected from intrusion.

If certain words in a constitution could be so construed as to embody the principle of natural justice, then the doctrine that extraneous principles constituted limitations on legislative power need not be openly applied. The principle or something analogous, though not so named, would then appear in the constitution as an express limitation on governmental power. A conservative political philosophy, fearing the incursion of legislative enactments into the field of personal rights, late in the period under consideration, sought to find refuge in the constitutional provision against depriving a person of life, liberty, or property without due process of law. Could those words be so interpreted as to constitute an express prohibition of legislation which would encroach upon what the courts would deem substantial rights of the individual to hold and enjoy property?

In the earlier years that clause, appearing in state and federal constitutions, was interpreted, if interpreted at all, as applying to the preservation or the recognition of procedure, i.e., to the actual process, and not to the substance of the right alleged to be involved. It had been held, however, that the mere establishment of procedure by legislative enactment did not necessarily make the procedure due and legal. Toward the end of the period preceding the Civil War, there was at least one conspicuous case in which the very substance of an act was examined and the act declared void because it violated rights guaranteed and secured by the due process clause. In other words, no matter what the procedure, no matter how formal the legislative enactment, property had rights beyond the reach of the legislature and was distinctly protected by the due process clause of the constitution itself. That fact marks a decided development in American constitutional law. Henceforward, if this interpretation of the due process clause were commonly accepted, not the will of the legislature, but the sense of right and justice residing in the bosom of the courts would be decisive of the constitutionality of social and economic legislation.[9] The salient case, mentioned in the preceding paragraph, was decided in New York in 1856 where the court held an act void as a violation of the due process clause and a deprivation of property.[10] The case deserves special attention because the decision was rendered only a few months before Taney gave his opinion in the Dred Scott case where he used — though rather incidentally — the due process clause of the federal Constitution as a basis for the protection of slavery. Strangest of all strange contradictions and developments from the Revolution to the Civil War! Strange that Taney of all men should have reached out his hand for the new doctrine based on implication and assumption, and strange that doctrines of liberty, beloved by the fathers and the fathers of the fathers, should be used to protect property in slaves. It is a matter of acute interest that amid the agitation for social reform which swept over large portions of the land in the thirties — the humanitarian movement — two purposes stand forth with some distinctness: zeal for the abolition of slavery and determination to control or even extirpate the liquor traffic. Both had to meet the objection that property and vested rights would be encroached upon. In the New York case, referred to above, property in liquor was protected by construction of the due process clause; in the Dred Scott case, slavery in the territories was given judicial protection. Opposition to slavery soon overshadowed all other social objectives and finally brought on civil war; other ambitions for social betterment were thus crowded from the field, to be taken up again in later years.

We must now turn to a brief consideration of some of the leading cases decided in the first twenty years after the accession of Taney. In his very first term, three decisions were rendered which exemplify the difference between the older point of view and the new. In 1830 the Supreme Court had passed upon an act of Missouri providing for the issue of certificates in various denominations which would be receivable in payment of taxes and could be loaned to citizens of the state. The law was held invalid on the ground that it contravened the explicit prohibition in the Constitution against a state's emitting bills of credit. Marshall in giving the opinion said: "To 'emit bills of credit,' conveys to the mind the idea of issuing paper intended to circulate through the community for its ordinary purposes, as money, which paper is redeemable at a future day."[11]

Shortly before Marshall's death another case of somewhat similar character arose.[12] Arguments were presented but no decision was rendered, and after the accession of Taney it was reargued. Kentucky had established a bank declared to be the exclusive property of the commonwealth, which was in fact the sole stockholder; it was authorized to issue notes. The Court sustained the act, the opinion being given by Justice McLean. Justice Story vigorously dissented, asserting that, when the cause had been formerly argued, a majority of the justices were decidedly of the opinion that the act was unconstitutional and amounted to an authority to issue bills of credit. "Among that majority", he said, "was the late Mr. Chief Justice Marshall — a name never to be pronounced without reverence." [13] It was not a trifling matter in those days to interfere with a community anxious for paper money. McLean declared: "There is no principle on which the sensibilities of communities are so easily excited, as that which acts upon the currency; none of which States are so jealous as that which is restrictive of the exercise of sovereign powers." [14] It is not our busi-. ness to criticize the Court, but the layman to-day cannot help thinking that the tender regard for the rights of the states and for the feelings of the western people had some influence; and at all events he is entitled to believe that the Kentucky bank gave ample opportunity for the spread of the evils — the natural progeny of paper money — which the framers of the Constitution had hoped to prevent.[15] But the Court thought otherwise. The decision is a clear indication of the reaction against the extreme nationalistic interpretation which had won its victories under the earlier regime.

Of even greater importance is the Charles River Bridge case.[16 ] It is of significance not only because it is an indication of the new attitude toward the rights and prerogatives of the states, but also because it announced a doctrine of fundamental importance in connection with the development of social and economic conditions of the time — and indeed of future time. The question brought up for decision was the validity of a Massachusetts act which chartered a corporation, the Warren Bridge Company, and gave it the power to build a bridge across the Charles River, from Charlestown to Boston. The bridge competed for traffic with another bridge, owned and managed by the Charles River Bridge Company, a corporation created by the state about fifty years before. Did the later act of incorporation impair the obligation of the contract embodied in this earlier charter? That charter contained no explicit grant of exclusive rights to the company. Should it nevertheless be so interpreted? The Chief Justice, supported by his colleagues, with the exceptions of Story and Thompson, answered in the negative and upheld the act establishing the Warren Bridge Company.

The Chief Justice first made clear that the Charles River Bridge Company could not support its case upon the principle that the act in question devested vested rights: "It is well settled by the decisions of this court that a State law may be retrospective in its character, and may devest vested rights, and yet not violate the Constitution of the United States...." "... it is apparent that the plaintiffs in error cannot sustain themselves here ... upon the ground that vested rights of property have been devested by the Legislature." [17] This was a momentous announcement, for it held, what was in theory plain enough, viz., that the states were at liberty to manage their own internal affairs; but in addition it swept aside any and all suppositions that the federal courts were to interpret the Constitution and especially the contract clause (unless that clause had been plainly violated) so as to protect property from assaults by state legislation — place property, indeed, under judicial guardianship.

But the main assertion of the Chief Justice was to the effect that public grants should be construed strictly and in favor of the state: "... in grants by the public nothing passes by implication." [18] The opinion was not simply a guarding of the state from intrusion upon its reserved rights. The principle was one of general application; the state had not only rights but duties; no vague or presumed restriction should be allowed to hamper or retard the performance of those duties. Implicit in the decision — if not plainly and emphatically announced — was the right of a people through their government to meet by legislation the necessities of a developing social structure: "... the object and end of all government is to promote the happiness and prosperity of the community by which it is established, and it can never be assumed that the government intended to diminish its power of accomplishing the end for which it was created. And in a country like ours, free, active and enterprising, continually advancing in numbers and wealth; new channels of communication are daily found necessary, both for travel and trade, and are essential to the comfort, convenience, and prosperity of the people. A State ought never to be presumed to surrender this power, because, like the taxing power, the whole community have an interest in preserving it undiminished... The continued existence of a government would be of no great value, if by implications and presumptions, it was disarmed of the powers necessary to accomplish the ends of its creation, and the functions it was designed to perform, transferred to the hands of privileged corporations." [19] A quarter of a century before this, Marshall had announced that a state could impose upon itself the obligation not to tax certain property.[20] Taney was decidedly averse to the extension of a principle which might by implication be used to restrict a state's power to manage its own affairs.

We have already referred to the fact that the Dartmouth College case might have been so applied and so rigorously enforced that the states would have been bereft of powers essential for the management and control of corporations; [21] and we have noticed the way in which the states succeeded in maintaining their right of control. In later decades, and especially in the last quarter of the century, when the problem of corporation control was of major importance, the principle laid down by Taney did not need alteration. The courts went much further, asserting the powers of the states and denying that a legislature can "bargain away the public health or the public morals." [22] The states must preserve their essential powers.

It is hard to conceive of anything, except the preservation of the union itself, more important than the preservation of the states' right to control corporations and to manage their own affairs unless the control and management be in plain violation of the Constitution; and yet able lawyers a century ago were in a state of consternation. Story declared that he believed a great majority of the ablest lawyers were against the decision. "There will not," he wrote, "I fear, ever 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, and a change has come over the public mind from which I augur little good."

Before the decisions in the Kentucky bank case and the bridge case were rendered, the Court had passed upon another critical question. In the mind of the conservative, clinging stoutly to the doctrines and tendencies of the old regime, it was classed with the others as an example of dangerous doctrines, likely to undermine the foundations of the supreme judicial authority. This case [23] involved the validity of a New York act requiring the master of every vessel arriving in New York from any other state or foreign country to report the name, age, and last legal settlement of every person who had been with him during the voyage. The effect or at least the purpose of the decision was to preserve the police power of the states in order that they might, with a certain degree of freedom, perform the duty of caring for the well-being and happiness of the people. The Court planted itself on what it called "impregnable positions": "that a State has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits, as any foreign nation, where that jurisdiction is not surrendered or restrained by the Constitution of the United States. That, by virtue of this, it is not only the right, but the bounden and solemn duty of a State, to advance the safety, happiness and prosperity of its people, and to provide for its general welfare, by any and every act of legislation which it may deem to be conducive to these ends; where the power over the particular subject, or the manner of its exercise is not surrendered or restrained, in the manner just stated. That all those powers which relate to merely municipal legislation, or what may, perhaps, more properly be called internal police, are not thus surrendered or restrained; and that, consequently, in relation to these, the authority of a State is complete, unqualified and exclusive." [24]

That the states possess the police power and have the right to exercise it is an elementary principle of constitutional law; but it is equally true that in the exercise of the power, as the Court declared, a state has no right to encroach upon the field of congressional authority. It was not enough simply to proclaim in any given instance that the act in question was within the police power of the state and therefore valid. The nature and effect of the act had to be examined to ascertain whether in the exercise of the power the state had intruded upon congressional authority. Some general formula, more adequate and applicable than the pronouncements in the Miln case, had ere long to be found.

Ten years after the Miln case, the question we have just been considering arose and presented its difficulties plainly. But before considering the case then arising it is well to recall the fact that in 1827, the Supreme Court, Chief Justice Marshall giving the opinion in the "original package" case,[25] had laid down an important principle and announced the unconstitutionality of a state act requiring importers to pay a license fee. In 1847 the Supreme Court was called upon to consider the validity of acts of three New England states placing certain impositions and restrictions upon the sale of spirituous liquors. The acts were upheld.[26] Various opinions were presented by the justices. The Chief Justice stated the grounds upon which the decision rested. Two of the three cases (the Massachusetts and the Rhode Island cases) did not present serious difficulties; they did not in reality run counter to the "original package" decision. But the New Hampshire case was different; in that case a barrel of gin which had been purchased in Boston was brought to Dover and there sold in the cask in which it had been transported; and for this sale the sellers were indicted and convicted. Taney contended that there was no congressional legislation on the subject and therefore the state legislation was valid.[27] Admitting the supreme power of Congress over interstate and foreign commerce, he declared that the state, nevertheless, acting for the safety or convenience of trade or for the protection of its citizens, could make regulations for its own ports and for its own territory, and that state regulations of that character were valid unless they came in conflict with a law of Congress. He distinguished this case from the "original package" case by pointing out that the former arose out of commerce with foreign nations which Congress had regulated by law.[28] Forty years after this decision the Court said that the principle laid down in the New Hampshire case — that the law of the state was valid because Congress had made no regulation on the subject — must be regarded as having been distinctly overthrown by numerous cases.[29]

In the License Cases, which we have just considered, Taney indicated that there was a field within which the states could act in the absence of congressional legislation. But in reality no general formula or general principle was clearly announced. If it were admitted that the power of Congress over interstate commerce was not in all cases necessarily exclusive, there still remained a question of how far a state could go. Could a principle or formula be laid down indicating the scope and character of local legislation which might be held valid in the absence of congressional enactment? The answer was given in a decision in 1851, four years after the License Cases, and that decision, though very general in its terms, is so simple that one wonders why it had not been announced before. The Court upheld a pilotage act of Pennsylvania.[30] The opinion was given by Justice Curtis. He referred to existing differences of opinion and then said: "Now, the power to regulate commerce, embraces a vast field, containing not only many, but exceedingly various subjects, quite unlike in their nature; some imperatively demanding a single uniform rule, operating equally on the commerce of the United States in every port; and some, like the subject now in question, as imperatively demanding that diversity, which alone can meet the local necessities of navigation.... Whatever subjects of this power are in their nature national, or admit only of one uniform system, or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress." This was a step forward in the clarification of the subject, and it formed the basis for further exposition at a later time: "... where the subject upon which Congress can act under its commercial power is local in its nature or sphere of operation, ... the State can act until Congress interferes and supersedes its authority; but where the subject is national in its character, ... and requires uniformity of regulation, ... Congress can alone act upon it.... The absence of any law of Congress on the subject is equivalent to its declaration that commerce in that matter shall be free." [31] The principle was clear; its application often presented difficulty.[32]

To the student of constitutional history the Passenger Cases are of peculiar interest.[33] They came up for decision in 1849, only two years after the License Cases, and involved a similar problem — once again the national control over commerce and on the other hand the power and the duty of the state to protect its citizens. But in this instance the controversy was even more intense than before. Statutes of New York and Massachusetts imposed taxes upon alien passengers arriving in the ports of those states. The Court declared them unconstitutional as illegal interference with foreign commerce, but on what reasoning it is difficult to say. The arguments of counsel and the opinions of various justices occupy nearly three hundred pages, and, as the reporter said in his introductory note, there was no opinion of the Court as a body. Four justices dissented from the decision. The Chief Justice in dissent said it must "rest with the State to determine whether any particular class or description of persons are likely to produce discontents or insurrection in its territory, or to taint the morals of its citizens, or to bring among them contagious diseases, or the evils and burdens of a numerous pauper population." [34] The significance of the case is in part indicated by the variety of the opinions rendered and by the intensity of their tone.

The elementary issues in the controversy were in fact entangled with the slavery question. How much the justices were consciously influenced by that fact it is impossible to say. But that slavery was casting its shadow over the Court seems undeniable. Were the members already aware of the likelihood of their being called upon to settle the problems arising from the proposed expansion of slavery into the new west? It is not unlikely, though no expression of opinion from the justices themselves is known to the present writer. Only the year before, the Senate had passed a bill providing that all cases involving property in slaves within the new western territories, which the bill proposed to establish, could be appealed to the Supreme Court. This provision does not, it is true, have any positive and logical connection with the issue before the Court in the Passenger Cases. Plainly present, however, was the question whether each state could exclude free negroes, and — only less plainly — whether the state and the state alone could pass upon the admission of slaves within its borders; furthermore, the right of Congress to regulate and even prohibit interstate traffic in slaves was a matter not without poignant interest.[35]

There had recently been a heated discussion in Congress over the propriety of admitting Florida into the union with a constitution forbidding the entrance of free negroes. Various other states had passed legislation to that effect.[36] An acrimonious dispute had arisen between Massachusetts and South Carolina because of the enforcement of the "negro seamen act" of the latter state, which provided in effect that any negroes employed aboard a vessel entering the state should be confined while the ship was in harbor. Samuel Hoar, a distinguished citizen of Massachusetts, had been expelled from South Carolina when he went thither to institute legal proceedings to test the constitutionality of this act. The legislature announced the right to exclude seditious persons whose presence might be dangerous to the peace of the state, and objected to the presence of an "emissary sent by the State of Massachusetts" with the purpose of interfering with the institutions of South Carolina.

In the case of the Propeller Genesee Chief (1851) the Chief Justice, delivering the opinion of the Court, upheld an act of Congress extending the jurisdiction of the federal district courts to certain cases upon the lakes and navigable waters connecting them. He declared that the act did not intend to regulate commerce; the jurisdiction of the courts could not be made to depend on regulations of commerce. But to justify the authority of Congress in this instance it was necessary for the Court to modify the old law as to the extent of admiralty and maritime jurisdiction. According to English law, admiralty jurisdiction was confined to the ebb and flow of the tide.[37] Taney cited decisions rendered by the Court which appeared to rest on the English definition; but he declared that rule inapplicable to America — as indeed in common sense it was. And still, here was a case which the Chief Justice decided on the basis of a broad and liberal interpretation, on the basis of implied congressional power.[38] It was not quite in accord with his doctrine that congressional power should not be allowed to rest upon mere implication, a doctrine which he had in sundry other instances forcibly upheld.[39] In this instance geographic facts were too strong for academic theory, and the police power of the state was not endangered.

Two more cases of importance must be given passing notice. In Luther v. Borden (1849), a case arising from the so-called Dorr Rebellion in Rhode Island, the Court refused to pass upon some of the critical issues, declaring that it was not its function to settle political questions — a distinctly significant conclusion.[40] The Wheeling Bridge case (1851)[41] illustrates once more the difficulty of finding the limits of state authority and the bearing of the commerce clause of the Constitution. The question at issue was the right of the state of Virginia to authorize the bridging of a navigable stream wholly within her limits. The Court decided against the right. Taney and Daniel dissented. The former said: "The Ohio being a public navigable stream, Congress have undoubtedly the power to regulate commerce upon it.... But this power has not been exercised.... The bridge in question is entirely within the Territory of Virginia. Prior to the adoption of the Constitution of the United States, she had an unquestionable right to authorize its erection. She still possesses the same control over the river, subject to the power of Congress, so far as concerns the regulation of commerce." [42] The principle laid down by the Chief Justice was in later years practically upheld by the Court.[43]

[1] See The Letters of Daniel Webster (C. H. Van Tyne, ed.), p. 198. Webster's letter was written January 10, 1836, and Story's belief that the Court was "gone" may have been due to Marshall's death and to other changes and not alone to Taney's being named. In the winter of 1837 Story wrote favorably of the new Chief Justice. In the spring of that year he wrote: "I am the last of the old race of judges. I stand their solitary representative with a pained heart and subdued confidence." See B. C. Steiner, Life of Roger Brooke Taney, p. 189.

[2] Roscoe Pound, "The Place of Judge Story in the Making of American Law," Cambridge Hist. Society Publications, VII, p. 39.

[3] Jackson appointed McLean of Ohio, 1829, Wayne of Georgia, 1835, Barbour of Virginia, 1836, and Taney of Maryland, 1836. Van Buren appointed Catron of Tennessee, 1837, and McKinley of Virginia, 1837. Daniel of Virginia succeeded Barbour in 1841. Story died in 1845.

[4] It is a strange fact, on the whole, that the advocates of the doctrine of state sovereignty and secession never seem to take much notice of the continuity of judicial opinion from the beginning. It is possible that Justice Campbell, because of his opinion in the Dred Scott case (1857), deserves to be called an exception to the rule. But it is not absolutely plain that his opinion necessarily bears this interpretation. He resigned and joined the Confederacy in 1861. Justice McLean said, in Wheaton and Donaldson v. Peters and Grigg, 8 Peters 591, 658 (1834): "The federal government is composed of twenty-four sovereign and independent States, each of which may have its local usages, customs and common law." Did he mean to use the word "sovereign" as Calhoun used it? That appears to be impossible. Marshall was still on the bench, though I do not know that he sat in the case. Story was on the bench, and had just published his Commentaries. The statement by McLean is a pure obiter dictum. The question was not whether the states were sovereign, in the full sense, but whether they had their own system of law, and whether there was a common law of the United States. The former question can be answered in the affirmative to-day and the latter in the negative; but no one supposes the states have more than limited sovereignty.

[5] "It was this change of emphasis from vested, individual property rights to the personal rights and welfare of the general community which characterized Chief Justice Taney's Court. And this change was but a recognition of the general change in the social and economic conditions and in the political atmosphere of that period, brought about by the adoption of universal manhood suffrage, by the revolution in methods of business and industry and in means of transportation, and by the expansion of the Nation and its activities." Charles Warren, The Supreme Court in United States History, II, p. 309. Especially valuable is E. S. Corwin's able article: "The Doctrine of Due Process of Law Before the Civil War," Harvard Law Review, XXIV, pp. 366-385, 460-479.

[6] "The right of courts to invalidate legislative enactments, after the first wave of enthusiasm which brought its adoption, was indeed scarcely used before the Civil War in any but a few states as an effective check upon legislative power. The practice of judicial review was confined during this period mainly to four states, North Carolina, Massachusetts, New York, and New Hampshire." C. G. Haines, The American Doctrine of Judicial Supremacy (2nd ed.), p. 340. "But what was happening on the Supreme Bench was the index of what was happening also in the state judiciaries, where popular sovereignty and states' rights united to force a recognition of the plenitude of legislative power." Corwin, "The Doctrine of Due Process of Law Before the Civil War," loc. cit., p. 462.

[7] The best-known opinion largely based on this philosophy was given by Justice Miller in Loan Asso. v. Topeka, 20 Wallace 655 (1875). The case, be it remembered, came after the Civil War; it was a federal and not a state case. It was decided after the fourteenth amendment was adopted, but before the federal Court had developed the theories of the due process clause of the amendment. It illustrates admirably the kind of philosophic approach of which the text speaks.

[8] The issue is admirably presented in a decision of the Michigan court in 1856. Speaking of the arguments which were presented against the validity of a statute, and indicating the court's unwillingness to accept them, the court said: "It is not denied but that the legislative department possesses this discretionary power, to a very great extent; but it is insisted that, when this power shall be improvidently exercised, it becomes the duty of the court to declare the act void. That is to say, that all the acts of the legislature while representing the sovereignty of the people as a law-making power, which, from the nature of things, must involve the power of a choice, founded upon the wants and necessities of the public, are to be reviewed and passed upon by the judiciary before they can be considered as of binding force." Asking by what authority the courts could exercise this supervisory power, the court replied: "Certainly not by anything contained in the constitution, nor by anything that is capable of definition, except, perhaps, in the language of one of the eminent judges above cited, that it is derived from a fundamental principle of right and justice inherent in the nature and spirit of the social compact, and the character and genius of our government...." The court refused to be governed by that sort of thing. The opinion of the dissenting judge in the case is an especially clear statement of this doctrine that the legislature was bound by the principles of free government and of the social compact. The People v. Gallagher, 4 Michigan 244, 255-256 (1856). Another example is the following: "The legislature having full power to pass such laws as is [sic] deemed necessary for the public good, their acts cannot be impeached on the ground, that they are unwise, or not in accordance with just and enlightened views of political economy, as understood at the present day." "... arguments against their policy must be addressed to the legislative department of the government." Mobile v. Yuille, 3 Alabama 137, 143 (1841). A very interesting case, because of the liberality of its outlook, is Goddard v. Jacksonville, 15 Illinois 588, 590 (1854): "The framers of Magna Charta, and of the constitutions of the United States and of the state, never intended to modify, abridge or destroy the police powers of government." The court upheld an ordinance of the town declaring the sale of liquor a nuisance, and refused to be bound by reference to natural rights.

[9] It is interesting and important to notice that the doctrine of natural right continued to have vitality. It was the child of centuries, lauded and sanctified by time. Before the mid-nineteenth century it had begun to lose its place of privilege in political philosophy and the words themselves were used less and less; but the age-old belief that there were permanent principles of right embodied in the nature of things — a belief on which even the philosophy of the common law reposed — continued to have its effect. Especially after the Civil War it was found by the courts, though they did not thus declare, to be covered and protected by the due process clause of the constitutions. Of this we shall see more in later pages of this work.

[10] Wynehamer v. New York, 13 New York 378 (1856). "That the prohibitory act, in its operation upon property in intoxicating liquors existing in the hands of any person within this state when the act took effect, is a violation of the provision in the constitution of this state which declares that no person shall be 'deprived of life, liberty or property, without due process of law.'" This statement is taken from the reporter's summary. Ibid., 486. See also R. L. Mott, Due Process of Law, pp. 317-318. "This decision was recognized as epoch-making almost as soon as it was rendered." Ibid., p. 318.

[11] Craig v. Missouri, 4 Peters 410, 432.

[12] Briscoe v. the Bank of Kentucky, 11 Peters 257 (1837).

[13] Ibid., 328. See, however, Justice Baldwin's statement, where he points out that there were differences in the two cases, and that if the issue of the Briscoe case had been involved in the Craig case, Chief Justice Marshall's opinion would not have carried his Court. Ibid., appendix, p. 113.

[14] Ibid., 312. Reference should be made to Darrington v. the Bank of Alabama, 13 Howard 12 (1851), where the Court held definitely to the doctrine of the Briscoe case, declaring bills issued by a bank were not bills of credit although the state was the sole stockholder and pledged its faith for the ultimate redemption of the bills. When one remembers the importance of the paper money issue in the days when the Constitution was formed and adopted, he is tempted to inquire whether the fathers could have imagined that their purpose could be so easily avoided.

[15] The distinction between the Craig case and the Briscoe case is that in the latter the notes were held not to circulate on the faith of the state: "To constitute a bill of credit within the Constitution, it must be issued by a State, on the faith of the State, and be designed to circulate as money. It must be a paper which circulates on the credit of the State, and is so received and used in the ordinary business of life." Briscoe v. the Bank of Kentucky, 11 Peters 257, 318.

[16] Charles River Bridge v. Warren Bridge, 11 Peters 420 (1837).

[17] Ibid., 539-540. The Court cited two decisions: Satterlee v. Matthewson, 2 Peters 380 (1829); Watson et al. v. Mercer, 8 Peters 88 (1834).

[18] Charles River Bridge v. Warren Bridge, 11 Peters 420, 546, referring to United States v. Arredondo, 6 Peters 691, 738, and the rases there cited.

[19] Charles River Bridge v. Warren Bridge, 11 Peters 420, 547-548. It must not be supposed that the Court manufactured the principle that public grants should be construed strictly. The cases cited and the references made to both English and American law forbid such a conclusion. See Ibid., 544-547.

[20] New Jersey v. Wilson, 7 Cranch 164 (1812).

[21] "In truth the principle of the Dartmouth College case, perhaps correct enough when limited as it was applied to a private grant, had been pushed by its advocates to an extreme that would have left our State governments in possession of little more than the shell of legislative power." G. W. Biddle, "Constitutional Development in the United States as Influenced by Chief Justice Taney," Constitutional History of the United States as Seen in the Development of American Law, p. 132.

[22] Stone v. Mississippi, 101 U. S. 814, 819 (1880).

[23] New York v. Miln, 11 Peters 102 (1837). The opinion of the Court was delivered by Justice Barbour. Story naturally dissented.

[24] Ibid., 139. Though Justice Barbour gave the opinion, the above may be considered the main plank in Taney's platform.

[25] Brown v. Maryland, 12 Wheaton 419.

[26] License Cases, 5 Howard 504.

[27] The question in Taney's opinion was "whether the grant of power to Congress is of itself a prohibition to the States, and renders all State laws upon the subject null and void." Ibid., 578.

[28] Ibid. Taney did not give weight to what was perhaps a dictum in the Brown case: "It may be proper to add, that we suppose the principles laid down in this case, to apply equally to importations from a sister state." Brown v. Maryland, 12 Wheaton 419, 449. See, however, Woodruff v. Parham, 8 Wallace 123 (1860), where the Court placed a significant limitation on the "original package" doctrine.

[29] Leisy v. Hardin, 135 U. S. 100, 118 (1890).

[30] Cooley v. Port Wardens, 12 Howard 299, 319.

[31] Concurring opinion of Justice Field in Bowman v. Chicago etc. Railway Co., 125 U. S. 465, 507-508 (1888). See also Leisy v. Hardin, 135 U. S. 100 (1890).

[32] "The power to authorize the building of bridges is not to be found in the Federal Constitution; it has not been taken from the States. The States may exercise concurrent or independent power in all cases but three: 1. Where the power is lodged exclusively in the Federal Constitution. 2. Where it is given to the United States and prohibited to the States. 3. Where, from the nature and subjects of the power, it must necessarily be exercised by the National Government exclusively. The power to build bridges over navigable rivers does not fall within either of these exceptions. Until the dormant power of the Constitution is awakened and made effective by appropriate legislation, the reserved power of the States is plenary; and its exercise, in good faith, cannot be made the subject of review by this court." From the syllabus of Gilman v. Philadelphia, 3 Wallace 713 (1866). This general statement of the principles of construction is essentially that of Hamilton in The Federalist, no. XXXII. See Houston v. Moore, 5 Wheaton 1, 49 (1820), where Justice Story, dissenting, laid down a principle similar to this.

[33] 7 Howard 283 (1849). The statutes of the two states were not in all respects the same, but the statement as given in the text sets forth the essential fact.

[34] Ibid., 467. Interesting in this connection is Hannibal and St. Joseph Railway Co. v. Husen, 95 U. S. 465 (1878), where the Court held that a state law forbidding the entrance of Texan, Mexican, or Indian cattle during a certain period of the year was unconstitutional. But the Court admitted the right of the state to prevent the entrance of persons and animals suffering from contagious diseases, and to establish quarantine laws; but "it may not interfere with transportation into or through the State, beyond what is absolutely necessary for its self-protection." Ibid., 472.

[35] In his dissenting opinion, Justice Daniel — coming from a state which had a vital interest in the interstate slave traffic — spoke of "the extraordinary doctrine that the States of this Union can have no power to prohibit the introduction of slaves within their territory when carried thither for sale or traffic, because the power to regulate commerce is there asserted to reside in Congress alone." Ibid., 498.

[36] Van Buren in argument referred to the laws of fifteen states forbidding or regulating the admission of free people of color. Justice Woodbury referred to the same subject. Ibid., 374, 526. See the chapter on the Missouri Compromise in this work.

[37] 12 Howard 443. "And this definition in England was a sound and reasonable one, because there was no navigable stream in the country beyond the ebb and flow of the tide...." Ibid., 454. The Chief Justice even said that when the Constitution was adopted the English definition was equally proper here.

[38] Justice Daniel naturally dissented: "... now, without there having been engrafted any new provision on the Constitution, without the alteration of one letter of that instrument ... the jurisdiction of the admiralty is to be measured by miles, and by the extent of territory which may have been subsequently acquired...." Ibid., 465.

[39] The decision was foreshadowed in Waring v. Clarke, 5 Howard 441 (1847). In that case, as in so many others, there was dissent. Woodbury, Grier, and Daniel dissented. The first two came from the north, Daniel from Virginia. Wayne of Georgia rendered the decision.

[40] 7 Howard I. [41] Pennsylvania v. the Wheeling Bridge Co., 13 Howard 518.

[42] Ibid., 579-580, 583.

[43] Willamette Iron Bridge Co. v. Hatch, 125 U. S. I (1888). In 1829 the Court, Chief Justice Marshall giving the opinion, had held that a dam stopping a navigable creek "must be supposed to abridge the rights of those who have been accustomed to use it. But this abridgment, unless it comes in conflict with the constitution or a law of the United States, is an affair between the government of Delaware and its citizens...." Willson v. Black-bird Creek Marsh Co., 2 Peters 245, 251. See also Gilman v. Philadelphia, 3 Wallace 713 (1866). It seems as if a distinction might properly be made between the Wheeling Bridge case, on the one hand, and the Gilman and Willamette Bridge cases, on the other, because in the first of these cases the river was not in its whole course confined to a single state, and an obstruction would interfere with free use of the river by other riparian states.


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