John Marshall and the Constitution - A Chronicle of the Supreme Court, Volume 16 In The - Chronicles Of America Series
by Edward S. Corwin
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By Edward S. Corwin





CHAPTER I. The Establishment Of The National Judiciary

The monarch of ancient times mingled the functions of priest and judge. It is therefore not altogether surprising that even today a judicial system should be stamped with a certain resemblance to an ecclesiastical hierarchy. If the Church of the Middle Ages was "an army encamped on the soil of Christendom, with its outposts everywhere, subject to the most efficient discipline, animated with a common purpose, every soldier panoplied with inviolability and armed with the tremendous weapons which slew the soul," the same words, slightly varied, may be applied to the Federal Judiciary created by the American Constitution. The Judiciary of the United States, though numerically not a large body, reaches through its process every part of the nation; its ascendancy is primarily a moral one; it is kept in conformity with final authority by the machinery of appeal; it is "animated with a common purpose"; its members are "panoplied" with what is practically a life tenure of their posts; and it is "armed with the tremendous weapons" which slay legislation. And if the voice of the Church was the voice of God, so the voice of the Court is the voice of the American people as this is recorded in the Constitution.

The Hildebrand of American constitutionalism is John Marshall. The contest carried on by the greatest of the Chief Justices for the principles today associated with his name is very like that waged by the greatest of the Popes for the supremacy of the Papacy. Both fought with intellectual weapons. Both addressed their appeal to the minds and hearts of men. Both died before the triumph of their respective causes and amid circumstances of great discouragement. Both worked through and for great institutions which preceded them and which have survived them. And, as the achievements of Hildebrand cannot be justly appreciated without some knowledge of the ecclesiastical system which he did so much to develop, neither can the career of John Marshall be understood without some knowledge of the organization of the tribunal through which he wrought and whose power he did so much to exalt. The first chapter in the history of John Marshall and his influence upon the laws of the land must therefore inevitably deal with the historical conditions underlying the judicial system of which it is the capstone.

The vital defect of the system of government provided by the soon obsolete Articles of Confederation lay in the fact that it operated not upon the individual citizens of the United States but upon the States in their corporate capacities. As a consequence the prescribed duties of any law passed by Congress in pursuance of powers derived from the Articles of Confederation could not be enforced. Theoretically, perhaps, Congress had the right to coerce the States to perform their duties; at any rate, a Congressional Committee headed by Madison so decided at the very moment (1781) when the Articles were going into effect. But practically such a course of coercion, requiring in the end the exercise of military power, was out of the question. Whence were to come the forces for military operations against recalcitrant States? From sister States which had themselves neglected their constitutional duties on various occasions? The history of the German Empire has demonstrated that the principle of state coercion is entirely feasible when a single powerful State dominates the rest of the confederation. But the Confederation of 1781 possessed no such giant member; it approximated a union of equals, and in theory it was entirely such. *

* By the Articles of Confederation Congress itself was made "the last resort of all disputes and differences...between two or more States concerning boundary, jurisdiction, or any other cause whatever." It was also authorized to appoint "courts for the trial of piracies and felonies committed on the high seas" and "for receiving and determining finally appeals in all cases of capture." But even before the Articles had gone into operation, Congress had, as early as 1779, established a tribunal for such appeals, the old Court of Appeals in Cases of Capture. Thus at the very outset, and at a time when the doctrine of state sovereignty was dominant, the practice of appeals from state courts to a supreme national tribunal was employed, albeit within a restricted sphere. Yet it is less easy to admit that the Court of Appeals was, as has been contended by one distinguished authority, "not simply the predecessor but one of the origins of the Supreme Court of the United States." The Supreme Court is the creation of the Constitution itself; it is the final interpreter of the law in every field of national power; and its decrees are carried into effect by the force and authority of the Government of which it is one of the three coordinate branches. That earlier tribunal, the Court of Appeals in Cases of Capture, was, on the other hand, a purely legislative creation; its jurisdiction was confined to a single field, and that of importance only in time of war; and the enforcement of its decisions rested with the state governments.

In the Federal Convention of 1787 the idea of state coercion required little discussion; for the members were soon convinced that it involved an impracticable, illogical, and unjust principle. The prevailing view was voiced by Oliver Ellsworth before the Connecticut ratifying convention: "We see how necessary for Union is a coercive principle. No man pretends to the contrary.... The only question is, shall it be a coercion of law or a coercion of arms? There is no other possible alternative. Where will those who oppose a coercion of law come out?... A necessary consequence of their principles is a war of the States one against the other. I am for coercion by law, that coercion which acts only upon delinquent individuals." If anything, these words somewhat exaggerate the immunity of the States from direct control by the National Government, for, as James Madison pointed out in the "Federalist," "in several cases... they [the States] must be viewed and proceeded against in their collective capacities." Yet Ellsworth stated correctly the controlling principle of the new government: it was to operate upon individuals through laws interpreted and enforced by its own courts.

A Federal Judiciary was provided for in every Plan offered on the floor of the Federal Convention. There was also a fairly general agreement among the members on the question of "judicial independence." Indeed, most of the state constitutions already made the tenure of the principal judges dependent upon their good behavior, though in some cases judges were removable, as in England, upon the joint address of the two Houses of the Legislature. That the Federal judges should be similarly removable by the President upon the application of the Senate and House of Representatives was proposed late in the Convention by Dickinson of Delaware, but the suggestion received the vote of only one State. In the end it was all but unanimously agreed that the Federal judges should be removable only upon conviction following impeachment.

But, while the Convention was in accord on this matter, another question, that of the organization of the new judiciary, evoked the sharpest disagreement among its members. All believed that there must be a national Supreme Court to impress upon the national statutes a construction that should be uniformly binding throughout the country; but they disagreed upon the question whether there should be inferior national courts. Rutledge of South Carolina wanted the state courts to be used as national courts of the first instance and argued that a right of appeal to the supreme national tribunal would be quite sufficient "to secure the national rights and uniformity of judgment." But Madison pointed out that such an arrangement would cause appeals to be multiplied most oppressively and that, furthermore, it would provide no remedy for improper verdicts resulting from local prejudices. A compromise was reached by leaving the question to the discretion of Congress. The champions of local liberties, however, both at Philadelphia and in the state conventions continued to the end to urge that Congress should utilize the state courts as national tribunals of the first instance. The significance of this plea should be emphasized because the time was to come when the same interest would argue that for the Supreme Court to take appeals from the state courts on any account was a humiliation to the latter and an utter disparagement of State Rights.

Even more important than the relation of the Supreme Court to the judicial systems of the States was the question of its relation to the Constitution as a governing instrument. Though the idea that courts were entitled to pronounce on the constitutionality of legislative acts had received countenance in a few dicta in some of the States and perhaps in one or two decisions, this idea was still at best in 1787 but the germ of a possible institution. It is not surprising, therefore, that no such doctrine found place in the resolutions of the Virginia plan which came before the Convention. By the sixth resolution of this plan the national legislature was to have the power of negativing all state laws which, in its opinion, contravened "the Articles of Union, or any treaty subsisting under the authority of the Union," and by the eighth resolution "a convenient number of the national judiciary" were to be associated with the Executive, "with authority to examine every act of the national legislature before it shall operate, and every act of a particular legislature before a negative thereon shall be final" and to impose a qualified veto in either case.

But, as discussion in the Convention proceeded, three principles obtained clearer and clearer recognition, if not from all its members, certainly from the great majority of them: first, that the Constitution is law, in the sense of being enforcible by courts; secondly, that it is supreme law, with which ordinary legislation must be in harmony to be valid; and thirdly—a principle deducible from the doctrine of the separation of powers—that, while the function of making new law belongs to the legislative branch of the Government, that of expounding the standing law, of which the Constitution would be part and parcel, belongs to the Judiciary. The final disposition of the question of insuring the conformity of ordinary legislation to the Constitution turned to no small extent on the recognition of these three great principles.

The proposal to endow Congress with the power to negative state legislation having been rejected by the Convention, Luther Martin of Maryland moved that "the legislative acts of the United States made in virtue and in pursuance of the Articles of Union, and all treaties made or ratified under the authority of the United States, shall be the supreme law of the respective States, and the judiciaries of the several States shall be bound thereby in their decisions, anything in the respective laws of the individual States to the contrary notwithstanding." The motion was agreed to without a dissenting voice and, with some slight changes, became Article VIII of the report of the Committee of Detail of the 7th of August, which in turn became "the linch-pin of the Constitution." * Then, on the 27th of August, it was agreed that "the jurisdiction of the Supreme Court" should "extend to all cases arising under the laws passed by the Legislature of the United States," whether, that is, such laws should be in pursuance of the Constitution or not. The foundation was thus laid for the Supreme Court to claim the right to review any state decision challenging on constitutional grounds the validity of any act of Congress. Presently this foundation was broadened by the substitution of the phrase "judicial power of the United States" for the phrase "jurisdiction of the Supreme Court," and also by the insertion of the words "this Constitution" and "the" before the word "laws" in what ultimately became Article III of the Constitution. The implications of the phraseology of this part of the Constitution are therefore significant:

* Article VI, paragraph 2.

Section I. The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office.

Section II. 1. The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be 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 shall be a party; to controversies between two or more States, between a State and citizens of another State, between citizens of different States, 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.

Such, then, is the verbal basis of the power of the courts, and particularly of the Supreme Court, to review the legislation of any State, with reference to the Constitution, to acts of Congress, or to treaties of the United States. Nor can there be much doubt that the members of the Convention were also substantially agreed that the Supreme Court was endowed with the further right to pass upon the constitutionality of acts of Congress. The available evidence strictly contemporaneous with the framing and ratification of the Constitution shows us seventeen of the fifty-five members of the Convention asserting the existence of this prerogative in unmistakable terms and only three using language that can be construed to the contrary. More striking than that, however, is the fact that these seventeen names include fully three-fourths of the leaders of the Convention, four of the five members of the Committee of Detail which drafted the Constitution, and four of the five members of the Committee of Style which gave the Constitution its final form. And these were precisely the members who expressed themselves on all the interesting and vital subjects before the Convention, because they were its statesmen and articulate members. *

* The entries under the names of these members in the Index to Max Farrand's "Records of the Federal Convention" occupy fully thirty columns, as compared with fewer than half as many columns under the names of all remaining members.

No part of the Constitution has realized the hopes of its framers more brilliantly than has Article III, where the judicial power of the United States is defined and organized, and no part has shown itself to be more adaptable to the developing needs of a growing nation. Nor is the reason obscure: no part came from the hands of the framers in more fragmentary shape or left more to the discretion of Congress and the Court.

Congress is thus placed under constitutional obligation to establish one Supreme Court, but the size of that Court is for Congress itself to determine, as well as whether there shall be any inferior Federal Courts at all. What, it may be asked, is the significance of the word "shall" in Section II? Is it merely permissive or is it mandatory? And, in either event, when does a case arise under the Constitution or the laws of the United States? Here, too, are questions which are left for Congress in the first instance and for the Supreme Court in the last. Further, the Supreme Court is given "original jurisdiction" in certain specified cases and "appellate jurisdiction" in all others—subject, however, to "such exceptions and under such regulations as the Congress shall make." Finally, the whole question of the relation of the national courts to the state judiciaries, though it is elaborately discussed by Alexander Hamilton in the "Federalist," is left by the Constitution itself to the practically undirected wisdom of Congress, in the exercise of its power to pass "all laws which shall be necessary and proper for carrying into execution" * its own powers and those of the other departments of the Government.

* Article I, section VIII, 18.

Almost the first official act of the Senate of the United States, after it had perfected its own organization, was the appointment of a committee "to bring in a bill for organizing the judiciary of the United States." This committee consisted of eight members, five of whom, including Oliver Ellsworth, its chairman, had been members of the Federal Convention. To Ellsworth is to be credited largely the authorship of the great Judiciary Act of September 24, 1789, the essential features of which still remain after 130 years in full force and effect.

This famous measure created a chief justiceship and five associate justiceships for the Supreme Court; fifteen District Courts, one for each State of the Union and for each of the two Territories, Kentucky and Ohio; and, to stand between these, three Circuit Courts consisting of two Supreme Court justices and the local district judge. The "cases" and "controversies" comprehended by the Act fall into three groups: first, those brought to enforce the national laws and treaties, original jurisdiction of which was assigned to the District Courts; secondly, controversies between citizens of different States *; lastly, cases brought originally under a state law and in a State Court but finally coming to involve some claim of right based on the National Constitution, laws, or treaties. For these the twenty-fifth section of the Act provided that, where the decision of the highest State Court competent under the state law to pass upon the case was adverse to the claim thus set up, an appeal on the issue should lie to the Supreme Court. This twenty-fifth section received the hearty approval of the champions of State Rights, though later on it came to be to them an object of fiercest resentment. In the Senate, as in the Convention, the artillery of these gentlemen was trained upon the proposed inferior Federal Judiciary, which they pictured as a sort of Gargantua ready at any moment "to swallow up the state courts."

* Where the national jurisdiction was extended to these in the interest of providing an impartial tribunal, it was given to the Circuit Court.

The first nominations for the Supreme Court were sent in by Washington two days after he had signed the Judiciary Act. As finally constituted, the original bench consisted of John Jay of New York as Chief Justice, and of John Rutledge of South Carolina, William Cushing of Massachusetts, John Blair of Virginia, James Wilson of Pennsylvania, and James Iredell of North Carolina as Associate Justices. All were known to be champions of the Constitution, three had been members of the Federal Convention, four had held high judicial offices in their home States, and all but Jay were on record as advocates of the principle of judicial review. Jay was one of the authors of the "Federalist", had achieved a great diplomatic reputation in the negotiations of 1782, and possessed the political backing of the powerful Livingston family of New York.

The Judiciary Act provided for two terms of court annually, one commencing the first Monday of February, and the other on the first Monday of August. On February 2, 1790, the Court opened its doors for the first time in an upper room of the Exchange in New York City. Up to the February term of 1798 it had heard but five cases, and until the accession of Marshall it had decided but fifty-five. The justices were largely occupied in what one of them described as their "post-boy duties," that is, in riding their circuits. At first the justices rode in pairs and were assigned to particular circuits. As a result of this practice, the Southern justices were forced each year to make two trips of nearly two thousand miles each and, in order to hold court for two weeks, often passed two months on the road. In 1792, however, Congress changed the law to permit the different circuits to be taken in turn and by single justices, and in the meantime the Court had, in 1791, followed the rest of the Government to Philadelphia, a rather more central seat. Then, in 1802, the abolition of the August term eased the burdens of the justices still more. But of course they still had to put up with bad roads, bad inns, and bad judicial quarters or sometimes none at all.

Yet that the life of a Supreme Court justice was not altogether one of discomfort is shown by the following alluring account of the travels of Justice Cushing on circuit: "He traveled over the whole of the Union, holding courts in Virginia, the Carolinas, and Georgia. His traveling equipage was a four-wheeled phaeton, drawn by a pair of horses, which he drove. It was remarkable for its many ingenious arrangements (all of his contrivance) for carrying books, choice groceries, and other comforts. Mrs. Cushing always accompanied him, and generally read aloud while riding. His faithful servant Prince, a jet-black negro, whose parents had been slaves in the family and who loved his master with unbounded affection, followed." * Compared with that of a modern judge always confronted with a docket of eight or nine hundred cases in arrears, Justice Cushing's lot was perhaps not so unenviable.

* Flanders, "The Lives and Times of the Chief-Justices of the Supreme Court," vol. II, p. 38.

The pioneer work of the Supreme Court in constitutional interpretation has, for all but special students, fallen into something like obscurity owing to the luster of Marshall's achievements and to his habit of deciding cases without much reference to precedent. But these early labors are by no means insignificant, especially since they pointed the way to some of Marshall's most striking decisions. In Chisholm vs. Georgia, * which was decided in 1793, the Court ruled, in the face of an assurance in the "Federalist" to the contrary, that an individual might sue a State; and though this decision was speedily disallowed by resentful debtor States by the adoption of the Eleventh Amendment, its underlying premise that, "as to the purposes of the Union, the States are not sovereign" remained untouched; and three years later the Court affirmed the supremacy of national treaties over conflicting state laws and so established a precedent which has never been disturbed.** Meantime the Supreme Court was advancing, though with notable caution, toward an assertion of the right to pass upon the constitutionality of acts of Congress. Thus in 1792, Congress ordered the judges while on circuit to pass upon pension claims, their determinations to be reviewable by the Secretary of the Treasury. In protests which they filed with the President, the judges stated the dilemma which confronted them: either the new duty was a judicial one or it was not; if the latter, they could not perform it, at least not in their capacity as judges; if the former, then their decisions were not properly reviewable by an executive officer. Washington promptly sent the protests to Congress, whereupon some extremists raised the cry of impeachment; but the majority hastened to amend the Act so as to meet the views of the judges.*** Four years later, in the Carriage Tax case,**** the only question argued before the Court was that of the validity of a congressional excise. Yet as late as 1800 we find Justice Samuel Chase of Maryland, who had succeeded Blair in 1795, expressing skepticism as to the right of the Court to disallow acts of Congress on the ground of their unconstitutionality, though at the same time admitting that the prevailing opinion among bench and bar supported the claim.

* 2 Dallas, 419.

** Ware vs. Hylton, 3 ib., 199.

*** See 2 Dallas, 409.

**** Hylton vs. United States, 3 Dallas, 171.

The great lack of the Federal Judiciary during these early years, and it eventually proved well-nigh fatal, was one of leadership. Jay was a satisfactory magistrate, but he was not a great force on the Supreme Bench, partly on account of his peculiarities of temperament and his ill-health, and partly because, even before he resigned in 1795 to run for Governor in New York, his judicial career had been cut short by an important diplomatic assignment to England. His successor, Oliver Ellsworth, also suffered from ill health, and he too was finally sacrificed on the diplomatic altar by being sent to France in 1799. During the same interval there were also several resignations among the associate justices. So, what with its shifting personnel, the lack of business, and the brief semiannual terms, the Court secured only a feeble hold on the imagination of the country. It may be thought, no doubt, that judges anxious to steer clear of politics did not require leadership in the political sense. But the truth of the matter is that willy-nilly the Federal Judiciary at this period was bound to enter politics, and the only question was with what degree of tact and prudence this should be done. It was to be to the glory of Marshall that he recognized this fact perfectly and with mingled boldness and caution grasped the leadership which the circumstances demanded.

The situation at the beginning was precarious enough. While the Constitution was yet far from having commended itself to the back country democracy, that is, to the bulk of the American people, the normal duties of the lower Federal Courts brought the judges into daily contact with prevalent prejudices and misconceptions in their most aggravated forms. Between 1790 and 1800 there were two serious uprisings against the new Government: the Whisky Rebellion of 1794 and Fries's Rebellion five years later. During the same period the popular ferment caused by the French Revolution was at its height. Entrusted with the execution of the laws, the young Judiciary "was necessarily thrust forward to bear the brunt in the first instance of all the opposition levied against the federal head," its revenue measures, its commercial restrictions, its efforts to enforce neutrality and to quell uprisings. In short, it was the point of attrition between the new system and a suspicious, excited populace.

Then, to make bad matters worse, Congress in 1798 passed the Sedition Act. Had political discretion instead of party venom governed the judges, it is not unlikely that they would have seized the opportunity presented by this measure to declare it void and by doing so would have made good their censorship of acts of Congress with the approval of even the Jeffersonian opposition. Instead, they enforced the Sedition Act, often with gratuitous rigor, while some of them even entertained prosecutions under a supposed Common Law of the United States. The immediate sequel to their action was the claim put forth in the Virginia and Kentucky Resolutions that the final authority in interpreting the National Constitution lay with the local legislatures. Before the principle of judicial review was supported by a single authoritative decision, it had thus become a partisan issue! *

* See Herman vs. Ames, "State Documents on Federal Relations," Nos. 7-15.

A few months later Jefferson was elected President, and the Federalists, seeing themselves about to lose control of the Executive and Congress, proceeded to take steps to convert the Judiciary into an avowedly partisan stronghold. By the Act of February 18, 1801, the number of associate justiceships was reduced to four, in the hope that the new Administration might in this way be excluded from the opportunity of making any appointments to the Supreme Bench, the number of district judgeships was enlarged by five, and six Circuit Courts were created which furnished places for sixteen more new judges. When John Adams, the retiring President, proceeded with the aid of the Federalist majority in the Senate and of his Secretary of State, John Marshall, to fill up the new posts with the so-called "midnight judges," * the rage and consternation of the Republican leaders broke all bounds. The Federal Judiciary, declared John Randolph, had become "an hospital of decayed politicians." Others pictured the country as reduced, under the weight of "supernumerary judges" and hosts of attendant lawyers, to the condition of Egypt under the Mamelukes. Jefferson's concern went deeper. "They have retired into the judiciary as a stronghold," he wrote Dickinson. "There the remains of Federalism are to be preserved and fed from the Treasury, and from that battery all the works of Republicanism are to be beaten down and destroyed." The Federal Judiciary, as a coordinate and independent branch of the Government, was confronted with a fight for life!

* So called because the appointment of some of them was supposed to have taken place as late as midnight, or later, of March 3-4, 1801. The supposition, however, was without foundation.

Meanwhile, late in November, 1800, Ellsworth had resigned, and Adams had begun casting about for his successor. First he turned to Jay, who declined on the ground that the Court, "under a system so defective," would never "obtain the energy, weight, and dignity which were essential to its affording due support to the National Government, nor acquire the public confidence and respect which, as the last resort of the justice of the nation, it should possess." Adams now bethought himself of his Secretary of State and, without previously consulting him, on January 20, 1801, sent his name to the Senate. A week later the Senate ratified the nomination, and on the 4th of February Marshall accepted the appointment. The task despaired of by Jay and abandoned by Ellsworth was at last in capable hands.

CHAPTER II. Marshall's Early Years

John Marshall was born on September 24, 1755, in Fauquier County, Virginia. Though like Jefferson he was descended on his mother's side from the Randolphs of Turkey Island, colonial grandees who were also progenitors of John Randolph, Edmund Randolph, and Robert E. Lee, his father, Thomas Marshall, was "a planter of narrow fortune" and modest lineage and a pioneer. Fauquier was then on the frontier, and a few years after John was born the family moved still farther westward to a place called "The Hollow," a small depression on the eastern slope of the Blue Ridge. The external furnishings of the boy's life were extremely primitive, a fact which Marshall used later to recall by relating that his mother and sisters used thorns for buttons and that hot mush flavored with balm leaf was regarded as a very special dish. Neighbors of course, were few and far between, but society was not lacking for all that. As the first of fifteen children, all of whom reached maturity, John found ample opportunity to cultivate that affectionate helpfulness and gayety of spirit which in after years even enemies accounted one of his most notable traits.

Among the various influences which, during the plastic years of boyhood and youth, went to shape the outlook of the future Chief Justice high rank must be accorded his pioneer life. It is not merely that the spirit of the frontier, with its independence of precedent and its audacity of initiative, breathes through his great constitutional decisions, but also that in being of the frontier Marshall escaped being something else. Had he been born in lowland Virginia, he would have imbibed the intense localism and individualism of the great plantation, and with his turn of mind might well have filled the role of Calhoun instead of that very different role he actually did fill. There was, indeed, one great planter with whom young Marshall was thrown into occasional contact, and that was his father's patron and patron saint, Washington. The appeal made to the lad's imagination by the great Virginian, was deep and abiding. And it goes without saying that the horizons suggested by the fame of Fort Venango and Fort Duquesne were not those of seaboard Virginia but of America.

Many are the great men who have owed their debt to a mother's loving helpfulness and alert understanding. Marshall, on the other hand, was his father's child. "My father," he was wont to declare in after years, "was a far abler man than any of his sons. To him I owe the solid foundations of all my success in life." What were these solid foundations? One was a superb physical constitution; another was a taste for intellectual delights; and to the upbuilding of both these in his son, Thomas Marshall devoted himself with enthusiasm and masculine good sense, aided on the one hand by a very select library consisting of Shakespeare, Milton, Dryden, and Pope, and on the other by the ever fresh invitation of the mountainside to healthgiving sports.

Pope was the lad's especial textbook, and we are told that he had transcribed the whole of the "Essay on Man" by the time he was twelve and some of the "Moral Essays" as well, besides having "committed to memory many of the most interesting passages of that distinguished poet." The result is to be partially discerned many years later in certain tricks of Marshall's style; but indeed the influence of the great moralist must have penetrated far deeper. The "Essay on Man" filled, we may surmise, much the same place in the education of the first generation of American judges that Herbert Spencer's "Social Statics" filled in that of the judges of a later day. The "Essay on Man" pictures the universe as a species of constitutional monarchy governed "not by partial but by general laws"; in "man's imperial race" this beneficent sway expresses itself in two principles, "self-love to urge, and reason to restrain"; instructed by reason, self-love lies at the basis of all human institutions, the state, government, laws, and has "found the private in the public good"; so, on the whole, justice is the inevitable law of life. "Whatever is, is right." It is interesting to suppose that while Marshall was committing to memory the complacent lines of the "Essay on Man," his cousin Jefferson may have been deep in the "Essay on the Origin of Inequality."

At the age of fourteen Marshall was placed for a few months under the tuition of a clergyman named Campbell, who taught him the rudiments of Latin and introduced him to Livy, Cicero, and Horace. A little later the great debate over American rights burst forth and became with Marshall, as with so many promising lads of the time, the decisive factor in determining his intellectual bent, and he now began reading Blackstone. The great British orators, however, whose eloquence had so much to do, for instance, with shaping Webster's genius, came too late to influence him greatly.

The part which the War of Independence had in shaping the ideas and the destiny of John Marshall was most important. As the news of Lexington and Bunker Hill passed the Potomac, he was among the first to spring to arms. His services at the siege of Norfolk, the battles of Brandywine, Germantown, and Monmouth, and his share in the rigors of Valley Forge and in the capture of Stony Point, made him an American before he had ever had time to become a Virginian. As he himself wrote long afterwards: "I had grown up at a time when the love of the Union and the resistance to Great Britain were the inseparable inmates of the same bosom;... 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 believed by all to be most precious, and where I was confirmed in the habit of considering America as my country and Congress as my government."

Love of country, however, was not the only quality which soldiering developed in Marshall. The cheerfulness and courage which illuminated his patriotism brought him popularity among men. Though but a lieutenant, he was presently made a deputy judge advocate. In this position he displayed notable talent in adjusting differences between officers and men and also became acquainted with Washington's brilliant young secretary, Alexander Hamilton.

While still in active service in 1780, Marshall attended a course of law lectures given by George Wythe at William and Mary College. He owed this opportunity to Jefferson, who was then Governor of the State and who had obtained the abolition of the chair of divinity at the college and the introduction of a course in law and another in medicine. Whether the future Chief Justice was prepared to take full advantage of the opportunity thus offered is, however, a question. He had just fallen heels over head in love with Mary Ambler, whom three years later he married, and his notebook seems to show us that his thoughts were quite as much upon his sweetheart as upon the lecturer's wisdom.

None the less, as soon as the Courts of Virginia reopened, upon the capitulation of Cornwallis, Marshall hung out his shingle at Richmond and began the practice of his profession. The new capital was still hardly more than an outpost on the frontier, and conditions of living were rude in the extreme. "The Capitol itself," we are told, "was an ugly structure—'a mere wooden barn'—on an unlovely site at the foot of a hill. The private dwellings scattered about were poor, mean, little wooden houses." "Main Street was still unpaved, deep with dust when dry and so muddy during a rainy season that wagons sank up to the axles." It ended in gullies and swamps. Trade, which was still in the hands of the British merchants, involved for the most part transactions in skins, furs, ginseng, snakeroot, and "dried rattlesnakes—used to make a viper broth for consumptive patients." "There was but one church building and attendance was scanty and infrequent." Not so, however, of Farmicola's tavern, whither card playing, drinking, and ribaldry drew crowds, especially when the legislature was in session. *

* Beveridge, vol. I, pp. 171-73.

But there was one institution of which Richmond could boast, even in comparison with New York, Boston, or Philadelphia, and that was its Bar. Randolph, Wickham, Campbell, Call, Pendleton, Wythe—these are names whose fame still survives wherever the history of the American Bar is cherished; and it was with their living bearers that young Marshall now entered into competition. The result is somewhat astonishing at first consideration, for even by the standards of his own day, when digests, indices, and the other numerous aids which now ease the path of the young attorney were generally lacking, his preparation had been slight. Several circumstances, however, came to his rescue. So soon after the Revolution British precedents were naturally rather out of favor, while on the other hand many of the questions which found their way into the courts were those peculiar to a new country and so were without applicable precedents for their solution. What was chiefly demanded of an attorney in this situation was a capacity for attention, the ability to analyze an opponent's argument, and a discerning eye for fundamental issues. Competent observers soon made the discovery that young Marshall possessed all these faculties to a marked degree and, what was just as important, his modesty made recognition by his elders easy and gracious.

From 1782 until the adoption of the Constitution, Marshall was almost continuously a member of the Virginia Legislature. He thus became a witness of that course of policy which throughout this period daily rendered the state governments more and more "the hope of their enemies, the despair of their friends." The termination of hostilities against England had relaxed the already feeble bonds connecting the States. Congress had powers which were only recommendatory, and its recommendations were ignored by the local legislatures. The army, unpaid and frequently in actual distress, was so rapidly losing its morale that it might easily become a prey to demagogues. The treaties of the new nation were flouted by every State in the Union. Tariff wars and conflicting land grants embittered the relations of sister States. The foreign trade of the country, it was asserted, "was regulated, taxed, monopolized, and crippled at the pleasure of the maritime powers of Europe." Burdened with debts which were the legacy of an era of speculation, a considerable part of the population, especially of the farmer class, was demanding measures of relief which threatened the security of contracts. "Laws suspending the collection of debts, insolvent laws, instalment laws, tender laws, and other expedients of a like nature, were familiarly adopted or openly and boldly vindicated. *

* This review of conditions under the later Confederation is taken from Story's "Discourse," which is in turn based, at this point, on Marshall's "Life of Washington" and certain letters of his to Story.

From the outset Marshall ranged himself on the side of that party in the Virginia Legislature which, under the leadership of Madison, demanded with growing insistence a general and radical constitutional reform designed at once to strengthen the national power and to curtail state legislative power. His attitude was determined not only by his sympathy for the sufferings of his former comrades in arms and by his veneration for his father and for Washington, who were of the same party, but also by his military experience, which had rendered the pretensions of state sovereignty ridiculous in his eyes. Local discontent came to a head in the autumn of 1786 with the outbreak of Shays's Rebellion in western Massachusetts. Marshall, along with the great body of public men of the day, conceived for the movement the gravest alarm, and the more so since he considered it as the natural culmination of prevailing tendencies. In a letter to James Wilkinson early in 1787, he wrote: "These violent... dissensions in a State I had thought inferior in wisdom and virtue to no one in our Union, added to the strong tendency which the politics of many eminent characters among ourselves have to promote private and public dishonesty, cast a deep shade over that bright prospect which the Revolution in America and the establishment of our free governments had opened to the votaries of liberty throughout the globe. I fear, and there is no opinion more degrading to the dignity of man, that those have truth on their side who say that man is incapable of governing himself."

Marshall accordingly championed the adoption of the Constitution of 1787 quite as much because of its provisions for diminishing the legislative powers of the States in the interest of private rights as because of its provisions for augmenting the powers of the General Government. His attitude is revealed, for instance, in the opening words of his first speech on the floor of the Virginia Convention, to which he had been chosen a member from Richmond: "Mr. Chairman, I conceive that the object of the discussion now before us is whether democracy or despotism be most eligible.... The supporters of the Constitution claim the title of being firm friends of liberty and the rights of man ....We prefer this system because we think it a well-regulated democracy.... What are the favorite maxims of democracy? A strict observance of justice and public faith.... Would to Heaven that these principles had been observed under the present government. Had this been the case the friends of liberty would not be willing now to part with it." The point of view which Marshall here assumed was obviously the same as that from which Madison, Hamilton, Wilson, and others on the floor of the Federal Convention had freely predicted that republican liberty must disappear from the earth unless the abuses of it practiced in many of the States could be eliminated.

Marshall's services in behalf of the Constitution in the closely fought battle for ratification which took place in the Virginia Convention are only partially disclosed in the pages of Elliot's "Debates." He was already coming to be regarded as one excellent in council as well as in formal discussion, and his democratic manners and personal popularity with all classes were a pronounced asset for any cause he chose to espouse. Marshall's part on the floor of the Convention was, of course, much less conspicuous than that of either Madison or Randolph, but in the second rank of the Constitution's defenders, including men like Corbin, Nicholas, and Pendleton, he stood foremost. His remarks were naturally shaped first of all to meet the immediate necessities of the occasion, but now and then they foreshadow views of a more enduring value. For example, he met a favorite contention of the opposition by saying that arguments based on the assumption that necessary powers would be abused were arguments against government in general and "a recommendation of anarchy." To Henry's despairing cry that the proposed system lacked checks, he replied: "What has become of his enthusiastic eulogium of the American spirit? We should find a check and control, when oppressed, from that source. In this country there is no exclusive personal stock of interest. The interest of the community is blended and inseparably connected with that of the individual.... When we consult the common good, we consult our own." And when Henry argued that a vigorous union was unnecessary because "we are separated by the sea from the powers of Europe," Marshall replied: "Sir, the sea makes them neighbors of us."

It is worthy of note that Marshall gave his greatest attention to the judiciary article as it appeared in the proposed Constitution. He pointed out that the principle of judicial independence was here better safeguarded than in the Constitution of Virginia. He stated in one breath the principle of judicial review and the doctrine of enumerated powers. If, said he, Congress "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; they would not consider such a law as coming within their jurisdiction. They would declare it void." * On the other hand, Marshall scoffed at the idea that the citizen of a State might bring an original action against another State in the Supreme Court. His dissections of Mason's and Henry's arguments frequently exhibit controversial skill of a high order. From Henry, indeed, Marshall drew a notable tribute to his talent, which was at the same time proof of his ability to keep friends with his enemies.

* J. Elliot, "Debates" (Edition of 1836), vol. III, p. 503. As to Bills of Rights, however, Marshall expressed the opinion that they were meant to be "merely recommendatory. Were it otherwise, ...many laws which are found convenient would be unconstitutional." Op. cit., vol. III, p. 509.

On the day the great Judiciary Act became law, Marshall attained his thirty-fourth year. His stride toward professional and political prominence was now rapid. At the same time his private interests were becoming more closely interwoven with his political principles and personal affiliations, and his talents were maturing. Hitherto his outlook upon life had been derived largely from older men, but his own individuality now began to assert itself; his groove in life was taking final shape.

The best description of Marshall shows him in the prime of his manhood a few months after his accession to the Supreme Bench. It appears in William Wirt's celebrated "Letters of the British Spy":

"The [Chief Justice] of the United States is, in his person, tall, meager, emaciated; his muscles relaxed, and his joints so loosely connected, as not only to disqualify him, apparently for any vigorous exertion of body, but to destroy everything like elegance and harmony in his air and movements. Indeed, in his whole appearance, and demeanour; dress, attitudes, gesture; sitting, standing or walking; he is as far removed from the idolized graces of Lord Chesterfield, as any other gentleman on earth. To continue the portrait: his head and face are small in proportion to his height; his complexion swarthy; the muscles of his face, being relaxed, give him the appearance of a man of fifty years of age, nor can he be much younger; his countenance has a faithful expression of great good humour and hilarity; while his black eyes that unerring index—possess an irradiating spirit, which proclaims the imperial powers of the mind that sits enthroned within."

The "British Spy" then describes Marshall's personality as an orator at the time when he was still practicing at the Virginia bar:

"His voice [the description continues] is dry and hard; his attitude, in his most effective orations, was often extremely awkward, as it was not unusual for him to stand with his left foot in advance, while all his gestures proceeded from his right arm, and consisted merely in a vehement, perpendicular swing of it from about the elevation of his head to the bar, behind which he was accustomed to stand.... [Nevertheless] if eloquence may be said to consist in 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, [then] this extraordinary man, 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.... He possesses one original, and, almost, supernatural 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. No matter what the question; though ten times more knotty than the gnarled oak, the lightning of heaven is not more rapid nor more resistless, than his astonishing penetration. Nor does the exercise of it seem to cost him an effort. On the contrary, it is as easy as vision. I am persuaded that his eyes do not fly over a landscape and take in its various objects with more promptitude and facility, than his mind embraces and analyzes the most complex subject.

"Possessing while at the bar this intellectual elevation, which enables him to look down and comprehend the whole ground at once, he determined immediately and without difficulty, on which side the question might be most advantageously approached and assailed. In a bad cause his art consisted in laying his premises so remotely from the point directly in debate, or else in terms so general and so spacious, that the hearer, seeing no consequence which could be drawn from them, was just as willing to admit them as not; but his premises once admitted, the demonstration, however distant, followed as certainly, as cogently, as inevitably, as any demonstration in Euclid.

"All his eloquence consists in the apparently deep self-conviction, and emphatic earnestness of his manner, the correspondent simplicity and energy of his style; the close and logical connexion of his thoughts; and the easy gradations by which he opens his lights on the attentive minds of his hearers.

"The audience are never permitted to pause for a moment. There is no stopping to weave garlands of flowers, to hang in festoons, around a favorite argument. On the contrary, every sentence is progressive; every idea sheds new light on the subject; the listener is kept perpetually in that sweetly pleasurable vibration, with which the mind of man always receives new truths; the dawn advances in easy but unremitting pace; the subject opens gradually on the view; until, rising in high relief, in all its native colors and proportions, the argument is consummated by the conviction of the delighted hearer."

What appeared to Marshall's friends as most likely in his early middle years to stand in the way of his advancement was his addiction to ease and to a somewhat excessive conviviality. But it is worth noting that the charge of conviviality was never repeated after he was appointed Chief Justice; and as to his unstudious habits, therein perhaps lay one of the causes contributing to his achievement. Both as attorney and as judge, he preferred the quest of broad, underlying principles, and, with plenty of time for recuperation from each exertion, he was able to bring to each successive task undiminished vitality and unclouded attention. What the author of the "Leviathan" remarks of himself may well be repeated of Marshall—that he made more use of his brains than of his bookshelves and that, if he had read as much as most men, he would have been as ignorant as they.

That Marshall was one of the leading members of his profession in Virginia, the most recent biographical researches unmistakably prove. "From 1790 until his election to Congress nine years later," Albert J. Beveridge * writes, "Marshall argued 113 cases decided by the court of appeals of Virginia.... He appeared during this time in practically every important cause heard and determined by the supreme tribunal of the State." Practically all this litigation concerned property rights, and much of it was exceedingly intricate. Marshall's biographer also points out the interesting fact that "whenever there was more than one attorney for the client who retained Marshall, the latter almost invariably was retained to make the closing argument." He was thus able to make good any lack of knowledge of the technical issues involved as well as to bring his great debating powers to bear with the best advantage.

* "The Life of John Marshall," vol. II, p. 177.

Meanwhile Marshall was also rising into political prominence. From the first a supporter of Washington's Administration, he was gradually thrust into the position of Federalist leader in Virginia. In 1794 he declined the post of Attorney-General, which Washington had offered him. In the following year he became involved in the acrimonious struggle over the Jay Treaty with Great Britain, and both in the Legislature and before meetings of citizens defended the treaty so aggressively that its opponents were finally forced to abandon their contention that it was unconstitutional and to content themselves with a simple denial that it was expedient. Early in 1796 Marshall made his first appearance before the Supreme Court, in the case of Ware vs. Hylton. The fame of his defense of "the British Treaty" during the previous year had preceded him, and his reception by the Federalist leaders from New York and New England was notably cordial. His argument before the Court, too, though it did not in the end prevail, added greatly to his reputation. "His head," said Rufus King, who heard the argument, "is one of the best organized of any one that I have known."

Either in 1793 or early in the following year, Marshall participated in a business transaction which, though it did not impart to his political and constitutional views their original bent, yet must have operated more or less to confirm his opinions. A syndicate composed of Marshall, one of his brothers, and two other gentlemen, purchased from the British heirs what remained of the great Fairfax estate in the Northern Neck, a tract "embracing over 160,000 acres of the best land in Virginia." By an Act passed during the Revolution, Virginia had decreed the confiscation of all lands held by British subjects; and though the State had never prosecuted the forfeiture of this particular estate, she was always threatening to do so. Marshall's investment thus came to occupy for many years a precarious legal footing which, it may be surmised, did not a little to keep alert his natural sympathy for all victims of legislative oppression. Moreover the business relation which he formed with Robert Morris in financing the investment brought him into personal contact for the first time with the interests behind Hamilton's financial program, the constitutionality of which he had already defended on the hustings.

It was due also to this business venture that Marshall was at last persuaded to break through his rule of declining office and to accept appointment in 1797, together with Pinckney and Gerry, on the famous "X.Y.Z. "mission to France. From this single year's employment he obtained nearly $20,000, which, says his biographer, "over and above his expenses," was "three times his annual earnings at the bar"; and the money came just in the nick of time to save the Fairfax investment, for Morris was now bankrupt and in jail. But not less important as a result of his services was the enhanced reputation which Marshall's correspondence with Talleyrand brought him. His return to Philadelphia was a popular triumph, and even Jefferson, temporarily discomfited by the "X.Y.Z." disclosures, found it discreet to go through the form of paying him court—whereby hangs a tale. Jefferson called at Marshall's tavern. Marshall was out. Jefferson thereupon left a card deploring how "unlucky" he had been. Commenting years afterwards upon the occurrence, Marshall remarked that this was one time at least when Jefferson came NEAR telling the truth.

Through the warm insistence of Washington, Marshall was finally persuaded in the spring of 1799 to stand as Federalist candidate for Congress in the Richmond district. The expression of his views at this time is significant. A correspondent of an Alexandria newspaper signing himself "Freeholder" put to him a number of questions intended to call forth Marshall's opinions on the issues of the day. In answering a query as to whether he favored an alliance with Great Britain, the candidate declared that the whole of his "politics respecting foreign nations" was "reducible to this single position.... Commercial intercourse with all, but political ties with none." But a more pressing issue on which the public wished information was that furnished by the Alien and Sedition laws, which Marshall had originally criticized on grounds both of expediency and of constitutionality. Now, however, he defended these measures on constitutional grounds, taking the latitudinarian position that "powers necessary for the attainment of all objects which are general in their nature, which interest all America,... would be naturally vested in the Government of the whole," but he declared himself strongly opposed to their renewal. At the same time he denounced the Virginia Resolutions as calculated "to sap the foundations of our Union."

The election was held late in April, under conditions which must have added greatly to popular interest. Following the custom in Virginia, the voter, instead of casting a ballot, merely declared his preference in the presence of the candidates, the election officials, and the assembled multitude. In the intensity of the struggle no voter, halt, lame, or blind, was overlooked; and a barrel of whisky near at hand lent further zest to the occasion. Time and again the vote in the district was a tie, and as a result frequent personal encounters took place between aroused partisans. Marshall's election by a narrow majority in a borough which was strongly pro-Jeffersonian was due, indeed, not to his principles but to his personal popularity and to the support which he received from Patrick Henry, the former Governor of the State.

The most notable event of his brief stay in Congress was his successful defense of President Adams's action in handing over to the British authorities, in conformity with the twenty-seventh article of the Jay treaty, Jonathan Robins, who was alleged to be a fugitive from justice. Adams's critics charged him with having usurped a judicial function. "The President," said Marshall in reply, "is sole organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence, the demand of a foreign nation can only be made on him. He possesses the whole executive power. He holds and directs the force of the nation. Of consequence, any act to be performed by the force of the nation is to be performed through him. He is charged to execute the laws. A treaty is declared to be a law. He must then execute a treaty where he, and he alone, possesses the means of executing it." This is one of the few speeches ever uttered on the floor of Congress which demonstrably made votes. Gallatin, who had been set to answer Marshall, threw up his brief; and the resolutions against the President were defeated by a House hostile to him.

Marshall's course in Congress was characterized throughout by independence of character, moderation of views, and level good sense, of which his various congressional activities afford abundant evidence. Though he had himself been one of the "X.Y.Z." mission, Marshall now warmly supported Adams's policy of renewing diplomatic relations with France. He took his political life in his hands to register a vote against the Sedition Act, a proposal to repeal which was brought before the House. He foiled a scheme which his party associates had devised, in view of the approaching presidential election, to transfer to a congressional committee the final authority in canvassing the electoral vote—a plan all too likely to precipitate civil war. His Federalist brethren of the extreme Hamiltonian type quite resented the frequency with which he was wont to kick over the party traces. "He is disposed," wrote Sedgwick, the Speaker, "to express great respect for the sovereign people and to quote their opinions as an evidence of truth," which "is of all things the most destructive of personal independence and of that weight of character which a great man ought to possess." *

* Letter from Sedgwick to King, May 11, 1800. "Life and Correspondence of Rufus King," vol. III, pp. 236-7.

Marshall had now come to be practically indispensable to the isolated President, at whose most earnest insistence he entered the Cabinet as Secretary of State, though he had previously declined to become Secretary of War. The presidential campaign was the engrossing interest of the year, and as it spread its "havoc of virulence" throughout the country, Federalists of both factions seemed to turn to Marshall in the hope that, by some miracle of conciliation, he could save the day. The hope proved groundless, however, and all that was ultimately left the party which had founded the Government was to choose a President from the rival leaders of the opposition. Of these Marshall preferred Burr, because, as he explained, he knew Jefferson's principles better. Besides having foreign prejudices, Mr. Jefferson, he continued, "appears to me to be a man who will embody himself with the House of Representatives, and by weakening the office of President, he will increase his personal power." Better political prophecy has, indeed, rarely been penned. Deferring nevertheless to Hamilton's insistence—and, as events were to prove, to his superior wisdom—Marshall kept aloof from the fight in the House, and his implacable foe was elected.

Marshall was already one of the eminent men of the country when Adams, without consulting him, nominated him for Chief Justice. He stood at the head of the Virginia bar; he was the most generally trusted leader of his party; he already had a national reputation as an interpreter of the Constitution. Yet his appointment as Chief Justice aroused criticism even among his party friends. Their doubt did not touch his intellectual attainments, but in their opinion his political moderation, his essential democracy, his personal amiability, all counted against him. "He is," wrote Sedgwick, "a man of very affectionate disposition, of great simplicity of manners, and honest and honorable in all his conduct. He is attached to pleasures, with convivial habits strongly fixed. He is indolent therefore. He has a strong attachment to popularity but is indisposed to sacrifice to it his integrity; hence he is disposed on all popular subjects to feel the public pulse, and hence results indecision and AN EXPRESSION of doubt." *

* Op. cit.

It was perhaps fortunate for the Federal Judiciary, of which he was now to take command, that John Marshall was on occasion "disposed... to feel the public pulse." A headstrong pilot might speedily have dashed his craft on the rocks; a timid, one would have abandoned his course; but Marshall did neither. The better answer to Sedgwick's fears was given in 1805 when John Randolph declared that Marshall's "real worth was never known until he was appointed Chief Justice." And Sedgwick is further confuted by the portraits of the Chief Justice, which, with all their diversity, are in accord on that stubborn chin, that firm placid mouth, that steady, benignant gaze, so capable of putting attorneys out of countenance when they had to face it overlong. Here are the lineaments of self-confidence unmarred by vanity, of dignity without condescension, of tenacity untouched by fanaticism, and above all, of an easy conscience and unruffled serenity. It required the lodestone of a great and thoroughly congenial responsibility to bring to light Marshall's real metal.

CHAPTER III. Jefferson's War On The Judiciary

By a singular coincidence Marshall took his seat as Chief Justice at the opening of the first term of Court in Washington, the new capital, on Wednesday, February 4, 1801. The most beautiful of capital cities was then little more than a swamp, athwart which ran a streak of mire named by solemn congressional enactment "Pennsylvania Avenue." At one end of this difficult thoroughfare stood the President's mansion—still in the hands of the builders but already sagging and leaking through the shrinkage of the green timber they had used—two or three partially constructed office-buildings, and a few private edifices and boarding houses. Marshall never removed his residence to Washington but occupied chambers in one or other of these buildings, in company with some of the associate justices. This arrangement was practicable owing to the brevity of the judicial term, which usually lasted little more than six weeks, and was almost necessitated by the unhealthful climate of the place. It may be conjectured that the life of John Marshall was prolonged for some years by the Act of 1802, which abolished the August term of court, for in the late summer and early autumn the place swarmed with mosquitoes and reeked with malaria.

The Capitol, which stood at the other end of Pennsylvania Avenue, was in 1801 even less near completion than the President's house; at this time the south wing rose scarcely twenty feet above its foundations. In the north wing, which was nearer completion, in a basement chamber, approached by a small hall opening on the eastern side of the Capitol and flanked by pillars carved to represent bundles of cornstalks with ears half opened at the top, Marshall held court for more than a third of a century and elaborated his great principles of constitutional law. This room, untouched by British vandalism in the invasion of 1814, was christened by the witty malignity of John Randolph, "the cave of Trophonius." *

* It should, however, be noted in the interest of accuracy, that the Court does not seem to have occupied its basement chamber during the years 1814 to 1818, while the Capitol was under repair.

It was in the Senate Chamber in this same north wing that Marshall administered the oath of office to Jefferson just one month after he himself had taken office. There have been in American history few more dramatic moments, few more significant, than this occasion when these two men confronted each other. They detested each other with a detestation rooted in the most essential differences of character and outlook. As good fortune arranged it, however, each came to occupy precisely that political station in which he could do his best work and from which he could best correct the bias of the other. Marshall's nationalism rescued American democracy from the vaguer horizons to which Jefferson's cosmopolitanism beckoned, and gave to it a secure abode with plenty of elbowroom. Jefferson's emphasis on the right of the contemporary majority to shape its own institutions prevented Marshall's constitutionalism from developing a privileged aristocracy. Marshall was finely loyal to principles accepted from others; Jefferson was speculative, experimental; the personalities of these two men did much to conserve essential values in the American Republic.

As Jefferson turned from his oath-taking to deliver his inaugural, Marshall must have listened with attentive ears for some hint of the attitude which the new Administration proposed to take with regard to the Federal Judiciary and especially with regard to the recent act increasing its numbers; but if so, he got nothing for his pains. The new President seemed particularly bent upon dispelling any idea that there was to be a political proscription. Let us, said he, "unite with one heart and one mind. Let us restore to social intercourse that harmony and affection without which liberty and even life itself are but dreary things.... Every difference of opinion is not a difference of principle. We have called by different names brethren of the same principle. We are all Republicans, we are all Federalists."

Notwithstanding the reassurance of these words, the atmosphere both of official Washington and of the country at large was electric with dangerous currents—dangerous especially to judges—and Jefferson was far too well known as an adept in the manipulation of political lightning to admit of much confidence that he would fail to turn these forces against his enemy when the opportune moment should arrive. The national courts were regarded with more distrust by the mass of Republicans than any other part of the hated system created by the once dominant Federalists. The reasons why this was so have already been indicated, but the most potent reason in 1801, because it was still freshest in mind, was the domineering part which the national judges had played in the enforcement of the Sedition Act. The terms of this illiberal measure made, and were meant to make, criticism of the party in power dangerous. The judges—Federalists to a man and bred, moreover, in a tradition which ill-distinguished the office of judge from that of prosecutor-felt little call to mitigate the lot of those who fell within the toils of the law under this Act. A shining mark for the Republican enemies of the Judiciary was Justice Samuel Chase of the Supreme Court. It had fallen to Chase's lot to preside successively at the trial of Thomas Cooper for sedition, at the second trial of John Fries for treason, and at the trial of James Thompson Callender at Richmond for sedition. On each of the two latter occasions the defendant's counsel, charging "oppressive conduct" on the part of the presiding judge, had thrown up their briefs and rushed from the court room. In 1800 there were few Republicans who did not regard Chase as "the bloody Jeffreys of America."

Local conditions also frequently accentuated the prevailing prejudice against the Judiciary. The people of Kentucky, afraid that their badly tangled land titles were to be passed upon by the new Federal Courts, were already insisting, when Jefferson took office, that the Act of the 13th of February creating these courts be repealed. In Maryland extensive and radical alterations of the judicial system of the State were pending. In Pennsylvania the situation was even more serious, for though the judges of the higher courts of that commonwealth were usually men of ability, education, and character, the inferior magistrates were frequently the very opposite. By the state constitution judges were removable for serious offenses by impeachment, and for lesser reasons by the Governor upon the address of two-thirds of both branches of the Legislature. So long, however, as the Federalists had remained in power neither remedy had been applied; but in 1799, when the Republicans had captured both the governorship and the Legislature, a much needed purgation of the lower courts had forthwith begun.

Unfortunately this is a sort of reform that grows by what it feeds upon. Having got rid of the less fit members of the local judiciary, the Republican leaders next turned their attention to some of their aggressive party foes on the Superior Bench. The most offensive of these was Alexander Addison, president of one of the Courts of Common Pleas of the State. He had started life as a Presbyterian preacher and had found it natural to add to his normal judicial duties the business of inculcating "sound morals and manners." * Addison had at once taken the Alien and Sedition laws under his wing, though their enforcement did not fall within his jurisdiction, and he found in the progress of the French Revolution numerous texts for partisan harangues to county juries. For some reason Addison's enemies decided to resort to impeachment rather than to removal by address; and, as a result, in January, 1803, the State Senate found him guilty of "misdemeanor," ordered his removal from office, and disqualified him for judicial office in Pennsylvania. Not long afterwards the House of Representatives granted without inquiry or discussion a petition to impeach three members of the Supreme Court of the State for having punished one Thomas Passmore for contempt of court without a jury trial.

* President Dickinson of Pennsylvania wrote the Chief Justice and judges of the Supreme Court of the Commonwealth, on October 8, 1785, that they ought not to content themselves merely with enforcing the law, but should also endeavor to "inculcate sound morals and manners." "Pennsylvania Archives," vol. X, pp. 623-24.

Jefferson entered office with his mind made up that the Act of the 18th of February should be repealed. * He lacked only a theory whereby he could reconcile this action with the Constitution, and that was soon forthcoming. According to the author of this theory, John Taylor of Caroline, a budding "Doctor Irrefragabilis" of the State Rights school, the proposed repeal raised two questions: first, whether Congress could abolish courts created by a previous act of Congress; and second, whether, with such courts abolished, their judges still retained office. Addressing himself to the first question, Taylor pointed out that the Act of the 13th of February had itself by instituting a new system abolished the then existing inferior courts. As to the second point, he wrote thus: "The Constitution declares that the judge shall hold his office during good behavior. Could it mean that he should hold office after it had been abolished? Could it mean that his tenure should be limited by behaving well in an office which did not exist?" A construction based on such absurdities, said he, "overturns the benefits of language and intellect."

* In this connection Mr. Beveridge draws my attention to Jefferson's letter to A. Stuart of April 5,1801. See the "Complete Works of Jefferson" (Washington, 1857), vol. IV, p. 393.

In his message of December 8, 1801, Jefferson gave the signal for the repeal of the obnoxious measure, and a month later Breckinridge of Kentucky introduced the necessary resolution in the Senate. In the prolonged debate which followed, the Republicans in both Senate and House rang the changes on Taylor's argument. The Federalists made a twofold answer. Some, accepting the Republican premise that the fate of the judge was necessarily involved with that of the court, denied in toto the validity of repeal. Gouverneur Morris, for instance, said: "You shall not take the man from the office but you may take the office from the man; you may not drown him, but you may sink his boat under him.... Is this not absurd?" Other Federalists, however, were ready to admit that courts of statutory origin could be abolished by statute but added that the operation of Congress's power in this connection was limited by the plain requirement of the Constitution that judges of the United States should hold office during good behavior. Hence, though a valid repeal of the Act in question would take from the judges the powers which they derived from its provisions, the repeal would still leave them judges of the United States until they died, resigned, or were legally removed in consequence of impeachment. The Federalist orators in general contended that the spirit of the Constitution confirmed its letter, and that its intention was clear that the national judges should pass finally upon the constitutionality of acts of Congress and should therefore be as secure as possible from legislative molestation.

The repeal of this Act was voted by a strict party majority and was reinforced by a provision postponing the next session of the Supreme Court until the following February. The Republican leaders evidently hoped that by that time all disposition to test the validity of the Repealing Act in the Court would have passed. But by this very precaution they implied a recognition of the doctrine of judicial review and the whole trend of the debate abundantly confirmed this implication. Breckinridge, Randolph, and Giles, it is true, scouted the claim made for the courts as "unheard-of doctrine," and as "mockery of the high powers of legislation"; but the rank and file of their followers, with the excesses of the French Revolution a recent memory and a "consolidated government" a recent fear, were not to be seduced from what they clearly regarded as established doctrine. Moreover, when it came to legislation concerning the Supreme Court, the majority of the Republicans again displayed genuine moderation, for, thrusting aside an obvious temptation to swamp that tribunal with additional judges of their own creed, they merely restored it to its original size under the Act of 1789.

Nevertheless the most significant aspect in the repeal of the Act of the 13th of February was the fact itself. The Republicans had not shown a more flagrant partisanism in effecting this repeal than had the Federalists in originally enacting the measure which was now at an end. Though the Federalists had sinned first, the fact nevertheless remained that in realizing their purpose the Republican majority had established a precedent which threatened to make of the lower Federal Judiciary the merest cat's-paw of party convenience. The attitude of the Republican leaders was even more menacing, for it touched the security of the Supreme Court itself in the enjoyment of its highest prerogative and so imperiled the unity of the nation. Beyond any doubt the moment was now at hand when the Court must prove to its supporters that it was still worth defending and to all that the Constitution had an authorized final interpreter. Marshall's first constitutional case was that of Marbury vs. Madison. * The facts of this famous litigation are simple. On March 2, 1801, William Marbury had been nominated by President Adams to the office of Justice of the Peace in the District of Columbia for five years; his nomination had been ratified by the Senate; his commission had been signed and sealed; but it had not yet been delivered when Jefferson took office. The new President ordered Madison, his Secretary of State, not to deliver the commission. Marbury then applied to the Supreme Court for a writ of mandamus to the Secretary of State under the supposed authorization of the thirteenth section of the Act of 1789, which empowered the Court to issue the writ "in cases warranted by the principles and usages of law to... persons holding office under the authority of the United States." The Court at first took jurisdiction of the case and issued a rule to the Secretary of State ordering him to show cause, but it ultimately dismissed the suit for want of jurisdiction on the ground that the thirteenth section was unconstitutional.

* 1 Cranch, 137. The following account of the case is drawn largely upon my "Doctrine of Judicial Review" (Princeton, 1914).

Such are the lawyer's facts of the case; it is the historian's facts about it which are today the interesting and instructive ones. Marshall, reversing the usual order of procedure, left the question of jurisdiction till the very last, and so created for himself an opportunity to lecture the President on his duty to obey the law and to deliver the commission. Marshall based his homily on the questionable assumption that the President had not the power to remove Marbury from office, for if he had this power the nondelivery of the document was of course immaterial. Marshall's position was equally questionable when he contended that the thirteenth section violated that clause of Article III of the Constitution which gives the Supreme Court original jurisdiction "in all cases affecting ambassadors, other public ministers, and consuls, and those in which a State shall be party." These words, urged the Chief Justice, must be given an exclusive sense "or they have no operation at all." This position is quite untenable, for even when given only their affirmative value these words still place the cases enumerated beyond the reach of Congress, and this may have been their only purpose. However, granting the Chief Justice his view of Article III, still we are not forced to challenge the validity of what Congress had done. For the view taken a little later by the Court was that it was not the intention of Congress by this language to confer any jurisdiction at all, but only to give the right to issue the writ where the jurisdiction already existed. What the Court should have done, allowing its view of Article III to have been correct, was to dismiss the case as not falling within the contemplation of section thirteen, and not on the ground of the unconstitutionality of that section.

Marshall's opinion in Marbury vs. Madison was a political coup of the first magnitude, and by it he achieved half a dozen objects, some of the greatest importance. In the first place, while avoiding a direct collision with the executive power, he stigmatized his enemy Jefferson as a violator of the laws which as President he was sworn to support. Again, he evaded the perilous responsibility of passing upon the validity of the recent Repeal Act in quo warranto proceedings, such as were then being broached. * For if the Supreme Court could not issue the writ of mandamus in suits begun in it by individuals, neither could it issue the writ of quo warranto in such suits. Yet again Marshall scored in exhibiting the Court in the edifying and reassuring light of declining, even from the hands of Congress, jurisdiction to which it was not entitled by the Constitution, an attitude of self-restraint which emphasized tremendously the Court's claim to the function of judicial review, now first definitely registered in deliberate judicial decision.

* See Benton's "Abridgment of the Debates of Congress," vol. II, pp. 665-68. Marshall expressed the opinion in private that the repealing act was "operative in depriving the judges of all power derived from the act repealed" but not their office, "which is a mere capacity, without new appointment, to receive and exercise any new judicial power which the legislature may confer." Quoted by W. S. Carpenter in "American Political Science Review," vol. IX, p. 528.

At this point in Marshall's handling of the case the consummate debater came to the assistance of the political strategist. Every one of his arguments in this opinion in support of judicial review will be found anticipated in the debate on the Repeal Act. What Marshall did was to gather these arguments together, winnow them of their trivialities, inconsistencies, and irrelevancies, and compress the residuum into a compact presentation of the case which marches to its conclusion with all the precision of a demonstration from Euclid.

The salient passages of this part of his opinion are the following:

"[In the United States] the powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed in writing if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on which they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested: that the Constitution controls any legislative act repugnant to it; or, that the legislature may alter the Constitution by an ordinary act.

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