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JOHN  MARSHALL 
AND  THE  CONSTITUTION 


ABRAHAM   LINCOLN   EDITION 

VOLUME   16 

THE   CHRONICLES 

OF  AMERICA  SERIES 

ALLEN  JOHNSON 

EDITOR 

GERHARD  R.  LOMER 

CHARLES  W.  JEFFERYS 

ASSISTANT  EDITORS 


JOHN  iiALL'" 

AND  TH1  STITUTION 


• 

Ei 


bsrfaildu'I    .in;0!nl  J- 

•.-.., 


EN:   YALE    UNIVBR 

GLASGOW.    BROOK    4    CO. 

VIPHREY    MILFOHD 
DNIVEfiSITY    PRESS 

1919 


Engraving  by  A.  B.  Durand,  after  a  painting  by  H.  Inman.    Published 
in  The  National  Portrait  Gallery  of  Dieting uishea  Americans. 


JOHN  MARSHALL 
AND  THE  CONSTITUTION 

A  CHRONICLE  OF 

THE  SUPREME   COURT 

BY  EDWARD  S.  CORWIN 


NEW   HAVEN:   YALE   UNIVERSITY   PRESS 

TORONTO:    GLASGOW.    BROOK    &    CO. 

LONDON:    HUMPHREY    MILFORD 

OXFORD     UNIVERSITY    PRESS 

1919 


Copyright,  1919,  by  Yale  University  Press 


CONTENTS 

I.     THE  ESTABLISHMENT  OF  THE  NATIONAL 

JUDICIARY  Page     i 

II.     MARSHALL'S  EARLY  YEARS  "  25 

HI.     JEFFERSON'S  WAR  ON  THE  JUDICIARY        "  53 

IV.    THE  TRIAL  OF  AARON  BURR  "  86 

V.    THE  TENETS  OF  NATIONALISM 

VI.    THE  SANCTITY  OF  CONTRACTS  "  147 

VII.     THE  MENACE  OF  STATE  RIGHTS  "  173 

VIII.     AMONG  FRIENDS  AND  NEIGHBORS  "  198 

IX.     EPILOGUE  "  224 

BIBLIOGRAPHICAL  NOTE  "  233 

INDEX  "  237 


vn 


ILLUSTRATIONS 

JOHN   MARSHALL 

Engraving  by  A.  B.  Durand,  after  a  painting  by 
H.  Inman.  Published  in  The  National  Portrait 
Gallery  of  Distinguished  Americans.  Frontispiece 

OLIVER  ELLSWORTH 

Engraving  by  E.  McKenzie,  after  a  painting  by 
J.  Herring.  Published  in  The  National  Portrait 
Gallery  of  Distinguished  Americans.  Facing  page  20 

JOHN  MARSHALL'S  HOUSE  IN  RICHMOND 

Photograph  by  H.  P.  Cook,  Richmond,  Virginia.       "         "        $2 

JOSEPH  STORY 

Engraving,  after  a  crayon  drawing  by  his  son, 

William  Wetmore  Story,  the  poet  and  sculptor.  110 

ROBERT  R.   LIVINGSTON 

Engraving  by  E.  McKenzie,  after  a  painting  by 

John  Vanderlyn.  134 

JAMES  KENT 

Painting  by  Rembrandt  Peale.  In  the  office  of 
the  Corporation  Counsel,  City  Hall,  New  York. 
Owned  by  the  Corporation.  Reproduced  by 
courtesy  of  the  Municipal  Art  Commission  of  the 
City  of  New  York.  16* 

JOHN   McLEAN 

Painting  by  Thomas  Sully.  In  the  Pennsylvania 
Academy  of  the  Fine  Arts,  Philadelphia. 


JOHN  MARSHALL  AND  THE 
CONSTITUTION 


CHAPTER  I 

THE  ESTABLISHMENT  OF  THE  NATIONAL  JUDICIARY 

THE  monarch  of  ancient  times  mingled  the  func 
tions  of  priest  and  judge.  It  is  therefore  not  alto 
gether  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  in 
violability  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  Judi 
ciary  of  the  United  States,  though  numerically  not 


£      MARSHALL  AND  THE  CONSTITUTION 

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  au 
thority  by  the  machinery  of  appeal;  it  is  "ani 
mated  with  a  common  purpose";  its  members  are 
"panoplied"  with  what  is  practically  a  life  tenure 
of  their  posts;  and  it  is  "armed  with  the  tremen 
dous  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  to 
day  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  re 
spective  causes  and  amid  circumstances  of  great  dis 
couragement.  Both  worked  through  and  for  great 
institutions  which  preceded  them  and  which  have 
survived  them.  And,  as  the  achievements  of  Hilde 
brand  cannot  be  justly  appreciated  without  some 
knowledge  of  the  ecclesiastical  system  which  he  did 
so  much  to  develop,  neither  can  the  career  of  John 


THE  NATIONAL  JUDICIARY  3 

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  his 
torical  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  Confeder 
ation  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  con 
sequence  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  Madi 
son  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  ques 
tion.  Whence  were  to  come  the  forces  for  mili 
tary  operations  against  recalcitrant  States?  From 
sister  States  which  had  themselves  neglected  their 


4      MARSHALL  AND  THE  CONSTITUTION 

constitutional  duties  on  various  occasions?  The 
history  of  the  German  Empire  has  demonstrated 
that  the  principle  of  state  coercion  is  entirely  feasi 
ble  when  a  single  powerful  State  dominates  the 
rest  of  the  confederation.  But  the  Confederation 
of  1781  possessed  no  such  giant  member;  it  ap 
proximated  a  union  of  equals,  and  in  theory  it  was 
entirely  such.1 

In  the  Federal  Convention  of  1787  the  idea  of 
state  coercion  required  little  discussion;  for  the 

1  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  what 
ever.  "  It  Vas  also  authorized  to  appoint "  courts  for  the  trial  of  pira 
cies  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. 


THE  NATIONAL  JUDICIARY  5 

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  coer 
cion  of  arms?  There  is  no  other  possible  alterna 
tive.  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  Ells 
worth  stated  correctly  the  controlling  principle  of 
the  new  government:  it  was  to  operate  upon  in 
dividuals  through  laws  interpreted  and  enforced 
by  its  own  courts 

1     A  Federal  Judiciary  was  provided  for  in  every 

Iplan  offered  on  the  floor  of  the  Federal  Convention. 

There  was  also  a  fairly  general  agreement  among  the 


6      MARSHALL  AND  THE  CONSTITUTION 

members  on  the  question  of  "judicial  independ 
ence."  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  Repre 
sentatives  was  proposed  late  in  the  Convention 
by  Dickinson  of  Delaware,  but  the  suggestion  re 
ceived  the  vote  of  only  one  State.  In  the  end  it 
I  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  disagree 
ment  among  its  members.  All  believed  that 
there  must  be  a  national  Supreme  Court  to  im 
press  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* 


THE  NATIONAL  JUDICIARY  7 

and  argued  that  a  right  of  appeal  to  the  supreme 
national  tribunal  would  be  quite  sufficient  "to 
secure  the  national  rights  and  uniformity  of  judg 
ment."  But  Madison  pointed  out  that  such  an 
arrangement  would  cause  appeals  to  be  multi 
plied  most  oppressively  and  that,  furthermore,  it 
would  provide  no  remedy  for  improper  verdicts  re 
sulting  from  local  prejudices.  A  compromise  was 
reached  by  leaving  the  question  to  the  discretion  of 
Congress.  The  champions  of  local  liberties,  how 
ever,  both  at  Philadelphia  and  in  the  state  conven 
tions  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  relaf  j™1  to  tpp  Constitution 
as  a  governing  instrument.  Though  the  idea  that 
courts  were  entitled  to  pronounce  on  the  constitu 
tionality  of  legislative  acts  had  received  counte 
nance  in  a  few  dicta  in  some  of  the  States  and 


8      MARSHALL  AND  THE  CONSTITUTION 

perhaps  in  one  or  two  decisions,  this  idea  was  still 
at  best  in  1787  but  the  germ  of  a  possible  institu- 

!"on.  It  is  not  surprising,  therefore,  that  no  such 
octrine  found  place  in  the  resolutions  of  the  Vir- 
&mia  plan  which  came  before  the  Convention.  By 
the  sixth  resolution  of  this  plan  the  national  legis 
lature  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  Execu 
tive,  "with  authority  to  examine  every  act  of  the 
national  legislature  before  it  shall  operate,  and 
«very  act  of  a  particular  legislature  before  a  nega 
tive  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  recog 
nition,  if  not  from  all  its  members,  certainly  from 
the  great  majority  of  them :  first,  tKat  the  Consti- 
^Lijiirm  fq  ]p\y,  in  the  sense  of  being  enforcibleJjy 
^courts;  secondly,  tha^it  is  supreme  law,  with  which 
ordinary  legislation  must  be  in  harmony  to  be  valid; 
and  thirdly  —  a  principle  deducible  from  the  doc 
trine  of  the  separation  of  powers  —  that,  while  the 


THE  NATIONAL  JUDICIARY 

function  of  making  new  law  b^rm^  to  thf 
branch  of  thp  Gm^rnmQnij  that  of  ^y 


jngjthe_standing  law,  of  whirh  the  Constitution 
woukTbe  part  and  parcel,  belongs  to 


The  final  disposition  of  the  question  of  insuring  the 
conformity  of  ordinary  legislation  to  the  Constitu 
tion  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  rati 
fied  under  the  authority  of  the  United  States,  jshajl 
be  the  supreme  law  of  the  respective  States,  and 
the  judiciaries  of  the.  severaLStates  shall  be  bound 
thereby  in  their  decisions  ,_any  thing  in  the  respec- 
Jjyp  laws,  of  the~individ«al  -States__to.  JJbe  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/'1 
Then,  on  the  27th  of  August,  it  was-  agreed  that 

1  Article  VI.  paragraph  2. 


10    MARSHALL  AND  THE  CONSTITUTION 

I" the  jurisdiction  of  the  Supreme  Court"  should 
"extend  to  all  cases  arising  under  the  laws  passed 
by  the  Legislature  of  the  United  States, "  whether, 
ithat  is,  such  laws  should  be  in  pursuance  of  the 
Constitution  or  not.  Tlie.  foundation  was  thus 
laid  for  the  Supreme  Court  to  claim  the  right  to 
review  any  state  decision  challenging  on  consti 
tutional  grounds  the  validity  of  any  act  of  Con 
gress.  Presently  this  foundation  was  broadened 
by  the  substitution  of  the.  phrase  "judicial  power 
of  the  United  States"  for  the  phrase  "jurisdic 
tion  of  the  Supreme  Court,"  and  also  by  the  in 
sertion  of  the  words  "this  Constitution"  and 
"the"  before  the  word  "laws"  in  what  ultimate 
ly  became  Article  III  of  the  Constitution.  The 
implications  of  the  phraseology  of  this  part  of  the 
Constitution  are  therefore  significant: 

Section  I.  The  judicial  power  of  the  United  States 
shall  be  vested  in  one  Supreme  Court,  and  in  such  in 
ferior  courts  as  the  Congress  may  from  time  to  time  or 
dain  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  sh&H  extend  to  all 
cases  in  law  and  equity  arising  under  this  Constitution, 


THE  NATIONAL  JUDICIARY  11 

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  con 
suls;  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,  be 
tween  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  trea 
ties  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  ^ 
tthe  constitutionality  of  acts  of  Congress.     The~ 
ivailable  evidence  strictly  contemporaneous 
le  framing  and  ratification  of  the  Constituti 
shows  us  seventeen  of  the  fifty-five  members  of 

mvention  asserting  the  existence  of  this  preroga 
tive  in  unmistakable  terms  and  only  three  using 
language  that  can  be  construed  to  the  contrary, 
[ore  striking  than  that,  however,  is  the  fact  that 


iT 


12    MARSHALL  AND  THE  CONSTITUTION 

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  Constitu 
tion  its  final  form.  And  these  were  precisely  the 
members  who  expressed  themselves  on  all  the  in 
teresting  and  vital  subjects  before  the  Convention, 
because  they  were  its  statesmen  and  articulate 
members.1 

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  ob 
scure  :  no  part  came  from  the  hands  of  the  fram 
es  in  more  fragmentary  shape  or  left  more  to  the 
iiscretion  of  Congress  and  the  Court. 

Congress  is  thus  placed  under  constitutional  obli- 
ion  to  establish  one  Supreme  Court,  but  the  size 
at  Court  is  for  Congress  itself  to  determine,  as 

ell  as  whether  there  shall  be  any  inferior  Federal 

1  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. 


THE  NATIONAL  JUDICIARY  13 

Courts  at  all.  What,  it  may  be  asked,  is  the  sig-i 
nificance  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  Con 
stitution  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  "appel 
late  jurisdiction"  in  all  others  —  subject,  however, 
to  "such  exceptions  and  under  such  regulations  as 
the  Congress  shall  make. "  Finally,  the  whole  ques 
tion  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"1  its  own  powers  and 
those  of  the  other  departments  of  the  Government. 

Almost  the  first  official  act  of  the  Senate  of  t li< A 
United  States,  after  it  had  perfected  its  own  organ-W 
ization,  was  the  appointment  of  a  committee  "to 
bring  in  a  bill  for  organizing  the  judiciary  of  the 
United  States. "   This  committee  consisted  of  eight 

1  Article  I,  section  vm,  18. 


•° 


14    MARSHALL  AND  THE  CONSTITUTION 

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  Sep 
tember  24, 1789,  the  essential  features  of  which  still 
remain  after  130  years  in  full  force  and  effect. 

This  famous  measure  created  a  chief  justice 
ship  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,  Ken 
tucky  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 ;  sec 
ondly,  controversies  between  citizens  of  different 
States1;  lastly,  cases  brought  originally  under  a 
state  law  and  in  a  State  Court  but  finally  coming 
involve  some  claim  of  right  based  on  the  Na- 
ional  Constitution,  laws,  or  treaties.  For  these 
the  twenty-fifth  section  of  the  Act  provided  that, 


1  Where  the  national  jurisdiction  vf&s  extended  to  these  in  the 
interest  of  providing  an  impartial  tribunal,  it  was  given  to  the  Circuit 
Courts. 


THE  NATIONAL  JUDICIARY  15 

where  the  decision  of  the  highest  State  Court  com 
petent  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  in 
ferior  Federal  Judiciary,  which  they  pictured  as  a 
sort  of  Gargantua  ready  at  any  moment "  to  swallow 
up  the  state  courts." 

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  JohiLjay  of  New 
York  as  Chief  Justice,  and  of  John  Rutledge  of 
South  Carolina,  William^ttshing  of  Massachusetts, 
JoluL-Blajr  of  Virginia,  JapesJJilson  of  Pennsyl- 
.  vania,  and  Jame^Jpedell  of  North  Carolina  as  Asso- 
ciate  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  re 
view.  Jay  was  one  of  the  authors  of  the  Federalist, 


16    MARSHALL  AND  THE  CONSTITUTION 

had  achieved  a  great  diplomatic  reputation  in  the  ne 
gotiations  of  1782,  and  possessed  the  political  back- 
v£*  ing  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  1793  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  cir 
cuits.  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. 


THE  NATIONAL  JUDICIARY  M? 
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  Caro- 
linas,  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  com 
forts.  Mrs.  Cushing  always  accompanied  him, 
and  generally  read  aloud  while  riding.  His  faith 
ful  servant  Prince,  a  jet-black  negro,  whose  par 
ents  had  been  slaves  in  the  family  and  who  loved 
his  master  with  unbounded  affection,  followed."1 
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  S 
not  so  unenviable.  (Ix 

The  pioneer  work  of  the  Supreme  Court  in  COH^ 
stitutional  interpretation  has,  for  all  but  special 

1  Flanders,  The  Lives  and  Times  of  the  Chief -Justices  of  the  Supreme 
Court,  vol.  ii.  p.  38. 

2 


18     MARSHALL  AND  THE  CONSTITUTION 

students,  fallen  into  something  like  obscurity  owing 
to  the  luster  of  Marshall's  achievements  and  to  his 
habit  of  decioling  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 
Chjsholm  fls.  Georgia*1  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  adop 
tion  of  the  Eleventh  Amendment,  its  Jin  deriving 
premise  that,  "  as  to  the  purposes  of  the  Union,  the 
States  arc  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.2  Meantime  the  Supreme  Court  was 
advancing,  though  with  notable  caution,  toward 
an  assertion  of  the  right  to  pass  upon  the  constitu 
tionality  of  acts  of  Congress.  Thus  in  1792,  Con 
gress  ordered  the  judges  while  on  circuit  to  pass 
upon  pension  claims,  their  determinations  to  be 
re  viewable  by  the  Secretary  of  the  Treasury.  In 
protests  which  they  filed  with  the  President,  the 

'  2  Dallas,  419.          .  >  Ware  vs.  Hylton,  3  ib.t  199. 


THE  NATIONAL  JUDICIARY  19 

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.  x  Four  years  later,  in  the  Carriage 
Tax  case,2  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. 

The  great  lack  of  the  Federal  Judiciary  dur 
ing  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 

'  See  2  Dallas,  409.  3  Hylton  vs.  United  States,  3  Dallas,  171. 


' 


20    MARSHALL  AND  THE  CONSTITUTION 

health,  and  partly  because,  even  before  he  re 
signed  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  al 
tar  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  Mar 
shall  that  he  recognized  this  fact  perfectly  and  with 
mingled  boldness  and  caution  grasped  the  leader 
ship  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 


OL1 VER  KLLSWOR TH 


Engraving  by  E.  McKenzie,  after  a  painting  by  J.  Herring.    Published 
in  The  National  Portrait  Gallery  of  Distinguished  Americans. 


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'  'A  ,\\  v  m 


THE  NATIONAL  JUDICIARY  21 

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  againsfe  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  attri 
tion  between  the  new  system  and  a  suspicious, 
excited  populace. 

Then,  to  make  bad  matters  worse,  Congress  in 
1798  passed  the  Sedition  Act.  Had  political  discre 
tion  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  en 
forced  the  Sedition  Act,  often  with  gratuitous  rigor, 


22    MARSHALL  AND  THE  CONSTITUTION 

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!1 

A  few  months  later  Jefferson  was  elected  Presi 
dent,  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  13,  1801,  the  number  of  asso 
ciate  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  num 
ber  of  district  judgeships  was  enlarged  by  five, 
and  six  Circuit  Courts  were  created  whicli  fur 
nished  places  for  sixteen  more  new  judges.  When 
John  Adams,  the  retiring  President,  proceeded  with 
the  aid  of  the  Federalist  majority  in  the  Senate 

1  See  Herman  t'.«.  Ames,  State  Documents  on  Federal  Relations,  Nos. 
7-15. 


THE  NATIONAL  JUDICIARY  23 

and  of  his  Secretary  of  State,  John  Marshall,  to 
fill  up  the  new  posts  with  the  so-called  "midnight 
judges,  "T  the  rage  and  consternation  of  the  Repub 
lican  leaders  broke  all  bounds.  The  Federal  Judi 
ciary,  declared  John  Randolph,  had  become  "an 
hospital  of  decayed  politicians. "  Others  pictured 
the  country  as  reduced,  under  the  weight  of  "super 
numerary  judges  "  and  hosts  of  attendant  lawyers, 
to  the  condition  of  Egypt  under  the  Mamelukes. 
Jefferson's  concern  went  deeper.  "They  have  re 
tired  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  Fed 
eral  Judiciary,  as  a  coordinate  and  independent 
branch  of  the  Government,  was  confronted  with  a 
fight  for  life! 

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 

1  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. 


24    MARSHALL  AND  THE  CONSTITUTION 

energy,  weight,  and  dignity  which  were  essential 
to  its  affording  due  support  to  the  National  Gov 
ernment,  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  pre 
viously  consulting  him,  on  January  20,  1801,  sent 
his  name  to  the  Senate.  A  week  later  the  Senate 
ratified  the  nomination,  and  on  th§  4th  of  Febru 
ary  Marshall  accepted  the  appointment.  The  task 
despaired  of  by  Jay  and  abandoned  by  Ellsworth 
was  at  last  in  capable  hands. 


i 


CHAPTER   II 


MARSHALL'S  EARLY  YEARS 


JOHN  MARSHALL  was  born  on  September  24.  1755, 
in  Fauquier  County,  Virginia.  Though  like  Jeffer-  V  ) 
son  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  fur 
nishings  of  the  boy's  life  were  extremely  primitive, 
a  fact  which  Marshall  used  later  to  recall  by  relat 
ing  that  his  mother  and  sisters  used  thorns  for  but 
tons  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 


25 


26    MARSHALL  AND  THE  CONSTITUTION 

not  lacking  for  all  that.  As  the  first  of  fifteen  chil 
dren,  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  Vir 
ginia,  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  Virgin 
ian  was  deep  and  abiding.  And  it  goes  without 
saying  that  the  horizons  suggested  by  the  fame  of 


MARSHALL'S  EARLY  YEARS  27 

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  constitu 
tion;  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  health- 
giving  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  "com 
mitted  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 


28    MARSHALL  AND  THE  CONSTITUTION 

influence  of  the  great  moralist  must  have  penetrated 
far  deeper.  The  Essay  on  Man  filled,  we  may  sur 
mise,  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  uni 
verse  as  a  species  of  constitutional  monarchy  gov 
erned  "not  by  partial  but  by  general  laws";  in 
"man's  imperial  race"  this  beneficent  sway  ex 
presses  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  pri 
vate  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  compla 
cent  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  taugkt  him  the  rudiments 
of  Latin  and  introduced  him  to  Livy,  Cicero,  and 
Horace.  A  little  later  the  great  debate  over  Amer 
ican  rights  burst  forth  and  became  with  Marshall, 


MARSHALL'S  EARLY  YEARS  29 

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  Asie  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  associ 
ated  with  brave  men  from  different  States,  who  were 
risking  life  and  everything  valuable  in  a  common 


30    MARSHALL  AND  THE  CONSTITUTION 

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  dis 
played  notable  talent  in  adjusting  differences  be 
tween  officers  and  men  and  also  became  acquainted 
with  Washington's  brilliant  young  secretary,  Alex 
ander  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  Gov 
ernor  of  the  State  and  who  had  obtained  the  abo 
lition  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  oppor 
tunity  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 


MARSHALL'S  EARLY  YEARS  31 

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  be 
gan  the  practice  of  his  profession.  The  new  capital 
was  still  hardly  more  than  an  outpost  on  the  fron 
tier,  and  conditions  of  living  were  rude  in  the  ex 
treme.  "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,  gin 
seng,  snakeroot,  and  "dried  rattlesnakes  —  used 
to  make  a  viper  broth  for  consumptive  patients. " 
"There  was  but  one  church  building  and  attend 
ance  was  scanty  and  infrequent."  Not  so,  how 
ever,  of  Farmicola's  tavern,  whither  card  playing, 
drinking,  and  ribaldry  drew  crowds,  especially 
when  the  legislature  was  in  session.1 

1  Beveridge,  vol.  i,  pp.  171-73. 


32    MARSHALL  AND  THE  CONSTITUTION 

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  sur 
vives  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  con 
sideration,  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 


JOHN  MARSHALL'S  HOUSE  IN  RICHMOND 
Photograph  by  H.  P.  Cook,  Richmond,  Virginia. 


Bar. 

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MARSHALL'S  EARLY  YEARS  33 

just  as  important,  his  modesty  made  recognition  by 
his  elders  easy  and  gracious. 

From  1782  until  the  adoption  of  the  Constitu 
tion,  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  legisla 
tures.  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  de 
manding  measures  of  relief  which  threatened  the 


34    MARSHALL  AND  THE  CONSTITUTION 

7'!     .  I 

security  of  contracts.  "Laws  suspending  the  col 
lection  of  debts,  insolvent  laws,  instalment  laws, 
tender  laws,  and  other  expedients  of  a  like  na 
ture,  were  familiarly  adopted  or  openly  and  boldly 
vindicated./*  .-• 

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  constitu 
tional  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  com 
rades  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  ren 
dered  the  pretensions  of  state  sovereignty  ridicu 
lous  in  his  eyes.J  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 


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


MARSHALL'S  EARLY  YEARS  35 

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  poli 
tics  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  pow 
ers  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  re 
vealed,  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  Rich 
mond:  "  Mr.  Chairman,  I  conceive  that  the  object 
of  the  discussion  now  before  us  is  whether  democ 
racy  or  despotism  be  most  eligible.  .  .  .  The 


36    MARSHALL  AND  THE  CONSTITUTION 

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  observ 
ance  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  Mar 
shall  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  par 
tially  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.  •  Marsh  all's  part  on  the  floor  of  the 
Convention  was,  of  course,  much  less  conspicuous 


MARSHALL'S  EARLY  YEARS  37 

than  that  of  either  Madison  or  Randolph,  but  in 
the  second  rank  of  the  Constitution's  defenders,  in 
cluding  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  01  the  opposition 
by  saying  that  arguments  based  on  the  assump 
tion  that  necessary  powers  would  be  abused  were 
arguments  against  government  in  general  and  "a 
recommendation  of  anarchy. "  To  Henry's  despair 
ing  cry  that  the  proposed  system  lacked  checks, 
he  replied:  "What  has  become  of  his  enthusi 
astic  eulogium  of  the  American  spirit?  We  should 
find  a  check  and  control,  when  oppressed,  from 
that  source.  In  this  country  there  is  no  exclu 
sive  personal  stock  of  interest.  The  interest  of 
the  community  is  blended  and  inseparably  con 
nected  with  that  of  the  individual.  .  .  .  When 
^e  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,"  Mar 
shall  replied:  "Sir,  the  sea  makes  them  neighbors 


38    MARSHALL  AND  THE  CONSTITUTION 

(  It  is  worthy  of  note  that  Marshall  gave  his  great 
est  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  infringe 
ment  of  the  Constitution  which  they  are  to  guard ; 
they  would  not  consider  such  a  law  as  coming  with 
in  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  or 
der.  From  Henry,  indeed,  Marshall  drew  a  nota 
ble  tribute  to  his  talent,  which  was  at  the  same 
time  proof  of  his  ability  to  keep  friends  with  his 
enemies. 

1  J.  Elliot,  Debates  (Edition  of  1836),  vol.  in,  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. 
in,  p.  509. 


MARSHALL'S  EARLY  YEARS  39 

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  de 
stroy  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  appear 
ance  of  a  man  of  fifty  years  of  age,  nor  can  he  be  much 
younger;  his  countenance  has  a  faithful  expression  of 


40    MARSHALL  AND  THE  CONSTITUTION 

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  ex 
tremely  awkward,  as  it  was  not  unusual  for  him  to  stand 
with  his  left  foot  in  advance,  while  all  his  gestures  pro 
ceeded  from  his  right  arm,  and  consisted  merely  in  a 
vehement,  perpendicular  swing  of  it  from  about  the  ele 
vation  of  his  head  to  the  bar,  behind  which  he  was  ac 
customed  to  stand.  .  .  .  [Nevertheless]  if  eloquence 
may  be  said  to  consist  in  the  power  of  seizing  the  atten 
tion  with  irresistible  force,  and  never  permitting  it  to 
elude  the  grasp  until  the  hearer  has  received  the  convic 
tion  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  orna 
ments  of  an  orator,  deserves  to  be  considered  as  one  of 
the  most  eloquent  men  in  the  world.  .  „  .  He  pos 
sesses  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  ques 
tion;  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 


MARSHALL'S  EARLY  YEARS  41 

the  exercise  of  it  seem  to  cost  him  an  effort.  On  the  con 
trary,  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,  fol 
lowed  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  iMpthousjits;  and  the  easy 
gradations  by  which  he  opensjjs  lighlson  the  attentive 
minds  of  his  hearers.  £  ^\ 

The  audience  are  never  permitted  to  pRise  for  a  mo 
ment.  There  is  no  stopping  to  weave  garlands  of  flow 
ers,  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  sub 
ject  opens  gradually  on  the  view;  until,  rising  in  high 


42    MARSHALL  AND  THE  CONSTITUTION 

relief,  in  all  its  native  colors  and  proportions,  the  argu 
ment  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  Jus 
tice;  and  as  to  his  unstudious  habits,  therein  per 
haps  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  atten 
tion.  What  the  author  of  the  Leviathan  remarks 
of  himself  may  well  be  repeated  of  Marshall  - 
that  he  m^e  more  use  of  his  brains  than  of  his 
bookshelve?  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  bio 
graphical  researches  unmistakably  prove.  "From 
1790  until  his  election  to  Congress  nine  years 


MARSHALL'S  EARLY  YEARS  43 

later,"  Albert  J.  Beveridge1  writes,  "Marshall  ar 
gued  113  cases  decided  by  the  court  of  appeals  of 
Virginia.  ...  He  appeared  during  this  time  in 
practically  every  important  £aiise  heard  and  de 
termined  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  interest 
ing  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. 

Meanwhile  Marshall  was  also  rising  into  political 
prominence.  From  the  first  a  supporter  of  Wash 
ington'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  follow 
ing  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 

1  The  Life  of  John  Marshall,  vol.  n,  p.  177. 


44    MARSHALL  AND  THE  CONSTITUTION 

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.  Ttie  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  no 
tably  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  organ 
ized  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  opin 
ions.  A  syndicate  composed  of  Marshall,  one  of  his 
brothers,  and  two  other  gentlemen,  purchased  from 
the  British  heirs  what  remained  of  the  great  Fair 
fax  estate  in  the  Northern  Neck,  a  tract  "embrac 
ing  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 


MARSHALL'S  EARLY  YEARS  45 

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  appoint 
ment  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  en 
hanced  reputation  which  Marshall's  correspondence 


46     MARSHALL  AND  THE  CONSTITUTION 

with  Talleyrand  brought  him.  His  return  to  Phila 
delphia  was  a  popular  triumph,  and  even  Jeffer 
son,  temporarily  discomfited  by  the  "X.Y.Z."  dis 
closures,  found  it  discreet  to  go  through  the  form 
of  paying  him  court  —  whereby  hangs  a  tale.  Jef 
ferson  called  at  Marshall's  tavern.  Marshall  was 
out.  Jefferson  thereupon  left  a  card  deploring  how 
lucky  "  he  had  been.  Commenting  years  after 
wards  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  "Free 
holder"  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  candi 
date  declared  that  the  whole  of  his  "politics  respect 
ing  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 


MARSHALL'S  EARLY  YEARS  47 

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  consti 
tutional  grounds,  taking  the  latitudinarian  posi 
tion  that  "powers  necessary  for  the  attainment 
of  all  objects  which  are  general  in  their  nature, 
which  interest  all  America  .  .  .  would  be  natu 
rally  vested  in  the  Government  of  the  whole,"  but 
he  declared  himself  strongly  opposed  to  their  re 
newal.  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  con 
ditions  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 


48    MARSHAL!,  AND  THE  CONSTITUTION 

pro-Jeffersonian  was  due,  indeed,  not  to  his  prin 
ciples  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  au 
thorities,  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  rela 
tions,  and  its  sole  representative  with  foreign  na 
tions.  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  ex 
ecute  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  demons trably  made  votes. 
Gallatin,  who  had  been  set  to  answer  Marshall, 


MARSHALL'S  EARLY  YEARS  49 

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,  modera 
tion  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  sup 
ported  Adams's  policy  of  renewing  diplomatic  re 
lations  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  peo 
ple  and  to  quote  their  opinions  as  an  evidence  of 
truth,"  which  "is  of  all  things  the  most  destruc 
tive  of  personal  independence  and  of  that  weight  of 


50    MARSHALL  AND  THE  CONSTITUTION 

character  which  a  great  man  ought  to  possess."1 
Marshall  had  now  come  to  be  practically  indis 
pensable  to  the  isolated  President,  at  whose  most 
earnest  insistence  he  entered  the  Cabinet  as  Secre 
tary  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"  through 
out  the  country,  Federalists  of  both  factions  seemed 
to  turn  to  Marshall  in  the  hope  that,  by  some  mir 
acle  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  for 
eign  prejudices,  Mr.  Jefferson,  he  continued,  "ap 
pears  to  me  to  be  a  man  who  will  embody  himself 
with  the  House  of  Representatives,  and  by  weak 
ening  the  office  of  President,  he  will  increase  his 
personal  power. "  Better  political  prophecy  has,  in 
deed,  rarely  been  penned.  Deferring  nevertheless 
to  Hamilton's  insistence  —  and,  as  events  were  to 

1  Letter  from  Sedgwick  to  King,  May  11,  1800.     Life  and  Corre 
spondence  of  Rufus  King,  vol.  in,  pp.  236-7. 


MARSHALL'S  EARLY  YEARS  51 

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  na 
tional  reputation  as  an  interpreter  of  the  Constitu 
tion.  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  popular 
ity  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."1 

It  was  perhaps  fortunate  for  the  Federal  Judi- 

1  Op.  cit. 


52    MARSHALL  AND  THE  CONSTITUTION 

ciary,  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  Mar 
shall  did  neither.  The  better  answer  to  Sedg wick'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  un 
touched  by  fanaticism,  and  above  all,  of  an  easy 
conscience  and 'unruffled  serenity.  It  required  the 
lodestone  of  a  great  and  thoroughly  congenial  re 
sponsibility  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  Wed 
nesday,  February  4,^1 801.  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  practi 
cable  owing  to  the  brevity  of  the  judicial  term, 

53 


54    MARSHALL  AND  THE  CONSTITUTION 

which  usually  lasted  little  more  than  six  weeks,  and 
was  almost  necessitated  by  the  unhealthf ul  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  Ran 
dolph,  "the  cave  of  Trophonius."1 

1  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. 


JEFFERSON'S  WAR  ON  THE  JUDICIARY    55 

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  dif 
ferences  of  character  and  outlook.  As  good  for 
tune  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 


cued  American  democracy  from  the  Vftgiier  l^yiznns 


to  which  Jefferson's  cosmopolitanismbecioned 


and  gave  to  it  a  secure  abode  with  plenty  of  elbow- 
room.  Jefferson's  emphasis  on  the  right  of  the 
contemporary  majority  to  shape  its  own  institu 
tions  prevented  Marshall's  constitutionalism  from 
developing  a  privileged  aristocracy.  Marshall  was 
finely  loyal  to  principles  accepted  from  others; 
Jefferson  was  speculative,  experimental;  the  per 
sonalities  of  these  two  men  did  much  to  conserve 
essential  values  in  the  American  Republic. 

As  Jefferson  turned  from  his  oath-taking  to  de 
liver  his  inaugural,  Marshall  must  have  listened 


56    MARSHALL  AND  THE  CONSTITUTION 

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  proscrip 
tion.  ^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  Re 
publicans,  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  Re 
publicans  than  any  other  part  of  the  hated  system 


JEFFERSON'S  WAR  ON  THE  JUDICIARY    57 

created  by  the  once  dominant  Federalists.  The 
reasons  why  this  was  so  have  already  been  indi 
cated,  but  the  most  potent  reason  in  1801,  because 
it  was  still  freshest  ifl  mind,  was  t.frp  Hf)yfljfl<wmpr 
part^which  the  nationaLiudges  had  plaved  iq  the 
enf  orcementofthe  ejjjJQJLJLek-^  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,  more 
over,  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  Judi 
ciary  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  sedi 
tion,  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  "op 
pressive  conduct"  on  the  part  of  the  presiding 
judge,  had  thrown  up  their  briefs  and  rushed  from 
the  court  room.  In  1800  there  were  few  Republi 
cans  who  did  not  regard  Chase  as  "the  bloody 
Jeffreys  of  America." 


58    MARSHALL  AND  THE  CONSTITUTION 

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  Fed 
eral  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  sys 
tem  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  char 
acter,  the  inferior  magistrates  were  frequently  the 
very  opposite.  By  the  state  constitution  judges 
were  removable  for  serious  offenses  by  impeach 
ment,  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  Legisla 
ture,  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 


JEFFERSON'S  WAR  ON  THE  JUDICIARY    59 

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  Presby 
terian  preacher  and  had  found  it  natural  to  add 
to  his  normal  judicial  duties  the  business  of  in 
culcating  "sound  morals  and  manners."1  Addi 
son  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  im 
peachment  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  judi 
cial  office  in  Pennsylvania.  Not  long  afterwards 
the  House  of  Representatives  granted  without  in 
quiry  or  discussion  a  petition  to  impeach  three  mem 
bers  of  the  Supreme  Court  of  the  State  for  having 

1  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. 


60    MARSHALL  AND  THE  CONSTITUTION 

punished  one  Thomas  Passmore  for  contempt  of 
court  without  a  jury  trial. 

Jefferson  entered  office  with  his  mind  made  up 
that  the  Act  of  the  13th  of  February  should  be 
repealed.1  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  Irref ragabilis "  of  the  State 
Rights  school,  the  proposed  repeal  raised  two  ques 
tions:  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  Con 
stitution  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 


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


JEFFERSON'S  WAR  ON  THE  JUDICIARY    61 

construction  based  on  such  absurdities,  said  he, 
"overturns  the  benefits  of  language  and  intellect." 
In  his  message  of  December  8,  1801,  Jefferson 
gave  the  signal  for  the  repeal  of  the  obnoxious  meas 
ure,  and  a  month  later  Breckinridge  of  Kentucky 
introduced  the  necessary  resolution  in  the  Senate. 
In  the  prolonged  debate  which  followed,  the  Re 
publicans  in  both  Senate  and  House  rang  the 
changes  on  Taylor's  argument.  The  Federalists 
made  a  twofold  answer.  Some,  accepting  the  Re 
publican  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  Con 
gress'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 


62    MARSHALL  AND  THE  CONSTITUTION 

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  in 
tention  was  clear  that  the  national  judges  should 
pass  finally  upon  the  constitutionality  of  acts  of 
Congress  and  should  therefore  be  as  secure  as  pos 
sible  from  legislative  molestation. 

The  repeal  of  this  Act  was  voted  by  a  strict  party 
majority  and  was  reenforced  by  a  provision  post 
poning  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  trencj.  of  the  debate 
abundantly  confirmed  ^this  implication.  Breckin- 
ridge,  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  mem 
ory  and  a  "consolidated  government "  a  recent  fear, 
were  not  to  be  seduced  from  what  they  clearly 


JEFFERSON'S  WAR  ON  THE  JUDICIARY    63 

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  re 
peal  of  the  Act  of  the  13th  of  February  was  the  fact 
itself.  The  Republicans  had  not  shown  a  more  fla 
grant  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,  ih£_fact^  nevertheless  remained 
tW  ip  rP5i.1iV.ing,,  tfiftfc  purpose  the  Republican"  / 
mjjjojcity  liad  established  a  precedent  which  threat 
ened  to  make  of  the  lower  Federal  Judiciary  the 
merest  cat's-paw  of  party  convenience.  The  atti 
tude  of  the  Republican  leaders  was  even  more  men 
acing,  for  it  touched  the  security  of  the  Supreme 
Court  itself  in  the  enjoyment  of  its  highest  prerog 
ative  and  so  imperiled  the  unity  of  the  nation. 
Beyond  any  doubt  the  moment  was  now  at  hand  I 
when  the  Court  must  prove  to  its  supporters  that  it  / 
was  still  worth  defending  and  to  all  that  the  Con-  / 
stitution  had  an  authorized  final  interpreter.  <** 


G4    MARSHALL  AND  THE  CONSTITUTION 

Marshall's  first  constitutional  case  was  that  of 
jMarburv  w-  Marl  {son. *  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  authoriza 
tion  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  juris 
diction  on  the  ground  that  the  thirteenth  section 
was  unconstitutional. 

Such  are  the  lawyer's  facts  of  the  case;  it  is  the 

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


JEFFERSON'S  WAR  ON  THE  JUDICIARY    65 

historian's  facts  about  it  which  are  today  the  inter-  \ 
esting  and  instructive  ones.  Marshall,  reversing  the 
usual  order  of  procedure,  left  the  question  of  juris 
diction  till  the  very  last,  and  so  created  for  him- 
self  an  opportunity  to  lecture  the  President  on  his 
duty  to  obey  the  law  and  to  deliver  the  com  mis-  j 
sion.  Marshall  based  his  homily  on  the  question 
able  assumption  that  the  President  haa  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  equal 
ly  questionable  when  he  contended  that  the  thir 
teenth  section  violated  that  clause  of  Article  III  of 
the  Constitution  which  gives  the  Supreme  Court 
original  jurisdiction  "in  all  cases  affecting  ambas 
sadors,  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  pur 
pose.  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 


66    MARSHALL  AND  THE  CONSTITUTION 

view  taken  a  Kttle  later  by  the  Court  was  that  it 
was  not  the  intention  of  Congress  by  this  lan 
guage  to  confer  any  jurisdiction  at  all,  but  only 
to  give  the  right  to  issue  the  writ  where  the  ju 
risdiction  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  fall 
ing  within  the  contemplation  of  sectAn  thirteen, 

\         and  not  on  the  ground  of  the  unconstitutionality 
^y-d  that  section. 

Marshall's  opinion  in  Marbujy  vs.  Madison  was 
a  political  coup  of  the  first  magnitude,  and  by  it  he 
achieved  half  a  clozen  objects,  some  of  the  greatest 
importance.  $n  Jthe  first  place,  while  avoiding  a 
direct  collision  with  the  executive  power,  he  stig 
matized  his  enemy  Jefferson  as  a  violator  of  the 
laws  which  as  President  he  was  sworn  to  support. 
^gajnThe  evaded  the  perilous  responsibility  of  pass-, 
ing  upon  the  validity  of  the  recent  Repeal  Act  in 
quo  warranto  proceedings,  such  as  were  then  being 
broached.1  For  if  the  Supreme  Court  could  not 

1  See  Benton's  Abridgment  of  the  Debates  of  Congress,  vol.  n,  pp. 
665-68.  Marshall  expressed  the  opinion  in  private  that  the  repealing 
act  was  "operative  in  depriving  the  judges  of  all  poweikderived  from 
the  act  repealed  "  but  not  their  office,  "which  is  a  mere  capacity,  withr 
out  new  appointment,  to  receive  and  exercise  any  new  judicial  power 
which  the  legislature  may  oonfer. "  Quoted  by  W.  S.  Carpenter  in 
American  Political  Science  Review,  vol.  ix,  p.  528. 


JEFFERSON'S  WAR  ON  THE  JUDICIARY    67 

issue  the  writ  of  mandamus  in  suits  begun  in  it  by 
individuals,  neither  could  it  issue  the  writ  of  quo 
warranto  in  such  suits,  j  ^ej  again  Marshall  scored 
in  exhibiting  the  Court  in  the  edifying  and  reas 
suring  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,  j 

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  argu- 
rnents  in  this  opinion  in  support  of  judicial  review 
will  be  found  anticipated  in  the  debate  on  the  Re 
peal  Act.  What  Marshall  did  was  to  gather  these 
arguments  together,  winnow  them  of  their  triviali 
ties,  inconsistencies,  and  irrelevancies,  and  com 
press  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 


68    MARSHALL  AND  THE  CONSTITUTION 

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  re 
strained?  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  ob 
ligation.  It  is  a  proposition  too  plain  to  be  contested: 
that  the  Constitution  controls  any  legislative  act  repug 
nant  to  it;  or,  that  the  legislature  may  alter  the  Con 
stitution  by  an  ordinary  act. 

[If,  then,]  an  act  of  the  legislature,  repugnant  to  the 
Constitution,  is  void,  does  it,  notwithstanding  its  in 
validity,  bind  the  courts,  and  oblige  them  to  give  it 
effect?  Or,  in  other  words,  though  it  be  not  law,  does  it 
constitute  a  rule  as  operative  as  if  it  was  a  law?  This 
would  be  to  overthrow  in  fact  what  was  established  in 
theory;  and  would  seem,  at  first  view,  an  absurdity  too 
gross  to  be  insisted  on.  It  shall,  however,  receive  a 
more  attentive  consideration. 

*  It  is  emphatically  the  province  and  duty  of  the 
judicial  department  to  say  what  the  law  is.  Those 
who  apply  the  rule  to  particular  cases,  must  of  necessity 
expound  and  interpret  that  rule.  If  two  laws  conflict 
with  each  other,  the  courts  must  decide  on  the  operation 
of  each.  So  if  a  law  be  in  opposition  to  the  Constitu 
tion;  if  both  the  law  and  the  Constitution  apply  to  a 
particular  case,  so  that  the  court  must  either  decide 
that  case  conformably  to  the  law,  disregarding  the  Con 
stitution,  or  conformably  to  the  Constitution,  disregard 
ing  the  law,  the  court  must  determine  which  of  these 
conflicting  rules  governs  the  case.  This  is  of  the  very 
essence  of  judicial  duty. 


JEFFERSON'S  WAR  ON  THE  JUDICIARY    69 

[However,  there  are  those  who  maintain]  that  courts 
must  close  their  eyes  on  the  Constitution,  and  see  only  the 
law.  .  .  .  This  doctrine  wpuld  sub  vert  the  very  founda 
tion  of  all  written  constitutions.  It  would  declare  that 
an  act  which,  according  to  the  principles  and  theory  of 
our  government,  is  entirely  void,  is  yet,  in  practice,  com 
pletely  obligatory.  It  would  declare  that  if  the  legislature 
shall  do  what  is  expressly  forbidden,  such  act,  notwith 
standing  the  express  prohibition,  is  in  reality  effectual. 

[Moreover,]  the  peculiar  expressions  of  the  Constitu 
tion  of  the  United  States  furnish  additional  arguments 
in  favor  of  its  rejection.  The  judicial  power  of  the 
United  States  is  extended  to  all  cases  arising  under  the 
Constitution.  Could  it  be  the  intention  of  those  who 
gave  this  power,  to  say  that  in  using  it  the  Constitution 
should  not  be  looked  into?  That  a  case  arising  under 
the  Constitution  should  be  decided  without  examining 
the  instrument  under  which  it  arises?  This  is  too  ex 
travagant  to  be  maintained. 

In  some  cases,  then,  the  Constitution  must  be  looked 
into  by  the  judges.  And  if  they  can  open  it  at  all,  what 
part  of  it  are  they  forbidden  to  read  or  to  obey?  There 
are  many  other  parts  of  the  Constitution  which  serve  to 
illustrate  this  subject.  .  .  .  "No  person,"  says  the  Con 
stitution,  "shall  be  convicted  of  treason  unless  on  the 
testimony  of  two  witnesses  to  the  same  overt  act,  or  on 
confession  in  open  court."  Here  the  language  of  the 
Constitution  is  addressed  especially  to  the  courts.  It 
prescribes,  directly  for  them,  a  rule  of  evidence  not  to  be 
departed  from.  If  the  legislature  should  change  that 
rule,  and  declare  one  witness,  or  a  confession  out  of  court, 
sufficient  for  conviction,  must  the  constitutional  prin 
ciple  yield  to  the  legislative  acb?  ... 


70    MARSHALL  AND  THE  CONSTITUTION 

It  is  also  not  entirely  unworthy  of  observation,  that 
in  declaring  what  shall  be  the  supreme  law  of  the  land, 
the  Constitution  itself  is  first  mentioned;  and  not  the 
laws  of  the  United  States  generally,  but  those  only  which 
shall  be  made  in  pursuance  of  the  Constitution,  have 
that  rank. 

Thus,  the  particular  phraseology  of  the  Constitution 
of  the  United  States  confirms  and  strengthens  the  prin 
ciple,  supposed  to  be  essential  to  all  written  constitu 
tions,  that  a  law  repugnant  to  the  Constitution  is  void; 
and  that  courts,  as  well  as  other  departments  are  bound 
by  that  instrument. 

There  is  not  a  false  step  in  Marshall's  argument. 
It  is,  for  instance,  not  contended  that  the  language 
of  the  Constitution  establishes  judicial  review  but 
only  that  it  "confirms  and  strengthens  the  princi 
ple.  "  Granting  the  finality  of  judicial  decisions  and 
that  they  may  not  be  validly  disturbed  by  legisla 
tive  enactment,  the  argument  is  logically  conclu 
sive,  whatever  practical  difficulties  it  may  ignore. 

Turning  back  to  the  case  itself,  we  ought  finally 
to  note  how  Marshall  utilized  this  opportunity  to 
make  manifest  the  newly  found  solidarity  of  the 
Court.  For  the  first  time  in  its  history  the  Court 
was  one  voice,  speaking  through  its  Chief  Justice 
the  ineluctable  decrees  of  the  law.  Ordinarily  even 
Marshall  would  not  have  found  this  achievement 
an  easy  task,  for  there  were  difficult  personalities 


JEFFERSON'S  WAR  ON  THE  JUDICIARY    71 

among  his  associates.  He  had  in  Adams's  Cabinet 
demonstrated  his  faculty  "of  putting  his  ideas  into 
the  minds  of  others,  unconsciously  to  them, "  and 
of  this  power  he  now  made  use,  as  well  as  of  the  ad 
vantage  to  be  obtained  from  the  impending  com 
mon  danger. 

The  case  of  Marbury  vs.  Madison  was  decided  on 
February  24,  1803,  and  therefore  fell  between  two 
other  events  which  were  immediately  of  almost  as 
great  importance  in  the  struggle  now  waxing  over 
the  judiciary.  The  first  of  these  was  the  impeach 
ment  of  Judge  Pickering  of  the  New  Hampshire 
District  Court,  which  was  suggested  by  the  Presi 
dent  on  the  3d  of  February  and  voted  by  the  House 
on  the  18th  of  February;  the  other  was  an  address 
which  Justice  Chase  delivered  on  the  2d  of  May  to 
a  Baltimore  grand  jury,  assailing  the  repeal  of  the 
Judiciary  Act  and  universal  suffrage  and  predicting 
the  deterioration  of  "our  republican  Constitution 
.  .  .  into  a  mobocracy,  the  worst  of  all  possible 
governments."1  Considering  the  fact  that  the 
President  was  still  smarting  from  the  Chief  Jus 
tice's  lash  and  also  that  Chase  himself  was  more 


1  The  account  here  given  of  Chase's  trial  is  based. on  Charles  Evans's 
shorthand  Report  (Baltimore,  1805),  supplemented  by  J.  Q.  Adams's 
Memoirs. 


72    MARSHALL  AND  THE  CONSTITUTION 

heartily  detested  by  the  Republicans  than  any 
other  member  of  the  Supreme  Bench,  nothing 
could  have  been  more  untimely  than  this  fresh 
judicial  excursion  into  the  field  of  "manners  and 
morals, "and  partisan  malice  was  naturally  alert 
to  interpret  it  as  something  even  more  offen 
sive.  The  report  soon  came  from  Baltimore  that 
Chase  had  deliberately  assailed  the  Administration 
as  "weak,  pusillanimous,  relaxed,"  and  governed 
by  the  sole  desire  of  continuing  "in  unfairly  ac 
quired  power. "  But  even  before  this  intelligence 
arrived,  Jefferson  had  decided  that  the  opportunity 
afforded  by  Chase's  outburst  was  too  good  a  one  to 
be  neglected.  Writing  on  the  13th  of  May  to  Nich 
olson  of  Maryland,  who  already  had  Pickering's 
impeachment  in  charge,  the  President  inquired: 
"Ought  this  seditious  and  official  attack  on  the 
principles  of  our  Constitution  and  the  proceedings 
of  a  State  go  unpunished?"  But  he  straightway 
added:  "The  question  is  for  your  consideration; 
for  myself  it  is  better  I  should  not  interfere." 

Pickering's  trial  began  on  March  2,  1804,  and 
had  a  bearing  on  Chase's  fate  which  at  once  became 
clear.  The  evidence  against  the  New  Hampshire 
judge  showed  intoxication  and  profanity  on  the 
bench  and  entire  unfitness  for  office,  but  further 


JEFFERSON'S  WAR  ON  THE  JUDICIARY    73 

evidence  introduced  in  his  behalf  proved  the  de 
fendant's  insanity;  and  so  the  question  at  once 
arose  whether  an  insane  man  can  be  guilty  of  "high 
crimes  and  misdemeanors?"  Greatly  troubled  by 
this  new  aspect  of  the  case,  the  Senate  none  the 
less  voted  Pickering  guilty  "as  charged,"  by  the 
required  two- thirds  majority,  though  eight  mem 
bers  refused  to  vote  at  all.  But  the  exponents  of 
"judge-breaking"  saw  only  the  action  of  the  Sen 
ate  and  were  blind  to  its  hesitation.  On  the  same 
day  on  which  the  Senate  gave  its  verdict  on  Picker 
ing,  the  House  by  a  strictly  partisan  vote  decreed 
Chase's  impeachment. 

The  charges  against  Chase  were  finally  elabo 
rated  in  eight  articles.  The  substance  of  the  first 
six  was  that  he  had  been  guilty  of  "oppressive  con 
duct  "  at  the  trials  of  John  Fries  and  James  Thomp 
son  Callender.  The  seventh  charged  him  with  hav 
ing  attempted  at  some  time  in  1800  to  dragoon  a 
grand  jury  at  Newcastle,  Delaware,  into  bringing 
forward  an  accusation  of  sedition  against  a  local 
paper.  These  seven  articles  related  therefore  to 
transactions  already  four  or  five  years  old.  The 
eighth  article  alone  was  based  on  th$  address  at 
Baltimore,  which  it  characterized  as  "an  intemper 
ate  and  inflammatory  political  harangue, "  delivered 


74    MARSHALL  AND  THE  CONSTITUTION 

"with  intent  to  excite  the  fears  and  resentment .  .  . 
of  the  good  people  of  Maryland  against  their  State 
Government  and  Constitution,  ...  and  against  the 
Government  of  the  United  States. " 

But  the  charges  framed  against  Chase  revealed 
only  imperfectly  the  animus  which  was  now  com 
ing  more  and  more  to  control  the  impeachers. 
Fortunately,  however,  there  was  one  man  among 
the  President's  advisers  who  was  ready  to  carry 
the  whole  antijudicial  program  as  far  as  possible. 
This  uncompromising  opponent  was  William  Branch 
Giles,  Senator  from  Virginia,  whose  views  on  the 
subject  of  impeachment  were  taken  down  by  John 
Quincy  Adams  just  as  Chase's  trial  was  about  to 
open.  Giles,  according  to  this  record,  "treated 
with  the  utmost  contempt  the  idea  of  an  independ 
ent  judiciary  —  said  there  was  not  a  word  about 
their  independence  in  the  Constitution.  .  .  .  The 
power  of  impeachment  was  given  without  limita 
tion  to  the  House  of  Representatives;  the  power 
of  trying  impeachment  was  given  equally  without 
limitation  to  the  Senate;  and  if  the  Judges  of  the 
Supreme  Court  should  dare,  as  they  had  done,  to 
declare  an  act  of  Congress  unconstitutional,  or  to 
send  a  mandamus  to  the  Secretary  of  State,  as  they 
had  done,  it  was  the  unreserved  right  of  the  House 


JEFFERSON'S  WAR  ON  THE  JUDICIARY    75 

of  Representatives  to  impeach  them,  and  that  of 
the  Senate  to  remove  them,  for  giving  such  opin 
ions,  however,  honest  or  sincere  they  may  have 
been  in  entertaining  them."  For  "impeachment 
was  not  a  criminal  prosecution,  it  was  no  prosecu 
tion  at  all."  It  only  signified  that  the  impeached 
officer  held  dangerous  opinions  and  that  his  office 
ought  to  be  in  better  hands.  "I  perceive,"  adds 
Adams,  on  his  own  account,  "that  the  impeach 
ment  system  is  to  be  pursued,  and  the  whole  bench 
of  the  Supreme  Court  to  be  swept  away,  because 
their  offices  are  wanted.  And  in  the  present  state  of 
things  I  am  convinced  it  is  as  easy  for  Mr.  John 
Randolph  and  Mr.  Giles  to  do  this  as  to  say  it." 

The  trial  formally  opened  on  January  2,  1805, 
though  the  taking  of  testimony  did  not  begin  until 
the  9th  of  February.  A  contemporary  description 
of  the  Senate  chamber  shows  that  the  apostles  of 
Republican  simplicity,  with  the  pomp  of  the  War 
ren  Hastings  trial  still  fresh  in  mind,  were  not  at 
all  averse  to  making  the  scene  as  impressive  as  pos 
sible  by  the  use  of  several  different  colors  of  cloth: 
"On  the  right  and  left  of  the  President  of  the  Sen 
ate,  and  in  a  right  line  with  his  chair,  there  are  two 
rows  of  benches  with  desks  in  front,  and  the  whole 
front  and  seats  covered  with  crimson  cloth.  .  .  . 


76    MARSHALL  AND  THE  CONSTITUTION 

A  temporary  semi-circular  gallery,  which  consists 
of  three  ranges  of  benches,  is  elevated  on  pillars 
and  the  whole  front  and  seats  thereof  covered  with 
green  cloth.  < .  .  .  In  this  gallery  ladies  are  ac 
commodated.  .  .  .  On  the  right  and  left  hand 
of  the  President  .  .  .  are  two  boxes  of  two  rows 
of  seats  .  .  .  that  facing  the  President's  right 
is  occupied  by  the  managers  .  .  .  that  on  the 
other  side  of  the  bar  for  the  accused  and  his  coun 
sel ...  these  boxes  are  covered  with  blue  cloth. " 
To  preside  over  this  scene  of  somewhat  dubious 
splendor  came  Aaron  Burr,  Vice-President  of  the 
United  States,  straight  from  the  dueling  ground 
at  Weehawken. 

The  occasion  brought  forward  one  of  the  most 
extraordinary  men  of  the  day,  Luther  Martin, 
Chase's  friend  and  the  leader  of  his  counsel.  Born 
at  New  Brunswick,  New  Jersey,  in  1744,  Martin 
graduated  from  Princeton  in  1766,  the  first  of  a 
class  of  thirty-five,  among  whom  was  Oliver  Ells 
worth.  Five  years  later  he  began  to  practice  law 
on  the  Eastern  Shore  of  Maryland  and  in  the  ad 
joining  counties  of  Virginia,  where  he  won  an  im 
mediate  success,  especially  in  criminal  cases.  At 
a  single  term  of  court,  out  of  thirty  defendants  he 
procured  the  acquittal  of  twenty-nine,  while  the 


JEFFERSON'S  WAR  ON  THE  JUDICIARY    77 

thirtieth,  indicted  for  murder,  was  convicted  of 
manslaughter.  In  1805  Martin  was  the  acknowl 
edged  head  of  the  American  Bar,  but  at  the  same 
time  he  was  undoubtedly  a  drunkard  and  a  spend 
thrift.  With  an  income  of  $10,000  a  year,  he  was 
always  in  need.  His  mediocre  stature,  thinning 
locks,  and  undistinguished  features  created  an  im 
pression  which  was  confirmed  by  his  slovenly  attire 
and  ungrammatical  speech,  which  seemed  "shack 
led  by  a  preternatural  secretion  of  saliva."  Here, 
indeed,  for  ugliness  and  caustic  tongue  was  "the 
Thersites  of  the  law."  Yet  once  he  was  roused  to 
action,  his  great  resources  made  themselves  appar 
ent:  a  memory  amounting  to  genius,  a  boyish  de 
light  in  the  rough-and-tumble  of  combat,  a  wealth 
of  passion,  kept  in  perfect  curb  till  the  enemy  was 
already  in  rout  before  solid  argument  and  then  let 
loose  with  destroying  effect.  This  child  of  nature 
was  governed  in  his  practice  of  the  law  less  by 
retainers  than  by  his  personal  loves  and  hatreds. 
Samuel  Chase  he  loved  and  Thomas  Jefferson  he 
hated,  and  though  his  acquaintance  with  criminals 
had  furnished  him  with  a  vituperative  vocabulary 
of  some  amplitude,  he  considered  no  other  damna 
tion  quite  so  scathing  as  to  call  a  man  "as  great  a 
scoundrel  as  Tom  Jefferson." 


78    MARSHALL  AND  THE  CONSTITUTION 

The  impeachers  had  no  one  whom  they  could 
pit  against  this  "unprincipled  and  impudent  Fed 
eralist  bulldog,"  as  Jefferson  called  him;  and  in 
other  ways,  too,  from  the  first  their  lot  was  not 
easy.  For  one  thing,  they  could  not  agree  among 
themselves  as  to  the  proper  scope  of  impeachment 
under  the  Constitution .  Randolph,  the  leader  of  the 
House  managers,  and  Campbell  adhered  in  essence 
to  Giles's  theory.  But  Rodney  and  Nicholson,  both 
much  abler  lawyers,  openly  disavowed  such  lati- 
tudinarian  doctrine.  In  a  general  way,  their  view 
of  the  matter  may  be  stated  thus :  Because  judges 
of  the  United  States  are  guaranteed  continuance 
in  office  only  during  "good  behavior,"  and  because 
impeachment  is  the  only  method  of  removal  recog 
nized  by  the  Constitution,  the  "high  crimes  and 
misdemeanors"  for  which  impeachment  is  the  con 
stitutional  resource  must  include  all  cases  of  will 
ful  misconduct  in  office,  whether  indictable  or  not.- 
This  seems  sound  theory  and  appears  today  to  be 
established  theory.  But  sound  or  not,  the  mana 
gers  of  the  Republicans  were  not  a  unit  in  urging  it, 
while  their  opponents  put  forward  with  confidence 
and  unanimity  the  theory  that  "high  crimes  and 
misdemeanors"  were  always  indictable  offenses. 

More  calamitous  still  for  the  accusers  of  Chase 


JEFFERSON'S  WAR  ON  THE  JUDICIARY    79 

was  the  way  in  which,  when  the  evidence  began  to 
come  in,  the  case  against  him  started  crumpling  at 
the  corners.  Lewis,  who  had  been  Fries 's  attorney 
and  whose  testimony  they  had  chiefly  relied  upon 
to  prove  the  judge's  unfairness  on  that  occasion, 
had  not  only  acknowledged  that  his  memory  was 
"not  very  tenacious"  after  so  great  a  lapse  of 
time  but  had  further  admitted  th^Uj^  had  real 
ly  dropped  the  case  because  he  thoQ^^KjU 
likely  that  the  President  would  pardon  him 
after  having  been  convicted  without  having  counsel 
than  if  he  had."  Similarly  Hay,  whose  repeated 
efforts  to  bring  the  question  of  the  constitutionali 
ty  of  the  Sedition  Act  before  the  jury  had  caused 
the  rupture  between  court  and  counsel  in  Callen- 
der's  case,  owned  that  he  had  entertained  "but 
little  hopes  of  doing  Callender  any  good"  but  had 
"wished  to  address  the  public  on  the  constitution 
ality  of  the  law."  Sensations  multiplied  on  every 
side.  A  man  named  Heath  testified  that  Chase 
had  told  the  marshal  to  strike  all  Democrats  from 
the  panel  which  was  to  try  Callender;  whereupon 
a  second  witness  called  to  confirm  this  testimony 
stated  facts  which  showed  the  whole  story  to  be  a 
deliberate  fabrication.  The  story  that  Chase  had 
attacked  the  Administration  at  Baltimore  was  also 


80    MARSHALL  AND  THE  CONSTITUTION 

substantially  disproved  by  the  managers'  own  wit 
nesses.  But  the  climax  of  absurdity  was  reached 
in  the  fifth  and  sixth  articles  of  impeachment,  which 
were  based  on  the  assumption  that  an  act  of  Con 
gress  had  required  the  procedure  in  Calender's  case 
to  be  in  accordance 'with  the  law  of  Virginia.  In 
reply  to  this  argument  Chase's  attorneys  quickly 
pointed  oi^tiiat  the  statute  relied  upon  applied 
only  loJ^^Boetween  citizens  of  different  States ! 

J^m     jBP^^ 

t^He  nnal  arguments  began  on  the  20th  of  Feb 
ruary.  .The  first  speech  in  behalf  of  Chase  was 
delivered  by  Joseph  Hopkinson,  a  young  Philadel 
phia  attorney,  whose  effort  stirred  the  admiration 
of  Federalists  and  Republicans  alike.  He  dwelt 
upon  "the  infinite  importance"  of  the  implications 
of  this  case  for  the  future  of  the  Republic,  con 
trasted  the  frivolity  of  the  charges  brought  against 
Chase  with  the  magnitude  of  the  crimes  of  which 
Warren  Hastings  had  been  accused,  and  pointed 
out  that,  whereas  in  England  only  two  judges 
had  been  impeached  in  half  a  century,  in  Amer 
ica,  "boasting  of  its  superior  purity  and  virtue," 
seven  judges  had  been  prosecuted  within  two  years. 
More  loosely  wrought,  but  not  less  effective  was 
Martin's  address,  the  superb  climax  of  a  remark 
able  forensic  career !  The  accusation  against  Chase 


JEFFERSON'S  WAR  ON  THE  JUDICIARY    81 

he  reduced  to  a  charge  of  indecorum,  and  he  was 
ready  to  admit  that  the  manner  of  his  friend  "bore 
a  stronger  resemblance  to  that  of  Lord  Thurlow 
than  of  Lord  Chesterfield, "  but,  said  he,  our  judges 
ought  not  to  be  "like  the  gods  of  Epicurus  lolling 
upon  their  beds  of  down,  equally  careless  whether 
the  laws  of  their  country  are  obeyed  or  violated, 
instead  of  actively  discharging  their  duties." 

The  closing  argument,  which  fell  to  the  man 
agers,  was  assigned  to  Randolph.  It  was  an  un 
mitigated  disaster  for  the  cause  in  behalf  of  which 
it  was  pronounced.  "I  feel  perfectly  inadequate 
to  the  task  of  closing  this  important  debate  on 
account  of  a  severe  indisposition  which  I  labor 
under,"  were  Randolph's  opening  words,  but  even 
this  prefatory  apology  gave  little  warning  of  the 
distressing  exhibition  of  incompetence  which  was  to 
follow.  "On  the  reopening  of  the  court,"  records 
John  Quincy  Adams  in  his  Memoirs,  "he  [Ran 
dolph]  began  a  speech  of  about  two  hours  and  a 
half,  with  as  little  relation  to  the  subject-matter  as 
possible  .  .  .  without  order,  connection,  or  argu 
ment;  consisting  altogether  of  the  most  hackneyed 
commonplaces  of  popular  declamation,  mingled  up 
with  panegyrics  and  invectives  upon  persons,  with 
a  few  well-expressed  ideas,  a  few  striking  figures, 


82    MARSHALL  AND  THE  CONSTITUTION 

much  distortion  of  face  and  contortion  of  body, 
tears,  groans  and  sobs,  with  occasional  pauses  for  re 
collection,  and  continual  complaints  of  having  lost 
his  notes."  So  ended  the  ambition  of  John  Ran 
dolph  of  Roanoke  to  prove  himself  another  Burke! 
But  while  their  frontal  assault  on  the  reason  of 
the  court  was  thus  breaking  down,  the  impeach- 
ers,  led  by  the  President,  were  attempting  a  flank 
movement  on  its  virtue.  They  especially  distrust 
ed  the  "steadiness"  of  certain  New  England  and 
New  York  Senators  and  hoped  to  reach  the  hearts 
of  these  gentlemen  through  Aaron  Burr,  the  Vice- 
President.  Burr  had  heretofore  found  himself 
vested  with  the  role  of  Lucifer  in  the  Republi 
can  Paradise.  Now  he  found  himself  suddenly 
basking  in  a  perpetual  sunburst  of  smiles  both 
from  the  great  central  luminary,  Jefferson,  and 
his  paler  satellites,  Madison  and  Gallatin.  Invita- 
tions  to  the  President's  dinners  were  soon  followed 
by  more  substantial  bribes.  Burr's  step-son  be 
came  judge  of  the  Superior  Court  at  New  Orleans; 
his  brother-in-law,  secretary  to  the  Louisiana  Ter 
ritory;  his  intimate  friend  Wilkinson,  its  military 
commandant.  Then  Giles,  whose  view  of  impeach 
ment  left  him  utterly  shameless  in  the  matter,  drew 
up  and  circulated  in  the  Senate  itself  a  petition  to 


JEFFERSON'S  WAR  ON  THE  JUDICIARY    83 

the  Governor  of  New  Jersey  asking  him  to  quash  the 
indictment  for  murder  which  the  Bergen  County 
grand  jury  had  found  against  Burr  as  a  result  of  the 
duel  with  Hamilton.  At  the  same  time,  an  act  was 
passed  giving  the  retiring  Vice-President  the  frank 
ing  privilege  for  life.  In  the  debate  Senator  Wrigh  t 
of  Maryland  declared  that  dueling  was  justified  by 
the  example  of  David  and  Goliath  and  that  the  bill 
was  opposed  "only  because  our  David  had  slain  the 
Goliath  of  Federalism." 

Whether  Burr  made  any  attempt  to  render  the 
expected  quid  pro  quo  for  these  favors  does  not  ap 
pear,  but  at  least  if  he  did,  his  efforts  were  fruit 
less.  The  vote  on  the  impeachment  of  Chase  was 
taken  on  the  1st  of  March,  and  the  impeachers 
were  crushingly  defeated.  On  the  first  article  they 
could  muster  only  sixteen  votes  out  of  thirty-four; 
on  the  second,  only  ten;  on  the  fifth,  none;  on  the 
sixth,  four.  Even  on  the  last  article,  where  they 
made  their  best  showing,  they  were  still  four 
votes  short  of  the  required  constitutional  major 
ity.  When  the  result  of  the  last  ballot  was  an 
nounced,  Randolph  rushed  from  the  Senate  cham 
ber  to  the  House  to  introduce  a  resolution  proposing 
an  amendment  to  the  Constitution,  requiring  that 
judges  of  the  United  States  "shall  be  removed  by 


84    MARSHALL  AND  THE  CONSTITUTION 

the  President  on  joint  address  of  both  Houses  of 
Congress."  At  the  same  time  Nicholson  moved 
an  amendment  providing  legislative  recall  for 
Senators.  Thus  exasperation  was  vented  and  no 
harm  done. 

Meanwhile  word  had  come  from  Philadelphia 
that  the  impeachment  of  the  State  Supreme  Court 
judges  had  also  failed.  Here,  even  more  impres 
sively  than  in  the  case  of  Chase,  had  been  illustrated 
that  solidarity  of  Bench  and  Bar  which  has  ever 
since  been  such  an  influential  factor  in  American 
government.  The  Pennsylvania  judge-breakers, 
failing  to  induce  a  single  reputable  member  of  the 
Philadelphia  bar  to  aid  them,  had  been  obliged  to 
go  to  Delaware,  whence  they  procured  Caesar  A. 
Rodney,  one  of  the  House  managers  against  Chase. 
The  two  impeachments  were  thus  closely  connected 
and  their  results  were  similar.  In  the  first  place, 
it  was  determined  that  impeachment  was  likely 
to  be,  in  the  petulant  language  of  Jefferson,  "a 
farce"  not  soon  to  be  used  again  for  partisan  pur 
poses.  In  the  second  place,  it  was  probable  that 
henceforth,  in  the  Commonwealths  as  well  as  in  the 
National  Government,  political  power  would  be 
exercised  subject  to  constitutional  restraints  ap 
plied  judicially.  In  the  third  place,  however,  the 


JEFFERSON'S  WAR  ON  THE  JUDICIARY    85 

judges  would  henceforth  have  to  be  content  with 
the  possession  of  this  magnificent  prerogative  and 
dispense  with  all  judicial  homilies  on  "manners 
and  morals."  It  was  a  fair  compromise  and  has 
on  the  whole  proved  a  beneficial  one. 


CHAPTER  IV 

THE  TRIAL  OF  AARON  BURR 

WHEN,  on  March  30,  1807,  Colonel  Aaron  Burr, 
late  Vice-President  of  the  United  States,  was 
brought  before  Chief  Justice  Marshall  in  the  Eagle 
Tavern  at  Richmond  on  the  charge  of  treason, 
there  began  the  greatest  criminal  trial  in  American 
history  and  one  of  the  notable  trials  in  the  annals 
of  the  law. 

"  The  Burr  Conspiracy  "  still  remains  after  a  hun 
dred  years  an  unsolved  enigma.  Yet  whether  Burr 
actually  planned  treason  against  the  United  States 
in  the  year  of  grace  1806  is  after  all  a  question 
of  somewhat  restricted  importance.  The  essential 
truth  is  that  he  was  by  nature  an  adventurer  who, 
in  the  words  of  Hamilton,  "believed  all  things  pos 
sible  to  daring  and  energy, "  and  that  in  1806  he  was 
a  bankrupt  and  a  social  outcast  to  boot.  Whether, 
therefore,  his  grandiose  project  of  an  empire  on  the 
ruins  of  Spanish  dominion  in  Mexico  involved  also 

86 


V 


THE  TRIAL  OF  AARON  BURR     87 

an  effort  to  separate  some  part  of  the  West  from  the 
Union  is  a  question  which,  if  it  was  ever  definitely 
determined  in  Burr's  own  mind,  was  determined, 
we  may  be  sure,  quite  independently  of  any  moral 
or  patriotic  considerations. 

Burr's  activities  after  his  term  of  public  office 
ended  in  March,  1805,  were  devious,  complicated, 
and  purposely  veiled,  involving  many  men  and 
spread  over  a  large  territory.1  Near  Marietta 
on  an  island  in  the  Ohio  River,  Burr  came  upon 
Harman  Blennerhassett,  a  genial  Irishman  living 
in  a  luxurious  and  hospitable  mansion  which  was 
making  a  heavy  drain  upon  his  already  diminished 
resources.  Here  Burr,  by  his  charm  of  manner  and 
engaging  conversation,  soon  won  from  the  simple 
Irishman  his  heart  and  his  remaining  funds.  -He 
also  made  the  island  both  a  convenient  rendez 
vous  for  his  adherents  in  his  ambitious  schemes 
and  a  starting  point  for  his  own  extended  ex 
peditions,  which  took  him  during  the  latter  part 
of  this  year  to  Natchez,  Nashville,  St.  Louis,  Vin- 
cennes,  Cincinnati,  and  Philadelphia,  and  back 
to  Washington. 

In  the  summer  of  1806  Burr  turned  westward 

1  An  account  of  the  Burr  conspiracy  will  be  found  in  Jefferson  and 
his  Colleagues,  by  Allen  Johnson  (in  The  Chronicles  of  America). 


88    MARSHALL  AND  THE  CONSTITUTION 

a  second  time  and  with  the  assistance  of  Blen- 
nerhassett  he  began  military  preparations  on  the 
latter's  island  for  a  mysterious  expedition.  On 
the  29th  of  July,  Burr  had  dispatched  a  letter  in 
cipher  to  Wilkinson,  his  most  important  confed 
erate.  .The  precise  terms  of  this  document  we 
shall  never  know,  but  apparently  it  contained  the 
most  amazing  claims  of  the  successful  maturing  of 
Burr's  scheme:  "funds  had  been  obtained, "  "Eng 
lish  naval  protection  had  been  secured,"  "from 
five  hundred  to  a  thousand  men"  would  be  on 
the  move  down  the  Mississippi  by  the  middle  of 
November.  Unfortunately  for  Burr,  however,  Wil 
kinson  was  far  too  expert  in  the  usages  of  ini 
quity  to  be  taken  in  by  such  audacious  lying  as 
this.  He  guessed  that  the  enterprise  was  on  the 
verge  of  collapse  and  forthwith  made  up  his  mind 
to  abandon  it. 

Meanwhile  exaggerated  accounts  of  the  size  of 
Burr's  following  were  filtering  to  Washington,  to 
gether  with  circumstantial  rumors  of  the  disloy 
alty  of  his  designs.  Yet  for  weeks  Jefferson  did 
nothing,  until  late  in  November  his  alarm  was 
aroused  by  a  letter  from  Wilkinson,  dated  the 
21st  of  October.  On  the  27th  of  November  the 
President  issued  a  proclamation  calling  upon  all 


THE  TRIAL  OF  AARON  BURR     89 

good  citizens  to  seize  "sundry  persons"  who  were 
charged  with  setting  on  foot  a  military  expedition 
against  Spain.  Already  Burr,  realizing  that  the 
West  was  not  so  hot  for  disunion  as  perhaps  he  had 
supposed  it  to  be,  began  to  represent  his  project 
as  a  peaceful  emigration  to  the  Washita,  a  pre 
caution  which,  however,  came  too  late  to  allay 
the  rising  excitement  of  the  people.  Fearing  the 
seizure  of  their  equipment,  thirty  or  forty  of  Burr's 
followers  under  the  leadership  of  Blennerhassett 
left  the  island  in  four  or  five  flatboats  for  New 
Orleans,  on  the  night  of  the  10th  of  December,  and 
a  few  days  later  were  joined  by  Burr  himself  at 
the  mouth  of  the  Cumberland.  When  the  little 
expedition  paused  near  Natchez,  on  the  10th  of 
January,  Burr  was  confronted  with  a  newspaper 
containing  a  transcription  of  his  fatal  letter  to  Wil 
kinson.  A  week  later,  learning  that  his  former  ally, 
Wilkinson,  had  now  established  a  reign  of  ter 
ror  at  New  Orleans  directed  against  his  followers, 
and  feeling  no  desire  to  test  the  tender  mercies 
of  a  court-martial  presided  over  by  his  former 
associate,  Burr  surrendered  himself  into  the  cus 
tody  of  the  acting  Governor  of  Mississippi  Ter 
ritory.  But  the  refusal  of  the  territorial  grand  jury 
to  indict  him  suggested  the  hope  that  he  might 


90    MARSHALL  AND  THE  CONSTITUTION 

still  escape  from  the  reach  of  the  law.  He  there 
fore  plunged  into  the  wilderness,  headed  for  the 
Spanish  border,  and  had  all  but  reached  his  des 
tination  when  he  was  recognized  and  recaptured  at 
Wakefield,  Alabama. 

Owing  to  the  peculiar  and  complicated  circum 
stances  which  led  up  to  it,  Burr's  case  was  from  the 
outset  imbued  with  factional  and  partisan  politics 
of  the  most  extreme  kind.  While  the  conspiracy 
was  at  its  height,  Jefferson,  though  emphatically 
warned,  had  refused  to  lend  it  any  credence  what 
ever;  but  when  the  danger  was  well  over  he  had 
thrown  the  whole  country  into  a  panic,  and  had 
even  asked  Congress  to  suspend  the  writ  of  habeas 
corpus.  The  Federalists  and  the  President's  ene 
mies  within  his  own  party,  headed  by  the  re 
doubtable  Randolph,  were  instantly  alert  to  the 
opportunity  which  Jefferson's  inexplicable  conduct 
afforded  them.  "The  mountain  had  labored  and 
brought  forth  a  mouse,"  quoted  the  supercilious; 
the  executive  dragnet  had  descended  to  envelop 
the  monster  which  was  ready  to  split  the  Union 
or  at  least  to  embroil  its  relations  with  a  friendly 
power,  and  had  brought  up  —  a  few  peaceful  agri 
culturists  !  Nor  was  this  the  worst  of  the  matter, 
contended  these  critics  of  the  Administration,  for 


THE  TRIAL  OF  AARON  BURR     91 

the  real  source  of  the  peril  had  been  the  Presi 
dent's  own  action  in  assigning  the  command  at 
New  Orleans  to  Wilkinson,  a  pensioner  of  Spain, 
a  villain  "from  the  bark  to  the  very  core."  Yet  so 
far  was  the  President  from  admitting  this  error 
that  he  now  attributed  the  salvation  of  the  country 
to  "the  soldier's  honor  "  and  "  the  citizen's  fidelity" 
of  this  same  Wilkinson.  Surely,  then,  the  real  de 
fendants  before  the  bar  of  opinion  were  Thomas 
Jefferson  and  his  precious  ally  James  Wilkinson, 
not  their  harried  and  unfortunate  victim,  Aaron 
Burr! 

The  proceedings  against  Burr  occupied  alto 
gether  some  seven  months,  during  which  the  sleepy 
little  town  of  Richmond  became  the  cynosure  of 
all  eyes.  So  famous  was  the  case  that  it  brought 
thither  of  necessity  or  out  of  curiosity  men  of  every 
rank  and  grade  of  life,  of  every  species  of  renown. 
The  prosecution  was  in  charge  of  the  United 
States  District  Attorney,  George  Hay  —  serious, 
humorless,  faithful  to  Jefferson's  interests,  and  ab 
solutely  devoid  of  the  personal  authority  demanded 
by  so  grave  a  cause.  He  was  assisted  by  William 
Wirt,  already  a  brilliant  lawyer  and  possessed  of 
a  dazzling  elocution,  but  sadly  lacking  in  the  maj 
esty  of  years.  At  the  head  and  forefront  of  the 


92    MARSHALL  AND  THE  CONSTITUTION 

defense  stood  Burr  himself,  an  unerring  legal  tac 
tician,  deciding  every  move  of  the  great  game,  the 
stake  of  which  for  him  was  life  itself.  About  him 
were  gathered  the  ablest  members  of  the  Rich 
mond  bar:  John  Wickham,  witty  and  ingenious, 
Edmund  Randolph,  ponderous  and  pontifical,  Ben 
jamin  Botts,  learned  and  sarcastic,  while  from 
Baltimore  came  Luther  Martin  to  aid  his  "highly 
respected  friend,"  to  keep  the  political  pot  boil 
ing,  and  eventually  to  fall  desperately  in  love 
with  Burr's  daughter,  the  beautiful  Theodosia. 
Among  the  140  witnesses  there  were  also  some 
notable  figures :  William  Eaton,  the  hero  of  Derne, 
whomBurr'scodefendant,Blennerhassett,  describes 
for  us  as  "strutting  about  the  streets  under  a  tre 
mendous  hat,  With  a  Turkish  sash  over  colored 
clothes,"  and  offering  up,  with  his  frequent  liba 
tions  in  the  taverns,  "the  copious  effusions  of 
his  sorrows";  Commodore  Truxton,  the  gallant 
commander  of  the  Constellation;  General  Andrew 
Jackson,  future  President  of  the  United  States, 
but  now  a  vehement  declaimer  of  Burr's  inno 
cence  —  out  of  abundant  caution  for  his  own  repu 
tation,  it  may  be  surmised;  Erick  Bollmann,  once 
a  participant  in  the  effort  to  release  Lafayette 
from  Olmutz  and  himself  just  now  released  from 


THE  TRIAL  OF  AARON  BURR     93 

durance  vile  on  a  writ  of  habeas  corpus  from  the 
Supreme  Court;  Samuel  Swartwout,  another  tool 
of  Burr's,  reserved  by  the  same  beneficent  writ  for 
a  career  of  political  roguery  which  was  to  culminate 
in  his  swindling  the  Government  out  of  a  million 
and  a  quarter  dollars;  and  finally  the  bibulous  and 
traitorous  Wilkinson,  "whose  head"  as  he  himself 
owned,  "might  err,"  but  "whose  heart  could  not 
deceive. "  Traveling  by  packet  from  New  Orleans, 
this  essential  witness  was  heralded  by  the  impatient 
prosecution,  till  at  last  he  burst  upon  the  stage  with 
all  the  eclat  of  the  hero  in  a  melodrama  —  only  to 
retire  baffled  and  perplexed,  his  villainy  guessed  by 
his  own  partisans. 

By  the  Constitution  treason  against  the  United 
States  consists  "only  in  levying  war  against  them, 
or  in  adhering  to  their  enemies,  giving  them  aid  and 
comfort,"  and  no  person  may  be  convicted  of  it 
"unless  on  the  testimony  of  two  witnesses  to  the 
same  overt  act,  or  on  confession  in  open  court." 
The  motion  to  commit  Burr  for  treason  thus  raised 
at  the  outset  the  question  whether  in  this  case  an 
"overt  act"  existed,  Marshall,  who  held  that  no  ) 
evidence  had  been  shown  to  this  effect,  denied 
the  motion,  but  consented  to  commit  the  prison 
er  on  the  lesser  charge  that  he  had  attempted  a 


94    MARSHALL  AND  THE  CONSTITUTION 

military  expedition  against  Spain.  As  this  was  a 
bailable  offense,  however,  Burr  was  soon  at  liberty 
once  more. 

Nor  was  this  the  only  respect  in  which  the  pre 
liminary  proceedings  sounded  a  note  of  antago 
nism  between  the  Chief  Justice  and  the  Adminis 
tration  which  was  to  recur  again  and  yet  again  in 
the  months  following.  Only  a  few  weeks  earlier 
at  Washington,  Marshall  had,  though  with  some 
apparent  reluctance,  ordered  the  release  of  Boll- 
mann  and  Swartwout,  two  of  Burr's  tools,  from  the 
custody  of  the  Federal  authorities.  Alluding  in 
his  present  opinion  to  his  reason  for  his  earlier 
action,  he  wrote:  "More  than  five  weeks  have 
elapsed  since  the  opinion  of  the  Supreme  Court  has 
declared  the  necessity  of  proving  the  fact,  if  it 
exists.  Why  is  it  not  proved?  To  the  executive 
government  is  entrusted  the  important  power  of 
prosecuting  those  whose  crimes  may  disturb  the 
public  repose  or  endanger  its  safety.  It  would 
be  easy,  in  much  less  time  than  has  intervened 
since  Colonel  Burr  has  been  alleged  to  have  as 
sembled  his  troops,  to  procure  affidavits  estab 
lishing  the  fact. " 

This  sharp  criticism  brought  an  equally  sharp 
retort  from  Jefferson,  to  which  was  added  a  threat. 


THE  TRIAL  OF  AARON  BURR  95 

In  a  private  letter  of  the  20th  of  April,  the  Presi 
dent  said:  "In  what  terms  of  decency  can  we  speak 
of  this?  As  if  an  express  could  go  to  Natchez  or  the 
mouth  of  the  Cumberland  and  return  in  five  weeks, 
to  do  which  has  never  taken  less  than  twelve!  .  .  . 
But  all  the  principles  of  law  are  to  be  perverted 
which  would  bear  on  the  favorite  offenders  wrho 
endeavor  to  overturn  this  odious  republic!  .  .  . 
All  this,  however,  will  work  well.  The  nation  will 
judge  both  the  offender  and  judges  for  themselves. 
.  .  .  They  will  see  then  and  amend  the  error  in 
our  Constitution  which  makes  any  branch  inde 
pendent  of  the  nation.  ...  If  their  [the  judges] 
protection  of  Burr  produces  this  amendment,  it 
will  do  more  good  than  his  condemnation  would 
.have  done."  Already  the  case  had  taken  on  the 
color  of  a  fresh  contest  between  the  President  and^ 
the  Chief  Justice. 

On  the  22d  of  May  the  United  States  Court 
for  the  Fifth  Circuit  and  the  Virginia  District  for 
mally  convened,  with  Marshall  presiding  and  Judge 
Griffin  at  his  side.  On  the  same  day  the  grand 
jury  was  sworn,  with  John  Randolph  as  fore 
man,  and  presently  began  taking  testimony.  Un 
luckily  for  the  prosecution,  the  proceedings  now 
awaited  the  arrival  of  Wilkinson  and  the  delay  was 


96    MARSHALL  AND  THE  CONSTITUTION 

turned  to  skillful  use  by  the  defense  to  embroil 
further  the  relations  between  the  Chief  Justice  and 
the  President.  With  this  end  in  view,  Burr  moved 
on  the  9th  of  June  that  a  subpoena  duces  tecum 
issue  to  Jefferson  requiring  him  to  produce  certain 
papers,  including  the  famous  cipher  letter  to  Wil 
kinson.  The  main  question  involved,  of  course, 
was  that  of  the  right  of  the  Court  under  any  cir 
cumstances  to  issue  a  subpoena  to  the  President, 
but  the  abstract  issue  soon  became  involved  with  a 
much  more  irritating  personal  one.  "This,"  said 
Luther  Martin,  who  now  found  himself  in  his 
element,  "this  is  a  peculiar  case,  sir.  The  Presi 
dent  has  undertaken  to  prejudge  my  client  by 
declaring  that  'of  his  guilt  there  is  no  doubt.'  He 
has  assumed  to  himself  the  knowledge  of  the  Su 
preme  Being  himself  and  pretended  to  search  the 
heart  of  my  highly  respected  friend.  He  has  pro 
claimed  him  a  traitor  in  the  face  of  the  country 
which  has  rewarded  him.  He  has  let  slip  the  dogs 
of  war,  the  hell-hounds  of  persecution,  to  hunt 
down  my  friend.  And  would  this  President  of  the 
United  States,  who  has  raised  all  this  absurd 
clamor,  pretend  to  keep  back  the  papers  which  are 
wanted  for  this  trial,  where  life  itself  is  at  stake?" 
Wirt's  answer  to  Martin  was  also  a  rebuke  to  the 


THE  TRIAL  OF  AARON  BURR     97 

Court.  "Do  they  [the  defense]  flatter  themselves," 
he  asked,  "that  this  court  feel  political  prejudices 
which  will  supply  the  place  of  argument  and  inno 
cence  on  the  part  of  the  prisoner?  Their  conduct 
amounts  to  an  insinuation  of  the  sort.  But  I  do  not 
believe  it.  ...  Sir,  no  man,  foreigner  or  citizen, 
who  hears  this  language  addressed  to  the  court,  and 
received  with  all  the  complacency  at  least  which 
silence  can  imply,  can  make  any  inference  from 
it  very  honorable  to  the  court."  These  words 
touched  Marshall's  conscience,  as  well  they  might. 
At  the  close  of  the  day  he  asked  counsel  hence 
forth  to  "confine  themselves  to  the  point  really 
before  the  court"  —  a  request  which,  however, 
was  by  no  means  invariably  observed  through 
the  following  days. 

A  day  or  two  later  Marshall  ruled  that  the  sub 
poena  should  issue,  holding  that  neither  the  per 
sonal  nor  the  official  character  of  the  President 
exempted  him  from  the  operation  of  that  constitu 
tional  clause  which  guarantees  accused  persons 
"compulsory  process  for  obtaining  witnesses"  in 
their  behalf.  The  demand  made  upon  the  Presi 
dent,  said  the  Chief  Justice,  by  his  official  duties 
is  not  an  unremitting  one,  and,  "if  it  should  exist 
at  the  time  when  his  attendance  on  a  court  is 


98    MARSHALL  AND  THE  CONSTITUTION 

required,  it  would  be  sworn  on  the  return  of  the 
subpoena  and  would  rather  constitute  a  reason  for 
not  obeying  the  process  of  the  court  than  a  rea 
son  against  its  being  issued. "  Jefferson,  however, 
neither  obeyed  the  writ  nor  swore  anything  on  its 
return,  though  he  forwarded  some  of  the  papers 
required  to  Hay,  the  district  attorney,  to  be  used 
as  the  latter  might  deem  best.  The  President's 
argument  was  grounded  on  the  mutual  independ 
ence  of  the  three  departments  of  Government;  and 
he  asked  whether  the  independence  of  the  Execu 
tive  could  long  survive  "if  the  smaller  courts  could 
bandy  him  from  pillar  to  post,  keep  him  constantly 
trudging  from  North  to  South  and  East  to  West, 
and  withdraw  him  entirely  from  his  executive 
duties?"  The  President  had  the  best  of  the  en 
counter  on  all  scores.  Not  only  had  Marshall  for 
gotten  for  the  nonce  the  doctrine  he  himself  had 
stated  in  Marbury  vs.  Madison  regarding  the  con 
stitutional  discretion  of  the  Executive,  but  what  was 
worse  still,  he  had  forgotten  his  own  discretion  on 
that  occasion.  He  had  fully  earned  his  rebuff,  but 
that  fact  did  not  appreciably  sweeten  it. 

On  the  24th  of  June  the  grand  jury  reported  two 
indictments  against  Burr,  one  for  treason  and  the 
other  for  misdemeanor.  The  former  charged  that 


THE  TRIAL  OF  AARON  BURR     99 

Burr,  moved  thereto  "by  the  instigation  of  the 
devil,"  had  on  the  10th  of  December  previous 
levied  war  against  the  United  States  at  Blenner- 
hassett's  island,  in  the  county  of  Wood,  of  the  Dis 
trict  of  Virginia,  and  had  on  the  day  following,  at 
the  same  place,  set  in  motion  a  warlike  array 
against  the  city  of  New  Orleans.  The  latter 
charged  that  a  further  purpose  of  this  same  war 
like  array  was  an  invasion  of  Mexico.  Treason  not 
being  a  bailable  offense,  Burr  had  now  to  go  to 
jail,  but,  as  the  city  jail  was  alleged  to  be  unhealth- 
ful,  the  Court  allowed  him  to  be  removed  to  quar 
ters  which  had  been  proffered  by  the  Governor  of 
the  State  in  the  penitentiary  just  outside  the  city. 
Burr's  situation  here,  writes  his  biographer,  "was 
extremely  agreeable.  He  had  a  suite  of  rooms  in 
the  third  story,  extending  one  hundred  feet,  where 
he  was  allowed  to  see  his  friends  without  the  pres 
ence  of  a  witness.  His  rooms  were  so  thronged  with 
visitors  at  times  as  to  present  the  appearance  of 
a  levee.  Servants  were  continually  arriving  with 
messages,  notes,  and  inquiries,  bringing  oranges, 
lemons,  pineapples,  raspberries,  apricots,  cream, 
butter,  ice,  and  other  articles  —  presents  from  the 
ladies  of  the  city.  In  expectation  of  his  daugh 
ter's  arrival,  some  of  his  friends  in  town  provided 


100  MARSHALL  AND  THE  CONSTITUTION 

a  house  for  her  accommodation.  The  jailer,  too, 
was  all  civility.  "J  Little  wonder  that  such  goings- 
on  are  said  to  have  "filled  the  measure  of  Jeffer 
son's  disgust. " 

The  trial  itself  opened  on  Monday,  the  3d  of 
August.  The  first  business  in  hand  was  to  get 
a  jury  which  would  answer  to  the  constitutional 
requirement  of  impartiality  —  a  task  which  it  was 
soon  discovered  was  likely  to  prove  a  difficult  one. 
The  original  panel  of  forty-eight  men  contained 
only  four  who  had  not  expressed  opinions  unfavor 
able  to  the  prisoner,  and  of  these  four  all  but  one 
admitted  some  degree  of  prejudice  against  him. 
These  four  were  nevertheless  accepted  as  jurors. 
A  second  panel  was  then  summoned  which  was 
even  more  unpromising  in  its  make-up,  and  Burr's 
counsel  began  hinting  that  the  trial  would  have  to 
be  quashed,  when  Burr  himself  arose  and  offered  to 
select  eight  out  of  the  whole  venire  to  add  to  the 
four  previously  chosen.  The  offer  was  accepted, 
and  notwithstanding  that  several  of  the  jurors 
thus  obtained  had  publicly  declared  opinions  hos 
tile  to  the  accused,  the  jury  was  sworn  in  on  the 
17th  of  August. 

1  Parton's  Life  and  Times  of  Aaron  Burr  (13th  Edition,  N.  Y.,  1860). 
p.  479. 


THE  TRIAL  OF  AARON  BURR          101 

At  first  glance  Burr's  concession  in  the  select 
ing  of  a  jury  seems  extraordinary.  But  then, 
why  should  one  so  confident  of  being  able  to 
demonstrate  his  innocence  fear  prejudice  which 
rested  on  no  firmer  basis  than  ignorance  of  the 
facts?  This  reflection,  however,  probably  played 
small  part  in  Burr's  calculations,  for  already  he 
knew  that  if  the  contemplated  strategy  of  his 
counsel  prevailed  the  case  would  never  come  be 
fore  the  jury. 

The  first  witness  called  by  the  prosecution  was 
Eaton,  who  was  prepared  to  recount  the  substance 
of  numerous  conversations  he  had  held  with  Burr 
in  Washington  in  the  winter  of  1805-6,  in  which 
Burr  had  gradually  unveiled  to  him  the  treason 
able  character  of  his  project.  No  sooner,  however, 
was  Eaton  sworn  than  the  defense  entered  the  ob 
jection  that  his  testimony  was  not  yet  relevant, 
contending  that  in  a  prosecution  for  treason  the 
great  material  fact  on  which  the  merits  of  the  en 
tire  controversy  pivots  was  the  overt  act,  which 
must  be  "<m  open  act  of  war";  just  as  in  a  mur 
der  trial  the  fact  of  the  killing,  the  corpus  delicti, 
must  be  proved  before  any  other  testimony  was 
relevant,  so  in  the  pending  prosecution,  said  they, 
no  testimony  was  admissible  until  the  overt  act 


.    .    . 

Ifte  MARSHALL  AND  THE  CONSTITUTION 

had  been  shown  in  the  manner  required  by  the 
Constitution. 

The  task  of  answering  this  argument  fell  to  Wirt, 
who  argued,  and  apparently  with  justice,  that  the 
prosecution  was  free  to  introduce  its  evidence  in 
any  order  it  saw  fit,  provided  only  that  the  evi 
dence  was  relevant  to  the  issue  raised  by  the  indict 
ment,  and  that  if  an  overt  act  was  proved  "in  the 
course  of  the  whole  evidence,"  that  would  be  suf 
ficient.  The  day  following  the  Court  read  an  opin 
ion  which  is  a  model  of  ambiguous  and  equivo 
cal  statement,  but  the  purport  was  fairly  clear: 
for  the  moment  the  Court  would  not  interfere, 
and  the  prosecution  was  free  to  proceed  as  it 
thought  best,  with  the  warning  that  the  Damo 
cles  sword  of  "irrelevancy"  was  suspended  over 
its  head  by  the  barest  thread  and  might  fall  at 
any  moment. 

the  next  two  days  the  legal  battle  was  kept 
in  abeyance  while  the  taking  of  testimony  went  for 
ward.  Eaton  was  followed  on  the  stand  by  Com 
modore  Truxton,  who  stated  that  in  conversation 
with  him  Burr  had  seemed  to  be  aiming  only  at 
an  expedition  against  Mexico.  Then  came  General 
Morgan  and  his  two  sons,  who  asserted  their  be 
lief  in  the  treasonable  character  of  Burr's  designs. 


THE  TRIAL  OF  AARON  BURR          103 

Finally  a  series  of  witnesses,  the  majority  of  them 
servants  of  Blennerhassett,  testified  that  on  the 
evening  of  December  10,  1806,  Burr's  forces  had 
assembled  on  the  island. 

This  line  of  testimony  concluded,  the  prosecu 
tion  next  indicated  its  intention  of  introducing 
evidence  to  show  Burr's  connection  with  the  as 
semblage  on  the  island,  when  the  defense  sprang 
the  coup  it  had  been  maturing  from  the  outset. 
Pointing  out  the  notorious  fact  that  on  the  night 
of  the  10th  of  December  Burr  had  not  been  present 
at  the  island  but  had  been  two  hundred  miles  away 
in  Kentucky,  they  contended  that,  under  the  Con 
stitution,  the  assemblage  on  Blennerhassett's  is 
land  could  not  be  regarded  as  his  act,  even  granting 
that  he  had  advised  it,  for,  said  the.y^jidvising  war 
is  one  thing  but  levying  it  is  quite  another.  If  this 
interpFetaIi6n"'was  correct,  then  no  overt  act  of 
levying  war,  either  within  the  jurisdiction  of  the 
Court  or  stated  in  the  indictment,  had  been,  or 
could  be,  shown  against  Burr.  Hence  the  taking  of 
evidence  —  if  not  the  cause  itself,  indeed  —  should 
be  discontinued. 

The  legal  question  raised  by  this  argument  was 
the  comparatively  simple  one  whether  the  con 
stitutional  provision  regarding  treason  was  to  be 


104  MARSHALL  AND  THE  CONSTITUTION 

interpreted  in  the  light  of  the  Common  Law  doc 
trine  that  "in  treason  all  are  principals. "  For  if  it 
were  to  be  so  interpreted  and  if  Burr's  connection 
with  the  general  conspiracy  culminating  in  the  as 
semblage  was  demonstrable  by  any  sort  of  legal 
evidence,  then  the  assemblage  was  his  act,  his  overt 
act,  proved  moreover  by  thrice  the  two  witnesses 
constitutionally  required!  Again  it  fell  to  Wirt 
to  represent  the  prosecution,  and  he  discharged 
his  task  most  brilliantly.  He  showed  beyond  per- 
adventure  that  the  Common  Law  doctrine  was 
grounded  upon  unshakable  authority;  that,  con 
sidering  the  fact  that  the  entire  phraseology  of  the 
constitutional  clause  regarding  treason  comes  from 
an  English  statute  of  Edward  Ill's  time,  it  was 
reasonable,  if  not  indispensable,  to  construe  it  in 
the  light  of  the  Common  Law;  and  that,  certainly 
as  to  a  procurer  of  treason,  such  as  Burr  was 
charged  with  being,  the  Common  Law  doctrine 
was  the  only  just  doctrine,  being  merely  a  re- 
affirmation  of  the  even  more  ancient  principle  that 
"what  one  does  through  another,  he  does  himself." 
In  elaboration  of  this  last  point  Wirt  launched 
forth  upon  that  famous  passage  in  which  he 
contrasted  Burr  and  the  pathetic  victim  of 
his  conspiracy: 


THE  TRIAL  OF  AARON  BURR          105 

Who  [he  asked]  is  Blennerhassett?  A  native  of  Ireland, 
a  man  of  letters,  who  fled  from  the  storms  of  his  own 
country  to  find  quiet  in  ours.  .  .  .  Possessing  himself 
of  a  beautiful  island  in  the  Ohio  he  rears  upon  it  a 
palace  and  decorates  it  with  every  romantic  embellish 
ment  of  fancy.  [Then]  in  the  midst  of  all  this  peace, 
this  innocent  simplicity,  this  pure  banquet  of  the  heart, 
the  destroyer  comes  ...  to  change  this  paradise  into 
a  hell.  .  .  .  By  degrees  he  infuses  [into  the  heart  of 
Blennerhassett]  the  poison  of  his  own  ambition.  .  .  . 
In  a  short  time  the  whole  man  is  changed,  and  every 
object  of  his  former  delight  is  relinquished.  .  .  .  His 
books  are  abandoned.  .  .  .  His  enchanted  island  is  des 
tined  soon  to  relapse  into  a  wilderness;  and  in  a  few 
months  we  find  the  beautiful  and  tender  partner  of  his 
bosom,  whom  he  lately  *  permitted  not  the  winds  of 
summer  to  visit  too  roughly,'  we  find  her  shivering  at 
midnight  on  the  winter  banks  of  the  Ohio  and  mingling 
her  tears  with  the  torrents  that  froze  as  they  fell.  Yet 
this  unfortunate  man,  thus  ruined,  and  undone  and 
made  to  play  a  subordinate  part  in  this  grand  drama  of 
guilt  and  treason,  this  man  is  to  be  called  the  principal 
offender,  while  he  by  whom  he  was  thus  plunged  in 
misery  is  comparatively  innocent,  a  mere  accessory! 
Is  this  reason?  Is  it  law?  Is  it  humanity?  Sir,  neither 
the  human  heart  nor  the  human  understanding  will  bear 
a  perversion  so  monstrous  and  absurd ! 

But  there  was  one  human  heart,  one  human 
understanding  —  and  that,  in  ordinary  circum 
stances,  a  very  good  one  —  which  was  quite  willing 
to  shoulder  just  such  a  monstrous  perversion,  or 


106  MARSHALL  AND  THE  CONSTITUTION 

at  least  its  equivalent,  and  that  heart  was  John 
Marshall's .  The  discussion  of  the  motion  to  arrest 
the  evidence  continued  ten  days,  most  of  the  time 
being  occupied  by  Burr's  attorneys.1  Finally,  on 
the  last  day  of  the  month,  the  Chief  Justice  handed 
down  an  opinion  accepting  practically  the  whole 
contention  of  Burr's  attorneys,  but  offering  a 
totally  new  set  of  reasons  for  it.  On  the  main  ques 
tion  at  issue,  namely,  whether  under  the  Constitu 
tion  all  involved  in  a  treasonable  enterprise  are 
principals,  Marshall  pretended  not  to  pass;  but  in 
fact  he  rejected  the  essential  feature  of  the  Com 
mon  Law  doctrine,  namely,  the  necessary  legal 
presence  at  the  scene  of  action  of  all  parties  to  the 
conspiracy.  The  crux  of  his  argument  he  embodied 
in  the  following  statement:  "If  in  one  case  the 


1  A  recurrent  feature  of  their  arguments  was  a  denunciation  of 
"constructive  treason."  But  this  was  mere  declamation.  Nobody 
was  charging  Burr  with  any  sort  of  treason  except  that  which  is  spe 
cifically  defined  by  the  Constitution  itself,  namely,  the  levying  of  war 
against  the  United  States.  The  only  question  at  issue  was  as  to  the 
method  of  proof  by  which  this  crime  may  be  validly  established  in  the 
case  of  one  accused  of  procuring  treason.  There  was  also  much  talk 
about  the  danger  and  injustice  of  dragging  a  man  from  one  end  of  the 
country  to  stand  trial  for  an  act  committed  at  the  other  end  of  it. 
The  answer  was  that,  if  the  man  himself  procured  the  act  or  joined 
others  in  bringing  it  about,  he  ought  to  stand  trial  where  the  act 
occurred.  This  same  "injustice"  may  happen  today  in  the  case  of 
murder! 


THE  TRIAL  OF  AARON  BURR          107 

presence  of  the  individual  make  the  guilt  of  the 
[treasonable]  assemblage  his  guilt,  and  in  the  other 
case,  the  procurement  by  the  individual  make  the 

guilt  of  the  [treasonable]  assemblage,  his  guilt,  then  j 

— — ^^^^ 

presence  and  procurement  are  equally  compone»^4 
parts  of  the  overt  act,  and  equally  require  two 
witnesses^l  Unfortunately  for  this  argument,  the 
Constitution  does  not  require  that  the  "component 
parts  "  of  the  overt  act  be  proved  by  two  witnesses, 
but  only  that  the  overt  act  —  the  corpus  delicti  - 
be  so  proved;  and  for  the  simple  reason  that,  when 
by  further  evidence  any  particular  individual  is 
connected  with  the  treasonable  combination  which 
brought  about  the  overt  act,  that  act,  assuming 
the  Common  Law  doctrine,  becomes  his  act,  and 
he  is  accordingly  responsible  for  it  at  the  place 
where  it  occurred.  Burr's  attorneys  admitted  this 
contention  unreservedly.  Indeed,  that  was  pre 
cisely  the  reason  why  they  had  opposed  the  Com 
mon  Law  doctrine. 

Marshall's  effort  to  steer  between  this  doctrine 
and  its  obvious  consequences  for  the  case  before 
him  placed  him,  therefore,  in  the  curious  position 
of  demanding  that  two  overt  acts  be  proved  each  by 
two  witnesses.  But  if  two,  why  not  twenty?  For 
it  must  often  happen  that  the  traitor's  connection 


108  MARSHALL  AND  THE  CONSTITUTION 

with  the  overt  act  is  demonstrable  not  by  a  sin 
gle  act  but  a  series  of  acts.  Furthermore,  in  the 
case  of  procurers  of  treason,  this  connection  will 
ordinarily  not  appear  in  overt  acts  at  all  but,  as  in 
Burr's  own  case,  will  be  covert.  Can  it  be,  then, 
that  the  Constitution  is  chargeable  with  the  ab 
surdity  of  regarding  the  procurers  of  treason  as 
traitors  and  yet  of  making  their  conviction  im 
possible?  The  fact  of  the  matter  was  that  six 
1*  months  earlier,  before  his  attitude  toward  Burr's 
doings  had  begun  to  take  color  from  his  hatred 
and  distrust  of  Jefferson,  Marshall  had  entertained 
no  doubt  that  the  Common  Law  doctrine  underlay 
the  constitutional  definition  of  treason.  Speaking 
for  the  Supreme  Court  in  the  case  of  Bollmann 
and  Swartwout,  he  had  said:  "It  is  not  the  inten 
tion  of  the  Court  to  say  that  no  individual  can  be 
guilty  of  this  crime  who  has  not  appeared  in  arms 
against  his  country;  on  the  contrary,  if  war  be  ac 
tually  levied,  that  is,  if  a  body  of  men  be  actually 
assembled  for  the  purpose  of  effecting  by  JorceTar 
treasonable  purpose,  all  those  who  perform  any 
part  however  minute,  or  however  remote  from  the 
scene  of  action,  and  who  are  actually  leagued  in  the 
general  conspiracy,  are  to  be  considered  traitors." 
Marshall's  effort  to  square  this  previous  opinion 


THE  TRIAL  OF  AARON  BURR          109 

with  his  later  position  was  as  unconvincing  as  it 
was  labored.1 

Burr's  attorneys  were  more  prudent:  they  dis 
missed  Marshall's  earlier  words  outright  as  obiter 
dicta  —  and  erroneous  at  that !  Nevertheless  when , 
thirty  years  later,  Story,  Marshall's  friend  and  pu 
pil,  was  in  search  of  the  best  judicial  definition  of 
treason  within  the  meaning  of  the  Constitution, 
he  selected  this  sentence  from  the  case  of  Boll- 
mann  and  Swartwout  and  passed  by  the  elabo 
rate  opinion  in  Burr's  case  in  significant  silence. 
But  reputation  is  a  great  magician  in  transmut 
ing  heresy  into  accepted  teaching.  Posthumously 
Marshall's  opinion  has  attained  a  rank  and  au 
thority  with  the  legal  profession  that  it  never  en 
joyed  in  his  own  time.  Regarding  it,  therefore,  as 
today  established  doctrine,  we  may  say  that  it  has 
quite  reversed  the  relative  importance  of  conspir 
acy  and  overt  act  where  the  treason  is  by  levying 

1  The  way  in  which  Marshall  proceeded  to  do  this  was  to  treat  the* 
phrase  "perform  a  part"  as  demanding  "a  levying  of  war"  on  the 
part  of  the  performer.  (Robertson,  Reports,  vol.  n,  p.  438.)  But  this 
explanation  will  not  hold  water.  For  what  then  becomes  of  the  phrase 
"scene  of  action"  in  the  passage  just  quoted?  What  is  the  differ 
ence  between  the  part  to  be  performed  "however  minute,"  and  the 
' '  action ' '  from  which  the  performer  may  be  ' '  however  remote  "  ?  It  is 
perfectly  evident  that  the  "action"  referred  to  is  the  assemblage 
which  is  regarded  as  the  overt  act  of  war,  and  that  the  "part  however 
minute"  is  something  very  different. 


110  MARSHALL  AND  THE  CONSTITUTION 

war.  At  the  Common  Law,  and  in  the  view  of  the 
framers  of  the  Constitution,  the  importance  of  the 
overt  act  of  war  was  to  make  the  conspiracy  visi 
ble,  to  put  its  existence  beyond  surmise.  By  Mar:, 
shall's  view  each  traitor  is  chargeable  only  with  his 
own  overt  acts,  and  the  conspiracy  is  of  impor 
tance  merely  as  showing  the  intention  of  such  acts. 
And  from  this  it  results  logically,  as  Marshall  saw, 
though  he  did  not  venture  to  say  so  explicitly,  that 
the  procurer  of  treason  is  not  a  traitor  unless  he  has 
also  participated  personally  in  an  overt  act  of  war. 
As  Wirt  very  justifiably  contended,  such  a  result 
is  "monstrous, "  and,  what  is  more,  it  has  not  been 
possible  to  adhere  to  it  in  practice.  In  recent  legis 
lation  necessitated  by  the  Great  War,  Congress  has 
restored  the  old  Common  Law  view  of  treason  but 
has  avoided  the  constitutional  difficulty  by  labeling 
the  offense  "Espionage."  Indeed,  the  Espionage 
Act  of  June  15,  1917,  scraps  Marshall's  opinion 
pretty  completely.1 

On  the  day  following  the  reading  of  Marshall's 

1  See  especially  Title  I,  Section  4,  of  the  Act.  For  evidence  of  the 
modern  standing  of  Marshall's  opinion,  see  the  chorus  of  approval 
sounded  by  the  legal  fraternity  in  Dillon's  three  volumes.  In  support 
of  the  Common  Law  doctrine,  see  the  authorities  cited  in  27  Yale  Law 
Journal,  p.  342  and  footnotes;  the  chapter  on  Treason  in  Simon 
Greenleaf  's  well-known  Treatise  on  the  Law  of  Evidence;  United  States 
vs.  Mitchell,  2  Dallas,  348;  and  Druecker  vs.  Salomon,  21  Wis.,  621. 


JOSEPH  STORY 

Engraving,  after  a  crayon  drawing  by  his  son,  William  Wetmore 
Story,  the  poet  and  sculptor. 


iew  of  th 
ace  of  th 
racy  visi 


'i  all  saw 
tly,  £ha1 


inr>iIH7/   fnoe  airf  ^d     niwinb  noy^im  j;  TJ^J;  . 


bnr,  teoq  orii  tY,ioJe 


nion 
^f  Mars! 


THE  TRIAL  OF  AARON  BURR          111 

opinion,  the  prosecution,  unable  to  produce  two 
witnesses  who  had  actually  seen  Burr  procure  the 
assemblage  on  the  island,  abandoned  the  case  to 
the  jury.  Shortly  thereafter  the  following  verdict 
was  returned:  "We  of  the  jury  say  that  Aaron 
Burr  is  not  proved  to  be  guilty  under  this  in 
dictment  by  any  evidence  submitted  to  us.  We 
therefore  find  him  not  guilty. "  '  At  the  order  of  the 
Chief  Justice  this  Scotch  verdict  was  entered  on  the 
records  of  the  court  as  a  simple  Not  Guilty. 

Marshall's  conduct  of  Burr's  trial  for  treason  is 
the  one  serious  blemish  in  his  judicial  record,  but 
for  all  that  it  was  not  without  a  measure  of  ex 
tenuation.  The  President,  too,  had  behaved  de 
plorably  and,  feeling  himself  on  the  defensive,  had 
pressed  matters  with  most  unseemly  zeal,  so  that 
the  charge  of  political  persecution  raised  by  Burr's 
attorneys  was,  to  say  the  least,  not  groundless. 
Furthermore,  in  opposing  the  President  in  this 
matter,  Marshall  had  shown  his  usual  political 
sagacity.  Had  Burr  been  convicted,  the  advantage 
must  all  have  gone  to  the  Administration.  The 
only  possible  credit  the  Chief  Justice  could  extract 
from  the  case  would  be  from  assuming  that  lofty 
tone  of  calm,  unmoved  impartiality  of  which  Mar 
shall  was  such  a  master  —  and  never  more  than  on 


112  MARSHALL  AND  THE  CONSTITUTION 

this  occasion  —  and  from  setting  himself  sternly 
against  popular  hysteria.  The  words  with  which 
his  opinion  closes  have  been  often  quoted: 

Much  has  been  said  in  the  course  of  the  argument  on 
points  on  which  the  Court  feels  no  inclination  to  com 
ment  particularly,  but  which  may,  perhaps  not  im 
properly  receive  some  notice. 

That  this  Court  dare  not  usurp  power  is  most  true. 

That  this  Court  dare  not  shrink  from  its  duty  is  not 
less  true. 

No  man  is  desirous  of  placing  himself  in  a  disagree 
able  situation.  No  man  is  desirous  of  becoming  the 
popular  subject  of  calumny.  No  man,  might  he  let  the 
bitter  cup  pass  from  him  without  self-reproach,  would 
drain  it  to  the  bottom.  But  if  he  have  no  choice  in  the 
case,  if  there  be  no  alternative  presented  to  him  but  a 
dereliction  of  duty  or  the  opprobrium  of  those  who  are 
denominated  the  world,  he  merits  the  contempt  as  well 
as  the  indignation  of  his  country  who  can  hesitate  which 
to  embrace. 

One  could  not  require  a  better  illustration  of  that 
faculty  of  "apparently  deep  self -conviction  "  which 
Wirt  had  noted  in  the  Chief  Justice. 

Finally,  it  must  be  owned  that  Burr's  case  of 
fered  Marshall  a  tempting  opportunity  to  try  out 
the  devotion  of  Republicans  to  that  ideal  of  judi 
cial  deportment  which  had  led  them  so  vehemently 
to  criticize  Justice  Chase  and  to  charge  him  with 


THE  TRIAL  OF  AARON  BURR          113 

being  "oppressive,"  with  refusing  to  give  counsel 
for  defense  an  opportunity  to  be  heard,  with  trans 
gressing  the  state  law  of  procedure,  with  showing 
too  great  liking  for  Common  Law  ideas  of  sedi 
tion,  with  setting  up  the  President  as  a  sort  of 
monarch  beyond  the  reach  of  judicial  process. 
Marshall's  conduct  of  Burr's  trial  now  exactly 
reversed  every  one  of  these  grounds  of  complaint. 
Whether  he  intended  it  or  not,  it  was  a  neat  turning 
of  the  tables. 

But  Jefferson,  who  was  at  once  both  the  most 
theoretical  and  the  least  logical  of  men,  was  of 
course  hardly  prepared  to  see  matters  in  that  light. 
As  soon  as  the  news  reached  him  of  Burr's  ac 
quittal,  he  ordered  Hay  to  press  the  indictment  for 
misdemeanor  —  not  for  the  purpose  of  convicting 
Burr,  but  of  getting  the  evidence  down  in  a  form 
in  which  it  should  be  available  for  impeachment 
proceedings  against  Marshall.  For  some  weeks 
longer,  therefore,  the  Chief  Justice  sat  listening 
to  evidence  which  was  to  be  used  against  himself. 
But  the  impeachment  never  came,  for  a  chain  is 
only  as  strong  as  its  weakest  link,  and  the  weak 
est  link  in  the  combination  against  the  Chief  Jus 
tice  was  a  very  fragile  one  indeed  —  the  iniquitous 
Wilkinson.  Even  the  faithful  and  melancholy  Hay 


114  MARSHALL  AND  THE  CONSTITUTION 

finally  abandoned  him.  "The  declaration  which  I 
made  in  court  in  his  favor  some  time  ago,"  he 
wrote  the  President,  "was  precipitate.  .  .  .  My 
confidence  in  him  is  destroyed.  ...  I  am  sorry 
for  it,  on  his  account,  on  the  public  account,  and 
because  you  have  expressed  opinions  in  his  favor." 
It  was  obviously  impossible  to  impeach  the  Chief 
Justice  for  having  prevented  the  hanging  of  Aaron 
Burr  on  the  testimony  of  such  a  miscreant. 

Though  the  years  immediately  following  the 
Burr  trial  were  not  a  time  of  conspicuous  activity 
for  Marshall,  they  paved  the  way  in  more  than  one 
direction  for  his  later  achievement.  Jefferson's  re 
tirement  from  the  Presidency  at  last  relieved  the 
/  Chief  Justice  from  the  warping  influence  of  a  hate 
ful  personal  contest  and  from  anxiety  for  his  official 
security.  Jefferson's  successors  were  men  more  will 
ing  to  identify  the  cause  of  the  Federal  Judiciary 
with  that  of  national  unity.  Better  still,  the  War 
of  1812  brought  about  the  demise  of  the  Feder 
alist  party  and  thus  cleared  the  Court  of  every 
suspicion  of  partisan  bias.  Henceforth  the  great 
political  issue  was  the  general  one  of  the  nature  of 
the  Union  and  the  Constitution,  a  field  in  which 
Marshall's  talent  for  debate  made  him  master. 


THE  TRIAL  OF  AARON  BURR          115 

In  the  meantime  the  Court  was  acquiring  that 
personnel  which  it  was  to  retain  almost  intact  for 
nearly  twenty  years;  and,  although  the  new  re 
cruits  came  from  the  ranks  of  his  former  party  foes, 
Marshall  had  little  trouble  in  bringing  their  views 
into  general  conformity  with  his  own  constitution 
al  creed.  Nor  was  his  triumph  an  exclusively 
personal  one.  He  was  aided  in  very  large  measure 
by  the  fact  that  the  war  had  brought  particularism^ 
temporarily  into  discredit  in  all  sections  of  the 
country.  Of  Marshall's  associates  in  1812,  Justice 
Washington  alone  had  come  to  the  bench  earlier, 
yet  he  was  content  to  speak  through  the  mouth  of 
his  illustrious  colleague,  save  on  the  notable  occa 
sion  when  he  led  the  only  revolt  of  a  majority  of 
the  Court  from  the  Chief  Justice's  leadership  in  the 
field  of  Constitutional  Law.1  Johnson  of  South 
Carolina,  a  man  of  no  little  personal  vanity,  af 
fected  a  greater  independence,  for  which  he  was 
on  one  occasion  warmly  congratulated  by  Jefferson ; 
yet  even  his  separate  opinions,  though  they  some 
times  challenge  Marshall's  more  sweeping  premises 
and  bolder  method  of  reasoning,  are  after  all  most 
ly  concurring  ones.  Marshall's  really  invaluable 

1  This  was  in  the  case  of  Ogden  vs.  Saunders,  12  Wheaton,  213 
(1827). 


116  MARSHALL  AND  THE  CONSTITUTION 

aid  among  his  associates  was  Joseph  Story,  who 
in  1811,  at  the  age  of  thirty-two,  was  appointed 
by  Madison  in  succession  to  Gushing.  Still  im 
mature,  enthusiastically  willing  to  learn,  warmly 
affectionate,  and  with  his  views  on  constitutional 
issues  as  yet  unformed,  Story  fell  at  once  under 
the  spell  of  Marshall's  equally  gentle  but  vastly 
more  resolute  personality;  and  the  result  was  one 
of  the  most  fruitful  friendships  of  our  history. 
Marshall's  "original  bias,"  to  quote  Story's  own 
words,  "as  well  as  the  choice  of  his  mind,  was  to 
general  principles  and  comprehensive  views,  rather 
than  to  technical  or  recondite  learning."  Story's 
.own  bias,  which  was  supported  by  his  prodigious 
industry,  was  just  the  reverse.  The  two  men  thus 
supplemented  each  other  admirably.  A  tradition 
of  some  venerability  represents  Story  as  having 
said  that  Marshall  was  wont  to  remark:  "Now 
Story,  that  is  the  law;  you  find  the  precedents  for 
it. "  Whether  true  or  not,  the  tale  at  least  illus 
trates  the  truth.  Marshall  owed  to  counsel  a  some 
what  similar  debt  in  the  way  of  leading  up  to  his 
decisions,  for,  as  Story  points  out,  "he  was  solicit 
ous  to  hear  arguments  and  not  to  decide  cases  with 
out  them,  nor  did  any  judge  ever  profit  more  by 
them. "  But  in  the  field  of  Constitutional  Law,  at 


THE  TRIAL  OF  AARON  BURR          117 

least,  Marshall  used  counsel's  argument  not  so  much 
to  indicate  what  his  own  judicial  goal  ought  to  be 
as  to  discover  the  best  route  thereto  —  often,  in 
deed,  through  the  welcome  stimulus  which  a  clash 
of  views  gave  to  his  reasoning  powers. 

Though  the  wealth  of  available  legal  talent  at 
this  period  was  impressively  illustrated  in  connec 
tion  both  with  Chase's  impeachment  and  with 
Burr's  trial,  yet  on  neither  of  these  occasions  ap 
peared  William  Pinkney  of  Maryland,  the  attorney 
to  whom  Marshall  acknowledged  his  greatest  in 
debtedness,  and  who  was  universally  acknowledged 
to  be  the  leader  of  the  American  Bar  from  1810 
until  his  death  twelve  years  later.  Besides  being  a 
great  lawyer,  Pinkney  was  also  a  notable  person 
ality,  as  George  Ticknor's  sketch  of  him  as  he 
appeared  before  the  Supreme  Court  in  1815  goes 
to  prove: 

You  must  imagine,  if  you  can,  a  man  formed  on  nature's 
most  liberal  scale,  who  at  the  age  of  50  is  possessed  with 
the  ambition  of  being  a  pretty  fellow,  wears  corsets  to 
diminish  his  bulk,  uses  cosmetics,  as  he  told  Mrs.  Gore, 
to  smooth  and  soften  a  skin  growing  somewhat  wrinkled 
and  rigid  with  age,  dresses  in  a  style  which  would  be 
thought  foppish  in  a  much  younger  man.  You  must 
imagine  such  a  man  standing  before  the  gravest  tribu 
nal  in  the  land,  and  engaged  in  causes  of  the  deepest 


118  MARSHALL  AND  THE  CONSTITUTION 

moment;  but  still  apparently  thinking  how  he  can  de 
claim  like  a  practised  rhetorician  in  the  London  Cockpit, 
which  he  used  to  frequent.  Yet  you  must,  at  the  same 
time,  imagine  his  declamation  to  be  chaste  and  precise 
in  its  language  and  cogent,  logical  and  learned  in  its 
argument,  free  from  the  artifice  and  affectation  of  his 
manner,  and  in  short,  opposite  to  what  you  might  fairly 
have  expected  from  his  first  appearance  and  tones. 
And  when  you  have  compounded  these  inconsistencies 
in  your  imagination,  and  united  qualities  which  on  com 
mon  occasions  nature  seems  to  hold  asunder,  you  will, 
perhaps,  begin  to  form  some  idea  of  what  Mr.  Pinkney  is. 

Such  was  the  man  whom  Marshall,  Story,  and 
Taney  all  considered  the  greatest  lawyer  who  had 
ever  appeared  before  the  Supreme  Court. 

At  the  close  of  the  War  of  1812,  Marshall, 
though  he  had  decided  many  important  questions 
of  International  Law,1  nevertheless  found  him 
self  only  at  the  threshold  of  his  real  fame.  Yet 
even  thus  early  he  had  indicated  his  point  of  view. 
Thus  in  the  case  of  the  United  States  vs.  Peters,2 
which  was  decided  in  1809,  the  question  before  the 
Court  was  whether  a  mandamus  should  issue  to  the 
United  States  District  Judge  of  Pennsylvania  order 
ing  him  to  enforce,  in  the  face  of  the  opposition  of 

1  Two  famous  decisions  of  Marshall's  in  this  field  are  those  in  the 
Schooner  Exchange  vs.  McFaddon  et  al,  7  Cranch,  116,  and  the  case  of 
the  Nereide,  9  ib.,  388. 

2  5  Cranch,  136. 


THE  TRIAL  OF  AARON  BURR          119 

the  state  Government,  a  decision  handed  down  in  a 
prize  case  more  than  thirty  years  before  by  the  old 
Committee  of  Appeals  of  the  Continental  Congress. 
Marshall  answered  the  question  affirmatively,  say 
ing:  "If  the  legislatures  of  the  several  states  may, 
at  will,  annul  the  judgments  of  the  courts  of  the 
United  States  and  destroy  the  rights  acquired  under 
those  judgments,  the  Constitution  itself  becomes  a 
solemn  mockery,  and  the  nation  is  deprived  of  the 
means  of  enforcing  its  laws  by  the  instrumentality 
of  its  own  tribunals. " 

Marshall's  decision  evoked  a  warm  protest  from 
the  Pennsylvania  Legislature  and  led  to  a  proposal 
of  amendment  to  the  Constitution  providing  "an 
impartial  tribunal"  between  the  General  Govern 
ment  and  the  States;  and  these  expressions  of  dis 
sent  in  turn  brought  the  Virginia  Assembly  to  the 
defense  of  the  Supreme  Court. 

The  commission  to  whom  was  referred  the  communica 
tion  of  the  governor  of  Pennsylvania  [reads  the  Virginia 
document]  .  .  .  are  of  the  opinion  that  a  tribunal  is  al 
ready  provided  by  the  Constitution  of  the  United  States, 
to  wit;  the  Supreme  Court,  more  eminently  qualified  from 
their  habits  and  duties,  from  the  mode  of  their  selection, 
and  from  the  tenure  of  their  offices,  to  decide  the  disputes 
aforesaid  in  an  enlightened  and  impartial  manner  than 
any  other  tribunal  which  could  be  created. 


120  MARSHALL  AND  THE  CONSTITUTION 

The  members  of  the  Supreme  Court  are  selected  from 
those  in  the  United  States  who  are  most  celebrated  for 
virtue  and  legal  learning.  .  .  .  The  duties  they  have 
to  perform  lead  them  necessarily  to  the  most  enlarged 
and  accurate  acquaintance  with  the  jurisdiction  of  the 
federal  and  several  State  courts  together,  and  with  the 
admirable  symmetry  of  our  government.  The  tenure 
of  their  offices  enables  them  to  pronounce  the  sound  and 
correct  opinions  they  have  formed,  without  fear,  favor 
or  partiality. 

Was  it  coincidence  or  something  more  that  dur 
ing  Marshall's  incumbency  Virginia  paid  her  one 
and  only  tribute  to  the  impartiality  of  the  Su 
preme  Court  while  Burr's  acquittal  was  still  vivid 
in  the  minds  of  all?  Or  was  it  due  to  the  fact 
that  "the  Great  Lama  of  the  Little  Mountain" 
to  use  Marshall's  disrespectful  appellation  for 
Jefferson  —  had  not  yet  converted  the  Virginia 
Court  of  Appeals  into  the  angry  oracle  of  his  own 
unrelenting  hatred  of  the  Chief  Justice?  Whatever 
the  reason,  within  five  years  Virginia's  attitude 
had  again  shifted,  and  she  had  become  once  more 
what  she  had  been  in  1798-99,  the  rallying  point  of 
the  forces  of  Confederation  and  State  Rights. 


CHAPTER  V 

THE   TENETS    OF   NATIONALISM 

"JOHN  MARSHALL  stands  in  history  as  one  of  that 
small  group  of  men  who  have  founded  States.  He 
was  a  nation-maker,  a  state-builder.  His  monu 
ment  is  in  the  history  of  the  United  States  and  his 
name  is  written  upon  the  Constitution  of  his  coun 
try.  "  So  spoke  Senator  Lodge,  on  John  Marshall 
Day,  February  4,  1901.  "I  should  feel  a  ... 
doubt,"  declared  Justice  Holmes  on  the  same  oc 
casion,  "whether,  after  Hamilton  and  the  Con 
stitution  itself,  Marshall's  work  proved  more  than 
a  strong  intellect,  a  good  style,  personal  ascend 
ancy  in  his  court,  courage,  justice,  and  the  con 
victions  of  his  party."  Both  these  divergent  esti 
mates  of  the  great  Chief  Justice  have  their  value. 
It  is  well  to  be  reminded  that  Marshall's  task  lay 
within  the  four  corners  of  the  Constitution,  whose 
purposes  he  did  not  originate,  especially  since  no 

one  would  have  been   quicker  than  himself  to 

121 


122  MARSHALL  AND  THE  CONSTITUTION 

disown  praise  implying  anything  different.  None 
the  less  it  was  no  ordinary  skill  and  courage  which, 
assisted  by  great  office,  gave  eriduring  definition  to 
the  purposes  of  the  Constitution  at  the  very  time 
when  the  whole  trend  of  public  opinion  was  setting 
in  most  strongly  against  them.  It  must  not  be  for 
gotten  that  Hamilton,  whose  name  Justice  Holmes 
invokes  in  his  somewhat  too  grudging  encomium 
of  Marshall,  had  pronounced  the  Constitution  "a 
frail  and  worthless  fabric. " 

Marshall's  own  outlook  upon  his  task  sprang  in 
great  part  from  a  profound  conviction  of  calling. 
He  was  thoroughly  persuaded  that  he  knew  the 
intentions  of  the  f ramers  of  the  Constitution  —  the 
intentions  which  had  been  wrought  into  the  in 
strument  itself  —  and  he  was  equally  determined 
that  these  intentions  should  prevail.  For  this  reason 
he  refused  to  regard  his  office  merely  as  a  judicial 
tribunal;  it  was  a  platform  from  which  to  pro 
mulgate  sound  constitutional  principles,  the  very 
cathedra  indeed  of  constitutional  orthodoxy.  Not 
one  of  the  cases  which  elicited  his  great  opinions 
but  might  easily  have  been  decided  on  compara 
tively  narrow  grounds  in  precisely  the  same  way 
in  which  he  decided  it  on  broad,  general  principles, 
but  with  the  probable  result  that  it  would  never 


THE  TENETS  OF  NATIONALISM        123 

again  have  been  heard  of  outside  the  law  courts. 
To  take  a  timid  or  obscure  way  to  a  merely  tenta 
tive  goal  would  have  been  at  variance  equally  with 
Marshall's  belief  in  his  mission  and  with  his  instincts 
as  a  great  debater.  Hence  he  forged  his  weapon  — 
the  obiter  dictum  —  by  whose  broad  strokes  was 
hewn  the  highroad  of  a  national  destiny. 

Marshall's  task  naturally  was  not  performed  in 
vacua:  he  owed  much  to  the  preconceptions  of  his 
contemporaries.    His  invariable  quest,  as  students 
of  his  opinions  are  soon  aware,  ,wasjor^  the_axio- 
matic,  .for  absolute  principles,  and  in  this  inquiry 
he  met  the  intellectual  demands  of  a  period  whose     • 
first  minds  still  owned  the  sway  of  the  syllogism 
and  still  loved  what  Bacon  called  the  "spacious 
liberty  of  generalities. "     In  Marshall's  method  — 
as  in  the  older  syllogistic  logic,  whose  phraseology          » 
begins  to  sound  somewhat  strange  to  twentieth 
century  ears  —  the  essential  operation  consisted 
in  eliminating  the  "accidental"  or  "irrelevant" 
elements  from  the  "significant"  facts  of  a  case, 
and  then  recognizing  that  this  particular  case  had 
been  foreseen  and  provided  for  in  a  general  rule  of 
law.     Proceeding  in  this  way  Marshall  was  able  to  1 
build  up  a  body  of  thought  the  internal  consist-  //  tyjA 
ency  of  which,  even  when  it  did  not  convince,  %etj 


124  MARSHALL  AND  THE  CONSTITUTION 

baffled  the  only  sort  of  criticism  which  contem 
poraries  were  disposed  to  apply.  Listen,  for  in 
stance,  to  the  despairing  cry  of  John  Randolph  of 
Roanoke:  "All  wrong, "  said  he  of  one  of  Marshall's 
/  opinions,  "all  wrong,  but  no  man  in  the  United 
States  can  tell  why  or  wherein. " 

Marshall  found  his  first  opportunity  to  elaborate 
the  tenets  of  his  nationalistic  creed  in  the  case  of 
M'Culloch  vs.  Maryland,  which  was  decided  at  the 
same  term  with  the  Dartmouth  College  case  and 
that  of  Sturges  vs.  Crowinshield  —  the  greatest  six 
weeks  in  the  history  of  the  Court.  The  question 
immediately  involved  was  whether  the  State  of 
Maryland  had  the  right  to  tax  the  notes  issued  by 
the  branch  which  the  Bank  of  the  United  States 
had  recently  established  at  Baltimore.  But  this 
question  raised  the  further  one  whether  the  United 
States  had  in  the  first  place  the  right  to  charter  the 
Bank  and  to  authorize  it  to  establish  branches  with 
in  the  States.  The  outcome  turned  on  the  inter 
pretation  to  be  given  the  "necessary  and  proper" 
clause  of  the  Constitution. 

The  last  two  questions  were  in  1819  by  no  means 
novel.  In  the  Federalist  itself  Hamilton  had  boldly 
asked,  "Who  is  to  judge  of  the  necessity  and  pro 
priety  of  the  laws  to  be  passed  for  executing  the 


THE  TENETS  OF  NATIONALISM        125 

powers  of  the  Union?"  and  had  announced  that 
"the  National  Government,  like  every  other,  must 
judge  in  the  first  instance,  of  the  proper  exercise 
of  its  powers,  and  its  constituents  in  the  last,"  a 
view  which  seems  hardly  to  leave  room  even  for 
judicial  control.  Three  years  later  as  Secretary  of 
the  Treasury,  Hamilton  had  brought  forward  the 
proposal  which  soon  led  to  the  chartering  of  the 
Bank  of  1791.  The  measure  precipitated  the  first 
great  discussion  over  the  interpretation  of  the  new 
Constitution.  Hamilton  owned  that  Congress  had 
no  specifically  granted  power  to  charter  a  bank  but 
contended  that  such  an  institution  was  a  "neces 
sary  and  proper"  means  for  carrying  out  certain 
of  the  enumerated  powers  of  the  National  Govern 
ment  such,  for  instance,  as  borrowing  money  and 
issuing  a  currency.  For,  said  he  in  effect,  "neces 
sary  and  proper"  signify  "convenient,"  and  the 
clause  was  intended  to  indicate  that  the  National 
Government  should  enjoy  a  wide  range  of  choice 
in  the  selection  of  means  for  carrying  out  its  enu 
merated  powers.  Jefferson,  on  the  other  hand, 
maintained  that  the  "necessary  and  proper  "  clause 
was  a  restrictive  clause,  meant  to  safeguard  the 
rights  of  the  States,  that  a  law  in  order  to  be 
"necessary  and  proper"  must  be  both  "necessary" 


126  MARSHALL  AND  THE  CONSTITUTION 

and  "proper,"  and  that  both  terms  ought  to  be 
construed  narrowly.  Jefferson's  opposition,  how 
ever,  proved  unavailing,  and  the  banking  institu 
tion  which  was  created  continued  till  1811  without 
its  validity  being  once  tested  in  the  courts. 

The  second  Bank  of  the  United  States,  whose 
branch  Maryland  was  now  trying  to  tax,  received 
its  charter  in  1816  from  President  Madison.  Well 
might  John  Quiricy  Adams  exclaim  that  the  "Re 
publicans  had  outf ederalized  the  Federalists ! ' '  Yet 
the  gibe  was  premature.  The  country  at  large  was 
as  yet  blind  to  the  responsibilities  of  nationality. 
That  vision  of  national  unity  which  indubitably 
underlies  the  Constitution  was  after  all  the  vision 
of  an  aristocracy  conscious  of  a  solidarity  of  in 
terests  transcending  state  lines.  It  is  equally  true 
that  until  the  Civil  War,  at  the  earliest,  the  great 
mass  of  Americans  still  felt  themselves  to  be 
first  of  all  citizens  of  their  particular  States.  Nor 
did  this  individualistic  bias  long  remain  in  want  of 
leadership  capable  of  giving  it  articulate  expres 
sion.  The  amount  of  political  talent  which  existed 
within  the  State  of  Virginia  alone  in  the  first  gener 
ation  of  our  national  history  is  amazing  to  contem 
plate,  but  this  talent  unfortunately  exhibited  one 
most  damaging  blemish.  The  intense  individualism 


THE  TENETS  OF  NATIONALISM        127 

of  the  planter-aristocrat  could  not  tolerate  in  any 
possible  situation  the  idea  of  a  control  which  he 
could  not  himseif  ultimately  either  direct  or  reject. 
In  the  Virginia  and  Kentucky  resolutions  of  1798 
and  1799,  which  regard  the  Constitution  as\a  com 
pact  of  sovereign  States  and  the  National  Govern 
ment  merely  as  their  agent,  the  particularistic 
outlook  definitely  received  a  constitutional  creed 
which  in  time  was  to  become,  at  least  in  the  South, 
a  gloss  upon  the  Constitution  regarded  as  fully 
as  authoritative  as  the  original  instrument.  This 
recognition  of  state  sovereignty  was,  indeed,  some 
what  delayed  by  the  federalization  of  the  Republi 
can  party  in  consequence  of  the  capture  of  the 
National  Government  by  Virginia  in  1800.  But  in 
1819  the  march  toward  dissolution  and  civil  war 
which  had  begun  at  the  summons  of  Jefferson 
was  now  definitely  resumed.  This  was  the  year  of 
the  congressional  struggle  over  the  admission  of 
Missouri,  the  most  important  result  of  which  was 
the  discovery  by  the  slave  owners  that  the  greatest 
security  of  slavery  lay  in  the  powers  of  the  States 
and  that  its  greatest  danger  lay  in  those  of  the  Na 
tional  Government.  Henceforth  the  largest  prop 
erty  interest  of  the  country  stood  almost  solidly 
behind  State  Rights. 


128  MARSHALL  AND  THE  CONSTITUTION 

It  was  at  this  critical  moment  that  chance  pre 
sented  Marshall  with  the  opportunity  to  place 
the  opposing  doctrine  of  nationalism  on  the  high 
plane  of  judicial  decision.  The  arguments  in  the 
Bank  case, r  which  began  on  February  22, 1819,  and 
lasted  nine  days,  brought  together  a  "constella 
tion  of  lawyers"  such  as  had  never  appeared  before 
in  a  single  case.  The  Bank  was  represented  by 
Pinkney,  Webster,  and  Wirt;  the  State,  by  Luther 
Martin,  Hopkinson,  and  Walter  Jones  of  the  Dis 
trict  of  Columbia  bar.  In  arguing  for  the  State, 
Hopkinson  urged  the  restrictive  view  of  the  "neces 
sary  and  proper"  clause  and  sought  to  reduce  to  an 
absurdity  the  doctrine  of  "implied  rights."  The 
Bank,  continued  Hopkinson,  "this  creature  of 
construction,"  claims  by  further  implication  "the 
right  to  enter  the  territory  of  a  State  without  its 
consent"  and  to  establish  there  a  branch;  then,  by 
yet  another  implication,  the  branch  claims  exemp 
tion  from  taxation.  "  It  is  thus  with  the  famous  fig- 
tree  of  India,  whose  branches  shoot  from  the  trunk 
to  a  considerable  distance,  then  drop  to  the  earth, 
where  they  take  root  and  become  trees  from  which 
also  other  branches  shoot  .  .  .  ,  until  gradually  a 
vast  surface  is  covered,  and  everything  perishes 

'  M'Culloch  vs.  Maryland  (1819).  4  Wheaton.  316. 


THE  TENETS  OF  NATIONALISM        129 

in  the  spreading  shade."  But  even  granting  that 
Congress  did  have  the  right  to  charter  the  Bank, 
still  that  fact  would  not  exempt  the  institution 
from  taxation  by  any  State  within  which  it  held 
property.  "  The  exercise  of  the  one  sovereign  poweTj 
cannot  be  controlled  by  the  exercise  of  the  other.  "J 

On  the  other  side,  Pinkney  made  the  chief  argu 
ment  in  behalf  of  the  Bank.  " Mr.  Pinkney,"  says 
Justice  Story,  "rose  on  Monday  to  conclude  the 
argument;  he  spoke  all  that  day  and  yesterday  and 
will  probably  conclude  to-day.  I  never  in  my  whole 
life  heard  a  greater  speech;  it  was  worth  a  journey 
from  Salem  to  hear  it;  his  elocution  was  exces 
sively  vehement;  but  his  eloquence  was  over 
whelming.  His  language,  his  style,  his  figures,  his 
argument,  were  most  brilliant  and  sparkling.  He 
spoke  like  a  great  statesman  and  patriot  and  a 
sound  constitutional  lawyer.  All  the  cobwebs  of 
sophistryship  and  metaphysics  about  State  Rights 
and  State  Sovereignty  he  brushed  away  with  a 
mighty  besom. " 

Pinkney  closed  on  the  3d  of  March,  and  on 
the  6th  Marshall  handed  down  his  most  famous 
opinion.  He  condensed  Pinkney's  three-day  argu 
ment  into  a  pamphlet  which  may  be  easily  read 
by  the  instructed  layman  in  half  an  hour,  for,  as  is 

9 


130  MARSHALL  AND  THE  CONSTITUTION 

invariably  the  case  with  Marshall,  his  condensation 
made  for  greater  clarity.  In  this  opinion  he  also 
gives  evidence,  in  their  highest  form,  of  his  other 
notable  qualities  as  a  judicial  stylist:  his  "tiger  in 
stinct  for  the  jugular  vein";  his  rigorous  pursuit 
of  logical  consequences;  his  power  of  stating  a  case, 
wherein  he  is  rivaled  only  by  Mansfield;  his  scorn 
of  the  qualifying  "but's,"  "if  s,"  and  "though's"; 
the  pith  and  balance  of  his  phrasing,  a  reminiscence 
of  his  early  days  with  Pope;  the  developing  momen 
tum  of  his  argument;  above  all,  his  audacious  use 
of  the  obiter  dictum.  Marshall's  later  opinion  in 
Gibbons  vs.  Ogden  is,  it  is  true,  in  some  respects 
a  greater  intellectual, performance,  but  it  does  not 
equal  this  earlier  opinion  in  those  qualities  of  form 
which  attract  the  amateur  and  stir  the  admiration 
of  posterity. 

At  the  very  outset  of  his  argument  in  the  Bank 
case  Marshall  singled  out  the  question  the  answer 
to  which  must  control  all  interpretation  of  the 
Constitution:  Was  the  Constitution,  as  contended 
by  counsel  for  Maryland,  "an  act  of  sovereign 
and  independent  States"  whose  political  interests 
must  be  jealously  safeguarded  in  its  construction, 
or  was  it  an  emanation  from  the  American  people 
and  designed  for  their  benefit?  Marshall  answered 


THE  TENETS  OF  NATIONALISM        131 

that  the  Constitution,  by  its  own  declaration,  was 
"ordained  and  established  "  in  the  name  of  the  peo 
ple,  "in  order  to  form  a  more  perfect  union,  establish 
justice,  insure  domestic  tranquillity,  and  secure  the 
blessings  of  liberty  to  themselves  and  their  poster 
ity.  "  Nor  did  he  consider  the  argument  "that  the 
people  had  already  surrendered  all  their  powers  to 
the  State  Sovereignties  and  had  nothing  more  to 
give,"  a  persuasive  one,  for  "surely,  the  question 
whether  they  may  resume  and  modify  the  power 
granted  to  the  government  does  not  remain  to  be 
settled  in  this  country.  Much  more  might  the 
legitimacy  of  the  General  Government  be  doubted, 
-had  it  been  created  by  the  States.  The  powers 
delegated  to  the  State  sovereignties  were  to  be  ex 
ercised  by  themselves,  not  by  a  distinct  and  inde 
pendent  sovereignty  created  by  them."  f '  The  Gov 
ernment  of  the  Union,  then, "  Marshall  proceeded, 
"is  emphatically  ...  a  government  of  the  peo 
pie.  In  form  and  in  substance  it  emanates  from 
them.  Its  powers  are  granted  by  them,  and  are 
to  be  exercised  on  them,  and  for  their  benefit." 
And  what  was  the  nature  of  this  Government?  "If 
any  one  proposition  could  command  the  universal 
assent  of  mankind  we  might  expect  it  would  be 
this:  that  the  government  of  the  Union,  though 


132  MARSHALL  AND  THE  CONSTITUTION 

limited  in  its  powers,  is  supreme  within  the  sphere 
of  its  action.  This  would  seem  to  result  necessarily 
from  its  nature.  It  is  the  government  of  all;  its 
powers  are  delegated  by  all;  it  represents  all  and 
acts  for  all. "  However  the  question  had  not  been 
left  to  reason.  "The  people  have  in  express  terms 
decided  it  by  saying:  'This  Constitution  and  the 
laws  of  the  United  States  which  shall  be  made  in 
pursuance  thereof  .  .  .  shall  be  the  supreme  Law 
of  the  Land.'" 

f  But  a  Government  which  is  supreme  must  have 
the  right  to  choose  the  means  by  which  to  make 
its  supremacy  effective;  and  indeed,  at  this  point 
again  the  Constitution  comes  to  the  aid  of  reason 
by  declaring  specifically  that  Congress  may  make 
all  laws  "necessary  and  proper"  for  carrying  into 
execution  any  of  the  powers  of  the  General  Gov 
ernment./  Counsel  for  Maryland  would  read  this 
clause  as  limiting  the  right  which  it  recognized  to 
the  choice  only  of  such  means  of  execution  as  are 
indispensable;  they  would  treat  the  word  "neces 
sary"  as  controlling  the  clause  and  to  this  they 
would  affix  the  word  "absolutely."  "Such  is  the 
character  of  human  language,"  rejoins  the  Chief 
Justice,  "that  no  word  conveys  to  the  mind  in 
all  situations,  one  single  definite  idea,"  and  the 


> 
< 


THE  TENETS  OF  NATIONALISM        133 

word  "necessary,"  "like  others,  is  used  in  various 
senses,"  so  that  its  context  becomes  most  material 
in  determining  its  significance. 

And  what  is  its  context  on  this  occasion?  "The 
subject  is  the  execution  of  those  great  powers  on 
which  the  welfare  of  a  nation  essentially  depends." 
The  provision  occurs  "in  a  Constitution  intended 
to  endure  for  ages  to  come  and  consequently  to 
be  adapted  to  the  various  crises  of  human  affairs." 
The  purpose  of  the  clause  therefore  is  not  to  impair 
the  right  of  Congress  "to  exercise  its  best  judg 
ment  in  the  selection  of  measures  to  carry  into 
execution  the  constitutional  powers  of  the  Govern 
ment,"  but  rather  "to  remove  all  doubts  respect 
ing  the  right  to  legislate  on  that  vast  mass  of 
incidental  powers  which  must  be  involved  in  the 
Constitution,  if  that  instrument  be  not  a  splendid 
bauble.  .  .  .  Let  the  end  be  legitimate,  let  it  be 
within  the  scope  of  the  Constitution  and  all  means 
which  are  appropriate,  which  are  plainly  adapted 
to  that  end,  which  are  not  prohibited  but  con 
sist  with  the  letter  and  spirit  of  the  Constitution, 
are  constitutional." 

But  was  the  Act  of  Maryland  which  taxed  the 
Bank  in  conflict  with  the  Act  of  Congress  which 
established  it?  If  so,  must*  the  State  yield  to 


134  MARSHALL  AND  THE  CONSTITUTION 

Congress?  In  approaching  this  question  Marshall 
again  laid  the  basis  for  as  sweeping  a  decision  as 
possible.  The  terms  in  which  the  Maryland  stat 
ute  was  couched  indicated  clearly  that  it  was  di 
rected  specifically  against  the  Bank,  and  it  might 
easily  have  been  set  aside  on  that  ground.  But 
Marshall  went  much  further  and  laid  down  the 
principle  that  the  instrumentalities  of  the  National 
Government  are  never  subject  to  taxation  by  the 
States  in  any  form  whatsoever,  and  for  two  reasons. 
In  the  first  place,  "those  means  are  not  given  by 
the  people  of  a  particular  State  .  .  .  but  by  the 
people  of  all  the  States.  They  are  given  by  all  for 
the  benefit  of  all,"  and  owe  their  presence  in  the 
State  not  to  the  State's  permission  but  to  a  higher 
authority.  The  State  of  Maryland  therefore  never 
had  the  power  to  tax  the  Bank  in  the  first  place. 
Yet  waiving  this  theory,  there  was,  in  the  second 
place,  flat  incompatibility  between  the  Act  of 
Maryland  and  the  Act  of  Congress,  not  simply  be 
cause  of  the  specific  operation  of  the  former,  but 
rather  because  of  the  implied  claim  which  it  made 
for  state  authority.  "That  the  power  to  tax  in 
volves  the  power  to  destroy,"  Marshall  continued; 
"that  the  power  to  destroy  may  defeat  and  render 
useless  the  power  to  create;  that  there  is  a  plain 


ROBERT  R.  LIVINGSTON 
Engraving  by  E.  McKenzie,  after  a  painting  by  John  Vanderlyn. 


ION 

'on  Marshall 
jain  I  n  as 

Maryland 
. 

it  might 

t  ground.     But 

d  down  the 


.'A  Tft'A'dOft 

.nv.lrilnu-,7  (idol.  v/l  yuiJniB«i  ;r.yl-)l/.  .'A  •/•!  4iiivi;igjij5|o 


ut  to  a     ger 

: 

ond 

a  ply  be- 
former,  but 

h   if  marta 


it 


,**Ma  on  tinned; 

•id  render 
s  a  plain 


THE  TENETS  OF  NATIONALISM        135 

repugnance  in  conferring  on  one  government  a 
power  to  control  the  constitutional  measures  of 
another,  which  other,  with  respect  to  those  very 
measures  is  declared  to  be  supreme  over  that  which 
exerts  the  control,  are  propositions  not  to  be  de 
nied."  Nor  indeed  is  the  sovereignty  of  the  State 
confined  to  taxation.  "That  is  not  the  only  mode 
in  which  it  might  be  displayed.  The  question 
is  in  truth,  a  question  of  supremacy,  and  if  the 
right  of  the  States  to  tax  the  means  employed  by 
the  General  Government  be  conceded,  the  decla 
ration  that  the  Constitution  and  the  laws  made 
in  pursuance  thereof  shall  be  supreme  law  of  the 
land,  is  empty  and  unmeaning  declamation.  .  .  . 
We  are  unanimously  of  opinion,"  concluded  the 
Chief  Justice,  "that  the  law  .  .  .  of  Maryland,  im 
posing  a  tax  on  the  Bank  of  the  United  States  is 
unconstitutional  and  void." 

Five  years  later,  in  the  case  of  Gibbons  vs. 
Ogden,1  known  to  contemporaries  as  the  "Steam 
boat  case,"  Marshall  received  the  opportunity  to 
apply  his  principles  of  constitutional  construction 
to  the  power  of  Congress  to  regulate  "commerce 
among  the  States."  For  a  quarter  of  a  century 
Robert  R.  Livingston  and  Robert  Fulton  and 

1  9  Wheaton,  1. 


136  MARSHALL  AND  THE  CONSTITUTION 

their  successors  had  enjoyed  from  the  Legislature 
of  New  York  a  grant  of  the  exclusive  right  to  run 
steamboats  on  the  waters  of  the  State,  and  in  this 
case  one  of  their  licensees,  Ogden,  was  seeking  to 
prevent  Gibbons,  who  had  steamers  in  the  coasting 
trade  under  an  Act  of  Congress,  from  operating 
them  on  the  Hudson  in  trade  between  points  in 
New  York  and  New  Jersey.  A  circumstance  which 
made  the  case  the  more  critical  was  that  New 
Jersey  and  Connecticut  had  each  passed  retalia 
tory  statutes  excluding  from  their  waters  any 
vessel  licensed  under  the  Fulton-Livingston  mo 
nopoly.  The  condition  of  interstate  commercial 
warfare  which  thus  threatened  was  not  unlike  that 
which  had  originally  operated  so  potently  to  bring 
about  the  Constitution. 

The  case  of  Gibbons  vs.  Ogden  was  argued  in  the 
early  days  of  February,  1824,  with  Attorney-General 
Wirt  and  Daniel  Webster  against  the  grant,  while 
two  famous  New  York  lawyers  of  the  day,  Thomas 
Addis  Emmet,  brother  of  the  Irish  patriot,  and 
Thomas  J.  Oakley,  acted  as  Ogden's  counsel.  The 
arguments  have  the  importance  necessarily  at 
taching  to  a  careful  examination  of  a  novel  legal 
question  of  the  first  magnitude  by  learned  and 
acute  minds,  but  some  of  the  claims  that  have  been 


THE  TENETS  OF  NATIONALISM        137 

made  for  these  arguments,  and  especially  for  Web 
ster's  effort,  hardly  sustain  investigation,  Webster, 
never  in  any  case  apt  to  regard  his  own  perform 
ance  overcritically,  seems  in  later  years  to  have 
been  persuaded  that  the  Chief  Justice's  opinion 
"followed  closely  the  track"  of  his  argument  on 
this  occasion;  and  it  is  true  that  Marshall  expressed 
sympathy  with  Webster's  contention  that  Congress 
may  regulate  as  truly  by  inaction  as  by  action,  since 
inaction  may  indicate  its  wish  that  the  matter  go 
unregulated;  but  the  Chief  Justice  did  not  explicitly 
adopt  this  idea,  and  the  major  part  of  his  opin 
ion  was  a  running  refutation  of  Emmet's  argument, 
which  in  turn  was  only  an  elaboration  of  Chancellor 
Kent's  opinion  upon  the  same  subject  in  the  New 
York  courts. z  In  other  words,  this  was  one  of  those 
cases  in  which  Marshall's  indebtedness  to  counsel 
was  far  less  for  ideas  than  for  the  stimulation  which 
his  own  powers  always  received  from  discussion ;  and 
the  result  is  his  profoundest,  most  statesmanlike 
opinion,  from  whose  doctrines  the  Court  has  at  times 
deviated,  but  only  to  return  to  them,  until  today  it 
is  more  nearly  than  ever  before  the  established  law 
on  the  many  points  covered  by  its  dicta. 

1  See  Livingston  vs.  Van  Ingen,  9  Johnson,  807  (1812);  also  Kent's 
Commentaries,  i.  432-38. 


138  MARSHALL  AND  THE  CONSTITUTION 

Marshall  pronounced  the  Fulton-Livingston  mo 
nopoly  inoperative  so  far  as  it  concerned  vessels 
enrolled  under  the  Act  of  Congress  to  engage  in  the 
coasting  trade;  but  in  arriving  at  this  very  sim 
ple  result  his  opinion  takes  the  broadest  possible 
range.  At  the  very  outset  Marshall  flatly  con 
tradicts  Kent's  proposition  that  the  powers  of 
the  General  Government,  as  representing  a  grant 
by  sovereignties,  must  be  strictly  construed.  The 
Constitution,  says  he,  "contains  an  enumeration  of 
powers  expressly  granted  by  the  people  to  their 
government, "  and  there  is  not  a  word  in  it  which 
lends  any  countenance  to  the  idea  that  these 
powers  should  be  strictly  interpreted.  As  men 
whose  intentions  required  no  concealment,  those 
who  framed  and  adopted  the  Constitution  "must 
be  understood  to  have  employed  words  hi  their 
natural  sense  and  to  have  intended  what  they 
said";  but  if,  from  the  inherent  imperfection  of 
language,  doubts  were  at  any  time  to  arise  "re 
specting  the  extent  of  any  given  power,"  then  the 
known  purposes  of  the  instrument  should  control 
the  construction  put  on  its  phraseology.  "The 
grant  does  not  convey  power  which  might  be  bene 
ficial  to  the  grantor  if  retained  by  himself  .  .  . 
but  is  an  investment  of  power  for  the  general 


THE  TENETS  OF  NATIONALISM        139 

advantage  in  the  hands  of  agents  selected  for  the 
purpose,  which  power  can  never  be  exercised  by  the 
people  themselves,  but  must  be  placed  in  the  hands 
of  agents  or  remain  dormant. "  In  no  other  of  his 
opinions  did  Marshall  so  clearly  bring  out  the  logi 
cal  connection  between  the  principle  of  liberal  con 
struction  of  the  Constitution  and  the  doctrine  that 
it  is  an  ordinance  of  the  American  people. 

Turning  then  to  the  Constitution,  Marshall  asks, 
"What  is  commerce?"  "Counsel  for  appellee," 
he  recites,  "would  limit  it  to  traffic,  to  buying  and 
selling,"  to  which  he  answers  that  "this  would  re 
strict  a  general  term  .  .  .  to  one  of  its  significa 
tions.  Commerce,"  he  continues,  "undoubtedly  is 
traffic,  but  it  is  something  more  —  it  is  inter 
course,  "  and  so  includes  navigation.  And  what  is 
the  power  of  Congress  over  commerce?  "It  is  the 
power  to  regulate,  that  is,  the  power  to  prescribe 
the  rule  by  which  commerce  is  to  be  governed." 
It  is  a  power  "complete  in  itself,"  exercisable  "to 
its  utmost  extent, "  and  without  limitations  "other 
than  are  prescribed  by  the  Constitution.  ...  If, 
as  has  always  been  understood,  the  sovereignty  of 
Congress,  though  limited  to  specified  objects,  is 
plenary  as  to  those  objects,  the  power  over  com 
merce  with  foreign  nations  and  among  the  several 


140  MARSHALL  AND  THE  CONSTITUTION 

States  is  vested  in  Congress  as  absolutely  as  it 
would  be  in  a  single  government  having  in  its  con 
stitution  the  same  restrictions  on  the  exercise  of 
power  as  are  found  in  the  Constitution  of  the 
United  States. "  The  power,  therefore,  is  not  to  be 
confined  by  state  lines  but  acts  upon  its  subject- 
matter  wherever  it  is  to  be  found.  "It  may,  of 
consequence,  pass  the  jurisdictional  line  of  New 
York  and  act  upon  the  very  waters  to  which  the 
prohibition  now  under  consideration  applies."  It 
is  a  power  to  be  exercised  within  the  States  and 
not  merely  at  their  frontiers. 

But  was  it  sufficient  for  Marshall  merely  to  de 
fine  the  power  of  Congress?  Must  not  the  power 
of  the  State  also  be  considered?  At  least,  Ogden's 
attorneys  had  argued,  the  mere  existence  in  Congress 
of  the  power  to  regulate  commerce  among  the  States 
did  not  prevent  New  York  from  exercising  the  same 
power,  through  legislation  operating  upon  subject 
matter  within  its  own  boundaries.  No  doubt,  he 
concedes,  the  States  have  the  right  to  enact  many 
kinds  of  laws  which  will  incidentally  affect  com 
merce  among  the  States,  such  for  instance  as  quar 
antine  and  health  laws,  laws  regulating  bridges 
and  ferries,  and  so  on;  but  this  they  do  by  virtue 
of  their  power  of  "internal  police,"  not  by  virtue 


THE  TENETS  OF  NATIONALISM        141 

of  a  "concurrent"  power  over  commerce,  foreign 
and  interstate.  And,  indeed,  New  York  may  have 
granted  Fulton  and  Livingston  their  monopoly  in 
exercise  of  this  power,  in  which  case  its  validity 
would  depend  upon  its  not  conflicting  with  an 
Act  of  Congress  regulating  commerce.  For  should 
such  conflict  exist,  the  State  enactment,  though 
passed  "in  the  exercise  of  its  acknowledged  sover 
eignty,"  miM  give  place  in  consequence  of  the 
supremacy  conferred  by  the  Constitution  upon  all 
acts  of  Congress  in  pursuance  of  it,  over  all  state 
laws  whatsoever. 

The  opinion  then  proceeds  to  the  consideration 
of  the  Act  of  Congress  relied  upon  by  Gibbons. 
This,  Ogden's  attorneys  contended,  merely  con 
ferred  the  American  character  upon  vessels  already 
possessed  of  the  right  to  engage  in  the  coasting 
trade;  Marshall,  on  the  contrary,  held  that  it  con 
ferred  the  right  itself,  together  with  the  auxiliary 
right  of  navigating  the  waters  of  the  United  States ; 
whence  it  followed  that  New  York  was  powerless 
to  exclude  Gibbons's  vessels  from  the  Hudson.  In 
cidentally  Marshall  indicated  his  opinion  that  Con 
gress's  power  extended  to  the  carriage  of  passengers 
as  well  as  of  goods  and  to  vessels  propelled  by  steam 
as  well  as  to  those  driven  by  wind.  "  The  one  ele- 


142  MARSHALL  AND  THE  CONSTITUTION 

ment, "  said  he,  "may  be  as  legitimately  used  as  the 
other  for  every  commercial  purpose  authorized  by 
the  laws  of  the  Union. " 

^Two  years  later,  in  the  case  of  Brown  vs.  Mary 
land,1  Marshall  laid  down  his  famous  doctrine  that 
so  long  as  goods  introduced  into  a  State  in  the 
course  of  foreign  trade  remain  in  the  hands  of  the 
importer  and  in  the  original  package,  they  are  not 
subject  to  taxation  by  the  State.  This  doctrine  is 
interesting  for  two  reasons.  In  the  first  place,  it 
implies  the  further  principle  that  an  attempt  by 
a  State  to  tax  interstate  or  foreign  commerce  is 
tantamount  to  an  attempt  to  regulate  such  com 
merce,  and  is  consequently  void.  In  other  words, 
the  principle  of  the  exclusiveness  of  Congress's 
power  to  regulate  commerce  among  the  States  and 
with  foreign  nations,  which  is  advanced  by  way  of 
dictum  in  Gibbons  vs.  Ogden,  becomes  in  Brown  vs. 
Maryland  a  ground  of  decision.  It  is  a  principle 
which  has  proved  of  the  utmost  importance  in  keep 
ing  the  field  of  national  power  clear  of  encumber 
ing  state  legislation  against  the  day  when  Congress 
should  elect*  to  step  in  and  assume  effective  con 
trol.  Nor  can  there  be  much  doubt  that  the  resultl 
was  intended  by  the  framers  of  the  Constitution. 

1  12  Wheaton,.419.  L 


THE  TENETS  OF  NATIONALISM        143 

In  the  second  place,  however,  from  another 
point  of  view  this  "original  package  doctrine"  is 
only  an  extension  of  the  immunity  from  state  taxa 
tion  established  in  M'Culloch  vs.  Maryland  for  in 
strumentalities  of  the  National  Government.  It 
thus  reflects  the  principle  implied  by  that  decision : 
where  power  exists  to  any  degree  or  for  any  pur 
pose,  it  exists  to  every  degree  and  for  every  purpose; 
or,  to  quote  Marshall's  own  words  in  Brown  vs. 
Maryland,  "questions  of  power  do  not  depend  upon 
the  degree  to  which  it  may  be  exercised;  if  it 
may  be  exercised  at  all,  it  may  be  exercised  at  the 
will  of  those  in  whose  hands  it  is  placed."  The  at 
titude  of  the  Court  nowadays,  when  it  has  to  deal 
with  state  legislation,  is  very  different.  It  takes  the 
position  that  abuse  of  power,  in  relation  to  private 
rights  or  to  commerce,  is  excess  of  power  and  hence 
demands  to  be  shown  the  substantial  effect  of 
legislation,  not  its  mere  formal  justification.1  In 
short,  its  inquiry  is  into  facts.  On  the  other  hand, 
when  dealing  with  congressional  legislation,  the 
Court  has  hitherto  always  followed  Marshall's  bold 
er  method.  Thus  Congress  may  use  its  taxing 

1  See  Justice  Bradley *s  language  in  122  U.  S..  326;  also  the  more 
recent  case  of  Western  Union  Telegraph  Company  vs.  Kan.,  216 
U.  S..  1. 


- 


144  MARSHALL  AND  THE  CONSTITUTION 

power  to  drive  out  unwholesome  businesses,  per 
haps  even  to  regulate  labor  within  the  States,  and 
it  may  close  the  channels  of  interstate  and  foreign 
commerce  to  articles  deemed  by  it  injurious  to 
the  public  health  or  morals. r  To  date  this  dis- 
.^crepancy  between  the  methods  employed  by  the 
Court  in  passing  upon  the  validity  of  legislation 
within  the  two  fields  of  state  and  national  power 
has  afforded  the  latter  a  decided  advantage. 

The  great  principles  which  Marshall  developed 
in  his  interpretation  of  the  Constitution  from  the 
side  of  national  power  and  which  after  various  ups 
and  downs  may  be  reckoned  as  part  of  the  law  of 
the  land  today,  were  the  following: 

/  i\ 

1.  The  Constitution  is  an  ordinance  of  the  people  of 
the  United  States,  and  not  a  compact  of  States. 

2.  Consequently  it  is  to  be  interpreted  with  a  view 
to  securing  a  beneficial  use  of  the  powers  which  it  creates, 
not  with  the  purpose  of  safeguarding  the  prerogatives  of 
state  sovereignty. 

3.  The  Constitution  was  further  designed,  as  near 
as  may  be,  "for  immortality,"  and  hence  was  to  be 
"adapted  to  the  various  crises  of  human  affairs,"  to  be 
kept  a  commodious  vehicle  of  the  national  life  and  not 
made  the  Procrustean  bed  of  the  nation. 

4.  While  the  government  which  the  Constitution 

1  See  195  U.  S.,  27;  188  U.  S.,  321 ;  227  U.  S.,  308.  Cf.  247  U.  S., 
251. 


THE  TENETS  OF  NATIONALISM        145 

established  is  one  of  enumerated  powers,  as  to  those 
powers  it  is  a  sovereign  government,  both  in  its  choice 
of  the  means  by  which  to  exercise  its  powers  and  in  its 
supremacy  over  all  colliding  or  antagonistic  powers. 

5.  The  power  of  Congress  to  regulate  commerce  is  an 
exclusive  power,  so  that  the  States  may  not  intrude 
upon  this  field  even  though  Congress  has  not  acted. 

6.  The  National  Government  and  its  instrumentali 
ties  are  present  within  the  States,  not  by  the  tolerance 
of  the  States,  but  by  the  supreme  authority  of  the  people 
of  the  United  States.1 

Of  these  several  principles,  the  first  is  obviously 
the  most  important  and  to  a  great  extent  the  source 
of  the  others.  It  is  the  principle  of  which  Marshall,  \ 
in  face  of  the  rising  tide  of  State  Rights,  felt  him 
self  to  be  in  a  peculiar  sense  the  official  custodian. 
It  is  the  principle  which  he  had  in  mind  in  his  noble 
plea  at  the  close  of  the  case  of  Gibbons  vs.  Ogden  for 
a  construction  of  the  Constitution  capable  of  main 
taining  its  vitality  and  usefulness: 

Powerful  and  ingenious  minds  [run  his  words],  taking  as 
postulates  that  the  powers  expressly  granted  to  the 
Government  of  the  Union  are  to  be  contracted  by  con 
struction  into  the  narrowest  possible  compass  and  that 
the  original  powers  of  the  States  are  to  be  retained  if  any 
possible  construction  will  retain  them,  may  by  a  course 

1  For  the  application  of  Marshall's  canons  of  constitutional  inter 
pretation  in  the  field  of  treaty  making,  see  the  writer's  National 
Supremacy  (N.  Y.,  1913),  Chaps.  Ill  and  IV. 
10 


146  MARSHALL  AND  THE  CONSTITUTION 

of  refined  and  metaphysical  reasoning  .  .  .  explain  away 
the  Constitution  of  our  country  and  leave  it  a  mag 
nificent  structure  indeed  to  look  at,  but  totally  unfit  for 
use.  They  may  so  entangle  and  perplex  the  understand 
ing  as  to  obscure  principles  which  were  before  thought 
quite  plain,  and  induce  doubts  where,  if  the  mind  were 
to  pursue  its  own  course,  none  would  be  perceived.  In 
such  a  case,  it  is  peculiarly  necessary  to  recur  to  safe 
and  fundamental  principles. 


CHAPTER  VI 

THE    SANCTITY    OF    CONTRACTS 

MARSHALL'S  work  was  one  of  conservation  in  so 
far  as  it  was  concerned  with  interpreting  the  Con 
stitution  in  accord  with  the  intention  which  its 
framers  had  of  establishing  an  efficient  National 
Government.  But  he  found  a  task  of  restoration 
awaiting  him  in  that  great  field  of  Constitution 
al  Law  which  defines  state  powers  in  relation  to 
private  rights. 

To  provide  adequate  safeguards  for  property  and 
contracts  against  state  legislative  power  was  one 
of  the  most  important  objects  of  the  framers,  if 
indeed  it  was  not  the  most  important.  Consider, 
for  instance,  a  colloquy  which  occurred  early  in  the 
Convention  between  Madison  and  Sherman  of 
Connecticut.  The  latter  had  enumerated  "the  ob 
jects  of  Union"  as  follows:  "First,  defense  against 
foreign  danger;  secondly,  against  internal  disputes 
and  a  resort  to  force;  thirdly,  treaties  with  foreign 

147 


148  MARSHALL  AND  THE  CONSTITUTION 

nations;  fourthly,  regulating  foreign  commerce  and 
drawing  revenue  from  it. "  To  this  statement  Madi 
son  demurred.  The  objects  mentioned  were  im 
portant,  he  admitted,  but  he  "combined  with  them 
the  necessity  of  providing  more  effectually  for  the 
securing  of  private  rights  and  the  steady  dispensa 
tion  of  justice.  Interferences  with  these  were  evils 
which  had,  more  perhaps  than  anything  else,  pro 
duced  this  Convention." 

Marshall's  sympathy  with  this  point  of  view  we 
have  already  noted. x  Nor  was  Madison's  reference 
solely  to  the  then  recent  activity  of  state  Legislatures 
in  behalf  of  the  much  embarrassed  but  politically 
dominant  small  farmer  class.  He  had  also  in  mind 
that  other  and  more  ancient  practice  of  Legislatures 
of  enacting  so-called  "special  legislation,"  that 
is,  legislation  altering  under  the  standing  law  the 
rights  of  designated  parties,  and  not  infrequently 
to  their  serious  detriment.  Usually  such  legis 
lation  took  the  form  of  an  intervention  by  the 
Legislature  in  private  controversies  pending  in,  or 
already  decided  by,  the  ordinary  courts,  with  the  re 
sult  that  judgments  were  set  aside,  executions  can 
celed,  new  hearings  granted,  new  rules  of  evidence 
introduced,  void  wills  validated,  valid  contracts 

1  See  supra,  p.  34  ff. 


THE  SANCTITY  OF  CONTRACTS       149 

voided,  forfeitures  pronounced  —  all  by  legisla 
tive  mandate.  Since  that  day  the  courts  have 
developed  an  interpretation  of  the  principle  of 
the  separation  of  powers  and  have  enunciated  a 
theory  of  "due  process  of  law,"  which  renders 
this  sort  of  legislative  abuse  quite  impossible;  but 
in  1787,  though  the  principle  of  the  separation 
of  powers  had  received  verbal  recognition  in  sev 
eral  of  the  state  Constitutions,  no  one  as  yet 
knew  precisely  what  the  term  "legislative  power" 
signified,  and  at  that  time  judicial  review  did 
not  exist.1  Hence  those  who  wished  to  see  this 
nuisance  of  special  legislation  abated  felt  not  un 
naturally  that  the  relief  must  come  from  some 
source  external  to  the  local  governments,  and  they 
welcomed  the  movement  for  a  new  national  Con 
stitution  as  affording  them  their  opportunity. 

The  Constitution,  in  Article  I,  Section  x,  forbids  i 
the  States  to  "emit  bills  of  credit,  make  anything 
but  gold  and  silver  a  legal  tender  in  payment  of 
debts,  pass  any  bill  of  attainder,  ex  post  facto 
law,  or  law  impairing  the  obligation  of  contracts." 
Until  1798,  the  provision  generally  regarded  as 
offering  the  most  promising  weapon  against  special 

1  On  special  legislation,  see  the  writer's  Doctrine  of  Judicial  Review 
(Princeton,  1914),  pp.  36-37,  69-71. 


150  MARSHALL  AND  THE  CONSTITUTION 

legislation  was  the  ex  post  facto  clause.  In  that 
year,  however,  in  its  decision  in  Calder  vs.  Bull  the 
Court  held  that  this  clause  "was  not  inserted  to 
secure  the  citizen  in  his  private  rights  of  either 
property  or  contracts,"  but  only  against  certain 
kinds  of  penal  legislation.  The  decision  roused 
sharp  criticism  and  the  judges  themselves  seemed 
fairly  to  repent  of  it  even  in  handing  it  down. 
Justice  Chase,  indeed,  even  went  so  far  as  to  sug 
gest,  as  a  sort  of  stop -gap  to  the  breach  they  were 
thus  creating  in  the  Constitution,  the  idea  that, 
even  in  the  absence  of  written  constitutional  re 
strictions,  the  Social  Compact  as  well  as  "the 
principles  of  our  free  republican  governments"  af 
forded  judicially  enforcible  limitations  upon  legis 
lative  power  in  favor  of  private  rights.  Then,  in  the 
years  immediately  following,  several  state  courts, 
building  upon  this  dictum,  had  definitely  announced 
their  intention  of  treating  as  void  all  legislation 
which  they  found  unduly  to  disturb  vested  rights, 
especially  if  it  was  confined  in  its  operation  to 
specified  parties. I 

Such  was  still  the  situation  when  the  case  of 


1  In  connection  with  this  paragraph,  see  the  writer's  article  entitled 
The  Basic  Doctrine  of  American  Constitutional  Law,  in  the  Michigan 
Law  Review,  February,  1914.  Marshall  once  wrote  Story  regarding 


THE  SANCTITY  OF  CONTRACTS       151 

i  Fletcher  vs.  Peck^  in  1810  raised  before  the  Su 
preme  Court  the  question  whether  the  Georgia 
Legislature  had  the  right  to  rescind  a  land  grant 
made  by  a  preceding  Legislature.  On  any  of  three 
grounds  Marshall  might  easily  have  disposed  of  this 
case  before  coming  to  the  principal  question.  In 
the  first  place,  it  was  palpably  a  moot  case;  that  is 
to  say,  it  was  to  the  interest  of  the  opposing 
parties  to  have  the  rescinding  act  set  aside.  The 
Court  would  not  today  take  jurisdiction  of  such  a 
case,  but  Marshall  does  not  even  suggest  such  a 
solution  of  the  question,  though  Justice  Johnson 
does  in  his  concurring  opinion.  In  the  second 
place,  Georgia's  own  claim  to  the  lands  had  been 
most  questionable,  and  consequently  her  right  to 
grant  them  to  others  was  equally  dubious;  but  this, 
too,  is  an  issue  which  Marshall  avoids.  Finally, 
the  grant  had  been  procured  by  corrupt  means, 
but  Marshall  ruled  that  this  was  not  a  subject  the 


his  attitude  toward  Section  x  in  1787,  as  follows:  "The  questions 
which  were  perpetually  recurring  in  the  State  legislatures  and  which 
brought  annually  into  doubt  principles  which  I  thought  most  sacred, 
which  proved  that  everything  was  afloat,  and  that  we  had  no  safe 
anchorage  ground,  gave  a  high  value  in  my  estimation  to  that 
article  of  the  Constitution  which  imposes  restrictions  on  the  States." 
Discourse. 

1 6  Cranch,  87. 


152  MARSHALL  AND  THE  CONSTITUTION 

Court  might  enter  upon;  and  for  the  ordinary 
run  of  cases  in  which  undue  influence  is  alleged  to 
have  induced  the  enactment  of  a  law,  the  ruling  is 
clearly  sound.  But  this  was  no  ordinary  case.  The 
fraud  asserted  against  the  grant  was  a  matter  of 
universal  notoriety;  it  was,  indeed,  the  most  re 
sounding  scandal  of  the  generation;  and  surely 
judges  may  assume  to  know  what  is  known  to  all 
and  may  act  upon  their  knowledge. 

Furthermore,  when  one  turns  to  the  part  of  Mar 
shall's  opinion  which  deals  with  the  constitutional 
issue,  one^finds  not  a  little  evidence  of  personal 
pjcfidjjection  on  the 'part  of  tne  Chief  jTusticer^Hc^ 
starts  out  by  declaring  the  rescinding  act  void  as  a 
violation  of  vested  rights,  of  the  underTymg~pfin- 

*"""""•     *       *"*""*"--  !•.,  .  -J"~~ 

ciples  of  society  and  government,  and  of  the  doc 
trine  of  the  separation  of  powers.  Then  he  appar 
ently  realizes  that  a  decision  based  on  such  grounds 
must  be  far  less  secure  and  much  less  generally 
available  than  one  based  on  the  words  of  the  Con 
stitution;  wiereupon  he  brings  forward  the  obliga 
tion  of  contracts  clause.  At  once,  however,  he  is 
confronted  with  the  difficulty  that  the  obligation 
of  a  contract  is  the  obligation  of  a  contract  still 
to  be  fulfilled,  and  that  a  grant  is  an  executed  con 
tract  over  and  done  with  — functus  officio.  This 


THE  SANCTITY  OF  CONTRACTS       153 

difficulty  he  meets  by  asserting  that  every  grant  is 
attended  by  an  implied  contract  on  the  part  of 
the  grantor  not  to  reassert  his  right  to  the  thing 
granted.  This,  of  course,  is  a  palpable  fiction  on 
Marshall's  part,  though  certainly  not  an  unreason 
able  one.  For  undoubtedly  when  a  grant  is  made 
without  stipulation  to  the  contrary,  both  parties 
assume  that  it  will  be  permanent. 

The  greater  difficulty  arose  from  the  fact  that, 
whether  implied  or  explicit,  the  contract  before  the 
Court  was  a  public  one.  In  the  case  of  private 
contracts  it  is  easy  enough  to  distinguish  the  con 
tract,  as  the  agreement  between  the  parties,  from 
the  obligation  of  the  contract  which  comes  from  the 
law  and  holds  the  parties  to  their  engagements. 
But  what  law  was  there  to  hold  Georgia  to  her 
supposed  agreement  not  to  rescind  the  grant  she 
had  made?  Not  the  Constitution  of  the  United 
States  unattended  by  any  other  law,  since  it  pro 
tects  the  obligation  only  after  it  has  come  into 
existence.  Not  the  Constitution  of  Georgia  as 
construed  by  her  own  courts,  since  they  had  sus 
tained  the  rescinding  act.  Only  one  possibility  re 
mained;  the  State  Constitution  must  be  the  source 
of  the  obligation  —  yes;  but  the  State  Constitution 
as  it  was  construed  by  the  United  States  Supreme 


154  MARSHALL  AND  THE  CONSTITUTION 

Court  in  this  very  case,  in  the  light  of  the  "general 
principles  of  our  political  institutions."  In  short 
the  obligation  is  a  moral  one;  and  this  moral  obliga 
tion  is  treated  by  Marshall  as  having  been  converted 
into  a  legal  one  by  the  United  States  Constitution. 

However,  Marshall  apparently  fails  to  find  en 
tire  satisfaction  in  this  argument,  for  he  next  turns 
to  the  prohibition  against  bills  of  attainder  and 
ex  post  facto  laws  with  a  question  which  mani 
fests  disapproval  of  the  decision  in  Calder  vs.  Bull. 
Yet  he  hesitates  to  overrule  Calder  vs.  Bull,  and, 
indeed,  even  at  the  very  end  of  his  opinion  he  still 
declines  to  indicate  clearly  the  basis  of  his  decision. 
The  State  of  Georgia,  he  says,  "was  restrained" 
from  the  passing  of  the  rescinding  act  "either  by 
general  principles  which  are  common  to  our  free 
institutions,  or  by  particular  provisions  of  the  Con 
stitution  of  the  United  States. "  It  was  not  until 
nine  years  after  Fletcher  vs.  Peck  that  this  am 
biguity  was  cleared  up  in  the  Dartmouth  College 
case  in  1819. 

The  case  of  the  Trustees  of  Dartmouth  College 
vs.  Woodward1  was  a  New  England  product  and 


1  The  following  account  of  this  case  is  based  on  J.  M.  Shirley's 
Dartmouth  College  Causes  (St.  Louis,  1879)  and  on  the  official  report, 
4  Wheaton,  518. 


THE  SANCTITY  OF  CONTRACTS       155 

redolent  of  the  soil  from  which  it  sprang.  In  1754 
the  Reverend  Eleazar  Wheelock  of  Connecticut 
had  established  at  his  own  expense  a  charity  school 
for  instructing  Indians  in  the  Christian  religion; 
and  so  great  was  his  success  that  he  felt  encouraged 
to  extend  the  undertaking  and  to  solicit  donations 
in  England.  Again  success  rewarded  his  efforts; 
and  in  1769  Governor  Wentworth  of  New  Hamp 
shire,  George  Ill's  representative  granted  the  new 
institution,  which  was  now  located  at  Hanover, 
New  Hampshire,  a  charter  incorporating  twelve 
named  persons  as  "The  Trustees  of  Dartmouth 
College"  with  the  power  to  govern  the  institution, 
appoint  its  officers,  and  fill  all  vacancies  in  their 
own  body  "forever." 

For  many  years  after  the  Revolution,  the  Trus 
tees  of  Dartmouth  College,  several  of  whom  were 
ministers,  reflected  the  spirit  of  Congregationalism. 
Though  this  form  of  worship  occupied  almost  the 
position  of  a  state  religion  in  New  Hampshire,  early 
in  this  period  difficulties  arose  in  the  midst  of  the 
church  at  Hanover.  A  certain  Samuel  Hayes,  or 
Haze,  told  a  woman  named  Rachel  Murch  that  her 
character  was  "as  black  as  Hell,"  and  upon  Ra 
chel's  complaint  to  the  session,  he  was  "churched  " 
for  "breach  of  the  Ninth  Commandment  and 


156  MARSHALL  AND  THE  CONSTITUTION 

also  for  a  violation  of  his  covenant  agreement." 
This  incident  caused  a  rift  which  gradually  de 
veloped  into  something  very  like  a  schism  in  the 
local  congregation,  and  this  internal  disagreement 
finally  produced  a  split  between  Eleazar's  son,  Dr. 
John  Wheelock,  who  was  now  president  of  Dart 
mouth  College,  and  the  Trustees  of  the  institution. 
The  result  was  that  in  August,  1815,  the  Trustees 
ousted  Wheelock. 

The  quarrel  had  thus  far  involved  only  Calvin- 
ists  and  Federalists,  but  in  1816  a  new  element  was 
brought  in  by  the  interference  of  the  Governor 
of  New  Hampshire,  William  Plumer,  formerly  a 
Federalist  but  now,  since  1812,  the  leader  of  the 
Jeffersonian  party  in  the  State.  In  a  message  to 
the  Legislature  dated  June  6,  1816,  Plumer  drew 
the  attention  of  that  body  to  Dartmouth  Col 
lege.  "All  literary  establishments, "  said  he,  "like 
everything  human,  if  not  duly  attended  to,  are 
subject  to  decay.  ...  As  it  [the  charter  of  the 
College]  emanated  from  royalty,  it  contained,  as 
was  natural  it  should,  principles  congenial  to  mon 
archy,  "  and  he  cited  particularly  the  power  of  the 
Board  of  Trustees  to  perpetuate  itself.  "This  last 
principle,"  he  continued,  "is  hostile  to  the  spirit 
and  genius  of  a  free  government.  Sound  policy 


THE  SANCTITY  OF  CONTRACTS        157 

therefore  requires  that  the  mode  of  election  should 
be  changed  and  that  Trustees  in  future  should  be 
elected  by  some  other  body  of  men.  .  .  .  The 
College  was  formed  for  the  public  good,  not  for  the 
benefit  or  emolument  of  its  Trustees ;  and  the  right 
to  amend  and  improve  acts  of  incorporation  of  this 
nature  has  been  exercised  by  all  governments,  both 
monarchical  and  republican." 

Plumer  sent  a  copy  of  his  message  to  Jeffer 
son  and  received  a  characteristic  answer  in  reply: 
"It  is  replete,"  said  the  Republican  sage,  "with 
sound  principles.  .  .  .  The  idea  that  institutions 
established  for  the  use  of  the  nation  cannot  be 
touched  nor  modified,  even  to  make  them  answer 
their  end  ...  is  most  absurd.  .  .  .  Yet  our  law 
yers  and  priests  generally  inculcate  this  doctrine, 
and  suppose  that  preceding  generations  held  the 
earth  more  freely  than  we  do;  had  a  right  to  im 
pose  laws  on  us,  unalterable  by  ourselves;  .  .  . 
in  fine,  that  the  earth  belongs  to  the  dead  and 
not  to  the  living. "  And  so,  too,  apparently  the 
majority  of  the  Legislature  believed;  for  by  the 
measure  which  it  promptly  passed,  in  response  to 
Plumer's  message,  the  College  was  made  Dart 
mouth  University,  the  number  of  its  trustees  was 
increased  to  twenty-one,  the  appointment  of  the 


158  MARSHALL  AND  THE  CONSTITUTION 

additional  members  being  given  to  the  Governor, 
and  a  board  of  overseers,  also  largely  of  guber 
natorial  appointment,  was  created  to  supervise  all 
important  acts  of  the  trustees./ 

The  friends  of  the  College  at  once  denounced  the 
measure  as  void  under  both  the  State  and  the 
United  States  Constitution  and  soon  made  up 
a  test  case.  In  order  to  obtain  the  college  seal, 
charter,  and  records,  a  mandate  was  issued  early  in 
1817  by  a  local  court  to  attach  goods,  to  the  value 
of  $50,000,  belonging  to  William  H.  Woodward,  the 
Secretary  and  Treasurer  of  the  * '  University. ' '  This 
was  served  by  attaching  a  chair  "valued  at  one 
dollar."  The  story  is  also  related  that  authorities 
of  the  College,  apprehending  an  argument  that  the 
institution  had  already  forfeited  its  charter  on  ac 
count  of  having  ceased  to  minister  to  Indians,  sent 
across  into  Canada  for  some  of  the  aborigines,  and 
that  three  were  brought  down  the  river  to  receive 
matriculation,  but  becoming  panic-stricken  as  they 
neared  the  town,  leaped  into  the  water,  swam  ashore, 
and  disappeared  in  the  forest.  Unfortunately  this 
interesting  tale  has  been  seriously  questioned. 

The  attorneys  of  the  College  before  the  Superior 
Court  were  Jeremiah  Mason,  one  of  the  best  law 
yers  of  the  day,  Jeremiah  Smith,  a  former  Chief 


THE  SANCTITY  OF  CONTRACTS       159 

Justice  of  New  Hampshire,  and  Daniel  Webster. 
These  three  able  lawyers  argued  that  the  amend 
ing  act  exceeded  "the  rightful  ends  of  legislative 
power,"  violated  the  principle  of  the  separation 
of  powers,  and  deprived  the  trustees  of  their 
"privileges  and  immunities"  contrary  to  the  "law 
of  the  land"  clause  of  the  State  Constitution,  and 
impaired  the  obligation  of  contracts.  The  last  con 
tention  stirred  Woodward's  attorneys,  Bartlett  and 
Sullivan,  to  ridicule.  "By  the  same  reasoning," 
said  the  latter,  "every  law  must  be  considered 
in  the  nature  of  a  contract,  until  the  Legislature 
would  find  themselves  in  such  a  labyrinth  of  con 
tracts,  with  the  United  States  Constitution  over 
their  heads,  that  not  a  subject  would  be  left 
within  their  jurisdiction";  the  argument  was  an 
expedient  of  desperation,  he  said,  a  "last  straw." 
The  principal  contention  advanced  in  behalf  of 
the  Act  was  that  the  College  was  "a  public  cor 
poration,"  whose  "various  powers,  capacities,  and 
franchises  all  ...  were  to  be  exercised  for  the  bene 
fit  of  the  public,"  and  were  therefore  subject 
to  public  control.  And  the  Court,  in  sustaining 
the  Act,  rested  its  decision  on  the  same  ground. 
Chief  Justice  Richardson  conceded  the  doctrine  of 
Fletcher  vs.  Peck,  that  the  obligation  of  contracts 


160  MARSHALL  AND  THE  CONSTITUTION 

clause  "embraced  all  contracts  relating  to  pri 
vate  property,  whether  executed  or  executory,  and 
whether  between  individuals,  between  States,  or 
between  States  and  individuals,"  but,  he  urged, 
"a  distinction  is  to  be  taken  between  particular 
grants  by  the  Legislature  of  property  or  privi 
leges  to  individuals  for  their  own  benefit,  and 
grants  of  power  and  authority  to  be  exercised  for 
public  purposes."  Its  public  character,  in  short, 
left  the  College  and  its  holdings  at  the  disposal  of 
the  Legislature. 

Of  the  later  proceedings,  involving  the  appeal 
to  Washington  and  the  argument  before  Marshall, 
early  in  March,  1818,  tradition  has  made  Web 
ster  the  central  and  compelling  figure,  and  to 
the  words  which  it  assigns  him  in  closing  his  ad 
dress  before  the  Court  has  largely  been  attribut 
ed  the  great  legal  triumph  which  presently  fol 
lowed.  The  story  is,  at  least,  so  well  found  that 
the  chronicler  of  Dartmouth  College  vs.  Wood 
ward  who  should  venture  to  omit  it  must  be  a  bold 
man  indeed. 

The  argument  ended  [runs  the  tale],  Mr.  Webster  stood 
for  some  moments  silent  before  the  Court,  while  every 
eye  was  fixed  intently  upon  him.  At  length,  addressing 
the  Chief  Justice,  he  proceeded  thus:  "This,  sir,  is  my 


THE  SANCTITY  OF  CONTRACTS       161 

case.  It  is  the  case  ...  of  every  college  in  our  land. 
.  .  .  Sir,  you  may  destroy  this  little  institution.  .  .  . 
You  may  put  it  out.  But  if  you  do  so,  you  must  carry 
through  your  work!  You  must  extinguish,  one  after 
another,  all  those  greater  lights  of  science,  which,  for 
more  than  a  century  have  thrown  their  radiance  over 
our  land.  It  is,  Sir,  as  I  have  said,  a  small  college.  And 
yet  there  are  those  who  love  it  — 

Here,  the  feelings  which  he  had  thus  far  succeeded  in 
keeping  down,  broke  forth,  his  lips  quivered;  his  firm 
cheeks  trembled  with  emotion,  his  eyes  filled  with 
tears.  .  .  .  The  court-room  during  these  two  or  three 
minutes  presented  an  extraordinary  spectacle.  Chief 
Justice  Marshall,  with  his  tall  and  gaunt  figure  bent 
over,  as  if  to  catch  the  slightest  whisper,  the  deep  fur 
rows  of  his  cheek  expanded  with  emotion,  and  his  eyes 
suffused  with  tears;  Mr.  Justice  Washington  at  his  side, 
with  small  and  emaciated  frame,  and  countenance  more 
like  marble  than  I  ever  saw  on  any  other  human  being. 
.  .  .  There  was  not  one  among  the  strong-minded  men 
of  that  assembly  who  could  think  it  unmanly  to  weep, 
when  he  saw  standing  before  him  the  man  who  had 
made  such  an  argument,  melted  into  the  tenderness  of 
a  child. 

Mr.  Webster  had  now  recovered  his  composure,  and, 
fixing  his  keen  eyes  on  Chief  Justice  Marshall,  said  in 
that  deep  tone  with  which  he  sometimes  thrilled  the 
heart  of  an  audience:  "Sir,  I  know  not  how  others  may 
feel  .  .  .  but  for  myself,  when  I  see  my  Alma  Mater 
surrounded,  like  Caesar  in  the  Senate  house,  by  those 
who  are  reiterating  stab  after  stab,  I  would  not,  for  my 
right  hand,  have  her  turn  to  me  and  say,  Et  tu  quoque 
mi  fill!  And  thou,  too,  my  son!" 


162  MARSHALL  AND  THE  CONSTITUTION 

Whether  this  extraordinary  scene,  first  described 
thirty-four  years  afterward  by  a  putative  wit 
ness  of  it,  ever  really  occurred  or  not,  it  is  today 
impossible  to  say.1  But  at  least  it  would  be  an 
error  to  attribute  to  it  great  importance.  From 
the  same  source  we  have  it  that  at  Exeter,  too, 
Webster  had  made  the  judges  weep  —  yet  they 
had  gone  out  and  decided  against  him.  Judges  do 
not  always  decide  the  way  they  weep! 

Of  the  strictly  legal  part  of  his  argument  Web 
ster  himself 'has  left  us  a  synopsis.  Fully  three- 
quarters  of  it  dealt  with  the  questions  which  had 
been  discussed  by  Mason  before  the  State  Supreme 
Court  under  the  New  Hampshire  Constitution  and 
was  largely  irrelevant  to  the  great  point  at  issue 
at  Washington.  Joseph  Hopkinson,  who  was  now 
associated  with  Webster,  contributed  far  more  to 
the  content  of  Marshall's  opinion;  yet  he,  too, 
left  one  important  question  entirely  to  the  Chief 
Justice's  ingenuity,  as  will  be  indicated  shortly. 
Fortunately  for  the  College  its  opponents  were 
ill  prepared  to  take  advantage  of  the  vulnerable 
points  of  its  defense.  For  some  unknown  reason, 


1  Professor  Goodrich  of  Yale,  who  is  responsible  for  the  story,  com 
municated  it  to  Rufus  Choate  in  1853.  It  next  appears  on  Goodrich 's 
authority  in  Curtis's  Webster,  vol.  n,  pp.  169-71. 


THE  SANCTITY  OF  CONTRACTS       163 

Bartlett  and  Sullivan,  who  had  carried  the  day  at 
Exeter,  had  now  given  place  to  William  Wirt  and 
John  Holmes.  Of  these  the  former  had  just  been 
made  Attorney-General  of  the  United  States  and 
had  no  time  to  give  to  the  case  —  indeed  he  ad 
mitted  that  "he  had  hardly  thought  of  it  till  it 
was  called  on."  As  for  Holmes,  he  was  a  "kaleido 
scopic  politician"  and  barroom  wit,  best  known  to 
contemporaries  as  "the  noisy  eulogist  and  reputed 
protege  of  Jefferson."  A  remarkable  strategy  that, 
which  stood  such  a  person  up  before  John  Marshall 
to  plead  the  right  of  state  Legislatures  to  dictate 
the  fortunes  of  liberal  institutions! 

The  arguments  were  concluded  on  Thursday, 
the  12th  of  March.  The  next  morning  the  Chief 
Justice  announced  that  the  Court  had  conferred, 
that  there  were  different  opinions,  that  some  of 
the  judges  had  not  arrived  at  a  conclusion,  and 
that  consequently  the  cause  must  be  continued. 
Webster,  however,  who  was  apt  to  be  much  in 
"the  know"  of  such  matters,  ventured  to  place 
the  different  judges  thus : "  The  Chief  and  Washing 
ton,  "  he  wrote  his  former  colleague  Smith,  "I  have 
no  doubt,  are  with  us.  Duvall  and  Todd  perhaps 
against  us ;  the  other  three  holding  up  —  I  cannot 
much  doubt  but  that  Story  will  be  with  us  in  the 


164  MARSHALL  AND  THE  CONSTITUTION 

end,  and  I  think  we  have  much  more  than  an  even 
chance  for  one  of  the  others." 

The  friends  of  the  College  set  promptly  to  work 
to  bring  over  the  wavering  judges.  To  their  dis 
may  they  learned  that  Chancellor  James  Kent 
of  New  York,  whose  views  were  known  to  have 
great  weight  with  Justices  Johnson  and  Livingston, 
had  expressed  himself  as  convinced  by  Chief  Jus 
tice  Richardson's  opinion  that  Dartmouth  College 
was  a  public  corporation.  Fortunately,  however, 
a  little  ransacking  of  the  records  brought  to  light 
an  opinion  which  Kent  and  Livingston  had  both 
signed  as  early  as  1803,  when  they  were  members 
of  the  New  York  Council  of  Revision,  and  which 
took  the  ground  that  a  then  pending  measure  in  the 
New  York  Legislature  for  altering  the  Charter  of 
New  York  City  violated  "  due  process  of  law."  At 
the  same  time,  Charles  Marsh,  a  friend  of  both  Kent 
and  Webster,  brought  to  the  attention  of  the  former, 
Webster's  argument  before  Marshall  at  Washing 
ton  in  March,  1818.  Then  came  a  series  of  confer 
ences  at  Albany  in  which  Chancellor  Kent,  Justice 
Johnson,  President  Brown  of  Dartmouth  College, 
Governor  Clinton,  and  others  participated.  As  a 
result,  the  Chancellor  owned  himself  converted  to 
the  idea  that  the  College  was  a  private  institution. 


Painting  by  Rembrandt  Peale.  In  the  office  of  the  Corporation 
Counsel,  City  Hall,  New  York.  Owned  by  the  Corporation.  Re 
produced  by  courtesy  of  the  Municipal  Art  Commission  of  the  City  of 
New  York. 


104  MARSHAL!  >N 

and  I  ti  in  an  even 

•nptly  to  work 

To  their  dis- 

r  James  Kent 

vn  to  have 

i  avings  ton, 

Chief  Jus- 

Dartmouth  College 

.ately,  however, 

TAS-A  v;\v  >.\,     '.-ought  to  light 

nortBioqro")  sift  ^o  oofflo  !  Juifefiit 

•»  >  .l^niio' 


lo  vli')  or(J  'lei  n»ij<BiiufiioD  ,iaA  hiqioiniil/.  ->iil  lo  •/^.alniiu-)  vd  h-wuinn 


c  in  the 

Charter  of 

law."    At 

d  of  both  Kent 

the  fon 

l  Washing- 

a  of  confer- 

:it,  Justice 

iiouth  College, 

cipated.     A 

If  converted  to 

nstitution. 


THE  SANCTITY  OF  CONTRACTS       165 

The  new  term  of  court  opened  on  Monday,  Feb 
ruary  1,  1819.  William  Pinkney,  who  in  vacation 
had  accepted  a  retainer  from  the  backers  of  Wood 
ward,  that  is,  of  the  State,  took  his  stand  on 
the  second  day  near  the  Chief  Justice,  expecting 
to  move  for  a  reargument.  Marshall,  "turning  his 
blind  eye"  to  the  distinguished  Marylander,  an 
nounced  that  the  Court  had  reached  a  decision, 
plucked  from  his  sleeve  an  eighteen  folio  manu 
script  opinion,  and  began  reading  it.  He  held 
that  the  College  was  a  "private  eleemosynary  in 
stitution";  that  its  charter  was  the  outgrowth  of 
a  contract  between  the  original  donors  and  the 
Crown,  that  the  trustees  represented  the  inter 
est  of  the  donors,  and  that  the  terms  of  the  Con 
stitution  were  broad  enough  to  cover  and  protect 
this  representative  interest.  The  last  was  the  only 
point  on  which  he  confessed  a  real  difficulty.  The 
primary  purpose  of  the  constitutional  clause,  he 
owned,  was  to  protect  "contracts  the  parties  to 
which  have  a  vested  beneficial  interest"  in  them, 
whereas  the  trustees  had  no  such  interest  at  stake. 
But,  said  he,  the  case  is  within  the  words  of  the 
rule,  and  "must  be  within  its  operation  likewise, 
unless  there  be  something  in  the  literal  con 
struction"  obviously  at  war  with  the  spirit  of  the 


166  MARSHALL  AND  THE  CONSTITUTION 

Constitution,  which  was  far  from  the  fact.  For,  he 
continued,  "it  requires  no  very  critical  examina 
tion  of  the  human  mind  to  enable  us  to  determine 
that  one  great  inducement  to  these  gifts  is  the 
conviction  felt  by  the  giver  that  the  disposition  he 
makes  of  them  is  immutable.  All  such  gifts  are 
made  in  the  pleasing,  perhap^  delusive  hope,  that 
the  charity  will  flow  forever  in  the  channel  which 
the  givers  have  marked  out  for  it.  If  every  man 
finds  in  his  own  bosom  strong  evidence  of  the  uni 
versality  of  this  sentiment,  there  can  be  but  little 
reason  to  imagine  that  the  framers  of  our  Con 
stitution  were  strangers  to  it,  and  that,  feeling  the 
necessity  and  policy  of  giving  permanence  and  se 
curity  to  contracts"  generally,  they  yet  deemed 
it  desirable  to  leave  this  sort  of  contract  subject  to 
legislative  interference.  Such  is  Marshall's  answer 
to  Jefferson's  outburst  against  "the  dead  hand." 

Characteristically,  Marshall  nowhere  cites  Flet 
cher  vs.  Peck  in  his  opinion,  but  he  builds  on  the 
construction  there  made  of  the  "obligation  of  con 
tracts"  clause  as  clearly  as  do  his  associates,  Story 
and  Washington,  who  cite  it  again  and  again  in 
their  concurring  opinion.  Thus  he  concedes  that 
the  British  Parliament,  in  consequence  of  its  un 
limited  power,  might  at  any  time  before  the  Revo- 


THE  SANCTITY  OF  CONTRACTS        167 

lution  have  annulled  the  charter  of  the  College  and 
so  have  disappointed  the  hopes  of  the  donors;  but, 
he  adds,  "the  perfidy  of  the  transaction  would  have 
been  universally  acknowledged"  Later  on,  he  fur 
ther  admits  that  at  the  time  of  the  Revolution 
the  people  of  New  Hampshire  succeeded  to  "the 
transcendent  power  of  Parliament, "  as  well  as  to 
that  of  the  King,  with  the  result  that  a  repeal  of 
the  charter  before  1789  could  have  been  contested 
only  under  the  State  Constitution.  "But  the  Con 
stitution  of  the  United  States, "  he  continues,  "has 
imposed  this  additional  limitation,  that  the  Legis 
lature  of  a  State  shall  pass  no  act  'impairing  the 
obligation  of  contracts."  In  short,  as  in  Fletcher 
vs.  Peck,  what  was  originally  a  moral  obligation  is 
regarded  as  having  been  lifted  by  the  Constitution 
into  the  full  status  of  a  legal  one,  and  this  time 
without  any  assistance  from  "the  general  prin 
ciples  of  our  free  institutions." 

How  is  the  decision  of  the  Supreme  Court  in  the 
case  of  Dartmouth  College  vs.  Woodward  to  be 
assessed  today?  Logically  the  basis  of  it  was  re 
pudiated  by  the  Court  itself  within  a  decade,  albeit 
the  rule  it  lays  down  remained  unaffected.  His 
torically  it  is  equally  without  basis,  for  the  inten 
tion  of  the  obligation  of  contracts  clause,  as  the 


168  MARSHALL  AND  THE  CONSTITUTION 

evidence  amply  shows,  was  to  protect  private 
executory  contracts,  and  especially  contracts  of 
debt. z  In  actual  practice,  on  the  other  hand,  the" 
decision  produced  one  considerable  benefit:  in  the 
words  of  a  contemporary  critic,  it  put  private  in 
stitutions  of  learning  and  charity  out  of  the  reach 
of  "legislative  despotism  and  party  violence." 

But  doubtless,  the  critic  will  urge,  by  the  same 
sign  this  decision  also  put  profit-seeking  corpora 
tions  beyond  wholesome  legislative  control.  But 
is  this  a  fact?  To  begin  with,  such  a  criticism  is 
clearly  misdirected.  As  we  have  just  seen,  the 
New  Hampshire  Superior  Court  itself  would  have 
felt  that  Fletcher  vs.  Peck  left  it  no  option  but  to 
declare  the  amending  act  void,  had  Dartmouth 
College  been,  say,  a  gas  company;  and  this  was 
in  all  probability  the  universal  view  of  bench  and 
bar  in  1819.  Whatever  blame  there  is  should  there 
fore  be  awarded  the  earlier  decision.  But,  in  the 
second  place,  there  does  not  appear  after  all  to  be 
so  great  measure  of  blame  to  be  awarded.  The 
opinion  in  Dartmouth  College  vs.  Woodward  leaves 
it  perfectly  clear  that  legislatures  may  reserve  the 
right  to  alter  or  repeal  at  will  the  charters  they  grant. 

1  Much  of  the  evidence  is  readily  traceable  through  the  Index  to 
Max  Farrand's  Records  of  the  Federal  Convention. 


THE  SANCTITY  OF  CONTRACTS        169 

If  therefore  alterations  and  repeals  have  not  been 
as  frequent  as  public  policy  has  demanded,  whose 
fault  is  it? 

Perhaps,  however,  it  will  be  argued  that  the  real 
mischief  of  the  decision  has  consisted  in  its  effect 
upon  the  state  Legislatures  themselves,  the  idea 
being  that  large  business  interests,  when  offered 
the  opportunity  of  obtaining  irrepealable  charters, 
have  frequently  found  it  worth  their  while  to  assail 
frail  legislative  virtue  with  irresistible  temptation. 
The  answer  to  this  charge  is  a  "confession  in  avoid 
ance";  the  facts  alleged  are  true  enough  but  hardly 
to  the  point.  Yet  even  if  they  were,  what  is  to  be 
said  of  that  other  not  uncommon  incident  of  legis 
lative  history,  the  legislative  "strike,"  whereby 
corporations  not  protected  by  irrepealable  charters 
are  blandly  confronted  with  the  alternative  of  hav 
ing  their  franchises  mutilated  or  of  paying  hand 
somely  for  their  immunity?  So  the  issue  seems  to 
resolve  itself  into  a  question  of  taste  regarding 
two  species  of  legislative  "honesty."  Does  one 
prefer  that  species  which,  in  the  words  of  the  late 
Speaker  Reed,  manifests  itself  in  "staying  bought," 
or  that  species  which  flowers  in  legislative  black 
mail?  The  truth  of  the  matter  is  that  Marshall's 
decision  has  been  condemned  by  ill-informed  or 


170  MARSHALL  AND  THE  CONSTITUTION 

ill-intentioned  critics  for  evils  which  are  much 
more  simply  and  much  more  adequately  explained 
by  general  human  cupidity  and  by  the  power  in 
herent  in  capital.  These  are  evils  which  have  been 
experienced  quite  as  fully  in  other  countries  which 
never  heard  of  the  "obligation  of  contracts  "  clause. 
The  decisions  reached  in  Fletcher  vs.  Peck  and 
Dartmouth  College  vs.  Woodward  are  important 
episodes  in  a  significant  phase  of  American  consti 
tutional  history.  Partly  on  account  of  the  lack  of 
distinction  between  legislative  and  judicial  power 
and  partly  on  account  of  the  influence  of  the  notion 
of  parliamentary  sovereignty,  legislative  bodies  at 
the  close  of  the  eighteenth  century  were  the  sources 
of  much  anonymous  and  corporate  despotism. 
Even  in  England  as  well  as  in  this  country  the  value, 
and  indeed  the  possibility,  of  representative  insti 
tutions  had  been  frankly  challenged  in  the  name 
of  liberty.  For  the  United  States  the  problem  of 
making  legislative  power  livable  and  tolerable  — 
a  problem  made  the  more  acute  by  the  multi 
plicity  of  legislative  bodies  —  was  partly  solved 
by  the  establishment  of  judicial  review.  But  this 
was  only  the  first  step :  legislative  power  had  still 
to  be  defined  and  confined.  Marshall 's_audacity 
in  invoking  generally  recognized  moral  principles 


THE  SANCTITY  OF  CONTRACTS       171 

agains^ legislative  sovereignty  in  his  interpretation 
of  the  "obligation  of  contracts"  clause  pointed  the 
way  to  the  American  judiciaries  for  the  discharge  of 
their  task  of  defining  legislative  power.  The  final 
result  is  to  be  seen  today  in  the  Supreme  Court's 
concept  of  the  police  power  of  a  State  as  a  power 
not  of  arbitrary  but  of  reasonable  legislation. 

While  Marshall  was  performing  this  service  in 
behalf  of  representative  government,  he  was  also 
aiding  the  cause  of  nationalism  by  accustoming 
certain  types  of  property  to  look  upon  the  National 
Government  as  their  natural  champion  against  the 
power  of  the  States.  In  this  connection  it  should 
also  be  recalled  that  Gibbons  vs.  Ogden  and  Brown 
vs.  Maryland  had  advanced  the  principle  of  the 
exclusiveness  of  Congress's  power  over  foreign  and 
interstate  commerce.  Under  the  shelter  of  this 
interpretation  there  developed,  in  the  railroad  and 
transportation  business  of  the  country  before  the 
Civil  War,  a  property  interest  almost  as  exten 
sive  as  that  which  supported  the  doctrine  of  State 
Rights.  Nor  can  it  be  well  doubted  that  Marshall 
designed  some  such  result  or  that  he  aimed  to 
prompt  the  reflection  voiced  by  King  of  Massa 
chusetts  on  the  floor  of  the  Federal  Convention. 
"He  was  filled  with  astonishment  that,  if  we 


172  MARSHALL  AND  THE  CONSTITUTION 

were  convinced  that  every  man  in  America  was 
secured  in  all  his  rights,  we  should  be  ready  to 
sacrifice  this  substantial  good  to  the  phantom  of 
state  sovereignty. " 

Lastly,  these  decisions  brought  a  certain  theo 
retical  support  to  the  Union.  Marshall  himself  did 
not  regard  the  Constitution  as  a  compact  between 
the  States;  if  a  compact  at  all,  it  was  a  compact 
among  individuals,  a  social  compact.  But  a  great 
and  increasing  number  of  his  countrymen  took  the 
other  view.  How  unsafe,  then,  it  would  have  been 
from  the  standpoint  of  one  concerned  for  the  in 
tegrity  of  the  Union,  to  distinguish  public  con 
tracts  from  private  on  the  ground  that  the  former, 
in  the  view  of  the  Constitution,  had  less  obligation ! 


CHAPTER  VII 

• 

THE  MENACE  OF  STATE  RIGHTS 

MARSHALL'S  reading  of  the  Constitution  may  be 
summarized  in  a  phrase:  it  transfixed  State  Sover 
eignty  with  a  two-edged  sword,  one  edge  of  which 
was  inscribed  "National  Supremacy,"  and  the 
other  "Private  Rights."  Yet  State  Sovereignty, 
ever  reanimated  by  the  democratic  impulse  of  the 
times,  remained  a  serpent  which  was  scotched  but 
not  killed.  To  be  sure,  this  dangerous  enemy  to 
national  unity  had  failed  to  secure  for  the  state 
Legislatures  the  right  to  interpret  the  Constitution 
with  authoritative  finality;  but  its  argumentative 
resources  were  still  far  from  exhausted,  and  its  po 
litical  resources  were  steadily  increasing.  It  was 
still  capable  of  making  a  notable  resistance  even  in 
withdrawing  itself,  until  it  paused  in  its  recoil  and 
flung  itself  forward  in  a  new  attack. 

The  connecting  link  between  the  Supreme  Court 
and  the  state  courts  has  already  been  pointed  out 

173 


174  MARSHALL  AND  THE  CONSTITUTION 

to  be  Section  xxv  of  the  Act  of  1789  organizing  the 
Federal  Judiciary. r  This  section  provides,  in  effect, 
that  when  a  suit  is  brought  in  a  state  court  under  a 
state  law,  and  the  party  against  whom  it  is  brought 
claims  some  right  under  a  national  law  or  treaty 
or  under  the  Constitution  itself,  the  highest  state 
court  into  which  the  case  can  come  must  either 
sustain  such  a  claim  or  consent  to  have  its  decision 
reviewed,  and  possibly  reversed,  by  the  Supreme 
Court.  The  defenders  of  State  Rights  at  first  ap 
plauded  this  arrangement  because  it  left  to  the 
local  courts  the  privilege  of  sharing  a  jurisdiction 
which  could  have  been  claimed  exclusively  by  the 
Federal  Courts.  But  when  State  Rights  began  to 
grow  into  State  Sovereignty,  a  different  attitude 
developed,  and  in  1814  the  Virginia  Court  of  Ap 
peals,  in  the  case  of  Hunter  vs.  Martin,2  pro 
nounced  Section  xxv  void,  though,  in  order  not  to 
encourage  the  disloyal  tendencies  then  rampant  in 
New  England,  the  decision  was  not  published  until 
after  the  Treaty  of  Ghent,  in  February,  1815. 

The  head  and  front  of  the  Virginia  court  at  this 
time  was  Spencer  Roane,  described  as  "the  most 

1  See  pages  14-15. 

2  4  Munford  (Va.),  1.    See  also  William  E.  Dodd's  article  on  Chief 
Justice  Marshall  and  Virginia  in  American  Historical  Review,  vol. 
xn,  p.  776. 


THE  MENACE  OF  STATE  RIGHTS  17o 
powerful  politician  in  the  State,"  an  ardent  Jef- 
fersonian,  and  an  enemy  of  Marshall  on  his  own 
account,  for  had  Ellsworth  not  resigned  so  inop 
portunely,  late  in  1800,  and  had  Jefferson  had  the 
appointment  of  his  successor,  Roane  would  have 
been  the  man.  His  opinion  in  Hunter  vs.  Martin 
disclosed  personal  animus  in  every  line  and  was  writ 
ten  with  a  vehemence  which  was  more  likely  to 
discomfit  a  grammarian  than  its  designed  victims ; 
but  it  was  withal  a  highly  ingenious  plea.  At  one 
point  Roane  enjoyed  an  advantage  which  would 
not  be  his  today  when  so  much  more  gets  into 
print,  for  the  testimony  of  Madison's  Journal, 
which  was  not  published  till  1840,  is  flatly  against 
him  on  the  main  issue.  In  1814,  however,  the  most 
nearly  contemporaneous  evidence  as  to  the  inten 
tion  of  the  framers  of  the  Constitution  was  that  of 
the  Federalist,  which  Roane  stigmatizes  as  "a  mere 
newspaper  publication  written  in  the  heat  and  fury 
of  the  battle,"  largely  by  ua  supposed  favorer  of 
a  consolidated  government. "  This  description  not 
only  overlooks  the  obvious  effort  of  the  authors  of 
the  Federalist  to  allay  the  apprehensions  of  state 
jealousy  but  it  also  conveniently  ignores  Madison's 
part  in  its  composition.  Indeed,  the  enfant  terrible 
of  State  Rights,  the  Madiso)n  of  1787-88,  Roane 

*^ 


176  MARSHALL  AND  THE  CONSTITUTION 

would  fain  conceal  behind  the  Madison  of  ten  years 
later;  and  the  Virginia  Resolutions  of  1798  and  the 
Report  of  1799  he  regards  the  earliest  "just  exposi 
tion  of  the  principles  of  the  Constitution." 

To  the  question  whether  the  Constitution  gave 
"any  power  to  the  Supreme  Court  of  the  United 
States  to  reverse  the  judgment  of  the  supreme 
court  of  a  State,"  Roane  returned  an  emphatic 
negative.  His  argument  may  be  summarized  thus : 
The  language  of  Article  III  of  the  Constitution 
does  not  regard  the  state  courts  as  composing  a 
part  of  the  judicial  organization  of  the  General 
Government;  and  the  States,  being  sovereign,  can 
not  be  stripped  of  their  power  merely  by  impli 
cation.  Conversely,  the  General  Government  is  a 
government  over  individuals  and  is  therefore  ex 
pected  to  exercise  its  powers  solely  through  its 
own  organs.  To  be  sure,  the  judicial  power  of  the 
United  States  extends  to  "all  cases  arising"  under 
the  Constitution  and  the  laws  of  the  United  States. 
But  in  order  to  come  within  this  description,  a  case 
must  not  merely  involve  the  construction  of  the 
Constitution  or  laws  of  the  United  States;  it  must 
have  been  instituted  in  the  United  States  courts, 
and  not  in  those  of  another  Government.  Fur 
ther,  the  Constitution  and  the  acts  of  Congress  "in 


THE  MENACE  OF  STATE  RIGHTS  177 
pursuance  thereof"  are  "the  supreme  law  of  the 
land,"  and  "the  judges  in  every  State"  are  "bound 
thereby,  anything  in  the  Constitution  or  laws  of  any 
State  to  the  contrary  notwithstanding."  But  they 
are  bound  as  state  judges  and  only  as  such;  and 
what  the  Constitution  is,  or  what  acts  of  Con 
gress  are  "in  pursuance "  of  it,  is  for  them  to  declare 
without  any  correction  or  interference  by  the  courts 
of  another  jurisdiction.  Indeed,  it  is  through  the 
power  of  its  courts  to  say  finally  what  acts  of 
Congress  are  constitutional  and  what  are  not,  that 
the  State  is  able  to  exercise  its  right  of  arresting 
within  its  boundaries  unconstitutional  measures  of 
the  General  Government.  For  the  legislative  nul 
lification  of  such  measures  proposed  by  the  Vir 
ginia  and  Kentucky  resolutions  is  thus  substituted 
judicial  nullification  by  the  local  judiciaries. 

In  Martin  vs.  Hunter's  Lessee,1  which  was  de 
cided  in  February,  1816,  Story,  speaking  for  the 
Court,  undertook  to  answer  Roane.  Roane's  ma 
jor  premise  he  met  with  flat  denial:  /'It  is  a 
mistake,"  he  asserts,  "that  the  Constitution  was 
not  designed  to  operate  upon  States  in  their  cor 
porate  capacities.  It  is  crowded  with  provisions 

1 1  Wheaton,  304.     Marshall  had  an  indirect  interest  in  the  case. 
See  supra,  pp.  44-45. 
12 


178  MARSHALL  AND  THE  CONSTITUTION 

which  restrain  or  annul  the  sovereignty  of  the 
States  in  some  of  the  highest  branches  of  their 
prerogatives."  The  greater  part  of  the  opinion, 
however,  consisted  of  a  minute  examination  of  the 
language  of  Article  III  of  the  Constitution.  In 
brief,  he  pointed  out  that  while  Congress  "may 
.  .  .  establish  "  inferior  courts  and,  therefore,  may 
not,  it  was  made  imperative  that  the  judicial 
power  of  the  United  States  "shall  extend  to  all 
cases  arising  .  .  .  under"  the  Constitution  and  acts 
of  Congress.  If,  therefore,  Congress  should  ex 
ercise  its  option  and  not  establish  inferior  courts, 
in  what  manner,  he  asked,  could  the  purpose  of 
the  Constitution  be  realized  except  by  providing 
appeals  from  the  state  courts  to  the  United  States 
Supreme  Court?  But  more  than  that,  the  practical 
consequences  of  the  position  taken  by  the  Virginia 
Court  of  Appeals  effectually  refuted  it.  That  there 
should  be  as  many  versions  of  the  Constitution, 
laws,  and  treaties  as  there  are  States  in  the  Union 
was  certainly  never  intended  by  the  framers,  nor 
yet  that  plaintiffs  alone  should  say  when  resort 
should  be  had  to  the  national  tribunals,  which  were 
designed  for  the  benefit  of  all. 

If  Story's  argument  is  defective  at  any  point,  it 
is  in  its  failure  to  lay  down  a  clear  definition  of 


THE  MENACE  OF  STATE  RIGHTS      179 

"cases  arising  under  this  Constitution,"  and  this 
defect  in  constitutional  interpretation  is  supplied 
five  years  later  in  Marshall's  opinion  in  Cohens  vs. 
Virginia.1  The  facts  of  this  famous  case  were  as 
follows :  Congress  had  established  a  lottery  for  the 
District  of  Columbia,  for  which  the  Cohens  had 
sold  tickets  in  Virginia.  They  had  thus  run  foul  of 
a  state  law  prohibiting  such  transactions  and  had 
been  convicted  of  the  offense  in  the  Court  of  Quar 
terly  Sessions  of  Norfolk  County  and  fined  one  hun 
dred  dollars.  From  this  judgment  they  were  now 
appealing  under  Section  xxv. 

Counsel^for  the_State_of  Virginia  again  advanced 
the  principles  which  had  been  developed  by  Roane 
in  Hunter  vs.  Martin  but  urged  in  addition  that 
this  particular  appeal  rendered  Virginia  a  defend 
ant  contrary  to  Article  XI  of  the  Amendments. 
Marshall's  summary  of  their  argument  at  the  out 
set  of  his  opinion  is  characteristic:  "They  main 
tain,  "  he  said,  "that  the  nation  does  not  possess  a 
department  capable  of  restraining  peaceably,  and 
by  authority  of  law,  any  attempts  which  may  be 
made  by  a  part  against  the  legitimate  powers  of 
the  whole,  and  that  the  government  is  reduced  to 
the  alternative  of  submitting  to  such  attempts  or  of 

1 6  Wheaton,  264. 


180  MARSHALL  AND  THE  CONSTITUTION 

resisting  them  by  force.  They  maintain  that  the 
Constitution  of  the  United  States  has  provided  no 
tribunal  for  the  final  construction  of  itself  or  of  the 
laws  or  treaties  of  the  nation,  but  that  this  power 
must  be  exercised  in  the  last  resort  by  the  courts 
of  every  State  in  the  Union.  That  the  Constitu 
tion,  laws,  and  treaties  may  receive  as  many  con 
structions  as  there  are  States;  and  that  this  is  not  a 
mischief,  or,  if  a  mischief,  is  irremediable." 

The  cause  of  such  absurdities,  Marshall  con 
tinued,  was  a  conception  of  State  Sovereignty  con 
tradicted  by  the  very  words  of  the  Constitution, 
which  assert  its  supremacy,  and  that  of  all  acts  of 
Congress  in  pursuance  of  it,  over  all  conflicting 
state  laws  whatsoever.  "This,"  he  proceeded  to 
say,  "is  the  authoritative  language  of  the  Ameri 
can  People,  and  if  gentlemen  please,  of  the  Ameri 
can  States.  It  marks,  with  lines  too  strong  to  be 
mistaken,  the  characteristic  distinction  between 
the  Government  of  the  Union  and  those  of  the 
States.  The  General  Government,  though  limited 
as  to  its  objects,  is  supreme  with  respect  to  those 
objects.  This  principle  is  a  part  of  the  Constitu 
tion,  and  if  there  be  any  who  deny  its  necessity, 
none  can  deny  its  authority."  Nor  was  this  to 
say  that  the  Constitution  is  unalterable.  "The 


THE  MENACE  OF  STATE  RIGHTS      181 

people  make  the  Constitution,  and  the  people  can 
unmake  it.  It  is  the  creature  of  their  own  will,  and 
lives  only  by  their  will.  But  this  supreme  and  ir 
resistible  power  to  make  or  unmake  resides  only 
in  the  whole  body  of  the  people,  not  in  any  sub 
division  of  them.  The  attempt  of  any  of  the  parts 
to  exercise  it  is  usurpation,  and  ought  to  be  re 
pelled  by  those  to  whom  the  people  have  delegated 
their  power  of  repelling  it." 

Once  Marshall  had  swept  aside  the  irrelevant 
notion  of  State  Sovereignty,  he  proceeded  with 
the  remainder  of  his  argument  without  difficulty. 
Counsel  for  Virginia  had  contended  that  "a  case 
arising  under  the  Constitution  or  a  law  must  be 
one  in  which  a  party  comes  into  court  to  demand 
something  conferred  on  him  by  the  Constitution 
or  a  law";  but  this  construction  Marshall  held  to 
be  "too  narrow."  "A  case  in  law  or  equity  con- 
jdsts  of  the  right  of  the  one  party  as  well  as  of 
the  other,  and  may  truly  be  said  to  arise  under 
the  Constitution  or  a  law  of  the  United  States 
whenever  its  correct  decision  depends  on  the  construc 
tion  of  either. "  From  this  it  followed  that  Section 
xxv  was  a  measure  necessary  and  proper  for  ex 
tending  the  judicial  power  of  the  United  States 
appellately  to  such  cases  whenever  they  were  first 


182  MARSHALL  AND  THE  CONSTITUTION 

brought  in  a  state  court.  Nor  did  Article  XI  of 
the  Amendments  nullify  the  power  thus  conferred 
upon  the  Court  in  a  case  which  the  State  itself  had 
instituted,  for  in  such  a  case  the  appeal  taken  to 
the  national  tribunal  was  only  another  stage  in 
an  action  "begun  and  prosecuted, "  not  against  the 
State,  but  by  the  State.  The  contention  of  Vir 
ginia  was  based  upon  the  assumption  that  the 
Federal  and  the  State  Judiciaries  constituted  inde 
pendent  systems  for  the  enforcement  of  the  Con 
stitution,  the  national  laws,  and  treaties,  and  such 
an  assumption  Marshall  held  to  be  erroneous.  For 
the  purposes  of  the  Constitution  the  United  States 
"form  a  single  nation,"  and  in  effecting  these 
purposes  the  Government  of  the  Union  may  "le 
gitimately  control  all  individuals  or  governments 
within  the  American  territory." 

"Our  opinion  in  the  Bank  Case,"  Marshall  had 
written  Story  from  Richmond  in  1819,  a  few  weeks 
after  M'Culloch  vs.  Maryland,  "has  roused  the 
sleeping  spirit  of  Virginia,  if  indeed  it  ever  sleeps." 
Cohens  vs.  Virginia,  in  1821,  produced  an  even 
more  decided  reaction.  Jefferson,  now  in  retire 
ment,  had  long  since  nursed  his  antipathy  for  the 
Federal  Judiciary  to  the  point  of  monomania.  It 
was  in  his  eyes  "a  subtle  corps  of  sappers  and 


THE  MENACE  OF  STATE  RIGHTS      183 

miners  constantly  working  underground  to  under 
mine  our  confederated  fabric";  and  this  latest  as 
sault  upon  the  rights  of  the  States  seemed  to  him, 
though  perpetrated  in  the  usual  way,  the  most 
outrageous  of  all:  "An  opinion  is  huddled  up  in 
conclave,  perhaps  by  a  majority  of  one,  delivered 
as  if  unanimous,  and  with  the  silent  acquiescence 
of  lazy  or  timid  associates,  by  a  crafty  chief  judge, 
who  sophisticates  the  law  to  his  own  mind  by  the 
turn  of  his  own  reasoning." 

Roane,  Jefferson's  protege,  was  still  more  vio 
lent  and  wrote  a  series  of  unrestrained  papers  at 
this  time  in  the  Richmond  Enquirer,  under  the 
pseudonym  "  Algernon  Sidney."  Alluding  to  these, 
Marshall  wrote  Story  that  "their  coarseness  and 
malignity  would  designate  the  author  of  them  if 
he  was  not  avowed. "  Marshall  himself  thought  to 
answer  Roane,  but  quickly  learned  that  the  Vir 
ginia  press  was  closed  to  that  side  of  the  ques 
tion.  He  got  his  revenge,  however,  by  obtaining 
the  exclusion  of  Roane's  effusions  from  Hall's  Law 
Journal,  an  influential  legal  periodical  published  in 
Philadelphia.  But  the  personal  aspect  of  the  con 
troversy  was  the  least  important.  "A  deep  design," 
Marshall  again  wrote  his  colleague,  "to  convert 
our  Government  into  a  mere  league  of  States  has 


184  MARSHALL  AND  THE  CONSTITUTION 

taken  hold  of  a  powerful  and  violent  party  in  Vir 
ginia.  The  attack  upon  the  judiciary  is  in  fact  an 
attack  upon  the  Union."  Nor  was  Virginia  the 
only  State  where  this  movement  was  formidable, 
and  an  early  effort  to  repeal  Section  xxv  was  to 
be  anticipated. 

That  the  antijudicial  movement  was  extending 
to  other  States  was  indeed  apparent.  The  decision 
in  Sturges  vs.  Crowinshield1  left  for  several  years 
the  impression  that  the  States  could  not  pass  bank 
ruptcy  laws  even  for  future  contracts  and  conse 
quently  afforded  a  widespread  grievance.  Ohio 
had  defied  the  ruling  in  M'Culloch  vs.  Maryland, 
and  her  Treasurer  was  languishing  in  jail  by  the 
mandate  of  the  Federal  Circuit  Court.  Kentucky 
had  a  still  sharper  grievance  in  the  decision  in 
Green  vs.  Biddle,2  which  invalidated  a  policy  she 
had  been  pursuing  for  nearly  a  quarter  of  a  cen 
tury  with  reference  to  squatters'  holdings;  and 
what  made  the  decision  seem  the  more  outrageous 
was  the  mistaken  belief  that  it  had  represented  the 
views  of  only  a  minority  of  the  justices. 

The  Legislatures  of  the  aggrieved  States  were 
soon  in  full  hue  and  cry  at  the  heels  of  the  Court; 
and  from  them  the  agitation  quickly  spread  to 

1  4  Wheaton,  122.  » 8  Wheaton,  1. 


THE  MENACE  OF  STATE  RIGHTS      185 

Congress.1  On  December  12,  1821,  Senator  John 
son  of  Kentucky  proposed  an  amendment  to  the 
Constitution  which  was  intended  to  substitute 
the  Senate  for  the  Supreme  Court  in  all  constitu 
tional  cases.  In  his  elaborate  speech  in  support  of 
his  proposition,  Johnson  criticized  at  length  the 
various  decisions  of  the  Court  but  especially  those 
grounded  on  its  interpretation  of  the  "obligation  of 
contracts"  clause.  More  than  that,  however,  he 
denied  in  toto  the  rights  of  the  Federal  Courts  to 
pass  upon  the  constitutionality  either  of  acts  of 
Congress  or  of  state  legislative  measures.  So  long 
as  judges  were  confined  to  the  field  of  jurispru 
dence,  the  principles  of  which  were  established 
and  immutable,  judicial  independence  was  all  very 
well,  said  Johnson,  but  "the  science  of  politics  was 
still  in  its  infancy";  and  in  a  republican  system  of 
government  its  development  should  be  entrusted 
to  those  organs  which  were  responsible  to  the 
people.  Judges  were  of  no  better  clay  than  other 
folk.  "Why,  then,  "  he  asked,  "should  they  be 
considered  any  more  infallible,  or  their  decisions 
any  less  subject  to  investigation  and  revision?" 


1  For  a  good  review  of  the  contemporary  agitation  aroused  by  Mar 
shall's  decisions,  see  two  articles  by  Charles  Warren  in  the  American 
Law  Review,  vol.  XLVII,  pp.  1  and  101. 


186  MARSHALL  AND  THE  CONSTITUTION 

Furthermore,  "courts,  like  cities,  and  villages,  or 
like  legislative  bodies,  will  sometimes  have  their 
leaders;  and  it  may  happen  that  a  single  individ 
ual  will  be  the  prime  cause  of  a  decision  to  over 
turn  the  deliberate  act  of  a  whole  State  or  of  the 
United  States;  yet  we  are  admonished  to  receive 
their  opinions  as  the  ancients  did  the  responses  of 
the  Delphic  oracle,  or  the  Jews,  with  more  propri 
ety,  the  communications  from  Heaven  delivered  by 
Urim  and  Thummim  to  the  High  Priest  of  God's 
chosen  people." 

For  several  years  after  this,  hardly  a  session 
of  Congress  convened  in  which  there  was  not  in 
troduced  some  measure  for  the  purpose  either  of 
curbing  the  Supreme  Court  or  of  curtailing  Mar 
shall's  influence  on  its  decisions.  One  measure,  for 
example,  proposed  the  repeal  of  Section  xxv;  an 
other,  the  enlargement  of  the  Court  from  seven 
to  ten  judges;  another,  the  requirement  that  any 
decision  setting  aside  a  state  law  must  have  the 
concurrence  of  five  out  of  seven  judges;  another, 
the  allowance  of  appeals  to  the  Court  on  decisions 
adverse  to  the  constitutionality  of  state  laws  as 
well  as  on  decisions  sustaining  them.  Finally,  in 
January,  1826,  a  bill  enlarging  the  Court  to  ten 
judges  passed  the  House  by  a  vote  of  132  to  27. 


THE  MENACE  OF  STATE  RIGHTS  187 
In  the  Senate,  Rowan  of  Kentucky  moved  an 
amendment  requiring  in  all  cases  the  concurrence 
of  seven  of  the  proposed  ten  judges.  In  a  speech 
which  was  typical  of  current  criticism  of  the  Court 
he  bitterly  assailed  the  judges  for  the  protection 
they  had  given  the  Bank  —  that  "political  jug 
gernaut,"  that  "creature  of  the  perverted  corpo 
rate  powers  of  the  Federal  Government"  —  and 
he  described  the  Court  itself  as  "placed  above  the 
control  of  the  will  of  the  people,  in  a  state  of  dis 
connection  with  them,  inaccessible  to  the  chari 
ties  and  sympathies  of  human  life."  The  amend 
ment  failed,  however,  and  in  the  end  the  bill  itself 
was  rejected. 

Yet  a  proposition  to  swamp  the  Court  which 
received  the  approval  of  four-fifths  of  the  House  of 
Representatives  cannot  be  lightly  dismissed  as  an 
aberration.  Was  it  due  to  a  fortuitous  coalescence 
of  local  grievances,  or  was  there  a  general  under 
lying  cause?  That  Marshall's  principles  of  con 
stitutional  law  did  not  entirely  accord  with  the 
political  and  economic  life  of  the  nation  at  this 
period  must  be  admitted.  The  Chief  Justice  was 
at  once  behind  his  times  and  ahead  of  them.  On 
the  one  hand,  he  was  behind  his  times  because 
he  failed  to  appreciate  adequately  the  fact  that 


188  MARSHALL  AND  THE  CONSTITUTION 

freedom  was  necessary  to  frontier  communities 
in  meeting  their  peculiar  problems  —  a  freedom 
which  the  doctrine  of  State  Rights  promised  them 
—  and  so  he  had  roused  Kentucky's  wrath  by 
the  pedantic  and,  as  the  Court  itself  was  presently 
forced  to  admit,  unworkable  decision  in  Green  vs. 
Biddle.  Then  on  the  other  hand,  the  nationalism 
of  this  period  was  of  that  negative  kind  which  was 
better  content  to  worship  the  Constitution  than 
to  make  a  really  serviceable  application  of  the 
national  powers.  After  the  War  of  1812  the  great 
and  growing  task  which  confronted  the  rapidly 
expanding  nation  was  that  of  providing  adequate 
transportation,  and  had  the  old  federalism  from 
which  Marshall  derived  his  doctrines  been  at  the 
helm,  this  task  would  undoubtedly  have  been  taken 
over  by  the  National  Government.  By  Madison's 
veto  of  the  Cumberland  Road  Bill,  however,  in 
1816,  this  enterprise  was  handed  over  to  the  States; 
and  they  eagerly  seized  upon  it  after  the  open 
ing  of  the  Erie  Canal  in  1825  and  the  perception 
of  the  immense  success  of  the  venture.  Later,  to 
be  sure,  the  panic  of  1837  transferred  the  work  of 
railroad  and  canal  building  to  the  hands  of  pri 
vate  capital  but,  after  all,  without  altering  greatly 
the  constitutional  problem.  For  with  corporations 


THE  MENACE  OF  STATE  RIGHTS      189 

to  be  chartered,  endowed  with  the  power  of  emi 
nent  domain,  and  adequately  regulated,  lo,cal  policy 
obviously  called  for  widest  latitude.  \j 

Reformers  are  likely  to  count  it  a  grievance  that 
the  courts  do  not  trip  over  themselves  in  an  endea 
vor  to  keep  abreast  with  what  is  called  "progress." 
But  the  true  function  of  courts  is  not  to  reform,  but 
to  maintain  a  definite  status  quo.  The  Constitu 
tion  defined  a  status  quo  the  fundamental  prin 
ciples  of  which  Marshall  considered  sacred.  At  the 
same  time,  even  his  obstinate  loyalty  to  "the  in 
tentions  of  the  framers"  was  not  impervious  to 
facts  nor  unwilling  to  come  to  terms  with  them, 
and  a  growing  number  of  his  associates  were  ready 
to  go  considerably  farther. 

While  the  agitation  in  Congress  against  the  Court 
was  at  its  height,  Marshall  handed  down  his  deci 
sion  in  Gibbons  vs.  Ogden,  and  shortly  after,  that 
in  Osborn  vs.  United  States  Bank. '  In  the  latter 
case,  which  was  initiated  by  the  Bank,  the  plain 
tiff  in  error,  who  was  Treasurer  of  the  State  of 
Ohio,  brought  forward  Article  XI  of  the  Amend 
ments  to  the  Constitution  as  a  bar  to  the  action, 
but  Marshall  held  that  this  Amendment  did  not 
prevent  a  state  officer  from  being  sued  for  acts 

1  9  Wheaton,  738. 


190  MARSHALL  AND  THE  CONSTITUTION 

done  in  excess  of  his  rightful  powers.  He  also 
reiterated  and  amplified  the  principles  of  M'Cul- 
loch  vs.  Maryland.  Three  years  later  he  gave  his 
opinions  in  Brown  vs.  Maryland  and  Ogden  vs. 
Saunders. x  In  the  former  Marshall's  opinion  was 
dissented  from  by  a  single  associate,  but  in  the 
latter  the  Chief  Justice  found  himself  for  the  first 
and  only  time  in  his  entire  incumbency  in  the  role 
of  dissenter  in  a  constitutional  case.  The  decision 
of  the  majority,  speaking  through  Justice  Wash 
ington,  laid  down  the  principle  that  the  obligation 
of  a  private  executory  contract  cannot  be  said  to 
be  "impaired"  in  a  constitutional  sense  by  the 
adverse  effect  of  legislative  acts  antedating  the 
making  of  the  contract;  and  thus  the  dangerous 
ambiguity  of  Sturges  vs.  Crowinshield  was  finally 
resolved  in  favor  of  the  States. 

In  the  course  of  the  next  few  years  the  Court, 
speaking  usually  through  the  Chief  Justice,  de 
cided  several  cases  on  principles  favoring  local  in 
terest,  sometimes  indeed  curtailing  the  operation 
of  previously  established  principles.  For  exam 
ple,  the  Court  held  that,  in  the  absence  of  specific 
legislation  by  Congress  to  the  contrary,  a  State 
may  erect  a  dam  across  navigable  waters  of  the 

1 12  Wheaton,  213. 


THE  MENACE  OF  STATE  RIGHTS      191 

United  States  for  local  purposes1;  that  the  mere 
grant  of  a  charter  to  a  corporation  does  not  pre 
vent  the  State  from  taxing  such  corporation  on  its 
franchises,  notwithstanding  that  "the  power  to  tax 
involves  the  power  to  destroy"2;  that  the  Federal 
Courts  have  no  right  to  set  a  state  enactment  aside 
on  the  ground  that  it  had  divested  vested  rights, 
unless  it  had  done  so  through  impairing  the  obliga 
tion  of  contracts3;  that  the  first  eight  Amendments 
to  the  Constitution  do  not  limit  state  power,  but 
only  Federal  power4;  that  decisions  adverse  to  state 
laws  must  have  the  concurrence  of  a  majority  of 
the  Court. 5 

Despite  all  these  concessions  which  he  made  to 
the  rising  spirit  of  the  times,  Marshall  found  his 
last  years  to  be  among  the  most  trying  of  his  chief 
justiceship.  Jackson,  who  was  now  President,  felt 
himself  the  chosen  organ  of  "the  People's  will "  and 
was  not  disposed  to  regard  as  binding  anybody's 
interpretation  of  the  Constitution  except  his  own. 
The  West  and  Southwest,  the  pocket  boroughs  of 

1  Wilson  vs.  Blackbird  Creek  Marsh  Company  (1829),  2  Peters,  245. 
3  Providence  Bank  vs.  Billings  (1830),  4  Peters,  514. 

3  Satterlee  vs.  Matthewson  (1829),  2  Peters,  380;  and  Watson  vs. 
Mercer  (1834),  8  Peters,  110. 

4  Barren  vs.  Baltimore  (1833),  7  Peters,  243. 

s  See  in  this  connection  the  Chief  Justice's  remarks  in  Briscoe  vs. 
Bank  of  Kentucky,  8  Peters,  118. 


192  MARSHALL  AND  THE  CONSTITUTION 

the  new  Administration,  were  now  deep  in  land 
speculation  and  clamorous  for  financial  expedients 
which  the  Constitution  banned.  John  Taylor  of 
Caroline  had  just  finished  his  task  of  defining 
the  principles  of  constitutional  construction  which 
were  requisite  to  convert  the  Union  into  a  league 
of  States  and  had  laid  his  work  at  the  feet  of 
Calhoun.  Taylor  was  a  candid  man  and  frankly 
owned  the  historical  difficulties  in  the  way  of  carry 
ing  out  his  purpose;  but  Calhoun's  less  scrupulous 
dialectic  swept  aside  every  obstacle  that  stood  in 
the  way  of  attributing  to  the  States  the  completest 
sovereignty. 

In  Craig  vs.  Missouri  (1830)  *  the  Court  was  con 
fronted  with  a  case  in  which  a  State  had  sought  to 
evade  the  prohibition  of  the  Constitution  against 
the  emission  of  bills  of  credit  by  establishing  loan 
offices  with  authority  to  issue  loan  certificates  in 
tended  to  circulate  generally  in  dimensions  of  fifty 
cents  to  ten  dollars  and  to  be  receivable  for  taxes. 
A  plainer  violation  of  the  Constitution  would 
be  difficult  to  imagine.  Yet  Marshall's  decision 
setting  aside  the  act  was  followed  by  a  renewed 
effort  to  procure  the  repeal  of  Section  xxv  of 
the  Judiciary  Act.  The  discussion  of  the  proposal 

1  4  Peters,  410. 


THE  MENACE  OF  STATE  RIGHTS      193 

threw  into  interesting  contrast  two  points  of  view. 
The  opponents  of  this  section  insisted  upon  re 
garding  constitutional  cases  as  controversies  be 
tween  the  United  States  and  the  States  in  their 
corporate  capacities;  its  advocates,  on  the  other 
hand,  treated  the  section  as  an  indispensable  safe 
guard  of  private  rights.  In  the  end,  the  latter 
point  of  view  prevailed:  the  bill  to  repeal,  which 
had  come  up  in  the  House,  was  rejected  by  a  vote 
of  138  to  51,  and  of  the  latter  number  all  but  six 
came  from  Southern  States,  and  more  than  half 
of  them  from  natives  of  Virginia. 

Meantime  the  Supreme  Court  had  become  in 
volved  in  controversy  with  Georgia  on  account  of  a 
series  of  acts  which  that  State  had  passed  extend 
ing  its  jurisdiction  over  the  Cherokee  Indians  in 
violation  of  the  national  treaties,  with  this  tribe. 
In  Corn  Tassel's  case,  the  appellant  from  the  Geor 
gia  court  to  the  United  States  Supreme  Court  was 
hanged  in  defiance  of  a  writ  of  error  from  the 
Court.  In  Cherokee  Nation  vs.  Georgia,  the  Court 
itself  held  that  it  had  no  jurisdiction.  Finally,  in 
1832,  in  Worcester  vs.  Georgia, I  the  Court  was  con 
fronted  squarely  with  the  question  of  the  validity  of 
the  Georgia  acts.  The  State  put  in  no  appearance, 

1  6  Peters,  515. 

13 


194  MARSHALL  AND  THE  CONSTITUTION 

the  acts  were  pronounced  void,  and  the  decision 
went  unenforced.  When  Jackson  was  asked  what 
effort  the  Executive  Department  would  make  to 
back  up  the  Court's  mandate,  he  is  reported  to 
have  said:  "John  Maf^halLjia^jnade^his  decision; 
now  let  hi_m_ enforce  it." 

Marshall  began  to  see  the  Constitution  and  the 
Union  crumbling  before  him.  "I  yield  slowly  and 
reluctantly  to  the  conviction, "  he  wrote  Story,  late 
in  1832,  "that  our  Constitution  cannot  last.  .  .  . 
Our  opinions  [in  the  South]  are  incompatible  with 
a  united  government  even  among  ourselves.  The 
Union  has  been  prolonged  this  far  by  miracles." 
A  personal  consideration  sharpened  his  apprehen 
sion.  He  saw  old  age  at  hand  and  was  determined 
"not  to  hazard  the  disgrace  of  continuing  in  office 
a  mere  inefficient  pageant,"  but  at  the  same  time 
he  desired  some  guarantee  of  the  character  of  the 
person  who  was  to  succeed  him.  At  first  he  thought 
of  remaining  until  after  the  election  of  1832;  but 
Jackson's  reelection  made  him  relinquish  altogether 
the  idea  of  resignation. 

A  few  months  later,  in  consequence  of  the  Adminis 
tration's  vigorous  measures  against  nullification  in 
South  Carolina,  things  were  temporarily  wearing  a 
brighter  aspect.  Yet  that  the  fundamental  elements 


THE  MENACE  OF  STATE  RIGHTS      195 

of  the  situation  had  been  thereby  altered,  Mar 
shall  did  not  believe.  "To  men  who  think  as  you 
and  I  do,"  he  wrote  Story,  toward  the  end  of 
1834,  "the  present  is  gloomy  enough;  and  the  fu 
ture  presents  no  cheering  prospect.  In  the  South 
.  .  .  those  who  support  the  Executive  do  not  sup 
port  the  Government.  They  sustain  the  personal 
power  of  the  President,  but  labor  incessantly  to 
impair  the  legitimate  powers  of  the  Government. 
Those  who  oppose  the  rash  and  violent  measures 
of  the  Executive  .  .  .  are  generally  the  bitter  ene 
mies  of  Constitutional  Government.  Many  of 
them  are  the  avowed  advocates  of  a  league;  and 
those  who  do  not  go  the  whole  length,  go  a  great 
part  of  the  way.  What  can  we  hope  for  in  such 
circumstances?" 

Yet  there  was  one  respect  in  which  the  signifi 
cance  of  Marshall's  achievement  must  have  been 
as  clear  to  himself  as  it  was  to  his  contemporaries. 
He  had  failed  for  the  fome  beingjg ^  establisfr  ius 
definition  of  national  power,  it  is  true,  but  he  had 
made  the  Supreme  Court  one  of  the  great  politi 
cal  forces  of  the  country.  The  very  ferocity  with 
which  the  pretensions  of  the  Court  were  assailed 
in  certain  quarters  was  indirect  proof  of  its  power, 
but  there  was  also  direct  testimony  of  a  high  order. 


196  MARSHALL  AND  THE  CONSTITUTION 

In  1830  Alexis  de  Tocqueville,  the  French  states 
man,  visited  the  United  States  just  as  the  rough 
frontier  democracy  was  coming  into  its  own.  Only 
through  the  Supreme  Court,  in  his  opinion,  were 
the  forces  of  renewal  and  growth  thus  liberated  to 
be  kept  within  the  bounds  set  by  existing  institu 
tions.  "The  peace,  the  prosperity,  and  the  very 
existence  of  the  Union,"  he  wrote,  "are  vested  in 
the  hands  of  the  seven  Federal  judges.  Without 
them  the  Constitution  would  be  a  dead  letter :  the 
Executive  appeals  to  them  for  assistance  against 
the  encroachments  of  the  legislative  power;  the 
Legislature  demands  their  protection  against  the 
assaults  of  the  Executive;  they  defend  the  Union 
from  the  disobedience  of  the  States,  the  States  from 
the  exaggerated  claims  of  the  Union,  the  public 
interest  against  private  interests  and  the  conserv 
ative  spirit  of  stability  against  the  fickleness  of 
the  democracy. "  The  contrast  between  these  ob 
servations  and  the  disheartened  words  in  which  Jay 
declined  renomination  to  the  chief  justiceship  in 
1801  gives  perhaps  a  fair  measure  of  Marshall's 
accomplishment. 

Of  the  implications  of  the  accomplishment  of  the 
great  Chief  Justice  for  the  political  life  of  the  coun 
try,  let  De  Tocqueville  speak  again:  "Scarcely  any 


THE  MENACE  OF  STATE  RIGHTS      197 

political  question  arises  in  the  United  States  which 
is  not  resolved  sooner,  or  later,  into  a  judicial 
question.  Hence  all  parties  are  obliged  to  borrow 
in  their  daily  controversies  the  ideas,  and  even 
the  language  peculiar  to  judicial  proceedings.  .  .  . 
The  language  of  the  law  thus  becomes,  in  some 
measure,  a  vulgar  tongue;  the  spirit  of  law,  which 
is  produced  in  the  schools  and  courts  of  justice, 
gradually  penetrates  beyond  their  walls  into  the 
bosom  of  society,  where  it  descends  to  the  lowest 
classes,  so  that  at  last  the  whole  people  contract 
the  habits  and  the  tastes  of  the  judicial  magistrate." 
In  one  respect,  however,  De  Tocqueville  erred. 
American  "legalism, "  that  curious  infusion  of  poli 
tics  with  jurisprudence,  that  mutual  consultation 
of  public  opinion  and  established  principles,  which 
in  the  past  has  so  characterized  the  course  of  discus 
sion  and  legislation  in  America,  is  traceable  to  origins 
long  antedating  Marshall's  chief  justiceship.  On 
the  other  hand,  there  is  no  public  career  in  Amer 
ican  history  which  ever  built  so  largely  upon  this 
pervasive  trait  of  the  national  outlook  as  did  Mar 
shall's,  or  which  has  contributed  so  much  to  render 
it  effective  in  palpable  institutions. 


CHAPTER  VIII 

AMONG  FRIENDS  AND  NEIGHBORS 

IT  is  a  circumstance  of  no  little  importance  that 
the  founder  of  American  Constitutional  Law  was 
in  tastes  and  habit  of  life  a  simple  countryman. 
To  the  establishment  of  National  Supremacy  and 
the  Sanctity  of  Contracts  Marshall  brought  the 
support  not  only  of  his  office  and  his  command  of 
the  art  of  judicial  reasoning  but  also  the  whole- 
souled  democracy  and  unpretentiousness  of  the 
fields.  And  it  must  be  borne  in  mind  that  Mar 
shall  was  on  view  before  his  contemporaries  as  a 
private  citizen  rather  more  of  the  time,  perhaps, 
than  as  Chief  Justice.  His  official  career  was,  in 
truth,  a  somewhat  leisurely  one.  Until  1827  the 
term  at  Washington  rarely  lasted  over  six  weeks 
and  subsequently  not  over  ten  weeks.  In  the 
course  of  his  thirty-four  years  on  the  Bench,  the 
Court  handed  down  opinions  in  over  1100  cases, 
which  is  probably  about  four  times  the  number  of 

198 


AMONG  FRIENDS  AND  NEIGHBORS    199 

opinions  now  handed  down  at  a  single  term;  and  of 
this  number  Marshall  spoke  for  the  Court  in  about 
half  the  cases.  Toward  the  middle  of  March,  he 
left  Washington  for  Richmond,  and  on  the  22d  of 
May  opened  court  in  his  own  circuit.  Then,  three 
weeks  later,  if  the  docket  permitted,  he  went  on  to 
Raleigh  to  hold  court  there  for  a  few  days.  The 
summers  he  usually  spent  on  the  estate  which  he 
inherited  from  his  father  at  Fauquier,  or  else  he 
went  higher  up  into  the  mountains  to  escape  ma 
laria.  But  by  the  22d  of  November  at  the  latest  he 
was  back  once  more  in  Richmond  for  court,  and  at 
the  end  of  December  for  a  second  brief  term  he 
again  drove  to  Raleigh  in  his  high-wheeled  gig. 
With  his  return  to  Washington  early  in  February 
he  completed  the  round  of  his  judicial  year. 

The  entire  lack  of  pageantry  and  circumstance 
which  attended  these  journeyings  of  his  is  nowhere 
more  gaily  revealed  than  in  the  following  letter  to 
his  wife,  which  is  now  published  for  the  first  time 
through  the  kindness  of  Mr.  Beveridge : 

RAWLEIGH,  Jan.*  2d,   1803. 

MY  DEAREST  POLLY 

You  will  laugh  at  my  vexation  when  you  hear  the  vari 
ous  calamities  that  have  befallen  me.  In  the  first  place 
when  I  came  to  review  my  funds,  I  had  the  mortification 


200  MARSHALL  AND  THE  CONSTITUTION 

to  discover  that  I  had  lost  15  silver  dollars  out  of  my 
waist  coat  pocket.  They  had  worn  through  the  various 
mendings  the  pocket  had  sustained  and  sought  their 
liberty  in  the  sands  of  Carolina. 

I  determined  not  to  vex  myself  with  what  could  not 
be  remedied  &  ordered  Peter  to  take  out  my  cl  oaths 
that  I  might  dress  for  court  when  to  my  astonishment 
&  grief  after  fumbling  several  minutes  in  the  portman 
teau,  starting  [sic]  at  vacancy,  &  sweating  most  pro 
fusely  he  turned  to  me  with  the  doleful  tidings  that  I 
had  no  pair  of  breeches.  You  may  be  sure  this  piece  of 
intelligence  was  not  very  graciously  received;  however, 
after  a  little  scolding,  I  determined  to  make  the  best  of 
my  situation  &  immediately  set  out  to  get  a  pair  made. 

I  thought  I  should  be  a  sans-culotte  only  one  day  &  that 
for  the  residue  of  the  term  I  might  be  well  enough  dressed 
for  the  appearance  on  the  first  day  to  be  forgotten. 

But,  the  greatest  of  evils,  I  found,  was  followed  by 
still  greater.  Not  a  taylor  in  town  could  be  prevailed  on 
to  work  for  me.  They  were  all  so  busy  that  it  was  im 
possible  to  attend  to  my  wants  however  pressing  they 
might  be,  &  I  have  the  extreme  mortification  to  pass 
the  whole  time  without  that  important  article  of  dress  I 
have  mentioned.  I  have  no  alleviation  for  this  mis 
fortune  but  the  hope  that  I  shall  be  enabled  in  four  or 
five  days  to  commence  my  journey  homeward  &  that  I 
shall  have  the  pleasure  of  seeing  you  &  our  dear  children 
in  eight  or  nine  days  after  this  reaches  you. 

In  the  meantime,  I  flatter  myself  that  you  are  well 
and  happy. 

Adieu  my  dearest  Polly 

I  am  your  own  affectionate, 
J.  MARSHALL. 


AMONG  FRIENDS  AND  NEIGHBORS    201 

Marshall  erected  his  Richmond  home,  called 

.a  plot  of  ground  which 


he  had  purchased  four  years  earlier.  Here,  as  his 
eulogist  has  said,  was  "the  scene  of  his  real  tri 
umphs."  At  an  early  date  his  wife  became  a 
nervous  invalid,  and  his  devotion  to  her  brought 
Ont  all  the  finest  qualities  of  his  sound  and  tender 
nature.  "It  is,"  says  Mr.  Beveridge,  "the  most 
marked  characteristic  of  his  entire  private  life  and 
is  the  one  thing  which  differentiates  him  sharply 
from  the  most  eminent  men  of  that  heroic  but 
socially  free-and-easy  period."  From  his  associa 
tion  with  his  wife  Marshall  derived,  moreover,  an 
opinion  of  the  sex  "as  the  friends,  the  companions, 
and  the  equals  of  man"  which  may  be  said  to  have 
furnished  one  of  his  few  points  of  sympathetic  con 
tact  with  American  political  radicalism  in  his  later 
years.  The  satirist  of  woman,  says  Story,  "found 
no  sympathy  in  his  bosom,"  and  "he  was  still 
farther  above  the  commonplace  flatteries  by  which 
frivolity  seeks  to  administer  aliment  to  personal 
vanity,  or  vice  to  make  its  approaches  for  baser 
purposes.  He  spoke  to  the  sex  when  present,  as  he 
spoke  of  them  when  absent,  in  language  of  just 
appeal  to  their  understandings,  their  tastes,  and 
their  duties." 


202  MARSHALL  AND  THE  CONSTITUTION 

Marshall's  relations  with  his  neighbors  were  the 
happiest  possible.  Every  week,  when  his  judicial 
duties  permitted  or  the  more  "laborious  relaxa 
tion"  of  directing  his  farm  did  not  call  him  away, 
he  attended  the  meetings  of  the  Barbecue  Club  in  a 
fine  grove  just  outside  the  city,  to  indulge  in  his 
favorite  diversion  of  quoits.  The  Club  consisted  of 
thirty  of  the  most  prominent  men  of  Richmond, 
judges,  lawyers,  doctors,  clergymen,  and  merchants. 
To  quoits  was  added  the  inducement  of  an  excellent 
repast  of  which  roast  pig  was  the  pidce  de  resistance. 
Then  followed  a  dessert  of  fruit  and  melons,  while 
throughout  a  generous  stock  of  porter,  toddy,  and  of 
punch  "from  which  water  was  carefully  excluded," 
was  always  available  to  r elie ve-thirs t .  An  entertain 
ing  account  of  a  meeting  of  the  Club  at  which  Mar 
shall  and  his  friend  Wickham  were  the  caterers  has 
been  thus  preserved  for  us : 

At  the  table  Marshall  announced  that  at  the  last  meet 
ing  two  members  had  introduced  politics,  a  forbidden 
subject,  and  had  been  fined  a  basket  of  champagne,  and 
that  this  was  now  produced,  as  a  warning  to  evil-doers; 
as  the  club  seldom  drank  this  article,  they  had  no  cham 
pagne  glasses,  and  must  drink  it  in  tumblers.  Those 
who  played  quoits  retired  after  a  while  for  a  game. 
Most  of  the  members  had  smooth,  highly  polished  brass 
quoits.  But  Marshall's  were  lasge,  rough,  heavy,  and 


AMONG  FRIENDS  AND  NEIGHBORS   203 

of  iron,  such  as  few  of  the  members  could  throw  well 
from  hub  to  hub.  Marshall  himself  threw  them  with 
great  success  and^ accuracy,  and  often  "rang  the  meg." 
On  this  occasion  Marshall  and  the  Rev.  Mr.  Blair  led 
the  two  parties  of  players.  Marshall  played  first,  and 
rang  the  meg.  Parson  Blair  did  the  same,  and  his 
quoit  came  down  plumply  on  top  of  Marshall's.  There 
was  uproarious  applause,  which  drew  out  all  the  others 
from  the  dinner;  and  then  came  an  animated  contro 
versy  as  to  what  should  be  the  effect  of  this  exploit. 
They  all  returned  to  the  table,  had  another  bottle  of 
champagne,  and  listened  to  arguments,  one  from  Mar 
shall,  pro  se,  and  one  from  Wickham  for  Parson  Blair. 
[Marshall's]  argument  is  a  humorous  companion  piece 
to  any  one  of  his  elaborate  judicial  opinions.  He  began 
by  formulating  the  question,  "Who  is  winner  when  the 
adversary  quoits  are  on  the  meg  at  the  same  time?  "  He 
then  stated  the  facts,  and  remarked  that  the  question 
was  one  of  the  true  construction  and  applications  of  the 
rules  of  the  game.  The  first  one  ringing  the  meg  has 
the  advantage.  No  other  can  succeed  who  does  not 
begin  by  displacing  this  first  one.  The  parson,  he  will 
ingly  allowed,  deserves  to  rise  higher  and  higher  in 
everybody's  esteem;  but  then  he  mustn't  do  it  by  get 
ting  on  another's  back  in  this  fashion.  That  is  more 
like  leapfrog  than  quoits.  Then,  again,  the  legal  maxim, 
Cujus  est  solum,  ejus  est  usque  ad  ccelum  —  his  own  right 
as  first  occupant  extends  to  the  vault  of  heaven;  no 
opponent  can  gain  any  advantage  by  squatting  on  his 
back.  He  must  either  bring  a  writ  of  ejectment,  or 
drive  him  out  vi  et  armis.  And  then,  after  further  argu 
ment  of  the  same  sort,  he  asked  judgment,  and  sat  down 
amidst  great  applause. 


204  MARSHALL  AND  THE  CONSTITUTION 

Mr.  Wickham  then  rose,  and  made  an  argument  of 
a  similar  pattern.  No  rule,  he  said,  requires  an  im 
possibility.  Mr.  Marshall's  quoit  is  twice  as  large 
as  any  other;  and  yet  it  flies  from  his  armjike  the 
iron  ball  at  the  Grecian  games  from  the  arm  of  Ajax. 
It  is  impossible  for  an  ordinary  quoit  to  move  it. 
With  much  more  of  the  same  sort,  he  contended  that 
it  was  a  drawn  game.  After  very  animated  voting, 
designed  to  keep  up  the  uncertainty  as  long  as  pos 
sible,  it  was  so  decided.  Another  trial  was  had,  and 
Marshall  clearly  won. * 

Years  later  Chester  Harding,  who  once  painted 
Marshall,  visited  the  Club.  "I  watched,"  says 
he,  "for  the  coming  of  the  old  chief.  He  soon  ap 
proached,  with  his  coat  on  his  arm  and  his  hat  in 
his  hand,  which  he  was  using  as  a  fan.  He  walked 
directly  up  to  a  large  bowl  of  mint  julep  which  had 
been  prepared,  and  drank  off  a  tumblerful,  smack 
ing  his  lips,  and  then  turned  to  the  company  with 
a  cheerful  'How  are  you,  gentlemen?'  He  was 
looked  upon  as  the  best  pitcher  of  the  party  and 
could  throw  heavier  quoits  than  any  other  member 
of  the  club.  The  game  began  with  great  anima 
tion.  There  were  several  ties;  and  before  long  I 
saw  the  great  Chief  Justice  of  the  United  States 

1  J.  B.  Thayer,  John  Marshall  (Riverside  Biographical  Series,  1904), 
pp.  134-36,  paraphrasing  G.  W.  Munford,  The  Two  Parsons  (Rich 
mond,  1884),  pp.  32C-38. 


AMONG  FRIENDS  AND  NEIGHBORS    205 

down  on  his  knees  measuring  the  contested  dis 
tance  with  a  straw,  with  as  much  earnestness  as  if 
it  had  been  a  point  of  law;  and  if  he  proved  to  be 
in  the  right,  the  woods  would  ring  with  his  trium 
phant  shout."1  What  Wellesley  remarked  of  the 
younger  Pitt  may  be  repeated  of  Marshall,  that 
"unconscious  of  his  superiority,"  he  "plunged 
heedlessly  into  the  mirth  of  the  hour  "  and  was  en 
dowed  with  "a  gay  heart  and  social  spirit  beyond 
any  man  of  his  time.** 

~As  a  hero  of  anecdotes  Marshall  almost  rivals 
Lincoln.  Many  of  the  tales  preserved  are  doubt 
less  apocryphal,  but  this  qualification  hardly  less 
ens  their  value  as  contemporary  impressions  of 
his  character  and  habits.  They  show  for  what  sort 
of  anecdotes  his  familiarly  known  personality  had 
an  affinity. 

The  Chief  Justice's  entire  freedom  from  osten 
tation  and  the  gentleness  with  which  he  could  re 
buke  it  in  others  is  illustrated  in  a  story  often  told. 
Going  early  to  the  market  one  morning  he  came 
upon  a  youth  who  was  fuming  and  swearing  be 
cause  he  could  get  no  one  to  carry  his  turkey  home 
for  him.  Marshall  proffered  his  services.  Arriving 
at  the  house  the  young  man  asked,  "What  shall  I 

1  Thayer,  op.  cit.,  pp.  132-33. 


206  MARSHALL  AND  THE  CONSTITUTION 

pay  you?"  "Oh,  nothing, "  was  the  reply;  "it  was 
on  my  way,  and  no  trouble."  As  Marshall  walked 
away,  the  young  man  inquired  of  a  bystander,  "Who 
is  that  polite  old  man  that  brought  home  my  tur 
key  for  me?  "  "  That, "  was  the  answer,  "  is  Judge 
Marshall,  Chief  Justice  of  the  United  States." 

Of  the  same  general  character  is  an  anecdote 
which  has  to  do  with  a  much  earlier  period  when 
Marshall  was  still  a  practicing  attorney.  An  old 
farmer  who  was  involved  in  a  lawsuit  came  to 
Richmond  to  attend  its  trial.  "  Who  is  the  best 
lawyer  in  Richmond?"  he  asked  of  his  host,  the 
innkeeper  of  the  Eagle  tavern.  The  latter  pointed 
to  a  tall,  ungainly,  bareheaded  man  who  had  just 
passed,  eating  cherries  from  his  hat  and  exchang 
ing  jests  with  other  loiterers  like  himself.  u  That 
is  he,"  said  the  innkeeper;  "John  Marshall  is  his 
name."  But  the  old  countryman,  who  had  a  hun 
dred  dollars  in  his  pocket,  proposed  to  spend  it  on 
something  more  showy  and  employed  a  solemn, 
black-coated,  and  much  powdered  bigwig.  The 
latter  turned  out  in  due  course  to  be  a  splendid  il 
lustration  of  the  proverb  that  "fine  feathers  do  not 
make  fine  birds."  This  the  crestfallen  rustic  soon 
discovered.  Meantime  he  had  listened  with  amaze 
ment  and  growing  admiration  to  an  argument  by 


AMONG  FRIENDS  AND  NEIGHBORS    207 

Marshall  in  a  cause  which  came  on  before  his  own. 
He  now  went  up  to  Marshall  and,  explaining  his 
difficulty,  offered  him  the  five  dollars  which  the  ex 
actions  of  the  first  attorney  still  left  him,  and  be 
sought  his  aid.  With  a  humorous  remark  about 
the  power  of  a  black  coat  and  powdered  wig 
Marshall  good-naturedly  accepted  the  retainer. 

The  religious  bent  of  the  Chief  Justice's  mind  is 
illustrated  in  another  story,  which  tells  of  his  arriv 
ing  toward  the  close  of  day  at  an  inn  in  one  of  the 
counties  of  Virginia,  and  falling  in  with  some  young 
men  who  presently  began  ardently  to  debate  the 
question  of  the  truth  or  falsity  of  the  Christian 
religion.  From  six  until  eleven  o'clock  the  young 
theologians  argued  keenly  and  ably  on  both  sides 
of  the  question.  Finally  one  of  the  bolder  spirits 
exclaimed  that  it  was  impossible  to  overcome  preju 
dices  of  long  standing  and,  turning  to  the  silent 
visitor,  asked:  "Well,  my  old  gentleman,  what  do 
you  think  of  these  things?"  To  their  amazement 
the  "old  gentleman"  replied  for  an  hour  in  an 
eloquent  and  convincing  defense  of  the  Christian 
religion,  in  which  he  answered  in  order  every  objec 
tion  the  young  men  had  uttered.  So  impressive 
was  the  simplicity  and  loftiness  of  his  discourse 
that  the  erstwhile  critics  were  completely  silenced. 


208  MARSHALL  AND  THE  CONSTITUTION 

In  truth,  Marshall's  was  a  reverent  mind,  and  it 
sprang  instinctively  to  the  defense  of  ideas  and 
institutions  whose  value  had  been  tested.  Unfor 
tunately,  in  his^Life  of  Washington  Marshall  seems 
to  have  given  this  propensity  a  somewhat  undue 
scope.  There  were  external  difficulties  in  dealing 
with  such  a  subject  apart  from  those  inherent  in  a 
great  biography,  and  Marshall's  volumes  proved 
to  be  a  general  disappointment.  Still  hard  pressed 
for 'funds  wherewith  to  meet  his  Fairfax  invest 
ment,  he  undertook  this  work  shortly  after  he 
became  Chief  Justice,  at  the  urgent  solicitation  of 
Judge  Bushrod  Washington,  the  literary  executor 
of  his  famous  uncle  Marshall  had  hoped  to  make 
this  incursion  into  the  field  of  letters  a  very  remu 
nerative  one,  for  he  and  Washington  had  counted 
on  some  thirty  thousand  subscribers  for  the  work. 
The  publishers  however,  succeeded  in  obtaining 
only  about  a  quarter  of  that  number,  owing  part 
ly  at  least  to  the  fact  that  Jefferson  had  no  sooner 
learned  of  the  enterprise  than  his  jealous  mind  con 
ceived  the  idea  that  the  biography  must  be  intend 
ed  for  partisan  purposes.  He  accordingly  gave  the 
alarm  to  the  Republican  press  and  forbade  the  Fed 
eral  postmasters  to  take  orders  for  the  book.  At 
the  same  time  he  asked  his  friend  Joel  Barlow,  then 


AMONG  FRIENDS  AND  NEIGHBORS    209 

residing  in  Paris,  to  prepare  a  counterblast,  for 
which  he  declared  himself  to  be  "rich  in  materials. " 
The  author  of  the  Columbiad,  however,  declined  this 
hazardous  commission,  possibly  because  he  was  un 
willing  to  stand  sponsor  for  the  malicious  recitals 
that  afterwards  saw  light  in  the  pages  of  the  Anas. 
But  apart  from  this  external  opposition  to  the 
biography,  Marshall  found  a  source  of  even  keener 
disappointment  in  the  literary  defects  due  to  the 
haste  with  which  he  had  done  his  work.  The  first 
tHFee  volumes  had  appeared  in  1804,  the  fourth  in 
1805,  and  the  fifth,  which  is  much  the  best,  in  1807. 
Republican  critics  dwelt  with  no  light  hand  upon 
the  deficiencies  of  these  volumes,  and  Marshall  him 
self  sadly  owned  that  the  "inelegancies"  in  the 
first  were  astonishingly  numerous.  But  the  short 
comings  of  the  work  as  a  satisfactory  biography 
are  more  notable  than  its  lapses  in  diction.  By  a 
design  apparently  meant  to  rival  the  improvisa 
tions  of  Tristram  Shandy,  the  birth  of  the  hero  is 
postponed  for  an  entire  volume,  in  which  the  author 
'traces  the  settlement  of  the  country.  At  the  open 
ing  of  the  second  volume  "the  birth  of  young  Mr. 
Washington"  is  gravely  announced,  to  be  followed 
by  an  account  of  the  Father  of  his  Country  so  de 
void  of  intimate  touches  that  it  might  easily  have 


210  MARSHALL  AND  THE  CONSTITUTION 

been  written  by  one  who  had  never  seen  George 
Washington. 

Nevertheless,  these  pages  of  Marshall  ji  do  not 
lack  acute  historical  judgments.  He  points  out,  for 
instance,  that,  if  the  Revolution  had  ended  before 
the  Articles  of  Confederation  were  adopted,  perma 
nent  disunion  might  have  ensued  and  that,  faulty 
as  it  was,  the  Confederation  "preserved  the  idea  of 
Union  until  the  good  sense  of  the  Nation  adopted 
a  more  efficient  system."  Again,  in  his  account 
of  the  events  leading  up  to  the  Convention  of 
1787,  Marshall  rightly  emphasizes  facts  which  sub 
sequent  writers  have  generally  passed  by  with 
hardly  any  mention,  so  that  students  may  read 
this  work  with  profit  even  today.  But  the  chief 
importance  of  these  volumes  lay,  after  all,  in  the 
additional  power  which  the  author  himself  derived 
from  the  labor  of  their  preparation.  In  so  exten 
sive  an  undertaking  Marshall  received  valuable 
training  for  his  later  task  of  laying  the  foundations 
of  Constitutional  Law  in  America.  One  of  his  chief 
assets  on  the  bench,  as  we  have  already  seen,  was 
his  complete  confidence  in  his  own  knowledge  of  the 
intentions  of  the  Constitution  —  a  confidence  which 
was  grounded  in  the  consciousness  that  he  had 
written  the  history  of  the  Constitution's  framing. 


AMONG  FRIENDS  AND  NEIGHBORS    211 

Most  of  Marshall's  correspondence,  which  is  not 
voluminous,  deals  with  politics  or  legal  matters. 
But  there  are  letters  in  which  the  personal  side  of  the 
Chief  Justice  is  revealed.  He  gives  his  friend  Story 
a  touching  account  of  the  loss  of  two  of  his  children. 
He  praises  old  friends  and  laments  his  inability 
to  make  new  ones.  He  commends  Jane  Austen, 
whose  novels  he  has  just  finished  reading.  "Her 
flights,"  he  remarks,  "are  not  lofty,  she  does  not 
soar  on  eagle's  wings,  but  she  is  pleasing,  interest 
ing,  equable,  and  yet  amusing."  He  laments  that 
he  "can  no  longer  debate  and  yet  cannot  apply 
his  mind  to  anything  else."  One  recalls  Darwin's 
similar  lament  that  his  scientific  work  had  de 
prived  him  of  all  liking  for  poetry. 

The  following  letter,  which  Marshall  wrote  the 
year  before  his  death  to  his  grandson,  a  lad  of  four 
teen  or  fifteen,  is  interesting  for  its  views  on  a  vari 
ety  of  subjects  and  is  especially  pleasing  for  its 
characteristic  freedom  from  condescension: 

I  had  yesterday  the  pleasure  of  receiving  your  letter  of 
the  29th  of  November,  and  am  quite  pleased  with  the 
course  of  study  you  are  pursuing.  Proficiency  in  Greek 
and  Latin  is  indispensable  to  an  accomplished  scholar, 
and  may  be  of  great  real  advantage  in  our  progress 
through  human  life.  Cicero  deserves  to  be  studied  still 
more  for  his  talents  than  for  the  improvement  in  language 


MARSHALL  AND  THE  CONSTITUTION 

to  be  derived  from  reading  him.  He  was  unquestion 
ably,  with  the  single  exception  of  Demosthenes,  the 
greatest  orator  among  the  ancients.  He  was  too  a 
profound  Philosopher.  His  "de  officiis"  is  among 
the  most  valuable  treatises  I  have  ever  seen  in  the 
Latin  language. 

History  is  among  the  most  essential  departments  of 
knowledge;  and,  to  an  American,  the  histories  of  Eng 
land  and  of  the  United  States  are  most  instructive. 
Every  man  ought  to  be  intimately  acquainted  with  the 
history  of  his  own  country.  Those  of  England  and  of 
the  United  States  are  so  closely  connected  that  the 
former  seems  to  be  introductory  to  the  latter.  They 
form  one  whole.  Hume,  as  far  as  he  goes,  to  the  revolu 
tion  of  1688,  is  generally  thought  the  best  Historian  of 
England.  Others  have  continued  his  narrative  to  a  late 
period,  and  it  will  be  necessary  to  read  them  also. 

There  is  no  exercise  of  the  mind  from  which  more 
valuable  improvement  is  to  be  drawn  than  from  com 
position.  In  every  situation  of  life  the  result  of  early 
practice  will  be  valuable.  Both  in  speaking  and  writing, 
the  early  habit  of  arranging  our  thoughts  with  regu 
larity,  so  as  to  point  them  to  the  object  to  be  proved, 
will  be  of  great  advantage.  In  both,  clearness  and 
precision  are  most  essential  qualities.  The  man  who 
by  seeking  embellishment  hazards  confusion,  is  greatly 
mistaken  in  what  constitutes  good  writing.  The  mean- 
Ing  ought  never  to  be  mistaken.  Indeed  the  readers 
should  never  be  obliged  to  search  for  it.  The  writer 
should  always  express  himself  so  clearly  as  to  make  it 
impossible  to  misunderstand  him.  He  should  be  com 
prehended  without  an  effort. 

The  first  step  towards  writing  and  speaking  clearly  is 


AMONG  FRIENDS  AND  NEIGHBORS    213 

to  think  clearly.  Let  the  subject  be  perfectly  under 
stood,  and  a  man  will  soon  find  words  to  convey  his 
meaning  to  others.  Blair,  whose  lectures  are  greatly  and 
justly  admired,  advises  a  practice  well  worthy  of  being 
observed.  It  is  to  take  a  page  of  some  approved  writer 
and  read  it  over  repeatedly  until  the  matter,  not  the 
words,  be  fully  impressed  on  the  mind.  Then  write,  in 
your  own  language,  the  same  matter.  A  comparison  of 
the  one  with  the  other  will  enable  you  to  remark  and 
correct  your  own  defects.  This  course  may  be  pursued 
after  having  made  some  progress  in  composition.  In 
the  commencement,  the  student  ought  carefully  to  repe- 
ruse  what  he  has  written,  correct,  in  the  first  instance, 
every  error  of  orthography  and  grammar.  A  mistake 
in  either  is  unpardonable.  Afterwards  revise  and  im 
prove  the  language. 

I  am  pleased  with  both  your  pieces  of  composition. 
The  subjects  are  well  chosen  and  of  the  deepest  interest. 
Happiness  is  pursued  by  all,  though  too  many  mistake 
the  road  by  which  the  greatest  good  is  to  be  success 
fully  followed.  Its  abode  is  not  always  in  the  palace  or 
the  cottage.  Its  residence  is  the  human  heart,  and  its 
inseparable  companion  is  a  quiet  conscience.  Of  this, 
Religion  is  the  surest  and  safest  foundation.  The  in 
dividual  who  turns  his  thoughts  frequently  to  an  om 
nipotent  omniscient  and  all  perfect  being,  who  feels  his 
dependence  on,  and  his  infinite  obligations  to  that  be 
ing  will  avoid  that  course  of  life  which  must  harrow  up 
the  conscience. 


Marshall  was  usually  most  scrupulous  to  steer 
clear  of  partisan  politics  both  in  his  letters  and  in 


214  MARSHALL  AND  THE  CONSTITUTION 

his  conversation,  so  that  on  one  occasion  he  was 
much  aroused  by  a  newspaper  article  which  had 
represented  him  "as  using  language  which  could 
be  uttered  only  by  an  angry  party  man."  But 
on  political  issues  of  a  broader  nature  he  expressed 
himself  freely  in  the  strict  privacy  of  correspond 
ence  at  least,  and  sometimes  identified  himself  with 
public  movements,  especially  in  his  home  State. 
For  instance,  he  favored  the  gradual  abolition  of 
slavery  by  private  emancipation  rather  than  by  gov 
ernmental  action.  In  1823  he  became  first  presi 
dent  of  the  Richmond  branch  of  the  Colonization 
Society ;  five  years  later  he  presided  over  a  conven 
tion  to  promote  internal  improvements  in  Virginia; 
and  in  1829  he  took  a  prominent  part  in  the  delib 
erations  of  the  State  Constitutional  Convention. 

In  the  broader  matters  of  national  concern  his 
political  creed  was  in  thorough  agreement  with 
his  constitutional  doctrine.  Nullification  he  de 
nounced  as  "wicked  folly,"  and  he  warmly  ap 
plauded  Jackson's  proclamation  of  warning  to 
South  Carolina.  But  Marshall  regarded  with  dis 
may  Jackson's  aggrandizement  of  the  executive 
branch,  and  the  one  adverse  criticism  he  has  left 
of  the  Constitution  is  of  the  method  provided  for 
the  election  of  the  President.  In  this  connection 


AMONG  FRIENDS  AND  NEIGHBORS  215 
he  wrote  in  1830:  "My  own  private  mind  has  been 
slowly  and  reluctantly  advancing  to  the  belief  that 
the  present  mode  of  choosing  the  Chief  Magistrate 
threatens  the  most  serious  danger  to  the  public 
happiness.  The  passions  of  men  are  influenced  to 
so  fearful  an  extent,  large  masses  are  so  embittered 
against  each  other,  that  I  dread  the  consequences. 
.  .  .  Age  is,  perhaps,  unreasonably  timid.  Cer 
tain  it  is  that  I  now  dread  consequences  that  I 
once  thought  imaginary.  I  feel  disposed  to  take 
refuge  under  some  less  turbulent  and  less  danger 
ous  mode  of  choosing  the  Chief  Magistrate."  Then 
follows  the  suggestion  that  the  people  of  the  United 
States  elect  a  body  of  persons  equal  in  number  to 
one-third  of  the  Senate  and  that  the  President  be 
chosen  from  among  this  body  by  lot.  Marshall's 
suggestion  seems  absurd  enough  today,  but  it 
should  be  remembered  that  his  fears  of  national  dis 
order  as  a  result  of  strong  party  feeling  at  the  time 
of  presidential  elections  were  thoroughly  realized  in 
1860  when  Lincoln's  election  led  to  secession  and 
civil  war,  and  that  sixteen  years  later,  in  the  Hayes- 
Tilden  contest,  a  second  dangerous  crisis  was 
narrowly  averted. 

_In_the  campaign  of  1832  Marshall  espoused  pri 
vately  the  cause  of  Clay  and  the  United  States 


216  MARSHALL  AND  THE  CONSTITUTION 

Bank,  and  could  not  see  why  Virginia  should  not 
be  of  the  same  opinion.  Writing  to  Story  in  the 
midst  of  the  campaign  he  said:  "We  are  up  to  the 
chin  in  politics.  Virginia  was  always  insane  enough 
to  be  opposed  to  the  Bank  of  the  United  States, 
and  therefore  hurrahs  for  the  veto.  But  we  are  a 
little  doubtful  how  it  may  work  in  Pennsylvania. 
It  is  not  difficult  to  account  for  the  part  New  York 
may  take.  She  has  sagacity  enough  to  see  her 
interests  in  putting  down  the  present  Bank.  Her 
mercantile  position  gives  her  a  control,  a  com 
manding  control,  over  the  currency  and  the  ex 
changes  of  the  country,  if  there  be  no  Bank  of  the 
United  States.  Going  for  herself  she  may  approve 
this  policy;  but  Virginia  ought  not  to  drudge  for 
her."  To  the  end  of  his  days  Marshall  seems  to 
have  refused  to  recognize  that  the  South  had  a 
» sectional  interest  to  protect,  or  at  least  that  Vir 
ginia's  interests  were  sectional;  her  attachment  to 
State  Rights  he  assigned  to  the  baneful  influence 
of  JefFersonianism. 

The  year  1831  dealt  Marshall  two  severe  blows. 
In  that  year  his  robust  constitution  manifested  the 
first  signs  of  impairment,  and  he  was  forced  to  un 
dergo  an  operation  for  stone.  In  the  days  before 
anaesthetics,  such  an  operation,  especially  in  the 


AMONG  FRIENDS  AND  NEIGHBORS    217 

case  of  a  person  of  his  advanced  years,  was  at 
tended  with  great  peril.  He  faced  the  ordeal  with 
the  utmost  composure.  His  physician  tells  of  vis 
iting  Marshall  the  morning  he  was  to  submit  to  the 
knife  and  of  finding  him  at  breakfast: 

He  received  me  with  a  pleasant  smile  .  .  .  and  said, 
"Well,  Doctor,  you  find  me  taking  breakfast,  and  I 
assure  you  I  have  had  a  good  one.  I  thought  it  very 
probable  that  this  might  be  my  last  chance,  and  there 
fore  I  was  determined  to  enjoy  it  and  eat  heartily."  .  .. 
He  said  that  he  had  not  the  slightest  desire  to  live, 
laboring  under  the  sufferings  to  which  he  was  subjected, 
and  that  he  was  perfectly  ready  to  take  all  the  chances 
of  an  operation,  and  he  knew  there  were  many  against 
him.  .  .  .  After  he  had  finished  his  breakfast,  I  ad 
ministered  him  some  medicine;  he  then  inquired  at 
what  hour  the  operation  would  be  performed.  I  men 
tioned  the  hour  of  eleven.  He  said  "Very  well;  do  you 
wish  me  for  any  other  purpose,  or  may  I  lie  down  and 
go  to  sleep?  "  I  was  a  good  deal  surprised  at  this  ques 
tion,  but  told  him  that  if  he  could  sleep  it  would  be  very 
desirable.  He  immediately  placed  himself  upon  the  bed 
and  fell  into  a  profound  sleep,  and  continued  so  until  I 
was  obliged  to  rouse  him  in  order  to  undergo  the  opera 
tion.  He  exhibited  the  same  fortitude,  scarcely  uttering 
a  murmur  throughout  the  whole  procedure  which,  from 
the  nature  of  his  complaint,  was  necessarily  tedious. 

The  death  of  his  wife  on   Christmas  Day  of 
the  same  year  was  a  heavy  blow.    Despite  her 


218  MARSHALL  AND  THE  CONSTITUTION 

invalidism,  she  was  a  woman  of  much  force  of  char 
acter  and  many  graces  of  mind,  to  which  Marshall 
rendered  touching  tribute  in  a  quaint  eulogy  com 
posed  for  one  of  his  sons  on  the  first  anniversary  of 
her  death: 

Her  judgment  was  so  sound  and  so  safe  that  I  have 
often  relied  upon  it  in  situations  of  some  perplexity.  .  .  . 
Though  serious  as  well  as  gentle  in  her  deportment,  she 
possessed  a  good  deal  of  chaste,  delicate,  and  playful 
wit,  and  if  she  permitted  herself  to  indulge  this  talent, 
told  her  little  story  with  grace,  and  could  mimic  very 
successfully  the  peculiarities  of  the  person  who  was  its 
subject.  She  had  a  fine  taste  for  belle-lettre  reading. 
.  .  .  This  quality,  by  improving  her  talents  for  con 
versation,  contributed  not  inconsiderably  to  make  her 
a  most  desirable  and  agreeable  companion.  It  beguiled 
many  of  those  winter  evenings  during  which  her  pro 
tracted  ill  health  and  her  feeble  nervous  system  confined 
us  entirely  to  each  other.  I  shall  never  cease  to  look 
back  on  them  with  deep  interest  and  regret.  .  .  .  She 
felt  deeply  the  distress  of  others,  and  indulged  the  feel 
ing  liberally  on  objects  she  believed  to  be  meritorious. 
.  .  .  She  was  a  firm  believer  in  the  faith  inculcated  by 
the  Church  in  which  she  was  bred,  but  her  soft  and 
gentle  temper  was  incapable  of  adopting  the  gloomy  and 
austere  dogmas  which  some  of  its  professors  have  sought 
to  engraft  on  it. 

Marshall  believed  women  were  the  intellectual 
equals  of  men,  because  he  was  convinced  that  they 


AMONG  FRIENDS  AND  NEIGHBORS    219 

possessed  in  a  high  degree  "those  qualities  which 
make  up  the  sum  of  human  happiness  and  trans 
form  the  domestic  fireside  into  an  elysium,"  and 
not  because  he  thought  they  could  compete  on  even 
terms  in  the  usual  activities  of  men. 

Despite  these  "  bufferings  of  fate, "  the  Chief  Jus 
tice  was  back  in  Washington  in  attendance  upon 
Court  in  February,  1832,  and  daily  walked  several 
miles  to  and  from  the  Capitol.  In  the  following 
January  his  health  appeared  to  be  completely  re 
stored.  "He  seemed,"  says  Story,  with  whom  he 
messed,  along  with  Justices  Thompson  and  Duval, 
"to  revive,  and  enjoy  anew  his  green  old  age." 
This  year  Marshall  had  the  gratification  of  receiv 
ing  the  tribute  of  Story's  magnificent  dedication 
of  his  Commentaries  to  him.  With  characteristic 
modesty,  the  aged  Chief  Justice  expressed  the  fear 
that  his  admirer  had  "consulted  a  partial  friend 
ship  farther  than  your  deliberate  judgment  will  ap 
prove."  He  was  especially  interested  in  the  copy 
intended  for  the  schools,  but  he  felt  that  "south 
of  the  Potomac,  where  it  is  most  wanted  it  will 
be  least  used,"  for,  he  continued,  "it  is  a  Mo 
hammedan  rule  never  to  dispute  with  the  igno 
rant,  and  we  of  the  true  faith  in  the  South  adjure 
the  contamination  of  infidel  political  works.  It 


220  MARSHALL  AND  THE  CONSTITUTION 

would  give  our  orthodox  nullifyer  a  fever  to  read 
the  heresies  of  your  Commentaries.  A  whole  school 
might  be  infected  by  the  atmosphere  of  a  single 
copy  should  it  be  placed  on  one  of  the  shelves 
of  a  bookcase." 

Marshall  sat  on  the  Bench  for  the  last  time  in 
the  January  term  of  1835.  Miss  Harriet  Marti- 
neau,  who  was  in  Washington  during  that  winter, 
has  left  a  striking  picture  of  the  Chief  Justice  as 
he  appeared  in  these  last  days.  "How  delighted, " 
she  writes,  "we  were  to  see  Judge  Story  bring  in 
the  tall,  majestic,  bright-eyed  old  man,  —  old  by 
chronology,  by  the  lines  on  his  composed  face,  and 
by  his  services  to  the  republic;  but  so  dignified, 
so  fresh,  so  present  to  the  time,  that  no  compas 
sionate  consideration  for  age  dared  mix  with  the 
contemplation  of  him." 

Marshall  was,  however,  a  very  sick  man,  suf 
fering  constant  pain  from  a  badly  diseased  liver. 
The  ailment  was  greatly  aggravated,  moreover,  by 
"  severe  contusions  "  which  he  received  while  return 
ing  in  the  stage  from  Washington  to  Richmond. 
In  June  he  went  a  second  time  to  Philadelphia  for 
medical  assistance,  but  his  case  was  soon  seen  to  be 
hopeless  He  awaited  death  with  his  usual  seren 
ity,  and  two  days  before  it  came  he  composed  the 


AMONG  FRIENDS  AND  NEIGHBORS    221 
modest  epitaph  which  appeared  upon  his  tomb: 

JOHN  MARSHALL,  SON  OF  THOMAS  AND  MARY  MAR 
SHALL,  WAS  BORN  ON  THE  24TH  OF  SEPTEMBER, 
1755,  INTERMARRIED  WITH  MARY  WILLIS  AMBLER 
THE  3D  OF  JANUARY,  1783,  DEPARTED  THIS  LIFE 

THE  —  DAY  OF  — ,18  —  .  He  died  the  evening  of 
July  6,  1835,  surrounded  by  three  of  his  sons.  The 
death  of  the  fourth,  from  an  accident  while  he  was 
hurrying  to  his  father's  bedside,  had  been  kept 
from  him.  He  left  also  a  daughter  and  numerous 
grandchildren. 

Marshall's  will  is  dated  April  9,  1832,  and  has 
five  codicils  of  subsequent  dates  attached.  After 
certain  donations  to  grandsons  named  John  and 
Thomas,  the  estate,  consisting  chiefly  of  his  portion 
of  the  Fairfax  purchase,  was  to  be  divided  equally 
among  his  five  children.  To  the  daughter  and  her 
descendants  were  also  secured  one  hundred  shares 
of  stock  which  his  wife  had  held  in  the  Bank  of  the 
United  States,  but  in  1835  these  were  probably  of 
little  value.  His  faithful  body  servant  Robin  was 
to  be  emancipated  and,  if  he  chose,  sent  to  Liberia, 
in  which  event  he  should  receive  one  hundred 
dollars.  But  if  he  preferred  to  remain  in  the  Com 
monwealth,  he  should  receive  but  fifty  dollars;  and 
if  it  turned  out  to  "be  impracticable  to  liberate 


222  MARSHALL  AND  THE  CONSTITUTION 

him  consistently  with  law  and  his  own  inclination," 
he  was  to  select  his  master  from  among  the  chil 
dren,  "that  he  may  always  be  treated  as  a  faithful 
meritorious  servant." 

The  Chief  Justice's  death  evoked  many  eloquent 
tributes  to  his  public  services  and  private  excel 
lencies,  but  none  more  just  and  appreciative  than 
that  of  the  officers  of  court  and  members  of  the  bar 
of  his  own  circuit  who  knew  him  most  intimately. 
It  reads  as  follows  : 

John  Marshall,  late  Chief  Justice  of  the  United  States, 
having  departed  this  life  since  the  last  Term  of  the 
Federal  Circuit  Court  for  this  district,  the  Bench,  Bar, 
and  Officers  of  the  Court,  assembled  at  the  present 
Term,  embrace  the  first  opportunity  to  express  their 
profound  and  heartfelt  respect  for  the  memory  of  the 
venerable  judge,  who  presioled  in  this  Court  for  thirty- 
fi^e- years  —  with  such  remarkable  diligence  in  office, 
that,  until  he  was  disabled  by  the  disease  which  re 
moved  him  from  life,  he  was  never  known  to  be  absent 
from  the  bench,  during  term  time,  even  for  a  day,  — 
with  such  indulgence  to  counsel  and  suitors,  that  every 
body's  convenience  was  consulted,  but  his  own,  —  with 
a  dignity,  sustained  without  effort,  and,  apparently, 
without  care  to  sustain  it,  to  which  all  men  were  solici 
tous  to  pay  due  respect,  —  with  such  profound  sagac 
ity,  such  quick  penetration,  such  acuteness,  clearness, 
strength,  and  comprehension  of  mind,  that  in  his  hand, 
the  most  complicated  causes  were  plain,  the  weightiest 


AMONG  FRIENDS  AND  NEIGHBORS 

and  most  difficult,  easy  and  light,  —  with  such  striking 
impartiality  and  justice,  and  a  judgment  so  sure,  as  to 
inspire  universal  confidence,  so  that  few  appeals  were 
ever  taken  from  his  decisions,  during  his  long  adminis 
tration  of  justice  in  the  Court,  and  those  only  in  cases 
where  he  himself  expressed  doubt,  —  with  such  mod 
esty,  that  he  seemed  wholly  unconscious  of  his  own 
gigantic  powers,  —  with  such  equanimity,  such  benig 
nity  of  temper,  such  amenity  of  manners,  that  not  only 
none  of  the  judges,  who  sat  with  him  on  the  bench,  but 
no  member  of  the  bar,  no  officer  of  the  court,  no  juror, 
no  witness,  no  suitor,  in  a  single  instance,  ever  found  or 
imagined,  in  any  thing  said  or  done,  or  omitted  by  him, 
the  slightest  cause  of  offence. 

His  private  life  was  worthy  of  the  exalted  character 
he  sustained  in  public  station.  The  unaffected  simplic 
ity  of  his  manners;  the  spotless  purity  of  his  morals; 
his  social,  gentle,  cheerful  disposition;  his  habitual  self- 
denial,  and  boundless  generosity  towards  others;  the 
strength  and  constancy  of  his  attachments;  his  kindness 
to  his  friends  and  neighbours;  his  exemplary  conduct  in 
the  relations  of  son,  brother,  husband,  father;  his  numer 
ous  charities;  his  benevolence  towards  all  men,  and  his 
ever  active  beneficence;  these  amiable  qualities  shone  so 
conspicuously  in  him,  throughout  his  life,  that,  highly 
as  he  was  respected,  he  had  the  rare  happiness  to  be  yet 
more  beloved. 

There  is  no  more  engaging  figure  in  American 
history,  none  more  entirely  free  from  disfiguring 
idiosyncrasy,  than  the  son  of  Thomas  Marshall. 


CHAPTER  IX 

EPILOGUE 

IN  the  brief  period  of  twenty-seven  months  follow 
ing  the  death  of  Marshall  the  Supreme  Court 
received  a  new  Chief  Justice  and  five  new  Asso 
ciate  Justices.  The  effect  of  this  change  in  per 
sonnel  upon  the  doctrine  of  the  Court  soon  became 
manifest.  In  the  eleventh  volume  of  Peters's  Re- 
ports,  the  first  issued  while  Roger  B.  Taney  was 
Chief  Justice,  are  three  decisions  of  constitutional 
cases  sustaining  state  laws  which  on  earlier  argu 
ment  Marshall  had  assessed  as  unconstitutional. 
The  first  of  these  decisions  gave  what  was  desig 
nated  "the  complete,  unqualified,  and  exclusive" 
power  of  the  State  to  regulate  its  "internal  police" 
the  right  of  way  over  the  "commerce  clause"1; 
the  second  practically  nullified  the  constitutional 
prohibition  against  "bills  of  credit"  in  deference 
to  the  same  high  prerogative2;  the  third  curtailed 

'  Milton  vs.  New  York,  11  Peters,  102. 
,  3  Briscoe  vs.  Bank  of  Kentucky,  11  Peters,  257. 

224 


JOHN  MCLEAN 

Painting  by  Thomas  Sully.     In  the  Pennsylvania  Academy 
Fine  Arts,  Philadelphia. 


>f  the 


CHAPTER  IX 


od  of  tv.  ven  months  folio w- 

of  Marshall  the  Supreme  Court 
Chief  Justice  and  five  new  Asso- 
TlVks^u  ''.\\IA.  tange  in  per- 

v,  ym*K*o/.  U&4$&¥-9dt  ,,r  {^Vl!^yfiSM8t9 

' .     In  thf«4*Wrff i^^hfMe  of  Peters's  Re- 

d  while  Roger  IB.  Taney  was 

decisions  of  constitutional 

ning  st<  which  on  earlier  argu- 

arshall  ha<  >d  as  unconstitutional. 

i.  of  th<  ions  gave  what,  was  desig- 

the  coi  and  exclusive" 

-nal  police" 

aerce  clause"1; 

lullified  the  constitutional 

"bills  of  credit"  in  deference 

h  prero  third  curtailed 


.  II  Pet«rs 

224 


EPILOGUE  225 

the  operation  of  the  "obligation  of  contracts" 
clause  as  a  protection  of  public  grants.1  Story, 
voicing  "an  earnest  desire  to  vindicate  his  [Mar 
shall's]  memory  from  the  imputation  of  rashness," 
filed  passionate  and  unavailing  dissents.  With  dif 
ficulty  he  was  dissuaded  from  resigning  from  a 
tribunal  whose  days  of  influence  he  thought  gone 
by. 2  During  the  same  year  Justice  Henry  Baldwin, 
another  of  Marshall's  friends  and  associates,  pub 
lished  his  View  of  the  Constitution,  in  which  he 
rendered  high  praise  to  the  departed  Chief  Justice's 
qualifications  as  expounder  of  the  Constitution. 
"No  commentator,"  he  wrote,  "ever  followed  the 
text  more  faithfully,  or  ever  made  a  commentary 
more  accordant  with  its  strict  intention  and  lan 
guage.  .  .  .  He  never  brought  into  action  the 
powers  of  his  mighty  mind  to  find  some  meaning 
in  plain  words  .  .  .  above  the  comprehension  of 
ordinary  minds.  ...  He  knew  the  framers  of  the 
Constitution,  who  were  his  compatriots,"  he  was 

1  Charles  River  Bridge  Company  vs.  Warren  Bridge  Company,  11 
Peters,  420. 

3  He  wrote  Justice  McLean,  May  10,  1837:  "There  will  not,  I  fear, 
even  in  our  day,  be  any  case  in  which  a  law  of  a  State  or  of  Congress 
will  be  declared  unconstitutional;  for  the  old  constitutional  doctrines 
are  fast  fading  away. "  Life  and  Letters  of  Joseph  Story,  vol.  n,  p.  272; 
see  also  p.  270,  for  Chancellor  Kent's  unfavorable  reaction  to  these 
decisions. 


IS 


226  MARSHALL  AND  THE  CONSTITUTION 

himself  the  historian  of  its  framing,  wherefore,  as 
its  expositor,  "he  knew  its  objects,  its  intentions." 
Yet  in  the  face  of  these  admissions,  Baldwin  re 
jects  Marshall's  theory  of  the  origin  of  the  Con 
stitution  and  the  corollary  doctrine  of  liberal  con 
struction.  "The  history  and  spirit  of  the  times," 
he  wrote,  "admonish  us  that  new  versions  of  the 
Constitution  will  be  promulgated  to  meet  the 
varying  course  of  political  events  or  aspirations 
of  power." 

But  the  radical  impulse  soon  spent  itself.  Chief 
Justice  Taney  himself  was  a  good  deal  of  a  con 
servative.  While  he  regarded  the  Supreme  Court 
rather  as  an  umpire  between  two  sovereignties  than 
as  an  organ  of  the  National  Government  for  the 
vigorous  assertion  of  its  powers,  which  was  Mar 
shall's  point  of  view,  Taney  was  not  at  all  disposed 
to  disturb  the  law  as  it  had  been  declared  by  his 
predecessor  in  binding  decisions.  Then,  too,  the  de 
velopment  of  railroading  and  the  beginning  of  immi 
gration  from  Europe  on  a  large  scale  reawakened 
the  interest  of  a  great  part  of  the  nation  in  keeping 
intercourse  between  the  States  untrammeled  by 
local  selfishness;  and  in  1851  the  Court,  heeding  the 
spirit  of  compromise  of  the  day,  decisively  accepted 
for  the  most  important  category  of  cases  Marshall's 


EPILOGUE  227 

principle  of  the  exclusive  control  of  interstate  arid 
foreign  commerce  by  Congress. r 

'  Still,  until  the  eve  of  the  Civil  War,  the  theory 
of  the  Constitution  held  by  the  great  body  of  the 
people,  North  as  well  as  South,  was  that  it  was 
a  compact  of  States.  Then  in  December,  1860, 
South  Carolina  announced  her  secession  from  the 
Union.  Buchanan's  message  of  the  same  month 
performed  the  twofold  service  of  refuting  secession 
on  State  Rights  principles  and  of  demonstrating, 
albeit  unwittingly,  how  impossible  it  was  prac 
tically  to  combat  the  movement  on  the  same  prin 
ciples.  Lincoln  brought  the  North  back  to  Mar 
shall's  position  when  he  remarked  in  his  Inaugu 
ral  Address:  "Continue  to  execute  all  the  express 
provisions  of  our  National  Constitution,  and  the 
Union  will  endure  forever." 

The  Civil  War  has  been  characterized  as  "an 
appeal  from  the  judgments  of  Marshall  to  the 
arbitrament  of  war."  Its  outcome  restored  the 
concept  of  the  National  Government  as  a  ter 
ritorial  sovereign,  present  within  the  States  by 
the  superior  mandate  of  the  American  People, 
and  entitled  to  "execute  on  every  foot  of  Ameri 
can  soil  the  powers  and  functions  that  belong  to 

1  Cooley  vs.  the  Board  of  Wardens,  12  Howard,  299. 


228  MARSHALL  AND  THE  CONSTITUTION 

it."1  These  powers  and  functions  are,  moreover, 
today  undergoing  constant  enlargement.  No  one 
now  doubts  that  in  any  clash  between  national  and 
state  power  it  is  national  power  which  is  entitled 
to  be  defined  first,  and  few  persons  question  that 
it  ought  to  be  defined  in  the  light  of  Marshall's 
principle,  that  a  Constitution  designed  for  ages 
to  come  must  be  "adapted  to  the  various  crises  of 
human  affairs." 

It  is  only  when  we  turn  to  that  branch  of  Con 
stitutional  Law  which  defines  governmental  power 
in  relation  to  private  rights  that  we  lose  touch  with 
Marshall's  principles.  As  we  have  seen,  he  dealt 
in  absolutes:  either  power  was  given  to  an  un 
limited  extent  or  it  was  withheld  altogether.  To 
day,  however,  the  dominant  rule  in  this  field  of 
Constitutional  Law  is  the  "rule  of  reason. "  In  the 
last  analysis,  there  are  few  private  rights  which  are 
not  subordinate  to  the  general  welfare ;  but,  on  the 
other  hand,  legislation  which  affects  private  rights 
must  have  a  reasonable  tendency  to  promote  the 
general  welfare  and  must  not  arbitrarily  invade  the 
rights  of  particular  persons  or  classes.  Inasmuch  as 
the  hard  and  fast  rules  of  an  age  when  conditions 
of  life  were  simpler  are  no  longer  practicable  under 

1  Justice  Bradley  in  ex  parte  Siebold,  100  U.  S.,  371. 


EPILOGUE  229 

the  more  complex  relationships  of  modern  times, 
there  is  today  an  inevitable  tendency  to  force 
these  rules  to  greater  flexibility. r 

And  this  difference  in  the  point  of  view  of  the 
judiciary  connotes  a  general  difference  of  outlook 
which  makes  itself  felt  today  even  in  that  field  where 
Marshall  wrought  most  enduringly.  The  Consti 
tution  was  established  under  the  sway  of  the  idea 
of  the  balance  of  power,  and  with  the  purpose  of 
effecting  a  compromise  among  a  variety  of  more 
or  less  antagonistic  interests,  some  of  which  were  '* 
identified  with  the  cause  of  local  autonomy,  others 
of  which  coalesced  with  the  cause  of  National  Su 
premacy.  The  Nation  and  the  States  were  regard 
ed  as  competitive  forces,  and  a  condition  of  ten 
sion  between  them  was  thought  to  be  not  only 
normal  but  desirable.  The  modern  point  of  view 

V 

is  very  different.  Local  differences  have  to  a  great 
extent  disappeared,  and  that  general  interest  which 

1  Notwithstanding  what  is  said  above,  it  is  also  true  that  the 
modern  doctrine  of  "  the  police  power  "  owes  something  to  Mar 
shall's  interpretation  of  the  "necessary  and  proper"  clause  in 
M'Culloch  vs.  Maryland,  which  is  frequently  offered  nowadays  as 
stating  the  authoritative  definition  of  "a  fair  legislative  discretion" 
in  relation  to  private  rights.  Indeed  this  ingenious  transposition 
was  first  suggested  in  Marshall's  day.  See  Cowen  (N.  Y.).  585. 
But  it  never  received  his  sanction  and  does  not  represent  his  point 
of  view. 


230  MARSHALL  AND  THE  CONSTITUTION 

is  the  same  for  all  the  States  is  an  ever  deepening 
one.  The  idea  of  the  competition  of  the  States 
with  the  Nation  is  yielding  to  that  of  their  coopera 
tion  in  public  service.  And  it  is  much  the  same 
with  the  relation  of  the  three  departments  of  Gov 
ernment.  The  notion  that  they  have  antagonistic 
interests  to  guard  is  giving  way  to  the  perception 
of  a  general  interest  guarded  by  all  according  to 
their  several  faculties.  In  brief,  whereas  it  was  the 
original  effort  of  the  Constitution  to  preserve  a 
somewhat  complex  set  of  values  by  nice  differen 
tiations  of  power,  the  present  tendency,  born  of  a 
surer  vision  of  a  single  national  welfare,  is  toward 
the  participation  of  all  powers  in  a  joint  effort  for 
a  common  end. 

But  though  Marshall's  work  has  been  superseded 
at  many  points,  there  is  no  fame  among  American 
statesmen  more  strongly  bulwarked  by  great  and 
still  vital  institutions.  Marshall  established  judi 
cial  review;  he  imparted  to  an  ancient  legal  tradi 
tion  a  new  significance;  he  made  his  Court  one  of 
the  great  political  forces  of  the  country ;  he  founded 
American  Constitutional  Law;  he  formulated,  more 
tellingly  than  any  one  else  and  for  a  people  whose 
thought  was  permeated  with  legalism,  the  prin 
ciples  on  which  the  integrity  and  ordered  growth 


EPILOGUE  231 

of  their  Nation  have  depended.  Springing  from 
the  twin  rootage  of  Magna  Charta  and  the  Dec 
laration  of  Independence,  his  judicial  statesman 
ship  finds  no  parallel  in  the  salient  features  of  its 
achievement  outside  our  own  annals. 


BIBLIOGRAPHICAL  NOTE 

ALL  accounts  of  Marshall's  career  previous  to  his  ap 
pointment  as  Chief  Justice  have  been  superseded  by 
Albert  J.  Beveridge's  two  admirable  volumes,  The  Life 
of  John  Marshall  (Boston,  1916).  The  author  paints 
on  a  large  canvas  and  with  notable  skill.  His  work  is 
history  as  well  as  biography.  His  ample  plan  enables 
him  to  quote  liberally  from  Marshall's  writings  and 
from  all  the  really  valuable  first-hand  sources.  Both 
text  and  notes  are  valuable  repositories  of  material. 
Beveridge  has  substantially  completed  a  third  volume 
covering  the  first  decade  of  Marshall's  chief-justiceship, 
and  the  entire  work  will  probably  run  to  five  volumes. 
Briefer  accounts  of  Marshall  covering  his  entire  career 
will  be  found  in  Henry  Flanders's  Lives  and  Times  of  the 
Chief  Justices  of  the  Supreme  Court  (1875)  and  Van 
Santvoord's  Sketches  of  the  Lives,  Times,  and  Judicial 
Services  of  the  Chief  Justices  of  the  Supreme  Court  (1882). 
Two  excellent  brief  sketches  are  J.  B.  Thayer's  Jo% 
Marshall  (1901)  in  the  Riverside  Biographical  Series, 
and  W.  D.  Lewis's  essay  in  the  second  volume  of  The 
Great  American  Lawyers,  8  vols.  (Philadelphia,  1907), 
of  which  he  is  also  the  editor.  The  latter  is  partic 
ularly  happy  in  its  blend  of  the  personal  and  legal, 
the  biographical  and  critical.  A.  B.  Magruder's  John 
Marshall  (1898)  in  the  American  Statesman  Series  falls 

233 


234  BIBLIOGRAPHICAL  NOTE 

considerably  below  the  general  standard  maintained 
by  that  excellent  series. 

The  centennial  anniversary  of  Marshall's  accession  to 
the  Supreme  Bench  was  generally  observed  by  Bench 
and  Bar  throughout  the  United  States,  and  many  of  the 
addresses  on  the  great  Chief  Justice's  life  and  judicial 
services  delivered  by  distinguished  judges  and  lawyers 
on  that  occasion  were  later  collected  by  John  F.  Dillon 
and  published  in  John  Marshall,  Life,  Character,  and 
Judicial  Services,  3  vols.  (Chicago,  1903).  In  volume 
xin  of  the  Green  Bag  will  be  found  a  skillfully  con 
structed  mosaic  biography  of  Marshall  drawn  from 
these  addresses. 

The  most  considerable  group  of  Marshall's  letters 
yet  published  are  those  to  Justice  Story,  which  will  be 
found  in  the  Massachusetts  Historical  Society  Proceed 
ings,  Second  Series,  volume  xiv,  pp.  321-60.  These 
and  most  of  the  Chief  Justice's  other  letters  which  have 
thus  far  seen  the  light  of  day  will  be  found  in  J.  E. 
Osier's  Political  and  Economic  Doctrines  of  John  Mar 
shall  (New  York,  1914).  Here  also  will  be  found  a  copy 
of  Marshall's  will,  of  the  autobiography  which  he  pre 
pared  in  1818  for  Delaplaine's  Repository  but  which  was 
never  published  there,  and  of  his  eulogy  of  his  wife. 
The  two  principal  sources  of  Marshall's  anecdotes  are 
the  Southern  Literary  Messenger,  volume  n,  p.  181  ff.,  and 
Henry  Howe's  Historical  Collections  of  Virginia  (Charles 
ton,  1845).  Approaching  the  value  of  sources  are  Joseph 
Story's  Discourse  upon  the  Life,  Character,  and  Services 
of  the  tion.  John  Marshall  (1835)  and  Horace  Binney's 
Eulogy  (1835),  both  of  which  were  pronounced  by  per 
sonal  friends  shortly  after  Marshall's  death  and  both 
of  which  are  now  available  in  volume  in  of  Dillon's 


BIBLIOGRAPHICAL  NOTE  235 

compilation,  cited  above.  The  value  of  Marshall's  Life 
of  Washington  as  bearing  on  the  origin  of  his  own  point 
of  view  in  politics  was  noted  in  the  text  (Chapter  VIII). 

Marshall's  great  constitutional  decisions  are,  of  course, 
accessible  in  the  Reports,  but  they  have  also  been  as 
sembled  into  a  single  volume  by  John  M.  Dillon,  John 
Marshall;  Complete  Constitutional  Decisions  (Chicago, 
1903),  and  into  two  instructively  edited  volumes  by 
Joseph  P.  Cotton,  Constitutional  Decisions  of  John  Mar 
shall  (New  York,  1905).  Story's  famous  Commentaries 
on  the  Constitution  gives  a  systematic  presentation 
of  Marshall's  constitutional  doctrines,  which  is  fortified 
at  all  points  by  historical  reference;  the  second  edition 
is  the  best.  For  other  contemporary  evaluations  of 
Marshall's  decisions,  often  hostile,  see  early  volumes 
of  the  North  American  Review  and  Niles's  Register;  also 
the  volumes  of  the  famous  John  Taylor  of  Caroline.  A 
brief  general  account  of  later  date  of  the  decisions  is  to 
be  found  in  the  Constitutional  History  of  the  United 
States  as  Seen  in  the  Development  of  American  Law  (New 
York,  1889),  a  course  of  lectures  before  the  Political 
Science  Association  of  the  University  of  Michigan.  De 
tailed  commentary  of  a  high  order  of  scholarship  is 
furnished  by  Walter  Malins  Rose's  Notes  to  the  Law 
yers'  Edition  of  the  United  States  Reports,  13  vols. 
(1899-1901).  The  more  valuable  of  Marshall's  de 
cisions  on  circuit  are  collected  in  J.  W.  Brockenbrough's 
two  volumes  of  Reports  of  Cases  Decided  by  the  Hon.  John 
Marshall  (Philadelphia,  1837),  and  his  rulings  at  Burr's 
Trial  are  to  be  found  in  Robertson's  Report  y  of  the  Trials 
of  Colonel  Aaron  Burr,  2  vols.  (1808). 

Marshall's  associates  on  the  Supreme  Bench  are 
pleasingly  sketched  in  Hampton  L.  Carson's  Supreme 


236  BIBLIOGRAPHICAL  NOTE 

Court  of  the  United  States  (Philadelphia,  1891),  which 
also  gives  many  interesting  facts  bearing  on  the  history 
of  the  Court  itself.  In  the  same  connection  Charles 
Warren's  History  of  the  American  Bar  (Boston,  1911)  is 
also  valuable  both  for  the  facts  which  it  records  and  for 
the  guidance  it  affords  to  further  material.  Of  biog 
raphies  of  contemporaries  and  coworkers  of  Marshall, 
the  most  valuable  are  John  P.  Kennedy's  Memoirs  of 
the  Life  of  William  Wirt,  %  vols.  (Philadelphia,  1860); 
William  Wetmore  Story's  Life  and  Letters  of  Joseph 
Story,  %  vols.  (Boston,  1851);  and  William  Kent's 
Memoirs  and  Letters  of  James  Kent  (Boston,  1898). 
Everett^  P.  Wheeler's  Daniel  Webster  the  Expounder  of 
the  Constitution  (1905)  is  instructive,  but  claims  far  too 
much  for  Webster's  influence  upon  Marshall's  views. 
New  England  has  never  yet  quite  forgiven  Virginia  for 
having  had  the  temerity  to  take  the  formative  hand  in 
shaping  our  Constitutional  Law.  The  vast  amount  of 
material  brought  together  in  Gustavus  Myers's  History 
of  the  Supreme  Court  (Chicago,  1912)  is  based  on  purely 
ex  parte  statements  and  is  so  poorly  authenticated  as  to 
be  valueless.  He  writes  from  the  socialistic  point  of 
view  and  fluctuates  between  the  desire  to  establish  the 
dogma  of  "  class  bias  "  by  a  coldly  impartial  examination 
of  the  "facts  "  and  the  desire  to  start  a  scandal  reflecting 
on  individual  reputations. 

The  literature  of  eulogy  and  appreciation  is,  for  all 
practical  purposes,  exhausted  in  Dillon's  collection. 
But  a  reference  should  be  made  here  to  a  brief  but  per 
tinent  and  excellently  phrased  comment  on  the  great 
Chief  Justice  in  Woodrow  Wilson's  Constitutional  Gov 
ernment  in  the  United  'States  (New  York,  1908),  pp.  158-9. 


INDEX 


Adams,  John,  and  "midnight 
judges,"  22-23;  appoints 
Marshall  Chief  Justice,  23-24, 
51;  Marshall  defends,  48 

Adams,  J.  Q.,  Memoirs,  cited,  71 
(note) ;  record  of  Giles's  views 
on  impeachment,  74-75;  on 
Randolph,  81-82;  quoted,  126 

Addison,  Alexander,  59 

Alien  and  Sedition  laws,  47; 
see  also  Sedition  Act 

Ambler,  Mary,  Marshall  marries, 
30;  death,  217-18 

Articles  of  Confederation,  3-4 

Baldwin,  Henry,  View  of  the  Con 
stitution,  praise  of  Marshall, 

225-26 
Bank,  U.  S.,  124-26;    Marshall 

and,/ 214-15;  see  also  M'Cul- 

loch  vs.  Maryland 
Barbecue  Club,  202-04 
Barlow,  Joel,  208-09 
Barren  vs.  Baltimore,  191 
Bartlett,  attorney  in  Dartmouth 

College  case,  159,  163 
Benton,  T.  H.,  Abridgment  of  the 

Debates  of  Congress,  cited,  66 

(note) 
Beveridge,  A.  J.,  The  Life  of  John 

Marshall,  quoted,  31,  43,  201 
Blair,    Rev.,    and    anecdote    of 

Barbecue  Club,  203-04 
Blair,  Justice  John,  of  Virginia, 

15,  19 
Blennerhassett,     Harman,     and 

Burr,    87,    89,    105;  describes 

Eaton,  92 


Blennerhassett 's  Island,  87,  103 
Bollmann,     Erick,     witness    at 

Burr's  trial,   92-93,   94,    108 

109 
Botts,  Benjamin,  defends  Burr, 

92 
Bradley,  Justice  J.  P.,  cited,  144 

(note);  quoted,  227-28 
Breckinridge,  John,  of  Kentucky, 

61,62 
Briscoe  vs.  Bank  of  Kentucky, 

191 
Brown,    Francis,    President    of 

Dartmouth  College,  164 
Brown    vs.    Maryland,    142-44, 

171,  190 

Buchanan,    James,    and    seces 
sion,  227 
Burr,  Aaron,  and  Marshall,  50; 

Vice-President,  76;  favors  to, 

82-83;  "conspiracy"  and  trial, 

86  et  seq. 

Calder  vs.  Bull,  150,  154 

Calhoun,  J.  C.,  and  state  sover 
eignty,  192 

Callender,  J.  T.,  tried  for  sedi 
tion,  57,  73,  79 

Campbell,  clergyman,  teaches 
John  Marshall,  28 

Campbell,  lawyer  of  Richmond, 
32,  78 

Charles  River  Bridge  Company 
vs.  Warren  Bridge  Company, 
225  (note) 

Chase,  Justice  Samuel,  of  Mary 
land,  19,  57,  71-72,  150;  im 
peachment,  72,  73-83,  112-13 


237 


238 


INDEX 


Cherokee  Nation  vs.  Georgia,  193 

Chisholm  vs.  Georgia,  18 

Cincinnati,  Burr  goes  to,  87 

Civil  War,  226 

Clay,  Henry,  Marshall  and,  214 

Clinton,  De  Witt,  Governor  of 
New  York,  164 

Cohen's  vs.  Virginia,  179 

Commerce,  Marshall's  opinion 
of  congressional  control  of, 
139-42;  see  also  Congress 

Congress,  and  Supreme  Court, 
7,  12-13;  impeachments,  71- 
83;  control  of  commerce,  139- 
143,  145,  171,  226 

Connecticut,  statute  excluding 
Fulton-Livingston  vessels,  136 

Constitution,  relation  of  Su 
preme  Court  to,  7-13;  prin 
ciples  from  Marshall's  inter 
pretation  of,  144-45 

Constitutional  Convention  and 
state  coercion,  4-5 

Contracts,  sanctity  of,  147  et 
seq. 

Cooley  vs.  the  Board  of  Wardens, 
227 

Cooper,  Thomas,  tried  for  sedi 
tion,  57 

Corn  Tassel,  Cherokee  Indian, 
193 

Craig  vs.  Missouri,  192-93 

Cumberland  Road  Bill  vetoed, 
188 

Gushing,  Justice  William,  of 
Massachusetts,  15,  17,  116 

Gushing,  Mrs.,  wife  of  Justice,  17 

Dartmouth  College  vs.  Wood 
ward,  124,  154  et  seq.' 

Dickinson,  John,  of  Delaware, 
on  removal  of  judges,  6;  Jef 
ferson  writes  to,  23;  President 
of  Pennsylvania,  59  (note) 

Dodd,  W.  E.,  Chief  Justice  Mar-  \ 
shall  and  Virginia,  cited,  174  ' 
(note) 

Duval,  Justice  Gabriel,  219;  and  ; 
Dartmouth  College  case,  163  i 


Eaton,  William,  witness  at  Burr's 
trial,  92,  101 

Elliot,  J.,  Debates,  36,  38 

Ellsworth,  Oliver,  76;  on  state 
coercion,  5;  author  of  Judici 
ary  Act  (1789),  14;  Chief 
Justice,  20;  resigns,  23,  175 

Emmet,  T.  A.,  lawyer  of  New 
York,  136 

Enquirer,  Richmond,  183 

Espionage  Act  of  June  15,  1917, 
110 

Evans,  Charles,  Report,  cited, 
71  (note) 

Federalist,    5,    13,    15,    18,    124, 

175 
Fletcher  vs.  Peck,  151-54,  159, 

166 
Fries,  John,  tried  for  treason,  57, 

73,  79 

Fries's  Rebellion,  21 
Fulton,  Robert,  steamboat  grant 

to,  135 

Gallatin,  Albert,  48,  82 
Georgia,  land  grant  case,  151-54; 

controversy      with      Supreme 

Court,  193-94 
Gerry,  Elbridge,  45 
Gibbons  vs.  Ogden,  130,  135-42, 

145,  171,  189 
Giles,   W.   B.,   of   Virginia,   62, 

74-75,  78,  82 
Goodrich,    C.    A.,    Professor    of 

Yale,  162  (note) 
Green  vs.  Biddle,  184,  188 
Griffin,  Judge,  at  Burr's  trial,  95 

Hamilton,  Alexander,  13,  36,  45, 

50,  86,   121,   122;  and  U.  S. 

Bank,  124-26 
Harding,  Chester,  quoted,  204- 

205 
Hay,  George,  and  Sedition  Act, 

79;  U.   S.   District  Attorney, 

91,  98,  113-14 

Hayes,  Samuel  (or  Haze),  155-56 
Heath  testifies  against  Chase,  79 


INDEX 


239 


Henry,  Patrick,  at  Virginia 
Convention,  37,  38;  supports 
Marshall,  48 

Holmes,  John,  and  Dartmouth 
College  case,  163 

Holmes,  Justice  O.  W.,  on  Mar 
shall,  121 

Hopkinson,  Joseph,  defends 
Chase,  80;  in  Bank  case,  128; 
and  Dartmouth  College  case, 
162 

Hunter  vs.  Martin,  174-77,  179 

Impeachments,  Pickering,  71- 
73;  Chase,  73-83;  of  Penn 
sylvania  State  Supreme  Court 
judges,  84 

Indians,  and  Dartmouth  College, 
155,  158;  and  Georgia,  193 

Iredell,  Justice  James,  of  North 
Carolina,  15 

Jackson,  Andrew,  and  Burr,  92; 
President,  191;  and  contro 
versy  between  Supreme  Court 
and  Georgia,  194 

Jay.  John,  of  New  York,  Chief 
Justice,  15-16,  19-20,  196 

Jefferson,  Thomas,  25,  28,  166; 
elected  President,  22;  and  the 
Judiciary,  23,  53,  et  seq.,  182- 
183;  Governor  of  Virginia,  30; 
and  Marshall,  46,  50,  55,  94- 
95,  96,  97-98,  108,  120;  inau 
guration,  55-56;  Marbury  vs. 
Madison,  64-66;  and  Martin, 
*7,  78;  and  Burr,  82,  88-89, 
90,  111.  113;  and  Johnson. 
115;  and  U.  S.  Bank,  12.3;  on 
Dartmouth  College  question, 
157;  criticism  of  Marshall's 
Life  of  Washington,  208-09 

Johnson,  Allen,  Jefferson  and 
his  Colleagues,  cited,  87  (note) 

Johnson,  R.  M.,  of  Kentucky, 
185 

Johnson,  Justice  William,  115, 
151.  164 

Jones,  Walter,  in  Bank  case,  128 


Judiciary,  establishment,  1  et 
seq.;  removal  of  judges,  6; 
Jefferson's  war  on,  53  ct  seq. 

Judiciary  Act  (1789),  14-16,  39 
192-93;  Act  (1801),  22,  60-63, 

Kent,  Chancellor  James,  of  New 
York,  137,  138,  164,  225  (note) 

Kentucky,  anti- judicial  move 
ment,  58,  184-86,  187,  188 

Kentucky  Resolutions,  22,  127, 
177 

King,  Rufus,  on  John  Marshall 
44 

Law  Journal,  Hall's,  183 

Lee,  R.  E.,  25 

Lewis,  attorney  for  Fries,  79 

Lincoln,  Abraham,  and  nation 
alism,  226 

Livingston,  Justice  Brockholst, 
164 

Livingston,  R.  R.,  steamboat 
grant  to,  135 

Livingston  family  of  New  York, 
16 

Livingston  vs.  Van  Ingen,  137 
(note) 

Lodge,  H.  C..  on  Marshall,  121 

M'Culloch  vs.  Maryland,  124- 
135,  143.  182,  184,  11)0 

McLean,  Justice  John,  letter  of 
Story  to,  quoted,  225  (note) 

Madison,  James,  82;  on  state 
coercion,  5;  on  state  courts  as 
national  tribunals,  7;  in  Vir 
ginia  Legislature,  34;  Virginia 
Convention,  36,  37;  and  U.  S. 
Bank,  126;  Journal,  cited,  175 

Marbury  vs.  Madison,  64-71 

Marsh,  Charles,  164 

Marshall.  John,  18,  20,  22;  and 
American  constitutionalism, 
2-3;  appointed  Chief  Justice, 
24,  51;  born  (1755),  25;  early 
life,  25  et  seq. ;  education,  27 - 
28,  30;  and  the  Revolution, 


240     , 


INDEX 


Marshall,  John  —  Continued 
£9-30;  marriage  (1783),  30; 
practices  law  at  Richmond, 
31-32;  in  Virginia  Legisla 
ture,  33;  and  adoption  of 
Constitution,  35-38;  Wirt's 
description  of,  39-42:  per 
sonal  characteristics,  42; 
Federalist  leader  in  Virginia, 
43;  and  Jay  Treaty,  43-44, 
48;  purchases  Fairfax  estate, 
44-45;  "X.Y.Z."  mission,  45- 
46,  49;  elected  to  Congress, 
46-48;  and  Jefferson,  46,  50, 
55,  94-95,  96,  97-98,  108, 
120;  in  Washington,  53-54; 
first  constitutional  case,  64- 
71;  and  trial  of  Burr,  93  et 
seq.;  and  nationalism,  121 
et  seq.,  147;  interpretation  of 
Constitution,  144-45;  and 
sanctity  of  contracts,  147  et 
seq.;  and  State  Rights,  173 
et  seq.;  as  private  citizen,  198 
et  seq.;  as  hero  of  anecdote, 
205-06;  religious  bent,  206; 
Life  of  Washington,  34  (note), 
208-10;  correspondence,  211- 
213;  and  politics,  213-14;  on 
method  of  electing  President, 
214-15;  amLILS.  Bank. 


_  -  »Jff-  illness, 
wife 


e,  217-18;  last  years,  219- 

220;   composes   epitaph,   221; 

death,      221;     will,      221-22; 

tribute,   221-22;  Baldwin  on, 

?25-26;  bibliography,  233-36 
Marshall,     Thomas,    father    of 

John  Marshall,  25,  27 
Martin,    Luther,   of   Maryland, 

on  authority  of  federal  legisla 

tion,  9;  defends  Chase,  76-77; 

80-81;  defends  Burr,  92,  96; 

in  Bank  case,  128 
Martin  vs.  Hunter's  Lessee,  177- 

182 
Martineau,    Harriet,     describes 

Marshall,  220 
Maryland,  attitude  toward  Judi 


ciary,  58;  and  U.  S.  Bank,  see 
M'Culloch  vs.  Maryland 
Mason,  George,  38 
Mason,  Jeremiah,  158,  162 
Mexico,     "Burr's    Conspiracy" 

against,  99 
Morgan,    General,    witness    at 

Burr's  trial,  102 

Morris,  Gouverneur,  quoted,  61 
Morris,   Robert,   and  Marshall, 

45 

Munford,  G.  W.,  The  Two  Par 
sons,  cited,  204  (note) 
Murch,  Rachel,  155 

Nashville  (Tenn.),  Burr  goes  to, 

87 

Natchez,  Burr  goes  to,  87,  89 
Nationalism,  121  et  seq.,  227 
Nereide,  case  of  the,  118  (note) 
New   Jersey,   statute   excluding 

Fulton-Livingston  vessels,  136 
New  Orleans,  Wilkinson  at,  89, 

91;  and  Burr,  99 
New    York,    and    "Steamboat 

case,"  136-42 
New  York  City,  Supreme  Court 

in,  16 

Newcastle  (Del.),  Chase  at,  73 
Nicholas,    W.    C.,    at    Virginia 

Convention,  37 

Nicholson,  Joseph,  and  impeach 
ment,  78;  recall  for  Senators, 

84 
Nullification,  194;  Marshall  and, 

214 

Oakley,  T.  J.,  counsel  for  Ogden, 

13(» 

Ogden  vs.  Saundcrs,  190 
Ohio,     anti-judicial     movement 

in,  184 
Osborn  vs.  United  States  Bank, 

189-90 

Parton,  James,  Life  and  Times 
of  Aaron  Burr,  quoted,  99-100 

Passmore,  Thomas,  punished 
for  contempt  of  court,  60 


INDEX 


241 


Pendleton,  Edmund,  lawyer  of 
Richmond,  32 

Pennsylvania,  attitude  toward 
Judiciary,  58,  84;  protests 
Marshall's  decision,  119 

Philadelphia,  Supreme  Court  at, 
16;  impeachment  of  judges  at, 
84;  Burr  goes  to,  87 

Pickering,  Judge,  of  New  Hamp 
shire,  impeachment,  71,  72-73 

Pinckney,  C.  C.,  on  "X.Y.Z." 
mission,  45 

Pinkney,  William,  of  Maryland, 
greatest  lawyer  of  his  day, 
117-18;  in  Bank  case,  128- 
129;  in  Dartmouth  College 
case,  165 

Plumer,  William,  Governor  of 
New  Hampshire,  156-58 

Providence  Bank  vs.  Billings,  191 

Raleigh  (N.  C.),  Marshall  holds 
court  at,  199 

Randolph,  Edmund,  25;  defends 
Burr,  92 

Randolph,  John,  25,  32,  37,  54, 
62,  90,  124;  on  Judiciary,  23; 
on  Marshall,  52;  and  impeach 
ment  of  Chase,  75,  78,  81-82; 
proposes  amendment  to  Con 
stitution,  83-84;  at  Burr's 
trial,  95 

Reed,  T.  B.,  169 

Revolution,  Marshall  and,  29-30 

Richardson,  Chief  Justice,  159 

Richmond  (Va.)»  Marshall  prac 
tices  law  at,  31;  Burr's  trial 
at.  86  et  seg.;  Marshall  holds 
court  at,  199 

Roane,  Spencer,  of  Virginia, 
174-78,  183 

Robertson,  Reports,  cited,  109 
(note) 

Robins,  Jonathan,  British  fugi 
tive  from  justice,  48 

Rodney,  C.  A.,  78,  84 

Rowan,  Senator,  of  Kentucky, 
187 

Rutledge,  John,  of  South  Caro 


lina,  on  state  courts  as  na 
tional  tribunals,  6-7;  associate 
justice,  15 

St.  Louis,  Burr  goes  to,  87 

Satterlee  vs.  Matthewson,  191 

Schooner  Exchange  vs.  McFad- 
don  et  al,  118  (note) 

Sedgwick,  Theodore,  on  Mar 
shall,  49-51 

Sedition  Act  (1798),  21,  49,  57 

Shays's  Rebellion  (1786),  34 

"Shockoe  Hill,"  Marshall's  home 
at  Richmond,  201 

"Sidney,  Algernon,"  pseudonym 
of  Roane,  183 

Smith,  Jeremiah,  158-59,  163 

South  Carolina,  nullification, 
194;  Jackson's  proclamation 
to,  214;  secession,  227 

Spain,  "Burr's  Conspiracy" 
against,  89 

State  Rights,  7,  173,  et  seq. 

"Steamboat  case,"  see  Gibbons 
vs.  Ogden 

Story,  Justice  Joseph,  109,  118, 
220;  Discourse,  cited,  34  (note) ; 
and  Marshall,  116,  150-51 
(note),  183,  194,  195,  211, 
216,  219,  225;  quoted,  121), 
201;  Dartmouth  College  case, 
163,  166;  answer  to  Roane, 
177-79 

Sturges  vs.  Crowinshield,  124, 
184,  190 

Sullivan,  attorney  in  Dartmouth 
College  case,  159,  163 

Supreme  Court,  relation  to  Con 
stitution,  7-13;  powers,  11; 
establishment,  12-13, 14;  origi 
nal  bench,  15;  in  New  York 
City,  16;  in  Philadelphia,  16; 
pioneer  work,  17-19;  need  of 
leadership,  19-20;  Act  of 
Feb.  13,  1801,  22,  60-63,  71; 
in  Washington,  54;  defended 
by  Virginia  Assembly,  119- 
120;  bill  for  enlargement,  186- 
187;  controversy  with  Geor- 


242 


INDEX 


Supreme  Court — Continued 
gia,  193-94;  number  of  cases 
during     Marshall's    term     of 
office,  198;   changes  on  bench, 
223 

Swartwout,  Samuel,  93,  94,  108, 
109 

Taney,  R.  B.,  Chief  Justice,  118, 

224,  226 

Taylor,  John,  of  Caroline,  60,  192 
Thayer,  J.   B.,  John   Marshall, 

quoted,  202-04 

Thompson,  Justice  Smith,  219 
Ticknor,  George,  describes  Pink- 

ney,  117-18 
Tocqueville,  Alexis  de,  opinion 

of  Supreme  Court,  196-97 
Todd,  Justice  Thomas,  163 
Transportation,  188-89 
Truxton,    Commodore  Thomas, 

92,  102 

United  States  vs.  Peters,  118 

Vincennes,  Burr  goes  to»  87 
Virginia,  plan  before  Constitu 
tional  Convention,  8;  Con 
vention,  35-38;  defends  Su 
preme  Court,  119-20;  and  U.  S. 
Bank,  216 

Virginia    Resolutions,    22,     127, 
176,  177 

Wakefield  (Ala.),  Burr  captured 

at,  90 

Ware  vs.  Hylton,  44 
Warren,     Charles,     cited,      185 

(note) 
Washington,    Justice     Bushrod, 

115,  161,  163,  166,  190,  208 


Washington,  George,  Marshall 
and,  26-27,  34,  46;  Marshall's 
Life  of,  34  (note),  208-10 

Washington  (D.  C.),  53;  Capitol, 
54;  Burr  goes  to,  87 

Watson  vs.  Mercer,  191 

Webster,  Daniel,  29;  and  feank 
case,  128;  Gibbons  vs.  Ogden, 
13 G;  Dartmouth  College  case, 
159,  160-61,  163 

Wentworth,  John,  Governor  of 
New  Hampshire,  155 

Wheelock,  Rev.  Eleazar,  of 
Connecticut,  155 

Wheelock,  Dr.  John,  son  of  Elea 
zar  Wheelock,  156 

Whisky  Rebellion  (1794),  21 

Wickharn,  John,  of  Richmond, 
32,  92,  202,  203-04 

Wilkinson,  James,  113;  Mar 
shall's  letter  to,  35;  military 
commandant  in  Louisiana 
Territory,  82;  and  Burr,  88, 
93,  95;  at  New  Orleans,  89, 
91 

William  and  Mary  College,  30 

Wilson,  Justice  James,  of  Penn 
sylvania,  15,  36 

Wilson  vs.  Blackbird  Creek 
Marsh  Company,  191 

Wirt,  William,  Letters  of  the 
British  Spy,  quoted,  39-42; 
at  Burr's  trial,  91,  93-97,  102. 
104-05,  110;  Bank  case,  128; 
Giboons  vs.  Ogden,  135-36; 
Dartmouth  College  case,  163 

Woodward,  W.  H.,  158 

Worcester  vs.  Georgia,  193-94 

Wythe,  George,  30,  32 

"X.Y.Z."  mission,  45-46 


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