In beginning his “Life of Washington,” Chief Justice Marshall states
that Washington was born in 1732, “near the banks of the Potowmac,” in
Westmoreland County, Virginia; mentions his employment by Lord Fairfax,
the proprietor of the Northern Neck, as surveyor of his estates in the
western part of that region; and adds that, in the performance of these
duties, “he acquired that information respecting vacant lands, and
formed those opinions concerning their future value, which afterwards
contributed greatly to the increase of his private fortune.”
Thomas Marshall, the father of the Chief Justice, two years older than
Washington, was also born in Westmoreland County, was a schoolmate of
Washington, served with him both as surveyor of the Fairfax estates, and
soon afterwards, as an officer in the French and Indian wars; and he,
too, as time passed, found like advantage from his experience as a
surveyor.
In 1753, Thomas Marshall was made agent of Lord Fairfax in the
management of his estates. In the next year, he married Mary Isham
Keith, daughter of a Scotch clergyman, whose wife was a descendant of
William Randolph, of Turkey Island, the ancestor of the famous Virginia
family of that name. Their son, John Marshall, the oldest of fifteen
children, was born on September 24, 1755, in what was afterwards
Fauquier County, at a little settlement then known as Germantown,–now
Midland, on the Southern Railroad, a few miles south of Manassas. That
was the year of Braddock’s defeat, and Thomas Marshall, like Washington,
was in the service, as an officer.
In Marshall’s early childhood, his father’s household, situated in a
frontier county, must have been agitated with the dreadful rumors,
anxieties, and terrors of the troubles with the French and Indians. “So
late,” he tells us in the “Life of Washington,” “as the year 1756, the
Blue Ridge was the northwestern frontier; and [Virginia] found immense
difficulty in completing a single regiment to protect the inhabitants
from the horrors of the scalping-knife, and the still greater horrors of
being led into captivity by savages who added terrors to death by the
manner of inflicting it.” It was not until two years later that the
capture of Fort Duquesne relieved Virginia from the frightful ravages
that laid waste the region just west of the Blue Ridge.
When John Marshall was ten years old or more, his father left the level
country and poor soil of eastern Fauquier, for the higher and more
fertile region in the western part of the county, just under the Blue
Ridge. At Midland all they can show you now, relating to Marshall, is a
small, rude heap of bricks and rubbish,–what is left of the house
where he was born; and children on the farm reach out to you a handful
of the bullets with which that sacred spot and the whole region were
thickly sown, before a generation had passed, after his death.
Marshall’s education was got from his father, from such teachers as the
neighborhood furnished, and, for about a year, at a school in
Westmoreland County, where his father and George Washington had
attended, and where James Monroe was his own schoolmate. But most he
owed to his father,–a man of good stock, of enterprise, experience,
strong character and sense, himself of no mean education,–who,
personally, took great pains with the training of his children. Marshall
admired his father, and declared him to be a far abler man than any of
his sons. From him and the teachers provided for him his son got a good
knowledge of English history, literature, and poetry, and a fair
acquaintance with the classics.
All Marshall’s later youth was passed in the mountain region of
Fauquier County, under the Blue Ridge. Judge Story declared that it was
to the hardy, athletic habits of his youth among the mountains,
operating, we may well conjecture, upon a happy physical inheritance,
“that he probably owed that robust and vigorous constitution which
carried him almost to the close of his life with the freshness and
firmness of manhood.”
The house that Marshall’s father built at Oakhill is still standing, an
unpretending, small, frame building, having connected with it now, as a
part of it, another house built by Marshall’s son Thomas. At one time
the farm comprised an estate of six thousand acres.[1] Since 1865 it has
passed out of the hands of the family. It is beautifully placed on high,
rolling ground, looking over a great stretch of fertile country, and
along the chain of the Blue Ridge, close by. To this region, where his
children and kindred lived, about a hundred miles from Richmond,
Marshall delighted to resort in the summer, all his life long. In the
autumn of 1807, after the Burr trial, he writes to a friend, “The day
after the commitment of Colonel Burr for a misdemeanor, I galloped to
the mountains.” “I am on the wing,” he tells Judge Story in 1828, “for
my friends in the upper country, where I shall find rest and dear
friends, occupied more with their farms than with party politics.”
When Marshall was about eighteen years old he began to study Blackstone;
but he quickly dropped it, for the troubles with Great Britain
thickened, and, like his neighbors, he prepared for fighting.
He seems to have found a copy of Blackstone in his father’s house, as he
had found there much other sterling English literature. It was then a
new book, but already famous. Published in England in 1765-69, a
thousand copies had been taken in this country;[2] and just now the
first American edition was out (Philadelphia, 1771-72), in which the
list of subscribers, headed by the name of “John Adams, barrister at
law, Boston,” had also that of “Captain Thomas Marshall, Clerk of
Dunmore County.” Dunmore County, now Shenandoah, was then a very new
county, just over the Blue Ridge from Fauquier; and it is believed that
there was but one Captain Thomas Marshall in those parts.
The earliest personal description of Marshall that we have belongs to
this period. It is preserved in Horace Binney’s admirable address at
Philadelphia, after Marshall’s death. He gives it from the pen of an
eyewitness, a “venerable kinsman” of Marshall. News had come, in May,
1775, of the fighting at Concord and Lexington. The account shows us the
youth, as lieutenant, drilling a company of soldiers in Fauquier
County:–
“He was about six feet high, straight, and rather slender, of dark
complexion, showing little if any rosy red, yet good health, the outline
of the face nearly a circle, and within that, eyes dark to
blackness,[3] strong and penetrating, beaming with intelligence and good
nature; an upright forehead, rather low, was terminated in a horizontal
line by a mass of raven-black hair, of unusual thickness and strength.
The features of the face were in harmony with this outline, and the
temples fully developed. The result of this combination was interesting
and very agreeable. The body and limbs indicated agility rather than
strength, in which, however, he was by no means deficient. He wore a
purple or pale blue hunting-shirt, and trousers of the same material
fringed with white. A round black hat, mounted with the buck’s tail for
a cockade, crowned the figure and the man. He went through the manual
exercise by word and motion, deliberately pronounced and performed in
the presence of the company, before he required the men to imitate him;
and then proceeded to exercise them with the most perfect temper….
“After a few lessons the company were dismissed, and informed that if
they wished to hear more about the war, and would form a circle about
him, he would tell them what he understood about it. The circle was
formed, and he addressed the company for something like an hour. He then
challenged an acquaintance to a game of quoits, and they closed the day
with foot-races and other athletic exercises, at which there was no
betting.”
“This,” adds Mr. Binney, “is a portrait, to which in simplicity, gayety
of heart, and manliness of spirit, in everything but the symbols of the
youthful soldier, and one or two of those lineaments which the hand of
time, however gentle, changes and perhaps improves, he never lost his
resemblance.”
Marshall accompanied his father to the war as a lieutenant, and in a
year or two became a captain. In leaving the father here, it may be said
that three of his sons were with him in the war, and that he himself
served with gallantry and distinction as a colonel. In 1780, he was at
the South with General Lincoln, and being included in the surrender of
that officer and on parole, visited Kentucky, not yet a State. After a
few years he removed there with the younger part of his family, leaving
Oakhill, as it seems, in the hands of his son John. He died in Kentucky
in 1806, having survived to witness the successive honors of his son
culminate in his becoming Chief Justice of the United States.[4]
It was in the autumn of 1775 that Marshall, as lieutenant in a regiment
of minutemen, of which his father was major, marched down through the
country to the seaboard to resist Lord Dunmore’s aggressions. They were
clothed, we are told, in green home-spun hunting-shirts, having the
words “Liberty or Death” in large letters on the breast, with bucks’
tails in their hats, and tomahawks and scalping-knives in their belts.
The enemy at Norfolk feared, it is said, for their scalps, but they lost
none.[5]
He was thus in the first fighting in Virginia, in the fall of 1775, at
Norfolk; afterwards he served in New Jersey, Pennsylvania, and New York;
and again in Virginia toward the end of the war. He was at Valley Forge,
in the fighting at the Brandywine, Germantown, Monmouth, Stony Point,
and Paulus Hook, between 1776 and 1779. He served often as judge
advocate, and in this way was brought into personal relations with
Washington and Hamilton. A fellow officer and messmate describes him,
during the dreadful winter at Valley Forge, as neither discouraged nor
disturbed by anything, content with whatever turned up, and cheering
everybody by his exuberance of spirits and “his inexhaustible fund of
anecdote.” He was “idolized by the soldiers and his brother officers.”
President Quincy gives us a glimpse of him at this period, as he heard
him described at a dinner with John Randolph and a large company of
Virginians and other Southern gentlemen. They were talking of Marshall’s
early life and his athletic powers. “It was said in them that he
surpassed any man in the army; that when the soldiers were idle at their
quarters, it was usual for the officers to engage in matches of quoits,
or in jumping and racing; that he would throw a quoit farther, and beat
at a race any other; that he was the only man who, with a running jump,
could clear a stick laid on the heads of two men as tall as himself. On
one occasion he ran in his stocking feet with a comrade. His mother, in
knitting his stockings, had the legs of blue yarn and the heels of
white. This circumstance, combined with his uniform success in the race,
led the soldiers, who were always present at these races, to give him
the sobriquet of ‘Silver-Heels,’ the name by which he was generally
known among them.”
Toward the end of 1779, owing to the disbanding of Virginia troops at
the end of their term of service, he was left without a command, and
went to Virginia to await the action of the legislature as to raising
new troops. It was a fortunate visit; for at Yorktown he met the young
girl who, two or three years later, was to become his wife; and he was
also able to improve his leisure by attending, for a few months in the
early part of 1780, two courses of lectures at the college, on law and
natural philosophy. This was all of college or university that he ever
saw; but later, from several of them, he received their highest honors.
In 1802 the college of New Jersey (Princeton, where his oldest son,
Thomas, was to graduate in 1803), in 1806, Harvard, and in 1815, the
University of Pennsylvania, made him doctor of laws.[6] Marshall’s
opportunity for studying law, under George Wythe, at William and Mary
College, seems to have been owing to a change in the curriculum, made,
just at that time, at the instance of Jefferson, governor of the State,
and, in that capacity, visitor of the college. The chair of divinity had
just been abolished, and one of law and police, and another of medicine,
were substituted. On December 29, 1779, the faculty voted that, “for the
encouragement of science, a student, on paying annually 1000 pounds of
tobacco, shall be entitled to attend any school of the following
professors, viz.: of Law and Police; of Natural Philosophy and
Mathematics,” etc. Marshall chose the two courses above named; he must
have been one of the very first to avail himself of this new privilege.
He remained only one term. In view of what was to happen by and by, it
is interesting to observe that this opportunity for education in law
came through the agency of Thomas Jefferson.
The records of the Phi Beta Kappa Society at William and Mary College,
where that now famous society had originated less than a year and a half
before, show that on the 18th of May, 1780, “Captain John Marshall,
being recommended as a gentleman who would make a worthy member of the
society, was balloted for and received;” and three days later he was
appointed, with others, “to declaim the question whether any form of
government is more favorable to public virtue than a Commonwealth.”
Bushrod Washington and other well-known names are found among his
associates in this chapter, which has been well called “an admirable
nursery of patriots and statesmen.”
It was in the summer of 1780 that Marshall was licensed to practice law.
During this visit to Virginia, as I have said, he met the beautiful
little lady, fourteen years old, who became his wife at the age of
sixteen, was to be the mother of his ten children,[7] and was to receive
from him the most entire devotion until the day of her death in 1831.
Some letters of her older sister, Mrs. Carrington, written to another
sister, have lately been printed, which give us a glimpse of Captain
Marshall in his twenty-fifth year. These ladies were the daughters of
Jaquelin Ambler, formerly collector of customs at Yorktown, and then
treasurer of the colony, and living in that town, next door to the
family of Colonel Marshall. Their mother was that Rebecca Burwell, for
whom, under the name of “Belinda,” Jefferson had languished, in his
youthful correspondence of some twenty years before. The girls had often
heard the captain’s letters to his family, and had the highest
expectations when they learned that he was coming home from the war.
They were to meet him first at a ball, and were contending for the prize
beforehand. Mary, the youngest, carried it off. “At the first
introduction,” writes her sister, who was but one year older, “he
became devoted to her.” “For my own part,” she adds, “I felt not the
smallest wish to contest the prize with her…. She, with a glance,
divined his character, … while I, expecting an Adonis, lost all desire
of becoming agreeable in his eyes when I beheld his awkward, unpolished
manner and total negligence of person.” “How trivial now seem all such
objections!” she exclaims, writing in 1810, and going on to speak with
the utmost admiration of his relations to herself and all her family,
and above all, to his wife. “His exemplary tenderness to our unfortunate
sister is without parallel. With a delicacy of frame and feeling that
baffles all description, she became, early after her marriage, a prey to
extreme nervous affection, which, more or less, has embittered her
comfort through her whole life; but this has only seemed to increase his
care and tenderness, and he is, as you know, as entirely devoted as at
the moment of their first being married. Always and under every
circumstance an enthusiast in love, I have very lately heard him
declare that he looked with astonishment at the present race of lovers,
so totally unlike what he had been himself. His never-failing
cheerfulness and good humor are a perpetual source of delight to all
connected with him, and, I have not a doubt, have been the means of
prolonging the life of her he is so tenderly devoted to.”
“He was her devoted lover to the very end of her life,” another member
of his family connection has said. And Judge Story, in speaking of him
after his wife’s death, described him as “the most extraordinary man I
ever saw for the depth and tenderness of his feelings.”
A little touch of his manner to his wife is seen in a letter, which is
in print, written to her from the city of Washington, on February 23,
1825, in his seventieth year. He had received an injury to his knee,
about which Mrs. Marshall was anxious. “I shall be out,” he writes, “in
a few days. All the ladies of the secretaries have been to see me, some
more than once, and have brought me more jelly than I could eat, and
many other things. I thank them, and stick to my barley broth. Still I
have lots of time on my hands. How do you think I beguile it? I am
almost tempted to leave you to guess, until I write again. You must know
that I begin with the ball at York, our splendid assembly at the Palace
in Williamsburg, my visit to Richmond for a fortnight, my return to the
field, and the very welcome reception you gave me on my arrival at
Dover, our little tiffs and makings-up, my feelings when Major Dick[8]
was courting you, my trip to the Cottage [the Ambler home in Hanover
County, where the marriage took place],[9]–the thousand little
incidents, deeply affecting, in turn.”
This “ball at York” was the one of which Mrs. Carrington wrote; and of
the “assembly at the Palace” she also gave an account, remarking that
“Marshall was devoted to my sister.”
Miss Martineau, who saw him the year before he died, speaks with great
emphasis of what she calls his “reverence” and his affectionate respect
for women. There were many signs of this all through his life. Even in
the grave and too monotonous course of his “Life of Washington,” one
comes now and then upon a little gleam of this sort, that lights up the
page; as when he speaks of Washington’s engagement to Mrs. Custis, a
lady “who to a large fortune and a fine person added those amiable
accomplishments which … fill with silent but unceasing felicity the
quiet scenes of private life.” When he is returning from France, in
1798, he writes gayly back from Bordeaux to the Secretary of Legation at
Paris: “Present me to my friends in Paris; and have the goodness to say
to Madame Vilette, in my name and in the handsomest manner, everything
which respectful friendship can dictate. When you have done that, you
will have rendered not quite half justice to my sentiments.” “He was a
man,” said Judge Story, “of deep sensibility and tenderness; …
whatever may be his fame in the eyes of the world, that which, in a just
sense, was his brightest glory was the purity, affectionateness,
liberality, and devotedness of his domestic life.”
Marshall left the army in 1781, when most of the fighting in Virginia
was over; and began practice in Fauquier County when the courts were
opened, after Cornwallis’s surrender, in October of that year.
Among his neighbors he was always a favorite. In the spring of 1782 he
was elected to the Assembly, and in the autumn to the important office
of member of the “Privy Council, or Council of State,” consisting of
eight persons chosen by joint ballot of the two houses of the Assembly.
“Young Mr. Marshall,” wrote Edmund Pendleton, presiding judge of the
Court of Appeals, to Madison, in November of that year, “is elected a
councilor…. He is clever, but I think too young for that department,
which he should rather have earned, as a retirement and reward, by ten
or twelve years of hard service.” But, whether young or old, the people
were forever forcing him into public life. Eight times he was sent to
the Assembly; in 1788 to the Federal Convention of Virginia, and in 1798
to Congress.
Unwelcome as it was to him, almost always, to have his brilliant and
congenial place and prospects at the bar thus interfered with, we can
see now what an admirable preparation all this was for the great
station, which, a little later, to the endless benefit of his country,
he was destined to fill. What drove him into office so often was, in a
great degree, that delightful and remarkable combination of qualities
which made everybody love and trust him, even his political adversaries,
so that he could be chosen when no one else of his party was available.
In this way, happily for his country, he was led to consider, early and
deeply, those difficult problems of government that distressed the
country in the dark period after the close of the war, and during the
first dozen years of the Federal Constitution.
As regards the effect of his earlier experience in enlarging the circle
of a patriot’s thoughts and affections, he himself has said: “I am
disposed to ascribe my devotion to the Union, and to a government
competent to its preservation, at least as much to casual circumstances
as to judgment. I had grown up at a time … when the maxim, ‘United we
stand, divided we fall,’ was the maxim of every orthodox American; and I
had imbibed these sentiments so thoroughly that they constituted a part
of my being. I carried them with me into the army, where I found myself
associated with brave men from different States who were risking life
and everything valuable in a common cause; … and where I was confirmed
in the habit of considering America as my country and Congress as my
government.” It was this confirmed “habit of considering America as my
country,” communicated by him to his countrymen, which enabled them to
carry through the great struggle of forty years ago, and to save for us
all, North and South, the inestimable treasure of the Union.
After Marshall’s marriage, in January, 1783, he made Richmond his home
for the rest of his life. It was still a little town, but it had lately
become the capital of the State, and the strongest men at the bar
gradually gathered there. Marshall met them all. One has only to look at
the law reports of Call and Washington to see the place that he won. He
is found in most of the important cases. In his time no man’s name
occurs oftener, probably none so often.
The earliest case in which the printed reports show his name is that of
Hite _v._ Fairfax (4 Call’s Reports, 42), in May, 1786, and his argument
seems to be fully reported. It was a very important case, and Marshall
represented tenants of Lord Fairfax. There were conflicting grants on
the famous “Northern Neck” of Virginia, an extensive region given by the
crown to Lord Fairfax’s ancestor, whose boundaries had been in dispute.
It comprised the land between the Potomac and the Rappahannock, “within
the heads of the rivers … the courses of the said rivers, as they are
commonly called or known by the inhabitants and descriptions of those
parts, and Chesapeake Bay, together with the rivers themselves and all
the islands within the banks of the rivers.” This description was
finally admitted by the crown (in 1745) to include all the land between
the head springs of the Potomac and those of the south branch of the
Rappahannock. Bishop Meade[10] describes it as the region which,
beginning on the Chesapeake Bay, lies between the Potomac and
Rappahannock rivers, and crossing the Blue Ridge, or passing through it
with the Potomac at Harper’s Ferry, extends with that river to the heads
thereof in the Alleghany Mountains, and thence by a straight line
crosses the North Mountain and Blue Ridge at the headwaters of the
Rappahannock, … “the most fertile part of Virginia.”
Marshall had now to meet a total denial of Lord Fairfax’s title. His
argument of ten or twelve pages shows already the characteristics, the
cogency, clear method, and neat precision of thought and speech, by
which his later work was marked. “I had conceived,” he says, “that it
was not more certain that there was such a tract of country as the
Northern Neck than that Lord Fairfax was the proprietor of it….
Gentlemen cannot suppose that a grant made by the crown to the ancestor
for services rendered or even for affection can be invalidated in the
hands of an heir because these services and affections are forgotten, or
because the thing granted has, from causes which must have been
foreseen, become more valuable than when it was given. And if it could
not be invalidated in the hands of the heir, much less can it be in the
hands of the purchaser.” As regards the construction of the grant:
“Whether Lord Fairfax’s grant extended originally beyond the forks of
the rivers or not, will no more admit of argument than it ever could
have admitted of a doubt. But whether it should be bounded by the north
or south fork of the Rappahannock was a question involved in more
uncertainty…. It is, however, no longer a question, for it has been
decided…. That decision did not create or extend Lord Fairfax’s
right, but determined what the right originally was. The bounds of many
patents are doubtful; the extent of many titles uncertain: but when a
decision is once made on them, it removes the doubt and ascertains what
the original boundaries were.” In reference to a personal appeal in
behalf of certain settlers, he says, “Those who explore and settle new
countries are generally bold, hardy, and adventurous men, whose minds as
well as bodies are fitted to encounter danger and fatigue; their object
is the acquisition of property, and they generally succeed. None will
say that the complainants have failed; and if their hardships and
dangers have any weight in the court, the defendants share in them, and
have equal claim to countenance; for they, too, with humbler views and
less extensive prospects, have explored, bled for, and settled a till
then uncultivated desert.”
Compare with this the like simple felicity and exactness of expression
in his last reported utterance in court, when he was closing his great
career as Chief Justice of the United States, forty-nine years later.
He is refusing a motion for delay: “The court has taken into its serious
and anxious consideration the motion made on the part of the government
to continue the cause of Mitchel _v._ The United States to the next
term. Though the hope of deciding causes to the mutual satisfaction of
parties would be chimerical, that of convincing them that the case has
been fully and fairly considered, that due attention has been given to
the arguments of counsel, and that the best judgment of the court has
been exercised on the case, may be sometimes indulged. Even this is not
always attainable. In the excitement produced by ardent controversy,
gentlemen view the same object through such different media that minds
not unfrequently receive therefrom precisely opposite impressions. The
court, however, must see with its own eyes, and exercise its own
judgment guided by its own reason…. The opinion of the court will be
delivered.”[11]
At first, he had brought from the army, and from his home on the
frontier, simple and rustic ways which surprised some persons at
Richmond, whose conception of greatness was associated with very
different models of dress and behavior. “He was one morning strolling,”
we are told, “through the streets of Richmond, attired in a plain linen
roundabout and shorts, with his hat under his arm, from which he was
eating cherries, when he stopped in the porch of the Eagle Hotel,
indulged in a little pleasantry with the landlord, and then passed on.”
A gentleman from the country was present, who had a case coming on
before the Court of Appeals, and was referred by the landlord to
Marshall as the best lawyer to employ. But “the careless, languid air”
of Marshall had so prejudiced the man that he refused to employ him. The
clerk, when this client entered the court-room, also recommended
Marshall, but the other would have none of him. A venerable-looking
lawyer, with powdered wig and in black cloth, soon entered, and the
gentleman engaged him. In the first case that came up, this man and
Marshall spoke on opposite sides. The gentleman listened, saw his
mistake, and secured Marshall: at once; frankly telling him the whole
story, and adding that while he had come with one hundred dollars to pay
his lawyer, he had but five dollars left. Marshall good-naturedly took
this, and helped in the case. In the Virginia Federal Convention of
1788, at the age of thirty-three, he is described, rising after Monroe
had spoken, as “a tall young man, slovenly dressed in loose summer
apparel…. His manners, like those of Monroe, were in strange contrast
with those of Edmund Randolph or of Grayson.”
In such stories as these, one is reminded, as he is often reminded, of a
resemblance between Marshall and Lincoln. Very different men they were,
but both thorough Americans, with unborrowed character and manners, and
a lifelong flavor derived from no other soil.
At the height of Marshall’s reputation, in 1797, a French writer, who
had visited Richmond lately, in speaking of Edmund Randolph, says, “He
has a great practice, and stands, in that respect, nearly on a par with
Mr. J. Marshall, the most esteemed and celebrated counselor of this
town.” He mentions Marshall’s annual income as being four or five
thousand dollars. “Even by his friends,” it is added, “he is taxed with
some little propensity to indolence, but he nevertheless displays great
superiority when he applies his mind to business.” Another contemporary,
who praises his force and eloquence in speaking, yet says: “It is
difficult to rouse his faculties. He begins with reluctance, hesitation,
and vacancy of eye…. He reminds one of some great bird, which
flounders on the earth for a while before it acquires impetus to sustain
its soaring flight.” And finally, William Wirt, who was seventeen years
Marshall’s junior, and came to the bar in 1792, when Marshall was nearly
at the head of it, writing anonymously in 1804, describes him as one,
“who, without the advantage of person, voice, attitude, gesture, or any
of the ornaments of an orator, deserves to be considered as one of the
most eloquent men in the world.” He attributes to him “one original and
almost supernatural faculty, … of developing a subject by a single
glance of his mind…. 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…. All his eloquence
consists in the apparently deep self-conviction and the emphatic
earnestness and energy of his style, the close and logical connection of
his thoughts, and the easy gradations by which he opens his lights on
the attentive minds of his hearers.”
In 1789 he declined the office of District Attorney of the United States
at Richmond,[12] in 1795 that of Attorney-General of the United States,
and in 1796 that of Minister to France, all offered him by Washington.
When President Adams persuaded him, in 1797, to go, with Pinckney and
Gerry, as envoy to France, he wrote to Gerry of “General Marshall” (as
he was then called, from his rank of brigadier general, since 1793, in
the Virginia militia), “He is a plain man, very sensible, cautious,
guarded, and learned in the law of nations.” The extraordinary details
of that unsuccessful six months’ attempt to come to terms with France
are found in Marshall’s very able dispatches and in the diary which he
kept;[13] for, with the instinct of a man of affairs, he failed not to
remember, with Thomas Gray, that “a note is worth a cartload of
recollections.” His own part in the business was marked by great
moderation and ability; and on his return, in 1798, he was received at
Philadelphia with remarkable demonstrations and the utmost enthusiasm. A
correspondent of Rufus King, writing from New York in July of that year,
says, “No two men can be more beloved and honored than Pinckney and
Marshall;” and again in November: “Saving General Washington, I believe
the President, Pinckney, and Marshall are the most popular characters
now in our country. There is a certain something in the correspondence
of Pinckney and Marshall … that has united all heads and hearts in
their eulogy.” It is understood that the American side of this
correspondence was by Marshall. Gerry had allowed himself in a measure
to be detached by the Directory from his associates, to their great
displeasure. With them, in important respects, he disagreed.
Among those who paid their respects to Marshall, on his return from
France, was Thomas Jefferson, the Vice-President, whose correspondence
shows him at the time expressing the most unflattering opinion of the
envoys. Jefferson wrote to Marshall the following note: “In after
years,” says Mrs. Hardy, one of Marshall’s descendants,[14] “the Chief
Justice frequently laughed over it, saying, ‘Mr. Jefferson came very
near telling me the truth; the added _un_ to _lucky_, policy alone
demanded.’” The note ran thus: “Thos. Jefferson presents his
compliments to General Marshall. He had the honor of calling at his
lodgings twice this morning, but was so {un}^lucky as to find that he
was out on both occasions. He wished to have expressed in person his
regret that a pre-engagement for to-day, which could not be dispensed
with, would prevent him the satisfaction of dining in company with
Genl-Marshall, and, therefore, begs leave to place here the expressions
of that respect which in company with his fellow-citizens he bears him.
“Genl. Marshall,
at Oeller’s Hotel, June 23d, 1798.”
In 1798 Adams offered to Marshall the seat on the Supreme Bench, made
vacant by the death of James Wilson. He declined it; and it went to his
old associate at William and Mary College, Bushrod Washington. Marshall
did yield, however, to General Washington’s urgent request to stand for
Congress that year. He held out long against Washington’s arguments, and
only yielded, at last, when that venerated man called attention to his
own recent sacrifice in accepting the unwelcome place of
lieutenant-general of the army. When that went into the scale it was
too much. Marshall was then on a visit to Mount Vernon, whither he had
been invited in August or September, in company with Washington’s
nephew, the coming judge.
On their way to Mount Vernon, the two travelers met with a misadventure
which gave great amusement to Washington, and of which he enjoyed
telling his friends. They came on horseback, and carried but one pair of
saddlebags, each using one side. Arriving thoroughly drenched by rain,
they were shown to a chamber to change their garments. One opened his
side of the bags and drew forth a black bottle of whiskey. He insisted
that he had opened his companion’s repository. Unlocking the other side,
they found a big twist of tobacco, some corn bread, and the equipment of
a pack-saddle. They had exchanged saddlebags with some traveler, and now
had to appear in a ludicrous misfit of borrowed clothes.[15]
The election of Marshall to Congress excited great interest.[16]
Washington heartily rejoiced in it. Jefferson, on the other hand,
remarked that while Marshall might trouble the Republicans somewhat, yet
he would now be unmasked. He had been popular with the mass of the
people, Jefferson said, from his “lax, lounging manners,” and with wiser
men through a “profound hypocrisy.” But now his British principles would
stand revealed.
The New England Federalists were very curious about him; they had been
alarmed and outraged, during the campaign, by his expressing opposition
to the alien and sedition laws; but they were much impressed by him.
Theodore Sedgwick wrote to Rufus King that he had “great powers, and
much dexterity in the application of them…. We can do nothing without
him.” But Sedgwick wished that “his education had been on the other side
of the Delaware.” George Cabot wrote to King: “General Marshall is a
leader…. But you see in him the faults of a Virginian…. He thinks
too much of that State, and he expects that the world will be governed
by rules of logic.” But Cabot hopes to see him improve, and adds, “He
seems calculated to act a great part.” In the end, the Northern
Federalists were disappointed in finding him too moderate. He held the
place of leader of the House, and passed into the cabinet in May, 1800.
On January 31, 1801, he was commissioned as Chief Justice.
There is little room for quotations from Marshall’s speeches or
dispatches.
Some reference has already been made to his earliest reported argument
in court, in 1786. In the Virginia Federal Convention, in 1788,
Marshall’s principal speeches related to the subjects of taxation, the
militia, and the judiciary. These, so far as preserved, are found in the
third volume of Elliot’s Debates, and in Dr. Grigsby’s very interesting
History of that Convention, in the tenth volume of the “Virginia
Historical Collections.” Nothing remains of a famous speech in support
of Jay’s treaty, at a public meeting in Richmond in 1795. A summary of
his strong but unsuccessful argument in 1796, in the case of Ware _v_.
Hylton (3 Dallas 199), as to the claims of British creditors, his only
case before the Supreme Court of the United States, is preserved in the
volume of reports. This argument attracted much attention among the
statesmen at Philadelphia. “I then became acquainted,” he wrote to a
friend, “with Mr. Cabot, Mr. Ames, Mr. Dexter, and Mr. Sedgwick of
Massachusetts, Mr. Wadsworth of Connecticut, and Mr. King of New
York…. I was particularly intimate with Mr. Ames.”
After Washington’s death in 1799, Marshall, in a short and well-known
speech, moved the resolution of the House of Representatives.
A little afterwards he made a great and admirably thorough address in a
matter which then deeply affected the public mind; from this, his
greatest public speech,[17] a quotation is given below. It was made
March 4, 1800, in defense of the President’s action in the case of
Thomas Nash, _alias_ Jonathan Robbins. This person, a British subject,
but claiming to be an American citizen, and to have been impressed into
the British navy, was charged with piracy and murder on board a British
ship of war in 1791. Being found in Charleston, S. C., he was arrested
in 1799, at the instance of the British consul, and held to await an
application for his extradition under article 27 of the treaty with
Great Britain of 1795. That article bound the two countries reciprocally
to deliver up, on request of the other, persons charged with murder
committed within the jurisdiction of that other. Evidence of criminality
was first to be furnished, such as would justify commitment for trial on
the same charge in the country where the accused was found.
An application for extradition was made to the federal authorities in
Charleston, but at their suggestion this was transferred to the
President, through the Secretary of State. The Secretary informed Bee,
the United States District Judge, of the President’s “advice and
request” that Nash should be delivered up, at the same time referring to
the clause in the treaty as to the necessary evidence of
criminality.[18] The judge on July 1, 1799, informed the Secretary that
he had notified the British consul that on the production of such
evidence, the prisoner would be delivered up when the consul was ready
to receive him. The delivery was made; and on September 9 of the same
year, the British admiral was able to inform the British Minister that
Nash “has been tried at a court martial, and sentenced to suffer death,
and afterwards hung in chains; which sentence has been put into
execution.”
These events were used with great effect by the political opponents of
the administration. When Congress met, the President was called upon by
the House of Representatives for the papers relating to them; and when
they were sent in, Edward Livingston, of New York, submitted resolutions
condemning the action of the executive, on the ground that the
determination of the questions involved in the case “are all matters
exclusively for judicial inquiry;” that the acts of the President “are a
dangerous interference of the executive with judicial decisions;” and
that the compliance of the district judge “is a sacrifice of the
constitutional independence of the judicial power.” After a full debate,
these resolutions were negatived by a decided vote. Marshall’s very able
argument vindicated the action taken, and laid down principles which
have ever since governed the course of the government in such cases.
The following passages will afford a specimen of the style and method of
this address, a style and method which were characteristic of all
Marshall’s work:–
“The same argument applies to the observations on the seventh article of
the amendment to the Constitution. That article relates only to trials
in the courts of the United States, and not to the performance of a
contract for the delivery of a murderer not triable in those courts.
“In this part of the argument, the gentleman from New York [Mr.
Livingston] has presented a dilemma, of a very wonderful structure
indeed. He says that the offense of Thomas Nash was either a crime or
not a crime. If it was a crime, the constitutional mode of punishment
ought to have been observed; if it was not a crime, he ought not to have
been delivered up to a foreign government, where his punishment was
inevitable.
“It has escaped the observation of that gentleman that if the murder
committed by Thomas Nash was a crime, yet it was not a crime provided
for by the Constitution or triable in the courts of the United States;
and that if it was not a crime, yet it is the precise case in which his
surrender was stipulated by treaty. Of this extraordinary dilemma, the
gentleman from New York is himself perfectly at liberty to retain either
form.
“He has chosen to consider it as a crime, and says it has been made a
crime by treaty, and is punished by sending the offender out of the
country. The gentleman is incorrect in every part of his statement.
Murder on board a British frigate is not a crime created by treaty. It
would have been a crime of precisely the same magnitude had the treaty
never been formed. It is not punished by sending the offender out of the
United States. The experience of the unfortunate criminal, who was hung
and gibbeted, evinced to him that the punishment of his crime was of a
much more serious nature than mere banishment from the United States.
“The gentleman from Pennsylvania [Mr. Gallatin] and the gentleman from
Virginia [Mr. Nicholas] have both contended that this was a case proper
for the decision of the courts, because points of law occurred, and
points of law must have been decided in its determination. The points of
law which must have been decided are stated by the gentleman from
Pennsylvania to be, first, a question whether the offense was committed
within the British jurisdiction; and, secondly, whether the crime
charged was comprehended within the treaty.
“It is true, sir, these points of law must have occurred, and must have
been decided, but it by no means follows that they could only have been
decided in court. A variety of legal questions must present themselves
in the performance of every executive duty, but these questions are not
therefore to be decided in court. Whether a patent for land shall issue
or not is always a question of law, but not a question which must
necessarily be carried into court. The gentleman from Pennsylvania seems
to have permitted himself to have been misled by the misrepresentations
of the Constitution made in the resolutions of the gentleman from New
York; and, in consequence of being so misled, his observations have the
appearance of endeavoring to fit the Constitution to his arguments,
instead of adapting his arguments to the Constitution.
“When the gentleman has proved that these are questions of law, and that
they must have been decided by the President, he has not advanced a
single step towards proving that they were improper for executive
decision. The question whether vessels captured within three miles of
the American coast, or by privateers fitted out in the American ports,
were legally captured or not, and whether the American government is
bound to restore them, if in its power, were questions of law, but they
were questions of political law, proper to be decided, and they were
decided by the executive, and not by the courts. The _casus fœderis_ of
the guaranty was a question of law, but no man could have hazarded the
opinion that such a question must be carried into court, and can only be
there decided. So the _casus fœderis_, under the twenty-seventh article
of the treaty with Britain, is a question of law, but of political law.
The question to be decided is, whether the particular case proposed be
one in which the nation has bound itself to act, and this is a question
depending on principles never submitted to courts. If murder should be
committed within the United States, and the murderer should seek an
asylum in Britain, the question whether the _casus fœderis_, of the
twenty-seventh article had occurred, so that his delivery ought to be
demanded, would be a question of law, but no man would say it was a
question which ought to be decided in the courts.
“When, therefore, the gentleman from Pennsylvania has established that,
in delivering up Thomas Nash, points of law were decided by the
President, he has established a position which in no degree whatever
aids his argument. The case is in its nature a national demand, made
upon the nation. The parties are the two nations. They cannot come into
court to litigate their claims, nor can a court decide on them. Of
consequence, the demand is not a case for judicial cognizance. The
President is the sole organ of the nation in its external relations, and
its sole representative with foreign nations. Of consequence, the demand
of a foreign nation can only be made on him….
“The treaty, which is a law, enjoins the performance of a particular
object. The person who is to perform this object is marked out by the
Constitution, since the person is named who conducts the foreign
intercourse and is to take care that the laws be faithfully executed.
The means by which it is to be performed, the force of the nation, are
in the hands of this person. Ought not this person to perform the
object, although the particular mode of using the means has not been
prescribed? Congress, unquestionably, may prescribe the mode, and
Congress may devolve on others the whole execution of the contract; but,
till this is done, it seems the duty of the executive department to
execute the contract by any means it possesses.
“The gentleman from Pennsylvania contends that, although this should be
properly an executive duty, yet it cannot be performed until Congress
shall direct the mode of performance…. The treaty stipulating that a
murderer shall be delivered up to justice is as obligatory as an act of
Congress making the same declaration. If, then, there was an act of
Congress in the words of the treaty, declaring that a person who had
committed murder within the jurisdiction of Britain, and sought an
asylum within the territory of the United States, should be delivered up
by the United States, on the demand of his Britannic Majesty and such
evidence of his criminality as would have justified his commitment for
trial, had the offense been committed here; could the President, who is
bound to execute the laws, have justified the refusal to deliver up the
criminal by saying that the legislature had totally omitted to provide
for the case?
“The executive is not only the constitutional department, but seems to
be the proper department to which the power in question may most wisely
and most safely be confided…. If, at any time, policy may temper the
strict execution of the contract, where may that political discretion be
placed so safely as in the department whose duty it is to understand
precisely the state of the political intercourse and connection between
the United States and foreign nations, to understand the manner in
which the particular stipulation is explained and performed by foreign
nations, and to understand completely the state of the Union?”
This clear, strong, convincing speech, of which I have quoted but a
small portion, settled the question then in dispute, and the principles
here laid down have controlled the action of the government ever since.
* * * * *
Very soon after entering upon his duties as Chief Justice, Marshall
undertook to write the “Life of Washington.” This gave him a great deal
of trouble and mortification. It proved to be an immense labor; the
publishers were importunate, and he was driven into print before he was
ready. The result was a work in five volumes, appearing from 1802 to
1804, full of the most valuable and authentic material, well repaying
perusal, yet put together with singular lack of literary skill, and in
many ways a great disappointment.[19] In the later years of his life,
he revised it, corrected some errors, shortened it, and published it in
three volumes: one of them, in 1824, as a separate preliminary history
of the colonial period, and the other two, in 1834, as the “Life of
Washington.” This work, in its original form, gave great offense to
Jefferson, written, as it was, from the point of view of a constant
admirer and supporter of the policy of Washington; a “five volume
libel,” Jefferson called it.
Jefferson had ludicrous misconceptions as to Marshall’s real character.
It is said that after Burr’s trial, in 1807, all personal intercourse
between them ceased.[20] Referring in 1810 to the “batture” case, in
which Edward Livingston sued him, and which was to come before Marshall,
Jefferson says that he is certain what the result of the case should be,
but nobody can tell what it will be; for “the Judge’s mind [is] of that
gloomy malignity which will never let him forego the opportunity of
satiating it upon a victim…. And to whom is my appeal? From the judge
in Burr’s case to himself and his associate justices in Marbury v.
Madison. Not exactly, however. I observe old Cushing is dead. [Judge
Cushing had died a fortnight before.] At length, then, we have a chance
of getting a Republican majority in the Supreme Judiciary.” And he goes
on to express his confidence in the “appointment of a decided
Republican, with nothing equivocal about him.”
Who was this decided and unequivocal Republican to be? Jefferson was
anxious about it, and wrote to Madison, suggesting Judge Tyler, of
Virginia, as a candidate, and reminding the President of Marshall’s
“rancorous hostility to his country.” Who was it, in fact, that was
appointed? Who but Joseph Story!–a Republican, indeed, but one whom
Jefferson, in this very year, was designating as a “pseudo-Republican,”
and who soon became Marshall’s warmest admirer and most faithful
supporter.
Marshall’s accession to the bench was marked by an impressive
circumstance. For ten years or more, he alone gave all the opinions of
the court to which any name was attached, except where the case came up
from his own circuit, or, for any reason, he did not sit. In the very
few cases where opinions were given by the other justices, it was in the
old way, _seriatim_,–the method followed before Marshall came in, as it
was also the method of contemporary English courts.
Whatever may have been the purpose of the Chief Justice in introducing
this usage, there can be no doubt as to the impression it was calculated
to produce. It seemed, all of a sudden, to give to the judicial
department a unity like that of the executive, to concentrate the whole
force of that department in its chief, and to reduce the side-justices
to a sort of cabinet advisers. In the very few early cases where there
was expressed dissent, it lost much of its impressiveness, when
announced, as it sometimes was, by the mouth that gave the opinion of
the court.
In 1812, when a change took place, the court had been for a year without
a quorum. Moreover, Judge Story had just come to the bench, a man of
quite too exuberant an intellect and temperament to work well as a
silent side-judge. We remark, also, at the beginning of that term, that
the Chief Justice was not in attendance, having, as the reporter tells
us, “received an injury by the oversetting of the stage-coach on his
journey from Richmond.” And it may be added that just at this time the
anxious prayer of Jefferson was answered, and a majority of the judges
were Republicans. From whatever cause, henceforward there was a change;
and without returning to the old habit of _seriatim_ opinions, the
side-judges had their turn, as they do now.
In most of Marshall’s opinions, one observes the style and special touch
of a thoughtful and original mind; in some of them the powers of a great
mind, in full activity. His cases relating to international law, as I am
assured by those competent to judge, rank with the best there are in the
books. As regards most of the more familiar titles of the law, it would
be too much to claim for him the very first rank. In that region he is,
in many respects, equaled or surpassed by men more deeply versed in the
learning and technicalities of the law, in what constitutes that
“artificial perfection of reason” which Coke used to glorify as far
transcending any man’s natural reason,–men such as Story, Kent, or
Shaw, or even the reformer, Mansfield, whom he greatly admired, Eldon,
or Blackburn. But in the field of constitutional law, a region not open
to an English lawyer,–and especially in one department of it, that
relating to the nature and scope of the National Constitution, he was
preëminent,–first, with no one second. It is hardly possible, as
regards this part of the law, to say too much of the service he rendered
to his country. Sitting in the highest judicial place for more than a
generation; familiar, from the beginning, with the Federal Constitution,
with the purposes of its framers, and with all the objections of its
critics; accustomed to meet these objections from the time he had served
in the Virginia Convention of 1788; convinced of the purpose and
capacity of this instrument to create a strong nation, competent to make
itself respected at home and abroad, and able to speak with the voice
and strike with the strength of all; assured that this was the paramount
necessity of the country, and that the great source of danger was in the
jealousies and adverse interests of the States,–Marshall acted on his
convictions. He determined to give full effect to all the affirmative
contributions of power that went to make up a great and efficient
national government; and fully, also, to enforce the national
restraints and prohibitions upon the States. In both cases he included
not only the powers expressed in the Constitution, but those also which
should be found, as time unfolded, to be fairly and clearly implied in
the objects for which the federal government was established. In that
long judicial life, with which Providence blessed him, and blessed his
country, he was able to lay down, in a succession of cases, the
fundamental considerations which fix and govern the relative functions
of the nation and the States, so plainly, with such fullness, with such
simplicity and strength of argument, such a candid allowance for all
that was to be said upon the other side, in a tone so removed from
controversial bitterness, so natural and fit for a great man addressing
the “serene reason” of mankind, as to commend these things to the minds
of his countrymen, and firmly to fix them in the jurisprudence of the
nation; so that “when the rain descended and the floods came, and the
winds blew and beat upon that house, it fell not, because it was founded
upon a rock.” It was Marshall’s strong constitutional doctrine,
explained in detail, elaborated, powerfully argued, over and over again,
with unsurpassable earnestness and force, placed permanently in our
judicial records, holding its own during the long emergence of a feebler
political theory, and showing itself in all its majesty when war and
civil dissension came,–it was largely this that saved the country from
succumbing, in the great struggle of forty years ago, and kept our
political fabric from going to pieces.
I do not forget our own Webster, or others, in saying that to Marshall
(if we may use his own phrase about Washington), “more than to any other
individual, and as much as to one individual was possible,” do we owe
that prevalence of sound constitutional opinion and doctrine at the
North that held the Union together; to that combination in him, of a
great statesman’s sagacity, a great lawyer’s lucid exposition and
persuasive reasoning, a great man’s candor and breadth of view, and that
judicial authority on the bench, allowed naturally and as of right, to
a large, sweet nature, which all men loved and trusted, capable of
harmonizing differences and securing the largest possible amount of
coöperation among discordant associates. In a very great degree, it was
Marshall, and these things in him, that have wrought out for us a strong
and great nation, one which men can love and die for; that “mother of a
mighty race,” that stirred the soul of Bryant half a century ago, as he
dreamed how–
“The thronging years in glory rise,
And as they fleet,
Drop strength and riches at thy feet;”
the nation whose image flamed in the heart of Lowell, a generation
since, as he greeted her coming up out of the Valley of the Shadow of
Death:–
“Oh Beautiful, my country, ours once more!…
Among the nations bright beyond compare!…
What were our lives without thee?
What all our lives to save thee?
We reck not what we gave thee,
We will not dare to doubt thee,
But ask whatever else, and we will dare!”
It was early in Marshall’s day that the Supreme Court first took the
grave step of disregarding an act of Congress,–a coördinate
department,–which conflicted with the National Constitution. The right
to deal thus with their legislatures had already been asserted in the
States, and once or twice it had really been exercised. Had the question
related to a conflict between that Constitution and the enactment of a
State, it would have been a simpler matter. These two questions, under
European written constitutions, are regarded as different ones. It is
almost necessary to the working of a federal system that the general
government, and each of its departments, should be free to disregard
acts of any department of the local states which may be inconsistent
with the federal constitution. And so in Switzerland and Germany the
federal courts thus treat local enactments. But there is not under any
written constitution in Europe a country where a court deals in this way
with the act of its coördinate legislature. In Germany, at one time,
this was done, under the influence of a study of our law, but it was
soon abandoned.[21]
In the colonial period, while we were dependencies of Great Britain, our
legislation was subject to the terms of the royal charters. Enactments
were often disallowed by the English Privy Council, sometimes acting as
mere revisers of the colonial legislation, and sometimes as appellate
judicial tribunals. Our people were, in this way, familiar with the
theory of a dependent legislature, one whose action was subject to
reversal by judicial authority, as contrary to the terms of a written
charter of government.
When, therefore, after the war of independence, our new sovereign,
namely, ourselves, the people, came to substitute for the old royal
charters the people’s charters, what we call our “constitutions,”–it
was natural to expect some legal restraint upon legislation. It was not
always found in terms; indeed, it was at first hardly ever, if at all,
found set down in words. But it was a natural and just interpretation
of these instruments, made in regions with such a history as ours and
growing out of the midst of such ideas and such an experience, to think
that courts, in the regular exercise of their functions, that is to say,
in dealing with litigated cases, could treat the constitutions as law to
be applied by them in determining the validity of legislation.
But this, although, as we may well think, a sound conclusion, was not a
necessary one; and it was long denied by able statesmen, judges, and
lawyers. An elaborate and powerful dissenting opinion by Chief Justice
Gibson, of Pennsylvania, containing the most searching argument on the
subject with which I am acquainted, given in 1825,[22] reaches the
result that under no constitution where the power to set aside
legislative enactments is not expressly given, does it exist. But it is
recognized that in the Federal Constitution the power is given, as
regards legislation of the States inconsistent with the Federal
Constitution and laws.
It is not always noticed that in making our Federal Constitution, there
was an avoidance of any explicit declaration of such a power as touching
federal legislation, while it was carefully provided for as regards the
States. In the Federal Convention, there was great anxiety to control
the States, in certain particulars; and various plans were put forward,
such as that Congress should have a negative on state laws, and that
governors of the States should be appointed by the federal authority,
with power to negative state acts.
But all these, at last, were rejected, and the matter took the shape of
a provision that the Constitution and the constitutional laws and
treaties of the United States should be the supreme law of _the
respective States_; and the judges of _the several States_ should be
bound thereby, anything in the constitution or laws of any State to the
contrary notwithstanding. Later, the Committee on Style changed the
phrase “law of the respective States” to “law of the land.” But the
language, as to binding the judges, was still limited to the judges of
the several States. Observe, then, the scope of this provision: it was
to secure the authority of the federal system within the States.
As to any method of protecting the federal system within its own
household, that is to say, as against Congress, it was proposed in the
convention, for one thing, that each House of Congress might call upon
the judges for opinions; and, again, it was urged, and that repeatedly
and with great persistence, that the judges should be joined with the
executive in passing on the approval or disapproval of legislative
acts,–in what we call the veto power. It was explicitly said, in
objecting to this, that the judges would have the right to disregard
unconstitutional laws anyway,–an opinion put forward by some of the
weightiest members. Yet some denied it. And we observe that the power
was not expressly given. When we find such a power expressly denied, and
yet not expressly given; and when we observe, for example, that leading
public men, _e.g._, so conspicuous a member of the convention as
Charles Pinckney of South Carolina, afterwards a senator from that
State, wholly denied the power ten years later;[23] it being also true
that he and others of his way of thinking urged the express restraints
on state legislation,–we may justly reach the conclusion that this
question, while not overlooked, was intentionally left untouched. Like
the question of the bank and various others, presumably it was so left
in order not to stir up enemies to the new instrument; left to be
settled by the silent determinations of time, or by later discussion.
Turning now to the actual practice under the government of the United
States, we find that the judges of the Supreme Court had hardly taken
their seats, at the beginning of the government, when Chief Justice Jay
and several other judges, in 1790, communicated to the President
objections to the Judiciary Act, as violating the Constitution, in
naming the judges of the Supreme Court to be judges also of the circuit
courts.[24] These judges, however, did not refuse to act under this
unconstitutional statute; and the question did not come judicially
before the court until Marshall’s time, in 1803,[25] when it was held
that the question must now be regarded as settled in favor of the
statute, by reason of acquiescence since the beginning of the
government.[26]
In observing, historically, the earlier conceptions of the judges of the
Supreme Court as to the method of dealing with unconstitutional
legislation, one or two other transactions should be looked at. In 1792
(1 U. S. Statutes, 243) a statute was enacted which required the circuit
court, partly composed, as we have seen, of the judges of the Supreme
Court, to pass on the claims of certain soldiers and others demanding
pensions, and to report to the Secretary of War; who was, in turn, to
revise these returns and report to Congress. The judges found great
difficulty in acting under this statute, because it imposed on them
duties not judicial in their nature; and they expressed their views in
various ways.
In one circuit, the judges thinking it improper to act under this
statute in their judicial capacity, for the reason above-named,
consented from charitable motives to serve as “commissioners.”[27]
In the Pennsylvania circuit, the three judges wrote, in a letter to the
President, that “on a late painful occasion” they had held the law
invalid; and they now stated the matter to him, as being the person
charged with the duty of “taking care that the laws be faithfully
executed.” They assured him that while this judicial action of
disregarding an act of Congress had been necessary, it was far from
pleasant.
The judges of another circuit, before which no case had come, wrote a
similar letter to the President, declaring their reasons for thinking
the law invalid.
In this same year, 1792, the Pennsylvania case came regularly up to the
Supreme Court, and was argued there.[28] This might have produced a
decision, but none was ever given; and in the next year a change in the
statute provided relief for the pension claimants in another way.
It is to be remarked, then, that this matter resulted in no decision by
the Supreme Court of the United States on the question of the
constitutionality of the pension act; it produced only a decision at one
of the circuits, and informal expressions of opinion from most of the
judges.
These non-judicial communications of opinion to the President seem, as
has been said, to have proceeded on the theory of furnishing information
to one whose official duty it was to see that the fundamental law was
faithfully carried out; just as “Councils of Revision,” established by
the constitutions of Pennsylvania and Vermont, were to report
periodically as to infractions of the constitution.
It was, perhaps, these practices of private communication between the
President and the judges that led very soon to another interesting
matter,–a formal request by the President, in 1793, for an opinion from
the judges on twenty-nine questions relating to the treaties with
France. This request accorded with a colonial practice of asking such
opinions from judges; a usage centuries old in England, and preserved
to-day in the constitutions of a few States in this country. The judges,
however, declined answering these questions, “considering themselves,”
says Marshall, in his “Life of Washington,” “merely as constituting a
legal tribunal for the decision of controversies brought before them in
legal form.”[29] Although this seems to have been obviously the right
course, since the proposition to give power to put questions to the
judges in this way had been considered in the Federal Convention and not
allowed, yet we may remark how convenient such a power would often have
proved. If it be admitted, as it always has been in England, and is,
almost universally, here, that such opinions are merely learned advice
and bind nobody, not even the judges, they would often afford the
executive and Congress much needed and early help upon constitutional
questions in serious emergencies; such, for example, as have lately
presented themselves in our own history.
After this, there was an occasional allusion in the opinions of the
Supreme Court to the question of the power of that court to pass on the
constitutionality of Federal enactments as being an undecided and more
or less doubtful question. But not until 1803, early in Marshall’s time,
was the point judicially presented to the Supreme Court. It came up in
the case of Marbury _v._ Madison,[30] the first case at the third term
after any opinions of Marshall were reported. In that case, an act of
Congress was declared unconstitutional.
It was more than half a century before that happened again.
Marbury _v._ Madison was a remarkable case. It was connected intimately
with certain executive action for which Marshall as Secretary of State
was partly responsible. For various reasons the case must have excited
peculiar interest in his mind. Within three weeks before the end of
Adams’s administration, on February 13, 1801, while Marshall was both
Chief Justice and Secretary of State,[31] an act of Congress had
abolished the old system of circuit and district courts, and established
a new one. This gave to the President, Adams, the appointment of many
new judges, and kept him and his secretary busy, during the last hours
of the administration, in choosing and commissioning the new officials.
And another thing. The Supreme Court had consisted heretofore of six
judges. This same act provided that after the next vacancy there should
be five judges only. Such arrangements as these, made by a party just
going out of power, were not ill calculated to create, in the mind of
the party coming in, the impression of an intention to keep control of
the judiciary as long as possible.
There were, to be sure, other reasons for some of this action. Several
judges of the Supreme Court, as we have seen, had signified to
Washington, in 1790, the opinion that the judiciary act of the previous
year was unconstitutional in making the judges of that court judges also
of the circuit court. The new statute corrected this fault. Yet, in
regard to the time chosen for this very proper action, it was observable
that ten years and more had been allowed to pass before the mischief so
promptly pointed out by the early judges was corrected.
Again, in approaching the case of Marbury _v._ Madison, it is to be
observed that another matter relating to the Supreme Court had been
dealt with. This act of February 13, 1801, provided that the two terms
of the court, instead of being held, as hitherto, in February and
August, should thereafter be held in June and December. Accordingly, the
court sat in December, 1801. It adjourned, as it imagined, to June,
1802. But, on March 8 of that year, Congress, under the new
administration, repealed the law of 1801, unseated all the new judges,
and reinstated the old system, with its August and February terms. And
then, a little later in the year, the August term of the court was
abolished, leaving only one term a year, to begin on the first Monday in
February. Thus, since the June term was abolished, and February had then
passed, and there was no longer an August or a December term, the court
found itself in effect adjourned by Congress from December, 1801, to
February, 1803; and so it had no session during the whole of the year
1802.
If the legislation of 1801 was calculated to show the importance
attached by an outgoing political party to control over the judiciary,
that of 1802 might indicate how entirely the incoming party agreed with
them, and how well inclined they were to profit by their own
opportunities.
How was it, meantime, with the judiciary itself? Unfortunately, the
Supreme Court had already been drawn into the quarrel. For, at the
single December term, in 1801, held under the statute of that year, an
application had been made to the court by four persons in the District
of Columbia for a rule upon James Madison, Secretary of State, to show
cause why a writ of mandamus should not issue requiring him to issue to
these persons certain commissions as justice of the peace, which had
been left in Marshall’s office undelivered at the time when he ceased to
add to his present functions those of Secretary of State. They had been
made out, sealed, and signed, and were supposed to have been found by
Madison when he came into office, and to be now withheld by him. This
motion was pending when the court adjourned, in December, 1801. Of
course, a motion for a mandamus to the head of the cabinet, upon a
matter of burning interest, must have attracted no little attention on
the part of the new administration. Abolishing the August term served to
postpone any opportunity for early action by the court, and to remind
the judiciary of the limits of its power.
At last the court came together, in February, 1803, and found the
mandamus case awaiting its action. It is the first one reported at that
term. Since Marshall had taken his seat, there had as yet been only
five reported cases. All the opinions had been given by him, unless a
few lines “by the court” may be an exception; and according to the new
usage by which the Chief Justice became, wherever it was possible, the
sole organ of the court, Marshall now gave the opinion in Marbury _v._
Madison. It may reasonably be wondered that the Chief Justice should
have been willing to give the opinion in such a case, and especially
that he should have handled the case as he did. But he was sometimes
curiously regardless of conventions.
If it be asked what was decided in Marbury _v._ Madison, the answer is
that this, and only this, was decided, namely, that the court had no
jurisdiction to do what they were asked to do in that case (_i. e._ to
grant a writ of mandamus, in the exercise of their original
jurisdiction), because the Constitution allowed to the court no such
power; and, although an act of Congress had undertaken to confer this
jurisdiction on them, Congress had no power to do it, and therefore the
act was void, and must be disregarded by the court.[32] It is the
decision upon this point that makes the case famous; and undoubtedly it
was reached in the legitimate exercise of the court’s power. To this
important part of the case attention will be called in the next chapter.
Unfortunately, instead of proceeding as courts usually do, the opinion
began by passing upon all the points which the denial of its own
jurisdiction took from it the right to treat. It was elaborately laid
down, in about twenty pages, out of the total twenty-seven which
comprise the opinion, that Madison had no right to detain the
commissions; and that mandamus would be the proper remedy in any court
which had jurisdiction to grant it.
And thus, as the court, by its decision in this case, was sharply
reminding the legislature of its limitations, so by its _dicta_, and in
this irregular method, it intimated to the President, also, that his
department was not exempt from judicial control. In this way two birds
were neatly reached with the same stone.
Marshall made a very noticeable remark in his opinion, seeming to point
to the chief executive himself, and not merely to his secretary, when he
said, “It is not the office of the person to whom the writ is directed,
but the nature of the thing to be done, by which the propriety or
impropriety of issuing the mandamus is to be determined;”–a hint that,
on an appropriate occasion, the judiciary might issue orders personally
to him. This remark got illustration a few years later, in 1807, when
the Chief Justice, at the trial of Aaron Burr in Richmond, ordered a
subpœna to the same President, Thomas Jefferson, directing him to bring
thither certain documents. It was a strange conception of the relations
of the different departments of the government to each other, to imagine
that a subpœna, that is to say an order accompanied with a threat of
punishment, was a legitimate judicial mode of communicating with the
chief executive. On Jefferson’s part, this order was received with the
utmost discontent; and justly. He had a serious apprehension of a
purpose to arrest him by force, and was prepared to protect himself.[33]
Meantime he sent to the United States Attorney at Richmond the papers
called for, but explained, with dignity, that while the executive was
willing to testify in Washington, it could not allow itself to be
“withdrawn from its station by any coördinate authority.”
It was partly to the tendency on Marshall’s part, just mentioned, to
give little thought, often, to ordinary conventions, and partly to his
kindness of heart, that we should attribute another singular
occurrence,–the fact that he attended a dinner at the house of an old
friend, one of Burr’s counsel, when he knew that Burr was to be present,
and when that individual, having previously been brought to Richmond
under arrest, examined by Marshall, and admitted to bail, was still
awaiting the action of the grand jury with reference to further
judicial proceedings before Marshall himself. He accepted the
invitation before he knew that Burr was to be of the company. I have
heard from one of his descendants that his wife advised him not to go;
but he thought it best not to seem too fastidious, or to appear to
censure his old friend, the host, by staying away. He sat, we are told,
at the opposite end of the table from Burr, had no communication with
him, and went away early. But we must still wonder at an act which he
himself afterwards much regretted.
