John Marshall

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:—

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.

CHAPTER IV

MARSHALL’S CONSTITUTIONAL OPINIONS

This is not the place for any detailed consideration of Marshall’s decisions. But it would be a strange omission to leave out all consideration of what played so great a part in his life. I must draw, therefore, upon the patience of the reader, while some points are mentioned relating to that class of his opinions which is at once the most important and of the widest interest, viz., those given in constitutional cases. If these matters seem to any reader dull or unintelligible, he must be allowed full liberty to pass them by; but I cannot wholly omit them.

The keynote to Marshall’s leading constitutional opinions is that of giving free scope to the power of the national government. These leading opinions may be divided into three classes: First, such as discuss the nature and reach of the Federal Constitution, and the general relation of the federal government to the States. Of this class, McCulloch v. Maryland, probably his greatest opinion, is the chief illustration. Second, those cases which are concerned with the specific restraints and limitations upon the States. To this class may be assigned Fletcher v. Peck, the bankruptcy cases of Sturgis v. Crowninshield and Ogden v. Saunders, and Dartmouth College v. Woodward. Third, such as deal with the general theory and principles of constitutional law. There is little of this sort; except as it is incidentally touched, perhaps the only case is Marbury v. Madison.

If we look at these great cases merely with reference to their effect upon the history and development of the country, they are of the very first importance. When one names Marbury v. Madison, the first case where the Supreme Court held an act of Congress invalid, and the only one in Marshall’s time; Fletcher v. Peck and Dartmouth College v. Woodward, where legislative grants and an act of incorporation are held to be contracts, protected by the United States Constitution against state legislation impairing their obligation; and New Jersey v. Wilson, holding that a legislative exemption from taxation is also a contract protected in the same way;—one sees the tremendous importance of the decisions.

Of coarse we are not to confound this powerful effect of a judgment, or the moral approbation with which we may be inclined to view it, with the intrinsic merit of the reasoning or the legal soundness of the conclusions. It is not uncommon to speak of the reasoning in Marbury v. Madison and Dartmouth College v. Woodward with the greatest praise. But neither of these opinions is entitled to rank with Marshall’s greatest work. The very common view to which I have alluded is partly referable to the fallacy which Wordsworth once remarked upon when a friend mentioned “The Happy Warrior” as being the greatest of his poems. “No,” said the poet, “you are mistaken; your judgment is affected by your moral approval of the lines.”

If we regard at once the greatness of the questions at issue in the particular case, the influence of the opinion, and the large method and clear and skillful manner in which it is worked out, there is nothing so fine as the opinion in McCulloch v. Maryland, given at the February term, 1819. The questions were, first, whether the United States could constitutionally incorporate a bank; and, second, if it could, whether a State might tax the operations of the bank; as, in this instance, by requiring it to use stamped paper for its notes. The bank was sustained and the tax condemned.

In working this out, it was laid down that while the United States is merely a government of enumerated powers, and these do not in terms include the granting of an incorporation, yet it is a government whose powers, though limited in number, are in general supreme, and also adequate to the great national purposes for which they are given; that these great purposes carry with them the power of adopting such means, not prohibited by the Constitution, as are fairly conducive to the end; and that incorporating a bank is not forbidden, and is useful for several ends. Further, the paramount relation of the national government, whose valid laws the Constitution makes the supreme law of the land, forbids the States to tax, or to “retard, impede, burden, or in any way control” the operations of the government in any of its instrumentalities.

This was the opinion of a unanimous court, in which five out of the seven judges had been nominated by a Republican President. But it caused great excitement at the South. On March 24, 1819, Marshall wrote from Richmond to Judge Story: “Our opinion in the bank case has roused the sleeping spirit of Virginia, if indeed it ever sleeps. It will, I understand, be attacked in the papers with some asperity, and as those who favor it never write for the public it will remain undefended, and of course be considered as damnably heretical.” Again, two months later, “The opinion in the bank case continues to be denounced by the Democracy of Virginia.… If the principles which have been advanced on this occasion were to prevail the Constitution would be converted into the old Confederation.”

Another great opinion, of the same class, and also bitterly attacked, was given in the case of Cohens v. Virginia, in 1821. This case came up on a writ of error from a local court at Norfolk. Cohens had been convicted of selling lottery tickets there, contrary to the statute of Virginia. He had set up as a defense an act of Congress providing for drawing lotteries in the city of Washington, and insisted that this authorized his selling tickets in Virginia. When the case reached the Supreme Court of the United States, the counsel for the State first denied the jurisdiction of that court, on the ground, among others, that the Constitution allowed no such appeal from a state court, and that the Judiciary Act of 1789 was unconstitutional in purporting to authorize it. In an elaborate opinion by Marshall, one of his greatest efforts, these contentions were negatived. When afterwards, the case came to be argued on the merits, the decision below was sustained, on the ground that the act of Congress did not purport to authorize the sale of tickets in any State which forbade the sale of them.

Here again the court was unanimous; and it was composed of the same judges who decided McCulloch v. Maryland. But the reception of Cohens v. Virginia at the South was even worse than that accorded the other case. Judge Roane, of the Court of Appeals in Virginia, attacked the opinion anonymously in the newspapers, with what Marshall called “coarseness and malignity.” Jefferson, also, bitterly objected to it.

Of two other cases belonging in the same class of Marshall’s opinions, viz., Gibbons v. Ogden, in 1824, and Brown v. Maryland, in 1827, it is enough here to say that they deal with one of the most difficult and perplexed topics of constitutional law, namely, the coördination of the functions of the national and state governments, in regard to the power granted to Congress to regulate foreign and interstate commerce, a subject of great importance and difficulty, on which the decisions of the Supreme Court are now and long have been involved in much confusion and uncertainty. Gibbons v. Ogden brought into question the constitutionality of a law of New York granting to Fulton, the inventor, the sole right of navigating the waters of New York by steam. The grant had been sustained by Chancellor Kent and by the New York Court of Appeals; but these decisions were now overruled in a famous and powerful opinion. In two other cases on this subject, also of great importance, Marshall gave leading opinions. It may fairly be thought that his treatment of the general question involved in these cases, instructive as it was, was yet less fruitful and less far-seeing than in most of his other great cases.

He was now in a region pretty closely connected with the second class of cases, above named; a set of cases, where even so great a man as Marshall erred sometimes, from interpreting too literally and too narrowly the restraints upon the States. It was natural, in giving full scope to the authority of the general government, that he should be inclined to apply, with their fullest force and operation, these clauses of restraint and prohibition. His great service to the country and his own generation was that of planting the national government on the broadest and strongest foundations. That, as he rightly conceived, was the one chief necessity of his time. In doing this, when it came to considering the reach that must also be allowed to the States, and just how the coördination of the two systems should be worked out, probably no one man, no one court, no human wisdom was adequate, then, to mapping it all out. Time alone, and a long succession of men, after some ages of experience, might suffice for that. The wisdom of those who made the Constitution, as it has lately been said, was mainly shown “in the shortness and generality of its provisions, in its silence, and its abstinence from petty limitations.” But, as time went on, definitions and specifications had to be made and applied; silence, abstinence, generality, were no longer adequate. And in the class of cases, now referred to, great and far-reaching as were the results of Marshall’s labor, and unqualifiedly as they are often praised, one may perceive, as I venture to think, a less comprehensive and statesmanlike grasp of the problems and their essential conditions than are found in some other parts of his work.

And so, when the Chief Justice, in 1812, held, without argument, that a grant of land by a State, with a privilege of exemption from taxation, contained a contract against future taxation, protected, even in the hands of subsequent holders, by the constitutional provisions against impairing the obligation of contracts, something was done which would probably not be done to-day, if the question came up for the first time. Certainly the soundness of the doctrine has been frequently denied by judges of the Supreme court, and it has only survived through the device of construing all grants in the narrowest manner. “Yielding,” says the Court in a recent case, “to the doctrine that immunity from taxation may be granted, that point being already adjudged, it must be considered as a personal privilege, not extending beyond the immediate grantee, unless otherwise so declared in express terms.” And again the court has recently remarked on the “well-settled rule that exemptions from taxation are … not to be extended beyond the exact and express language used, construed strictissimi juris.”

Again, in Dartmouth College v. Woodward, in 1819, when it was held that a legislative grant of incorporation was a contract protected by the same clause of the Constitution, something was done from which the court was subsequently obliged to recede in an important degree. Acts of incorporation for the manufacture of beer, for carrying on slaughter-houses, for dealing in offal, and for conducting a lottery,—a reputable business in 1819, when the Dartmouth College case was decided,—such acts as these have been treated by the Supreme Court as not being thus protected. It is held that no legislative body can contract to part with the full power to provide for the health, morals, and safety of the community. Such things, it is said, are not the proper subject-matter of legislative contract,—a doctrine which it has been widely thought should, originally, have been applied to all acts of incorporation. “The State,” says a distinguished judge, and writer on constitutional law, in speaking of the Dartmouth College doctrine and its development, “was stripped, under this interpretation, of prerogatives that are commonly regarded as inseparable from sovereignty, and might have stood, like Lear, destitute before her offspring, had not the police power been dexterously declared paramount, and used as a means of rescinding improvident grants.”[34]

In the great bankruptcy cases of Sturgis v. Crowninshield and Ogden v. Saunders, where it was held, in 1819 and 1827, that the constitutional provision as to impairing the obligation of contracts forbade the State to enact an insolvency law which should discharge a person from liability on a contract made before the law; and then again that it did not forbid the same thing as touching a contract made after the law, Marshall, who gave the opinion in the first case, put it on a ground equally applicable to the second; and so, in the second case, gave a dissenting opinion. The obligation of the contract, he said, comes from the agreement of the party; it does not arise from the law of the State at the time it was made, entering into or operating on the contract. But this doctrine and this reasoning were justly disallowed.

Finally, in 1830, in Craig v. Missouri, Marshall gave the opinion that certain certificates issued by a State in return for deposits, and intended to circulate as money, were bills of credit; and as such forbidden by the Constitution. There were three dissenting opinions; and soon after Marshall’s death, a different doctrine was established by the court,—wisely it would seem,—and has ever since been maintained.[35]

Coming now to the third class of cases mentioned above, that which deals with the fundamental conceptions and theory of our American doctrine of constitutional law, Marbury v. Madison is the chief case. In speaking of that case I have purposely delayed until this point any reference to this aspect of it. While, historically, this part of it is what gives the case its chief importance, yet it occupies only about a quarter of the opinion.

In outline, the argument there presented is as follows: The question is whether a court can give effect to an unconstitutional act of the legislature. This question is answered, as having little difficulty, by referring to a few “principles long and well established.” (1) The people, in establishing a written constitution and limiting the powers of the legislature, intend to control it; else the legislature could change the constitution by an ordinary act. (2) If a superior law is not thus changeable, then an unconstitutional act is not law. This theory, it is added, is essentially attached to a written constitution. (3) If the act is void, it cannot bind the court. The court has to say what the law is, and in saying this must judge between the Constitution and the act. Otherwise, a void act would be obligatory; and this would be saying that constitutional limits upon legislation may be transgressed by the legislature at pleasure, and thus these limits would be reduced to nothing. (4) The language of the Federal instrument gives judicial power in “cases arising under the Constitution.” Judges are thus in terms referred to the Constitution. They are sworn to support it and cannot violate it. And so, it is said, in conclusion, the peculiar phraseology of the instrument confirms what is supposed to be essential to all written constitutions, that a law repugnant to it is void, and that the courts, as well as other departments, are bound by the constitution.

The reasoning is mainly that of Hamilton, in his short essay of a few years before in the “Federalist.” The short and dry treatment of the subject, as being one of no real difficulty, is in sharp contrast with the protracted reasoning of McCulloch v. Maryland, Cohens v. Virginia, and other great cases; and this treatment is much to be regretted. Absolutely settled as the general doctrine is to-day, and sound as it is, when regarded as a doctrine for the descendants of British colonists, there are grave and far-reaching considerations—such, too, as affect to-day the proper administration of this extremely important power—which are not touched by Marshall, and which must have commanded his attention if the subject had been deeply considered and fully expounded according to his later method. His reasoning does not answer the difficulties that troubled Swift, afterwards chief justice of Connecticut, and Gibson, afterwards chief justice of Pennsylvania, and many other strong, learned, and thoughtful men; not to mention Jefferson’s familiar and often ill-digested objections.

It assumes as an essential feature of a written constitution what does not exist in any one of the written constitutions of Europe. It does not remark the grave distinction between the power of disregarding the act of a coördinate department, and the action of a federal court in dealing thus with the legislation of the local States; a distinction important in itself, and observed under the written constitutions of Europe, which, as I have said, allow this power in the last sort of case, while denying it in the other.

Had Marshall dealt with this subject after the fashion of his greatest opinions he must also have considered and passed upon certain serious suggestions arising out of the arrangements of our own constitutions and the exigencies of the different departments. All the departments, and not merely the judges, are sworn to support the Constitution. All are bound to decide for themselves, in the first instance, what this instrument requires of them. None can have help from the courts unless, in course of time, some litigated case should arise; and of some questions it is true that they never can arise in the way of litigation. What was Andrew Johnson to do when the Reconstruction Acts of 1867 had been passed over his veto by the constitutional majority, while his veto had gone on the express ground, still held by him, that they were unconstitutional? He had sworn to support the Constitution. Should he execute an enactment which was contrary to the Constitution, and so void? Or should he say, as he did say to the court, through his Attorney-General, that “from the moment [these laws] were passed over his veto, there was but one duty, in his estimation, resting upon him, and that was faithfully to carry out and execute these laws”?[36] And why is he to say this?

Again, what is the House of Representatives to do when a treaty, duly made and ratified by the constitutional authority, namely, the President and Senate, comes before it for an appropriation of money to carry it out? Has the House, under these circumstances, anything to do with the question of constitutionality? If it thinks the treaty unconstitutional, and so void, can it vote to carry it out? If it can, how is this justified?

Is the situation necessarily different when a court is asked to enforce a legislative act? The courts are not strangers to the case of political questions, where they must refuse to interfere with the acts of the other departments,—as in the case relating to Andrew Johnson just referred to; and in dealing with what are construed to be merely directory provisions of the Constitution; and with the cases, well approved in the Supreme Court of the United States, where courts refuse to consider whether provisions of a constitution have been complied with, which require certain formalities in passing laws,—accepting as final the certificate of the officers of the political departments. A question, passed upon by those departments, is thus refused any discussion in the judicial forum, on the ground, to quote the language of the Supreme Court, that “the respect due to coequal and independent departments requires the judicial department to act upon this assurance.”

So far as any necessary conclusion is concerned, it might fairly have been said, with us, as it is said in Europe, that the real question in all these cases is not whether the act is constitutional, but whether its constitutionality can properly be brought in question before a given tribunal. Could Marshall have had to deal with this great question, in answer to Chief Justice Gibson’s powerful opinion in Eakin v. Raub, in 1825,[37] instead of deciding it without being helped or hindered by any adverse argument at all, as he did, we should have had a far higher exhibition of his powers than the case now affords.[38]

CHAPTER V

THE WORKING OF OUR SYSTEM OF CONSTITUTIONAL LAW

I have drawn attention to the immense service that Chief Justice Marshall rendered to his country in the field of constitutional law, and have considered a few of the cases. Since his time not twice the length of his term of thirty-four years has gone by, but more than five times the number of volumes that sufficed for the opinions of the Supreme Court during his period is required for those of his successors on the bench. Nor does even that proportion indicate the increase in the quantity of the court’s business which is referable to this particular part of the law. It has enormously increased. When one reflects upon the multitude, variety, and complexity of the questions relating to the regulation of interstate commerce, upon the portentous and ever increasing flood of litigation to which the Fourteenth Amendment has given rise; upon the new problems in business, government, and police which have come in with steam and electricity, and their ten thousand applications; upon the growth of corporations and of wealth, the changes of opinion on social questions, such as the relation of capital and labor, and upon the recent expansions of our control over great and distant islands,—we seem to be living in a different world from Marshall’s.

Under these new circumstances, what is happening in the region of constitutional law? Very serious things, indeed.

The people of the States, when making new constitutions, have long been adding more and more prohibitions and restraints upon their legislatures. The courts, meantime, in many places, enter into the harvest thus provided for them with a light heart, and too promptly and easily proceed to set aside legislative acts. The legislatures are growing accustomed to this distrust, and more and more readily incline to justify it, and to shed the consideration of constitutional restraints,—certainly as concerning the exact extent of these restrictions,—turning that subject over to the courts; and, what is worse, they insensibly fall into a habit of assuming that whatever they can constitutionally do they may do,—as if honor and fair dealing and common honesty were not relevant to their inquiries.

The people, all this while, become careless as to whom they send to the legislature; too often they cheerfully vote for men whom they would not trust with an important private affair, and when these unfit persons are found to pass foolish and bad laws, and the courts step in and disregard them, the people are glad that these few wiser gentlemen on the bench are so ready to protect them against their more immediate representatives.

From these causes there has developed a vast and growing increase of judicial interference with legislation. This is a very different state of things from what our fathers contemplated, a century and more ago, in framing the new system. Seldom, indeed, as they imagined, under our system, would this great, novel, tremendous power of the courts be exerted,—would this sacred ark of the covenant be taken from within the veil. Marshall himself expressed truly one aspect of the matter, when he said in one of the later years of his life: “No questions can be brought before a judicial tribunal of greater delicacy than those which involve the constitutionality of legislative acts. If they become indispensably necessary to the case, the court must meet and decide them; but if the case may be determined on other grounds, a just respect for the legislature requires that the obligation of its laws should not be unnecessarily and wantonly assailed.” And again, a little earlier than this, he laid down the one true rule of duty for the courts. When he went to Philadelphia at the end of September, in 1831, on that painful errand of which I have spoken, in answering a cordial tribute from the bar of that city he remarked that if he might be permitted to claim for himself and his associates any part of the kind things they had said, it would be this, that they had “never sought to enlarge the judicial power beyond its proper bounds, nor feared to carry it to the fullest extent that duty required.”

That is the safe twofold rule; nor is the first part of it any whit less important than the second; nay, more; to-day it is the part which most requires to be emphasized. For just here comes in a consideration of very great weight. Great and, indeed, inestimable as are the advantages in a popular government of this conservative influence,—the power of the judiciary to disregard unconstitutional legislation,—it should be remembered that the exercise of it, even when unavoidable, is always attended with a serious evil, namely, that the correction of legislative mistakes comes from the outside, and the people thus lose the political experience, and the moral education and stimulus that come from fighting the question out in the ordinary way, and correcting their own errors. If the decision in Munn v. Illinois and the “Granger Cases,” twenty-five years ago, and in the “Legal Tender Cases,” nearly thirty years ago, had been different; and the legislation there in question, thought by many to be unconstitutional and by many more to be ill-advised, had been set aside, we should have been saved some trouble and some harm. But I venture to think that the good which came to the country and its people from the vigorous thinking that had to be done in the political debates that followed, from the infiltration through every part of the population of sound ideas and sentiments, from the rousing into activity of opposite elements, the enlargement of ideas, the strengthening of moral fibre, and the growth of political experience that came out of it all,—that all this far more than outweighed any evil which ever flowed from the refusal of the court to interfere with the work of the legislature.

The tendency of a common and easy resort to this great function, now lamentably too common, is to dwarf the political capacity of the people, and to deaden its sense of moral responsibility. It is no light thing to do that.

What can be done? It is the courts that can do most to cure the evil; and the opportunity is a very great one. Let them resolutely adhere to first principles. Let them consider how narrow is the function which the constitutions have conferred on them,—the office merely of deciding litigated cases; how large, therefore, is the duty intrusted to others, and above all to the legislature. It is that body which is charged, primarily, with the duty of judging of the constitutionality of its work. The constitutions generally give them no authority to call upon a court for advice; they must decide for themselves, and the courts may never be able to say a word. Such a body, charged, in every State, with almost all the legislative power of the people, is entitled to the most entire and real respect; is entitled, as among all rationally permissible opinions as to what the constitution allows, to its own choice. Courts, as has often been said, are not to think of the legislators, but of the legislature,—the great, continuous body itself, abstracted from all the transitory individuals who may happen to hold its power. It is this majestic representative of the people whose action is in question, a coördinate department of the government, charged with the greatest functions, and invested, in contemplation of law, with whatsoever wisdom, virtue, and knowledge the exercise of such functions requires.

To set aside the acts of such a body, representing in its own field, which is the very highest of all, the ultimate sovereign, should be a solemn, unusual, and painful act. Something is wrong when it can ever be other than that. And if it be true that the holders of legislative power are careless or evil, yet the constitutional duty of the court remains untouched; it cannot rightly attempt to protect the people, by undertaking a function not its own. On the other hand, by adhering rigidly to its own duty, the court will help, as nothing else can, to fix the spot where responsibility lies, and to bring down on that precise locality the thunderbolt of popular condemnation. The judiciary, to-day, in dealing with the acts of their coördinate legislators, owe to the country no greater or clearer duty than that of keeping their hands off these acts wherever it is possible to do it. For that course—the true course of judicial duty always—will powerfully help to bring the people and their representatives to a sense of their own responsibility. There will still remain to the judiciary an ample field for the determinations of this remarkable jurisdiction, of which our American law has so much reason to be proud; a jurisdiction which has had some of its chief illustrations and its greatest triumphs, as in Marshall’s time, so in ours, while the courts were refusing to exercise it.

CHAPTER VI

LETTERS OF MARSHALL

No systematic attempt seems ever to have been made to collect Marshall’s letters. It should be done. Only a few of his family letters have yet found their way into print. One of them, to his wife, is quoted in a previous page. In another to her, written on March 9, 1825, referring to the inauguration of President John Quincy Adams, he says: “I administered the oath to the President in the presence of an immense concourse of people, in my new suit of domestic manufacture. He, too, was dressed in the same manner, though his clothes were made at a different establishment. The cloth is very fine and smooth.”

In a letter of December 7, 1834,[39] to his grandson, “Mr. John Marshall, jr.,” he gives the boy some advice about writing which is a good commentary on the extraordinary neatness and felicity, the close fit, of his own clear, compact, and simple style:—

“The man who by seeking embellishment hazards confusion is greatly mistaken in what constitutes good writing. The meaning 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 comprehended without an effort. The first step towards writing and speaking clearly is to think clearly. Let the subject be perfectly understood, and a man will soon find words to convey his meaning to others.”

A letter to James Monroe, dated Richmond, December 2, 1784, was written while Marshall was a member of the House of Delegates. He writes: “Not a bill of public importance, in which an individual was not particularly interested, has passed. The exclusive privilege given to Rumsey and his assigns to build and navigate his new invented boats is of as much, perhaps more, consequence than any other bill we have passed. We have rejected some which, in my conception, would have been advantageous to this country. Among these I rank the bill for encouraging intermarriage with the Indians. Our prejudices, however, oppose themselves to our interests, and operate too powerfully for them.…

“I shewed my father [then, probably, living in Kentucky] that part of your letter which respects the western country. He says he will render you every service of the kind you mention which is within his power with a great deal of pleasure. He says, though, that Mr. Humphrey Marshall, a cousin and brother of mine,[40] is better acquainted with the lands and would be better enabled to choose for your advantage than he would. If, however, you wish rather to depend on my father I presume he may avail himself of the knowledge of his son-in-law. I do not know what to say to your scheme of selling out. If you can execute it you will have made a very capital sum; if you can retain your lands you will be poor during life unless you remove to the western country, but you will have secured for posterity an immense fortune. I should prefer the selling business, and if you adopt it I think you have fixed on a very proper price.

“Adieu. May you be very happy is the wish of your

J. Marshall.”

In another letter to Monroe, while the latter was Madison’s Secretary of State, dated Richmond, June 25, 1812, just as the war was beginning, he says:—

“On my return to-day from my farm, where I pass a considerable portion of my time in laborious relaxation, I found a copy of the message of the President, of the 1st inst., accompanied by the report of the Committee of Foreign Relations and the declaration of war against Britain, under cover from you.

“Permit me to subjoin to my thanks for this mark of your attention my fervent wish that this momentous measure may, in its operation on the interest and honor of our country, disappoint only its enemies.

“Whether my prayer be heard or not, I shall remain with respectful esteem,

“Your obedient servant,
“J. Marshall.”

When Marshall went to France as envoy in 1797, he wrote several long and interesting letters to Washington, acquainting him with whatever foreign intelligence might interest him.[41] The following passages from the first letter, a very long one, will show the interest of these papers, and the exactness of the information they convey:—

“The Hague, 15th Sept., 1797.

“Dear Sir,—The flattering evidences I have received of your favorable opinion, which have made on my mind an impression only to wear out with my being, added to a conviction that you must feel a deep interest in all that concerns a country to whose service you have devoted so large a portion of your life, induce me to offer you such occasional communications as, while in Europe, I may be enabled to make, and induce a hope that the offer will not be deemed an unacceptable or unwelcome intrusion.

“Until our arrival in Holland we saw only British and neutral vessels. This added to the blockade of the Dutch fleet in the Texel, of the French fleet in Brest, and of the Spanish fleet in Cadiz, manifests the entire dominion which one nation at present possesses over the seas. By the ships of war which met us we were three times visited, and the conduct of those who came on board was such as would proceed from general orders to pursue a system calculated to conciliate America. Whether this be occasioned by a sense of justice and the obligations of good faith, or solely by the hope that the perfect contrast which it exhibits to the conduct of France may excite keener sensations at that conduct, its effects on our commerce are the same.

“The situation of Holland is truly interesting. Though the face of the country still exhibits a degree of wealth and population still unequaled in any part of Europe, its decline is visible. The great city of Amsterdam is in a state of blockade. More than two thirds of its shipping lie unemployed in port. Other seaports suffer, though not in so great a degree. In the mean time the requisitions made upon them are enormous. They have just completed the payment of the 100,000,000 of florins (equal to 40,000,000 of dollars) stipulated by treaty; they have sunk, on the first entrance of the French, a very considerable sum in assignats; they made large contributions in specifics, and they pay, feed, and clothe an army estimated, as I am informed, at near three times its real number. It is supposed that France has by various means drawn from Holland about 60,000,000 of dollars. This has been paid, in addition to the natural expenditures, by a population of less than 2,000,000. Nor, should the war continue, can the contributions of Holland stop here. The increasing exigencies of France must inevitably increase her demands on those within her reach.

. . . . . . .

“The political opinions which have produced the rejection of the Constitution, and which, as it would seem, can only be entertained by intemperate and ill-informed minds, unaccustomed to a union of theory and practice of liberty, must be associated with a general system which if brought into action will produce the same excesses here which have been so justly deplored in France. The same materials exist, though not in so great a degree. They have their clubs, they have a numerous poor, and they have enormous wealth in the hands of a minority of the nation. On my remarking this to a very rich and intelligent merchant of Amsterdam, and observing that if one class of men withdrew itself from public duties and offices it would be immediately succeeded by another, which would acquire a degree of power and influence that might be exercised to the destruction of those who had retired from society, he replied that the remark was just, but that they relied on France for a protection from those evils which she had herself experienced. That France would continue to require great supplies from Holland, and knew its situation too well to permit it to become the prey of anarchy. That Holland was an artificial country acquired by persevering industry, and which could only be preserved by wealth and order. That confusion and anarchy would banish a large portion of that wealth, would dry up its sources, and would entirely disable them from giving France that pecuniary aid she so much needed. That under this impression many who, though friendly to the revolution, saw with infinite mortification French troops garrison the towns of Holland, would now see their departure with equal regret. Thus they willingly relinquished national independence for individual safety. What a lesson to those who would admit foreign influence into the United States!”…

The condition of affairs in Paris at that time is illustrated by the fact that Marshall’s later letters, written from there, were not signed; and that they allude to the action of himself and his associates in the third person. Thus, writing from Paris, October 24, 1797, in the character of an anonymous private American to an unnamed correspondent, he says:—

“Causes which I am persuaded you have anticipated forbid me to allow that free range of thought and expression which could alone apologize for the intrusive character my letters bear. Having, however, offered what I cannot furnish, I go on to substitute something else perhaps not worth receiving.…

“Our ministers have not yet, nor do they seem to think it certain that they will be received. Indeed they make arrangements which denote an expectation of returning to America immediately. The captures of our vessels seem to be only limited by the ability to capture. That ability is increasing, as the government has let out to hardy adventurers the national frigates. Among those who plunder us, who are most active in this infamous business, and most loud in vociferating criminations equally absurd and untrue, are some unprincipled apostates who were born in America. The sea rovers by a variety of means seem to have acquired great influence in the government. This influence will be exerted to prevent an accommodation between the United States and France, and to prevent any regulations which may intercept the passage of the spoils they have made on our commerce, to their pockets. The government, I believe, is but too well disposed to promote their views.”

In a letter to Judge Peters, of Philadelphia, dated November 23, 1807, just after the Burr trial, after thanking his correspondent for a volume of “Admiralty Reports,” he has something to say of that case:—

“I have as yet been able only to peep into the book, not to read many of the cases. I received it while fatigued, and occupied with the most unpleasant case which has ever been brought before a judge in this or, perhaps, in any other country which affected to be governed by laws; since the decision of which I have been entirely from home. The day after the commitment of Colonel Burr for a misdemeanor I galloped to the mountains, whence I only returned in time to perform my North Carolina circuit, which terminates just soon enough to enable me to be here to open the court for the ancient dominion. Thus you perceive I have sufficient bodily employment to prevent my mind from perplexing itself about the attentions paid me in Baltimore and elsewhere. I wish I could have had as fair an opportunity to let the business go off as a jest here as you seem to have had in Philadelphia; but it was most deplorably serious, and I could not give the subject a different aspect by treating it in any manner which was in my power. I might, perhaps, have made it less serious to myself by obeying the public will, instead of the public law, and throwing a little more of the sombre upon others.”