Volume IV Part 40 (1/2)
If the case came before Marshall normally, without design and in the regular course of business, it was an event nothing short of providential. If, on the contrary, it was ”arranged” so that Marshall could deliver his immortal Nationalist address, never was such contrivance so thoroughly justified. While the legal profession has always considered this case to be identical, judicially, with that of Martin _vs._ Hunter's Lessee, it is, historically, a part of M'Culloch _vs._ Maryland and of Osborn _vs._ The Bank. The opinion of John Marshall in the Cohens case is one of the strongest and most enduring strands of that mighty cable woven by him to hold the American people together as a united and imperishable nation.
Fortunate, indeed, for the Republic that Marshall's fateful p.r.o.nouncement came forth at such a critical hour, even if technicalities were waived in bringing before him a case in which he could deliver that opinion. For, in conjunction with his exposition in M'Culloch _vs._ Maryland, it was the most powerful answer that could be given, and from the source of greatest authority, to that defiance of the National Government and to the threats of disunion then growing ever bolder and more vociferous. Marshall's utterances did not still those hostile voices, it is true, but they gave strength and courage to Nationalists and furnished to the champions of the Union arguments of peculiar force as coming from the supreme tribunal of the Nation.
Could John Marshall have seen into the future he would have beheld Abraham Lincoln expounding from the stump to the farmers of Illinois, in 1858, the doctrines laid down by himself in 1819 and 1821.
Briefly stated, the facts in the case of Cohens _vs._ Virginia were as follows: The City of Was.h.i.+ngton was incorporated under an act of Congress[955] which, among other things, empowered the corporation to ”authorize the drawing of lotteries for effecting any important improvements in the city which the ordinary funds or revenue thereof will not accomplish,” to an amount not to exceed ten thousand dollars, the object first to be approved by the President.[956] Accordingly a city ordinance was pa.s.sed, creating ”The National Lottery” and authorizing it to sell tickets and conduct drawings.
By an act of the Virginia Legislature[957] the purchase or sale within the State of lottery tickets, except those of lotteries authorized by the laws of Virginia, was forbidden under penalty of a fine of one hundred dollars for each offense.
On June 1, 1820, ”P. J. & M. J. Cohen, ... being evil-disposed persons,”
violated the Virginia statute by selling to one William H. Jennings in the Borough of Norfolk two half and four quarter lottery tickets ”of the National Lottery, to be drawn in the city of Was.h.i.+ngton, that being a lottery not authorized by the laws of this commonwealth,” as the information of James Nimmo, the prosecuting attorney, declared.[958]
At the quarterly session of the Court of Norfolk, held September 2, 1820, the case came on for hearing before the Mayor, Recorder, and Aldermen of said borough and was decided upon an agreed case ”in lieu of a special verdict,” which set forth the sale of the lottery tickets, the Virginia statute, the act of Congress incorporating the City of Was.h.i.+ngton, and the fact that the National Lottery had been established under that act.[959] The Norfolk Court found the defendants guilty and fined them in the sum of one hundred dollars. This paltry amount could not have paid one twentieth part of the fees which the eminent counsel who appeared for the Cohens would, ordinarily, have charged.[960] The case was carried to the Supreme Court on a writ of error.
On behalf of Virginia, Senator James Barbour of that State[961] moved that the writ of error be dismissed, and upon this motion the main arguments were made and Marshall's princ.i.p.al opinion delivered. In concluding his argument, Senator Barbour came near threatening secession, as he had done in the Senate: ”Nothing can so much endanger it [the National Government] as exciting the hostility of the state governments. With them it is to determine how long this government shall endure.”[962]
In opening for the Cohens, David B. Ogden of New York denied that ”there is any such thing as a sovereign state, independent of the Union.” The authority of the Supreme Court ”extends ... to all cases arising under the const.i.tution, laws, and treaties of the United States.”[963] Cohens _vs._ Virginia was such a case.
Upon the supremacy of the Supreme Court over State tribunals depended the very life of the Nation, declared William Pinkney, who appeared as the princ.i.p.al counsel for the Cohens. Give up the appellate jurisdiction of National courts ”from the decisions of the state tribunals” and ”every other branch of federal authority might as well be surrendered.
To part with this, leaves the Union a mere league or confederacy.”[964]
Long, brilliantly, convincingly, did Pinkney speak. The extreme State Rights arguments were, he a.s.serted, ”too wild and extravagant”[965] to deserve consideration.
Promptly Marshall delivered the opinion of the court on Barbour's motion to dismiss the writ of error. The points made against the jurisdiction of the Supreme Court were, he said: ”1st. That a state is a defendant.
2d. That no writ of error lies from this court to a state court. 3d. ...
that this court ... has no right to review the judgment of the state court, because neither the const.i.tution nor any law of the United States has been violated by that judgment.”[966]
The first two points ”vitally ... affect the Union,” declared the Chief Justice, who proceeds to answer the reasoning of the State judges when, in Hunter _vs._ Fairfax's Devisee, they hurled at the Supreme Court Virginia's defiance of National authority.[967] Marshall thus states the Virginia contentions: That the Const.i.tution has ”provided no tribunal for the final construction of itself, or of the laws or treaties of the nation; but that this power may be exercised ... by the courts of every state of the Union. That the const.i.tution, laws, and treaties, may receive as many constructions as there are states; and that this is not a mischief, or, if a mischief, is irremediable.”[968]
Why was the Const.i.tution established? Because the ”American States, as well as the American people, have believed a close and firm Union to be essential to their liberty and to their happiness. They have been taught by experience, that this Union cannot exist without a government for the whole; and they have been taught by the same experience that this government would be a mere shadow, that must disappoint all their hopes, unless invested with large portions of that sovereignty which belongs to independent states.”[969]
The very nature of the National Government leaves no doubt of its supremacy ”in all cases where it is empowered to act”; that supremacy was also expressly declared in the Const.i.tution itself, which plainly states that it, and laws and treaties made under it, ”'shall be the supreme law of the land; and the judges in every state shall be bound thereby; anything in the const.i.tution or laws of any state to the contrary notwithstanding.'”
This supremacy of the National Government is a Const.i.tutional ”principle.” And why were ”ample powers” given to that Government? The Const.i.tution answers: ”In order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defense, promote the general welfare.”[970]
The ”limitations on the sovereignty of the states” were made for the same reason that the ”supreme government” of the Nation was endowed with its broad powers. In addition to express limitations on State ”sovereignty” were many instances ”where, perhaps, _no other power is conferred on Congress than a conservative power to maintain the principles_ established in the const.i.tution. The maintenance of these principles in their purity, is certainly among the great duties of the government.”[971]
Marshall had been Chief Justice of the United States for twenty years, and these were the boldest and most extreme words that he had spoken during that period. Like all men of the first rank, Marshall met in a great way, and without attempt at compromise, a great issue that could not be compromised--an issue which, everywhere, at that moment, was challenging the existence of the Nation. There must be no dodging, no hedging, no equivocation. Instead, there must be the broadest, frankest, bravest declaration of National powers that words could express. For this reason Marshall said that these powers might be exercised even as a result of ”a conservative power” in Congress ”to maintain the principles established in the const.i.tution.”
The Judicial Department is an agency essential to the performance of the ”great duty” to preserve those ”principles.” ”It is authorized to decide all cases of every description, arising under the const.i.tution or laws of the United States.” Those cases in which a State is a party are not excepted. There are cases where the National courts are given jurisdiction solely because a State is a party, and regardless of the subject of the controversy; but in all cases involving the Const.i.tution, laws, or treaties of the Nation, the National tribunals have jurisdiction, regardless of parties.[972]
”Principles” drawn from the very ”_nature of government_” require that ”the judicial power ... must be co-extensive with the legislative, and must be capable of deciding every judicial question which grows out of the const.i.tution and laws”--not that ”it is fit that it should be so; but ... that this fitness” is an aid to the right interpretation of the Const.i.tution.[973]
What will be the result if Virginia's att.i.tude is confirmed? Nothing less than the prostration of the National Government ”at the feet of every state in the Union.... Each member will possess a veto on the will of the whole.” Consider the country's experience. a.s.sumption[974] had been deemed unconst.i.tutional by some States; opposition to excise taxes had produced the Whiskey Rebellion;[975] other National statutes ”have been questioned partially, while they were supported by the great majority of the American people.”[976] There can be no a.s.surance that such divergent and antagonistic actions may not again be taken. State laws in conflict with National laws probably will be enforced by State judges, since they are subject to the same prejudices as are the State Legislatures--indeed, ”in many states the judges are dependent for office and for salary on the will of the legislature.”[977]
The Const.i.tution attaches first importance to the ”independence” of the Judiciary; can it have been intended to leave to State ”tribunals, where this independence may not exist,” cases in which ”a state shall prosecute an individual who claims the protection of an act of Congress?” Marshall gives examples of possible collisions between National and State authority, in ordinary times, as well as in exceptional periods.[978] Even to-day it is obvious that the Chief Justice was denouncing the threatened resistance by State officials to the tariff laws, a fact of commanding importance at the time when Marshall's opinion in Cohens _vs._ Virginia was delivered.
At this point he rises to the heights of august eloquence: ”A const.i.tution is framed for ages to come, and is designed to approach immortality as nearly as human inst.i.tutions can approach it. Its course cannot always be tranquil. It is exposed to storms and tempests, and its framers must be unwise statesmen indeed, if they have not provided it ... with the means of self-preservation from the perils it may be destined to encounter. No government ought to be so defective in its organization as not to contain within itself the means of securing the execution of its own laws against other dangers than those which occur every day.”
Marshall is here replying to the Southern threats of secession, just as he rebuked the same spirit when displayed by his New England friends ten years earlier.[979] Then turning to the conflict of courts, he remarks, as though the judicial collision is all that he has in mind: ”A government should repose on its own courts, rather than on others.”[980]
He recalls the state of the country under the Confederation when requisitions on the States were ”habitually disregarded,” although they were ”as const.i.tutionally obligatory as the laws enacted by the present Congress.” In view of this fact is it improbable that the framers of the Const.i.tution meant to give the Nation's courts the power of preserving that Const.i.tution, and laws made in pursuance of it, ”from all violation from every quarter, so far as judicial decisions can preserve them”?[981]