Volume IV Part 55 (1/2)
The Supreme Court reversed Marshall's judgment, holding that the authorization of an agent by a corporation can be established by presumptive evidence,[1311] an opinion that was plainly sound and which stated the law as it has continued to be ever since. But despite the unanimity of his brethren, the clear and convincing opinion of Story, the disapproval of his own views by the bench, bar, and business men of the whole country, Marshall would not yield. ”The Ch: Jus: I fear will _die hard_,” wrote Webster, who was of counsel for the bank.[1312]
In a very long opinion Marshall insists that his decision in the Circuit Court was right, fortifying his argument by more than thirty citations.
He begins by frank acknowledgment of the discontent his decision in the Circuit Court has aroused: ”I should now, as is my custom, when I have the misfortune to differ with this court, acquiesce silently in its opinion, did I not believe that the judgment of the circuit court of Virginia gave general surprise to the profession, and was generally condemned.” Corporations, ”being dest.i.tute of human organs,” can express themselves only by writing. They must act through agents; but the agency can be created and proved only by writing.
Marshall points out the serious possibilities to those with whom corporations deal, as well as to the corporations themselves, of the acts of persons serving as agents without authority of record.[1313]
Powerful as his reasoning is, it is based on mistaken premises inapplicable to modern corporate transactions; but his position, his method, his very style, reveal the stubborn conservative at bay, bravely defending himself and his views.
This, then, was the John Marshall, who, in his old age, accepted the call of men as conservative as himself to help frame a new const.i.tution for Virginia, On Monday, October 5, 1829, the convention met in the House of Delegates at Richmond. James Madison, then in his seventy-ninth year, feeble and wizened, called the members to order and nominated James Monroe for President of the convention. This nomination was seconded by Marshall. These three men, whose careers since before the Revolution and throughout our formative period, had been more distinguished, up to that time, than had that of any American then living, were the most conspicuous persons in that notable a.s.sembly.
Giles, now Governor of the State, was also a member; so were Randolph, Tyler, Philip P. Barbour, Upshur, and Tazewell. Indeed, the very ablest men in Virginia had been chosen to make a new const.i.tution for the State. In the people's anxiety to select the best men to do that important work, delegates were chosen regardless of the districts in which they lived.[1314]
To Marshall, who naturally was appointed to the Judiciary Committee,[1315] fell the task of presenting to the convention the first pet.i.tion of non-freeholders for suffrage.[1316] No more impressive doc.u.ment was read before that body. It stated the whole democratic argument clearly and boldly.[1317] The first report received from any committee was made by Marshall and also was written by him.[1318] It provided for the organization of the State Judiciary, but did not seek materially to change the system of appointments of judges.
Two sentences of this report are important: ”No modification or abolition of any Court, shall be construed to deprive any Judge thereof of his office”; and, ”Judges may be removed from office by a vote of the General a.s.sembly: but two-thirds of the whole number of each House must concur in such vote.”[1319] Marshall promptly moved that this report be made the order of the day and this was done.
Ranking next to the question of the basis of suffrage and of representation was that of judiciary reform. To accomplish this reform was one of the objects for which the convention had been called. At that time the Judiciary of Virginia was not merely a matter of courts and judges; it involved the entire social and political organization of that State. No more essentially aristocratic scheme of government ever existed in America. Coming down from Colonial times, it had been perpetuated by the Revolutionary Const.i.tution of 1776. It had, in practical results, some good qualities and others that were evil, among the latter a well-nigh faultless political mechanism.[1320]
The heart of this system was the County Courts. Too much emphasis cannot be placed on this fact. These local tribunals consisted of justices of the peace who sat together as County Courts for the hearing and decision of the more important cases. They were almost always the first men of their counties, appointed by the Governor for life; vacancies were, in practice, filled only on the recommendation of the remaining justices.
While the Const.i.tution of 1776 did not require the Governor to accept the nominations of the County Courts for vacancies in these offices, to do so had been a custom long established.[1321]
For this acquiescence of the Governor in the recommendation of the County Courts, there was a very human reason of even weightier influence than that of immemorial practice. The Legislature chose the Governor; and the justices of the peace selected, in most cases, the candidates for the Legislature--seldom was any man elected by the people to the State Senate or House of Delegates who was not approved by the County Courts. Moreover, the other county offices, such as county clerks and sheriffs, were appointed by the Governor only on the suggestion of the justices of the peace; and these officials worked in absolute agreement with the local judicial oligarchy. In this wise members of Congress were, in effect, named by the County Courts, and the Legislature dared not and did not elect United States Senators of whom the justices of the peace disapproved.
The members of the Court of Appeals, appointed by the Governor, were never offensive to these minor county magistrates, although the judges of this highest tribunal in Virginia, always able and learned men holding their places for life, had great influence over the County Courts, and, therefore, over the Governor and General a.s.sembly also. Nor was this the limit of the powers of the County Courts. They fixed the county rate of taxation and exercised all local legislative and executive as well as judicial power.[1322]
In theory, a more oligarchic system never was devised for the government of a free state; but in practice, it responded to the variations of public opinion with almost the precision of a thermometer. For example, nearly all the justices of the peace were Federalists during the first two years of Was.h.i.+ngton's Administration; yet the State supported Henry against a.s.sumption, and, later, went over to Jefferson as against Was.h.i.+ngton and Henry combined.[1323]
Rigid and self-perpetuating as was the official aristocracy which the Virginia judicial system had created, its members generally attended to their duties and did well their public work.[1324] They lived among the people, looked after the common good, composed disputes between individuals; soothed local animosities, prevented litigation; and administered justice satisfactorily when, despite their preventive efforts, men would bring suits. But the whole scheme was the very negation of democracy.[1325]
While, therefore, this judicial-social-political plan worked well for the most part, the idea of it was offensive to liberal-minded men who believed in democracy as a principle. Moreover, the official oligarchy was more powerful in the heavy slaveholding, than in the comparatively ”free labor,” sections; it had been longer established, and it better fitted conditions, east of the mountains.
So it came about that there was, at last, a demand for judicial reform.
Seemingly this demand was not radical--it was only that the self-perpetuating County Court system should be changed to appointments by the Governor without regard to recommendations of the local justices; but, in reality, this change would have destroyed the traditional aristocratic organization of the political, social, and to a great extent the economic, life of Virginia.
On every issue over which the factions of this convention fought, Marshall was reactionary and employed all his skill to defeat, whenever possible, the plans and purposes of the radicals. In pursuing this course he brought to bear the power of his now immense reputation for wisdom and justice. Perhaps no other phase of his life displays more strikingly his intense conservatism.
The conclusion of his early manhood--reluctantly avowed after Was.h.i.+ngton, following the Revolution, had bitterly expressed the same opinion,[1326] that the people, left to themselves, are not capable of self-government--had now become a profound moral belief. It should again be stated that most of Marshall's views, formed as a young lawyer during the riotous years between the achievement of Independence and the adoption of the Const.i.tution, had hardened, as life advanced, into something like religious convictions. It is noteworthy, too, that, in general, Madison, Giles, and even Monroe, now stood with Marshall.
The most conspicuous feature of those fourteen weeks of tumultuous contest, as far as it reveals Marshall's personal standing in Virginia, was the trust, reverence, and affection in which he was held by all members, young and old, radical and conservative, from every part of the State. Speaker after speaker, even in the fiercest debates, went out of his way to pay tribute to Marshall's uprightness and wisdom.[1327]
Marshall spoke frequently on the Judiciary; and, at one point in a debate on the removal of judges, disclosed opinions of historical importance. Although twenty-seven years had pa.s.sed since the repeal of the Federalist Judiciary Act of 1801,[1328] Marshall would not, even now, admit that repeal to be Const.i.tutional. Littleton W. Tazewell, also a member of the Judiciary Committee, a.s.serted that, under the proposed new State Const.i.tution, the Legislature could remove judges from office by abolis.h.i.+ng the courts. John Scott of Fauquier County asked Marshall what he thought of the ousting of Federalist judges by the Republicans in 1802.
The Chief Justice answered, ”with great, very great repugnance,” that throughout the debate he had ”most carefully avoided” expressing any opinion on that subject. He would say, however, that ”he did not conceive the Const.i.tution to have been at all definitely expounded by a single act of Congress.” Especially when ”there was no union of Departments, but the Legislative Department alone had acted, and acted but once,” ignoring the Judicial Department, such an act, ”even admitting that act not to have pa.s.sed in times of high political and party excitement, could never be admitted as final and conclusive.”[1329]
Tazewell was of ”an exactly opposite opinion”--the Repeal Act of 1802 ”was perfectly const.i.tutional and proper.” Giles also disagreed with Marshall. Should ”a public officer ... receive the public money any longer than he renders service to the public”?[1330] Marshall replied with spirit. No serious question can be settled, he declared, by mere ”confidence of conviction, but on the reason of the case.” All that he asked was that the Judiciary Article of the proposed State Const.i.tution should go forth, ”uninfluenced by the opinion of any individual: let those, whose duty it was to settle the interpretation of the Const.i.tution, decide on the Const.i.tution itself.”[1331] After extended debate[1332] and some wrangling, Marshall's idea on this particular phase of the subject prevailed.[1333]
The debate over the preservation of the County Court system, for which Marshall's report provided, was long and acrimonious, and a resume of it is impossible here. Marshall stoutly supported these local tribunals; their ”abolition will affect our whole internal police.... No State in the Union, has. .h.i.therto enjoyed more complete internal quiet than Virginia. There is no part of America, where ... less of ill-feeling between man and man is to be found than in this Commonwealth, and I believe most firmly that this state of things is mainly to be ascribed to the practical operation of our County Courts.” The county judges ”consist in general of the best men in their respective counties. They act in the spirit of peace-makers, and allay, rather than excite the small disputes ... which will sometimes arise among neighbours.”[1334]
Giles now aligned himself with Marshall as a champion of the County Court system. In an earnest defense of it he went so far as to reflect on the good sense of Jefferson. Everybody, said Giles, knew that that ”highly respectable man ... dealt very much in theories.”[1335]
During the remainder of the discussion on this subject, Marshall rose frequently, chiefly, however, to guide the debate.[1336] He insisted that the custom of appointing justices of the peace only on nomination of the County Courts should be written into the const.i.tution. The Executive ought to appoint _all_ persons recommended by ”a County Court, taken as a whole.” Marshall then moved an amendment to that effect.[1337]
This was a far more conservative idea than was contained in the old const.i.tution itself. ”Let the County Court who now recommended, have power also to appoint: for there it ended at last,” said William Campbell of Bedford County. Giles was for Marshall's plan: ”The existing County Court system” threw ”power into the hands of the middle cla.s.s of the community,” he said; and it ought to be fortified rather than weakened.