Volume Xi Part 9 (2/2)

JOHN MARSHALL

1755-1835

THE UNITED STATES SUPREME COURT

BY JOHN Ba.s.sETT MOORE, LL.D

While the Revolution had severed the tie which bound the colonies to the mother country and had established the independence of the United States, the task of organizing and consolidating the new nation yet remained to be performed. The Articles of Confederation, though designed to form a ”perpetual union between the States,” const.i.tuted in reality but a loose a.s.sociation under which the various commonwealths retained for the most part the powers of independent governments. In the treaty of peace with Great Britain of 1782-83, strong national ground was taken; but the general government was unable to secure the execution of its stipulations. The public debts remained unpaid, for want of power to levy taxes. Commerce between the States as well as with foreign nations was discouraged and rendered precarious by variant and obstructive local regulations. Nor did there exist any judicial authority to which an appeal could be taken for the enforcement of national rights and obligations as against inconsistent State laws and adjudications. These defects were sought to be remedied by the Const.i.tution of the United States. But, as in the case of all other written instruments, the provisions of this doc.u.ment were open to construction. Statesmen and lawyers divided in their interpretation of it, according to their prepossessions for or against the creation and exercise of a strong central authority.

Among the organs of government created by the Const.i.tution was ”one Supreme Court,” in which, together with such inferior courts as Congress might from time to time establish, was vested ”the judicial power of the United States.” This power was declared to extend to all cases, in law and equity, arising under the Const.i.tution itself, the laws of the United States, and treaties made under their authority; to all cases affecting amba.s.sadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States should be a party; to controversies between two or more States, between a State and citizens of another State, and between citizens of different States, as well as between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign States, citizens, or subjects. In all cases affecting amba.s.sadors, other public ministers and consuls, and those in which a State should be a party, the Supreme Court was vested with original jurisdiction, while in all the other enumerated cases its jurisdiction was to be appellate. With the exceptions of suits against a State by individuals, which were excluded by the Eleventh Amendment, the judicial power of the United States remains to-day as it was originally created.

But at the time when the Const.i.tution was made, the importance to which the judicial power would attain in the political system of the United States could not be foreseen. The form was devised, but, like the nation itself, its full proportions remained to be developed. In that development, so far as it has been made by the judiciary, one man was destined to play a pre-eminent part. This man was John Marshall, under whose hand, as James Bryce has happily said, the Const.i.tution ”seemed not so much to rise ... to its full stature, as to be gradually unveiled by him, till it stood revealed in the harmonious perfection of the form which its framers had designed.” For this unrivalled achievement there has been conceded to Marshall by universal consent the t.i.tle of Expounder of the Const.i.tution of the United States; and the general approval with which his work is now surveyed is attested by the tribute lately paid to his memory. The observance on the 4th of February, 1901, by a celebration spontaneously national, of the one hundredth anniversary of his a.s.sumption of the office of Chief Justice of the United States, is without example in judicial annals. It is therefore a matter of interest not only to every student of American history, but also to every American patriot, to study his career and to acquaint himself with that combination of traits and accidents by which his character and course in life were determined.

John Marshall was born Sept. 24, 1755, in Fauquier County, Virginia, at a small village then called Germantown, but now known as Midland, a station on the Southern Railway not far south of Mana.s.sas. His grandfather, John Marshall, the first of the family of whom there appears to be any record, was an emigrant from Wales. He left four sons, the eldest of whom was Thomas Marshall, the father of the Chief Justice.

Thomas Marshall, though a man of meagre early education, possessed great natural gifts, and rendered honorable and useful public service both as a member of the Virginia Legislature, and as a soldier in the Revolutionary War, in which he rose to the rank of colonel. His son, John Marshall, was the eldest of fifteen children. Of his mother, whose maiden name was Keith, little is known, but it has been well observed by one of Marshall's biographers, that, as she reared her fifteen children--seven sons and eight daughters--all to mature years, she could have had little opportunity to make any other record for herself, and could hardly have made a better one.

Subsequently to his birth, Marshall's parents removed to an estate called Oak Hill, in the western part of Fauquier County. It was here that in 1775, when nineteen years of age, he heard the call of his country and entered the patriot army as a lieutenant. We have of him at this time the first personal description, written by a kinsman who was an eye-witness of the scene, and preserved in the eulogy delivered by Mr. Binney before the Select and Common Councils of Philadelphia on Sept. 24, 1835. ”His figure,” says the writer, ”I have now before me. 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, strong and penetrating, beaming with intelligence and good nature; an upright forehead, rather low, was terminated in a horizontal line by a ma.s.s 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 s.h.i.+rt, and trousers of the same material fringed with white. A round black hat, mounted with the buck's tail for a c.o.c.kade, crowned the figure and the man. He went through the manual exercise by word and motion deliberately p.r.o.nounced 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 around him, he would tell them what he understood about it.... He addressed the company for something like an hour.... He spoke at the close of his speech of the Minute Battalion about to be raised, and said he was going into it and expected to be joined by many of his hearers. 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.

He had walked ten miles to the muster field, and returned the same distance on foot to his father's house at Oak Hill, where he arrived a little after sunset.”

The patriot forces in which Marshall was enrolled were described as minute-men, of whom it was said by John Randolph that they ”were raised in a minute, armed in a minute, marched in a minute, fought in a minute, and vanquished in a minute.” Their uniform consisted of homespun hunting s.h.i.+rts, bearing the words ”Liberty or Death” in large white letters on the breast, while they wore bucks' tails in their hats and tomahawks and scalping-knives in their belts. We are told, and may readily believe, that their appearance inspired in the enemy not a little apprehension; but we are also a.s.sured, and may as readily believe, that this feeling never was justified by any act of cruelty. Their first active service was seen in the autumn of 1775, when they marched for Norfolk, where Lord Dunmore had established his headquarters. They saw their first fighting at Great Bridge, where the British troops were defeated with heavy loss. Subsequently, the Virginia forces to which Marshall belonged joined the army of Was.h.i.+ngton in New Jersey, and he saw service not only in that State, but also in Pennsylvania and New York, and, later in the war, again in Virginia. In May, 1777, he was appointed a captain. He took part in the battles of Iron Hill and Brandywine. He was also present at Monmouth, at Paulus (or Powles) Hook, and at the capture of Stony Point. He endured the winter's sufferings at Valley Forge, where because of his patience, firmness, and good humor, he won the special regard of the soldiers and his brother-officers. In the course of his military service he often acted as judge-advocate; and he made the acquaintance of Was.h.i.+ngton and Hamilton, with both of whom he contracted a lasting friends.h.i.+p.

As to the effect of these early experiences on the formation of his opinions, Marshall himself has testified. ”I am,” said he on a certain occasion, ”disposed to ascribe my devotion to the Union, and to a government competent to its preservation, at least as much to casual circ.u.mstances 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 const.i.tuted a part of my being. I carried them with me into the army, where I found myself a.s.sociated 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.”

In 1780 Marshall was admitted to the Bar, and after another term of service in the army he began, in 1781, the practice of the law in Fauquier County. His professional attainments must then have been comparatively limited. His education in letters he had derived solely from his father, who was fond of literature and possessed some of the writings of the English masters, and from two gentlemen of cla.s.sical learning, whose tuition he enjoyed for the brief period of two years. Of legal education he had had, according to our present standards, exceedingly little. It is said that when about eighteen years of age he began the study of Blackstone; but apart from this his legal education seems to have been gained from a short course of lectures by Chancellor Wythe, at William and Mary College, and from such reading as he was able to indulge in during his military service. And yet, removing to Richmond about 1783, he almost immediately rose to professional eminence. ”This extraordinary man,” said William Wirt, ”without the aid of fancy, without the advantages of person, voice, att.i.tude, gesture, or any of the ornaments of an orator, deserves to be considered as one of the most eloquent men in the world, if eloquence may be said to consist of the power of seizing the attention with irresistible force, and never permitting it to elude the grasp until the hearer has received the conviction which the speaker intends.... He possesses one original and almost superhuman faculty,--the faculty of developing a subject by a single glance of his mind, and detecting at once the very point on which every controversy depends.”

From 1782 to 1795, Marshall was repeatedly elected to the Virginia Legislature, the last time without his knowledge and against his wishes; and he also served one term as a member of the Executive Council of the State; but, as his residence was for the most part at Richmond, his public service did not seriously interrupt his career at the Bar. His experience in State politics, however, served to deepen his conviction of the need of an efficient and well-organized national government and of restrictions on the power of the States.

In the formation of the Const.i.tution of the United States Marshall had no hand; he was not a member of the convention by which it was framed; but when it was submitted to the several States for their action, he became a determined advocate of its adoption. In the Virginia convention, which was called to act upon that question, the prospects of a favorable decision seemed at first to be most unpromising. Among those who opposed ratification we find the names of Henry, Mason, Grayson, and Monroe, names which sufficiently attest that the opposition was one, not of mere faction or obstruction, but of principle and patriotic feeling.

Henry, who had been one of the first in earlier days to sound the note of revolution, saw in the proposed national government a portent to popular liberties. In the office of President he perceived ”the likeness of a kingly crown.” In the control of the purse and the sword, he foresaw the extinction of freedom. In the power to make treaties, to regulate commerce, and to adopt laws, he discerned an ”ambuscade” in which the rights of the States and of the people would be destroyed unawares. To these alarming predictions the advocates of ratification replied with strong and temperate reasoning, and, while Madison was their leader, among those who won distinction in the contest stood Marshall. He argued that the plan adopted by the Federal Convention provided for a ”regulated democracy,” the only alternative to which was despotism. He contended for the establishment of an efficient government as the only means of a.s.suring popular rights and the preservation of the public faith, violations of which were constantly occurring under the existing government. It is interesting to notice that, in replying to the suggestion that the legislative power of the proposed government would prove to be practically unlimited, he declared: ”If they [the United States] were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Const.i.tution, which they are to guard against.... They would declare it void.” In the end the Convention ratified the Const.i.tution by a majority of ten votes, a result probably influenced by the circ.u.mstance that it had then been accepted by nine States, and had thus by its terms been established between the adhering commonwealths.

After the organization of the national government Marshall consistently supported the measures of Was.h.i.+ngton's administrations, including the Jay treaty, and became a leader of the Federalist party, which, in spite of Was.h.i.+ngton's great personal hold on the people, was in a minority in Virginia. But he did not covet office. He declined the position of Attorney-General of the United States, which was offered to him by Was.h.i.+ngton, as well as the mission to France as successor to Monroe. In 1797, however, at the earnest solicitation of President Adams, he accepted in a grave emergency the post of envoy-extraordinary and minister-plenipotentiary to that country on a special mission, in which he was a.s.sociated with Charles Cotesworth Pinckney, of South Carolina, and Elbridge Gerry, of Ma.s.sachusetts.

Few diplomatic enterprises have had so strange a history. When the plenipotentiaries arrived in Paris, the Directory was at the height of its power, and Talleyrand was its minister of foreign affairs. He at first received the envoys unofficially, but afterwards intimated to them, through his private secretary, that they could not have a public audience of the Directory till their negotiations were concluded.

Meanwhile, they were waited upon by various persons, who represented that, in order to effect a settlement of the differences between the two countries, it would be necessary to place a sum of money at the disposal of Talleyrand as a _douceur_ for the ministers (except Merlin, the minister of justice, who was already obtaining enough from the condemnation of vessels), and also to make a loan of money to the government. The plenipotentiaries, though they at first repulsed these suggestions, at length offered to send one of their number to America to consult the government on the subject of a loan, provided that the Directory would in the meantime suspend proceedings against captured American vessels. This offer was not accepted, and the American representatives, after further conference with the French intermediaries, stated that they considered it degrading to their country to carry on further indirect intercourse, and that they had determined to receive no further propositions unless the persons who bore them had authority to treat. In April, 1798, after spending in the French capital six months, during which they had with Talleyrand two unofficial interviews and exchanged with him an ineffectual correspondence, Pinckney and Marshall left Paris, Gerry, to the great dissatisfaction of his government, remaining behind. Marshall was the first to reach the United States. He was greeted with remarkable demonstrations of respect and approbation; for, although his mission was unsuccessful, he had powerfully a.s.sisted in maintaining a firm and dignified position in the negotiations. His entrance into Philadelphia ”had the _eclat_ of a triumph.” It was at a public dinner given to him by members of both Houses of Congress that the sentiment was p.r.o.nounced, ”Millions for defence, but not a cent for tribute.” This sentiment has often been ascribed to Pinckney, who is supposed to have uttered it when approached by the unofficial agents in Paris. The correspondence shows, however, that the words employed by Mr. Pinckney were, ”No, no; not a sixpence!” The meaning was similar, but the phrase employed at Philadelphia is ent.i.tled to a certain immortality of its own.

On his return to the United States, Marshall resumed the practice of his profession; but soon afterwards, at the earnest entreaty of Was.h.i.+ngton, he became a candidate for Congress, declining for that purpose an appointment to the Supreme Court of the United States, as successor to Mr. Justice Wilson. He was elected after an exciting canva.s.s, and in December, 1799, took his seat. He immediately a.s.sumed a leading place among the supporters of President Adams's administration, though on one occasion he exhibited his independence of mere party discipline by voting to repeal the obnoxious second section of the Sedition Law. But of all the acts by which his course in Congress was distinguished, the most important was his defence of the administration, in the case of Jonathan Robbins, _alias_ Thomas Nash, By the twenty-seventh article of the Jay treaty it was provided that fugitives from justice should be delivered up for the offence of murder or forgery. Under this stipulation Robbins, _alias_ Nash, was charged with the commission of the crime of murder on board a British privateer on the high seas. He was arrested on a warrant issued upon the affidavit of the British Consul at Charleston, South Carolina. After his arrest an application was made to Judge Bee, sitting in the United States Circuit Court at Charleston, for a writ of _habeas corpus_. While Robbins was in custody, the President, John Adams, addressed a note to Judge Bee, requesting and advising him, if it should appear that the evidence warranted it, to deliver the prisoner up to the representatives of the British government. The examination was held by Judge Bee, and Robbins was duly surrendered. It is an ill.u.s.tration of the vicissitudes of politics that, on the strength of this incident, the cry was raised that the President had caused the delivery up of an American citizen who had previously been impressed into the British service. For this charge there was no ground whatever; but it was made to serve the purposes of the day, and was one of the causes of the popular antagonism to the administration of John Adams. When Congress met in December, 1799, a resolution was offered by Mr. Livingston, of New York, severely condemning the course of the administration. Its action was defended in the House of Representatives by Marshall on two grounds: first, that the case was one clearly within the provisions of the treaty; and, second, that no act having been pa.s.sed by Congress for the execution of the treaty, it was inc.u.mbent upon the President to carry it into effect by such means as happened to be within his power. The speech which Marshall delivered on that occasion is said to have been the only one that he ever revised for publication. It ”at once placed him,” as Mr. Justice Story has well said, ”in the front rank of const.i.tutional statesmen, silenced opposition, and settled forever the points of national law upon which the controversy hinged.” So convincing was it that Mr.

Gallatin, who had been requested by Mr. Livingston to reply, declined to make the attempt, declaring the argument to be unanswerable.

In May, 1800, on the reorganization of President Adams's Cabinet, Marshall unexpectedly received the appointment of Secretary of War. He declined it; but the office of Secretary of State also having become vacant, he accepted that position, which he held till the fourth of the following March. Of his term as Secretary of State, which lasted less than ten months, little has been said; nor was it distinguished by any event of unusual importance, save the conclusion of the convention with France of Sept. 30, 1800, the negotiation of which, at Paris, was already in progress, under instructions given by his predecessor, when he entered the Department of State. The war between France and Great Britain, growing out of the French Revolution, was still going on. The questions with which he was required to deal were not new; and while he exhibited in the discussion of them his usual strength and lucidity of argument, he had little opportunity to display a capacity for negotiation. Only a few of his State papers have been printed, nor are those that have been published of special importance. He gave instructions to our minister to Great Britain, in relation to commercial restrictions, impressments, and orders in council violative of the law of nations; to our minister to France, in regard to the violations of neutral rights perpetrated by that government; and to our minister to Spain, concerning infractions of international law committed, chiefly by French authorities, within the Spanish jurisdiction. Of these various State papers the most notable was that which he addressed on Sept. 20, 1800, to Rufus King, then United States Minister at London. Reviewing in this instruction the policy which his government had pursued, and to which it still adhered, in the conflict between the European powers, he said:--

”The United States do not hold themselves in any degree responsible to France or to Britain for their negotiations with the one or the other of these powers; but they are ready to make amicable and reasonable explanations with either.... It has been the object of the American government, from the commencement of the present war, to preserve between the belligerent powers an exact neutrality.... The aggressions, sometimes of one and sometimes of another belligerent power, have forced us to contemplate and prepare for war as a probable event. We have repelled, and we will continue to repel, injuries not doubtful in their nature and hostilities not to be misunderstood. But this is a situation of necessity, not of choice. It is one in which we are placed, not by our own acts, but by the acts of others, and which we [shall] change so soon as the conduct of others will permit us to change it.”

For a month Marshall held both the office of Secretary of State and that of Chief Justice; but at the close of John Adams' administration he devoted himself exclusively to his judicial duties, never performing thereafter any other public service, save that late in life he acted as a member of the convention to revise the Const.i.tution of Virginia.

It is an interesting fact that, prior to his appointment as Chief Justice, Marshall had appeared only once before the Supreme Court, and on that occasion he was unsuccessful. This appearance was in the case of Ware _v_. Hylton, which was a suit brought by a British creditor to compel the payment by a citizen of Virginia of a pre-Revolutionary debt, in conformity with the stipulations of the treaty of peace. During the Revolutionary War various States, among which was Virginia, pa.s.sed acts of sequestration and confiscation, by which it was provided that, if the American debtor should pay into the State treasury the amount due to his British creditor, such payment should const.i.tute an effectual plea in bar to a subsequent action for the recovery of the debt. When the representatives of the United States and Great Britain met in Paris to negotiate for peace, the question of the confiscated debts became a subject of controversy, especially in connection with that of the claims of the loyalists for the confiscation of their estates. Franklin and Jay, though they did not advocate the policy of confiscating debts, hesitated, chiefly on the ground of a want of authority in the existing national government to override the acts of the States. But when John Adams arrived on the scene, the situation soon changed. By one of those dramatic strokes of which he was a master, he ended the discussion by suddenly declaring, in the presence of the British plenipotentiaries, that, so far as he was concerned, he ”had no notion of cheating anybody;” that the question of paying debts and the question of compensating the loyalists were two; and that, while he was opposed to compensating the loyalists, he would agree to a stipulation to secure the payment of debts. It was therefore provided, in the fourth article of the treaty, that creditors on either side should meet with no lawful impediment to the recovery in full sterling money of _bona fide_ debts contracted prior to the war. This stipulation is remarkable, not only as the embodiment of an enlightened policy, but also as perhaps the strongest a.s.sertion to be found in the acts of that time of the power and authority of the national government. Indeed, when the British creditors, after the establishment of peace, sought to proceed in the State courts, they found the treaty unavailing, since those tribunals held themselves still to be bound by the local statutes. In order to remove this difficulty, as well as to provide a rule for the future, there was inserted in the Const.i.tution of the United States the clause expressly declaring that treaties then made, or which should be made, under the authority of the United States, should be the supreme law of the land, binding on the judges in every State, anything in the Const.i.tution or laws of any State to the contrary notwithstanding.

On the strength of this provision, the question of the debts was raised again, and was finally brought before the Supreme Court. Marshall appeared for the State of Virginia, to oppose the collection of the debt. He based his contention on two grounds: first, that by the law of nations the confiscation of private debts was justifiable; second, that, as the debt had by the law of Virginia been extinguished by its payment into the State treasury, and had thus ceased to be due, the stipulation of the treaty was inapplicable, since there could be no creditor without a debtor. It is not strange that this argument was unsuccessful. While it doubtless was the best that the cause admitted of, it may perhaps serve a useful purpose as an ill.u.s.tration of the right of the suitor to have his case, no matter how weak it may be, fully and fairly presented for adjudication. On the question of the right of confiscation the judges differed, one holding that such a right existed, while another denied it, two doubted, and the fifth was silent. But as to the operation of the treaty, all but one agreed that it restored to the original creditor his right to sue, without regard to the original validity or invalidity of the Virginia statute.

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