John Marshall and the Constitution, a Chronicle of the Supreme Court

Volume 16 of the

Chronicles of America Series ∴ Allen Johnson, Editor Assistant Editors Gerhard R. Lomer Charles W. Jefferys

Abraham Lincoln Edition

New Haven: Yale University Press Toronto: Glasgow, Brook & Co. London: Humphrey Milford Oxford University Press 1920

Copyright, 1919 by Yale University Press

John Marshall and the Constitution Chapter Chapter Title Page I. The Establishment Of The National Judiciary 1 II. Marshall's Early Years 25 III. Jefferson's War On The Judiciary 53 IV. The Trial Of Aaron Burr 86 V. The Tenets Of Nationalism 121 VI. The Sanctity Of Contracts 147 VII. The Menace Of State Rights 173 VIII. Among Friends And Neighbors 198 IX. Epilogue 224 Bibliographical Note 233 Index 237

JOHN MARSHALL AND THE CONSTITUTION

CHAPTER I.. The Establishment of the National Judiciary

The Establishment Of The National Judiciary

The monarch of ancient times mingled the functions of priest and judge. It is therefore not altogether surprising that even today a judicial system should be stamped with a certain resemblance to an ecclesiastical hierarchy. If the Church of the Middle Ages was "an army encamped on the soil of Christendom, with its outposts everywhere, subject to the most efficient discipline, animated with a common purpose, every soldier panoplied with inviolability and armed with the tremendous weapons which slew the soul," the same words, slightly varied, may be applied to the Federal Judiciary created by the American Constitution. The Judiciary of the United States, though numerically not a large body, reaches through its process every part of the nation; its ascendancy is primarily a moral one; it is kept in conformity with final authority by the machinery of appeal; it is "animated with a common purpose"; its members are "panoplied" with what is practically a life tenure of their posts; and it is "armed with the tremendous weapons" which slay legislation. And if the voice of the Church was the voice of God, so the voice of the Court is the voice of the American people as this is recorded in the Constitution.

The Hildebrand of American constitutionalism is John Marshall. The contest carried on by the greatest of the Chief Justices for the principles today associated with his name is very like that waged by the greatest of the Popes for the supremacy of the Papacy. Both fought with intellectual weapons. Both addressed their appeal to the minds and hearts of men. Both died before the triumph of their respective causes and amid circumstances of great discouragement. Both worked through and for great institutions which preceded them and which have survived them. And, as the achievements of Hildebrand cannot be justly appreciated without some knowledge of the ecclesiastical system which he did so much to develop, neither can the career of John Marshall be understood without some knowledge of the organization of the tribunal through which he wrought and whose power he did so much to exalt. The first chapter in the history of John Marshall and his influence upon the laws of the land must therefore inevitably deal with the historical conditions underlying the judicial system of which it is the capstone.

The vital defect of the system of government provided by the soon obsolete Articles of Confederation lay in the fact that it operated not upon the individual citizens of the United States but upon the States in their corporate capacities. As a consequence the prescribed duties of any law passed by Congress in pursuance of powers derived from the Articles of Confederation could not be enforced. Theoretically, perhaps, Congress had the right to coerce the States to perform their duties; at any rate, a Congressional Committee headed by Madison so decided at the very moment (1781) when the Articles were going into effect. But practically such a course of coercion, requiring in the end the exercise of military power, was out of the question. Whence were to come the forces for military operations against recalcitrant States? From sister States which had themselves neglected their constitutional duties on various occasions? The history of the German Empire has demonstrated that the principle of state coercion is entirely feasible when a single powerful State dominates the rest of the confederation. But the Confederation of 1781 possessed no such giant member; it approximated a union of equals, and in theory it was entirely such. ¹

¹ By the Articles of Confederation Congress itself was made "the last resort of all disputes and differences ... between two or more States concerning boundary, jurisdiction, or any other cause whatever." It was also authorized to appoint "courts for the trial of piracies and felonies committed on the high seas" and "for receiving and determining finally appeals in all cases of capture." But even before the Articles had gone into operation, Congress had, as early as 1779, established a tribunal for such appeals, the old Court of Appeals in Cases of Capture. Thus at the very outset, and at a time when the doctrine of state sovereignty was dominant, the practice of appeals from state courts to a supreme national tribunal was employed, albeit within a restricted sphere. Yet it is less easy to admit that the Court of Appeals was, as has been contended by one distinguished authority, "not simply the predecessor but one of the origins of the Supreme Court of the United States." The Supreme Court is the creation of the Constitution itself; it is the final interpreter of the law in every field of national power; and its decrees are carried into effect by the force and authority of the Government of which it is one of the three coördinate branches. That earlier tribunal, the Court of Appeals in Cases of Capture, was, on the other hand, a purely legislative creation; its jurisdiction was confined to a single field, and that of importance only in time of war; and the enforcement of its decisions rested with the state governments.

In the Federal Convention of 1787 the idea of state coercion required little discussion; for the members were soon convinced that it involved an impracticable, illogical, and unjust principle. The prevailing view was voiced by Oliver Ellsworth before the Connecticut ratifying convention: "We see how necessary for Union is a coercive principle. No man pretends to the contrary.... The only question is, shall it be a coercion of law or a coercion of arms? There is no other possible alternative. Where will those who oppose a coercion of law come out? ... A necessary consequence of their principles is a war of the States one against the other. I am for coercion by law, that coercion which acts only upon delinquent individuals." If anything, these words somewhat exaggerate the immunity of the States from direct control by the National Government, for, as James Madison pointed out in the Federalist, "in several cases ... they [the States] must be viewed and proceeded against in their collective capacities." Yet Ellsworth stated correctly the controlling principle of the new government: it was to operate upon individuals through laws interpreted and enforced by its own courts.

A Federal Judiciary was provided for in every plan offered on the floor of the Federal Convention. There was also a fairly general agreement among the members on the question of "judicial independence." Indeed, most of the state constitutions already made the tenure of the principal judges dependent upon their good behavior, though in some cases judges were removable, as in England, upon the joint address of the two Houses of the Legislature. That the Federal judges should be similarly removable by the President upon the application of the Senate and House of Representatives was proposed late in the Convention by Dickinson of Delaware, but the suggestion received the vote of only one State. In the end it was all but unanimously agreed that the Federal judges should be removable only upon conviction following impeachment.

But, while the Convention was in accord on this matter, another question, that of the organization of the new judiciary, evoked the sharpest disagreement among its members. All believed that there must be a national Supreme Court to impress upon the national statutes a construction that should be uniformly binding throughout the country; but they disagreed upon the question whether there should be inferior national courts. Rutledge of South Carolina wanted the state courts to be used as national courts of the first instance and argued that a right of appeal to the supreme national tribunal would be quite sufficient "to secure the national rights and uniformity of judgment." But Madison pointed out that such an arrangement would cause appeals to be multiplied most oppressively and that, furthermore, it would provide no remedy for improper verdicts resulting from local prejudices. A compromise was reached by leaving the question to the discretion of Congress. The champions of local liberties, however, both at Philadelphia and in the state conventions continued to the end to urge that Congress should utilize the state courts as national tribunals of the first instance. The significance of this plea should be emphasized because the time was to come when the same interest would argue that for the Supreme Court to take appeals from the state courts on any account was a humiliation to the latter and an utter disparagement of State Rights.

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