Chapter X: Chief Justice (1801-1835)

The appointment of John Marshall to the position of chief justice of the United States on the 31st of January, 1801, marks an epoch in the political and judicial history of the country. American jurisprudence, in many respects different from English jurisprudence, of which it was an offshoot rather than a reproduction, was then in its infancy ; and American constitutional law was, of course and by necessity, a science quite unknown to the common law as well as to the British statutes in which American lawyers had been previously trained. The creation of a national government by the terms of a written paper was, as yet, a bold novelty, a brilliant but perilous experiment, made alarmingly complex by the establishment of collateral semi-sovereignties in the shape of the thirteen States. People might well be pardoned for feeling extreme anxiety and distrust when they contemplated the number, variety, and difficulty of the questions which must arise to be determined by officers who, however intelligent and honest, could yet have had no previous experience under a system so complex. The Constitution of the United States had sprung into birth amid popular discussions and debates as to the rights of man and the true principles of government almost as stormy as the long war just ended. Although that Constitution had been adopted by the suffrage of a majority of the States of the Confederation, yet its administration, at every step, was narrowly and jealously watched by a large proportion, possibly not a minority, of the whole people. These opponents almost hopefully predicted its speedy failure, and foretold, with something like a grim delight, the abundant evils and disasters which would follow in the wake of its overthrow. Many of them labored hard to fulfill their own gloomy prophecies. The machinery of the new government was not yet smoothly adjusted, and the friction incident to every new system grated harshly on the public sense. The popular apprehension of miscarriage and misfortune had become so sensitive that even Washington’s patriotic, wise, and cautious administration was opposed with a vehemence altogether disproportioned to any adequate cause. This spirit surprised, at the time, thoughtful and considerate men, and the memory of its excesses even now excites the astonishment and indignation of succeeding generations. The presidency of John Adams, the pure patriot and honest statesman of the Revolutionary era, had fallen into great disfavor with the people, and the election of Thomas Jefferson, the head and leader of the opposition party, denoted a new strain about to be applied to the imperfectly developed powers of the government, through an entire change in the direction of public affairs.

It was at this crisis that Mr. Marshall was, by the wise choice of President Adams, called to the head of the judicial department. In this appointment the President, with far-reaching sagacity, departed from the natural order of precedence, which at that time favored the promotion of those already on the bench, whose judicial experience might be supposed to give them superior qualifications. Doubtless he was led to the selection of Mr. Marshall from the bar by an instinctive perception of a peculiar fitness in him for the place. If this was so, never, surely, was a more correct appreciation shown. If President Adams had left no other claims on the grateful remembrance of his countrymen than in giving to the public service this great magistrate, so pure and so wise, he would always have lived in that act, as a great benefactor of his country. The aged patriot survived long enough to see abundant proof of the soundness of his choice, and to rejoice in it.

In an unpublished account of a visit of Edward C. Marshall, the youngest son of Chief Justice Marshall, to the venerable ex-President, contained in a private letter addressed to Brooks Adams, Esq., Mr. Marshall says:

“In the year 1825, I paid a visit to your great grandfather in Quincy. He gave me a most cordial reception, and grasping my hands told me that his gift of John Marshall to the people of the United States was the proudest act of his life. Some years after, in conversation with my father, he [my father] told me that the appointment was a great surprise to him, but afforded him the highest gratification, as, with his tastes, he preferred to be chief justice to being president.” [1]

It is remarkable that when Mr. Marshall was called to the seat of chief justice of the United States he had never yet filled any judicial station. In this respect his appointment was a very bold step, for, although he was known to be an able lawyer, it did not follow that he would, of necessity, make a great judge, or, still more, that he would be a competent leader of the bench. He was sure to be confronted in his new position by difficulties and embarrassments of the most formidable character. Besides being wholly without previous judicial experience, he had the peculiar task of reaching conclusions in matters wherein books and authorities could give him little aid, and of being required to solve questions in respect to which there were no precedents either in theory or practice. Like the sturdy pioneer of our Western wilderness, he had to cleave his way through a pathless forest, with no guide but his instinctive resolution, and no help but the resources of his native genius and sagacity.

Such were the solidity and the clearness of his understanding, and especially such was his ready, almost intuitive perception of the principles of fundamental justice and right, which underlie the whole fabric of the law, that even on an originally slender foundation of legal acquirement he soon reared a structure which entitled him, in mature life, to the highest rank in his profession. The task which Marshall had to perform was the arduous one of construction; fortunately he had to a very striking degree the constructive faculty, a rare gift and certainly the highest form of intellectual ability which lawyers can ever use and display. He was a builder, from the very foundations, of a vast edifice by wholly new rules, under entirely novel exigencies, and for ends and purposes never before sought. It must be admitted that at no time of his forensic or judicial career was he remarkable for juridical learning. But he possessed that wonderful faculty of a sound discriminating judgment and a comprehensive sense of right, legal as well as moral, which was better than mere law-reading. William Pinkney of Maryland, after listening to several opinions rendered by him in the Supreme Court, said: “He was born to be the chief justice of any country in which he lived;” and it is within the memory of living witnesses and members of that bar that he was wont, at times, to say substantially in the conclusion of his masterly decisions: “These seem to me to be the conclusions to which we are conducted by the reason and spirit of the law. Brother Story will furnish the authorities.” Of this peculiarity of his intellect Judge Story, so long and intimately associated with him, bears testimony.

“That he possessed an uncommon share of juridical learning would naturally be presumed from his large experience and inexhaustible diligence; yet it is due to truth as well as to his memory to declare that his juridical learning was not equal to that of many of the great masters of the profession, living or dead, at home or abroad. He yielded at once to their superiority of knowledge as well in the modern as in the ancient law. He adopted the notion of Lord Bacon, that Studies serve for delight, for ornament, and for ability in the judgment and disposition of business. The latter was his favorite object. Hence he read not to contradict and confute, not to believe and take for granted, not to find talk and discourse, but to weigh and consider.”

He also followed another suggestion of that great man, that “Judges ought to be more learned than witty, more reverent than plausible, more advised than confident.” The original bias as well as choice of his mind was to general principles and comprehensive views rather than to technical or recondite learning. He loved to expatiate upon the theory of equity, to elucidate the expansive doctrines of commercial jurisprudence, and to give a rational cast even to the most subtle dogmas of the common law. He was solicitous to hear arguments, and reluctant to decide causes without them, nor did any judge ever profit more by them. No matter whether the subject was new or old, familiar to his thoughts or remote from them, buried under a mass of obsolete learning or developed for the first time yesterday, whatever was its nature, he courted argument, nay he demanded it.

The chief justice, when appointed, had reached the age of forty-five. William Wirt thus describes him:

“The Chief Justice of the United States is in his person tall, meagre, emaciated; his muscles so relaxed as not only to disqualify him apparently for any vigorous exertion of body, but to destroy everything like harmony in his air and movements. Indeed, in his whole appearance and demeanor, dress, attitudes, gesture, sitting, standing, or walking he is as far removed from the idolized graces of Lord Chesterfield as any other gentleman on earth. His head and face are small in proportion to his height; his complexion swarthy; the muscles of his face, being relaxed, make him appear to be fifty years of age, nor can he be much younger. His countenance has a faithful expression of great good humor and hilarity, while his black eyes, that unerring index, possess an irradiating spirit, which proclaims the imperial powers of the mind that sits enthroned within.”

About the same period of his life, Mr. Story, afterwards Judge Story, then a member of the bar, who was in Washington to argue the case of Fletcher v. Peck in the Supreme Court, thus describes the chief justice, in a letter to a friend:

“Marshall is of a tall, slender figure, not graceful or imposing, but erect and steady. His hair is black, his eyes small and twinkling, his forehead rather low, but his features are in general harmonious. His manners are plain, yet dignified, and an unaffected modesty diffuses itself through all his actions. His dress is very simple, yet neat. His language chaste, but hardly elegant. It does not flow rapidly, but it seldom wants precision. In conversation he is quite familiar, but is occasionally embarrassed by a hesitancy and drawling. His thoughts are always clear and ingenious, sometimes striking, and not often inconclusive.”

“He possesses great subtlety of mind, but it is only occasionally exhibited. I love his laugh, it is too hearty for an intriguer ; and his good-temper and unwearied patience are equally agreeable on the bench and in the study… .”

“He examines the intricacies of a subject with calm and persevering circumspection and unravels its mysteries with irresistible acuteness.” [2]

“There is no man in the court that strikes me like Marshall,” wrote Daniel Webster, then a member of Congress from New Hampshire. “I have never seen a man of whose intellect I had a higher opinion. [3]

Once, in allusion to the common expression of the chief justice, “It is admitted,” Webster remarked to Judge Story, “When Judge Marshall says, It is admitted, sir, I am preparing for a bomb to burst over my head and demolish all my points.” [4]

The abilities of the new chief justice were recognized by the profession and the public at the time of his appointment, but the attractive qualities of his heart and his kindly manners soon caused respect and reverence to ripen into affection. Perhaps no American citizen except Washington ever conciliated so large a measure of popularity and public esteem. He combined in a remarkable degree those attributes of mind and disposition which eminently fitted him for his station and made him a great magistrate.

“His mind,” in the words of an accomplished contemporary writer, [5] “is not very richly stored with knowledge, but it is so creative, so well organized by nature, or disciplined by early education and constant habits of systematic thinking, that he embraces every subject with the clearness and facility of one prepared by previous study to comprehend and explain it. So perfect is his analysis that he extracts the whole matter, the kernel of inquiry, unbroken, clean, and entire. In this process, such are the instinctive neatness and precision of his mind that no superfluous thought or even word ever presents itself, and still he says everything that seems appropriate to the subject.”

“It was matter of surprise,” says Judge Story, “to see how easily he grasped the leading principles of a case and cleared it of all its accidental incumbrances; how readily he evolved the true points of the controversy, even when it was manifest that he never before had caught even a glimpse of the learning upon which it depended. Perhaps no judge ever excelled him in the capacity to hold a legal proposition before the eyes of others in such various forms and colors. It seemed a pleasure to him to cast the darkest shades of objection over it, that he might show how they could be dissipated by a single glance of light. He would, by the most subtle analysis, resolve every argument into its ultimate principles; and then, with a marvelous facility, apply them to the decision of the cause.”

It is worthy of remark that perhaps no court has ever had the advantage of a more distinguished and able bar to practice in it than was the bar of the Supreme Court at the time when Marshall presided there. Of the thirteen original States, Massachusetts contributed the great names of Dexter and Webster; New York sent Hoffman, Wells, Ogden, Emmett, and Oakly; Pennsylvania supplied Tilghman, Rawle, Ingersoll, Duponceau, Hopkinson, Sergeant, and Binney, Maryland asserted a high place in the persons of William Pinkney and Robert Goodloe Harper; and Virginia was well represented by Wickham, Tazewell, Leigh, Edmund Randolph, Robert B. Taylor, Patton, the brilliant Wirt, and Walter Jones. The decisions of the chief justice may be said to bear the impress as well of the minds of these great lawyers as of his own.

In surveying the results of the labors of thirty-four years recorded in thirty-two volumes of reports, it is obvious that it was in the decision of cases involving international and constitutional law that the force and clearness of the chief justice’s intellect shone most conspicuous. Such was the ready assent of his colleagues on the bench to his supremacy in the exposition of constitutional law, that in such causes a dissenting opinion was almost unknown. Having had occasion to discuss and thoroughly study the Constitution, both in the Virginia convention which adopted it and afterward in the legislature, he had preconceived opinions concerning it, as well as perfect familiarity with it. But in the hot contest waging between the friends of a strict and those of a liberal construction of its language, he wished to take no part. He stated that there should be neither a liberal nor a strict construction, but that the simple, natural, and usual meaning of its words and phrases should govern their interpretation. [6] In the case of Gibbons v. Ogden, in which he is called upon to define the true rule of construction of the United States Constitution regarding the rights of the States and the rights and powers of the general government, he studiously avoids each extreme, steering safely in the middle course. He lays down his own rule thus clearly and definitely:

“This instrument contains an enumeration of powers expressly granted by the people to their government. It has been said that these powers ought to be construed strictly; but why ought they to be so construed? Is there one sentence in the Constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants expressly the means for carrying all others into execution, Congress is authorized to make all laws that shall be necessary and proper for the purpose. But this limitation on the means which may be used is not extended to the powers which are conferred, nor is there one sentence in the Constitution which has been pointed out by the gentlemen of the bar, or which we have been able to discern, that prescribes this rule. We do not therefore think ourselves justified in adopting it. What do gentlemen mean by a strict construction? If they contend only against that enlarged construction which would extend words beyond their natural and obvious import, we might question the application of the term, but should not controvert the principle. If they contend for that narrow construction which, in support of some theory not to be found in the Constitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects of the instrument; for that narrow construction which would cripple the government, and render it unequal to the objects for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent; then we cannot perceive the propriety of this strict construction, nor adopt it as a rule by which the Constitution is to be expounded.”

And again:

“Powerful and ingenious minds, taking as postulates that the powers expressly granted to the Union are to be contracted by construction into the narrowest possible compass, and that the original powers of the States are retained, if any possible construction will retain them, may, by a course of well-digested but refined and metaphysical reasoning founded on these premises, explain away the Constitution of our country and leave it a magnificent structure indeed to look at, but totally unfit for use. They may so entangle and perplex the understanding as to obscure principles which were before thought quite plain, and induce doubts where, if the mind were to pursue its own course, none would be perceived. In such a case it is peculiarly necessary to recur to safe and fundamental principles, to sustain those principles, and when sustained to make them the tests of the arguments to be examined.”

In another case Ogden v. Saunders, [7] he expounds incidentally the rule which ought to be applied to the construction of the Constitution.

“To say,” he observed, “that the intention of the instrument must prevail, that this intention must be collected from its words, that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended, that its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them nor contemplated by its framers, is to repeat what has been already said more at large, and is all that can be necessary.”

These are undoubtedly wise and sound views of the scope and powers of the federal government under the Constitution, which cannot be controverted. In view of our bitter experience of the evils of departing from them, exemplified in the disastrous and destructive civil war through which our country has so recently passed, it would seem that the language of the venerated chief justice was almost prophetic. Neither forcible nullification nor peaceable secession, claimed as legal and constitutional remedies for real or imaginary political wrongs, were to be found in the Constitution. They were the natural outcome of that narrow construction of the instrument which denied to the government those powers of self-assertion and self-preservation which were necessary not only to its purposes, but even to its existence.

Marshall’s dictum that there must be neither a strict nor a liberal construction of the Constitution, but that the natural meaning of the words must govern, was undoubtedly sound and wise. The broad proposition was above criticism; it meant only that the language of the instrument should not be stretched or wrenched in any direction; and, however politicians or even statesmen might feel, there was no other possible ground for a judge to take. Jefferson might regard it as a duty to make the Constitution as narrow and restricted as possible; Hamilton might feel that there was an actual obligation upon him to make it as broad and comprehensive as its words would admit. But Jefferson and Hamilton, in a different department of public life from Marshall, had duties and obligations correspondingly different from his. They might properly try to make the Constitution mean what it seemed to them for the public welfare that it should mean. Marshall could not consider any such matter; he had only to find and declare what it did mean, what its words actually and properly declared, not what they might possibly or desirably be supposed or construed to declare. This was the real force and the only real force of his foregoing assertion. As an abstract statement of his function it was impregnable.

But, as with most broad principles, the difficulty lay in the application of it to particular cases. The constitutional questions which came before Marshall chiefly took the form of whether or not the Constitution conferred some power or authority upon Congress, or upon the executive. Then the Federalist lawyers tried to show how much the language could mean, and the anti-Federalist counsel sought to show how little it could mean, and each urged that public policy was upon his side. The decision must be yes or no; the authority did or did not rest in the government. It was easy to talk about the natural and proper meaning of the words, but after all it was the question at issue; did they (not could they) say yes, or did they (not could they) say no, to the special authority sought to be exercised.

Now it is one thing to be impartial and another to be colorless in mind. Judge Marshall was impartial, and strongly possessed of the judicial instinct or faculty. But he was by no means colorless. He could no more eliminate from his mind an interest in public affairs, and opinions as to the preferable forms of government and methods of administration, than he could cut out and cast away his mind itself. Believing that the Constitution intended to create and did create a national government, and having decided notions as to what such a government must be able to do, he was subject to a powerful though insensible influence to find the existence of the required abilities in the government. Thus when he was asked what certain words meant, the meaning which they bore to his mind would often be different from the meaning which they bore to the mind of a person differing from him in opinion concerning the subject to which the words related. The meaning which the words had for him inevitably seemed their natural and proper meaning. Thus in all cases of doubt the decision must reflect the complexion of his mind. It cannot be denied, nor is it at all derogatory to him, that this was the case. The great majority of his decisions were in accordance with Federalist principles of construction and of policy. The Republicans all denounced him as a Federalist, even of an extreme type. The Federalists accepted him as one of themselves, but of course considered that, as a clear-minded and honest man, he could be nothing else. His very federalism was to them proof of his impartiality and sound judgment.

It is coming gradually to be conceded that the prevalence of the Federalist policy during the early years of our nationality was very fortunate for the country; that the party established a government neither too powerful nor too centralized; whereas the Republicans, if they had conquered the administration in the first plastic years, might have dangerously emasculated it. Marshall’s decisions have always been regarded as wise and fortunate for the nation. No judge or lawyer enjoys a greater or a more deserved reputation as a constitutional jurist. Yet it is true that in many of the causes before him— take for example the famous one involving the constitutionality of the United States Bank—he could have given opposite decisions, had he been so minded, and as matter of pure law these opposite decisions might often have been just as good as those which he did give. Ploughing in fresh ground, he could run his furrows in what direction he thought best, and could make them look straight and workmanlike. He had no rocks in the shape of authorities, no confusing undulations in collections of adjudications tending in one or another direction. He was making law; he had only to be logical and consistent in the manufacture. He made Federalist law in nine cases out of ten, and made it in strong, shapely fashion. A Republican judge, however, would have brought about a very different result, which, as we believe, would have been vastly less serviceable to the people, but of which the workmanship in a strictly professional and technical view might have been equally correct.

The difficulty of the task which Marshall had to perform must not be underrated by reason of this description. It may seem to the layman that it is a very easy matter to be a judge where one is, in a certain sense, equally free to decide arbitrarily in either the negative or the affirmative. The contrary is the case. To travel over a road paved with authorities and lined out by adjudications is a much simpler task than to cut a new road in a strange territory. Moderate learning, the aid of counsel’s arguments, painstaking and cautious habits, a little subtlety of mind, and good technical training will make a very reputable judge for the ordinary work of the bench. But to construct law, to frame in any department a system of jurisprudence, are tasks which call for an intellect of the highest order. The few judges who have performed such labors, Holt, Mansfield, Marshall, are the really great juridical lights. It may seem that it was comparatively simple for Marshall, in any case of entirely novel complexion, to say, It is or, It is not within the Constitution. But to support the decision by an opinion professionally and technically satisfactory, framed in accordance with the spirit of English law, consonant with its fundamental principles, to make it really satisfactory as a judicial opinion and not to leave it either as a ruling or an argument, was a much more difficult undertaking, which none save lawyers can fully appreciate. To deliver many such opinions, which, though upon distinct questions, should yet so combine and harmonize as in conjunction to create a system of constitutional law, was an achievement to which few judges who have ever lived could prove competent. The legal cast of mind must exist in a rare degree; the judicial faculty, an intellectual gift far beyond mere impartiality, must have an extraordinary development; great mental reach and scope, much exceeding what is usually admired as clearness of mind, are indispensable. The judge who rears such a monument to his memory will never be forgotten; in the united domain of English and American jurisprudence there are not half a dozen such memorials; but not the least distinguished is that of Marshall.

It is impracticable so much as to mention even all the important causes in which Marshall delivered the opinions. Yet a very few may, with difficulty, be selected from the mass for the purpose, at least, of showing his manner of treatment, if nothing more.

The first case in which he had to deal with a constitutional question involved the inquiry as to the power and the duty of the court to set aside an act of Congress because of its repugnance to the federal Constitution. This was in Marbury v. Madison. [8] The case possesses a peculiar interest because the decision was very distasteful to the President, and the opinion of the court delivered by the chief justice elicited a captious and very unbecoming criticism from Mr. Jefferson. The facts were as follows:

President Adams, before the expiration of his term of office, nominated Marbury to the Senate as justice of the peace for the District of Columbia. The nomination was confirmed by the Senate. A commission was filled up, signed by the President, and sealed with the seal of the United States, but had not been delivered when Mr. Jefferson succeeded to the office. He, acting on the idea that the appointment was incomplete and void so long as the commission remained undelivered, countermanded its issue. A petition for a mandamus was presented to the court by Marbury, requiring Mr. Madison, the secretary of state, to deliver it. The aid of the court was invoked on the ground that an act of Congress authorized that court “to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed by or persons holding office under the authority of the United States.” Two questions here presented themselves:

I. Whether the authority thus given to the Supreme Court by the said act, to issue writs of mandamus to public officers, was warranted by the Constitution.

II. If not, whether the court was competent to declare void the act which undertook to confer the authority.

The court first considered whether Marbury had a right to the commission which he claimed, and they decided that he had; that an appointment is complete when the commission is signed by the President, and when the seal of the United States has been affixed to it; and that to withhold such commission from an officer not removable at the will of the executive is violating a vested legal right.

As the legality of his conduct in directing Mr. Madison to withhold the commission from Marbury was drawn in question, though in no offensive sense, Mr. Jefferson might be pardoned for feeling much interest in the result. He took the ground that the validity of a commission, like that of a deed, depends on its delivery. The court thought otherwise; but as they also held that they had no cognizance of the case because the act of Congress conferring the power on them was in violation of the Constitution, Jefferson considered their opinion as to the legality of Marbury’s claim gratuitous, “an obiter dissertation of the chief justice, and a perversion of the law.” [9] The decision of the court, however, both on the question of jurisdiction and on its power and duty to declare an act of Congress to be unconstitutional and void has always commanded universal assent.

Marshall, Chief Justice, delivering the opinion of the court, said:

“The Constitution vests the whole judicial power of the United States in one Supreme Court, and such inferior courts as Congress shall, from time to time, ordain and establish.”

“In the distribution of this power it is declared that the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers, and consuls, and those in which a State shall be a party. In all other cases the Supreme Court shall have appellate jurisdiction. To enable this court, then, to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction. It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper is, in effect, the same as to sustain an original action for that paper, and, therefore, seems not to belong to appellate but to original jurisdiction. The authority, therefore, given to the Supreme Court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the Constitution, and it becomes necessary to inquire whether a jurisdiction so conferred can be exercised.”

“The question whether an act repugnant to the Constitution can become the law of the land is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. If an act of the legislature repugnant to the Constitution is void, does it, notwithstanding its in validity, bind the courts and oblige them to give it effect? Or, in other words, though it be not a law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration. It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So, if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case, so that the court must either decide that case conformably to the law disregarding the Constitution, or conformably to the Constitution disregarding the law, the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.”

Subsequently and upon the same reasoning, in Fletcher v. Peck, [10] the court declared void an act of the State of Georgia. The legislature of this State had passed an act authorizing a patent to issue for a tract of land within its limits. After the patent had been granted a succeeding legislature repealed the act which authorized it. It was contended that the first act was repugnant to the Constitution of Georgia; that the legislature which passed it had been bribed or corrupted; and that it was not competent for one legislative body to restrain a succeeding legislature from repealing its acts.

Marshall, Chief Justice, delivered the opinion of the court.

“The question whether a law be void for its repugnancy to the Constitution is at all times a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station could it be unmindful of the solemn obligations which that station imposes. But it is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other. In this case the court can perceive no such opposition. In the Constitution of Georgia, adopted in the year 1789, the court can perceive no restriction on the legislative powers which inhibits the passage of the act of 1795. The court cannot say that, in passing that act, the legislature has transcended its powers and violated the Constitution.”

“The case, as made out in the pleadings, is simply this. An individual who holds lands in the State of Georgia, under a deed covenanting that the title of Georgia was in the grantor, brings an action of covenant upon this deed, and assigns as a breach that some of the members of the legislature were induced to vote in favor of the law which constituted the contract by being promised an interest in it, and that therefore the act is a mere nullity. This solemn question cannot be brought thus collaterally and incidentally before the court. It would be indecent in the extreme, upon a private contract between two individuals, to enter into an inquiry respecting the corruption of the sovereign power of a State. If the title be plainly deduced from a legislative act, which the legislature might constitutionally pass, if the act be clothed with all the requisite forms of law, a court, sitting as a court of law, cannot sustain a suit brought by one individual against another, founded on the allegation that the act is a nullity in consequence of the impure motives which influenced certain members of the legislature which passed the law.”

“The principle asserted is, that one legislature is competent to repeal an act which a former legislature was competent to pass, and that one legislature cannot abridge the powers of a succeeding legislature. The correctness of this principle, so far as it respects general legislation, can never be controverted. But if an act be done under a law, a succeeding legislature cannot undo it. The past cannot be recalled by the most absolute power. Conveyances have been made, those conveyances have vested legal estates, and if those estates may be seized by the sovereign authority, still that they originally vested is a fact, and cannot cease to be a fact. When, then, a law is in its nature a contract, when absolute rights have vested under that contract, a repeal of the law cannot divest those rights… . The validity of this rescinding act, then, might be doubted, were Georgia a single sovereign power. But Georgia cannot be viewed as a single, unconnected, sovereign power, on whose legislature no other restrictions are imposed than may be found in its own Constitution. She is a part of a large empire; she is a member of the American Union; and that Union has a Constitution the supremacy of which all acknowledge, and which imposes limits to the legislatures of the several States, which none claim a right to pass. The Constitution of the United States declares that no State shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts.”

“Does the case now under consideration come within this prohibitory section of the Constitution? In considering this very interesting question we immediately ask ourselves, What is a contract? Is a grant a contract? A contract executed is one in which the object of contract is performed; and this, says Blackstone, differs in nothing from a grant. The contract between Georgia and the purchasers was executed by the grant. A contract executed, as well as one which is executory, contains obligations binding on the parties. A grant in its own nature amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right. A party is, therefore, always estopped by his own grant. … If, under a fair construction of the Constitution, grants are comprehended under the term “contracts,” is a grant from a State excluded from the operation of the provision? Is the clause to be considered as inhibiting the State from impairing the obligation of contracts between two individuals, but as excluding from that inhibition in contracts made with itself? The words themselves contain no such distinction. They are general, and are applicable to contracts of every description. Why, then, should violence be done to the natural meaning of words for the purpose of leaving to the legislature the power of seizing, for public use, the estate of an individual in the form of a law annulling the title in which he holds the estate? The court can perceive no sufficient grounds for making this distinction.”

The case of Dartmouth College, [11] which involved the important question whether a grant of corporate powers by Congress [12] is a contract, whose obligation the States are inhibited from impairing, attracted great attention at the time, by reason of some peculiar circumstances surrounding it, and to this day remains one of the most interesting and important causes which have ever arisen in the Supreme Court. The facts were these: A charter was granted to Dartmouth College in 1769 by the crown, on the representation that property would be given to the college if chartered; and after the charter was granted property was actually given. In 1816 the legislature of New Hampshire passed three acts amending the charter, which amendments the trustees would not accept. They resorted to the aid of the state courts, where judgment was given against them; then they appealed their case to the Supreme Court. Mr. Hopkinson and Mr. Webster appeared for the college, and the other side was represented by Mr. Wirt, then attorney-general of the United States, and Mr. Holmes. Great interest was manifested in the speeches of Webster and Wirt. Mr. Webster had argued the case in the courts below. He was familiar with the whole field of controversy. He was a graduate of the college, and his feelings as a man no less than his ambition as an advocate urged him to the utmost exertion of his intellect. His speech before the court consumed more than four hours, and was marked by his usual characteristics, great clearness of statement and much force and precision in his reasoning. His argument was considered one of the greatest of his forensic life. His noble peroration is familiar. Towards the close of it, overcome by emotion, the speaker proceeded with difficulty. Pausing to recover his composure, and fixing his eye on the chief justice, he said in that deep tone which so often thrilled the heart of an audience: “Sir, I know not how others may feel,” glancing at the opposing counsel before him, “but for myself, when I see my Alma Mater surrounded, like Caesar in the senate house, by those who are reiterating stab upon stab, I would not for this right hand have her turn to me and say, Et tu quoque, mi fili.” With this he sat down, leaving his whole audience profoundly moved.

The argument of Mr. Wirt, in support of the acts of the legislature amendatory of the college charter, was described as full, able, and eloquent.

The opinion of the court was delivered by Marshall, Chief Justice.

“This is plainly a contract to which the donors, the trustees, and the crown, to whose rights and obligations New Hampshire succeeds, were the original parties. It is a contract made on a valuable consideration. It is a contract for the security and disposition of property. It is a contract on the faith of which real and personal estate has been conveyed to the corporation. It is then a contract within the letter of the Constitution, and within its spirit also. Unless the fact that the property is invested by the donors in trustees, for the promotion of religion and education, for the benefit of persons who are perpetually changing, although the objects remain the same, shall create a particular exception, taking this case out of the prohibition contained in the Constitution. On what safe and intelligible ground can this exception stand? There is no expression in the Constitution, no sentiment delivered by its contemporaneous expounders, which would justify us in making it. In the absence of all authority of this kind, is there, in the nature and reason of the case itself, that which would sustain a construction of the Constitution not warranted by its words? Are contracts of this description of a character to excite so little interest that we must exclude them from the provisions of the Constitution as being unworthy of the attention of those who framed the instrument, or does public policy so imperiously demand their remaining exposed to legislative alteration as to compel us, or rather permit us, to say that these words, which were introduced to give stability to contracts, and which, in their plain import, comprehend this contract, must yet be so construed as to exclude it?”

He then proceeded through a course of careful reasoning to give a negative answer to these questions, and hence the opinion of the court was that the charter constituted a contract whose obligation the legislature of New Hampshire had attempted to impair, and that this action of the legislature was repugnant to the Constitution of the United States, and consequently void.

The celebrated case of McCulloch v. The State of Maryland [13] involved the question of the constitutional power of Congress to incorporate a national bank, a question which had elicited warm discussions throughout the country almost from the adoption of the Constitution, and which unhappily had been allowed to force itself into the political arena. It was insisted, on the one hand, that the Constitution conferred no authority on Congress to create a corporation, notwithstanding the clause conferring the power to make all laws that were necessary and proper to carry into effect the powers enumerated in the instrument; that these words meant only such laws as were absolutely and indispensably necessary, without which the powers conferred must be nugatory. On the other hand, it was contended that in order to carry on its operations the government must act by officers and agents, and that in the choice of these it was not restricted to means which were only absolutely necessary, but might have recourse to such as were proper and necessary in the ordinary sense and meaning of these words.

The case grew out of the following facts: In April, 1816, Congress incorporated the Bank of the United States. In 1817 a branch of this bank was established at Baltimore. In 1818 the legislature of Maryland passed a law to tax all banks or branches thereof situated in that State and not chartered by its legislature. The branch bank refused to pay this tax, and McCulloch, the cashier, was sued for it. Judgment was rendered against him in the Maryland courts, whence the case was carried before the Supreme Court, and the decision of that tribunal was looked for with great interest. The most distinguished counsel were engaged in the conduct and argument of the cause. Pinkney, Wirt, and Webster were of counsel for the Bank; Luther Martin, Hopkinson, and Walter Jones appeared for the State of Maryland. It is said that on this occasion Pinkney, who made the closing argument, delivered a speech of unrivaled splendor and power. In delivering the opinion, Marshall, Chief Justice, said:

“Although among the enumerated powers of government we do not find the word Bank, or Incorporation, we find the great powers to lay and collect taxes, to borrow money, to regulate commerce, to declare and conduct a war, and to raise and support armies and navies. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are intrusted to its government. The power being given, it is the interest of the nation to facilitate its execution. It can never be their interest, and cannot be presumed to have been their intention, to clog and embarrass its execution by withholding the most appropriate means. Throughout this vast republic, from the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be marched and supported. … Is that construction of the Constitution to be preferred which would render these operations difficult, hazardous, and expensive? Can we adopt that construction, unless the words imperiously require it, which would impute to the framers of that instrument, when granting these powers for the public good, the intention of impeding their exercise, by withholding the choice of means? The government, which has a right to do an act, and has imposed on it the duty of performing that act, must, according to the dictates of reason, be allowed to select the means; and those who contend that it may not select any appropriate means, that one particular mode of effecting the object is excepted, take upon themselves to prove the exception… . But the Constitution of the United States has not left the right of Congress to employ the necessary means for the execution of the powers conferred on the government to general reasoning. To its enumeration of powers is added that of making all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States or any department thereof. To employ the means necessary to an end is generally understood as employing any means calculated to produce the end, and not as being confined to those single means without which the end would be entirely unattainable… . The good sense of the people has pronounced without hesitation that the power of punishment appertains to sovereignty, and may be exercised, whenever the sovereign has a right to act, as incidental to his constitutional powers. It is a means for carrying into execution all sovereign powers, and may be used, although not indispensably necessary. It is a right incidental to the power and conducive to its beneficial exercise. If the word necessary means needful, essential, requisite, conducive to, in order to let in the power of punishment for the infraction of law, why is it not equally comprehensive, when required to authorize the use of means which facilitate the execution of the powers of government, without the infliction of punishment?”

As to the other question, whether the Bank or its branches may be taxed by the States, he said:

“That the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create; that there is a plain repugnance in conferring on one government a power to control the constitutional measures of another, which other, with respect to those very measures, is declared to be supreme over that which exerts the control, are propositions not to be denied. If the States may tax one instrument employed by the government in the execution of its powers, they may tax any and every other instrument. They may tax the mail; they may tax the mint; they may tax patent rights; they may tax the papers of the custom-house; they may tax judicial process; they may tax all the means employed by the government, to an excess which would defeat all the ends of government. This was not intended by the American people. They did not design to make their government dependent on the States.”

The decision of the court, in harmony with this reasoning, was that Congress possessed the power to charter the Bank with branches in any of the States, and that such branches could not be taxed by state authority.

To these leading cases, in which the Supreme Court was called upon, at an early day, to expound and reconcile questions of apparent conflict between federal and state laws under the Constitution, we add another, which occasioned great interest at the time, and has since firmly established the rule of the law.

In the case of Cohen v. State of Virginia, two very important questions were presented for adjudication: namely, whether the court could exercise jurisdiction where one of the parties was a State and the other was a citizen of that State; and secondly, whether, in the exercise of of its appellate jurisdiction, it could revise the judgment of a state court in a case arising under the Constitution, laws, and treaties of the United States. The court held that it had jurisdiction in both cases.

The facts involved in the case were these: An act of Congress authorized the city of Washington to establish a lottery, and by virtue of the act the lottery was established. Cohen was indicted at Norfolk, Virginia, for selling tickets of this lottery, contrary to a law of Virginia prohibiting such sales. In the state court he claimed the protection of the act of Congress under which the lottery was established; but judgment being given against him, he sued out a writ of error to the Supreme Court of the United States. There the judgment of the state court was sustained; it being held that the lottery law did not control the laws of the States prohibiting the sale of the tickets. The chief interest of the case, however, depended on the question, whether the Supreme Court could take cognizance of it; and it is with reference to that point that the opinion of the court is quoted. Chief Justice Marshall said:

“It [the Supreme Court] is authorized to decide all cases of every description arising under the Constitution or laws of the United States. From this general grant of jurisdiction no exception is made of those cases in which a State may be a party. When we consider the situation of the government of the Union and of a State in relation to each other, the nature of our Constitution, the subordination of the state governments to that Constitution, the great purpose for which jurisdiction over all cases arising under the Constitution and laws of the United States is confided to the judicial department, are we at liberty to insert in this general grant an exception of those cases in which a State may be a party? Will the spirit of the Constitution justify this attempt to control its words? We think it will not. We think a case arising under the Constitution or laws of the United States is cognizable in the courts of the Union, whoever may be the parties to that case. The laws must be executed by individuals acting within the several States. If these individuals may be exposed to penalties, and if the courts of the Union cannot correct the judgments by which these penalties may be enforced, the course of the government may be at any time arrested by the will of one of its members. Each member will possess a veto on the will of the whole.”

“That the United States form, for many and for most important purposes, a single nation has not yet been denied. These States are constituent parts of the United States. They are members of one great empire, for some purposes sovereign, for some purposes subordinate. In a government so constituted is it unreasonable that the judicial power should be competent to give efficacy to the constitutional laws of the legislature? That department can decide on the validity of the Constitution or law of a State, if it be repugnant to the Constitution or to a law of the United States. Is it unreasonable that it should also be empowered to decide on the judgment of a state tribunal enforcing such unconstitutional law? Is it so very unreasonable as to furnish a justification for controlling the words of the Constitution? We think not… . The exercise of the appellate power over those judgments of the state tribunals which may contravene the Constitution or laws of the United States is, we believe, essential to the attainment of those objects.”

  1. For this original letter and for other facilities in his work, the author is indebted to Mr. John Marshall of Markham, Va., the grandson, and to the Marshall family of Happy Creek, Warren County, Va., descendants of the chief justice. Return to text.
  2. Story’s Life and Letters, vol. i, p. 166.  Return to text.
  3. Private Correspondence of Daniel Webster, vol. i, p. 243.  Return to text.
  4. Story’s Life and Letters, vol. ii, p. 505.  Return to text.
  5. Sketches and Essays of Public Characters, by Francis W. Gilmer.  Return to text.
  6. Wheaton, vol. ix, p. 187.  Return to text.
  7. Wheaton, vol. xii, p. 332.  Return to text.
  8. Cranch’s Reports, vol. i, p. 158.  Return to text.
  9. Jefferson’s Works, vol. vii, p. 290.  Return to text.
  10. Cranch’s Reports, vol. vi, p. 87.  Return to text.
  11. Wheaton, vol. iv, p. 518.  Return to text.
  12. KCW: This is a blooper. Magruder should have written something like “corporate charter existing under state law,” rather than “a grant of corporate powers by Congress.”  Return to text.
  13. Wheaton, vol. iv, p. 316. Return to text.