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
circumstances 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 constituted a part of my being. I carried them with me into the
army, where I found myself associated 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 classical
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, attitude, 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 Constitution 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 assuring 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 Constitution, which they are to guard against.... They would declare
it void." In the end the Convention ratified the Constitution by a
majority of ten votes, a result probably influenced by the circumstance
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 Washington's administrations, including the
Jay treaty, and became a leader of the Federalist party, which, in spite
of Washington'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
Washington, 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 associated with Charles Cotesworth Pinckney, of South Carolina,
and Elbridge Gerry, of Massachusetts.
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 assisted in maintaining a firm and
dignified position in the negotiations. His entrance into Philadelphia
"had the _éclat_ of a triumph." It was at a public dinner given to him
by members of both Houses of Congress that the sentiment was pronounced,
"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 entitled 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
Washington, 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
canvass, and in December, 1799, took his seat. He immediately assumed 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 illustration 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 passed by Congress for the execution of the
treaty, it was incumbent 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 constitutional 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 Constitution 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, passed 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 constitute 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 assertion 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 Constitution 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
Constitution 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 illustration 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.
When Marshall took his seat upon the bench, the Supreme Court, since its
organization in 1790, had rendered only six decisions involving
constitutional questions. Of his three predecessors, Jay, Rutledge, and
Ellsworth, the second, Rutledge, after sitting one term under a recess
appointment, retired in consequence of his rejection by the Senate; and
neither Jay nor Ellsworth, though both were men of high capacity, had
found in their judicial station, the full importance of which was
unforeseen, an opportunity for the full display of their powers, either
of mind or of office. The coming of Marshall to the seat of justice
marks the beginning of an era which is not yet ended, and which must
endure so long as our system of government retains the essential
features with which it was originally endowed. With him really began the
process, peculiar to our American system, of the development of
constitutional law by means of judicial decisions, based upon the
provisions of a fundamental written instrument and designed for its
exposition and enforcement. By the masterful exercise of this momentous
jurisdiction, he profoundly affected the course of the national life and
won in the knowledge and affections of the American people a larger and
higher place than ever has been filled by any other judicial magistrate.
From 1801 to 1835, in the thirty-four years during which he presided in
the Supreme Court, sixty-two decisions were rendered involving
constitutional questions, and in thirty-six of these the opinion of the
court was written by Marshall. In the remaining twenty-six the
preparation of the opinions was distributed among his associates, who
numbered five before 1808 and after that date six. During the whole
period of his service, his dissenting opinions numbered eight, only one
of which involved a constitutional question. Nor was the supremacy which
this record indicates confined to questions of constitutional law. The
reports of the court during Marshall's tenure fill thirty volumes,
containing 1,215 cases. In ninety-four of these no opinions were filed,
while fifteen were decided "by the court." In the remaining 1,106 cases
the opinion of the court was delivered by Marshall in 519, or
nearly one-half.
A full review of the questions of constitutional law decided by the
Supreme Court during Marshall's term of service would involve a
comprehensive examination of the foundations on which our constitutional
system has been reared; but we may briefly refer to certain leading
cases by which fundamental principles were established.
In one of his early opinions he discussed and decided the question
whether an Act of Congress repugnant to the Constitution is void. This
question was then by no means free from difficulty and doubt. The
framers of the Constitution took care to assure its enforcement by
judicial means against inconsistent State action, by the explicit
provision that the Constitution itself, as well as Federal statutes and
treaties, should be the "supreme law" of the land, and as such binding
upon the State judges, in spite of anything in the local laws and
constitutions. But as to the power of the courts to declare
unconstitutional a Federal statute, the instrument was silent. There is
reason to believe that this silence was not unintentional; nor would it
be difficult to cite highly respectable opinions to the effect that the
courts, viewed as a co-ordinate branch of the government, have no power
to declare invalid an Act of the Legislature, unless they possess
express constitutional authority to that effect. We have seen that
Marshall expressed in the discussions of the Virginia convention a
contrary view; but it is one thing to assert an opinion in debate and
another thing to declare it from the bench, especially in a case
involved in or related to political contests; and such a case was
Marbury _v_. Madison.