appointed as a justice of the peace by John Adams, just before his
vacation of the office of President. It was one of the so-called
"midnight" appointments of President Adams, which became a subject of
heated political controversy. It was alleged that Marbury's commission
had been made out, sealed, and signed, but that Mr. Madison, who
immediately afterwards became Secretary of State, withheld it from him.
Marbury therefore applied to the Supreme Court for a writ of _mandamus_
to compel its delivery. In the course of the judgment, which was
delivered by Marshall, opinions were expressed on certain questions the
decision of which was not essential to the determination of the case,
and into these it is unnecessary now to enter, although one of them has
been cited and acted upon as a precedent. But on one point the decision
of the court was requisite and fundamental, and that was the point of
jurisdiction. It was held that the court had no power to grant the writ,
because the Federal statute by which the jurisdiction was sought to be
conferred was repugnant to the Constitution of the United States. This
was the great question decided, and it was a decision of the first
importance, since its assertion of the final authority of the judicial
power, in the interpretation and enforcement of our written
constitutions, came to be accepted almost as an axiom of American
jurisprudence. In the course of his reasoning, Chief Justice Marshall
expressed in terms of unsurpassed clearness the principle which lay at
the root of his opinion. "It is," he declared, "emphatically the
province and duty of the judicial department to say what the law is....
If two laws conflict with each other, the courts must decide on the
operation of each.... 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. Those, then, who controvert the
principle that the Constitution is to be considered in court as a
paramount law, are reduced to the necessity of maintaining that courts
must close their eyes on the Constitution and see only the law. This
doctrine would subvert the very foundation of all written
constitutions." In subsequently applying this rule, Marshall affirmed
that the courts ought never to declare an Act of Congress to be void
"unless upon a clear and strong conviction of its incompatibility with
the Constitution." Nevertheless, the power has been constantly and
frequently exercised; and there can be no doubt that from its exercise
the Supreme Court of the United States derives a political importance
not possessed by any other judicial tribunal.
While the supremacy of the Constitution was thus judicially asserted
over the acts of the national legislature, by another series of
decisions its proper supremacy over acts of the authorities of the
various States was in like manner vindicated. Of this series we may take
as an example Cohens _v_. Virginia, decided in 1828. In this case a
writ of error was obtained from the Supreme Court of the United States
to a court of the State of Virginia, in order to test the validity of a
statute of that State which was supposed to be in conflict with a law of
the United States. It was contended on the part of Virginia that the
Supreme Court could exercise no supervision over the decisions of the
State tribunals, and that the clause in the Judiciary Act of 1789 which
purported to confer such jurisdiction was invalid. In commenting upon
this argument, Chief Justice Marshall observed that if the Constitution
had provided no tribunal for the final construction of itself, or of the
laws or treaties of the nation, then the Constitution and the laws and
treaties might receive as many constructions as there were States. He
then proceeded to demonstrate that such a power of supervision existed,
maintaining that the general government, though limited as to its
objects, was supreme with respect to those objects, and that such a
right of supervision was essential to the maintenance of that supremacy.
In 1819, he delivered in the case of McCulloch _v_. Maryland what is
generally regarded as his greatest and most carefully reasoned opinion.
The particular questions involved were those (1) of the power of the
United States to incorporate a bank, and (2) of the freedom of a bank so
incorporated from State taxation or control. The United States bank,
which Congress had rechartered in 1816, had established a branch in
Maryland. Soon afterwards the Legislature passed an Act requiring all
banks situated in the State to issue their notes on stamped paper, the
object being to strike at the branch bank by indirectly taxing it. The
case was 'argued before the Supreme Court by the most eminent lawyers of
the day, Pinkney, Webster, and Wirt appearing for the bank, and Luther
Martin, Joseph Hopkinson, and Walter Jones for the State of Maryland.
The unanimous opinion of the court was delivered by Marshall. It
asserted not only the power of the Federal government to incorporate a
bank, but also the freedom of such a bank from the taxation, control, or
obstruction of any State. While no express power of incorporation was
given by the Constitution, yet it was found to be a power necessarily
implied, since it was essential to the accomplishment of the objects of
the Union. This principle Marshall laid down in these memorable words:
"Let the end be legitimate, let it be within the scope of the
Constitution, and all means which are appropriate, which are plainly
adapted to that end, which are not prohibited, but consist with the
letter and spirit of the Constitution, are constitutional."
Of no less importance than the opinions heretofore mentioned are those
that deal with the power of the general government to regulate commerce
and to preserve it from hindrance on the part of the States. Of these
the chief example is that which was delivered in the case of Gibbons
_v_. Ogden, in 1824. By the Legislature of New York an exclusive right
had been granted to Chancellor Livingston and Robert Fulton for a term
of years to navigate the waters of the State with steam. The validity of
this statute had been maintained by the judges in New York, including
Chancellor Kent, and an injunction had been issued restraining other
persons from running steamboats between Elizabethtown, New Jersey, and
the city of New York, although they were enrolled and licensed as
coasting vessels under the laws of the United States. The Supreme Court,
speaking through Marshall, held the New York statute to be
unconstitutional. By the Constitution of the United States, Congress is
invested with power "to regulate commerce with foreign nations and
among the several States." The term "commerce" Marshall declared to
embrace all the various forms of intercourse, including navigation, and
he affirmed that "wherever commerce among the States goes, the judicial
power of the United States goes to protect it from invasion by State
legislatures."
Mr. Justice Bradley declared that it might truly be said that "the
Constitution received its permanent and final form from judgments
rendered by the Supreme Court during the period in which Marshall was at
its head;" and that, "with a few modifications, superinduced by the
somewhat differing views on two or three points of his great successor,
and aside from the new questions growing out of the Civil War and the
recent constitutional amendments, the decisions made since Marshall's
time have been little more than the applications of principles
established by him and his venerated associates." To the rule that
Marshall's great constitutional opinions continue to be received as
authority, there are, however, a few exceptions, the chief of which is
that delivered in the Dartmouth College Case, the particular point of
which--that acts of incorporation constitute contracts which the State
legislatures can neither alter nor revoke--has been greatly limited by
later decisions, while its effect has been generally obviated by express
reservations of the right of amendment and repeal. With rare exceptions,
however, his constitutional opinions not only remain unshaken, but
continue to form the very warp and woof of the law, and "can scarcely
perish but with the memory of the Constitution itself." Nor should we,
in estimating his achievements, lose sight of the almost uncontested
ascendency which he exercised, in matters of constitutional law, over
the members of the tribunal in which he presided, in spite of what might
have been supposed to be their predilections. When constitutional
questions trench, as they often do, on the domain of statesmanship, it
is natural, especially where precedents are lacking, that judges should
divide upon them in accordance with the views of government maintained
by the political parties with which they previously acted; and after
1811, a majority of Marshall's associates on the bench held their
appointment from administrations of the party opposed to that to which
he had belonged. This circumstance, however, does not appear to have
disturbed the consistent and harmonious development of the system to
which he was devoted; and it was in the second half of his term of
service that many of the most important cases--such as McCulloch _v_.
Maryland, Cohens _v_. Virginia, and Gibbons _v_. Ogden, in which he
asserted the powers of national government--were decided.
Nor is it alone upon his opinions on questions of constitutional law
that Marshall's fame as a judge rests. The decisions of the Supreme
Court on constitutional questions naturally attract greater popular
interest than its judgments in other matters; but we have seen that its
jurisdiction embraces a wide range of subjects. Nor is it desirable that
its sphere of action should be circumscribed in the direction of
confining it to questions that have a semi-political aspect. Indeed, it
may be believed that the safety and permanence of the court would be
best assured by extending rather than by contracting its jurisdiction in
ordinary comercial subjects. In dealing with such subjects, however,
Marshall did not achieve that pre-eminence which he acquired in the
domain of constitutional law, a fact doubtless to be accounted for by
the defects of his early legal education, since no originality of mind
can supply the place of learning in matters which depend upon reasoning
more or less technical and artificial. But in the domain of
international law, in which there was greater opportunity for elementary
reasoning, he exhibited the same traits of mind, the same breadth and
originality of thought, the same power in discovering, and the same
certainty in applying, fundamental principles that distinguished him in
the realm of constitutional discussions; and it was his lot on more than
one occasion to blaze the way in the establishment of rules of
international conduct. During the period of his judicial service,
decisions were rendered by the Supreme Court in 195 cases involving
questions of international law, or in some way affecting international
relations. In eighty of these cases the opinion of the court was
delivered by Marshall; in thirty-seven by Mr. Justice Story; in
twenty-eight by Mr. Justice Johnson; in nineteen, by Mr. Justice
Washington; in fourteen by Mr. Justice Livingston; in five, by Mr.
Justice Thompson; and in one each by Justices Baldwin, Gushing, and
Duvall. In eight the decision was rendered "by the court." In five cases
Marshall dissented. As an evidence of the respect paid to his opinions
by publicists, the fact may be pointed out that Wheaton, in the first
edition of his "Elements of International Law," makes 150 judicial
citations, of which 105 are English and 45 American, the latter being
mostly Marshall's. In the last edition he makes 214 similar citations,
of which 135 are English and 79 American, the latter being largely
Marshall's; and it is proper to add that one of the distinctive marks of
his last edition is the extensive incorporation into his text of the
words of Marshall's opinions. Out of 190 cases cited by Hall, a recent
English publicist of pre-eminent merit, 54 are American, and in more
than three-fifths of these the opinions are Marshall's.
One of the most far-reaching of all Marshall's opinions on questions of
international law was that which he delivered in the case of the
schooner "Exchange," decided by the Supreme Court in 1812. In preparing
this opinion he was, as he declared, compelled to explore "an unbeaten
path, with few, if any, aids from precedents or written laws;" for the
status of a foreign man-of-war in a friendly port had not then been
defined, even by the publicists. The "Exchange" was an American vessel,
which had been captured and confiscated by the French under the
Rambouillet decree,--a decree which both the Executive and the Congress
of the United States had declared to constitute a violation of the law
of nations. She was afterwards converted by the French government into a
man-of-war, and commissioned under the name of the "Balaou." In this
character she entered a port of the United States, where she was
libelled by the original American owners for restitution. Seasoning by
analogy, Marshall, in a remarkably luminous opinion, held that the
vessel, as a French man-of-war, was not subject to the jurisdiction of
the ordinary tribunals; and his opinion forms the basis of the law on
the subject at the present day.
By this decision, the rightfulness or the wrongfulness of the capture
and condemnation of the "Exchange" was left to be determined by the two
governments as a political question. In this respect Marshall
maintained, as between the different departments of government, when
dealing with questions of foreign affairs, a distinction which he
afterwards sedulously preserved, confining the jurisdiction of the
courts to judicial questions. Thus he laid it down in the clearest terms
that the recognition of national independence, or of belligerency, being
in its nature a political act, belongs to the political branch of the
government, and that in such matters the courts follow the political
branch. Referring, on another occasion, to a similar question, he said:
"In a controversy between two nations concerning national boundary, it
is scarcely possible that the courts of either side should refuse to
abide by the measures adopted by its own government.... If those
departments which are entrusted with the foreign intercourse of the
nation, which assert and maintain its interests against foreign powers
have unequivocally asserted its rights of dominion over a country of
which it is in possession, and which it claims under a treaty; if the
legislature has acted on the construction thus asserted, it is not in
its own courts that this construction is to be denied." (Foster
_v_. Neilson).
In the case of the American Insurance Company _v_. Canter, he asserted
the right of the government to enlarge the national domain, saying: "The
Constitution confers absolutely on the government of the Union the power
of making war and of making treaties; consequently, that government
possesses the power of acquiring territory, either by conquest or by
treaty." But he held the rights of private property in such case to be
inviolate (U.S. _v_. Percheman). The most luminous exposition of
discovery as a source of title, and of the nature of Indian titles, is
to be found in one of his opinions (Johnson _v_. McIntosh).
A fundamental doctrine of international law is that of the equality of
nations. If a clear and unequivocal expression of it be desired, it may
be found in the opinion of Marshall in the case of "The Antelope." "No
nation," he declared, "can make a law of nations. No principle is more
universally acknowledged than the perfect equality of nations. Russia
and Geneva have equal rights." And when the representatives of the
United States fifty years later sought to establish at Geneva the
liability of Great Britain for the depredations of the "Alabama" and
other Confederate cruisers fitted out in British ports in violation of
neutrality, one of the strongest authorities on which they relied was
his opinion in the case of the "Gran Para."
In the decision of prize cases, Marshall, unlike some of his associates,
was disposed to moderate the rigor of the English doctrines, as laid
down by Sir William Scott. "I respect Sir William Scott," he declared on
a certain occasion, "as I do every truly great man; and I respect his
decisions; nor should I depart from them on light grounds; but it is
impossible to consider them attentively without perceiving that his mind
leans strongly in favor of the captors." This liberal disposition,
blended with independence of judgment, led Marshall to dissent from the
decision of the court in two well-known cases. In one of these, which is
cited by Phillimore as the "great case" of "The Venus," it was held that
the property of an American citizen domiciled in a foreign country
became, on the breaking out of war with that country, immediately
confiscable as enemy's property, even though it was shipped before he
had knowledge of the war. Marshall dissented, maintained that a mere
commercial domicile ought not to be presumed to continue longer than
the state of peace, and that the fate of the property should depend upon
the conduct of the owner after the outbreak of the war, in continuing to
reside and trade in the enemy's country or in taking prompt measures to
return to his own. In the other case--that of the "Commercen"--he sought
to disconnect the war in which Great Britain was engaged on the
continent of Europe from that which she was carrying on with the United
States, and to affirm the right of her Swedish ally to transport
supplies to the British army in the Peninsula without infringing the
duties of neutrality towards the United States. As to his opinion in the
case of "The Venus," Chancellor Kent declared that there was "no doubt
of its superior solidity and justice;" and it must be admitted that his
opinion in the case of the "Commercen," rested on strong logical
grounds, since the United States and the allies of Great Britain in the
war on the Continent never considered themselves as enemies.
It is not, however, by any means essential to Marshall's pre-eminence as
a judge, to show that his numerous opinions are altogether free from
error or inconsistency. In one interesting series of cases, relating to
the power of a nation to enforce prohibitions of commerce by the seizure
of foreign vessels outside territorial waters, the views which he
originally expressed in favor of the existence of such a right appear to
have undergone a marked, if not radical, change, in favor of the wise
and salutary exemption of ships from visitation and search on the high
seas in time of peace (Rose _v_. Himely),--a principle which he affirmed
on more than one occasion (The Antelope). In the reasoning of another
case, though not in its result, we may perhaps discern traces of the
preconceptions formed by the advocate in the argument concerning the
British debts. This was the case of Brown _v_. United States, which
involved the question of the confiscability of the private property of
an enemy on land, by judicial proceedings, in the absence of an Act of
Congress expressly authorizing such proceedings. On the theory that war
renders all property of the enemy liable to confiscation, Mr. Justice
Story, with the concurrence of one other member of the Court, maintained
that the Act of Congress declaring war of itself gave ample authority
for the purpose. The majority held otherwise, and Marshall delivered the
opinion. Referring to the practice of nations and the writings of
publicists, he declared that, according to "the modern rule," "tangible
property belonging to an enemy and found in the country at the
commencement of war, ought not to be immediately confiscated;" that
"this rule" seemed to be "totally incompatible with the idea that war
does of itself vest the property in the belligerent government;" and,
consequently, that the declaration of war did not authorize the
confiscation. Since effect was thus given to the modern usage of
nations, it was unnecessary to declare, as he did in the course of his
opinion, that "war gives to the sovereign full right to take the persons
and confiscate the property of the enemy, wherever found," and that the
"mitigations of this rigid rule, which the humane and wise policy of
modern times has introduced into practice," though they "will more or
less affect the exercise of this right," "cannot impair the right
itself." Nor were the two declarations quite consistent. The supposition
that usage may render unlawful the exercise of a right, but cannot
impair the right itself, is at variance with sound theory. Between the
effect of usage on rights, and on the exercise of rights, the law draws
no precise distinction. A right derived from custom acquires no
immutability or immunity from the fact that the practices out of which
it grew were ancient and barbarous. We may therefore ascribe the dictum
in question to the influence of preconceptions, and turn for the true
theory of the law to an opinion of the same great judge, delivered
twenty years later, in which he denied the right of the conqueror to
confiscate private property, on the ground that it would violate "the
modern usage of nations, which has become law" (U.S. _v_. Percheman).
United with extraordinary powers of mind, we find in Marshall the
greatest simplicity of life and character. In this union of simplicity
and strength he illustrated the characteristics of the earlier period
of our history. He has often been compared with the great judges of
other countries. He has been compared with Lord Mansfield; and although
he did not possess the extensive learning and elegant accomplishments of
that renowned jurist, the comparison is not inappropriate when we
consider their breadth of understanding and powers of reasoning; and yet
Mansfield, as a member of the House of Lords, defending the prerogatives
of the Crown and Parliament, and Marshall as an American patriot, sword
in hand, resisting in the field the assumptions of imperial power,
represent opposite conceptions. He has been compared with Lord Eldon;
and it may be that in fineness of discrimination and delicate
perceptions of equity he was excelled by that famous Lord Chancellor;
and yet no greater contrast could be afforded than that of Eldon's
uncertainty and procrastination on the bench with Marshall's bold and
masterful readiness. He has been compared with Lord Stowell, and it may
be conceded that in clearness of perception, skill in argument, and
elegance of diction, Lord Stowell has seldom if ever been surpassed. And
yet it may be said of Marshall that, in the strength and clearness of
his conceptions, in the massive force and directness of his reasoning,
and in the absolute independence and fearlessness with which he
announced his conclusions, he presents a combination of qualities which
not only does not suffer by any comparison, but which was also
peculiarly his own.
Mr. Justice Miller once declared that the Supreme Court of the United
States was, "so far as ordinary forms of power are concerned, by far the
feeblest branch or department of the Government. It must rely," he
added, "upon the confidence and respect of the public for its just
weight and influence, and it may be confidently asserted that neither
with the people, nor with the country at large, nor with the other
branches of the government, has there ever been found wanting that
respect and confidence." The circumstance that this statement of the
learned justice, himself one of the brightest ornaments of the tribunal
of which he spoke, has been received with general assent, affords the
strongest proof that the successors of the Great Chief Justice and his
associates have in no way fallen short of the measure of their trust;
for, no matter how deeply the court may as an institution have been
planted in the affections of the people, and no matter how important it
may be to the operation of our system of government, its position and
influence could not have been preserved had its members been wanting
either in character, in conduct, or in attainments.
AUTHORITIES.