When Marshall took his seat upon the bench, the Supreme Court, since its organization in 1790, had rendered only six decisions involving const.i.tutional 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 const.i.tutional 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 const.i.tutional 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 a.s.sociates, 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 const.i.tutional question. Nor was the supremacy which this record indicates confined to questions of const.i.tutional 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 const.i.tutional law decided by the Supreme Court during Marshall's term of service would involve a comprehensive examination of the foundations on which our const.i.tutional 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 Const.i.tution is void. This question was then by no means free from difficulty and doubt. The framers of the Const.i.tution took care to a.s.sure its enforcement by judicial means against inconsistent State action, by the explicit provision that the Const.i.tution 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 const.i.tutions. But as to the power of the courts to declare unconst.i.tutional 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 const.i.tutional 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 a.s.sert 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.

Marbury was a citizen of the District of Columbia, who had been 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 Const.i.tution of the United States. This was the great question decided, and it was a decision of the first importance, since its a.s.sertion of the final authority of the judicial power, in the interpretation and enforcement of our written const.i.tutions, came to be accepted almost as an axiom of American jurisprudence. In the course of his reasoning, Chief Justice Marshall expressed in terms of unsurpa.s.sed 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 Const.i.tution, and the Const.i.tution is superior to any ordinary Act of the Legislature, the Const.i.tution and not such ordinary Act must govern the case to which they both apply. Those, then, who controvert the principle that the Const.i.tution 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 Const.i.tution and see only the law. This doctrine would subvert the very foundation of all written const.i.tutions." 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 Const.i.tution." 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 Const.i.tution was thus judicially a.s.serted 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 Const.i.tution had provided no tribunal for the final construction of itself, or of the laws or treaties of the nation, then the Const.i.tution 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 pa.s.sed 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 a.s.serted 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 Const.i.tution, 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 Const.i.tution, 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 Const.i.tution, are const.i.tutional."

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 unconst.i.tutional. By the Const.i.tution 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 Const.i.tution 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 const.i.tutional amendments, the decisions made since Marshall's time have been little more than the applications of principles established by him and his venerated a.s.sociates." To the rule that Marshall's great const.i.tutional 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 const.i.tute 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 const.i.tutional 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 Const.i.tution itself." Nor should we, in estimating his achievements, lose sight of the almost uncontested ascendency which he exercised, in matters of const.i.tutional law, over the members of the tribunal in which he presided, in spite of what might have been supposed to be their predilections. When const.i.tutional 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 a.s.sociates on the bench held their appointment from administrations of the party opposed to that to which he had belonged. This circ.u.mstance, 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 a.s.serted the powers of national government--were decided.

Nor is it alone upon his opinions on questions of const.i.tutional law that Marshall's fame as a judge rests. The decisions of the Supreme Court on const.i.tutional 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 circ.u.mscribed 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 a.s.sured 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 const.i.tutional 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 const.i.tutional 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 const.i.tute 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 rest.i.tution. Seasoning by a.n.a.logy, 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 a.s.sert and maintain its interests against foreign powers have unequivocally a.s.serted 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 a.s.serted, 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 a.s.serted the right of the government to enlarge the national domain, saying: "The Const.i.tution 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 t.i.tle, and of the nature of Indian t.i.tles, 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 a.s.sociates, 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 ill.u.s.trated 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 a.s.sumptions 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 surpa.s.sed. And yet it may be said of Marshall that, in the strength and clearness of his conceptions, in the ma.s.sive 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 a.s.serted 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 circ.u.mstance 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 a.s.sent, affords the strongest proof that the successors of the Great Chief Justice and his a.s.sociates have in no way fallen short of the measure of their trust; for, no matter how deeply the court may as an inst.i.tution 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.

Chief Justice Marshall: an address by Mr. Justice Story; Eulogy on the life and character of John Marshall, by Horace Binney; John Marshall, by Allan B. Magruder (American Statesmen Series); The Development of the Const.i.tution as influenced by Chief Justice Marshall, by Henry Hitchc.o.c.k; John Marshall, by J.B. Thayer; The Supreme Court of the United States, by W.W. Willoughby; John Marshall, by C.F. Libby; Chief Justice Marshall, by John F. Dillon; Mr. Justice Bradley, Century Magazine, December, 1889; and cases in the Reports of the Supreme Court of the United States as follows: Ware _v_. Hylton, 3 Dallas, 199; Marbury _v_. Madison, 1 Cranch, 137; Cohens _v_. Virginia, 6 Wheaton, 264; McCulloch _v_. Maryland, 4 Wheaton, 316, 421; Gibbons _v_. Ogden, 9 Wheaton, 1; Schooner Exchange _v_. McFaddon, 7 Cranch, 116; Foster _v_.

Neilson, 2 Peters, 253; American Insurance Co. _v_. Canter, I Peters, 511; U.S. _v_. Percheman, 7 Peters, 51; Johnson v. McIntosh, 8 Wheaton, 543; The Antelope, 10 Wheaton, 66; 11 Wheaton, 413; The Gran Para, 7 Wheaton, 471; The Venus, 8 Cranch, 253, 299; The Commercen, 1 Wheaton, 382; Church _v_. Hubbart, 2 Cranch, 187; Rose _v_. Himely, 4 Cranch, 241; Brown _v_. United States, 8 Cranch, 110.