CHAPTER III THE BEGINNINGS OF THE CHIEF JUSTICE'S CAREER; AMERICAN CONSTITUTIONAL LAW; MARBURY v . MADISON.

Marshall’s accession to the bench was marked by an impressive circumstance. For ten years or more, he alone gave all the opinions of the court to which any name was attached, except where the case came up from his own circuit, or, for any reason, he did not sit. In the very few cases where opinions were given by the other justices, it was in the old way, seriatim,—the method followed before Marshall came in, as it was also the method of contemporary English courts.

Whatever may have been the purpose of the Chief Justice in introducing this usage, there can be no doubt as to the impression it was calculated to produce. It seemed, all of a sudden, to give to the judicial department a unity like that of the executive, to concentrate the whole force of that department in its chief, and to reduce the side-justices to a sort of cabinet advisers. In the very few early cases where there was expressed dissent, it lost much of its impressiveness, when announced, as it sometimes was, by the mouth that gave the opinion of the court.

In 1812, when a change took place, the court had been for a year without a quorum. Moreover, Judge Story had just come to the bench, a man of quite too exuberant an intellect and temperament to work well as a silent side-judge. We remark, also, at the beginning of that term, that the Chief Justice was not in attendance, having, as the reporter tells us, “received an injury by the oversetting of the stage-coach on his journey from Richmond.” And it may be added that just at this time the anxious prayer of Jefferson was answered, and a majority of the judges were Republicans. From whatever cause, henceforward there was a change; and without returning to the old habit of seriatim opinions, the side-judges had their turn, as they do now.

In most of Marshall’s opinions, one observes the style and special touch of a thoughtful and original mind; in some of them the powers of a great mind, in full activity. His cases relating to international law, as I am assured by those competent to judge, rank with the best there are in the books. As regards most of the more familiar titles of the law, it would be too much to claim for him the very first rank. In that region he is, in many respects, equaled or surpassed by men more deeply versed in the learning and technicalities of the law, in what constitutes that “artificial perfection of reason” which Coke used to glorify as far transcending any man’s natural reason,—men such as Story, Kent, or Shaw, or even the reformer, Mansfield, whom he greatly admired, Eldon, or Blackburn. But in the field of constitutional law, a region not open to an English lawyer,—and especially in one department of it, that relating to the nature and scope of the National Constitution, he was preËminent,—first, with no one second. It is hardly possible, as regards this part of the law, to say too much of the service he rendered to his country. Sitting in the highest judicial place for more than a generation; familiar, from the beginning, with the Federal Constitution, with the purposes of its framers, and with all the objections of its critics; accustomed to meet these objections from the time he had served in the Virginia Convention of 1788; convinced of the purpose and capacity of this instrument to create a strong nation, competent to make itself respected at home and abroad, and able to speak with the voice and strike with the strength of all; assured that this was the paramount necessity of the country, and that the great source of danger was in the jealousies and adverse interests of the States,—Marshall acted on his convictions. He determined to give full effect to all the affirmative contributions of power that went to make up a great and efficient national government; and fully, also, to enforce the national restraints and prohibitions upon the States. In both cases he included not only the powers expressed in the Constitution, but those also which should be found, as time unfolded, to be fairly and clearly implied in the objects for which the federal government was established. In that long judicial life, with which Providence blessed him, and blessed his country, he was able to lay down, in a succession of cases, the fundamental considerations which fix and govern the relative functions of the nation and the States, so plainly, with such fullness, with such simplicity and strength of argument, such a candid allowance for all that was to be said upon the other side, in a tone so removed from controversial bitterness, so natural and fit for a great man addressing the “serene reason” of mankind, as to commend these things to the minds of his countrymen, and firmly to fix them in the jurisprudence of the nation; so that “when the rain descended and the floods came, and the winds blew and beat upon that house, it fell not, because it was founded upon a rock.” It was Marshall’s strong constitutional doctrine, explained in detail, elaborated, powerfully argued, over and over again, with unsurpassable earnestness and force, placed permanently in our judicial records, holding its own during the long emergence of a feebler political theory, and showing itself in all its majesty when war and civil dissension came,—it was largely this that saved the country from succumbing, in the great struggle of forty years ago, and kept our political fabric from going to pieces.

I do not forget our own Webster, or others, in saying that to Marshall (if we may use his own phrase about Washington), “more than to any other individual, and as much as to one individual was possible,” do we owe that prevalence of sound constitutional opinion and doctrine at the North that held the Union together; to that combination in him, of a great statesman’s sagacity, a great lawyer’s lucid exposition and persuasive reasoning, a great man’s candor and breadth of view, and that judicial authority on the bench, allowed naturally and as of right, to a large, sweet nature, which all men loved and trusted, capable of harmonizing differences and securing the largest possible amount of coÖperation among discordant associates. In a very great degree, it was Marshall, and these things in him, that have wrought out for us a strong and great nation, one which men can love and die for; that “mother of a mighty race,” that stirred the soul of Bryant half a century ago, as he dreamed how—

the nation whose image flamed in the heart of Lowell, a generation since, as he greeted her coming up out of the Valley of the Shadow of Death:—

It was early in Marshall’s day that the Supreme Court first took the grave step of disregarding an act of Congress,—a coÖrdinate department,—which conflicted with the National Constitution. The right to deal thus with their legislatures had already been asserted in the States, and once or twice it had really been exercised. Had the question related to a conflict between that Constitution and the enactment of a State, it would have been a simpler matter. These two questions, under European written constitutions, are regarded as different ones. It is almost necessary to the working of a federal system that the general government, and each of its departments, should be free to disregard acts of any department of the local states which may be inconsistent with the federal constitution. And so in Switzerland and Germany the federal courts thus treat local enactments. But there is not under any written constitution in Europe a country where a court deals in this way with the act of its coÖrdinate legislature. In Germany, at one time, this was done, under the influence of a study of our law, but it was soon abandoned.[21]

In the colonial period, while we were dependencies of Great Britain, our legislation was subject to the terms of the royal charters. Enactments were often disallowed by the English Privy Council, sometimes acting as mere revisers of the colonial legislation, and sometimes as appellate judicial tribunals. Our people were, in this way, familiar with the theory of a dependent legislature, one whose action was subject to reversal by judicial authority, as contrary to the terms of a written charter of government.

When, therefore, after the war of independence, our new sovereign, namely, ourselves, the people, came to substitute for the old royal charters the people’s charters, what we call our “constitutions,”—it was natural to expect some legal restraint upon legislation. It was not always found in terms; indeed, it was at first hardly ever, if at all, found set down in words. But it was a natural and just interpretation of these instruments, made in regions with such a history as ours and growing out of the midst of such ideas and such an experience, to think that courts, in the regular exercise of their functions, that is to say, in dealing with litigated cases, could treat the constitutions as law to be applied by them in determining the validity of legislation.

But this, although, as we may well think, a sound conclusion, was not a necessary one; and it was long denied by able statesmen, judges, and lawyers. An elaborate and powerful dissenting opinion by Chief Justice Gibson, of Pennsylvania, containing the most searching argument on the subject with which I am acquainted, given in 1825,[22] reaches the result that under no constitution where the power to set aside legislative enactments is not expressly given, does it exist. But it is recognized that in the Federal Constitution the power is given, as regards legislation of the States inconsistent with the Federal Constitution and laws.

It is not always noticed that in making our Federal Constitution, there was an avoidance of any explicit declaration of such a power as touching federal legislation, while it was carefully provided for as regards the States. In the Federal Convention, there was great anxiety to control the States, in certain particulars; and various plans were put forward, such as that Congress should have a negative on state laws, and that governors of the States should be appointed by the federal authority, with power to negative state acts.

But all these, at last, were rejected, and the matter took the shape of a provision that the Constitution and the constitutional laws and treaties of the United States should be the supreme law of the respective States; and the judges of the several States should be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding. Later, the Committee on Style changed the phrase “law of the respective States” to “law of the land.” But the language, as to binding the judges, was still limited to the judges of the several States. Observe, then, the scope of this provision: it was to secure the authority of the federal system within the States.

As to any method of protecting the federal system within its own household, that is to say, as against Congress, it was proposed in the convention, for one thing, that each House of Congress might call upon the judges for opinions; and, again, it was urged, and that repeatedly and with great persistence, that the judges should be joined with the executive in passing on the approval or disapproval of legislative acts,—in what we call the veto power. It was explicitly said, in objecting to this, that the judges would have the right to disregard unconstitutional laws anyway,—an opinion put forward by some of the weightiest members. Yet some denied it. And we observe that the power was not expressly given. When we find such a power expressly denied, and yet not expressly given; and when we observe, for example, that leading public men, e.g., so conspicuous a member of the convention as Charles Pinckney of South Carolina, afterwards a senator from that State, wholly denied the power ten years later;[23] it being also true that he and others of his way of thinking urged the express restraints on state legislation,—we may justly reach the conclusion that this question, while not overlooked, was intentionally left untouched. Like the question of the bank and various others, presumably it was so left in order not to stir up enemies to the new instrument; left to be settled by the silent determinations of time, or by later discussion.

Turning now to the actual practice under the government of the United States, we find that the judges of the Supreme Court had hardly taken their seats, at the beginning of the government, when Chief Justice Jay and several other judges, in 1790, communicated to the President objections to the Judiciary Act, as violating the Constitution, in naming the judges of the Supreme Court to be judges also of the circuit courts.[24] These judges, however, did not refuse to act under this unconstitutional statute; and the question did not come judicially before the court until Marshall’s time, in 1803,[25] when it was held that the question must now be regarded as settled in favor of the statute, by reason of acquiescence since the beginning of the government.[26]

In observing, historically, the earlier conceptions of the judges of the Supreme Court as to the method of dealing with unconstitutional legislation, one or two other transactions should be looked at. In 1792 (1 U. S. Statutes, 243) a statute was enacted which required the circuit court, partly composed, as we have seen, of the judges of the Supreme Court, to pass on the claims of certain soldiers and others demanding pensions, and to report to the Secretary of War; who was, in turn, to revise these returns and report to Congress. The judges found great difficulty in acting under this statute, because it imposed on them duties not judicial in their nature; and they expressed their views in various ways.

In one circuit, the judges thinking it improper to act under this statute in their judicial capacity, for the reason above-named, consented from charitable motives to serve as “commissioners.”[27]

In the Pennsylvania circuit, the three judges wrote, in a letter to the President, that “on a late painful occasion” they had held the law invalid; and they now stated the matter to him, as being the person charged with the duty of “taking care that the laws be faithfully executed.” They assured him that while this judicial action of disregarding an act of Congress had been necessary, it was far from pleasant.

The judges of another circuit, before which no case had come, wrote a similar letter to the President, declaring their reasons for thinking the law invalid.

In this same year, 1792, the Pennsylvania case came regularly up to the Supreme Court, and was argued there.[28] This might have produced a decision, but none was ever given; and in the next year a change in the statute provided relief for the pension claimants in another way.

It is to be remarked, then, that this matter resulted in no decision by the Supreme Court of the United States on the question of the constitutionality of the pension act; it produced only a decision at one of the circuits, and informal expressions of opinion from most of the judges.

These non-judicial communications of opinion to the President seem, as has been said, to have proceeded on the theory of furnishing information to one whose official duty it was to see that the fundamental law was faithfully carried out; just as “Councils of Revision,” established by the constitutions of Pennsylvania and Vermont, were to report periodically as to infractions of the constitution.

It was, perhaps, these practices of private communication between the President and the judges that led very soon to another interesting matter,—a formal request by the President, in 1793, for an opinion from the judges on twenty-nine questions relating to the treaties with France. This request accorded with a colonial practice of asking such opinions from judges; a usage centuries old in England, and preserved to-day in the constitutions of a few States in this country. The judges, however, declined answering these questions, “considering themselves,” says Marshall, in his “Life of Washington,” “merely as constituting a legal tribunal for the decision of controversies brought before them in legal form.”[29] Although this seems to have been obviously the right course, since the proposition to give power to put questions to the judges in this way had been considered in the Federal Convention and not allowed, yet we may remark how convenient such a power would often have proved. If it be admitted, as it always has been in England, and is, almost universally, here, that such opinions are merely learned advice and bind nobody, not even the judges, they would often afford the executive and Congress much needed and early help upon constitutional questions in serious emergencies; such, for example, as have lately presented themselves in our own history.

After this, there was an occasional allusion in the opinions of the Supreme Court to the question of the power of that court to pass on the constitutionality of Federal enactments as being an undecided and more or less doubtful question. But not until 1803, early in Marshall’s time, was the point judicially presented to the Supreme Court. It came up in the case of Marbury v. Madison,[30] the first case at the third term after any opinions of Marshall were reported. In that case, an act of Congress was declared unconstitutional.

It was more than half a century before that happened again.

Marbury v. Madison was a remarkable case. It was connected intimately with certain executive action for which Marshall as Secretary of State was partly responsible. For various reasons the case must have excited peculiar interest in his mind. Within three weeks before the end of Adams’s administration, on February 13, 1801, while Marshall was both Chief Justice and Secretary of State,[31] an act of Congress had abolished the old system of circuit and district courts, and established a new one. This gave to the President, Adams, the appointment of many new judges, and kept him and his secretary busy, during the last hours of the administration, in choosing and commissioning the new officials.

And another thing. The Supreme Court had consisted heretofore of six judges. This same act provided that after the next vacancy there should be five judges only. Such arrangements as these, made by a party just going out of power, were not ill calculated to create, in the mind of the party coming in, the impression of an intention to keep control of the judiciary as long as possible.

There were, to be sure, other reasons for some of this action. Several judges of the Supreme Court, as we have seen, had signified to Washington, in 1790, the opinion that the judiciary act of the previous year was unconstitutional in making the judges of that court judges also of the circuit court. The new statute corrected this fault. Yet, in regard to the time chosen for this very proper action, it was observable that ten years and more had been allowed to pass before the mischief so promptly pointed out by the early judges was corrected.

Again, in approaching the case of Marbury v. Madison, it is to be observed that another matter relating to the Supreme Court had been dealt with. This act of February 13, 1801, provided that the two terms of the court, instead of being held, as hitherto, in February and August, should thereafter be held in June and December. Accordingly, the court sat in December, 1801. It adjourned, as it imagined, to June, 1802. But, on March 8 of that year, Congress, under the new administration, repealed the law of 1801, unseated all the new judges, and reinstated the old system, with its August and February terms. And then, a little later in the year, the August term of the court was abolished, leaving only one term a year, to begin on the first Monday in February. Thus, since the June term was abolished, and February had then passed, and there was no longer an August or a December term, the court found itself in effect adjourned by Congress from December, 1801, to February, 1803; and so it had no session during the whole of the year 1802.

If the legislation of 1801 was calculated to show the importance attached by an outgoing political party to control over the judiciary, that of 1802 might indicate how entirely the incoming party agreed with them, and how well inclined they were to profit by their own opportunities.

How was it, meantime, with the judiciary itself? Unfortunately, the Supreme Court had already been drawn into the quarrel. For, at the single December term, in 1801, held under the statute of that year, an application had been made to the court by four persons in the District of Columbia for a rule upon James Madison, Secretary of State, to show cause why a writ of mandamus should not issue requiring him to issue to these persons certain commissions as justice of the peace, which had been left in Marshall’s office undelivered at the time when he ceased to add to his present functions those of Secretary of State. They had been made out, sealed, and signed, and were supposed to have been found by Madison when he came into office, and to be now withheld by him. This motion was pending when the court adjourned, in December, 1801. Of course, a motion for a mandamus to the head of the cabinet, upon a matter of burning interest, must have attracted no little attention on the part of the new administration. Abolishing the August term served to postpone any opportunity for early action by the court, and to remind the judiciary of the limits of its power.

At last the court came together, in February, 1803, and found the mandamus case awaiting its action. It is the first one reported at that term. Since Marshall had taken his seat, there had as yet been only five reported cases. All the opinions had been given by him, unless a few lines “by the court” may be an exception; and according to the new usage by which the Chief Justice became, wherever it was possible, the sole organ of the court, Marshall now gave the opinion in Marbury v. Madison. It may reasonably be wondered that the Chief Justice should have been willing to give the opinion in such a case, and especially that he should have handled the case as he did. But he was sometimes curiously regardless of conventions.

If it be asked what was decided in Marbury v. Madison, the answer is that this, and only this, was decided, namely, that the court had no jurisdiction to do what they were asked to do in that case (i. e. to grant a writ of mandamus, in the exercise of their original jurisdiction), because the Constitution allowed to the court no such power; and, although an act of Congress had undertaken to confer this jurisdiction on them, Congress had no power to do it, and therefore the act was void, and must be disregarded by the court.[32] It is the decision upon this point that makes the case famous; and undoubtedly it was reached in the legitimate exercise of the court’s power. To this important part of the case attention will be called in the next chapter.

Unfortunately, instead of proceeding as courts usually do, the opinion began by passing upon all the points which the denial of its own jurisdiction took from it the right to treat. It was elaborately laid down, in about twenty pages, out of the total twenty-seven which comprise the opinion, that Madison had no right to detain the commissions; and that mandamus would be the proper remedy in any court which had jurisdiction to grant it.

And thus, as the court, by its decision in this case, was sharply reminding the legislature of its limitations, so by its dicta, and in this irregular method, it intimated to the President, also, that his department was not exempt from judicial control. In this way two birds were neatly reached with the same stone.

Marshall made a very noticeable remark in his opinion, seeming to point to the chief executive himself, and not merely to his secretary, when he said, “It is not the office of the person to whom the writ is directed, but the nature of the thing to be done, by which the propriety or impropriety of issuing the mandamus is to be determined;”—a hint that, on an appropriate occasion, the judiciary might issue orders personally to him. This remark got illustration a few years later, in 1807, when the Chief Justice, at the trial of Aaron Burr in Richmond, ordered a subpoena to the same President, Thomas Jefferson, directing him to bring thither certain documents. It was a strange conception of the relations of the different departments of the government to each other, to imagine that a subpoena, that is to say an order accompanied with a threat of punishment, was a legitimate judicial mode of communicating with the chief executive. On Jefferson’s part, this order was received with the utmost discontent; and justly. He had a serious apprehension of a purpose to arrest him by force, and was prepared to protect himself.[33] Meantime he sent to the United States Attorney at Richmond the papers called for, but explained, with dignity, that while the executive was willing to testify in Washington, it could not allow itself to be “withdrawn from its station by any coÖrdinate authority.”

It was partly to the tendency on Marshall’s part, just mentioned, to give little thought, often, to ordinary conventions, and partly to his kindness of heart, that we should attribute another singular occurrence,—the fact that he attended a dinner at the house of an old friend, one of Burr’s counsel, when he knew that Burr was to be present, and when that individual, having previously been brought to Richmond under arrest, examined by Marshall, and admitted to bail, was still awaiting the action of the grand jury with reference to further judicial proceedings before Marshall himself. He accepted the invitation before he knew that Burr was to be of the company. I have heard from one of his descendants that his wife advised him not to go; but he thought it best not to seem too fastidious, or to appear to censure his old friend, the host, by staying away. He sat, we are told, at the opposite end of the table from Burr, had no communication with him, and went away early. But we must still wonder at an act which he himself afterwards much regretted.