John Marshall and the Constitution Part 3

But there was one human heart, one human understanding-and that, in ordinary circ.u.mstances, a very good one-which was quite willing to shoulder just such a monstrous perversion, or at least its equivalent, and that heart was John Marshall's. The discussion of the motion to arrest the evidence continued ten days, most of the time being occupied by Burr's attorneys. * Finally, on the last day of the month, the Chief Justice handed down an opinion accepting practically the whole contention of Burr's attorneys, but offering a totally new set of reasons for it. On the main question at issue, namely, whether under the Const.i.tution all involved in a treasonable enterprise are princ.i.p.als, Marshall pretended not to pa.s.s; but in fact he rejected the essential feature of the Common Law doctrine, namely, the necessary legal presence at the scene of action of all parties to the conspiracy. The crux of his argument he embodied in the following statement: "If in one case the presence of the individual make the guilt of the [treasonable] a.s.semblage HIS guilt, and in the other case, the procurement by the individual make the guilt of the [treasonable] a.s.semblage, his guilt, then presence and procurement are equally component parts of the overt act, and equally require two witnesses." Unfortunately for this argument, the Const.i.tution does not require that the "component parts" of the overt act be proved by two witnesses, but only that the overt act-the corpus delicti-be so proved; and for the simple reason that, when by further evidence any particular individual is connected with the treasonable combination which brought about the overt act, that act, a.s.suming the Common Law doctrine, becomes his act, and he is accordingly responsible for it at the place where it occurred. Burr's attorneys admitted this contention unreservedly. Indeed, that was precisely the reason why they had opposed the Common Law doctrine.

* A recurrent feature of their arguments was a denunciation of "constructive treason." But this was mere declamation. n.o.body was charging Burr with any sort of treason except that which is specifically defined by the Const.i.tution itself, namely, the levying of war against the United States. The only question at issue was as to the method of proof by which this crime may be validly established in the case of one accused of procuring treason. There was also much talk about the danger and injustice of dragging a man from one end of the country to stand trial for an act committed at the other end of it. The answer was that, if the man himself procured the act or joined others in bringing it about, he ought to stand trial where the act occurred. This same "injustice" may happen today in the case of murder!

Marshall's effort to steer between this doctrine and its obvious consequences for the case before him placed him, therefore, in the curious position of demanding that two overt acts be proved each by two witnesses. But if two, why not twenty? For it must often happen that the traitor's connection with the overt act is demonstrable not by a single act but a series of acts. Furthermore, in the case of procurers of treason, this connection will ordinarily not appear in overt acts at all but, as in Burr's own case, will be covert. Can it be, then, that the Const.i.tution is chargeable with the absurdity of regarding the procurers of treason as traitors and yet of making their conviction impossible? The fact of the matter was that six months earlier, before his att.i.tude toward Burr's doings had begun to take color from his hatred and distrust of Jefferson, Marshall had entertained no doubt that the Common Law doctrine underlay the const.i.tutional definition of treason. Speaking for the Supreme Court in the case of Bollmann and Swartwout, he had said: "It is not the intention of the Court to say that no individual can be guilty of this crime who has not appeared in arms against his country; on the contrary, if war be actually levied, that is, if a body of men be actually a.s.sembled for the purpose of effecting by force a treasonable purpose, all those who perform any part however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered traitors." Marshall's effort to square this previous opinion with his later position was as unconvincing as it was labored. *

* The way in which Marshall proceeded to do this was to treat the phrase "perform a part" as demanding "a levying of war" on the part of the performer. (Robertson, "Reports," vol. II, p. 438.) But this explanation will not hold water. For what then becomes of the phrase "scene of action" in the pa.s.sage just quoted? What is the difference between the part to be performed "however minute," and the "action" from which the performer maybe "however remote"? It is perfectly evident that the "action" referred to is the a.s.semblage which is regarded as the overt act of war, and that the "part however minute" is something very different.

Burr's attorneys were more prudent: they dismissed Marshall's earlier words outright as obiter dicta-and erroneous at that! Nevertheless when, thirty years later, Story, Marshall's friend and pupil, was in search of the best judicial definition of treason within the meaning of the Const.i.tution, he selected this sentence from the case of Bollmann and Swartwout and pa.s.sed by the elaborate opinion in Burr's case in significant silence. But reputation is a great magician in trans.m.u.ting heresy into accepted teaching. Posthumously Marshall's opinion has attained a rank and authority with the legal profession that it never enjoyed in his own time. Regarding it, therefore, as today established doctrine, we may say that it has quite reversed the relative importance of conspiracy and overt act where the treason is by levying war. At the Common Law, and in the view of the framers of the Const.i.tution, the importance of the overt act of war was to make the conspiracy visible, to put its existence beyond surmise. By Marshall's view each traitor is chargeable only with his own overt acts, and the conspiracy is of importance merely as showing the intention of such acts. And from this it results logically, as Marshall saw, though he did not venture to say so explicitly, that the procurer of treason is not a traitor unless he has also partic.i.p.ated personally in an overt act of war. As Wirt very justifiably contended, such a result is "monstrous," and, what is more, it has not been possible to adhere to it in practice. In recent legislation necessitated by the Great War, Congress has restored the old Common Law view of treason but has avoided the const.i.tutional difficulty by labeling the offense "Espionage." Indeed, the Espionage Act of June 15, 1917, sc.r.a.ps Marshall's opinion pretty completely. *

* See especially t.i.tle I, Section 4, of the Act. For evidence of the modern standing of Marshall's opinion, see the chorus of approval sounded by the legal fraternity in Dillon's three volumes. In support of the Common Law doctrine, see the authorities cited in 27 "Yale Law Journal", p. 342 and footnotes; the chapter on Treason in Simon Greenleaf's well-known "Treatise on the Law of Evidence;" United States w. Mitch.e.l.l, 2 Dallas, 348; and Druecker vs. Salomon, 21 Wis., 621.

On the day following the reading of Marshall's opinion, the prosecution, unable to produce two witnesses who had actually SEEN Burr procure the a.s.semblage on the island, abandoned the case to the jury. Shortly thereafter the following verdict was returned: "We of the jury say that Aaron Burr is not proved to be guilty under this indictment by any evidence submitted to us. We therefore find him not guilty." At the order of the Chief Justice this Scotch verdict was entered on the records of the court as a simple Not Guilty.

Marshall's conduct of Burr's trial for treason is the one serious blemish in his judicial record, but for all that it was not without a measure of extenuation. The President, too, had behaved deplorably and, feeling himself on the defensive, had pressed matters with most unseemly zeal, so that the charge of political persecution raised by Burr's attorneys was, to say the least, not groundless. Furthermore, in opposing the President in this matter, Marshall had shown his usual political sagacity. Had Burr been convicted, the advantage must all have gone to the Administration. The only possible credit the Chief Justice could extract from the case would be from a.s.suming that lofty tone of calm, unmoved impartiality of which Marshall was such a master-and never more than on this occasion-and from setting himself sternly against popular hysteria. The words with which his opinion closes have been often quoted:

"Much has been said in the course of the argument on points on which the Court feels no inclination to comment particularly, but which may, perhaps not improperly receive some notice.

"That this Court dare not usurp power is most true.

"That this Court dare not shrink from its duty is not less true.

"No man is desirous of placing himself in a disagreeable situation. No man is desirous of becoming the popular subject of calumny. No man, might he let the bitter cup pa.s.s from him without self-reproach, would drain it to the bottom. But if he have no choice in the case, if there be no alternative presented to him but a dereliction of duty or the opprobrium of those who are denominated the world, he merits the contempt as well as the indignation of his country who can hesitate which to embrace."

One could not require a better ill.u.s.tration of that faculty of "apparently deep self-conviction" which Wirt had noted in the Chief Justice.

Finally, it must be owned that Burr's case offered Marshall a tempting opportunity to try out the devotion of Republicans to that ideal of judicial deportment which had led them so vehemently to criticize Justice Chase and to charge him with being "oppressive," with refusing to give counsel for defense an opportunity to be heard, with transgressing the state law of procedure, with showing too great liking for Common Law ideas of sedition, with setting up the President as a sort of monarch beyond the reach of judicial process. Marshall's conduct of Burr's trial now exactly reversed every one of these grounds of complaint. Whether he intended it or not, it was a neat turning of the tables.

But Jefferson, who was at once both the most theoretical and the least logical of men, was of course hardly prepared to see matters in that light. As soon as the news reached him of Burr's acquittal, he ordered Hay to press the indictment for misdemeanor-not for the purpose of convicting Burr, but of getting the evidence down in a form in which it should be available for impeachment proceedings against Marshall. For some weeks longer, therefore, the Chief Justice sat listening to evidence which was to be used against himself. But the impeachment never came, for a chain is only as strong as its weakest link, and the weakest link in the combination against the Chief Justice was a very fragile one indeed-the iniquitous Wilkinson. Even the faithful and melancholy Hay finally abandoned him. "The declaration, which I made in court in his favor some time ago," he wrote the President, "was precipitate.... My confidence in him is destroyed.... I am sorry for it, on his account, on the public account, and because you have expressed opinions in his favor." It was obviously impossible to impeach the Chief Justice for having prevented the hanging of Aaron Burr on the testimony of such a miscreant.

Though the years immediately following the Burr trial were not a time of conspicuous activity for Marshall, they paved the way in more than one direction for his later achievement. Jefferson's retirement from the Presidency at last relieved the Chief Justice from the warping influence of a hateful personal contest and from anxiety for his official security. Jefferson's successors were men more willing to identify the cause of the Federal Judiciary with that of national unity. Better still, the War of 1812 brought about the demise of the Federalist party and thus cleared the Court of every suspicion of partisan bias. Henceforth the great political issue was the general one of the nature of the Union and the Const.i.tution, a field in which Marshall's talent for debate made him master. In the meantime the Court was acquiring that personnel which it was to retain almost intact for nearly twenty years; and, although the new recruits came from the ranks of his former party foes, Marshall had little trouble in bringing their views into general conformity with his own const.i.tutional creed. Nor was his triumph an exclusively personal one. He was aided in very large measure by the fact that the war had brought particularism temporarily into discredit in all sections of the country. Of Marshall's a.s.sociates in 1812, Justice Was.h.i.+ngton alone had come to the bench earlier, yet he was content to speak through the mouth of his ill.u.s.trious colleague, save on the notable occasion when he led the only revolt of a majority of the Court from the Chief Justice's leaders.h.i.+p in the field of Const.i.tutional Law. * Johnson of South Carolina, a man of no little personal vanity, affected a greater independence, for which he was on one occasion warmly congratulated by Jefferson; yet even his separate opinions, though they sometimes challenge Marshall's more sweeping premises and bolder method of reasoning, are after all mostly concurring ones. Marshall's really invaluable aid among his a.s.sociates was Joseph Story, who in 1811, at the age of thirty-two, was appointed by Madison in succession to Cus.h.i.+ng. Still immature, enthusiastically willing to learn, warmly affectionate, and with his views on const.i.tutional issues as yet unformed, Story fell at once under the spell of Marshall's equally gentle but vastly more resolute personality; and the result was one of the most fruitful friends.h.i.+ps of our history. Marshall's "original bias," to quote Story's own words, "as well as the choice of his mind, was to general principles and comprehensive views, rather than to technical or recondite learning." Story's own bias, which was supported by his prodigious industry, was just the reverse. The two men thus supplemented each other admirably. A tradition of some venerability represents Story as having said that Marshall was wont to remark: "Now Story, that is the law; you find the precedents for it." Whether true or not, the tale at least ill.u.s.trates the truth. Marshall owed to counsel a somewhat similar debt in the way of leading up to his decisions, for, as Story points out, "he was solicitous to hear arguments and not to decide cases without them, nor did any judge ever profit more by them." But in the field of Const.i.tutional Law, at least, Marshall used counsel's argument not so much to indicate what his own judicial goal ought to be as to discover the best route thereto-often, indeed, through the welcome stimulus which a clash of views gave to his reasoning powers.

* This was in the case of Ogden vs. Saunders, 12 Wheaton, 213 (1827).

Though the wealth of available legal talent at this period was impressively ill.u.s.trated in connection both with Chase's impeachment and with Burr's trial, yet on neither of these occasions appeared William Pinkney of Maryland, the attorney to whom Marshall acknowledged his greatest indebtedness, and who was universally acknowledged to be the leader of the American Bar from 1810 until his death twelve years later. Besides being a great lawyer, Pinkney was also a notable personality, as George Ticknor's sketch of him as he appeared before the Supreme Court in 1815 goes to prove:

"You must imagine, if you can, a man formed on nature's most liberal scale, who at the age of 50 is possessed with the ambition of being a pretty fellow, wears corsets to diminish his bulk, uses cosmetics, as he told Mrs. Gore, to smooth and soften a skin growing somewhat wrinkled and rigid with age, dresses in a style which would be thought foppish in a much younger man. You must imagine such a man standing before the gravest tribunal in the land, and engaged in causes of the deepest moment; but still apparently thinking how he can declaim like a practised rhetorician in the London c.o.c.kpit, which he used to frequent. Yet you must, at the same time, imagine his declamation to be chaste and precise in its language and cogent, logical and learned in its argument, free from the artifice and affectation of his manner, and in short, opposite to what you might fairly have expected from his first appearance and tones. And when you have compounded these inconsistencies in your imagination, and united qualities which on common occasions nature seems to hold asunder, you will, perhaps, begin to form some idea of what Mr. Pinkney is."

Such was the man whom Marshall, Story, and Taney all considered the greatest lawyer who had ever appeared before the Supreme Court.

At the close of the War of 1812, Marshall, though he had decided many important questions of International Law, * nevertheless found himself only at the threshold of his real fame. Yet even thus early he had indicated his point of view. Thus in the case of the United States vs. Peters, * * which was decided in 1809, the question before the Court was whether a mandamus should issue to the United States District Judge of Pennsylvania ordering him to enforce, in the face of the opposition of the state Government, a decision handed down in a prize case more than thirty years before by the old Committee of Appeals of the Continental Congress. Marshall answered the question affirmatively, saying: "If the legislatures of the several states may, at will, annul the judgments of the courts of the United States and destroy the rights acquired under those judgments, the Const.i.tution itself becomes a solemn mockery, and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals."

* Two famous decisions of Marshall's in this field are those in the Schooner Exchange vs. McFaddon et al, 7 Cranch, 116, and the case of the Nereide, 9 ib., 388.

* * 5 Cranch, 136.

Marshall's decision evoked a warm protest from the Pennsylvania Legislature and led to a proposal of amendment to the Const.i.tution providing "an impartial tribunal" between the General Government and the States; and these expressions of dissent in turn brought the Virginia a.s.sembly to the defense of the Supreme Court.

"The commission to whom was referred the communication of the governor of Pennsylvania [reads the Virginia doc.u.ment]... are of the opinion that a tribunal is already provided by the Const.i.tution of the United States, to wit; the Supreme Court, more eminently qualified from their habits and duties, from the mode of their selection, and from the tenure of their offices, to decide the disputes aforesaid in an enlightened and impartial manner than any other tribunal which could be created.

"The members of the Supreme Court are selected from those in the United States who are most celebrated for virtue and legal Learning.... The duties they have to perform lead them necessarily to the most enlarged and accurate acquaintance with the jurisdiction of the federal and several State courts together, and with the admirable symmetry of our government. The tenure of their offices enables them to p.r.o.nounce the sound and correct opinions they have formed, without fear, favor or partiality."

Was it coincidence or something more that during Marshall's inc.u.mbency Virginia paid her one and only tribute to the impartiality of the Supreme Court while Burr's acquittal was still vivid in the minds of all? Or was it due to the fact that "the Great Lama of the Little Mountain"-to use Marshall's disrespectful appellation for Jefferson-had not yet converted the Virginia Court of Appeals into the angry oracle of his own unrelenting hatred of the Chief Justice? Whatever the reason, within five years Virginia's att.i.tude had again s.h.i.+fted, and she had become once more what she had been in 1798-99, the rallying point of the forces of Confederation and State Rights.

CHAPTER V. The Tenets Of Nationalism

"John Marshall stands in history as one of that small group of men who have founded States. He was a nation-maker, a state-builder. His monument is in the history of the United States and his name is written upon the Const.i.tution of his country." So spoke Senator Lodge, on John Marshall Day, February 4, 1901. "I should feel a... doubt," declared Justice Holmes on the same occasion, "whether, after Hamilton and the Const.i.tution itself, Marshall's work proved more than a strong intellect, a good style, personal ascendancy in his court, courage, justice, and the convictions of his party." Both these divergent estimates of the great Chief Justice have their value. It is well to be reminded that Marshall's task lay within the four corners of the Const.i.tution, whose purposes he did not originate, especially since no one would have been quicker than himself to disown praise implying anything different. None the less it was no ordinary skill and courage which, a.s.sisted by great office, gave enduring definition to the purposes of the Const.i.tution at the very time when the whole trend of public opinion was setting in most strongly against them. It must not be forgotten that Hamilton, whose name Justice Holmes invokes in his somewhat too grudging encomium of Marshall, had p.r.o.nounced the Const.i.tution "a frail and worthless fabric."

Marshall's own outlook upon his task sprang in great part from a profound conviction of calling. He was thoroughly persuaded that he knew the intentions of the framers of the Const.i.tution-the intentions which had been wrought into the instrument itself-and he was equally determined that these intentions should prevail. For this reason he refused to regard his office merely as a judicial tribunal; it was a platform from which to promulgate sound const.i.tutional principles, the very cathedra indeed of const.i.tutional orthodoxy. Not one of the cases which elicited his great opinions but might easily have been decided on comparatively narrow grounds in precisely the same way in which he decided it on broad, general principles, but with the probable result that it would never again have been heard of outside the law courts. To take a timid or obscure way to a merely tentative goal would have been at variance equally with Marshall's belief in his mission and with his instincts as a great debater. Hence he forged his weapon-the obiter dictum-by whose broad strokes was hewn the highroad of a national destiny.

Marshall's task naturally was not performed in vacuo: he owed much to the preconceptions of his contemporaries. His invariable quest, as students of his opinions are soon aware, was for the axiomatic, for absolute principles, and in this inquiry he met the intellectual demands of a period whose first minds still owned the sway of the syllogism and still loved what Bacon called the "s.p.a.cious liberty of generalities." In Marshall's method-as in the older syllogistic logic, whose phraseology begins to sound somewhat strange to twentieth century ears-the essential operation consisted in eliminating the "accidental" or "irrelevant" elements from the "significant" facts of a case, and then recognizing that this particular case had been foreseen and provided for in a general rule of law. Proceeding in this way Marshall was able to build up a body of thought the internal consistency of which, even when it did not convince, yet baffled the only sort of criticism which contemporaries were disposed to apply. Listen, for instance, to the despairing cry of John Randolph of Roanoke: "All wrong," said he of one of Marshall's opinions, "all wrong, but no man in the United States can tell why or wherein."

Marshall found his first opportunity to elaborate the tenets of his nationalistic creed in the case of M'Culloch vs. Maryland, which was decided at the same term with the Dartmouth College case and that of Sturges vs. Crowins.h.i.+eld-the greatest six weeks in the history of the Court. The question immediately involved was whether the State of Maryland had the right to tax the notes issued by the branch which the Bank of the United States had recently established at Baltimore. But this question raised the further one whether the United States had in the first place the right to charter the Bank and to authorize it to establish branches within the States. The outcome turned on the interpretation to be given the "necessary and proper" clause of the Const.i.tution.

The last two questions were in 1819 by no means novel. In the "Federalist" itself Hamilton had boldly asked, "Who is to judge of the necessity and propriety of the laws to be pa.s.sed for executing the powers of the Union?" and had announced that "the National Government, like every other, must judge in the first instance, of the proper exercise of its powers, and its const.i.tuents in the last," a view which seems hardly to leave room even for judicial control. Three years later as Secretary of the Treasury, Hamilton had brought forward the proposal which soon led to the chartering of the Bank of 1791. The measure precipitated the first great discussion over the interpretation of the new Const.i.tution. Hamilton owned that Congress had no specifically granted power to charter a bank but contended that such an inst.i.tution was a "necessary and proper" means for carrying out certain of the enumerated powers of the National Government such, for instance, as borrowing money and issuing a currency. For, said he in effect, "necessary and proper" signify "convenient," and the clause was intended to indicate that the National Government should enjoy a wide range of choice in the selection of means for carrying out its enumerated powers. Jefferson, on the other hand, maintained that the "necessary and proper" clause was a restrictive clause, meant to safeguard the rights of the States, that a law in order to be "necessary and proper" must be both "necessary" AND "proper," and that both terms ought to be construed narrowly. Jefferson's opposition, however, proved unavailing, and the banking inst.i.tution which was created continued till 1811 without its validity being once tested in the courts.

The second Bank of the United States, whose branch Maryland was now trying to tax, received its charter in 1816 from President Madison. Well might John Quincy Adams exclaim that the "Republicans had out-federalized the Federalists!" Yet the gibe was premature. The country at large was as yet blind to the responsibilities of nationality. That vision of national unity which indubitably underlies the Const.i.tution was after all the vision of an aristocracy conscious of a solidarity of interests transcending state lines. It is equally true that until the Civil War, at the earliest, the great ma.s.s of Americans still felt themselves to be first of all citizens of their particular States. Nor did this individualistic bias long remain in want of leaders.h.i.+p capable of giving it articulate expression. The amount of political talent which existed within the State of Virginia alone in the first generation of our national history is amazing to contemplate, but this talent unfortunately exhibited one most damaging blemish. The intense individualism of the planter-aristocrat could not tolerate in any possible situation the idea of a control which he could not himself ultimately either direct or reject. In the Virginia and Kentucky resolutions of 1798 and 1799, which regard the Const.i.tution as a compact of sovereign States and the National Government merely as their agent, the particularistic outlook definitely received a const.i.tutional creed which in time was to become, at least in the South, a gloss upon the Const.i.tution regarded as fully as authoritative as the original instrument. This recognition of state sovereignty was, indeed, somewhat delayed by the federalization of the Republican party in consequence of the capture of the National Government by Virginia in 1800. But in 1819 the march toward dissolution and civil war which had begun at the summons of Jefferson was now definitely resumed. This was the year of the congressional struggle over the admission of Missouri, the most important result of which was the discovery by the slave owners that the greatest security of slavery lay in the powers of the States and that its greatest danger lay in those of the National Government. Henceforth the largest property interest of the country stood almost solidly behind State Rights.

It was at this critical moment that chance presented Marshall with the opportunity to place the opposing doctrine of nationalism on the high plane of judicial decision. The arguments in the Bank case * which began on February 22,1819, and lasted nine days, brought together a "constellation of lawyers" such as had never appeared before in a single case. The Bank was represented by Pinkney, Webster, and Wirt; the State, by Luther Martin, Hopkinson, and Walter Jones of the District of Columbia bar. In arguing for the State, Hopkinson urged the restrictive view of the "necessary and proper" clause and sought to reduce to an absurdity the doctrine of "implied rights." The Bank, continued Hopkinson, "this creature of construction," claims by further implication "the right to enter the territory of a State without its consent" and to establish there a branch; then, by yet another implication, the branch claims exemption from taxation. "It is thus with the famous figtree of India, whose branches shoot from the trunk to a considerable distance, then drop to the earth, where they take root and become trees from which also other branches shoot..., until gradually a vast surface is covered, and everything perishes in the spreading shade." But even granting that Congress did have the right to charter the Bank, still that fact would not exempt the inst.i.tution from taxation by any State within which it held property. "The exercise of the one sovereign power cannot be controlled by the exercise of the other."

* M'Culloch vs. Maryland (1819), 4 Wheaton, 316.

On the other side, Pinkney made the chief argument in behalf of the Bank. "Mr. Pinkney," says Justice Story, "rose on Monday to conclude the argument; he spoke all that day and yesterday and will probably conclude to-day. I never in my whole life heard a greater speech; it was worth a journey from Salem to hear it; his elocution was excessively vehement; but his eloquence was overwhelming. His language, his style, his figures, his argument, were most brilliant and sparkling. He spoke like a great statesman and patriot and a sound const.i.tutional lawyer. All the cobwebs of sophistrys.h.i.+p and metaphysics about State Rights and State Sovereignty he brushed away with a mighty besom."

Pinkney closed on the 3d of March, and on the 6th Marshall handed down his most famous opinion. He condensed Pinkney's three-day argument into a pamphlet which may be easily read by the instructed layman in half an hour, for, as is invariably the case with Marshall, his condensation made for greater clarity. In this opinion he also gives evidence, in their highest form, of his other notable qualities as a judicial stylist: his "tiger instinct for the jugular vein"; his rigorous pursuit of logical consequences; his power of stating a case, wherein he is rivaled only by Mansfield; his scorn of the qualifying "buys," "if's," and "though's"; the pith and balance of his phrasing, a reminiscence of his early days with Pope; the developing momentum of his argument; above all, his audacious use of the obiter dictum. Marshall's later opinion in Gibbons vs. Ogden is, it is true, in some respects a greater intellectual performance, but it does not equal this earlier opinion in those qualities of form which attract the amateur and stir the admiration of posterity.

At the very outset of his argument in the Bank case Marshall singled out the question the answer to which must control all interpretation of the Const.i.tution: Was the Const.i.tution, as contended by counsel for Maryland, "an act of sovereign and independent States" whose political interests must be jealously safeguarded in its construction, or, was it an emanation from the American people and designed for their benefit? Marshall answered that the Const.i.tution, by its own declaration, was "ordained and established" in the name of the people, "in order to form a more perfect union, establish justice, insure domestic tranquillity, and secure the blessings of liberty to themselves and their posterity." Nor did he consider the argument "that the people had already surrendered all their powers to the State Sovereignties and had nothing more to give," a persuasive one, for "surely, the question whether they may resume and modify the power granted to the government does not remain to be settled in this country. Much more might the legitimacy of the General Government be doubted, had it been created by the States. The powers delegated to the State sovereignties were to be exercised by themselves, not by a distinct and independent sovereignty created by them." "The Government of the Union, then," Marshall proceeded, "is emphatically... a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised on them, and for their benefit." And what was the nature of this Government? "If any one proposition could command the universal a.s.sent of mankind we might expect it would be this: that the government of the Union, though limited in its powers, is supreme within the sphere of its action. This would seem to result necessarily from its nature. It is the government of all; its powers are delegated by all; it represents all and acts for all." However the question had not been left to reason. "The people have in express terms decided it by saying: 'This Const.i.tution and the laws of the United States which shall be made in pursuance thereof... shall be the supreme Law of the Land.'"

But a Government which is supreme must have the right to choose the means by which to make its supremacy effective; and indeed, at this point again the Const.i.tution comes to the aid of reason by declaring specifically that Congress may make all laws "necessary and proper" for carrying into execution any of the powers of the General Government. Counsel for Maryland would read this clause as limiting the right which it recognized to the choice only of such means of execution as are indispensable; they would treat the word "necessary" as controlling the clause and to this they would affix the word "absolutely." "Such is the character of human language," rejoins the Chief Justice, "that no word conveys to the mind in all situations, one single definite idea," and the word "necessary," "like others, is used in various senses," so that its context becomes most material in determining its significance.

And what is its context on this occasion? "The subject is the execution of those great powers on which the welfare of a nation essentially depends." The provision occurs "in a Const.i.tution intended to endure for ages to come and consequently to be adapted to the various crises of human affairs." The purpose of the clause therefore is not to impair the right of Congress "to exercise its best judgment in the selection of measures to carry into execution the const.i.tutional powers of the Government," but rather "to remove all doubts respecting the right to legislate on that vast ma.s.s of incidental powers which must be involved in the Const.i.tution, if that instrument be not a splendid bauble.... 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."

But was the Act of Maryland which taxed the Bank in conflict with the Act of Congress which established it? If so, must the State yield to Congress? In approaching this question Marshall again laid the basis for as sweeping a decision as possible. The terms in which the Maryland statute was couched indicated clearly that it was directed specifically against the Bank, and it might easily have been set aside on that ground. But Marshall went much further and laid down the principle that the instrumentalities of the National Government are never subject to taxation by the States in any form whatsoever, and for two reasons. In the first place, "those means are not given by the people of a particular State... but by the people of all the States. They are given by all far the benefit of all," and owe their presence in the State not to the State's permission but to a higher authority. The State of Maryland therefore never had the power to tax the Bank in the first place. Yet waiving this theory, there was, in the second place, flat incompatibility between the Act of Maryland and the Act of Congress, not simply because of the specific operation of the former, but rather because of the implied claim which it made for state authority. "That the power to tax involves the power to destroy," Marshall continued; "that the power to destroy may defeat and render useless the power to create; that there is a plain repugnance in conferring on one government a power to control the const.i.tutional measures of another, which other, with respect to those very measures is declared to be supreme over that which exerts the control, are propositions not to be denied." Nor indeed is the sovereignty of the State confined to taxation. "That is not the only mode in which it might be displayed. The question is in truth, a question of supremacy, and if the right of the States to tax the means employed by the General Government be conceded, the declaration that the Const.i.tution and the laws made in pursuance thereof shall be supreme law of the land, is empty and unmeaning declamation.... We are unanimously of opinion," concluded the Chief Justice, "that the law... of Maryland, imposing a tax on the Bank of the United States is unconst.i.tutional and void."

Five years later, in the case of Gibbons vs. Ogden, * known to contemporaries as the "Steamboat case," Marshall received the opportunity to apply his principles of const.i.tutional construction to the power of Congress to regulate "commerce among the States." For a quarter of a century Robert R. Livingston and Robert Fulton and their successors had enjoyed from the Legislature of New York a grant of the exclusive right to run steamboats on the waters of the State, and in this case one of their licensees, Ogden, was seeking to prevent Gibbons, who had steamers in the coasting trade under an Act of Congress, from operating them on the Hudson in trade between points in New York and New Jersey. A circ.u.mstance which made the case the more critical was that New Jersey and Connecticut had each pa.s.sed retaliatory statutes excluding from their waters any vessel licensed under the Fulton-Livingston monopoly. The condition of interstate commercial warfare which thus threatened was not unlike that which had originally operated so potently to bring about the Const.i.tution.

* 9 Wheaton, 1.

The case of Gibbons vs. Ogden was argued in the early days of February, 1824, with Attorney-General Wirt and Daniel Webster against the grant, while two famous New York lawyers of the day, Thomas Addis Emmet, brother of the Irish patriot, and Thomas J. Oakley, acted as Ogden's counsel. The arguments have the importance necessarily attaching to a careful examination of a novel legal question of the first magnitude by learned and acute minds, but some of the claims that have been made for these arguments, and especially for Webster's effort, hardly sustain investigation. Webster, never in any case apt to regard his own performance overcritically, seems in later years to have been persuaded that the Chief Justice's opinion "followed closely the track" of his argument on this occasion; and it is true that Marshall expressed sympathy with Webster's contention that Congress may regulate as truly by inaction as by action, since inaction may indicate its wish that the matter go unregulated; but the Chief Justice did not explicitly adopt this idea, and the major part of his opinion was a running refutation of Emmet's argument, which in turn was only an elaboration of Chancellor Kent's opinion upon the same subject in the New York courts. * In other words, this was one of those cases in which Marshall's indebtedness to counsel was far less for ideas than for the stimulation which his own powers always received from discussion; and the result is his profoundest, most statesmanlike opinion, from whose doctrines the Court has at times deviated, but only to return to them, until today it is more nearly than ever before the established law on the many points covered by its dicta.

* See Livingston vs. Van Ingen, 9 Johnson, 807 (1812); also Kent's "Commentaries", I, 432-38.

Marshall p.r.o.nounced the Fulton-Livingston monopoly inoperative so far as it concerned vessels enrolled under the Act of Congress to engage in the coasting trade; but in arriving at this very simple result his opinion takes the broadest possible range. At the very outset Marshall flatly contradicts Kent's proposition that the powers of the General Government, as representing a grant by sovereignties, must be strictly construed. The Const.i.tution, says he, "contains an enumeration of powers expressly granted by the people to their government," and there is not a word in it which lends any countenance to the idea that these powers should be strictly interpreted. As men whose intentions required no concealment, those who framed and adopted the Const.i.tution "must be understood to have employed words in their natural sense and to have intended what they said"; but if, from the inherent imperfection of language, doubts were at any time to arise "respecting the extent of any given power," then the known purposes of the instrument should control the construction put on its phraseology. "The grant does not convey power which might be beneficial to the grantor if retained by himself... but is an investment of power for the general advantage in the hands of agents selected for the purpose, which power can never be exercised by the people themselves, but must be placed in the hands of agents or remain dormant." In no other of his opinions did Marshall so clearly bring out the logical connection between the principle of liberal construction of the Const.i.tution and the doctrine that it is an ordinance of the American people.

Turning then to the Const.i.tution, Marshall asks, "What is commerce?" "Counsel for appellee," he recites, "would limit it to traffic, to buying and selling," to which he answers that "this would restrict a general term... to one of its significations. Commerce," he continues, "undoubtedly is traffic, but it is something more-it is intercourse," and so includes navigation. And what is the power of Congress over commerce? "It is the power to regulate, that is, the power to prescribe the rule by which commerce is to be governed." It is a power "complete in itself," exercisable "at its utmost extent," and without limitations "other than are prescribed by the Const.i.tution.... If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations and among the several States is vested in Congress as absolutely as it would be in a single government having in its const.i.tution the same restrictions on the exercise of power as are found in the Const.i.tution of the United States." The power, therefore, is not to be confined by state lines but acts upon its subject-matter wherever it is to be found. "It may, of consequence, pa.s.s the jurisdictional line of New York and act upon the very waters to which the prohibition now under consideration applies." It is a power to be exercised within the States and not merely at their frontiers.

But was it sufficient for Marshall merely to define the power of Congress? Must not the power of the State also be considered? At least, Ogden's attorneys had argued, the mere existence in Congress of the power to regulate commerce among the States did not prevent New York from exercising the same power, through legislation operating upon subject matter within its own boundaries. No doubt, he concedes, the States have the right to enact many kinds of laws which will incidentally affect commerce among the States, such for instance as quarantine and health laws, laws regulating bridges and ferries, and so on; but this they do by virtue of their power of "internal police," not by virtue of a "concurrent" power over commerce, foreign and interstate. And, indeed, New York may have granted Fulton and Livingston their monopoly in exercise of this power, in which case its validity would depend upon its not conflicting with an Act of Congress regulating commerce. For should such conflict exist, the State enactment, though pa.s.sed "in the exercise of its acknowledged sovereignty," must give place in consequence of the supremacy conferred by the Const.i.tution upon all acts of Congress in pursuance of it, over all state laws whatsoever.

The opinion then proceeds to the consideration of the Act of Congress relied upon by Gibbons. This, Ogden's attorneys contended, merely conferred the American character upon vessels already possessed of the right to engage in the coasting trade; Marshall, on the contrary, held that it conferred the right itself, together with the auxiliary right of navigating the waters of the United States; whence it followed that New York was powerless to exclude Gibbons's vessels from the Hudson. Incidentally Marshall indicated his opinion that Congress's power extended to the carriage of pa.s.sengers as well as of goods and to vessels propelled by steam as well as to those driven by wind. "The one element," said he, "may be as legitimately used as the other for every commercial purpose authorized by the laws of the Union."

Two years later, in the case of Brown vs. Maryland, * Marshall laid down his famous doctrine that so long as goods introduced into a State in the course of foreign trade remain in the hands of the importer and in the original package, they are not subject to taxation by the State. This doctrine is interesting for two reasons. In the first place, it implies the further principle that an attempt by a State to tax interstate or foreign commerce is tantamount to an attempt to regulate such commerce, and is consequently void. In other words, the principle of the exclusiveness of Congress's power to regulate commerce among the States and with foreign nations, which is advanced by way of dictum in Gibbons vs. Ogden, becomes in Brown vs. Maryland a ground of decision. It is a principle which has proved of the utmost importance in keeping the field of national power clear of enc.u.mbering state legislation against the day when Congress should elect to step in and a.s.sume effective control. Nor can there be much doubt that the result was intended by the framers of the Const.i.tution.

* 12 Wheaton, 419.

In the second place, however, from another point of view this "original package doctrine" is only an extension of the immunity from state taxation established in M'Culloch vs. Maryland for instrumentalities of the National Government. It thus reflects the principle implied by that decision: where power exists to any degree or for any purpose, it exists to every degree and for every purpose; or, to quote Marshall's own words in Brown vs. Maryland, "questions of power do not depend upon the degree to which it may be exercised; if it may be exercised at all, it may be exercised at the will of those in whose hands it is placed." The att.i.tude of the Court nowadays, when it has to deal with state legislation, is very different. It takes the position that abuse of power, in relation to private rights or to commerce, is excess of power and hence demands to be shown the substantial effect of legislation, not its mere formal justification. * In short, its inquiry is into facts. On the other hand, when dealing with congressional legislation, the Court has. .h.i.therto always followed Marshall's bolder method. Thus Congress may use its taxing power to drive out unwholesome businesses, perhaps even to regulate labor within the States, and it may close the channels of interstate and foreign commerce to articles deemed by it injurious to the public health or morals. * * To date this discrepancy between the methods employed by the Court in pa.s.sing upon the validity of legislation within the two fields of state and national power has afforded the latter a decided advantage.