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- John Marshall and the Constitution, - 27/27 -


defined in the light of Marshall's principle, that a Constitution designed for ages to come must be "adapted to the various crises of human affairs."

* Justice Bradley in ex parte Siebold, 100 U.S., 371.

It is only when we turn to that branch of Constitutional Law which defines governmental power in relation to private rights that we lose touch with Marshall's principles. As we have seen, he dealt in absolutes: either power was given to an unlimited extent or it was withheld altogether. Today, however, the dominant rule in this field of Constitutional Law is the "rule of reason." In the last analysis, there are few private rights which are not subordinate to the general welfare; but, on the other hand, legislation which affects private rights must have a reasonable tendency to promote the general welfare and must not arbitrarily invade the rights of particular persons or classes. Inasmuch as the hard and fast rules of an age when conditions of life were simpler are no longer practicable under the more complex relationships of modern times, there is today an inevitable tendency to force these rules to greater flexibility.*

* Notwithstanding what is said above, it is also true that the modern doctrine of "the police power" owes something to Marshall's interpretation of the "necessary and proper" clause in M'Culloch vs. Maryland, which is frequently offered nowadays as stating the authoritative definition of "a fair legislative discretion" in relation to private rights. Indeed this ingenious transposition was first suggested in Marshall's day. See Cowen (N. Y.), 585. But it never received his sanction and does not represent his point of view.

And this difference in the point of view of the judiciary connotes a general difference of outlook which makes itself felt today even in that field where Marshall wrought most enduringly. The Constitution was established under the sway of the idea of the balance of power, and with the purpose of effecting a compromise among a variety of more or less antagonistic interests, some of which were identified with the cause of local autonomy, others of which coalesced with the cause of National Supremacy. The Nation and the States were regarded as competitive forces, and a condition of tension between them was thought to be not only normal but desirable. The modern point of view is very different. Local differences have to a great extent disappeared, and that general interest which is the same for all the States is an ever deepening one. The idea of the competition of the States with the Nation is yielding to that of their cooperation in public service. And it is much the same with the relation of the three departments of Government. The notion that they have antagonistic interests to guard is giving way to the perception of a general interest guarded by all according to their several faculties. In brief, whereas it was the original effort of the Constitution to preserve a somewhat complex set of values by nice differentiations of power, the present tendency, born of a surer vision of a single national welfare, is toward the participation of all powers in a joint effort for a common end.

But though Marshall's work has been superseded at many points, there is no fame among American statesmen more strongly bulwarked by great and still vital institutions. Marshall established judicial review; he imparted to an ancient legal tradition a new significance; he made his Court one of the great political forces of the country; he founded American Constitutional Law; he formulated, more tellingly than any one else and for a people whose thought was permeated with legalism, the principles on which the integrity and ordered growth of their Nation have depended. Springing from the twin rootage of Magna Charta and the Declaration of Independence, his judicial statesmanship finds no parallel in the salient features of its achievement outside our own annals.

BIBLIOGRAPHICAL NOTE

All accounts of Marshall's career previous to his appointment as Chief Justice have been superseded by Albert J. Beveridge's two admirable volumes, "The Life of John Marshall" (Boston, 1916). The author paints on a large canvas and with notable skill. His work is history as well as biography. His ample plan enables him to quote liberally from Marshall's writings and from all the really valuable first-hand sources. Both text and notes are valuable repositories of material. Beveridge has substantially completed a third volume covering the first decade of Marshall's chief-justiceship, and the entire work will probably run to five volumes.

Briefer accounts of Marshall covering his entire career will be found in Henry Flanders's "Lives and Times of the Chief Justices of the Supreme Court" (1875) and Van Santvoord's "Sketches of the Lives, Times, and Judicial Services of the Chief Justices of the Supreme Court" (1882). Two excellent brief sketches are J. B. Thayer's "John Marshall" (1901) in the "Riverside Biographical Series," and W. D. Lewis's essay in the second volume of "The Great American Lawyers," 8 vols. (Philadelphia, 1907), of which he is also the editor. The latter is particularly happy in its blend of the personal and legal, the biographical and critical. A. B. Magruder's "John Marshall" (1898) in the "American Statesman Series" falls considerably below the general standard maintained by that excellent series.

The centennial anniversary of Marshall's accession to the Supreme Bench was generally observed by Bench and Bar throughout the United States, and many of the addresses on the great Chief Justice's life and judicial services delivered by distinguished judges and lawyers on that occasion were later collected by John F. Dillon and published in "John Marshall, Life, Character, and Judicial Services," 3 vols. (Chicago, 1903). In volume XIII of the "Green Bag" will be found a skillfully constructed mosaic biography of Marshall drawn from these addresses.

The most considerable group of Marshall's letters yet published are those to Justice Story, which will be found in the "Massachusetts Historical Society Proceedings," Second Series, volume XIV, pp. 321-60. These and most of the Chief Justice's other letters which have thus far seen the light of day will be found in J. E. Oster's "Political and Economic Doctrines of John Marshall" (New York, 1914). Here also will be found a copy of Marshall's will, of the autobiography which he prepared in 1818 for Delaplaine's "Repository" but which was never published there, and of his eulogy of his wife. The two principal sources of Marshall's anecdotes are the "Southern Literary Messenger," volume II, p.181 ff., and Henry Howe's "Historical Collections of Virginia" (Charleston, 1845). Approaching the value of sources are Joseph Story's "Discourse upon the Life, Character, and Services of the Hon. John Marshall" (1835) and Horace Binney's "Eulogy" (1835), both of which were pronounced by personal friends shortly after Marshall's death and both of which are now available in volume III of Dillon's compilation, cited above. The value of Marshall's "Life of Washington" as bearing on the origin of his own point of view in politics was noted in the text (Chapter VIII).

Marshall's great constitutional decisions are, of course, accessible in the Reports, but they have also been assembled into a single volume by John M. Dillon, "John Marshall; Complete Constitutional Decisions" (Chicago, 1903), and into two instructively edited volumes by Joseph P. Cotton, "Constitutional Decisions of John Marshall" (New York, 1905). Story's famous "Commentaries on the Constitution" gives a systematic presentation of Marshall's constitutional doctrines, which is fortified at all points by historical reference; the second edition is the best. For other contemporary evaluations of Marshall's decisions, often hostile, see early volumes of the "North American Review" and Niles's "Register;" also the volumes of the famous John Taylor of Caroline. A brief general account of later date of the decisions is to be found in the "Constitutional History of the United States as Seen in the Development of American Law" (New York, 1889), a course of lectures before the Political Science Association of the University of Michigan. Detailed commentary of a high order of scholarship is furnished by Walter Malins Rose's "Notes" to the Lawyers' Edition of the United States Reports, 13 vols. (1899-1901). The more valuable of Marshall's decisions on circuit are collected in J. W. Brockenbrough's two volumes of "Reports of Cases Decided by the Hon. John Marshall" (Philadelphia, 1837), and his rulings at Burr's Trial are to be found in Robertson's "Reports of the Trials of Colonel Aaron Burr," 2 vols. (1808).

Marshall's associates on the Supreme Bench are pleasingly sketched in Hampton L. Carson's "Supreme Court of the United States" (Philadelphia, 1891), which also gives many interesting facts bearing on the history of the Court itself. In the same connection Charles Warren's "History of the American Bar" (Boston, 1911) is, also valuable both for the facts which it records and for the guidance it affords to further material. Of biographies of contemporaries and coworkers of Marshall, the most valuable are John P. Kennedy's "Memoirs of the Life of William Wirt," 2 vols. (Philadelphia, 1880); William Wetmore Story's "Life and Letters of Joseph Story," 2 vols. (Boston, 1851); and William Kent's "Memoirs and Letters of James Kent" (Boston, 1898). Everett P. Wheeler's "Daniel Webster the Expounder of the Constitution" (1905) is instructive, but claims far too much for Webster's influence upon Marshall's views. New England has never yet quite forgiven Virginia for having had the temerity to take the formative hand in shaping our Constitutional Law. The vast amount of material brought together in Gustavus Myers's "History of the Supreme Court" (Chicago, 1912) is based on purely ex parte statements and is so poorly authenticated as to be valueless. He writes from the socialistic point of view and fluctuates between the desire to establish the dogma of "class bias" by a coldly impartial examination of the "facts" and the desire to start a scandal reflecting on individual reputations.

The literature of eulogy and appreciation is, for all practical purposes, exhausted in Dillon's collection. But a reference should be made here to a brief but pertinent and excellently phrased comment on the great Chief Justice in Woodrow Wilson's "Constitutional Government in the United States" (New York, 1908), pp.158-9.


John Marshall and the Constitution, - 27/27

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