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- John Marshall and the Constitution, - 3/27 -

the travels of Justice Cushing on circuit: "He traveled over the whole of the Union, holding courts in Virginia, the Carolinas, and Georgia. His traveling equipage was a four-wheeled phaeton, drawn by a pair of horses, which he drove. It was remarkable for its many ingenious arrangements (all of his contrivance) for carrying books, choice groceries, and other comforts. Mrs. Cushing always accompanied him, and generally read aloud while riding. His faithful servant Prince, a jet-black negro, whose parents had been slaves in the family and who loved his master with unbounded affection, followed."* Compared with that of a modern judge always confronted with a docket of eight or nine hundred cases in arrears, Justice Cushing's lot was perhaps not so unenviable.

* Flanders, "The Lives and Times of the Chief-Justices of the Supreme Court," vol. II , p. 38.

The pioneer work of the Supreme Court in constitutional interpretation has, for all but special students, fallen into something like obscurity owing to the luster of Marshall's achievements and to his habit of deciding cases without much reference to precedent. But these early labors are by no means insignificant, especially since they pointed the way to some of Marshall's most striking decisions. In Chisholm vs. Georgia,* which was decided in 1793, the Court ruled, in the face of an assurance in the "Federalist" to the contrary, that an individual might sue a State; and though this decision was speedily disallowed by resentful debtor States by the adoption of the Eleventh Amendment, its underlying premise that, "as to the purposes of the Union, the States are not sovereign" remained untouched; and three years later the Court affirmed the supremacy of national treaties over conflicting state laws and so established a precedent which has never been disturbed.** Meantime the Supreme Court was advancing, though with notable caution, toward an assertion of the right to pass upon the constitutionality of acts of Congress. Thus in 1792, Congress ordered the judges while on circuit to pass upon pension claims, their determinations to be reviewable by the Secretary of the Treasury. In protests which they filed with the President, the judges stated the dilemma which confronted them: either the new duty was a judicial one or it was not; if the latter, they could not perform it, at least not in their capacity as judges; if the former, then their decisions were not properly reviewable by an executive officer. Washington promptly sent the protests to Congress, whereupon some extremists raised the cry of impeachment; but the majority hastened to amend the Act so as to meet the views of the judges.*** Four years later, in the Carriage Tax case,**** the only question argued before the Court was that of the validity of a congressional excise. Yet as late as 1800 we find Justice Samuel Chase of Maryland, who had succeeded Blair in 1795, expressing skepticism as to the right of the Court to disallow acts of Congress on the ground of their unconstitutionality, though at the same time admitting that the prevailing opinion among bench and bar supported the claim.

* 2 Dallas, 419.

** Ware vs. Hylton, 3 ib., 199.

*** See 2 Dallas, 409.

**** Hylton vs. United States, 3 Dallas, 171.

The great lack of the Federal Judiciary during these early years, and it eventually proved well-nigh fatal, was one of leadership. Jay was a satisfactory magistrate, but he was not a great force on the Supreme Bench, partly on account of his peculiarities of temperament and his ill-health, and partly because, even before he resigned in 1795 to run for Governor in New York, his judicial career had been cut short by an important diplomatic assignment to England. His successor, Oliver Ellsworth, also suffered from ill health, and he too was finally sacrificed on the diplomatic altar by being sent to France in 1799. During the same interval there were also several resignations among the associate justices. So, what with its shifting personnel, the lack of business, and the brief semiannual terms, the Court secured only a feeble hold on the imagination of the country. It may be thought, no doubt, that judges anxious to steer clear of politics did not require leadership in the political sense. But the truth of the matter is that willy-nilly the Federal Judiciary at this period was bound to enter politics, and the only question was with what degree of tact and prudence this should be done. It was to be to the glory of Marshall that he recognized this fact perfectly and with mingled boldness and caution grasped the leadership which the circumstances demanded.

The situation at the beginning was precarious enough. While the Constitution was yet far from having commended itself to the back country democracy, that is, to the bulk of the American people, the normal duties of the lower Federal Courts brought the judges into daily contact with prevalent prejudices and misconceptions in their most aggravated forms. Between 1790 and 1800 there were two serious uprisings against the new Government: the Whisky Rebellion of 1794 and Fries's Rebellion five years later. During the same period the popular ferment caused by the French Revolution was at its height. Entrusted with the execution of the laws, the young Judiciary "was necessarily thrust forward to bear the brunt in the first instance of all the opposition levied against the federal head," its revenue measures, its commercial restrictions, its efforts to enforce neutrality and to quell uprisings. In short, it was the point of attrition between the new system and a suspicious, excited populace.

Then, to make bad matters worse, Congress in 1798 passed the Sedition Act. Had political discretion instead of party venom governed the judges, it is not unlikely that they would have seized the opportunity presented by this measure to declare it void and by doing so would have made good their censorship of acts of Congress with the approval of even the Jeffersonian opposition. Instead, they enforced the Sedition Act, often with gratuitous rigor, while some of them even entertained prosecutions under a supposed Common Law of the United States. The immediate sequel to their action was the claim put forth in the Virginia and Kentucky Resolutions that the final authority in interpreting the National Constitution lay with the local legislatures. Before the principle of judicial review was supported by a single authoritative decision, it had thus become a partisan issue!*

* See Herman vs. Ames, "State Documents on Federal Relations," Nos. 7-15.

A few months later Jefferson was elected President, and the Federalists, seeing themselves about to lose control of the Executive and Congress, proceeded to take steps to convert the Judiciary into an avowedly partisan stronghold. By the Act of February 18, 1801, the number of associate justiceships was reduced to four, in the hope that the new Administration might in this way be excluded from the opportunity of making any appointments to the Supreme Bench, the number of district judgeships was enlarged by five, and six Circuit Courts were created which furnished places for sixteen more new judges. When John Adams, the retiring President, proceeded with the aid of the Federalist majority in the Senate and of his Secretary of State, John Marshall, to fill up the new posts with the so-called "midnight judges,"* the rage and consternation of the Republican leaders broke all bounds. The Federal Judiciary, declared John Randolph, had become "an hospital of decayed politicians." Others pictured the country as reduced, under the weight of "supernumerary judges" and hosts of attendant lawyers, to the condition of Egypt under the Mamelukes. Jefferson's concern went deeper. "They have retired into the judiciary as a stronghold," he wrote Dickinson. "There the remains of Federalism are to be preserved and fed from the Treasury, and from that battery all the works of Republicanism are to be beaten down and destroyed." The Federal Judiciary, as a coordinate and independent branch of the Government, was confronted with a fight for life!

* So called because the appointment of some of them was supposed to have taken place as late as midnight, or later, of March 3-4, 1801. The supposition, however, was without foundation.

Meanwhile, late in November, 1800, Ellsworth had resigned, and Adams had begun casting about for his successor. First he turned to Jay, who declined on the ground that the Court, "under a system so defective," would never "obtain the energy, weight, and dignity which were essential to its affording due support to the National Government, nor acquire the public confidence and respect which, as the last resort of the justice of the nation, it should possess." Adams now bethought himself of his Secretary of State and, without previously consulting him, on January 20, 1801, sent his name to the Senate. A week later the Senate ratified the nomination, and on the 4th of February Marshall accepted the appointment. The task despaired of by Jay and abandoned by Ellsworth was at last in capable hands.

CHAPTER II. Marshall's Early Years

John Marshall was born on September 24, 1755, in Fauquier County, Virginia. Though like Jefferson he was descended on his mother's side from the Randolphs of Turkey Island, colonial grandees who were also progenitors of John Randolph, Edmund Randolph, and Robert E. Lee, his father, Thomas Marshall, was "a planter of narrow fortune" and modest lineage and a pioneer. Fauquier was then on the frontier, and a few years after John was born the family moved still farther westward to a place called "The Hollow," a small depression on the eastern slope of the Blue Ridge. The external furnishings of the boy's life were extremely primitive, a fact which Marshall used later to recall by relating that his mother and sisters used thorns for buttons and that hot mush flavored with balm leaf was regarded as a very special dish. Neighbors of course, were few and far between, but society was not lacking for all that. As the first of fifteen children, all of whom reached maturity, John found ample opportunity to cultivate that affectionate helpfulness and gayety of spirit which in after years even enemies accounted one of his most notable traits.

Among the various influences which, during the plastic years of boyhood and youth, went to shape the outlook of the future Chief Justice high rank must be accorded his pioneer life. It is not merely that the spirit of the frontier, with its independence of precedent and its audacity of initiative, breathes through his great constitutional decisions, but also that in being of the

John Marshall and the Constitution, - 3/27

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