The Life of John Marshall, Volume 1: Frontiersman, soldier, lawmaker, 1755-1788

by Albert J. Beveridge

The Judiciary provided by the Constitution was, said Marshall "a great improvement on that system from which we are now departing. Here [in the Constitution] are tribunals appointed for the decision of controversies which were before either not at all, or improperly, provided for. That many benefits will result from this to the members of the collective society, every one confesses." The National Judiciary deserved the support of all unless it was "defectively organized and so constructed as to injure, instead of accommodate, the convenience of the people."

After the "fair and able" discussion by its supporters, Marshall supposed that its opponents "would be convinced of the impropriety of some of their objections. But," he lamented, "they still continue the same opposition." And what was their complaint? This: That National Courts would not be as fair and impartial as State Courts.

But why not? asked Marshall. Was it because of their tenure of office or the method of choosing them? "What is it that makes us trust our [State] judges? Their independence in office and manner of appointment."[1309] But, under the Constitution, are not National judges "chosen with as much wisdom as the judges of the state governments? Are they not equally, if not more independent? If so," will they not be equally fair and impartial? "If there be as much wisdom and knowledge in the United States as in a particular state," will they "not be equally exercised in the selection of [National] judges?" Such were the questions which Marshall poured upon the Anti-Constitutionalists.

The kernel of the objection to National Courts was, declared Marshall, "a belief that there will not be a fair trial had in those courts." But it was plain, he argued, that "we are as secure there as anywhere else. What mischief results from some causes being tried there [in the National Courts]?" Independent judges "wisely appointed ... will never countenance an unfair trial." Assuming this to be true "what are the subjects of the jurisdiction" of National Courts? To Mason's objection that Congress could create any number of inferior courts it might deem necessary, Marshall replied that he had supposed that those who feared Congress would say that "no inferior courts" would be established, "but that we should be dragged to the centre of the Union." On the contrary, the greater the number of these inferior courts, the less danger "of being dragged to the centre of the United States."

Mason's point, that the jurisdiction of National Courts would extend to all cases, was absurd, argued Marshall. For "has the government of the United States power to make laws on every subject?... laws affecting the mode of transferring property, or contracts, or claims, between citizens of the same state? Can" Congress "go beyond the delegated powers?" Certainly not. Here Marshall stated the doctrine which, fifteen years later, he was to announce from the Supreme Bench:—

"If," he asserted, "they [Congress] were to make a law not warranted by any of the powers enumerated, it would be considered by the [National] judges as an infringement of the Constitution which they are to guard. They would not consider such a law as coming under their jurisdiction. They would declare it void.... To what quarter will you look for protection from an infringement of the Constitution, if you will not give the power to the judiciary? There is no other body that can afford such a protection."

The National Courts would not supplant the State tribunals. The Constitution did not "exclude state courts" from those cases which they now possess. "They have concurrent jurisdiction with the Federal courts in those cases in which the latter have cognizance," expounded the nascent jurist. "Are not controversies respecting lands claimed under the grants of different states the only controversies between citizens of the same state which the Federal Judiciary can take [exclusive] cognizance of?"

The work of the National Courts would make the State Courts more efficient because it would relieve them of a mass of business of which they were not able to dispose. "Does not every gentleman know that the causes in our [State] courts are more numerous than they can decide?" asked Marshall. "Look at the dockets," he exclaimed. "You will find them crowded with suits which the life of man will not see determined.[1310] If some of these suits be carried to other courts, will it be wrong? They will still have business enough."

How vain and fanciful, argued Marshall, the contention that National judges would screen "officers of the [National] government from merited punishment." Does anybody really believe that "the Federal sheriff will go into a poor man's house and beat him or abuse his family and the Federal court will protect him," as Mason and Henry had said would be the case? Even if a law should be passed authorizing "such great insults to the people ... it would be void," declared Marshall. Thus he stated for the second time the doctrine which he was, from the Supreme Bench, to put beyond controversy.

Why, asked Marshall, "discriminate [in the Constitution] between ... chancery, admiralty and the common law" as the Anti-Constitutionalists insisted upon doing? "Why not leave it to Congress? They ... would not wantonly infringe your rights." If they did, they would "render themselves hateful to the people at large." Therefore, "something may be left to the legislature [Congress] freely chosen by ourselves from among ourselves, who are to share the burdens imposed upon the community and who can be changed at our pleasure. Where power may be trusted and there is no motive to abuse it, it ... is as well to leave it undetermined as to fix it in the Constitution."