The gist of Marshall's voluminous opinion in Ogden vs. Saunders is that the Constitution protects all contracts, past or future, from State legislation which in any manner impairs their obligation.[1310] Considering that even the rigidly conservative Bushrod Washington, Marshall's stanch supporter, refused to follow his stern philosophy, in this case, the measure and character of Marshall's conservatism are seen when, in his seventy-fifth year, he helped to frame a new constitution for Virginia.
Still another example of Marshall's rock-like conservatism and of the persistence with which he held fast to his views is afforded by a second dissent from the majority of the court at the same session. This time every one of the Associate Justices was against him, and Story delivered their unanimous opinion. The Bank of the United States had sued Julius B. Dandridge, cashier of the Richmond branch, and his sureties, on his official bond. Marshall, sitting as Circuit Judge, had held that only the written record of the bank's board of directors, that they approved and accepted the bond, could be received to prove that Dandridge had been legally authorized to act as cashier.
The Supreme Court reversed Marshall's judgment, holding that the authorization of an agent by a corporation can be established by presumptive evidence,[1311] an opinion that was plainly sound and which stated the law as it has continued to be ever since. But despite the unanimity of his brethren, the clear and convincing opinion of Story, the disapproval of his own views by the bench, bar, and business men of the whole country, Marshall would not yield. "The Ch: Jus: I fear will die hard," wrote Webster, who was of counsel for the bank.[1312]
In a very long opinion Marshall insists that his decision in the Circuit Court was right, fortifying his argument by more than thirty citations. He begins by frank acknowledgment of the discontent his decision in the Circuit Court has aroused: "I should now, as is my custom, when I have the misfortune to differ with this court, acquiesce silently in its opinion, did I not believe that the judgment of the circuit court of Virginia gave general surprise to the profession, and was generally condemned." Corporations, "being destitute of human organs," can express themselves only by writing. They must act through agents; but the agency can be created and proved only by writing.
Marshall points out the serious possibilities to those with whom corporations deal, as well as to the corporations themselves, of the acts of persons serving as agents without authority of record.[1313] Powerful as his reasoning is, it is based on mistaken premises inapplicable to modern corporate transactions; but his position, his method, his very style, reveal the stubborn conservative at bay, bravely defending himself and his views.
This, then, was the John Marshall, who, in his old age, accepted the call of men as conservative as himself to help frame a new constitution for Virginia, On Monday, October 5, 1829, the convention met in the House of Delegates at Richmond. James Madison, then in his seventy-ninth year, feeble and wizened, called the members to order and nominated James Monroe for President of the convention. This nomination was seconded by Marshall. These three men, whose careers since before the Revolution and throughout our formative period, had been more distinguished, up to that time, than had that of any American then living, were the most conspicuous persons in that notable Assembly. Giles, now Governor of the State, was also a member; so were Randolph, Tyler, Philip P. Barbour, Upshur, and Tazewell. Indeed, the very ablest men in Virginia had been chosen to make a new constitution for the State. In the people's anxiety to select the best men to do that important work, delegates were chosen regardless of the districts in which they lived.[1314]
To Marshall, who naturally was appointed to the Judiciary Committee,[1315] fell the task of presenting to the convention the first petition of non-freeholders for suffrage.[1316] No more impressive document was read before that body. It stated the whole democratic argument clearly and boldly.[1317] The first report received from any committee was made by Marshall and also was written by him.[1318] It provided for the organization of the State Judiciary, but did not seek materially to change the system of appointments of judges.
Two sentences of this report are important: "No modification or abolition of any Court, shall be construed to deprive any Judge thereof of his office"; and, "Judges may be removed from office by a vote of the General Assembly: but two-thirds of the whole number of each House must concur in such vote."[1319] Marshall promptly moved that this report be made the order of the day and this was done.
Ranking next to the question of the basis of suffrage and of representation was that of judiciary reform. To accomplish this reform was one of the objects for which the convention had been called. At that time the Judiciary of Virginia was not merely a matter of courts and judges; it involved the entire social and political organization of that State. No more essentially aristocratic scheme of government ever existed in America. Coming down from Colonial times, it had been perpetuated by the Revolutionary Constitution of 1776. It had, in practical results, some good qualities and others that were evil, among the latter a well-nigh faultless political mechanism.[1320]
The heart of this system was the County Courts. Too much emphasis cannot be placed on this fact. These local tribunals consisted of justices of the peace who sat together as County Courts for the hearing and decision of the more important cases. They were almost always the first men of their counties, appointed by the Governor for life; vacancies were, in practice, filled only on the recommendation of the remaining justices. While the Constitution of 1776 did not require the Governor to accept the nominations of the County Courts for vacancies in these offices, to do so had been a custom long established.[1321]