A few months later, in consequence of the Administration’s vigorous measures against nullification in South Carolina, things were temporarily wearing a brighter aspect. Yet that the fundamental elements of the situation had been thereby altered, Marshall did not believe. “To men who think as you and I do,” he wrote Story, toward the end of 1834, “the present is gloomy enough; and the future presents no cheering prospect. In the South … those who support the Executive do not support the Government. They sustain the personal power of the President, but labor incessantly to impair the legitimate powers of the Government. Those who oppose the rash and violent measures of the Executive … are generally the bitter enemies of Constitutional Government. Many of them are the avowed advocates of a league; and those who do not go the whole length, go a great part of the way. What can we hope for in such circumstances?”
Yet there was one respect in which the significance of Marshall’s achievement must have been as clear to himself as it was to his contemporaries. He had failed for the time being to establish his definition of national power, it is true, but he had made the Supreme Court one of the great political forces of the country. The very ferocity with which the pretensions of the Court were assailed in certain quarters was indirect proof of its power, but there was also direct testimony of a high order. In 1830 Alexis de Tocqueville, the French statesman, visited the United States just as the rough frontier democracy was coming into its own. Only through the Supreme Court, in his opinion, were the forces of renewal and growth thus liberated to be kept within the bounds set by existing institutions. “The peace, the prosperity, and the very existence of the Union,” he wrote, “are vested in the hands of the seven Federal judges. Without them the Constitution would be a dead letter: the Executive appeals to them for assistance against the encroachments of the legislative power; the Legislature demands their protection against the assaults of the Executive; they defend the Union from the disobedience of the States, the States from the exaggerated claims of the Union, the public interest against private interests and the conservative spirit of stability against the fickleness of the democracy.” The contrast between these observations and the disheartened words in which Jay declined renomination to the chief justiceship in 1801 gives perhaps a fair measure of Marshall’s accomplishment.
Of the implications of the accomplishment of the great Chief Justice for the political life of the country, let De Tocqueville speak again: “Scarcely any political question arises in the United States which is not resolved sooner, or later, into a judicial question. Hence all parties are obliged to borrow in their daily controversies the ideas, and even the language peculiar to judicial proceedings.… The language of the law thus becomes, in some measure, a vulgar tongue; the spirit of law, which is produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society, where it descends to the lowest classes, so that at last the whole people contract the habits and the tastes of the judicial magistrate.”
In one respect, however, De Tocqueville erred. American “legalism,” that curious infusion of politics with jurisprudence, that mutual consultation of public opinion and established principles, which in the past has so characterized the course of discussion and legislation in America, is traceable to origins long antedating Marshall’s chief justiceship. On the other hand, there is no public career in American history which ever built so largely upon this pervasive trait of the national outlook as did Marshall’s, or which has contributed so much to render it effective in palpable institutions.
[CHAPTER VIII]
Among Friends And Neighbors
It is a circumstance of no little importance that the founder of American Constitutional Law was in tastes and habit of life a simple countryman. To the establishment of National Supremacy and the Sanctity of Contracts Marshall brought the support not only of his office and his command of the art of judicial reasoning but also the whole-souled democracy and unpretentiousness of the fields. And it must be borne in mind that Marshall was on view before his contemporaries as a private citizen rather more of the time, perhaps, than as Chief Justice. His official career was, in truth, a somewhat leisurely one. Until 1827 the term at Washington rarely lasted over six weeks and subsequently not over ten weeks. In the course of his thirty-four years on the Bench, the Court handed down opinions in over 1100 cases, which is probably about four times the number of opinions now handed down at a single term; and of this number Marshall spoke for the Court in about half the cases. Toward the middle of March, he left Washington for Richmond, and on the 22d of May opened court in his own circuit. Then, three weeks later, if the docket permitted, he went on to Raleigh to hold court there for a few days. The summers he usually spent on the estate which he inherited from his father at Fauquier, or else he went higher up into the mountains to escape malaria. But by the 22d of November at the latest he was back once more in Richmond for court, and at the end of December for a second brief term he again drove to Raleigh in his high-wheeled gig. With his return to Washington early in February he completed the round of his judicial year.
The entire lack of pageantry and circumstance which attended these journeyings of his is nowhere more gaily revealed than in the following letter to his wife, which is now published for the first time through the kindness of Mr. Beveridge: