[CHAPTER III]
THE BEGINNINGS OF THE CHIEF JUSTICE’S CAREER; AMERICAN CONSTITUTIONAL LAW; MARBURY v. MADISON.
Marshall’s accession to the bench was marked by an impressive circumstance. For ten years or more, he alone gave all the opinions of the court to which any name was attached, except where the case came up from his own circuit, or, for any reason, he did not sit. In the very few cases where opinions were given by the other justices, it was in the old way, seriatim,—the method followed before Marshall came in, as it was also the method of contemporary English courts.
Whatever may have been the purpose of the Chief Justice in introducing this usage, there can be no doubt as to the impression it was calculated to produce. It seemed, all of a sudden, to give to the judicial department a unity like that of the executive, to concentrate the whole force of that department in its chief, and to reduce the side-justices to a sort of cabinet advisers. In the very few early cases where there was expressed dissent, it lost much of its impressiveness, when announced, as it sometimes was, by the mouth that gave the opinion of the court.
In 1812, when a change took place, the court had been for a year without a quorum. Moreover, Judge Story had just come to the bench, a man of quite too exuberant an intellect and temperament to work well as a silent side-judge. We remark, also, at the beginning of that term, that the Chief Justice was not in attendance, having, as the reporter tells us, “received an injury by the oversetting of the stage-coach on his journey from Richmond.” And it may be added that just at this time the anxious prayer of Jefferson was answered, and a majority of the judges were Republicans. From whatever cause, henceforward there was a change; and without returning to the old habit of seriatim opinions, the side-judges had their turn, as they do now.
In most of Marshall’s opinions, one observes the style and special touch of a thoughtful and original mind; in some of them the powers of a great mind, in full activity. His cases relating to international law, as I am assured by those competent to judge, rank with the best there are in the books. As regards most of the more familiar titles of the law, it would be too much to claim for him the very first rank. In that region he is, in many respects, equaled or surpassed by men more deeply versed in the learning and technicalities of the law, in what constitutes that “artificial perfection of reason” which Coke used to glorify as far transcending any man’s natural reason,—men such as Story, Kent, or Shaw, or even the reformer, Mansfield, whom he greatly admired, Eldon, or Blackburn. But in the field of constitutional law, a region not open to an English lawyer,—and especially in one department of it, that relating to the nature and scope of the National Constitution, he was preëminent,—first, with no one second. It is hardly possible, as regards this part of the law, to say too much of the service he rendered to his country. Sitting in the highest judicial place for more than a generation; familiar, from the beginning, with the Federal Constitution, with the purposes of its framers, and with all the objections of its critics; accustomed to meet these objections from the time he had served in the Virginia Convention of 1788; convinced of the purpose and capacity of this instrument to create a strong nation, competent to make itself respected at home and abroad, and able to speak with the voice and strike with the strength of all; assured that this was the paramount necessity of the country, and that the great source of danger was in the jealousies and adverse interests of the States,—Marshall acted on his convictions. He determined to give full effect to all the affirmative contributions of power that went to make up a great and efficient national government; and fully, also, to enforce the national restraints and prohibitions upon the States. In both cases he included not only the powers expressed in the Constitution, but those also which should be found, as time unfolded, to be fairly and clearly implied in the objects for which the federal government was established. In that long judicial life, with which Providence blessed him, and blessed his country, he was able to lay down, in a succession of cases, the fundamental considerations which fix and govern the relative functions of the nation and the States, so plainly, with such fullness, with such simplicity and strength of argument, such a candid allowance for all that was to be said upon the other side, in a tone so removed from controversial bitterness, so natural and fit for a great man addressing the “serene reason” of mankind, as to commend these things to the minds of his countrymen, and firmly to fix them in the jurisprudence of the nation; so that “when the rain descended and the floods came, and the winds blew and beat upon that house, it fell not, because it was founded upon a rock.” It was Marshall’s strong constitutional doctrine, explained in detail, elaborated, powerfully argued, over and over again, with unsurpassable earnestness and force, placed permanently in our judicial records, holding its own during the long emergence of a feebler political theory, and showing itself in all its majesty when war and civil dissension came,—it was largely this that saved the country from succumbing, in the great struggle of forty years ago, and kept our political fabric from going to pieces.
I do not forget our own Webster, or others, in saying that to Marshall (if we may use his own phrase about Washington), “more than to any other individual, and as much as to one individual was possible,” do we owe that prevalence of sound constitutional opinion and doctrine at the North that held the Union together; to that combination in him, of a great statesman’s sagacity, a great lawyer’s lucid exposition and persuasive reasoning, a great man’s candor and breadth of view, and that judicial authority on the bench, allowed naturally and as of right, to a large, sweet nature, which all men loved and trusted, capable of harmonizing differences and securing the largest possible amount of coöperation among discordant associates. In a very great degree, it was Marshall, and these things in him, that have wrought out for us a strong and great nation, one which men can love and die for; that “mother of a mighty race,” that stirred the soul of Bryant half a century ago, as he dreamed how—
“The thronging years in glory rise,
And as they fleet,
Drop strength and riches at thy feet;”
the nation whose image flamed in the heart of Lowell, a generation since, as he greeted her coming up out of the Valley of the Shadow of Death:—
“Oh Beautiful, my country, ours once more!…
Among the nations bright beyond compare!…
What were our lives without thee?
What all our lives to save thee?
We reck not what we gave thee,
We will not dare to doubt thee,
But ask whatever else, and we will dare!”