Marshall made a very noticeable remark in his opinion, seeming to point to the chief executive himself, and not merely to his secretary, when he said, “It is not the office of the person to whom the writ is directed, but the nature of the thing to be done, by which the propriety or impropriety of issuing the mandamus is to be determined;”—a hint that, on an appropriate occasion, the judiciary might issue orders personally to him. This remark got illustration a few years later, in 1807, when the Chief Justice, at the trial of Aaron Burr in Richmond, ordered a subpœna to the same President, Thomas Jefferson, directing him to bring thither certain documents. It was a strange conception of the relations of the different departments of the government to each other, to imagine that a subpœna, that is to say an order accompanied with a threat of punishment, was a legitimate judicial mode of communicating with the chief executive. On Jefferson’s part, this order was received with the utmost discontent; and justly. He had a serious apprehension of a purpose to arrest him by force, and was prepared to protect himself.[33] Meantime he sent to the United States Attorney at Richmond the papers called for, but explained, with dignity, that while the executive was willing to testify in Washington, it could not allow itself to be “withdrawn from its station by any coördinate authority.”
It was partly to the tendency on Marshall’s part, just mentioned, to give little thought, often, to ordinary conventions, and partly to his kindness of heart, that we should attribute another singular occurrence,—the fact that he attended a dinner at the house of an old friend, one of Burr’s counsel, when he knew that Burr was to be present, and when that individual, having previously been brought to Richmond under arrest, examined by Marshall, and admitted to bail, was still awaiting the action of the grand jury with reference to further judicial proceedings before Marshall himself. He accepted the invitation before he knew that Burr was to be of the company. I have heard from one of his descendants that his wife advised him not to go; but he thought it best not to seem too fastidious, or to appear to censure his old friend, the host, by staying away. He sat, we are told, at the opposite end of the table from Burr, had no communication with him, and went away early. But we must still wonder at an act which he himself afterwards much regretted.
[CHAPTER IV]
MARSHALL’S CONSTITUTIONAL OPINIONS
This is not the place for any detailed consideration of Marshall’s decisions. But it would be a strange omission to leave out all consideration of what played so great a part in his life. I must draw, therefore, upon the patience of the reader, while some points are mentioned relating to that class of his opinions which is at once the most important and of the widest interest, viz., those given in constitutional cases. If these matters seem to any reader dull or unintelligible, he must be allowed full liberty to pass them by; but I cannot wholly omit them.
The keynote to Marshall’s leading constitutional opinions is that of giving free scope to the power of the national government. These leading opinions may be divided into three classes: First, such as discuss the nature and reach of the Federal Constitution, and the general relation of the federal government to the States. Of this class, McCulloch v. Maryland, probably his greatest opinion, is the chief illustration. Second, those cases which are concerned with the specific restraints and limitations upon the States. To this class may be assigned Fletcher v. Peck, the bankruptcy cases of Sturgis v. Crowninshield and Ogden v. Saunders, and Dartmouth College v. Woodward. Third, such as deal with the general theory and principles of constitutional law. There is little of this sort; except as it is incidentally touched, perhaps the only case is Marbury v. Madison.
If we look at these great cases merely with reference to their effect upon the history and development of the country, they are of the very first importance. When one names Marbury v. Madison, the first case where the Supreme Court held an act of Congress invalid, and the only one in Marshall’s time; Fletcher v. Peck and Dartmouth College v. Woodward, where legislative grants and an act of incorporation are held to be contracts, protected by the United States Constitution against state legislation impairing their obligation; and New Jersey v. Wilson, holding that a legislative exemption from taxation is also a contract protected in the same way;—one sees the tremendous importance of the decisions.
Of coarse we are not to confound this powerful effect of a judgment, or the moral approbation with which we may be inclined to view it, with the intrinsic merit of the reasoning or the legal soundness of the conclusions. It is not uncommon to speak of the reasoning in Marbury v. Madison and Dartmouth College v. Woodward with the greatest praise. But neither of these opinions is entitled to rank with Marshall’s greatest work. The very common view to which I have alluded is partly referable to the fallacy which Wordsworth once remarked upon when a friend mentioned “The Happy Warrior” as being the greatest of his poems. “No,” said the poet, “you are mistaken; your judgment is affected by your moral approval of the lines.”
If we regard at once the greatness of the questions at issue in the particular case, the influence of the opinion, and the large method and clear and skillful manner in which it is worked out, there is nothing so fine as the opinion in McCulloch v. Maryland, given at the February term, 1819. The questions were, first, whether the United States could constitutionally incorporate a bank; and, second, if it could, whether a State might tax the operations of the bank; as, in this instance, by requiring it to use stamped paper for its notes. The bank was sustained and the tax condemned.
In working this out, it was laid down that while the United States is merely a government of enumerated powers, and these do not in terms include the granting of an incorporation, yet it is a government whose powers, though limited in number, are in general supreme, and also adequate to the great national purposes for which they are given; that these great purposes carry with them the power of adopting such means, not prohibited by the Constitution, as are fairly conducive to the end; and that incorporating a bank is not forbidden, and is useful for several ends. Further, the paramount relation of the national government, whose valid laws the Constitution makes the supreme law of the land, forbids the States to tax, or to “retard, impede, burden, or in any way control” the operations of the government in any of its instrumentalities.
This was the opinion of a unanimous court, in which five out of the seven judges had been nominated by a Republican President. But it caused great excitement at the South. On March 24, 1819, Marshall wrote from Richmond to Judge Story: “Our opinion in the bank case has roused the sleeping spirit of Virginia, if indeed it ever sleeps. It will, I understand, be attacked in the papers with some asperity, and as those who favor it never write for the public it will remain undefended, and of course be considered as damnably heretical.” Again, two months later, “The opinion in the bank case continues to be denounced by the Democracy of Virginia.… If the principles which have been advanced on this occasion were to prevail the Constitution would be converted into the old Confederation.”