John Marshall

by James Bradley Thayer

“It is true, sir, these points of law must have occurred, and must have been decided, but it by no means follows that they could only have been decided in court. A variety of legal questions must present themselves in the performance of every executive duty, but these questions are not therefore to be decided in court. Whether a patent for land shall issue or not is always a question of law, but not a question which must necessarily be carried into court. The gentleman from Pennsylvania seems to have permitted himself to have been misled by the misrepresentations of the Constitution made in the resolutions of the gentleman from New York; and, in consequence of being so misled, his observations have the appearance of endeavoring to fit the Constitution to his arguments, instead of adapting his arguments to the Constitution.

“When the gentleman has proved that these are questions of law, and that they must have been decided by the President, he has not advanced a single step towards proving that they were improper for executive decision. The question whether vessels captured within three miles of the American coast, or by privateers fitted out in the American ports, were legally captured or not, and whether the American government is bound to restore them, if in its power, were questions of law, but they were questions of political law, proper to be decided, and they were decided by the executive, and not by the courts. The casus fœderis of the guaranty was a question of law, but no man could have hazarded the opinion that such a question must be carried into court, and can only be there decided. So the casus fœderis, under the twenty-seventh article of the treaty with Britain, is a question of law, but of political law. The question to be decided is, whether the particular case proposed be one in which the nation has bound itself to act, and this is a question depending on principles never submitted to courts. If murder should be committed within the United States, and the murderer should seek an asylum in Britain, the question whether the casus fœderis, of the twenty-seventh article had occurred, so that his delivery ought to be demanded, would be a question of law, but no man would say it was a question which ought to be decided in the courts.

“When, therefore, the gentleman from Pennsylvania has established that, in delivering up Thomas Nash, points of law were decided by the President, he has established a position which in no degree whatever aids his argument. The case is in its nature a national demand, made upon the nation. The parties are the two nations. They cannot come into court to litigate their claims, nor can a court decide on them. Of consequence, the demand is not a case for judicial cognizance. The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence, the demand of a foreign nation can only be made on him.…

“The treaty, which is a law, enjoins the performance of a particular object. The person who is to perform this object is marked out by the Constitution, since the person is named who conducts the foreign intercourse and is to take care that the laws be faithfully executed. The means by which it is to be performed, the force of the nation, are in the hands of this person. Ought not this person to perform the object, although the particular mode of using the means has not been prescribed? Congress, unquestionably, may prescribe the mode, and Congress may devolve on others the whole execution of the contract; but, till this is done, it seems the duty of the executive department to execute the contract by any means it possesses.

“The gentleman from Pennsylvania contends that, although this should be properly an executive duty, yet it cannot be performed until Congress shall direct the mode of performance.… The treaty stipulating that a murderer shall be delivered up to justice is as obligatory as an act of Congress making the same declaration. If, then, there was an act of Congress in the words of the treaty, declaring that a person who had committed murder within the jurisdiction of Britain, and sought an asylum within the territory of the United States, should be delivered up by the United States, on the demand of his Britannic Majesty and such evidence of his criminality as would have justified his commitment for trial, had the offense been committed here; could the President, who is bound to execute the laws, have justified the refusal to deliver up the criminal by saying that the legislature had totally omitted to provide for the case?

“The executive is not only the constitutional department, but seems to be the proper department to which the power in question may most wisely and most safely be confided.… If, at any time, policy may temper the strict execution of the contract, where may that political discretion be placed so safely as in the department whose duty it is to understand precisely the state of the political intercourse and connection between the United States and foreign nations, to understand the manner in which the particular stipulation is explained and performed by foreign nations, and to understand completely the state of the Union?”

This clear, strong, convincing speech, of which I have quoted but a small portion, settled the question then in dispute, and the principles here laid down have controlled the action of the government ever since.

Very soon after entering upon his duties as Chief Justice, Marshall undertook to write the “Life of Washington.” This gave him a great deal of trouble and mortification. It proved to be an immense labor; the publishers were importunate, and he was driven into print before he was ready. The result was a work in five volumes, appearing from 1802 to 1804, full of the most valuable and authentic material, well repaying perusal, yet put together with singular lack of literary skill, and in many ways a great disappointment.[19] In the later years of his life, he revised it, corrected some errors, shortened it, and published it in three volumes: one of them, in 1824, as a separate preliminary history of the colonial period, and the other two, in 1834, as the “Life of Washington.” This work, in its original form, gave great offense to Jefferson, written, as it was, from the point of view of a constant admirer and supporter of the policy of Washington; a “five volume libel,” Jefferson called it.

Jefferson had ludicrous misconceptions as to Marshall’s real character. It is said that after Burr’s trial, in 1807, all personal intercourse between them ceased.[20] Referring in 1810 to the “batture” case, in which Edward Livingston sued him, and which was to come before Marshall, Jefferson says that he is certain what the result of the case should be, but nobody can tell what it will be; for “the Judge’s mind [is] of that gloomy malignity which will never let him forego the opportunity of satiating it upon a victim.… And to whom is my appeal? From the judge in Burr’s case to himself and his associate justices in Marbury v. Madison. Not exactly, however. I observe old Cushing is dead. [Judge Cushing had died a fortnight before.] At length, then, we have a chance of getting a Republican majority in the Supreme Judiciary.” And he goes on to express his confidence in the “appointment of a decided Republican, with nothing equivocal about him.”

Who was this decided and unequivocal Republican to be? Jefferson was anxious about it, and wrote to Madison, suggesting Judge Tyler, of Virginia, as a candidate, and reminding the President of Marshall’s “rancorous hostility to his country.” Who was it, in fact, that was appointed? Who but Joseph Story!—a Republican, indeed, but one whom Jefferson, in this very year, was designating as a “pseudo-Republican,” and who soon became Marshall’s warmest admirer and most faithful supporter.