Beacon Lights of History, Volume 11: American Founders

by John Lord

While the supremacy of the Constitution was thus judicially asserted over the acts of the national legislature, by another series of decisions its proper supremacy over acts of the authorities of the various States was in like manner vindicated. Of this series we may take as an example Cohens v. Virginia, decided in 1828. In this case a writ of error was obtained from the Supreme Court of the United States to a court of the State of Virginia, in order to test the validity of a statute of that State which was supposed to be in conflict with a law of the United States. It was contended on the part of Virginia that the Supreme Court could exercise no supervision over the decisions of the State tribunals, and that the clause in the Judiciary Act of 1789 which purported to confer such jurisdiction was invalid. In commenting upon this argument, Chief Justice Marshall observed that if the Constitution had provided no tribunal for the final construction of itself, or of the laws or treaties of the nation, then the Constitution and the laws and treaties might receive as many constructions as there were States. He then proceeded to demonstrate that such a power of supervision existed, maintaining that the general government, though limited as to its objects, was supreme with respect to those objects, and that such a right of supervision was essential to the maintenance of that supremacy.

In 1819, he delivered in the case of McCulloch v. Maryland what is generally regarded as his greatest and most carefully reasoned opinion. The particular questions involved were those (1) of the power of the United States to incorporate a bank, and (2) of the freedom of a bank so incorporated from State taxation or control. The United States bank, which Congress had rechartered in 1816, had established a branch in Maryland. Soon afterwards the Legislature passed an Act requiring all banks situated in the State to issue their notes on stamped paper, the object being to strike at the branch bank by indirectly taxing it. The case was 'argued before the Supreme Court by the most eminent lawyers of the day, Pinkney, Webster, and Wirt appearing for the bank, and Luther Martin, Joseph Hopkinson, and Walter Jones for the State of Maryland. The unanimous opinion of the court was delivered by Marshall. It asserted not only the power of the Federal government to incorporate a bank, but also the freedom of such a bank from the taxation, control, or obstruction of any State. While no express power of incorporation was given by the Constitution, yet it was found to be a power necessarily implied, since it was essential to the accomplishment of the objects of the Union. This principle Marshall laid down in these memorable words: "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional."

Of no less importance than the opinions heretofore mentioned are those that deal with the power of the general government to regulate commerce and to preserve it from hindrance on the part of the States. Of these the chief example is that which was delivered in the case of Gibbons v. Ogden, in 1824. By the Legislature of New York an exclusive right had been granted to Chancellor Livingston and Robert Fulton for a term of years to navigate the waters of the State with steam. The validity of this statute had been maintained by the judges in New York, including Chancellor Kent, and an injunction had been issued restraining other persons from running steamboats between Elizabethtown, New Jersey, and the city of New York, although they were enrolled and licensed as coasting vessels under the laws of the United States. The Supreme Court, speaking through Marshall, held the New York statute to be unconstitutional. By the Constitution of the United States, Congress is invested with power "to regulate commerce with foreign nations and among the several States." The term "commerce" Marshall declared to embrace all the various forms of intercourse, including navigation, and he affirmed that "wherever commerce among the States goes, the judicial power of the United States goes to protect it from invasion by State legislatures."

Mr. Justice Bradley declared that it might truly be said that "the Constitution received its permanent and final form from judgments rendered by the Supreme Court during the period in which Marshall was at its head;" and that, "with a few modifications, superinduced by the somewhat differing views on two or three points of his great successor, and aside from the new questions growing out of the Civil War and the recent constitutional amendments, the decisions made since Marshall's time have been little more than the applications of principles established by him and his venerated associates." To the rule that Marshall's great constitutional opinions continue to be received as authority, there are, however, a few exceptions, the chief of which is that delivered in the Dartmouth College Case, the particular point of which--that acts of incorporation constitute contracts which the State legislatures can neither alter nor revoke--has been greatly limited by later decisions, while its effect has been generally obviated by express reservations of the right of amendment and repeal. With rare exceptions, however, his constitutional opinions not only remain unshaken, but continue to form the very warp and woof of the law, and "can scarcely perish but with the memory of the Constitution itself." Nor should we, in estimating his achievements, lose sight of the almost uncontested ascendency which he exercised, in matters of constitutional law, over the members of the tribunal in which he presided, in spite of what might have been supposed to be their predilections. When constitutional questions trench, as they often do, on the domain of statesmanship, it is natural, especially where precedents are lacking, that judges should divide upon them in accordance with the views of government maintained by the political parties with which they previously acted; and after 1811, a majority of Marshall's associates on the bench held their appointment from administrations of the party opposed to that to which he had belonged. This circumstance, however, does not appear to have disturbed the consistent and harmonious development of the system to which he was devoted; and it was in the second half of his term of service that many of the most important cases--such as McCulloch v. Maryland, Cohens v. Virginia, and Gibbons v. Ogden, in which he asserted the powers of national government--were decided.

Nor is it alone upon his opinions on questions of constitutional law that Marshall's fame as a judge rests. The decisions of the Supreme Court on constitutional questions naturally attract greater popular interest than its judgments in other matters; but we have seen that its jurisdiction embraces a wide range of subjects. Nor is it desirable that its sphere of action should be circumscribed in the direction of confining it to questions that have a semi-political aspect. Indeed, it may be believed that the safety and permanence of the court would be best assured by extending rather than by contracting its jurisdiction in ordinary commercial subjects. In dealing with such subjects, however, Marshall did not achieve that pre-eminence which he acquired in the domain of constitutional law, a fact doubtless to be accounted for by the defects of his early legal education, since no originality of mind can supply the place of learning in matters which depend upon reasoning more or less technical and artificial. But in the domain of international law, in which there was greater opportunity for elementary reasoning, he exhibited the same traits of mind, the same breadth and originality of thought, the same power in discovering, and the same certainty in applying, fundamental principles that distinguished him in the realm of constitutional discussions; and it was his lot on more than one occasion to blaze the way in the establishment of rules of international conduct. During the period of his judicial service, decisions were rendered by the Supreme Court in 195 cases involving questions of international law, or in some way affecting international relations. In eighty of these cases the opinion of the court was delivered by Marshall; in thirty-seven by Mr. Justice Story; in twenty-eight by Mr. Justice Johnson; in nineteen, by Mr. Justice Washington; in fourteen by Mr. Justice Livingston; in five, by Mr. Justice Thompson; and in one each by Justices Baldwin, Gushing, and Duvall. In eight the decision was rendered "by the court." In five cases Marshall dissented. As an evidence of the respect paid to his opinions by publicists, the fact may be pointed out that Wheaton, in the first edition of his "Elements of International Law," makes 150 judicial citations, of which 105 are English and 45 American, the latter being mostly Marshall's. In the last edition he makes 214 similar citations, of which 135 are English and 79 American, the latter being largely Marshall's; and it is proper to add that one of the distinctive marks of his last edition is the extensive incorporation into his text of the words of Marshall's opinions. Out of 190 cases cited by Hall, a recent English publicist of pre-eminent merit, 54 are American, and in more than three-fifths of these the opinions are Marshall's.

One of the most far-reaching of all Marshall's opinions on questions of international law was that which he delivered in the case of the schooner "Exchange," decided by the Supreme Court in 1812. In preparing this opinion he was, as he declared, compelled to explore "an unbeaten path, with few, if any, aids from precedents or written laws;" for the status of a foreign man-of-war in a friendly port had not then been defined, even by the publicists. The "Exchange" was an American vessel, which had been captured and confiscated by the French under the Rambouillet decree,--a decree which both the Executive and the Congress of the United States had declared to constitute a violation of the law of nations. She was afterwards converted by the French government into a man-of-war, and commissioned under the name of the "Balaou." In this character she entered a port of the United States, where she was libelled by the original American owners for restitution. Seasoning by analogy, Marshall, in a remarkably luminous opinion, held that the vessel, as a French man-of-war, was not subject to the jurisdiction of the ordinary tribunals; and his opinion forms the basis of the law on the subject at the present day.

By this decision, the rightfulness or the wrongfulness of the capture and condemnation of the "Exchange" was left to be determined by the two governments as a political question. In this respect Marshall maintained, as between the different departments of government, when dealing with questions of foreign affairs, a distinction which he afterwards sedulously preserved, confining the jurisdiction of the courts to judicial questions. Thus he laid it down in the clearest terms that the recognition of national independence, or of belligerency, being in its nature a political act, belongs to the political branch of the government, and that in such matters the courts follow the political branch. Referring, on another occasion, to a similar question, he said: "In a controversy between two nations concerning national boundary, it is scarcely possible that the courts of either side should refuse to abide by the measures adopted by its own government.... If those departments which are entrusted with the foreign intercourse of the nation, which assert and maintain its interests against foreign powers have unequivocally asserted its rights of dominion over a country of which it is in possession, and which it claims under a treaty; if the legislature has acted on the construction thus asserted, it is not in its own courts that this construction is to be denied." (Foster v. Neilson).

In the case of the American Insurance Company v. Canter, he asserted the right of the government to enlarge the national domain, saying: "The Constitution confers absolutely on the government of the Union the power of making war and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty." But he held the rights of private property in such case to be inviolate (U.S. v. Percheman). The most luminous exposition of discovery as a source of title, and of the nature of Indian titles, is to be found in one of his opinions (Johnson v. McIntosh).

A fundamental doctrine of international law is that of the equality of nations. If a clear and unequivocal expression of it be desired, it may be found in the opinion of Marshall in the case of "The Antelope." "No nation," he declared, "can make a law of nations. No principle is more universally acknowledged than the perfect equality of nations. Russia and Geneva have equal rights." And when the representatives of the United States fifty years later sought to establish at Geneva the liability of Great Britain for the depredations of the "Alabama" and other Confederate cruisers fitted out in British ports in violation of neutrality, one of the strongest authorities on which they relied was his opinion in the case of the "Gran Para."

In the decision of prize cases, Marshall, unlike some of his associates, was disposed to moderate the rigor of the English doctrines, as laid down by Sir William Scott. "I respect Sir William Scott," he declared on a certain occasion, "as I do every truly great man; and I respect his decisions; nor should I depart from them on light grounds; but it is impossible to consider them attentively without perceiving that his mind leans strongly in favor of the captors." This liberal disposition, blended with independence of judgment, led Marshall to dissent from the decision of the court in two well-known cases. In one of these, which is cited by Phillimore as the "great case" of "The Venus," it was held that the property of an American citizen domiciled in a foreign country became, on the breaking out of war with that country, immediately confiscable as enemy's property, even though it was shipped before he had knowledge of the war. Marshall dissented, maintained that a mere commercial domicile ought not to be presumed to continue longer than the state of peace, and that the fate of the property should depend upon the conduct of the owner after the outbreak of the war, in continuing to reside and trade in the enemy's country or in taking prompt measures to return to his own. In the other case--that of the "Commercen"--he sought to disconnect the war in which Great Britain was engaged on the continent of Europe from that which she was carrying on with the United States, and to affirm the right of her Swedish ally to transport supplies to the British army in the Peninsula without infringing the duties of neutrality towards the United States. As to his opinion in the case of "The Venus," Chancellor Kent declared that there was "no doubt of its superior solidity and justice;" and it must be admitted that his opinion in the case of the "Commercen," rested on strong logical grounds, since the United States and the allies of Great Britain in the war on the Continent never considered themselves as enemies.