The Life of John Marshall Volume III Part 14

Should this conclusion go unchallenged? If so, it would have the sanction of acquiescence and soon acquire the strength of custom. What then would become the condition of the country? Congress might pa.s.s a law which some States would oppose and which they would refuse to obey, but which other States would favor and of which they would demand the enforcement. What would this entail? At the very least it would provoke a relapse into the chaos of the Confederation and more probably civil war. Or a President might take it upon himself to p.r.o.nounce null and void a law of Congress, as Jefferson had already done in the matter of the Sedition Law,[320] and if House and Senate were of a hostile political party, Congress might insist upon the observance of its legislation; but such a course would seriously damage the whole machinery of the National Government.

The fundamental question as to what power could definitely pa.s.s upon the validity of legislation must be answered without delay. Some of Marshall's a.s.sociates on the Supreme Bench were becoming old and feeble, and death, or resignation enforced by illness, was likely at any moment to break the Nationalist solidarity of the Supreme Court;[321] and the appointing power had fallen into the hands of the man who held the subjugation of the National Judiciary as one of his chief purposes.

Only second in importance to these reasons for Marshall's determination to meet the issue was the absolute necessity of a.s.serting that there was one department of the Government that could not be influenced by temporary public opinion. The value to a democracy of a steadying force was not then so well understood as it is at present, but the Chief Justice fully appreciated it and determined at all hazards to make the National Judiciary the stabilizing power that it has since become. It should be said, however, that Marshall no longer "idolized democracy,"

as he declared he did when as a young man he addressed the Virginia Convention of 1788.[322] On the contrary, he had come to distrust popular rule as much as did most Federalists.

A case was then pending before the Supreme Court the decision of which might, by boldness and ingenuity, be made to serve as the occasion for that tribunal's a.s.sertion of its right and power to invalidate acts of Congress and also for the laying-down of rules for the guidance of all departments of the Government. This was the case of Marbury _vs._ Madison.

Just before his term expired,[323] President Adams had appointed forty-two persons to be justices of the peace for the Counties of Was.h.i.+ngton and Alexandria in the District of Columbia.[324] The Federalist Senate had confirmed these nominations,[325] and the commissions had been signed and sealed, but had not been delivered. When Jefferson was inaugurated he directed Madison, as Secretary of State, to issue commissions to twenty-five of the persons appointed by Adams, but to withhold the commissions from the other seventeen.[326]

Among the latter were William Marbury, Dennis Ramsay, Robert Townsend Hooe, and William Harper. These four men applied to the Supreme Court for a writ of mandamus compelling Madison to deliver their commissions.

The other thirteen did not join in the suit, apparently considering the office of justice of the peace too insignificant to be worth the expense of litigation. Indeed, these offices were deemed so trifling that one of Adams's appointees to whom Madison delivered a commission resigned, and five others refused to qualify.[327]

When the application of Marbury and his a.s.sociates came before Marshall he a.s.sumed jurisdiction, and in December, 1801, issued the usual rule to Madison ordering him to show cause at the next term of the Supreme Court why the writ of mandamus should not be awarded against him. Soon afterward, as we have seen, Congress abolished the June session of the Supreme Court;[328] thus, when the court again convened in February, 1803, the case of Marbury _vs._ Madison was still pending.

Marshall resolved to make use of this unimportant litigation to a.s.sert, at the critical hour when such a p.r.o.nouncement was essential, the power of the Supreme Court to declare invalid acts of Congress that violate the Const.i.tution.

Considering the fact that Marshall was an experienced politician, was intimately familiar with the political methods of Jefferson and the Republican leaders, and was advised of their purposes, he could not have failed to realize the probable consequences to himself of the bold course he now determined to take. As the crawling months of 1802 wore on, no signs appeared that the Republican programme for overthrowing the independence of the Judiciary would be relinquished or modified. On the contrary, the coming of the new year (1803) found the second phase of the Republican a.s.sault determined upon.

At the beginning of the session of 1803 the House impeached John Pickering, Judge of the United States District Court for the District of New Hamps.h.i.+re. In Pennsylvania, the recently elected Republican House had impeached Judge Alexander Addison, and his conviction by a partisan vote was a.s.sured. Already the Republican determination to remove Samuel Chase from the Supreme Bench was frankly avowed.[329]

Moreover, the Republicans openly threatened to oust Marshall and his Federalist a.s.sociates in case the court decided Marbury _vs._ Madison as the Republicans expected it would. They did not antic.i.p.ate that Marshall would declare unconst.i.tutional that section of the old Federalist Judiciary Act of 1789 under which the suit had been brought. Indeed, n.o.body imagined that the court would do that.

Everybody apparently, except Marshall and the a.s.sociate Justices, thought that the case would be decided in Marbury's favor and that Madison would be ordered to deliver the withheld commissions. It was upon this supposition that the Republican threats of impeachment were made. The Republicans considered Marbury's suit as a Federalist partisan maneuver and believed that the court's decision and Marshall's opinion would be inspired by motives of Federalist partisans.h.i.+p.[330]

There was a particular and powerful reason for Marshall to fear impeachment and removal from office; for, should he be deposed, it was certain that Jefferson would appoint Spencer Roane of Virginia to be Chief Justice of the United States. It was well known that Jefferson had intended to appoint Roane upon the death of Chief Justice Ellsworth.[331] But Ellsworth had resigned in time to permit Adams to appoint Marshall as his successor and thus thwart Jefferson's purpose.

If now Marshall were removed, Roane would be given his place.

Should he be succeeded by Roane, Marshall knew that the great principles of Nationalism, to the carrying-out of which his life was devoted, would never be a.s.serted by the National Judiciary. On the contrary, the Supreme Court would become an engine for the destruction of every theory of government which Marshall held dear; for a bolder, abler, and more persistent antagonist of those principles than Spencer Roane did not exist.[332] Had he become Chief Justice those cases in which Marshall delivered opinions that vitalized the Const.i.tution would have been decided in direct opposition to Marshall's views.[333]

But despite the peril, Marshall resolved to act. Better to meet the issue now, come what might, than to evade it. If he succeeded, orderly government would be a.s.sured, the National Judiciary lifted to its high and true place, and one element of National disintegration suppressed, perhaps destroyed. If he failed, the country would be in no worse case than that to which it was rapidly tending.

No words in the Const.i.tution gave the Judiciary the power to annul legislation. The subject had been discussed in the Convention, but the brief and scattering debate had arisen upon the proposition to make the President and Justices of the Supreme Court members of a Council of Revision with power to negative acts of Congress. No direct resolution was ever offered to the effect that the Judiciary should be given power to declare acts of Congress unconst.i.tutional. In the discussion of the proposed Council of Revision there were sharp differences of opinion on the collateral question of the right and wisdom of judicial control of legislative acts.[334] But, in the end, nothing was done and the whole subject was dropped.

Such was the record of the Const.i.tutional Convention when, by his opinion in Marbury _vs._ Madison, Marshall made the principle of judicial supremacy over legislation as much a part of our fundamental law as if the Const.i.tution contained these specific words: the Supreme Court shall have the power to declare invalid any act of Congress which, in the opinion of the court, is unconst.i.tutional.

In establis.h.i.+ng this principle Marshall was to contribute nothing new to the thought upon the subject. All the arguments on both sides of the question had been made over and over again since the Kentucky and Virginia Resolutions had startled the land, and had been freshly stated in the Judiciary debate in the preceding Congress. Members of the Federalist majority in most of the State Legislatures had expressed, in highly colored partisan rhetoric, every sound reason for the theory that the National Judiciary should be the ultimate interpreter of the Const.i.tution. Both Federalist and Republican newspapers had printed scores of essays for and against that doctrine.

In the Virginia Convention of 1788 Marshall had announced as a fundamental principle that if Congress should pa.s.s an unconst.i.tutional law the courts would declare it void,[335] and in his reply to the address of the majority of the Virginia Legislature[336] he had elaborately, though with much caution and some mistiness, set forth his views.[337] Chief Justice Jay and his a.s.sociates had complained that the Judiciary Act of 1789 was unconst.i.tutional, but they had not had the courage to announce that opinion from the Bench.[338] Justices Iredell and Paterson, sitting as circuit judges, had claimed for the National Judiciary the exclusive right to determine the const.i.tutionality of laws. Chief Justice Jay in charging a grand jury, and a.s.sociate Justice Wilson in a carefully prepared law lecture, had announced the same conclusion.

Various State judges of the Federalist faith, among them Dana of Ma.s.sachusetts and Addison of Pennsylvania, had spoken to like effect. At the trial of Callender[339] Marshall had heard Chase deliver the opinion that the National Judiciary had the exclusive power to declare acts of Congress unconst.i.tutional.[340] Jefferson himself had written Meusnier, the year before the National Const.i.tution was framed, that the Virginia Legislature had pa.s.sed unconst.i.tutional laws,[341] adding: "I have not heard that in the other states they have ever infringed their const.i.tution; ... _as the judges would consider any law as void_ which was contrary to the const.i.tution."[342]

Just as Jefferson, in writing the Declaration of Independence, put on paper not a single new or original idea, but merely set down in clear and compact form what had been said many times before,[343] so Marshall, in his opinion in Marbury _vs._ Madison, did nothing more than restate that which had previously been declared by hundreds of men. Thomas Jefferson and John Marshall as private citizens in Charlottesville and Richmond might have written Declarations and Opinions all their lives, and to-day none but the curious student would know that such men had ever lived. It was the authoritative position which these two great Americans happened to occupy and the compelling emergency for the announcement of the principles they expressed, as well as the soundness of those principles, that have given immortality to their enunciations.

Learned men have made exhaustive research for legal decisions by which Marshall's footsteps may have been guided, or which, at least, would justify his conclusion in Marbury _vs._ Madison.[344] The cases thus discovered are curious and interesting, but it is probable that Marshall had not heard of many of them. At any rate, he does not cite one of them in the course of this opinion, although no case ever was decided in which a judge needed so much the support of judicial precedents. Neither did he know anything whatever of what was said on the subject in the Const.i.tutional Convention, unless by hearsay, for its sessions were secret[345] and the Journals were not made public until 1819--thirty years after the Government was established, and sixteen years after Marbury _vs._ Madison was decided.[346] Nor was Marshall informed of the discussions of the subject in the State Conventions that ratified the Const.i.tution, except of those that took place in the Virginia Convention.[347]

On the other hand, he surely had read the Judiciary debate in Congress, for he was in the Capital when that controversy took place and the speeches were fully reported in the Was.h.i.+ngton press. Marshall probably was present in the Senate and the House when the most notable arguments were made.[348] More important, however, than written decisions or printed debates in influencing Marshall's mind was _The Federalist_, which we know he read carefully. In number seventy-eight of that work, Hamilton stated the principle of judicial supremacy which Marshall whole-heartedly adopted in Marbury _vs._ Madison.

"The interpretation of the laws," wrote Hamilton, "is the proper and peculiar province of the courts. A const.i.tution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, ... the Const.i.tution ought to be preferred to the statute, the intention of the people to the intention of their agents."[349]

In this pa.s.sage Hamilton merely stated the general understanding of nearly all the important framers of the Const.i.tution. Beyond question, Marshall considered that principle to have been woven into the very fiber of the Nation's fundamental law.

In executing his carefully determined purpose to have the Supreme Court formally announce the exclusive power of that tribunal as the authority of last resort to interpret the Const.i.tution and determine the validity of laws by the test of that instrument, Marshall faced two practical and baffling difficulties, in addition to those larger and more forbidding ones which we have already considered.

The first of these was the condition of the Supreme Court itself and the low place it held in the public esteem; from the beginning it had not, as a body, impressed the public mind with its wisdom, dignity, or force.[350] The second obstacle was technical and immediate. Just how should Marshall declare the Supreme Court to be the ultimate arbiter of conflicts between statutes and the Const.i.tution? What occasion could he find to justify, and seemingly to require, the p.r.o.nouncement as the judgment of the Supreme Court of that opinion now imperatively demanded, and which he had resolved at all hazards to deliver?

When the Republicans repealed the Federalist Judiciary Act of 1801, Marshall had actually proposed to his a.s.sociates upon the Supreme Bench that they refuse to sit as circuit judges, and "risk the consequences."

By the Const.i.tution, he said, they were Judges of the Supreme Court only; their commissions proved that they were appointed solely to those offices; the section requiring them to sit in inferior courts was unconst.i.tutional. The other members of the Supreme Court, however, had not the courage to adopt the heroic course Marshall recommended. They agreed that his views were sound, but insisted that, because the Ellsworth Judiciary Act had been acquiesced in since the adoption of the Const.i.tution, the validity of that act must now be considered as established.[351] So Marshall reluctantly abandoned his bold plan, and in the autumn of 1802 held court at Richmond as circuit judge.

To the end of his life, however, he held firmly to the opinion that in so far as the Republican Judiciary Repeal Act of 1802 deprived National judges of their offices and salaries, that legislation was unconst.i.tutional.[352]

Had the circuit judges, whose offices had just been taken from them, resisted in the courts, Marshall might, and probably would, have seized upon the issue thus presented to declare invalid the act by which the Republicans had overturned the new Federalist Judiciary system. Just this, as we have seen, the Republicans had expected him to do, and therefore had so changed the sessions of the Supreme Court that it could not render any decision for more than a year after the new Federalist courts were abolished.

Certain of the deposed National judges had, indeed, taken steps to bring the "revolutionary" Republican measure before the Supreme Court,[353]

but their energies flagged, their hearts failed, and their only action was a futile and foolish protest to the very Congress that had wrested their judicial seats from under them.[354] Marshall was thus deprived of that opportunity at the only time he could have availed himself of it.

A year afterward, when Marbury _vs._ Madison came up for decision, the entire National Judiciary had submitted to the Republican repeal and was holding court under the Act of 1789.[355] This case, then, alone remained as the only possible occasion for announcing, at that critical time, the supervisory power of the Judiciary over legislation.

Marshall was Secretary of State when President Adams tardily appointed, and the Federalist Senate confirmed, the forty-two justices of the peace for the District of Columbia,[356] and it was Marshall who had failed to deliver the commissions to the appointees. Instead, he had, with his customary negligence of details, left them on his desk. Scarcely had he arrived at Richmond, after Jefferson's inauguration, when his brother, James M. Marshall, wrote him of the plight in which the newly appointed justices of the peace found themselves as the result of Marshall's oversight.

The Chief Justice replied: "I learn with infinite chagrin the 'development of principle' mentioned in yours of the 12th,"--sarcastically referring to the Administration's conduct toward the Judiciary,--"& I cannot help regreting it the more as I fear some blame may be imputed to me....

"I did not send out the commissions because I apprehended such as were for a fixed time to be completed when signed & sealed & such as depended on the will of the President might at any time be revoked. To withhold the commission of the Marshal is equal to displacing him which the President, I presume, has the power to do, but to withhold the commissions of the Justices is an act of which I entertaind no suspicion. I should however have sent out the commissions which had been signed & sealed but for the extreme hurry of the time & the absence of Mr. Wagner [Clerk of the State Department] who had been called on by the President to act as his private secretary."[357]

Marshall, it thus appears, was thoroughly familiar with the matter when the application of Marbury and his three a.s.sociates came before the Supreme Court, and took in it a keen and personal interest. By the time[358] the case came on for final disposition the term had almost half expired for which Marbury and his a.s.sociates had been appointed.

The other justices of the peace to whom Madison had delivered commissions were then transacting all the business that required the attention of such officials. It was certain, moreover, that the Administration would not recognize Marbury and his a.s.sociates, no matter what Marshall might decide. In fact, these appointees must have lost all interest in the contest for offices of such slight dignity and such insignificant emoluments.

So far, then, as practical results were concerned, the case of Marbury _vs._ Madison had now come to the point where it was of no consequence whatever to any one. It presented only theoretical questions, and, on the face of the record, even these were as simple as they were unimportant. This controversy, in fact, had degenerated into little more than "a moot case," as Jefferson termed it twenty years later.[359]

At the hearing it was proved that the commissions had been signed and sealed. One witness was Marshall's brother, James M. Marshall.

Jefferson's Attorney-General, Levi Lincoln, was excused from testifying as to what finally became of them. Madison refused to show cause and denied, by utterly ignoring, the jurisdiction of the Supreme Court to direct or control him in his administration of the office of Secretary of State.[360]

Charles Lee, former Attorney-General, counsel for the applicants, argued the questions which he and everybody else thought were involved. He maintained that a mandamus was the proper remedy, made so not only by the nature of the relation of the Supreme Court to inferior courts and ministerial officers, but by positive enactment of Congress in the Judiciary Law of 1789. Lee pointed out that the Supreme Court had acted on this authority in two previous cases.

Apparently the court could do one or the other of two things: it could disavow its power over any branch of the Executive Department and dismiss the application, or it could a.s.sert this power in cases like the one before it and command Madison to deliver the withheld commissions.

It was the latter course that the Republicans expected Marshall to take.

If the Chief Justice should do this, Madison undoubtedly would ignore the writ and decline to obey the court's mandate. Thus the Executive and Judicial Departments would have been brought into direct conflict, with every practical advantage in the hands of the Administration. The court had no physical means to compel the execution of its order. Jefferson would have denounced the illegality of such a decision and laughed at the court's predicament. In short, had the writ to Madison been issued, the court would have been powerless to enforce obedience to its own mandate.

If, on the contrary, the court dismissed the case, the Republican doctrines that the National courts could not direct executives to obey the laws, and that the Judiciary could not invalidate acts of Congress, would by acquiescence have been admitted.

No matter which horn of the dilemma Marshall selected, it was hard to see how his views could escape impalement. He chose neither. Instead of allowing his cherished purpose of establis.h.i.+ng the principle of supervisory power of the Judiciary over legislation to be thus wounded and perhaps fatally injured, he made the decision of this insignificant case--about which the applicants themselves no longer cared--the occasion for a.s.serting that principle. And he did a.s.sert that principle--a.s.serted it so impressively that for more than a century his conclusion has easily withstood repeated a.s.saults upon it, which still continue.

Marshall accomplished his purpose by convincing the a.s.sociate Justices of the unconst.i.tutionality of that section of the Ellsworth Judiciary Act of 1789[361] which expressly conferred upon the Supreme Court the power to issue writs of mandamus and prohibition, and in persuading them to allow him to announce that conclusion as the opinion of the court.

When we consider that, while all the Justices agreed with Marshall that the provision of the Ellsworth Judiciary Law requiring them to sit as circuit judges was unconst.i.tutional, and yet refused to act upon that belief as Marshall wanted them to act, we can realize the measure of his triumph in inducing the same men to hold unconst.i.tutional another provision of the same act--a provision, too, even less open to objection than the one they had sustained.

The theory of the Chief Justice that Section 13 of the old Judiciary Law was unconst.i.tutional was absolutely new, and it was as daring as it was novel. It was the only original idea that Marshall contributed to the entire controversy. n.o.body ever had questioned the validity of that section of the statute which Marshall now challenged. Ellsworth, who preceded Marshall as Chief Justice, had drawn the act when he was Senator in the First Congress;[362] he was one of the greatest lawyers of his time and an influential member of the Const.i.tutional Convention.

One of Marshall's a.s.sociates on the Supreme Bench at that very moment, William Paterson, had also been, with Ellsworth, a member of the Senate Committee that reported the Judiciary Act of 1789, and he, too, had been a member of the Const.i.tutional Convention. Senators Gouverneur Morris of New York, William S. Johnson of Connecticut, Robert Morris of Pennsylvania, William Few of Georgia, George Read and Richard Ba.s.sett of Delaware, and Caleb Strong of Ma.s.sachusetts supported the Ellsworth Law when the Senate pa.s.sed it; and in the House James Madison and George Wythe of Virginia, Abraham Baldwin of Georgia, and Roger Sherman of Connecticut heartily favored and voted for the act. Most of these men were thorough lawyers, and every one of them had also helped to draft the National Const.i.tution. Here were twelve men, many of them highly learned in the law, makers of the Const.i.tution, draftsmen or advocates and supporters of the Ellsworth Judiciary Act of 1789, not one of whom had ever dreamed that an important section of that law was unconst.i.tutional.[363]