Union and Democracy Part 16

The first open resistance of a State to federal authority, as a.s.serted by the Supreme Court, occurred in 1809, when the legislature of Pennsylvania interposed its authority to prevent the payment of prize money which had been awarded by a federal district court to Gideon Olmstead and others for their capture of the sloop Active during the Revolution. All efforts to secure a peaceful settlement of this controversy having failed, the Attorney-General, in behalf of Olmstead, applied to the Supreme Court for a writ of _mandamus_, directing Judge Peters of the district court to enforce his judgment. In granting the writ, Chief Justice Marshall pointed out the gravity of the issue. "If the legislatures of the several States," said he, "may at will annul the judgment of the courts of the United States, and destroy the rights acquired under those judgments, the Const.i.tution becomes a solemn mockery, and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals." Such a conclusion he emphatically repudiated. Reviewing the history of the case with all its details, he reached the uncompromising conclusion that "the State of Pennsylvania can possess no const.i.tutional right to resist the legal process which may be directed in this cause.... A peremptory _mandamus_ must be awarded."

Judge Peters issued the writ, but all efforts of the marshal to serve the writ were thwarted by the state militia. The marshal then summoned a _posse comitatus_ of two thousand men. Bloodshed seemed imminent; but after an ineffectual appeal to the President, the Pennsylvania authorities gave way and paid over the money. Subsequently the officer commanding the militia and others were indicted, tried, convicted, and sentenced to fine and imprisonment, for resisting the writ of a federal court; but they were pardoned by the President because "they had acted under a mistaken sense of duty."

In this conflict of authority the National Government won at every point. Even the resolution which the legislature adopted in the heat of the controversy, calling for an amendment to the Const.i.tution which should establish "an impartial tribunal to determine disputes between the General and State Governments," met with no approval from other States. Virginia, soon to be of a very different mind, responded that "a tribunal is already provided ... to wit: the Supreme Court, more eminently qualified from their habits and duties, from the mode of their selection, and from the tenure of their offices, to decide the disputes aforesaid in an enlightened and impartial manner, than any other tribunal which could be erected."

In two notable cases, the Supreme Court affirmed the const.i.tutionality of the Judiciary Act of 1789 and a.s.serted its authority to review and reverse decisions of the state courts when those decisions were adverse to alleged federal rights. The opinion in the first case, that of _Martin_ v. _Hunter's Lessee_, in 1816, was written by Joseph Story, of Ma.s.sachusetts, who had been appointed to a vacancy on the bench by President Madison. Story was reputed to be a Republican, but he disappointed all expectations by becoming a stanch supporter of nationalist doctrines and only second to Marshall in his influence upon the development of American const.i.tutional law.

The case of _Martin_ v. _Hunter's Lessee_ grew out of the old Fairfax claims which Marshall had represented as counsel before his appointment to the bench. In 1815, the Supreme Court had reversed the decision of the Court of Appeals of Virginia, and ordered the state court to execute the judgment rendered in the lower state court. The judges of the Court of Appeals, headed by Judge Spencer Roane, a bitter opponent of Marshall, formally announced that they would not obey the _mandamus_, holding that the twenty-fifth section of the Judiciary Act of 1789--that extending the appellate jurisdiction of the Supreme Court over state tribunals--was unconst.i.tutional. The state-rights elements in Virginia quickly rallied to the support of the judges, and the Supreme Court found itself face to face with an incensed public opinion in the Old Dominion. In no wise daunted by this opposition, the Supreme Court reviewed its position in 1816 and again ordered the execution of its judgment.

Five years later, Chief Justice Marshall rendered a similar decision in the case of _Cohens_ v. _Virginia_. The counsel for the Commonwealth had argued that the appellate jurisdiction conferred by the Const.i.tution on the Supreme Court was merely authority to revise the decisions of the inferior courts of the United States. "Congress," it was contended, "is not authorized to make the supreme court or any other court of a State an inferior court.... The inferior courts spoken of in the Const.i.tution are manifestly to be held by federal judges." "It is the case, not the court, that gives jurisdiction," replied Marshall. "The courts of the United States can, without question, revise the proceedings of the executive and legislative authorities of the States, and if they are found to be contrary to the Const.i.tution may declare them to be of no legal validity. Surely the exercise of the same right over judicial tribunals is not a higher or more dangerous act of sovereign power."

It was in the course of this decision that Marshall a.s.serted in unmistakable language the sovereignty of the National Government. "The people made the Const.i.tution and the people can unmake it.... But this supreme and irresistible power to make or to unmake resides only in the whole body of the people; not in any subdivision of them. The attempts of any of the parts to exercise it is usurpation, and ought to be repelled by those to whom the people have delegated the power of repelling it.... The framers of the Const.i.tution were indeed unable to make any provisions which should protect that instrument against a general combination of the States, or of the people for its destruction; and conscious of this inability, they have not made the attempt. But they were able to provide against the operation of measures adopted in any one State, whose tendency might be to arrest the execution of the laws; and this it was the part of wisdom to attempt. We think they have attempted it."

Between these notable Virginia cases was decided, in 1819, the case of _M'Culloch_ v. _Maryland_, in which the Chief Justice sustained the const.i.tutionality of the act establis.h.i.+ng the National Bank, and declared a state law imposing a tax on a branch of the Bank unconst.i.tutional and void. In the course of his opinion, which followed much the same line of reasoning that Alexander Hamilton had employed, Marshall stated in cla.s.sic phraseology the doctrine of liberal construction. Holding that the Const.i.tution was not a code of law, but a doc.u.ment marking out in large characters the powers of government, he sought, among the enumerated powers, not the lesser, but the great substantive, powers necessary to the purposes of the Union. These substantive powers, however, carry with them many incidental (Hamilton said _resulting_) powers, among which a choice may freely be made to achieve the desired and legitimate end. "Let the end be legitimate,"

said Marshall, "let it be within the scope of the Const.i.tution, 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 Const.i.tution, are const.i.tutional." In an earlier decision (_United States_ v. _Fisher_, 1804), indeed, Marshall had refused to concede the force of the argument that the Federal Government was clothed only with the powers indispensably necessary to exercise powers expressly granted to it. "Congress must possess the choice of means which are in fact conducive to the exercise of a power granted by the Const.i.tution."

The c.u.mulative effect of these decisions was to provoke a violent reaction in Virginia. Under the pen-name "Algernon Sidney," Judge Roane renewed his attacks upon the Chief Justice in violent and at times offensive language. "The judgment before us," he declared, referring to the case of _Cohens_ v. _Virginia_, "will not be less disastrous in its consequences, than any of these memorable judgments [of the time of Charles I]. It completely negatives the idea, that the American States have a real existence, or are to be considered, in any sense, as sovereign and independent States." It seemed to Jefferson that the powerful arguments of Roane completely "pulverized" every word which had been uttered by John Marshall. John Taylor of Caroline, however, was the philosophical exponent of this reactionary movement. In his _Construction Construed_ (1820), _Tyranny Unmasked_ (1822), and _New Views of the Const.i.tution_ (1823), he pointed out the manifest tendency of the decisions of the Supreme Court and suggested the "state veto" as the remedy against usurpation of power by the Supreme Court or by Congress. The legislature of Virginia indorsed an amendment to the Const.i.tution drafted by Judge Roane which would have limited the jurisdiction of the federal courts, where the rights of the States were concerned, and which would have forbidden appeals from the courts of a State to any court of the United States. Beyond such remonstrances and protests, however, public opinion in Virginia was not prepared to go at this time.

The judges of the Supreme Court could not remain indifferent to these a.s.saults. "If, indeed, the Judiciary is to be destroyed," wrote Story, "I should be glad to have the decisive blow now struck, while I am young, and can return to my profession and earn an honest livelihood."

But he added, "For the Judges of the Supreme Court there is but one course to pursue. That is, to do their duty firmly and honestly, according to their best judgments."

It was in this spirit that the court rendered judgment in the case of _Green_ v. _Biddle_ (1823), which gave deep offense to the people of Kentucky by setting aside as unconst.i.tutional the so-called "Occupying Claimant Laws." The remonstrance of the legislature was all the more bitter because the decision had been rendered by a bench of only four judges, one of whom dissented from the majority opinion. The resolutions of the legislature demanded a reorganization of the court in such wise that the concurrence of at least two thirds of the judges should be necessary in an opinion affecting the validity of state laws. And when Congress made no response, the lower House called upon the governor to express his opinion "whether it may be advisable to call forth the physical power of the State to resist the execution of the decisions of the court, or in what manner the mandates of said court should be met by disobedience." But Kentucky like Virginia kept well within the legal limits of pet.i.tion and remonstrance.

In Ohio, also, there was an ominous spirit of resistance to the force of precedent. Notwithstanding the decision of the court in the case of _M'Culloch_ v. _Maryland_, the general a.s.sembly of that State not only enacted a law to tax the local branch of the National Bank, but actually seized the amount of the tax. Suit was thereupon brought against the state auditor; and in spite of the vigorous remonstrance of the legislature, the Supreme Court again sustained the const.i.tutionality of the Bank and declared the state tax unconst.i.tutional. The State was ultimately obliged to make rest.i.tution of the funds of the Bank.

[Map: Ca.n.a.ls in the United States about 1825]

Meantime, the national judiciary had contributed to the expansion of the Const.i.tution in notable ways; sometimes by affirming the const.i.tutionality of powers exercised by the President or Congress, and at other times by narrowing the limits of state authority. In the case of the _American Insurance Company_ v. _Canter_, twenty-five years after the acquisition of Louisiana, Marshall affirmed the const.i.tutionality of the treaty which had so aroused Jefferson's misgivings. "The Const.i.tution," said the Chief Justice, "confers absolutely on the Government of the Union the powers of making war and of making treaties; consequently, that Government possesses the power of acquiring territory, either by conquest or by treaty."

In two instances, on the other hand, the Supreme Court gave an interpretation of the "obligation of contracts" clause of the Const.i.tution which seriously limited the powers of the States. In the case of _Fletcher_ v. _Peck_ (1810), the court declared unconst.i.tutional an act of the legislature of Georgia which attempted to revoke the notorious Yazoo land grants of 1795. A grant was held to be a contract within the meaning of the Const.i.tution; and the court found no adequate ground for exempting such contracts from the prohibition of the Const.i.tution.

Far-reaching in its implication, also, was the second instance, when the Supreme Court held unconst.i.tutional and void the acts of the New Hamps.h.i.+re legislature which amended the charter granted by the Crown to Dartmouth College in 1769. Arguing as counsel for the college, of which he was an honored graduate, Daniel Webster held that the charter of a private corporation was a contract which might not be impaired by an act of a state legislature. Chief Justice Marshall only restated and amplified Webster's argument, when he rendered the opinion of the court and declared that New Hamps.h.i.+re might not by law impair the charter of Dartmouth College. To the argument of the counsel for the Commonwealth, contending that the framers of the Const.i.tution never contemplated such a broad use of the word "contract," Marshall replied that it was not enough to say this particular use of the word was not in the mind of the Convention when the article was adopted. "It is necessary to go farther, and to say that, had this particular case been suggested, the language would have been so varied as to exclude it, or it would have been made a special exception."

The immense significance of this decision was not immediately apparent.

The peculiar immunity which it gave to private property could not be appreciated until the rise of corporations with concentrated capital.

Not even the Chief Justice foresaw that the guaranty of inviolability which he had thrown about a private educational corporation would be demanded with equal right by the great business corporations of the succeeding era.

[Map: Highways of the United States about 1825]

In the famous case of _Gibbons_ v. _Ogden_ (1824), the Supreme Court gave an interpretation of the commerce clause of the Const.i.tution which also had a profound effect upon subsequent history. In the course of its decision the court declared unconst.i.tutional a law of the State of New York which had granted an exclusive right to operate steamboats in the waters of New York. The regulation of commerce, the court held, had been given exclusively to Congress, and "commerce" as used in the Const.i.tution comprehended not merely traffic and intercourse but also navigation. The power to regulate was regarded as a unit. In regulating commerce with foreign nations, the power of Congress does not stop at the jurisdictional lines of the several States. "If a foreign voyage may commence or terminate at a port within a State, then the power of Congress may be exercised within a State." Similarly, the court reasoned that commerce "among the States" cannot stop at the external boundary of each State. "Commerce among the States must of necessity be commerce with the States." In short, while expressly disclaiming that Congress had the power to regulate the internal commerce of a State, the court a.s.serted the complete control of Congress over inter-state commerce so far as navigation was concerned. The deeper significance of this interpretation of the commerce clause appeared only when railroads began to span the continent and the jurisdictional lines of States were crossed and re-crossed by an ever-increasing volume of trade.

Twenty-five years had wrought a vast change in the position of the national judiciary in the American const.i.tutional system. "It is now seen on every hand," wrote Attorney-General Wirt, urging the appointment of Chancellor Kent to a vacancy on the Supreme Court bench, "that the functions to be performed by the Supreme Court of the United States are among the most difficult and perilous which are to be performed under the Const.i.tution. They demand the loftiest range of talents and learning and a soul of Roman purity and firmness. The questions which come before them frequently involve the fate of the Const.i.tution, the happiness of the whole Nation, and even its peace as it concerns other nations." In the light of the decisions reviewed, the nationalizing tendency of the federal judiciary is unmistakable. But a const.i.tutional reaction had set in; and even while John Marshall was setting forth the doctrine of national sovereignty in its most uncompromising form, John C. Calhoun in the quiet of his estate in South Carolina was elaborating a defense of state rights on premises which the great Chief Justice had combated for a quarter of a century.

BIBLIOGRAPHICAL NOTE

An adequate history of the Supreme Court has yet to be written. H.

L. Carson, _The History of the Supreme Court of the United States, with biographies of all the chief and a.s.sociate justices_ (2 vols., 1902-04), and H. Flanders, _The Lives and Times of the Chief-Justices of the Supreme Court_ (2 vols., 1855-58), are serviceable works. The best selection of cases on const.i.tutional law is that by J. B. Thayer, _Cases in Const.i.tutional Law_ (2 vols., 1894-95). Some of the more important decisions may be found abridged in Allen Johnson's _Readings in American Const.i.tutional History_ (1912). W. W. Willoughby, _The Supreme Court: its History and Influence in our Const.i.tutional System_ (1890), and _The American Const.i.tutional System_ (1904), are interesting volumes by an authority on const.i.tutional law. J. P. Kennedy, _Memoirs of the Life of William Wirt_ (2 vols., 1850); G. J. McRee, _Life and Correspondence of James Iredell_ (2 vols., 1857-58); W. W. Story, _Life and Letters of Joseph Story_ (2 vols., 1851); and G. T.

Curtis, _Life of Daniel Webster_ (2 vols., 1870), contribute to an understanding of the relation of the federal bench and bar.

Especially valuable is Charles Warren's _History of the American Bar, Colonial and Federal, to 1860_ (1911). The progress of American law is reviewed in _Two Centuries' Growth of American Law, 1701-1901_, by members of the faculty of the Yale Law School.