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It is an interesting fact that, prior to his appointment as Chief Justice, Marshall had appeared only once before the Supreme Court, and on that occasion he was unsuccessful. This appearance was in the case of Ware _v_. Hylton, which was a suit brought by a British creditor to compel the payment by a citizen of Virginia of a pre-Revolutionary debt, in conformity with the stipulations of the treaty of peace. During the Revolutionary War various States, among which was Virginia, passed acts of sequestration and confiscation, by which it was provided that, if the American debtor should pay into the State treasury the amount due to his British creditor, such payment should constitute an effectual plea in bar to a subsequent action for the recovery of the debt. When the representatives of the United States and Great Britain met in Paris to negotiate for peace, the question of the confiscated debts became a subject of controversy, especially in connection with that of the claims of the loyalists for the confiscation of their estates. Franklin and Jay, though they did not advocate the policy of confiscating debts, hesitated, chiefly on the ground of a want of authority in the existing national government to override the acts of the States. But when John Adams arrived on the scene, the situation soon changed. By one of those dramatic strokes of which he was a master, he ended the discussion by suddenly declaring, in the presence of the British plenipotentiaries, that, so far as he was concerned, he "had no notion of cheating anybody;" that the question of paying debts and the question of compensating the loyalists were two; and that, while he was opposed to compensating the loyalists, he would agree to a stipulation to secure the payment of debts. It was therefore provided, in the fourth article of the treaty, that creditors on either side should meet with no lawful impediment to the recovery in full sterling money of _bona fide_ debts contracted prior to the war. This stipulation is remarkable, not only as the embodiment of an enlightened policy, but also as perhaps the strongest assertion to be found in the acts of that time of the power and authority of the national government. Indeed, when the British creditors, after the establishment of peace, sought to proceed in the State courts, they found the treaty unavailing, since those tribunals held themselves still to be bound by the local statutes. In order to remove this difficulty, as well as to provide a rule for the future, there was inserted in the Constitution of the United States the clause expressly declaring that treaties then made, or which should be made, under the authority of the United States, should be the supreme law of the land, binding on the judges in every State, anything in the Constitution or laws of any State to the contrary notwithstanding.

On the strength of this provision, the question of the debts was raised again, and was finally brought before the Supreme Court. Marshall appeared for the State of Virginia, to oppose the collection of the debt. He based his contention on two grounds: first, that by the law of nations the confiscation of private debts was justifiable; second, that, as the debt had by the law of Virginia been extinguished by its payment into the State treasury, and had thus ceased to be due, the stipulation of the treaty was inapplicable, since there could be no creditor without a debtor. It is not strange that this argument was unsuccessful. While it doubtless was the best that the cause admitted of, it may perhaps serve a useful purpose as an illustration of the right of the suitor to have his case, no matter how weak it may be, fully and fairly presented for adjudication. On the question of the right of confiscation the judges differed, one holding that such a right existed, while another denied it, two doubted, and the fifth was silent. But as to the operation of the treaty, all but one agreed that it restored to the original creditor his right to sue, without regard to the original validity or invalidity of the Virginia statute.

When Marshall took his seat upon the bench, the Supreme Court, since its organization in 1790, had rendered only six decisions involving constitutional questions. Of his three predecessors, Jay, Rutledge, and Ellsworth, the second, Rutledge, after sitting one term under a recess appointment, retired in consequence of his rejection by the Senate; and neither Jay nor Ellsworth, though both were men of high capacity, had found in their judicial station, the full importance of which was unforeseen, an opportunity for the full display of their powers, either of mind or of office. The coming of Marshall to the seat of justice marks the beginning of an era which is not yet ended, and which must endure so long as our system of government retains the essential features with which it was originally endowed. With him really began the process, peculiar to our American system, of the development of constitutional law by means of judicial decisions, based upon the provisions of a fundamental written instrument and designed for its exposition and enforcement. By the masterful exercise of this momentous jurisdiction, he profoundly affected the course of the national life and won in the knowledge and affections of the American people a larger and higher place than ever has been filled by any other judicial magistrate.

From 1801 to 1835, in the thirty-four years during which he presided in the Supreme Court, sixty-two decisions were rendered involving constitutional questions, and in thirty-six of these the opinion of the court was written by Marshall. In the remaining twenty-six the preparation of the opinions was distributed among his associates, who numbered five before 1808 and after that date six. During the whole period of his service, his dissenting opinions numbered eight, only one of which involved a constitutional question. Nor was the supremacy which this record indicates confined to questions of constitutional law. The reports of the court during Marshall's tenure fill thirty volumes, containing 1,215 cases. In ninety-four of these no opinions were filed, while fifteen were decided "by the court." In the remaining 1,106 cases the opinion of the court was delivered by Marshall in 519, or nearly one-half.

A full review of the questions of constitutional law decided by the Supreme Court during Marshall's term of service would involve a comprehensive examination of the foundations on which our constitutional system has been reared; but we may briefly refer to certain leading cases by which fundamental principles were established.

In one of his early opinions he discussed and decided the question whether an Act of Congress repugnant to the Constitution is void. This question was then by no means free from difficulty and doubt. The framers of the Constitution took care to assure its enforcement by judicial means against inconsistent State action, by the explicit provision that the Constitution itself, as well as Federal statutes and treaties, should be the "supreme law" of the land, and as such binding upon the State judges, in spite of anything in the local laws and constitutions. But as to the power of the courts to declare unconstitutional a Federal statute, the instrument was silent. There is reason to believe that this silence was not unintentional; nor would it be difficult to cite highly respectable opinions to the effect that the courts, viewed as a co-ordinate branch of the government, have no power to declare invalid an Act of the Legislature, unless they possess express constitutional authority to that effect. We have seen that Marshall expressed in the discussions of the Virginia convention a contrary view; but it is one thing to assert an opinion in debate and another thing to declare it from the bench, especially in a case involved in or related to political contests; and such a case was Marbury _v_. Madison.

Marbury was a citizen of the District of Columbia, who had been appointed as a justice of the peace by John Adams, just before his vacation of the office of President. It was one of the so-called "midnight" appointments of President Adams, which became a subject of heated political controversy. It was alleged that Marbury's commission had been made out, sealed, and signed, but that Mr. Madison, who immediately afterwards became Secretary of State, withheld it from him. Marbury therefore applied to the Supreme Court for a writ of _mandamus_ to compel its delivery. In the course of the judgment, which was delivered by Marshall, opinions were expressed on certain questions the decision of which was not essential to the determination of the case, and into these it is unnecessary now to enter, although one of them has been cited and acted upon as a precedent. But on one point the decision of the court was requisite and fundamental, and that was the point of jurisdiction. It was held that the court had no power to grant the writ, because the Federal statute by which the jurisdiction was sought to be conferred was repugnant to the Constitution of the United States. This was the great question decided, and it was a decision of the first importance, since its assertion of the final authority of the judicial power, in the interpretation and enforcement of our written constitutions, came to be accepted almost as an axiom of American jurisprudence. In the course of his reasoning, Chief Justice Marshall expressed in terms of unsurpassed clearness the principle which lay at the root of his opinion. "It is," he declared, "emphatically the province and duty of the judicial department to say what the law is.... If two laws conflict with each other, the courts must decide on the operation of each.... If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary Act of the Legislature, the Constitution and not such ordinary Act must govern the case to which they both apply. Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the Constitution and see only the law. This doctrine would subvert the very foundation of all written constitutions." In subsequently applying this rule, Marshall affirmed that the courts ought never to declare an Act of Congress to be void "unless upon a clear and strong conviction of its incompatibility with the Constitution." Nevertheless, the power has been constantly and frequently exercised; and there can be no doubt that from its exercise the Supreme Court of the United States derives a political importance not possessed by any other judicial tribunal.

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 comercial 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.