John Marshall and the Constitution Part 6

Marshall erected his Richmond home, called "Shockoe Hill," in 1793 on a plot of ground which he had purchased four years earlier. Here, as his eulogist has said, was "the scene of his real triumphs." At an early date his wife became a nervous invalid, and his devotion to her brought out all the finest qualities of his sound and tender nature. "It is," says Mr. Beveridge, "the most marked characteristic of his entire private life and is the one thing which differentiates him sharply from the most eminent men of that heroic but socially free-and-easy period." From his a.s.sociation with his wife Marshall derived, moreover, an opinion of the s.e.x "as the friends, the companions, and the equals of man" which may be said to have furnished one of his few points of sympathetic contact with American political radicalism in his later years. The satirist of woman, says Story, "found no sympathy in his bosom," and "he was still farther above the commonplace flatteries by which frivolity seeks to administer aliment to personal vanity, or vice to make its approaches for baser purposes. He spoke to the s.e.x when present, as he spoke of them when absent, in language of just appeal to their understandings, their tastes, and their duties."

Marshall's relations with his neighbors were the happiest possible. Every week, when his judicial duties permitted or the more "laborious relaxation" of directing his farm did not call him away, he attended the meetings of the Barbecue Club in a fine grove just outside the city, to indulge in his favorite diversion of quoits. The Club consisted of thirty of the most prominent men of Richmond, judges, lawyers, doctors, clergymen, and merchants. To quoits was added the inducement of an excellent repast of which roast pig was the piece de resistance. Then followed a dessert of fruit and melons, while throughout a generous stock of porter, toddy, and of punch "from which water was carefully excluded," was always available to relieve thirst. An entertaining account of a meeting of the Club at which Marshall and his friend Wickham were the caterers has been thus preserved for us:

"At the table Marshall announced that at the last meeting two members had introduced politics, a forbidden subject, and had been fined a basket of champagne, and that this was now produced, as a warning to evil-doers; as the club seldom drank this article, they had no champagne gla.s.ses, and must drink it in tumblers. Those who played quoits retired after a while for a game. Most of the members had smooth, highly polished bra.s.s quoits. But Marshall's were large, rough, heavy, and of iron, such as few of the members could throw well from hub to hub. Marshall himself threw them with great success and accuracy, and often 'rang the meg.' On this occasion Marshall and the Rev. Mr. Blair led the two parties of players. Marshall played first, and rang the meg. Parson Blair did the same, and his quoit came down plumply on top of Marshall's. There was uproarious applause, which drew out all the others from the dinner; and then came an animated controversy as to what should be the effect of this exploit. They all returned to the table, had another bottle of champagne, and listened to arguments, one from Marshall, pro se, and one from Wickham for Parson Blair. [Marshall's] argument is a humorous companion piece to any one of his elaborate judicial opinions. He began by formulating the question, 'Who is winner when the adversary quoits are on the meg at the same time?' He then stated the facts, and remarked that the question was one of the true construction and applications of the rules of the game. The first one ringing the meg has the advantage. No other can succeed who does not begin by displacing this first one. The parson, he willingly allowed, deserves to rise higher and higher in everybody's esteem; but then he mustn't do it by getting on another's back in this fashion. That is more like leapfrog than quoits. Then, again, the legal maxim, Cujus est solum, ejus est usque ad coelum-his own right as first occupant extends to the vault of heaven; no opponent can gain any advantage by squatting on his back. He must either bring a writ of ejectment, or drive him out vi et armis. And then, after further argument of the same sort, he asked judgment, and sat down amidst great applause. Mr. Wickham then rose, and made an argument of a similar pattern. No rule, he said, requires an impossibility. Mr. Marshall's quoit is twice as large as any other; and yet it flies from his arm like the iron ball at the Grecian games from the arm of Ajax. It is impossible for an ordinary quoit to move it. With much more of the same sort, he contended that it was a drawn game. After very animated voting, designed to keep up the uncertainty as long as possible, it was so decided. Another trial was had, and Marshall clearly won." *

* J. B. Thayer, "John Marshall" ("Riverside Biographical Series,"

1904), pp. 13436, paraphrasing G. W. Munford, "The Two Parsons"

(Richmond, 1884), pp. 326-38.

Years later Chester Harding, who once painted Marshall, visited the Club. "I watched," says he, "for the coming of the old chief. He soon approached, with his coat on his arm and his hat in his hand, which he was using as a fan. He walked directly up to a large bowl of mint julep which had been prepared, and drank off a tumblerful, smacking his lips, and then turned to the company with a cheerful 'How are you, gentlemen?' He was looked upon as the best pitcher of the party and could throw heavier quoits than any other member of the club. The game began with great animation. There were several ties; and before long I saw the great Chief Justice of the United States down on his knees measuring the contested distance with a straw, with as much earnestness as if it had been a point of law; and if he proved to be in the right, the woods would ring with his triumphant shout." * What Wellesley remarked of the younger Pitt may be repeated of Marshall, that "unconscious of his superiority," he "plunged heedlessly into the mirth of the hour" and was endowed with "a gay heart and social spirit beyond any man of his time."

* Thayer, op. cit., pp. 132-33.

As a hero of anecdotes Marshall almost rivals Lincoln. Many of the tales preserved are doubtless apocryphal, but this qualification hardly lessens their value as contemporary impressions of his character and habits. They show for what sort of anecdotes his familiarly known personality had an affinity.

The Chief Justice's entire freedom from ostentation and the gentleness with which he could rebuke it in others is ill.u.s.trated in a story often told. Going early to the market one morning he came upon a youth who was fuming and swearing because he could get no one to carry his turkey home for him. Marshall proffered his services. Arriving at the house the young man asked, "What shall I pay you?" "Oh, nothing," was the reply; "it was on my way, and no trouble." As Marshall walked away, the young man inquired of a bystander, "Who is that polite old man that brought home my turkey for me?" "That," was the answer, "is Judge Marshall, Chief Justice of the United States."

Of the same general character is an anecdote which has to do with a much earlier period when Marshall was still a practicing attorney. An old farmer who was involved in a lawsuit came to Richmond to attend its trial. "Who is the best lawyer in Richmond?" he asked of his host, the innkeeper of the Eagle tavern. The latter pointed to a tall, ungainly, bareheaded man who had just pa.s.sed, eating cherries from his hat and exchanging jests with other loiterers like himself. "That is he," said the innkeeper; "John Marshall is his name." But the old countryman, who had a hundred dollars in his pocket, proposed to spend it on something more showy and employed a solemn, black-coated, and much powdered bigwig. The latter turned out in due course to be a splendid ill.u.s.tration of the proverb that "fine feathers do not make fine birds." This the crestfallen rustic soon discovered. Meantime he had listened with amazement and growing admiration to an argument by Marshall in a cause which came on before his own. He now went up to Marshall and, explaining his difficulty, offered him the five dollars which the exactions of the first attorney still left him, and besought his aid. With a humorous remark about the power of a black coat and powdered wig Marshall good-naturedly accepted the retainer.

The religious bent of the Chief Justice's mind is ill.u.s.trated in another story, which tells of his arriving toward the close of day at an inn in one of the counties of Virginia, and falling in with some young men who presently began ardently to debate the question of the truth or falsity of the Christian religion. From six until eleven o'clock the young theologians argued keenly and ably on both sides of the question. Finally one of the bolder spirits exclaimed that it was impossible to overcome prejudices of long standing and, turning to the silent visitor, asked: "Well, my old gentleman, what do you think of these things?" To their amazement the "old gentleman" replied for an hour in an eloquent and convincing defense of the Christian religion, in which he answered in order every objection the young men had uttered. So impressive was the simplicity and loftiness of his discourse that the erstwhile critics were completely silenced.

In truth, Marshall's was a reverent mind, and it sprang instinctively to the defense of ideas and inst.i.tutions whose value had been tested. Unfortunately, in his "Life of Washington" Marshall seems to have given this propensity a somewhat undue scope. There were external difficulties in dealing with such a subject apart from those inherent in a great biography, and Marshall's volumes proved to be a general disappointment. Still hard pressed for funds wherewith to meet his Fairfax investment, he undertook this work shortly after he became Chief Justice, at the urgent solicitation of Judge Bushrod Washington, the literary executor of his famous uncle Marshall had hoped to make this incursion into the field of letters a very remunerative one, for he and Washington had counted on some thirty thousand subscribers for the work. The publishers however, succeeded in obtaining only about a quarter of that number, owing partly at least to the fact that Jefferson had no sooner learned of the enterprise than his jealous mind conceived the idea that the biography must be intended for partisan purposes. He accordingly gave the alarm to the Republican press and forbade the Federal postmasters to take orders for the book. At the same time he asked his friend Joel Barlow, then residing in Paris, to prepare a counterblast, for which he declared himself to be "rich in materials." The author of the "Columbiad," however, declined this hazardous commission, possibly because he was unwilling to stand sponsor for the malicious recitals that afterwards saw light in the pages of the "Anas."

But apart from this external opposition to the biography, Marshall found a source of even keener disappointment in the literary defects due to the haste with which he had done his work. The first three volumes had appeared in 1804, the fourth in 1805, and the fifth, which is much the best, in 1807. Republican critics dwelt with no light hand upon the deficiencies of these volumes, and Marshall himself sadly owned that the "inelegancies" in the first were astonishingly numerous. But the shortcomings of the work as a satisfactory biography are more notable than its lapses in diction. By a design apparently meant to rival the improvisations of "Tristram Shandy", the birth of the hero is postponed for an entire volume, in which the author traces the settlement of the country. At the opening of the second volume "the birth of young Mr. Washington" is gravely announced, to be followed by an account of the Father of his Country so devoid of intimate touches that it might easily have been written by one who had never seen George Washington.

Nevertheless, these pages of Marshall's do not lack acute historical judgments. He points out, for instance, that, if the Revolution had ended before the Articles of Confederation were adopted, permanent disunion might have ensued and that, faulty as it was, the Confederation "preserved the idea, of Union until the good sense of the Nation adopted a more efficient system." Again, in his account of the events leading up to the Convention of 1787, Marshall rightly emphasizes facts which subsequent writers have generally pa.s.sed by with hardly any mention, so that students may read this work with profit even today. But the chief importance of these volumes lay, after all, in the additional power which the author himself derived from the labor of their preparation. In so extensive an undertaking Marshall received valuable training for his later task of laying the foundations of Const.i.tutional Law in America. One of his chief a.s.sets on the bench, as we have already seen, was his complete confidence in his own knowledge of the intentions of the Const.i.tution-a confidence which was grounded in the consciousness that he had written the history of the Const.i.tution's framing.

Most of Marshall's correspondence, which is not voluminous, deals with politics or legal matters. But there are letters in which the personal side of the Chief Justice is revealed. He gives his friend Story a touching account of the loss of two of his children. He praises old friends and laments his inability to make new ones. He commends Jane Austen, whose novels he has just finished reading. "Her flights," he remarks, "are not lofty, she does not soar on eagle's wings, but she is pleasing, interesting, equable, and yet amusing." He laments that he "can no longer debate and yet cannot apply his mind to anything else." One recalls Darwin's similar lament that his scientific work had deprived him of all liking for poetry.

The following letter, which Marshall wrote the year before his death to his grandson, a lad of fourteen or fifteen, is interesting for its views on a variety of subjects and is especially pleasing for its characteristic freedom from condescension:

"I had yesterday the pleasure of receiving your letter of the 29th of November, and am quite pleased with the course of study you are pursuing. Proficiency in Greek and Latin is indispensable to an accomplished scholar, and may be of great real advantage in our progress through human life. Cicero deserves to be studied still more for his talents than for the improvement in language to be derived from reading him. He was unquestionably, with the single exception of Demosthenes, the greatest orator among the ancients. He was too a profound Philosopher. His 'de ofiiciis' is among the most valuable treatises I have ever seen in the Latin language.

"History is among the most essential departments of knowledge; and, to an American, the histories of England and of the United States are most instructive. Every man ought to be intimately acquainted with the history of his own country. Those of England and of the United States are so closely connected that the former seems to be introductory to the latter. They form one whole. Hume, as far as he goes, to the revolution of 1688, is generally thought the best Historian of England. Others have continued his narrative to a late period, and it will be necessary to read them also.

"There is no exercise of the mind from which more valuable improvement is to be drawn than from composition. In every situation of life the result of early practice will be valuable. Both in speaking and writing, the early habit of arranging our thoughts with regularity, so as to point them to the object to be proved, will be of great advantage. In both, clearness and precision are most essential qualities. The man who by seeking embellishment hazards confusion, is greatly mistaken in what const.i.tutes good writing. The meaning ought never to be mistaken. Indeed the readers should never be obliged to search for it. The writer should always express himself so clearly as to make it impossible to misunderstand him. He should be comprehended without an effort.

"The first step towards writing and speaking clearly is to think clearly. Let the subject be perfectly understood, and a man will soon find words to convey his meaning to others. Blair, whose lectures are greatly and justly admired, advises a practice well worthy of being observed. It is to take a page of some approved writer and read it over repeatedly until the matter, not the words, be fully impressed on the mind. Then write, in your own language, the same matter. A comparison of the one with the other will enable you to remark and correct your own defects. This course may be pursued after having made some progress in composition. In the commencement, the student ought carefully to reperuse what he has written, correct, in the first instance, every error of orthography and grammar. A mistake in either is unpardonable. Afterwards revise and improve the language.

"I am pleased with both your pieces of composition. The subjects are well chosen and of the deepest interest. Happiness is pursued by all, though too many mistake the road by which the greatest good is to be successfully followed. Its abode is not always in the palace or the cottage. Its residence is the human heart, and its inseparable companion is a quiet conscience. Of this, Religion is the surest and safest foundation. The individual who turns his thoughts frequently to an omnipotent omniscient and all perfect being, who feels his dependence on, and his infinite obligations to that being will avoid that course of life which must harrow up the conscience."

Marshall was usually most scrupulous to steer clear of partisan politics both in his letters and in his conversation, so that on one occasion he was much aroused by a newspaper article which had represented him "as using language which could be uttered only by an angry party man." But on political issues of a broader nature he expressed himself freely in the strict privacy of correspondence at least, and sometimes identified himself with public movements, especially in his home State. For instance, he favored the gradual abolition of slavery by private emanc.i.p.ation rather than by governmental action. In 1823 he became first president of the Richmond branch of the Colonization Society; five years later he presided over a convention to promote internal improvements in Virginia; and in 1829 he took a prominent part in the deliberations of the State Const.i.tutional Convention.

In the broader matters of national concern his political creed was in thorough agreement with his const.i.tutional doctrine. Nullification he denounced as "wicked folly," and he warmly applauded Jackson's proclamation of warning to South Carolina. But Marshall regarded with dismay Jackson's aggrandizement of the executive branch, and the one adverse criticism he has left of the Const.i.tution is of the method provided for the election of the President. In this connection he wrote in 1830: "My own private mind has been slowly and reluctantly advancing to the belief that the present mode of choosing the Chief Magistrate threatens the most serious danger to the public happiness. The pa.s.sions of men are influenced to so fearful an extent, large ma.s.ses are so embittered against each other, that I dread the consequences.... Age is, perhaps, unreasonably timid. Certain it is that I now dread consequences that I once thought imaginary. I feel disposed to take refuge under some less turbulent and less dangerous mode of choosing the Chief Magistrate." Then follows the suggestion that the people of the United States elect a body of persons equal in number to one-third of the Senate and that the President be chosen from among this body by lot. Marshall's suggestion seems absurd enough today, but it should be remembered that his fears of national disorder as a result of strong party feeling at the time of presidential elections were thoroughly realized in 1860 when Lincoln's election led to secession and civil war, and that sixteen years later, in the Hayes-Tilden contest, a second dangerous crisis was narrowly averted.

In the campaign of 1832 Marshall espoused privately the cause of Clay and the United States Bank, and could not see why Virginia should not be of the same opinion. Writing to Story in the midst of the campaign he said: "We are up to the chin in politics. Virginia was always insane enough to be opposed to the Bank of the United States, and therefore hurrahs for the veto. But we are a little doubtful how it may work in Pennsylvania. It is not difficult to account for the part New York may take. She has sagacity enough to see her interests in putting down the present Bank. Her mercantile position gives her a control, a commanding control, over the currency and the exchanges of the country, if there be no Bank of the United States. Going for herself she may approve this policy; but Virginia ought not to drudge for her." To the end of his days Marshall seems to have refused to recognize that the South had a sectional interest to protect, or at least that Virginia's interests were sectional; her attachment to State Rights he a.s.signed to the baneful influence of Jeffersonianism.

The year 1831 dealt Marshall two severe blows. In that year his robust const.i.tution manifested the first signs of impairment, and he was forced to undergo an operation for stone. In the days before anaesthetics, such an operation, especially in the case of a person of his advanced years, was attended with great peril. He faced the ordeal with the utmost composure. His physician tells of visiting Marshall the morning he was to submit to the knife and of finding him at breakfast:

"He received me with a pleasant smile... and said, 'Well, Doctor, you find me taking breakfast, and I a.s.sure you I have had a good one. I thought it very probable that this might be my last chance, and therefore I was determined to enjoy it and eat heartily.'... He said that he had not the slightest desire to live, laboring under the sufferings to which he was subjected, and that he was perfectly ready to take all the chances of an operation, and he knew there were many against him.... After he had finished his breakfast, I administered him some medicine; he then inquired at what hour the operation would be performed. I mentioned the hour of eleven. He said 'Very well; do you wish me for any other purpose, or may I lie down and go to sleep?' I was a good deal surprised at this question, but told him that if he could sleep it would be very desirable. He immediately placed himself upon the bed and fell into a profound sleep, and continued so until I was obliged to rouse him in order to undergo the operation. He exhibited the same fort.i.tude, scarcely uttering a murmur throughout the whole procedure which, from the nature of his complaint, was necessarily tedious."

The death of his wife on Christmas Day of the same year was a heavy blow. Despite her invalidism, she was a woman of much force of character and many graces of mind, to which Marshall rendered touching tribute in a quaint eulogy composed for one of his sons on the first anniversary of her death:

"Her judgment was so sound and so safe that I have often relied upon it in situations of some perplexity.... Though serious as well as gentle in her deportment, she possessed a good deal of chaste, delicate, and playful wit, and if she permitted herself to indulge this talent, told her little story with grace, and could mimic very successfully the peculiarities of the person who was its subject. She had a fine taste for belle-lettre reading.... This quality, by improving her talents for conversation, contributed not inconsiderably to make her a most desirable and agreeable companion. It beguiled many of those winter evenings during which her protracted ill health and her feeble nervous system confined us entirely to each other. I shall never cease to look back on them with deep interest and regret.... She felt deeply the distress of others, and indulged the feeling liberally on objects she believed to be meritorious.... She was a firm believer in the faith inculcated by the Church in which she was bred, but her soft and gentle temper was incapable of adopting the gloomy and austere dogmas which some of its professors have sought to engraft on it."

Marshall believed women were the intellectual equals of men, because he was convinced that they possessed in a high degree "those qualities which make up the sum of human happiness and transform the domestic fireside into an elysium," and not because he thought they could compete on even terms in the usual activities of men.

Despite these "buffetings of fate," the Chief Justice was back in Washington in attendance upon Court in February, 1832, and daily walked several miles to and from the Capitol. In the following January his health appeared to be completely restored. "He seemed," says Story, with whom he messed, along with Justices Thompson and Duval, "to revive, and enjoy anew his green old age." This year Marshall had the gratification of receiving the tribute of Story's magnificent dedication of his "Commentaries" to him. With characteristic modesty, the aged Chief Justice expressed the fear that his admirer had "consulted a partial friendship farther than your deliberate judgment will approve." He was especially interested in the copy intended for the schools, but he felt that "south of the Potomac, where it is most wanted it will be least used," for, he continued, "it is a Mohammedan rule never to dispute with the ignorant, and we of the true faith in the South adjure the contamination of infidel political works. It would give our orthodox nullifyer a fever to read the heresies of your Commentaries. A whole school might be infected by the atmosphere of a single copy should it be placed on one of the shelves of a bookcase."

Marshall sat on the Bench for the last time in the January term of 1835. Miss Harriet Martineau, who was in Washington during that winter, has left a striking picture of the Chief Justice as he appeared in these last days. "How delighted," she writes, "we were to see Judge Story bring in the tall, majestic, bright-eyed old man,-old by chronology, by the lines on his composed face, and by his services to the republic; but so dignified, so fresh, so present to the time, that no compa.s.sionate consideration for age dared mix with the contemplation of him."

Marshall was, however, a very sick man, suffering constant pain from a badly diseased liver. The ailment was greatly aggravated, moreover, by "severe contusions" which he received while returning in the stage from Washington to Richmond. In June he went a second time to Philadelphia for medical a.s.sistance, but his case was soon seen to be hopeless. He awaited death with his usual serenity, and two days before it came he composed the modest epitaph which appeared upon his tomb: JOHN MARSHALL, SON OF THOMAS AND MARY MARSHALL, WAS BORN ON THE 24TH OF SEPTEMBER, 1755, INTERMARRIED WITH MARY WILLIS AMBLER THE 3D OF JANUARY, 1783, DEPARTED THIS LIFE THE - DAY OF -,18 -. He died the evening of July 6,1835, surrounded by three of his sons. The death of the fourth, from an accident while he was hurrying to his father's bedside, had been kept from him. He left also a daughter and numerous grandchildren.

Marshall's will is dated April 9, 1832, and has five codicils of subsequent dates attached. After certain donations to grandsons named John and Thomas, the estate, consisting chiefly of his portion of the Fairfax purchase, was to be divided equally among his five children. To the daughter and her descendants were also secured one hundred shares of stock which his wife had held in the Bank of the United States, but in 1835 these were probably of little value. His faithful body servant Robin was to be emanc.i.p.ated and, if he chose, sent to Liberia, in which event he should receive one hundred dollars. But if he preferred to remain in the Commonwealth, he should receive but fifty dollars; and if it turned out to "be impracticable to liberate him consistently with law and his own inclination," he was to select his master from among the children, "that he may always be treated as a faithful meritorious servant."

The Chief Justice's death evoked many eloquent tributes to his public services and private excellencies, but none more just and appreciative than that of the officers of court and members of the bar of his own circuit who knew him most intimately. It reads as follows:

"John Marshall, late Chief Justice of the United States, having departed this life since the last Term of the Federal Circuit Court for this district, the Bench, Bar, and Officers of the Court, a.s.sembled at the present Term, embrace the first opportunity to express their profound and heartfelt respect for the memory of the venerable judge, who presided in this Court for thirty-five years-with such remarkable diligence in office, that, until he was disabled by the disease which removed him from life, he was never known to be absent from the bench, during term time, even for a day,-with such indulgence to counsel and suitors, that every body's convenience was consulted, but his own,-with a dignity, sustained without effort, and, apparently, without care to sustain it, to which all men were solicitous to pay due respect,-with such profound sagacity, such quick penetration, such acuteness, clearness, strength, and comprehension of mind, that in his hand, the most complicated causes were plain, the weightiest and most difficult, easy and light,-with such striking impartiality and justice, and a judgment so sure, as to inspire universal confidence, so that few appeals were ever taken from his decisions, during his long administration of justice in the Court, and those only in cases where he himself expressed doubt,-with such modesty, that he seemed wholly unconscious of his own gigantic powers,-with such equanimity, such benignity of temper, such amenity of manners, that not only none of the judges, who sat with him on the bench, but no member of the bar, no officer of the court, no juror, no witness, no suitor, in a single instance, ever found or imagined, in any thing said or done, or omitted by him, the slightest cause of offence.

"His private life was worthy of the exalted character he sustained in public station. The unaffected simplicity of his manners; the spotless purity of his morals; his social, gentle, cheerful disposition; his habitual self-denial, and boundless generosity towards others; the strength and constancy of his attachments; his kindness to his friends and neighbours; his exemplary conduct in the relations of son, brother, husband, father; his numerous charities; his benevolence towards all men, and his ever active beneficence; these amiable qualities shone so conspicuously in him, throughout his life, that, highly as he was respected, he had the rare happiness to be yet more beloved."

There is no more engaging figure in American history, none more entirely free from disfiguring idiosyncrasy, than the son of Thomas Marshall.

CHAPTER IX. Epilogue

In the brief period of twenty-seven months following the death of Marshall the Supreme Court received a new Chief Justice and five new a.s.sociate Justices. The effect of this change in personnel upon the doctrine of the Court soon became manifest. In the eleventh volume of Peters's "Reports," the first issued while Roger B. Taney was Chief Justice, are three decisions of const.i.tutional cases sustaining state laws which on earlier argument Marshall had a.s.sessed as unconst.i.tutional. The first of these decisions gave what was designated "the complete, unqualified, and exclusive" power of the State to regulate its "internal police" the right of way over the "commerce clause" *; the second practically nullified the const.i.tutional prohibition against "bills of credit" in deference to the same high prerogative * *; the third curtailed the operation of the "obligation of contracts" clause as a protection of public grants. * * * Story, voicing "an earnest desire to vindicate his [Marshall's] memory from the imputation of rashness," filed pa.s.sionate and unavailing dissents. With difficulty he was dissuaded from resigning from a tribunal whose days of influence he thought gone by. * * * * During the same year Justice Henry Baldwin, another of Marshall's friends and a.s.sociates, published his "View of the Const.i.tution," in which he rendered high praise to the departed Chief Justice's qualifications as expounder of the Const.i.tution. "No commentator," he wrote, "ever followed the text more faithfully, or ever made a commentary more accordant with its strict intention and language.... He never brought into action the powers of his mighty mind to find some meaning in plain words... above the comprehension of ordinary minds.... He knew the framers of the Const.i.tution, who were his compatriots," he was himself the historian of its framing, wherefore, as its expositor, "he knew its objects, its intentions." Yet in the face of these admissions, Baldwin rejects Marshall's theory of the origin of the Const.i.tution and the corollary doctrine of liberal construction. "The history and spirit of the times," he wrote, "admonish us that new versions of the Const.i.tution will be promulgated to meet the varying course of political events or aspirations of power."

* Milton vs. New York. 11 Peters, 102.

* * Briscoe vs. Bank of Kentucky, 11 Peters, 257.

* * * Charles River Bridge Company vs. Warren Bridge Company, 11 Peters, 420.

* * * * He wrote Justice McLean, May 10, 1837: "There will not, I fear, even in our day, be any case in which a law of a State or of Congress will be declared unconst.i.tutional; for the old const.i.tutional doctrines are fast fading away." "Life and Letters of Joseph Story."

vol. II, p. 272; see also p. 270, for Chancellor Kent's unfavorable reaction to these decisions.

But the radical impulse soon spent itself. Chief Justice Taney himself was a good deal of a conservative. While he regarded the Supreme Court rather as an umpire between two sovereignties than as an organ of the National Government for the vigorous a.s.sertion of its powers, which was Marshall's point of view, Taney was not at all disposed to disturb the law as it had been declared by his predecessor in binding decisions. Then, too, the development of railroading and the beginning of immigration from Europe on a large scale reawakened the interest of a great part of the nation in keeping intercourse between the States untrammeled by local selfishness; and in 1851 the Court, heeding the spirit of compromise of the day, decisively accepted for the most important category of cases Marshall's principle of the exclusive control of interstate and foreign commerce by Congress. *

* Cooley vs. the Board of Wardens, 12 Howard, 299.

Still, until the eve of the Civil War, the theory of the Const.i.tution held by the great body of the people, North as well as South, was that it was a compact of States. Then in December, 1860, South Carolina announced her secession from the Union. Buchanan's message of the same month performed the twofold service of refuting secession on State Rights principles and of demonstrating, albeit unwittingly, how impossible it was practically to combat the movement on the same principles. Lincoln brought the North back to Marshall's position when he remarked in his Inaugural Address: "Continue to execute all the express provisions of our National Const.i.tution, and the Union will endure forever."

The Civil War has been characterized as "an appeal from the judgments of Marshall to the arbitrament of war." Its outcome restored the concept of the National Government as a territorial sovereign, present within the States by the superior mandate of the American People, and ent.i.tled to "execute on every foot of American soil the powers and functions that belong to it." * These powers and functions are, moreover, today undergoing constant enlargement. No one now doubts that in any clash between national and state power it is national power which is ent.i.tled to be defined first, and few persons question that it ought to be defined in the light of Marshall's principle, that a Const.i.tution designed for ages to come must be "adapted to the various crises of human affairs."

* Justice Bradley in ex parte Siebold, 100 U.S., 371.

It is only when we turn to that branch of Const.i.tutional Law which defines governmental power in relation to private rights that we lose touch with Marshall's principles. As we have seen, he dealt in absolutes: either power was given to an unlimited extent or it was withheld altogether. Today, however, the dominant rule in this field of Const.i.tutional Law is the "rule of reason." In the last a.n.a.lysis, there are few private rights which are not subordinate to the general welfare; but, on the other hand, legislation which affects private rights must have a reasonable tendency to promote the general welfare and must not arbitrarily invade the rights of particular persons or cla.s.ses. Inasmuch as the hard and fast rules of an age when conditions of life were simpler are no longer practicable under the more complex relationships of modern times, there is today an inevitable tendency to force these rules to greater flexibility. *

* Notwithstanding what is said above, it is also true that the modern doctrine of "the police power" owes something to Marshall's interpretation of the "necessary and proper" clause in M'Culloch vs. Maryland, which is frequently offered nowadays as stating the authoritative definition of "a fair legislative discretion" in relation to private rights. Indeed this ingenious transposition was first suggested in Marshall's day. See Cowen (N. Y.), 585. But it never received his sanction and does not represent his point of view.

And this difference in the point of view of the judiciary connotes a general difference of outlook which makes itself felt today even in that field where Marshall wrought most enduringly. The Const.i.tution was established under the sway of the idea of the balance of power, and with the purpose of effecting a compromise among a variety of more or less antagonistic interests, some of which were identified with the cause of local autonomy, others of which coalesced with the cause of National Supremacy. The Nation and the States were regarded as compet.i.tive forces, and a condition of tension between them was thought to be not only normal but desirable. The modern point of view is very different. Local differences have to a great extent disappeared, and that general interest which is the same for all the States is an ever deepening one. The idea of the compet.i.tion of the States with the Nation is yielding to that of their cooperation in public service. And it is much the same with the relation of the three departments of Government. The notion that they have antagonistic interests to guard is giving way to the perception of a general interest guarded by all according to their several faculties. In brief, whereas it was the original effort of the Const.i.tution to preserve a somewhat complex set of values by nice differentiations of power, the present tendency, born of a surer vision of a single national welfare, is toward the partic.i.p.ation of all powers in a joint effort for a common end.

But though Marshall's work has been superseded at many points, there is no fame among American statesmen more strongly bulwarked by great and still vital inst.i.tutions. Marshall established judicial review; he imparted to an ancient legal tradition a new significance; he made his Court one of the great political forces of the country; he founded American Const.i.tutional Law; he formulated, more tellingly than any one else and for a people whose thought was permeated with legalism, the principles on which the integrity and ordered growth of their Nation have depended. Springing from the twin rootage of Magna Charta and the Declaration of Independence, his judicial statesmanship finds no parallel in the salient features of its achievement outside our own annals.