The Life of John Marshall Volume IV Part 40

If the case came before Marshall normally, without design and in the regular course of business, it was an event nothing short of providential. If, on the contrary, it was "arranged" so that Marshall could deliver his immortal Nationalist address, never was such contrivance so thoroughly justified. While the legal profession has always considered this case to be identical, judicially, with that of Martin _vs._ Hunter's Lessee, it is, historically, a part of M'Culloch _vs._ Maryland and of Osborn _vs._ The Bank. The opinion of John Marshall in the Cohens case is one of the strongest and most enduring strands of that mighty cable woven by him to hold the American people together as a united and imperishable nation.

Fortunate, indeed, for the Republic that Marshall's fateful p.r.o.nouncement came forth at such a critical hour, even if technicalities were waived in bringing before him a case in which he could deliver that opinion. For, in conjunction with his exposition in M'Culloch _vs._ Maryland, it was the most powerful answer that could be given, and from the source of greatest authority, to that defiance of the National Government and to the threats of disunion then growing ever bolder and more vociferous. Marshall's utterances did not still those hostile voices, it is true, but they gave strength and courage to Nationalists and furnished to the champions of the Union arguments of peculiar force as coming from the supreme tribunal of the Nation.

Could John Marshall have seen into the future he would have beheld Abraham Lincoln expounding from the stump to the farmers of Illinois, in 1858, the doctrines laid down by himself in 1819 and 1821.

Briefly stated, the facts in the case of Cohens _vs._ Virginia were as follows: The City of Washington was incorporated under an act of Congress[955] which, among other things, empowered the corporation to "authorize the drawing of lotteries for effecting any important improvements in the city which the ordinary funds or revenue thereof will not accomplish," to an amount not to exceed ten thousand dollars, the object first to be approved by the President.[956] Accordingly a city ordinance was pa.s.sed, creating "The National Lottery" and authorizing it to sell tickets and conduct drawings.

By an act of the Virginia Legislature[957] the purchase or sale within the State of lottery tickets, except those of lotteries authorized by the laws of Virginia, was forbidden under penalty of a fine of one hundred dollars for each offense.

On June 1, 1820, "P. J. & M. J. Cohen, ... being evil-disposed persons,"

violated the Virginia statute by selling to one William H. Jennings in the Borough of Norfolk two half and four quarter lottery tickets "of the National Lottery, to be drawn in the city of Washington, that being a lottery not authorized by the laws of this commonwealth," as the information of James Nimmo, the prosecuting attorney, declared.[958]

At the quarterly session of the Court of Norfolk, held September 2, 1820, the case came on for hearing before the Mayor, Recorder, and Aldermen of said borough and was decided upon an agreed case "in lieu of a special verdict," which set forth the sale of the lottery tickets, the Virginia statute, the act of Congress incorporating the City of Washington, and the fact that the National Lottery had been established under that act.[959] The Norfolk Court found the defendants guilty and fined them in the sum of one hundred dollars. This paltry amount could not have paid one twentieth part of the fees which the eminent counsel who appeared for the Cohens would, ordinarily, have charged.[960] The case was carried to the Supreme Court on a writ of error.

On behalf of Virginia, Senator James Barbour of that State[961] moved that the writ of error be dismissed, and upon this motion the main arguments were made and Marshall's princ.i.p.al opinion delivered. In concluding his argument, Senator Barbour came near threatening secession, as he had done in the Senate: "Nothing can so much endanger it [the National Government] as exciting the hostility of the state governments. With them it is to determine how long this government shall endure."[962]

In opening for the Cohens, David B. Ogden of New York denied that "there is any such thing as a sovereign state, independent of the Union." The authority of the Supreme Court "extends ... to all cases arising under the const.i.tution, laws, and treaties of the United States."[963] Cohens _vs._ Virginia was such a case.

Upon the supremacy of the Supreme Court over State tribunals depended the very life of the Nation, declared William Pinkney, who appeared as the princ.i.p.al counsel for the Cohens. Give up the appellate jurisdiction of National courts "from the decisions of the state tribunals" and "every other branch of federal authority might as well be surrendered.

To part with this, leaves the Union a mere league or confederacy."[964]

Long, brilliantly, convincingly, did Pinkney speak. The extreme State Rights arguments were, he a.s.serted, "too wild and extravagant"[965] to deserve consideration.

Promptly Marshall delivered the opinion of the court on Barbour's motion to dismiss the writ of error. The points made against the jurisdiction of the Supreme Court were, he said: "1st. That a state is a defendant.

2d. That no writ of error lies from this court to a state court. 3d. ...

that this court ... has no right to review the judgment of the state court, because neither the const.i.tution nor any law of the United States has been violated by that judgment."[966]

The first two points "vitally ... affect the Union," declared the Chief Justice, who proceeds to answer the reasoning of the State judges when, in Hunter _vs._ Fairfax's Devisee, they hurled at the Supreme Court Virginia's defiance of National authority.[967] Marshall thus states the Virginia contentions: That the Const.i.tution has "provided no tribunal for the final construction of itself, or of the laws or treaties of the nation; but that this power may be exercised ... by the courts of every state of the Union. That the const.i.tution, laws, and treaties, may receive as many constructions as there are states; and that this is not a mischief, or, if a mischief, is irremediable."[968]

Why was the Const.i.tution established? Because the "American States, as well as the American people, have believed a close and firm Union to be essential to their liberty and to their happiness. They have been taught by experience, that this Union cannot exist without a government for the whole; and they have been taught by the same experience that this government would be a mere shadow, that must disappoint all their hopes, unless invested with large portions of that sovereignty which belongs to independent states."[969]

The very nature of the National Government leaves no doubt of its supremacy "in all cases where it is empowered to act"; that supremacy was also expressly declared in the Const.i.tution itself, which plainly states that it, and laws and treaties made under it, "'shall be the supreme law of the land; and the judges in every state shall be bound thereby; anything in the const.i.tution or laws of any state to the contrary notwithstanding.'"

This supremacy of the National Government is a Const.i.tutional "principle." And why were "ample powers" given to that Government? The Const.i.tution answers: "In order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defense, promote the general welfare."[970]

The "limitations on the sovereignty of the states" were made for the same reason that the "supreme government" of the Nation was endowed with its broad powers. In addition to express limitations on State "sovereignty" were many instances "where, perhaps, _no other power is conferred on Congress than a conservative power to maintain the principles_ established in the const.i.tution. The maintenance of these principles in their purity, is certainly among the great duties of the government."[971]

Marshall had been Chief Justice of the United States for twenty years, and these were the boldest and most extreme words that he had spoken during that period. Like all men of the first rank, Marshall met in a great way, and without attempt at compromise, a great issue that could not be compromised--an issue which, everywhere, at that moment, was challenging the existence of the Nation. There must be no dodging, no hedging, no equivocation. Instead, there must be the broadest, frankest, bravest declaration of National powers that words could express. For this reason Marshall said that these powers might be exercised even as a result of "a conservative power" in Congress "to maintain the principles established in the const.i.tution."

The Judicial Department is an agency essential to the performance of the "great duty" to preserve those "principles." "It is authorized to decide all cases of every description, arising under the const.i.tution or laws of the United States." Those cases in which a State is a party are not excepted. There are cases where the National courts are given jurisdiction solely because a State is a party, and regardless of the subject of the controversy; but in all cases involving the Const.i.tution, laws, or treaties of the Nation, the National tribunals have jurisdiction, regardless of parties.[972]

"Principles" drawn from the very "_nature of government_" require that "the judicial power ... must be co-extensive with the legislative, and must be capable of deciding every judicial question which grows out of the const.i.tution and laws"--not that "it is fit that it should be so; but ... that this fitness" is an aid to the right interpretation of the Const.i.tution.[973]

What will be the result if Virginia's att.i.tude is confirmed? Nothing less than the prostration of the National Government "at the feet of every state in the Union.... Each member will possess a veto on the will of the whole." Consider the country's experience. a.s.sumption[974] had been deemed unconst.i.tutional by some States; opposition to excise taxes had produced the Whiskey Rebellion;[975] other National statutes "have been questioned partially, while they were supported by the great majority of the American people."[976] There can be no a.s.surance that such divergent and antagonistic actions may not again be taken. State laws in conflict with National laws probably will be enforced by State judges, since they are subject to the same prejudices as are the State Legislatures--indeed, "in many states the judges are dependent for office and for salary on the will of the legislature."[977]

The Const.i.tution attaches first importance to the "independence" of the Judiciary; can it have been intended to leave to State "tribunals, where this independence may not exist," cases in which "a state shall prosecute an individual who claims the protection of an act of Congress?" Marshall gives examples of possible collisions between National and State authority, in ordinary times, as well as in exceptional periods.[978] Even to-day it is obvious that the Chief Justice was denouncing the threatened resistance by State officials to the tariff laws, a fact of commanding importance at the time when Marshall's opinion in Cohens _vs._ Virginia was delivered.

At this point he rises to the heights of august eloquence: "A const.i.tution is framed for ages to come, and is designed to approach immortality as nearly as human inst.i.tutions can approach it. Its course cannot always be tranquil. It is exposed to storms and tempests, and its framers must be unwise statesmen indeed, if they have not provided it ... with the means of self-preservation from the perils it may be destined to encounter. No government ought to be so defective in its organization as not to contain within itself the means of securing the execution of its own laws against other dangers than those which occur every day."

Marshall is here replying to the Southern threats of secession, just as he rebuked the same spirit when displayed by his New England friends ten years earlier.[979] Then turning to the conflict of courts, he remarks, as though the judicial collision is all that he has in mind: "A government should repose on its own courts, rather than on others."[980]

He recalls the state of the country under the Confederation when requisitions on the States were "habitually disregarded," although they were "as const.i.tutionally obligatory as the laws enacted by the present Congress." In view of this fact is it improbable that the framers of the Const.i.tution meant to give the Nation's courts the power of preserving that Const.i.tution, and laws made in pursuance of it, "from all violation from every quarter, so far as judicial decisions can preserve them"?[981]

Virginia contends that if States wish to destroy the National Government they can do so much more simply and easily than by judicial decision--"they have only not to elect senators, and it expires without a struggle"; and that therefore the destructive effect on the Nation of decisions of State courts cannot be taken into account when construing the Const.i.tution.

To this Marshall makes answer: "Whenever hostility to the existing system shall become universal, it will be also irresistible. The people made the const.i.tution, and the people can unmake it. It is the creature of their own will, and lives only by their will. But this supreme and irresistible power to make or to unmake, resides only in the whole body of the people; not in any sub-division of them. The attempt of any of the parts to exercise it is usurpation, and ought to be repelled by those to whom the people have delegated their power of repelling it. The acknowledged inability of the government, then, to sustain itself against the public will, and, by force or otherwise, to control the whole nation, is no sound argument in support of its const.i.tutional inability to preserve itself against a section of the nation acting in opposition to the general will."[982]

This is a direct reply to the Southern arguments in the Missouri debate which secessionists were now using wherever those who opposed National laws and authority raised their voices. John Marshall is blazing the way for Abraham Lincoln. He speaks of a "section" instead of a State. The Nation, he says, may const.i.tutionally preserve itself "against a section." And this right of the Nation rests on "principles" inherent in the Const.i.tution. But in Cohens _vs._ Virginia no "section" was arrayed against the Nation--on the record there was nothing but a conflict of jurisdiction of courts, and this only by a strained construction of a munic.i.p.al lottery ordinance into a National law.

The Chief Justice is exerting to the utmost his tremendous powers, not to protect two furtive peddlers of lottery tickets, but to check a powerful movement that, if not arrested, must destroy the Republic.

Should that movement go forward thereafter, it must do so over every Const.i.tutional obstacle which the Supreme Court of the Nation could throw in its way. In Cohens _vs._ Virginia, John Marshall stamped upon the brow of Localism the brand of illegality. If this is not the true interpretation of his opinion in that case, all of the exalted language he used is mere verbiage.

Marshall dwells on "the subordination of the parts to the whole." The one great motive for establishing the National Judiciary "was the preservation of the const.i.tution and laws of the United States, so far as they can be preserved by judicial authority."[983]

Returning to the technical aspects of the controversy, Marshall points out that the Supreme Court plainly has appellate jurisdiction of the Cohens case: "If a state be a party, the jurisdiction of this court is original; if the case arise under a [National] const.i.tution or a [National] law, the jurisdiction is appellate. But a case to which a state is a party may arise under the const.i.tution or a law of the United States."[984] That would mean a double jurisdiction. Marshall, therefore, shows, at provoking length,[985] that the appellate jurisdiction of the Supreme Court "in all cases arising under the const.i.tution, laws, or treaties of the United States, was not arrested by the circ.u.mstance that a state was a party";[986] and in this way he explains that part of his opinion in Marbury _vs._ Madison, in which he reasoned that Section 13 of the Ellsworth Judiciary Act was unconst.i.tutional.[987]

Marshall examines the Eleventh Amendment and becomes, for a moment, the historian, a role in which he delighted. "The states were greatly indebted" at the close of the Revolution; the Const.i.tution was opposed because it was feared that their obligations would be collected in the National courts. This very thing happened. "The alarm was general; and, to quiet the apprehensions that were so extensively entertained, this amendment was ... adopted." But "its motive was not to maintain the sovereignty of a state from the degradation supposed to attend a compulsory appearance before the tribunal of the nation." It was to prevent creditors from suing a State--"no interest could be felt in so changing the relations between the whole and its parts, as to strip the government of the means of protecting, by the instrumentality of its courts, the const.i.tution and laws from active violation."[988]

With savage relish the Chief Justice attacks and demolishes the State Rights theory that the Supreme Court cannot review the judgment of a State court "in any case." That theory, he says, "considers the federal judiciary as completely foreign to that of a state; and as being no more connected with it, in any respect whatever, than the court of a foreign state."[989] But "the United States form, for many, and for most important purposes, a single nation.... In war, we are one people. In making peace, we are one people. In all commercial regulations, we are one and the same people. In many other respects, the American people are one; and the government which is alone capable of controlling and managing their interests in all these respects, is the government of the Union.

"It is their government, and in that character they have no other.

America has chosen to be, in many respects, and to many purposes, a nation; and for all these purposes, her government is complete; to all these objects, it is competent. The people have declared, that in the exercise of all powers given for these objects it is supreme. It can, then, in effecting these objects, legitimately control all individuals or governments within the American territory. The Const.i.tution and laws of a state, so far as they are repugnant to the Const.i.tution and laws of the United States, are absolutely void.

"These states are const.i.tuent parts of the United States. They are members of one great empire."[990] The National Court alone can decide all questions arising under the Const.i.tution and laws of the Nation.

"The uniform decisions of this court on the point now under consideration," he continues, "have been a.s.sented to, with a single exception,[991] by the courts of every state in the Union whose judgments have been revised."[992]

As to the lottery ordinance of the City of Washington, Congress has exclusive power to legislate for the District of Columbia and, in exercising that power, acts "as the legislature of the Union." The Const.i.tution declares that it, and all laws made under it, const.i.tute "the supreme law of the land."[993] Laws for the government of Washington are, therefore, parts of this "supreme law" and "bind the nation.... Congress legislates, in the same forms, and in the same character, in virtue of powers of equal obligation, conferred in the same instrument, when exercising its exclusive powers of legislation, as well as when exercising those which are limited."[994]

The Chief Justice gives examples of the exclusive powers of Congress, all of which are binding throughout the Republic. "Congress is not a local legislature, but exercises this particular power [to legislate for the District of Columbia], like all its other powers, in its high character, as the legislature of the Union."[995] The punishment of the Cohens for selling tickets of the National Lottery, created by the City of Washington under authority of an act of Congress, involves the construction of the Const.i.tution and of a National law. The Supreme Court, therefore, has jurisdiction of the case, and the motion to dismiss the writ of error is denied.

Marshall having thus established the jurisdiction of the Supreme Court to hear and decide the case, it was argued "on the merits." Again David B. Ogden appeared for the Cohens and was joined by William Wirt as Attorney-General. For Virginia Webster took the place of Senator Barbour. The argument was upon the true construction of the act of Congress authorizing the City of Washington to establish a lottery; and upon this Marshall delivered a second opinion, to the effect that the lottery ordinance was "only co-extensive with the city" and a purely local affair; that the court at Norfolk had a right to fine the Cohens for violating a law of Virginia; and that its judgment must be affirmed.[996]

So ended, as far as the formal record goes, the famous case of Cohens _vs._ Virginia. On its merits it amounted to nothing; the practical result of the appeal was nothing; but it afforded John Marshall the opportunity to tell the Nation its duty in a crowning National emergency.

Intense was the excitement and violent the rage in the anti-Nationalist camp when Marshall's opinion was published. Ritchie, in his paper, demanded that the Supreme Court should be abolished.[997] The Virginia Republican organization struck instantly, Spencer Roane wielding its sword. The _Enquirer_ published a series of five articles between May 25 and June 8, 1821, inclusive, signed "Algernon Sidney," Roane's latest _nom de plume_.

"The liberties and const.i.tution of our country are ... deeply and vitally endangered by the fatal effects" of Marshall's opinion.

"Appointed in one generation it [the Supreme Court] claims to make laws and const.i.tutions for another."[998] The unanimity of the court can be explained only on the ground of "a culpable apathy in the other judges, or a confidence not to be excused, in the principles and talents of their chief." Sidney literally wastes reams of paper in restating the State Rights arguments. He finds a malign satisfaction in calling the Const.i.tution a "compact," a "league," a "treaty" between "sovereign governments."[999]

National judges have "_no_ interest in the government or laws of any state but that of which they are citizens," a.s.serts Sidney.

"As to every other state but that, they are, completely, aliens and foreigners."[1000] Virginia is as much a foreign nation as Russia[1001]

so far as jurisdiction of the Supreme Court over the judgments of State courts is concerned. Marshall's doctrine "is the blind and absolute despotism which exists in an army, or is exercised by a tyrant over his slaves."[1002]

The apostate Republican Justices who concurred with Marshall are denounced, and with greater force, by reason of a tribute paid to the hated Chief Justice: "How else is it that they also go to all lengths with the ultra-federal leader who is at the head of their court? That leader is honorably distinguished from you messieurs judges. He is true to his former politics. He has even pushed them to an extreme never until now antic.i.p.ated. He must be equally delighted and _surprised_ to find his _Republican_ brothers going with him"--a remark as true as it was obvious. "How is it ... that they go with him, not only as to the results of his opinions, but as to all the points and positions contained in the most lengthy, artful and alarming opinions?" Because, answers Sidney, they are on the side of power and of "the government that feeds them."[1003]

What Marshall had said in the Virginia Const.i.tutional Convention of 1788 refutes his opinions now. "Great principles then operated on his luminous mind, not hair-splitting quibbles and verbal criticisms."[1004]

The "artifices" of the Chief Justice render his opinions the more dangerous.[1005]

If the anger of John Marshall ever was more aroused than it was by Roane's a.s.saults upon him, no evidence of the fact exists. Before the last number of the Algernon Sidney essays appeared, the Chief Justice confides his wrathful feelings to the devoted and sympathetic Story: "The opinion of the Supreme Court in the Lottery case has been a.s.saulted with a degree of virulence transcending what has appeared on any former occasion. Algernon Sidney is written by the gentleman who is so much distinguished for his feelings towards the Supreme Court, & if you have not an opportunity of seeing the Enquirer I will send it to you.