The Life of John Marshall
Chapter 228 : In his dissenting opinion Justice Johnson ignored the "compromise" of 1796,

In his dissenting opinion Justice Johnson ignored the "compromise" of 1796, holding that the grant by the State to Hunter extinguished the right of Fairfax's devisee.[399] He concurred with Story and Was.h.i.+ngton, however, in the opinion that, on the face of the record, the case came within Section 25 of the Judiciary Act; that, therefore, the writ of error had properly issued, and that the t.i.tle must be inquired into before considering "how far the ... treaty ... is applicable to it."[400] Accordingly the mandate of the Supreme Court was directed to the judges of the Virginia Court of Appeals, instructing them "to enter judgment for the appellant, Philip Martin [the Fairfax devisee]." Like all writs of the Supreme Court, it was, of course, issued in the name of the Chief Justice.[401]

Hot was the wrath of Roane and the other judges of Virginia's highest court when they received this order from the National tribunal at Was.h.i.+ngton. At their next sitting they considered whether to obey or to defy the mandate. They called in "the members of the bar generally,"

and the question "was solemnly argued" at Richmond for six consecutive days.[402] On December 16, 1815, the decision was published. The Virginia judges unanimously declined to obey the mandate of the Supreme Court of the United States. Each judge rendered a separate opinion, and all held that so much of Section 25 of the National Judiciary Act as "extends the appellate jurisdiction of the Supreme Court to this court, is not in pursuance of the const.i.tution of the United States."[403]

But it was not only the Virginia Court of Appeals that now spoke; it was the entire Republican partisan machine, intensively organized and intelligently run, that brought its power to bear against the highest tribunal of the Nation. Beyond all possible doubt, this Republican organization, speaking through the supreme judiciary of the State, represented public sentiment, generally, throughout the Old Dominion.

Unless this political significance of the opinions of the Virginia judges be held of higher value than their legal quality, the account of this historic controversy deserves no more than a brief paragraph stating the legal point decided.

The central question was well set forth by Judge Cabell thus: Even where the construction of a treaty is involved in the final decision of a cause by the highest court of a State, that decision being against the t.i.tle of the party claiming under the treaty, can Congress "confer on the Supreme Court of the United States, a power to _re-examine, by way of appeal or writ of error, the decision of the state Court; to affirm or reverse that decision; and in case of reversal, to command the state Court to enter and execute a judgment different from that which it had previously rendered_?"[404]

Every one of the judges answered in the negative. The opinion of Judge Cabell was the ablest, and stated most clearly the real issue raised by the Virginia court. Neither State nor National Government is dependent one upon the other, he said; neither can act "_compulsively_" upon the other. Controversies might arise between State and National Governments, "yet the const.i.tution has provided no umpire, has erected no tribunal by which they shall be settled." Therefore, the National court could not oblige the State court to "enter a judgment not its own."[405] The meaning of the National "Const.i.tution, laws and treaties, ... must, in cases coming before State courts, be decided by the State Judges, _according to their own judgments, and upon their own responsibility_."[406] National tribunals belong to one sovereignty; State tribunals to a different sovereignty--neither is "_superior_" to the other; neither can command or instruct the other.[407]

Grant that this interpretation of the Const.i.tution results in conflicts between State and Nation and even deprives the "general government ...

of the power of executing its laws and treaties"; even so, "the defects of our system of government must be remedied, not by the judiciary, but by the sovereign power of the people." The Const.i.tution must be amended by the people, not by judicial interpretation;[408] yet Congress, in Section 25 of the Judiciary Act, "attempts, in fact, to make the State Courts _Inferior Federal Courts_." The appellate jurisdiction conferred on the Supreme Court, and the word "_supreme_" itself, had reference to inferior National courts and not to State courts.[409]

Judge Roane's opinion was very long and discussed extensively every phase of the controversy. He held that, in giving National courts power over State courts, Section 25 of the Ellsworth Judiciary Act violated the National Const.i.tution. If National courts could control State tribunals, it would be a "plain case of the judiciary of one government correcting and reversing the decisions of that of another."[410] The Virginia Court of Appeals "is bound, to follow its own convictions ...

any thing in the decisions, or supposed decisions, of any other court, to the contrary notwithstanding." Let the court at Winchester, therefore, be instructed to execute the judgment of the State Court of Appeals.[411]

Such was the open, aggressive, and dramatic defiance of the Supreme Court of the United States by the Court of Appeals of Virginia. Roane showed his opinion to Monroe, who approved it and sent it to Jefferson at Monticello. Jefferson heartily commended Roane,[412] whereat the Virginia judge was "very much flattered and gratified."[413]

Promptly Philip Martin, through James M. Marshall, took the case to the Supreme Court by means of another writ of error. It now stood upon the docket of that court as Martin _vs._ Hunter's Lessee. Again Marshall refused to sit in the case. St. George Tucker of Virginia, one of the ablest lawyers of the South, and Samuel Dexter, the leader of the Ma.s.sachusetts bar, appeared for Hunter.[414] As Harper had done on the first appeal, both Tucker and Dexter called attention to the fact that the decision of the Virginia Court of Appeals did not rest exclusively upon the Treaty of Peace, which alone in this case would have authorized an appeal to the Supreme Court.[415]

Story delivered the court's opinion, which was one of the longest and ablest he ever wrote. The Const.i.tution was not ordained by the States, but "emphatically ... by 'the people of the United States.'[416]... Its powers are expressed in general terms, leaving to the legislature, from time to time, to adopt its own means to effectuate legitimate objects, and to mold and model the exercise of its powers, as its own wisdom and the public interests should require."[417] Story then quotes Sections 1 and 2 of Article III of the Const.i.tution,[418] and continues: Thus is "the voice of the whole American people solemnly declared, in establis.h.i.+ng one great department of that government which was, in many respects, national, and in all, supreme." Congress cannot disregard this Const.i.tutional mandate. At a length which, but for the newness of the question, would be intolerable, Story demonstrates that the Const.i.tutional grant of judiciary powers is "imperative."[419]

What, then, is the "nature and extent of the appellate jurisdiction of the United States"? It embraces "every case ... not exclusively to be decided by way of original jurisdiction." There is nothing in the Const.i.tution to "restrain its exercise over state tribunals in the enumerated cases.... It is the case, ... and not the court, that gives the jurisdiction."[420] If the appellate power does not extend to State courts having concurrent jurisdiction of specified cases, then that power does "not extend to all, but to some, cases"--whereas the Const.i.tution declares that it extends to all other cases than those over which the Supreme Court is given original jurisdiction.[421]

With great care Story shows the "propriety" of this construction.[422]

Then, with repet.i.tiousness after the true Marshall pattern, he rea.s.serts that the Const.i.tution acts on States as well as upon individuals, and gives many instances where the "sovereignty" of the States are "restrained." State judges are not independent "in respect to the powers granted to the United States";[423] and the appellate power of the Nation extends to the State courts in cases prescribed in Section 25 of the Judiciary Act; for the Const.i.tution does not limit this power and "we dare not interpose a limitation where the people have not been disposed to create one."[424]

The case decided on the former record, says Story, is not now before the court. "The question now litigated is not upon the construction of a treaty, but upon the const.i.tutionality of a statute of the United States, which is clearly within our jurisdiction." However, "from motives of a public nature," the Supreme Court would "re-examine" the grounds of its former decision.[425] After such reexamination, extensive in length and detail, he finds the first decision of the Supreme Court to have been correct.

Story thus notices the Marshall adjustment of 1796: "If it be true (as we are informed)" that the compromise had been effected, the court could not take "judicial cognizance" of it "unless spread upon the record."

Aside from the Treaty of Peace, the Fairfax t.i.tle "was, at all events, perfect under the treaty of 1794."[426] In conclusion, Story announces: "It is the opinion of the whole court that the judgment of the Court of Appeals of Virginia, rendered on the mandate in this cause, be reversed, and the judgment of the District Court, held at Winchester, be, and the same is hereby affirmed."[427]

It has been commonly supposed that Marshall practically dictated Story's two opinions in the Fairfax-Hunter controversy, and certain writers have stated this to be the fact. As we have seen, Story himself, fifteen years afterwards, declared that the Chief Justice had "concurred in every word of the second opinion"; yet in a letter to his brother concerning the effect of Story's opinion upon another suit in the State court at Winchester, involving the same question, Marshall says: "The case of Hunter & Fairfax is very absurdly put on the treaty of 94."[428]

Justice Johnson dissented in an opinion as inept and unhappy as his dissent in Fletcher _vs._ Peck.[429] He concurs in the judgment of his brethren, but, in doing so, indulges in a stump speech in which Nationalism and State Rights are mingled in astounding fas.h.i.+on. The Supreme Court of the United States, he says, "disavows all intention to decide on the right to issue compulsory process to the state courts." To be sure, the Supreme Court is "supreme over persons and cases as far as our judicial powers extend," but it cannot a.s.sert "any compulsory control over the state tribunals." He views "this question as one ...

which may affect, in its consequences, the permanence of the American Union," since the Nation and "one of the greatest states" are in collision. The "general government must cease to exist" if the Virginia doctrine shall prevail, but "so firmly" was he "persuaded that the American people can no longer enjoy the blessings of a free government, whenever the state sovereignties shall be prostrated at the feet of the general government," that he "could borrow the language of a celebrated orator, and exclaim: 'I rejoice that Virginia has resisted.'"[430]

Nevertheless, Johnson agrees with the judgment of his a.s.sociates and, in doing so, delivers a Nationalist opinion, stronger if possible than that of Story.[431]

The public benefits and the historic importance of the decision was the a.s.sertion of the supremacy of the Supreme Court of the Nation over the highest court of any State in all cases where the National Const.i.tution, laws and treaties--"the supreme law of the land"--are involved. The decision of the Supreme Court in Martin _vs._ Hunter's Lessee went further than any previous judicial p.r.o.nouncement to establish the relation between National courts and State tribunals which now exists and will continue as long as the Republic endures.

When the news of this, the first Const.i.tutional opinion ever delivered by Story, got abroad, he was mercilessly a.s.sailed by his fellow Republicans as a "renegade."[432] Congress refused to increase the salaries of the members of the Supreme Court,[433] who found it hard to live on the compensation allowed them,[434] and Story seriously considered resigning from the bench and taking over the Baltimore practice of Mr. Pinkney, who soon was to be appointed Minister to Russia.[435] The decision aroused excitement and indignation throughout Virginia. Roane's popularity increased from the Tide Water to the Valley.[436] The Republican organization made a political issue of the judgment of the National tribunal at Was.h.i.+ngton. Judge Roane issued his orders to his political lieutenants. The party newspapers, led by the _Enquirer_, inveighed against the "usurpation" by this distant Supreme Court of the United States, a foreign power, an alien judiciary, unsympathetic with Virginia, ignorant of the needs of Virginians.

This conflict between the Supreme Court of the United States and the Court of Appeals of Virginia opened another phase of that fundamental struggle which war was to decide--a fact without knowledge of which this phase of American Const.i.tutional history is colorless.

Not yet, however, was the astute Virginia Republican triumvirate ready to unloose the lightnings of Virginia's wrath. That must be done only when the whole South should reach a proper degree of emotion. This time was not long to be delayed. Within three years Marshall's opinion in M'Culloch _vs._ Maryland was to give Roane, Ritchie, and Taylor their cue to come upon the stage as the spokesmen of Virginia and the entire South, as the champions, indeed, of Localism everywhere throughout America. Important were the parts they played in the drama of Marshall's judicial career.

FOOTNOTES:

[300] See vol. III, chap. III, of this work.

[301] This is a fair inference from the statement of Joseph Story in his autobiography: "I have ever considered the embargo a measure, which went to the utmost limit of constructive power under the Const.i.tution. It stands upon the extreme verge of the Const.i.tution, being in its very form and terms an unlimited prohibition, or suspension of foreign commerce." (Story, I, 185-86.) When it is remembered that after Story was made a.s.sociate Justice his views became identical with those of Marshall on almost every subject, it would seem likely that Story expressed the opinions of the Chief Justice as well as his own on the const.i.tutionality of the Embargo.

[302] See, for instance, the case of William Dixon _et al._ _vs._ The United States, 1 Brockenbrough, 177; United States _vs._ ----, _ib._ 195; the case of the Fortuna, _ib._ 299; the case of the Brig Caroline, _ib._ 384; Thomson and Dixon _vs._ United States (case of the Schooner Patriot), _ib._ 407.

[303] 1 Brockenbrough, 241.

[304] See Warren, 279.

[305] Story to Fay, April 24, 1814, Story, I, 261.

[306] Marshall to Story, May 27, 1819, _Proceedings, Ma.s.s. Hist. Soc._ 2d Series, XIV, 325. This was the case of the Little Charles.

[307] Same to same, July 13, 1819, _ib._ 326.

[308] Same to same, June 15, 1821, _ib._ 327; Sept. 18, 1821, _ib._ 331; Dec. 9, 1823, _ib._ 334; June 26, 1831, _ib._ 344.

[309] Same to same, July 2, 1823, _ib._ 331-33.

[310] Same to same, Oct. 15, 1830, _ib._ 342.

[311] John Ba.s.sett Moore, in his _Digest of International Law_, cites Marshall frequently and often uses pa.s.sages from his opinions. Henry Wheaton, in his _Elements of International Law_, sometimes quotes Marshall's language as part of the text.

[312] Professor John Ba.s.sett Moore, in a letter to the author, says that he considers Marshall's opinion in this case his greatest in the realm of international law.

[313] _Am. State Papers, For. Rel._ III, 384.

[314] 7 Cranch, 136.

[315] 7 Cranch, 137.

[316] _Ib._ 138-39.

[317] _Ib._ 141.

[318] 7 Cranch, 147.

[319] See John Ba.s.sett Moore in Dillon, I, 521-23.

[320] See _supra_, chap. I.

[321] 3 Wheaton, 610-44.

[322] _Ib._ 614.

[323] 3 Wheaton, 634-35.