The Life of John Marshall
Chapter 147 : Furthermore, from the organization of the Supreme Court to that moment, the bench and

Furthermore, from the organization of the Supreme Court to that moment, the bench and bar had accepted it, and the Justices of the Supreme Court, sitting with National district judges, had recognized its authority when called upon to take action in a particular controversy brought directly under it.[364] The Supreme Court itself had held that it had jurisdiction, under Section 13, to issue a mandamus in a proper case,[365] and had granted a writ of prohibition by authority of the same section.[366] In two other cases this section had come before the Supreme Court, and no one had even intimated that it was unconst.i.tutional.[367]

When, to his great disgust, Marshall was forced to sit as a circuit judge at Richmond in the winter of 1802, a case came before him that involved both the validity of the Republican Repeal Act and also the const.i.tutionality of that provision of the Ellsworth Judiciary Law requiring justices of the Supreme Court to sit as circuit judges. This was the case of Stuart _vs._ Laird. Marshall held merely that the plea which raised these questions was insufficient, and the case was taken to the Supreme Court on a writ of error. After extended argument Justice Paterson delivered the opinion of the court, Marshall declining to partic.i.p.ate in the decision because he had "tried the cause in the court below."[368]

At the same term, then, at which Marbury _vs._ Madison was decided, and immediately after Marshall's opinion in that case was delivered, all the justices of the Supreme Court except the Chief Justice, held "that practice and acquiescence under it [the Judiciary Act of 1789] for a period of several years, commencing with the organization of the judicial system ... has fixed the construction. It is a contemporary interpretation of the most forcible nature. This practical exposition is too strong and obstinate to be shaken or controlled. Of course, the question is at rest, and ought not now to be disturbed."[369]

But the exigency disclosed in this chapter required immediate action, notwithstanding the obstacles above set forth. The issue raised by the Republicans--the free hand of Congress, unrestrained by courts--must be settled at that time or be abandoned perhaps forever. The fundamental consideration involved must have a prompt, firm, and, if possible, final answer. Were such an answer not then given, it was not certain that it could ever be made. As it turned out, but for Marbury _vs._ Madison, the power of the Supreme Court to annul acts of Congress probably would not have been insisted upon thereafter. For, during the thirty-two years that Marshall remained on the Supreme Bench after the decision of that case, and for twenty years after his death, no case came before the court where an act of Congress was overthrown; and none had been invalidated from the adoption of the Const.i.tution to the day when Marshall delivered his epochal opinion. So that, as a matter of historical significance, had he not then taken this stand, nearly seventy years would have pa.s.sed without any question arising as to the omnipotence of Congress.[370] After so long a period of judicial acquiescence in Congressional supremacy it seems likely that opposition to it would have been futile.

For the reasons stated, Marshall resolved to take that step which, for courage, statesmanlike foresight, and, indeed, for perfectly calculated audacity, has few parallels in judicial history. In order to a.s.sert that in the Judiciary rested the exclusive power[371] to declare any statute unconst.i.tutional, and to announce that the Supreme Court was the ultimate arbiter as to what is and what is not law under the Const.i.tution, Marshall determined to annul Section 13 of the Ellsworth Judiciary Act of 1789. In taking such a step the Chief Justice made up his mind that he would sum up in final and conclusive form the reasoning that sustained that principle.

Marshall resolved to go still further. He would announce from the Supreme Bench rules of procedure which the Executive branch of the Government must observe. This was indispensable, he correctly thought, if the departments were to be harmonious branches of a single and National Government, rather than warring factions whose dissensions must in the end paralyze the administration of the Nation's affairs.[372]

It was not, then, Marshall's declaring an act of Congress to be unconst.i.tutional that was innovating or revolutionary. The extraordinary thing was the pretext he devised for rendering that opinion--a pretext which, it cannot be too often recalled, had been unheard of and unsuspected hitherto. Nothing but the emergency compelling the insistence, at this particular time, that the Supreme Court has such a power, can fully and satisfactorily explain the action of Marshall in holding this section void.

In his opinion the Chief Justice spoke of "the peculiar delicacy of this case, the novelty of some of its circ.u.mstances, and the real difficulty attending the points which occur in it."[373] He would follow, he said, the points of counsel in the order in which they had been made.[374] Did the applicants have a right to the commissions? This depended, he said, on whether Marbury had been appointed to office. If so, he was ent.i.tled to the commission which was merely the formal evidence of the appointment. The President had nominated him to the Senate, the Senate had confirmed the nomination, the President had signed the commission, and, in the manner directed by act of Congress, the Secretary of State had affixed to it the seal of the United States.[375]

The President could not recall his appointment if "the officer is not removable." Delivery of the commission was not necessary to the consummation of the appointment which had already been effected; otherwise "negligence, ... fraud, fire or theft, might deprive an individual of his office." But the truth was that "a copy from the record ... would be, to every intent and purpose, equal to the original."[376] The appointment of Marbury "vested in the officer legal rights ... of his country," and "to withhold his commission is an act ... not warranted by law, but violative of a vested legal right....[377]

"The very essence of civil liberty," continues Marshall, "certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection." Ours has been "emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right....[378]

"The act of delivering or withholding a commission" is not "a mere political act, belonging to the executive department alone," but a ministerial act, the performance of which is directed by statute.

Congress had ordered the Secretary of War to place the names of certain persons on the pension rolls; suppose that he should refuse to do so?

"Would the wounded veteran be without remedy?... Is it to be contended that the heads of departments are not amenable to the laws of their country?"[379]

Would any person whatever attempt to maintain that a purchaser of public lands could be deprived of his property because a Secretary of State withheld his patent?[380] To be sure, the President had certain political powers and could appoint agents to aid him in the exercise of them. The courts had no authority to interfere in this sphere of Executive action. For example, the conduct of foreign affairs by the Secretary of State, as the representative of the President, can never be examinable by the courts. But the delivery of a commission to an office or a patent to land was a different matter.

When Congress by statute peremptorily directs the Secretary of State or any other officer to perform specific duties on which "the rights of individuals are dependent ... he cannot at his discretion sport away the vested rights of others." If he attempts to do so he is answerable to the courts. "The question whether a right has vested or not, is, in its nature, judicial, and must be tried by the judicial authority." The court therefore was empowered to decide the point; and held that Madison's refusal to deliver Marbury's commission was "a plain violation of that right, for which the laws of his country afford him a remedy."[381]

But was this remedy the writ of mandamus for which Marbury had applied?

It was, said Marshall; but could such an order be directed to the Secretary of State? This was a task "peculiarly irksome, as well as delicate,"[382] for, he observed, there were those who would at first consider it "as an attempt to intrude into the cabinet, and to intermeddle with the prerogatives of the executive." Far be it from John Marshall to do such a thing. He need hardly "disclaim all pretensions to such jurisdiction." Not "for a moment" would he entertain "an extravagance so absurd and excessive.... Questions in their nature political, ... can never be made in this court." But if the case before him presented only questions concerning legal rights of an individual, "what is there in the exalted station" of the Secretary of State which "exempts him from ... being compelled to obey the judgment of the law"?

The only remaining question, therefore, was whether a mandamus could issue from the Supreme Court.[383]

In such manner Marshall finally arrived at the examination of the const.i.tutionality of Section 13, which, he said, fitted the present case "precisely"; and "if this court is not authorized to issue a writ of mandamus" to Madison, "it must be because the law is unconst.i.tutional, and therefore absolutely incapable of conferring the authority."[384] In reaching this point Marshall employs almost seven thousand words.

Fifteen hundred more words are used before he takes up the principle of judicial supremacy over legislation.

The fundamental law of the Nation, Marshall explained, expressly defined the original jurisdiction of the Supreme Court and carefully limited its authority. It could take original cognizance only of specific cases. In all others, the court was given nothing but "appellate jurisdiction."

But he omitted the words that immediately follow in the same sentence--"with such exceptions ... as the Congress shall make." Yet this language had, for fourteen years, apparently been considered by the whole bench and bar as meaning, among other things, that while Congress could _not take from_ the Supreme Court original jurisdiction in the cases specifically named in Article Three of the Const.i.tution, Congress _could add_ other cases to the original jurisdiction of the Supreme Court.

Marshall was quite conscious of all this, it would seem. In the argument, counsel had insisted that since "the clause, a.s.signing original jurisdiction to the Supreme Court, contains no negative or restrictive words, the power remains to the legislature, to a.s.sign original jurisdiction to that court in other cases than those specified."[385] But, reasons Marshall, in answer to this contention, if Congress could thus enlarge the original jurisdiction of the Supreme Court, "the subsequent part of the section[386] is mere surplusage, is entirely without meaning, ... is form without substance.... Affirmative words are often ... negative of other objects than those affirmed; and in this case, a negative or exclusive sense must be given to them, _or they have no operation at all_."[387]

That is to say, when the Const.i.tution conferred upon the Supreme Court original jurisdiction in specified cases, it thereby excluded all others--denied to Congress the power to add to the jurisdiction thus affirmatively granted. And yet, let it be repeated, by giving original jurisdiction in cases specifically named, the Const.i.tution put it beyond the power of Congress to interfere with the Supreme Court in those cases; but Marshall a.s.serted that the specific grant of jurisdiction has "_no operation at all_" unless "a negative or exclusive sense" be given it.[388]

Marshall boldly held, therefore, that Section 13 of the Ellsworth Judiciary Act was "not warranted by the Const.i.tution." Such being the case, ought the Supreme Court to act under this unconst.i.tutional section? As the Chief Justice stated the question, could "an act, repugnant to the const.i.tution ... become the law of the land"? After writing nearly nine thousand words, he now reached the commanding question: Can the Supreme Court of the United States invalidate an act which Congress has pa.s.sed and the President has approved?

Marshall avowed that the Supreme Court can and must do that very thing, and in so doing made Marbury _vs._ Madison historic. In this, the vital part of his opinion, the Chief Justice is direct, clear, simple, and convincing. The people, he said, have an elemental right to establish such principles for "their future government, as ... shall most conduce to their own happiness." This was "the basis on which the whole American fabric had been erected." These "permanent" and "fundamental"

principles, in the instance of the American Government, were those limiting the powers of the various departments: "That those limits may not be mistaken, or forgotten, the const.i.tution is written. To what purpose are powers limited ... if these limits may, at any time, be pa.s.sed by those intended to be restrained?"[389]

If Congress or any other department of the Government can ignore the limitations of the Const.i.tution, all distinction between government of "limited and unlimited powers" is done away with. To say that "acts prohibited and acts allowed are of equal obligation" is to deny the very purpose for which our fundamental law was adopted. "The const.i.tution controls any legislative act repugnant to it." Congress cannot alter it by legislation.[390] All this, said Marshall, was too clear to admit of discussion, but he proceeded, nevertheless, to discuss the subject at great length.

There is "no middle ground." The Const.i.tution is either "a superior paramount law" not to be changed by legislative enactment, or else "it is on a level with the ordinary legislative acts" and, as such, "alterable" at the will of Congress. If the Const.i.tution is supreme, then an act of Congress violative of it is not law; if the Const.i.tution is not supreme, then "written const.i.tutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable."

Three times in a short s.p.a.ce Marshall insists that, for Congress to ignore the limitations which the Const.i.tution places upon it, is to deny the whole theory of government under written const.i.tutions.

Although the contention that the Judiciary must consider unconst.i.tutional legislation to be valid was "an absurdity too gross to be insisted on," Marshall would, nevertheless, patiently examine it.[391] This he did by reasoning so simple and so logical that the dullest citizen could not fail to understand it nor the most astute intellect escape it. But in the process he was tiresomely repet.i.tious, though not to so irritating an extent as he at times became.

If two laws conflict, the courts must decide between them. Where the Const.i.tution and an act of Congress apply to a case, "the court must determine which ... governs [it]. This is of the very essence of judicial duty.... If, then, ... the const.i.tution is superior to any ordinary act of the legislature," the Judiciary must prefer it to a mere statute. Otherwise "courts must close their eyes on the const.i.tution,"

and see only the legislative enactment.[392]

But to do this "would subvert the very foundation of all written const.i.tutions." It would be to "declare that an act which ... is entirely void, is yet ... completely obligatory," and that Congress may do "what is expressly forbidden." This would give to the legislature "a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits." It would be "prescribing limits, and declaring that those limits may be pa.s.sed at pleasure." This "reduces to nothing" both the letter and the theory of the Const.i.tution.

That instrument expressly extends the judicial power to cases "arising under the const.i.tution." Must the courts decide such a case "without examining the instrument under which it arises?" If the courts must look into the Const.i.tution at all, as a.s.suredly they must do in some cases, "what part of it are they forbidden to read or to obey?"

Marshall cites hypothetical examples of legislation in direct conflict with the fundamental law. Suppose that Congress should place an export duty on cotton, tobacco, flour, and that the Government should bring suit to recover the tax. "Ought judgment to be rendered in such a case?"

Or if a bill of attainder should be pa.s.sed and citizens prosecuted under it, "must the court condemn to death those victims whom the const.i.tution endeavors to preserve?"

Take, for example, the crime of treason: the Const.i.tution emphatically prescribes that n.o.body can be convicted of this offense "unless on the testimony of two witnesses to the same overt act, or on confession in open court." The Judiciary particularly are addressed--"it prescribes, directly for them, a rule of evidence not to be departed from." Suppose that Congress should enact a law providing that a citizen might be convicted of treason upon the testimony of one witness or by a confession out of court? Which must the court obey--the Const.i.tution or the act altering that instrument?

Did not these ill.u.s.trations and many others that might be given prove that the Const.i.tution must govern courts as well as Congress? If not, why does the Const.i.tution require judges "to take an oath to support it"? That solemn obligation "applies in an especial manner to their conduct in their official character." How "immoral" to direct them to take this oath "if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!" Such contradictions and confusions would make the ceremony of taking the oath of judicial office "a solemn mockery" and even "a crime."

There is, then, said Marshall, no escape from the conclusion "that a law repugnant to the const.i.tution is void," and that the judicial as well as other departments are bound by the Const.i.tution.[393] The application of Marbury and others must therefore be dismissed.

Thus, by a coup as bold in design and as daring in execution as that by which the Const.i.tution had been framed,[394] John Marshall set up a landmark in American history so high that all the future could take bearings from it, so enduring that all the shocks the Nation was to endure could not overturn it. Such a decision was a great event in American history. State courts, as well as National tribunals, thereafter fearlessly applied the principle that Marshall announced, and the supremacy of written const.i.tutions over legislative acts was firmly established.

This principle is wholly and exclusively American. It is America's original contribution to the science of law.[395] The a.s.sertion of it, under the conditions related in this chapter, was the deed of a great man. One of narrower vision and smaller courage never would have done what Marshall did. In his management and decision of this case, at the time and under the circ.u.mstances, Marshall's acts and words were those of a statesman of the first rank.

His opinion gave fresh strength to the purpose of the Republican leaders to subdue the Federalist Judiciary. It furnished Jefferson and his radical followers a new and concrete reason for ousting from the National Bench, and especially from the Supreme Court, all judges who would thus override the will of Congress. Against himself, in particular, Marshall had newly whetted the edge of Republican wrath, already over-keen.

The trial of John Pickering, Judge of the United States Court for the District of New Hamps.h.i.+re, brought by the House before the bar of the Senate, was now pushed with cold venomousness to what Henry Adams calls "an infamous and certainly an illegal conviction"; and then Marshall's a.s.sociate on the Supreme Bench, Justice Samuel Chase, was quickly impeached for high crimes and misdemeanors. If the Republican organization could force from its partisans in the Senate a verdict of "guilty" in Chase's case also, Marshall's official head would be the next to fall.[396]

Concerning Marshall's a.s.sertion of the power of the National Judiciary to annul acts of Congress and to direct administrative officers in the discharge of their legal duties, Jefferson himself said nothing at the time. But the opinion of the Chief Justice was another ingredient thrown into the caldron of Jefferson's heart, where a hatred was brewed that poisoned the great politician to his latest day.

Many months after the decision in the Marbury case, Jefferson first broke his silence. "Nothing in the Const.i.tution has given them [the Supreme Court] a right to decide for the Executive, more than to the Executive to decide for them," he wrote. "The opinion which gives to the judges the right to decide what laws are const.i.tutional, and what not, not only for themselves in their own sphere of action, but for the Legislature & Executive also, in their spheres, would make the judiciary a despotic branch."[397]

Again, during the trial of Aaron Burr,[398] Jefferson denounced Marshall for his opinion in Marbury _vs._ Madison; and toward the close of his life he returned again and again with corroding words to the subject regarding which, at the moment it arose, he concealed, so far as written words were concerned, his virulent resentment. For instance, seventeen years later Jefferson wrote that "to consider the judges as the ultimate arbiters of all const.i.tutional questions ... would place us under the despotism of an oligarchy."[399]

But for the time being, Jefferson was quiescent. His subtle mind knew how, in political controversies, to control his tongue and pen. It could do no good for him, personally, to make an outcry now; and it might do harm. The doctrine which Marshall announced had, Jefferson knew, a strong hold on all Federalists, and, indeed, on many Northern Republicans; the bar, especially, upheld it generally.

The Presidential campaign was drawing near, and for the President openly to attack Marshall's position would create a political issue which could win none to the Republican cause not already fighting for it, and might keep recruits from joining the Republican colors. Jefferson was infinitely concerned about his reelection and was giving practical attention to the strengthening of his party for the approaching contest.

"I am decidedly in favor of making all the banks Republican, by sharing deposits among them in proportion to the [political] dispositions they show," he wrote to his Secretary of the Treasury three months after Marshall's bold a.s.sertion of the dignity and power of the National courts. "It is," he continued, "material to the safety of Republicanism to detach the mercantile interests from its enemies and incorporate them into the body of its friends."[400]

Furthermore, Jefferson was, at that particular moment, profoundly troubled by intimate personal matters and vast National complications.

He had been trying, unsuccessfully, to adjust our dispute with France; the radical West was becoming clamorous for a forward and even a militant policy concerning the control of the Mississippi River, and especially of New Orleans, which commanded the mouth of that commercial waterway; while the Federalists, insisting upon bold measures, had a fair prospect of winning from Jefferson's support those aggressive and predatory frontiersmen who, until now, had stanchly upheld the Republican standard.

Spain had ceded Louisiana to France upon the condition that the territory never should be transferred to any other government; but neither New Orleans nor any part of Louisiana had actually been surrendered by the Spanish authorities. Great Britain informed the American Government that she would not consent to the occupation by the French of any part of Spain's possessions on the American continent.

Hating and distrusting the British, but also in terror of Napoleon, Jefferson, who was as weak in the conduct of foreign affairs as he was dexterous in the management of political parties, thought to escape the predicament by purchasing the island of Orleans and perhaps a strip on the east side of the Mississippi River.[401]

A series of events swiftly followed the decision of Marbury _vs._ Madison which enthralled the eager attention of the whole people and changed the destiny of the Republic. Three months after Marshall delivered his opinion, Napoleon, yielding to "the empire of circ.u.mstances," as Talleyrand phrased it,[402] offered, and Livingston and Monroe accepted, the whole of Louisiana for less than fifteen million dollars. Of course France had no t.i.tle to sell--Louisiana was still legally owned and actually occupied by Spain. The United States bought nothing more than a pretension; and, by force of propinquity and power, made it a fact.[403]