1911 Encyclopædia Britannica/Marshall, John (jurist)
MARSHALL, JOHN (1755–1835), American jurist, chief-justice of the U.S. Supreme Court, was born on the 24th of September 1755 at Germantown (now Midland), in what four years later became Fauquier county, Virginia. He was of English descent, the son of Thomas Marshall (1732–1806) and his wife Mary Isham Keith. Marshall served first as lieutenant and after July 1778 as captain in the Continental Army during the War of Independence. He resigned his commission early in 1781; was admitted to the bar after a brief course of study, first practised in Fauquier county; and after two years began to practise in Richmond. In 1786 we find him counsel in a case of great importance, Hite v. Fairfax, involving the original title of Lord Fairfax to that large tract of country between the headwaters of the Potomac and Rappahannock, known as the northern neck of Virginia. Marshall represented tenants of Lord Fairfax and won his case. From this time, as is shown by an examination of Call’s Virginia Reports which cover the period, he maintained the leadership of the bar of Virginia. He was a member of the Virginia Assembly in 1782–1791 and again in 1795–1797; and in 1788, he took a leading part in the Virginia Convention called to act on the proposed constitution for the United States, with Madison ably urging the ratification of that instrument. In 1795 Washington offered him the attorney-generalship, and in 1796, after the retirement of James Monroe, the position of minister to France. Marshall declined both offers because his situation at the bar appeared to him “to be more independent and not less honourable than any other,” and his “preference for it was decided.” He spent the autumn and winter of 1797–1798 in France as one of the three commissioners appointed by President John Adams to adjust the differences between the young republic and the directory. The commission failed, but the course pursued by Marshall was approved in America, and with the resentment felt because of the way in which the commission had been treated in France, made him, on his return, exceedingly popular. To this popularity, as well as to the earnest advocacy of Patrick Henry, he owed his election as a Federalist to the National House of Representatives in the spring of 1799, though the feeling in Richmond was overwhelmingly in favour of the opposition or Republican party. His most notable service in Congress was his speech on the case of Thomas Nash, alias Jonathan Robbins, in which he showed that there is nothing in the constitution of the United States which prevents the Federal government from carrying out an extradition treaty. He was secretary of state under President Adams from the 6th of June 1800 to the 4th of March 1801. In the meantime he had been appointed chief-justice of the Supreme Court, his commission bearing date the 31st of January. Thus while still secretary he presided as chief-justice.
At the time of Marshall’s appointment it was generally considered that the Supreme Court was the one department of the new government which had failed in its purpose. John Jay, the first chief-justice, who had resigned in 1795, had just declined a reappointment to the chief-justiceship on the ground that he had left the bench perfectly convinced that the court would never acquire proper weight and dignity, its organization being fatally defective. The advent of the new chief-justice was marked by a change in the conduct of business in the court. Since its organization, following the prevailing English custom, the judges had pronounced their opinions seriatim. But beginning with the December term 1801, the chief-justice became practically the sole mouthpiece of the court. For eleven years the opinions are almost exclusively his, and there are few recorded dissents. The change was admirably adapted to strengthen the power and dignity of the court. The chief-justice embodied the majesty of the judicial department of the government almost as fully as the president stood for the power of the executive. That this change was acquiesced in by his associates without diminishing their goodwill towards their new chief is testimony to the persuasive force of Marshall’s personality; for his associates were not men of mediocre ability. After the advent of Mr Justice Joseph Story the practice was abandoned. Marshall, however, still delivered the opinion in the great majority of cases, and in practically all cases of any importance involving the interpretation of the Constitution. During the course of his judicial life his associates were as a rule men of learning and ability. During most of the time the majority were the appointees of Democratic presidents, and before their elevation to the bench supposed to be out of sympathy with the federalistic ideas of the chief-justice. Yet in matters pertaining to constitutional construction, they seem to have had hardly any other function than to add the weight of their silent concurrence to the decision of their great chief. Thus the task of expounding the constitution during the most critical period of its history was his, and it was given to him to preside over the Supreme Court when it was called upon to decide four cases of vital importance: Marbury v. Madison, M‘Culloch v. Maryland, Cohens v. Virginia and Gibbons v. Ogden. In each of these cases it is Marshall who writes the opinion of the court; in each the continued existence of the peculiar Federal system established by the Constitution depended on the action of the court, and in each the court adopted a principle which is now generally perceived to be essential to the preservation of the United States as a federal state.
In Marbury v. Madison, which was decided two years after his elevation to the bench, he decided that it was the duty of the court to disregard any act of Congress, and, therefore, a fortiori any act of a legislature of one of the states, which the court thought contrary to the Federal Constitution.
In Cohens v. Virginia, in spite of the contention of Jefferson and the then prevalent school of political thought that it was contrary to the Constitution for a person to bring one of the states of the United States, though only as an appellee, into a court of justice, he held that Congress could lawfully pass an act which permitted a person who was convicted in a state court, to appeal to the Supreme Court of the United States, if he alleged that the state act under which he was convicted conflicted with the Federal Constitution or with an act of Congress.
In M‘Culloch v. Maryland, though admitting that the Federal government is one of delegated powers and cannot exercise any power not expressly given in the Constitution, he laid down the rule that Congress in the exercise of a delegated power has a wide latitude in the choice of means, not being confined in its choice of means to those which must be used if the power is to be exercised at all.
Lastly, in Gibbons v. Ogden, he held that when the power to regulate interstate and foreign commerce was conferred by the Constitution on the Federal government, the word “commerce” included not only the exchange of commodities, but the means by which interstate and foreign intercourse was carried on, and therefore that Congress had the power to license vessels to carry goods and passengers between the states, and an act of one of the states making a regulation which interfered with such regulation of Congress was, pro tanto, of no effect. It will be seen that in the first two cases he established the Supreme Court as the final interpreter of the Constitution.
The decision in M‘Culloch v. Maryland, by leaving Congress unhampered in the choice of means to execute its delegated powers, made it possible for the Federal government to accomplish the ends of its existence. “Let the end be legitimate,” said Marshall in the course of its opinion, “let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.”
If the decision in M‘Culloch v. Maryland gave vigour to all Federal power, the decision in Gibbons v. Ogden, by giving the Federal government control over the means by which interstate and foreign commerce is carried on, preserved the material prosperity of the country. The decision recognizes what the framers of the Constitution recognized, namely that the United States is an economic union, and that business which is national should be under national, not state, control.
Though for the reasons stated, the four cases mentioned are the most important of his decisions, the value of his work as an expounder of the Constitution of the United States is not to be measured by these cases alone. In all he decided forty-four cases involving constitutional questions. Nearly every important part of the Constitution of the United States as it existed before the amendments which were adopted after the Civil War, is treated in one or more of them. The Constitution in its most important aspects is the Constitution as he interpreted it. He did not work out completely the position of the states in the Federal system, but he did grasp and establish the position of the Federal legislature and the Federal judiciary. To appreciate his work, however, it is necessary to see that it was the work not of a statesman but of a judge. Had Marshall been merely a far-seeing statesman, while most of his important cases would have been decided as he decided them, his life-work would have been a failure. It was not only necessary that he should decide great constitutional questions properly, but also that the people of the United States should be convinced of the correctness of his interpretation of the Constitution. His opinions, therefore, had to carry to those who studied them a conviction that the constitution as written had been interpreted according to its evident meaning. They fulfilled this prime requisite. Their chief characteristic is the cumulative force of the argument. The ground for the premiss is carefully prepared, the premiss itself is clearly stated; nearly every possible objection is examined and answered; and then comes the conclusion. There is little or no repetition, but there is a wealth of illustration, a completeness of analysis, that convinces the reader, not only that the subject has been adequately treated, but that it has been exhausted. His style, reflecting his character, suits perfectly the subject matter. Simple in the best sense of the word, his intellectual processes were so clear that he never doubted the correctness of the conclusion to which they led him. Apparently from his own point of view, he merely indicated the question at issue, and the inexorable rules of logic did the rest. Thus his opinions are simple, clear, dignified. Intensely interesting, the interest is in the argument, not in its expression. He had, in a wonderful degree, the power of phrase. He expressed important principles of law in language which tersely yet clearly conveyed his exact meaning. Not only is the Constitution interpreted largely as he taught the people of the United States to interpret it, but when they wish to express important constitutional principles which he enunciated they use his exact words. Again, his opinions show that he adhered closely to the words of the Constitution; indeed no one who has attempted to expound that instrument has confined himself more strictly to an examination of the text. In the proper, though not in the historical, sense he was the strictest of strict constructionalists, and as a result his opinions are practically devoid of theories of government, sovereignty and the rights of man.
A single illustration of his avoidance of all theory and his adherence to the words of the Constitution will suffice. In the case of the United States v. Fisher the constitutional question involved was the power of Congress to give to the United States a preference over all other creditors in the distribution of the assets of a bankrupt. Such an act can be upheld on the ground that all governments have necessarily the right to give themselves priority. Not so Marshall. To him the act must be supported, if supported at all, not on any theory of the innate nature of the government, national or otherwise, but as a reasonable means of carrying out one of the express powers conferred by the Constitution on the Federal government. Thus, he upholds the act in question because of the power expressly conferred on the Federal government to pay the debts of the union, and as a necessary consequence of this power the right to make remittances by bills or otherwise and to take precautions which will render the transactions safe.
It is important to emphasize the fact that Marshall adhered in his opinions to the Constitution as written, not only because it is a fact which must be recognized if we are to understand the correct value of his work in the field of constitutional law, but also because there exists to-day a popular impression that by implication he stretched to the utmost the powers of the Federal government. This impression is due primarily to the ignorance of many of those who have undertaken to praise him. During his life he was charged by followers of the States Rights School of political thought with upholding Federal power in cases not warranted by the constitution. Later, however, those who admired a strong national government, without taking the trouble to ascertain whether the old criticism by members of the States Rights Party was just, regarded the assumption on which it was founded as Marshall’s best claim to his country’s gratitude.
As a constitutional lawyer, Marshall stands without a rival. His work on international law and admiralty is of first rank. But though a good, he was not a great, common law or equity lawyer. In these fields he did not make new law nor clarify what was obscure, and his constitutional opinions which to-day are found least satisfactory are those in which the question to be solved necessarily involves the discussion of some common-law conception, especially those cases in which he was required to construe the restriction imposed by the Constitution on any state impairing the obligation of contracts. His decision in the celebrated case of Dartmouth College v. Woodward, in which he held that a state could not repeal a charter of a private corporation, because a charter is a contract which a subsequent act of the state repealing the charter impairs, though of great economic importance, does not touch any fundamental question of constitutional law. The argument which he advances lacks the clearness and finality for which most of his opinions are celebrated. It is not certain with whom he thought the contract was made: with the corporation created by the charter, with the trustees of the corporation, or with those who had contributed money to its objects.
Of the wonderful persuasive force of Marshall’s personality there is abundant evidence. His influence over his associates, already referred to, is but one example though a most impressive one. From the moment he delivered the opinion in Marbury v. Madison the legal profession knew that he was a great judge. Each year added to his reputation and made for a better appreciation of his intellectual and moral qualities. The bar of the Supreme Court during his chief-justiceship was the most brilliant which the United States has ever known. Leaders, not only of legal, but political thought were among its members; one, Webster, was a man of genius and commanding position. To a very great degree Marshall impressed on the members of this bar and on the profession generally his own ideas of the correct interpretation of the Constitution and his own love for the union. He did this, not merely by his arguments but by the influence which was his by right of his strong, sweet nature. Statesmen and politicians, great and small, were at this time, almost without exception, members of the bar. To influence the political thought of the bar was to a great extent to influence the political thought of the people.
In 1782 he married Mary Willis Ambler, the daughter of the then treasurer of Virginia. They had ten children, six of whom grew to full age. For the greater part of the forty-eight years of their married life Mrs Marshall suffered intensely from a nervous affliction. Her condition called out the love and sympathy of her husband’s deep and affectionate nature. Judge Story tells us: “That which, in a just sense, was his highest glory, was the purity, affectionateness, liberality and devotedness of his domestic life.” For the first thirty years of his chief-justiceship his life was a singularly happy one. He never had to remain in Washington for more than three months. During the rest of the year, with the exception of a visit to Raleigh, which his duties as circuit judge required him to make, and a visit to his old home in Fauquier county, he lived in Richmond. His house on Shockhoe Hill is still standing.
On Christmas Day 1831 his wife died. He never was quite the same again. On returning from Washington in the spring of 1835 he suffered severe contusions, from an accident to the stage coach in which he was riding. His health, which had not been good, now rapidly declined and in June he returned to Philadelphia for medical attendance. There he died on the 6th of July. His body, which was taken to Richmond, lies in Shockhoe Hill Cemetery under a plain marble slab, on which is a simple inscription written by himself. In addition to his decisions Marshall wrote a famous biography of George Washington (5 vols., 1804–1807; 2nd ed., 2 vols., 1832), which though prepared hastily contains much material of value.
The principal sources of information are: an essay by James B. Thayer (Boston and New York, 1904); Great American Lawyers (Philadelphia, 1908), ii. 313–408, an essay by Wm. Draper Lewis; and Allan B. Magruder, John Marshall (Boston, 1885), in the “American Statesmen Series.” The addresses delivered on Marshall Day, the 4th of February 1901, are collected by John F. Dillon (Chicago, 1903). In the “Appendix” to Dillon’s collection will be found the “Discourse” by Joseph Story and the “Eulogy” by Horace Binney, both delivered soon after Marshall’s death. For a study of Marshall’s decisions, the Constitutional Decisions of John Marshall, edited by Joseph P. Collon, Jr. (New York and London, 1905), is of value. (W. D. L.)