John Marshall and the Constitution

ent Of The Nat

rpose, every soldier panoplied with inviolability and armed with the tremendous weapons which slew the soul," the same words, slightly varied, may be applied to the Federal Judiciary created by the American Constitution. The Judiciary of the United States, though numerically not a large body, reaches through its process every part of the nation; its ascendancy is primarily a moral one; it is kept in co

before the triumph of their respective causes and amid circumstances of great discouragement. Both worked through and for great institutions which preceded them and which have survived them. And, as the achievements of Hildebrand cannot be justly appreciated without some knowledge of the ecclesiastical system which he did so much to develop, neither can the career of

rhaps, Congress had the right to coerce the States to perform their duties; at any rate, a Congressional Committee headed by Madison so decided at the very moment (1781) when the Articles were going into effect. But practically such a course of coercion, requiring in the end the exercise of military power, was out of the question. Whence were to come the forces for military operations against recalcitrant State

ls, the old Court of Appeals in Cases of Capture. Thus at the very outset, and at a time when the doctrine of state sovereignty was dominant, the practice of appeals from state courts to a supreme national tribunal was employed, albeit within a restricted sphere. Yet it is less easy to admit that the Court of Appeals was, as has been contended by one distinguished authority, "not simply the predecessor but one of the origins of the Supreme Court of the United States." The Supreme Court is the creation of the

tion is, shall it be a coercion of law or a coercion of arms? There is no other possible alternative. Where will those who oppose a coercion of law come out? ... A necessary consequence of their principles is a war of the States one against the other. I am for coercion by law, that coercion which acts only upon delinquent individuals." If anything, these words somewhat exaggerate the immunity

ncipal judges dependent upon their good behavior, though in some cases judges were removable, as in England, upon the joint address of the two Houses of the Legislature. That the Federal judges should be similarly removable by the President upon the application of the Senate a

sed as national courts of the first instance and argued that a right of appeal to the supreme national tribunal would be quite sufficient "to secure the national rights and uniformity of judgment." But Madison pointed out that such an arrangement would cause appeals to be multiplied most oppressively and that, furthermore, it would provide no remedy for improper verdicts resulting from local prejudices. A compromise was reached by leaving the question to the discretion of Congress

s still at best in 1787 but the germ of a possible institution. It is not surprising, therefore, that no such doctrine found place in the resolutions of the Virginia plan which came before the Convention. By the sixth resolution of this plan the national legislature was to have the power of negativing all state laws which, in its opinion, contravened "the Articles of Union, or any trea

is supreme law, with which ordinary legislation must be in harmony to be valid; and thirdly-a principle deducible from the doctrine of the separation of powers-that, while the function of making new law belongs to the legislative branch of the Government, that of expounding the

thstanding." The motion was agreed to without a dissenting voice and, with some slight changes, became Article VIII of the report of the Committee of Detail of the 7th of August, which in turn became "the linch-pin of the Constitution." 1 Then, on the 27th of August, it was agreed that "the jurisdiction of the Supreme Court" should "extend to all cases arising under the laws passed by the Legislature of the United States," whether, that is, such laws should be in pursuance of the Constitution or not. The foundation was thus laid for the S

e VI, pa

from time to time ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices during good behav

mbassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States, between a State and cit

ality of acts of Congress. The available evidence strictly contemporaneous with the framing and ratification of the Constitution shows us seventeen of the fifty-five members of the Convention asserting the existence of this prerogative in unmistakable terms and only three using language that can be construed to the contrary. More striking than that, however, is the fact that these seventeen names include fully

Records of the Federal Convention occupy fully thirty columns, as compared

ed States is defined and organized, and no part has shown itself to be more adaptable to the developing needs of a growing nation. Nor is the

ution or the laws of the United States? Here, too, are questions which are left for Congress in the first instance and for the Supreme Court in the last. Further, the Supreme Court is given "original jurisdiction" in certain specified cases and "appellate jurisdiction" in all others-subject, however, to "such exceptions and under such regulations as the Congress shall make." Finally, the whole question

I, section

e judiciary of the United States." This committee consisted of eight members, five of whom, including Oliver Ellsworth, its chairman, had been members of the Federal Convention. To El

ies, original jurisdiction of which was assigned to the District Courts; secondly, controversies between citizens of different States 1; lastly, cases brought originally under a state law and in a State Court but finally coming to involve some claim of right based on the National Constitution, laws, or treaties. For these the twenty-fifth section of the Act provided that, where the decision of the highest State Court competent under the state law to pass upon the case was

to these in the interest of providing an impart

usetts, John Blair of Virginia, James Wilson of Pennsylvania, and James Iredell of North Carolina as Associate Justices. All were known to be champions of the Constitution, three had been members of the Federal Convention, four had held high judicial offices in their home States,

occupied in what one of them described as their "post-boy duties," that is, in riding their circuits. At first the justices rode in pairs and were assigned to particular circuits. As a result of this practice, the Southern justices were forced each year to make two trips of nearly two thousand miles each and, in order to hold court for two weeks, often passed two months on the road. In 1792, however, Congress changed

four-wheeled phaeton, drawn by a pair of horses, which he drove. It was remarkable for its many ingenious arrangements (all of his contrivance) for carrying books, choice groceries, and other comforts. Mrs. Cushing always accompanied him, and generally read aloud while riding. His faithful servant

s of the Chief-Justices of the

States are not sovereign" remained untouched; and three years later the Court affirmed the supremacy of national treaties over conflicting state laws and so established a precedent which has never been disturbed. 2 Meantime the Supreme Court was advancing, though with notable caution, toward an assertion of the right to pass upon the constitutionality of acts of Congress. Thus in 1792, Congress ordered the judges while on circuit to pass upon pension claims, their determinations to be reviewable by the Secretary of the Treasury. In protests which they filed with the President, the judges stated the dilemma which confronted them: either the new duty was a judicial one or it was not; if the latter, they could not perform it, at least not in their capa

allas

Hylton, 3

2 Dall

nited States,

ngland. His successor, Oliver Ellsworth, also suffered from ill health, and he too was finally sacrificed on the diplomatic altar by being sent to France in 1799. During the same interval there were also several resignations among the associate justices. So, what with its shifting personnel, the lack of business, and the brief semiannual terms, the Court secured only a feeble hold on the imagination of the country. It may be thought, no doubt, that judg

most aggravated forms. Between 1790 and 1800 there were two serious uprisings against the new Government: the Whisky Rebellion of 1794 and Fries's Rebellion five years later. During the same period the popular ferment caused by the French Revolution was at its height. Entrusted with the execution of the laws, the young Judiciary "

r censorship of acts of Congress with the approval of even the Jeffersonian opposition. Instead, they enforced the Sedition Act, often with gratuitous rigor, while some of them even entertained prosecutions under a supposed Common Law of the United States. The immediate sequel to their action

tate Documents on Feder

, and six Circuit Courts were created which furnished places for sixteen more new judges. When John Adams, the retiring President, proceeded with the aid of the Federalist majority in the Senate and of his Secretary of State, John Marshall, to fill up the new posts with the so-called "midnight judges," 1 the rage and consternation of the Republican leaders broke all bounds. The Federal Judiciary, declared John Randolph, had become "an hospital of decayed politicians." Others pictured the country as reduced, und

sed to have taken place as late as midnight, or later, of Mar

were essential to its affording due support to the National Government, nor acquire the public confidence and respect which, as the last resort of the justice of the nation, it should possess." Adams now bethought himself of his Secretary of State and, without previ