If a judge becomes odious to the people, let him be removed. (William Branch Giles.)Our wisest friends look with gloom to the future. (Joseph Story.)I have always thought, from my earliest youth till now, that the greatest scourge an angry Heaven ever inflicted upon an ungrateful and a sinning people, was an ignorant, a corrupt, or a dependent judiciary. (Marshall.)
If a judge becomes odious to the people, let him be removed. (William Branch Giles.)
Our wisest friends look with gloom to the future. (Joseph Story.)
I have always thought, from my earliest youth till now, that the greatest scourge an angry Heaven ever inflicted upon an ungrateful and a sinning people, was an ignorant, a corrupt, or a dependent judiciary. (Marshall.)
"I was in a very great crowd the other evening at MrsAdams' drawing room, but I see very few persons there whom I know & fewer still in whom I take any interest. A person as old as I am feels that his home is his place of most comfort, and his old wife the companion in the world in whose society he is most happy.
"I dined yesterday with Mr. Randolph. He is absorbed in the party politics of the day & seems as much engaged in them as he was twenty five years past. It is very different with me. I long to leave this busy bustling scene & to return to the tranquility of my family & farm. Farewell my dearest Polly. That Heaven may bless you is the unceasing prayer of your ever affectionate
"J. Marshall."[1269]
This letter to his ageing and afflicted wife, written in his seventy-second year, reveals Marshall's state of mind as he entered the final decade of his life. While the last of his history-making and nation-building opinions had been delivered, the years still beforehim were to be crowded with labor as arduous and scenes as picturesque as any during his career on the Bench. It was to be a period of disappointment and grief, but also of that supreme reward for sound and enduring work which comes from recognition of the general and lasting benefit of that work and of the greatness of mind and nobility of character of him who performed it.
For twenty years the Chief Justice had not voted. The last ballot he had cast was against the reëlection of Jefferson in 1804. From that time forward until 1828, he had kept away from the polls. In the latter year he probably voted for John Quincy Adams, or rather against Andrew Jackson, who, as Marshall thought, typified the recrudescence of that unbridled democratic spirit which he so increasingly feared and distrusted.[1270]
JOHN MARSHALLJOHN MARSHALL
Yet, even in so grave a crisis as Marshall believed the Presidential election of 1828 to be, he shrank from the appearance of partisanship. TheMarylander, a Baltimore Democratic paper, published an item quoting Marshall as having said: "I have not voted for twenty years; but I shall consider it a solemn duty I owe my country to go to the polls and vote at the next presidential election—for should Jackson be elected, I shall look upon the government as virtually dissolved."[1271]
This item was widely published in the Administration newspapers, including the RichmondWhig and Advertiser. To this paper Marshall wrote, denying the statement of the Baltimore publication: "Holding the situation I do ... I have thought it right to abstain from any public declarations on the election; ... I admit having said in private that though I had not voted since the establishment of the general ticket system, and had believed that I never should vote during its continuance, I might probably depart from my resolution in this instance, from the strong sense I felt of the injustice of thecharge of corruption against the President & Secretary of State: I never did use the other expressions ascribed to me."[1272]This "card" theEnquirerreproduced, together with the item from theMarylander, commenting scathingly upon the methods of Adams's supporters.
Clay, deeply touched, wrote the Chief Justice of his appreciation and gratitude; but he is sorry that Marshall paid any attention to the matter "because it will subject you to a part of that abuse which is so indiscriminately applied to ... everything standing in the way of the election of a certain individual."[1273]
Marshall was sorely worried. He writes Story that the incident "provoked" him, "not because I have any objection to its being known that my private judgement is in favor of the re-election of MrAdams, but because I have great objections to being represented in the character of a furious partisan. Intemperate language does not become my age or office, and is foreign from my disposition and habits. I was therefore not a little vexed at a publication which represented me as using language which could be uttered only by an angry party man."
He explains that the item got into theMarylanderthrough a remark of one of his nephews "who was on the Adams convention" at Baltimore, to the effect that he had heard Marshall say that, although he had "not voted for upwards of twenty years" he "should probably vote at the ensuing election." His nephew wrote a denial, but it was not published. So, concludes Marshall, "I must bear the newspaper scurrility which I had hoped to escape, and which is generally reserved for more important personages than myself. It is some consolation that it does not wound me very deeply."[1274]
It would seem that Marshall had early resolved to go to any length to deprive the enemies of the National Judiciary of any pretext for attacking him or the Supreme Court because of any trace of partisan activity on his part. One of the largest tasks he had set for himself was to create public confidence in that tribunal, and to raise it above the suspicion that party considerations swayed its decisions. He had seen how nearly the arrogance and political activity of the first Federalist judges had wrecked the Supreme Court and the whole Judicial establishment, and had resolved, therefore, to lessen popular hostility to courts, as far as his neutral attitude to party controversies could accomplish that purpose.
It thus came about that Marshall refrained even from exercising his right of suffrage from 1804 to 1828—perhaps, indeed, to the end of his life, since it is not certain that he voted even at the election of 1828. Considering the intensity of his partisan feelings, his refusal to vote, during nearly all the long period when he was Chief Justice, was a real sacrifice, the extent of which may be measured by the fact that, according to his letter to Story, he did not even vote against Madison in 1812, notwithstanding the violence of his emotions aroused by the war.[1275]
On March 4, 1829, Marshall administered the oath of office to the newly elected President, Andrew Jackson. No two men ever faced one another more unlike in personality and character. The mild, gentle, benignant features of the Chief Justice contrasted strongly with the stern, rigid, and aggressive countenance of "Old Hickory." The one stood for the reign of law; the other for autocratic administration. In Jackson, whim, prejudice, hatred, and fierce affections were dominant; in Marshall, steady, level views of life and government, devotion to order and regularity, abhorrence of quarrel and feud, constancy and evenness in friendship or conviction, were the chief elements of character. Moreover, the Chief Justice personified the static forces of society; the new President was the product of a fresh upheaval of democracy, not unlike that which had placed Jefferson in power.
Marshall had administered the Presidential oath seven times before—twice each to Jefferson, Madison, and Monroe, and once to John Quincy Adams. And now he was reading the solemn words to the passionate frontier soldier from whose wild, undisciplined character he feared so much. Marshall briefly writes his wife about the inauguration: "We had yesterday a most busy and crowded day. People have flocked to Washington from every quarter of the United States. When the oath was administered to the President the computation is that 12 or 15000 people were present—a great number of them ladies. A great ball was given at night to celebrate the election. I of course did not attend it. The affliction ofour son[1276]would have been sufficient to restrain me had I even felt a desire to go."[1277]In a previous letter to his wife he forecast the crowds and commotion: "The whole world it is said will be here.... I wish I could leave it all and come to you. How much more delightful would it be to me to sit by your side than to witness all the pomp and parade of the inauguration."[1278]
Much as he had come to dislike taking part in politics or in public affairs, except in the discharge of his judicial duties, Marshall was prevailed upon to be a delegate to the Virginia Constitutional Convention of 1829-30. He refused, at first, to stand for the place and hastened to reassure his "dearest Polly." "I am told," he continues in his letter describing Jackson's induction into office, "by several that I am held up as a candidate for the convention. I have no desire to be in the convention and do not mean to be a candidate. I should not trouble you with this did I not apprehend that the idea of my wishing to be in the convention might prevent some of my friends who are themselves desirous of being in it from becoming candidates. I therefore wish you to give this information to Mr. Harvie.[1279]... Farewell my dearest Polly. Your happiness is always nearest the heart of your J. Marshall."[1280]
He yielded, however, and wrote Story of his disgust at having done so: "I am almost ashamed ofmy weakness and irresolution when I tell you that I am a member of our convention. I was in earnest when I told you that I would not come into that body, and really believed that I should adhere to that determination; but I have acted like a girl addressed by a gentleman she does not positively dislike, but is unwilling to marry. She is sure to yield to the advice and persuasion of her friends.... The body will contain a great deal of eloquence as well as talent, and yet will do, I fear, much harm with some good. Our freehold suffrage is, I believe, gone past redemption. It is impossible to resist the influence, I had almost said contagion of universal example."[1281]
For fifty-three years Virginia had been governed under the constitution adopted at the beginning of the Revolution. As early as the close of this war the injustice and inadequacy of the Constitution of 1776 had become evident, and, as a member of the House of Delegates, Marshall apparently had favored the adoption of a new fundamental law for the State.[1282]Almost continuously thereafter the subject had been brought forward, but the conservatives always had been strong enough to defeat constitutional reform.
On July 12, 1816, in a letter to Samuel Kercheval, one of the ablest documents he ever produced, Jefferson had exposed the defects of Virginia's constitution which, he truly said, was without "leading principles." It denied equality of representation;the Governor was neither elected nor controlled by the people; the higher judges were "dependent on none but themselves." With unsparing severity Jefferson denounces the County Court system.
Clearly and simply he enumerates the constructive reforms imperatively demanded, beginning with "General Suffrage" and "Equal representation," on which, however, he says that he wishes "to take no public share" because that question "has become a party one." Indeed, at the very beginning of this brilliant and well-reasoned letter, Jefferson tells Kercheval that it is "for your satisfaction only, and not to be quoted before the public."[1283]
But Kercheval handed the letter around freely and proposed to print it for general circulation. On hearing of this, Jefferson was "alarmed" and wrote Kercheval harshly, repeating that the letter was not to be given out and demanding that the original and copies be recalled.[1284]This uncharacteristic perturbation of the former President reveals in startling fashion the bitterness of the strife over the calling of the convention, and over the issues confronting that body in making a new constitution for Virginia.
Of the serious problems to be solved by the Convention of 1829-30, that of suffrage was the most important. Up to that time nobody could vote in Virginia except white owners of freehold estates. Counties, regardless of size, had equal representationin the House of Delegates. This gave to the eastern and southern slaveholding sections of the State, with small counties having few voters, an immense preponderance over the western and northwestern sections, with large counties having many voters. On the other hand, the rich slavery districts paid much heavier taxes than the poorer free counties.[1285]
Marshall was distressed by every issue, to settle which the convention had been called. The question of the qualification for suffrage especially agitated him. Immediately after his election to the convention, he wrote Story of his troubles and misgivings: "We shall have a good deal of division and a good deal of heat, I fear, in our convention. The freehold principle will, I believe, be lost. It will, however, be supported with zeal. If that zeal should be successful I should not regret it. If we find that a decided majority is against retaining it I should prefer making a compromise by which a substantial property qualification may be preserved in exchange for it.
"I fear the excessive [torn—probably, democratic spirit, coin]cident to victory after a hard fought battle continued to the last extremity may lead to universal suffrage or something very near it. What is the prop[erty] qualification for your Senate? How are your Senators apportioned on the State? And how does your system work? The questionwhether white population alone, or white population compounded with taxation, shall form the basis of representation will excite perhaps more interest than even the freehold suffrage. I wish we were well through the difficulty."[1286]
The Massachusetts Constitutional Convention had been held nearly a decade before that of Virginia. The problem of suffrage had troubled the delegates almost as much as it now perplexed Marshall. The reminiscent Pickering writes the Chief Justice of the fight made in 1820 by the Massachusetts conservatives against "the conceited innovators." Story had been a delegate, and so had John Adams, fainting with extreme age, but rich with the wisdom of his eighty-five years: "He made a short, but very good speech," begging the convention to retain the State Senate as "the representative ofproperty; ... the number of Senators in each district was proportioned to its direct taxes to the State revenue—and not to its population. Some democrats desired that the number of Senators should be apportioned not according to the taxation, but exclusively to the population. This, Mr. Adams and all the most intelligent and considerate members opposed."[1287]
Ultra-conservative as Marshall was, strongly as he felt the great body of the people incapable of self-government, he was deeply concerned for the well-being of what he called "the mass of the people." The best that can be done for them, he says in aletter to Charles F. Mercer, is to educate them. "In governments entirely popular" general education "is more indispensable ... than in an other." The labor problem troubles him sorely. When population becomes so great that "the surplus hands" must turn to other employment, a grave situation will arise.
"As the supply exceeds the demand the price of labour will cheapen until it affords a bare subsistence to the labourer. The superadded demands of a family can scarcely be satisfied and a slight indisposition, one which suspends labour and compensation for a few days produces famine and pauperism. How is this to be prevented?" Education may be relied on "in the present state of our population, and for a long time to come.... But as our country fills up how shall we escape the evils which have followed a dense population?"[1288]
The Chief Justice went to the Virginia Convention a firm supporter of the strongest possible property qualification for suffrage. On the question of slavery, which arose in various forms, he had not made his position clear. The slavery question, as a National matter, perplexed and disturbed Marshall. There was nothing in him of the humanitarian reformer, but there was everything of the statesman. He never had but one, and that a splendid, vision.
The American Nation was his dream; and to the realization of it he consecrated his life. A full generation after Marshall wrote his last despairingword on slavery, Abraham Lincoln expressed the conviction which the great Chief Justice had entertained: "I would save the Union. I would save it the shortest way under the Constitution.... If I could save the Union without freeing any slave, I would do it; and if I could save it by freeing some and leaving others alone, I would also do that. What I do about slavery and the colored race, I do because I believe it helps to save the Union."[1289]
Pickering, the incessant, in one of his many and voluminous letters to Marshall which the ancient New Englander continued to write as long as he lived, had bemoaned the existence of slavery—one of the rare exhibitions of Liberalism displayed by that adamantine Federalist conservative. Marshall answered: "I concur with you in thinking that nothing portends more calamity & mischief to the Southern States than their slave population. Yet they seem to cherish the evil and to view with immovable prejudice & dislike every thing which may tend to diminish it. I do not wonder that they should resist any attempt, should one be made, to interfere with the rights of property, but they have a feverish jealousy of measures which may do good without the hazard of harm that is, I think, very unwise."[1290]
Marshall heartily approved the plan of the American Colonization Society to send free negroes back to Africa. The Virginia branch of that organizationwas formed in 1829, the year of the State Constitutional Convention, and Marshall became a member. Two years later he became President of the Virginia branch, with James Madison, John Tyler, Abel P. Upshur, and other prominent Virginians as Vice-Presidents.[1291]In 1831, Marshall was elected one of twenty-four Vice-Presidents of the National society, among whom were Webster, Clay, Crawford, and Lafayette.[1292]
The Reverend R. R. Gurley, Secretary of this organization, wrote to the more eminent members asking for their views. Among those who replied were Lafayette, Madison, and Marshall. The Chief Justice says that he feels a "deep interest in the ... society," but refuses to "prepare any thing for publication." The cause of this refusal is "the present state of [his] family"[1293]and a determination "long since formed ... against appearing in print on any occasion." Nevertheless, he writes Gurley a letter nearly seven hundred words in length.
Marshall thinks it "extremely desirable" that the States shall pass "permanent laws" affording financial aid to the colonization project. It will be "also desirable" if this legislation can be secured "to incline the people of color to migrate." He had thought for a long time that it was just possible that more negroes might like to go to Liberia than"can be provided for with the funds [of] the Society"; therefore he had "suggested, some years past," to the managers, "to allow a small additional bounty in lands to those who would pay their passage in whole or in part."
To Marshall it appears to be of "great importance to retain the countenance and protection of the General Government. Some of our cruizers stationed on the coast of Africa would, at the same time, interrupt the slave trade—a horrid traffic detested by all good men—and would protect the vessels and commerce of the Colony from pirates who infest those seas. The power of the government to afford this aid is not, I believe, contested." He thinks the plan of Rufus King to devote part of the proceeds from the sale of public lands to a fund for the colonization scheme, "the most effective that can be devised," Marshall makes a brief but dreary argument for this method of raising funds for the exportation of the freed blacks.
He thus closes this eminently practical letter: "The removal of our colored population is, I think, a common object, by no means confined to the slave States, although they are more immediately interested in it. The whole Union would be strengthened by it, and relieved from a danger, whose extent can scarcely be estimated." Furthermore, says the Chief Justice, "it lessens very much ... the objection in a political view to the application of this ample fund [from the sale of the public domain], that our lands are becoming an object for which the States are to scramble, and which threatens to sowthe seeds of discord among us instead of being what they might be—a source of national wealth."[1294]
Marshall delivered two opinions in which the question of slavery was involved, but they throw little light on his sentiments. In the case of the Antelope he held that the slave trade was not prohibited by international law as it then existed; but since the court, including Story and Thompson, both bitter antagonists of slavery, was unanimous, the views of Marshall cannot be differentiated from those of his associates. Spain and Portugal claimed certain negroes forcibly taken from Spanish and Portuguese slavers by an American slaver off the coast of Africa. After picturesque vicissitudes the vessel containing the blacks was captured by an American revenue cutter and taken to Savannah for adjudication.
In due course the case reached the Supreme Court and was elaborately argued. The Government insisted that the captured negroes should be given their liberty, since they had been brought into the country in violation of the statutes against the importation of slaves. Spain and Portugal demandedthem as slaves "acquired as property ... in the regular course of legitimate commerce."[1295]It was not surprising that opinion on the slave trade was "unsettled," said Marshall in delivering the opinion of the court.
All "Christian and civilized nations ... have been engaged in it.... Long usage, and general acquiescence" have sanctioned it.[1296]America had been the first to "check" the monstrous traffic. But, whatever its feelings or the state of public opinion, the court "must obey the mandate of the law."[1297]He cites four English decisions, especially a recent one by Sir William Scott, the effect of all being that the slave trade "could not be pronounced contrary to the law of nations."[1298]
Every nation, therefore, has a right to engage in it. Some nations may renounce that right sanctioned by "universal assent." But other nations cannot be bound by such "renunciation." For all nations, large and small, are equal—"Russia and Geneva have equal rights." No one nation "can rightfully impose a rule on another ... none can make a law of nations; and this traffic remains lawful to those whose governments have not forbidden it.... It follows, that a foreign vessel engaged in the African slave trade, captured on the high seas in time of peace, by an American cruiser, and brought in for adjudication, would be restored."[1299]
Four months before Marshall was elected a member of the Virginia Constitutional Convention, hedelivered another opinion involving the legal status of slaves. Several negroes, the property of one Robert Boyce, were on a steamboat, the Teche, which was descending the Mississippi. The vessel took fire and those on board, including the negroes, escaped to the shore. Another steamboat, the Washington, was coming up the river at the time, and her captain, in response to appeals from the stranded passengers of the burning vessel, sent a yawl to bring them to the Washington. The yawl was upset and the slaves drowned. The owner of them sued the owner of the Washington for their value. The District Court held that the doctrine of common carriers did not apply to human beings; and this was the only question before the Supreme Court, to which Boyce appealed.
"A slave ... cannot be stowed away as a common package," said Marshall in his brief opinion. "The responsibility of the carrier should be measured by the law which is applicable to passengers, rather than by that which is applicable to the carriage of common goods.... The law applicable to common carriers is one of great rigor.... It has not been applied to living men, and ... ought not to be applied to them." Nevertheless, "the ancient rule 'that the carrier is liable only for ordinary neglect,' still applies" to slaves. Therefore the District Court was right in its instructions to the jury.[1300]
The two letters quoted and the opinions expressing the unanimous judgment of the Supreme Court are all the data we have as to Marshall's views on slavery. It appears that he regretted the existence of slavery, feared the results of it, saw no way of getting rid of it, but hoped to lessen the evil by colonizing in Africa such free black people as were willing to go there. In short, Marshall held the opinion on slavery generally prevailing at that time. He was far more concerned that the Union should be strengthened, and dissension in Virginia quieted, than he was over the problem of human bondage, of which he saw no solution.
When he took his seat as a delegate to the Virginia Constitutional Convention of 1829-30, a more determined conservative than Marshall did not live. Apparently he did not want anything changed—especially if the change involved conflict—except, of course, the relation of the States to the Nation. He was against a new constitution for Virginia; against any extension of suffrage; against any modification of the County Court system except to strengthen it; against a free white basis of representation; against legislative interference with business. His attitude was not new, nor had he ever concealed his views.
His opinions of legislation and corporate property, for instance, are revealed in a letter written twenty years before the Convention of 1829-30. In withdrawing from some Virginia corporation because the General Assembly of the State had passed a law for the control of it, Marshall wrote: "I consider the interference of the legislature in the management of our private affairs, whether those affairs are committed to a company or remain under individualdirection, as equally dangerous and unwise. I have always thought so and I still think so. I may be compelled to subject my property to these interferences, and when compelled I shall submit; but I will not voluntarily expose myself to the exercise of a power which I think so improperly usurped."[1301]
Two years before the convention was called, Marshall's unyielding conservatism was displayed in a most conspicuous manner. In Sturgesvs.Crowninshield,[1302]a State law had been held invalid which relieved creditors from contracts made before the passage of that law. But, in his opinion in that case, Marshall used language that also applied to contracts made after the enactment of insolvency statutes; and the bench and bar generally had accepted his statement as the settled opinion of the Supreme Court. But so acute had public discontent become over this rigid doctrine, so strident the demand for bankrupt laws relieving insolvents, at least from contracts made after such statutes were enacted, that the majority of the Supreme Court yielded to popular insistence and, in Ogdenvs.Saunders,[1303]held that "an insolvent law of a State does notimpair the obligation of future contracts between its citizens."[1304]
For the first time in twenty-seven years the majority of the court opposed Marshall on a question of Constitutional law. The Chief Justice dissented and delivered one of the most powerful opinions he ever wrote. The very "nature of our Union," he says, makes us "one people, as to commercial objects."[1305]The prohibition in the contract clause "is complete and total. There is no exception from it.[1306]... Insolvent laws are to operate on a future, contingent unforseen event."[1307]Yet the majority of the court hold that such legislation enters into subsequent contracts "so completely as to become a ... part" of them. If this is true of one law, it is true of "every other law which relates to the subject."
But this would mean, contends Marshall, that a vital provision of the Constitution, "one on which the good and the wise reposed confidently for securing the prosperity and harmony of our citizens, would lie prostrate, and be construed into an inanimate, inoperative, unmeaning clause." The construction of the majority of the court would "convert an inhibition to pass laws impairing the obligation of contracts into an inhibition to pass retrospective laws."[1308]If the Constitution means this, why is it not so expressed? The mischievous laws which caused the insertion of the contract clause "embraced future contracts, as well as those previously formed."[1309]
The gist of Marshall's voluminous opinion in Ogdenvs.Saunders is that the Constitution protects all contracts, past or future, from State legislation which in any manner impairs their obligation.[1310]Considering that even the rigidly conservative Bushrod Washington, Marshall's stanch supporter, refused to follow his stern philosophy, in this case, the measure and character of Marshall's conservatism are seen when, in his seventy-fifth year, he helped to frame a new constitution for Virginia.
Still another example of Marshall's rock-like conservatism and of the persistence with which he held fast to his views is afforded by a second dissent from the majority of the court at the same session. This time every one of the Associate Justices was against him, and Story delivered their unanimous opinion. The Bank of the United States had sued Julius B. Dandridge, cashier of the Richmond branch, and his sureties, on his official bond. Marshall, sitting as Circuit Judge, had held that only the written record of the bank's board of directors, that they approved and accepted the bond, could be received to prove that Dandridge had been legally authorized to act as cashier.
The Supreme Court reversed Marshall's judgment, holding that the authorization of an agent by a corporation can be established by presumptive evidence,[1311]an opinion that was plainly sound and which stated the law as it has continued to be ever since. But despite the unanimity of his brethren, the clearand convincing opinion of Story, the disapproval of his own views by the bench, bar, and business men of the whole country, Marshall would not yield. "The Ch: Jus: I fear willdie hard," wrote Webster, who was of counsel for the bank.[1312]
In a very long opinion Marshall insists that his decision in the Circuit Court was right, fortifying his argument by more than thirty citations. He begins by frank acknowledgment of the discontent his decision in the Circuit Court has aroused: "I should now, as is my custom, when I have the misfortune to differ with this court, acquiesce silently in its opinion, did I not believe that the judgment of the circuit court of Virginia gave general surprise to the profession, and was generally condemned." Corporations, "being destitute of human organs," can express themselves only by writing. They must act through agents; but the agency can be created and proved only by writing.
Marshall points out the serious possibilities to those with whom corporations deal, as well as to the corporations themselves, of the acts of persons serving as agents without authority of record.[1313]Powerful as his reasoning is, it is based on mistaken premises inapplicable to modern corporate transactions; but his position, his method, his very style, reveal the stubborn conservative at bay, bravely defending himself and his views.
This, then, was the John Marshall, who, in his old age, accepted the call of men as conservative ashimself to help frame a new constitution for Virginia, On Monday, October 5, 1829, the convention met in the House of Delegates at Richmond. James Madison, then in his seventy-ninth year, feeble and wizened, called the members to order and nominated James Monroe for President of the convention. This nomination was seconded by Marshall. These three men, whose careers since before the Revolution and throughout our formative period, had been more distinguished, up to that time, than had that of any American then living, were the most conspicuous persons in that notable Assembly. Giles, now Governor of the State, was also a member; so were Randolph, Tyler, Philip P. Barbour, Upshur, and Tazewell. Indeed, the very ablest men in Virginia had been chosen to make a new constitution for the State. In the people's anxiety to select the best men to do that important work, delegates were chosen regardless of the districts in which they lived.[1314]
To Marshall, who naturally was appointed to the Judiciary Committee,[1315]fell the task of presenting to the convention the first petition of non-freeholders for suffrage.[1316]No more impressive document was read before that body. It stated the whole democratic argument clearly and boldly.[1317]The first report received from any committee was made by Marshall and also was written by him.[1318]It providedfor the organization of the State Judiciary, but did not seek materially to change the system of appointments of judges.
Two sentences of this report are important: "No modification or abolition of any Court, shall be construed to deprive any Judge thereof of his office"; and, "Judges may be removed from office by a vote of the General Assembly: but two-thirds of the whole number of each House must concur in such vote."[1319]Marshall promptly moved that this report be made the order of the day and this was done.
Ranking next to the question of the basis of suffrage and of representation was that of judiciary reform. To accomplish this reform was one of the objects for which the convention had been called. At that time the Judiciary of Virginia was not merely a matter of courts and judges; it involved the entire social and political organization of that State. No more essentially aristocratic scheme of government ever existed in America. Coming down from Colonial times, it had been perpetuated by the Revolutionary Constitution of 1776. It had, in practical results, some good qualities and others that were evil, among the latter a well-nigh faultless political mechanism.[1320]
The heart of this system was the County Courts. Too much emphasis cannot be placed on this fact. These local tribunals consisted of justices of the peace who sat together as County Courts for the hearing and decision of the more important cases. They were almost always the first men of their counties, appointed by the Governor for life; vacancies were, in practice, filled only on the recommendation of the remaining justices. While the Constitution of 1776 did not require the Governor to accept the nominations of the County Courts for vacancies in these offices, to do so had been a custom long established.[1321]
For this acquiescence of the Governor in the recommendation of the County Courts, there was a very human reason of even weightier influence than that of immemorial practice. The Legislature chose the Governor; and the justices of the peace selected, in most cases, the candidates for the Legislature—seldom was any man elected by the people to the State Senate or House of Delegates who was not approved by the County Courts. Moreover, the other county offices, such as county clerks and sheriffs, were appointed by the Governor only on the suggestion of the justices of the peace; and these officials worked in absolute agreement with the local judicial oligarchy. In this wise members of Congress were, in effect, named by the County Courts, and the Legislature dared not and did not elect United States Senators of whom the justices of the peace disapproved.
The members of the Court of Appeals, appointed by the Governor, were never offensive to these minor county magistrates, although the judges of this highest tribunal in Virginia, always able and learned men holding their places for life, had great influence over the County Courts, and, therefore, over the Governor and General Assembly also. Nor was this the limit of the powers of the County Courts. They fixed the county rate of taxation and exercised all local legislative and executive as well as judicial power.[1322]
In theory, a more oligarchic system never was devised for the government of a free state; but in practice, it responded to the variations of public opinion with almost the precision of a thermometer. For example, nearly all the justices of the peace were Federalists during the first two years of Washington's Administration; yet the State supported Henry against Assumption, and, later, went over to Jefferson as against Washington and Henry combined.[1323]
Rigid and self-perpetuating as was the official aristocracy which the Virginia judicial system had created, its members generally attended to their duties and did well their public work.[1324]They lived among the people, looked after the common good, composed disputes between individuals; soothed local animosities, prevented litigation; and administered justice satisfactorily when, despite their preventive efforts, men would bring suits. But the whole scheme was the very negation of democracy.[1325]
While, therefore, this judicial-social-political plan worked well for the most part, the idea of it was offensive to liberal-minded men who believed in democracy as a principle. Moreover, the officialoligarchy was more powerful in the heavy slaveholding, than in the comparatively "free labor," sections; it had been longer established, and it better fitted conditions, east of the mountains.
So it came about that there was, at last, a demand for judicial reform. Seemingly this demand was not radical—it was only that the self-perpetuating County Court system should be changed to appointments by the Governor without regard to recommendations of the local justices; but, in reality, this change would have destroyed the traditional aristocratic organization of the political, social, and to a great extent the economic, life of Virginia.
On every issue over which the factions of this convention fought, Marshall was reactionary and employed all his skill to defeat, whenever possible, the plans and purposes of the radicals. In pursuing this course he brought to bear the power of his now immense reputation for wisdom and justice. Perhaps no other phase of his life displays more strikingly his intense conservatism.
The conclusion of his early manhood—reluctantly avowed after Washington, following the Revolution, had bitterly expressed the same opinion,[1326]that the people, left to themselves, are not capable of self-government—had now become a profound moral belief. It should again be stated that most of Marshall's views, formed as a young lawyer during the riotous years between the achievement of Independence and the adoption of the Constitution, had hardened, as life advanced, into somethinglike religious convictions. It is noteworthy, too, that, in general, Madison, Giles, and even Monroe, now stood with Marshall.
The most conspicuous feature of those fourteen weeks of tumultuous contest, as far as it reveals Marshall's personal standing in Virginia, was the trust, reverence, and affection in which he was held by all members, young and old, radical and conservative, from every part of the State. Speaker after speaker, even in the fiercest debates, went out of his way to pay tribute to Marshall's uprightness and wisdom.[1327]
Marshall spoke frequently on the Judiciary; and, at one point in a debate on the removal of judges, disclosed opinions of historical importance. Although twenty-seven years had passed since the repeal of the Federalist Judiciary Act of 1801,[1328]Marshall would not, even now, admit that repeal to be Constitutional. Littleton W. Tazewell, also a member of the Judiciary Committee, asserted that, under the proposed new State Constitution, the Legislature could remove judges from office by abolishing the courts. John Scott of Fauquier County asked Marshall what he thought of the ousting of Federalist judges by the Republicans in 1802.
The Chief Justice answered, "with great, very great repugnance," that throughout the debate he had "most carefully avoided" expressing any opinion on that subject. He would say, however, that "he did not conceive the Constitution to have been at all definitely expounded by a single act of Congress." Especially when "there was no union of Departments, but the Legislative Department alone had acted, and acted but once," ignoring the Judicial Department, such an act, "even admitting that act not to have passed in times of high political and party excitement, could never be admitted as final and conclusive."[1329]
Tazewell was of "an exactly opposite opinion"—the Repeal Act of 1802 "was perfectly constitutional and proper." Giles also disagreed with Marshall. Should "a public officer ... receive the public money any longer than he renders service to the public"?[1330]Marshall replied with spirit. No serious question can be settled, he declared, by mere "confidence of conviction, but on the reason of the case." All that he asked was that the Judiciary Article of the proposed State Constitution should go forth, "uninfluenced by the opinion of any individual: let those, whose duty it was to settle theinterpretation of the Constitution, decide on the Constitution itself."[1331]After extended debate[1332]and some wrangling, Marshall's idea on this particular phase of the subject prevailed.[1333]
The debate over the preservation of the County Court system, for which Marshall's report provided, was long and acrimonious, and a résumé of it is impossible here. Marshall stoutly supported these local tribunals; their "abolition will affect our whole internal police.... No State in the Union, has hitherto enjoyed more complete internal quiet than Virginia. There is no part of America, where ... less of ill-feeling between man and man is to be found than in this Commonwealth, and I believe most firmly that this state of things is mainly to be ascribed to the practical operation of our County Courts." The county judges "consist in general of the best men in their respective counties. They act in the spirit of peace-makers, and allay, rather than excite the small disputes ... which will sometimes arise among neighbours."[1334]
Giles now aligned himself with Marshall as a champion of the County Court system. In an earnest defense of it he went so far as to reflect on the good sense of Jefferson. Everybody, said Giles,knew that that "highly respectable man ... dealt very much in theories."[1335]
During the remainder of the discussion on this subject, Marshall rose frequently, chiefly, however, to guide the debate.[1336]He insisted that the custom of appointing justices of the peace only on nomination of the County Courts should be written into the constitution. The Executive ought to appointallpersons recommended by "a County Court, taken as a whole." Marshall then moved an amendment to that effect.[1337]
This was a far more conservative idea than was contained in the old constitution itself. "Let the County Court who now recommended, have power also to appoint: for there it ended at last," said William Campbell of Bedford County. Giles was for Marshall's plan: "The existing County Court system" threw "power into the hands of the middle class of the community," he said; and it ought to be fortified rather than weakened.
Marshall then withdrew his astonishing amendment and proposed, instead, that the advice and "consent of the Senate" should not be required for appointments of county justices, thus utterly eliminating all legislative control over these important appointments; and this extreme conservative proposition was actually adopted without dissent.[1338]Thusthe very foundation of Virginia's aristocratic political organization was greatly strengthened.
Concerning the retention of his office by a judge after the court had been abolished, Marshall made an earnest and impressive speech. What were the duties of a judge? "He has to pass between the Government and the man whom that Government is prosecuting: between the most powerful individual in the community, and the poorest and most unpopular. It is of the last importance, that in the exercise of these duties, he should observe the utmost fairness. Need I press the necessity of this? Does not every man feel that his own personal security and the security of his property depends on that fairness?
"The Judicial Department comes home in its effects to every man's fireside: it passes on his property, his reputation, his life, his all. Is it not, to the last degree important, that he should be rendered perfectly and completely independent, with nothing to influence or control him but God and his conscience?
"You do not allow a man to perform the duties of a juryman or a Judge, if he has one dollar of interest in the matter to be decided: and will you allow a Judge to give a decision when his office may depend upon it? when his decision may offend a powerful and influential man?
"Your salaries do not allow any of your Judges to lay up for his old age: the longer he remains in office, the more dependant he becomes upon his office. He wishes to retain it; if he did not wish toretain it, he would not have accepted it. And will you make me believe that if the manner of his decision may affect the tenure of that office, the man himself will not be affected by that consideration?... The whole good which may grow out of this Convention, be it what it may, will never compensate for the evil of changing the tenure of the Judicial office."
Barbour had said that to presume that the Legislature would oust judges because of unpopular decisions, was to make an unthinkable imputation. But "for what do you make a Constitution?" countered Marshall. Why provide that "no bill of attainder, or anex post factolaw, shall be passed? What a calumny is here upon the Legislature," he sarcastically exclaimed. "Do you believe, that the Legislature will pass a bill of attainder, or anex post factolaw? Do you believe, that they will pass a law impairing the obligation of contracts? If not, why provide against it?...
"You declare, that the Legislature shall not take private property for the public use, without just compensation. Do you believe, that the Legislature will put forth their grasp upon private property, without compensation? Certainly I do not. There is as little reason to believe they will do such an act as this, as there is to believe, that a Legislature will offend against a Judge who has given a decision against some favourite opinion and favourite measure of theirs, or against a popular individual who has almost led the Legislature by his talents and influence.
"I am persuaded, there is at least as much danger that they will lay hold on such an individual, as that they will condemn a man to death for doing that which, when he committed it, was no crime. The gentleman says, it is impossible the Legislature should ever think of doing such a thing. Why then expunge the prohibition?... This Convention can do nothing that would entail a more serious evil upon Virginia, than to destroy the tenure by which her Judges hold their offices."[1339]
An hour later, the Chief Justice again addressed the convention on the independence of the Judiciary. Tazewell had spoken much in the vein of the Republicans of 1802.[1340]"The independence of all those who try causes between man and man, and between a man and his Government," answered Marshall, "can be maintained only by the tenure of their office. Is not their independence preserved under the present system? None can doubt it. Such an idea was never heard of in Virginia, as to remove a Judge from office." Suppose the courts at the mercy of the Legislature? "What would then be the condition of the court, should the Legislature prosecute a man, with an earnest wish to convict him?... If they may be removed at pleasure, will any lawyer of distinction come upon your bench?
"No, Sir. I have always thought, from my earliest youth till now, that the greatest scourge an angry Heaven ever inflicted upon an ungrateful and a sinning people, was an ignorant, a corrupt, or a dependent Judiciary. Will you draw down thiscurse upon Virginia? Our ancestors thought so: we thought so till very lately; and I trust the vote of this day will shew that we think so still."[1341]
Seldom in any parliamentary body has an appeal been so fruitful of votes. Marshall's idea of the inviolability of judicial tenure was sustained by a vote of 56 to 29, Madison voting with him.[1342]
Lucas P. Thompson of Amherst County moved to strike out the provision in Marshall's Judiciary Article that the abolition of a court should not "deprive any Judge thereof of his office."[1343]Thus the direct question, so fiercely debated in Congress twenty-seven years earlier,[1344]was brought before the convention. It was promptly decided, and against the views and action of Jefferson and the Republicans of 1802. By a majority of 8 out of a total of 96,[1345]the convention sustained the old Federalist idea that judges should continue to hold their positions and receive their salaries, even though their offices were abolished.
Before the vote was taken, however, a sharp debate occurred between Marshall and Giles. To keep judges in office, although that office be destroyed, "was nothing less than to establish a privileged corps in a free community," said Giles. Marshall had said "that a Judge ought to be responsible only to God and to his own conscience." Although "one of the first objects in view, in calling this Convention, was to make the Judges responsible—not nominally, but really responsible," Marshallactually proposed to establish "aprivileged orderof men." Another part of Marshall's plan, said Giles, required the concurrent vote of both Houses of the Legislature to remove a judge from the bench. "This was inserted, for what?" To prevent the Legislature from removing a judge "whenever his conduct had been such, that he became unpopular and odious to the people"—the very power the Legislature ought to have.[1346]
In reply, Marshall said that he would not, at that time, discuss the removal of judges by the Legislature, but would confine himself "directly to the object before him," as to whether the abolition of a court should not deprive the judge of his office. Giles had fallen into a strange confusion—he had treated "the office of a Judge, and the Court in which he sat, as being ... indissolubly united." But, asked Marshall, were the words "office and Court synonymes"? By no means. The proposed Judiciary Article makes the distinction when it declares that though thecourtbe abolished, the judge still holds hisoffice. "In what does the office of a Judge consist? ... in his constitutional capacity to receive Judicial power, and to perform Judicial Duties....
"If the Constitution shall declare that when the court is abolished, he shall still hold" his office, "there is no inconsistency in the declaration.... What creates the office?" An election to it by the Legislature and a commission by the Governor. "When these acts have been performed, the Judges are in office. Now, if the Constitution shall saythat his office shall continue, and he shall perform Judicial duties, though his court may be abolished, does he, because of any modification that may be made in that court, cease to be a Judge?...
"The question constantly recurs—do you mean that the Judges shall be removable at the will of the Legislature? The gentleman talks of responsibility. Responsibility to what? to the will of the Legislature? can there be no responsibility, unless your Judges shall be removable at pleasure? will nothing short of this satisfy gentlemen? Then, indeed, there is an end to independence. The tenure during good behaviour, is a mere imposition on the public belief—a sound that is kept to the ear—and nothing else. The consequences must present themselves to every mind. There can be no member of this body who does not feel them.
"If your Judges are to be removable at the will of the Legislature, all that you look for from fidelity, from knowledge, from capacity, is gone and gone forever." Seldom did Marshall show more feeling than when pressing this point; he could not "sit down," he said, without "noticing the morality" of giving the Legislature power to remove judges from office. "Gentlemen talk of sinecures, and privileged orders—with a view, as it would seem, to cast odium on those who are in office.
"You seduce a lawyer from his practice, by which he is earning a comfortable independence, by promising him a certain support for life, unless he shall be guilty of misconduct in his office. And after thus seducing him, when his independence is gone, andthe means of supporting his family relinquished, you will suffer him to be displaced and turned loose on the world with the odious brand of sinecure-pensioner—privileged order—put upon him, as a lazy drone who seeks to live upon the labour of others. This is the course you are asked to pursue."
The provisions of the Judiciary Article before the convention secure ample responsibility. "If not, they can be made [to do] so. But is it not new doctrine to declare, that the Legislature by merely changing the name of a court or the place of its meeting, may remove any Judge from his office? The question to be decided is, and it is one to which we must come, whether the Judges shall be permanent in their office, or shall be dependent altogether upon the breath of the Legislature."[1347]
Giles answered on the instant. In doing so, he began by a tribute to Marshall's "standing and personal excellence" which were so great "that he was willing to throw himself into the background, as to any weight to be attached to his [Giles's] own opinion." Therefore, he would "rely exclusively on the merits" of the controversy. Marshall had not shown "that it was not an anomaly to have the court out of being, and an office pertain[ing] to the court in being.... It was an anomaly in terms."
Giles "had, however, such high respect" for Marshall's standing, "that he always doubted his own opinion when put in opposition" to that of the Chief Justice. He had not intended, he avowed, "to throw reproach upon the Judges in office." Far be it fromhim to reflect "in the least degree on their honour and integrity." His point was that, by Marshall's plan, "responsibility was rather avoided than sought to be secured." Giles was willing to risk his liberty thus far—"if a Judge became odious to the people, let him be removed from office."[1348]
The debate continued upon another amendment by Thompson. Viewing the contest as a sheer struggle of minds, the conservatives were superior to the reformers,[1349]and steadily they gained votes.[1350]
Again Marshall spoke, this time crossing swords with Benjamin W. S. Cabell and James Madison, over a motion of the former that judges whose courts were abolished, and to whom the Legislature assigned no new duties, should not receive salaries: "There were upwards of one hundred Inferior Courts in Virginia.... No gentleman could look at the dockets of these courts, and possibly think" that the judges would ever have no business to transact.
Cabell's amendment "stated an impossible case," said Marshall,—a "case where there should be no controversies between man and man, and no crimes committed against society. It stated a case that could not happen—and would the convention encounter the real hazard of putting almost every Judge in the Commonwealth in the power of the Legislature, for the sake of providing for an impossible case?"[1351]But in spite of Marshall's opposition, Cabell's amendment was adopted by a vote of 59to 36.[1352]Two weeks later, however, the convention reversed itself by two curious and contradictory votes.[1353]So in the end Marshall won.
The subject of the Judiciary did not seriously arise again until the vote on the adoption of the entire constitution was imminent. As it turned out, the constitution, when adopted, contained, in substance, the Judiciary provisions which Marshall had written and reported at the beginning of that body's deliberations.[1354]
The other and the commanding problem, for the solution of which the contention had been called, was made up of the associated questions of suffrage, taxation, and representation. Broadly speaking, the issue was that of white manhood suffrage and representation based upon the enumeration of whites, as against suffrage determined by property and taxation, representation to be based on an enumeration which included three fifths of the slave population.[1355]
In these complex and tangled questions the State and the convention were divided; so fierce were the contending factions, and so diverse were opinions on various elements of the confused problem, especially among those demanding reform, that at times no solution seemed possible. The friends of reform were fairly well organized and coöperated in a spirit ofunity uncommon to liberals. But, as generally happens, the conservatives had much better discipline, far more harmony of opinion and conduct. The debate on both sides was able and brilliant.[1356]
Finally the convention seemingly became deadlocked. Each side declared it would not yield.[1357]Then came the inevitable reaction—a spirit of conciliation mellowed everybody. Sheer human nature, wearied of strife, sought the escape that mutual accommodation alone afforded. The moment came for which Marshall had been patiently waiting. Rising slowly, as was his wont, until his great height seemed to the convention to be increased, his soothing voice, in the very gentleness of its timbre, gave a sense of restfulness and agreement so grateful to, and so desired by, even the sternest of the combatants.