Part One: Chapter III.

John Marshall: Last of the Virginia Federalists

Unlike John Taylor of Caroline, whose fame lies buried with his cause, the reputation of John Marshall has taken on immense proportions with the later triumph of his principles. There is abundant reason for the veneration in which he has come to be held by present-day disciples of Hamilton. More than any other man he saved the future for Federalism. During the critical years of the jeffersonian and jacksonian assaults upon the outworks of nationalism, he held the inner keep of the law, and prepared for the larger victories that Game long alter he was in his grave. His strategic judicial decisions served as a causeway over which passed the eighteenth century doctrine of the sovereignty of the law, to unite with the new philosophy of capitalistic exploitation. The turbid waters of frontier leveling and states-rights democracy washed fiercely about him, but he went on quietly with his self-appointed work. He was one man who would not bow his neck to the majority yoke, would not worship the democratic Baal. He profoundly distrusted the principle of confederation. Convinced that the "continental belt" must be buckled tightly, he gave unstinted service to the cause of consolidation. The imperative need of a sovereign political state to curb the disintegrating forces of America was axíomatic in his thinking. Looking upon all democratic aspirations as calculated to destroy federal sovereignty, and convinced that the principle of equalitarianism was a bow strung to wield against society, he stoutly upheld the principle of minority rule as the only practical agency of stable and orderly government. Holding such views it was a matter of high and patriotic duty with Marshall to use his official position to prevent the majority will from endangering interests which were far more sacred in his eyes than any natural rights propagated in the hothouse of French philosophy. He was the last of the old school of Federalists and the first of the new.

That John Marshall should have come out of Virginia is perhaps the most ironical fact in the political history of the Old Dominion. Quite unrepresentative of the dominant planter group that had gone over to Jefferson, bitterly hostile to the agrarian interests that spoke through John Taylor, he was the leader of a small remnant of Virginians who followed Washington through the fierce extremes of party conflict. He was the last and ablest representative of the older middle-class Virginia, given to speculation and intent on money-making, that was being superseded by a cavalier Virginia concerned about quite other things than financial interests. He belonged rather to Boston than to Richmond. His intense prejudices were primarily property prejudices. He was the Fisher Ames of the South, embodying every principle of the dogmatic tie-wig school of New England Federalists. Profoundly influenced by Hamilton and Robert Morris, he seems to have found the Boston group more congenial in temper and outlook. The explanation of his strong property-consciousness is to be discovered both in his material ambitions and his professional interests. He was a business man rather than a planter. He was heavily involved in land speculation and held stock in numerous corporations launched to exploit the resources of the state. Robert Morris, whose daughter married Marshall's younger brother, was his financial adviser and advanced money with which to purchase the Fairfax estate, an investment that cost the buyers the very considerable sum of fourteen thousand pounds and numerous lawsuits. He was a director in banks and a legal adviser in important causes involving property rights. His financial interests overran state boundaries and his political principles followed easily in their train, washing away all local and sectional loyalties.

Like his kinsman Jefferson, Marshall was bred on the Virginia frontier, and to the end of his life he retained the easy and careless democracy of dress and manners that marked his early environment. In his deportment he was far removed from the prim respectability of the Boston Federalists. A friendly, likable man, fond of pitching horseshoes and sitting in a game of cards, he was outwardly a genial member of the crude little Richmond world where politics and law and speculation engrossed the common attention. An easy-going nature, he was wholly wanting in intellectual interests. Strangely ill-read in the law, he was even more ignorant of history and economics and political theory. His mind took an early set, and hardened into rigidity during the reactionary years that lay between Shays's Rebellion and the rise of Napoleon. Of social and humanitarian interests he was utterly devoid. One might as well look for the sap of idealism in a last year's stump as in John Marshall. French romantic philosophy he regarded as the mother of all vicious leveling. There is no indication that he had ever heard of the Physiocratic school of economical, or had looked into the writings of Rousseau or Godwin or Paine. The blind sides of his mind were many; his intellectual contacts were few; yet what he saw and understood he grasped firmly. The narrowness of his outlook intensified the rigidity with which he held to his fixed opinions; and his extraordinary courage coupled with a dominant personality clothed his strategic position as Chief Justice with fateful influence on the later institutional development of America.

Although Marshall's later fame is the fame of a lawyer, he was in reality a politician whom fate in the person of John Adams placed on the Supreme Court bench at a critical moment, where his political opinions translated themselves into the organic law of the land, and shaped the constitution to special and particular ends. Masterful, tenacious, manipulating his fellow judges like putty, he was a judicial sovereign who for thirty-five years molded the plastic constitution to such form as pleased him, and when he died the work was so thoroughly done that later generations have not been able to undo it. His political opinions, therefore, become a matter of very great importance to the historian, for they help to explain the peculiar direction taken by our constitutional development. Materials for a just estimate of his remarkable career were long wanting, but with the appearance of Beveridge's able and explicit Life of John Marshall it is now possible to view him in exact historical perspective. Carefully documented, the work is a genial and readable interpretation that will go far to revivify the fame of the great Federalist. And yet in spite of its abundant documentation---drawn perhaps somewhat overmuch from Federalist sources-it is essentially a biographical thèse that is careful to magnify the nationalism of its hero and to minify the property consciousness. It provides a picturesque setting, but it is a bit careless in its evaluation of the rival philosophies then struggling for supremacy. Concerning the economics of the great contest between Federalism and Republicanism it offers very inadequate information, with the result that Jefferson is reduced to the status of a master politician set over against the constructive statesman. The intellectual limitations of the lawyer have reacted in these pages upon his political enemy. Certain of the old Federalist prejudices have come to life again in these entertaining pages.

The two fixed conceptions which dominated Marshall throughout his long career on the bench were the sovereignty of the federal state and the sanctity of private property; and these found their justification in the virulence of his hatred of democracy. No man in America was lese democratic in his political convictions. Underneath the free and easy exterior of the Chief Justice was as stalwart a reactionary as ever sat on the Supreme Court bench. He was utterly indifferent to popular views, and he calmly overturned the electoral verdicts of his fellow Americans with the deliberateness of a born autocrat. Not only were his important decisions political opinions, but they were Federalist opinions. America had made definite choice between the Federalist and Republican theories of government. It had repudiated the rule of "gentlemen of principle and property" and set up a very different rule. But to this mandate of the supposedly sovereign people Marshall declined to yield. Defeated at the polls, no longer in control of the executive and legislative branches of the government, Federalism found itself re intrenched in the prejudices of John Marshall. He boldly threw down the gage to the majority will, and when the long fierce struggle was over, he had effectively written into the fundamental law of the land the major tenets of the repudiated philosophy. "judicial statesmanship," Mr. Beveridge called these political decisions, and bids us admire statesmanship on the bench; yet the phrase runs so far as to merge the judge in the politician-an honest but somewhat indiscreet admission that the law may be twisted to partisan ends. The frankly political nature of Marshall's decision was universally recognized at the time, and this explains the intense partisanship they evoked, the fury of the Republicans and the extravagant praise of the Federalists. The so called Jeffersonian assault on the judiciary, of which so much has been made by the orthodox historians, and which came near to wrecking the system, was not primarily an attack upon the courts but upon political judges who used their places to serve party ends. It is a dangerous thing for the bench to twist the law to partisan or class purposes, yet to this very thing John Marshall was notoriously given.

As a judicial statesman, then, rather than a lawyer, Marshall is to be judged, and to such a business the political historian is more competent than the legalist. His important decisions fall into two main groups: those like Marbury vs. Madison that assert the supremacy of the judiciary over the legislature-that is, the power of the Supreme Court to nullify an act of Congress; and those like the Yazoo Fraud case and the Dartmouth College case, that assert the irrevocable nature of contracts. The first was an official pronouncement of the principle that Hamilton had elaborated in The Federalist, namely, that the constitution is a law and as such lies within the field of judicial interpretation. This was sound Federalist doctrine, and Marshall welcomed the opportunity to engraft it upon the fundamental law of the land, going far out of his way to bring it within the judicial purview It was a bold and skillful move, and as Beveridge remarks, it announced a principle that "is wholly and exclusively American. It is America's contribution to the science of the law" (Beveridge, Life of John Marshall, p. 142). A contribution, it should be added, which with the multiplying of republican constitutions in the later nineteenth century was pretty generally rejected.

Even more partisanly Federalist were the decision touching the nature of contract. These reached to the heart of the bitter opposition of the commercial and financial interests to the legislative acts of populistic majorities. Suffering heavily from the post-war confusion, those majorities had struck blindly at the profiteers whose well-feathered nests were securely protected by the law. the revolt was natural and human; a rough sense of social justice lay behind it; but because it struck at the most prosperous and capable members of society, who held the professional classes in retainer and dominated the agencies of publicity, it aroused an extraordinarily vindictive opposition. Dip into the literature of the seventeen-eighties and nineties anywhere, in the Anarchiad and the Echo of the Hartford Wits, or the private letters of indignant gentlemen, and the animus of the respectable classes is clamorously repealed. At bottom it was no other than this, that the law of business must be made the law of the land, and that any populistic tampering with such law was wicked and anarchistic. How determining was the spirit in the matter of the Constitutional Convention is sufficiently, well known. In the new constitution certain practices of populistic majorities were estopped-the emission of bills of credit and paper money, and laws impairing the obligation of contracts; but such provisions, strictly interpreted, did not reach to all cases. There were still gaps in the law of business through which populistic majorities might force their bills. To stop those gaps and complete the great work of rendering business secure was the problem to which Marshall addressed himself; and in the Yazoo Fraud case and the Dartmouth College case, he brought the long Federalistic struggle to a triumphant issue.

An examination of the first of those two celebrated cases will suffice to reveal the spirit of his judicial statesmanship. The state of Georgia, through its Legislature, had contracted to sell thirty-five million acres of land-the great part of the territory now comprising the states of Alabama and Mississippi-to certain speculative companies "at lese than one and one-half cents an acre." the passage of the bill was marked by more than the usual jobbery, so common with a generation fond of looting the public domain. The fraud was so gross that the state of Georgia was thrown into a fury that visited itself upon the corrupt legislators. A new legislature repealed the law and rescinded the contract; but some of the land had already been resold to investors in Boston and Philadelphia, who brought their claims before the Supreme Court. The state of mind in which the chief justice heard the argument is thus suggested by Beveridge: "Marshall was profoundly interested in the stability of contractual obligations. The repudiation of those by the legislature of Virginia had powerfully and permanently influenced his views upon this subject. Also Marshall's own title to part of the Fairfax estate had more than once been in jeopardy. At that very moment a suit affecting the title of his brother's to certain Fairfax lands was pending in Virginia courts" (Vol. III, p. 584). To suggest that a nicer judicial honor would have inhibited Marshall from sitting in the case is perhaps going too far if one accepts the principle of judicial statesmanship. Certainly Marshall discovered none of the scruples that must have troubled George Wythe. In awarding claims for compensation to the investors he held that the act of the Georgia legislature was a contract and as such was inviolable. The crux of the decision, however, lay in the pronouncement that the courts cannot examine the motives that induce legislators to enact a law, that the people are bound by their agents and must suffer the penalties of choosing unwise or corrupt agents. The upshot of the verdict, in plain language, was that a legislative contract is sacred no matter how corruptly got. A curious decision, surely, for one who professed to venerate the common law. A Virginian of the type of John Randolph would never have reasoned thus to a conclusion that laid open the public domain to the deals of clever lobbyists and encouraged the betrayal of official stewardship. He would scarcely have sacrificed the public interests to the law of business.

The bitter hostility which Marshall's decision aroused in his native commonwealth reveals how far the Virginia of Jefferson had traveled from the Federalism of the commercial North. The states-rights philosophy and the philosophy of consolidation were at swords' points; the agrarian and capitalistic economies were engaged in a mortal duel; that it should have been a Virginian who saved the day for the Hamiltonians, erecting the old Federalism into the law of the land, and conducting by his decision straight to an augmented, consolidated state, under the shadow of whose power the development of corporate finance might go forward without agrarian let or hindrance, was a bitter brew for the Jeffersonian planters to drink. As Marshall grew old he drew farther away from his fellow Virginians. In his last years he was perhaps the most reactionary man in America. "Should Jackson be elected," he wrote in 1828, " I shall look upon the government as virtually dissolved" (Beveridge, Vol. IV, p. 463). His last hatreds he divided between Old Hickory and the rising democratic movement. He bitterly resisted the spread of manhood suffrage; he would make no change even in the antiquated judicial system of Virginia; he would have no overturning of anything established. A stubborn autocrat he remained to the end, and there was a certain ironic fitness in his last encounter with the executive power. The autocratic lawyer met his match in the autocratic soldier who grimly remarked, "John Marshall has made his decision, now let him enforce it."

Nearly a century has passed since these happenings [concludes Beveridge] and Marshall's attitude now appears to have been that of cold reaction; but he was as honest as he was outspoken in his resistance to democratic reforms. He wanted good government, safe government. He was not in the least concerned in the rule of the people as such. Indeed, he believed that the more they directly controlled public affairs the worse the business of government would be conducted. He feared that sheer majorities would be unjust, intolerant, tyrannical, and he was certain that they would be untrustworthy and freakishly changeable. (Vol. IV, p. 507.)

A strong, resourceful, honest, capable man was John Marshall. In so far there is pretty common agreement. Beyond this, comes in the sundering blade of political theory. Concerning the wisdom of his judicial statesmanship it is idle to expect Federalist and Democrat to agree.

1 For an excellent discussion see Beveridge, Life of John Marshall Vol. III. Chap. III.


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