INFLUENCE OF JOHN MARSHALL ON AMERICAN

JURISPRUDENCE.

BY JNO BELL KEEBLE, OF NASHVILLE.

I find that the subject which is upon the program is a far broader and more dignified subject than I am able to live up to in this paper.

It would be impossible, even though I possessed a much larger fund of information, and a very much stronger grasp of the development of this country's history from a constitutional standpoint, for me to give adequate expression to the influence that John Marshall has had upon the development of the constitutional character of our government.

It has been my experience, that every year I live and devote any time at all to the study of any case decided by the Supreme Court of the United States, dealing with the powers of the Federal Government, I realize some new influence or power that was exerted by the great Chief Justice.

I, therefore, have confined this paper to the consideration of certain cases, with an attempt to show how these cases have influenced the history and development of the Federal Union.

The study of the life and character of John Marshall is a fascinating one. One of the greatest lessons that can be derived from it, is the refutation of the proposition that soldiers, and men who occupy positions in public life, as presidents and senators, are the only persons whose influence can be felt in years to come, and are the only persons who can render such service to their fellow citizens as to escape oblivion.

On the other hand, the labors of John Marshall, and the recognition which he is today receiving as a powerful influence upon the history of the country, is indicative of the fact that frequently, in the more silent and less observed walks of national life, is being laid the foundation for a monument that in generations to come, may tower above many monuments the foundations of which are laid in more public places and in the presence of loud and popular acclaim.

There is another striking lesson to be learned from the character of Marshall, as indicated in his decisions, which, in my judgment, places him in a position of superiority when compared with even the greatest of his contemporaries, from

the standpoint of the judging public. That one thing is this: The absence of the spectacular; the absence of any trait of the demagogue; the absence of any apparent desire to establish himself or his reputation; the absence of bitterness and envy towards those who disagreed with him, and the great tolerance and respect he had for the views of other men.

It is the purpose of this paper to discuss several of the opinions of Chief Justice Marshall that have admittedly made great impressions upon the nature of government in general, and upon the nature and power of the Federal Government in particular. No other one man has made such an impression upon both of these phases of our governmental and national affairs as Marshall.

One of the earliest cases to which I shall refer, is the case of Marbury against Madison, decided in 1803. This case is of particular interest at this time, when the entire national life has been disturbed, and great interest created by the constant assaults made upon the Courts, and particularly the Supreme Court of the United States, because of the fact that repeatedly legislative enactments have been declared void, as beyond the constitutional powers of legislative bodies.

It is well known, that under the English system, Parliament is supreme; and while England is supposed to be a government with a Constitution, nevertheless the violation of any guarantee of the Magna Charter, or the bill of rights, or any other phase of recognized constitutional guaranty, must yield to the legislative will. The acts of Parliament are the law, and the remedy of those who constitutional guarantees are infringed is political. Relief must be sought by an appeal to the people, rather than by an appeal to the Courts. However, it is generally well known that the English Constitution is said to be unwritten, as distinguished from the Constitution of the United States, which is in one document proposes to grant powers and to express definite limitations upon the government itself.

It cannot be definitely stated, perhaps, that when this instrument was fashioned, or adopted, it was generally understood that there should be a system of constitutional limitations, that placed in the power of the Courts to overthrow the final expressions of the legislative body, and to abrogate the statutes

of Congress, upon the ground that they infringed upon the personal rights guaranteed to citizens. Nevertheless, there is room for believing that, at least in the minds of many, this was the conception of the matter.

Two great questions were always considered in discussing this question. In the first place, here was a government over people subject to other sovereignties. A government, the powers of which depended upon an instrument granting the powers. Naturally, subsequently, as we know too well, issue arose between the States and the Federal Government. Congress, for instance, was given the exclusive right to regulate interstate commerce. When was the enactment of Congress a regulation of interstate commerce, and when was it a transgression of the rights of the States? Who was to decide such questions, and how were they to be decided?

In the second place, the American people were thoroughly educated upon the proposition, that constitutional rights, no matter how well recognized theoretically, were practically valueless to the minority either numerically or in power.

Hamilton, in the Federalist, upon one phase of this proposition, said, in duscussing the powers of the judiciary:

"What, for instance, would avail restrictions on the authority of State Legislatures, without some constitutional mode of observance of them? The States, by the plan of the convention, are prohibited from doing a variety of things; some of which are incompatible with the interests of the Union, and others with the principles of good government. The imposition of duties on imported articles, and the emission of paper money, are specimens of each kind, and no man of sense will believe, that such prohibition would be scrupulously regarded without some effectual power in government to restrain or correct the infractions of them. This power must either be a direct negative on the State Laws, or an authority of the Federal Courts to overrule such as might be manifest contravention of the articles of Union. There is no third course that I can imagine. The latter appears to have been thought by the convention preferable to the former, and I presume will be most agreeable to the States."

In another paper, he makes reply to the charge that under the Constitution, "the errors and usurpation of the Supreme Court of the United States will be incontrovertible and remediless," saying: "This, upon examination, will be found to be altogether made up of false reasoning and misconceived fact. In the first place, there is not a syllable in the plan under consideration which directly empowers the National Courts to construe the laws according to the spirit of the Constitution, or which gives them greater latitude in this respect than may be claimed by the Courts of every State. I admit, however, that the Constitution ought to be the standard of construction for the laws, and whenever there is an evident opposition, the laws ought to give place to the Constitution. But this doctrine is not deducible from any circumstance peculiar to the plan of the convention; but from the general theory of a limited constitution; and, as far as it is true, is equally applicable to most, if not all, of the State Governments."

Thus it appears, that in the discussion over the Constitution, the question now so violently agitated in the minds of the people, was presented and discussed.

It can further be said, that while it was not clearly or definitely settled, at least some were of the impression that the power rested with the Supreme Court not only to abrogate enactments of State Legislatures, but to annul the Statutes of Congress deemed to be in violation of the Constitution.

In the records of the convention, we find some fragmentary but unsatisfactory discussions of the proposition. It was considered and discussed as to whether it was wise to permit the judiciary to have a voice with the executive in the exercise of the veto power. In this discussion an occasional statement throws some light on the views of the individuals.

Luther Martin, said to have been the greatest lawyer of his time, in America, at least, is quoted as saying, in opposition to this: "And as to the Constitutionality of laws, that point will come before the judges in their proper official character. In this character, they have a negative upon the laws."

Madison is quoted in one place as saying: "A law violating

a constitution established by the people themselves, would be considered by the Judges null and void.”

On the other hand, showing there was a difference of opinion on the subject, Mr. Merser "disapproved of the doctrine that the judges, as expositors of the constitution, should have authority to declare a law void." He thought laws ought to be well and cautiously made, and then be uncontrollable. Mr. Dickenson shared Mr. Mercer's views.

Oliver Ellsworth, in the Connecticut Convention, said: "If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void, and the judicial power, the National Judges, who to secure their impartialty are to be made independent, will declare it to be void."

Jefferson rather seems to emphasize this view in his letters about the Constitution, although later in life he lashed Marshall, and the Courts, on account of the exercise of this same power. But in this he was no more inconsistent than he was in many other respects.

Doubtless there was a contrariety of opinion upon the subject, until it came up for consideration in 1803, in the celebrated case of Marbury v. Madison.

As is so often the case, great principles are settled in cases that at first blush would give so little opportunity for them to be settled.

In this case, a motion was made in the Supreme Court of the United States, that rule be made upon James Madison, Secretary of State, to show cause why a mandamus should not issue, commanding him to deliver, or cause to be delivered to divers persons, commissions as Justices of the Peace in the District of Columbia.

The case finally narrowed down to the point as to whether or not the Supreme Court of the United States could issue a writ of mandamus in a case of this character. An Act of Congress authorized the Court to issue such a writ. The Constitution itself, however, vested original jurisdiction of this Court "in all cases affecting embassadors and other public ministers and consuls, and that in which a State shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction."

The court first held that as this writ was in this case the exercise of original jurisdiction, in a cause in which the Con