"[If, then,] an act of the legislature, repugnant to the Constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

"[However, there are those who maintain] that courts must close their eyes on the Constitution, and see only the law.... This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual.

"[Moreover,] the peculiar expressions of the Constitution of the United States furnish additional arguments in favor of its rejection. The judicial power of the United States is extended to all cases arising under the Constitution. Could it be the intention of those who gave this power, to say that in using it the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained.

"In some cases, then, the Constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey? There are many other parts of the Constitution which serve to illustrate this subject.... 'No person,' says the Constitution, 'shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.' Here the language of the Constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act?...

"It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank.

"Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void; and that courts, as well as other departments are bound by that instrument."

There is not a false step in Marshall's argument. It is, for instance, not contended that the language of the Constitution establishes judicial review but only that it "confirms and strengthens the principle." Granting the finality of judicial decisions and that they may not be validly disturbed by legislative enactment, the argument is logically conclusive, whatever practical difficulties it may ignore.

Turning back to the case itself, we ought finally to note how Marshall utilized this opportunity to make manifest the newly found solidarity of the Court. For the first time in its history the Court was one voice, speaking through its Chief Justice the ineluctable decrees of the law. Ordinarily even Marshall would not have found this achievement an easy task, for there were difficult personalities among his associates. He had in Adams's Cabinet demonstrated his faculty "of putting his ideas into the minds of others, unconsciously to them," and of this power he now made use, as well as of the advantage to be obtained from the impending common danger.

The case of Marbury vs. Madison was decided on February 24, 1803, and therefore fell between two other events which were immediately of almost as great importance in the struggle now waxing over the judiciary. The first of these was the impeachment of Judge Pickering of the New Hampshire District Court, which was suggested by the President on the 3d of February and voted by the House on the 18th of February; the other was an address which Justice Chase delivered on the 2d of May to a Baltimore grand jury, assailing the repeal of the Judiciary Act and universal suffrage and predicting the deterioration of "our republican Constitution... into a mobocracy, the worst of all possible governments." * Considering the fact that the President was still smarting from the Chief Justice's lash and also that Chase himself was more heartily detested by the Republicans than any other member of the Supreme Bench, nothing could have been more untimely than this fresh judicial excursion into the field of "manners and morals," and partisan malice was naturally alert to interpret it as something even more offensive. The report soon came from Baltimore that Chase had deliberately assailed the Administration as "weak, pusillanimous, relaxed," and governed by the sole desire of continuing "in unfairly acquired power." But even before this intelligence arrived, Jefferson had decided that the opportunity afforded by Chase's outburst was too good a one to be neglected. Writing on the 13th of May to Nicholson of Maryland, who already had Pickering's impeachment in charge, the President inquired: "Ought this seditious and official attack on the principles of our Constitution and the proceedings of a State go unpunished?" But he straightway added: "The question is for your consideration; for myself it is better I should not interfere."

* The account here given of Chase's trial is based on Charles Evans's shorthand "Report" (Baltimore, 1805), supplemented by J.Q. Adams's "Memoirs".

Pickering's trial began on March 2, 1804, and had a bearing on Chase's fate which at once became clear. The evidence against the New Hampshire judge showed intoxication and profanity on the bench and entire unfitness for office, but further evidence introduced in his behalf proved the defendant's insanity; and so the question at once arose whether an insane man can be guilty of "high crimes and misdemeanors?" Greatly troubled by this new aspect of the case, the Senate none the less voted Pickering guilty "as charged," by the required two-thirds majority, though eight members refused to vote at all. But the exponents of "judge-breaking" saw only the action of the Senate and were blind to its hesitation. On the same day on which the Senate gave its verdict on Dickering, the House by a strictly partisan vote decreed Chase's impeachment.

The charges against Chase were finally elaborated in eight articles. The substance of the first six was that he had been guilty of "oppressive conduct" at the trials of John Fries and James Thompson Callender. The seventh charged him with having attempted at some time in 1800 to dragoon a grand jury at Newcastle, Delaware, into bringing forward an accusation of sedition against a local paper. These seven articles related therefore to transactions already four or five years old. The eighth article alone was based on the address at Baltimore, which it characterized as "an intemperate and inflammatory political harangue," delivered "with intent to excite the fears and resentment... of the good people of Maryland against their State Government and Constitution,... and against the Government of the United States."

But the charges framed against Chase revealed only imperfectly the animus which was now coming more and more to control the impeachers. Fortunately, however, there was one man among the President's advisers who was ready to carry the whole antijudicial program as far as possible. This uncompromising opponent was William Branch Giles, Senator from Virginia, whose views on the subject of impeachment were taken down by John Quincy Adams just as Chase's trial was about to open. Giles, according to this record, "treated with the utmost contempt the idea of an INDEPENDENT JUDICIARY—said there was not a word about their independence in the Constitution.... The power of impeachment was given without limitation to the House of Representatives; the power of trying impeachment was given equally without limitation to the Senate; and if the Judges of the Supreme Court should dare, as they had done, to declare an act of Congress unconstitutional, or to send a mandamus to the Secretary of State, as they had done, it was the unreserved right of the House of Representatives to impeach them, and that of the Senate to remove them, for giving such opinions, however, honest or sincere they may have been in entertaining them." For "impeachment was not a criminal prosecution, it was no prosecution at all." It only signified that the impeached officer held dangerous opinions and that his office ought to be in better hands. "I perceive," adds Adams, on his own account, "that the impeachment system is to be pursued, and the whole bench of the Supreme Court to be swept away, because THEIR OFFICES are wanted. And in the present state of things I am convinced it is as easy for Mr. John Randolph and Mr. Giles to do this as to say it."

The trial formally opened on January 2, 1805, though the taking of testimony did not begin until the 9th of February. A contemporary description of the Senate chamber shows that the apostles of Republican simplicity, with the pomp of the Warren Hastings trial still fresh in mind, were not at all averse to making the scene as impressive as possible by the use of several different colors of cloth: "On the right and left of the President of the Senate, and in a right line with his chair, there are two rows of benches with desks in front, and the whole front and seats covered with crimson cloth.... A temporary semi-circular gallery, which consists of three ranges of benches, is elevated on pillars and the whole front and seats thereof covered with green cloth.... In this gallery ladies are accommodated.... On the right and left hand of the President ... are two boxes of two rows of seats... that facing the President's right is occupied by the managers... that on the other side of the bar for the accused and his counsel... these boxes are covered with blue cloth." To preside over this scene of somewhat dubious splendor came Aaron Burr, Vice-President of the United States, straight from the dueling ground at Weehawken.

The occasion brought forward one of the most extraordinary men of the day, Luther Martin, Chase's friend and the leader of his counsel. Born at New Brunswick, New Jersey, in 1744, Martin graduated from Princeton in 1766, the first of a class of thirty-five, among whom was Oliver Ellsworth. Five years later he began to practice law on the Eastern Shore of Maryland and in the adjoining counties of Virginia, where he won an immediate success, especially in criminal cases. At a single term of court, out of thirty defendants he procured the acquittal of twenty-nine, while the thirtieth, indicted for murder, was convicted of manslaughter. In 1805 Martin was the acknowledged head of the American Bar, but at the same time he was undoubtedly a drunkard and a spendthrift. With an income of $10,000 a year, he was always in need. His mediocre stature, thinning locks, and undistinguished features created an impression which was confirmed by his slovenly attire and ungrammatical speech, which seemed "shackled by a preternatural secretion of saliva." Here, indeed, for ugliness and caustic tongue was "the Thersites of the law." Yet once he was roused to action, his great resources made themselves apparent: a memory amounting to genius, a boyish delight in the rough-and-tumble of combat, a wealth of passion, kept in perfect curb till the enemy was already in rout before solid argument and then let loose with destroying effect. This child of nature was governed in his practice of the law less by retainers than by his personal loves and hatreds. Samuel Chase he loved and Thomas Jefferson he hated, and though his acquaintance with criminals had furnished him with a vituperative vocabulary of some amplitude, he considered no other damnation quite so scathing as to call a man "as great a scoundrel as Tom Jefferson."

The impeachers had no one whom they could pit against this "unprincipled and impudent Federalist bulldog," as Jefferson called him; and in other ways, too, from the first their lot was not easy. For one thing, they could not agree among themselves as to the proper scope of impeachment under the Constitution. Randolph, the leader of the House managers, and Campbell adhered in essence to Giles's theory. But Rodney and Nicholson, both much abler lawyers, openly disavowed such latitudinarian doctrine. In a general way, their view of the matter may be stated thus: Because judges of the United States are guaranteed continuance in office only during "good behavior," and because impeachment is the only method of removal recognized by the Constitution, the "high crimes and misdemeanors" for which impeachment is the constitutional resource must include all cases of willful misconduct in office, whether indictable or not. This seems sound theory and appears today to be established theory. But sound or not, the managers of the Republicans were not a unit in urging it, while their opponents put forward with confidence and unanimity the theory that "high crimes and misdemeanors" were always indictable offenses.

More calamitous still for the accusers of Chase was the way in which, when the evidence began to come in, the case against him started crumpling at the corners. Lewis, who had been Fries's attorney and whose testimony they had chiefly relied upon to prove the judge's unfairness on that occasion, had not only acknowledged that his memory was "not very tenacious" after so great a lapse of time but had further admitted that he had really dropped the case because he thought it "more likely that the President would pardon him [Fries] after having been convicted without having counsel than if he had." Similarly Hay, whose repeated efforts to bring the question of the constitutionality of the Sedition Act before the jury had caused the rupture between court and counsel in Callender's case, owned that he had entertained "but little hopes of doing Callender any good" but had "wished to address the public on the constitutionality of the law." Sensations multiplied on every side. A man named Heath testified that Chase had told the marshal to strike all Democrats from the panel which was to try Callender; whereupon a second witness called to confirm this testimony stated facts which showed the whole story to be a deliberate fabrication. The story that Chase had attacked the Administration at Baltimore was also substantially disproved by the managers' own witnesses. But the climax of absurdity was reached in the fifth and sixth articles of impeachment, which were based on the assumption that an act of Congress had required the procedure in Callender's case to be in accordance with the law of Virginia. In reply to this argument Chase's attorneys quickly pointed out that the statute relied upon applied only to actions between citizens of different States!

The final arguments began on the 20th of February. The first speech in behalf of Chase was delivered by Joseph Hopkinson, a young Philadelphia attorney, whose effort stirred the admiration of Federalists and Republicans alike. He dwelt upon "the infinite importance" of the implications of this case for the future of the Republic, contrasted the frivolity of the charges brought against Chase with the magnitude of the crimes of which Warren Hastings had been accused, and pointed out that, whereas in England only two judges had been impeached in half a century, in America, "boasting of its superior purity and virtue," seven judges had been prosecuted within two years. More loosely wrought, but not less effective was Martin's address, the superb climax of a remarkable forensic career! The accusation against Chase he reduced to a charge of indecorum, and he was ready to admit that the manner of his friend "bore a stronger resemblance to that of Lord Thurlow than of Lord Chesterfield," but, said he, our judges ought not to be "like the gods of Epicurus lolling upon their beds of down, equally careless whether the laws of their country are obeyed or violated, instead of ACTIVELY discharging their duties."

The closing argument, which fell to the managers, was assigned to Randolph. It was an unmitigated disaster for the cause in behalf of which it was pronounced. "I feel perfectly inadequate to the task of closing this important debate on account of a severe indisposition which I labor under," were Randolph's opening words, but even this prefatory apology gave little warning of the distressing exhibition of incompetence which was to follow. "On the reopening of the court," records John Quincy Adams in his "Memoirs," "he [Randolph] began a speech of about two hours and a half, with as little relation to the subject-matter as possible... without order, connection, or argument; consisting altogether of the most hackneyed commonplaces of popular declamation, mingled up with panegyrics and invectives upon persons, with a few well-expressed ideas, a few striking figures, much distortion of face and contortion of body, tears, groans and sobs, with occasional pauses for recollection, and continual complaints of having lost his notes." So ended the ambition of John Randolph of Roanoke to prove himself another Burke!

But while their frontal assault on the reason of the court was thus breaking down, the impeachers, led by the President, were attempting a flank movement on its virtue. They especially distrusted the "steadiness" of certain New England and New York Senators and hoped to reach the hearts of these gentlemen through Aaron Burr, the Vice-President. Burr had heretofore found himself vested with the role of Lucifer in the Republican Paradise. Now he found himself suddenly basking in a perpetual sunburst of smiles both from the great central luminary, Jefferson, and his paler satellites, Madison and Gallatin. Invitations to the President's dinners were soon followed by more substantial bribes. Burr's step-son became judge of the Superior Court at New Orleans; his brother-in-law, secretary to the Louisiana Territory; his intimate friend Wilkinson, its military commandant. Then Giles, whose view of impeachment left him utterly shameless in the matter, drew up and circulated in the Senate itself a petition to the Governor of New Jersey asking him to quash the indictment for murder which the Bergen County grand jury had found against Burr as a result of the duel with Hamilton. At the same time, an act was passed giving the retiring Vice-President the franking privilege for life. In the debate Senator Wright of Maryland declared that dueling was justified by the example of David and Goliath and that the bill was opposed "only because our David had slain the Goliath of Federalism."

Whether Burr made any attempt to render the expected quid pro quo for these favors does not appear, but at least if he did, his efforts were fruitless. The vote on the impeachment of Chase was taken on the 1st of March, and the impeachers were crushingly defeated. On the first article they could muster only sixteen votes out of thirty-four; on the second, only ten; on the fifth, none; on the sixth, four. Even on the last article, where they made their best showing, they were still four votes short of the required constitutional majority. When the result of the last ballot was announced, Randolph rushed from the Senate chamber to the House to introduce a resolution proposing an amendment to the Constitution, requiring that judges of the United States "shall be removed by the President on joint address of both Houses of Congress." At the same time Nicholson moved an amendment providing legislative recall for Senators. Thus exasperation was vented and no harm done.

Meanwhile word had come from Philadelphia that the impeachment of the State Supreme Court judges had also failed. Here, even more impressively than in the case of Chase, had been illustrated that solidarity of Bench and Bar which has ever since been such an influential factor in American government. The Pennsylvania judge-breakers, failing to induce a single reputable member of the Philadelphia bar to aid them, had been obliged to go to Delaware, whence they procured Caesar A. Rodney, one of the House managers against Chase. The two impeachments were thus closely connected and their results were similar. In the first place, it was determined that impeachment was likely to be, in the petulant language of Jefferson, "a farce" not soon to be used again for partisan purposes. In the second place, it was probable that henceforth, in the Commonwealths as well as in the National Government, political power would be exercised subject to constitutional restraints applied judicially. In the third place, however, the judges would henceforth have to be content with the possession of this magnificent prerogative and dispense with all judicial homilies on "manners and morals." It was a fair compromise and has on the whole proved a beneficial one.



CHAPTER IV. The Trial Of Aaron Burr

When, on March 30, 1807, Colonel Aaron Burr, late Vice-President of the United States, was brought before Chief Justice Marshall in the Eagle Tavern at Richmond on the charge of treason, there began the greatest criminal trial in American history and one of the notable trials in the annals of the law.

"The Burr Conspiracy" still remains after a hundred years an unsolved enigma. Yet whether Burr actually planned treason against the United States in the year of grace 1806 is after all a question of somewhat restricted importance. The essential truth is that he was by nature an adventurer who, in the words of Hamilton, "believed all things possible to daring and energy," and that in 1806 he was a bankrupt and asocial outcast to boot. Whether, therefore, his grandiose project of an empire on the ruins of Spanish dominion in Mexico involved also an effort to separate some part of the West from the Union is a question which, if it was ever definitely determined in Burr's own mind, was determined, we may be sure, quite independently of any moral or patriotic considerations.

Burr's activities after his term of public office ended in March, 1805, were devious, complicated, and purposely veiled, involving many men and spread over a large territory. * Near Marietta on an island in the Ohio River, Burr came upon Harman Blennerhassett, a genial Irishman living in a luxurious and hospitable mansion which was making a heavy drain upon his already diminished resources. Here Burr, by his charm of manner and engaging conversation, soon won from the simple Irishman his heart and his remaining funds. He also made the island both a convenient rendezvous for his adherents in his ambitious schemes and a starting point for his own extended expeditions, which took him during the latter part of this year to Natchez, Nashville, St. Louis, Vincennes, Cincinnati, and Philadelphia, and back to Washington.

* An account of the Burr conspiracy will be found in "Jefferson and his Colleagues," by Allen Johnson (in "The Chronicles of America").

In the summer of 1806 Burr turned westward a second time and with the assistance of Blennerhassett he began military preparations on the latter's island for a mysterious expedition. On the 29th of July, Burr had dispatched a letter in cipher to Wilkinson, his most important confederate. The precise terms of this document we shall never know, but apparently it contained the most amazing claims of the successful maturing of Burr's scheme: "funds had been obtained," "English naval protection had been secured," "from five hundred to a thousand men" would be on the move down the Mississippi by the middle of November. Unfortunately for Burr, however, Wilkinson was far too expert in the usages of iniquity to be taken in by such audacious lying as this. He guessed that the enterprise was on the verge of collapse and forthwith made up his mind to abandon it.

Meanwhile exaggerated accounts of the size of Burr's following were filtering to Washington, together with circumstantial rumors of the disloyalty of his designs. Yet for weeks Jefferson did nothing, until late in November his alarm was aroused by a letter from Wilkinson, dated the 21st of October. On the 27th of November the President issued a proclamation calling upon all good citizens to seize "sundry persons" who were charged with setting on foot a military expedition against Spain. Already Burr, realizing that the West was not so hot for disunion as perhaps he had supposed it to be, began to represent his project as a peaceful emigration to the Washita, a precaution which, however, came too late to allay the rising excitement of the people. Fearing the seizure of their equipment, thirty or forty of Burr's followers under the leadership of Blennerhassett left the island in four or five flatboats for New Orleans, on the night of the 10th of December, and a few days later were joined by Burr himself at the mouth of the Cumberland. When the little expedition paused near Natchez, on the 10th of January, Burr was confronted with a newspaper containing a transcription of his fatal letter to Wilkinson. A week later, learning that his former ally, Wilkinson, had now established a reign of terror at New Orleans directed against his followers; and feeling no desire to test the tender mercies of a court-martial presided over by his former associate, Burr surrendered himself into the custody of the acting Governor of Mississippi Territory. But the refusal of the territorial grand jury to indict him suggested the hope that he might still escape from the reach of the law. He therefore plunged into the wilderness, headed for the Spanish border, and had all but reached his destination when he was recognized and recaptured at Wakefield, Alabama.

Owing to the peculiar and complicated circumstances which led up to it, Burr's case was from the outset imbued with factional and partisan politics of the most extreme kind. While the conspiracy was at its height, Jefferson, though emphatically warned, had refused to lend it any credence whatever; but when the danger was well over he had thrown the whole country into a panic, and had even asked Congress to suspend the writ of habeas corpus. The Federalists and the President's enemies within his own party, headed by the redoubtable Randolph, were instantly alert to the opportunity which Jefferson's inexplicable conduct afforded them. "The mountain had labored and brought forth a mouse," quoted the supercilious; the executive dragnet had descended to envelop the monster which was ready to split the Union or at least to embroil its relations with a friendly power, and had brought up—a few peaceful agriculturists! Nor was this the worst of the matter, contended these critics of the Administration, for the real source of the peril had been the President's own action in assigning the command at New Orleans to Wilkinson, a pensioner of Spain, a villain "from the bark to the very core." Yet so far was the President from admitting this error that he now attributed the salvation of the country to "the soldier's honor" and "the citizen's fidelity" of this same Wilkinson. Surely, then, the real defendants before the bar of opinion were Thomas Jefferson and his precious ally James Wilkinson, not their harried and unfortunate victim, Aaron Burr!

The proceedings against Burr occupied altogether some seven months, during which the sleepy little town of Richmond became the cynosure of all eyes. So famous was the case that it brought thither of necessity or out of curiosity men of every rank and grade of life, of every species of renown. The prosecution was in charge of the United States District Attorney, George Hay—serious, humorless, faithful to Jefferson's interests, and absolutely devoid of the personal authority demanded by so grave a cause. He was assisted by William Wirt, already a brilliant lawyer and possessed of a dazzling elocution, but sadly lacking in the majesty of years. At the head and forefront of the defense stood Burr himself, an unerring legal tactician, deciding every move of the great game, the stake of which for him was life itself. About him were gathered the ablest members of the Richmond bar: John Wickham, witty and ingenious, Edmund Randolph, ponderous and pontifical, Benjamin Botts, learned and sarcastic, while from Baltimore came Luther Martin to aid his "highly respected friend," to keep the political pot boiling, and eventually to fall desperately in love with Burr's daughter, the beautiful Theodosia. Among the 140 witnesses there were also some notable figures: William Eaton, the hero of Derne, whom Burr's codefendant, Blennerhassett, describes for us as "strutting about the streets under a tremendous hat, with a Turkish sash over colored clothes," and offering up, with his frequent libations in the taverns, "the copious effusions of his sorrows"; Commodore Truxton, the gallant commander of the Constellation; General Andrew Jackson, future President of the United States, but now a vehement declaimer of Burr's innocence—out of abundant caution for his own reputation, it may be surmised; Erick Bollmann, once a participant in the effort to release Lafayette from Olmutz and himself just now released from durance vile on a writ of habeas corpus from the Supreme Court; Samuel Swartwout, another tool of Burr's, reserved by the same beneficent writ for a career of political roguery which was to culminate in his swindling the Government out of a million and a quarter dollars; and finally the bibulous and traitorous Wilkinson, "whose head" as he himself owned, "might err," but "whose heart could not deceive." Traveling by packet from New Orleans, this essential witness was heralded by the impatient prosecution, till at last he burst upon the stage with all the eclat of the hero in a melodrama—only to retire bated and perplexed, his villainy guessed by his own partisans.

By the Constitution treason against the United States consists "only in levying war against them, or in adhering to their enemies, giving them aid and comfort," and no person may be convicted of it "unless on the testimony of two witnesses to the same overt act, or on confession in open court." The motion to commit Burr for treason thus raised at the outset the question whether in this case an "overt act" existed. Marshall, who held that no evidence had been shown to this effect, denied the motion, but consented to commit the prisoner on the lesser charge that he had attempted a military expedition against Spain. As this was a bailable offense, however, Burr was soon at liberty once more.

Nor was this the only respect in which the preliminary proceedings sounded a note of antagonism between the Chief Justice and the Administration which was to recur again and yet again in the months following. Only a few weeks earlier at Washington, Marshall had, though with some apparent reluctance, ordered the release of Bollmann and Swartwout, two of Burr's tools, from the custody of the Federal authorities. Alluding in his present opinion to his reason for his earlier action, he wrote: "More than five weeks have elapsed since the opinion of the Supreme Court has declared the necessity of proving the fact, if it exists. Why is it not proved? To the executive government is entrusted the important power of prosecuting those whose crimes may disturb the public repose or endanger its safety. It would be easy, in much less time than has intervened since Colonel Burr has been alleged to have assembled his troops, to procure affidavits establishing the fact."

This sharp criticism brought an equally sharp retort from Jefferson, to which was added a threat. In a private letter of the 20th of April, the President said: "In what terms of decency can we speak of this? As if an express could go to Natchez or the mouth of the Cumberland and return in five weeks, to do which has never taken less than twelve!... But all the principles of law are to be perverted which would bear on the favorite offenders who endeavor to overturn this odious republic!... All this, however, will work well. The nation will judge both the offender and judges for themselves.... They will see then and amend the error in our Constitution which makes any branch independent of the nation.... If their [the judges] protection of Burr produces this amendment, it will do more good than his condemnation would have done." Already the case had taken on the color of a fresh contest between the President and the Chief Justice.

On the 22d of May the United States Court for the Fifth Circuit and the Virginia District formally convened, with Marshall presiding and Judge Grin at his side. On the same day the grand jury was sworn, with John Randolph as foreman, and presently began taking testimony. Unluckily for the prosecution, the proceedings now awaited the arrival of Wilkinson and the delay was turned to skillful use by the defense to embroil further the relations between the Chief Justice and the President. With this end in view, Burr moved on the 9th of June that a subpoena duces tecum issue to Jefferson requiring him to produce certain papers, including the famous cipher letter to Wilkinson. The main question involved, of course, was that of the right of the Court under any circumstances to issue a subpoena to the President, but the abstract issue soon became involved with a much more irritating personal one. "This," said Luther Martin, who now found himself in his element, "this is a peculiar case, sir. The President has undertaken to prejudge my client by declaring that 'of his guilt there is no doubt.' He has assumed to himself the knowledge of the Supreme Being himself and pretended to search the heart of my highly respected friend. He has proclaimed him a traitor in the face of the country which has rewarded him. He has let slip the dogs of war, the hellhounds of persecution, to hunt down my friend. And would this President of the United States, who has raised all this absurd clamor, pretend to keep back the papers which are wanted for this trial, where life itself is at stake?"

Wirt's answer to Martin was also a rebuke to the Court. "Do they [the defense] flatter themselves," he asked, "that this court feel political prejudices which will supply the place of argument and innocence on the part of the prisoner? Their conduct amounts to an insinuation of the sort. But I do not believe it.... Sir, no man, foreigner or citizen, who hears this language addressed to the court, and received with all the complacency at least which silence can imply, can make any inference from it very honorable to the court." These words touched Marshall's conscience, as well they might. At the close of the day he asked counsel henceforth to "confine themselves to the point really before the court"—a request which, however, was by no means invariably observed through the following days.

A day or two later Marshall ruled that the subpoena should issue, holding that neither the personal nor the official character of the President exempted him from the operation of that constitutional clause which guarantees accused persons "compulsory process for obtaining witnesses" in their behalf. The demand made upon the President, said the Chief Justice, by his official duties is not an unremitting one, and, "if it should exist at the time when his attendance on a court is required, it would be sworn on the return of the subpoena and would rather constitute a reason for not obeying the process of the court than a reason against its being issued." Jefferson, however, neither obeyed the writ nor swore anything on its return, though he forwarded some of the papers required to Hay, the district attorney, to be used as the latter might deem best. The President's argument was grounded on the mutual independence of the three departments of Government; and he asked whether the independence of the Executive could long survive "if the smaller courts could bandy him from pillar to post, keep him constantly trudging from North to South and East to West, and withdraw him entirely from his executive duties?" The President had the best of the encounter on all scores. Not only had Marshall forgotten for the nonce the doctrine he himself had stated in Marbury vs. Madison regarding the constitutional discretion of the Executive, but what was worse still, he had forgotten his own discretion on that occasion. He had fully earned his rebuff, but that fact did not appreciably sweeten it.

On the 24th of June the grand jury reported two indictments against Burr, one for treason and the other for misdemeanor. The former charged that Burr, moved thereto "by the instigation of the devil," had on the 10th of December previous levied war against the United States at Blennerhassett's island, in the county of Wood, of the District of Virginia, and had on the day following, at the same place, set in motion a warlike array against the city of New Orleans. The latter charged that a further purpose of this same warlike array was an invasion of Mexico. Treason not being a bailable offense, Burr had now to go to jail, but, as the city jail was alleged to be unhealthful, the Court allowed him to be removed to quarters which had been proffered by the Governor of the State in the penitentiary just outside the city. Burr's situation here, writes his biographer, "was extremely agreeable. He had a suite of rooms in the third story, extending one hundred feet, where he was allowed to see his friends without the presence of a witness. His rooms were so thronged with visitors at times as to present the appearance of a levee. Servants were continually arriving with messages, notes, and inquiries, bringing oranges, lemons, pineapples, raspberries, apricots, cream, butter, ice, and other articles—presents from the ladies of the city. In expectation of his daughter's arrival, some of his friends in town provided a house for her accommodation. The jailer, too, was all civility." * Little wonder that such goings-on are said to have "filled the measure of Jefferson's disgust."

* Parton's "Life and Times of Aaron Burr" (13th Edition, N.Y., 1880), p. 479.

The trial itself opened on Monday, the 3d of August. The first business in hand was to get a jury which would answer to the constitutional requirement of impartiality—a task which it was soon discovered was likely to prove a difficult one. The original panel of forty-eight men contained only four who had not expressed opinions unfavorable to the prisoner, and of these four all but one admitted some degree of prejudice against him. These four were nevertheless accepted as jurors. A second panel was then summoned which was even more unpromising in its make-up, and Burr's counsel began hinting that the trial would have to be quashed, when Burr himself arose and offered to select eight out of the whole venire to add to the four previously chosen. The offer was accepted, and notwithstanding that several of the jurors thus obtained had publicly declared opinions hostile to the accused, the jury was sworn in on the 17th of August.

At first glance Burr's concession in the selecting of a jury seems extraordinary. But then, why should one so confident of being able to demonstrate his innocence fear prejudice which rested on no firmer basis than ignorance of the facts? This reflection, however, probably played small part in Burr's calculations, for already he knew that if the contemplated strategy of his counsel prevailed the case would never come before the jury.

The first witness called by the prosecution was Eaton, who was prepared to recount the substance of numerous conversations he had held with Burr in Washington in the winter of 1805-6, in which Burr had gradually unveiled to him the treasonable character of his project. No sooner, however, was Eaton sworn than the defense entered the objection that his testimony was not yet relevant, contending that in a prosecution for treason the great material fact on which the merits of the entire controversy pivots was the overt act, which must be "AN OPEN ACT OF WAR"; just as in a murder trial the fact of the killing, the corpus delicti, must be proved before any other testimony was relevant, so in the pending prosecution, said they, no testimony was admissible until the overt act had been shown in the manner required by the Constitution.

The task of answering this argument fell to Wirt, who argued, and apparently with justice, that the prosecution was free to introduce its evidence in any order it saw fit, provided only that the evidence was relevant to the issue raised by the indictment, and that if an overt act was proved "in the course of the whole evidence," that would be sufficient. The day following the Court read an opinion which is a model of ambiguous and equivocal statement, but the purport was fairly clear: for the moment the Court would not interfere, and the prosecution was free to proceed as it thought best, with the warning that the Damocles sword of "irrelevancy" was suspended over its head by the barest thread and might fall at any moment.

For the next two days the legal battle was kept in abeyance while the taking of testimony went forward. Eaton was followed on the stand by Commodore Truxton, who stated that in conversation with him Burr had seemed to be aiming only at an expedition against Mexico. Then came General Morgan and his two sons who asserted their belief in the treasonable character of Burr's designs. Finally a series of witnesses, the majority of them servants of Blennerhassett, testified that on the evening of December 10, 1806, Burr's forces had assembled on the island.

This line of testimony concluded, the prosecution next indicated its intention of introducing evidence to show Burr's connection with the assemblage on the island, when the defense sprang the coup it had been maturing from the outset. Pointing out the notorious fact that on the night of the 10th of December Burr had not been present at the island but had been two hundred miles away in Kentucky, they contended that, under the Constitution, the assemblage on Blennerhassett's island could not be regarded as his act, even granting that he had advised it, for, said they, advising war is one thing but levying it is quite another. If this interpretation was correct, then no overt act of levying war, either within the jurisdiction of the Court or stated in the indictment, had been, or could be, shown against Burr. Hence the taking of evidence—if not the cause itself, indeed—should be discontinued.

The legal question raised by this argument was the comparatively simple one whether the constitutional provision regarding treason was to be interpreted in the light of the Common Law doctrine that "in treason all are principals." For if it were to be so interpreted and if Burr's connection with the general conspiracy culminating in the assemblage was demonstrable by any sort of legal evidence, then the assemblage was his act, his overt act, proved moreover by thrice the two witnesses constitutionally required! Again it fell to Wirt to represent the prosecution, and he discharged his task most brilliantly. He showed beyond peradventure that the Common Law doctrine was grounded upon unshakable authority; that, considering the fact that the entire phraseology of the constitutional clause regarding treason comes from an English statute of Edward III's time, it was reasonable, if not indispensable, to construe it in the light of the Common Law; and that, certainly as to a procurer of treason, such as Burr was charged with being, the Common Law doctrine was the only just doctrine, being merely a reaffirmation of the even more ancient principle that "what one does through another, he does himself."

In elaboration of this last point Wirt launched forth upon that famous passage in which he contrasted Burr and the pathetic victim of his conspiracy:

"Who [he asked] is Blennerhassett? A native of Ireland, a man of letters, who fled from the storms of his own country to find quiet in ours.... Possessing himself of a beautiful island in the Ohio he rears upon it a palace and decorates it with every romantic embellishment of fancy. [Then] in the midst of all this peace, this innocent simplicity, this pure banquet of the heart, the destroyer comes... to change this paradise into a hell .... By degrees he infuses [into the heart of Blennerhassett] the poison of his own ambition.... In a short time the whole man is changed, and every object of his former delight is relinquished .... His books are abandoned.... His enchanted island is destined soon to relapse into a wilderness; and in a few months we find the beautiful and tender partner of his bosom, whom he lately 'permitted not the winds of summer to visit too roughly,' we find her shivering at midnight on the winter banks of the Ohio and mingling her tears with the torrents that froze as they fell. Yet this unfortunate man, thus ruined, and undone and made to play a subordinate part in this grand drama of guilt and treason, this man is to be called the principal offender, while he by whom he was thus plunged in misery is comparatively innocent, a mere accessory! Is this reason? Is it law? Is it humanity? Sir, neither the human heart nor the human understanding will bear a perversion so monstrous and absurd!"

But there was one human heart, one human understanding—and that, in ordinary circumstances, a very good one—which was quite willing to shoulder just such a monstrous perversion, or at least its equivalent, and that heart was John Marshall's. The discussion of the motion to arrest the evidence continued ten days, most of the time being occupied by Burr's attorneys. * Finally, on the last day of the month, the Chief Justice handed down an opinion accepting practically the whole contention of Burr's attorneys, but offering a totally new set of reasons for it. On the main question at issue, namely, whether under the Constitution all involved in a treasonable enterprise are principals, Marshall pretended not to pass; but in fact he rejected the essential feature of the Common Law doctrine, namely, the necessary legal presence at the scene of action of all parties to the conspiracy. The crux of his argument he embodied in the following statement: "If in one case the presence of the individual make the guilt of the [treasonable] assemblage HIS guilt, and in the other case, the procurement by the individual make the guilt of the [treasonable] assemblage, his guilt, then presence and procurement are equally component parts of the overt act, and equally require two witnesses." Unfortunately for this argument, the Constitution does not require that the "component parts" of the overt act be proved by two witnesses, but only that the overt act—the corpus delicti—be so proved; and for the simple reason that, when by further evidence any particular individual is connected with the treasonable combination which brought about the overt act, that act, assuming the Common Law doctrine, becomes his act, and he is accordingly responsible for it at the place where it occurred. Burr's attorneys admitted this contention unreservedly. Indeed, that was precisely the reason why they had opposed the Common Law doctrine.

* A recurrent feature of their arguments was a denunciation of "constructive treason." But this was mere declamation. Nobody was charging Burr with any sort of treason except that which is specifically defined by the Constitution itself, namely, the levying of war against the United States. The only question at issue was as to the method of proof by which this crime may be validly established in the case of one accused of procuring treason. There was also much talk about the danger and injustice of dragging a man from one end of the country to stand trial for an act committed at the other end of it. The answer was that, if the man himself procured the act or joined others in bringing it about, he ought to stand trial where the act occurred. This same "injustice" may happen today in the case of murder!

Marshall's effort to steer between this doctrine and its obvious consequences for the case before him placed him, therefore, in the curious position of demanding that two overt acts be proved each by two witnesses. But if two, why not twenty? For it must often happen that the traitor's connection with the overt act is demonstrable not by a single act but a series of acts. Furthermore, in the case of procurers of treason, this connection will ordinarily not appear in overt acts at all but, as in Burr's own case, will be covert. Can it be, then, that the Constitution is chargeable with the absurdity of regarding the procurers of treason as traitors and yet of making their conviction impossible? The fact of the matter was that six months earlier, before his attitude toward Burr's doings had begun to take color from his hatred and distrust of Jefferson, Marshall had entertained no doubt that the Common Law doctrine underlay the constitutional definition of treason. Speaking for the Supreme Court in the case of Bollmann and Swartwout, he had said: "It is not the intention of the Court to say that no individual can be guilty of this crime who has not appeared in arms against his country; on the contrary, if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered traitors." Marshall's effort to square this previous opinion with his later position was as unconvincing as it was labored. *

* The way in which Marshall proceeded to do this was to treat the phrase "perform a part" as demanding "a levying of war" on the part of the performer. (Robertson, "Reports," vol. II, p. 438.) But this explanation will not hold water. For what then becomes of the phrase "scene of action" in the passage just quoted? What is the difference between the part to be performed "however minute," and the "action" from which the performer maybe "however remote"? It is perfectly evident that the "action" referred to is the assemblage which is regarded as the overt act of war, and that the "part however minute" is something very different.

Burr's attorneys were more prudent: they dismissed Marshall's earlier words outright as obiter dicta—and erroneous at that! Nevertheless when, thirty years later, Story, Marshall's friend and pupil, was in search of the best judicial definition of treason within the meaning of the Constitution, he selected this sentence from the case of Bollmann and Swartwout and passed by the elaborate opinion in Burr's case in significant silence. But reputation is a great magician in transmuting heresy into accepted teaching. Posthumously Marshall's opinion has attained a rank and authority with the legal profession that it never enjoyed in his own time. Regarding it, therefore, as today established doctrine, we may say that it has quite reversed the relative importance of conspiracy and overt act where the treason is by levying war. At the Common Law, and in the view of the framers of the Constitution, the importance of the overt act of war was to make the conspiracy visible, to put its existence beyond surmise. By Marshall's view each traitor is chargeable only with his own overt acts, and the conspiracy is of importance merely as showing the intention of such acts. And from this it results logically, as Marshall saw, though he did not venture to say so explicitly, that the procurer of treason is not a traitor unless he has also participated personally in an overt act of war. As Wirt very justifiably contended, such a result is "monstrous," and, what is more, it has not been possible to adhere to it in practice. In recent legislation necessitated by the Great War, Congress has restored the old Common Law view of treason but has avoided the constitutional difficulty by labeling the offense "Espionage." Indeed, the Espionage Act of June 15, 1917, scraps Marshall's opinion pretty completely. *

* See especially Title I, Section 4, of the Act. For evidence of the modern standing of Marshall's opinion, see the chorus of approval sounded by the legal fraternity in Dillon's three volumes. In support of the Common Law doctrine, see the authorities cited in 27 "Yale Law Journal", p. 342 and footnotes; the chapter on Treason in Simon Greenleaf's well-known "Treatise on the Law of Evidence;" United States w. Mitchell, 2 Dallas, 348; and Druecker vs. Salomon, 21 Wis., 621.

On the day following the reading of Marshall's opinion, the prosecution, unable to produce two witnesses who had actually SEEN Burr procure the assemblage on the island, abandoned the case to the jury. Shortly thereafter the following verdict was returned: "We of the jury say that Aaron Burr is not proved to be guilty under this indictment by any evidence submitted to us. We therefore find him not guilty." At the order of the Chief Justice this Scotch verdict was entered on the records of the court as a simple Not Guilty.

Marshall's conduct of Burr's trial for treason is the one serious blemish in his judicial record, but for all that it was not without a measure of extenuation. The President, too, had behaved deplorably and, feeling himself on the defensive, had pressed matters with most unseemly zeal, so that the charge of political persecution raised by Burr's attorneys was, to say the least, not groundless. Furthermore, in opposing the President in this matter, Marshall had shown his usual political sagacity. Had Burr been convicted, the advantage must all have gone to the Administration. The only possible credit the Chief Justice could extract from the case would be from assuming that lofty tone of calm, unmoved impartiality of which Marshall was such a master—and never more than on this occasion—and from setting himself sternly against popular hysteria. The words with which his opinion closes have been often quoted:

"Much has been said in the course of the argument on points on which the Court feels no inclination to comment particularly, but which may, perhaps not improperly receive some notice.

"That this Court dare not usurp power is most true.

"That this Court dare not shrink from its duty is not less true.

"No man is desirous of placing himself in a disagreeable situation. No man is desirous of becoming the popular subject of calumny. No man, might he let the bitter cup pass from him without self-reproach, would drain it to the bottom. But if he have no choice in the case, if there be no alternative presented to him but a dereliction of duty or the opprobrium of those who are denominated the world, he merits the contempt as well as the indignation of his country who can hesitate which to embrace."

One could not require a better illustration of that faculty of "apparently deep self-conviction" which Wirt had noted in the Chief Justice.

Finally, it must be owned that Burr's case offered Marshall a tempting opportunity to try out the devotion of Republicans to that ideal of judicial deportment which had led them so vehemently to criticize Justice Chase and to charge him with being "oppressive," with refusing to give counsel for defense an opportunity to be heard, with transgressing the state law of procedure, with showing too great liking for Common Law ideas of sedition, with setting up the President as a sort of monarch beyond the reach of judicial process. Marshall's conduct of Burr's trial now exactly reversed every one of these grounds of complaint. Whether he intended it or not, it was a neat turning of the tables.

But Jefferson, who was at once both the most theoretical and the least logical of men, was of course hardly prepared to see matters in that light. As soon as the news reached him of Burr's acquittal, he ordered Hay to press the indictment for misdemeanor—not for the purpose of convicting Burr, but of getting the evidence down in a form in which it should be available for impeachment proceedings against Marshall. For some weeks longer, therefore, the Chief Justice sat listening to evidence which was to be used against himself. But the impeachment never came, for a chain is only as strong as its weakest link, and the weakest link in the combination against the Chief Justice was a very fragile one indeed—the iniquitous Wilkinson. Even the faithful and melancholy Hay finally abandoned him. "The declaration, which I made in court in his favor some time ago," he wrote the President, "was precipitate.... My confidence in him is destroyed.... I am sorry for it, on his account, on the public account, and because you have expressed opinions in his favor." It was obviously impossible to impeach the Chief Justice for having prevented the hanging of Aaron Burr on the testimony of such a miscreant.

Though the years immediately following the Burr trial were not a time of conspicuous activity for Marshall, they paved the way in more than one direction for his later achievement. Jefferson's retirement from the Presidency at last relieved the Chief Justice from the warping influence of a hateful personal contest and from anxiety for his official security. Jefferson's successors were men more willing to identify the cause of the Federal Judiciary with that of national unity. Better still, the War of 1812 brought about the demise of the Federalist party and thus cleared the Court of every suspicion of partisan bias. Henceforth the great political issue was the general one of the nature of the Union and the Constitution, a field in which Marshall's talent for debate made him master. In the meantime the Court was acquiring that personnel which it was to retain almost intact for nearly twenty years; and, although the new recruits came from the ranks of his former party foes, Marshall had little trouble in bringing their views into general conformity with his own constitutional creed. Nor was his triumph an exclusively personal one. He was aided in very large measure by the fact that the war had brought particularism temporarily into discredit in all sections of the country. Of Marshall's associates in 1812, Justice Washington alone had come to the bench earlier, yet he was content to speak through the mouth of his illustrious colleague, save on the notable occasion when he led the only revolt of a majority of the Court from the Chief Justice's leadership in the field of Constitutional Law. * Johnson of South Carolina, a man of no little personal vanity, affected a greater independence, for which he was on one occasion warmly congratulated by Jefferson; yet even his separate opinions, though they sometimes challenge Marshall's more sweeping premises and bolder method of reasoning, are after all mostly concurring ones. Marshall's really invaluable aid among his associates was Joseph Story, who in 1811, at the age of thirty-two, was appointed by Madison in succession to Cushing. Still immature, enthusiastically willing to learn, warmly affectionate, and with his views on constitutional issues as yet unformed, Story fell at once under the spell of Marshall's equally gentle but vastly more resolute personality; and the result was one of the most fruitful friendships of our history. Marshall's "original bias," to quote Story's own words, "as well as the choice of his mind, was to general principles and comprehensive views, rather than to technical or recondite learning." Story's own bias, which was supported by his prodigious industry, was just the reverse. The two men thus supplemented each other admirably. A tradition of some venerability represents Story as having said that Marshall was wont to remark: "Now Story, that is the law; you find the precedents for it." Whether true or not, the tale at least illustrates the truth. Marshall owed to counsel a somewhat similar debt in the way of leading up to his decisions, for, as Story points out, "he was solicitous to hear arguments and not to decide cases without them, nor did any judge ever profit more by them." But in the field of Constitutional Law, at least, Marshall used counsel's argument not so much to indicate what his own judicial goal ought to be as to discover the best route thereto—often, indeed, through the welcome stimulus which a clash of views gave to his reasoning powers.

* This was in the case of Ogden vs. Saunders, 12 Wheaton, 213 (1827).

Though the wealth of available legal talent at this period was impressively illustrated in connection both with Chase's impeachment and with Burr's trial, yet on neither of these occasions appeared William Pinkney of Maryland, the attorney to whom Marshall acknowledged his greatest indebtedness, and who was universally acknowledged to be the leader of the American Bar from 1810 until his death twelve years later. Besides being a great lawyer, Pinkney was also a notable personality, as George Ticknor's sketch of him as he appeared before the Supreme Court in 1815 goes to prove:

"You must imagine, if you can, a man formed on nature's most liberal scale, who at the age of 50 is possessed with the ambition of being a pretty fellow, wears corsets to diminish his bulk, uses cosmetics, as he told Mrs. Gore, to smooth and soften a skin growing somewhat wrinkled and rigid with age, dresses in a style which would be thought foppish in a much younger man. You must imagine such a man standing before the gravest tribunal in the land, and engaged in causes of the deepest moment; but still apparently thinking how he can declaim like a practised rhetorician in the London Cockpit, which he used to frequent. Yet you must, at the same time, imagine his declamation to be chaste and precise in its language and cogent, logical and learned in its argument, free from the artifice and affectation of his manner, and in short, opposite to what you might fairly have expected from his first appearance and tones. And when you have compounded these inconsistencies in your imagination, and united qualities which on common occasions nature seems to hold asunder, you will, perhaps, begin to form some idea of what Mr. Pinkney is."

Such was the man whom Marshall, Story, and Taney all considered the greatest lawyer who had ever appeared before the Supreme Court.

At the close of the War of 1812, Marshall, though he had decided many important questions of International Law, * nevertheless found himself only at the threshold of his real fame. Yet even thus early he had indicated his point of view. Thus in the case of the United States vs. Peters, * * which was decided in 1809, the question before the Court was whether a mandamus should issue to the United States District Judge of Pennsylvania ordering him to enforce, in the face of the opposition of the state Government, a decision handed down in a prize case more than thirty years before by the old Committee of Appeals of the Continental Congress. Marshall answered the question affirmatively, saying: "If the legislatures of the several states may, at will, annul the judgments of the courts of the United States and destroy the rights acquired under those judgments, the Constitution itself becomes a solemn mockery, and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals."

* Two famous decisions of Marshall's in this field are those in the Schooner Exchange vs. McFaddon et al, 7 Cranch, 116, and the case of the Nereide, 9 ib., 388.

* * 5 Cranch, 136.

Marshall's decision evoked a warm protest from the Pennsylvania Legislature and led to a proposal of amendment to the Constitution providing "an impartial tribunal" between the General Government and the States; and these expressions of dissent in turn brought the Virginia Assembly to the defense of the Supreme Court.

"The commission to whom was referred the communication of the governor of Pennsylvania [reads the Virginia document]... are of the opinion that a tribunal is already provided by the Constitution of the United States, to wit; the Supreme Court, more eminently qualified from their habits and duties, from the mode of their selection, and from the tenure of their offices, to decide the disputes aforesaid in an enlightened and impartial manner than any other tribunal which could be created.

"The members of the Supreme Court are selected from those in the United States who are most celebrated for virtue and legal Learning.... The duties they have to perform lead them necessarily to the most enlarged and accurate acquaintance with the jurisdiction of the federal and several State courts together, and with the admirable symmetry of our government. The tenure of their offices enables them to pronounce the sound and correct opinions they have formed, without fear, favor or partiality."

Was it coincidence or something more that during Marshall's incumbency Virginia paid her one and only tribute to the impartiality of the Supreme Court while Burr's acquittal was still vivid in the minds of all? Or was it due to the fact that "the Great Lama of the Little Mountain"—to use Marshall's disrespectful appellation for Jefferson—had not yet converted the Virginia Court of Appeals into the angry oracle of his own unrelenting hatred of the Chief Justice? Whatever the reason, within five years Virginia's attitude had again shifted, and she had become once more what she had been in 1798-99, the rallying point of the forces of Confederation and State Rights.



CHAPTER V. The Tenets Of Nationalism

"John Marshall stands in history as one of that small group of men who have founded States. He was a nation-maker, a state-builder. His monument is in the history of the United States and his name is written upon the Constitution of his country." So spoke Senator Lodge, on John Marshall Day, February 4, 1901. "I should feel a... doubt," declared Justice Holmes on the same occasion, "whether, after Hamilton and the Constitution itself, Marshall's work proved more than a strong intellect, a good style, personal ascendancy in his court, courage, justice, and the convictions of his party." Both these divergent estimates of the great Chief Justice have their value. It is well to be reminded that Marshall's task lay within the four corners of the Constitution, whose purposes he did not originate, especially since no one would have been quicker than himself to disown praise implying anything different. None the less it was no ordinary skill and courage which, assisted by great office, gave enduring definition to the purposes of the Constitution at the very time when the whole trend of public opinion was setting in most strongly against them. It must not be forgotten that Hamilton, whose name Justice Holmes invokes in his somewhat too grudging encomium of Marshall, had pronounced the Constitution "a frail and worthless fabric."

Marshall's own outlook upon his task sprang in great part from a profound conviction of calling. He was thoroughly persuaded that he knew the intentions of the framers of the Constitution—the intentions which had been wrought into the instrument itself—and he was equally determined that these intentions should prevail. For this reason he refused to regard his office merely as a judicial tribunal; it was a platform from which to promulgate sound constitutional principles, the very cathedra indeed of constitutional orthodoxy. Not one of the cases which elicited his great opinions but might easily have been decided on comparatively narrow grounds in precisely the same way in which he decided it on broad, general principles, but with the probable result that it would never again have been heard of outside the law courts. To take a timid or obscure way to a merely tentative goal would have been at variance equally with Marshall's belief in his mission and with his instincts as a great debater. Hence he forged his weapon—the obiter dictum—by whose broad strokes was hewn the highroad of a national destiny.

Marshall's task naturally was not performed in vacuo: he owed much to the preconceptions of his contemporaries. His invariable quest, as students of his opinions are soon aware, was for the axiomatic, for absolute principles, and in this inquiry he met the intellectual demands of a period whose first minds still owned the sway of the syllogism and still loved what Bacon called the "spacious liberty of generalities." In Marshall's method—as in the older syllogistic logic, whose phraseology begins to sound somewhat strange to twentieth century ears—the essential operation consisted in eliminating the "accidental" or "irrelevant" elements from the "significant" facts of a case, and then recognizing that this particular case had been foreseen and provided for in a general rule of law. Proceeding in this way Marshall was able to build up a body of thought the internal consistency of which, even when it did not convince, yet baffled the only sort of criticism which contemporaries were disposed to apply. Listen, for instance, to the despairing cry of John Randolph of Roanoke: "All wrong," said he of one of Marshall's opinions, "all wrong, but no man in the United States can tell why or wherein."

Marshall found his first opportunity to elaborate the tenets of his nationalistic creed in the case of M'Culloch vs. Maryland, which was decided at the same term with the Dartmouth College case and that of Sturges vs. Crowinshield—the greatest six weeks in the history of the Court. The question immediately involved was whether the State of Maryland had the right to tax the notes issued by the branch which the Bank of the United States had recently established at Baltimore. But this question raised the further one whether the United States had in the first place the right to charter the Bank and to authorize it to establish branches within the States. The outcome turned on the interpretation to be given the "necessary and proper" clause of the Constitution.

The last two questions were in 1819 by no means novel. In the "Federalist" itself Hamilton had boldly asked, "Who is to judge of the necessity and propriety of the laws to be passed for executing the powers of the Union?" and had announced that "the National Government, like every other, must judge in the first instance, of the proper exercise of its powers, and its constituents in the last," a view which seems hardly to leave room even for judicial control. Three years later as Secretary of the Treasury, Hamilton had brought forward the proposal which soon led to the chartering of the Bank of 1791. The measure precipitated the first great discussion over the interpretation of the new Constitution. Hamilton owned that Congress had no specifically granted power to charter a bank but contended that such an institution was a "necessary and proper" means for carrying out certain of the enumerated powers of the National Government such, for instance, as borrowing money and issuing a currency. For, said he in effect, "necessary and proper" signify "convenient," and the clause was intended to indicate that the National Government should enjoy a wide range of choice in the selection of means for carrying out its enumerated powers. Jefferson, on the other hand, maintained that the "necessary and proper" clause was a restrictive clause, meant to safeguard the rights of the States, that a law in order to be "necessary and proper" must be both "necessary" AND "proper," and that both terms ought to be construed narrowly. Jefferson's opposition, however, proved unavailing, and the banking institution which was created continued till 1811 without its validity being once tested in the courts.

The second Bank of the United States, whose branch Maryland was now trying to tax, received its charter in 1816 from President Madison. Well might John Quincy Adams exclaim that the "Republicans had out-federalized the Federalists!" Yet the gibe was premature. The country at large was as yet blind to the responsibilities of nationality. That vision of national unity which indubitably underlies the Constitution was after all the vision of an aristocracy conscious of a solidarity of interests transcending state lines. It is equally true that until the Civil War, at the earliest, the great mass of Americans still felt themselves to be first of all citizens of their particular States. Nor did this individualistic bias long remain in want of leadership capable of giving it articulate expression. The amount of political talent which existed within the State of Virginia alone in the first generation of our national history is amazing to contemplate, but this talent unfortunately exhibited one most damaging blemish. The intense individualism of the planter-aristocrat could not tolerate in any possible situation the idea of a control which he could not himself ultimately either direct or reject. In the Virginia and Kentucky resolutions of 1798 and 1799, which regard the Constitution as a compact of sovereign States and the National Government merely as their agent, the particularistic outlook definitely received a constitutional creed which in time was to become, at least in the South, a gloss upon the Constitution regarded as fully as authoritative as the original instrument. This recognition of state sovereignty was, indeed, somewhat delayed by the federalization of the Republican party in consequence of the capture of the National Government by Virginia in 1800. But in 1819 the march toward dissolution and civil war which had begun at the summons of Jefferson was now definitely resumed. This was the year of the congressional struggle over the admission of Missouri, the most important result of which was the discovery by the slave owners that the greatest security of slavery lay in the powers of the States and that its greatest danger lay in those of the National Government. Henceforth the largest property interest of the country stood almost solidly behind State Rights.

It was at this critical moment that chance presented Marshall with the opportunity to place the opposing doctrine of nationalism on the high plane of judicial decision. The arguments in the Bank case * which began on February 22,1819, and lasted nine days, brought together a "constellation of lawyers" such as had never appeared before in a single case. The Bank was represented by Pinkney, Webster, and Wirt; the State, by Luther Martin, Hopkinson, and Walter Jones of the District of Columbia bar. In arguing for the State, Hopkinson urged the restrictive view of the "necessary and proper" clause and sought to reduce to an absurdity the doctrine of "implied rights." The Bank, continued Hopkinson, "this creature of construction," claims by further implication "the right to enter the territory of a State without its consent" and to establish there a branch; then, by yet another implication, the branch claims exemption from taxation. "It is thus with the famous figtree of India, whose branches shoot from the trunk to a considerable distance, then drop to the earth, where they take root and become trees from which also other branches shoot..., until gradually a vast surface is covered, and everything perishes in the spreading shade." But even granting that Congress did have the right to charter the Bank, still that fact would not exempt the institution from taxation by any State within which it held property. "The exercise of the one sovereign power cannot be controlled by the exercise of the other."

* M'Culloch vs. Maryland (1819), 4 Wheaton, 316.

On the other side, Pinkney made the chief argument in behalf of the Bank. "Mr. Pinkney," says Justice Story, "rose on Monday to conclude the argument; he spoke all that day and yesterday and will probably conclude to-day. I never in my whole life heard a greater speech; it was worth a journey from Salem to hear it; his elocution was excessively vehement; but his eloquence was overwhelming. His language, his style, his figures, his argument, were most brilliant and sparkling. He spoke like a great statesman and patriot and a sound constitutional lawyer. All the cobwebs of sophistryship and metaphysics about State Rights and State Sovereignty he brushed away with a mighty besom."

Pinkney closed on the 3d of March, and on the 6th Marshall handed down his most famous opinion. He condensed Pinkney's three-day argument into a pamphlet which may be easily read by the instructed layman in half an hour, for, as is invariably the case with Marshall, his condensation made for greater clarity. In this opinion he also gives evidence, in their highest form, of his other notable qualities as a judicial stylist: his "tiger instinct for the jugular vein"; his rigorous pursuit of logical consequences; his power of stating a case, wherein he is rivaled only by Mansfield; his scorn of the qualifying "buys," "if's," and "though's"; the pith and balance of his phrasing, a reminiscence of his early days with Pope; the developing momentum of his argument; above all, his audacious use of the obiter dictum. Marshall's later opinion in Gibbons vs. Ogden is, it is true, in some respects a greater intellectual performance, but it does not equal this earlier opinion in those qualities of form which attract the amateur and stir the admiration of posterity.

At the very outset of his argument in the Bank case Marshall singled out the question the answer to which must control all interpretation of the Constitution: Was the Constitution, as contended by counsel for Maryland, "an act of sovereign and independent States" whose political interests must be jealously safeguarded in its construction, or, was it an emanation from the American people and designed for their benefit? Marshall answered that the Constitution, by its own declaration, was "ordained and established" in the name of the people, "in order to form a more perfect union, establish justice, insure domestic tranquillity, and secure the blessings of liberty to themselves and their posterity." Nor did he consider the argument "that the people had already surrendered all their powers to the State Sovereignties and had nothing more to give," a persuasive one, for "surely, the question whether they may resume and modify the power granted to the government does not remain to be settled in this country. Much more might the legitimacy of the General Government be doubted, had it been created by the States. The powers delegated to the State sovereignties were to be exercised by themselves, not by a distinct and independent sovereignty created by them." "The Government of the Union, then," Marshall proceeded, "is emphatically... a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised on them, and for their benefit." And what was the nature of this Government? "If any one proposition could command the universal assent of mankind we might expect it would be this: that the government of the Union, though limited in its powers, is supreme within the sphere of its action. This would seem to result necessarily from its nature. It is the government of all; its powers are delegated by all; it represents all and acts for all." However the question had not been left to reason. "The people have in express terms decided it by saying: 'This Constitution and the laws of the United States which shall be made in pursuance thereof... shall be the supreme Law of the Land.'"

But a Government which is supreme must have the right to choose the means by which to make its supremacy effective; and indeed, at this point again the Constitution comes to the aid of reason by declaring specifically that Congress may make all laws "necessary and proper" for carrying into execution any of the powers of the General Government. Counsel for Maryland would read this clause as limiting the right which it recognized to the choice only of such means of execution as are indispensable; they would treat the word "necessary" as controlling the clause and to this they would affix the word "absolutely." "Such is the character of human language," rejoins the Chief Justice, "that no word conveys to the mind in all situations, one single definite idea," and the word "necessary," "like others, is used in various senses," so that its context becomes most material in determining its significance.

And what is its context on this occasion? "The subject is the execution of those great powers on which the welfare of a nation essentially depends." The provision occurs "in a Constitution intended to endure for ages to come and consequently to be adapted to the various crises of human affairs." The purpose of the clause therefore is not to impair the right of Congress "to exercise its best judgment in the selection of measures to carry into execution the constitutional powers of the Government," but rather "to remove all doubts respecting the right to legislate on that vast mass of incidental powers which must be involved in the Constitution, if that instrument be not a splendid bauble.... Let the end be legitimate, let it be within the scope of the Constitution and all means which are appropriate, which are plainly adapted to that end, which are not prohibited but consist with the letter and spirit of the Constitution, are constitutional."

But was the Act of Maryland which taxed the Bank in conflict with the Act of Congress which established it? If so, must the State yield to Congress? In approaching this question Marshall again laid the basis for as sweeping a decision as possible. The terms in which the Maryland statute was couched indicated clearly that it was directed specifically against the Bank, and it might easily have been set aside on that ground. But Marshall went much further and laid down the principle that the instrumentalities of the National Government are never subject to taxation by the States in any form whatsoever, and for two reasons. In the first place, "those means are not given by the people of a particular State... but by the people of all the States. They are given by all far the benefit of all," and owe their presence in the State not to the State's permission but to a higher authority. The State of Maryland therefore never had the power to tax the Bank in the first place. Yet waiving this theory, there was, in the second place, flat incompatibility between the Act of Maryland and the Act of Congress, not simply because of the specific operation of the former, but rather because of the implied claim which it made for state authority. "That the power to tax involves the power to destroy," Marshall continued; "that the power to destroy may defeat and render useless the power to create; that there is a plain repugnance in conferring on one government a power to control the constitutional measures of another, which other, with respect to those very measures is declared to be supreme over that which exerts the control, are propositions not to be denied." Nor indeed is the sovereignty of the State confined to taxation. "That is not the only mode in which it might be displayed. The question is in truth, a question of supremacy, and if the right of the States to tax the means employed by the General Government be conceded, the declaration that the Constitution and the laws made in pursuance thereof shall be supreme law of the land, is empty and unmeaning declamation.... We are unanimously of opinion," concluded the Chief Justice, "that the law... of Maryland, imposing a tax on the Bank of the United States is unconstitutional and void."

Five years later, in the case of Gibbons vs. Ogden, * known to contemporaries as the "Steamboat case," Marshall received the opportunity to apply his principles of constitutional construction to the power of Congress to regulate "commerce among the States." For a quarter of a century Robert R. Livingston and Robert Fulton and their successors had enjoyed from the Legislature of New York a grant of the exclusive right to run steamboats on the waters of the State, and in this case one of their licensees, Ogden, was seeking to prevent Gibbons, who had steamers in the coasting trade under an Act of Congress, from operating them on the Hudson in trade between points in New York and New Jersey. A circumstance which made the case the more critical was that New Jersey and Connecticut had each passed retaliatory statutes excluding from their waters any vessel licensed under the Fulton-Livingston monopoly. The condition of interstate commercial warfare which thus threatened was not unlike that which had originally operated so potently to bring about the Constitution.

* 9 Wheaton, 1.

The case of Gibbons vs. Ogden was argued in the early days of February, 1824, with Attorney-General Wirt and Daniel Webster against the grant, while two famous New York lawyers of the day, Thomas Addis Emmet, brother of the Irish patriot, and Thomas J. Oakley, acted as Ogden's counsel. The arguments have the importance necessarily attaching to a careful examination of a novel legal question of the first magnitude by learned and acute minds, but some of the claims that have been made for these arguments, and especially for Webster's effort, hardly sustain investigation. Webster, never in any case apt to regard his own performance overcritically, seems in later years to have been persuaded that the Chief Justice's opinion "followed closely the track" of his argument on this occasion; and it is true that Marshall expressed sympathy with Webster's contention that Congress may regulate as truly by inaction as by action, since inaction may indicate its wish that the matter go unregulated; but the Chief Justice did not explicitly adopt this idea, and the major part of his opinion was a running refutation of Emmet's argument, which in turn was only an elaboration of Chancellor Kent's opinion upon the same subject in the New York courts. * In other words, this was one of those cases in which Marshall's indebtedness to counsel was far less for ideas than for the stimulation which his own powers always received from discussion; and the result is his profoundest, most statesmanlike opinion, from whose doctrines the Court has at times deviated, but only to return to them, until today it is more nearly than ever before the established law on the many points covered by its dicta.

* See Livingston vs. Van Ingen, 9 Johnson, 807 (1812); also Kent's "Commentaries", I, 432-38.

Marshall pronounced the Fulton-Livingston monopoly inoperative so far as it concerned vessels enrolled under the Act of Congress to engage in the coasting trade; but in arriving at this very simple result his opinion takes the broadest possible range. At the very outset Marshall flatly contradicts Kent's proposition that the powers of the General Government, as representing a grant by sovereignties, must be strictly construed. The Constitution, says he, "contains an enumeration of powers expressly granted by the people to their government," and there is not a word in it which lends any countenance to the idea that these powers should be strictly interpreted. As men whose intentions required no concealment, those who framed and adopted the Constitution "must be understood to have employed words in their natural sense and to have intended what they said"; but if, from the inherent imperfection of language, doubts were at any time to arise "respecting the extent of any given power," then the known purposes of the instrument should control the construction put on its phraseology. "The grant does not convey power which might be beneficial to the grantor if retained by himself... but is an investment of power for the general advantage in the hands of agents selected for the purpose, which power can never be exercised by the people themselves, but must be placed in the hands of agents or remain dormant." In no other of his opinions did Marshall so clearly bring out the logical connection between the principle of liberal construction of the Constitution and the doctrine that it is an ordinance of the American people.

Turning then to the Constitution, Marshall asks, "What is commerce?" "Counsel for appellee," he recites, "would limit it to traffic, to buying and selling," to which he answers that "this would restrict a general term... to one of its significations. Commerce," he continues, "undoubtedly is traffic, but it is something more—it is intercourse," and so includes navigation. And what is the power of Congress over commerce? "It is the power to regulate, that is, the power to prescribe the rule by which commerce is to be governed." It is a power "complete in itself," exercisable "at its utmost extent," and without limitations "other than are prescribed by the Constitution.... If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations and among the several States is vested in Congress as absolutely as it would be in a single government having in its constitution the same restrictions on the exercise of power as are found in the Constitution of the United States." The power, therefore, is not to be confined by state lines but acts upon its subject-matter wherever it is to be found. "It may, of consequence, pass the jurisdictional line of New York and act upon the very waters to which the prohibition now under consideration applies." It is a power to be exercised within the States and not merely at their frontiers.

But was it sufficient for Marshall merely to define the power of Congress? Must not the power of the State also be considered? At least, Ogden's attorneys had argued, the mere existence in Congress of the power to regulate commerce among the States did not prevent New York from exercising the same power, through legislation operating upon subject matter within its own boundaries. No doubt, he concedes, the States have the right to enact many kinds of laws which will incidentally affect commerce among the States, such for instance as quarantine and health laws, laws regulating bridges and ferries, and so on; but this they do by virtue of their power of "internal police," not by virtue of a "concurrent" power over commerce, foreign and interstate. And, indeed, New York may have granted Fulton and Livingston their monopoly in exercise of this power, in which case its validity would depend upon its not conflicting with an Act of Congress regulating commerce. For should such conflict exist, the State enactment, though passed "in the exercise of its acknowledged sovereignty," must give place in consequence of the supremacy conferred by the Constitution upon all acts of Congress in pursuance of it, over all state laws whatsoever.

The opinion then proceeds to the consideration of the Act of Congress relied upon by Gibbons. This, Ogden's attorneys contended, merely conferred the American character upon vessels already possessed of the right to engage in the coasting trade; Marshall, on the contrary, held that it conferred the right itself, together with the auxiliary right of navigating the waters of the United States; whence it followed that New York was powerless to exclude Gibbons's vessels from the Hudson. Incidentally Marshall indicated his opinion that Congress's power extended to the carriage of passengers as well as of goods and to vessels propelled by steam as well as to those driven by wind. "The one element," said he, "may be as legitimately used as the other for every commercial purpose authorized by the laws of the Union."

Two years later, in the case of Brown vs. Maryland, * Marshall laid down his famous doctrine that so long as goods introduced into a State in the course of foreign trade remain in the hands of the importer and in the original package, they are not subject to taxation by the State. This doctrine is interesting for two reasons. In the first place, it implies the further principle that an attempt by a State to tax interstate or foreign commerce is tantamount to an attempt to regulate such commerce, and is consequently void. In other words, the principle of the exclusiveness of Congress's power to regulate commerce among the States and with foreign nations, which is advanced by way of dictum in Gibbons vs. Ogden, becomes in Brown vs. Maryland a ground of decision. It is a principle which has proved of the utmost importance in keeping the field of national power clear of encumbering state legislation against the day when Congress should elect to step in and assume effective control. Nor can there be much doubt that the result was intended by the framers of the Constitution.

* 12 Wheaton, 419.

In the second place, however, from another point of view this "original package doctrine" is only an extension of the immunity from state taxation established in M'Culloch vs. Maryland for instrumentalities of the National Government. It thus reflects the principle implied by that decision: where power exists to any degree or for any purpose, it exists to every degree and for every purpose; or, to quote Marshall's own words in Brown vs. Maryland, "questions of power do not depend upon the degree to which it may be exercised; if it may be exercised at all, it may be exercised at the will of those in whose hands it is placed." The attitude of the Court nowadays, when it has to deal with state legislation, is very different. It takes the position that abuse of power, in relation to private rights or to commerce, is excess of power and hence demands to be shown the substantial effect of legislation, not its mere formal justification. * In short, its inquiry is into facts. On the other hand, when dealing with congressional legislation, the Court has hitherto always followed Marshall's bolder method. Thus Congress may use its taxing power to drive out unwholesome businesses, perhaps even to regulate labor within the States, and it may close the channels of interstate and foreign commerce to articles deemed by it injurious to the public health or morals. * * To date this discrepancy between the methods employed by the Court in passing upon the validity of legislation within the two fields of state and national power has afforded the latter a decided advantage.

* See Justice Bradley's language in 122 U.S., 326; also the more recent case of Western Union Telegraph Company vs. Kan., 216 U.S., 1.

* * See 195 U.S., 27; 188 U.S., 321; 227 U.S., 308. Cf. 247 U.S., 251.

The great principles which Marshall developed in his interpretation of the Constitution from the side of national power and which after various ups and downs may be reckoned as part of the law of the land today, were the following:

1. The Constitution is an ordinance of the people of the United States, and not a compact of States.

2. Consequently it is to be interpreted with a view to securing a beneficial use of the powers which it creates, not with the purpose of safeguarding the prerogatives of state sovereignty.

3. The Constitution was further designed, as near as may be, "for immortality," and hence was to be "adapted to the various crises of human affairs," to be kept a commodious vehicle of the national life and not made the Procrustean bed of the nation.

4. While the government which the Constitution established is one of enumerated powers, as to those powers it is a sovereign government, both in its choice of the means by which to exercise its powers and in its supremacy over all colliding or antagonistic powers.

5. The power of Congress to regulate commerce is an exclusive power, so that the States may not intrude upon this field even though Congress has not acted.