Main currents in American thought An interpretation of American literature from the beginnings to 1920
itself reintrenched in the prejudices of John Marshall. He boldly
threw down the gage to the majority will, and when the long fierce
struggle was over, he had effectively written into the fundamental law
of the land the major tenets of the repudiated philosophy. “Judicial
statesmanship,” Mr. Beveridge calls these political decisions, and bids
us admire statesmanship on the bench; yet the phrase runs so far as to
merge the judge in the politician--an honest but somewhat indiscreet
admission that the law may be twisted to partisan ends. The frankly
political nature of Marshall’s decisions was universally recognized at
the time, and this explains the intense partisanship they evoked, the
fury of the Republicans and the extravagant praise of the Federalists.
The so-called Jeffersonian assault on the judiciary, of which so much
has been made by the orthodox historians, and which came near to
wrecking the system, was not primarily an attack upon the courts but
upon political judges who used their places to serve party ends. It is
a dangerous thing for the bench to twist the law to partisan or class
purposes, yet to this very thing John Marshall was notoriously given.
As a judicial statesman, then, rather than a lawyer, Marshall is to
be judged, and to such a business the political historian is more
competent than the legalist. His important decisions fall into two main
groups: those like Marbury _vs._ Madison that assert the supremacy of
the judiciary over the legislature--that is, the power of the Supreme
Court to nullify an act of Congress; and those like the Yazoo Fraud
case and the Dartmouth College case, that assert the irrevocable nature
of contracts. The first was an official pronouncement of the principle
that Hamilton had elaborated in _The Federalist_, namely, that the
constitution is a law and as such lies within the field of judicial
interpretation. This was sound Federalist doctrine, and Marshall
welcomed the opportunity to engraft it upon the fundamental law of
the land, going far out of his way to bring it within the judicial
purview.[399] It was a bold and skillful move, and as Beveridge
remarks, it announced a principle that “is wholly and exclusively
American. It is America’s contribution to the science of the law”
(Beveridge, _Life of John Marshall_, p. 142). A contribution, it should
be added, which with the multiplying of republican constitutions in the
later nineteenth century was pretty generally rejected.
Even more partisanly Federalist were the decisions touching the nature
of contract. These reached to the heart of the bitter opposition
of the commercial and financial interests to the legislative acts
of populistic majorities. Suffering heavily from the post-war
confusions, those majorities had struck blindly at the profiteers whose
well-feathered nests were securely protected by the law. The revolt
was natural and human; a rough sense of social justice lay behind it;
but because it struck at the most prosperous and capable members of
society, who held the professional classes in retainer and dominated
the agencies of publicity, it aroused an extraordinarily vindictive
opposition. Dip into the literature of the seventeen-eighties and
nineties anywhere, in the _Anarchiad_ and the _Echo_ of the Hartford
Wits, or the private letters of indignant gentlemen, and the animus
of the respectable classes is clamorously revealed. At bottom it was
no other than this, that the law of business must be made the law of
the land, and that any populistic tampering with such law was wicked
and anarchistic. How determining was this spirit in the matter of
the Constitutional Convention is sufficiently well known. In the
new constitution certain practices of populistic majorities were
estopped--the emission of bills of credit and paper money, and laws
impairing the obligation of contracts; but such provisions, strictly
interpreted, did not reach to all cases. There were still gaps in the
law of business through which populistic majorities might force their
bills. To stop those gaps and complete the great work of rendering
business secure was the problem to which Marshall addressed himself;
and in the Yazoo Fraud case and the Dartmouth College case, he brought
the long Federalistic struggle to a triumphant issue.
An examination of the first of these two celebrated cases will suffice
to reveal the spirit of his judicial statesmanship. The state of
Georgia, through its Legislature, had contracted to sell thirty-five
million acres of land--the great part of the territory now comprising
the states of Alabama and Mississippi--to certain speculative companies
“at less than one and one-half cents an acre.” The passage of the bill
was marked by more than the usual jobbery, so common with a generation
fond of looting the public domain. The fraud was so gross that the
state of Georgia was thrown into a fury that visited itself upon the
corrupt legislators. A new legislature repealed the law and rescinded
the contract; but some of the land had already been resold to investors
in Boston and Philadelphia, who brought their claims before the Supreme
Court. The state of mind in which the chief justice heard the argument
is thus suggested by Beveridge: “Marshall was profoundly interested in
the stability of contractual obligations. The repudiation of these by
the legislature of Virginia had powerfully and permanently influenced
his views upon this subject. Also Marshall’s own title to part of the
Fairfax estate had more than once been in jeopardy. At that very moment
a suit affecting the title of his brother’s to certain Fairfax lands
was pending in Virginia courts” (Vol. III, p. 584). To suggest that a
nicer judicial honor would have inhibited Marshall from sitting in the
case is perhaps going too far if one accepts the principle of judicial
statesmanship. Certainly Marshall discovered none of the scruples that
must have troubled George Wythe. In awarding claims for compensation
to the investors he held that the act of the Georgia legislature was a
contract and as such was inviolable. The crux of the decision, however,
lay in the pronouncement that the courts cannot examine the motives
that induce legislators to enact a law, that the people are bound
by their agents and must suffer the penalties of choosing unwise or
corrupt agents. The upshot of the verdict, in plain language, was that
a legislative contract is sacred no matter how corruptly got. A curious
decision, surely, for one who professed to venerate the common law. A
Virginian of the type of John Randolph would never have reasoned thus
to a conclusion that laid open the public domain to the deals of clever
lobbyists and encouraged the betrayal of official stewardship. He would
scarcely have sacrificed the public interests to the law of business.
The bitter hostility which Marshall’s decisions aroused in his native
commonwealth reveals how far the Virginia of Jefferson had traveled
from the Federalism of the commercial North. The states-rights
philosophy and the philosophy of consolidation were at swords’ points;
the agrarian and capitalistic economies were engaged in a mortal
duel; that it should have been a Virginian who saved the day for the
Hamiltonians, erecting the old Federalism into the law of the land,
and conducting by his decisions straight to an augmented, consolidated
state, under the shadow of whose power the development of corporate
finance might go forward without agrarian let or hindrance, was a
bitter brew for the Jeffersonian planters to drink. As Marshall grew
old he drew farther away from his fellow Virginians. In his last years
he was perhaps the most reactionary man in America. “Should Jackson
be elected,” he wrote in 1828, “I shall look upon the government as
virtually dissolved” (Beveridge, Vol. IV, p. 463). His last hatreds
he divided between Old Hickory and the rising democratic movement. He
bitterly resisted the spread of manhood suffrage; he would make no
change even in the antiquated judicial system of Virginia; he would
have no overturning of anything established. A stubborn autocrat he
remained to the end, and there was a certain ironic fitness in his last
encounter with the executive power. The autocratic lawyer met his match
in the autocratic soldier who grimly remarked, “John Marshall has made
his decision, now let him enforce it.”
Nearly a century has passed since these happenings [concludes
Beveridge] and Marshall’s attitude now appears to have been that
of cold reaction; but he was as honest as he was outspoken in his
resistance to democratic reforms. He wanted good government, safe
government. He was not in the least concerned in the rule of the
people as such. Indeed, he believed that the more they directly
controlled public affairs the worse the business of government
would be conducted. He feared that sheer majorities would be
unjust, intolerant, tyrannical, and he was certain that they would
be untrustworthy and freakishly changeable. (Vol. IV, p. 507.)
A strong, resourceful, honest, capable man was John Marshall. In so far
there is pretty common agreement. Beyond this, comes in the sundering
blade of political theory. Concerning the wisdom of his judicial
statesmanship it is idle to expect Federalist and Democrat to agree.
Footnotes
[399] For an excellent discussion see Beveridge, _Life of John
Marshall_, Vol. III, Chap. III.
Chapter IV • The Older Plantation Mind
I • Plantation Backgrounds
The literary renaissance of Virginia began in the late twenties when
the English romantic movement reached the quiet plantations. Till
then the Virginia mind had lingered pleasantly in the twilight of the
liberal eighteenth century, following ways of thought it had learned
of revolutionary France, and writing with a leisurely finish it had
learned of Augustan England. In that older Virginia dignified sentiment
was accepted as the hall-mark of breeding--a sentiment somewhat ornate
and consciously elegant, that recognized its obligations to a strict
morality, and laid its nosegay at the feet of the pure and beautiful
and good. When the Virginian essayed somewhat infrequently to commit
his thoughts to paper, he wrote as an old-fashioned gentleman,
conscious of his social responsibility, consulting classic standards
of taste, and embellishing his sentences with bits of choice Latin.
But after the year 1830 sentiment gave place to romance, and dignity
to exuberance of fancy. A new generation, trained in the school of Sir
Walter Scott, fell to the pleasant task of portraying the familiar
plantation life in glowing colors and investing it with romantic charm.
The plantation tradition, it will be remembered, first took shape in
the Old Dominion and assumed its salient features at the hands of
Virginia romantics. Its development was contemporary with the New
England transcendental movement, and in origin and spirit it was
as native to Virginia as the philosophy of idealism was native to
Massachusetts. Inspired by an over-seas romanticism, it accepted the
materials it found at hand and transmuted the easy-going plantation
life into enduring romance. The work was begun by Kennedy in his
idyllic _Swallow Barn_. The picture thus slightly sketched was given
stronger colors by Caruthers, and received completer form from John
Esten Cooke. From their hands Thomas Nelson Page took his materials
to refashion to suit the taste of a later day. No realism added its
sobering touches to the romantic picture thus early drawn, and none has
since been added. A golden light still lingers upon the old plantation.
Memories are still too dear to the Virginian to suffer any lessening
of the reputed splendors of _ante bellum_ days. The tragedy of a lost