POWER OF THE SUPREME COURT

357

to return home. Pike published an interesting and very popular account of his travels. He was a brave man and rapidly rose to distinction in the war of 1812 until he met his death as brigadier general at the capture of York, in 1813. His explorations in the Southwest and those of Lewis and Clark in the Northwest appealed to the American imagination and stimulated powerfully the desire to own and settle the Far West.

EARLY CONSTITUTIONAL INTERPRETATION

tion of the Supreme

The makers of the constitution expressed its meaning as clearly as the limitation of language and the necessity of compromise permitted. But however clear its meaning, it was to be expected that congress, president, and the states themselves The Funcwould construe their rights under the new instrument, each to its own advantage. The arbiter between such con- Court. tending interpretations was the supreme court, endov ed with the power to pass on cases arising under the constitution. It could thus decide whether or not congress, state, or president improperly read the charter of government, and its decision was final. If a question arose of its own power under the constitution, the court passed on this also. Since final power must rest somewhere, it was, perhaps, best to leave it with a small body of learned and unprejudiced men. But many people of the day did not readily accept this view. The three great spheres of government, they said, should be mutually coördinate, and apparently it was so intended by the fathers. Nothing short of a constitutional amendment could settle the dispute clearly, and in default of that the court asserted final jurisdiction in the matter under consideration.

At first the supreme court was not inclined to assert its powers, partly because the judges were naturally cautious and partly because they wished to avoid exciting criticism in the early years

John

of the union. But its attitude changed when, in 1801, The InJohn Marshall, of Virginia, became chief justice. This fence of strong-willed and aggressive man, who believed the union Marshall. ought to have the necessary power to execute its will was the controlling personality on the supreme bench from his appointment until his death in 1835. By his strong mind and character he won to his views the associate justices, even the appointees of the republican presidents, and laid down a large body of precedent on the loose-construction theory of the constitution. "He was born," said Pinkney, of Maryland, "to be chief justice of any country in which he lived."

His first important decision of this nature was in the case of Marbury vs. Madison. February 13, 1801, the federalists, about to relinquish power, created sixteen new federal judges, with the ordinary

Madison, 1803.

complement of marshals and clerks of court. The law was denounced as unnecessary and as an attempt to fill the courts with federalists before the republicans took control, and one Marbury us. of the first acts of the new administration was to get the law repealed. The original bill was passed so hurriedly that Adams was not able to appoint and install the new officials ere he gave up his power. When the new secretary of state took office, many of the commissions were found in the office undelivered; and Jefferson, holding that an appointment was not complete until the commission was signed, sealed, and delivered, ordered that the commissions should be withheld. He thought an appointment followed the procedure of a deed. Marbury asked the supreme court to issue a mandamus for the delivery of one of these commissions, and the matter was argued in the supreme court. Marshall, who gave the opinion, held that since the supreme court by the constitution did not have original jurisdiction in such a case, Marbury had no right to bring suit in that tribunal. This ordinarily would have ended the matter, but he went on to say, and it was an obiter dictum, that a commission was not analogous to a deed, that Madison had no right to withhold one duly signed, and that Marbury, if he had brought suit in proper form, would be entitled to his office. The republicans denounced this decision as partisan. But it had a still wider significance. Congress had previously passed a law giving the court the right to issue a mandamus, and it was under that act that the suit was brought. In declaring the contrary, therefore, the court had annulled a law of congress, and this is the chief constitutional import of the decision.

In Fletcher vs. Peck the act of a state legislature was in question. The assembly of Georgia had granted certain lands, and afterwards

Fletcher us.
Peck, 1810.

declared the grant null on account of fraud. Peck claimed land under this annulled grant and brought suit in the federal courts, urging that Georgia had violated the clause of the constitution which forbids a state to pass a law "impairing the obligation of a contract." Georgia put herself on her sovereignty and replied that a land grant, made by the state in the disposal of its domain, was not a contract. The court held, Marshall giving the decision, that a grant is a contract and that the attempt of Georgia to repeal the grant was illegal. Here the court declared unconstitutional an act of a state legislature. But now appeared a difficulty which has since then limited the power of the court. Who was to execute the decision of the court against a state? Ordinarily it would be the president, but if he thought it advisable to decline to act, there was no power to compel him. This happened to the decision in Fletcher vs. Peck. Georgia thus defied the court, and the only way out of the difficulty was the compromise, made in 1814, in which congress by paying money salved the feelings of the claimants under the Georgia grants.

MCCULLOCH vs. MARYLAND

359

pect of the

These two decisions, it will be seen, were aimed at two doctrines dear to the heart of the republicans. In the first it was held that the popular will as expressed in a congressional law must be restrained by the constitution: in the second the doc- Political Astrine of state sovereignty was shorn of some of its power; Decisions. for Georgia's claim that the people of a state acting through the legislature were sovereign in state affairs was made to yield to the supremacy of the federal constitution. The supreme court, under Marshall's leadership, was intent on establishing this general view, and after the war of 1812 proceeded to do so in several other important cases. Two of them are especially significant, and both were decided in 1819.

McCulloch

Us. Maryland, 1819.

First came McCulloch vs. Maryland, relating to the power of congress under the "implied powers" clause of the constitution, article I, section 8. Much popular opposition existed to the bank of the United States, and several states passed laws to tax its notes, one of them being Maryland. The bank resisted the taxes, and the matter came before the supreme court. Two questions arose: Has congress power to create a bank? and have the states power to tax a bank, if created? Marshall answered the first in the broadest possible manner. The government, he said, has all the power implied in the act of its creation: "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 consistent with the letter and spirit of the constitution, are constitutional." If congress should pass a law which by the constitution it may not pass, the court would declare that law of no effect; but if the court pretended to annul a law of congress made in the field proper to the activity of congress, the court would by that action enter the field of law-making, a thing it had no right to do. As the creation of a bank was not prohibited to congress, and as a bank was a thing useful in the happy and prosperous government of the nation, the court must hold that it was within the power of the national legislature to establish it. As for the second question, the right of a state to tax the bank, that was also opposed; for if a small tax could be laid, a large one could also be laid, and thus the bank, lawful in itself, could be taxed out of existence. "The power to tax," said Marshall in words long remembered, “involves the power to destroy."

The Dartmouth Col

The second great case decided in 1819, and nearly as important as the McCulloch case, was Dartmouth College vs. Woodward. The New Hampshire legislature, in response to the political feeling of the day, wished to get control of the college and amended its charter with that end in 1819. view and against the protest of the college authorities. Suit was brought, and the case went before the supreme court, Webster,

lege Case,

a Dartmouth alumnus, appearing among the lawyers for the college. Is a charter granted to a corporation inviolate by the legislature? was the question. The court held that a charter is a contract and not to be recalled by the legislature provided the grantee observes the conditions on which it was granted. The decision became a precedent in all cases arising under acts of incorporation, a large part of modern law. Under it banks, manufacturing, and many other kinds of corporate companies have insisted that they could not be disturbed in their business relations. As Marshall laid down the principle, the companies seem to have had absolute immunity from interference, a position quite contrary to modern ideas that corporations should be under state control. This difficulty has been obviated by several subsequent decisions by which it is held that a legislature may modify a charter under the exercise of the police power, under its right to pass laws for good morals, and on other grounds. These later decisions have greatly modified the force of Marshall's ruling, but in ordinary cases that rule still remains the great principle for the government of corporations. It was, when made, a direct blow at the assumed right of a state to limit the action of an individual through the exercise of its sovereign power over him.

of Marshall's Decisions.

These decisions were received with indignation by the ultra republicans. Victorious in the elections, masters of the executive and legislative parts of government, they writhed to see the juSignificance diciary annul the will of the people as expressed in the elections, while in decision after decision it completed a system of centralized power greatly at variance with the principles of the party which ruled. But for all their contempt, Marshall did not quail. Doffing the neutrality of an ideal judge he boldly set himself the task of shaping the constitution in its most plastic period. His decisions became precedents in every court in the land. They gave strength and steadiness to a government, which by the nature of the case, was in the hands of the least competent portion of its citizens. They saved popular government from the effects of radicalism while the ideals of conservatism struck root in the crude but ripening society then spreading itself over the face of a new continent. No greater deed of firm leadership has been performed in our country than this persistent assertion of the vital will of the federal republic.

Another case, Chisholm v. Georgia, decided that a state might be sued by a citizen of another state. It displeased the states and resulted in the eleventh amendment, 1798. Six years later the twelfth amendment was in force, providing that electors should vote separately for president and vice-president.

BIBLIOGRAPHICAL NOTE

BIBLIOGRAPHICAL NOTE

361

On the general social history of the period treated in this chapter the best work is McMaster, History of the People of the United States, 7 vols. (1883-1910), containing many chapters of interest; Adams, History of the United States, vol. I (1889). chaps. I-IV contain valuable accounts of social and intellectual conditions; See also Bassett, The Federalist System, Chaps. X-XIII (1906); Hart, American History Told by Contemporaries, III (1906); Simons, Social Forces in American History, chaps. VIII-XII (1911); Fess, Political Theory and Party Organization in the United States, chaps. I-V (1910); and Griswold, The Republican Court (1864). On the public lands see Donaldson, The Public Domain (Pub. Land Comssn. Report, 1881); and Treat, The National Land System (1910).

Many European travelers visited America immediately after the revolution and wrote and published their impressions of the country. A list of them with critical discussions is found in Tuckerman, America and her Commentators (1864). The most important works of this nature are: Brissot de Warville, New Travels [1788] (1791, 1792), enthusiastically biased in favor of republicanism; Duc de Rochefoucauld-Liancourt, Travels. 1795-1797, 2 vols. (London ed. 1799), has many facts, but the author did not understand American life; Weld, Travels.. 1795-1797, 2 vol. (1799); Campbell, Travels in the Interior . . . 1791-1792 (1793), relates to New York, the Northwest, and Canada; Dwight, Travels in New England and New York [1796-1815], 4 vols. (1821-1822); Melish, Travels in the United States, 1806-1807, 1809-1811, 2 vols. (1812); and Bradbury, Travels in the Interior. . . 1809, 1810, 1811 (1817). After the return of peace in Europe and America came a revival of interest in immigration, and several foreigners who came to the United States to investigate the conditions here wrote books which were published for the instruction of those who proposed to emigrate. Among them are: Fearon, Narrative of a Journey, etc. (1817); Birkbeck, Notes on a Journey in America (1818); Ibid., Letters from Illinois (1818); and Cobbett, A Year's Residence in the United States (1819).

Most of these travelers visited the Northwest and described conditions there in frontier days. A general work of great excellence on the settlement of that region is Matthews, The Expansion of New England (1909). See also: Turner, The Rise of the New West (1906); Boggess, The Settlement of Illinois, 1778-1830 (Chicago Hist. Soc. Collections, 1908); and Hinsdale, The Old Northwest, 2 vols. (1888, 1899). Conditions in the South and Southwest are described in Phillips, Georgia and State Rights (Amer. Hist. Assn. Report, 1901, vol. II); Schaper, Sectionalism and Representation in South Carolina (Ibid., 1900, vol. I); and Pickett, History of Alabama, 2 vols. (1851, 1900).

On far western explorations see Thwaites, Rocky Mountain Exploration (1904) for a good summary. Lewis and Clark prepared full notes of their explorations, which were edited by Nicholas Biddle, later president of the second bank of the United States. They appeared as History of the Expedition under the Command of Captains Lewis and Clark, 1804, 1805, 1806, Prepared for the Press by Paul Allen, 2 vols. (1814). The best modern edition is edited by Thwaites in eight volumes (1904-1905). It is a verbatim reproduction of all the journals kept by the two leaders and other members of the expedition. Pike wrote an account of his travels, published under the title, Account of Expeditions to the Sources of the Mississippi. And a Tour through the Interior Parts of New Spain, 2 vols. (1810). The history of American industry has not been adequately written. Bassett, Federalist System (1906) has a brief chapter on conditions from 1789 to 1801. A longer and more general treatment is in Coman, Industrial History (1905, 1910); and Bogart, Economic History of the United States (ed. 1907). See also Adams, History of the United States, vols. V and VIII (1891) for the influence of manufactures; Seybert, Statistical Annals. . . 1789-1818 (1818) has many valuable statistics on commerce. See also: Dewey, Financial History of the United States (1903); Bishop, History of American Manufactures, 3 vols. (1864-1867); Bagnall,