John Marshall and the Constitution, A Chronicle of the Supreme Court | Page 4

NOTE

JOHN MARSHALL AND THE CONSTITUTION

CHAPTER I.
The Establishment Of The National Judiciary
The monarch of ancient times mingled the functions of priest and judge.
It is therefore not altogether surprising that even today a judicial system
should be stamped with a certain resemblance to an ecclesiastical
hierarchy. If the Church of the Middle Ages was "an army encamped
on the soil of Christendom, with its outposts everywhere, subject to the
most efficient discipline, animated with a common purpose, every
soldier panoplied with inviolability and armed with the tremendous
weapons which slew the soul," the same words, slightly varied, may be
applied to the Federal Judiciary created by the American Constitution.
The Judiciary of the United States, though numerically not a large body,
reaches through its process every part of the nation; its ascendancy is
primarily a moral one; it is kept in conformity with final authority by
the machinery of appeal; it is "animated with a common purpose"; its
members are "panoplied" with what is practically a life tenure of their

posts; and it is "armed with the tremendous weapons" which slay
legislation. And if the voice of the Church was the voice of God, so the
voice of the Court is the voice of the American people as this is
recorded in the Constitution.
The Hildebrand of American constitutionalism is John Marshall. The
contest carried on by the greatest of the Chief Justices for the principles
today associated with his name is very like that waged by the greatest
of the Popes for the supremacy of the Papacy. Both fought with
intellectual weapons. Both addressed their appeal to the minds and
hearts of men. Both died before the triumph of their respective causes
and amid circumstances of great discouragement. Both worked through
and for great institutions which preceded them and which have
survived them. And, as the achievements of Hildebrand cannot be
justly appreciated without some knowledge of the ecclesiastical system
which he did so much to develop, neither can the career of John
Marshall be understood without some knowledge of the organization of
the tribunal through which he wrought and whose power he did so
much to exalt. The first chapter in the history of John Marshall and his
influence upon the laws of the land must therefore inevitably deal with
the historical conditions underlying the judicial system of which it is
the capstone.
The vital defect of the system of government provided by the soon
obsolete Articles of Confederation lay in the fact that it operated not
upon the individual citizens of the United States but upon the States in
their corporate capacities. As a consequence the prescribed duties of
any law passed by Congress in pursuance of powers derived from the
Articles of Confederation could not be enforced. Theoretically, perhaps,
Congress had the right to coerce the States to perform their duties; at
any rate, a Congressional Committee headed by Madison so decided at
the very moment (1781) when the Articles were going into effect. But
practically such a course of coercion, requiring in the end the exercise
of military power, was out of the question. Whence were to come the
forces for military operations against recalcitrant States? From sister
States which had themselves neglected their constitutional duties on
various occasions? The history of the German Empire has demonstrated
that the principle of state coercion is entirely feasible when a single
powerful State dominates the rest of the confederation. But the

Confederation of 1781 possessed no such giant member; it
approximated a union of equals, and in theory it was entirely such.*
* By the Articles of Confederation Congress itself was made "the last
resort of all disputes and differences...between two or more States
concerning boundary, jurisdiction, or any other cause whatever." It was
also authorized to appoint "courts for the trial of piracies and felonies
committed on the high seas" and "for receiving and determining finally
appeals in all cases of capture." But even before the Articles had gone
into operation, Congress had, as early as 1779, established a tribunal
for such appeals, the old Court of Appeals in Cases of Capture. Thus at
the very outset, and at a time when the doctrine of state sovereignty
was dominant, the practice of appeals from state courts to a supreme
national tribunal was employed, albeit within a restricted sphere. Yet it
is less easy to admit that the Court of Appeals was, as has been
contended by one distinguished authority. "not simply the predecessor
but one of the origins of the Supreme Court of the United States." The
Supreme Court is the creation of the Constitution itself; it is the final
interpreter of the law in every field of national power; and its decrees
are carried into effect by the force and authority of