James Bradley Thayer

“ If the question were about legislation reducing the duty on wool, and it should be argued in a judicial opinion that the law is contrary to the spirit of the Constitution, because it is the aim of that instrument “to form a more perfect union,” while this law is necessarily unsatisfactory to the people of a certain section of the Union, and tends to alienate them from it,— that kind of reasoning would be instantly felt to be out of place. It seems, at best, to belong to legislative, rather than judicial discussion. ”

“ Marshall himself expressed truly one aspect of the matter, when he said in one of the later years of his life: “No questions can be brought before a judicial tribunal of greater delicacy than those which involve the constitutionality of legislative acts. If they become indispensably necessary to the case, the court must meet and decide them; but if the case may be determined on other grounds, a just respect for the legislature requires that the obligation of its laws should not be unnecessarily and wantonly assailed.” ”

“ But, if the Constitution knows only gold and silver as a legal tender, does it follow that the Constitution cannot tolerate the voluntary circulation of bank notes, convertible into gold and silver at the will of the holder, as part of the actual money of the country? Is a man not only to be entitled to demand gold and silver for every debt, but is he, or should he be, obliged to demand it in all cases? ”

“ Courts, as has often been said, are not to think of the legislators, but of the legislature,—the great, continuous body itself, abstracted from all the transitory{109} individuals who may happen to hold its power. It is this majestic representative of the people whose action is in question, a coördinate department of the government, charged with the greatest functions, and invested, in contemplation of law, with whatsoever wisdom, virtue, and knowledge the exercise of such functions requires. ”

“ When, therefore, the gentleman from Pennsylvania has established that, in delivering up Thomas Nash, points of law were decided by the President, he has established a position which in no degree whatever aids his argument. The case is in its nature a national demand, made upon the nation. The parties are the two nations. They cannot come into court to litigate their claims, nor can a court decide on them. Of consequence, the demand is not a case for judicial cognizance. The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. ”

“ Congress, he thought, would not have the power unless it were expressed. Though he had a mortal hatred to paper money, yet, as he could not foresee all emergencies, he was unwilling to tie the hands of the legislature. He observed that the late war could not have been carried on, had such a prohibition existed.—Mr. Gorham. The power, as far as it will be necessary or safe, is involved in that of borrowing.—Mr. Mercer was a friend to paper money, though, in the present state and temper of America, he should neither propose nor approve of such a measure. ”

“ But I venture to think that the good which came to the country and its people from the vigorous thinking that had to be done in the political debates that followed, from the infiltration through every part of the population of sound ideas and sentiments, from the rousing into activity of opposite elements, the enlargement of ideas, the strengthening of moral fibre, and the growth of political experience that came out of it all,—that all this far more than outweighed any evil which ever flowed from the refusal of the court to interfere with the work of the legislature. ”

“ The States are expressly prohibited from making anything but gold and silver a tender, in payment of debts, and although no such express prohibition is applied to Congress, yet as Congress has no power granted to it, in this respect, but to coin money and to regulate the value of foreign coins, it clearly has no power to substitute paper, or anything else, for coin, as a tender in payment of debts and in discharge of contracts. ”

“ Great and, indeed, inestimable as are the advantages in a popular government of this conservative influence,—the power of the judiciary to disregard unconstitutional legislation,—it should be remembered that the exercise of it, even when unavoidable, is always attended with a serious evil, namely, that the correction of legislative mistakes comes from the outside, and the people thus lose the political experience, and the moral education and stimulus that come from fighting the question out in the ordinary way, and correcting their own errors. ”

“ On the west side of the Capitol at Washington, midway between the staircases that ascend from the garden to the great building, and a little in advance, there is a colossal bronze figure of Marshall by the sculptor Story, the son of the great man’s colleague and friend,—placed there in 1884. It is a very noble work of art, worthy of the subject and the place. The Chief Justice is sitting, clothed in his judicial robe, in the easy attitude of one engaged in expounding a subject of which he is master. ”

“ To make the currency do the usual office of money more effectually and fully, is legitimate regulation of the currency. To make it do the special office of theatre tickets or railroad tickets is superadding to its quality as currency, as money, or its equivalent, another and foreign quality. ”

“ Marshall’s education was got from his father, from such teachers as the neighborhood furnished, and, for about a year, at a school in Westmoreland County, where his father and George Washington had attended, and where James Monroe was his own schoolmate. But most he owed to his father,—a man of good stock, of enterprise, experience, strong character and sense, himself of no mean education,—who, personally, took great pains with the training of his children. Marshall admired his father, and declared him to be a far abler man than any of his sons. ”

“ If the implied power be otherwise plain it is difficult to see why it should be treated any differently as regards the exercise of it, or its relation to the spirit of the Constitution, from any other power. ”

“ Such a body, charged, in every State, with almost all the legislative power of the people, is entitled to the most entire and real respect; is entitled, as among all rationally permissible opinions as to what the constitution allows, to its own choice. ”

“ But it is, in fact, borrowing money on a promise to pay; and in the case of the government it is borrowing upon a kind of promise to pay, which is a part of the medium of exchange, and of that which is, in the full legal sense, money.
We perceive, then, a great difference between private borrowing and public borrowing. [63] When a nation borrows it may, as we see, borrow with its currency; and if its currency be made a legal tender it may borrow with that. ”

“ That confusion and anarchy would banish a large portion of that wealth, would dry up its sources, and would entirely disable them from giving France that pecuniary aid she so much needed. That under this impression many who, though friendly to the revolution, saw with infinite mortification French troops garrison the towns of Holland, would now see their departure with equal regret. Thus they willingly relinquished national independence for individual safety. What a lesson to those who would admit foreign influence into the United States!”... ”

“ Yet the evident understanding of most of those who took part in the debates was, that if the power to emit bills was given it would carry with it the power to make them a tender, unless that power was expressly prohibited. There can be no doubt as to their understanding of that. The coinage change was not even alluded to. We have, then, in a way, the authority of these framers of the Constitution against the argument that the coinage clause excluded the implication of a power to make paper a legal tender. ”

“ The judiciary, to-day, in dealing with the acts of their coördinate{110} legislators, owe to the country no greater or clearer duty than that of keeping their hands off these acts wherever it is possible to do it. For that course—the true course of judicial duty always—will powerfully help to bring the people and their representatives to a sense of their own responsibility. There will still remain to the judiciary an ample field for the determinations of this remarkable jurisdiction, of which our American law has so much reason to be proud ”

“ But if we understand by currency the legal money of the country, and that which constitutes a lawful tender for debts, and is the statute measure of value, then, undoubtedly, nothing is included but gold and silver. Most unquestionably there is no legal tender, and there can be no legal tender, in this country, under the authority of this government or any other, but gold and silver, either the coinage of our own mints, or foreign coins, at rates regulated by Congress. ”

“ The court has taken into its serious and anxious consideration the motion made on the part of the government to continue the cause of Mitchel v. The United States to the next term. Though the hope of deciding causes to the mutual satisfaction of parties would be chimerical, that of convincing them that the case has been fully and fairly considered, that due attention has been given to the arguments of counsel, and that the best judgment of the court has been exercised on the case, may be sometimes indulged. Even this is not always attainable. ”

“ Let them consider how narrow is the function which the constitutions have conferred on them,—the office merely of deciding litigated cases; how large, therefore, is the duty intrusted to others, and above all to the legislature. It is that body which is charged, primarily, with the duty of judging of the constitutionality of its work. The constitutions generally give them no authority to call upon a court for advice; they must decide for themselves, and the courts may never be able to say a word. ”

“ In law, also, it is to be admitted that, generally, in the payment of debts and obligations, and on the side of penal law, as in a statute relating to the embezzlement of money, only what is a legal tender is money. [33] But it must also be remembered that the Constitution, in giving to Congress the power to coin money, is not, just then, concerned with the technicalities of law or political economy ”

“ In Marshall’s early childhood, his father’s household, situated in a frontier county, must have been agitated with the dreadful rumors, anxieties, and terrors of the troubles with the French and Indians. “So late,” he tells us in the “Life of Washington,” “as the year 1756, the Blue Ridge was the northwestern frontier; and [Virginia] found immense difficulty in completing a single regiment to protect the inhabitants from the horrors of the scalping-knife, and the still greater horrors of being led into captivity by savages who added terrors to death by the manner of inflicting it.” ”

“ It is almost necessary to the working of a federal system that the general government, and each of its departments, should be free to disregard acts of any department of the local states which may be inconsistent with the federal constitution. And so in Switzerland and Germany the federal courts thus treat local enactments. But there is not under any written constitution in Europe a country where a court deals in this way with the act of its coördinate legislature. ”

“ The American Colonization Society was organized in 1816 or 1817, with Bushrod Washington for president. In 1823 an auxiliary society was organized at Richmond, of which Marshall was president, an office which he held nearly or quite up to the time of his death. It is interesting to observe that one of the plans for colonization was to have worked out the abolition of slavery in Virginia in the year 1901. Of slavery Marshall wrote to a friend, in 1826: “I concur with you in thinking that nothing portends more calamity and mischief to the Southern States than their slave population. ”

“ The treaty stipulating that a murderer shall be delivered up to justice is as obligatory as an act of Congress making the same declaration. If, then,{50} there was an act of Congress in the words of the treaty, declaring that a person who had committed murder within the jurisdiction of Britain, and sought an asylum within the territory of the United States, should be delivered up by the United States, on the demand of his Britannic Majesty and such evidence of his criminality as would have justified his commitment for trial, had the offense been committed here ”

“ His eyes do not fly over a landscape and take in its various objects with more promptitude and facility than his mind embraces and analyzes the most complex subject.... All his eloquence consists in the apparently deep self-conviction and the emphatic earnestness and energy of his style, the close and logical connection of his thoughts, and the easy gradations by which he opens his lights on the attentive minds of his hearers. ”

“ Missouri, Marshall gave the opinion that certain certificates issued by a State in return for deposits, and intended to circulate as money, were bills of credit; and as such forbidden by the Constitution. There were three dissenting opinions; and soon after Marshall’s death, a different doctrine was established by the court,—wisely it would seem,—and has ever since been maintained. [35]
Coming now to the third class of cases{95} mentioned above, that which deals with the fundamental conceptions and theory of our American doctrine of constitutional law, Marbury v. Madison is the chief case. ”

“ The people, all this while, become careless as to whom they send to the legislature; too often they cheerfully vote for men whom they would not trust with an important private affair, and when these unfit persons are found to pass foolish and bad laws, and the courts step in and disregard them, the people are glad that these few wiser gentlemen on the bench are so ready to protect them against their more immediate representatives.
From these causes there has developed a vast and growing increase of judicial interference with legislation. ”

“ The writer should always express himself so clearly as to make it impossible to misunderstand him. He should be comprehended without an effort. The first step towards writing and speaking clearly is to think clearly. Let the subject be perfectly understood, and a man will soon find words to convey his meaning to others.”
A letter to James Monroe, dated Richmond, December 2, 1784, was written while Marshall was a member of the House of Delegates. He writes: “Not a bill of public importance, in which an individual was not particularly interested, has passed. ”

“ In 1812, when a change took place, the court had been for a year without a quorum. Moreover, Judge Story had just come to the bench, a man of quite too exuberant an intellect and temperament to work well as a silent side-judge. We remark, also, at the beginning of that term, that the Chief Justice was not in attendance, having, as the reporter tells us, “received an injury by the oversetting of the stage-coach on his journey from Richmond.” And it may be added that just at this time the anxious prayer of Jefferson was answered, and a majority of the judges were Republicans. ”