James Bradley Thayer

“ 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. ”

“ 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. ”

“ 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. ”

“ 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!”... ”

“ 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. ”

“ 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. ”

“ 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 ”

“ 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. ”

“ 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. ”

“ 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 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 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 ”

“ 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. ”

“ 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. ”

“ The situation of Holland is truly interesting. Though the face of the country still exhibits a degree of wealth and population still unequaled in any part of Europe, its decline is visible. The great city of Amsterdam is in a state of blockade. More than two thirds of its shipping lie unemployed in port. Other seaports suffer, though not in so great a degree. In the mean time the requisitions made upon them are enormous. They have just completed the payment of the 100,000,000 of florins (equal to 40,000,000 of dollars) stipulated by treaty ”

“ If a superior law is not thus changeable, then an unconstitutional act is not law. This theory, it is added, is essentially attached to a written constitution. (3) If the act is void, it{96} cannot bind the court. The court has to say what the law is, and in saying this must judge between the Constitution and the act. Otherwise, a void act would be obligatory; and this would be saying that constitutional limits upon legislation may be transgressed by the legislature at pleasure, and thus these limits would be reduced to nothing. ”

“ 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. ”

“ 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. ”

“ Of this extraordinary dilemma, the gentleman from New York is himself perfectly at liberty to retain either form.{45}
“He has chosen to consider it as a crime, and says it has been made a crime by treaty, and is punished by sending the offender out of the country. The gentleman is incorrect in every part of his statement. Murder on board a British frigate is not a crime created by treaty. It would have been a crime of precisely the same magnitude had the treaty never been formed. It is not punished by sending the offender out of the United States. ”

“ The sea rovers by a variety of means seem to have acquired great influence in the government. This influence will be exerted to prevent an accommodation between the United States and France, and to prevent any regulations which may intercept the passage of the spoils they have made on our commerce, to their pockets. The government, I believe, is but too well disposed to promote their views. ”

“ While, historically, this part of it is what gives the case its chief importance, yet it occupies only about a quarter of the opinion.
In outline, the argument there presented is as follows: The question is whether a court can give effect to an unconstitutional act of the legislature. This question is answered, as having little difficulty, by referring to a few “principles long and well established.” (1) The people, in establishing a written constitution and limiting the powers of the legislature, intend to control it; else the legislature could change the constitution by an ordinary act. ”

“ Your committee{124} are too conscious of their destitution of professional skill to advance with any confidence the opinion they have formed; but the resolution under which they act having made it their duty to give an opinion, they say, though with much diffidence, that they do not think any attempt to fortify the city advisable. It is to be saved by operations in the open field, by facing the enemy with a force which may deter him from any attempt to penetrate the interior of our country, and which may impress him with the danger of separating himself from his ships. ”

“ Is the situation necessarily different when a court is asked to enforce a legislative act? The courts are not strangers to the case of political questions, where they must refuse to interfere with the acts of the other departments,—as in the case relating to Andrew Johnson just referred to; and in dealing with what are construed to be merely directory provisions of the Constitution ”