Part 4 (1/2)

* See Justice Bradley's language in 122 U.S., 326; also the more recent case of Western Union Telegraph Company vs. Kan., 216 U.S., 1.

* * See 195 U.S., 27; 188 U.S., 321; 227 U.S., 308. Cf. 247 U.S., 251.

The great principles which Marshall developed in his interpretation of the Const.i.tution from the side of national power and which after various ups and downs may be reckoned as part of the law of the land today, were the following:

1. The Const.i.tution is an ordinance of the people of the United States, and not a compact of States.

2. Consequently it is to be interpreted with a view to securing a beneficial use of the powers which it creates, not with the purpose of safeguarding the prerogatives of state sovereignty.

3. The Const.i.tution was further designed, as near as may be, ”for immortality,” and hence was to be ”adapted to the various crises of human affairs,” to be kept a commodious vehicle of the national life and not made the Procrustean bed of the nation.

4. While the government which the Const.i.tution established is one of enumerated powers, as to those powers it is a sovereign government, both in its choice of the means by which to exercise its powers and in its supremacy over all colliding or antagonistic powers.

5. The power of Congress to regulate commerce is an exclusive power, so that the States may not intrude upon this field even though Congress has not acted.

6. The National Government and its instrumentalities are present within the States, not by the tolerance of the States, but by the supreme authority of the people of the United States. *

* For the application of Marshall's canons of const.i.tutional interpretation in the field of treaty making, see the writer's ”National Supremacy” (N. Y., 1913). Chaps. III and IV.

Of these several principles, the first is obviously the most important and to a great extent the source of the others. It is the principle of which Marshall, in face of the rising tide of State Rights, felt himself to be in a peculiar sense the official custodian. It is the principle which he had in mind in his n.o.ble plea at the close of the case of Gibbons vs. Ogden for a construction of the Const.i.tution capable of maintaining its vitality and usefulness:

”Powerful and ingenious minds [run his words], taking as postulates that the powers expressly granted to the Government of the Union are to be contracted by construction into the narrowest possible compa.s.s and that the original powers of the States are to be retained if any possible construction will retain them, may by a course of refined and metaphysical reasoning... explain away the Const.i.tution of our country and leave it a magnificent structure indeed to look at, but totally unfit for use. They may so entangle and perplex the understanding as to obscure principles which were before thought quite plain, and induce doubts where, if the mind were to pursue its own course, none would be perceived. In such a case, it is peculiarly necessary to recur to safe and fundamental principles.”

CHAPTER VI. The Sanct.i.ty Of Contracts

Marshall's work was one of conservation in so far as it was concerned with interpreting the Const.i.tution in accord with the intention which its framers had of establis.h.i.+ng an efficient National Government. But he found a task of restoration awaiting him in that great field of Const.i.tutional Law which defines state powers in relation to private rights.

To provide adequate safeguards for property and contracts against state legislative power was one of the most important objects of the framers, if indeed it was not the most important. Consider, for instance, a colloquy which occurred early in the Convention between Madison and Sherman of Connecticut. The latter had enumerated ”the objects of Union” as follows: ”First, defense against foreign danger; secondly, against internal disputes and a resort to force; thirdly, treaties with foreign nations; fourthly, regulating foreign commerce and drawing revenue from it.” To this statement Madison demurred. The objects mentioned were important, he admitted, but he ”combined with them the necessity of providing more effectually for the securing of private rights and the steady dispensation of justice. Interferences with these were evils which had, more perhaps than anything else, produced this Convention.”

Marshall's sympathy with this point of view we have already noted. * Nor was Madison's reference solely to the then recent activity of state Legislatures in behalf of the much embarra.s.sed but politically dominant small farmer cla.s.s. He had also in mind that other and more ancient practice of Legislatures of enacting so-called ”special legislation,” that is, legislation altering under the standing law the rights of designated parties, and not infrequently to their serious detriment. Usually such legislation took the form of an intervention by the Legislature in private controversies pending in, or already decided by, the ordinary courts, with the result that judgments were set aside, executions canceled, new hearings granted, new rules of evidence introduced, void wills validated, valid contracts voided, forfeitures p.r.o.nounced-all by legislative mandate. Since that day the courts have developed an interpretation of the principle of the separation of powers and have enunciated a theory of ”due process of law,” which renders this sort of legislative abuse quite impossible; but in 1787, though the principle of the separation of powers had received verbal recognition in several of the state Const.i.tutions, no one as yet knew precisely what the term ”legislative power” signified, and at that time judicial review did not exist. * * Hence those who wished to see this nuisance of special legislation abated felt not unnaturally that the relief must come from some source external to the local governments, and they welcomed the movement for a new national Const.i.tution as affording them their opportunity.

* See supra, Chapter II.

* * On special legislation, see the writer's ”Doctrine of Judicial Review” (Princeton, 1914), pp. 36-37, 69-71.

The Const.i.tution, in Article I, Section X, forbids the States to ”emit bills of credit, make anything but gold and silver a legal tender in payment of debts, pa.s.s any bill of attainder, ex post facto law, or law impairing the obligation of contracts.” Until 1798, the provision generally regarded as offering the most promising weapon against special legislation was the ex post facto clause. In that year, however, in its decision in Calder vs. Bull the Court held that this clause ”was not inserted to secure the citizen in his private rights of either property or contracts,” but only against certain kinds of penal legislation. The decision roused sharp criticism and the judges themselves seemed fairly to repent of it even in handing it down. Justice Chase, indeed, even went so far as to suggest, as a sort of stop-gap to the breach they were thus creating in the Const.i.tution, the idea that, even in the absence of written const.i.tutional restrictions, the Social Compact as well as ”the principles of our free republican governments” afforded judicially enforcible limitations upon legislative power in favor of private rights. Then, in the years immediately following, several state courts, building upon this dictum, had definitely announced their intention of treating as void all legislation which they found unduly to disturb vested rights, especially if it was confined in its operation to specified parties. *

* In connection with this paragraph, see the writer's article ent.i.tled ”The Basic Doctrine of American Const.i.tutional Law,” in the ”Michigan Law Review,” February, 1914. Marshall once wrote Story regarding his att.i.tude toward Section X in 1787, as follows: ”The questions which were perpetually recurring in the State legislatures and which brought annually into doubt principles which I thought most sacred, which proved that everything was afloat, and that we had no safe anchorage ground, gave a high value in my estimation to that article of the Const.i.tution which imposes restrictions on the States.” ”Discourse.”

Such was still the situation when the case of Fletcher vs. Peck * in 1810 raised before the Supreme Court the question whether the Georgia Legislature had the right to rescind a land grant made by a preceding Legislature. On any of three grounds Marshall might easily have disposed of this case before coming to the princ.i.p.al question. In the first place, it was palpably a moot case; that is to say, it was to the interest of the opposing parties to have the rescinding act set aside. The Court would not today take jurisdiction of such a case, but Marshall does not even suggest such a solution of the question, though Justice Johnson does in his concurring opinion. In the second place, Georgia's own claim to the lands had been most questionable, and consequently her right to grant them to others was equally dubious; but this, too, is an issue which Marshall avoids. Finally, the grant had been procured by corrupt means, but Marshall ruled that this was not a subject the Court might enter upon; and for the ordinary run of cases in which undue influence is alleged to have induced the enactment of a law, the ruling is clearly sound. But this was no ordinary case. The fraud a.s.serted against the grant was a matter of universal notoriety; it was, indeed, the most resounding scandal of the generation; and surely judges may a.s.sume to know what is known to all and may act upon their knowledge.

* 6 Cranch, 87.

Furthermore, when one turns to the part of Marshall's opinion which deals with the const.i.tutional issue, one finds not a little evidence of personal predilection on the part of the Chief Justice. He starts out by declaring the rescinding act void as a violation of vested rights, of the underlying principles of society and government, and of the doctrine of the separation of powers. Then he apparently realizes that a decision based on such grounds must be far less secure and much less generally available than one based on the words of the Const.i.tution; whereupon he brings forward the obligation of contracts clause. At once, however, he is confronted with the difficulty that the obligation of a contract is the obligation of a contract still to be fulfilled, and that a grant is an executed contract over and done with-functus officio. This difficulty he meets by a.s.serting that every grant is attended by an implied contract on the part of the grantor not to rea.s.sert his right to the thing granted. This, of course, is a palpable fiction on Marshall's part, though certainly not an unreasonable one. For undoubtedly when a grant is made without stipulation to the contrary, both parties a.s.sume that it will be permanent.

The greater difficulty arose from the fact that, whether implied or explicit, the contract before the Court was a PUBLIC one. In the case of private contracts it is easy enough to distinguish the contract, as the agreement between the parties, from the obligation of the contract which comes from the law and holds the parties to their engagements. But what law was there to hold Georgia to her supposed agreement not to rescind the grant she had made? Not the Const.i.tution of the United States unattended by any other law, since it protects the obligation only after it has come into existence. Not the Const.i.tution of Georgia as construed by her own courts, since they had sustained the rescinding act. Only one possibility remained; the State Const.i.tution must be the source of the obligation-yes; but the State Const.i.tution as it was construed by the United States Supreme Court in this very case, in the light of the ”general principles of our political inst.i.tutions.” In short the obligation is a moral one; and this moral obligation is treated by Marshall as having been converted into a legal one by the United States Const.i.tution.

However, Marshall apparently fails to find entire satisfaction in this argument, for he next turns to the prohibition against bills of attainder and ex post facto laws with a question which manifests disapproval of the decision in Calder vs. Bull. Yet he hesitates to overrule Calder vs. Bull, and, indeed, even at the very end of his opinion he still declines to indicate clearly the basis of his decision. The State of Georgia, he says, ”was restrained” from the pa.s.sing of the rescinding act ”either by general principles which are common to our free inst.i.tutions, or by particular provisions of the Const.i.tution of the United States.” It was not until nine years after Fletcher vs. Peck that this ambiguity was cleared up in the Dartmouth College case in 1819.

The case of the Trustees of Dartmouth College vs. Woodward * was a New England product and redolent of the soil from which it sprang. In 1754 the Reverend Eleazar Wheelock of Connecticut had established at his own expense a charity school for instructing Indians in the Christian religion; and so great was his success that he felt encouraged to extend the undertaking and to solicit donations in England. Again success rewarded his efforts; and in 1769 Governor Wentworth of New Hamps.h.i.+re, George III's representative granted the new inst.i.tution, which was now located at Hanover, New Hamps.h.i.+re, a charter incorporating twelve named persons as ”The Trustees of Dartmouth College” with the power to govern the inst.i.tution, appoint its officers, and fill all vacancies in their own body ”forever.”