The Supreme Court reversed Marshall"s judgment, holding that the authorization of an agent by a corporation can be established by presumptive evidence,[1311] an opinion that was plainly sound and which stated the law as it has continued to be ever since. But despite the unanimity of his brethren, the clear and convincing opinion of Story, the disapproval of his own views by the bench, bar, and business men of the whole country, Marshall would not yield. "The Ch: Jus: I fear will _die hard_," wrote Webster, who was of counsel for the bank.[1312]
In a very long opinion Marshall insists that his decision in the Circuit Court was right, fortifying his argument by more than thirty citations.
He begins by frank acknowledgment of the discontent his decision in the Circuit Court has aroused: "I should now, as is my custom, when I have the misfortune to differ with this court, acquiesce silently in its opinion, did I not believe that the judgment of the circuit court of Virginia gave general surprise to the profession, and was generally condemned." Corporations, "being dest.i.tute of human organs," can express themselves only by writing. They must act through agents; but the agency can be created and proved only by writing.
Marshall points out the serious possibilities to those with whom corporations deal, as well as to the corporations themselves, of the acts of persons serving as agents without authority of record.[1313]
Powerful as his reasoning is, it is based on mistaken premises inapplicable to modern corporate transactions; but his position, his method, his very style, reveal the stubborn conservative at bay, bravely defending himself and his views.
This, then, was the John Marshall, who, in his old age, accepted the call of men as conservative as himself to help frame a new const.i.tution for Virginia, On Monday, October 5, 1829, the convention met in the House of Delegates at Richmond. James Madison, then in his seventy-ninth year, feeble and wizened, called the members to order and nominated James Monroe for President of the convention. This nomination was seconded by Marshall. These three men, whose careers since before the Revolution and throughout our formative period, had been more distinguished, up to that time, than had that of any American then living, were the most conspicuous persons in that notable a.s.sembly.
Giles, now Governor of the State, was also a member; so were Randolph, Tyler, Philip P. Barbour, Upshur, and Tazewell. Indeed, the very ablest men in Virginia had been chosen to make a new const.i.tution for the State. In the people"s anxiety to select the best men to do that important work, delegates were chosen regardless of the districts in which they lived.[1314]
To Marshall, who naturally was appointed to the Judiciary Committee,[1315] fell the task of presenting to the convention the first pet.i.tion of non-freeholders for suffrage.[1316] No more impressive doc.u.ment was read before that body. It stated the whole democratic argument clearly and boldly.[1317] The first report received from any committee was made by Marshall and also was written by him.[1318] It provided for the organization of the State Judiciary, but did not seek materially to change the system of appointments of judges.
Two sentences of this report are important: "No modification or abolition of any Court, shall be construed to deprive any Judge thereof of his office"; and, "Judges may be removed from office by a vote of the General a.s.sembly: but two-thirds of the whole number of each House must concur in such vote."[1319] Marshall promptly moved that this report be made the order of the day and this was done.
Ranking next to the question of the basis of suffrage and of representation was that of judiciary reform. To accomplish this reform was one of the objects for which the convention had been called. At that time the Judiciary of Virginia was not merely a matter of courts and judges; it involved the entire social and political organization of that State. No more essentially aristocratic scheme of government ever existed in America. Coming down from Colonial times, it had been perpetuated by the Revolutionary Const.i.tution of 1776. It had, in practical results, some good qualities and others that were evil, among the latter a well-nigh faultless political mechanism.[1320]
The heart of this system was the County Courts. Too much emphasis cannot be placed on this fact. These local tribunals consisted of justices of the peace who sat together as County Courts for the hearing and decision of the more important cases. They were almost always the first men of their counties, appointed by the Governor for life; vacancies were, in practice, filled only on the recommendation of the remaining justices.
While the Const.i.tution of 1776 did not require the Governor to accept the nominations of the County Courts for vacancies in these offices, to do so had been a custom long established.[1321]
For this acquiescence of the Governor in the recommendation of the County Courts, there was a very human reason of even weightier influence than that of immemorial practice. The Legislature chose the Governor; and the justices of the peace selected, in most cases, the candidates for the Legislature--seldom was any man elected by the people to the State Senate or House of Delegates who was not approved by the County Courts. Moreover, the other county offices, such as county clerks and sheriffs, were appointed by the Governor only on the suggestion of the justices of the peace; and these officials worked in absolute agreement with the local judicial oligarchy. In this wise members of Congress were, in effect, named by the County Courts, and the Legislature dared not and did not elect United States Senators of whom the justices of the peace disapproved.
The members of the Court of Appeals, appointed by the Governor, were never offensive to these minor county magistrates, although the judges of this highest tribunal in Virginia, always able and learned men holding their places for life, had great influence over the County Courts, and, therefore, over the Governor and General a.s.sembly also. Nor was this the limit of the powers of the County Courts. They fixed the county rate of taxation and exercised all local legislative and executive as well as judicial power.[1322]
In theory, a more oligarchic system never was devised for the government of a free state; but in practice, it responded to the variations of public opinion with almost the precision of a thermometer. For example, nearly all the justices of the peace were Federalists during the first two years of Washington"s Administration; yet the State supported Henry against a.s.sumption, and, later, went over to Jefferson as against Washington and Henry combined.[1323]
Rigid and self-perpetuating as was the official aristocracy which the Virginia judicial system had created, its members generally attended to their duties and did well their public work.[1324] They lived among the people, looked after the common good, composed disputes between individuals; soothed local animosities, prevented litigation; and administered justice satisfactorily when, despite their preventive efforts, men would bring suits. But the whole scheme was the very negation of democracy.[1325]
While, therefore, this judicial-social-political plan worked well for the most part, the idea of it was offensive to liberal-minded men who believed in democracy as a principle. Moreover, the official oligarchy was more powerful in the heavy slaveholding, than in the comparatively "free labor," sections; it had been longer established, and it better fitted conditions, east of the mountains.
So it came about that there was, at last, a demand for judicial reform.
Seemingly this demand was not radical--it was only that the self-perpetuating County Court system should be changed to appointments by the Governor without regard to recommendations of the local justices; but, in reality, this change would have destroyed the traditional aristocratic organization of the political, social, and to a great extent the economic, life of Virginia.
On every issue over which the factions of this convention fought, Marshall was reactionary and employed all his skill to defeat, whenever possible, the plans and purposes of the radicals. In pursuing this course he brought to bear the power of his now immense reputation for wisdom and justice. Perhaps no other phase of his life displays more strikingly his intense conservatism.
The conclusion of his early manhood--reluctantly avowed after Washington, following the Revolution, had bitterly expressed the same opinion,[1326] that the people, left to themselves, are not capable of self-government--had now become a profound moral belief. It should again be stated that most of Marshall"s views, formed as a young lawyer during the riotous years between the achievement of Independence and the adoption of the Const.i.tution, had hardened, as life advanced, into something like religious convictions. It is noteworthy, too, that, in general, Madison, Giles, and even Monroe, now stood with Marshall.
The most conspicuous feature of those fourteen weeks of tumultuous contest, as far as it reveals Marshall"s personal standing in Virginia, was the trust, reverence, and affection in which he was held by all members, young and old, radical and conservative, from every part of the State. Speaker after speaker, even in the fiercest debates, went out of his way to pay tribute to Marshall"s uprightness and wisdom.[1327]
Marshall spoke frequently on the Judiciary; and, at one point in a debate on the removal of judges, disclosed opinions of historical importance. Although twenty-seven years had pa.s.sed since the repeal of the Federalist Judiciary Act of 1801,[1328] Marshall would not, even now, admit that repeal to be Const.i.tutional. Littleton W. Tazewell, also a member of the Judiciary Committee, a.s.serted that, under the proposed new State Const.i.tution, the Legislature could remove judges from office by abolishing the courts. John Scott of Fauquier County asked Marshall what he thought of the ousting of Federalist judges by the Republicans in 1802.
The Chief Justice answered, "with great, very great repugnance," that throughout the debate he had "most carefully avoided" expressing any opinion on that subject. He would say, however, that "he did not conceive the Const.i.tution to have been at all definitely expounded by a single act of Congress." Especially when "there was no union of Departments, but the Legislative Department alone had acted, and acted but once," ignoring the Judicial Department, such an act, "even admitting that act not to have pa.s.sed in times of high political and party excitement, could never be admitted as final and conclusive."[1329]
Tazewell was of "an exactly opposite opinion"--the Repeal Act of 1802 "was perfectly const.i.tutional and proper." Giles also disagreed with Marshall. Should "a public officer ... receive the public money any longer than he renders service to the public"?[1330] Marshall replied with spirit. No serious question can be settled, he declared, by mere "confidence of conviction, but on the reason of the case." All that he asked was that the Judiciary Article of the proposed State Const.i.tution should go forth, "uninfluenced by the opinion of any individual: let those, whose duty it was to settle the interpretation of the Const.i.tution, decide on the Const.i.tution itself."[1331] After extended debate[1332] and some wrangling, Marshall"s idea on this particular phase of the subject prevailed.[1333]
The debate over the preservation of the County Court system, for which Marshall"s report provided, was long and acrimonious, and a resume of it is impossible here. Marshall stoutly supported these local tribunals; their "abolition will affect our whole internal police.... No State in the Union, has. .h.i.therto enjoyed more complete internal quiet than Virginia. There is no part of America, where ... less of ill-feeling between man and man is to be found than in this Commonwealth, and I believe most firmly that this state of things is mainly to be ascribed to the practical operation of our County Courts." The county judges "consist in general of the best men in their respective counties. They act in the spirit of peace-makers, and allay, rather than excite the small disputes ... which will sometimes arise among neighbours."[1334]
Giles now aligned himself with Marshall as a champion of the County Court system. In an earnest defense of it he went so far as to reflect on the good sense of Jefferson. Everybody, said Giles, knew that that "highly respectable man ... dealt very much in theories."[1335]
During the remainder of the discussion on this subject, Marshall rose frequently, chiefly, however, to guide the debate.[1336] He insisted that the custom of appointing justices of the peace only on nomination of the County Courts should be written into the const.i.tution. The Executive ought to appoint _all_ persons recommended by "a County Court, taken as a whole." Marshall then moved an amendment to that effect.[1337]
This was a far more conservative idea than was contained in the old const.i.tution itself. "Let the County Court who now recommended, have power also to appoint: for there it ended at last," said William Campbell of Bedford County. Giles was for Marshall"s plan: "The existing County Court system" threw "power into the hands of the middle cla.s.s of the community," he said; and it ought to be fortified rather than weakened.
Marshall then withdrew his astonishing amendment and proposed, instead, that the advice and "consent of the Senate" should not be required for appointments of county justices, thus utterly eliminating all legislative control over these important appointments; and this extreme conservative proposition was actually adopted without dissent.[1338]
Thus the very foundation of Virginia"s aristocratic political organization was greatly strengthened.
Concerning the retention of his office by a judge after the court had been abolished, Marshall made an earnest and impressive speech. What were the duties of a judge? "He has to pa.s.s between the Government and the man whom that Government is prosecuting: between the most powerful individual in the community, and the poorest and most unpopular. It is of the last importance, that in the exercise of these duties, he should observe the utmost fairness. Need I press the necessity of this? Does not every man feel that his own personal security and the security of his property depends on that fairness?
"The Judicial Department comes home in its effects to every man"s fireside: it pa.s.ses on his property, his reputation, his life, his all.
Is it not, to the last degree important, that he should be rendered perfectly and completely independent, with nothing to influence or control him but G.o.d and his conscience?
"You do not allow a man to perform the duties of a juryman or a Judge, if he has one dollar of interest in the matter to be decided: and will you allow a Judge to give a decision when his office may depend upon it?
when his decision may offend a powerful and influential man?
"Your salaries do not allow any of your Judges to lay up for his old age: the longer he remains in office, the more dependant he becomes upon his office. He wishes to retain it; if he did not wish to retain it, he would not have accepted it. And will you make me believe that if the manner of his decision may affect the tenure of that office, the man himself will not be affected by that consideration?... The whole good which may grow out of this Convention, be it what it may, will never compensate for the evil of changing the tenure of the Judicial office."
Barbour had said that to presume that the Legislature would oust judges because of unpopular decisions, was to make an unthinkable imputation.
But "for what do you make a Const.i.tution?" countered Marshall. Why provide that "no bill of attainder, or an _ex post facto_ law, shall be pa.s.sed? What a calumny is here upon the Legislature," he sarcastically exclaimed. "Do you believe, that the Legislature will pa.s.s a bill of attainder, or an _ex post facto_ law? Do you believe, that they will pa.s.s a law impairing the obligation of contracts? If not, why provide against it?...
"You declare, that the Legislature shall not take private property for the public use, without just compensation. Do you believe, that the Legislature will put forth their grasp upon private property, without compensation? Certainly I do not. There is as little reason to believe they will do such an act as this, as there is to believe, that a Legislature will offend against a Judge who has given a decision against some favourite opinion and favourite measure of theirs, or against a popular individual who has almost led the Legislature by his talents and influence.
"I am persuaded, there is at least as much danger that they will lay hold on such an individual, as that they will condemn a man to death for doing that which, when he committed it, was no crime. The gentleman says, it is impossible the Legislature should ever think of doing such a thing. Why then expunge the prohibition?... This Convention can do nothing that would entail a more serious evil upon Virginia, than to destroy the tenure by which her Judges hold their offices."[1339]
An hour later, the Chief Justice again addressed the convention on the independence of the Judiciary. Tazewell had spoken much in the vein of the Republicans of 1802.[1340] "The independence of all those who try causes between man and man, and between a man and his Government,"
answered Marshall, "can be maintained only by the tenure of their office. Is not their independence preserved under the present system?
None can doubt it. Such an idea was never heard of in Virginia, as to remove a Judge from office." Suppose the courts at the mercy of the Legislature? "What would then be the condition of the court, should the Legislature prosecute a man, with an earnest wish to convict him?... If they may be removed at pleasure, will any lawyer of distinction come upon your bench?
"No, Sir. I have always thought, from my earliest youth till now, that the greatest scourge an angry Heaven ever inflicted upon an ungrateful and a sinning people, was an ignorant, a corrupt, or a dependent Judiciary. Will you draw down this curse upon Virginia? Our ancestors thought so: we thought so till very lately; and I trust the vote of this day will shew that we think so still."[1341]
Seldom in any parliamentary body has an appeal been so fruitful of votes. Marshall"s idea of the inviolability of judicial tenure was sustained by a vote of 56 to 29, Madison voting with him.[1342]
Lucas P. Thompson of Amherst County moved to strike out the provision in Marshall"s Judiciary Article that the abolition of a court should not "deprive any Judge thereof of his office."[1343] Thus the direct question, so fiercely debated in Congress twenty-seven years earlier,[1344] was brought before the convention. It was promptly decided, and against the views and action of Jefferson and the Republicans of 1802. By a majority of 8 out of a total of 96,[1345] the convention sustained the old Federalist idea that judges should continue to hold their positions and receive their salaries, even though their offices were abolished.
Before the vote was taken, however, a sharp debate occurred between Marshall and Giles. To keep judges in office, although that office be destroyed, "was nothing less than to establish a privileged corps in a free community," said Giles. Marshall had said "that a Judge ought to be responsible only to G.o.d and to his own conscience." Although "one of the first objects in view, in calling this Convention, was to make the Judges responsible--not nominally, but really responsible," Marshall actually proposed to establish "a _privileged order_ of men." Another part of Marshall"s plan, said Giles, required the concurrent vote of both Houses of the Legislature to remove a judge from the bench. "This was inserted, for what?" To prevent the Legislature from removing a judge "whenever his conduct had been such, that he became unpopular and odious to the people"--the very power the Legislature ought to have.[1346]
In reply, Marshall said that he would not, at that time, discuss the removal of judges by the Legislature, but would confine himself "directly to the object before him," as to whether the abolition of a court should not deprive the judge of his office. Giles had fallen into a strange confusion--he had treated "the office of a Judge, and the Court in which he sat, as being ... indissolubly united." But, asked Marshall, were the words "office and Court synonymes"? By no means. The proposed Judiciary Article makes the distinction when it declares that though the _court_ be abolished, the judge still holds his _office_. "In what does the office of a Judge consist? ... in his const.i.tutional capacity to receive Judicial power, and to perform Judicial Duties....
"If the Const.i.tution shall declare that when the court is abolished, he shall still hold" his office, "there is no inconsistency in the declaration.... What creates the office?" An election to it by the Legislature and a commission by the Governor. "When these acts have been performed, the Judges are in office. Now, if the Const.i.tution shall say that his office shall continue, and he shall perform Judicial duties, though his court may be abolished, does he, because of any modification that may be made in that court, cease to be a Judge?...
"The question constantly recurs--do you mean that the Judges shall be removable at the will of the Legislature? The gentleman talks of responsibility. Responsibility to what? to the will of the Legislature?
can there be no responsibility, unless your Judges shall be removable at pleasure? will nothing short of this satisfy gentlemen? Then, indeed, there is an end to independence. The tenure during good behaviour, is a mere imposition on the public belief--a sound that is kept to the ear--and nothing else. The consequences must present themselves to every mind. There can be no member of this body who does not feel them.
"If your Judges are to be removable at the will of the Legislature, all that you look for from fidelity, from knowledge, from capacity, is gone and gone forever." Seldom did Marshall show more feeling than when pressing this point; he could not "sit down," he said, without "noticing the morality" of giving the Legislature power to remove judges from office. "Gentlemen talk of sinecures, and privileged orders--with a view, as it would seem, to cast odium on those who are in office.
"You seduce a lawyer from his practice, by which he is earning a comfortable independence, by promising him a certain support for life, unless he shall be guilty of misconduct in his office. And after thus seducing him, when his independence is gone, and the means of supporting his family relinquished, you will suffer him to be displaced and turned loose on the world with the odious brand of sinecure-pensioner--privileged order--put upon him, as a lazy drone who seeks to live upon the labour of others. This is the course you are asked to pursue."
The provisions of the Judiciary Article before the convention secure ample responsibility. "If not, they can be made [to do] so. But is it not new doctrine to declare, that the Legislature by merely changing the name of a court or the place of its meeting, may remove any Judge from his office? The question to be decided is, and it is one to which we must come, whether the Judges shall be permanent in their office, or shall be dependent altogether upon the breath of the Legislature."[1347]
Giles answered on the instant. In doing so, he began by a tribute to Marshall"s "standing and personal excellence" which were so great "that he was willing to throw himself into the background, as to any weight to be attached to his [Giles"s] own opinion." Therefore, he would "rely exclusively on the merits" of the controversy. Marshall had not shown "that it was not an anomaly to have the court out of being, and an office pertain[ing] to the court in being.... It was an anomaly in terms."