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Marshall and Taney

Marshall and Taney: Statesmen of the Law

Ben W. Palmer
Copyright Date: 1939
Edition: NED - New edition
Pages: 296
https://www.jstor.org/stable/10.5749/j.cttttnbn
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  • Book Info
    Marshall and Taney
    Book Description:

    The tides of social, political, and economic conflict will surge more violently about the Supreme Court in the future than they have in the past. Constantly larger numbers of the people are becoming aware of the tremendous power of the court as final interpreter of the constitution as a check upon Congress and the executive, and as guardian of individuals and minorities against governmental power. As a president of the American Bar Association has said, “Producers of potatoes in Maine, peanuts in Virginia, cotton in South Carolina, cane sugar in Louisiana, wheat in Kansas, corn in Iowa, peaches in Georgia, oranges in California, and thousands of small local enterprises everywhere are coming more and more to realize that their own bread and butter is seriously affected by the personnel of the Supreme Court. Since public opinion rules in America, the place that the court will occupy in teh scheme of things will be determined by the thought and emotions of the people. Thought and emotion alike will, in turn, depend largely upon popular conceptions of the part played by the court. Those conceptions cannot be accurate without a knowledge of the functioning of the individual judge. We can better comprehend present and future judges if we understand why past ones acted officially as they did. This study contributes materially to that understanding. In the light of history and the law, Ben W. Palmer has made a clear and thought-provoking analysis of the judicial function, indicated revolutionary changes in the law. In the sharply etched portraits of the two chief justices who molded American constitutional law in its formative stages, he has shown how and why these two men affect lawyer and laymen today. “Law,” says historian-lawyer Palmer, “like religion, government, art, science, receives its meaning and value, not because of what it has been or is, but because of what it accomplishes as an instrument for the benefit of humanity.” “The judge’s most essential and unavoidable function,” thinks Dr. Palmer, “is the attempt to reconcile the contending principles of liberty and order. He stands between rule and discretion, the strict law and one tempered by time, circumstance, abstract justice, popular feeling -- all crying out for relaxation of the rule. He must stand between Shylock, with his shining knife of legal right, and the victim who calls to his compassion.”

    eISBN: 978-1-4529-3628-4
    Subjects: Political Science

Table of Contents

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  1. Front Matter
    (pp. i-viii)
  2. Table of Contents
    (pp. ix-2)
  3. ARE JUDGES HUMAN BEINGS?
    (pp. 3-40)

    In 1612 the wisest fool in Christendom confronted Coke, the Oracle of the Common Law. James I stood for the divine right of kings. He claimed to be above the law, in last analysis unchecked by either Parliament or the royal courts. Indeed, as ultimately the very source of law, he said, “This is a thing regal and proper to a king, to keep every court within its true bounds.” And “as for the absolute prerogative of the Crown that is no subject for the tongue of a lawyer, nor is it lawful to be disputed. It is atheism and...

  4. CANONIZED:: JOHN MARSHALL

    • THE PROBLEM OF PRESTIGE
      (pp. 43-56)

      Forty thousand people thronged the largest church in the world to witness one of the most impressive of all religious ceremonies. They stood in the flooding light of Michelangelo’s dome, where in the golden age of the Renaissance he and Bramante and Raphael wrought so nobly in the reconstruction of a basilica erected by Constantine twelve hundred years before. That basilica had replaced a simple chapel which stood over the spot where, outside the wall of Nero’s circus, the crucified Saint Peter was buried in the secrecy of the night. His ashes remained unremoved, undesecrated amidst the rise and fall...

    • EQUIPMENT FOR THE TASK
      (pp. 57-71)

      What equipment did Marshall bring to the task which he faced?

      He came to his position of power and responsibility at the age of forty-five after an experience conducive to wisdom rather than learning.

      Marshall was born on September 24, 1755. This was eleven weeks after Braddock’s defeat and within the same thirty years as the births of Washington, Jefferson, Madison, Patrick Henry, and George Mason. His birthplace was the frontier of Virginia, within a radius of a hundred miles of the places where these other famous men were born. Until he marched away to battle in the Revolutionary War...

    • KEYSTONE OF THE ARCH
      (pp. 72-83)

      In this difficult environment, initially hostile, what was the accomplished by Marshall?

      In the first place, he established the constitution as the supreme law of the land according as it is interpreted by the Supreme Court of the United States.

      The essential problem of all government, as we have said, is the reconciliation of principles of individual liberty and local self-government with those of order and authority. The American constitution attempted to solve this problem by establishing through a single written instrument a nice equipoise of powers. Authority over subjects of common concern to all the states, such as interstate...

    • DRAMATIC INTERLUDE
      (pp. 84-103)

      Handbills such as these were scattered over Baltimore in November, 1807. The chief justice referred to in the handbills was John Marshall; “His Quid Majesty” was Aaron Burr, who had just been acquitted of a charge of treason; “Lawyer Brandy Bottle” was Luther Martin, the distinguished leader of the Maryland bar who had defended Burr. Pursuant to the handbills, on the day appointed, two carts were drawn through the streets of the city, containing effigies of the chief justice and of the other men referred to, “habited for execution.” They were accompanied by a shouting crowd of men headed by...

    • NATIONAL SUPREMACY
      (pp. 104-142)

      Lottery tickets and a quarrel now enter the picture. The tickets we shall consider later. The quarrel, personal at first, comparatively trivial, was one of those incidents of great consequence which lead to speculation as to how otherwise the stream of history might have flowed but for this deflecting incident. Of course, the wind-blown seed of chance must be watered by other causes. But what if Lincoln had become governor of Oregon, or youthful Napoleon had gone to teach the Turks, if Keats had not run across a copy of theFaerie Queene,or the idle eye of Rousseau had...

  5. CURSED:: ROGER BROOKE TANEY

    • CONDEMNED IN ADVANCE
      (pp. 145-190)

      Who is the most hated English judge? The name of Jeffreys leaps at once to the lips of every lawyer, indeed of every person familiar with the history of England.

      Justly named “Bloody Jeffreys, ”this man rose to the highest judicial position in the realm by the most unscrupulous methods, trafficked in pardons, sold the criminal law. Upon the bench, even when sober, and he was often drunk, his angry passions knew no restraint. His voice was loud, his aspect ferocious, his power of invective extraordinary. He struck terror into the hearts of prisoner, witness, and counsel. He took a...

    • DAMNED IN RETROSPECT
      (pp. 191-224)

      In the drama or novel of redemption all the sins of an evil past may be forgiven because of a final act of sacrifice, and so the hero’s life may be read in the light of his ultimate heroism. The reverse was Taney’s fate. He was doomed to have his life read ever in the damning shadow of his final decisions, particularly the Dred Scott case.

      It may be considered temerarious to say what the Dred case decided in view of the comment of Mr. Justice Curtis. He wrote the famous dissenting opinion, but is reported afterward to have said,...

    • REAPPRAISED
      (pp. 225-255)

      Dartmouth College, as we have seen, had given Marshall the occasion for a decision of great consequence in the commercial development of the country. Another college, Harvard, was now to play a part in another important lawsuit; this case led to a decision by Taney of the greatest importance in limiting the doctrine, or the misinterpretation of the doctrine, of the Dartmouth College case.

      In 1650 the legislature of Massachusetts, in order to aid the new institution for higher education established at Cambridge, had granted to the president of Harvard College the power to dispose of the ferry which crossed...

    • THE DURABLE RESULT
      (pp. 256-276)

      What differences, if any, were there in the attitudes of these two men of authority toward the greatest and most enduring questions of constitutional law? What determined these differences, so far as we can ascertain? To what extent and how or why was each of them able to impress his attitude upon the corpus of constitutional law, and how long did the impression last? Or, in other words, what was the durable contribution of each to the fundamental law and therefore to the national life? How important were those men to you and to me? Which was the greater judge,...

  6. INDEX
    (pp. 277-281)