Peugh v. Porter, 112 U.S. 737 (1885)

Knowledge of the existence of these claims had been first [p. 739] communicated to Musser by Richard H. Porter, and the agreement between them was, that each should have an equal interest in the prosecution and proceeds of the claims in case of recovery.

Their services in that behalf were well known to Porter and to Musser, as well as the particular arrangements under which they were rendered. Indeed, the latter, by a letter to [p. 741] Bittenhouse, dated February 18, 1871, expressly ratified the contract made by Porter with Peugh and Rittenhouse. Mr. Winder, the record abundantly shows, under his employment by Peugh, and a distinct agreement directly with Porter, made afterwards, rendered constant and evidently very valuable and efficient services in the prosecution of the claims until the awards were finally made. And, in respect to the services rendered by Peugh, which were also continuous during the entire proceeding, Mr. Winder, whose statements seem to be entitled to full credit, testifies as follows:

Apart from the merits, objection is made to a decree in favor [p. 742] of Peugh, on the ground that he has no equitable lien on the fund in controversy, within the decisions in Wright v. Ellison, 1 Wall. 16, and Trist v. Child, 21 Wall. 441, 447. The rule, as declared in the first of these cases, is, that “ it is indispensable to a lien thus created that there should be a distinct appropriation of the fund by the debtor, and an agreement that the creditor should be paid out of it.” 1 Wall. 22.

After this came, in quick succession, all the various questions of constitutional, international, and general law, which would naturally present themselves for judicial determination in a new and rapidly developing country. Phe complications growing out of the wars in Europe, and of our own war with Great Britain, brought up their disputes for settlement, and the boundary line between the powers of the States and of the United States had more [p. 748] than once to be run and marked. The authority of the United States was extended by treaty over territory not originally within its jurisdiction. All these involved the consideration of subjects comparatively new in the domain of the law, and rights were to be settled, not on authorities alone, but by the application of the principles of right reason. Here the Chief Justice was at home, and, when at the end of his long and eminent career he laid down his life, he, and those who had so ably assisted him in his great work, had the right to say that the judicial power of the United States had been carefully preserved and wisely administered. The nation can never honor him, or them, too much^or the work they accomplished.

The first note of war that rang through the land called him to arms, and from 1775, when was his first battle on the soil of his own State, until the end of 1779, he was in the army. Through the battles of Iron Hill, of Brandywine, of Germantown, and of Monmouth, he bore himself bravely, and through the dreary privations, the hunger, and the nakedness of that ghastly winter at Valley k orge, his patient endurance and his cheeriness bespoke the very sweetest temper that ever man was blessed with. So long as any lived to speak, men would tell how he was loved by the soldiers and by his brother officers ; how he was the arbiter of their differences and the composer of their disputes, and when called to act, as he often was, as judge advocate, he exercised that peculiar and delicate judgment required of him who is not only the, prosecutor but the protector of the accused. It was in the duties of this office that he first met and came to know well the two men whom of all others on earth he [p. 750] most admired and loved and whose impress he bore through his life, Washington and Hamilton.

In the spring of 1782, he was elected to the State legislature, and in the autumn chosen to the executive council. In the next year took place his happy marriage, his removal to Richmond, thenceforth his home, and soon after, his retirement, as he supposed, from public life. But this was not to be, for his election again and again to the legislature called on him for service which he was too patriotic to withhold, even had he felt less keenly how full of trouble were the times. Marshall threw himself, heart and soul, into the great questions which bid fair to destroy by dissension what had been won by arms, and opposed to the best talent of his own State, he ranged himself with an unpopular minority. In measured words, years later, when he wrote the Life of Washington, he defined the issue which then threatened to tear the country asunder. It was. he said, “divided into two great political parties, the one of which contemplated America as a nation, and labored incessantly to invest the Federal head with powers‘competent to the preservation of the Union. The other attached itself to the State government, viewed all the powers of Congress with jealousy, and assented reluctantly to measures whic would enable the head to act in any respect independently of the members. Though the proposed Constitution might form, as its preamble declares, a [p. 751] more perfect union ” than had the Articles of Confederation, though it might prevent anarchy and save the States from becoming secret or open enemies of each other, though it might replace “a Government depending upon thirteen distinct sovereignties for the preservation of the public faith ” by one whose power might regulate and control them all—the more numerous and powerful, and certainly the more clamorous party, insisted that such evils, and evils worse than these, were as nothing compared to the surrender of State independence to Federal sovereignty. In public and private, in popular meetings, in legislatures and in conventions, on both sides passion was mingled With argument. Notably in Marshall’s own State did many of her ablest sons, then and afterwards most dear to her, throw all that they had of courage, of high character and of patriotism, into the attempt to save the young country from its threatened yoke of despotism. Equally brave and able were those few who led the other party, and chief among them were Washington, Madison. Randolph and, later, Marshall. Young as he was, it was felt that such a man could not be left out Of the State convention to which the Constitution was to be submitted, but he was warned by his best friends that unless he should pledge himself to oppose it his defeat was certain. He said plainly that, if elected, he should bo “ a determined advocate for its adoption,” and his integrity and fearlessness overcame even the prejudices of his* constituents. And in that memorable debate, which lasted five-and-twenty days, though, with his usual modesty, he contented himself with supporting the lead of Madison, three times he came to the front, and to the questions of the power of taxation, the power over the militia, and the power of the judiciary, he brought the full force of his fast developing strength. The contest was severe and the vote close. The Constitution was ratified by a majority of only ten. But as to Marshall, it has been truly said that “in sustaining the Constitution, he unconsciously prepared for his own glory the imperishable connection which his name now has with its principles.” And again his modesty would have it that he builded better than he knew, for in later times he would ascribe the course which he took to casual circumstances as much as to judgment; he had early, he said, caught up the words, “united we stand, divided we fallthe feelings they inspired became a part of his being; he carried them into the army, where, associating with brave men from different States who were risking life and all else in a common cause, he was confirmed in the habit of considering America as his country, and Congress as his Government.

vo l . cxn—18 [p. 754] flung to our people turgid words of bitterness as he left ; the minister whom we had sent to France when Marshall had declined to go, was not only not received, but was ordered out of the country and threatened with the police. The crisis required the greatest wisdom and firmness which the country could command. Mr. Adams was then President ; he never lacked firmness, and his words to Congress at its special session were full of fearless dignity. “Three envoys,” said he, “persons of talents and integrity, long known and intrusted in the three great divisions of the Union,” were to be sent to France, and Marshall was to be one of them. It went hard with him, but the struggle was short, and as he left his home at Richmond crowds of citizens attended him for miles, and all party feeling was merged in respect and affection. The issue of his errand belongs to history. He has himself told us, in his Life of Washington, how the envoys—his own name being characteristically withheld—were met by contumely and insult ; how the wiliest minister of the age suggested that a large sum of money must be paid to the Directory as a mere preliminary to negotiation ; how, if they refused, it would be known at home that they were corrupted by British influence, and how insults and menaces were borne with equal dignity. But he has not told us that his were the two letters to Talleyrand which have justly been regarded as among the ablest State papers in diplomacy. They were unanswerable, and nothing remained but to get Marshall and one of his colleagues out of the country with as little delay as was consistent with additional marks of contempt. His return showed that republics are not always ungrateful, for there came out to him on his arrival a crowd even greater than that which had witnessed his departure, the Secretary of State and other officials among them, and at a celebration in his honor the phrase was coined which afterwards became national, “ Millions for defence, but not one cent for tribute.”

The exposition thus begun was continued for more than thirty years and in a series of judgments, contained in many volumes, is to be found the basis of what is to-day the constitutional law of this country. Were it possible, it would be inappropriate to follow here, with whatever profit, the processes by which this great work was done. The least approach to technical analysis would demand a statement of the successive questions as they arose, each fraught with the history of the time and each suggesting illustrations and analogies which subsequent time has developed. It may have been that could [p. 758] Marshall have foreseen the extent to which, in some instances, his conclusions could be carried, in the uncertain future and under such wholly changed circumstances as no man could then conjecture, he would possibly have qualified or limited their application ; but the marvel is, that of all he wrought in the field of constitutional labor there is so little thafr admits of even question.

One instance only can be noticed here. The story of Aaron Burr, with all its reality and all its romance, must always, spite of much that is repugnant, fascinate both young and old. When in a phase of his varied life, he who had been noted, if not famous, as a soldier, as a lawyer, as an orator, who had won the reason of men and charmed the hearts of women, who had held the high office of Vice-President of the United States, and whose hands were red with the blood of Hamilton—when he found himself on trial for his life upon the charge of high treason, before a judge who was Hamilton’s, dear friend, and a jury chosen with difficulty from an excited people, what wonder that, like Cam, he felt himself singled out from his fellows, and coming between his counsel and the court, exclaimed : “ Would to God that I did stand on the same ground with any other man ! ” And yet the impartiality which marked the conduct of those trials was never excelled in history. By the law of our mother country to have only compassed and imagined the Government’s subversion was treason ; but, according to our Constitution, “treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort,” and can it be, said Marshall, that the landing of a few men, however desperate and however intent to [p. 759] overthrow the government of a State, was a levying or war ? It might be a conspiracy, but it was not treason within the Constitution—and Burr’s accomplices were discharged of their high crime. And upon his own memorable trial—that strange scene in which these men, the prisoner and the judge, each so striking in appearance, were confronted, and as people said, “two such pairs of eyes had never looked into one another before ”—upon that trial the scales of justice were held with absolutely even hand. No greater display of judicial skill and judicial rectitude was ever witnessed. No more effective dignity ever added weight to judicial language. Outside the court and through the country it was cried that “the people of America demanded a conviction,” and within it all the pressure which counsel dared to borrow was exerted to this end. It could hardly be passed by. “That this court dares not usurp power, is most true,” began the last lines of Marshall’s charge to the jury. “That this court dares not shrink from its duty, is not less true. No man is desirous of becoming the peculiar subject of calumny. No man, might he let the bitter cup pass from him without self-reproach, would drain it to the bottom. But if he have no choice in the case, if there be no alternative presented to him but a dereliction of duty or the opprobrium of those who are denominated the world, he merits the contempt as well as the indignation of his country, who can hesitate which to embrace.” That counsel should, he said, be impatient at any deliberation of the court, and suspect or fear the operation of motives to which alone they could ascribe that deliberation, was perhaps a frailty incident to human nature, “ but if any conduct could warrant a sentiment that it would deviate to the one side or the other from the line prescribed by duty and by law. that conduct would be viewed by the judges themselves with an eye of extreme severity, and would long be recollected with deep and serious regrets.”

Once only did Marshall enter the field of authorship. Washington had bequeathed all his papers, public and private, to his favorite nephew, who was one of Marshall’s associates on the bench. It was agreed between them that Judge Washington should contribute the material and that Marshall should prepare the biography. The bulk of papers was enormous, and Marshall had just taken his seat on the bench and was deep in judicial work. The task was done under severe pressure, and ill health more than once interrupted it; but it was a labor of love, and his whole heart went out toward the subject. His political opponents feared that his strong convictions, which he never concealed, would now be turned to the account of his party, but the writer was as impartial as the judge. He recalled and perpetuated the intrigues and cabals, the disappointments and the griefs which, equally with the successes, were [p. 760] part of Washington’s life ; but full justice was done to those men whom both Washington and his biographer distrusted and opposed. It is agreed that for minuteness, impartiality and accuracy, the history is exceeded by none. There were those who said the work was colorless, and others were severe by reason of the absolute truth which became their most absolute punishment, but no one’s judgment was as severe as Marshall’s own, save only as to its accuracy. Once only was this seriously questioned, and by one of the most distinguished of his opponents, and the result was complete vindication.

Something has here been said of Marshall’s inner life in its earlier years, an no man’s life was ever more dear to those around him than was his from its e- [p. 761] ginning to its close. His singleness and simplicity of character, his simplicity of living, his love for the young and respect for the old, his deference to women, his courteous bearing, his tender charity, his reluctance to conceive offence and his readiness to forgive it, have become traditions from which in our memories of him we interweave all that we most look up to with all that we take most nearly to our hearts.