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Title: The Life of John Marshall Volume 4 of 4
Author: Beveridge, Albert J.
Language: English
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THE LIFE OF JOHN MARSHALL
Standard Library Edition
IN FOUR VOLUMES
VOLUME IV
[Illustration: JOHN MARSHALL
From the portrait by Henry Inman]
THE LIFE
OF
JOHN MARSHALL
BY
ALBERT J. BEVERIDGE
VOLUME IV
THE BUILDING OF THE NATION
1815-1835
[Illustration]
BOSTON AND NEW YORK
HOUGHTON MIFFLIN COMPANY
The Riverside Press Cambridge
COPYRIGHT, 1919, BY ALBERT J. BEVERIDGE
ALL RIGHTS RESERVED
CONTENTS
I. THE PERIOD OF AMERICANIZATION 1
War and Marshall's career--Federalists become British
partisans--Their hatred of France--Republicans are exactly
the reverse--The deep and opposite prejudices of Marshall
and Jefferson--Cause of their conflicting views--The
people become Europeanized--They lose sight of American
considerations--Critical need of a National American
sentiment--Origin of the War of 1812--America suffers from
both European belligerents--British depredations--Jefferson
retaliates by ineffective peaceful methods--The Embargo laws
passed--The Federalists enraged--Pickering makes sensational
speech in the Senate--Marshall endorses it--Congress passes the
"Force Act"--Jefferson practices an autocratic Nationalism--
New England Federalists propose armed resistance and openly
advocate secession--Marshall rebukes those who resist National
authority--The case of Gideon Olmstead--Pennsylvania forcibly
resists order of the United States Court--Marshall's opinion
in U.S. _vs._ Judge Peters--Its historical significance--The
British Minister repeats the tactics of Genêt--Federalists
uphold him--Republicans make great gains in New England--
Marshall's despondent letter--Henry Clay's heroic speeches--
War is declared--Federalists violently oppose it: "The child
of Prostitution"--Joseph Story indignant and alarmed--
Marshall proposed as Presidential candidate of the peace
party--Writes long letter advocating coalition of "all who
wish peace"--Denounces Napoleon and the Decree of St. Cloud--
He heads Virginia Commission to select trade route to the
West--Makes extended and difficult journey through the
mountains--Writes statesmanlike report--Peace party nominates
Clinton--Marshall criticizes report of Secretary of State on
the causes of the war--New England Federalists determine upon
secession--The Administration pamphlet on expatriation--John
Lowell brilliantly attacks it--Marshall warmly approves
Lowell's essay--His judicial opinions on expatriation--The
coming of peace--Results of the war--The new America is born.
II. MARSHALL AND STORY 59
Marshall's greatest Constitutional decisions given during the
decade after peace is declared--Majority of Supreme Court
becomes Republican--Marshall's influence over the Associate
Justices--His life in Richmond--His negligent attire--Personal
anecdotes--Interest in farming--Simplicity of habits--Holds
Circuit Court at Raleigh--Marshall's devotion to his wife--His
religious belief--His children--Life at Oak Hill--Generosity--
Member of Quoit Club--His "lawyer dinners"--Delights in the
reading of poetry and fiction--Familiarity and friendliness--
Joseph Story first meets the Chief Justice--Is captivated by
his personality--Marshall's dignity in presiding over Supreme
Court--Quickness at repartee--Life in Washington--Marshall and
Associate Justices live together in same boarding-house--His
dislike of publicity--Honorary degrees conferred--Esteem of his
contemporaries--His personality--Calmness of manner--Strength
of intellect--His irresistible charm--Likeness to Abraham
Lincoln--The strong and brilliant bar practicing before
the Supreme Court--Legal oratory of the period--Length of
arguments--Joseph Story--His character and attainments--
Birth and family--A Republican--Devotion to Marshall--Their
friendship mutually helpful--Jefferson fears Marshall's
influence on Story--Edward Livingston sues Jefferson for one
hundred thousand dollars--Circumstances leading to Batture
litigation--Jefferson's desire to name District Judge in
Virginia--Jefferson in letter attacks Marshall--He dictates
appointment of John Tyler to succeed Cyrus Griffin--Death of
Justice Cushing of the Supreme Court--Jefferson tries to name
Cushing's successor--He objects to Story--Madison wishes to
comply with Jefferson's request--His consequent difficulty in
filling place--Appointment of Story--Jefferson prepares brief
on Batture case--Public interest in case--Case is heard--
Marshall's opinion reflects on Jefferson--Chancellor Kent's
opinion--Jefferson and Livingston publish statements--Marshall
ascribes Jefferson's animosity in subsequent years to the
Batture litigation.
III. INTERNATIONAL LAW 117
Marshall uniformly upholds acts of Congress even when he thinks
them unwise and of doubtful constitutionality--The Embargo,
Non-Importation, and Non-Intercourse laws--Marshall's slight
knowledge of admiralty law--His dependence on Story--Marshall
is supreme only in Constitutional law--High rank of his
opinions on international law--Examples: The Schooner Exchange;
U.S. _vs._ Palmer; The Divina Pastora; The Venus; The Nereid--
Scenes in the court-room--Appearance of the Justices--William
Pinkney the leader of the American bar--His learning and
eloquence--His extravagant dress and arrogant manner--Story's
admiration of him--Marshall's tribute--Character of the bar--
Its members statesmen as well as lawyers--The attendance of
women at arguments--Mrs. Smith's letter--American Insurance Co.
_et al._ _vs._ David Canter--Story delivers the opinion in
Martin _vs._ Hunter's Lessee--Reason for Marshall's declining
to sit in that case--The Virginia Republican organization--
The great political triumvirate, Roane, Ritchie, and Taylor--
The Fairfax litigation--The Marshall purchase of a part of the
Fairfax estate--Separate purchases of James M. Marshall--The
Marshall and Virginia "compromise"--Virginia Court of Appeals
decides in favor of Hunter--National Supreme Court reverses
State court--The latter's bold defiance of the National
tribunal--Marshall refuses to sit in the case of the Granville
heirs--History of the Granville litigation--The second
appeal from the Virginia Court in the Fairfax-Martin-Hunter
case--Story's great opinion in Fairfax's Devisee _vs._ Hunter's
Lessee--His first Constitutional pronouncement--Its resemblance
to Marshall's opinions--The Chief Justice disapproves one
ground of Story's opinion--His letter to his brother--Anger of
the Virginia judges at reversal of their judgment--The Virginia
Republican organization prepares to attack Marshall.
IV. FINANCIAL AND MORAL CHAOS 168
February and March, 1819, mark an epoch in American history--
Marshall, at that time, delivers three of his greatest
opinions--He surveys the state of the country--Beholds terrible
conditions--The moral, economic, and social breakdown--Bad
banking the immediate cause of the catastrophe--Sound and
brilliant career of the first Bank of the United States--
Causes of popular antagonism to it--Jealousy of the State
banks--Jefferson's hostility to a central bank--John Adams's
description of State banking methods--Opposition to
rechartering the National institution--Congress refuses to
recharter it--Abnormal increase of State banks--Their great and
unjustifiable profits--Congress forced to charter second Bank
of the United States--Immoral and uneconomic methods of State
banks--Growth of "private banks"--Few restrictions placed on
State and private banks and none regarded by them--Popular
craze for more "money"--Character and habits of Western
settlers--Local banks prey upon them--Marshall's personal
experience--State banks control local press, bar, and
courts--Ruthless foreclosures of mortgages and incredible
sacrifices of property--Counterfeiting and crime--People
unjustly blame Bank of the United States for their financial
misfortunes--It is, at first, bad, and corruptly managed--Is
subsequently well administered--Popular demand for bankruptcy
laws--State "insolvency" statutes badly drawn and ruinously
executed--Speculators use them to escape the payment of
their liabilities while retaining their assets--Foreclosures
and sheriff's sales increase--Demand for "stay laws" in
Kentucky--Marshall's intimate personal knowledge of conditions
in that State--States begin to tax National Bank out of
existence--Marshall delivers one of his great trilogy of
opinions of 1819 on contract, fraud, and banking--Effect of the
decision of the Supreme Court in Sturges _vs._ Crowninshield.
V. THE DARTMOUTH COLLEGE CASE 220
The Dartmouth College case affected by the state of the
country--Marshall prepares his opinion while on his
vacation--His views well known--His opinion in New Jersey _vs._
Wilson--Eleazar Wheelock's frontier Indian school--The voyage
and mission of Whitaker and Occom--Funds to aid the school
raised in England and Scotland--The Earl of Dartmouth--
Governor Wentworth grants a royal charter--Provisions of this
document--Colonel John Wheelock becomes President of the
College--The beginnings of strife--Obscure and confused origins
of the Dartmouth controversy, including the slander of a
woman's reputation, sectarian warfare, personal animosities,
and partisan conflict--The College Trustees and President
Wheelock become enemies--The hostile factions attack one
another by means of pamphlets--The Trustees remove Wheelock
from the Presidency--The Republican Legislature passes laws
violative of the College Charter and establishing Dartmouth
University--Violent political controversy--The College Trustees
and officers refuse to yield--The famous suit of Trustees of
Dartmouth College _vs._ Woodward is brought--The contract
clause of the Constitution is but lightly considered by
Webster, Mason, and Smith, attorneys for the College--Supreme
Court of New Hampshire upholds the acts of the Legislature--
Chief Justice Richardson delivers able opinion--The case
appealed to the Supreme Court of the United States--Webster
makes his first great argument before that tribunal--He
rests his case largely on "natural right" and "fundamental
principles," and relies but little on the contract clause--He
has small hopes of success--The court cannot agree--Activity
of College Trustees and officers during the summer and autumn
of 1818--Chancellor James Kent advises Justices Johnson and
Livingston of the Supreme Court--William Pinkney is retained by
the opponents of the College--He plans to ask for a reargument
and makes careful preparation--Webster is alarmed--The Supreme
Court opens in February, 1819--Marshall ignores Pinkney and
reads his opinion to which five Associate Justices assent--The
joy of Webster and disgust of Pinkney--Hopkinson's comment--
The effect of Marshall's opinion--The foundations of good
faith--Comments upon Marshall's opinion--The persistent
vitality of his doctrine as announced in the Dartmouth College
case--Departures from it--Recent discussions of Marshall's
theory.
VI. VITALIZING THE CONSTITUTION 282
The third of Marshall's opinions delivered in 1819--The facts
in the case of M'Culloch _vs._ Maryland--Pinkney makes the
last but one of his great arguments--The final effort of Luther
Martin--Marshall delivers his historic opinion--He announces a
radical Nationalism--"The power to tax involves the power to
destroy"--Marshall's opinion is violently attacked--Niles
assails it in his _Register_--Declares it "more dangerous than
_foreign_ invasion"--Marshall's opinion more widely published
than any previous judicial pronouncement--The Virginia
Republican organization perceives its opportunity and
strikes--Marshall tells Story of the coming assault--Roane
attacks in the Richmond _Enquirer_--"The people must rouse
from the lap of Delilah to meet the Philistines"--The letters
of "Amphyction" and "Hampden"--The United States is "as much
a league as was the former confederation"--Marshall is acutely
alarmed by Roane's attacks--He writes a dull and petulant
newspaper defense of his brilliant opinion--Regrets his
controversial effort and refuses to permit its republication--
The Virginia Legislature passes resolutions denouncing his
opinion and proposing a new tribunal to decide controversies
between States and the Nation--The slave power joins the
attack upon Marshall's doctrines--Ohio aligns herself with
Virginia--Ohio's dramatic resistance to the Bank of the
United States--Passes extravagantly drastic laws--Adopts
resolutions denouncing Marshall's opinions and defying the
National Government--Pennsylvania, Tennessee, Indiana, Illinois
also demand a new court--John Taylor "of Caroline" writes his
notable book, _Construction Construed_--Jefferson warmly
approves it--Declares the National Judiciary to be a "subtle
corps of sappers and miners constantly working underground to
undermine the foundations of our confederated fabric."
VII. THREATS OF WAR 340
Relation of slavery and Marshall's opinions--The South
threatens war: "I behold a brother's sword crimsoned with a
brother's blood"--Northern men quail--The source and purpose
of Marshall's opinion in Cohens _vs._ Virginia--The facts
in that case--A trivial police court controversy--The case
probably "arranged"--William Pinkney and David B. Ogden appear
for the Cohens--Senator James Barbour, for Virginia, threatens
secession: "With them [State Governments], it is to determine
how long their [National] government shall endure"--Marshall's
opinion is an address to the American people--The grandeur of
certain passages: "A Constitution is framed for ages to come
and is designed to approach immortality"--The Constitution is
vitalized by a "conservative power" within it--Independence
of the Judiciary necessary to preservation of the Republic--
Marshall directly replies to the assailants of Nationalism:
"The States are members of one great empire"--Marshall
originates the phraseology, "a government of, by, and for
the people"--Publication of the opinion in Cohens _vs._
Virginia arouses intense excitement--Roane savagely attacks
Marshall under the _nom de guerre_ of "Algernon Sidney"--
Marshall is deeply angered--He writes Story denouncing
Roane's articles--Jefferson applauds and encourages attacks on
Marshall--Marshall attributes to Jefferson the assaults upon
him and the Supreme Court--The incident of John E. Hall and his
_Journal of American Jurisprudence_--John Taylor again assails
Marshall's opinions in his second book, _Tyranny Unmasked_--
He connects monopoly, the protective tariff, internal
improvements, "exclusive privileges," and emancipation
with Marshall's Nationalist philosophy--Jefferson praises
Taylor's essay and declares for armed resistance to National
"usurpation": "The States must meet the invader foot to
foot"--Senator Richard M. Johnson of Kentucky, in Congress,
attacks Marshall and the Supreme Court--Offers an amendment to
the Constitution giving the Senate appellate jurisdiction from
that tribunal--Roane asks the Virginia Legislature to demand
an amendment to the National Constitution limiting the power
of the Supreme Court--Senator Johnson makes bold and powerful
speech in the Senate--Declares the Supreme Court to be a denial
of the whole democratic theory--Webster sneers at Johnson's
address--Kentucky and the Supreme Court--The "Occupying
Claimant" laws--Decisions in Green _vs._ Biddle--The Kentucky
Legislature passes condemnatory and defiant resolutions--
Justice William Johnson infuriates the South by an opinion from
the Circuit Bench--The connection of the foregoing events with
the Ohio Bank case--The alignment of economic, political, and
social forces--Marshall delivers his opinion in Osborn _vs._
The Bank of the United States--The historical significance of
his declaration in that case.
VIII. COMMERCE MADE FREE 397
Fulton's experiments on the Seine in Paris--French scientists
reject his invention--The Livingston-Fulton partnership--
Livingston's former experiments in New York--Secures monopoly
grants from the Legislature--These expire--The Clermont makes
the first successful steamboat voyage--Water transportation
revolutionized--New York grants monopoly of steamboat
navigation to Livingston and Fulton--They send Nicholas J.
Roosevelt to inspect the Ohio and Mississippi Rivers--His
romantic voyage to New Orleans--Louisiana grants exclusive
steamboat privileges to Livingston and Fulton--New Jersey
retaliates on New York--Connecticut forbids Livingston and
Fulton boats to enter her waters--New York citizens defy
the steamboat monopoly--Livingston and Fulton sue James Van
Ingen--New York courts uphold the steamboat monopoly, and
assert the right of the State to control navigation on its
waters--The opinion of Chief Justice Kent--The controversy
between Aaron Ogden and Thomas Gibbons--Ogden, operating under
a license from Livingston and Fulton, sues Gibbons--State
courts again sustain the monopoly acts--Gibbons appeals to the
Supreme Court--Ogden retains William Pinkney--The case is
dismissed, refiled, and continued--Pinkney dies--Argument not
heard for three years--Several States pass monopoly laws--
Prodigious development of steamboat navigation--The demand for
internal improvements stimulated--The slave interests deny
power of Congress to build roads and canals--The daring speech
of John Randolph--Declares slavery imperiled--Threatens armed
resistance--Remarkable alignment of opposing forces when
Gibbons _vs._ Ogden is heard in Supreme Court--Webster makes
the greatest of his legal arguments--Marshall's opinion one of
his most masterful state papers--His former opinion on the
Circuit Bench in the case of the Brig Wilson anticipates that
in Gibbons _vs._ Ogden--The power of Congress over interstate
and foreign commerce absolute and exclusive--Marshall attacks
the enemies of Nationalism--The immediate effect of Marshall's
opinion on steamboat transportation, manufacturing, and
mining--Later effect still more powerful--Railway development
incalculably encouraged--Results to-day of Marshall's theory of
commerce--Litigation in New York following the Supreme Court's
decision--The whole-hearted Nationalism of Chief Justice Savage
and Chancellor Sanford--Popularity of Marshall's opinion--The
attack in Congress on the Supreme Court weakens--Martin Van
Buren, while denouncing the "idolatry" for the Supreme Court,
pays an exalted tribute to Marshall: "The ablest judge now
sitting on any judicial bench in the world"--Senator John Rowan
of Kentucky calls the new popular attitude toward the Supreme
Court "a judicial superstition"--The case of Brown _vs._
Maryland--Marshall's opinion completes his Constitutional
expositions of the commerce clause--Taney's remarkable
acknowledgment.
IX. THE SUPREME CONSERVATIVE 461
Marshall's dislike for the formal society of Washington--His
charming letters to his wife--He carefully avoids partisan
politics--Refrains from voting for twenty years--Is irritated
by newspaper report of partisanship--Writes denial to the
Richmond _Whig_--Clay writes Marshall--The Chief Justice
explains incident to Story--Marshall's interest in politics--
His letter to his brother--Permits himself to be elected to the
Virginia Constitutional Convention of 1829-30--His disgust at
his "weakness"--Writes Story amusing account--Issues before the
convention deeply trouble him--He is frankly and unshakably
conservative--The antiquated and undemocratic State
Constitution of 1776 and the aristocratic system under
it--Jefferson's brilliant indictment of both in a private
letter--His alarm and anger when his letter is circulated--He
tries to withdraw it--Marshall's interest in the well-being of
the people--His prophetic letter to Charles F. Mercer--
Marshall's only public ideal that of Nationalism--His views on
slavery--Letters to Gurley and Pickering--His judicial opinions
involving slavery and the slave trade: The Antelope; Boyce
_vs._ Anderson--Extreme conservatism of Marshall's views on
legislation and private property--Letter to Greenhow--Opinions
in Ogden _vs._ Saunders and Bank _vs._ Dandridge--Marshall's
work in the Virginia convention--Is against any reform--Writes
Judiciary report--The aristocratic County Court system--
Marshall defends it--Impressive tributes to Marshall from
members of the convention--His animated and powerful speeches
on the Judiciary--He answers Giles, Tazewell, and Cabell,
and carries the convention by an astonishing majority--
Is opposed to manhood suffrage and exclusive white basis
of representation--He pleads for compromise on the latter
subject and prevails--Reasons for his course in the
convention--He probably prevents civil strife and bloodshed
in Virginia--The convention adjourns--History of Craig _vs._
Missouri--Marshall's stern opinion--The splendid eloquence
of his closing passage--Three members of the Supreme Court
file dissenting opinions--Marshall's melancholy comments on
them--Congressional assaults on the Supreme Court renewed--
They are astonishingly weak, and are overwhelmingly defeated,
but the vote is ominous.
X. THE FINAL CONFLICT 518
Sadness of Marshall's last years--His health fails--
Contemplates resigning--His letters to Story--Goes to
Philadelphia for surgical treatment--Remarkable resolutions by
the bar of that city--Marshall's response--Is successfully
operated upon by Dr. Physick--His cheerfulness--Letters to his
wife--Mrs. Marshall dies--Marshall's grief--His tribute to
her--He is depressed by the course of President Jackson--The
warfare on the Bank of the United States--Congress recharters
it--Jackson vetoes the Bank Bill and assails Marshall's
opinions in the Bank cases--The people acclaim Jackson's veto--
Marshall is disgusted--His letters to Story--He is alarmed at
the growth of disunion sentiment--Causes of the recrudescence
of Localism--Marshall's theory of Constitutional construction
and its relation to slavery--The tariff--The South gives stern
warnings--Dangerous agitation in South Carolina--Georgia
asserts her "sovereignty" in the matter of the Cherokee
Indians--The case of George Tassels--Georgia ignores the
Supreme Court and rebukes Marshall--The Cherokee Nation _vs._
Georgia--The State again ignores the Supreme Court--Marshall
delivers his opinion in that case--Worcester _vs._ Georgia--The
State defies the Supreme Court--Marshall's opinion--Georgia
flouts the Court and disregards its judgment--Jackson supports
Georgia--Story's melancholy letter--The case of James Graves--
Georgia once more defies the Supreme Court and threatens
secession--South Carolina encouraged by Georgia's attitude--
Nullification sentiment grows rapidly--The Hayne-Webster
debate--Webster's great speech a condensation of Marshall's
Nationalist opinions--Similarity of Webster's language to that
of Marshall--The aged Madison repudiates Nullification--
Marshall, pleased, writes Story: "Mr. Madison is himself
again"--The Tariffs of 1828 and 1832 infuriate South Carolina--
Scenes and opinion in that State--Marshall clearly states the
situation--His letters to Story--South Carolina proclaims
Nullification--Marshall's militant views--Jackson issues his
Nullification Proclamation--It is based on Marshall's theory of
the Constitution and is a triumph for Marshall--Story's
letter--Hayne replies to Jackson--South Carolina flies to
arms--Virginia intercedes--Both parties back down: South
Carolina suspends Nullification and Congress passes Tariff
of 1833--Marshall describes conditions in the South--His
letters to Story--He almost despairs of the Republic--
Public appreciation of his character--Story dedicates
his _Commentaries_ to Marshall--Marshall presides over the
Supreme Court for the last time--His fatal illness--He dies at
Philadelphia--The funeral at Richmond--Widespread expressions
of sorrow--Only one of condemnation--The long-continued
mourning in Virginia--Marshall's old club resolves never to
fill his place or increase its membership--Story's "inscription
for a cenotaph" and the words Marshall wrote for his tomb.
WORKS CITED IN THIS VOLUME 595
INDEX 613
ILLUSTRATIONS
JOHN MARSHALL _Colored Frontispiece_
From the portrait painted in 1832 by Henry Inman, in the
possession of The Law Association of Philadelphia. A copy was
presented to the Connecticut State Library by Senator Frank B.
Brandegee and was chosen by the Secretary of the Treasury out of
all existing portraits to be engraved on steel for use as a
vignette on certain government bonds and treasury notes.
TIMOTHY PICKERING 50
From a painting by Stuart, owned by Mr. Robert M. Pratt, Boston.
JOSEPH STORY 96
From a crayon drawing by his son, William Wetmore Story, in the
possession of the family.
WILLIAM PINKNEY 132
From the original painting by Charles Wilson Peale, in the
possession of Pinkney's grandson, William Pinkney Whyte, Esq.,
Baltimore, Maryland.
JOHN MARSHALL 210
From the bust in the Court Room of the United States Supreme
Court.
JOSEPH HOPKINSON 254
From a portrait owned by Dartmouth College.
ASSOCIATE JUSTICES SITTING WITH MARSHALL IN THE CASE OF M'CULLOCH
VERSUS MARYLAND: BUSHROD WASHINGTON, WILLIAM JOHNSON, BROCKHOLST
LIVINGSTON, THOMAS TODD, JOSEPH STORY, GABRIEL DUVAL 282
From etchings by Max and Albert Rosenthal in Hampton L. Carson's
history of _The Supreme Court of the United States_, reproduced
through the courtesy of the Lawyers' Coöperative Publishing
Company, Rochester, New York. The etchings were made from
originals as follows: Washington, from a painting by Chester
Harding in the possession of the family; Johnson, from a
painting by Jarvis in the possession of the New York Historical
Society; Livingston, from a painting in the possession of the
family; Todd, from a painting in the possession of the family;
Story, from a drawing by William Wetmore Story in the possession
of the family; Duval, from a painting in the Capitol at
Washington. Mr. Justice Todd is included as a member of the
Court at that time, although absent because of illness.
SPENCER ROANE 314
From a painting in the Court of Appeals at Richmond, Virginia.
JOHN TAYLOR OF CAROLINE 336
From a painting in the possession of the Virginia State Library,
Richmond.
JOHN MARSHALL 412
From a portrait painted by J. B. Martin and presented to the
University of Virginia in 1901 by John L. Williams, Esq., of
Richmond, Virginia.
SILHOUETTE OF JOHN MARSHALL 462
From the original found in the desk of Mr. Justice Story.
LEEDS MANOR 528
From a photograph. This was the principal house in the Fairfax
Purchase and was the home of Marshall's son James Keith
Marshall. The wing on the left was built especially for the use
of Chief Justice Marshall, who expected to spend his declining
years there. Many of his books and papers were kept in this
house.
ASSOCIATE JUSTICES AT THE LAST SESSION OF THE SUPREME COURT OVER
WHICH JOHN MARSHALL PRESIDED: JOSEPH STORY, SMITH THOMPSON, JOHN
McLEAN, HENRY BALDWIN, JAMES M. WAYNE 584
From etchings by Max and Albert Rosenthal in Hampton L. Carson's
history of _The Supreme Court of the United States_, reproduced
by the courtesy of the Lawyers' Coöperative Publishing Company,
Rochester, New York. The etchings were made from originals as
follows: Story, from a drawing by William Wetmore Story in the
possession of the family; Smith Thompson from a painting by
Dumont in the possession of Smith Thompson, Esq., Hudson, New
York; McLean, from a painting by Ives, in the possession of Mr.
Justice Brown; Baldwin, from a painting by Lambdin in the
possession of the family; Wayne, from a photograph by Brady in
the possession of Mr. Justice Field.
THE GRAVE OF JOHN MARSHALL 592
From a photograph of the graves of Marshall and his Wife in the
Shockoe Hill Cemetery, Richmond, Virginia.
LIST OF ABBREVIATED TITLES MOST FREQUENTLY CITED
_All references here are to the List of Authorities at the end of
this volume_
Adams: _U.S._ _See_ Adams, Henry. History of the United States.
Ambler: _Ritchie._ _See_ Ambler, Charles Henry. Thomas Ritchie: A Study
in Virginia Politics.
_Ames_: Ames. _See_ Ames, Fisher. Works.
Anderson. _See_ Anderson, Dice Robins. William Branch Giles.
Babcock. _See_ Babcock, Kendric Charles. Rise of American Nationality,
1811-1819.
_Bayard Papers_: Donnan. _See_ Bayard, James Asheton. Papers from 1796
to 1815. Edited by Elizabeth Donnan.
_Branch Historical Papers._ _See_ John P. Branch Historical Papers.
Catterall. _See_ Catterall, Ralph Charles Henry. Second Bank of the
United States.
Channing: _Jeff. System._ _See_ Channing, Edward. Jeffersonian System,
1801-1811.
Channing: _U.S._ _See_ Channing, Edward. History of the United States.
Curtis. _See_ Curtis, George Ticknor. Life of Daniel Webster.
Dewey. _See_ Dewey, Davis Rich. Financial History of the United States.
Dillon. _See_ Dillon, John Forrest. John Marshall: Life, Character, and
Judicial Services.
_E. W. T._: Thwaites. _See_ Thwaites, Reuben Gold. Early Western
Travels.
Farrar. _See_ Farrar, Timothy. Report of the Case of the Trustees of
Dartmouth College against William H. Woodward.
Hildreth. _See_ Hildreth, Richard. History of the United States of
America.
Hunt: _Livingston._ _See_ Hunt, Charles Havens. Life of Edward
Livingston.
Kennedy. _See_ Kennedy, John Pendleton. Memoirs of the Life of William
Wirt.
King. _See_ King, Rufus. Life and Correspondence. Edited by Charles R.
King.
Lodge: _Cabot._ _See_ Lodge, Henry Cabot. Life and Letters of George
Cabot.
Lord. _See_ Lord, John King. A History of Dartmouth College, 1815-1909.
McMaster. _See_ McMaster, John Bach. A History of the People of the
United States.
_Memoirs, J. Q. A._: Adams. _See_ Adams, John Quincy. Memoirs. Edited by
Charles Francis Adams.
Morison: _Otis._ _See_ Morison, Samuel Eliot. Life and Letters of
Harrison Gray Otis.
Morris. _See_ Morris, Gouverneur. Diary and Letters. Edited by Anne Cary
Morris.
_N.E. Federalism_: Adams. _See_ Adams, Henry. Documents relating to
New-England Federalism, 1800-1815.
Parton: _Jackson._ _See_ Parton, James. Life of Andrew Jackson.
Plumer. _See_ Plumer, William, Jr. Life of William Plumer.
_Priv. Corres._: Webster. _See_ Webster, Daniel. Private Correspondence.
Edited by Fletcher Webster.
Quincy: _Quincy._ _See_ Quincy, Edmund. Life of Josiah Quincy of
Massachusetts.
Randall. _See_ Randall, Henry Stephens. Life of Thomas Jefferson.
_Records Fed. Conv._: Farrand. _See_ Records of the Federal Convention
of 1787. Edited by Max Farrand.
Richardson. _See_ Richardson, James Daniel. A Compilation of the
Messages and Papers of the Presidents, 1789-1897.
Shirley. _See_ Shirley, John M. The Dartmouth College Causes and the
Supreme Court of the United States.
Story. _See_ Story, Joseph. Life and Letters. Edited by William Wetmore
Story.
Sumner: _Hist. Am. Currency._ _See_ Sumner, William Graham. A History of
American Currency.
Sumner: _Jackson._ _See_ Sumner, William Graham. Andrew Jackson. As a
Public Man.
Tyler: _Tyler._ _See_ Tyler, Lyon Gardiner. Letters and Times of the
Tylers.
_Works_: Ford. _See_ Jefferson, Thomas. Works. Edited by Paul Leicester
Ford.
_Writings_: Adams. _See_ Gallatin, Albert. Writings. Edited by Henry
Adams.
_Writings_: Hunt. _See_ Madison, James. Writings. Edited by Gaillard
Hunt.
THE LIFE OF JOHN MARSHALL
THE LIFE OF JOHN MARSHALL
CHAPTER I
THE PERIOD OF AMERICANIZATION
Great Britain is fighting our battles and the battles of
mankind, and France is combating for the power to enslave
and plunder us and all the world. (Fisher Ames.)
Though every one of these Bugbears is an empty Phantom, yet the
People seem to believe every article of this bombastical Creed.
Who shall touch these blind eyes. (John Adams.)
The object of England, long obvious, is to claim the ocean as
her domain. (Jefferson.)
I am for resistance by the _sword_. (Henry Clay.)
Into the life of John Marshall war was strangely woven. His birth, his
young manhood, his public services before he became Chief Justice, were
coincident with, and affected by, war. It seemed to be the decree of
Fate that his career should march side by side with armed conflict, and
that the final phase of that career should open with a war--a war, too,
which brought forth a National consciousness among the people and
demonstrated a National strength hitherto unsuspected in their
fundamental law.
Yet, while American Nationalism was Marshall's one and only great
conception, and the fostering of it the purpose of his life, he was
wholly out of sympathy with the National movement that led to our second
conflict with Great Britain, and against the continuance of it. He
heartily shared the opinion of the Federalist leaders that the War of
1812 was unnecessary, unwise, and unrighteous.
By the time France and England had renewed hostilities in 1803, the
sympathies of these men had become wholly British. The excesses of the
French Revolution had started them on this course of feeling and
thinking. Their detestation of Jefferson, their abhorrence of Republican
doctrines, their resentment of Virginia domination, all hastened their
progress toward partisanship for Great Britain. They had, indeed,
reverted to the colonial state of mind, and the old phrases, "the mother
country," "the protection of the British fleet,"[1] were forever on
their lips.
These Federalists passionately hated France; to them France was only the
monstrous child of the terrible Revolution which, in the name of human
rights, had attacked successfully every idea dear to their hearts--upset
all order, endangered all property, overturned all respectability. They
were sure that Napoleon intended to subjugate the world; and that Great
Britain was our only bulwark against the aggressions of the
Conqueror--that "varlet" whose "patron-saint [is] Beelzebub," as
Gouverneur Morris referred to Napoleon.[2]
So, too, thought John Marshall. No man, except his kinsman Thomas
Jefferson, cherished a prejudice more fondly than he. Perhaps no better
example of first impressions strongly made and tenaciously retained can
be found than in these two men. Jefferson was as hostile as Marshall was
friendly to Great Britain; and they held exactly opposite sentiments
toward France. Jefferson's strongest title to immortality was the
Declaration of Independence; nearly all of his foreign embroilments had
been with British statesmen. In British conservatism he had found the
most resolute opposition to those democratic reforms he so passionately
championed, and which he rightly considered the manifestations of a
world movement.[3]
And Jefferson adored France, in whose entrancing capital he had spent
his happiest years. There his radical tendencies had found
encouragement. He looked upon the French Revolution as the breaking of
humanity's chains, politically, intellectually, spiritually.[4] He
believed that the war of the allied governments of Europe against the
new-born French Republic was a monarchical combination to extinguish the
flame of liberty which France had lighted.
Marshall, on the other hand, never could forget his experience with the
French. And his revelation of what he had endured while in Paris had
brought him his first National fame.[5] Then, too, his idol, Washington,
had shared his own views--indeed, Marshall had been instrumental in the
formation of Washington's settled opinions. Marshall had championed the
Jay Treaty, and, in doing so, had necessarily taken the side of Great
Britain as opposed to France.[6] His business interests[7] powerfully
inclined him in the same direction. His personal friends were the
ageing Federalists.
He had also become obsessed with an almost religious devotion to the
rights of property, to steady government by "the rich, the wise and
good,"[8] to "respectable" society. These convictions Marshall found
most firmly retained and best defended in the commercial centers of the
East and North. The stoutest champions of Marshall's beloved stability
of institutions and customs were the old Federalist leaders,
particularly of New England and New York. They had been his comrades and
associates in bygone days and continued to be his intimates.
In short, John Marshall had become the personification of the reaction
against popular government that followed the French Revolution. With him
and men of his cast of mind, Great Britain had come to represent all
that was enduring and good, and France all that was eruptive and evil.
Such was his outlook on social and political life when, after these
traditional European foes were again at war, their spoliations of
American commerce, violations of American rights, and insults to
American honor once more became flagrant; and such continued to be his
opinion and feeling after these aggressions had become intolerable.
Since the adoption of the Constitution, nearly all Americans, except the
younger generation, had become re-Europeanized in thought and feeling.
Their partisanship of France and Great Britain relegated America to a
subordinate place in their minds and hearts. Just as the
anti-Federalists and their successors, the Republicans, had been more
concerned in the triumph of revolutionary France over "monarchical"
England than in the maintenance of American interests, rights, and
honor, so now the Federalists were equally violent in their championship
of Great Britain in her conflict with the France of Napoleon. Precisely
as the French partisans of a few years earlier had asserted that the
cause of France was that of America also,[9] the Federalists now
insisted that the success of Great Britain meant the salvation of the
United States.
"Great Britain is fighting our battles and the battles of mankind, and
France is combating for the power to enslave and plunder us and all the
world,"[10] wrote that faithful interpreter of extreme New England
Federalism, Fisher Ames, just after the European conflict was renewed.
Such opinions were not confined to the North and East. In South
Carolina, John Rutledge was under the same spell. Writing to "the head
Quarters of good Principles," Boston, he avowed that "I have long
considered England as but the advanced guard of our Country.... If they
fall we do."[11] Scores of quotations from prominent Federalists
expressive of the same views might be adduced.[12] Even the assault on
the Chesapeake did not change or even soften them.[13] On the other
hand, the advocates of France as ardently upheld her cause, as fiercely
assailed Great Britain.[14]
Never did Americans more seriously need emancipation from foreign
influence than in the early decades of the Republic--never was it more
vital to their well-being that the people should develop an American
spirit, than at the height of the Napoleonic Wars.
Upon the renewal of the European conflict, Great Britain announced
wholesale blockades of French ports,[15] ordered the seizure of neutral
ships wherever found carrying on trade with an enemy of England;[16] and
forbade them to enter the harbors of immense stretches of European
coasts.[17] In reply, Napoleon declared the British Islands to be under
blockade, and ordered the capture in any waters whatsoever of all ships
that had entered British harbors.[18] Great Britain responded with the
Orders in Council of 1807 which, in effect, prohibited the oceans to
neutral vessels except such as traded directly with England or her
colonies; and even this commerce was made subject to a special tax to be
paid into the British treasury.[19] Napoleon's swift answer was the
Milan Decree,[20] which, among other things, directed all ships
submitting to the British Orders in Council to be seized and confiscated
in the ports of France or her allies, or captured on the high seas.
All these "decrees," "orders," and "instructions" were, of course, in
flagrant violation of international law, and were more injurious to
America than to all other neutrals put together. Both belligerents bore
down upon American commerce and seized American ships with equal
lawlessness.[21] But, since Great Britain commanded the oceans,[22] the
United States suffered far more severely from the depredations of that
Power.[23] Under pressure of conflict, Great Britain increased her
impressment[24] of American sailors. In effect, our ports were
blockaded.[25]
Jefferson's lifelong prejudice against Great Britain[26] would permit
him to see in all this nothing but a sordid and brutal imperialism. Not
for a moment did he understand or consider the British point of view.
England's "intentions have been to claim the ocean as her conquest, &
prohibit any vessel from navigating it but on ... tribute," he
wrote.[27] Nevertheless, he met Great Britain's orders and instructions
with hesitant recommendations that the country be put in a state of
defense; only feeble preliminary steps were taken to that end.
The President's principal reliance was on the device of taking from
Great Britain her American markets. So came the Non-Importation Act of
April, 1806, prohibiting the admission of those products that
constituted the bulk of Great Britain's immensely profitable trade with
the United States.[28] This economic measure was of no avail--it
amounted to little more than an encouragement of successful smuggling.
When the Leopard attacked the Chesapeake,[29] Jefferson issued his
proclamation reciting the "enormity" as he called it, and ordering all
British armed vessels from American waters.[30] The spirit of America
was at last aroused.[31] Demands for war rang throughout the land.[32]
But they did not come from the lips of Federalists, who, with a few
exceptions, protested loudly against any kind of retaliation.
John Lowell, unequaled in talent and learning among the brilliant group
of Federalists in Boston, wrote a pamphlet in defense of British
conduct.[33] It was an uncommonly able performance, bright, informed,
witty, well reasoned. "Despising the threats of prosecution for
treason," he would, said Lowell, use his right of free speech to save
the country from an unjustifiable war. What did the Chesapeake incident,
what did impressment of Americans, what did anything and everything
amount to, compared to the one tremendous fact of Great Britain's
struggle with France? All thoughtful men knew that Great Britain alone
stood between us and that slavery which would be our portion if France
should prevail.[34]
Lowell's sparkling essay well set forth the intense conviction of nearly
all leading Federalists. Giles was not without justification when he
branded them as "the mere Anglican party."[35] The London press had
approved the attack on the Chesapeake, applauded Admiral Berkeley, and
even insisted upon war against the United States.[36] American
Federalists were not far behind the _Times_ and the _Morning Post_.
Jefferson, on the contrary, vividly stated the thought of the ordinary
American: "The English being equally tyrannical at sea as he [Bonaparte]
is on land, & that tyranny bearing on us in every point of either honor
or interest, I say, 'down with England' and as for what Buonaparte is
then to do to us, let us trust to the chapter of accidents, I cannot,
with the Anglomen, prefer a certain present evil to a future
hypothetical one."[37]
But the President did not propose to execute his policy of "down with
England" by any such horrid method as bloodshed. He would stop Americans
from trading with the world--that would prevent the capture of our ships
and the impressment of our seamen.[38] Thus it was that the Embargo Act
of December, 1807, and the supplementary acts of January, March, and
April, 1808, were passed.[39] All exportation by sea or land was rigidly
forbidden under heavy penalties. Even coasting vessels were not allowed
to continue purely American trade unless heavy bond was given that
landing would be made exclusively at American ports. Flour could be
shipped by sea only in case the President thought it necessary to keep
from hunger the population of any given port.[40]
Here was an exercise of National power such as John Marshall had never
dreamed of. The effect was disastrous. American ocean-carrying trade was
ruined; British ships were given the monopoly of the seas.[41] And
England was not "downed," as Jefferson expected. In fact neither France
nor Great Britain relaxed its practices in the least.[42]
The commercial interests demanded the repeal of the Embargo laws,[43] so
ruinous to American shipping, so destructive to American trade, so
futile in redressing the wrongs we had suffered. Massachusetts was
enraged. A great proportion of the tonnage of the whole country was
owned in that State and the Embargo had paralyzed her chief industry.
Here was a fresh source of grievance against the Administration and a
just one. Jefferson had, at last, given the Federalists a real issue.
Had they availed themselves of it on economic and purely American
grounds, they might have begun the rehabilitation of their weakened
party throughout the country. But theirs were the vices of pride and of
age--they could neither learn nor forget; could not estimate situations
as they really were, but only as prejudice made them appear to be.
As soon as Congress convened in November, 1808, New England opened the
attack on Jefferson's retaliatory measures. Senator James Hillhouse of
Connecticut offered a resolution for the repeal of the obnoxious
statutes. "Great Britain was not to be threatened into compliance by a
rod of coercion," he said.[44] Pickering made a speech which might well
have been delivered in Parliament.[45] British maritime practices were
right, the Embargo wrong, and principally injurious to America.[46] The
Orders in Council had been issued only after Great Britain "had
witnessed ... these atrocities" committed by Napoleon and his
plundering armies, "and seen the deadly weapon aimed at her vitals." Yet
Jefferson had acted very much as if the United States were a vassal of
France.[47]
Again Pickering addressed the Senate, flatly charging that all Embargo
measures were "in exact conformity with the views and wishes of the
French Emperor, ... the most ruthless tyrant that has scourged the
European world, since the Roman Empire fell!" Suppose the British Navy
were destroyed and France triumphant over Great Britain--to the other
titles of Bonaparte would then "be added that of Emperor of the Two
Americas"; for what legions of soldiers "could he not send to the United
States in the thousands of British ships, were they also at his
command?"[48]
As soon as they were printed, Pickering sent copies of these and
speeches of other Federalists to his close associate, the Chief Justice
of the United States. Marshall's prompt answer shows how far he had gone
in company with New England Federalist opinion.
"I thank you very sincerely," he wrote "for the excellent speeches
lately delivered in the senate.... If sound argument & correct reasoning
could save our country it would be saved. Nothing can be more completely
demonstrated than the inefficacy of the embargo, yet that demonstration
seems to be of no avail. I fear most seriously that the same spirit
which so tenaciously maintains this measure will impel us to a war with
the only power which protects any part of the civilized world from the
despotism of that tyrant with whom we shall then be ravaged."[49]
Such was the change that nine years had wrought in the views of John
Marshall. When Secretary of State he had arraigned Great Britain for her
conduct toward neutrals, denounced the impressment of American sailors,
and branded her admiralty courts as habitually unjust if not
corrupt.[50] But his hatred of France had metamorphosed the man.
Before Marshall had written this letter, the Legislature of
Massachusetts formally declared that the continuance of the Embargo
would "endanger ... the union of these States."[51] Talk of secession
was steadily growing in New England.[52] The National Government feared
open rebellion.[53] Only one eminent Federalist dissented from these
views of the party leaders which Marshall also held as fervently as
they. That man was the one to whom he owed his place on the Supreme
Bench. From his retirement in Quincy, John Adams watched the growing
excitement with amused contempt.
"Our Gazettes and Pamphlets," he wrote, "tell us that Bonaparte ... will
conquer England, and command all the British Navy, and send I know not
how many hundred thousand soldiers here and conquer from New Orleans to
Passamaquoddy. Though every one of these Bugbears is an empty Phantom,
yet the People seem to believe every article of this bombastical Creed
and tremble and shudder in Consequence. Who shall touch these blind
eyes?"[54]
On January 9, 1809, Jefferson signed the "Force Act," which the
Republican Congress had defiantly passed, and again Marshall beheld such
an assertion of National power as the boldest Federalist of Alien and
Sedition times never had suggested. Collectors of customs were
authorized to seize any vessel or wagon if they suspected the owner of
an intention to evade the Embargo laws; ships could be laden only in the
presence of National officials, and sailing delayed or prohibited
arbitrarily. Rich rewards were provided for informers who should put the
Government on the track of any violation of the multitude of
restrictions of these statutes or of the Treasury regulations
interpretative of them. The militia, the army, the navy were to be
employed to enforce obedience.[55]
Along the New England coasts popular wrath swept like a forest fire.
Violent resolutions were passed.[56] The Collector of Boston, Benjamin
Lincoln, refused to obey the law and resigned.[57] The Legislature of
Massachusetts passed a bill denouncing the "Force Act" as
unconstitutional, and declaring any officer entering a house in
execution of it to be guilty of a high misdemeanor, punishable by fine
and imprisonment.[58] The Governor of Connecticut declined the request
of the Secretary of War to afford military aid and addressed the
Legislature in a speech bristling with sedition.[59] The Embargo must
go, said the Federalists, or New England would appeal to arms. Riots
broke out in many towns. Withdrawal from the Union was openly
advocated.[60] Nor was this sentiment confined to that section. "If the
question were barely _stirred_ in New England, some States would drop
off the Union like fruit, _rotten ripe_," wrote A. C. Hanson of
Baltimore.[61] Humphrey Marshall of Kentucky declared that he looked to
"BOSTON ... the Cradle, and SALEM, the nourse, of American Liberty," as
"the source of reformation, or should that be unattainable, of
disunion."[62]
Warmly as he sympathized with Federalist opinion of the absurd
Republican retaliatory measures, and earnestly as he shared Federalist
partisanship for Great Britain, John Marshall deplored all talk of
secession and sternly rebuked resistance to National authority, as is
shown in his opinion in Fletcher _vs._ Peck,[63] wherein he asserted the
sovereignty of the Nation over a State.
Another occasion, however, gave Marshall a better opportunity to state
his views more directly, and to charge them with the whole force of the
concurrence of all his associates on the Supreme Bench. This occasion
was the resistance of the Legislature and Governor of Pennsylvania to a
decree of Richard Peters, Judge of the United States Court for that
district, rendered in the notable and dramatic case of Gideon Olmstead.
During the Revolution, Olmstead and three other American sailors
captured the British sloop Active and sailed for Egg Harbor, New Jersey.
Upon nearing their destination, they were overhauled by an armed vessel
belonging to the State of Pennsylvania and by an American privateer. The
Active was taken to Philadelphia and claimed as a prize of war. The
court awarded Olmstead and his comrades only one fourth of the proceeds
of the sale of the vessel, the other three fourths going to the State of
Pennsylvania, to the officers and crew of the State ship, and to those
of the privateer. The Continental Prize Court reversed the decision and
ordered the whole amount received for sloop and cargo to be paid to
Olmstead and his associates.
This the State court refused to do, and a litigation began which lasted
for thirty years. The funds were invested in United States loan
certificates, and these were delivered by the State Judge to the State
Treasurer, David Rittenhouse, upon a bond saving the Judge harmless in
case he, thereafter, should be compelled to pay the amount in
controversy to Olmstead. Rittenhouse kept the securities in his personal
possession, and after his death they were found among his effects with a
note in his handwriting that they would become the property of
Pennsylvania when the State released him from his bond to the Judge.
In 1803, Olmstead secured from Judge Peters an order to the daughters of
Rittenhouse who, as his executrixes, had possession of the securities,
to deliver them to Olmstead and his associates. This proceeding of the
National court was promptly met by an act of the State Legislature which
declared that the National court had "usurped" jurisdiction, and
directed the Governor to "protect the just rights of the state ... from
any process whatever issued out of any federal court."[64]
Peters, a good lawyer and an upright judge, but a timorous man, was
cowed by this sharp defiance and did nothing. The executrixes held on to
the securities. At last, on March 5, 1808, Olmstead applied to the
Supreme Court of the United States for a rule directed to Judge Peters
to show cause why a mandamus should not issue compelling him to execute
his decree. Peters made return that the act of the State Legislature had
caused him "from prudential ... motives ... to avoid embroiling the
government of the United States and that of Pennsylvania."[65]
Thus the matter came before Marshall. On February 20, 1809, just when
threats of resistance to the "Force Act" were sounding loudest, when
riots were in progress along the New England seaboard, and a storm of
debate over the Embargo and Non-Intercourse laws was raging in Congress,
the Chief Justice delivered his opinion in the case of the United States
_vs._ Peters.[66] The court had, began Marshall, considered the return
of Judge Peters "with great attention, and with serious concern." The
act of the Pennsylvania Legislature challenged the very life of the
National Government, for, "if the legislatures of the several states
may, at will, annul the judgments of the courts of the United States,
and destroy the rights acquired under those judgments, the constitution
itself becomes a solemn mockery, and the nation is deprived of the means
of enforcing its laws by the instrumentality of its own tribunals."
These clear, strong words were addressed to Massachusetts and
Connecticut no less than to Pennsylvania. They were meant for Marshall's
Federalist comrades and friends--for Pickering, and Gore, and Morris,
and Otis--as much as for the State officials in Lancaster. His opinion
was not confined to the case before him; it was meant for the whole
country and especially for those localities where National laws were
being denounced and violated, and National authority defied and flouted.
Considering the depth and fervor of Marshall's feelings on the whole
policy of the Republican régime, his opinion in United States _vs._
Judge Peters was signally brave and noble.
Forcible resistance by a State to National authority! "So fatal a result
must be deprecated by all; and the people of Pennsylvania, _not less
than the citizens of every other state_, must feel a deep interest in
resisting principles so destructive of the Union, and in averting
consequences so fatal to themselves." Marshall then states the facts of
the controversy and concludes that "the state of Pennsylvania can
possess no constitutional right" to resist the authority of the National
courts. His decision, he says, "is not made without extreme regret at
the necessity which has induced the application." But, because "it is a
solemn duty" to do so, the "mandamus must be awarded."[67]
Marshall's opinion deeply angered the Legislature and officials of
Pennsylvania.[68] When Judge Peters, in obedience to the order of the
Supreme Court, directed the United States Marshal to enforce the decree
in Olmstead's favor, that official found the militia under command of
General Bright drawn up around the house of the two executrixes. The
dispute was at last composed, largely because President Madison rebuked
Pennsylvania and upheld the National courts.[69]
A week after the delivery of Marshall's opinion, the most oppressive
provisions of the Embargo Acts were repealed and a curious
non-intercourse law enacted.[70] One section directed the suspension of
all commercial restrictions against France or Great Britain in case
either belligerent revoked its orders or decrees against the United
States; and this the President was to announce by proclamation. The new
British Minister, David M. Erskine, now tendered apology and reparation
for the attack on the Chesapeake and positively assured the
Administration that, if the United States would renew intercourse with
Great Britain, the British Orders in Council would be withdrawn on June
10, 1809. Immediately President Madison issued his proclamation stating
this fact and announcing that after that happy June day, Americans might
renew their long and ruinously suspended trade with all the world not
subject to French control.[71]
The Federalists were jubilant.[72] But their joy was quickly turned to
wrath--against the Administration. Great Britain repudiated the
agreement of her Minister, recalled him, and sent another charged with
rigid and impossible instructions.[73] In deep humiliation, Madison
issued a second proclamation reciting the facts and restoring to full
operation against Great Britain all the restrictive commercial and
maritime laws remaining on the statute books.[74] At a banquet in
Richmond, Jefferson proposed a toast: "The freedom of the seas!"[75]
Upon the arrival of Francis James Jackson, Erskine's successor as
British Minister, the scenes of the Genêt drama[76] were repeated.
Jackson was arrogant and overbearing, and his instructions were as harsh
as his disposition.[77] Soon the Administration was forced to refuse
further conference with him. Jackson then issued an appeal to the
American people in the form of a circular to British Consuls in America,
accusing the American Government of trickery, concealment of facts, and
all but downright falsehood.[78] A letter of Canning to the American
Minister at London[79] found its way into the Federalist newspapers,
"doubtless by the connivance of the British Minister," says Joseph
Story. This letter was, Story thought, an "infamous" appeal to the
American people to repudiate their own Government, "the old game of
Genêt played over again."[80]
Furious altercations arose all over the country. The Federalists
defended Jackson. When the elections came on, the Republicans made
tremendous gains in New England as well as in other States,[81] a
circumstance that depressed Marshall profoundly. In December an
acrimonious debate arose in Congress over a resolution denouncing
Jackson's circular letter as a "direct and aggravated insult and affront
to the American people and their Government."[82] Every Federalist
opposed the resolution. Josiah Quincy of Massachusetts declared that
every word of it was a "falsehood," and that the adoption of it would
call forth "severe retribution, perhaps in war" from Great Britain.[83]
Disheartened, disgusted, wrathful, Marshall wrote Quincy: "The
Federalists of the South participate with their brethren of the North in
the gloomy anticipations which your late elections must inspire. The
proceedings of the House of Representatives already demonstrate the
influence of those elections on the affairs of the Union. I had supposed
that the late letter to Mr. Armstrong,[84] and the late seizure [by the
French] of an American vessel, simply because she was an American, added
to previous burnings, ransoms, and confiscations, would have exhausted
to the dregs our cup of servility and degradation; but these measures
appear to make no impression on those to whom the United States confide
their destinies. To what point are we verging?"[85]
Nor did the Chief Justice keep quiet in Richmond. "We have lost our
resentment for the severest injuries a nation ever suffered, because of
their being so often repeated. Nay, Judge Marshall and Mr. Pickering &
Co. found out Great Britain had given us no cause of complaint,"[86]
writes John Tyler. And ever nearer drew the inevitable conflict.
Jackson was unabashed by the condemnation of Congress, and not without
reason. Wherever he went, more invitations to dine than he could accept
poured in upon him from the "best families"; banquets were given in his
honor; the Senate of Massachusetts adopted resolutions condemning the
Administration and upholding Jackson, who declared that the State had
"done more towards justifying me to the world than it was possible ...
that I or any other person could do."[87] The talk of secession
grew.[88] At a public banquet given Jackson, Pickering proposed the
toast: "The world's last hope--Britain's fast-anchored isle!" It was
greeted with a storm of cheers. Pickering's words sped over the country
and became the political war cry of Federalism.[89] Marshall, who in
Richmond was following "with anxiety" all political news, undoubtedly
read it, and his letters show that Pickering's words stated the opinion
of the Chief Justice.[90]
Upon the assurance of the French Foreign Minister that the Berlin and
Milan Decrees would be revoked after November 1, 1810, President
Madison, on November 2, announced what he believed to be Napoleon's
settled determination, and recommended the resumption of commercial
relations with France and the suspension of all intercourse with Great
Britain unless that Power also withdrew its injurious and offensive
Orders in Council.[91]
When at Washington, Marshall was frequently in Pickering's company.
Before the Chief Justice left for Richmond, the Massachusetts Senator
had lent him pamphlets containing part of John Adams's "Cunningham
Correspondence." In returning them, Marshall wrote that he had read
Adams's letters "with regret." But the European war, rather than the
"Cunningham Correspondence," was on the mind of the Chief Justice: "We
are looking with anxiety towards the metropolis for political
intelligence. Report gives much importance to the communications of
Serrurier [the new French Minister],[92] & proclaims him to be charged
with requisitions on our government, a submission to which would seem to
be impossible.... I will flatter myself that I have not seen you for the
last time. Events have so fully demonstrated the correctness of your
opinions on subjects the most interesting to our country that I cannot
permit myself to believe the succeeding legislature of Massachusetts
will deprive the nation of your future services."[93]
As the Federalist faith in Great Britain grew stronger, Federalist
distrust of the youthful and growing American people increased. Early in
1811, the bill to admit Louisiana was considered. The Federalists
violently resisted it. Josiah Quincy declared that "if this bill passes,
the bonds of this Union are virtually dissolved; that the States which
compose it are free from their moral obligations, and that, as it will
be the right of all, so it will be the duty of some, to prepare
definitely for a separation--amicably if they can, violently if they
must."[94] Quincy was the embodiment of the soul of Localism: "The first
public love of my heart is the Commonwealth of Massachusetts. There is
my fireside; there are the tombs of my ancestors."[95]
The spirit of American Nationalism no longer dwelt in the breasts of
even the youngest of the Federalist leaders. Its abode now was the
hearts of the people of the West and South; and its strongest exponent
was a young Kentuckian, Henry Clay, whose feelings and words were those
of the heroic seventies. Although but thirty-three years old, he had
been appointed for the second time to fill an unexpired term in the
National Senate. On February 22, 1810, he addressed that body on the
country's wrongs and duty: "Have we not been for years contending
against the tyranny of the ocean?" We have tried "_peaceful_
resistance.... When this is abandoned without effect, I am for
resistance by the _sword_."[96] Two years later, in the House, to which
he was elected immediately after his term in the Senate expired, and of
which he was promptly chosen Speaker, Clay again made an appeal to
American patriotism: "The real cause of British aggression was not to
distress an enemy, but to destroy a rival!"[97] he passionately
exclaimed. Another Patrick Henry had arisen to lead America to a new
independence.
Four other young Representatives from the West and South, John C.
Calhoun, William Lowndes, Langdon Cheves, and Felix Grundy were as hot
for war as was Henry Clay.[98]
Clay's speeches, extravagant, imprudent, and grandiose, had at least one
merit: they were thoroughly American and expressed the opinion of the
first generation of Americans that had grown up since the colonies won
their freedom. Henry Clay spoke their language. But it was not the
language of the John Marshall of 1812.
Eventually the Administration was forced to act. On June 1, 1812,
President Madison sent to Congress his Message which briefly, and with
moderation, stated the situation.[99] On June 4, the House passed a bill
declaring war on Great Britain. Every Federalist but three voted
against it.[100] The Senate made unimportant amendments which the House
accepted;[101] and thus, on June 18, war was formally declared.
At the Fourth of July banquet of the Boston Federalists, among the
toasts, by drinking to which the company exhilarated themselves, was
this sentiment: "_The Existing War_--The Child of Prostitution, may no
American acknowledge it legitimate."[102] Joseph Story was profoundly
alarmed: "I am thoroughly convinced," he wrote, "that the leading
Federalists meditate a severance of the Union."[103] His apprehension
was justified: "Let the Union be severed. Such a severance presents no
terrors to me," wrote the leading Federalist of New England.[104]
While opposition to the war thus began to blaze into open and defiant
treason in that section,[105] the old-time Southern Federalists, who
detested it no less, sought a more practical, though more timid, way to
resist and end it. "Success in this War, would most probably be the
worst kind of ruin," wrote Benjamin Stoddert to the sympathetic James
McHenry. "There is but one way to save our Country ... change the
administration--... this can be affected by bringing forward another
Virgn. as the competitor of Madison." For none but a Virginian can get
the Presidential electors of that State, said Stoddert.
"There is, then, but one man to be thought of as the candidate of the
Federalists and of all who were against the war. That man is John
Marshall." Stoddert informs McHenry that he has written an article for a
Maryland Federalist paper, the _Spirit of Seventy-Six_, recommending
Marshall for President. "This I have done, because ... every body
else ... seems to be seized with apathy ... and because I felt it sacred
duty."[106]
Stoddert's newspaper appeal for Marshall's nomination was clear,
persuasive, and well reasoned. It opened with the familiar Federalist
arguments against the war. It was an "_offensive_ war," which meant the
ruin of America. "Thus thinking ... I feel it a solemn duty to my
countrymen, to name JOHN MARSHALL, as a man as highly gifted as any
other in the United States, for the important office of Chief
Magistrate; and more likely than any other to command the confidence,
and unite the votes of that description of men, of all parties, who
desire nothing from government, but that it should be wisely and
faithfully administered....
"The sterling integrity of this gentleman's character and his high
elevation of mind, forbid the suspicion, that he could descend to be a
mere party President, or less than the President of the whole
people:--but one objection can be urged against him by candid and
honorable men: He is a Virginian, and Virginia has already furnished
more than her full share of Presidents--This objection in less critical
times would be entitled to great weight; but situated as the world is,
and as we are, the only consideration now should be, who amongst our
ablest statesmen, can best unite the suffrages of the citizens of all
parties, in a competition with Mr. Madison, whose continuance in power
is incompatible with the safety of the nation?...
"It may happen," continues Stoddert, "that this our beloved country may
be ruined for want of the services of the great and good man I have been
prompted by sacred duty to introduce, from the mere want of energy among
those of his immediate countrymen [Virginians], who think of his virtues
and talents as I do; and as I do of the crisis which demands their
employment.
"If in his native state men of this description will act in concert, &
with a vigor called for by the occasion, and will let the people fairly
know, that the contest is between John Marshall, peace, and a new order
of things; and James Madison, Albert Gallatin and war, with war taxes,
war loans, and all the other dreadful evils of a war in the present
state of the world, my life for it they will succeed, and by a
considerable majority of the independent votes of Virginia."
Stoddert becomes so enthusiastic that he thinks victory possible without
the assistance of Marshall's own State: "Even if they fail in Virginia,
the very effort will produce an animation in North Carolina, the middle
and Eastern states, that will most probably secure the election of John
Marshall. At the worst nothing can be lost but a little labour in a good
cause, and everything may be saved, or gained for our country." Stoddert
signs his plea "A Maryland Farmer."[107]
In his letter to McHenry he says: "They vote for electors in Virga. by a
general ticket, and I am thoroughly persuaded that if the men in that
State, who prefer Marshall to Madison, can be animated into Exertion, he
will get the votes of that State. What little I can do by private
letters to affect this will be done." Stoddert had enlisted one John
Davis, an Englishman--writer, traveler, and generally a rolling
stone--in the scheme to nominate Marshall. Davis, it seems, went to
Virginia on this mission. After investigating conditions in that State,
he had informed Stoddert "that if the Virgns. have nerve to believe it
will be agreeable to the Northern & E. States, he is sure Marshall will
get the Virga. votes."[108]
Stoddert dwells with the affection and anxiety of parentage upon his
idea of Marshall for President: "It is not because I prefer Marshall to
several other men, that I speak of him--but because I am well convinced
it is vain to talk of any other man, and Marshall is a Man in whom
Fedts. may confide--Perhaps indeed he is the man for the crisis, which
demands great good sense, a great firmness under the garb of great
moderation." He then urges McHenry to get to work for Marshall--"support
a cause [election of a peace President] on which all that is dear to you
depends."[109] Stoddert also wrote two letters to William Coleman of New
York, editor of the _New York Evening Post_, urging Marshall for the
Presidency.[110]
Twelve days after Stoddert thus instructed McHenry, Marshall wrote
strangely to Robert Smith of Maryland. President Madison had dismissed
Smith from the office of Secretary of State for inefficiency in the
conduct of our foreign affairs and for intriguing with his brother,
Senator Samuel Smith, and others against the Administration's foreign
policy.[111] Upon his ejection from the Cabinet, Smith proceeded to
"vindicate" himself by publishing a dull and pompous "Address" in which
he asserted that we must have a President "of energetic mind, of
enlarged and liberal views, of temperate and dignified deportment, of
honourable and manly feelings, and as efficient in maintaining, as
sagacious in discerning the rights of our much-injured and insulted
country."[112] This was a good summary of Marshall's qualifications.
When Stoddert proposed Marshall for the Presidency, Smith wrote the
Chief Justice, enclosing a copy of his attack on the Administration. On
July 27, 1812, more than five weeks after the United States had declared
war, Marshall replied: "Although I have for several years forborn to
intermingle with those questions which agitate & excite the feelings of
party, it is impossible that I could be inattentive to passing events,
or an unconcerned observer of them." But "as they have increased in
their importance, the interest, which as an American I must take in
them, has also increased; and the declaration of war has appeared to me,
as it has to you, to be one of those portentous acts which ought to
concentrate on itself the efforts of all those who can take an active
part in rescuing their country from the ruin it threatens.
"All minor considerations should be waived; the lines of subdivision
between parties, if not absolutely effaced, should at least be convened
for a time; and the great division between the friends of peace & the
advocates of war ought alone to remain. It is an object of such
magnitude as to give to almost every other, comparative insignificance;
and all who wish peace ought to unite in the means which may facilitate
its attainment, whatever may have been their differences of opinion on
other points."[113]
Marshall proceeds to analyze the causes of hostilities. These, he
contends, were Madison's subserviency to France and the base duplicity
of Napoleon. The British Government and American Federalists had, from
the first, asserted that the Emperor's revocation of the Berlin and
Milan Decrees was a mere trick to entrap that credulous French partisan,
Madison; and this they maintained with ever-increasing evidence to
support them. For, in spite of Napoleon's friendly words, American ships
were still seized by the French as well as by the British.
In response to the demand of Joel Barlow, the new American Minister to
France, for a forthright statement as to whether the obnoxious decrees
against neutral commerce had or had not been revoked as to the United
States, the French Foreign Minister delivered to Barlow a new decree.
This document, called "The Decree of St. Cloud," declared that the
former edicts of Napoleon, of which the American Government complained,
"are definitively, and to date from the 1st day of November last [1810],
considered as not having existed [_non avenus_] in regard to American
vessels." The "decree" was dated April 28, 1811, yet it was handed to
Barlow on May 10, 1812. It expressly stated, moreover, that Napoleon
issued it because the American Congress had, by the Act of May 2, 1811,
prohibited "the vessels and merchandise of Great Britain ... from
entering into the ports of the United States."[114]
General John Armstrong, the American Minister who preceded Barlow, never
had heard of this decree; it had not been transmitted to the French
Minister at Washington; it had not been made public in any way. It was a
ruse, declared the Federalists when news of it reached America--a cheap
and tawdry trick to save Madison's face, a palpable falsehood, a clumsy
afterthought. So also asserted Robert Smith, and so he wrote to the
Chief Justice.
Marshall agreed with the fallen Baltimore politician. Continuing his
letter to Smith, the longest and most unreserved he ever wrote, except
to Washington and to Lee when on the French Mission,[115] the Chief
Justice said: "The view you take of the edict purporting to bear date of
the 28^{th.} of April 1811 appears to me to be perfectly correct ... I
am astonished, if in these times any thing ought to astonish, that the
same impression is not made on all." Marshall puts many questions based
on dates, for the purpose of exposing the fraudulent nature of the
French decree and continues:
"Had France felt for the United States any portion of that respect to
which our real importance entitles us, would she have failed to give
this proof of it? But regardless of the assertion made by the President
in his Proclamation of the 2^{d.} of Nov^{r.} 1810, regardless of the
communications made by the Executive to the Legislature, regardless of
the acts of Congress, and regardless of the propositions which we have
invariably maintained in our diplomatic intercourse with Great Britain,
the Emperor has given a date to his decree, & has assigned a motive for
its enactment, which in express terms contradict every assertion made by
the American nation throughout all the departments of its government, &
remove the foundation on which its whole system has been erected.
"The motive for this offensive & contemptuous proceeding cannot be to
rescue himself from the imputation of continuing to enforce his decrees
after their formal repeal because this imputation is precisely as
applicable to a repeal dated the 28^{th.} of April 1811 as to one dated
the 1^{st} of November 1810, since the execution of those decrees has
continued after the one date as well as after the other. Why then is
this obvious fabrication such as we find it? Why has M^{r.} Barlow been
unable to obtain a paper which might consult the honor & spare the
feelings of his government? The answer is not to be disguised. Bonaparte
does not sufficiently respect us to exhibit for our sake, to France, to
America, to Britain, or to the world, any evidence of his having receded
one step from the position he had taken.
"He could not be prevailed on, even after we had done all he required,
to soften any one of his acts so far as to give it the appearance of his
having advanced one step to meet us. That this step, or rather the
appearance of having taken it, might save our reputation was regarded as
dust in the balance. Even now, after our solemn & repeated assertions
that our discrimination between the belligerents is founded altogether
on a first advance of France--on a decisive & unequivocal repeal of all
her obnoxious decrees; after we have engaged in a war of the most
calamitous character, avowedly, because France had repealed those
decrees, the Emperor scorns to countenance the assertion or to leave it
uncontradicted.
"He avers to ourselves, to our selected enemy, & to the world, that,
whatever pretexts we may assign for our conduct, he has in fact ceded
nothing, he has made no advance, he stands on his original ground & we
have marched up to it. We have submitted, completely submitted; & he
will not leave us the poor consolation of concealing that submission
from ourselves. But not even our submission has obtained relief. His
cruizers still continue to capture, sink, burn & destroy.
"I cannot contemplate this subject without excessive mortification as
well at the contempt with which we are treated as at the infatuation of
my countrymen. It is not however for me to indulge these feelings though
I cannot so entirely suppress them as not sometimes though rarely to
allow them a place in a private letter." Marshall assures Smith that he
has "read with attention and approbation" the paper sent him and will
see to its "republication."[116]
From reading Marshall's letter without a knowledge of the facts, one
could not possibly infer that America ever had been wronged by the Power
with which we were then at war. All the strength of his logical and
analytical mind is brought to bear upon the date and motives of
Napoleon's last decree. He wrote in the tone and style, and with the
controversial ability of his state papers, when at the head of the Adams
Cabinet. But had the British Foreign Secretary guided his pen, his
indictment of France and America could not have been more unsparing. His
letter to Smith was a call to peace advocates and British partisans to
combine to end the war by overthrowing the Administration.
This unfortunate letter was written during the long period between the
adjournment of the Supreme Court in March, 1812, and its next session in
February of the following year. Marshall's sentiments are in sharp
contrast with those of Joseph Story, whose letters, written from his
Massachusetts home, strongly condemn those who were openly opposing the
war. "The present," he writes, "was the last occasion which patriotism
ought to have sought to create divisions."[117]
Apparently the Administration did not know of Marshall's real feelings.
Immediately after the declaration of war, Monroe, who succeeded Smith as
Secretary of State, had sent his old personal friend, the Chief
Justice, some documents relating to the war. If Marshall had been
uninformed as to the causes that drove the United States to take
militant action, these papers supplied that information. In
acknowledging receipt of them, he wrote Monroe:
"On my return to day from my farm where I pass a considerable portion of
my time in _laborious relaxation_, I found a copy of the message of the
President of the 1^{st} inst accompanied by the report of the Committee
of foreign relations & the declaration of war against Great Britain,
under cover from you.
"Permit me to subjoin to my thanks for this mark of your attention my
fervent wish that this momentous measure may, in its operation on the
interest & honor of our country, disappoint only its enemies. Whether my
prayer be heard or not I shall remain with respectful esteem," etc.[118]
Cold as this letter was, and capable as it was of double interpretation,
to the men sorely pressed by the immediate exigencies of combat, it gave
no inkling that the Chief Justice of the United States was at that very
moment not only in close sympathy with the peace party, but was actually
encouraging that party in its efforts to end the war.[119]
Just at this time, Marshall must have longed for seclusion, and, by a
lucky chance, it was afforded him. One of the earliest and most
beneficial effects of the Non-Importation, Embargo, and Non-Intercourse
laws that preceded the war, was the heavily increased migration from the
seaboard States to the territories beyond the Alleghanies. The dramatic
story of Burr's adventures and designs had reached every ear and had
turned toward the Western country the eyes of the poor, the adventurous,
the aspiring; already thousands of settlers were taking up the new lands
over the mountains. Thus came a practical consideration of improved
means of travel and transportation. Fresh interest in the use of
waterways was given by Fulton's invention, which seized upon the
imagination of men. The possibilities of steam navigation were in the
minds of all who observed the expansion of the country and the growth of
domestic commerce.
Before the outbreak of war, the Legislature of Virginia passed an act
appointing commissioners "for the purpose of viewing certain rivers
within this Commonwealth,"[120] and Marshall was made the head of this
body of investigators. Nothing could have pleased him more. It was
practical work on a matter that interested him profoundly, and the
renewal of a subject which he had entertained since his young
manhood.[121]
This tour of observation promised to be full of variety and adventure,
tinged with danger, into forests, over mountains, and along streams and
rivers not yet thoroughly explored. For a short time Marshall would
again live over the days of his boyhood. Most inviting of all, he would
get far away from talk or thought of the detested war. Whether the
Presidential scheming in his behalf bore fruit or withered, his absence
in the wilderness was an ideal preparation to meet either outcome.
In his fifty-seventh year Marshall set out at the head of the
expedition, and a thorough piece of work he did. With chain and spirit
level the route was carefully surveyed from Lynchburg to the Ohio.
Sometimes progress was made slowly and with the utmost labor. In places
the scenes were "awful and discouraging."
The elaborate report which the commission submitted to the Legislature
was written by Marshall. It reads, says the surveyor of this division of
the Chesapeake and Ohio Railway,[122] "as an account of that survey of
1869, when I pulled a chain down the rugged banks of New River."
Practicable sections were accurately pointed out and the methods by
which they could best be utilized were recommended with particular care.
Marshall's report is alive with far-seeing and statesmanlike
suggestions. He thinks, in 1812, that steamboats can be run successfully
on the New River, but fears that the expense will be too great. The
velocity of the current gives him some anxiety, but "the currents of the
Hudson, of the Mohawk, and of the Mississippi, are very strong; and ...
a practice so entirely novel as the use of steam in navigation, will
probably receive great improvement."
The expense of the undertaking must, he says, depend on the use to be
made of the route. Should the intention be only to assist the local
traffic of the "upper country down the James river," the expense would
not be great. But, "if the views of the legislature shall extend to a
free commercial intercourse with the western states," the route must
compete with others then existing "or that may be opened." In that case
"no improvement ought to be undertaken but with a determination to make
it complete and effectual." If this were done, the commerce of Kentucky,
Ohio, and even a part of Southwestern Pennsylvania would pour through
Virginia to the Atlantic States. This was a rich prize which other
States were exerting themselves to capture. Moreover, such "commercial
intercourse" would bind Virginia to the growing West by "strong ties" of
"friendly sentiments," and these were above price. "In that mysterious
future which is in reserve, and is yet hidden from us, events may occur
to render" such a community of interest and mutual regard "too valuable
to be estimated in dollars and cents."
Marshall pictures the growth of the West, "that extensive and fertile
country ... increasing in wealth and population with a rapidity which
baffles calculation." Not only would Virginia profit by opening a great
trade route to the West, but the Nation would be vastly benefited.
"Every measure which tends to cement more closely the union of the
eastern with the western states" would be invaluable to the whole
country. The military uses of "this central channel of communication"
were highly important: "For the want of it, in the course of the last
autumn, government was reduced to the necessity of transporting arms in
waggons from Richmond to the falls of the Great Kanawha," and "a similar
necessity may often occur."[123]
When Marshall returned to Richmond, he found the country depressed and
in turmoil. The war had begun dismally for the Americans. Our want of
military equipment and training was incredible and assured those
disasters that quickly fell upon us. The Federalist opposition to the
war grew ever bolder, ever more bitter. The Massachusetts House of
Representatives issued an "Address" to the people, urging the
organization of a "_peace party_," adjuring "loud and deep ...
disapprobation of this war," and demanding that nobody enlist in the
army.[124] Pamphlets were widely circulated, abusing the American
Government and upholding the British cause. The ablest of these, "Mr.
Madison's War," was by John Lowell of Boston.
The President, he said, "impelled" Congress to declare an "offensive"
war against Great Britain. Madison was a member of "the _French_ party."
British impressment was the pursuance of a sound policy; the British
doctrine--once a British subject, always a British subject--was
unassailable. The Orders in Council were just; the execution of them
"moderation" itself. On every point, in short, the British Government
was right; the French, diabolical; the American, contemptible and wrong.
How trivial America's complaints, even if there was a real basis for
them, in view of Great Britain's unselfish struggle against "the
gigantic dominion of France."
If that Power, "swayed" by that satanic genius, Napoleon, should win,
would she not take Nova Scotia, Canada, Louisiana, the Antilles,
Florida, South America? After these conquests, would not the United
States, "the only remaining republic," be conquered. Most probably. What
then ought America to do?" In war offensive and unjust, the citizens are
not only obliged not to take part, but by the laws of God, and of civil
society, they are bound to abstain." What were the rights of citizens in
war-time? To oppose the war by tongue and pen, if they thought the war
to be wrong, and to refuse to serve if called "contrary to the
Constitution."[125]
Such was the Federalism of 1812-15, such the arguments that would have
been urged for the election of Marshall had he been chosen as the peace
candidate. But the peace Republicans of New York nominated the able,
cunning, and politically corrupt De Witt Clinton; and this man, who had
assured the Federalists that he favored an "honourable peace" with
England,[126] was endorsed by a Federalist caucus as the anti-war
standard-bearer,[127] though not without a swirl of acrimony and
dissension.
But for the immense efforts of Clinton to secure the nomination, and the
desire of the Federalists and all conservatives that Marshall should
continue as Chief Justice,[128] it is possible that he might have been
named as the opponent of Madison in the Presidential contest of 1812. "I
am far enough from desiring Clinton for President of the United States,"
wrote Pickering in the preceding July; "I would infinitely prefer
another Virginian--if Judge Marshall could be the man."[129]
Marshall surely would have done better than Clinton, who, however,
carried New York, New Jersey, Delaware, Maryland, and all the New
England States except Vermont. The mercantile classes would have rallied
to Marshall's standard more enthusiastically than to Clinton's. The
lawyers generally would have worked hard for him. The Federalists, who
accepted Clinton with repugnance, would have exerted themselves to the
utmost for Marshall, the ideal representative of Federalism. He was
personally very strong in North Carolina; the capture of Pennsylvania
might have been possible;[130] Vermont might have given him her votes.
The Federalist resistance to the war grew more determined as the months
wore on. Throughout New England the men of wealth, nearly all of whom
were Federalists, declined to subscribe to the Government loans.[131]
The Governors of the New England States refused to aid the National
Government with the militia.[132] In Congress the Federalists were
obstructing war measures and embarrassing the Government in every way
their ingenuity could devise. One method was to force the Administration
to tell the truth about Napoleon's pretended revocation of his obnoxious
decree. A resolution asking the President to inform the House "when, by
whom, and in what manner, the first intelligence was given to this
Government" of the St. Cloud Decree, was offered by Daniel Webster,[133]
who had been elected to Congress from New Hampshire as the fiercest
youthful antagonist of the war in his State.[134] The Republicans
agreed, and Webster's resolution was passed by a vote of 137 yeas to
only 26 nays.[135]
In compliance the President transmitted a long report. It was signed by
the Secretary of State, James Monroe, but bears the imprint of Madison's
lucid mind. The report states the facts upon which Congress was
compelled to declare war and demonstrates that the Decree of St. Cloud
had nothing to do with our militant action, since it was not received
until more than a month after our declaration of war. Then follow
several clear and brilliant paragraphs setting forth the American view
of the causes and purposes of the war.[136]
Timothy Pickering was not now in the Senate. The Republican success in
Massachusetts at the State election of 1810 had given the Legislature to
that party,[137] and the pugnacious Federalist leader was left at home.
There he raged and intrigued and wrote reams of letters. Monroe's report
lent new fury to his always burning wrath, and he sent that document,
with his malediction upon it, to John Marshall at Richmond. In reply the
Chief Justice said that the report "contains a labored apology for
France but none for ourselves. It furnishes no reason for our tame
unmurmuring acquiescence under the double insult of withholding this
paper [Decree of St. Cloud] from us & declaring in our face that it has
been put in our possession.
"The report is silent on another subject of still deeper interest. It
leaves unnoticed the fact that the Berlin & Milan decrees were certainly
not repealed by that insidious decree of April since it had never been
communicated to the French courts and cruizers, & since their cruizers
had at a period subsequent to the pretended date of that decree
received orders to continue to execute the offensive decrees on American
vessels.
"The report manifests no sensibility at the disgraceful circumstances
which tend strongly to prove that this paper was fabricated to satisfy
the importunities of Mr. Barlow, was antedated to suit French purposes;
nor at the contempt manifested for the feelings of Americans and their
government, by not deigning so to antedate it as to save the credit of
our Administration by giving some plausibility to their assertion that
the repeal had taken place on the 1^{st} of Nov^r--But this is a subject
with which I dare not trust myself."
The plight of the American land forces, the splendid and unrivaled
victories of the American Navy, apparently concerned Marshall not at
all. His eyes were turned toward Europe; his ears strained to catch the
sounds from foreign battle-fields.
"I look with anxious solicitude--with mingled hope & fear," he
continues, "to the great events which are taking place in the north of
Germany. It appears probable that a great battle will be fought on or
near the Elbe & never had the world more at stake than will probably
depend on that battle.
"Your opinions had led me to hope that there was some prospect for a
particular peace for ourselves. My own judgement, could I trust it,
would tell me that peace or war will be determined by the events in
Europe."[138]
[Illustration: Tim Pickering]
The "great battle" which Marshall foresaw had been fought nearly eight
weeks before his letter was written. Napoleon had been crushingly
defeated at Leipzig in October, 1813, and the British, Prussian, and
other armies which Great Britain had combined against him, were already
invading France. When, later, the news of this arrived in America, it
was hailed by the Federalists with extravagant rejoicings.[139]
Secession, if the war were continued, now became the purpose of the more
determined Federalist leaders. It was hopeless to keep up the struggle,
they said. The Administration had precipitated hostilities without
reason or right, without conscience or sense.[140] The people never had
favored this wretched conflict; and now the tyrannical Government,
failing to secure volunteers, had resorted to conscription--an
"infamous" expedient resorted to in brutal violation of the
Constitution.[141] So came the Hartford Convention which the cool wisdom
of George Cabot saved from proclaiming secession.[142]
Of the two pretenses for war against Great Britain, the Federalists
alleged that one had been removed even before we declared war, and that
only the false and shallow excuse of British impressment of American
seamen remained. Madison and Monroe recognized this as the one great
remaining issue, and an Administration pamphlet was published asserting
the reason and justice of the American position. This position was that
men of every country have a natural right to remove to another land and
there become citizens or subjects, entitled to the protection of the
government of the nation of their adoption. The British principle, on
the contrary, was that British subjects could never thus expatriate
themselves, and that, if they did so, the British Government could seize
them wherever found, and by force compel them to serve the Empire in any
manner the Government chose to direct.
Monroe's brother-in-law, George Hay, still the United States Attorney
for the District of Virginia, was selected to write the exposition of
the American view. It seems probable that his manuscript was carefully
revised by Madison and Monroe, and perhaps by Jefferson.[143] Certainly
Hay stated with singular precision the views of the great Republican
triumvirate. The pamphlet was entitled "A Treatise on Expatriation." He
began: "I hold in utter reprobation the idea that a man is bound by an
obligation, permanent and unalterable, to the government of a country
which he has abandoned and his allegiance to which he has solemnly
adjured."[144]
Immediately John Lowell answered.[145] Nothing keener and more spirited
ever came from the pen of that gifted man. "The presidential
pamphleteer," as Lowell called Hay, ignored the law. The maxim, once a
subject always a subject, was as true of America as of Britain. Had not
Ellsworth, when Chief Justice, so decided in the famous case of Isaac
Williams?[146] Yet Hay sneered at the opinion of that distinguished
jurist.[147]
Pickering joyfully dispatched Lowell's brochure to Marshall, who lost
not a moment in writing of his admiration. "I had yesterday the
pleasure of receiving your letter of the 8th accompanying M^r Lowell's
very masterly review of the treatise on expatriation. I have read it
with great pleasure, & thank you very sincerely for this mark of your
recollection.
"Could I have ever entertained doubts on the subject, this review would
certainly have removed them. Mingled with much pungent raillery is a
solidity of argument and an array of authority which in my judgement is
entirely conclusive. But in truth it is a question upon which I never
entertained a scintilla of doubt; and have never yet heard an argument
which ought to excite a doubt in any sound and reflecting mind. It will
be to every thinking American a most afflicting circumstance, should our
government on a principle so completely rejected by the world proceed to
the execution of unfortunate, of honorable, and of innocent men."[148]
Astonishing and repellent as these words now appear, they expressed the
views of every Federalist lawyer in America. The doctrine of perpetual
allegiance was indeed then held and practiced by every government except
our own,[149] nor was it rejected by the United States until the
Administration became Republican. Marshall, announcing the opinion of
the Supreme Court in 1804, had held that an alien could take lands in
New Jersey because he had lived in that State when, in 1776, the
Legislature passed a law making all residents citizens.[150] Thus he had
declared that an American citizen did not cease to be such because he
had become the subject of a foreign power. Four years later, in another
opinion involving expatriation, he had stated the law to be that a
British subject, born in England before 1775, could not take, by devise,
lands in Maryland, the statute of that State forbidding aliens from thus
acquiring property there.[151] In both these cases, however, Marshall
refrained from expressly declaring in terms against the American
doctrine.
Even as late as 1821 the Chief Justice undoubtedly retained his opinion
that the right of expatriation did not exist,[152] although he did not
say so in express terms. But in Marshall's letter on Lowell's pamphlet
he flatly avows his belief in the principle of perpetual allegiance, any
direct expression on which he so carefully avoided when deciding cases
involving it.
Thus the record shows that John Marshall was as bitterly opposed to the
War of 1812 as was Pickering or Otis or Lowell. So entirely had he
become one of "the aristocracy of talents of reputation, & of property,"
as Plumer, in 1804, had so accurately styled the class of which he
himself was then a member,[153] that Marshall looked upon all but one
subject then before the people with the eyes of confirmed reaction. That
subject was Nationalism. To that supreme cause he was devoted with all
the passion of his deep and powerful nature; and in the service of that
cause he was soon to do much more than he had already performed.
Our second war with Great Britain accomplished none of the tangible and
immediate objects for which it was fought. The British refused to
abandon "the right" of impressment; or to disclaim the British
sovereignty of the oceans whenever they chose to assert it; or to pay a
farthing for their spoliation of American commerce. On the other hand,
the British did not secure one of their demands.[154] The peace treaty
did little more than to end hostilities.
But the war achieved an inestimable good--it de-Europeanized America. It
put an end to our thinking and feeling only in European terms and
emotions. It developed the spirit of the new America, born since our
political independence had been achieved, and now for the first time
emancipated from the intellectual and spiritual sovereignty of the Old
World. It had revealed to this purely American generation a
consciousness of its own strength; it could exult in the fact that at
last America had dared to fight.
The American Navy, ship for ship, officer for officer, man for man, had
proved itself superior to the British Navy, the very name of which had
hitherto been mentioned only in terror or admiration of its
unconquerable might. In the end, raw and untrained American troops had
beaten British regulars. American riflemen of the West and South had
overwhelmed the flower of all the armies of Europe. An American frontier
officer, Andrew Jackson, had easily outwitted some of Great Britain's
ablest and most experienced professional generals. In short, on land and
sea America had stood up to, had really beaten, the tremendous Power
that had overthrown the mighty Napoleon.
Such were the feelings and thoughts of that Young America which had come
into being since John Marshall had put aside his Revolutionary uniform
and arms. And in terms very much like those of the foregoing paragraph
the American people generally expressed their sentiments.
Moreover, the Embargo, the Non-Intercourse and Non-Importation Acts, the
British blockades, the war itself, had revolutionized the country
economically and socially. American manufacturing was firmly
established. Land travel and land traffic grew to proportions never
before imagined, never before desired. The people of distant sections
became acquainted.
The eyes of all Americans, except those of the aged or ageing, were
turned from across the Atlantic Ocean toward the boundless, the alluring
West--their thoughts diverted from the commotions of Europe and the
historic antagonism of foreign nations, to the economic conquest of a
limitless and virgin empire and to the development of incalculable and
untouched resources, all American and all their own.
The migration to the West, which had been increasing for years, now
became almost a folk movement. The Eastern States were drained of their
young men and women. Some towns were almost depopulated.[155] And these
hosts of settlers carried into wilderness and prairie a spirit and pride
that had not been seen or felt in America since the time of the
Revolution. But their high hopes were to be quickly turned into despair,
their pride into ashes; for a condition was speedily to develop that
would engulf them in disaster. It was this situation which was to call
forth some of the greatest of Marshall's Constitutional opinions. This
forbidding future, however, was foreseen by none of that vast throng of
home-seekers crowding every route to the "Western Country," in the year
of 1815. Only the rosiest dreams were theirs and the spirited
consciousness that they were Americans, able to accomplish all things,
even the impossible.
It was then a new world in which John Marshall found himself, when, in
his sixtieth year, the war which he so abhorred came to an end. A state
of things surrounded him little to his liking and yet soon to force from
him the exercise of the noblest judicial statesmanship in American
history. From the extreme independence of this new period, the intense
and sudden Nationalism of the war, the ideas of local sovereignty
rekindled by the New England Federalists at the dying fires that
Jefferson and the Republicans had lighted in 1798, and from the play of
conflicting interests came a reaction against Nationalism which it was
Marshall's high mission to check and to turn into channels of National
power, National safety, and National well-being.
FOOTNOTES:
[1] "The navy of Britain is our shield." (Pickering: _Open Letter_ [Feb.
16, 1808] _to Governor James Sullivan_, 8; _infra_, 5, 9-10, 25-26,
45-46.)
[2] _Diary and Letters of Gouverneur Morris_: Morris, II, 548.
[3] Jefferson to D'Ivernois, Feb. 6, 1795, _Works of Thomas Jefferson_:
Ford, VIII, 165.
[4] Jefferson to Short, Jan. 3, 1793, _ib._ VII, 203; same to Mason,
Feb. 4, 1791, _ib._ VI, 185.
[5] See vol. II, 354, of this work.
[6] _Ib._ 133-39.
[7] The Fairfax transaction.
[8] The phrase used by the Federalists to designate the opponents of
democracy.
[9] See vol. II, 24-27, 92-96, 106-07, 126-28, of this work.
[10] Ames to Dwight, Oct. 31, 1803, _Works of Fisher Ames_: Ames, I,
330; and see Ames to Gore, Nov. 16, 1803, _ib._ 332; also Ames to
Quincy, Feb. 12, 1806, _ib._ 360.
[11] Rutledge to Otis, July 29, 1806, Morison: _Life and Letters of
Harrison Gray Otis_, I, 282.
[12] The student should examine the letters of Federalists collected in
Henry Adams's _New-England Federalism_; those in the _Life and
Correspondence of Rufus King_; in Lodge's _Life and Letters of George
Cabot_; in the _Works of Fisher Ames_ and in Morison's _Otis_.
[13] See Adams: _History of the United States_, IV, 29.
[14] Once in a long while an impartial view was expressed: "I think
myself sometimes in an Hospital of Lunaticks, when I hear some of our
Politicians eulogizing Bonaparte because he humbles the English; &
others worshipping the latter, under an Idea that they will shelter us,
& take us under the Shadow of their Wings. They would join, rather, to
deal us away like Cattle." (Peters to Pickering, Feb. 4, 1807, Pickering
MSS. Mass. Hist. Soc.)
[15] See Harrowby's Circular, Aug. 9, 1804, _American State Papers,
Foreign Relations_, III, 266.
[16] See Hawkesbury's Instructions, Aug. 17, 1805, _ib._
[17] Fox to Monroe, April 8 and May 16, 1806, _ib._ 267.
[18] The Berlin Decree, Nov. 21, 1806, _ib._ 290-91.
[19] Orders in Council, Jan. 7 and Nov. 11, 1807, _Am. State Papers,
For. Rel._ III, 267-73; and see Channing: _Jeffersonian System_, 199.
[20] Dec. 17, 1807, _Am. State Papers, For. Rel._ III, 290.
[21] Adams: _U.S._ V, 31.
[22] "England's naval power stood at a height never reached before or
since by that of any other nation. On every sea her navies rode, not
only triumphant, but with none to dispute their sway." (Roosevelt:
_Naval War of 1812_, 22.)
[23] See Report, Secretary of State, July 6, 1812, _Am. State Papers,
For. Rel._ III, 583-85.
"These decrees and orders, taken together, want little of amounting to a
declaration that every neutral vessel found on the high seas, whatsoever
be her cargo, and whatsoever foreign port be that of her departure or
destination, shall be deemed lawful prize." (Jefferson to Congress,
Special Message, March 17, 1808, _Works:_ Ford, XI, 20.)
"The only mode by which either of them [the European belligerents] could
further annoy the other ... was by inflicting ... the torments of
starvation. This the contending parties sought to accomplish by putting
an end to all trade with the other nation." (Channing: _Jeff. System_,
169.)
[24] Theodore Roosevelt, who gave this matter very careful study, says
that at least 20,000 American seamen were impressed. (Roosevelt,
footnote to 42.)
"Hundreds of American citizens had been taken by force from under the
American flag, some of whom were already lying beneath the waters off
Cape Trafalgar." (Adams: _U. S._ III, 202.)
See also Babcock: _Rise of American Nationality_, 76-77; and Jefferson
to Crawford, Feb. 11, 1815, _Works_: Ford, XI, 451.
[25] See Channing: _Jeff. System_, 184-94. The principal works on the
War of 1812 are, of course, by Henry Adams and by Alfred Mahan. But
these are very extended. The excellent treatments of that period are the
_Jeffersonian System_, by Edward Channing, and _Rise of American
Nationality_, by Kendric Charles Babcock, and _Life and Letters of
Harrison Gray Otis_, by Samuel Eliot Morison. The latter work contains
many valuable letters hitherto unpublished.
[26] But see Jefferson to Madison, Aug. 27, 1805, _Works_: Ford, X,
172-73; same to Monroe, May 4, 1806, ib. 262-63; same to same, Oct. 26,
1806, _ib._ 296-97; same to Lincoln, June 25, 1806, _ib._ 272; also see
Adams: _U.S._ III, 75. While these letters speak of a temporary alliance
with Great Britain, Jefferson makes it clear that they are merely
diplomatic maneuvers, and that, if an arrangement was made, a heavy
price must be paid for America's coöperation.
Jefferson's letters, in general, display rancorous hostility to Great
Britain. See, for example, Jefferson to Paine, Sept. 6, 1807, _Works_:
Ford, X, 493; same to Leib, June 23, 1808, _ib._ XI, 34-35; same to
Meigs, Sept. 18, 1813, _ib._ 334-35; same to Monroe, Jan. 1, 1815, _ib._
443.
[27] Jefferson to Dearborn, July 16, 1810, _ib._ 144.
[28] _Annals_, 9th Cong. 1st Sess. 1259-62; also see "An Act to Prohibit
the Importation of Certain Goods, Wares, and Merchandise," chap. 29,
1806, _Laws of the United States_, IV, 36-38.
[29] See vol. III, 475-76, of this work.
[30] Jefferson's Proclamation, July 2, 1807, _Works_: Ford, X, 434-47;
and _Messages and Papers of the Presidents:_ Richardson, I, 421-24.
[31] "This country has never been in such a state of excitement since
the battle of Lexington." (Jefferson to Bowdoin, July 10, 1807, _Works_:
Ford, X, 454; same to De Nemours, July 14, 1807, _ib._ 460.)
For Jefferson's interpretation of Great Britain's larger motive for
perpetrating the Chesapeake crime, see Jefferson to Paine, Sept. 6,
1807, _ib._ 493.
[32] Adams: _U.S._ IV, 38.
[33] Lowell: _Peace Without Dishonor--War Without Hope_: by "A Yankee
Farmer," 8. The author of this pamphlet was the son of one of the new
Federal judges appointed by Adams under the Federalist Judiciary Act of
1801.
[34] See _Peace Without Dishonor--War Without Hope_, 39-40.
[35] Giles to Monroe, March 4, 1807; Anderson: _William Branch Giles--A
Study in the Politics of Virginia, 1790-1830_, 108.
Thomas Ritchie, in the Richmond Enquirer, properly denounced the New
England Federalist headquarters as a "hot-bed of treason." (_Enquirer_,
Jan. 24 and April 4, 1809, as quoted by Ambler: _Thomas Ritchie--A Study
in Virginia Politics_, 46.)
[36] Adams: _U.S._ IV, 41-44, 54.
[37] Jefferson to Leiper, Aug. 21, 1807, _Works_: Ford, X, 483-84.
Jefferson tenaciously clung to his prejudice against Great Britain: "The
object of England, long obvious, is to claim the ocean as her domain....
We believe no more in Bonaparte's fighting merely for the liberty of the
seas, than in Great Britain's fighting for the liberties of mankind."
(Jefferson to Maury, April 25, 1812, _ib._ XI, 240-41.) He never failed
to accentuate his love for France and his hatred for Napoleon.
[38] "During the present paroxysm of the insanity of Europe, we have
thought it wisest to break off all intercourse with her." (Jefferson to
Armstrong, May 2, 1808, _ib._ 30.)
[39] "Three alternatives alone are to be chosen from. 1. Embargo. 2.
War. 3. Submission and tribute, &, wonderful to tell, the last will not
want advocates." (Jefferson to Lincoln, Nov. 13, 1808, _ib._ 74.)
[40] See Act of December 22, 1807 (_Annals_, 10th Cong. 1st Sess.
2814-15); of January 9, 1808 (_ib._ 2815-17); of March 12, 1808 (_ib._
2839-42); and of April 25, 1808 (_ib._ 2870-74); Treasury Circulars of
May 6 and May 11, 1808 (_Embargo Laws_, 19-20, 21-22); and Jefferson's
letter "to the Governours of Orleans, Georgia, South Carolina,
Massachusetts and New Hampshire," May 6, 1808 (_ib._ 20-21).
Joseph Hopkinson sarcastically wrote: "Bless the Embargo--thrice bless
the Presidents distribution Proclamation, by which his minions are to
judge of the appetites of his subjects, how much food they may
reasonably consume, and who shall supply them ... whether under the
Proclamation and Embargo System, a child may be lawfully born without a
clearing out at the Custom House." (Hopkinson to Pickering, May 25,
1808, Pickering MSS. Mass. Hist. Soc.)
[41] Professor Channing says that "the orders in council had been passed
originally to give English ship-owners a chance to regain some of their
lost business." (Channing: _Jeff. System_, 261.)
[42] Indeed, Napoleon, as soon as he learned of the American Embargo
laws, ordered the seizure of all American ships entering French ports
because their captains or owners had disobeyed these American statutes
and, therefore, surely were aiding the enemy. (Armstrong to Secretary of
State, April 23, postscript of April 25, 1808, _Am. State Papers, For.
Rel._ III, 291.)
[43] Morison: _Otis_, II, 10-12; see also Channing: _Jeff. System_, 183.
[44] _Annals_, 10th Cong. 2d Sess. 22.
The intensity of the interest in the Embargo is illustrated by Giles's
statement in his reply to Hillhouse that it "almost ... banish[ed] every
other topic of conversation." (_Ib._ 94.)
[45] Four years earlier, Pickering had plotted the secession of New
England and enlisted the support of the British Minister to accomplish
it. (See vol. III, chap. VII, of this work.) His wife was an
Englishwoman, the daughter of an officer of the British Navy. (Pickering
and Upham: _Life of Timothy Pickering_, I, 7; and see Pickering to his
wife, Jan. 1, 1808, _ib._ IV, 121.) His nephew had been Consul-General
at London under the Federalist Administrations and was at this time a
merchant in that city. (Pickering to Rose, March 22, 1808, _New-England
Federalism:_ Adams, 370.) Pickering had been, and still was, carrying on
with George Rose, recently British Minister to the United States, a
correspondence all but treasonable. (Morison: _Otis_, II, 6.)
[46] _Annals_, 10th Cong. 2d Sess. 175, 177-78.
[47] _Annals_, 10th Cong. 2d Sess. 193.
[48] _Ib._ 279-82.
[49] Marshall to Pickering, Dec. 19, 1808, Pickering MSS. Mass. Hist.
Soc.
[50] See vol. II, 509-14, of this work.
[51] Morison: _Otis_, II, 3-4.
[52] "The tories of Boston openly threaten insurrection." (Jefferson to
Dearborn, Aug. 9, 1808, _Works_: Ford, XI, 40.) And see Morison: _Otis_,
II, 6; _Life and Correspondence of Rufus King_: King, V, 88; also see
Otis to Quincy, Dec. 15, 1808, Morison: _Otis_, II, 115.
[53] Monroe to Taylor, Jan. 9, 1809, _Branch Historical Papers_, June,
1908, 298.
[54] Adams to Rush, July 25, 1808, _Old Family Letters_, 191-92.
[55] _Annals_, 10th Cong. 2d Sess. III, 1798-1804.
[56] Morison: _Otis_, II, 10. These resolutions denounced "'all those
who shall assist in enforcing on others the arbitrary & unconstitutional
provisions of this [Force Act]' ... as 'enemies to the Constitution of
the United States and of this State, and hostile to the Liberties of the
People.'" (Boston Town Records, 1796-1813, as quoted in _ib._; and see
McMaster: _History of the People of the United States_, III, 328.)
[57] McMaster, III, 329.
[58] McMaster, III, 329-30; and see Morison: _Otis_, II, 4.
The Federalist view was that the "Force Act" and other extreme portions
of the Embargo laws were "so violently and palpably unconstitutional, as
to render a reference to the judiciary absurd"; and that it was "the
inherent right of the people to resist measures fundamentally
inconsistent with the principles of just liberty and the Social
compact." (Hare to Otis, Feb. 10, 1814, Morison: _Otis_, II, 175.)
[59] McMaster, III, 331-32.
[60] Morison: _Otis_, II, 3, 8.
[61] Hanson to Pickering, Jan. 17, 1810, N_.E. Federalism_: Adams, 382.
[62] Humphrey Marshall to Pickering, March 17, 1809, Pickering MSS.
Mass. Hist. Soc.
[63] See vol. III, chap. X, of this work.
[64] 5 Cranch, 133.
[65] _Ib._ 117.
[66] 5 Cranch, 135.
[67] 5 Cranch, 136, 141. (Italics the author's.)
[68] The Legislature of Pennsylvania adopted a resolution, April 3,
1809, proposing an amendment to the National Constitution for the
establishment of an "impartial tribunal" to decide upon controversies
between States and the Nation. (_State Documents on Federal Relations_:
Ames, 46-48.) In reply Virginia insisted that the Supreme Court,
"selected from those ... who are most celebrated for virtue and legal
learning," was the proper tribunal to decide such cases. (_Ib._ 49-50.)
This Nationalist position Virginia reversed within a decade in protest
against Marshall's Nationalist opinions. Virginia's Nationalist
resolution of 1809 was read by Pinkney in his argument of Cohens _vs._
Virginia. (See _infra_, chap. VI.)
[69] See Madison to Snyder, April 13, 1809, _Annals_, 11th Cong. 2d
Sess. 2269; also McMaster, V, 403-06.
[70] _Annals_, 10th Cong. 2d Sess. 1824-30.
[71] Erskine to Smith, April 18 and 19, 1809, _Am. State Papers, For.
Rel._ III, 296.
[72] Adams: _U.S._ V, 73-74; see also McMaster, III, 337.
[73] Adams: _U.S._ V, 87-89, 112.
[74] Proclamation of Aug. 9, 1809, _Am. State Papers, For. Rel._ III,
304.
[75] Tyler: _Letters and Times of the Tylers_, I, 229. For an expression
by Napoleon on this subject, see Adams: _U.S._ V, 137.
[76] See vol. II, 28-29, of this work.
[77] "The appointment of Jackson and the instructions given to him might
well have justified a declaration of war against Great Britain the
moment they were known." (Channing: _Jeff. System_, 237.)
[78] Circular, Nov. 13, 1809, _Am. State Papers, For. Rel._ III, 323;
_Annals_, 11th Cong. 2d Sess. 743.
[79] Canning to Pinkney, Sept. 23, 1808, _Am. State Papers, For. Rel._
III, 230-31.
[80] Story to White, Jan. 17, 1809, _Life and Letters of Joseph Story_:
Story, I, 193-94. There were two letters from Canning to Pinkney, both
dated Sept. 23, 1808. Story probably refers to one printed in the
_Columbian Centinel_, Boston, Jan. 11, 1809.
"It seems as if in New England the federalists were forgetful of all the
motives for union & were ready to destroy the fabric which has been
raised by the wisdom of our fathers. Have they altogether lost the
memory of Washington's farewell address?... The riotous proceedings in
some towns ... no doubt ... are occasioned by the instigation of men,
who keep behind the curtain & yet govern the wires of the puppet shew."
(Story to his brother, Jan. 3, 1809, Story MSS. Mass. Hist. Soc.)
"In New England, and even in New York, there appears a spirit hostile to
the existence of our own government." (Plumer to Gilman, Jan. 24, 1809,
Plumer: _Life of William Plumer_, 368.)
[81] Adams: _U.S._ V, 158.
[82] _Annals_, 11th Cong. 2d Sess. 481.
[83] _Ib._ 943. The resolution was passed over the strenuous resistance
of the Federalists.
[84] Probably that of Madison, July 21, 1808, _Annals_, 10th Cong. 2d
Sess. 1681.
[85] Marshall to Quincy, April 23, 1810, Quincy: _Life of Josiah
Quincy_, 204.
[86] Tyler to Jefferson, May 12, 1810, Tyler: _Tyler_, I, 247; and see
next chapter.
[87] Adams: _U.S._ V, 212-14; and see Morison: _Otis_, II, 18-19.
[88] Turreau, then the French Minister at Washington, thus reported to
his Government: "To-day not only is the separation of New England openly
talked about, but the people of those five States wish for this
separation, pronounce it, openly prepare it, will carry it out under
British protection"; and he suggests that "perhaps the moment has come
for forming a party in favor of France in the Central and Southern
States, whenever those of the North, having given themselves a separate
government under the support of Great Britain, may threaten the
independence of the rest." (Turreau to Champagny, April 20, 1809, as
quoted in Adams: _U.S._ V, 36.)
[89] For account of Jackson's reception in Boston and the effects of it,
see Adams: _U.S._ 215-17, and Morison: _Otis_, 20-22.
[90] On the other hand, Jefferson, out of his bottomless prejudice
against Great Britain, drew venomous abuse of the whole British nation:
"What is to restore order and safety on the ocean?" he wrote; "the death
of George III? Not at all. He is only stupid;... his ministers ...
ephemeral. But his nation is permanent, and it is that which is the
tyrant of the ocean. The principle that force is right, is become the
principle of the nation itself. They would not permit an honest
minister, were accident to bring such an one into power, to relax their
system of lawless piracy." (Jefferson to Rodney, Feb. 10, 1810, _Works_:
Ford, XI, 135-36.)
[91] Champagny, Duke de Cadore, to Armstrong, Aug. 5, 1810 (_Am._ _State
Papers, For. Rel._ III, 386-87), and Proclamation, Nov. 2, 1810 (_ib._
392); and see Adams: _U.S._ V, 303-04.
[92] Adams: _U.S._ V, 346.
[93] Marshall to Pickering, Feb. 22, 1811, Pickering MSS. Mass. Hist.
Soc.
[94] _Annals_, 11th Cong. 3d Sess. 525.
Daniel Webster was also emphatically opposed to the admission of new
States: "Put in a solemn, decided, and spirited Protest against making
new States out of new Territories. Affirm, in direct terms, that New
Hampshire has never agreed to favor political connexions of such
intimate nature, with any people, out of the limits of the U.S. as they
existed at the time of the compact." (Webster to his brother, June 4,
1813, _Letters of Daniel Webster_: Van Tyne, 37.)
[95] _Annals_, 11th Cong. 3d Sess. 542.
[96] _Ib._ 1st and 2d Sess. 579-82.
[97] _Annals_, 12th Cong. 1st Sess. 601; also see Adams: _U.S._ V,
189-90.
[98] Adams: _U.S._ V, 316.
[99] Richardson, I, 499-505; _Am. State Papers, For. Rel._ III, 567-70.
[100] _Annals_, 12th Cong. 1st Sess. 1637. The Federalists who voted for
war were: Joseph Kent of Maryland, James Morgan of New Jersey, and
William M. Richardson of Massachusetts.
Professor Channing thus states the American grievances: "Inciting the
Indians to rebellion, impressing American seamen and making them serve
on British war-ships, closing the ports of Europe to American commerce,
these were the counts in the indictment against the people and
government of Great Britain." (Channing: _Jeff. System_, 260.) See also
_ib._ 268, and Jefferson's brilliant statement of the causes of the war,
Jefferson to Logan, Oct. 3, 1813, _Works_: Ford, XI, 338-39.
"The United States," says Henry Adams, "had a superfluity of only too
good causes for war with Great Britain." (Adams: _Life of Albert
Gallatin_, 445.) Adams emphasizes this: "The United States had the right
to make war on England with or without notice, either for her past
spoliations, her actual blockades, her Orders in Council other than
blockades, her Rule of 1756, her impressments, or her attack on the
'Chesapeake,' not yet redressed,--possibly also for other reasons less
notorious." (Adams: _U.S._ V, 339.) And see Roosevelt, chaps, I and II.
[101] _Annals_, 12th Cong. 1st Sess. 1675-82.
[102] Salem _Gazette_, July 7, 1812, as quoted in Morison: _Otis_, I,
298.
[103] Story to Williams, Aug. 24, 1812, Story, I, 229.
[104] Pickering to Pennington, July 12, 1812, _N.E. Federalism_: Adams,
389.
[105] Of course the National courts were attacked: "Attempts ... are
made ... to break down the Judiciary of the United States through the
newspapers, and mean and miserable insinuations are made to weaken the
authority of its judgments." (Story to Williams, Aug. 3, 1813, Story, I,
247.) And again: "Conspirators, and traitors are enabled to carry on
their purposes almost without check." (Same to same, May 27, 1813, _ib._
244.) Story was lamenting that the National courts had no common-law
jurisdiction. Some months earlier he had implored Nathaniel Williams,
Representative in Congress from Story's district, to "induce Congress
to give the Judicial Courts of the United States power to punish all
crimes ... against the Government.... Do not suffer conspiracies to
destroy the Union." (Same to same, Oct. 8, 1812, _ib._ 243.)
Jefferson thought the people were loyal: "When the questions of
separation and rebellion shall be nakedly proposed ... the Gores and the
Pickerings will find their levees crowded with silk stocking gentry, but
no yeomanry." (Jefferson to Gerry, June 11, 1812, _Works_: Ford, XI,
257.)
[106] Stoddert to McHenry, July 15, 1812, Steiner: _Life and
Correspondence of James McHenry_, 581-83.
[107] "To the Citizens of the United States," in the _Spirit of
Seventy-Six_, July 17, 1812.
[108] Stoddert refers to this person as "Jo Davies." By some this has
been thought to refer to Marshall's brother-in-law, "Jo" Daveiss of
Kentucky. But the latter was killed in the Battle of Tippecanoe,
November 7, 1811.
While the identity of Stoddert's agent cannot be established with
certainty, he probably was one John Davis of Salisbury, England, as
described in the text. "Jo" was then used for John as much as for
Joseph; and Davis was frequently spelled "Davies." A John or "Jo" Davis
or Davies, an Englishman, was a very busy person in America during the
first decade of the nineteenth century. (See Loshe: _Early American
Novel_, 74-77.) Naturally he would have been against the War of 1812,
and he was just the sort of person that an impracticable man like
Stoddert would have chosen for such a mission.
[109] Stoddert to McHenry, July 15, 1812, Steiner, 582.
[110] See King, V, 266.
[111] Adams: _U.S._ V, 375-78.
[112] Smith: _An Address to the People of the United States_, 42-43.
[113] Marshall to Smith, July 27, 1812, Dreer MSS. "American Lawyers,"
Pa. Hist. Soc.
[114] _Am. State Papers, For. Rel._ III, 603; and see Charming: _U.S._
IV, 449.
[115] See vol. II, 243-44, 245-47, of this work.
[116] Marshall to Smith, July 27, 1812, Dreer MSS. "American Lawyers,"
Pa. Hist. Soc.
A single quotation from the letters of Southern Federalists will show
how accurately Marshall interpreted Federalist feeling during the War of
1812: "Heaven grant that ... our own Country may not be found
ultimately, a solitary friend of this great Robber of Nations."
(Tallmadge to McHenry, May 30, 1813, Steiner, 598.) The war had been in
progress more than ten months when these words were written.
[117] Story to Williams, Oct. 8, 1812, Story, I, 243.
[118] Marshall to Monroe, June 25, 1812, Monroe MSS. Lib. Cong.
[119] Marshall, however, was a member of the "Vigilance Committee" of
Richmond, and took an important part in its activities. (_Virginia
Magazine of History and Biography_, VII, 230-31.)
[120] _Report of the Commissioners appointed to view Certain Rivers
within the Commonwealth of Virginia_, 5.
[121] A practicable route for travel and transportation between Virginia
and the regions across the mountains had been a favorite project of
Washington. The Potomac and James River Company, of which Marshall when
a young lawyer had become a stockholder (vol. I, 218, of this work), was
organized partly in furtherance of this project. The idea had remained
active in the minds of public men in Virginia and was, perhaps, the one
subject upon which they substantially agreed.
[122] Much of the course selected by Marshall was adopted in the
building of the Chesapeake and Ohio Railway. In 1869, Collis P.
Huntington made a trip of investigation over part of Marshall's route.
(Nelson: _Address--The Chesapeake and Ohio Railway_, 15.)
[123] _Report of the Commissioners appointed to view Certain Rivers
within the Commonwealth of Virginia_, 38-39.
[124] Niles: _Weekly Register_, II, 418.
[125] Lowell: _Mr. Madison's War_: by "A New England Farmer."
A still better illustration of Federalist hostility to the war and the
Government is found in a letter of Ezekiel Webster to his brother
Daniel: "Let gamblers be made to contribute to the support of this war,
which was declared by men of no better principles than themselves."
(Ezekiel Webster to Daniel Webster, Oct. 29, 1814, Van Tyne, 53.)
Webster here refers to a war tax on playing-cards.
[126] Harper to Lynn, Sept. 25, 1812, Steiner, 584.
[127] See McMaster, IV, 199-200.
[128] Morison: _Otis_, I, 399.
[129] Pickering to Pennington, July 22, 1812, _N.E. Federalism_: Adams,
389.
[130] The vote of Pennsylvania, with those cast for Clinton, would have
elected Marshall.
[131] Babcock, 157; and see Dewey: _Financial History of the United
States_, 133.
[132] For an excellent statement of the conduct of the Federalists at
this time see Morison: _Otis_, II, 53-66. "The militia of Massachusetts,
seventy thousand in enrolment, well-drilled, and well-equipped, was
definitely withdrawn from the service of the United States in September,
1814." (Babcock, 155.) Connecticut did the same thing. (_Ib._ 156.)
[133] _Annals_, 13th Cong. 1st Sess. 302.
[134] See McMaster, IV, 213-14.
[135] _Annals_, 13th Cong. 1st Sess. 302
[136] _Am. State Papers, For. Rel._ III, 609-12.
[137] The Republican victory was caused by the violent British
partisanship of the Federalist leaders. In spite of the distress the
people suffered from the Embargo, they could not, for the moment,
tolerate Federalist opposition to their own country. (See Adams: _U.S._
V, 215.)
[138] Marshall to Pickering, Dec. 11, 1813, Pickering MSS. Mass. Hist
Soc.
[139] Morison: _Otis_, II, 54-56.
[140] "CURSE THIS GOVERNMENT! I would march at 6 days notice for
Washington ... and I would swear upon the _altar_ never to return till
Madison was buried under the ruins of the capitol." (Herbert to Webster,
April 20, 1813, Van Tyne, 27.)
[141] The Federalists frantically opposed conscription. Daniel Webster,
especially, denounced it. "Is this [conscription] ... consistent with
the character of a free Government?... No, Sir.... The Constitution is
libelled, foully libelled. The people of this country have not
established ... such a fabric of despotism....
"Where is it written in the Constitution ... that you may take children
from their parents ... & compel them to fight the battles of any war, in
which the folly or the wickedness of Government may engage it?... Such
an abominable doctrine has no foundation in the Constitution."
Conscription, Webster said, was a gambling device to throw the dice for
blood; and it was a "horrible lottery." "May God, in his compassion,
shield me from ... the enormity of this guilt." (See Webster's speech on
the Conscription Bill delivered in the House of Representatives,
December 9, 1814, Van Tyne, 56-68; see also Curtis: _Life of Daniel
Webster_, I, 138.)
Webster had foretold what he meant to do: "Of course we shall oppose
such usurpation." (Webster to his brother, Oct. 30, 1814, Van Tyne, 54.)
Again: "The conscription has not come up--if it does it will cause a
storm such as was never witnessed here" [in Washington]. (Same to same,
Nov. 29, 1814, _ib._ 55.)
[142] See Morison: _Otis_, II, 78-199. Pickering feared that Cabot's
moderation would prevent the Hartford Convention from taking extreme
measures against the Government. (See Pickering to Lowell, Nov. 7, 1814,
_N.E. Federalism_: Adams, 406.)
[143] Some sentences are paraphrases of expressions by Jefferson on the
same subject. For example: "I hold the right of expatriation to be
inherent in every man by the laws of nature, and incapable of being
rightfully taken from him even by the united will of every other person
in the nation." (Jefferson to Gallatin, June 26, 1806, _Works_: Ford, X,
273.) Again: "Our particular and separate grievance is only the
impressment of our citizens. We must sacrifice the last dollar and drop
of blood to rid us of that badge of slavery." (Jefferson to Crawford,
Feb. 11, 1815, _ib._ XI, 450-51.) This letter was written at Monticello
the very day that the news of peace reached Washington.
[144] Hay: _A Treatise on Expatriation_, 24.
[145] Lowell: _Review of 'A Treatise on Expatriation'_: by "A
Massachusetts Lawyer."
[146] See vol. III, chap. I, of this work.
[147] See _Review of 'A Treatise on Expatriation_,' 6.
[148] Marshall to Pickering, April 11, 1814, Pickering MSS. Mass. Hist.
Soc.
[149] See Channing: _Jeff. System_, 170-71.
[150] M'Ilvaine _vs._ Coxe's Lessee, 4 Cranch, 209.
[151] Dawson's Lessee _vs._ Godfrey, 4 Cranch, 321.
[152] Case of the Santissima Trinidad _et al._, 1 Brockenbrough, 478-87;
and see 7 Wheaton, 283.
[153] Plumer to Livermore, March 4, 1804, Plumer MSS. Lib. Cong.
[154] For example, the British "right" of impressment must be formally
and plainly acknowledged in the treaty; an Indian dominion was to be
established, and the Indian tribes were to be made parties to the
settlements; the free navigation of the Mississippi was to be guaranteed
to British vessels; the right of Americans to fish in Canadian waters
was to be ended. Demands far more extreme were made by the British press
and public. (See McMaster, IV, 260-74; and see especially Morison:
_Otis_, II, 171.)
[155] McMaster, IV, 383-88.
CHAPTER II
MARSHALL AND STORY
Either the office was made for the man or the man for the
office. (George S. Hillard.)
I am in love with his character, positively in love. (Joseph
Story.)
In the midst of these gay circles my mind is carried to my own
fireside and to my beloved wife. (Marshall.)
Now the man Moses was very meek, above all the men which were
upon the face of the earth. (Numbers XII, 3.)
"It will be difficult to find a character of firmness enough to preserve
his independence on the same bench with Marshall."[156] So wrote Thomas
Jefferson one year after he had ceased to be President. He was
counseling Madison as to the vacancy on the Supreme Bench and one on the
district bench at Richmond, in filling both of which he was, for
personal reasons, feverishly concerned.
We are now to ascend with Marshall the mountain peaks of his career.
Within the decade that followed after the close of our second war with
Great Britain, he performed nearly all of that vast and creative labor,
the lasting results of which have given him that distinctive title, the
Great Chief Justice. During that period he did more than any other one
man ever has done to vitalize the American Constitution; and, in the
performance of that task, his influence over his associates was
unparalleled.[157]
When Justices Chase and Cushing died and their successors Gabriel
Duval[158] and Joseph Story were appointed, the majority of the Supreme
Court, for the first time, became Republican. Yet Marshall continued to
dominate it as fully as when its members were of his own political faith
and views of government.[159] In the whole history of courts there is no
parallel to such supremacy. Not without reason was that tribunal looked
upon and called "Marshall's Court." It is interesting to search for the
sources of his strange power.
These sources are not to be found exclusively in the strength of
Marshall's intellect, surpassing though it was, nor yet in the mere
dominance of his will. Joseph Story was not greatly inferior to Marshall
in mind and far above him in accomplishments, while William Johnson, the
first Justice of the Supreme Court appointed by Jefferson, was as
determined as Marshall and was "strongly imbued with the principles of
southern democracy, bold, independent, eccentric, and sometimes
harsh."[160] Nor did learning give Marshall his commanding influence.
John Jay and Oliver Ellsworth were his superiors in that respect; while
Story so infinitely surpassed him in erudition that, between the two
men, there is nothing but contrast. Indeed, Marshall had no "learning"
at all in the academic sense;[161] we must seek elsewhere for an
explanation of his peculiar influence.
This explanation is, in great part, furnished by Marshall's personality.
The manner of man he was, of course, is best revealed by the
well-authenticated accounts of his daily life. He spent most of his time
at Richmond, for the Supreme Court sat in Washington only a few weeks
each year. He held circuit court at Raleigh as well as at the Virginia
Capital, but the sessions seldom occupied more than a fortnight each. In
Richmond, then, his characteristics were best known; and so striking
were they that time has but little dimmed the memory of them.
Marshall, the Chief Justice, continued to neglect his dress and personal
appearance as much as he did when, as a lawyer, his shabby attire so
often "brought a blush" to the cheeks of his wife,[162] and his manners
were as "lax and lounging" as when Jefferson called them proofs of a
"profound hypocrisy."[163] Although no man in America was less
democratic in his ideas of government, none was more democratic in his
contact with other people. To this easy bonhomie was added a sense of
humor, always quick to appreciate an amusing situation.
When in Richmond, Marshall often did his own marketing and carried home
the purchases he made. The tall, ungainly, negligently clad Chief
Justice, ambling along the street, his arms laden with purchases, was a
familiar sight.[164] He never would hurry, and habitually lingered at
the market-place, chatting with everybody, learning the gossip of the
town, listening to the political talk that in Richmond never ceased, and
no doubt thus catching at first hand the drift of public sentiment.[165]
The humblest and poorest man in Virginia was not more unpretentious than
John Marshall.
No wag was more eager for a joke. One day, as he loitered on the
outskirts of the market, a newcomer in Richmond, who had never seen
Marshall, offered him a small coin to carry home for him a turkey just
purchased. Marshall accepted, and, with the bird under his arm, trudged
behind his employer. The incident sent the city into gales of laughter,
and was so in keeping with Marshall's ways that it has been retold from
one generation to another, and is to-day almost as much alive as
ever.[166] At another time the Chief Justice was taken for the butcher.
He called on a relative's wife who had never met him, and who had not
been told of his plain dress and rustic manners. Her husband wished to
sell a calf and she expected the butcher to call to make the trade. She
saw Marshall approaching, and judging by his appearance that he was the
butcher, she directed the servant to tell him to go to the stable where
the animal was awaiting inspection.[167]
It was Marshall's custom to go early every morning to a farm which he
owned four miles from Richmond. For the exercise he usually walked,
but, when he wished to take something heavy, he would ride. A stranger
coming upon him on the road would have thought him one of the poorer
small planters of the vicinity. He was extremely fond of children and,
if he met one trudging along the road, he would take the child up on the
horse and carry it to its destination. Often he was seen riding into
Richmond from his farm, with one child before and another behind
him.[168]
Bishop Meade met Marshall on one of these morning trips, carrying on
horseback a bag of clover seed.[169] On another, he was seen holding on
the pommel a jug of whiskey which he was taking out to his farmhands.
The cork had come out and he was using his thumb as a stopper.[170] He
was keenly interested in farming, and in 1811 was elected President of
the Richmond Society for Promotion of Agriculture.[171]
The distance from Richmond to Raleigh was, by road, more than one
hundred and seventy miles. Except when he went by stage,[172] as he
seldom did, it must have taken a week to make this journey. He traveled
in a primitive vehicle called a stick gig, drawn by one horse which he
drove himself, seldom taking a servant with him.[173] Making his slow
way through the immense stretches of tar pines and sandy fields, the
Chief Justice doubtless thought out the solution of the problems before
him and the plain, clear, large statements of his conclusions which,
from the bench later, announced not only the law of particular cases,
but fundamental policies of the Nation. His surroundings at every stage
of the trip encouraged just such reflection--the vast stillness, the
deep forests, the long hours, broken only by some accident to gig or
harness, or interrupted for a short time to feed and rest his horse, and
to eat his simple meal.
During these trips, Marshall would become so abstracted that,
apparently, he would forget where he was driving. Once, when near the
plantation of Nathaniel Macon in North Carolina, he drove over a sapling
which became wedged between a wheel and the shaft. One of Macon's
slaves, working in an adjacent field, saw the predicament, hurried to
his assistance, held down the sapling with one hand, and with the other
backed the horse until the gig was free. Marshall tossed the negro a
piece of money and asked him who was his owner. "Marse Nat. Macon," said
the slave. "He is an old friend," said Marshall; "tell him how you have
helped me," giving his name. When the negro told his master, Macon said:
"That was the great Chief Justice Marshall, the biggest lawyer in the
United States." The slave grinned and answered: "Marse Nat., he may be
de bigges' lawyer in de United States, but he ain't got sense enough to
back a gig off a saplin'."[174]
At night he would stop at some log tavern on the route, eat with the
family and other guests, if any were present, and sit before the
fireplace after the meal, talking with all and listening to all like the
simple and humble countryman he appeared to be. Since the minor part of
his time was spent in court, and most of it about Richmond, or on the
road to and from Raleigh, or journeying to his Fauquier County
plantation and the beloved mountains of his youth where he spent the
hottest part of each year, it is doubtful whether any other judge ever
maintained such intimate contact with people in the ordinary walks of
life as did John Marshall.
The Chief Justice always arrived at Raleigh stained and battered from
travel.[175] The town had a population of from three hundred to five
hundred.[176] He was wont to stop at a tavern kept by a man named Cooke
and noted for its want of comfort; but, although the inn got worse year
after year, he still frequented it. Early one morning an acquaintance
saw the Chief Justice go to the woodpile, gather an armful of wood and
return with it to the house. When they met later in the day, the
occurrence was recalled. "Yes," said Marshall, "I suppose it is not
convenient for Mr. Cooke to keep a servant, so I make up my own
fires."[177]
The Chief Justice occupied a small room in which were the following
articles: "A bed, ... two split-bottom chairs, a pine table covered with
grease and ink, a cracked pitcher and broken bowl." The host ate with
his guests and used his fingers instead of fork or knife.[178] When
court adjourned for the day, Marshall would play quoits in the street
before the tavern "with the public street characters of Raleigh," who
were lovers of the game.[179]
He was immensely popular in Raleigh, his familiar manners and the
justice of his decisions appealing with equal force to the bar and
people alike. Writing at the time of the hearing of the Granville
case,[180] John Haywood, then State Treasurer of North Carolina,
testifies: "Judge Marshall ... is greatly respected here, as well on
account of his talents and uprightness as for that sociability and ease
of manner which render all happy and pleased when in his company."[181]
In spite of his sociability, which tempted him, while in Richmond, to
visit taverns and the law offices of his friends, Marshall spent most of
the day in his house or in the big yard adjoining it, for Mrs.
Marshall's affliction increased with time, and the Chief Justice, whose
affection for his wife grew as her illness advanced, kept near her as
much as possible. In Marshall's grounds and near his house were several
great oak and elm trees, beneath which was a spring; to this spot he
would take the papers in cases he had to decide and, sitting on a rustic
bench under the shade, would write many of those great opinions that
have immortalized his name.[182]
Mrs. Marshall's malady was largely a disease of the nervous system and,
at times, it seemingly affected her mind. It was a common thing for the
Chief Justice to get up at any hour of the night and, without putting on
his shoes lest his footfalls might further excite his wife, steal
downstairs and drive away for blocks some wandering animal--a cow, a
pig, a horse--whose sounds had annoyed her.[183] Even upon entering his
house during the daytime, Marshall would take off his shoes and put on
soft slippers in the hall.[184]
She was, of course, unequal to the management of the household. When the
domestic arrangements needed overhauling, Marshall would induce her to
take a long drive with her sister, Mrs. Edward Carrington, or her
daughter, Mrs. Jacquelin B. Harvie, over the still and shaded roads of
Richmond. The carriage out of sight, he would throw off his coat and
vest, roll up his shirt-sleeves, twist a bandanna handkerchief about his
head, and gathering the servants, lead as well as direct them in dusting
the walls and furniture, scrubbing the floors and setting the house in
order.[185]
Numerous incidents of this kind are well authenticated. To this day
Marshall's unselfish devotion to his infirm and distracted wife is
recalled in Richmond. But nobody ever heard the slightest word of
complaint from him; nor did any act or expression of countenance so much
as indicate impatience.
In his letters Marshall never fails to admonish his wife, who seldom if
ever wrote to him, to care for her health. "Yesterday I received
Jacquelin's letter of the 12^{th} informing me that your health was at
present much the same as when I left Richmond," writes Marshall.[186]
"John [Marshall's son] passed through this city a day or two past, &
although I did not see him I had the pleasure of hearing from Mr.
Washington who saw him ... that you were as well as usual."[187] In
another letter Marshall says: "Do my dearest Polly let me hear from you
through someone of those who will be willing to write for you."[188]
Again he says: "I am most anxious to know how you do but no body is kind
enough to gratify my wishes.... I looked eagerly for a letter to day but
no letter came.... You must not fail when you go to Chiccahominy
[Marshall's farm near Richmond] ... to carry out blankets enough to keep
you comfortable. I am very desirous of hearing what is doing there but
as no body is good enough to let me know how you do & what is passing at
home I could not expect to hear what is passing at the farm."[189]
Indeed, only one letter of Marshall's has been discovered which
indicates that he had received so much as a line from his wife; and this
was when, an old man of seventy-five, he was desperately ill in
Philadelphia.[190] Nothing, perhaps, better reveals the sweetness of his
nature than his cheerful temper and tender devotion under trying
domestic conditions.[191]
His "dearest Polly" was intensely religious, and Marshall profoundly
respected this element of her character.[192] The evidence as to his own
views and feelings on the subject of religion, although scanty, is
definite. He was a Unitarian in belief and therefore never became a
member of the Episcopal church, to which his parents, wife, children,
and all other relatives belonged. But he attended services, Bishop Meade
informs us, not only because "he was a sincere friend of religion," but
also because he wished "to set an example." The Bishop bears this
testimony: "I can never forget how he would prostrate his tall form
before the rude low benches, without backs, at Coolspring
Meeting-House,[193] in the midst of his children and grandchildren and
his old neighbors." When in Richmond, Marshall attended the Monumental
Church where, says Bishop Meade, "he was much incommoded by the
narrowness of the pews.... Not finding room enough for his whole body
within the pew, he used to take his seat nearest the door of the pew,
and, throwing it open, let his legs stretch a little into the
aisle."[194]
It is said, however, that his daughter, during her last illness,
declared that her father late in life was converted, by reading Keith on
Prophecy, to a belief in the divinity of Christ; and that he determined
to "apply for admission to the communion of our Church ... but died
without ever communing."[195] There is, too, a legend about an
astonishing flash of eloquence from Marshall--"a streak of vivid
lightning"--at a tavern, on the subject of religion.[196] The impression
said to have been made by Marshall on this occasion was heightened by
his appearance when he arrived at the inn. The shafts of his ancient gig
were broken and "held together by withes formed from the bark of a
hickory sapling"; he was negligently dressed, his knee buckles
loosened.[197]
In the tavern a discussion arose among some young men concerning "the
merits of the Christian religion." The debate grew warm and lasted "from
six o'clock until eleven." No one knew Marshall, who sat quietly
listening. Finally one of the youthful combatants turned to him and
said: "Well, my old gentleman, what think you of these things?" Marshall
responded with a "most eloquent and unanswerable appeal." He talked for
an hour, answering "every argument urged against" the teachings of
Jesus. "In the whole lecture there was so much simplicity and energy,
pathos and sublimity, that not another word was uttered." The listeners
wondered who the old man could be. Some thought him a preacher; and
great was their surprise when they learned afterwards that he was the
Chief Justice of the United States.[198]
His devotion to his wife illustrates his attitude toward women in
general, which was one of exalted reverence and admiration. "He was an
enthusiast in regard to the domestic virtues," testifies Story. "There
was ... a romantic chivalry in his feelings, which, though rarely
displayed, except in the circle of his most intimate friends, would
there pour out itself with the most touching tenderness." He loved to
dwell on the "excellences," "accomplishments," "talents," and "virtues"
of women, whom he looked upon as "the friends, the companions, and the
equals of man." He tolerated no wit at their expense, no fling, no
sarcasm, no reproach. On no phase of Marshall's character does Story
place so much emphasis as on his esteem for women.[199] Harriet
Martineau, too, bears witness that "he maintained through life and
carried to his grave, a reverence for woman as rare in its kind as in
its degree."[200] "I have always believed that national character as
well as happiness depends more on the female part of society than is
generally imagined," writes Marshall in his ripe age to Thomas
White.[201]
Commenting on Story's account, in his centennial oration on the first
settlement of Salem, of the death of Lady Arbella Johnson, Marshall
expresses his opinion of women thus: "I almost envy the occasion her
sufferings and premature death have furnished for bestowing that
well-merited eulogy on a sex which so far surpasses ours in all the
amiable and attractive virtues of the heart,--in all those qualities
which make up the sum of human happiness and transform the domestic
fireside into an elysium. I read the passage to my wife who expressed
such animated approbation of it as almost to excite fears for that
exclusive admiration which husbands claim as their peculiar privilege.
Present my compliments to M^{rs} Story and say for me that a lady
receives the highest compliment her husband can pay her when he
expresses an exalted opinion of the sex, because the world will believe
that it is formed on the model he sees at home."[202]
Ten children were born to John Marshall and Mary Ambler, of whom six
survived, five boys and one girl.[203] By 1815 only three of these
remained at home; Jacquelin, twenty-eight years old, James Keith,
fifteen, and Edward, ten years of age. John was in Harvard, where
Marshall sent all his sons except Thomas, the eldest, who went to
Princeton.[204] The daughter, Mary, Marshall's favorite child, had
married Jacquelin B. Harvie and lived in Richmond not far from
Marshall's house.[205] Four other children had died early.
"You ask," Marshall writes Story, "if M^{rs} Marshall and myself have
ever lost a child. We have lost four, three of them bidding fairer for
health and life than any that have survived them. One, a daughter about
six or seven ... was one of the most fascinating children I ever saw.
She was followed within a fortnight by a brother whose death was
attended by a circumstance we can never forget.
"When the child was supposed to be dying I tore the distracted mother
from the bedside. We soon afterwards heard a voice in the room which we
considered as indicating the death of the infant. We believed him to be
dead. [I went] into the room and found him still breathing. I returned
[and] as the pang of his death had been felt by his mother and [I] was
confident he must die, I concealed his being alive and prevailed on her
to take refuge with her mother who lived the next door across an open
square from her.
"The child lived two days, during which I was agonized with its
condition and with the occasional hope, though the case was desperate,
that I might enrapture his mother with the intelligence of his
restoration to us. After the event had taken place his mother could not
bear to return to the house she had left and remained with her mother a
fortnight.
"I then addressed to her a letter in verse in which our mutual loss was
deplored, our lost children spoken of with the parental feeling which
belonged to the occasion, her affection for those which survived was
appealed to, and her religious confidence in the wisdom and goodness of
Providence excited. The letter closed with a pressing invitation to
return to me and her children."[206]
All of Marshall's sons married, settled on various parts of the Fairfax
estate, and lived as country gentlemen. Thomas was given the old
homestead at Oak Hill, and there the Chief Justice built for his eldest
son the large house adjacent to the old one where he himself had spent a
year before joining the army under Washington.[207] To this spot
Marshall went every year, visiting Thomas and his other sons who lived
not far apart, seeing old friends, wandering along Goose Creek, over the
mountains, and among the haunts where his first years were spent.
Here, of course, he was, in bearing and appearance, even less the head
of the Nation's Judiciary than he was in Richmond or on the road to
Raleigh. He was emphatically one of the people among whom he sojourned,
familiar, interested, considerate, kindly and sociable to the last
degree. Not one of his sons but showed more consciousness of his own
importance than did John Marshall; not a planter of Fauquier, Warren,
and Shenandoah Counties, no matter how poorly circumstanced, looked and
acted less a Chief Justice of the United States. These characteristics,
together with a peculiar generosity, made Marshall the most beloved man
in Northern Virginia.
Once, when going from Richmond to Fauquier County, he overtook one of
his Revolutionary comrades. As the two rode on together, talking of
their war-time experiences and of their present circumstances, it came
out that this now ageing friend of his youth was deeply in debt and
about to lose all his possessions. There was, it appeared, a mortgage on
his farm which would soon be foreclosed. After the Chief Justice had
left the inn where they both had stopped for refreshments, an envelope
was handed to his friend containing Marshall's check for the amount of
the debt. His old comrade-in-arms quickly mounted his horse, overtook
Marshall, and insisted upon returning the check. Marshall refused to
take it back, and the two friends argued the matter, which was finally
compromised by Marshall's agreeing to take a lien upon the land. But
this he never foreclosed.[208]
This anecdote is highly characteristic of Marshall. He was infinitely
kind, infinitely considerate. Bishop Meade, who knew him well, says that
he "was a most conscientious man in regard to some things which others
might regard as too trivial to be observed." On one of Meade's frequent
journeys with Marshall between Fauquier County and the "lower country,"
they came to an impassable stretch of road. Other travelers had taken
down a fence and gone through the adjoining plantation, and the Bishop
was about to follow the same route. Marshall refused--"He said we had
better go around, although each step was a plunge, adding that it was
his duty, as one in office, to be very particular in regard to such
things."[209]
When in Richmond the one sport in which he delighted was the pitching of
quoits. Not when a lawyer was he a more enthusiastic or regular
attendant of the meetings of the Quoit Club, or Barbecue Club,[210]
under the trees at Buchanan's Spring on the outskirts of Richmond, than
he was when at the height of his fame as Chief Justice of the United
States. More personal descriptions of Marshall at these gatherings have
come down to us than exist for any other phase of his life. Chester
Harding, the artist, when painting Marshall's portrait during the summer
of 1826, spent some time in the Virginia Capital, and attended one of
the meetings of the Quoit Club. It was a warm day, and presently
Marshall, then in his seventy-second year, was seen coming, his coat on
his arm, fanning himself with his hat. Walking straight up to a bowl of
mint julep, he poured a tumbler full of the liquid, drank it off, said,
"How are you, gentlemen?" and fell to pitching quoits with immense
enthusiasm. When he won, says Harding, "the woods would ring with his
triumphant shout."[211]
James K. Paulding went to Richmond for the purpose of talking to the
Chief Justice and observing his daily life. He was more impressed by
Marshall's gayety and unrestraint at the Quoit Club than by anything
else he noted. "The Chief-Justice threw off his coat," relates Paulding,
"and fell to work with as much energy as he would have directed to the
decision of ... the conflicting jurisdiction of the General and State
Governments." During the game a dispute arose between two players "as to
the quoit nearest the meg." Marshall was agreed upon as umpire. "The
Judge bent down on one knee and with a straw essayed the decision of
this important question, ... frequently biting off the end of the straw"
for greater accuracy.[212]
The morning play over, the club dinner followed. A fat pig, roasted over
a pit of coals, cold meats, melons, fruits, and vegetables, were served
in the old Virginia style. The usual drinks were porter, toddy,[213] and
the club punch made of "lemons, brandy, rum, madeira, poured into a
bowl one-third filled with ice (no water), and sweetened."[214] In
addition, champagne and other wines were sometimes provided.[215] At
these meals none of the witty company equaled Marshall in fun-making; no
laugh was so cheery and loud as his. Not more was John Marshall the
chief of the accomplished and able men who sat with him on the Supreme
Bench at Washington than, even in his advancing years, he was the leader
of the convivial spirits who gathered to pitch quoits, drink julep and
punch, tell stories, sing songs, make speeches, and play pranks under
the trees of Richmond.
Marshall dearly loved, when at home, to indulge in the giving of big
dinners to members of the bench and bar. In a wholly personal sense he
was the best-liked man in Richmond. The lawyers and judges living there
were particularly fond of him, and the Chief Justice thoroughly
reciprocated their regard. Spencer Roane, Judge of the Virginia Court of
Appeals, seems to have been the one enemy Marshall had in the whole
city. Indeed, Roane and Jefferson appear to have been the only men
anywhere who ever hated him personally. Even the testy George Hay
reluctantly yielded to his engaging qualities. When at the head of the
Virginia bar, Marshall had been one of those leading attorneys who gave
the attractive dinners that were so notable and delightful a feature of
life in Richmond. After he became Chief Justice, he continued this
custom until his "lawyer dinners" became, among men, the principal
social events of the place.
Many guests sat at Marshall's board upon these occasions. Among them
were his own sons as well as those of some of his guests. These dinners
were repetitions within doors of the Quoit Club entertainments, except
that the food was more abundant and varied, and the cheering drinks were
of better quality--for Marshall prided himself on this feature of
hospitality, especially on his madeira, of which he was said to keep the
best to be had in America. Wit and repartee, joke, story and song,
speech and raillery, brought forth volleys of laughter and roars of
applause until far into the morning hours.[216] Marshall was not only at
the head of the table as host, but was the leader of the merriment.[217]
His labors as Chief Justice did not dull his delight in the reading of
poetry and fiction, which was so keen in his earlier years.[218] At the
summit of his career, when seventy-one years old, he read all of Jane
Austen's works, and playfully reproved Story for failing to name her in
a list of authors given in his Phi Beta Kappa oration at Harvard. "I was
a little mortified," he wrote Story, "to find that you had not admitted
the name of Miss Austen into your list of favorites. I had just finished
reading her novels when I received your discourse, and was so much
pleased with them that I looked in it for her name, and was rather
disappointed at not finding it. Her flights are not lofty, she does not
soar on eagle's wings, but she is pleasing, interesting, equable, and
yet amusing. I count on your making some apology for this
omission."[219]
Story himself wrote poetry, and Marshall often asked for copies of his
verses.[220] "The plan of life I had formed for myself to be adopted
after my retirement from office," he tells Story, "is to read nothing
but novels and poetry."[221] That this statement genuinely expressed his
tastes is supported by the fact that, among the few books which the
Chief Justice treasured, were the novels of Sir Walter Scott and an
extensive edition of the British poets.[222] While his chief
intellectual pleasure was the reading of fiction, Marshall liked poetry
even better; and he committed to memory favorite passages which he
quoted as comment on passing incidents. Once when he was told that
certain men had changed their opinions as a matter of political
expediency, he repeated Homer's lines:
"Ye gods, what havoc does ambition make
'Mong all your works."[223]
During the six or eight weeks that the Supreme Court sat each year,
Marshall was the same in manner and appearance in Washington as he was
among his neighbors in Richmond--the same in dress, in habits, in every
way. Once a practitioner sent his little son to Marshall's quarters for
some legal papers. The boy was in awe of the great man. But the Chief
Justice, detecting the feelings of the lad, remarked: "Billy, I believe
I can beat you playing marbles; come into the yard and we will have a
game." Soon the Chief Justice of the United States and the urchin were
hard at play.[224]
If he reached the court-room before the hour of convening court, he sat
among the lawyers and talked and joked as if he were one of them;[225]
and, judging from his homely, neglected clothing, an uninformed onlooker
would have taken him for the least important of the company. Yet there
was about him an unconscious dignity that prevented any from presuming
upon his good nature, for Marshall inspired respect as well as
affection. After their surprise and disappointment at his ill attire and
want of impressiveness,[226] attorneys coming in contact with him were
unfailingly captivated by his simplicity and charm.
It was thus that Joseph Story, when a very young lawyer, first fell
under Marshall's spell. "I love his laugh," he wrote; "it is too hearty
for an intriguer,--and his good temper and unwearied patience are
equally agreeable on the bench and in the study."[227] And Marshall wore
well. The longer and more intimately men associated with him, the
greater their fondness for him. "I am in love with his character,
positively in love," wrote Story after twenty-four years of close and
familiar contact.[228] He "rises ... with the nearest survey," again
testified Story in a magazine article.[229]
When, however, the time came for him to open court, a transformation
came over him. Clad in the robes of his great office, with the Associate
Justices on either side of him, no king on a throne ever appeared more
majestic than did John Marshall. The kindly look was still in his eye,
the mildness still in his tones, the benignity in his features. But a
gravity of bearing, a firmness of manner, a concentration and intentness
of mind, seemed literally to take possession of the man, although he
was, and appeared to be, as unconscious of the change as he was that
there was anything unusual in his conduct when off the bench.[230]
Marshall said and did things that interested other people and caused
them to talk about him. He was noted for his quick wit, and the bar was
fond of repeating anecdotes about him. "Did you hear what the Chief
Justice said the other day?"--and then the story would be told of a
bright saying, a quick repartee, a picturesque incident. Chief Justice
Gibson of Pennsylvania, when a young man, went to Marshall for advice as
to whether he should accept a position offered him on the State Bench.
The young attorney, thinking to flatter him, remarked that the Chief
Justice had "reached the acme of judicial distinction." "Let me tell
you what that means, young man," broke in Marshall. "The acme of
judicial distinction means the ability to look a lawyer straight in the
eyes for two hours and not hear a damned word he says."[231]
Wherever he happened to be, nothing pleased Marshall so much as to join
a convivial party at dinner or to attend any sort of informal social
gathering. On one occasion he went to the meeting of a club at
Philadelphia, held in a room at a tavern across the hall from the bar.
It was a rule of the club that every one present should make a rhyme
upon a word suddenly given. As he entered, the Chief Justice observed
two or three Kentucky colonels taking their accustomed drink. When
Marshall appeared in the adjoining room, where the company was gathered,
he was asked for an extemporaneous rhyme on the word "paradox." Looking
across the hall, he quickly answered:
"In the Blue Grass region,
A 'Paradox' was born,
The corn was full of kernels
And the 'colonels' full of corn."[232]
But Marshall heartily disliked the formal society of the National
Capital. He was, of course, often invited to dinners and receptions, but
he was usually bored by their formality. Occasionally he would brighten
his letters to his wife by short mention of some entertainment. "Since
being in this place," he writes her, "I have been more in company than I
wish.... I have been invited to dine with the President with our own
secretaries & with the minister of France & tomorrow I dine with the
British minister.... In the midst of these gay circles my mind is
carried to my own fireside & to my beloved wife."[233]
Again: "Soon after dinner yesterday the French Chargé d'affaires called
upon us with a pressing invitation to be present at a party given to the
young couple, a gentleman of the French legation & the daughter of the
secretary of the navy who are lately married. There was a most brilliant
illumination which we saw and admired, & then we returned."[234] Of a
dinner at the French Legation he writes his wife, it was "rather a dull
party. Neither the minister nor his lady could speak English and I could
not speak French. You may conjecture how far we were from being
sociable. Yesterday I dined with M^r Van Buren the secretary of State.
It was a grand dinner and the secretary was very polite, but I was
rather dull through the evening. I make a poor return for these dinners.
I go to them with reluctance and am bad company while there. I hope we
have seen the last, but I fear we must encounter one more.[235] With the
exception of these parties my time was never passed with more
uniformity. I rise early, pour [_sic_] over law cases, go to court and
return at the same hour and pass the evening in consultation with the
Judges."[236]
Chester Harding relates that, when he was in Washington making a
full-length portrait of the Chief Justice,[237] Marshall arrived late
for the sitting, which had been fixed for eight o'clock in the evening.
He came without a hat. Congressman Storrs and one or two other men,
having seen Marshall, bare-headed, hurrying by their inn with long
strides, had "followed, curious to know the cause of such a strange
appearance." But Marshall simply explained to the artist that the
consultation lasted longer than usual, and that he had hurried off
without his hat. When the Chief Justice was about to go home, Harding
offered him a hat, but he said, "Oh, no! it is a warm night, I shall not
need one."[238]
No attorney practicing in the Supreme Court was more unreserved in
social conversation than was the Chief Justice. Sometimes, indeed, on a
subject that appealed to him, Marshall would do all the talking, which,
for some reason, would occasionally be quite beyond the understanding of
his hearer. Of one such exhibition Fisher Ames remarked to Samuel
Dexter: "I have not understood a word of his argument for half an
hour." "And I," replied the leader of the Massachusetts bar, "have been
out of my depth for an hour and a half."[239]
The members of the Supreme Court made life as pleasant for themselves as
they could during the weeks they were compelled to remain in "this
dismal" place, as Daniel Webster described the National Capital.
Marshall and the Associate Justices all lived together at one
boarding-house, and thus became a sort of family. "We live very
harmoniously and familiarly,"[240] writes Story, one year after his
appointment. "My brethren are very interesting men," he tells another
friend. We "live in the most frank and unaffected intimacy. Indeed, we
are all united as one, with a mutual esteem which makes even the labors
of Jurisprudence light."[241]
Sitting about a single table at their meals, or gathered in the room of
one of them, these men talked over the cases before them. Not only did
they "moot every question as" the arguments proceeded in court, but by
"familiar conferences at our lodgings often come to a very quick,
and ... accurate opinion, in a few hours," relates that faithful
chronicler of their daily life, Joseph Story.[242] Story appears to have
been even more impressed by the comradery of the members of the Supreme
Court than by the difficulty of the cases they had to decide.
None of them ever took his wife with him to Washington, and this fact
naturally made the personal relations of the Justices peculiarly close.
"The Judges here live with perfect harmony," Story reiterates, "and as
agreeably as absence from friends and from families could make our
residence. Our intercourse is perfectly familiar and unconstrained, and
our social hours when undisturbed with the labors of law, are passed in
gay and frank conversation, which at once enlivens and instructs."[243]
This "gay and frank conversation" of Marshall and his associates covered
every subject--the methods, manners, and even dress of counsel who
argued before them, the fortunes of public men, the trend of politics,
the incident of the day, the gossip of society. "Two of the Judges are
widowers," records Story, "and of course objects of considerable
attraction among the ladies of the city. We have fine sport at their
expense, and amuse our leisure with some touches at match-making. We
have already ensnared one of the Judges, and he is now (at the age of
forty-seven) violently affected with the tender passion."[244]
Thus Marshall, in his relation with his fellow occupants of the bench,
was at the head of a family as much as he was Chief of a court. Although
the discussion of legal questions occurred continuously at the
boarding-house, each case was much more fully examined in the
consultation room at the Capitol. There the court had a regular
"consultation day" devoted exclusively to the cases in hand. Yet, even
on these occasions, all was informality, and wit and humor brightened
the tediousness. These "consultations" lasted throughout the day and
sometimes into the night; and the Justices took their meals while the
discussions proceeded. Amusing incidents, some true, some false, and
others a mixture, were related of these judicial meetings. One such
story went the rounds of the bar and outlived the period of Marshall's
life.
"We are great ascetics, and even deny ourselves wine except in wet
weather," Story dutifully informed his wife. "What I say about the wine
gives you our rule; but it does sometimes happen that the Chief Justice
will say to me, when the cloth is removed, 'Brother Story, step to the
window and see if it does not look like rain.' And if I tell him that
the sun is shining brightly, Judge Marshall will sometimes reply, 'All
the better, for our jurisdiction extends over so large a territory that
the doctrine of chances makes it certain that it must be raining
somewhere.'"[245]
When, as sometimes happened, one of the Associate Justices displeased a
member of the bar, Marshall would soothe the wounded feelings of the
lawyer. Story once offended Littleton W. Tazewell of Virginia by
something said from the bench. "On my return from court yesterday," the
Chief Justice hastened to write the irritated Virginian, "I informed M^r
Story that you had been much hurt at an expression used in the opinion
he had delivered in the case of the Palmyra. He expressed equal surprize
and regret on the occasion, and declared that the words which had given
offense were not used or understood by him in an offensive sense. He
assented without hesitation to such modification of them as would render
them in your view entirely unexceptionable."[246]
As Chief Justice, Marshall shrank from publicity, while printed
adulation aggravated him. "I hope to God they will let me alone 'till I
am dead," he exclaimed, when he had reached that eminence where writers
sought to portray his life and character.[247]
He did, however, appreciate the recognition given from time to time by
colleges and learned societies. In 1802 Princeton conferred upon him the
honorary degree of LL.D.; in 1806 he received the same degree from
Harvard and from the University of Pennsylvania in 1815. In 1809, as we
have seen, he was elected a corresponding member of the Massachusetts
Historical Society; on January 24, 1804, he was made a member of the
American Academy of Arts and Sciences; and, in 1830, was elected to the
American Philosophical Society. All these honors Marshall valued highly.
This, then, was the man who presided over the Supreme Court of the
United States when the decisions of that tribunal developed the National
powers of the Constitution and gave stability to our National life. His
control of the court was made so easy for the Justices that they never
resented it; often, perhaps, they did not realize it. The influence of
his strong, deep, clear mind was powerfully aided by his engaging
personality. To agree with him was a pleasure.
Marshall's charm was as great as his intellect; he was never irritable;
his placidity was seldom ruffled; not often was his good nature
disturbed. His "great suavity, or rather calmness of manner, cannot
readily be conceived," testifies George Bancroft.[248] The sheer
magnitude of his views was, in itself, captivating, and his supremely
lucid reasoning removed the confusion which more complex and subtle
minds would have created in reaching the same conclusion. The elements
of his mind and character were such, and were so combined, that it was
both hard and unpleasant to differ with him, and both easy and agreeable
to follow his lead.
Above all other influences upon his associates on the bench, and,
indeed, upon everybody who knew him, was the sense of trustworthiness,
honor, and uprightness he inspired.[249] Perhaps no public man ever
stood higher in the esteem of his contemporaries for noble personal
qualities than did John Marshall.
When reviewing his constructive work and marveling at his influence over
his judicial associates, we must recall, even at the risk of iteration,
the figure revealed by his daily life and habits--"a man who is tall to
awkwardness, with a large head of hair, which looked as if it had not
been lately tied or combed, and with dirty boots,"[250] a body that
seemed "without proportion," and arms and legs that "dangled from each
other and looked half dislocated," dressed in clothes apparently "gotten
from some antiquated slop-shop of second-hand raiment ... the coat and
breeches cut for nobody in particular."[251] But we must also think of
such a man as possessed of "style and tones in conversation uncommonly
mild, gentle, and conciliating."[252] We must think of his hearty
laughter, his "imperturbable temper,"[253] his shyness with strangers,
his quaint humor, his hilarious unreserve with friends and convivial
jocularity when with intimates, his cordial warm-heartedness, unassuming
simplicity and sincere gentleness to all who came in contact with him--a
man without "an atom of gall in his whole composition."[254] We must
picture this distinctive American character among his associates of the
bench in the Washington boarding-house no less than in court, his
luminous mind guiding them, his irresistible personality drawing from
them a real and lasting affection. We must bear in mind the trust and
confidence which so powerfully impressed those who knew the man. We must
imagine a person very much like Abraham Lincoln.
Indeed, the resemblance of Marshall to Lincoln is striking. Between no
two men in American history is there such a likeness. Physically,
intellectually, and in characteristics, Marshall and Lincoln were of the
same type. Both were very tall men, slender, loose-jointed, and awkward,
but powerful and athletic; and both fond of sport. So alike were they,
and so identical in their negligence of dress and their total
unconsciousness of, or indifference to, convention, that the two men,
walking side by side, might well have been taken for brothers.
Both Marshall and Lincoln loved companionship with the same heartiness,
and both had the same social qualities. They enjoyed fun, jokes,
laughter, in equal measure, and had the same keen appreciation of wit
and humor. Their mental qualities were the same. Each man had the gift
of going directly to the heart of any subject; while the same lucidity
of statement marked each of them. Their style, the simplicity of their
language, the peculiar clearness of their logic, were almost identical.
Notwithstanding their straightforwardness and amplitude of mind, both
had a curious subtlety. Some of Marshall's opinions and Lincoln's state
papers might have been written by the same man. The "Freeholder"
questions and answers in Marshall's congressional campaign, and those of
Lincoln's debate with Douglas, are strikingly similar in method and
expression.
Each had a genius for managing men; and Marshall showed the precise
traits in dealing with the members of the Supreme Court that Lincoln
displayed in the Cabinet.
Both were born in the South, each on the eve of a great epoch in
American history when a new spirit was awakening in the hearts of the
people. Although Southern-born, both Marshall and Lincoln sympathized
with and believed in the North; and yet their manners and instinct were
always those of the South. Marshall was given advantages that Lincoln
never had; but both were men of the people, were brought up among them,
and knew them thoroughly. Lincoln's outlook upon life, however, was that
of the humblest citizen; Marshall's that of the well-placed and
prosperous. Neither was well educated, but each acquired, in different
ways, a command of excellent English and broad, plain conceptions of
government and of life. Neither was a learned man, but both created the
materials for learning.
Marshall and Lincoln were equally good politicians; but, although both
were conservative in their mental processes, Marshall lost faith in the
people's steadiness, moderation, and self-restraint; and came to think
that impulse rather than wisdom was too often the temporary moving power
in the popular mind, while the confidence of Lincoln in the good sense,
righteousness, and self-control of the people became greater as his life
advanced. If, with these distinctions, Abraham Lincoln were, in
imagination, placed upon the Supreme Bench during the period we are now
considering, we should have a good idea of John Marshall, the Chief
Justice of the United States.
It is, then, largely the personality of John Marshall that explains the
hold, as firm and persistent as it was gentle and soothing, maintained
by him upon the Associate Justices of the Supreme Court; and it is this,
too, that enables us to understand his immense popularity with the
bar--a fact only second in importance to the work he had to do, and to
his influence upon the men who sat with him on the bench.
For the lawyers who practiced before the Supreme Court at this period
were most helpful to Marshall.[255] Many of them were men of wide and
accurate learning, and nearly all of them were of the first order of
ability. No stronger or more brilliant bar ever was arrayed before any
bench than that which displayed its wealth of intellect and resources to
Marshall and his associates.[256] This assertion is strong, but wholly
justified. Oratory of the finest quality, though of the old rhetorical
kind, filled the court-room with admiring spectators, and entertained
Marshall and the other Justices, as much as the solid reasoning
illuminated their minds, and the exhaustive learning informed them.
Marshall encouraged extended arguments; often demanded them. Frequently
a single lawyer would speak for two or three days. No limit of time was
put upon counsel.[257] Their reputation as speakers as well as their
fame as lawyers, together with the throngs of auditors always present,
put them on their mettle. Rhetoric adorned logic; often encumbered it. A
conflict between such men as William Pinkney, Luther Martin of Maryland,
Samuel Dexter of Massachusetts, Thomas Addis Emmet of New York, William
Wirt of Virginia, Joseph Hopkinson of Pennsylvania, Jeremiah Mason of
New Hampshire, Daniel Webster, Henry Clay, and others of scarcely less
distinction, was, in itself, an event. These men, and indeed all the
members of the bar, were Marshall's friends as well as admirers.
The appointment of Story to the Supreme Bench was, like the other
determining circumstances in Marshall's career, providential.
Few characters in American history are more attractive than the New
England lawyer and publicist who, at the age of thirty-two, took his
place at Marshall's side on the Supreme Bench. Handsome, vivacious,
impressionable, his mind was a storehouse of knowledge, accurately
measured and systematically arranged. He read everything, forgot
nothing. His mental appetite was voracious, and he had a very passion
for research. His industry was untiring, his memory unfailing. He
supplied exactly the accomplishment and toilsomeness that Marshall
lacked. So perfectly did the qualities and attainments of these two men
supplement one another that, in the work of building the American
Nation, Marshall and Story may be considered one and the same person.
Where Marshall was leisurely, Story was eager. If the attainments of the
Chief Justice were not profuse, those of his young associate were
opulent. Marshall detested the labor of investigating legal authorities;
Story delighted in it. The intellect of the older man was more massive
and sure; but that of the youthful Justice was not far inferior in
strength, or much less clear and direct in its operation. Marshall
steadied Story while Story enriched Marshall. Each admired the other,
and between them grew an affection like that of father and son.
Story's father, Elisha Story, was a member of the Republican Party, a
rare person among wealthy and educated men in Massachusetts at the time
Jefferson founded that political organization. The son tells us that he
"naturally imbibed the same opinions," which were so reprobated that not
"more than four or five lawyers in the whole state ... _dared_ avow
themselves republicans. The very name was odious."[258]
[Illustration]
Joseph Story was born in Marblehead, Massachusetts, September 18, 1779,
one of a family of eighteen children, seven by a first wife and eleven
by a second. He was the eldest son of the second wife, who had been a
Miss Pedrick, the daughter of a rich merchant and shipowner.[259]
No young member of the Massachusetts bar equaled Joseph Story in
intellectual gifts and acquirements. He was a graduate of Harvard, and
few men anywhere had a broader or more accurate education. His
personality was winning and full of charm. Yet, when he began practice
at Salem, he was "persecuted" with "extreme ... virulence" because of
his political opinions.[260] He became so depressed by what he calls
"the petty prejudices and sullen coolness of New England, ... bigoted in
opinion and satisfied in forms," where Federalism had "persecuted ...
[him] unrelentingly for ... [his] political principles," that he thought
seriously of going to Baltimore to live and practice his profession. He
made headway, however, in spite of opposition; and, when the growing
Republican Party, "the whole" of which he says were his "warm
advocates,"[261] secured the majority of his district, Story was sent to
Congress. "I was ... of course a supporter of the administration of Mr.
Jefferson and Mr. Madison," although not "a mere slave to the opinions
of either." In exercising what he terms his "independent judgment,"[262]
Story favored the repeal of the Embargo, and so earned, henceforth, the
lasting enmity of Jefferson.[263]
Because of his recognized talents, and perhaps also because of the
political party to which he belonged, he was employed to go to
Washington as attorney for the New England and Mississippi Company in
the Yazoo controversy.[264] It was at this period that the New England
Federalist leaders began to cultivate him. They appreciated his ability,
and the assertion of his "independent principles" was to their liking.
Harrison Gray Otis was quick to advise that seasoned politician, Robert
Goodloe Harper, of the change he thought observable in Story, and the
benefit of winning his regard. "He is a young man of talents, who
commenced Democrat a few years since and was much fondled by his party,"
writes Otis. "He discovered however too much sentiment and honor to go
_all lengths_ ... and a little attention from the right sort of people
will be very useful to him & to us."[265]
The wise George Cabot gave Pickering the same hint when Story made one
of his trips to Washington on the Yazoo business. "Though he is a man
whom the Democrats support," says Cabot, "I have seldom if ever met with
one of sounder mind on the principal points of national policy. He is
well worthy the civil attention of the most respectable
Federalists."[266]
It was while in the Capital, as attorney before Congress and the Supreme
Court in the Georgia land controversy, that Story, then twenty-nine
years old, met Marshall; and impulsively wrote of his delight in the
"hearty laugh," "patience," consideration, and ability of the Chief
Justice. On this visit to Washington the young Massachusetts lawyer took
most of his meals with the members of the Supreme Court.[267] At that
time began the devotion of Joseph Story to John Marshall which was to
prove so helpful to both for more than a generation, and so influential
upon the Republic for all time.
That Story, while in Washington, had copiously expressed his changing
opinions, as well as his disapproval of Jefferson's Embargo, is certain;
for he was "a very great talker,"[268] and stated his ideas with the
volubility of his extremely exuberant nature. "At this time, as in after
life," declares Story's son, "he was remarkable for fulness and fluency
of conversation. It poured out from his mind ... sparkling, and
exhaustless. Language was as a wide open sluice, through which every
feeling and thought rushed forth.... It would be impossible to give an
idea of his conversational powers."[269]
It was not strange, then, that Jefferson, who was eager for all gossip
and managed to learn everything that happened, or was said to have
happened, in Washington, heard of Story's association with the
Federalists, his unguarded talk, and especially his admiration for the
Chief Justice. It was plain to Jefferson that such a person would never
resist Marshall's influence.
In Jefferson's mind existed another objection to Story which may justly
be inferred from the situation in which he found himself when the
problem arose of filling the place on the Supreme Bench vacated by the
death of Justice Cushing. Story had made a profound study of the law of
real estate; and, young though he was, no lawyer in America equaled him,
and few in England surpassed him, in the intricate learning of that
branch of legal science. This fact was well known to the bar at
Washington as well as to that of Massachusetts. Therefore, the thought
of Story on the Supreme Bench, and under Marshall's influence, made
Jefferson acutely uncomfortable; for the former President was then
engaged in a lawsuit involving questions of real estate which, if
decided against him, would, as he avowed, ruin him. This lawsuit was the
famous Batture litigation. It was this predicament that led Jefferson to
try to control the appointment of the successor to Cushing, whose death
he declared to be "a Godsend"[270] to him personally; and also to
dictate the naming of the district judge at Richmond to the vacancy
caused by the demise of Judge Cyrus Griffin.
In the spring of 1810, Edward Livingston, formerly of New York and then
of New Orleans, brought suit in the United States Court for the District
of Virginia against Thomas Jefferson for damages to the amount of one
hundred thousand dollars. This was the same Livingston who in Congress
had been the Republican leader in the House when Marshall was a member
of that body.[271] Afterwards he was appointed United States Attorney
for the District of New York and then became Mayor of that city. During
the yellow fever epidemic that scourged New York in 1803, Livingston
devoted himself to the care of the victims of the plague, leaving the
administration of the Mayor's office to a trusted clerk. In time
Livingston, too, was stricken. During his illness his clerk embezzled
large sums of the public money. The Mayor was liable and, upon his
recovery, did not attempt to evade responsibility, but resigned his
office and gave all his property to make good the defalcation. A heavy
amount, however, still remained unpaid; and the discharge of this
obligation became the ruling purpose of Livingston's life until, twenty
years afterward, he accomplished his object.
His health regained, Livingston went to New Orleans to seek fortune
anew. There he soon became the leader of the bar. When Wilkinson set up
his reign of terror in that city, it was Edward Livingston who swore out
writs of habeas corpus for those illegally imprisoned and, in general,
was the most vigorous as well as the ablest of those who opposed
Wilkinson's lawless and violent measures.[272] Jefferson had been
displeased that Livingston had not shown more enthusiasm for him, when,
in 1801, the Federalists had tried to elect Burr to the Presidency, and
bitterly resented Livingston's interference with Wilkinson's plans to
"suppress treason" in New Orleans.
One John Gravier, a lifelong resident of that city, had inherited from
his brother Bertrand certain real estate abutting the river. Between
this and the water the current had deposited an immense quantity of
alluvium. The question of the title to this river-made land had never
been raised, and everybody used it as a sort of common wharf front.
Alert for opportunities to make money with which fully to discharge the
defalcation in the New York Mayor's office, Livingston investigated the
rightful ownership of the batture, as the alluvial deposit was termed;
satisfied himself that the title was in Gravier; gave an opinion to that
effect, and brought suit for the property as Gravier's attorney.[273]
While the trial of Aaron Burr was in progress in Richmond, the Circuit
Court in New Orleans rendered judgment in favor of Gravier,[274] who
then conveyed half of his rights to his attorney, apparently as a fee
for the recovery of the batture.
Livingston immediately began to improve his property, whereupon the
people became excited and drove away his workmen. Governor Claiborne
refused to protect him and referred the whole matter to Jefferson. The
President did not direct the Attorney-General to bring suit for the
possession of the batture--the obvious and the legal form of procedure.
Indeed, the title to the property was not so much as examined.
Jefferson did not even take into consideration the fact that, if
Livingston was not the rightful owner of the batture, it might belong to
the City of New Orleans. He merely assumed that it was National
property; and, hastily acting under a law against squatters on lands
belonging to the United States, he directed Secretary of State Madison
to have all persons removed from the disputed premises. Accordingly, the
United States Marshal was ordered to eject the "intruder" and his
laborers. This was done; but Livingston told his men to return to their
work and secured an injunction against the Marshal from further
molesting them. That official ignored the order of the court and again
drove the laborers off the batture.
Livingston begged the President to submit the controversy to arbitration
or to judicial decision, but Jefferson was deaf to his pleas. The
distracted lawyer appealed to Congress for relief.[275] That body
ignored his petition.[276] He then brought suit against the Marshal in
New Orleans for the recovery of his property. Soon afterward he brought
another in Virginia against Jefferson for one hundred thousand dollars
damages. Such, in brief outline, was the beginning of the famous
"Batture Controversy," in which Jefferson and Livingston waged a war of
pamphlets for years.
When he learned that Livingston had begun action against him in the
Federal court at Richmond, Jefferson was much alarmed. In anticipation
of the death of Judge Cyrus Griffin, Governor John Tyler had written
Jefferson that, while he "never did apply for an office," yet "Judge
Griffin is in a low state of health, and holds my old office." Tyler
continues: "I really hope the President will chance to think of me ...
in case of accidents, and if an opportunity offers, lay me down softly
on a bed of _roses in my latter days_." He condemns Marshall for his
opposition to the War of 1812, and especially for his reputed statement
that Great Britain had done nothing to justify armed retaliation on our
part.[277] "Is it possible," asks Tyler, "that a man who can assert
this, can have any true sense of sound veracity? And yet these sort of
folks retain their stations and consequence in life."[278]
Immediately Jefferson wrote to President Madison: "From what I can learn
Griffin cannot stand it long, and really the state has suffered long
enough by having such a cypher in so important an office, and infinitely
the more from the want of any counter-point to the rancorous hatred
which Marshall bears to the government of his country, & from the
cunning & sophistry within which he is able to enshroud himself. It will
be difficult to find a character of firmness enough to preserve his
independence on the same bench with Marshall. Tyler, I am certain, would
do it.... A milk & water character ... would be seen as a calamity.
Tyler having been the former state judge of that court too, and removed
to make way for so wretched a fool as Griffin,[279] has a kind of right
of reclamation."
Jefferson gives other reasons for the appointment of Tyler, and then
addresses Madison thus: "You have seen in the papers that Livingston has
served a writ on me, stating damages at 100,000. D... I shall soon look
into my papers to make a state of the case to enable them to plead."
Jefferson hints broadly that he may have to summon as witnesses his
"associates in the proceedings," one of whom was Madison himself.
He concludes this astounding letter in these words: "It is a little
doubted that his [Livingston's] knolege [_sic_] of Marshall's character
has induced him to bring this action. His twistifications of the law in
the case of Marbury, in that of Burr, & the late Yazoo case shew how
dexterously he can reconcile law to his personal biasses: and nobody
seems to doubt that he is ready prepared to decide that Livingston's
right to the batture is unquestionable, and that I am bound to pay for
it with my private fortune."[280]
The next day Jefferson wrote Tyler that he had "laid it down as a law"
to himself "never to embarrass the President with any solicitations."
Yet, in Tyler's case, says Jefferson, "I ... have done it with all my
heart, and in the full belief that I serve him and the public in urging
the appointment." For, Jefferson confides to the man who, in case
Madison named him, would, with Marshall, hear the suit, "we have long
enough suffered under the base prostitution of the law to party passions
in one judge, and the imbecility of another.
"In the hands of one [Marshall] the law is nothing more than an
ambiguous text, to be explained by his sophistry into any meaning which
may subserve his personal malice. Nor can any milk-and-water associate
maintain his own independence, and by a firm pursuance of what the law
really is, extend its protection to the citizens or the public.... And
where you cannot induce your colleague to do what is right, you will be
firm enough to hinder him from doing what is wrong, and by opposing
sense to sophistry, leave the juries free to follow their own
judgment."[281]
Upon the death of Judge Griffin in the following December, John Tyler
was appointed to succeed him.
On September 13, 1810, William Cushing, Associate Justice of the Supreme
Court, died. Only three Federalists now remained on the Supreme Bench,
Samuel Chase, Bushrod Washington, and John Marshall. The other Justices,
William Johnson of South Carolina, Brockholst Livingston of New York,
and Thomas Todd of Kentucky, were Republicans, appointed by Jefferson.
The selection of Cushing's successor would give the majority of the
court to the Republican Party for the first time since its
organization. That Madison would fill the vacancy by one of his own
following was certain; but this was not enough to satisfy Jefferson, who
wanted to make sure that the man selected was one who would not fall
under Marshall's baleful influence. If Griffin did not die in time,
Jefferson's fate in the batture litigation would be in Marshall's hands.
Should Griffin be polite enough to breathe his last promptly and Tyler
be appointed in season, still Jefferson would not feel safe--the case
might go to the jury, and who could tell what their verdict would be
under Marshall's instructions? Even Tyler might not be able to "hinder"
Marshall "from wrong doing"; for nothing was more probable than that, no
matter what the issue of the case might be, it would be carried to the
Supreme Court if any ground for appeal could be found. Certainly
Jefferson would take it there if the case should go against him. It was
vital, therefore, that the latest vacancy on the Supreme Bench should
also be filled by a man on whom Jefferson could depend.
The new Justice must come from New England, Cushing having presided over
that circuit. Republican lawyers there, fit for the place, were at that
time extremely hard to find. Jefferson had been corresponding about the
batture case with Gallatin, who had been his Secretary of the Treasury
and continued in that office under Madison. The moment he learned of
Cushing's death, Jefferson wrote to Gallatin in answer to a letter from
that able man, admitting that "the Batture ... could not be within the
scope of the law ... against squatters," under color of which Livingston
had been forcibly ousted from that property. Jefferson adds: "I should
so adjudge myself; yet I observe many opinions otherwise, and in defence
against a spadassin it is lawful to use all weapons." The case is
complex; still no unbiased man "can doubt what the issue of the case
ought to be. What it will be, no one can tell.
"The judge's [Marshall's] inveteracy is profound, and his mind of that
gloomy malignity which will never let him forego the opportunity of
satiating it on a victim. His decisions, his instructions to a jury, his
allowances and disallowances and garblings of evidence, must all be
subjects of appeal.... And to whom is my appeal? From the judge in
Burr's case to himself and his associate judges in the case of Marbury
V. Madison.
"Not exactly, however. I observe old Cushing is dead.... The event is a
fortunate one, and so timed as to be a Godsend to me. I am sure its
importance to the nation will be felt, and the occasion employed to
complete the great operation they have so long been executing, by the
appointment of a decided Republican, with nothing equivocal about him.
But who will it be?"
Jefferson warmly recommends Levi Lincoln, his former Attorney-General.
Since the new Justice must come from New England, "can any other bring
equal qualifications?... I know he was not deemed a profound common
lawyer; but was there ever a profound common lawyer known in one of the
Eastern States? There never was, nor never can be, one from those
States.... Mr. Lincoln is ... as learned in their laws as any one they
have."[282]
After allowing time for Gallatin to carry this message to the President,
Jefferson wrote directly to Madison. He congratulates him on "the
revocation of the French decrees"; abuses Great Britain for her
"principle" of "the exclusive right to the sea by conquest"; and then
comes to the matter of the vacancy on the Supreme Bench.
"Another circumstance of congratulation is the death of Cushing," which
"gives an opportunity of closing the reformation [the Republican triumph
of 1800] by a successor of unquestionable republican principles."
Jefferson suggests Lincoln. "Were he out of the way," then Gideon
Granger ought to be chosen, "tho' I am sensible that J.[ohn] R.[andolph]
has been able to lessen the confidence of many in him.[283]... As the
choice must be of a New Englander, ... I confess I know of none but
these two characters." Of course there was Joseph Story, but he is
"unquestionably a tory," and "too young."[284]
Madison strove to follow Jefferson's desires. Cushing's place was
promptly offered to Lincoln, who declined it because of approaching
blindness. Granger, of course, was impossible--the Senate would not have
confirmed him. So Alexander Wolcott, "an active Democratic politician of
Connecticut," of mediocre ability and "rather dubious ...
character,"[285] was nominated; but the Senate rejected him. It seemed
impossible to find a competent lawyer in New England who would satisfy
Jefferson's requirements. John Quincy Adams, who had deserted the
Federalist Party and acted with the Republicans, and who was then
Minister to Russia, was appointed and promptly confirmed. Jefferson
himself had not denounced Marshall so scathingly as had Adams in his
report to the Senate on the proposed expulsion of Senator John Smith of
Ohio.[286] It was certain that he would not, as Associate Justice, be
controlled by the Chief Justice. But Adams preferred to continue in his
diplomatic post, and refused the appointment.
Thus Story became the only possible choice. After all, he was still
believed to be a Republican by everybody except Jefferson and the few
Federalist leaders who had been discreetly cultivating him. At least his
appointment would not be so bad as the selection of an out-and-out
Federalist. On November 18, 1811, therefore, Joseph Story was made an
Associate Justice of the Supreme Court of the United States. In
Massachusetts his appointment "was ridiculed and condemned."[287]
Although Jefferson afterward declared that he "had a strong desire that
the public should have been satisfied by a trial on the merits,"[288] he
was willing that his counsel should prevent the case from coming to
trial if they could. Fearing, however, that they would not succeed,
Jefferson had prepared, for the use of his attorneys, an exhaustive
brief covering his version of the facts and his views of the law.
Spencer Roane, Judge of the Virginia Court of Appeals, and as hot a
partisan of Jefferson as he was an implacable enemy of Marshall, read
this manuscript and gave Tyler "some of the outlines of it." Tyler
explains this to Jefferson after the decision in his favor, and adds
that, much as Tyler wanted to get hold of Jefferson's brief, still, "as
soon as I had received the appointment ... (which I owe to your favor in
great measure), it became my duty to shut the door against every
observation which might in any way be derived from either side, lest the
impudent British faction, who had enlisted on Livingston's side, might
suppose an undue influence had seized upon me."[289]
The case aroused keen interest in Virginia and, indeed, throughout the
country. Jefferson was still the leader of the Republican Party and was
as much beloved and revered as ever by the great majority of the people.
When, therefore, he was sued for so large a sum of money, the fact
excited wide and lively attention. That the plaintiff was such a man as
Edward Livingston gave sharper edge to the general interest. Especially
among lawyers, curiosity as to the outcome was keen. In Richmond, of
course, "great expectation was excited."
When the case came on for hearing, Tyler was so ill from a very painful
affliction that he could scarcely sit through the hearing; but he
persisted because he had "determined to give an opinion." The question
of jurisdiction alone was argued and only this was decided. Both judges
agreed that the court had no jurisdiction, though Marshall did so with
great reluctance. He wished "to carry the cause to the Supreme Court, by
adjournment or somehow or other; but," says Tyler in his report to
Jefferson, "I pressed the propriety of [its] being decided."[290]
Marshall, however, delivered a written opinion in which he gravely
reflected on Jefferson's good faith in avoiding a trial on the merits.
If the court, upon mere technicality, were prevented from trying and
deciding the case, "the injured party may have a clear right without a
remedy"; and that, too, "in a case where a person who has done the
wrong, and who ought to make the compensation, is within the power of
the court." The situation created by Jefferson's objection to the
court's jurisdiction was unfortunate: "Where the remedy is against the
person, and is within the power of the court, I have not yet discerned a
reason, other than a technical one, which can satisfy my judgment" why
the case should not be tried and justice done.
"If, however," continues Marshall, "this technical reason is firmly
established, if all other judges respect it, I cannot venture to
disregard it," no matter how wrong in principle and injurious to
Livingston the Chief Justice might think it. If Lord Mansfield, "one of
the greatest judges who ever sat upon any bench, and who has done more
than any other, to remove those technical impediments which ... too long
continued to obstruct the course of substantial justice," had vainly
attempted to remove the very "technical impediments" which Jefferson had
thrown in Livingston's way, Marshall would not make the same fruitless
effort.
To be sure, the technical point raised by Jefferson's counsel was a
legal fiction derived from "the common law of England"; but "this common
law has been adopted by the legislature of Virginia"; and "had it not
been adopted, I should have thought it in force." Thus Marshall, by
innuendo, blames Jefferson for invoking, for his own protection, a
technicality of that very common law which the latter had so often and
so violently denounced. For the third time Marshall deplores the use of
a technicality "which produces the inconvenience of a clear right
without a remedy." "Other judges have felt the weight of this argument,
and have struggled ineffectually against" it; so, he concluded, "I must
submit to it."[291]
Thus it was that Jefferson at last escaped; for it was nothing less than
an escape. What a decision on the merits of the case would have been is
shown by the opinion of Chancellor Kent, stated with his characteristic
emphasis. Jefferson was anxious that the public should think that he was
in the right. "Mr. Livingston's suit having gone off on the plea to the
jurisdiction, it's foundation remains of course unexplained to the
public. I have therefore concluded to make it public thro' the ...
press.... I am well satisfied to be relieved from it, altho' I had a
strong desire that the public should have been satisfied by a trial on
the merits."[292] Accordingly, Jefferson prepared his statement of the
controversy and, curiously enough, published it just before Livingston's
suit against the United States Marshal in New Orleans was approaching
decision. To no other of his documents did he give more patient and
laborious care. Livingston replied in an article[293] which justified
the great reputation for ability and learning he was soon to acquire in
both Europe and America.[294] Kent followed this written debate
carefully. When Livingston's answer appeared, Kent wrote him: "I read it
eagerly and studied it thoroughly, with a re-examination of Jefferson as
I went along; and I should now be as willing to subscribe my name to the
validity of your title and to the atrocious injustice you have received
as to any opinion contained in Johnson's Reports."[295]
Marshall's attitude in the Batture litigation intensified Jefferson's
hatred for the Chief Justice, while Jefferson's conduct in the whole
matter still further deepened Marshall's already profound belief that
the great exponent of popular government was dishonest and cowardly.
Story shared Marshall's views; indeed, the Batture controversy may be
said to have furnished that personal element which completed Story's
forming antagonism to Jefferson. "Who ... can remember, without regret,
his conduct in relation to the batture of New Orleans?" wrote Story many
years afterward.[296]
The Chief Justice attributed the attacks which Jefferson made upon him
in later years to his opinion in Livingston _vs._ Jefferson, and to the
views he was known to have held as to the merits of that case and
Jefferson's course in relation to it. "The Batture will never be
forgotten," wrote the Chief Justice some years later when commenting on
the attacks upon the National Judiciary which he attributed to
Jefferson.[297] Again: "The case of the mandamus[298] may be the cloak,
but the batture is recollected with still more resentment."[299]
Events thus sharpened the hostility of Jefferson and his following to
Marshall, but drew closer the bonds between the Chief Justice and Joseph
Story. Once under Marshall's pleasing, steady, powerful influence, Story
sped along the path of Nationalism until sometimes he was ahead of the
great constructor who, as he advanced, was building an enduring and
practicable highway.
FOOTNOTES:
[156] Jefferson to Madison, May 25,1810, _Works_: Ford, XI, 140.
"There is no man in the court that strikes me like Marshall.... I have
never seen a man of whose intellect I had a higher opinion." (Webster to
his brother, March 28, 1814, _Private Correspondence of Daniel Webster_:
Webster, I, 244.)
[157] "In the possession of an ordinary man ... it [the office of Chief
Justice] would be very apt to disgrace him." (Story to McLean, Oct. 12,
1835, Story, II, 208.)
[158] Justice Duval's name is often, incorrectly, spelled with two
"l's."
[159] "No man had ever a stronger influence upon the minds of others."
(_American Jurist_, XIV, 242.)
[160] Ingersoll: _Historical Sketch of the Second War between the United
States and Great Britain_, 2d Series, I, 74.
[161] "He was not, in any sense of the word, a learned man." (George S.
Hillard in _North American Review_, XLII, 224.)
[162] See vol. I, 163, of this work; also _Southern Literary Messenger_,
XVII, 154; and Terhune: _Colonial Homesteads_, 92.
[163] See vol. II, 139, of this work.
[164] Mordecai: _Richmond in By-Gone Days_, 64.
[165] Terhune, 91.
[166] _Ib._ 92; and see Howe: _Historical Collections of Virginia_, 266.
[167] _Green Bag_, VIII, 486.
[168] Personal experience related by Dr. William P. Palmer to Dr. J.
Franklin Jameson, and by him to the author.
[169] Meade: _Old Churches, Ministers and Families of Virginia_, II,
222.
[170] _Magazine of American History_, XII, 70; also _Green Bag_, VIII,
486.
[171] Anderson, 214.
[172] The stage schedule was much shorter, but the hours of travel very
long. The stage left Petersburg at 3 A.M., arrived at Warrenton at 8
P.M., left Warrenton at 3 A.M., and arrived at Raleigh the same night.
(Data furnished by Professor Archibald Henderson.) The stage was seldom
on time, however, and the hardships of traveling in it very great.
Marshall used it only when in extreme haste, a state of mind into which
he seldom would be driven by any emergency.
[173] Mordecai, 64-65. Bishop Meade says of Marshall on his trips to
Fauquier County, "Servant he had none." (Meade, II, 222.)
[174] As related by M. D. Haywood, Librarian of the Supreme Court of
North Carolina, to Professor Archibald Henderson and by him to the
author; and see _Harper's Magazine_, LXX, 610; _World's Work_, I, 395.
[175] Judge James C. MacRae in _John Marshall--Life, Character and
Judicial Services_: Dillon, II, 68.
[176] As late as April, 1811, the population of Raleigh was between six
hundred and seven hundred. Nearly all the houses were of wood. By 1810
there were only four brick houses in the town.
[177] _Magazine of American History_, XII, 69.
[178] Account of eye-witness as related by Dr. Kemp P. Battle of Raleigh
to Professor Henderson and by him to the author.
Another tavern was opened about 1806 by one John Marshall. He had been
one of the first commissioners of Raleigh, serving until 1797. He was no
relation whatever to the Chief Justice. As already stated (vol. I,
footnote to 15, of this work) the name was a common one.
[179] Mr. W. J. Peele of Raleigh to Professor Henderson.
[180] See _infra_, 154-56.
[181] Haywood to Steele, June 19, 1805. (MS. supplied by Professor
Henderson.)
[182] _World's Work_, I, 395. This statement is supported by the
testimony of Mr. Edward V. Valentine of Richmond, who has spent many
years gathering and verifying data concerning Richmond and its early
citizens. It is also confirmed by the Honorable James Keith, until
recently President of the Court of Appeals of Virginia, and by others of
the older residents of Richmond. For some opinions thus written, see
chaps, IV, V, and VI of this volume.
[183] _Green Bag_, VIII, 484. Sympathetic Richmond even ordered the town
clock and town bell muffled. (Meade, II, 222.)
[184] Statements of two eye-witnesses, Dr. Richard Crouch and William F.
Gray, to Mr. Edward V. Valentine and by him related to the author.
[185] Accounts given Professor J. Franklin Jameson by old residents of
Richmond, and by Professor Jameson to the author.
[186] Marshall to his wife, Washington, Feb. 16, 1818, MS.
[187] Same to same, March 12, 1826, MS.
[188] Same to same, Feb. 19, 1829, MS.
[189] Marshall to his wife, Washington, Jan. 30, 1831, MS.
[190] See _infra_, chap. X.
[191] Mrs. Marshall did not write to her children, it would seem. When
he was in Richmond, the Chief Justice himself sent messages from her
which were ordinary expressions of affection.
"Your mother is very much gratified with the account you give from
yourself and Claudia of all your affairs & especially of your children
and hopes for its continuance. She looks with some impatience for
similar information from John. She desires me to send her love to all
the family including Miss Maria and to tell you that this hot weather
distresses her very much & she wishes you also to give her love to John
& Elizabeth & their children." (Marshall to his son James K. Marshall,
Richmond, July 3, 1827, MS.)
[192] See vol. I, footnote to 189, of this work.
[193] In Leeds Parish, near Oakhill, Fauquier County.
[194] Meade, II, 221-22.
[195] _Green Bag_, VIII, 487.
[196] Howe, 275-76.
[197] _Ib._
[198] This story was originally published in the _Winchester
Republican_. The incident is said to have occurred at McGuire's hotel in
Winchester. The newspaper account is reproduced in the Charleston (S.C.)
edition (1845) of Howe's book, 275-76.
[199] Joseph Story in Dillon, III, 364-66.
[200] Martineau: _Retrospect of Western Travels_, I, 150.
[201] _North American Review_, XX, 444-45.
[202] Marshall to Story, Oct. 29, 1828, _Proceedings, Massachusetts
Historical Society_, 2d Series, XIV, 337-38.
[203] Thomas, born July 21, 1784; Jacquelin Ambler, born December 3,
1787; Mary, born September 17, 1795; John, born January 15, 1798; James
Keith, born February 13, 1800; Edward Carrington, born January 13, 1805.
(Paxton: _Marshall Family_, Genealogical Chart.)
[204] Edward Carrington was the only son to receive the degree of A.B.
from Harvard (1826).
[205] Paxton, 100.
[206] Marshall to Story, June 26, 1831, _Proceedings, Mass. Hist. Soc._
2d Series, XIV, 344-46.
[207] See vol. I, 55-56, of this work.
[208] Howe (Charleston, S.C., ed. of 1845), 266.
[209] Meade, II, 222.
[210] Tyler: _Tyler_, I, 220; and see vol. II, 182-83, of this work.
[211] White: _A Sketch of Chester Harding, Artist_, 195-96.
[212] _Lippincott's Magazine_, II, 624. Paulding makes this comment on
Marshall: "In his hours of relaxation he was as full of fun and as
natural as a child. He entered into the spirit of athletic exercises
with the ardor of youth; and at sixty-odd years of age was one of the
best quoit-players in Virginia." (_Ib._ 626.)
[213] _American Turf Register and Sporting Magazine_ (1829), I, 41-42;
and see Mordecai, 188-89.
[214] Recipe for the Quoit Club punch, _Green Bag_, VIII, 482. This
recipe was used for many years by the Richmond Light Infantry Blues.
[215] See vol. II, 183, of this work.
[216] On these occasions Mrs. Marshall spent the nights at the house of
her daughter or sister.
[217] For an extended description of Marshall's "lawyer dinners" see
Terhune, 85-87.
[218] See vol. I, 44-45, 153-54, of this work.
[219] Marshall to Story, Nov. 26, 1826, Story, I, 506.
[220] Story to his wife, Feb. 26, 1832, _ib._ II, 84.
[221] Marshall to Story, Sept. 30, 1829, _Proceedings, Mass. Hist. Soc._
2d Series, XIV, 341.
[222] Statement of Miss Elizabeth Marshall of Leeds Manor to the author.
[223] Meade, I, footnote to 99.
[224] _World's Work_, I, 395.
[225] Gustavus Schmidt in _Louisiana Law Journal_ (1841), I, No. 1,
85-86. Mr. Schmidt's description is of Marshall in the court-room at
Richmond when holding the United States Circuit Court at that place.
Ticknor, Story, and others show that the same was true in Washington.
[226] Quincy: _Figures of the Past_, 242-43.
[227] Story to Fay, Feb. 25, 1808, Story, I, 166-67.
[228] Story to Martineau, Oct. 8, 1835, Story, II, 205.
[229] _Ib._ I, 522.
[230] Gustavus Schmidt in _Louisiana Law Journal_ (1841), I, No. 1,
85-86.
[231] Related to the author by Mr. Sussex D. Davis of the Philadelphia
bar.
[232] Related to the author by Thomas Marshall Smith of Baltimore, a
descendant of Marshall. Mr. Smith says that this story has been handed
down through three generations of his family.
[233] Marshall to his wife, Feb. 14, 1817, MS.
[234] Same to same, Jan. 4, 1823, MS.
[235] For excellent descriptions of Washington society during Marshall's
period see the letters of Moss Kent, then a Representative in Congress.
These MSS. are in the Library of Congress. Also see Story to his wife,
Feb. 7, 1810, Story, I, 196.
[236] Marshall to his wife, Jan. 30, 1831, MS.
[237] This was painted for the Boston Athenæum. See frontispiece in vol.
III. The other portrait by Harding, painted in Richmond (see _supra_,
76), was given to Story who presented it to the Harvard Law School.
[238] White: _Sketch of Chester Harding_, 194-96.
For the Chief Justice to lose or forget articles of clothing was nothing
unusual. "He lost a coat, when he dined at the Secretary of the Navy's,"
writes Story who had been making a search for Marshall's missing
garment. (Story to Webster, March 18, 1828, Story MSS. Mass. Hist. Soc.)
[239] Story, II, 504-05.
[240] Story to Williams, Feb. 16, 1812, _ib._ I, 214.
[241] Story to Fay, Feb. 24, 1812, _ib._ 215.
[242] _Ib._
[243] Story to his wife, March 5, 1812, Story, I, 217.
[244] Same to same, March 12, 1812, _ib._ 219.
[245] _Magazine of American History_, XII, 69; and see Quincy: _Figures
of the Past_, 189-90. This tale, gathering picturesqueness as it was
passed by word of mouth during many years, had its variations.
[246] Marshall to Tazewell, Jan. 20, 1827, MS.
[247] Wirt to Delaplaine, Nov. 5, 1818, Kennedy: _Memoirs of the Life of
William Wirt_, II, 85.
[248] Bancroft to his wife, Jan. 23, 1832, Howe: _Life and Letters of
George Bancroft_, I, 202.
[249] Even Jefferson, in his bitterest attacks, never intimated anything
against Marshall's integrity; and Spencer Roane, when assailing with
great violence the opinion of the Chief Justice in M'Culloch _vs._
Maryland (see _infra_, chap, VI), paid a high tribute to the purity of
his personal character.
[250] Ticknor to his father, Feb. 1, 1815, Ticknor: _Life, Letters, and
Journals of George Ticknor_, I, 33.
[251] Description from personal observation, as quoted in Van Santvoord:
_Lives and Judicial Services of the Chief Justices_, footnote to 363.
[252] Ticknor to his father, as cited in note 1, _supra_.
[253] _Memoirs of John Quincy Adams_: Adams, IX, 243.
[254] Wirt to Carr, Dec. 30, 1827, Kennedy, 240. For Story's estimate of
Marshall's personality see Dillon, III, 363-66.
[255] "He was solicitous to hear arguments, and not to decide causes
without hearing them. And no judge ever profited more by them. No matter
whether the subject was new or old; familiar to his thoughts or remote
from them; buried under a mass of obsolete learning, or developed for
the first time yesterday--whatever was its nature, he courted argument,
nay, he demanded it." (Story in Dillon, III, 377; and see vol. II,
177-80, of this work.)
[256] See Story's description of Harper, Duponceau, Rawle, Dallas,
Ingersoll, Lee, and Martin (Story to Fay, Feb. 16, 1808, Story, I,
162-64); and of Pinkney (notes _supra_); also see Warren: _History of
the American Bar_, 257-63. We must remember, too, that Webster,
Hopkinson, Emmet, Wirt, Ogden, Clay, and others of equal ability and
accomplishments, practiced before the Supreme Court when Marshall was
Chief Justice.
[257] Story relates that a single case was argued for nine days. (Story
to Fay, Feb. 16, 1808, Story, I, 162.)
In the Charlestown Bridge case, argued in 1831, the opening counsel on
each side occupied three days. (Story to Ashmun, March 10, 1831, _ib._
II, 51.)
Four years later Story writes: "We have now a case ... which has been
under argument eight days, and will probably occupy five more." (Story
to Fay, March 2, 1835, _ib._ 193.)
In the lower courts the arguments were even longer. "This is the
fourteenth day since this argument was opened. Pinkney ... promised to
speak only two hours and a half. He has now spoken two days, and is, at
this moment, at it again for the third day." (Wirt to his wife, April 7,
1821, Kennedy, II, 119.)
[258] Story, I, 96.
[259] Story, I, 2. Elisha Story is said to have been one of the
"Indians" who threw overboard the tea at Boston; and he fought at
Lexington. When the Revolution got under way, he entered the American
Army as a surgeon and served for about two years, when he resigned
because of his disgust with the management of the medical department.
(_Ib._)
[260] Story to Duval, March 30, 1803, _ib._ 102.
[261] Story to Williams, June 6, 1805, _ib._ 105-06.
[262] Story, I, 128.
[263] At first, Story supported the Embargo.
[264] See vol. III, chap, X, of this work.
[265] Otis to Harper, April 19, 1807, Morison: _Otis_, I, 283.
[266] Cabot to Pickering, Jan. 28, 1808, Lodge: _Cabot_, 377.
[267] Story to Fay, Feb. 16, 1808, Story, I, 162.
[268] Moss Kent to James Kent, Feb. 1, 1817, Kent MSS. Lib. Cong.
[269] Story, I, 140.
[270] Jefferson to Gallatin, Sept. 27, 1810, _Works_: Ford, XI, footnote
to 152-54.
[271] See vol. II, 461-74, of this work.
[272] See vol. III, chap, VI, of this work.
[273] Hunt: _Life of Edward Livingston_, 138.
[274] _Ib._ 140.
[275] _Annals_, 10th Cong. 2d Sess. 702.
[276] _Annals_, 11th Cong. 1st and 2d Sess. 323, 327-49, 418-19, 1373,
1617-18, 1694-1702.
[277] See _supra_, 25, 35-41.
[278] Tyler to Jefferson, May 12, 1810, Tyler: _Tyler_, I, 246-47.
[279] Cyrus Griffin was educated in England; was a member of the first
Legislature of Virginia after the Declaration of Independence; was a
delegate to the Continental Congress in 1778-81, and again in 1787-88,
and was President of that body during the last year of his service. He
was made President of the Supreme Court of Admiralty, and held that
office until the court was abolished. When the Constitution was adopted,
and Washington elected President, one of his first acts, after the
passage of the Ellsworth Judiciary Law, was to appoint Judge Griffin to
the newly created office of Judge of the United States Court for the
District of Virginia. It is thus evident that Jefferson's statement was
not accurate.
[280] Jefferson to Madison, May 25, 1810, _Works_: Ford, XI, 139-41.
[281] Jefferson to Tyler, May 26, 1810, Tyler: _Tyler_, I, 247-48; also
_Works_: Ford, XI, footnote to 141-43.
[282] Jefferson to Gallatin, Sept. 27, 1810, _Works_: Ford, XI, footnote
to 152-54.
[283] Gideon Granger, as Jefferson's Postmaster-General, had lobbied on
the floor of the House for the Yazoo Bill, offering government contracts
for votes. He was denounced by Randolph in one of the most scathing
arraignments ever heard in Congress. (See vol. III, 578-79, of this
work.)
[284] Jefferson to Madison, Oct. 15, 1810, _Works_: Ford, XI, 150-52.
Granger was an eager candidate for the place, and had asked Jefferson's
support. In assuring him that it was given, Jefferson tells Granger of
his "esteem & approbation," and adds that the appointment of "a firm
unequivocating republican" is vital. (Jefferson to Granger, Oct. 22,
1810, _ib._ footnote to 155.)
[285] Hildreth: _History of the United States_, VI, 241; and see Adams:
_U.S._ V, 359-60.
[286] See vol. III, 541-43, of this work.
[287] Story, I, 212.
[288] Jefferson to Wirt, April 12, 1812, _Works_: Ford, XI, 227.
[289] Tyler to Jefferson, May 17, 1812, Tyler: _Tyler_, I, 263.
[290] Tyler to Jefferson, May 17, 1812, Tyler: _Tyler_, I, 263-64.
[291] 1 Brockenbrough, 206-12.
[292] Jefferson to Wirt, April 12, 1812, _Works_: Ford, XI, 226-27. On
the Batture controversy see Hildreth, VI, 143-48.
[293] The articles of both Jefferson and Livingston are to be found in
Hall's _American Law Journal_ (Philadelphia, 1816), vol. V, 1-91,
113-289. A brief but valuable summary of Livingston's reply to Jefferson
is found in Hunt: _Livingston_, 143-80. For an abstract of Jefferson's
attack, see Randall: _Life of Thomas Jefferson_, III, 266-68.
[294] See Hunt: _Livingston_, 276-80.
[295] Kent to Livingston, May 13, 1814, Hunt: _Livingston_, 181-82. Kent
was appointed Chancellor of the State of New York, Feb. 25, 1814. His
opinions are contained in _Johnson's Chancery Reports_, to which he
refers in this letter.
For twenty years Livingston fought for what he believed to be his rights
to the batture, and, in the end, was successful; but in such fashion
that the full value of the property was only realized by his family long
after his death.
Notwithstanding Jefferson's hostility, Livingston grew in public favor,
was elected to the Louisiana State Legislature and then to Congress,
where his work was notable. Later, in 1829, he was chosen United States
Senator from that State; and, after serving one term, was appointed
Secretary of State by President Jackson. In this office he prepared most
of the President's state papers and wrote Jackson's great Nullification
Proclamation in 1832.
Livingston was then sent as Minister to France and, by his brilliant
conduct of the negotiations over the French Spoliation Claims, secured
the payment of them. He won fame throughout Europe and Spanish America
by his various works on the penal code and code of procedure. In the
learning of the law he was not far inferior to Story and Kent.
Aside from one or two sketches, there is no account of his life except
an inadequate biography by Charles H. Hunt.
[296] Story, I, 186.
[297] Marshall to Story, Sept. 18, 1821, _Proceedings, Mass. Hist. Soc._
2d series, XIV, 330; and see _infra_, 363-64.
[298] Marbury _vs._ Madison.
[299] Marshall to Story, July 13, 1821, _Proceedings, Mass. Hist. Soc._
2d series, XIV, 328-29.
CHAPTER III
INTERNATIONAL LAW
It was Marshall's lot in more than one case to blaze the way in
the establishment of rules of international conduct. (John
Bassett Moore.)
The defects of our system of government must be remedied, not by
the judiciary, but by the sovereign power of the people. (Judge
William H. Cabell of the Virginia Court of Appeals.)
I look upon this question as one which may affect, in its
consequences, the permanence of the American Union. (Justice
William Johnson of the Supreme Court.)
While Marshall unhesitatingly struck down State laws and shackled State
authority, he just as firmly and promptly upheld National laws and
National authority. In Marbury _vs._ Madison he proclaimed the power of
National courts over Congressional legislation so that the denial of
that power might not be admitted at a time when, to do so, would have
yielded forever the vital principle of Judiciary supervision.[300] But
that opinion is the significant exception to his otherwise unbroken
practice of recognizing the validity of acts of Congress.
He carried out this practice even when he believed the law before him to
be unwise in itself, injurious to the Nation, and, indeed, of extremely
doubtful constitutionality. This course was but a part of Marshall's
Nationalist policy. The purpose of his life was to strengthen and
enlarge the powers of the National Government; to coördinate into
harmonious operation its various departments; and to make it in fact,
as well as in principle, the agent of a people constituting a single, a
strong, and efficient Nation.
A good example of his maintenance of National laws is his treatment of
the Embargo, Non-Importation, and Non-Intercourse Acts. The hostility of
the Chief Justice to those statutes was, as we have seen, extreme; the
political party of which he was an ardent member had denounced them as
unconstitutional; his closest friends thought them invalid. He himself
considered them to be, if within the Constitution at all, on the
periphery of it;[301] he believed them to be ruinous to the country and
meant as an undeserved blow at Great Britain upon whose victory over
France depended, in his opinion, the safety of America and the rescue of
imperiled civilization.
Nevertheless, not once did Marshall, in his many opinions, so much as
suggest a doubt of the validity of those measures, when cases came
before him arising from them and requiring their interpretation and
application. Most of these decisions are not now of the slightest
historical importance.[302] His opinions relating to the Embargo are,
indeed, tiresome and dull, with scarcely a flash of genius to brighten
them. Now and then, but so rarely that search for it is not worth
making, a paragraph blazes with the statement of a great principle. In
the case of the Ship Adventure and Her Cargo, one such statesmanlike
expression illuminates the page. The Non-Intercourse Law forbade
importation of British goods "from any foreign port or place whatever."
The British ship Adventure had been captured by a French frigate and
given to the master and crew of an American brig which the Frenchmen had
previously taken. The Americans brought the Adventure into Norfolk,
Virginia, and there claimed the proceeds of ship and cargo. The United
States insisted that ship and cargo should be forfeited to the
Government because brought in from "a foreign place." But, said Marshall
on this point: "The broad navigable ocean, which is emphatically and
truly termed the great highway of nations, cannot ... be denominated 'a
foreign place.'... The sea is the common property of all nations. It
belongs equally to all. None can appropriate it exclusively to
themselves; nor is it 'foreign' to any."[303]
Where special learning, or the examination of the technicalities and
nice distinctions of the law were required, Marshall did not shine. Of
admiralty law in particular he knew little. The preparation of opinions
in such cases he usually assigned to Story who, not unjustly, has been
considered the father of American admiralty law.[304] Also, in knowledge
of the intricate law of real estate, Story was the superior of Marshall
and, indeed, of all the other members of the court. Story's preëminence
in most branches of legal learning was admitted by his associates, all
of whom gladly handed over to the youthful Justice more than his share
of work. Story was flattered by the recognition. "My brethren were so
kind as to place confidence in my researches,"[305] he tells his friend
Judge Samuel Fay.
During the entire twenty-four years that Marshall and Story were
together on the Supreme Bench the Chief Justice sought and accepted the
younger man's judgment and frankly acknowledged his authority in every
variety of legal questions, excepting only those of international law or
the interpretation of the Constitution. "I wish to consult you on a case
which to me who am not versed in admiralty proceedings has some
difficulty," Marshall writes to Story in 1819.[306] In another letter
Marshall asks Story's help on a "question of great consequence."[307]
Again and again he requests the assistance of his learned junior
associate.[308] Sometimes he addresses Story as though that erudite
Justice were his superior.[309] Small wonder that John Marshall should
declare that Story's "loss would be irreparable" to the Supreme Bench,
if he should be appointed to the place made vacant by the death of
Chief Justice Parker of Massachusetts.[310]
Only in his expositions of the Constitution did Marshall take supreme
command. If he did anything preëminent, other than the infusing of life
into that instrument and thus creating a steadying force in the rampant
activities of the young American people, it was his contributions to
international law, which were of the highest order.[311]
The first two decades of his labors as Chief Justice were prolific in
problems involving international relations. The capture of neutral ships
by the European belligerents; the complications incident to the struggle
of Spanish provinces in South America for independence; the tangle of
conflicting claims growing out of the African slave trade--the unsettled
questions arising from all these sources made that period of Marshall's
services unique in the number, importance, and novelty of cases
requiring new and authoritative announcements of the law of nations. An
outline of three or four of his opinions in such cases will show the
quality of his work in that field of legal science and also illustrate
his broad conception of some of the fundamentals of American
statesmanship in foreign affairs.
His opinion in the case of the Schooner Exchange lays down principles
which embrace much more than was involved in the question immediately
before the court[312]--a practice habitual with Marshall and
distinguishing him sharply from most jurists. The vessel in controversy,
owned by citizens of Maryland, was, in 1810, captured by a French
warship, armed, and taken into the French service. The capture was made
under one of the decrees of Napoleon when the war between Great Britain
and France was raging fiercely. This was the Rambouillet Decree of March
23, 1810, which because of the Non-Intercourse Act of March 1, 1809,
ordered that American ships, entering French ports, be seized and
sold.[313] The following year the Exchange, converted into a French
national war-craft under the name of the Balaou, manned by a French
crew, commanded by a French captain, Dennis M. Begon, put into the port
of Philadelphia for repairs of injuries sustained in stress of weather.
The former owners of the vessel libeled the ship, alleging that the
capture was illegal and demanding their property.
In due course this case came before Marshall who, on March 3, 1812,
delivered a long and exhaustive opinion, the effect of which is that the
question of title to a ship having the character of a man-of-war is not
justiciable in the courts of another country. The Chief Justice begins
by avowing that he is "exploring an unbeaten path" and must rely,
mainly, on "general principles." A nation's jurisdiction within its own
territory is "necessarily exclusive and absolute. It is susceptible of
no limitation not imposed by itself." The nation itself must consent to
any restrictions upon its "full and complete power ... within its own
territories."
Nations are "distinct sovereignties, possessing equal rights and equal
independence"; and, since mutual intercourse is for mutual benefit, "all
sovereigns have consented" in certain cases to relax their "absolute and
complete jurisdiction within their respective territories.... Common
usage, and ... common opinion growing out of that usage" may determine
whether such consent has been given.[314] Even when a nation has not
expressly stipulated to modify its jurisdiction, it would be guilty of
bad faith if "suddenly and without previous notice" it violated "the
usages and received obligations of the civilized world."
One sovereign is not "amenable" to another in any respect, and "can be
supposed to enter a foreign territory only under an express license, or
in the confidence that the immunities belonging to his independent
sovereign station, though not expressly stipulated, are reserved by
implication, and will be extended to him." From the facts that
sovereigns have "perfect equality and absolute independence," and that
mutual intercourse and "an interchange of good offices with each other"
are to their common advantage, flows a class of cases in which all
sovereigns are "understood to waive the exercise of a part of that
complete exclusive territorial jurisdiction" which is "the attribute of
every nation."
One of these cases "is admitted to be the exemption of the person of the
sovereign from arrest or detention within a foreign territory. If he
enters that territory with the knowledge and license of its sovereign,
that license, although containing no stipulation exempting his person
from arrest, is universally understood to imply such stipulation."[315]
The protection of foreign ministers stands "on the same principles." The
governments to which they are accredited need not expressly consent that
these ministers shall receive immunity, but are "supposed to assent to
it." This assent is implied from the fact that, "without such exemption,
every sovereign would hazard his own dignity by employing a public
minister abroad.... Therefore, a consent to receive him, implies a
consent" that he shall be exempt from the territorial jurisdiction of
the nation to which he is sent.[316]
The armies of one sovereign cannot pass through the territory of another
without express permission; to do so would be a violation of faith.
Marshall here enters into the reasons for this obvious rule. But the
case is far otherwise, he says, as to "ships of war entering the ports
of a friendly power." The same dangers and injuries do not attend the
entrance of such vessels into a port as are inseparable from the march
of an army through a country. But as to foreign vessels, "if there be no
prohibition," of which notice has been given, "the ports of a friendly
nation are considered as open to the public ships of all powers with
whom it is at peace, and they are supposed to enter such ports and to
remain in them while allowed to remain, under the protection of the
government of the place."[317] Marshall goes into a long examination of
whether the rule applies to ships of war, and concludes that it does. So
the Exchange, now an armed vessel of France, rightfully came into the
port of Philadelphia and, while there, is under the protection of the
American Government.
In this situation can the title to the vessel be adjudicated by American
courts? It cannot, because the schooner "must be considered as having
come into the American territory under an implied promise, that while
necessarily within it, and demeaning herself in a friendly manner, she
should be exempt from the jurisdiction of the country."[318]
Over this general question there was much confusion and wrangling in the
courts of various countries, but Marshall's opinion came to be
universally accepted, and is the foundation of international law on that
subject as it stands to-day.[319]
Scarcely any other judicial act of Marshall's life reveals so clearly
his moral stature and strength. He was, as he declared, "exploring an
unbeaten path," and could have rendered a contrary decision, sustaining
it with plausible arguments. Had he allowed his feelings to influence
his judgment; had he permitted his prejudices to affect his reason; had
he heeded the desires of political friends--his opinion in the case of
the Exchange would have been the reverse of what it was.
In the war then desolating Europe, he was an intense partisan of Great
Britain and bitterly hostile to France.[320] He hated Napoleon with all
the vigor of his being. He utterly disapproved of what he believed to
be the Administration's truckling, or, at least, partiality, to the
Emperor. Yet here was a ship, captured from Americans under the orders
of that "satanic" ruler, a vessel armed by him and in his service. The
emotions of John Marshall must have raged furiously; but he so utterly
suppressed them that clear reason and considerations of statesmanship
alone controlled him.
In the South American revolutions against Spain, American sailors
generally and, indeed, the American people as a whole, ardently
sympathized with those who sought to establish for themselves free and
independent governments. Often American seamen took active part in the
conflicts. On one such occasion three Yankee mariners, commissioned by
the insurrectionary government of one of the revolting provinces,
attacked a Spanish ship on the high seas, overawed the crew, and removed
a large and valuable cargo. The offending sailors were indicted and
tried in the United States Court for the District of Massachusetts.
Upon the many questions arising in this case, United States _vs._
Palmer,[321] the judges, Story of the Supreme Court, and John Davis,
District Judge, disagreed and these questions were certified to the
Supreme Court for decision. One of these questions was: What, in
international law, is the status of a revolting province during civil
war?[322] In an extended and closely reasoned opinion, largely devoted
to the construction of the act of Congress on piracy, the Chief Justice
lays down the rule that the relation of the United States to parts of
countries engaged in internecine war is a question which must be
determined by the political departments of the Government and not by the
Judicial Department. Questions of this kind "belong ... to those who can
declare what the law shall be; who can place the nation in such a
position with respect to foreign powers as to their own judgment shall
appear wise; to whom are entrusted all its foreign relations.... In such
contests a nation may engage itself with the one party or the other; may
observe absolute neutrality; may recognize the new state absolutely; or
may make a limited recognition of it.
"The proceeding in courts must depend so entirely on the course of the
government, that it is difficult to give a precise answer to questions
which do not refer to a particular nation. It may be said, generally,
that if the government remains neutral, and recognizes the existence of
a civil war, its courts cannot consider as criminal those acts of
hostility which war authorizes, and which the new government may direct
against its enemy. To decide otherwise, would be to determine that the
war prosecuted by one of the parties was unlawful, and would be to
arraign the nation to which the court belongs against that party. This
would transcend the limits prescribed to the judicial department."[323]
So the Yankee "liberators" were set free.
Another instance of the haling of American citizens before the courts of
the United States for having taken part in the wars of South American
countries for liberation was the case of the Divina Pastora. This vessel
was captured by a privateer manned and officered by Americans in the
service of the United Provinces of Rio de la Plata. An American prize
crew was placed on board the Spanish vessel which put into the port of
New Bedford in stress of weather and was there libeled by the Spanish
Consul. The United States District Court awarded restitution, the
Circuit Court affirmed this decree, and the case was appealed to the
Supreme Court.
Marshall held that the principle announced in the Palmer case governed
the question arising from the capture of the Divina Pastora. "The United
States, having recognized the existence of a civil war between Spain and
her colonies, but remaining neutral, the courts of the Union are bound
to consider as lawful those acts which war authorizes." Captures by
privateers in the service of the revolting colonies are "regarded by us
as other captures, jure belli, are regarded," unless our neutral rights
or our laws or treaties are violated.[324]
The liberal statesman and humanitarian in Marshall on matters of foreign
policy is often displayed in his international utterances. In the case
of the Venus,[325] he dissented from the harsh judgment of the majority
of the court, which clearly stated the cold law as it existed at the
time, "that the property of an American citizen domiciled in a foreign
country became, on the breaking out of war with that country,
immediately confiscable as enemy's property, even though it was shipped
before he had knowledge of the war."[326] Surely, said Marshall, that
rule ought not to apply to a merchant who, when war breaks out, intends
to leave the foreign country where he has been doing business. Whether
or not his property is enemy property depends not alone on his residence
in the enemy country, but also on his intention to remain after war
begins. But it is plain that evidence of his intention can seldom, if
ever, be given during peace and that it can be furnished only "after the
war shall be known to him." Of consequence, "justice requires that
subsequent testimony shall be received to prove a pre-existing
fact."[327]
It is not true that extended residence in a foreign country in time of
peace is evidence of intention to remain there permanently. "The
stranger merely residing in a country during peace, however long his
stay, ... cannot ... be considered as incorporated into that society, so
as, immediately on a declaration of war, to become the enemy of his
own."[328] Even the ancient writers on international law concede this
principle. But modern commerce has sensibly influenced international law
and greatly strengthened the common sense and generally accepted
considerations just mentioned. All know, as a matter of everyday
experience, that "merchants, while belonging politically to one society,
are considered commercially as the members of another."[329] The real
motives of the merchant should be taken into account.
Of the many cases in which Marshall rendered opinions touching upon
international law, however, that of the Nereid[330] is perhaps the best
known. The descriptions of the arguments in that controversy, and of the
court when they were being made, are the most vivid and accurate that
have been preserved of the Supreme Bench and the attorneys who practiced
before it at that time. Because of this fact an account of the hearing
in this celebrated case will be helpful to a realization of similar
scenes.
The burning of the Capitol by the British in 1814 left the Supreme Court
without its basement room in that edifice; at the time the case of the
Nereid was heard, and for two years afterward,[331] that tribunal held
its sessions in the house of Elias Boudinot Caldwell, the clerk of the
court, on Capitol Hill.[332] Marshall and the Associate Justices sat
"inconveniently at the upper end" of an uncomfortable room "unfit for
the purpose for which it is used."[333] In the space before the court
were the counsel and other lawyers who had gathered to hear the
argument. Back of them were the spectators. On the occasion of this
hearing, the room was well filled by members of the legal profession and
by laymen, for everybody looked forward to a brilliant legal debate.
Nor were these expectations vain. The question was as to whether a
certain cargo owned by neutrals, but found in an enemy ship, should be
restored. The claimants were represented by J. Ogden Hoffman of New York
and the universally known and talked of Thomas Addis Emmet, the Irish
patriot whose pathetic experiences, not less than his brilliant talents,
appealed strongly to Americans of that day. For the captors appeared
Alexander J. Dallas of Pennsylvania and that strangest and most talented
advocate of his time, William Pinkney of Maryland, exquisite dandy and
profound lawyer,[334] affected fop and accomplished diplomat, insolent
as he was able, haughty[335] as he was learned.
George Ticknor gives a vivid description of the judges and lawyers.
Marshall's neglected clothing was concealed by his flowing black robes,
and his unkempt hair was combed, tied, and "fully powdered." The
Associate Justices were similarly robed and powdered, and all "looked
dignified." Justice Bushrod Washington, "a little sharp-faced gentleman
with only one eye, and a profusion of snuff distributed over his face,"
did not, perhaps, add to the impressive appearance of the tribunal; but
the noble features and stately bearing of William Johnson, the handsome
face and erect attitude of young Joseph Story, and the bald-headed,
scholarly looking Brockholst Livingston, sitting beside Marshall,
adequately filled in the picture of which he was the center.
Opinions were read by Marshall and Story, but evidently they bored the
nervous Pinkney, who "was very restless, frequently moved his seat, and,
when sitting, showed by the convulsive twitches of his face how anxious
he was to come to the conflict. At last the judges ceased to read, and
he sprang into the arena like a lion who has been loosed by his keepers
on the gladiator that awaited him." This large, stout man wore "corsets
to diminish his bulk," used "cosmetics ... to smooth and soften a skin
growing somewhat wrinkled and rigid with age," and dressed "in a style
which would be thought foppish in a much younger man."[336] His harsh,
unmusical voice, grating and high in tone, no less than his exaggerated
fashionable attire, at first repelled; but these defects were soon
forgotten because of "his clear and forcible manner" of speaking, "his
powerful and commanding eloquence, occasionally illuminated with
sparkling lights, but always logical and appropriate, and above all, his
accurate and discriminating law knowledge, which he pours out with
wonderful precision."[337]
[Illustration]
Aloof, affected, overbearing[338] as he was, Pinkney overcame
prejudice and compelled admiration "by force of eloquence, logic and
legal learning and by the display of naked talent," testifies Ticknor,
who adds that Pinkney "left behind him ... all the public speaking I had
ever heard."[339] Emmet, the Irish exile, "older in sorrows than in
years," with "an appearance of premature age," and wearing a "settled
melancholy in his countenance," spoke directly to the point and with
eloquence as persuasive as that of Pinkney was compelling.[340] Pinkney
had insulted Emmet in a previous argument, and Marshall was so
apprehensive that the Irish lawyer would now attack his opponent that
Justice Livingston had to reassure the Chief Justice.[341]
The court was as much interested in the oratory as in the arguments of
the counsel. Story's letters are rich in comment on the style and manner
of the leading advocates. At the hearing of a cause at about the same
time as that of the Nereid, he tells his wife that Pinkney and Samuel
Dexter of Massachusetts "have called crowded houses; all the belles of
the city have attended, and have been entranced for hours." Dexter was
"calm, collected, and forcible, appealing to the judgment." Pinkney,
"vivacious, sparkling, and glowing," although not "as close in his
logic as Mr. Dexter," but "step[ping] aside at will from the path, and
strew[ing] flowers of rhetoric around him."[342]
The attendance of women at arguments before the Supreme Court had as
much effect on the performance of counsel at this period as on the
oratory delivered in House and Senate. One of the belles of Washington
jotted down what took place on one such occasion. "Curiosity led me, ...
to join the female crowd who throng the court room. A place in which I
think women have no business.... One day Mr. Pinckney [_sic_] had
finished his argument and was just about seating himself when Mrs.
Madison and a train of ladies enter'd,--he recommenced, went over the
same ground, using fewer arguments, but scattering more flowers. And the
day I was there I am certain he thought more of the female part of his
audience than of the court, and on concluding, he recognized their
presence, when he said, 'He would not weary the court, by going thro a
long list of cases to prove his argument, as it would not only be
fatiguing to them, but inimical to the laws of good taste, which _on the
present occasion_, (bowing low) he wished to obey."[343]
This, then, is a fairly accurate picture of the Supreme Court of the
United States when the great arguments were made before it and its
judgments delivered through the historic opinions of Marshall--such the
conduct of counsel, the appearance of the Justices, the auditors in
attendance. Always, then, when thinking of the hearings in the Supreme
Court while he was Chief Justice, we must bear in mind some such scene
as that just described.
William Pinkney, the incomparable and enigmatic, passed away in time;
but his place was taken by Daniel Webster, as able if not so
accomplished, quite as interesting from the human point of view, and
almost as picturesque. The lively, virile Clay succeeded the solid and
methodical Dexter; and a procession of other eminent statesmen files
past our eyes in the wake of those whose distinction for the moment had
persuaded their admirers that their equals never would be seen again. It
is essential to an understanding of the time that we firmly fix in our
minds that the lawyers, no less than the judges, of that day, were
publicists as well as lawyers. They were, indeed, statesmen, having deep
in their minds the well-being of their Nation even more than the success
of their clients.
Briefly stated, the facts in the case of the Nereid were as follows:
More than a year after our second war with Great Britain had begun, one
Manuel Pinto of Buenos Aires chartered the heavily armed British
merchant ship, the Nereid, to take a cargo from London to the South
American city and another back to the British metropolis. The Nereid
sailed under the protection of a British naval convoy. The outgoing
cargo belonged partly to Pinto, partly to other Spaniards, and partly to
British subjects. When approaching Madeira an American privateer
attacked the Nereid and, after a brief fight, captured the British
vessel and took her to New York as a prize. The British part of the
cargo was condemned without contest. That part belonging to Pinto and
the other Spaniards was also awarded to the captors, but over the
earnest opposition of the owners, who appealed to the Supreme Court. The
arguments before the Supreme Court were long and uncommonly able. Those
of Pinkney and Emmet, however, contained much florid "eloquence."[344]
Space permits no summary of these addresses; the most that can be given
here is the substance of Marshall's very long and tedious opinion which
is of no historical interest, except that part of it dealing with
international law. The Chief Justice stated this capital question: "Does
the treaty between Spain and the United States subject the goods of
either party, being neutral, to condemnation as enemy property, if found
by the other in a vessel of an enemy? That treaty stipulates that
neutral bottoms shall make neutral goods, but contains no stipulation
that enemy bottoms shall communicate the hostile character to the
cargo. It is contended by the captors that the two principles are so
completely identified that the stipulation of the one necessarily
includes the other."
It was, said Marshall, "a part of the original law of nations" that
enemy goods in friendly vessels "are prize of war," and that friendly
goods in enemy vessels must be restored if captured. The reason of this
rule was that "war gives a full right to capture the goods of an enemy,
but gives no right to capture the goods of a friend." Just as "the
neutral flag constitutes no protection to enemy property," so "the
belligerent flag communicates no hostile character to neutral property."
The nature of the cargo, therefore, "depends in no degree" upon the ship
that carries it.[345]
Unless treaties expressly modified this immemorial law of nations there
would, declared Marshall, "seem to be no necessity" to suppose that an
exception was intended. "Treaties are formed upon deliberate
reflection"; if they do not specifically designate that a particular
item is to be taken out of the "ancient rule," it remains within it.
"The agreement [in the Spanish treaty] that neutral bottoms shall make
neutral goods is ... a concession made by the belligerent to the
neutral"; as such it is to be encouraged since "it enlarges the sphere
of neutral commerce, and gives to the neutral flag a capacity not given
to it by the law of nations."
On the contrary, a treaty "stipulation which subjects neutral property,
found in the bottom of an enemy, to condemnation as prize of war, is a
concession made by the neutral to the belligerent. It narrows the
sphere of neutral commerce, and takes from the neutral a privilege he
possessed under the law of nations." However, a government can make
whatever contracts with another that it may wish to make. "What shall
restrain independent nations from making such a compact" as they
please?[346]
Suppose that, regardless of "our treaty with Spain, considered as an
independent measure, the ordinances of that government would subject
American property, under similar circumstances, to confiscation." Ought
Spanish property, for that reason, to be "condemned as prize of war"?
That was not a question for courts to decide: "Reciprocating to the
subjects of a nation, or retaliating on them its unjust proceedings
towards our citizens, is a political, not a legal measure. It is for the
consideration of the government, not of its courts. The degree and the
kind of retaliation depend entirely on considerations foreign to this
tribunal."
The Government is absolutely free to do what it thinks best: "It is not
for its courts to interfere with the proceedings of the nation and to
thwart its views. It is not for us to depart from the beaten track
prescribed for us, and to tread the devious and intricate path of
politics." He and his associates had no difficulty, said Marshall, in
arriving at these conclusions. "The line of partition" between
"belligerent rights and neutral privileges" is "not so distinctly marked
as to be clearly discernible."[347] Nevertheless, the neutral part of
the Nereid's cargo must "be governed by the principles which would
apply to it had the Nereid been a general ship." That she was armed,
that she fought to resist capture, did not charge the cargo with the
belligerency of the ship, since the owners of the cargo had nothing to
do with her armed equipment or belligerent conduct.
It is "universally recognized as the original rule of the law of
nations" that a neutral may ship his goods on a belligerent vessel. This
right is "founded on the plain and simple principle that the property of
a friend remains his property wherever it may be found."[348] That it is
lodged in an armed belligerent ship does not take it out of this
universal rule. The plain truth is, declares Marshall, that "a
belligerent has a perfect right to arm in his own defense; and a neutral
has a perfect right to transport his goods in a belligerent vessel."
Such merchandise "does not cease to be neutral" because placed on an
armed belligerent ship, nor when that vessel exercises the undoubted
belligerent right forcibly to resist capture by the enemy.
Shipping goods on an armed belligerent ship does not defeat or even
impair the right of search. "What is this right of search? Is it a
substantive and independent right wantonly, and in the pride of power,
to vex and harass neutral commerce, because there is a capacity to do
so?" No! It is a right "essential ... to the exercise of ... a full and
perfect right to capture enemy goods and articles going to their enemy
which are contraband of war.... It is a mean justified by the end," and
"a right ... ancillary to the greater right of capture."
For a neutral to place "his goods in the vessel of an armed enemy" does
not connect him with that enemy or give him a "hostile character." Armed
or unarmed, "it is the right and the duty of the carrier to avoid
capture and to prevent a search." Neither arming nor resistance is
"chargeable to the goods or their owner, where he has taken no part" in
either.[349] Pinkney had cited two historical episodes, but Marshall
waved these aside as of no bearing on the case. "If the neutral
character of the goods is forfeited by the resistance of the belligerent
vessel, why is not the neutral character of the passengers," who did not
engage in the conflict, "forfeited by the same cause?"[350]
In the case of the Nereid, the goods of the neutral shipper were
inviolable. Pinkney had drawn a horrid picture of the ship, partly
warlike, partly peaceful, displaying either character as safety or
profit dictated.[351] But, answers Marshall, falling into something
like the rhetoric of his youth,[352] "the Nereid has not that
centaur-like appearance which has been ascribed to her. She does not
rove over the ocean hurling the thunders of war while sheltered by the
olive branch of peace." Her character is not part neutral, part hostile.
"She is an open and declared belligerent; claiming all the rights, and
subject to all the dangers of the belligerent character." One of these
rights is to carry neutral goods which were subject to "the hazard of
being taken into port" in case of the vessel's capture--in the event of
which they would merely be "obliged to seek another conveyance." The
ship might lawfully be captured and condemned; but the neutral cargo
within it remained neutral, could not be forfeited, and must be returned
to its owners.[353]
But Marshall anoints the wounds of the defeated Pinkney with a tribute
to the skill and beauty of his oratory and argument: "With a pencil
dipped in the most vivid colors, and guided by the hand of a master, a
splendid portrait has been drawn exhibiting this vessel and her
freighter as forming a single figure, composed of the most discordant
materials of peace and war. So exquisite was the skill of the artist, so
dazzling the garb in which the figure was presented, that it required
the exercise of that cold investigating faculty which ought always to
belong to those who sit on this bench, to discover its only
imperfection; its want of resemblance."[354]
Such are examples of Marshall's expositions of international law and
typical illustrations of his method in statement and reasoning. His
opinion in the case of the Nereid is notable, too, because Story
dissented[355]--and for Joseph Story to disagree with John Marshall was
a rare event. Justice Livingston also disagreed, and the British High
Court of Admiralty maintained the contrary doctrine. But the principle
announced by Marshall, that enemy bottoms do not make enemy goods and
that neutral property is sacred, remained and still remains the American
doctrine. Indeed, by the Declaration of Paris in 1856, the principle
thus announced by Marshall in 1815 is now the accepted doctrine of the
whole world.
Closely akin to the statesmanship displayed in his pronouncements upon
international law, was his assertion, in Insurance Co. _vs._
Canter,[356] that the Nation has power to acquire and to govern
territory. The facts of this case were that a ship with a cargo of
cotton, which was insured, was wrecked on the coast of Florida after
that territory had been ceded to the United States and before it became
a State of the Union. The cotton was saved, and taken to Key West,
where, by order of a local court acting under a Territorial law, it was
sold at auction to satisfy claims for salvage. Part of the cotton was
purchased by one David Canter, who shipped it to Charleston, South
Carolina, where the insurance companies libeled it. The libelants
contended, among other things, that the Florida court was not competent
to order the auction sale because the Territorial act was "inconsistent"
with the National Constitution. After a sharp and determined contest in
the District and Circuit Courts of the United States at Charleston, in
which Canter finally prevailed, the case was taken to the Supreme
Court.[357]
Was the Territorial act, under which the local court at Key West ordered
the auction sale, valid? The answer to that question, said Marshall, in
delivering the opinion of the court, depends upon "the relation in which
Florida stands to the United States." Since the National Government can
make war and conclude treaties, it follows that it "possesses the power
of acquiring territory either by conquest or treaty.... Ceded territory
becomes a part of the nation to which it is annexed"; but "the relations
of the inhabitants to each other [do not] undergo any change." Their
allegiance is transferred; but the law "which regulates the intercourse
and general conduct of individuals remains in force until altered by the
newly created power of the state."[358]
The treaty by which Spain ceded Florida to the United States assures to
the people living in that Territory "the enjoyment of the privileges,
rights, and immunities" of American citizens; "they do not however,
participate in political power; they do not share in the government till
Florida shall become a state. In the meantime Florida continues to be a
Territory of the United States, governed by virtue of that clause in the
Constitution which empowers Congress 'to make all needful rules &
regulations respecting the territory or other property belonging to the
United States.'"[359]
The Florida salvage act is not violative of the Constitution. The courts
upon which that law confers jurisdiction are not "Constitutional
Courts; ... they are legislative Courts, created in virtue of the
general right of sovereignty which exists in the government, or in
virtue of that clause which enables Congress to make all needful rules
and regulations respecting the territory belonging to the United
States.... Although admiralty jurisdiction can be exercised, in the
States, in those courts only" which are authorized by the Constitution,
the same limitation does not extend to the Territories. In legislating
for them, Congress exercises the combined powers of the general and of a
state government.[360]
Admirable and formative as were Marshall's opinions of the law of
nations, they received no attention from the people, no opposition from
the politicians, and were generally approved by the bar. At the very
next term of the Supreme Court, after the decision in the case of the
Nereid, an opinion was delivered by Story that aroused more contention
and had greater effect on the American Nation than had all the
decisions of the Supreme Court on international law up to that time.
This was the opinion in the famous case of Martin _vs._ Hunter's Lessee.
It was Story's first exposition of Constitutional law and it closely
resembles Marshall's best interpretations of the Constitution. So
conspicuous is this fact that the bench and bar generally have adopted
the view that the Chief Justice was, in effect, the spiritual author of
this commanding judicial utterance.[361] But Story had now been by
Marshall's side on the Supreme Bench for four years and, in his ardent
way, had become more strenuously Nationalist, at least in expression,
than Marshall.[362]
That the Chief Justice himself did not deliver this opinion was due to
the circumstance that his brother, James M. Marshall, was involved in
the controversy; was, indeed, a real party in interest. This fact,
together with the personal hatred of Marshall by the head of the
Virginia Republican organization, had much to do with the stirring
events that attended and followed this litigation.
At the time of the Fairfax-Hunter controversy, Virginia was governed by
one of the most efficient party organizations ever developed under free
institutions. Its head was Spencer Roane, President of the Court of
Appeals, the highest tribunal in the State, an able and learned man of
strong prejudices and domineering character. Jefferson had intended to
appoint Roane Chief Justice of the United States upon the expected
retirement of Ellsworth.[363] But Ellsworth's timely resignation gave
Adams the opportunity to appoint Marshall. Thus Roane's highest ambition
was destroyed and his lifelong dislike of Marshall became a personal and
a virulent animosity.
Roane was supported by his cousin, Thomas Ritchie, editor of the
Richmond _Enquirer_, the most influential of Southern newspapers, and,
indeed, one of the most powerful journals in the Nation. Another of the
Virginia junto was John Taylor of Caroline County, a brilliant,
unselfish, and sincere man. Back of this triumvirate was Thomas
Jefferson with his immense popularity and his unrivaled political
sagacity. These men were the commanding officers of a self-perpetuating
governmental system based on the smallest political unit, the County
Courts. These courts were made up of justices of the peace appointed by
the Governor. Vacancies in the County Courts were filled only on the
recommendation of the remaining members.[364] These justices of the
peace also named the men to be sent to the State Legislature which
appointed the Governor and also chose the members of the Court of
Appeals who held office for life.[365] A perfect circle of political
action was thus formed, the permanent and controlling center of which
was the Court of Appeals.
These, then, were the judge, the court, and the party organization which
now defied the Supreme Court of the United States. By one of those
curious jumbles by which Fate confuses mortals, the excuse for this
defiance of Nationalism by Localism arose from a land investment by
Marshall and his brother. Thus the fact of the purchase of the larger
part of the Fairfax estate[366] is woven into the Constitutional
development of the Nation.
Five years before the Marshall syndicate made this investment,[367] one
David Hunter obtained from Virginia a grant of seven hundred and
eighty-eight acres of that part of the Fairfax holdings known as "waste
and ungranted land."[368] The grant was made under the various
confiscatory acts of the Virginia Legislature passed during the
Revolution. These acts had not been carried into effect, however, and in
1783 the Treaty of Peace put an end to subsequent proceedings under
them.
Denny Martin Fairfax, the devisee of Lord Fairfax, denied the validity
of Hunter's grant from the State on the ground that Virginia did not
execute her confiscatory statutes during the war, and that all lands and
property to which those laws applied were protected by the Treaty of
Peace. In 1791, two years after he obtained his grant and eight years
after the ratification of the treaty, Hunter brought suit in the
Superior Court at Winchester[369] against Fairfax's devisee for the
recovery of the land. The action was under the ancient form of legal
procedure still practiced, and bore the title of "Timothy Trititle,
Lessee of David Hunter, _vs._ Denny Fairfax," Devisee of Thomas, Lord
Fairfax.[370] The facts were agreed to by the parties and, on April 24,
1794, the court decided against Hunter,[371] who appealed to the Court
of Appeals at Richmond.[372] Two years later, in May, 1796, the case was
argued before Judges Roane, Fleming, Lyons, and Carrington.[373]
Meanwhile the Jay Treaty had been ratified, thus confirming the
guarantees of the Treaty of Peace to the holders of titles of lands
which Virginia, in her confiscatory acts, had declared forfeited.
At the winter session, 1796-97, of the Virginia Legislature, Marshall,
acting for his brother and brother-in-law, as well as for himself,
agreed to execute deeds to relinquish their joint claims "to the waste
and unappropriated lands in the Northern Neck" upon condition that the
State would confirm the Fairfax title to lands specifically
appropriated[374] by Lord Fairfax or by his devisee. But for the
statement made many years later by Judges Roane and Fleming, of the
Court of Appeals, that this adjustment covered the land claimed by
Hunter, it would appear that Marshall did not intend to include it in
the compromise,[375] even if, as seems improbable, it was a part of the
Marshall syndicate's purchase; for the decision of the court at
Winchester had been against Hunter, and after that decision and before
the compromise, the Jay Treaty had settled the question of title.
On October 18, 1806, the Marshall syndicate, having finally made the
remaining payments for that part of the Fairfax estate purchased by
it--fourteen thousand pounds in all--Philip Martin, the devisee of Denny
M. Fairfax, executed his warranty to John and James M. Marshall and
their brother-in-law, Rawleigh Colston; and this deed was duly recorded
in Fauquier, Warren, Frederick, and Shenandoah Counties, where the
Fairfax lands were situated.[376] Nearly ten years before this
conveyance, James M. Marshall separately had purchased from Denny Martin
Fairfax large quantities of land in Shenandoah and Hardy Counties where
the Hunter grant probably was situated.[377]
It would seem that James M. Marshall continued in peaceful possession of
the land, the title to which the Winchester court had decreed to be in
the Fairfax devisee and not in Hunter. When Denny M. Fairfax died, he
devised his estate to his younger brother[378] Major-General Philip
Martin. About the same time he made James M. Marshall his administrator,
with the will annexed, apparently for the purpose of enabling him to
collect old rents.[379] For thirteen years and six months the case of
Hunter _vs._ Fairfax's Devisee slumbered in the drowsy archives of the
Virginia Court of Appeals. In the autumn of 1809, however, Hunter
demanded a hearing of it and, on October 25, of that year, it was
reargued.[380] Hunter was represented by John Wickham, then the
acknowledged leader of the Virginia bar, and by another lawyer named
Williams.[381] Daniel Call appeared for the Fairfax devisee.
The following spring[382] the Court of Appeals decided in favor of
Hunter, reversing the judgment of the lower court rendered more than
sixteen years before. In his opinion Roane, revealing his animosity to
Marshall, declared that the compromise of 1796 covered the case. "I can
never consent that the appellees,[383] after having got the benefit
thereof, should refuse to submit thereto, or pay the equivalent; the
consequence of which would be, that the Commonwealth would have to
remunerate the appellant for the land recovered from him! Such a course
cannot be justified on the principles of justice and good faith; and, I
confess, I was not a little surprised that the objection should have
been raised in the case before us."[384]
To this judgment the Fairfax devisee[385] obtained from the Supreme
Court of the United States[386] a writ of error to the Virginia court
under Section 25 of the Ellsworth Judiciary Act, upon the ground that
the case involved the construction of the Treaty of Peace with Great
Britain and the Jay Treaty, the Virginia court having held against the
right claimed by Fairfax's devisee under those treaties.[387]
The Supreme Court now consisted of two Federalists, Washington and
Marshall, and five Republicans, Johnson, Livingston, Story, and Duval;
and Todd, who was absent from illness at the decision of this cause.
Marshall declined to sit during the arguments, or to participate in the
deliberations and conclusions of his associates. Indeed, throughout this
litigation the Chief Justice may almost be said to have leaned backward.
It was with good reason that Henry S. Randall, the biographer and
apologist of Jefferson, went out of his way to laud Marshall's
"stainless private character" and pay tribute to his "austere public and
private virtue."[388]
Eight years before the Hunter-Fairfax controversy was first brought to
the Supreme Court, the case of the Granville heirs against William R.
Davie, Nathaniel Allen, and Josiah Collins, was tried at the June term,
1805, of the United States Court at Raleigh, North Carolina. Marshall,
as Circuit Judge, sat with Potter, District Judge. The question was
precisely that involved in the Fairfax title. The grant to Lord
Granville[389] was the same as that to Lord Fairfax.[390] North Carolina
had passed the same confiscatory acts against alien holdings as
Virginia.[391] Under these statutes, Davie, Allen, and Collins obtained
grants to parts of the Granville estate[392] identical with that of
Hunter to a part of the Fairfax estate in Virginia.
Here was an excellent opportunity for Marshall to decide the Fairfax
controversy once and for all. Nowhere was his reputation at that time
higher than in North Carolina, nowhere was he more admired and
trusted.[393] That his opinion would have been accepted by the State
authorities and acquiesced in by the people, there can be no doubt.[394]
But the Chief Justice flatly stated that he would take no part in the
trial because of an "opinion ... formed when he was very deeply
interested (alluding to the cause of Lord Fairfax in Virginia). He could
not consistently with his duty and the delicacy he felt, give an opinion
in the cause."[395]
The case of Fairfax's Devisee _vs._ Hunter's Lessee was argued for the
former by Charles Lee of Richmond and Walter Jones of Washington, D.C.
Robert Goodloe Harper of Baltimore appeared for Hunter. On both sides
the argument was mainly upon the effect on the Fairfax title of the
Virginia confiscatory laws; of the proceedings or failure to proceed
under them; and the bearing upon the controversy of the two treaties
with Great Britain. Harper, however, insisted that the court consider
the statute of Virginia which set forth and confirmed the Marshall
compromise.
On March 15, 1813, Story delivered the opinion of the majority of the
court, consisting of himself and Justices Washington, Livingston, Todd,
and Duval. Johnson, alone, dissented. Story held that, since Virginia
had not taken the prescribed steps to acquire legal possession of the
land before the Treaty of Peace, the State could not do so afterward.
"The patent of the original plaintiff [Hunter] ... issued improvidently
and passed no title whatever." To uphold Virginia's grant to Hunter
"would be selling suits and controversies through the whole
country."[396] It was not necessary, said Story, to consider the Treaty
of Peace, since "we are well satisfied that the treaty of 1794[397]
completely protects and confirms the title of Denny Fairfax."[398]
In his dissenting opinion Justice Johnson ignored the "compromise" of
1796, holding that the grant by the State to Hunter extinguished the
right of Fairfax's devisee.[399] He concurred with Story and Washington,
however, in the opinion that, on the face of the record, the case came
within Section 25 of the Judiciary Act; that, therefore, the writ of
error had properly issued, and that the title must be inquired into
before considering "how far the ... treaty ... is applicable to
it."[400] Accordingly the mandate of the Supreme Court was directed to
the judges of the Virginia Court of Appeals, instructing them "to enter
judgment for the appellant, Philip Martin [the Fairfax devisee]." Like
all writs of the Supreme Court, it was, of course, issued in the name of
the Chief Justice.[401]
Hot was the wrath of Roane and the other judges of Virginia's highest
court when they received this order from the National tribunal at
Washington. At their next sitting they considered whether to obey or to
defy the mandate. They called in "the members of the bar generally,"
and the question "was solemnly argued" at Richmond for six consecutive
days.[402] On December 16, 1815, the decision was published. The
Virginia judges unanimously declined to obey the mandate of the Supreme
Court of the United States. Each judge rendered a separate opinion, and
all held that so much of Section 25 of the National Judiciary Act as
"extends the appellate jurisdiction of the Supreme Court to this court,
is not in pursuance of the constitution of the United States."[403]
But it was not only the Virginia Court of Appeals that now spoke; it was
the entire Republican partisan machine, intensively organized and
intelligently run, that brought its power to bear against the highest
tribunal of the Nation. Beyond all possible doubt, this Republican
organization, speaking through the supreme judiciary of the State,
represented public sentiment, generally, throughout the Old Dominion.
Unless this political significance of the opinions of the Virginia
judges be held of higher value than their legal quality, the account of
this historic controversy deserves no more than a brief paragraph
stating the legal point decided.
The central question was well set forth by Judge Cabell thus: Even where
the construction of a treaty is involved in the final decision of a
cause by the highest court of a State, that decision being against the
title of the party claiming under the treaty, can Congress "confer on
the Supreme Court of the United States, a power to _re-examine, by way
of appeal or writ of error, the decision of the state Court; to affirm
or reverse that decision; and in case of reversal, to command the state
Court to enter and execute a judgment different from that which it had
previously rendered_?"[404]
Every one of the judges answered in the negative. The opinion of Judge
Cabell was the ablest, and stated most clearly the real issue raised by
the Virginia court. Neither State nor National Government is dependent
one upon the other, he said; neither can act "_compulsively_" upon the
other. Controversies might arise between State and National Governments,
"yet the constitution has provided no umpire, has erected no tribunal by
which they shall be settled." Therefore, the National court could not
oblige the State court to "enter a judgment not its own."[405] The
meaning of the National "Constitution, laws and treaties, ... must,
in cases coming before State courts, be decided by the State
Judges, _according to their own judgments, and upon their own
responsibility_."[406] National tribunals belong to one sovereignty;
State tribunals to a different sovereignty--neither is "_superior_" to
the other; neither can command or instruct the other.[407]
Grant that this interpretation of the Constitution results in conflicts
between State and Nation and even deprives the "general government ...
of the power of executing its laws and treaties"; even so, "the defects
of our system of government must be remedied, not by the judiciary, but
by the sovereign power of the people." The Constitution must be amended
by the people, not by judicial interpretation;[408] yet Congress, in
Section 25 of the Judiciary Act, "attempts, in fact, to make the State
Courts _Inferior Federal Courts_." The appellate jurisdiction conferred
on the Supreme Court, and the word "_supreme_" itself, had reference to
inferior National courts and not to State courts.[409]
Judge Roane's opinion was very long and discussed extensively every
phase of the controversy. He held that, in giving National courts power
over State courts, Section 25 of the Ellsworth Judiciary Act violated
the National Constitution. If National courts could control State
tribunals, it would be a "plain case of the judiciary of one government
correcting and reversing the decisions of that of another."[410] The
Virginia Court of Appeals "is bound, to follow its own convictions ...
any thing in the decisions, or supposed decisions, of any other court,
to the contrary notwithstanding." Let the court at Winchester,
therefore, be instructed to execute the judgment of the State Court of
Appeals.[411]
Such was the open, aggressive, and dramatic defiance of the Supreme
Court of the United States by the Court of Appeals of Virginia. Roane
showed his opinion to Monroe, who approved it and sent it to Jefferson
at Monticello. Jefferson heartily commended Roane,[412] whereat the
Virginia judge was "very much flattered and gratified."[413]
Promptly Philip Martin, through James M. Marshall, took the case to the
Supreme Court by means of another writ of error. It now stood upon the
docket of that court as Martin _vs._ Hunter's Lessee. Again Marshall
refused to sit in the case. St. George Tucker of Virginia, one of the
ablest lawyers of the South, and Samuel Dexter, the leader of the
Massachusetts bar, appeared for Hunter.[414] As Harper had done on the
first appeal, both Tucker and Dexter called attention to the fact that
the decision of the Virginia Court of Appeals did not rest exclusively
upon the Treaty of Peace, which alone in this case would have authorized
an appeal to the Supreme Court.[415]
Story delivered the court's opinion, which was one of the longest and
ablest he ever wrote. The Constitution was not ordained by the States,
but "emphatically ... by 'the people of the United States.'[416]... Its
powers are expressed in general terms, leaving to the legislature, from
time to time, to adopt its own means to effectuate legitimate objects,
and to mold and model the exercise of its powers, as its own wisdom and
the public interests should require."[417] Story then quotes Sections 1
and 2 of Article III of the Constitution,[418] and continues: Thus is
"the voice of the whole American people solemnly declared, in
establishing one great department of that government which was, in many
respects, national, and in all, supreme." Congress cannot disregard this
Constitutional mandate. At a length which, but for the newness of the
question, would be intolerable, Story demonstrates that the
Constitutional grant of judiciary powers is "imperative."[419]
What, then, is the "nature and extent of the appellate jurisdiction of
the United States"? It embraces "every case ... not exclusively to be
decided by way of original jurisdiction." There is nothing in the
Constitution to "restrain its exercise over state tribunals in the
enumerated cases.... It is the case, ... and not the court, that gives
the jurisdiction."[420] If the appellate power does not extend to State
courts having concurrent jurisdiction of specified cases, then that
power does "not extend to all, but to some, cases"--whereas the
Constitution declares that it extends to all other cases than those over
which the Supreme Court is given original jurisdiction.[421]
With great care Story shows the "propriety" of this construction.[422]
Then, with repetitiousness after the true Marshall pattern, he
reasserts that the Constitution acts on States as well as upon
individuals, and gives many instances where the "sovereignty" of the
States are "restrained." State judges are not independent "in respect to
the powers granted to the United States";[423] and the appellate power
of the Nation extends to the State courts in cases prescribed in Section
25 of the Judiciary Act; for the Constitution does not limit this power
and "we dare not interpose a limitation where the people have not been
disposed to create one."[424]
The case decided on the former record, says Story, is not now before the
court. "The question now litigated is not upon the construction of a
treaty, but upon the constitutionality of a statute of the United
States, which is clearly within our jurisdiction." However, "from
motives of a public nature," the Supreme Court would "re-examine" the
grounds of its former decision.[425] After such reëxamination, extensive
in length and detail, he finds the first decision of the Supreme Court
to have been correct.
Story thus notices the Marshall adjustment of 1796: "If it be true (as
we are informed)" that the compromise had been effected, the court could
not take "judicial cognizance" of it "unless spread upon the record."
Aside from the Treaty of Peace, the Fairfax title "was, at all events,
perfect under the treaty of 1794."[426] In conclusion, Story announces:
"It is the opinion of the whole court that the judgment of the Court of
Appeals of Virginia, rendered on the mandate in this cause, be
reversed, and the judgment of the District Court, held at Winchester,
be, and the same is hereby affirmed."[427]
It has been commonly supposed that Marshall practically dictated Story's
two opinions in the Fairfax-Hunter controversy, and certain writers have
stated this to be the fact. As we have seen, Story himself, fifteen
years afterwards, declared that the Chief Justice had "concurred in
every word of the second opinion"; yet in a letter to his brother
concerning the effect of Story's opinion upon another suit in the State
court at Winchester, involving the same question, Marshall says: "The
case of Hunter & Fairfax is very absurdly put on the treaty of
94."[428]
Justice Johnson dissented in an opinion as inept and unhappy as his
dissent in Fletcher _vs._ Peck.[429] He concurs in the judgment of his
brethren, but, in doing so, indulges in a stump speech in which
Nationalism and State Rights are mingled in astounding fashion. The
Supreme Court of the United States, he says, "disavows all intention to
decide on the right to issue compulsory process to the state courts." To
be sure, the Supreme Court is "supreme over persons and cases as far as
our judicial powers extend," but it cannot assert "any compulsory
control over the state tribunals." He views "this question as one ...
which may affect, in its consequences, the permanence of the American
Union," since the Nation and "one of the greatest states" are in
collision. The "general government must cease to exist" if the Virginia
doctrine shall prevail, but "so firmly" was he "persuaded that the
American people can no longer enjoy the blessings of a free government,
whenever the state sovereignties shall be prostrated at the feet of the
general government," that he "could borrow the language of a celebrated
orator, and exclaim: 'I rejoice that Virginia has resisted.'"[430]
Nevertheless, Johnson agrees with the judgment of his associates and, in
doing so, delivers a Nationalist opinion, stronger if possible than that
of Story.[431]
The public benefits and the historic importance of the decision was the
assertion of the supremacy of the Supreme Court of the Nation over the
highest court of any State in all cases where the National Constitution,
laws and treaties--"the supreme law of the land"--are involved. The
decision of the Supreme Court in Martin _vs._ Hunter's Lessee went
further than any previous judicial pronouncement to establish the
relation between National courts and State tribunals which now exists
and will continue as long as the Republic endures.
When the news of this, the first Constitutional opinion ever delivered
by Story, got abroad, he was mercilessly assailed by his fellow
Republicans as a "renegade."[432] Congress refused to increase the
salaries of the members of the Supreme Court,[433] who found it hard to
live on the compensation allowed them,[434] and Story seriously
considered resigning from the bench and taking over the Baltimore
practice of Mr. Pinkney, who soon was to be appointed Minister to
Russia.[435] The decision aroused excitement and indignation throughout
Virginia. Roane's popularity increased from the Tide Water to the
Valley.[436] The Republican organization made a political issue of the
judgment of the National tribunal at Washington. Judge Roane issued his
orders to his political lieutenants. The party newspapers, led by the
_Enquirer_, inveighed against the "usurpation" by this distant Supreme
Court of the United States, a foreign power, an alien judiciary,
unsympathetic with Virginia, ignorant of the needs of Virginians.
This conflict between the Supreme Court of the United States and the
Court of Appeals of Virginia opened another phase of that fundamental
struggle which war was to decide--a fact without knowledge of which this
phase of American Constitutional history is colorless.
Not yet, however, was the astute Virginia Republican triumvirate ready
to unloose the lightnings of Virginia's wrath. That must be done only
when the whole South should reach a proper degree of emotion. This time
was not long to be delayed. Within three years Marshall's opinion in
M'Culloch _vs._ Maryland was to give Roane, Ritchie, and Taylor their
cue to come upon the stage as the spokesmen of Virginia and the entire
South, as the champions, indeed, of Localism everywhere throughout
America. Important were the parts they played in the drama of
Marshall's judicial career.
FOOTNOTES:
[300] See vol. III, chap. III, of this work.
[301] This is a fair inference from the statement of Joseph Story in his
autobiography: "I have ever considered the embargo a measure, which went
to the utmost limit of constructive power under the Constitution. It
stands upon the extreme verge of the Constitution, being in its very
form and terms an unlimited prohibition, or suspension of foreign
commerce." (Story, I, 185-86.) When it is remembered that after Story
was made Associate Justice his views became identical with those of
Marshall on almost every subject, it would seem likely that Story
expressed the opinions of the Chief Justice as well as his own on the
constitutionality of the Embargo.
[302] See, for instance, the case of William Dixon _et al._ _vs._ The
United States, 1 Brockenbrough, 177; United States _vs._ ----, _ib._
195; the case of the Fortuna, _ib._ 299; the case of the Brig Caroline,
_ib._ 384; Thomson and Dixon _vs._ United States (case of the Schooner
Patriot), _ib._ 407.
[303] 1 Brockenbrough, 241.
[304] See Warren, 279.
[305] Story to Fay, April 24, 1814, Story, I, 261.
[306] Marshall to Story, May 27, 1819, _Proceedings, Mass. Hist. Soc._
2d Series, XIV, 325. This was the case of the Little Charles.
[307] Same to same, July 13, 1819, _ib._ 326.
[308] Same to same, June 15, 1821, _ib._ 327; Sept. 18, 1821, _ib._ 331;
Dec. 9, 1823, _ib._ 334; June 26, 1831, _ib._ 344.
[309] Same to same, July 2, 1823, _ib._ 331-33.
[310] Same to same, Oct. 15, 1830, _ib._ 342.
[311] John Bassett Moore, in his _Digest of International Law_, cites
Marshall frequently and often uses passages from his opinions. Henry
Wheaton, in his _Elements of International Law_, sometimes quotes
Marshall's language as part of the text.
[312] Professor John Bassett Moore, in a letter to the author, says that
he considers Marshall's opinion in this case his greatest in the realm
of international law.
[313] _Am. State Papers, For. Rel._ III, 384.
[314] 7 Cranch, 136.
[315] 7 Cranch, 137.
[316] _Ib._ 138-39.
[317] _Ib._ 141.
[318] 7 Cranch, 147.
[319] See John Bassett Moore in Dillon, I, 521-23.
[320] See _supra_, chap. I.
[321] 3 Wheaton, 610-44.
[322] _Ib._ 614.
[323] 3 Wheaton, 634-35.
[324] 4 Wheaton, 63-64.
[325] 8 Cranch, 253-317.
[326] John Bassett Moore in Dillon, I, 524.
[327] 8 Cranch, 289.
[328] _Ib._ 291-92.
[329] _Ib._ 293.
[330] 9 Cranch, 388 _et seq._
[331] Until the February session of 1817. This room was not destroyed or
injured by the fire, but was closed while the remainder of the Capitol
was being repaired. In 1817, the court occupied another basement room in
the Capitol, where it continued to meet until February, 1819, when it
returned to its old quarters in the room where the library of the
Supreme Court is now situated. (Bryan: _History of the National
Capital_, II, 39.)
[332] _Ib._, I, 632. Mr. Bryan says that this house still stands and is
now known as 204-06 Pennsylvania Avenue, S.E.
[333] Ticknor to his father, Feb. 1815, Ticknor, I, 38.
[334] "His opinions had almost acquired the authority of judicial
decisions." (Pinkney: _Life of William Pinkney_, quotation from Robert
Goodloe Harper on title-page.)
[335] "He has ... a dogmatizing absoluteness of manner which passes with
the million, ... for an evidence of power; and he has acquired with
those around him a sort of papal infallibility." (Wirt to Gilmer, April
1, 1816, Kennedy, I, 403.)
Wirt's estimate of Pinkney must have been influenced by professional
jealousy, for men like Story and Marshall were as profoundly affected by
the Maryland legal genius as were the most emotional spectators. See the
criticisms of Wirt's comments on Pinkney by his nephew, Rev. William
Pinkney, in his _Life of William Pinkney_, 116-22.
[336] Ticknor to his father, Feb. [day omitted] 1815, Ticknor, I, 38-40.
[337] Story to Williams, Feb. 16, 1812, Story, I, 214; and March 6,
1814, _ib._ 252.
[338] "At the bar he is despotic and cares as little for his colleagues
or adversaries as if they were men of wood." (Wirt to Gilmer, April 1,
1816, Kennedy, I, 403.)
The late Roscoe Conkling was almost the reincarnation of William
Pinkney. In extravagance of dress, haughtiness of manner, retentiveness
of memory, power and brilliancy of mind, and genuine eloquence, Pinkney
and Conkling were well-nigh counterparts.
[339] Ticknor to his father, Feb. 21, 1815, Ticknor, I, 40.
[340] _Ib._ Feb. 1815, 39-40.
[341] Pinkney, 100-01.
[342] Story to his wife, March 10, 1814, Story, I, 253.
[343] Mrs. Samuel Harrison Smith to Mrs. Kirkpatrick, March 13, 1814,
_First Forty Years of Washington Society_: Hunt, 96.
Pinkney especially would become eloquent, even in an argument of dry,
commercial law, if women entered the court-room. "There were ladies
present--and Pinkney was expected to be eloquent at all events. So, the
mode he adopted was to get into his tragical tone in discussing the
construction of an act of Congress. Closing his speech in this solemn
tone he took his seat, saying to me, with a smile--'that will do for the
ladies.'" (Wirt to Gilmer, April 1, 1816, Kennedy, I, 404.)
The presence of women affected others no less than Pinkney. "Webster,
Wirt, Taney ... and Emmet, are the combatants, and a bevy of ladies are
the promised and brilliant distributors of the prizes," writes Story of
an argument in the Supreme Court many years later. (Story to Fay, March
8, 1826, Story, I, 493.)
[344] This is illustrated by the passage in Pinkney's argument to which
Marshall in his opinion paid such a remarkable tribute (see _infra_,
141).
[345] 9 Cranch, 418-19.
[346] 9 Cranch, 419-20.
[347] _Ib._ 422-23.
[348] 9 Cranch, 425.
[349] 9 Cranch, 426-29.
[350] _Ib._ 428-29.
[351] "We ... have Neutrality, soft and gentle and defenceless in
herself, yet clad in the panoply of her warlike neighbours--with the
frown of defiance upon her brow, and the smile of conciliation upon her
lip--with the spear of Achilles in one hand and a lying protestation of
innocence and helplessness unfolded in the other. Nay, ... we shall have
the branch of olive entwined around the bolt of Jove, and Neutrality in
the act of hurling the latter under the deceitful cover of the
former....
"Call you that Neutrality which thus conceals beneath its appropriate
vestment the giant limbs of War, and converts the charter-party of the
compting-house into a commission of marque and reprisals; which makes of
neutral trade a laboratory of belligerent annoyance; which ... warms a
torpid serpent into life, and places it beneath the footsteps of a
friend with a more appalling lustre on its crest and added venom in its
sting." (Wheaton: _Some Account of the Life, Writings, and Speeches of
William Pinkney_, 463, 466.)
Pinkney frankly said that his metaphors, "hastily conceived and
hazarded," were inspired by the presence of women "of this mixed and
(for a court of judicature) _uncommon_ audience." (_Ib._ 464-65.)
Except for this exhibition of rodomontade his address was a wonderful
display of reasoning and erudition. His brief peroration was eloquence
of the noblest order. (See entire speech, Wheaton: _Pinkney_, 455-516.)
[352] See vol. I, 72, 195, of this work.
[353] 9 Cranch, 430-31.
[354] _Ib._ 430.
[355] "Never in my whole life was I more entirely satisfied that the
Court were wrong in their judgment. I hope Mr. Pinkney will ... publish
his admirable argument ... it will do him immortal honor." (Story to
Williams, May 8, 1815, Story, I, 256.)
Exactly the same question as that decided in the case of the Nereid was
again brought before the Supreme Court two years later in the case of
the Atalanta. (3 Wheaton, 409.) Marshall merely stated that the former
decision governed the case. (_Ib._ 415.)
[356] The American Insurance Company _et al._ _vs._ David Canter, 1
Peters, 511-46.
[357] 1 Peters, 511-46.
[358] _Ib._ 542.
[359] 1 Peters, 542.
[360] _Ib._ 546.
[361] Story wrote George Ticknor that Marshall "concurred in every word
of it." (Story to Ticknor, Jan. 22, 1831, Story, II, 49.)
[362] "Let us extend the national authority over the whole extent of
power given by the Constitution. Let us have great military and naval
schools; an adequate regular army; the broad foundations laid of a
permanent navy; a national bank; a national system of bankruptcy; a
great navigation act; a general survey of our ports, and appointments of
port-wardens and pilots; Judicial Courts which shall embrace the ...
justices of the peace, for the commercial and national concerns of the
United States. By such enlarged and liberal institutions, the Government
of the United States will be endeared to the people.... Let us prevent
the possibility of a division, by creating great national interests
which shall bind us in an indissoluble chain." (Story to Williams, Feb.
22, 1815, _ib._ I, 254.)
Later in the same year Story repeated these views and added: "I most
sincerely hope that a national newspaper may be established at
Washington." (Story to Wheaton, Dec. 13, 1815, _ib._ 270-71.)
[363] Professor William E. Dodd, in _Am. Hist. Rev._ XII, 776.
[364] For fuller description of the Virginia County Court system, see
chap. IX of this volume.
[365] On the Virginia Republican machine, Roane, Ritchie, etc., see Dodd
in _Am. Hist. Rev._ XII, 776-77; and in _Branch Hist. Papers_, June,
1903, 222; Smith in _ib._ June, 1905, 15; Thrift in _ib._ June, 1908,
183; also Dodd: _Statesmen of the Old South_, 70 _et seq._; Anderson,
205; Turner: _Rise of the New West_, 60; Ambler: _Ritchie_, 27, 82.
[366] Several thousand acres of the Fairfax estate were not included in
this joint purchase. (See _infra_, 150.)
[367] 1793-94. See vol. II, 202-11, of this work.
[368] April 30, 1789. See Hunter _vs._ Fairfax's Devisee, 1 Munford,
223.
[369] For the district composed of Frederick, Berkeley, Hampshire,
Hardy, and Shenandoah Counties.
[370] Order Book, Superior Court, No. 2, 43, Office of Clerk of Circuit
Court, Frederick Co., Winchester, Va.
[371] The judges rendering this decision were St. George Tucker and
William Nelson, Jr. (_Ib._)
[372] In making out the record for appeal the fictitious name of Timothy
Trititle was, of course, omitted, so that in the Court of Appeals and in
the appeals to the Supreme Court of the United States the title of the
case is Hunter _vs._ Fairfax's Devisee, instead of "Timothy Trititle,
Lessee of David Hunter," _vs._ Fairfax's Devisee, and Martin _vs._
Hunter's Lessee.
[373] 1 Munford, 223.
[374] See vol. II, footnote to 209, of this work.
[375] The adjustment was made because of the memorial of about two
hundred settlers or squatters (mostly Germans) on the wild lands who
petitioned the Legislature to establish title in them. David Hunter was
not one of these petitioners. Marshall agreed to execute deeds
"extinguishing" the Fairfax title "so soon as the conveyance shall be
transmitted to me from Mr. Fairfax." (Marshall to the Speaker of the
House of Delegates, Va., Nov. 24, 1796. See vol. II, footnote to 209, of
this work.) The Fairfax deed to the Marshalls was not executed until ten
years after this compromise. (Land Causes, 1833, 40, Records in Office
of Clerk of Circuit Court, Fauquier Co., Va.)
[376] Two years later, on October 5, 1808, the Marshall brothers
effected a partition of the estate between themselves on the one part
and their brother-in-law on the other part, the latter receiving about
forty thousand acres. (Deed Book 36, 302, Records in Office of Clerk of
Circuit Court, Frederick Co., Va.)
[377] On August 30, 1797, Denny Martin Fairfax conveyed to James M.
Marshall all the Fairfax lands in Virginia "save and except ... the
manor of Leeds." (See Marshall _vs._ Conrad, 5 Call, 364.) Thereafter
James M. Marshall lived in Winchester for several years and made many
conveyances of land in Shenandoah and Berkeley Counties. For instance,
Nov. 12, 1798, to Charles Lee, Deed Book 3, 634, Records in Office of
Clerk of Circuit Court, Frederick County, Va.; Jan. 9, 1799, to Henry
Richards, _ib._ 549; Feb. 4, 1799, to Joseph Baker, Deed Book 25, _ib._
561; March 30, 1799, to Richard Miller, Deed Book 3, _ib._ 602, etc.
All of these deeds by James M. Marshall and Hester, his wife, recite
that these tracts and lots are parts of the lands conveyed to James M.
Marshall by Denny Martin Fairfax on August 30, 1797. John Marshall does
not join in any of these deeds. Apparently, therefore, he had no
personal interest in the tract claimed by Hunter.
In a letter to his brother Marshall speaks of the Shenandoah lands as
belonging to James M. Marshall: "With respect to the rents due Denny
Fairfax before the conveyance to you I should suppose a recovery could
only be defeated by the circumstance that they passed to you by the deed
conveying the land." (Marshall to his brother, Feb. 13, 1806, MS.)
At the time when the Fairfax heir, Philip Martin, executed a deed to the
Marshall brothers and Rawleigh Colston, conveying to them the Manor of
Leeds, the lands involved in the Hunter case had been owned by James M.
Marshall exclusively for nearly ten years.
After the partition with Colston, October 5, 1808, John and James M.
Marshall, on September 5, 1809, made a partial division between
themselves of Leeds Manor, and Goony Run Manor in Shenandoah County, the
latter going to James M. Marshall.
These records apparently establish the facts that the "compromise" of
1796 was not intended to include the land claimed by Hunter; that James
M. Marshall personally owned most of the lands about Winchester; and
that John Marshall had no personal interest whatever in the land in
controversy in the litigation under review.
This explains the refusal of the Supreme Court, including even Justice
Johnson, to take notice of the compromise of 1796. (See _infra_, 157.)
[378] When Lord Fairfax devised his Virginia estate to his nephew, Denny
Martin, he required him to take the name of Fairfax.
[379] Order Book, Superior Court of Frederick Co. Va., III, 721.
[380] 1 Munford, 223. The record states that Judge Tucker did not sit on
account of his near relationship to a person interested.
[381] It should be repeated that David Hunter was not one of the
destitute settlers who appealed to the Legislature in 1796. From the
records it would appear that he was a very prosperous farmer and
land-owner who could well afford to employ the best legal counsel, as he
did throughout the entire litigation. As early as 1771 we find him
selling to Edward Beeson 536 acres of land in Frederick County. (Deed
Book 15, 213, Office of Clerk of Circuit Court, Frederick County, Va.)
The same Hunter also sold cattle, farming implements, etc., to a large
amount. (Deeds dated Nov. 2, 1771, Deed Book cited above, 279, 280.)
These transactions took place eighteen years before Hunter secured from
Virginia the grant of Fairfax lands, twenty-five years before the
Marshall compromise of 1796, thirty-eight years before Hunter employed
Wickham to revive his appeal against the Fairfax devisee, forty-two
years prior to the first arguments before the Supreme Court, and
forty-five years before the final argument and decision of the famous
case of Martin _vs._ Hunter's Lessee. So, far from being a poor,
struggling, submissive, and oppressed settler, David Hunter was one of
the most well-to-do, acquisitive, determined, and aggressive men in
Virginia.
[382] April 23, 1810.
[383] By using the plural "appellees," Roane apparently intimates that
Marshall was personally interested in the case; as we have seen, he was
not. There was of record but one appellee, the Fairfax devisee.
[384] 1 Munford, 232.
The last two lines of Roane's language are not clear, but it would seem
that the "objection" must have been that the Marshall compromise did not
include the land claimed by Hunter and others, the title to which had
been adjudged to be in Fairfax's devisee before the compromise. This is,
indeed, probably the meaning of the sentence of Roane's opinion;
otherwise it is obscure. It would appear certain that the Fairfax
purchasers did make just this objection. Certainly they would have been
foolish not to have done so if the Hunter land was not embraced in the
compromise.
[385] Since James M. Marshall was the American administrator of the will
of Denny M. Fairfax, and also had long possessed all the rights and
title of the Fairfax heir to this particular land, it doubtless was he
who secured the writ of error from the Supreme Court.
[386] 1 Munford, 238.
[387] 7 Cranch, 608-09, 612. The reader should bear in mind the
provisions of Section 25 of the Judiciary Act, since the validity and
meaning of it are involved in some of the greatest controversies
hereafter discussed. The part of that section which was in controversy
is as follows:
"A final judgment or decree in any suit, in the highest court of law or
equity of a state in which a decision in the suit could be had, where is
drawn in question the validity of a treaty or statute of, or an
authority exercised under the United States, and the decision is against
their validity; or where is drawn in question the validity of a statute
of, or an authority exercised under any state, on the ground of their
being repugnant to the constitution, treaties or laws of the United
States, and the decision is in favor of such their validity; or where is
drawn in question the construction of any clause of the constitution, or
of a treaty, or statute of, or commission held under the United States,
and the decision is against the title, right, privilege or exemption
specially set up or claimed by either party, under such clause of the
said constitution, treaty, statute or commission, may be re-examined and
reversed or affirmed in the supreme court of the United States upon a
writ of error."
[388] Randall, II, 35-36.
[389] For a full and painstaking account of the Granville grant, and the
legislation and litigation growing out of it, see Henry G. Connor in
_University of Pennsylvania Law Review_, vol. 62, 671 _et seq._
[390] See vol. I, 192, of this work.
[391] Connor in _Univ. of Pa. Law Rev._ vol. 62, 674-75.
[392] _Ib._ 676.
[393] See _supra_, 69.
[394] This highly important fact is proved by the message of Governor
David Stone to the Legislature of North Carolina in which he devotes
much space to the Granville litigation and recommends "early provision
to meet the justice of the claim of her [North Carolina's] citizens for
remuneration in case of a decision against the sufficiency of the title
derived from herself." The "possibility" of such a decision is apparent
"when it is generally understood that a greatly and deservedly
distinguished member of that [the Supreme] Court, has already formed an
unfavorable opinion, will probably enforce the consideration that it is
proper to make some eventual provision, by which the purchasers from the
State, and those holding under that purchase, may have justice done
them." (Connor in _Univ. of Pa. Law Rev._ vol. 62, 690-91.)
From this message of Governor Stone it is clear that the State expected
a decision in favor of the Granville heirs, and that the Legislature and
State authorities were preparing to submit to that decision.
[395] _Raleigh Register_, June 24, 1805, as quoted by Connor in _Univ.
of Pa. Law Rev._ vol. 62, 689.
The jury found against the Granville heirs. A Mr. London, the Granville
agent at Wilmington, still hoped for success: "The favorable sentiments
of Judge Marshall encourage me to hope that we shall finally succeed,"
he writes William Gaston, the Granville counsel. Nevertheless, "I think
the Judge's reasons for withdrawing from the cause partakes more of
political acquiescence than the dignified, official independence we had
a right to expect from his character. He said enough to convince our
opponents he was unfavorable to their construction of the law and,
therefore, should not have permitted incorrect principles to harass our
clients and create expensive delays. Mr. Marshall had certainly no
interest in our cause, he ought to have governed the proceedings of a
Court over which he presided, according to such opinion--it has very
much the appearance of shirking to popular impressions."
London ordered an appeal to be taken to the Supreme Court of the United
States, remarking that "it is no doubt much in our favor what has
already dropt from the Chief Justice." (London to Gaston, July 8, 1805,
as quoted by Connor in _Univ. of Pa. Law Rev._ vol. 62, 690.)
He was, however, disgusted with Marshall. "I feel much chagrin that we
are put to so much trouble and expense in this business, and which I
fear is in great degree to be attributed to the Chief Justice's
delivery." (Same to same, April 19, 1806, as quoted by Connor in _ib._
691.)
For more than ten years the appeal of the Granville heirs from the
judgment of the National Court for the District of North Carolina
reposed on the scanty docket of the Supreme Court awaiting call for
argument by counsel. Finally on February 4, 1817, on motion of counsel
for the Granville heirs, the case was stricken from the docket. The
reason for this action undoubtedly was that William Gaston, counsel for
the Granville heirs, had been elected to Congress, was ambitious
politically, was thereafter elected judge of the Supreme Court of North
Carolina; none of these honors could possibly have been achieved had he
pressed the Granville case.
[396] 7 Cranch, 625.
[397] The Jay Treaty. See vol. II, 113-15, of this work.
[398] 7 Cranch, 627.
[399] _Ib._ 631.
[400] _Ib._ 632.
[401] For mandate see 4 Munford, 2-3.
[402] March 31, April 1 to April 6, 1814. (4 Munford, 3.)
[403] _Ib._ 58.
[404] 4 Munford, 7.
[405] _Ib._ 8-9.
[406] _Ib._ 11.
[407] _Ib._ 12.
[408] 4 Munford, 15.
[409] _Ib._ 133.
[410] _Ib._ 38.
[411] _Ib._ 54.
[412] Jefferson to Roane, Oct. 12, 1815, _Works_: Ford, XI, 488-90.
[413] Roane to Jefferson, Oct. 28, 1815, _Branch Hist. Papers_, June,
1905, 131-32.
[414] The employment of these expensive lawyers is final proof of
Hunter's financial resources.
[415] 1 Wheaton, 317, 318.
[416] _Ib._ 324.
[417] _Ib._ 326-27.
[418] The sections of the Constitution pertaining to this dispute are as
follows:
"Article III, Section 1. The judicial Power of the United States, shall
be vested in one supreme Court, and in such inferior Courts as the
Congress may from time to time ordain and establish. The Judges, both of
the supreme and inferior Courts, shall hold their Offices during good
Behaviour, and shall, at stated Times, receive for their Services a
Compensation, which shall not be diminished during their Continuance in
Office.
"Section 2. The judicial Power shall extend to all Cases, in Law and
Equity, arising under this Constitution, the Laws of the United States,
and Treaties made, or which shall be made, under their Authority;--to
all Cases affecting Ambassadors, other public Ministers and Consuls;--to
all Cases of admiralty and maritime Jurisdiction;--to Controversies to
which the United States shall be a Party;--to Controversies between two
or more States;--between a State and Citizens of another State;--between
Citizens of different States;--between Citizens of the same State
claiming Lands under Grants of different States, and between a State, or
the Citizens thereof, and foreign States, Citizens or Subjects."
[419] 1 Wheaton, 328.
[420] _Ib._ 337-38.
[421] _Ib._ 339.
[422] _Ib._ 341.
[423] 1 Wheaton, 343-44.
[424] _Ib._ 351.
[425] _Ib._ 355.
[426] _Ib._ 360.
[427] 1 Wheaton, 362.
[428] Marshall to his brother, July 9, 1822, MS.
Parts of this long letter are of interest: "Although Judge White [of the
Winchester court] will, of course, conform to the decision of the court
of appeals against the appellate jurisdiction of the Supreme court, &
therefore deny that the opinion in the case of Fairfax & Hunter is
binding, yet he must admit that the supreme court is the proper tribunal
for expounding the treaties of the United States, & that its decisions
on a treaty are binding on the state courts, whether they possess the
appellate jurisdiction or not.... The exposition of any state law by the
courts of that state, are considered in the courts of all the other
states, and in those of the United States, as a correct exposition, not
to be reexamined.
"The only exception to this rule is when the statute of a state is
supposed to violate the constitution of the United States, in which case
the courts of the Union claim a controuling & supervising power. Thus
any construction made by the courts of Virginia on the statute of
descents or of distribution, or on any other subject, is admitted as
conclusive in the federal courts, although those courts might have
decided differently on the statute itself. The principle is that the
courts of every government are the proper tribunals for construing the
legislative acts of that government.
"Upon this principle the Supreme court of the United States, independent
of its appellate jurisdiction, is the proper tribunal for construing the
laws & treaties of the United States; and the construction of that court
ought to be received every where as the right construction. The Supreme
court of the United States has settled the construction of the treaty of
peace to be that lands at that time held by British subjects were not
escheatable or grantable by a state.... I refer particularly to Smith v
The State of Maryland 6th Cranch Jackson v Clarke 3 Wheaton & Orr v
Hodgson 4 Wheaton. The last case is explicit & was decided unanimously,
Judge Johnson assenting.
"This being the construction of the highest court of the government
which is a party to the treaty is to be considered by all the world as
its true construction unless Great Britain, the other party, should
controvert it. The court of appeals has not denied this principle. The
dicta of Judge Roane respecting the treaty were anterior to this
constitutional construction of it."
[429] See vol. III, chap. X, of this work.
[430] 1 Wheaton, 362-63.
[431] Johnson's opinion was published in the _National Intelligencer_,
April 16, 1816, as an answer to Roane's argument. (Smith in _Branch
Hist. Papers_, June, 1905, 23.)
[432] Story, I, 277.
[433] _Annals_, 14th Cong. 1st Sess. 194, 231-33.
A bill was reported March 22, 1816, increasing the salaries of all
government officials. The report of the committee is valuable as showing
the increased cost of living. (_Ib._)
[434] Nearly three years after the decision of Martin _vs._ Hunter's
Lessee, Story writes that the Justices of the Supreme Court are
"_starving_ in splendid poverty." (Story to Wheaton, Dec. 9, 1818,
Story, I, 313.)
[435] Story to White, Feb. 26, 1816, Story, I, 278; and see Story to
Williams, May 22, 1816, _ib._ 279.
[436] Ambler: _Sectionalism in Virginia_, 103.
CHAPTER IV
FINANCIAL AND MORAL CHAOS
Like a dropsical man calling out for water, water, our deluded
citizens are calling for more banks. (Jefferson.)
Merchants are crumbling to ruin, manufactures perishing,
agriculture stagnating and distress universal. (John Quincy
Adams.)
If we can believe our Democratic editors and public declaimers
it [Bank of the United States] is a Hydra, a Cerberus, a Gorgon,
a Vulture, a Viper. (William Harris Crawford.)
Where one prudent and honest man applies for [bankruptcy] one
hundred rogues are facilitated in their depredations. (Hezekiah
Niles.)
Merchants and traders are harassed by twenty different systems
of laws, prolific in endless frauds, perjuries and evasions.
(Harrison Gray Otis.)
The months of February and March, 1819, are memorable in American
history, for during those months John Marshall delivered three of his
greatest opinions. All of these opinions have had a determinative effect
upon the political and industrial evolution of the people; and one of
them[437] has so decisively influenced the growth of the Nation that, by
many, it is considered as only second in importance to the Constitution
itself. At no period and in no land, in so brief a space of time, has
any other jurist or statesman ever bestowed upon his country three
documents of equal importance. Like the other fundamental state papers
which, in the form of judicial opinions, Marshall gave out from the
Supreme Bench, those of 1819 were compelled by grave and dangerous
conditions, National in extent.
It was a melancholy prospect over which Marshall's broad vision ranged,
when from his rustic bench under his trees at Richmond, during the
spring and autumn of 1818, he surveyed the situation in which the
American people found themselves. It was there, or in the quiet of the
Blue Ridge Mountains where he spent the summer months, that he formed
the outlines of those charts which he was soon to present to the country
for its guidance; and it was there that at least one of them was put on
paper.
The interpretation of John Marshall as the constructing architect of
American Nationalism is not satisfactorily accomplished by a mere
statement of his Nationalist opinions and of the immediate legal
questions which they answered. Indeed, such a narrative, by itself, does
not greatly aid to an understanding of Marshall's immense and enduring
achievements. Not in the narrow technical points involved, some of them
diminutive and all uninviting in their formality; not in the dreary
records of the law cases decided, is to be found the measure of his
monumental service to the Republic or the meaning of what he did. The
state of things which imperatively demanded the exercise of his creative
genius and the firm pressure of his steadying hand must be understood in
order to grasp the significance of his labors.
When the Supreme Court met in February, 1819, almost the whole country
was in grievous turmoil; for nearly three years conditions had been
growing rapidly worse and were now desperate. Poverty, bankruptcy,
chicanery, crime were widespread and increasing. Thrift, prudence,
honesty, and order had seemingly been driven from the hearts and minds
of most of the people; while speculation, craft, and unscrupulous
devices were prevalent throughout all but one portion of the land. Only
New England had largely escaped the universal curse that appeared to
have fallen upon the United States; and even that section was not
untouched by the economic and social plague that had raged and was
becoming more deadly in every other quarter.
While it is true that a genuine democratizing evolution was in progress,
this fact does not explain the situation that had grown up throughout
the country. Neither does the circumstance that the development of land
and resources was going forward in haphazard fashion, at the hands of a
new population hard pressed for money and facilities for work and
communication, reveal the cause of the appalling state of affairs. It
must frankly be said of the conditions, to us now unbelievable, that
they were due partly to the ignorance, credulity, and greed of the
people; partly to the spirit of extravagance; partly to the criminal
avarice of the financially ambitious; partly to popular dread of any
great centralized moneyed institution, however sound; partly to that
pest of all democracies, the uninformed and incessant demagogue whipping
up and then pandering to the passions of the multitude; partly to that
scarcely less dangerous creature in a Republic, the fanatical
doctrinaire, proclaiming the perfection of government by word-logic and
insisting that human nature shall be confined in the strait-jacket of
verbal theory. From this general welter of moral and economic
debauchery, Localism had once more arisen and was eagerly reasserting
its domination.
The immediate cause of the country's plight was an utter chaos in
banking. Seldom has such a financial motley ever covered with variegated
rags the backs of a people. The confusion was incredible; but not for a
moment did the millions who suffered, blame themselves for their tragic
predicament. Now praising banks as unfailing fountains of money, now
denouncing banks as the sources of poisoned waters, clamoring for
whatever promised even momentary relief, striking at whatever seemingly
denied it, the people laid upon anything and anybody but themselves and
their improvidence, the responsibility for their distress.
Hamilton's financial plans[438] had proved to be as successful as they
were brilliant. The Bank of the United States, managed, on the whole,
with prudence, skill, and honesty,[439] had fulfilled the expectations
of its founders. It had helped to maintain the National credit by loans
in anticipation of revenue; it had served admirably, and without
compensation, as an agent for collecting, safeguarding, and transporting
the funds of the Government; and, more important than all else, it had
kept the currency, whether its own notes or those of private banks, on a
sound specie basis. It had, indeed, "acted as the general guardian of
commercial credit" and, as such, had faithfully and wisely performed its
duties.[440]
But the success of the Bank had not overcome the original antagonism to
a great central moneyed institution. Following the lead of Jefferson,
who had insisted that the project was unconstitutional,[441] Madison, in
the first Congress, had opposed the bill to incorporate the first Bank
of the United States. Congress had no power, he said, to create
corporations.[442] After twelve years of able management, and in spite
of the good it had accomplished, Jefferson still considered it,
potentially, a monster that might overthrow the Republic. "This
institution," he wrote in the third year of his Presidency, "is one of
the most deadly hostility existing, against the principles & form of our
Constitution.... An institution like this, penetrating by it's branches
every part of the Union, acting by command & in phalanx, may, in a
critical moment, upset the government.... What an obstruction could not
this bank of the U.S., with all it's branch banks, be in time of
war?"[443]
The fact that most of the stock of the Bank had been bought up by
Englishmen added to the unpopularity of the institution.[444] Another
source of hostility was the jealousy of State banks, much of the
complaint about "unconstitutionality" and "foreign ownership" coming
from the agents and friends of these local concerns. The State banks
wished for themselves the profits made by the National Bank and its
branches, and they chafed under the wise regulation of their note
issues, which the existence of the National system compelled.
For several years these State banks had been growing in number and
activity.[445] When, in 1808, the directors of the Bank of the United
States asked for a renewal of its charter, which would expire in 1811,
and when the same request was made of Congress in 1809, opposition
poured into the Capital from every section of the country. The great
Bank was a British institution, it was said; its profits were too great;
it was a creature of Federalism, brought forth in violation of the
Constitution. Its directors, officers, and American stockholders were
Federalists; and this fact was the next most powerful motive for the
overthrow of the first Bank of the United States.[446]
Petitions to Congress denounced it and demanded its extinction. One from
Pittsburgh declared "that your memorialists are 'the People of the
United States,'" and asserted that the Bank "held in bondage thousands
of our citizens," kept the Government "in duress," and subsidized the
press, thus "thronging" the Capital with lobbyists who in general were
the "head-waters of corruption."[447] The Legislatures of many States
"instructed" their Senators and "earnestly requested" their
Representatives in Congress to oppose a new charter for the expiring
National institution. Such resolutions came from Pennsylvania, from
Virginia, from Massachusetts.[448]
The State banks were the principal contrivers of all this
agitation.[449] For instance, the Bank of Virginia, organized in 1804,
had acquired great power and, but for the branch of the National concern
at Richmond, would have had almost the banking monopoly of that State.
Especially did the Virginia Bank desire to become the depository of
National funds[450]--a thing that could not be accomplished so long as
the Bank of the United States was in existence.[451] Dr. John
Brockenbrough, the relative, friend, and political associate of Spencer
Roane and Thomas Ritchie, was the president of this State institution,
which was a most important part of the Republican machine in Virginia.
Considering the absolute control held by this political organization
over the Legislature, it seems probable that the State bank secured the
resolution condemnatory of the Bank of the United States.
Certainly the General Assembly would not have taken any action not
approved by Brockenbrough, Roane, and Ritchie. Ritchie's _Enquirer_
boasted that it "was the first to denounce the renewal of the bank
charter."[452] In the Senate, William H. Crawford boldly charged that
the instructions of the State Legislatures were "induced by motives of
avarice";[453] and Senator Giles was plainly embarrassed in his attempt
to deny the indictment.[454]
Nearly all the newspapers were controlled by the State banks;[455] they,
of course, denounced the National Bank in the familiar terms of
democratic controversy and assailed the character of every public man
who spoke in behalf of so vile and dangerous an institution.[456] It was
also an ideal object of assault for local politicians who bombarded the
Bank with their usual vituperation. All this moved Senator Crawford, in
his great speech for the rechartering of the Bank, to a scathing
arraignment of such methods.[457]
In spite of conclusive arguments in favor of the Bank of the United
States on the merits of the question, the bill to recharter that
institution was defeated in the House by a single vote,[458] and in the
Senate by the casting vote of the Vice-President, the aged George
Clinton.[459] Thus, on the very threshold of the War of 1812, the
Government was deprived of this all but indispensable fiscal agent;
immense quantities of specie, representing foreign bank holdings, were
withdrawn from the country; and the State banks were given a free hand
which they soon used with unrestrained license.
These local institutions, which, from the moment the failure of the
rechartering of the National Bank seemed probable, had rapidly increased
in number, now began to spring up everywhere.[460] From the first these
concerns had issued bills for the loan of which they charged interest.
Thus banking was made doubly profitable. Even those banks, whose note
issues were properly safeguarded, achieved immense profits. Banking
became a mania.
"The Banking Infatuation pervades all America," wrote John Adams in
1810. "Our whole system of Banks is a violation of every honest
Principle of Banks.... A Bank that issues Paper at Interest is a
Pickpocket or a Robber. But the Delusion will have its Course. You may
as well reason with a Hurricane. An Aristocracy is growing out of them,
that will be as fatal as The Feudal Barons, if unchecked in Time....
Think of the Number, the Offices, Stations, Wealth, Piety and
Reputations of the Persons in all the States, who have made Fortunes by
these Banks, and then you will see how deeply rooted the evil is. The
Number of Debtors who hope to pay their debts by this Paper united with
the Creditors who build Pallaces in our Cities, and Castles for Country
Seats, by issuing this Paper form too impregnable a Phalanx to be
attacked by any Thing less disciplined than Roman Legions."[461]
Such was the condition even before the expiration of the charter of the
first Bank. But, when the restraining and regulating influence of that
conservative and ably managed institution was removed altogether, local
banking began a course that ended in a mad carnival of roguery, to the
ruin of legitimate business and the impoverishment and bankruptcy of
hundreds of thousands of the general public.
The avarice of the State banks was immediately inflamed by the war
necessities of the National Government. Desperate for money, the
Treasury exchanged six per cent United States bonds for the notes of
State banks.[462] The Government thus lost five million dollars from
worthless bank bills.[463] These local institutions now became the sole
depositories of the Government funds which the National Bank had
formerly held.[464] Sources of gain of this kind were only extra
inducements to those who, by wit alone, would gather quick wealth to set
up more local banks. But other advantages were quite enough to appeal to
the greedy, the dishonest, and the adventurous.
Liberty to pour out bills without effective restriction as to the
amount or security; to loan such "rags" to any who could be induced to
borrow; to collect these debts by foreclosure of mortgages or threats of
imprisonment of the debtors--these were some of the seeds from which
grew the noxious financial weeds that began to suck the prosperity of
the country. When the first Bank of the United States was organized
there were only three State banks in the country. By 1800, there were
twenty-eight; by 1811, they had more than trebled,[465] and most of the
eighty-eight State institutions in existence when the first National
Bank was destroyed had been organized after it seemed probable that it
would not be granted a recharter.
So rapidly did they increase and so great were their gains that, within
little more than a year from the demise of the first Bank of the United
States, John Adams records: "The Profits of our Banks to the advantage
of the few, at the loss of the many, are such an enormous fraud and
oppression as no other Nation ever invented or endured. Who can compute
the amount of the sums taken out of the Pocketts of the Simple and
hoarded in the Purses of the cunning in the course of every year?... If
Rumour speaks the Truth Boston has and will emulate Philadelphia in her
Proportion of Bankruptcies."[466]
Yet Boston and Philadelphia banks were the soundest and most carefully
conducted of any in the whole land. If Adams spoke extravagantly of the
methods and results of the best managed financial institutions of the
country, he did not exaggerate conditions elsewhere. From Connecticut to
the Mississippi River, from Lake Erie to New Orleans, the craze for
irresponsible banking spread like a contagious fever. The people were as
much affected by the disease as were the speculators. The more "money"
they saw, the more "money" they wanted. Bank notes fell in value; specie
payments were suspended; rates of exchange were in utter confusion and
constantly changing. From day to day no man knew, with certainty, what
the "currency" in his pocket was worth. At Vincennes, Indiana, in 1818,
William Faux records: "I passed away my 20 dollar note of the rotten
bank of Harmony, Pennsylvania, for five dollars only!"[467]
The continuance of the war, of course, made this financial situation
even worse for the Government than for the people. It could not
negotiate its loans; the public dues were collected with difficulty,
loss, and delay; the Treasury was well-nigh bankrupt. "The Department of
State was so bare of money as to be unable to pay even its stationery
bill."[468] In 1814, when on the verge of financial collapse, the
Administration determined that another Bank of the United States was
absolutely necessary to the conduct of the war.[469] Scheme after scheme
was proposed, wrangled over, and defeated.
One plan for a bank[470] was beaten "after a day of the most tumultuous
proceedings I ever saw," testifies Webster.[471] Another bill
passed,[472] but was vetoed by President Madison because it could not
aid in the rehabilitation of the public credit, nor "provide a
circulating medium during the war, nor ... furnish loans, or anticipate
public revenue."[473] When the war was over, Madison timidly suggested
to Congress the advisability of establishing a National bank "that the
benefits of a uniform national currency should be restored."[474] Thus,
on April 10, 1816, two years after Congress took up the subject, a law
finally was enacted and approved providing for the chartering and
government of the second Bank of the United States.[475]
Within four years, then, of the refusal of Congress to recharter the
sound and ably managed first Bank of the United States, it was forced to
authorize another National institution, endowed with practically the
same powers possessed by the Bank which Congress itself had so recently
destroyed.[476] But the second establishment would have at least one
advantage over the first in the eyes of the predominant political
party--a majority of the officers and directors of the Bank would be
Republicans.[477]
During their four years of "financial liberty" the number of State banks
had multiplied. Those that could be enumerated in 1816 were 246.[478] In
addition to these, scores of others, most of them "pure swindles,"[479]
were pouring out their paper.[480] Even if they had been sound, not half
of them were needed.[481] Nearly all of them extended their wild
methods. "The Banks have been going on, as tho' the day of reckoning
would never come," wrote Rufus King of conditions in the spring of
1816.[482]
The people themselves encouraged these practices. The end of the war
released an immense quantity of English goods which flooded the American
market. The people, believing that devastated Europe would absorb all
American products, and beholding a vision of radiant prosperity, were
eager to buy. A passion for extravagance swept over America;[483] the
country was drained of specie by payments for exports.[484] Then came a
frenzy of speculation. "The people were wild; ... reason seemed turned
topsy turvey."[485]
The multitude of local banks intensified both these manias by every
device that guile and avarice could suggest. Every one wanted to get
rich at the expense of some one else by a mysterious process, the
nature of which was not generally understood beyond the fact that it
involved some sort of trickery. Did any man's wife and family want
expensive clothing--the local bank would loan him bills issued by
itself, but only on good security. Did any man wish to start some
unfamiliar and alluring enterprise by which to make a fortune
speedily--if he had a farm to mortgage, the funds were his. Was a big
new house desired? The money was at hand--nothing was required to get it
but the pledge of property worth many times the amount with which the
bank "accommodated" him.[486]
Indeed, the local banks urged such "investments," invited people with
property to borrow, laid traps to ensnare them. "What," asked Hezekiah
Niles, "is to be the end of such a business?--Mammoth fortunes for the
_wise_, wretched poverty for the _foolish_.... Lands, lots,
houses--stock, farming utensils and household furniture, under custody
of the sheriff--SPECULATION IN A COACH, HONESTY IN THE JAIL."[487]
Many banks sent agents among the people to hawk their bills. These were
perfectly good, the harpies would assure their victims, but they could
now be had at a heavy discount; to buy them was to make a large profit.
So the farmer, the merchant, even the laborer who had acquired a
dwelling of his own, were induced to mortgage their property or sell it
outright in exchange for bank paper that often proved to be
worthless.[488]
Frequently these local banks ensnared prosperous farmers by the use of
"cappers." Niles prints conspicuously as "A True Story"[489] the account
of a certain farmer who owned two thousand acres, well improved and with
a commodious residence and substantial farm buildings upon it. Through
his land ran a stream affording good water power. He was out of debt,
prosperous, and contented. One day he went to a town not many miles from
his plantation. There four pleasant-mannered, well-dressed men made his
acquaintance and asked him to dinner, where a few directors of the local
bank were present. The conversation was brought around to the profits to
be made in the milling business. The farmer was induced to borrow a
large sum from the local bank and build a mill, mortgaging his farm to
secure the loan. The mill was built, but seldom used because there was
no work for it to do; and, in the end, the two thousand acres, dwelling,
buildings, mill, and all, became the property of the bank
directors.[490]
This incident is illustrative of numerous similar cases throughout the
country, especially in the West and South. Niles thus describes banking
methods in general: "At first they throw out money profusely, to all
that they believe are _ultimately_ able to return it; nay, they wind
round some like serpents to tempt them to borrow--... they then affect
to draw in their notes, ... money becomes scarce, and notes of hand are
_shaved_ by them to meet bank engagements; it gets worse--the
_consummation originally_ designed draws nigh, and farm after farm, lot
after lot, house after house, are sacrificed."[491]
So terrifying became the evil that the Legislature of New York, although
one of the worst offenders in the granting of bank charters, was driven
to appoint a committee of investigation. It reported nothing more than
every honest observer had noted. Money could not be transmitted from
place to place, the committee said, because local banks had "engrossed
the whole circulation in their neighborhood," while their notes abroad
had depreciated. The operations of the bankers "immediately within their
vicinity" were ruinous: "Designing, unprincipled speculator[s] ...
impose on the credulity of the honest, industrious, unsuspecting ... by
their specious flattery and misrepresentation, obtaining from them
borrowed notes and endorsements, until the ruin is consummated, and
their farms are sold by the sheriff."[492]
Some banks committed astonishing frauds, "such as placing a partial fund
in a distant bank to redeem their paper" and then "issuing an emission
of notes signed with ink of a different shade, at the same time giving
secret orders to said bank not to pay the notes thus signed." Bank
paper, called "_facility notes_," was issued, but "payable in neither
money, country produce, or any thing else that has body or shape." Bank
directors even terrorized merchants who did not submit to their
practices. In one typical case all persons were denied discounts who
traded at a certain store, the owner of which had asked for bank bills
that would be accepted in New York City, where they had to be
remitted--this, too, when the offending merchant kept his account at the
bank.
The committee describes, as illustrative of banking chicanery, the
instance of "an aged farmer," owner of a valuable farm, who, "wishing to
raise the sum of one thousand dollars, to assist his children, was told
by a director, he could get it out of the bank ... and that he would
endorse his note for him." Thus the loan was made; but, when the note
expired, the director refused to obtain a renewal except upon the
payment of one hundred dollars in addition to the discount. At the next
renewal the same condition was exacted and also "a judgment ... in favor
of said director, and the result was, his farm was soon after sold
without his knowledge by the sheriff, and purchased by the said director
for less than the judgment."[493]
Before the second Bank of the United States opened its doors for
business, the local banks began to gather the first fruits of their
labors. By the end of 1816 suits upon promissory notes, bonds, and
mortgages, given by borrowers, were begun. Three fourths of all
judgments rendered in the spring of 1818 by the Supreme Court of the
State of New York alone were "in favor of banks, against real
property."[494] Suits and judgments of this kind grew ever more
frequent.
In such fashion was the country hastened toward the period of
bankruptcy. Yet the people in general still continued to demand more
"money." The worse the curse, the greater the floods of it called for by
the body of the public. "Like a dropsical man calling out for water,
water, our deluded citizens are clamoring for more banks.... We are now
taught to believe that legerdemain tricks upon paper can produce as
solid wealth as hard labor in the earth," wrote Jefferson when the
financial madness was becoming too apparent to all thoughtful men.[495]
Practically no restrictions were placed upon these financial
freebooters,[496] while such flimsy regulations as their charters
provided were disregarded at will.[497] There was practically no
publicity as to the management and condition of even the best of these
banks;[498] most of them denied the right of any authority to inquire
into their affairs and scorned to furnish information as to their assets
or methods.[499] For years the Legislatures of many States were
controlled by these institutions; bank charters were secured by the
worst methods of legislative manipulation; lobbyists thronged the State
Capitols when the General Assemblies were in session; few, if any,
lawmaking bodies of the States were without officers, directors, or
agents of local banks among their membership.[500]
Thus bank charters were granted by wholesale and they were often little
better than permits to plunder the public. During the session of the
Virginia Legislature of 1816-17, twenty-two applications for bank
charters were made.[501] At nearly the same time twenty-one banks were
chartered in the newly admitted and thinly peopled State of Ohio.[502]
The following year forty-three new banks were authorized in
Kentucky.[503] In December, 1818, James Flint found in Kentucky, Ohio,
and Tennessee a "vast host of fabricators, and venders of base
money."[504] All sorts of "companies" went into the banking business.
Bridge companies, turnpike companies, manufacturing companies,
mercantile companies, were authorized to issue their bills, and this
flood of paper became the "money" of the people; even towns and villages
emitted "currency" in the form of municipal notes. The City of Richmond,
Virginia, in 1815, issued "small paper bills for change, to the amount
of $29,948."[505] Often bills were put in circulation of denominations
as low as six and one fourth cents.[506] Rapidly the property of the
people became encumbered to secure their indebtedness to the banks.
A careful and accurate Scotch traveler thus describes their methods: "By
lending, and otherwise emitting their engravings, they have contrived to
mortgage and buy much of the property of their neighbours, and to
appropriate to themselves the labour of less moneyed citizens....
Bankers gave in exchange for their paper, that of _other banks, equally
good with their own_.... The holder of the paper may comply in the
barter, or keep the notes ...; but he finds it too late to be delivered
from the snare. The people committed the lapsus, when they accepted of
the gew-gaws clean from the press.... The deluded multitude have been
basely duped."[507] Yet, says Flint, "every one is afraid of bursting
the bubble."[508]
As settlers penetrated the Ohio and Indiana forests and spread over the
Illinois prairies, the banks went with them and "levied their
contributions on the first stroke of the axe."[509] Kentucky was
comparatively well settled and furnished many emigrants to the newer
regions north of the Ohio River. Rough log cabins were the abodes of
nearly all of the people[510] who, for the most part, lived
roughly,[511] drank heavily,[512] were poorly educated.[513] They were,
however, hospitable, generous, and brave; but most of them preferred to
speculate rather than to work.[514] Illness was general, sound health
rare.[515] "I hate the prairies.... I would not have any of them of a
gift, if I must be compelled to live on them," avowed an English
emigrant.[516]
In short, the settlers reproduced most of the features of the same
movement in the preceding generation.[517] There was the same squalor,
suspicion, credulity, and the same combativeness,[518] the same
assertion of superiority over every other people on earth,[519] the same
impatience of control, particularly from a source so remote as the
National Government.[520] "The people speak and seem as if they were
without a government, and name it only as a bugbear," wrote William
Faux.[521]
Moreover, the inhabitants of one section knew little or nothing of what
those in another were doing. "We are as ignorant of the temper
prevailing in the Eastern States as the people of New Holland can be,"
testifies John Randolph in 1812.[522] Even a generation after Randolph
made this statement, Frederick Marryat records that "the United
States ... comprehend an immense extent of territory, with a population
running from a state of refinement down to one of positive barbarism....
The inhabitants of the cities ... know as little of what is passing in
Arkansas and Alabama as a cockney does of the manners and customs of ...
the Isle of Man."[523] Communities were still almost as segregated as
were those of a half-century earlier.[524] Marryat observes, a few years
later, that "to write upon America _as a nation_ would be absurd, for
nation ... it is not."[525] Again, he notes in his journal that "the
mass of the citizens of the United States have ... a very great dislike
to all law except ... the decision of the majority."[526]
These qualities furnished rich soil for cultivation by demagogues, and
small was the husbandry required to produce a sturdy and bellicose
sentiment of Localism. Although the bills of the Bank of the United
States were sought for,[527] the hostility to that National institution
was increased rather than diminished by the superiority of its notes
over those of the local money mills. No town was too small for a bank.
The fact that specie payments were not exacted "indicated every village
in the United States, where there was a 'church, a tavern and a
blacksmith's shop,' as a suitable site for a _bank_, and justified any
persons in establishing one who could raise enough to pay the _paper
maker_ and _engraver_."[528]
Not only did these chartered manufactories of currency multiply, but
private banks sprang up and did business without any restraint whatever.
Niles was entirely within the truth when he declared that nothing more
was necessary to start a banking business than plates, presses, and
paper.[529] Often the notes of the banks, private or incorporated,
circulated only in the region where they were issued.[530] In 1818 the
"currency" of the local banks of Cincinnati was "mere waste paper ...
out of the city."[531] The people had to take this local "money" or go
without any medium of exchange. When the notes of distant banks were to
be had, the people did not know the value of them. "Notes current in one
part, are either refused, or taken at a large discount, in another,"
wrote Flint in 1818.[532]
In the cities firms dealing with bank bills printed lists of them with
the market values, which changed from day to day.[533] Sometimes the
county courts fixed rates of exchange; for instance, the County Court of
Norfolk County, Virginia, in March, 1816, decreed that the notes of the
Bank of Virginia and the Bank of South Carolina were worth their face
value, while the bills of Baltimore and Philadelphia and the District of
Columbia were below par.[534] Merchants had to keep lists on which was
estimated the value of bank bills and to take chances on the constant
fluctuations of them.[535] "Of upwards of a hundred banks that lately
figured in Indiana, Ohio, Kentucky, and Tennessee, the money of two is
now only received in the land-office, in payment for public lands,"
testifies Flint, writing from Jeffersonville, Indiana, in March, 1820.
"Discount," he adds, "varies from thirty to one hundred per cent."[536]
By September, 1818, two thirds of the bank bills sent to Niles in
payment for the _Register_ could not "be passed for money."[537]
"Chains" of banks were formed by which one member of the conspiracy
would redeem its notes only by paying out the bills of another. Thus, if
a man presented at the counter of a certain bank the bills issued by it,
he was given in exchange those of another bank; when these were taken
to this second institution, they were exchanged for the bills of a third
bank, which redeemed them with notes of the first.[538] For instance,
Bigelow's bank at Jeffersonville, Indiana, redeemed its notes with those
of Piatt's bank at Cincinnati, Ohio; this, in turn, paid its bills with
those of a Vincennes sawmill and the sawmill exchanged its paper for
that of Bigelow's bank.[539]
The redemption of their bills by the payment of specie was refused even
by the best State banks, and this when the law positively required it.
Niles estimated in April, 1818, that, although many banks were sound and
honestly conducted, there were not "half a dozen banks in the United
States that are able to pay their debts _as they are payable_."[540]
All this John Marshall saw and experienced. In 1815, George Fisher[541]
presented to the Bank of Virginia ten of its one-hundred-dollar notes
for redemption, which was refused. After several months' delay, during
which the bank officials ignored a summons to appear in court, a
distringas[542] was secured. The President of the bank, Dr.
Brockenbrough, resisted service of the writ, and the "Sheriff then
called upon the by-standers, as a _posse comitatus_," to assist him.
Among these was the Chief Justice of the United States. Fisher had hard
work in finding a lawyer to take his case; for months no member of the
bar would act as his attorney.[543] For in Virginia as elsewhere--even
less than in many States--the local banks were the most lucrative
clients and the strongest political influence; and they controlled the
lawyers as well as the press.
In June, 1818, for instance, a business man in Pennsylvania had
accumulated several hundred dollars in bills of a local bank which
refused to redeem them in specie or better bills. Three justices of the
peace declined to entertain suit against the bank and no notary public
would protest the bills. In Maryland, at the same time, a man succeeded
in bringing an action against a bank for the redemption of some of its
bills; but the cashier, while admitting his own signature on the notes,
swore that he could not identify that of the bank's president, who had
absented himself.[544]
Counterfeiting was widely practiced and, for a time, almost unpunished;
a favorite device was the raising of notes, usually from five to fifty
dollars. Bills were put in circulation purporting to have been issued by
distant banks that did not exist, and never had existed. In a single
week of June, 1818, the country newspapers contained accounts of
twenty-eight cases of these and similar criminal operations.[545]
Sometimes a forger or counterfeiter was caught; at Plattsburg, New York,
one of these had twenty different kinds of fraudulent notes, "well
executed."[546] In August, 1818, Niles estimates that "the notes of at
least ONE HUNDRED banks in the United States are counterfeited."[547] By
the end of the year an organized gang of counterfeiters, forgers, and
distributors of their products covered the whole country.[548]
Counterfeits of the Marine Bank of Baltimore alone were estimated at
$1,000,000;[549] one-hundred-dollar notes of the Bank of Louisiana were
scattered far and wide.[550] Scarcely an issue of any newspaper appeared
without notices of these depredations;[551] one half of the remittances
sent Niles from the West were counterfeit.[552]
Into this chaos of speculation, fraud, and financial fiction came the
second Bank of the United States. The management of it, at the
beginning, was adventurous, erratic, corrupt; its officers and directors
countenanced the most shameful manipulation of the Bank's stock; some of
them participated in the incredible jobbery.[553] Nothing of this,
however, was known to the country at large for many months,[554] nor did
the knowledge of it, when revealed, afford the occasion for the popular
wrath that soon came to be directed against the National Bank. This
public hostility, indeed, was largely produced by measures which the
Bank took to retrieve the early business blunders of its managers.
These blunders were appalling. As soon as it opened in 1817, the Bank
began to do business on the inflated scale which the State banks had
established; by over-issue of its notes it increased the inflation,
already blown to the bursting point. Except in New England, where its
loans were moderate and well secured, it accommodated borrowers
lavishly. The branches were not required to limit their business to a
fixed capital; in many cases, the branch officers and directors,
incompetent and swayed by local interest and feeling,[555] issued notes
as recklessly as did some of the State banks. In the West particularly,
and also in the South, the loans made were enormous. The borrowers had
no expectation of paying them when due, but of renewing them from time
to time, as had been the practice under State banking.
The National branches in these regions showed a faint gleam of prudence
by refusing to accept bills of notoriously unsound local banks. This
undemocratic partiality, although timidly exercised, aroused to activity
the never-slumbering hostility of these local concerns. In the course of
business, however, bills of most State banks accumulated to an immense
amount in the vaults of the branches of the Bank of the United States.
When, in spite of the disposition of the branch officers to extend
unending and unlimited indulgence to the State banks and to borrowers
generally, the branches finally were compelled by the parent Bank to
demand payment of loans and redemption of bills of local banks held by
it; and when, in consequence, the State banks were forced to collect
debts due them, the catastrophe, so long preparing, fell upon sections
where the vices of State banking had been practiced most flagrantly.
Suits upon promissory notes, bonds and mortgages, already frequent, now
became incessant; sheriffs were never idle. In the autumn of 1818, in a
single small county[556] of Delaware, one hundred and fifty such actions
were brought by the banks. In addition to this, records the financial
chronicler of the period, "their vaults are loaded with bonds, mortgages
and other securities, held _in terrorem_ over the heads of several
hundreds more."[557] At Harrisburg, Pennsylvania, one bank brought more
than one hundred suits during May, 1818;[558] a few months later a
single issue of one country newspaper in Pennsylvania contained
advertisements of eighteen farms and mills at sheriff's sale; a village
newspaper in New York advertised sixty-three farms and lots to be sold
under the sheriff's hammer.[559] "Currency" decreased in quantity;
unemployment was amazing; scores of thousands of men begged for work;
throngs of the idle camped near cities and subsisted on charity.[560]
All this the people laid at the doors of the National Bank, while the
State banks,[561] of course, encouraged the popular animosity. Another
order of the National concern increased the anger of the people and of
the State banks against it. For more than a year the parent institution
and its branches had redeemed all notes issued by them wherever
presented. Since the notes from the West and South flowed to the North
and East[562] in payment for the manufactures and merchandise of these
sections, this universal redemption became impossible. So, on August 28,
1818, the branches were directed to refuse all notes except their
own.[563]
Thus the Bank, "like an _abandoned_ mother, ... BASTARDIZED its
offspring,"[564] said the enemies of the National Bank, among them all
State banks and most of the people. The enforcement of redemption of
State bank bills, the reduction of the volume of "currency," were the
real causes of the fury with which the Bank of the United States and its
branches was now assailed. That institution was the monster, said local
orators and editors; its branches were the tentacles of the Octopus,
heads of the Hydra.[565] "The 'branches' are execrated on all hands,"
wrote an Ohio man. "We _feel_ that to the policy pursued by them, we are
indebted for all the evils we experience for want of a circulating
medium."[566]
The popular cry was for relief. More money, not less, was needed, it was
said; and more banks that could and would loan funds with which to pay
debts. If the creditor would not accept the currency thus procured, let
laws be passed that would compel him to do so, or prevent him from
collecting what his contract called for. Thus, with such demands upon
their lips, and in the midst of a storm of lawsuits, the people entered
at last that inevitable period of bankruptcy to which for years they had
been drawing nearer and for which they were themselves largely
responsible.
Bankruptcy laws had already been enacted by some States; and if these
acts had not been drawn for the benefit of speculators in anticipation
of the possible evil day, the "insolvency" statutes certainly had been
administered for the protection of rich and dishonest men who wished to
escape their liabilities, and yet to preserve their assets. In New
York[567] the debtor was enabled to discharge all accounts by turning
over such property as he had; if he owed ten thousand dollars, and
possessed but fifty dollars, his debt was cancelled by the surrender of
that sum. For the honest and prudent man the law was just, since no
great discrepancy usually existed between his reported assets and his
liabilities. But lax administration of it afforded to the dishonest
adventurer a shield from the righteous consequences of his wrongdoing.
The "bankruptcies" of knavish men were common operations. One merchant
in an Eastern city "failed," but contrived to go on living in a house
for which he "was offered $200,000 in real money."[568] Another in
Philadelphia became "insolvent," yet had $7000 worth of wine in his
cellar at the very time he was going through "bankruptcy."[569] A
merchant tailor in the little town of York, Pennsylvania, resorted to
bankruptcy to clear himself of eighty-four thousand dollars of
debt.[570]
In their speculations adventurous men counted on the aid of these
legislative acts for the relief of debtors. "Never ... have any ... laws
been more productive of crime than the insolvent laws of Maryland,"
testifies Niles.[571] One issue of the _Federal Gazette_ contained six
columns of bankruptcy notices, and these were only about "one-third of
the persons" then "'going through our mill.'" Several "bankrupts" had
been millionaires, and continued to "_live in splendid affluence_, ...
their wives and children, or some kind relative, having been made rich
through their swindlings of the people."[572] Many "insolvents" were
bankers; and this led Niles to propose that the following law be
adopted:
"'Whereas certain persons ... _unknown_, have petitioned for the
establishment of a bank at ----:
"'Be it enacted, that ... these persons, ... shall have liberty to
become BANKRUPTS, and may legally swindle as much as they can.'"[573]
In a Senate debate in March, 1820, for a proposed new National
Bankruptcy Act,[574] Senator Harrison Gray Otis of Massachusetts
moderately stated the results of the State insolvency laws. "Merchants
and traders ... are harassed and perplexed by twenty different systems
of municipal laws, often repugnant to each other and themselves; always
defective; seldom executed in good faith; prolific in endless frauds,
perjuries, and evasions; and never productive of ... any sort of
justice, to the creditor. Nothing could be ... comparable to their
pernicious effects upon the public morals."[575] Senator Prentiss
Mellen, of the same State, described the operation of the bankruptcy
mill thus: "We frequently witness transactions, poisoned throughout with
fraud ... in which _all_ creditors are deceived and defrauded.... The
man _pretends_ to be a bankrupt; and having converted a large portion of
his property into money ... he ... closes his doors; ... goes through
the form of offering to give up all his property, (though secretly
retaining thousands,) on condition of receiving a discharge from his
creditors.... In a few months, or perhaps weeks, he recommences
business, and finds himself ... with a handsome property at
command."[576]
Senator James Burrill, Jr., of Rhode Island was equally specific and
convincing. He pictured the career of a dishonest merchant, who
transfers property to relatives, secures a discharge from the State
bankruptcy courts, and "in a few days ... resumes his career of folly,
extravagance, and rashness.... Thus the creditors are defrauded, and the
debtor, in many cases, lives in affluence and splendor."[577] Flint
records that "mutual credit and confidence are almost torn up by the
roots."[578]
It was soon to be the good fortune of John Marshall to declare such
State legislation null and void because in violation of the National
Constitution. Never did common honesty, good faith, and fair dealing
need such a stabilizing power as at the moment Marshall furnished to the
American people. In most parts of the country even insolvency laws did
not satisfy debtors; they were trying to avoid the results of their own
acts by securing the enactment of local statutes that repealed the
natural laws of human intercourse--of statutes that expressed the
momentary wish of the uncomfortable, if honest, multitude, but that
represented no less the devices of the clever and unscrupulous.
Fortunate, indeed, was it for the United States, at this critical time
in its development, that one department of the Government could not be
swayed by the passion of the hour, and thrice happy that the head of
that department was John Marshall.
The impression made directly on Marshall by what took place under his
very eyes in Virginia was strengthened by events that occurred in
Kentucky. All his brothers and sisters, except two, besides numerous
cousins and relatives by marriage, lived there. Thus he was advised in
an intimate and personal way of what went forward in that State.[579]
The indebtedness of Kentucky State banks, and of individual borrowers to
the branches of the National Bank located in that Commonwealth, amounted
to more than two and one half millions of dollars.[580] "This is the
_trifling_ sum which the people of Kentucky are called upon to pay in
_specie_!"[581] exclaimed a Kentucky paper. The people of that State
owed the local banks about $7,000,000 more, while the total indebtedness
to all financial institutions within Kentucky was not far from
$10,000,000.[582] The sacrifice of property for the satisfaction of
mortgages grew ever more distressing. At Lexington, a house and lot, for
which the owner had refused $15,000, brought but $1300 at sheriff's
sale; another costing $10,000 sold under the hammer for $1500.[583] Even
slaves could be sold only at a small fraction of their ordinary market
price.
It was the same in other States. Within Marshall's personal observation
in Virginia the people were forced to eat the fruits of their folly.
"Lands in this State cannot now be sold for a year's rent," wrote
Jefferson.[584] A farm near Easton, Pennsylvania, worth $12,500,
mortgaged to secure a debt of $2500, was taken by the lender on
foreclosure for the amount of the loan. A druggist's stock of the retail
value of $10,000 was seized for rent by the landlord and sold for
$400.[585] In Virginia a little later a farm of three hundred acres with
improvements worth, at the lowest estimate, $1500, sold for $300; two
wagon horses costing $200 were sacrificed for $40.
Mines were shut down, shops closed, taxes unpaid. "The debtor ... gives
up his land, and, ruined and undone, seeks a home for himself and his
family in the western wilderness."[586] John Quincy Adams records in his
diary: "Staple productions ... are falling to ... less than half the
prices which they have lately borne, the merchants are crumbling to
ruin, the manufactures perishing, agriculture stagnating, and distress
universal in every part of the country."[587]
During the summer and autumn of 1818, the popular demand for legislation
that would suspend contracts, postpone the payment of debts, and stay
the judgment of courts, became strident and peremptory. "Our greatest
real evil is the question between debtor and creditor, into which the
banks have plunged us deeper than would have been possible without
them," testifies Adams. "The bank debtors are everywhere so numerous and
powerful that they control the newspapers throughout the Union, and give
the discussion a turn extremely erroneous, and prostrate every principle
of political economy."[588]
This was especially true of Kentucky. Throughout the State great
assemblages were harangued by oratorical "friends of the people." "The
reign of political quackery was in its glory."[589] Why the scarcity of
money when that commodity was most needed? Why the lawsuits for the
collection of debts, the enforcement of bonds, the foreclosure of
mortgages, instead of the renewal of loans, to which debtors had been
accustomed? Financial manipulation had done it all. The money power was
responsible for the misery of the people. Let that author and contriver
of human suffering be suppressed.
What could be easier or more just than to enact legislation that would
lift the burden of debt that was crushing the people? The State banks
would not resist--were they not under the control of the people's
Legislature? But they were also at the mercy of that remorseless
creature of the National Government, the Bank of the United States. That
malign Thing was the real cause of all the trouble.[590] Let the law by
which Congress had given illegitimate life to that destroyer of the
people's well-being be repealed. If that could not be done because so
many of the National Legislature were corruptly interested in the Bank,
the States had a sure weapon with which to destroy it--or at least to
drive it out of business in every member of the Union.
That weapon was taxation. Let each Legislature, by special taxes,
strangle the branches of the National Bank operating in the States. So
came a popular determination to exterminate, by State action, the
second Bank of the United States. National power should be brought to
its knees by local authority! National agencies should be made helpless
and be dispatched by State prohibition and State taxation! The arm of
the National Government should be paralyzed by the blows showered on it
when thrusting itself into the affairs of "sovereign" States! Already
this process was well under way.
The first Constitution of Indiana, adopted soon after Congress had
authorized the second Bank of the United States, prohibited any bank
chartered outside the State from doing business within its borders.[591]
During the very month that the National Bank opened its doors in 1817,
the Legislature of Maryland passed an act taxing the Baltimore branch
$15,000 annually. Seven months afterward the Legislature of Tennessee
enacted a law that any bank not chartered under its authority should pay
$50,000 each year for the privilege of banking in that State. A month
later Georgia placed a special tax on branches of the Bank of the United
States.
The Constitution of Illinois, adopted in August, 1818, forbade the
establishment of any but State banks. In December of that year North
Carolina taxed the branch of the National Bank in that State $5000 per
annum. A few weeks later Kentucky laid an annual tax of $60,000 on each
of the two branches of the Bank of the United States located at
Lexington and Frankfort. Three weeks before John Marshall delivered his
opinion in M'Culloch _vs._ Maryland, Ohio enacted a statute placing a
yearly tax of $50,000 on each of the two National Bank branches then
doing business in that State.[592]
Thus the extinction of the second Bank of the United States by State
legislation appeared to be inevitable. The past management of it had
well deserved this fate; but earnest efforts were now in operation to
recover it from former blunders and to retrieve its fortunes. The period
of corruption was over, and a new, able, and honest management was about
to take charge. If, however, the States could destroy this National
fiscal agency, it mattered not how well it might thereafter be
conducted, for nothing could be more certain than that the local
influence of State banks always would be great enough to induce State
Legislatures to lay impossible burdens on the National Bank.
Such, then, was the situation that produced those opinions of Marshall
on insolvency, on contract, and on a National bank, delivered during
February and March of 1819; such the National conditions which
confronted him during the preceding summer and autumn. He could do
nothing to ameliorate these conditions, nothing to relieve the universal
unhappiness, nothing to appease the popular discontent. But he could
establish great National principles, which would give steadiness to
American business, vitality to the National Government; and which would
encourage the people to practice honesty, prudence, and thrift. And just
this John Marshall did. When considering the enduring work he performed
at this time, we must have in our thought the circumstances that made
that work vitally necessary.
One of the earliest cases decided by the Supreme Court in 1819 involved
the Bankrupt Law of New York. On November 25, 1817, Josiah Sturges[593]
of Massachusetts sued Richard Crowninshield of New York in the United
States Circuit Court for the District of Massachusetts to recover upon
two promissory notes for the sum of $771.86 each, executed March 22,
1811, just twelve days before the passage, April 3, 1811, of the New
York statute for the relief of insolvent debtors. The defendant pleaded
his discharge under that act. The judges were divided in opinion on the
questions whether a State can pass a bankrupt act, whether the New York
law was a bankrupt act, and whether it impaired the obligations of a
contract. These questions were, accordingly, certified to the Supreme
Court.
The case was there argued long and exhaustively by David Daggett and
Joseph Hopkinson for Sturges and by David B. Ogden and William Hunter
for Crowninshield. In weight of reasoning and full citation of
authority, the discussion was inferior only to those contests before the
Supreme Bench which have found a place in history.
On February 17, 1819, Marshall delivered the unanimous opinion of the
court.[594] Do the words of the Constitution, "Congress shall have
power ... to establish ... uniform laws on the subject of bankruptcies
throughout the United States" take from the States the right to pass
such laws?
Before the adoption of the Constitution, begins Marshall, the States
"united for some purposes, but, in most respects, sovereign," could
"exercise almost every legislative power." The powers of the States
under the Constitution were not defined in that instrument. "These
powers proceed, not from the people of America, but from the people of
the several states; and remain, after the adoption of the constitution,
what they were before, except so far as they may be abridged" by the
Nation's fundamental law.
While the "mere grant of a power to Congress" does not necessarily mean
that the States are forbidden to exercise the same power, such
concurrent power does not extend to "every possible case" not expressly
prohibited by the Constitution. "The confusion resulting from such a
practice would be endless." As a general principle, declares the Chief
Justice, "whenever the terms in which a power is granted to Congress, or
the nature of the power, required that it should be exercised
exclusively by Congress, the subject is as completely taken from the
state legislatures as if they had been expressly forbidden to act on
it."[595]
[Illustration: _John Marshall_
_From the bust in the Court Room of the United States Supreme Court_]
Does this general principle apply to bankrupt laws? Assuredly it
does. Congress is empowered to "establish uniform laws on the subject
throughout the United States." Uniform National legislation is
"incompatible with state legislation" on the same subject. Marshall
draws a distinction between bankrupt and insolvency laws, although "the
line of partition between them is not so distinctly marked" that it can
be said, "with positive precision, what belongs exclusively to the one,
and not to the other class of laws."[596]
He enters upon an examination of the nature of insolvent laws which
States may enact, and bankrupt laws which Congress may enact; and finds
that "there is such a connection between them as to render it difficult
to say how far they may be blended together.... A bankrupt law may
contain those regulations which are generally found in insolvent laws";
while "an insolvent law may contain those which are common to a bankrupt
law." It is "obvious," then, that it would be a hardship to "deny to the
state legislatures the power of acting on this subject, in consequence
of the grant to Congress." The true rule--"certainly a convenient
one"--is to "consider the power of the states as existing over such
cases as the laws of the Union may not reach."[597]
But, whether this common-sense construction is adopted or not, it is
undeniable that Congress may exercise a power granted to it or decline
to exercise it. So, if Congress thinks that uniform bankrupt laws "ought
not to be established" throughout the country, surely the State
Legislatures ought not, on that account, to be prevented from passing
bankrupt acts. The idea of Marshall, the statesman, was that it was
better to have bankrupt laws of some kind than none at all. "It is not
the mere existence of the power [in Congress], but its exercise, which
is incompatible with the exercise of the same power by the states. It is
not the right to establish these uniform laws, but their actual
establishment, which is inconsistent with the partial acts of the
states."[598]
Even should Congress pass a bankrupt law, that action does not
extinguish, but only suspends, the power of the State to legislate on
the same subject. When Congress repeals a National bankrupt law it
merely "removes a disability" of the State created by the enactment of
the National statute, and lasting only so long as that statute is in
force. In short, "until the power to pass uniform laws on the subject of
bankruptcies be exercised by Congress, the states are not forbidden to
pass a bankrupt law, provided it contain no principle which violates the
10th section of the first article of the constitution of the United
States."[599]
Having toilsomely reached this conclusion, Marshall comes to what he
calls "the great question on which the cause must depend": Does the New
York Bankrupt Law "impair the obligation of contracts"?[600]
What is the effect of that law? It "liberates the person of the debtor,
and discharges him from all liability for any debt previously
contracted, on his surrendering his property in the manner it
prescribes." Here Marshall enters upon that series of expositions of
the contract clause of the Constitution which, next to the Nationalism
of his opinions, is, perhaps, the most conspicuous feature of his
philosophy of government and human intercourse.[601] "What is the
obligation of a contract? and what will impair it?"[602]
It would be hard to find words "more intelligible, or less liable to
misconstruction, than those which are to be explained." With a tinge of
patient impatience, the Chief Justice proceeds to define the words
"contract," "impair," and "obligation," much as a weary school teacher
might teach the simplest lesson to a particularly dull pupil.
"A contract is an agreement in which a party undertakes to do, or not to
do, a particular thing. The law binds him to perform his undertaking,
and this is, of course, the obligation of his contract. In the case at
bar, the defendant has given his promissory note to pay the plaintiff a
sum of money on or before a certain day. The contract binds him to pay
that sum on that day; and this is its obligation. Any law which releases
a part of this obligation, must, in the literal sense of the word,
impair it. Much more must a law impair it which makes it totally
invalid, and entirely discharges it.
"The words of the constitution, then, are express, and incapable of
being misunderstood. They admit of no variety of construction, and are
acknowledged to apply to that species of contract, an engagement between
man and man, for the payment of money, which has been entered into by
these parties."[603]
What are the arguments that such law does not violate the Constitution?
One is that, since a contract "can only bind a man to pay to the full
extent of his property, it is an implied condition that he may be
discharged on surrendering the whole of it." This is simply not true,
says Marshall. When a contract is made, the parties to it have in mind,
not only existing property, but "future acquisitions. Industry, talents
and integrity, constitute a fund which is as confidently trusted as
property itself. Future acquisitions are, therefore, liable for
contracts; and to release them from this liability impairs their
obligation."[604]
Marshall brushes aside, almost brusquely, the argument that the only
reason for the adoption of the contract clause by the Constitutional
Convention was the paper money evil; that the States always had passed
bankrupt and insolvent laws; and that if the framers of the Constitution
had intended to deprive the States of this power, "insolvent laws would
have been mentioned in the prohibition."
No power whatever, he repeats, is conferred on the States by the
Constitution. That instrument found them "in possession" of practically
all legislative power and either prohibited "its future exercise
entirely," or restrained it "so far as national policy may require."
While the Constitution permits States to pass bankrupt laws "until that
power shall be exercised by Congress," the fundamental law positively
forbids the States to "introduce into such laws a clause which
discharges the obligations the bankrupt has entered into. It is not
admitted that, without this principle, an act cannot be a bankrupt law;
and if it were, that admission would not change the constitution, nor
exempt such acts from its prohibitions."[605]
There was, said Marshall, nothing in the argument that, if the framers
of the Constitution had intended to "prohibit the States from passing
insolvent laws," they would have plainly said so. "It was not necessary,
nor would it have been safe" for them to have enumerated "particular
subjects to which the principle they intended to establish should
apply."
On this subject, as on every other dealt with in the Constitution,
fundamental principles are set out. What is the one involved in this
case? It is "the inviolability of contracts. This principle was to be
protected in whatsoever form it might be assailed. To what purpose
enumerate the particular modes of violation which should be forbidden,
when it was intended to forbid all?... The plain and simple declaration,
that no state shall pass any law impairing the obligation of contracts,
includes insolvent laws and all other laws, so far as they infringe the
principle the convention intended to hold sacred, and no farther."[606]
At this point Marshall displays the humanitarian which, in his
character, was inferior only to the statesman. He was against
imprisonment for debt, one of the many brutal customs still practiced.
"The convention did not intend to prohibit the passage of all insolvent
laws," he avows. "To punish honest insolvency by imprisonment for life,
and to make this a constitutional principle, would be an excess of
inhumanity which will not readily be imputed to the illustrious patriots
who framed our constitution, nor to the people who adopted it....
Confinement of the debtor may be a punishment for not performing his
contract, or may be allowed as a means of inducing him to perform it.
But the state may refuse to inflict this punishment, or may withhold
this means and leave the contract in full force. Imprisonment is no part
of the contract, and simply to release the prisoner does not impair its
obligation."[607]
Following his provoking custom of taking up a point with which he had
already dealt, Marshall harks back to the subject of the reason for
inserting the contract clause into the Constitution. He restates the
argument against applying that provision to State insolvent laws--that,
from the beginning, the Colonies and States had enacted such
legislation; that the history of the times shows that "the mind of the
convention was directed to other laws which were fraudulent in their
character, which enabled the debtor to escape from his obligation, and
yet hold his property, not to this, which is beneficial in its
operation."
But, he continues, "the spirit of ... a constitution" is not to be
determined solely by a partial view of the history of the times when it
was adopted--"the spirit is to be collected chiefly from its words." And
"it would be dangerous in the extreme to infer from extrinsic
circumstances, that a case for which the words of an instrument
expressly provide, shall be exempted from its operation." Where language
is obscure, where words conflict, "construction becomes necessary." But,
when language is clear, words harmonious, the plain meaning of that
language and of those words is not "to be disregarded, because we
believe the framers of that instrument could not intend what they
say."[608]
The practice of the Colonies, and of the States before the Constitution
was adopted, was a weak argument at best. For example, the Colonies and
States had issued paper money, emitted bills of credit, and done other
things, all of which the Constitution prohibits. "If the long exercise
of the power to emit bills of credit did not restrain the convention
from prohibiting its future exercise, neither can it be said that the
long exercise of the power to impair the obligation of contracts, should
prevent a similar prohibition." The fact that insolvent laws are not
forbidden "by name" does not exclude them from the operation of the
contract clause of the Constitution. It is "a principle which is to be
forbidden; and this principle is described in as appropriate terms as
our language affords."[609]
Perhaps paper money was the chief and impelling reason for making the
contract clause a part of the National Constitution. But can the
operation of that clause be confined to paper money? "No court can be
justified in restricting such comprehensive words to a particular
mischief to which no allusion is made." The words must be given "their
full and obvious meaning."[610] Doubtless the evils of paper money
directed the Convention to the subject of contracts; but it did far more
than to make paper money impossible thereafter. "In the opinion of the
convention, much more remained to be done. The same mischief might be
effected by other means. To restore public confidence completely, it was
necessary not only to prohibit the use of particular means by which it
might be effected, but to prohibit the use of any means by which the
same mischief might be produced. The convention appears to have intended
to establish a great principle, that contracts should be inviolable. The
constitution therefore declares, that no state shall pass 'any law
impairing the obligation of contracts.'"[611] From all this it follows
that the New York Bankruptcy Act of 1812 is unconstitutional because it
impaired the obligations of a contract.
The opinion of the Chief Justice aroused great excitement.[612] It, of
course, alarmed those who had been using State insolvent laws to avoid
payment of their debts, while retaining much of their wealth. It also
was unwelcome to the great body of honest, though imprudent, debtors who
were struggling to lighten their burdens by legislation. But the more
thoughtful, even among radicals, welcomed Marshall's pronouncement.
Niles approved it heartily.[613]
Gradually, surely, Marshall's simple doctrine grew in favor throughout
the whole country, and is to-day a vital and enduring element of
American thought and character as well as of Constitutional law.
As in Fletcher _vs._ Peck, the principle of the inviolability of
contracts was applied where a State and individuals are parties, so the
same principle was now asserted in Sturges _vs._ Crowninshield as to
State laws impairing the obligation of contracts between man and man. At
the same session, in the celebrated Dartmouth College case,[614]
Marshall announced that this principle also covers charters granted by
States. Thus did he develop the idea of good faith and stability of
engagement as a life-giving principle of the American Constitution.
FOOTNOTES:
[437] M'Culloch _vs._ Maryland, see _infra_, chap. VI.
[438] See vol. II, 60, of this work.
[439] Sumner: _History of American Currency_, 63.
[440] See Memorial of the Bank for a recharter, April 20, 1808 (_Am.
State Papers, Finance_, II, 301), and second Memorial, Dec. 18, 1810
(_ib._ 451-52). Every statement in these petitions was true. See also
Dewey: _Financial History of the United States_, 100, 101.
[441] See vol. II, 70-71, of this work.
[442] _Annals_, 1st Cong. 2d. Sess. 1945. By far the strongest objection
to a National bank, however, was that it was a monopoly inconsistent
with free institutions.
[443] Jefferson to Gallatin, Dec. 13, 1803, _Works_: Ford: X, 57.
[444] "Fully two thirds of the Bank stock ... were owned in England."
(Adams: _U.S._ V, 328.)
[445] Dewey, 127; and Pitkin: _Statistical View of the Commerce of the
United States_, 130-32.
[446] Adams: _U.S._ V, 328-29.
[447] _Annals_, 11th Cong. 3d Sess. 118-21.
[448] _Ib._ 153, 201, 308; and see Pitkin, 421.
[449] Adams: _U.S._ V, 327-28. "They induced one State legislature after
another to instruct their senators on the subject." Pitkin, 422.
[450] Ambler: _Ritchie_, 26-27, 52.
[451] _Ib._ 67.
[452] _Branch Hist. Papers_, June, 1903, 179.
[453] _Annals_, 11th Cong. 3d Sess. 145.
[454] "It is true, that a branch of the Bank of the United States ... is
established at Norfolk; and that a branch of the Bank of Virginia is
also established there. But these circumstances furnish no possible
motive of avarice to the Virginia Legislature.... They have acted ...
from the purest and most honorable motives." (_Annals_, 11th Cong. 3d
Sess. 200.)
[455] Pitkin, 421.
[456] The "newspapers teem with the most virulent abuse." (James Flint's
Letters from America, in _Early Western Travels_: Thwaites, IX, 87.)
Even twenty years later Captain Marryat records: "The press in the
United States is licentious to the highest possible degree, and defies
control.... Every man in America reads his newspaper, and hardly any
thing else." (Marryat: _Diary in America_, 2d Series, 56-59.)
[457] "The Democratic presses ... have ... teemed with the most
scurrilous abuse against every member of Congress who has dared to utter
a syllable in favor of the renewal of the bank charter." Any member
supporting the bank "is instantly charged with being bribed, ... with
being corrupt, with having trampled upon the rights and liberties of the
people, ... with being guilty of perjury."
According to "the rantings of our Democratic editors ... and the
denunciations of our public declaimers," the bank "exists under the form
of every foul and hateful beast and bird, and creeping thing. It is an
_Hydra_; it is a _Cerberus_; it is a _Gorgon_; it is a _Vulture_; it is
a _Viper_....
"Shall we tamely act under the lash of this tyranny of the press?... I
most solemnly protest.... To tyranny, under whatever form it may be
exercised, I declare open and interminable war ... whether the tyrant is
an irresponsible editor or a despotic Monarch." (_Annals_, 11th Cong. 3d
Sess. 145.)
[458] _Annals_, 11th Cong. 3d Sess. 826.
[459] _Ib._ 347.
[460] Pitkin, 430.
[461] Adams to Rush, Dec. 27, 1810, _Old Family Letters_, 272.
[462] Sumner: _Andrew Jackson_, 229.
[463] Dewey, 145.
[464] Twenty-one State banks were employed as Government depositories
after the destruction of the first Bank of the United States (_Ib._
128.)
[465] Dewey, 127.
[466] Adams to Rush, July 3, 1812, _Old Family Letters_, 299.
[467] William Faux's Journal, _E. W. T._: Thwaites, XI, 207.
[468] Speech of Hanson in the House, Nov. 28, 1814, _Annals_, 13th Cong.
3d Sess. 656.
[469] Catterall: _Second Bank of the United States_, 13-17.
[470] Calhoun's bill.
[471] Webster to his brother, Nov. 29, 1814, Van Tyne, 55.
[472] Webster's bill.
[473] _Annals_, 13th Cong. 3d Sess. 189-91; Richardson, I, 555-57.
[474] Richardson, I, 565-66. Four years afterwards President Monroe told
his Secretary of State, John Quincy Adams, that Jefferson, Madison, and
himself considered all Constitutional objections to the Bank as having
been "settled by twenty years of practice and acquiescence under the
first bank." (_Memoirs, J. Q. A.: Adams_, IV, 499, Jan. 8, 1820.)
[475] _Annals_, 14th Cong. 1st Sess. 280-81.
[476] _Annals_, 1st Cong. 2d and 3d Sess. 2375-82; and 14th Cong. 1st
Sess. 1812-25; also Dewey, 150-51.
[477] Catterall, 22.
[478] Dewey, 144.
[479] Sumner: _Hist. Am. Currency_, 70.
[480] In November, 1818, Niles estimated that there were about four
hundred banks in the country with eight thousand "managers and clerks,"
costing $2,000,000, annually. (Niles, XV, 162.)
[481] "The present multitude of them ... is no more fitted to the
condition of society, than a long-tailed coat becomes a sailor on
ship-board." (_Ib._ XI, 130.)
[482] King to his son, May 1, 1816, King, VI, 22.
[483] King to Gore, May 14, 1816, _Ib._ 23-25.
[484] Niles, XIV, 109.
[485] _Ib._ XVI, 257.
[486] Niles, XVI, 257.
[487] _Ib._ XIV, 110.
[488] _Ib._ 195-96.
[489] "Niles' _Weekly Register_ is ... an excellent repository of facts
and documents." (Jefferson to Crawford, Feb. 11, 1815, _Works_: Ford,
XI. 453.)
[490] Niles, XIV, 426-28.
[491] Niles, XIV, 2-3.
[492] "Report of the Committee on the Currency of this [New York]
State," Feb. 24, 1818, _ib._ 39-42; also partially reproduced in
_American History told by Contemporaries_: Hart, III, 441-45.
[493] "Report of Committee on the Currency," New York, _supra_, 184.
[494] Niles, XIV, 108.
[495] Jefferson to Yancey, Jan. 6, 1816, _Works_: Ford, XI, 494.
[496] Dewey, 144; and Sumner: _Hist. Am. Currency_, 75.
[497] Niles proposed a new bank to be called "THE RAGBANK OF THE
UNIVERSE," main office at "_Lottery-ville_," and branches at
"_Hookstown_," "_Owl Creek_," "_Botany Bay_," and "_Twisters-burg_."
Directors were to be empowered also "to put offices on wheels, on
ship-board, or in balloons"; stock to be "one thousand million of old
shirts." (Niles, XIV, 227.)
[498] Dewey, 144.
[499] _Ib._ 153-54.
[500] Flint's Letters, _E. W. T._: Thwaites, IX, 136; and see "Report of
the Committee on the Currency," New York, _supra_, 184.
[501] Tyler: _Tyler_, I, 302; Niles, XI, 130.
[502] Niles, XI, 128.
[503] _Ib._ IV, 109; Collins: _Historical Sketches of Kentucky_, 88.
These were in addition to the branches of the Bank of Kentucky and of
the Bank of the United States. Including them, the number of chartered
banks in that State was fifty-eight by the close of 1818. Of the towns
where new banks were established during that year, Burksville had 106
inhabitants; Barboursville, 55; Hopkinsville, 131; Greenville, 75;
thirteen others had fewer than 500 inhabitants. The "capital" of the
banks in such places was never less than $100,000, but that at Glasgow,
with 244 inhabitants, had a capital of $200,000, and several other
villages were similarly favored. For full list see Niles, XIV, 109.
[504] Flint's Letters, _E. W. T._: Thwaites, IX, 133.
[505] Niles, XVII, 85.
[506] John Woods's Two Years' Residence, _E. W. T._: Thwaites, X, 236.
[507] Flint's Letters, _E. W. T._: Thwaites, IX, 133-34.
[508] _Ib._ 136.
[509] Niles, XIV, 162.
[510] Woods's Two Years' Residence, _E. W. T._: Thwaites, X, 274-78: and
Flint's Letters, _ib._ IX, 69.
In southwestern Indiana, in 1818, Faux "saw nothing ... but miserable
log holes, and a mean ville of eight or ten huts or cabins, sadly
neglected farms, and indolent, dirty, sickly, wild-looking inhabitants."
(Faux's Journal, Nov. 1, 1818, _ib._ XI, 213-14.) He describes Kentucky
houses as "miserable holes, having one room only," where "all cook, eat,
sleep, breed, and die, males and females, all together." (_Ib._ 185, and
see 202.)
[511] For shocking and almost unbelievable conditions of living among
the settlers see Faux's Journal, _E. W. T._: Thwaites, XI, 226, 231,
252-53, 268-69.
[512] "We landed for some whiskey; for our men would do nothing
without." (Woods's Two Years' Residence, _ib._ X, 245, 317.) "Excessive
drinking seems the all-pervading, easily-besetting sin." (Faux's
Journal, Nov. 3, 1818, _ib._ XI, 213.) This continued for many years and
was as marked in the East as in the West. (See Marryat, 2d Series,
37-41.)
There was, however, a large and ever-increasing number who hearkened to
those wonderful men, the circuit-riding preachers, who did so much to
build up moral and religious America. Most people belonged to some
church, and at the camp meetings and revivals, multitudes received
conviction.
The student should carefully read the _Autobiography of Peter
Cartwright_, edited by W. P. Strickland. This book is an invaluable
historical source and is highly interesting. See also Schermerhorn and
Mills: _A Correct View of that part of the United States which lies west
of the Allegany Mountains, with regard to Religion and Morals._ _Great
Revival in the West_, by Catharine C. Cleveland, is a careful and
trustworthy account of religious conditions before the War of 1812. It
has a complete bibliography.
[513] Flint's Letters, _E. W. T._: Thwaites, 153; also Schermerhorn and
Mills, 17-18.
[514] "Nature is the agriculturist here [near Princeton, Ind.];
speculation instead of cultivation, is the order of the day amongst
men." (Thomas Hulme's Journal, E. W. T.: Thwaites, X, 62; see Faux's
Journal, _ib._ XI, 227.)
[515] Faux's Journal, _ib._ 216, 236, 242-43.
[516] _Ib._ 214.
[517] See vol. I, chap, VII, of this work.
[518] Flint's Letters, _E. W. T._: Thwaites, IX, 87; Woods's Two Years
Residence, _ib._ X, 255. "I saw a man this day ... his nose bitten off
close down to its root, in a fight with a nose-loving neighbour."
(Faux's Journal, _ib._ XI, 222; and see Strickland, 24-25.)
[519] The reports of American conditions by British travelers, although
from unsympathetic pens and much exaggerated, were substantially true.
Thus Europe, and especially the United Kingdom, conceived for Americans
that profound contempt which was to endure for generations.
"Such is the land of Jonathan," declared the _Edinburgh Review_ in an
analysis in 1820 (XXXIII, 78-80) of a book entitled _Statistical Annals
of the United States_, by Adam Seybert. "He must not ... allow himself
to be dazzled by that galaxy of epithets by which his orators and
newspaper scribblers endeavour to persuade their supporters that they
are the greatest, the most refined, the most enlightened, and the most
moral people upon earth.... They have hitherto given no indications of
genius, and made no approaches to the heroic, either in their morality
or character....
"During the thirty or forty years of their independence, they have done
absolutely nothing for the Sciences, for the Arts, for Literature, or
even for statesman-like studies of Politics or Political Economy.... In
the four quarters of the globe, who reads an American book? or goes to
an American play? or looks at an American picture or statue? What does
the world yet owe to American physicians or surgeons? What new
substances have their chemists discovered? or what old ones have they
analyzed? What new constellations have been discovered by the telescopes
of Americans?--what have they done in the mathematics...? under which of
the old tyrannical governments of Europe is every sixth man a Slave,
whom his fellow-creatures may buy and sell and torture?"
[520] Nevertheless, these very settlers had qualities of sound, clean
citizenship; and beneath their roughness and crudity were noble
aspirations. For a sympathetic and scholarly treatment of this phase of
the subject see Pease: _Frontier State_, I, 69.
[521] Faux's Journal, _E. W. T._: Thwaites, XI, 246.
[522] Randolph to Quincy, Aug. 16, 1812, _Quincy_: Quincy, 270.
[523] Marryat, 2d Series, 1.
[524] See vol. I, chap, VII, of this work.
[525] Marryat, 1st Series, 15.
[526] Marryat, 2d Series, 176.
[527] Woods's Two Years' Residence, _E. W. T._: Thwaites, X, 325.
[528] Niles, XIV, 2.
[529] See McMaster, IV, 287. This continued even after the people had at
last become suspicious of unlicensed banks. In 1820, at Bloomington,
Ohio, a hamlet of "ten houses ... in the edge of the prairie ... a
[bank] company was formed, plates engraved, and the bank notes brought
to the spot." Failing to secure a charter, the adventurers sold their
outfit at auction, fictitious names were signed to the notes, which were
then put into fraudulent circulation. (Flint's Letters, _E. W. T._:
Thwaites, IX, 310.)
[530] _Ib._ 130-31.
[531] Faux's Journal, Oct. 11, 1818, _E. W. T_.: Thwaites, XI, 171. Faux
says that even in Cincinnati itself the bank bills of that town could be
exchanged at stores "only 30 or 40 per centum below par, or United
States' paper."
[532] Flint's Letters, _E. W. T_. Thwaites, IX, 132-36.
[533] In Baltimore Cohens's "lottery and exchange office" issued a list
of nearly seventy banks, with rates of prices on their notes. The
circular gave notice that the quotations were good for one day only.
(Niles, XIV, 396.) At the same time G. & R. Waite, with offices in New
York, Philadelphia, and Baltimore, issued a list covering the country
from Connecticut to Ohio and Kentucky. (_Ib._ 415.) The rates as given
by this firm differed greatly from those published by Cohens.
[534] _Ib._ X, 80.
[535] Sumner: _Jackson_, 229.
[536] Flint's Letters, _E. W. T._: Thwaites, IX, 219.
[537] Niles, XV, 60.
[538] Niles, XIV, 193-96; also XV, 434.
[539] _Ib._ XVII, 164.
[540] _Ib._ XIV, 108.
[541] A wealthy Richmond merchant who had married a sister of Marshall's
wife. (See vol. II, 172, of this work.)
[542] A writ directing the sheriff to seize the goods and chattels of a
person to compel him to satisfy an obligation. Bouvier (Rawle's ed.) I,
590.
[543] Richmond _Enquirer_, Jan. 16, 1816.
What was the outcome of this incident does not appear. Professor Sumner
says that the bank was closed for a few days, but soon opened and went
on with its business. (Sumner: _Hist. Am. Currency_, 74-75.) Sumner
fixes the date in 1817, two years after the event.
[544] Niles, XIV, 281.
[545] _Ib._ 314-15.
[546] _Ib._ 333; and for similar cases, see _ib._ 356, 396-97, 428-30.
All these accounts were taken from newspapers at the places where
criminals were captured.
[547] Niles, XIV, 428.
[548] _Ib._ XVI, 147-48; also, _ib._ 360, 373, 390.
[549] _Ib._ 179.
[550] _Ib._ 210.
[551] _Ib._ 208.
[552] _Ib._ 210.
[553] See Catterall, 39-50.
[554] The frauds of the directors and officers of the Bank of the United
States were used, however, as the pretext for an effort to repeal its
charter. On Feb. 9, 1819, James Johnson of Virginia introduced a
resolution for that purpose. (_Annals_, 15th Cong. 2d Sess. III,
1140-42.)
[555] See Catterall, 32.
[556] New Castle County.
[557] Niles, XV, 162.
[558] _Ib._ 59.
[559] _Ib._ 418.
[560] Flint's Letters, _E.W.T._: Thwaites, IX, 226.
[561] They, too, asserted that institution to be the author of their
woes, (Niles, XVII, 2.)
[562] Catterall, 33-37.
[563] _Ib._ 51-53; and see Niles, XV, 25.
[564] Catterall, 33.
[565] Monster, Hydra, Cerberus, Octopus, and names of similar import
were popularly applied to the Bank of the United States. (See Crawford's
speech, _supra_, 175.)
[566] Niles, XV, 5.
[567] Act of April 3, 1811, _Laws of New York_, 1811, 205-21.
[568] Niles, XVI, 257.
[569] _Ib._
[570] _Ib._ XVII, 147.
[571] "I have known several to _calculate_ upon the 'relief' from them,
just as they would do on an accommodation at bank, or on the payment of
debts due to them! If we succeed in such and such a thing, say
they--very well; if not, we can get the benefit of the insolvent
laws.... Where one prudent and honest man applies for such benefit, one
hundred rogues are facilitated in their depredations." (Niles, XVII,
115.)
[572] _Ib._
[573] _Ib._ XV, 283.
[574] The bankruptcy law which Marshall had helped to draw when in
Congress (see vol. II, 481-82, of this work) had been repealed in 1803.
(_Annals_, 8th Cong. 1st Sess. 215, 625, 631. For reasons for the repeal
see _ib._ 616-22.)
[575] _Annals_, 16th Cong. 1st Sess. 505.
[576] _Ib._ 513.
[577] _Ib._ 517-18.
[578] Flint's Letters, _E.W.T._: Thwaites, IX, 225.
In reviewing _Sketches of America_ by Henry Bradshaw Fearon, an
Englishman who traveled through the United States, the _Quarterly
Review_ of London scathingly denounced the frauds perpetrated by means
of insolvent laws. (_Quarterly Review_, XXI, 165.)
[579] None of these letters to Marshall have been preserved. Indeed,
only a scant half-dozen of the original great number of letters written
him even by prominent men during his long life are in existence. For
those of men like Story and Pickering we are indebted to copies
preserved in their papers.
Marshall, at best, was incredibly negligent of his correspondence as he
was of all other ordinary details of life. Most other important men of
the time kept copies of their letters; Marshall kept none; and if he
preserved those written to him, nearly all of them have disappeared.
[580] Niles, XV, 385.
[581] _Ib._
[582] _Ib._ XVI, 261.
[583] _Ib._ XVII, 85.
[584] Jefferson to Adams, Nov. 7, 1819, _Works_: Ford, XII, 145.
[585] Niles, XVII, 85.
[586] Niles, XVII, 185.
[587] _Memoirs, J. Q. A._: Adams, May 27, 1819, IV, 375.
[588] _Ib._ 391.
[589] Collins, 88.
[590] "The disappointment is altogether ascribed to the Bank of the
U.S." (King to Mason, Feb. 7, 1819, King, VI, 205.) King's testimony is
uncommonly trustworthy. His son was an officer of the branch of
Chillicothe, Ohio.
[591] See Article X, Section 1, Constitution of Indiana, as adopted June
29, 1816.
[592] See Catterall, 64-65, and sources there cited.
[593] Spelled _Sturgis_ on the manuscript records of the Supreme Court.
[594] 4 Wheaton, 192.
[595] 4 Wheaton, 192-93.
[596] 4 Wheaton, 194.
[597] _Ib._ 195.
[598] 4 Wheaton, 196.
[599] "No State shall ... emit Bills of Credit; make any Thing but gold
and silver Coin a Tender in Payment of Debts; pass any ... ex post facto
Law, or Law impairing the Obligation of Contracts."
[600] 4 Wheaton, 196-97.
[601] For the proceedings in the Constitutional Convention on this
clause, see vol. III, chap. X, of this work.
[602] 4 Wheaton, 197.
[603] _Ib._ 197-98.
[604] 4 Wheaton, 198.
[605] 4 Wheaton, 199.
[606] _Ib._ 200.
[607] 4 Wheaton, 200-01.
[608] 4 Wheaton, 202.
[609] _Ib._ 203-04.
[610] 4 Wheaton, 205.
[611] _Ib._ 206.
[612] Niles, XVI, 76.
[613] "It will probably, make some great revolutions in property, and
raise up many from penury ... and cause others to descend to the
condition that becomes _honest men_, by compelling a payment of their
debts--as every honest man ought to be compelled to do, if ever able....
It ought not to be at any one's discretion to say when, or under what
_convenient_ circumstances, he will _wipe off_ his debts, by the benefit
of an insolvent law--as some do every two or three years; or, just as
often as they can get credit enough to make any thing by it." (Niles,
XVI, 2.)
[614] See _infra_, next chapter.
CHAPTER V
THE DARTMOUTH COLLEGE CASE
Such a contract, in relation to a publick institution would be
absurd and contrary to the principles of all governments. (Chief
Justice William M. Richardson.)
It would seem as if the state legislatures have an invincible
hostility to the sacredness of charters. (Marshall.)
Perhaps no judicial proceedings in this country ever involved
more important consequences. (_North American Review_, 1820.)
It is the legitimate business of government to see that
contracts are fulfilled, that charters are kept inviolate, and
the foundations of human confidence not rudely or wantonly
disturbed. (John Fiske.)
Just before Marshall delivered his opinion in Sturges _vs._
Crowninshield, he gave to the Nation another state paper which
profoundly influenced the development of the United States. It was one
of the trilogy of Constitutional expositions which make historic the
February term, 1819, of the Supreme Court of the United States. This
pronouncement, like that in the bankruptcy case, had to do with the
stability of contract. Both were avowals that State Legislatures cannot,
on any pretext, overthrow agreements, whether in the form of engagements
between individuals or franchises to corporations. Both were meant to
check the epidemic of repudiatory legislation which for three years had
been sweeping over the land and was increasing in virulence at the time
when Marshall prepared them. The Dartmouth opinion was wholly written in
Virginia during the summer, autumn, or winter of 1818; and it is
probable that the greater part of the opinion in Sturges _vs._
Crowninshield was also prepared when the Chief Justice was at home or on
his vacation.
Marshall's economic and political views, formed as a young man,[615] had
been strengthened by every event that had since occurred until, in his
sixty-fifth year, those early ideas had become convictions so deep as to
pervade his very being. The sacredness of contract, the stability of
institutions, and, above all, Nationalism in government, were, to John
Marshall, articles of a creed as holy as any that ever inspired a
religious enthusiast.
His opinion of contract had already been expressed by him not only in
the sensational case of Fletcher _vs._ Peck,[616] but far more rigidly
two years later, 1812, in the important case of the State of New Jersey
_vs._ Wilson.[617] In 1758, the Proprietary Government of New Jersey
agreed to purchase a tract of land for a band of Delaware Indians,
provided that the Indians would surrender their title to all other lands
claimed by them in New Jersey. The Indians agreed and the contract was
embodied in an act of the Legislature, which further provided that the
lands purchased for the Indians should "not hereafter be subject to any
tax, any law, usage or custom to the contrary thereof, in any wise
notwithstanding."[618] The contract was then executed, the State
purchasing lands for the Indians and the latter relinquishing the lands
claimed by them.
After forty years the Indians, wishing to join other Delawares in New
York, asked the State of New Jersey to authorize the sale of their
lands. This was done by an act of the Legislature, and the lands were
sold. Soon after this, another act was passed which repealed that part
of the Act of 1758 exempting the lands from taxation. Accordingly the
lands were assessed and payment of the tax demanded. The purchasers
resisted and, the Supreme Court of New Jersey having held valid the
repealing act, took the case to the Supreme Court of the United States.
In a brief opinion, in which it is worthy of particular note that the
Supreme Court was unanimous, Marshall says that the Constitution
protects "contracts to which a state is a party, as well as ...
contracts between individuals.... The proceedings [of 1758] between the
then colony ... and the Indians ... is certainly a contract clothed in
forms of unusual solemnity." The exemption of the lands from taxation,
"though for the benefit of the Indians, is annexed, by the terms which
create it, to the land itself, not to their persons." This element of
the contract was valuable to the Indians, since, "in the event of a
sale, on which alone the question could become material, the value [of
the lands] would be enhanced" by the exemption.
New Jersey "might have insisted on a surrender of this privilege as the
sole condition on which a sale of the property should be allowed"; but
this had not been done and the land was sold "with the assent of the
state, with all its privileges and immunities. The purchaser succeeds,
with the assent of the state, to all the rights of the Indians. He
stands, with respect to this land, in their place, and claims the
benefit of their contract. This contract is certainly impaired by a law
which would annul this essential part of it."[619]
After his opinions in Fletcher _vs._ Peck and in New Jersey _vs._
Wilson, nobody could have expected from John Marshall any other action
than the one he took in the Dartmouth College case.[620]
The origins of the Dartmouth controversy are tangled and obscure. When
on December 23, 1765, a little ocean-going craft, of which a New England
John Marshall[621] was skipper, set sail from Boston Harbor for England
with Nathaniel Whitaker and Samson Occom on board,[622] a succession of
curious events began which, two generations afterward, terminated in one
of the most influential decisions ever rendered by a court. Whitaker was
a preacher and a disciple of George Whitefield; Occom was a young
Indian, converted to Christianity by one Eleazar Wheelock, and endowed
with uncommon powers of oratory.
Wheelock had built up a wilderness school to which were admitted Indian
youth, in whom he became increasingly interested. Occom was one product
of his labors, and Wheelock sent him to England as a living, speaking
illustration of what his school could do if given financial support.
Whitaker went with the devout and talented Indian as the business
agent.[623]
Their mission was to raise funds for the prosecution of this educational
and missionary work on the American frontier. They succeeded in a manner
almost miraculous. Over eleven thousand pounds were soon raised,[624]
and this fund was placed under the control of the Trustees, at the head
of whom was the Earl of Dartmouth, one of the principal donors.[625]
From this circumstance the name of this nobleman was given to Wheelock's
institution.
On December 13, 1769, John Wentworth, Royal Governor of the Province of
New Hampshire, granted to Wheelock a charter for his school. It was, of
course, in the name of the sovereign, but it is improbable that George
III ever heard of it.[626] This charter sets forth the successful
efforts of Wheelock, "at his own expense, on his own estate," to
establish a charity school for Indian as well as white youth, in order
to spread "the knowledge of the great Redeemer among their savage
tribes"; the contributions to the cause; the trust, headed by
Dartmouth--and all the other facts concerning Wheelock's adventure.
Because of these facts the charter establishes "DARTMOUTH COLLEGE" for
the education of Indians, to be governed by "one body corporate and
politick, ... by the name of the TRUSTEES OF DARTMOUTH COLLEGE."
These Trustees are constituted "forever hereafter ... in deed, act, and
name a body corporate and politick," and are empowered to buy, receive,
and hold lands, "jurisdictions, and franchises, for themselves and their
successors, in fee simple, or otherwise howsoever." In short, the
Trustees are authorized to do anything and everything that they may
think proper. Wheelock is made President of the College, and given power
to "appoint, ... by his last will" whomever he chooses to succeed
himself as President of the College.
The charter grants to the Trustees and to "their successors forever," or
"the major part of any seven or more of them convened," the power to
remove and choose a President of the College, and to fill any vacancy in
the Board of Trustees occasioned by death, or "removal," or any other
cause. All this is to be done if seven Trustees, or a majority of seven,
are present at any meeting. Also this majority of seven of the twelve
Trustees, if no more attend a meeting, are authorized to make all laws,
rules, and regulations for the College. Other powers are granted, all of
which the Trustees and their successors are "to have and to hold ...
forever."[627] Under this charter, Dartmouth College was established
and, for nearly half a century, governed and managed.
Eleazar Wheelock died in 1779, when sixty-eight years of age.[628] By
his will he made his son John his successor as President of the
College.[629] This young man, then but twenty-five years of age, was a
Colonel of the Revolutionary Army.[630] He hesitated to accept the
management of the institution, but the Trustees finally prevailed upon
him to do so.[631] The son was as strong-willed and energetic as the
father, and gave himself vigorously to the work to which he had thus
been called.
Within four years troubles began to gather about the College. They came
from sources as strange as human nature itself, and mingled at last into
a compound of animosities, prejudices, ambitions, jealousies, as curious
as any aggregation of passions ever arranged by the most extravagant
novelist. It is possible here to mention but briefly only a few of the
circumstances by which the famous Dartmouth quarrel may be traced. A
woman, one Rachel Murch, complained to the church at Hanover, where
Dartmouth College was situated, that a brother of the congregation, one
Samuel Haze, had said of her, among other things, that her "character
was ... as black as Hell."[632] This incident grew into a sectarian
warfare that, by the most illogical and human processes, eventuated in
arraigning the Congregationalists, or "established" Church, on one side
and all other denominations on the other.[633]
Into this religious quarrel the economic issue entered, as it always
does. The property of ministers of the "standing order," or "State
religion," was exempt from taxation while that of other preachers was
not.[634] Another source of discord arose out of the question as to
whether the College Professor of Theology should preach in the village
church. Coincident with this grave problem were subsidiary ones
concerning the attendance of students at village worship and the benches
they were to occupy. The fates threw still another ingredient of trouble
into the cauldron. This was the election in 1793, as one of the
Trustees, of Nathaniel Niles, whom Jefferson, with characteristic
exuberance of expression, once declared to be "the ablest man I ever
knew."[635]
Although a lawyer by profession, Niles had taken a course in theology
when a student, his instructor being a Dr. Joseph Bellamy. Both the
elder Wheelock and Bellamy had graduated from Yale and had indulged in
some bitter sectarian quarrels, Bellamy as a Congregationalist and
Wheelock as a Presbyterian. From tutor and parent, Niles and the younger
Wheelock inherited this religious antagonism. Moreover, they were as
antipathetic by nature as they were bold, uncompromising, and dominant.
Niles eventually acquired superior influence over his fellow Trustees,
and thereafter no friend of President Wheelock was elected to the
Board.[636]
An implacable feud arose. Wheelock asked the Legislature to appoint a
committee to investigate the conduct of the College. This further
angered the Trustees. By this time the warfare in the one college in the
State had aroused the interest of the people of New Hampshire and,
indeed, of all New England, and they were beginning to take sides. This
process was hastened by a furious battle of pamphlets which broke out in
1815. This logomachy of vituperation was opened by President Wheelock
who wrote an unsigned attack upon the Trustees.[637] Another pamphlet
followed immediately in support of that of Wheelock.[638]
The Trustees quickly answered by means of two pamphlets.[639] The
Wheelock faction instantly replied.[640] With the animosity and
diligence of political, religious, and personal enemies, the adherents
of the hostile factions circulated these pamphlets among the people, who
became greatly excited. On August 26, 1815, the Trustees removed
Wheelock from the office of President,[641] and thereby increased the
public agitation. Two days after Wheelock's removal, the Trustees
elected as his successor the Reverend Francis Brown of Yarmouth,
Maine.[642]
During these years of increasing dissension, political parties were
gradually drawn into the controversy; at the climax of it, the
Federalists found themselves supporting the cause of the Trustees and
the Republicans that of Wheelock. In a general, and yet quite definite,
way the issue shaped itself into the maintenance of chartered rights and
the established religious order, as against reform in college management
and equality of religious sects. Into this issue was woven a contest
over the State Judiciary. The Judiciary laws of New Hampshire were
confused and inadequate and the courts had fallen in dignity. During the
Republican control of the State, Republicans had been appointed to all
judicial positions.[643] When, in 1813, the Federalists recovered
supremacy, they, in turn, enacted a statute, the effect of which was the
ousting of the Republican judges and the appointment of Federalists in
their stead.[644] The Republicans made loud and savage outcry against
this Federalist "outrage."
Upon questions so absurdly incongruous a political campaign raged
throughout New Hampshire during the autumn and winter of 1815. In March,
1816, the Republicans elected William Plumer Governor,[645] and a
Republican majority was sent to the Legislature.[646] Bills for the
reform of the Judiciary[647] and the management of Dartmouth
College[648] were introduced. That relating to Dartmouth changed the
name of the College to "Dartmouth University," increased the number of
Trustees from twelve to twenty-one, provided for a Board of twenty-five
Overseers with a veto power over acts of the Trustees, and directed the
President of the "University" to report annually to the Governor of the
State upon the management and conditions of the institution. The
Governor and Council of State were empowered to appoint the Overseers;
to fill up the existing Board of Trustees to the number of twenty-one;
and authorized to inspect the "University" and report to the Legislature
concerning it at least once in every five years.[649] In effect the act
annulled the charter and brought the College under the control of the
Legislature.
The bitterness occasioned by the passage of this legislation was
intense. Seventy-five members of the House entered upon the Journal
their formal and emphatic protest.[650] The old Trustees adopted
elaborate resolutions, declining to accept the provisions of the law and
assigning many reasons for their action. Among their criticisms of the
act, the fact that it violated the contract clause of the National
Constitution was mentioned almost incidentally. In summing up their
argument, the Trustees declared that "if the act ... has its intended
operation and effect, every literary institution in the State will
hereafter hold its rights, privileges and property, not according to the
settled established principles of law, but according to the arbitrary
will and pleasure of every successive Legislature."[651]
In later resolutions the old Trustees declined to accept the provisions
of the law, "but do hereby expressly refuse to act under the same."[652]
The Governor and Council promptly appointed Trustees and Overseers of
the new University; among the latter was Joseph Story. The old Trustees
were defiant and continued to run the College. When the winter session
of the Legislature met, Governor Plumer sharply denounced their
action;[653] and two laws were passed for the enforcement of the College
Acts, the second of which provided that any person assuming to act as
trustee or officer of the College, except as provided by law, should be
fined $500 for each offense.[654]
The Trustees of the University "removed" the old Trustees of the College
and the President, and the professors who adhered to them.[655] Each
side took its case to the people.[656] The new régime ousted the old
faculty from the College buildings and the faculty of the University
were installed in them. Wheelock was elected President of the State
institution.[657] The College faculty procured quarters in Rowley Hall
near by, and there continued their work, the students mostly adhering to
them.[658]
The College Trustees took great pains to get the opinion of the best
lawyers throughout New Hampshire,[659] as well as the advice of their
immediate counsel, Jeremiah Mason, Jeremiah Smith, and Daniel Webster,
the three ablest members of the New England bar, all three of them
accomplished politicians.[660]
William H. Woodward, who for years had been Secretary and Treasurer of
the College, had in his possession the records, account books, and seal.
As one of the Wheelock faction he declined to recognize the College
Trustees and acted with the Board of the University. The College
Trustees removed him from his official position on the College
Board;[661] and on February 8, 1817, brought suit against him in the
Court of Common Pleas of Grafton County for the recovery of the original
charter, the books of record and account, and the common seal--all of
the value of $50,000. By the consent of the parties the case was taken
directly before the Superior Court of Appeals, and was argued upon an
agreed state of facts returned by the jury in the form of a special
verdict.[662]
There were two arguments in the Court of Appeals, the first during May
and the second during September, 1817. The court consisted of William M.
Richardson, Chief Justice, and Samuel Bell and Levi Woodbury, Associate
Justices, all Republicans appointed by Governor Plumer.
Mason, Smith, and Webster made uncommonly able and learned arguments.
The University was represented by George Sullivan and Ichabod Bartlett,
who, while good lawyers, were no match for the legal triumvirate that
appeared for the College.[663] The principle upon which Marshall finally
overthrew the New Hampshire law was given a minor place[664] in the
plans as well as in the arguments of Webster, Mason, and Smith.
The Superior Court of Appeals decided against the College. The opinion,
delivered by Chief Justice Richardson, is able and persuasive. "A
corporation, all of whose franchises are exercised for publick purposes,
is a publick corporation"--a gift to such a corporation "is in reality
a gift to the publick."[665] The corporation of Dartmouth College is
therefore public. "Who has any private interest either in the objects or
the property of this institution?" If all its "property ... were
destroyed, the loss would be exclusively publick." The Trustees, as
individuals, would lose nothing. "The office of trustee of Dartmouth
College is, in fact, a publick trust, as much so as the office of
governor, or of judge of this court."[666]
No provision in the State or National Constitution prevents the control
of the College by the Legislature. The Constitutional provisions cited
by counsel for the College[667] "were, most manifestly, intended to
protect private rights only."[668] No court has ever yet decided that
such a charter as that of Dartmouth College is in violation of the
contract clause of the National Constitution, which "was obviously
intended to protect private rights of property, and embraces all
contracts relating to private property." This clause "was not intended
to limit the power of the states" over their officers or "their own
civil institutions";[669] otherwise divorce laws would be void. So would
acts repealing or modifying laws under which the judges, sheriffs, and
other officers were appointed.
Even if the royal charter is a contract, it does not, cannot forever,
prevent the Legislature from modifying it for the general good (as, for
instance, by increasing the number of trustees) "however strongly the
publick interest might require" this to be done. "Such a contract, in
relation to a publick institution, would ... be absurd and repugnant to
the principles of all government. The king had no power to make such a
contract," and neither has the Legislature. If the act of June 27 had
provided that "the twenty-one trustees should forever have the exclusive
controul of this institution, and that no future legislature should add
to their number," it would be as invalid as an act that the "number of
judges of this court should never be augmented."[670]
It is against "sound policy," Richardson affirmed, to place the great
institutions of learning "within the absolute controul of a few
individuals, and out of the controul of the sovereign power.... It is a
matter of too great moment, too intimately connected with the publick
welfare and prosperity, to be thus entrusted in the hands of a
few."[671] So the New Hampshire court adjudged that the College Acts
were valid and binding upon the old Trustees "without acceptance
thereof, or assent thereto by them." And the court specifically declared
that such legislation was "not repugnant to the constitution of the
United States."[672]
Immediately the case was taken to the Supreme Court by writ of error,
which assigned the violation of the National Constitution by the College
Acts as the ground of appeal.[673] On March 10, 1818, Webster opened the
argument before a full bench.[674] Only a few auditors were present,
and these were lawyers[675] who were in Washington to argue other
cases.[676] Stirred as New Hampshire and the New England States were by
the College controversy, the remainder of the country appears to have
taken no interest in it. Indeed, west and south of the Hudson, the
people seem to have known nothing of the quarrel. The Capital was either
ignorant or indifferent. Moreover, Webster had not, as yet, made that
great reputation, in Washington, as a lawyer as well as an orator which,
later, became his peculiar crown of glory. At any rate, the public was
not drawn to the court-room on that occasion.[677]
The argument was one of the shortest ever made in a notable case before
the Supreme Court during the twenty-eight years of its existence up to
this time. Not three full days were consumed by counsel on both sides--a
space of time frequently occupied by a single speaker in hearings of
important causes.[678]
In talents, bearing, and preparation the attorneys for the College were
as much superior to those for the University as, in the Chase
impeachment trial, the counsel for the defense were stronger than the
House managers.[679] Indeed, the similarity of the arguments in the
Chase trial and in the Dartmouth case, in respect to the strength and
preparation of opposing counsel, is notable; and in both cases the
victory came to the side having the abler and better-prepared advocates.
With Webster for the College was Joseph Hopkinson of Philadelphia, who
had so distinguished himself in the Chase trial exactly thirteen years
earlier. Hopkinson was now in his forty-ninth year, the unrivaled leader
of the Philadelphia bar and one of the most accomplished of American
lawyers.[680]
It would seem incredible that sensible men could have selected such
counsel to argue serious questions before any court as those who
represented the University in this vitally important controversy. The
obvious explanation is that the State officials and the University
Trustees were so certain of winning that they did not consider the
employment of powerful and expensive attorneys to be necessary.[681] In
fact, the belief was general that the contest was practically over and
that the appeal of the College to the Supreme Court was the pursuit of a
feeble and forlorn hope.
Even after his powerful and impressive argument in the Supreme Court,
Webster declared that he had never allowed himself "to indulge any great
hopes of success."[682] It was not unnatural, then, that the State and
the University should neglect to employ adequate counsel.
John Holmes, a Representative in Congress from that part of
Massachusetts which afterward became the State of Maine, appeared for
the University. He was notoriously unfitted to argue a legal question of
any weight in any court. He was a busy, agile, talkative politician of
the roustabout, hail-fellow-well-met variety, "a power-on-the-stump"
orator, gifted with cheap wit and tawdry eloquence.[683]
Associated with Holmes was William Wirt, recently appointed
Attorney-General. At that particular time Wirt was all but crushed by
overwork, and without either leisure or strength to master the case and
prepare an argument.[684] Never in Wirt's life did he appear in any case
so poorly equipped as he was in the Dartmouth controversy.[685]
Webster's address was a combination of the arguments made by Mason and
Smith in the New Hampshire court. Although the only question before the
Supreme Court was whether the College Acts violated the contract clause
of the Constitution, Webster gave comparatively scant attention to it;
or, perhaps it might be said that most of his argument was devoted to
laying the foundation for his brief reasoning on the main question. In
laying this foundation, Webster cleverly brought before the court his
version of the history of the College, the situation in New Hampshire,
the plight of institutions like Dartmouth, if the College Acts were
permitted to stand.
The facts were, said Webster, that Wheelock had founded a private
charity; that, to perpetuate this, the charter created a corporation by
the name of "The Trustees of Dartmouth College," with the powers,
privileges, immunities, and limitations set forth in the charter. That
instrument provided for no public funds, but only for the perpetuation
and convenient management of the private charity. For nearly half a
century the College "thus created had existed, uninterruptedly, and
usefully." Then its happy and prosperous career was broken by the rude
and despoiling hands of the Legislature of the State which the College
had so blessed by the education of New Hampshire youth.
What has the Legislature done to the College? It has created a new
corporation and transferred to it "all the _property_, _rights_,
_powers_, _liberties and privileges_ of the old corporation." The spirit
and the letter of the charter were wholly changed by the College
Acts.[686] Moreover, the old Trustees "are to be _punished_" for not
accepting these revolutionary laws. A single fact reveals the
confiscatory nature of these statutes: Under the charter the president,
professors, and tutors of the College had a right to their places and
salaries, "subject to the twelve trustees alone"; the College Acts
change all this and make the faculty "accountable to new masters."
If the Legislature can make such alterations, it can abolish the charter
"rights and privileges altogether." In short, if this legislation is
sustained, the old Trustees "have no _rights_, _liberties_,
_franchises_, _property or privileges_, which the legislature may not
revoke, annul, alienate or transfer to others whenever it sees fit."
Such acts are against "common right" as well as violations of the State
and National Constitutions.[687]
Although, says Webster, nothing is before the court but the single
question of the violation of the National Constitution, he will compare
the New Hampshire laws with "fundamental principles" in order that the
court may see "their true nature and character." Regardless of written
constitutions, "these acts are not the exercise of a power properly
legislative." They take away "vested rights"; but this involves a
"forfeiture ... to ... declare which is the proper province of the
judiciary."[688] Dartmouth College is not a civil but "an _eleemosynary_
corporation," a "private charity"; and, as such, not subject to the
control of public authorities.[689] Does Dartmouth College stand alone
in this respect? No! Practically all American institutions of learning
have been "established ... by incorporating governours, or trustees....
All such corporations are ... in the strictest legal sense a private
charity." Even Harvard has not "any surer title than Dartmouth College.
It may, to-day, have more friends; but to-morrow it may have more
enemies. Its legal rights are the same. So also of Yale College; and
indeed of all others."[690]
From the time of Magna Charta the privilege of being a member of such
eleemosynary corporations "has been the object of legal protection." To
contend that this privilege may be "taken away," because the Trustees
derive no "pecuniary benefit" from it, is "an extremely narrow view." As
well say that if the charter had provided that each Trustee should be
given a "commission on the disbursement of the funds," his status and
the nature of the corporation would have been changed from public to
private. Are the rights of the Trustees any the less sacred "because
they have undertaken to administer it [the trust] gratuitously?... As if
the law regarded no rights but the rights of money, and of visible
tangible property!"[691]
The doctrine that all property "of which the use may be beneficial to
the publick, belongs therefore to the publick," is without principle or
precedent. In this very matter of Dartmouth College, Wheelock might well
have "conveyed his property to trustees, for precisely such uses as are
described in this charter"--yet nobody would contend that any
Legislature could overthrow such a private act. "Who ever appointed a
legislature to administer his charity? Or who ever heard, before, that a
gift to a _college_, or _hospital_, or an _asylum_, was, in reality,
nothing but a gift to the state?"[692]
Vermont has given lands to the College; was this a gift to New
Hampshire? "What hinders Vermont ... from resuming her grants," upon the
ground that she, equally with New Hampshire, is "the representative of
the publick?" In 1794, Vermont had "granted to the respective towns in
that state, certain glebe lands lying within those towns _for the sole
use and support of religious worship_." Five years later, the
Legislature of that State repealed this grant; "but this court
declared[693] that the act of 1794, 'so far as it granted the glebes to
the towns, _could not afterwards be repealed by the legislature, so as
to divest the rights of the towns under the grant_.'"[694]
So with the Trustees of Dartmouth College. The property entrusted to
them was "private property"; and the right to "administer the funds,
and ... govern the college was a _franchise_ and _privilege_, solemnly
granted to them," which no Legislature can annul. "The use being publick
in no way diminishes their legal estate in the property, or their title
to the franchise." Since "the acts in question violate property, ...
take away privileges, immunities, and franchises, ... deny to the
trustees the protection of the law," and "are retrospective in their
operation," they are, in all respects, "against the constitution of New
Hampshire."[695]
It will be perceived by now that Webster relied chiefly on abstract
justice. His main point was that, if chartered rights could be
interfered with at all, such action was inherently beyond the power of
the Legislature, and belonged exclusively to the Judiciary. In this
Webster was rigidly following Smith and Mason, neither of whom depended
on the violation of the contract clause of the National Constitution any
more than did Webster.
Well did Webster know that the Supreme Court of the United States could
not consider the violation of a State constitution by a State law. He
merely indulged in a device of argument to bring before Marshall and the
Associate Justices those "fundamental principles," old as Magna Charta,
and embalmed in the State Constitution, which protect private property
from confiscation.[696] Toward the close of his argument, Webster
discusses the infraction of the National Constitution by the New
Hampshire College Acts, a violation the charge of which alone gave the
Supreme Court jurisdiction over the case.
What, asks Webster, is the meaning of the words, "no state shall pass
any ... law impairing the obligation of contracts"? Madison, in the
_Federalist_, clearly states that such laws "'are contrary to the first
principles of the social compact, and to every principle of sound
legislation.'" But this is not enough. "Our own experience," continues
Madison, "has taught us ... that additional fences" should be erected
against spoliations of "personal security and private rights." This was
the reason for inserting the contract clause in the National
Constitution--a provision much desired by the "sober people of America,"
who had grown "weary of the fluctuating policy" of the State Governments
and beheld with anger "that sudden changes, and legislative
interferences in cases affecting personal rights, become jobs in the
hands of enterprising and influential speculators." These, said Webster,
were the words of James Madison in Number 44 of the _Federalist_.
High as such authority is, one still more exalted and final has spoken,
and upon the precise point now in controversy. That authority is the
Supreme Court itself. In Fletcher _vs._ Peck[697] this very tribunal
declared specifically that "a _grant_ is a contract, within the meaning
of this provision; and that a grant by a state is also a contract, as
much as the grant of an individual."[698] This court went even further
when, in New Jersey _vs._ Wilson,[699] it decided that "a grant by a
state before the revolution is as much to be protected as a grant
since."[700] The principle announced in these decisions was not new,
even in America. Even before Fletcher _vs._ Peck and New Jersey _vs._
Wilson, this court denied[701] that a Legislature "can repeal statutes
creating private corporations, or confirming to them property already
acquired under the faith of previous laws, and by such repeal can vest
the property of such corporations exclusively in the state, or dispose
of the same to such purposes as they please, without the consent or
default of the corporators ...; and we think ourselves standing upon the
principles of _natural justice_, upon the _fundamental laws of every
free government_, upon the spirit and letter of the constitution of the
United States, and upon the decisions of the most respectable judicial
tribunals, in resisting such a doctrine."[702]
From the beginning of our Government until this very hour, continues
Webster, such has been the uniform language of this honorable court. The
principle that a Legislature cannot "repeal statutes creating private
corporations" must be considered as settled. It follows, then, that if a
Legislature cannot repeal such laws entirely, it cannot repeal them in
part--cannot "impair them, or essentially alter them without the consent
of the corporators."[703] In the case last cited[704] the property
granted was land; but the Dartmouth charter "is embraced within the very
terms of that decision," since "a grant of corporate powers and
privileges is as much a _contract_ as a grant of land."[705]
Even the State court concedes that if Dartmouth College is a private
corporation, "its rights stand on the same ground as those of an
individual"; and that tribunal rests its judgment against the College on
the sole ground that it is a public corporation.[706]
Dartmouth College is not the only institution affected by this invasion
of chartered rights. "Every college, and all the literary institutions
of the country" are imperiled. All of them exist because of "the
inviolability of their charters." Shall their fate depend upon "the rise
and fall of popular parties, and the fluctuations of political
opinions"? If so, "colleges and halls will ... become a theatre for the
contention of politicks. Party and faction will be cherished in the
places consecrated to piety and learning."
"We had hoped, earnestly hoped," exclaimed Webster, "that the State
court would protect Dartmouth College. That hope has failed. It is here,
that those rights are now to be maintained, or they are prostrated
forever." He closed with a long Latin quotation, not a word of which
Marshall understood, but which, delivered in Webster's sonorous tones
and with Webster's histrionic power, must have been prodigiously
impressive.[707]
Undoubtedly it was at this point that the incomparable actor, lawyer,
and orator added to his prepared peroration that dramatic passage which
has found a permanent place in the literature of emotional eloquence.
Although given to the world a quarter of a century after Webster's
speech was delivered, and transmitted through two men of vivid and
creative imaginations, there certainly is some foundation for the story.
Rufus Choate in his "Eulogy of Webster," delivered at Dartmouth College
in 1853, told, for the first time, of the incident as narrated to him by
Professor Chauncey A. Goodrich, who heard Webster's argument. When
Webster had apparently finished, says Goodrich, he "stood for some
moments silent before the Court, while every eye was fixed intently upon
him." At length, addressing the Chief Justice, Webster delivered that
famous peroration ending: "'Sir, you may destroy this little
Institution; it is weak; it is in your hands! I know it is one of the
lesser lights in the literary horizon of our country. You may put it
out. But if you do so, you must carry through your work! You must
extinguish, one after another, all those great lights of science which,
for more than a century, have thrown their radiance over our land!
"'It is, Sir, as I have said, a small College. And yet, _there are those
who love it_----'"[708]
Then, testifies Goodrich, Webster broke down with emotion, his lips
quivered, his cheeks trembled, his eyes filled with tears, his voice
choked. In a "few broken words of tenderness" he spoke of his love for
Dartmouth in such fashion that the listeners were impressed with "the
recollections of father, mother, brother, and all the trials and
privations through which he had made his way into life."[709]
Goodrich describes the scene in the court-room, "during these two or
three minutes," thus: "Chief Justice Marshall, with his tall and gaunt
figure bent over as if to catch the slightest whisper, the deep furrows
of his cheek expanded with emotion, and eyes suffused with tears; Mr.
Justice Washington at his side,--with his small and emaciated frame, and
countenance more like marble than I ever saw on any other human
being,--leaning forward with an eager, troubled look; and the remainder
of the Court, at the two extremities, pressing, as it were, toward a
single point, while the audience below were wrapping themselves round in
closer folds beneath the bench to catch each look, and every movement
of the speaker's face." Recovering "his composure, and fixing his keen
eye on the Chief Justice," Webster, "in that deep tone with which he
sometimes thrilled the heart of an audience," exclaimed:
"'Sir, I know not how others may feel,' (glancing at the opponents of
the College before him,) 'but, for myself, when I see my Alma Mater
surrounded, like Cæsar in the senate-house, by those who are reiterating
stab upon stab, I would not, for this right hand, have her turn to me,
and say, _Et tu quoque, mi fili!_'"[710]
Exclusive of his emotional finish, Webster's whole address was made up
from the arguments of Jeremiah Mason and Jeremiah Smith in the State
court.[711] This fact Webster privately admitted, although he never
publicly gave his associates the credit.[712]
When Farrar's "Report," containing Mason's argument, was published,
Story wrote Mason that he was "exceedingly pleased" with it. "I always
had a desire that the question should be put upon the broad basis you
have stated; and it was a matter of regret that we were so stinted in
jurisdiction in the Supreme Court, that half the argument could not be
met and enforced. You need not fear a comparison of your argument with
any in our annals."[713] Thus Story makes plain, what is apparent on the
face of his own and Marshall's opinion, that he considered the master
question involved to be that the College Acts were violative of
fundamental principles of government. Could the Supreme Court have
passed upon the case without regard to the Constitution, there can be no
doubt that the decision would have been against the validity of the New
Hampshire laws upon the ground on which Mason, Smith, and Webster
chiefly relied.
Webster, as we have seen, had little faith in winning on the contract
clause and was nervously anxious that the controversy should be
presented to the Supreme Court by means of a case which would give that
tribunal greater latitude than was afforded by the "stinted
jurisdiction" of which Story complained. Indeed, Story openly expressed
impatience that the court was restricted to a consideration of the
contract clause. Upon his return to Massachusetts after the argument,
Story as much as told Webster that another suit should be brought which
could be taken to the Supreme Court, and which would permit the court to
deal with all the questions raised by the New Hampshire College Acts.
Webster's report of this conversation is vital to an understanding of
the views of the Chief Justice, as well as of those of Story, since the
latter undoubtedly stated Marshall's views as well as his own. "I saw
Judge Story as I came along," Webster reported to Mason. "He is
evidently expecting a case which shall present all the questions. It is
not of great consequence whether the actions or action, go up at this
term, except that it would give it an earlier standing on the docket
next winter.
"The question which we must raise in one of these actions, is, 'whether,
by the _general principles of our governments_, the State Legislatures
be not restrained from divesting vested rights?' This, of course,
independent of the constitutional provision respecting contracts. On
this question [the maintenance of vested rights by "general principles"]
I have great confidence in a decision on the right side. This is the
proposition with which you began your argument at Exeter, and which I
endeavored to state from your minutes at Washington.... On _general_
principles, I am very confident the court at Washington would be with
us."[714]
Holmes followed Webster. "The God-like Daniel" could not have wished for
a more striking contrast to himself. In figure, bearing, voice, eye,
intellect, and personality, the Maine Congressman, politician, and
stump-speaker, was the antithesis of Webster. For three hours Holmes
declaimed "the merest stuff that was ever uttered in a county
court."[715] His "argument" was a diffuse and florid repetition of the
opinion of Chief Justice Richardson, and was one of those empty and
long-winded speeches which Marshall particularly disliked.
Wirt did his best to repair the damage done by Holmes; but he was so
indifferently prepared,[716] and so physically exhausted, that, breaking
down in the midst of his address, he asked the court to adjourn that he
might finish next day;[717] and this the bored and weary Justices were
only too willing to do. Wirt added nothing to the reasoning and facts of
Richardson's opinion which was in the hands of Marshall and his
associates.
The argument was closed by Joseph Hopkinson; and here again Fate acted
as stage manager for Dartmouth, since the author of "Hail Columbia"[718]
was as handsome and impressive a man as Webster, though of an exactly
opposite type. His face was that of the lifelong student, thoughtful and
refined. His voice, though light, had a golden tone. His manner was
quiet, yet distinguished.
[Illustration: JOSEPH HOPKINSON]
Joseph Hopkinson showed breeding in every look, movement, word, and
intonation.[719] He had a beautiful and highly trained mind, equipped
with immense and accurate knowledge systematically arranged.[720] It is
unfortunate that space does not permit even a brief _précis_ of
Hopkinson's admirable argument.[721] He quite justified Webster's
assurance to Brown that "Mr. Hopkinson ... will do all that man can
do."[722]
At eleven o'clock of March 13, 1818, the morning after the argument was
concluded, Marshall announced that some judges were of "different
opinions, and that some judges had not formed opinions; consequently,
the cause must be continued."[723] On the following day the court
adjourned.
Marshall, Washington, and Story[724] were for the College, Duval and
Todd were against it, and Livingston and Johnson had not made up their
minds.[725] During the year that intervened before the court again met
in February, 1819, hope sprang up in the hearts of Dartmouth's friends,
and they became incessantly active in every legitimate way. Webster's
argument was printed and placed in the hands of all influential lawyers
in New England.
Chancellor James Kent of New York was looked upon by the bench and bar
of the whole country as the most learned of American jurists and, next
to Marshall, the ablest.[726] The views of no other judge were so sought
after by his fellow occupants of the bench. Charles Marsh of New
Hampshire, one of the Trustees of the College and a warm friend of Kent,
sent him Webster's argument. While on a vacation in Vermont Kent had
read the opinion of Chief Justice Richardson and, "on a hasty perusal of
it," was at first inclined to think the College Acts valid, because he
was "led by the opinion to assume the fact that Dartmouth College was a
public establishment for purposes of a general nature."[727] Webster's
argument changed Kent's views.
During the summer of 1818, Justice Johnson, of the National Supreme
Court, was in Albany, where Kent lived, and conferred with the
Chancellor about the Dartmouth case. Kent told Johnson that he thought
the New Hampshire College Acts to be against natural right and in
violation of the contract clause of the National Constitution.[728] It
seems fairly certain also that Livingston asked for the Chancellor's
opinion, and was influenced by it.
Webster sent Story, with whom he was on terms of cordial intimacy, "five
copies of our argument." Evidently Webster now knew that Story was
unalterably for the College, for he adds these otherwise startling
sentences: "If you send one of them to each of such of the judges as you
think proper, you will of course do it in the manner least likely to
lead to a feeling that any indecorum has been committed by the
plaintiffs."[729]
In some way, probably from the fact that Story was an intimate friend of
Plumer, a rumor had spread, before the case was argued, that he was
against the College Trustees. Doubtless this impression was strengthened
by the fact that Governor Plumer had appointed Story one of the Board of
Overseers of the new University. No shrewder politician than Plumer ever
was produced by New England. But Story declined the appointment.[730] He
had been compromised, however, in the eyes of both sides. The friends of
the College were discouraged, angered, frightened.[731] In great
apprehension, Charles Marsh, one of the College Trustees, wrote
Hopkinson of Story's appointment as Overseer of the University and of
the rumor in circulation. Hopkinson answered heatedly that he would
object to Story's sitting in the case if the reports could be
confirmed.[732]
Although the efforts of the College to get its case before Kent were
praiseworthy rather than reprehensible, and although no smallest item of
testimony had been adduced by eager searchers for something unethical,
nevertheless out of the circumstances just related has been woven, from
the materials of eager imaginations, a network of suspicion involving
the integrity of the Supreme Court in the Dartmouth decision.[733]
Meanwhile the news had spread of the humiliating failure before the
Supreme Court of the flamboyant Holmes and the tired and exhausted Wirt
as contrasted with the splendid efforts of Webster and Hopkinson. The
New Hampshire officials and the University at last realized the mistake
they had made in not employing able counsel, and resolved to remedy
their blunder by securing the acknowledged leader of the American bar
whose primacy no judge or lawyer in the country denied. They did what
they should have done at the beginning--they retained William Pinkney of
Maryland.
Traveling with him in the stage during the autumn of 1818, Hopkinson
learned that the great lawyer had been engaged by the University.
Moreover, with characteristic indiscretion, Pinkney told Hopkinson that
he intended to request a reargument at the approaching session of the
Supreme Court. In alarm, Hopkinson instantly wrote Webster,[734] who was
dismayed by the news. Of all men the one Webster did not want to meet in
forensic combat was the legal Colossus from Baltimore.[735]
Pinkney applied himself to the preparation of the case with a diligence
and energy uncommon even for that most laborious and painstaking of
lawyers. Apparently he had no doubt that the Supreme Court would grant
his motion for a reargument. It was generally believed that some of the
Justices had not made up their minds; rearguments, under such
circumstances, were usually granted and sometimes required by the court;
and William Pinkney was the most highly regarded by that tribunal of all
practitioners before it. So, on February 1, 1819, he took the Washington
stage at Baltimore, prepared at every point for the supreme effort of
his brilliant career.[736]
Pinkney's purpose was, of course, well advertised by this time. By
nobody was it better understood than by Marshall and, indeed, by every
Justice of the Supreme Court. All of them, except Duval and Todd, had
come to an agreement and consented to the opinion which Marshall had
prepared since the adjournment the previous year.[737] None of them were
minded to permit the case to be reopened. Most emphatically John
Marshall was not.
When, at eleven o'clock, February 2, 1819, the marshal of the court
announced "The Honorable, the Chief Justice and the Associate Justices
of the Supreme Court of the United States," Marshall, at the head of his
robed associates, walked to his place, he beheld Pinkney rise, as did
all others in the room, to greet the court. Well did Marshall know that,
at the first opportunity, Pinkney would ask for a reargument.
From all accounts it would appear that Pinkney was in the act of
addressing the court when the Chief Justice, seemingly unaware of his
presence, placidly announced that the court had come to a decision and
began reading his momentous opinion.[738] After a few introductory
sentences the Chief Justice came abruptly to the main point of the
dispute:
"This court can be insensible neither to the magnitude nor delicacy of
this question. The validity of a legislative act is to be examined; and
the opinion of the highest law tribunal of a state is to be revised: an
opinion which carries with it intrinsic evidence of the diligence, of
the ability, and the integrity, with which it was formed. On more than
one occasion this court has expressed the cautious circumspection with
which it approaches the consideration of such questions; and has
declared that, in no doubtful case would it pronounce a legislative act
to be contrary to the constitution.
"But the American people have said, in the constitution of the United
States, that 'no state shall pass any bill of attainder, _ex post facto_
law, or law impairing the obligation of contracts.' In the same
instrument they have also said, 'that the judicial power shall extend to
all cases in law and equity arising under the constitution.' On the
judges of this court, then, is imposed the high and solemn duty of
protecting, from even legislative violation, those contracts which the
constitution of our country has placed beyond legislative control; and,
however irksome the task may be, this is a duty from which we dare not
shrink."[739]
Then Marshall, with, for him, amazing brevity, states the essential
provisions of the charter and of the State law that modified it;[740]
and continues, almost curtly: "It can require no argument to prove that
the circumstances of this case constitute a contract." On the faith of
the charter "large contributions" to "a religious and literary
institution" are conveyed to a corporation created by that charter.
Indeed, in the very application it is stated that these funds will be
so applied. "Surely in this transaction every ingredient of a complete
and legitimate contract is to be found."[741]
This being so, is such a contract "protected" by the Constitution, and
do the New Hampshire College Acts impair that contract? Marshall states
clearly and fairly Chief Justice Richardson's argument that to construe
the contract clause so broadly as to cover the Dartmouth charter would
prevent legislative control of public offices, and even make divorce
laws invalid; and that the intention of the framers of the Constitution
was to confine the operation of the contract clause to the protection of
property rights, as the history of the times plainly shows.[742]
All this, says Marshall, "may be admitted." The contract clause "never
has been understood to embrace other contracts than those which respect
property, or some object of value, and confer rights which may be
asserted in a court of justice." Divorce laws are not included, of
course--they merely enable a court, "not to impair a marriage contract,
but to liberate one of the parties because it has been broken by the
other."
The "point on which the cause essentially depends" is "the true
construction" of the Dartmouth charter. If that instrument grants
"political power," creates a "civil institution" as an instrument of
government; "if the funds of the college be public property," or if the
State Government "be alone interested in its transactions," the
Legislature may do what it likes "unrestrained" by the National
Constitution.[743]
If, on the other hand, Dartmouth "be a private eleemosynary
institution," empowered to receive property "for objects unconnected
with government," and "whose funds are bestowed by individuals on the
faith of the charter; if the donors have stipulated for the future
disposition and management of those funds in the manner prescribed by
themselves," the case becomes more difficult.[744] Marshall then sets
out compactly and clearly the facts relating to the establishment of
Wheelock's school; the granting and acceptance of the charter; the
nature of the College funds which "consisted entirely of private
donations." These facts unquestionably show, he avows, that Dartmouth
College is "an eleemosynary, and, as far as respects its funds, a
private corporation."[745]
Does the fact that the purpose of the College is the education of youth
make it a public corporation? It is true that the Government may found
and control an institution of learning. "But is Dartmouth College such
an institution? Is education altogether in the hands of government?" Are
all teachers public officers? Do gifts for the advancement of learning
"necessarily become public property, so far that the will of the
legislature, not the will of the donor, becomes the law of
donation?"[746]
Certainly Eleazar Wheelock, teaching and supporting Indians "at his own
expense, and on the voluntary contributions of the charitable," was not
a public officer. The Legislature could not control his money and that
given by others, merely because Wheelock was using it in an educational
charity. Whence, then, comes "the idea that Dartmouth College has become
a public institution?... Not from the source" or application of its
funds. "Is it from the act of incorporation?"[747]
Such is the process by which Marshall reaches his famous definition of
the word "corporation": "A corporation is an artificial being,
invisible, intangible, and existing only in contemplation of law.... It
possesses only those properties which the charter of its creation
confers upon it.... Among the most important are immortality, and ...
individuality.... By these means, a perpetual succession of individuals
are capable of acting for the promotion of the particular object, like
one immortal being.... But ... it is no more a state instrument than a
natural person exercising the same powers would be."[748]
This, says Marshall, is obviously true of all private corporations. "The
objects for which a corporation is created are universally such as the
government wishes to promote." Why should a private charity,
incorporated for the purpose of education, be excluded from the rules
that apply to other corporations? An individual who volunteers to teach
is not a public officer because of his personal devotion to education;
how, then, is it that a corporation formed for precisely the same
service "should become a part of the civil government of the country?"
Because the Government has authorized the corporation "to take and to
hold property in a particular form, and for particular purposes, has the
Government a consequent right substantially to change that form, or to
vary the purposes to which the property is to be applied?" Such an idea
is without precedent. Can it be supported by reason?[749]
Any corporation for any purpose is created only because it is "deemed
beneficial to the country; and this benefit constitutes the
consideration, and, in most cases, the sole consideration for the
grant." This is as true of incorporated charities as of any other form
of incorporation. Of consequence, the Government cannot, subsequently,
assume a power over such a corporation which is "in direct contradiction
to its [the corporate charter's] express stipulations." So the mere fact
"that a charter of incorporation has been granted" does not justify a
Legislature in changing "the character of the institution," or in
transferring "to the Government any new power over it."
"The character of civil institutions does not grow out of their
incorporation, but out of the manner in which they are formed, and the
objects for which they are created. The right to change them is not
founded on their being incorporated, but on their being the instruments
of government, created for its purposes. The same institutions, created
for the same objects, though not incorporated, would be public
institutions, and, of course, be controllable by the legislature. The
incorporating act neither gives nor prevents this control. Neither, in
reason, can the incorporating act change the character of a private
eleemosynary institution."[750]
For whose benefit was the property of Dartmouth College given to that
institution? For the people at large, as counsel insist? Read the
charter. Does it give the State "any exclusive right to the property of
the college, any exclusive interest in the labors of the professors?"
Does it not rather "merely indicate a willingness that New Hampshire
should enjoy those advantages which result to all from the establishment
of a seminary of learning in the neighborhood? On this point we think it
impossible to entertain a serious doubt." For the charter shows that,
while the spread of education and religion was the object of the
founders of the College, the "particular interests" of the State "never
entered into the minds of the donors, never constituted a motive for
their donation."[751]
It is plain, therefore, that every element of the problem shows "that
Dartmouth College is an eleemosynary institution, incorporated for the
purpose of perpetuating ... the bounty of the donors, to the specified
objects of that bounty"; that the Trustees are legally authorized to
perpetuate themselves and that they are "not public officers"; that, in
fine, Dartmouth College is a "seminary of education, incorporated for
the preservation of its property, and the perpetual application of that
property to the objects of its creation."[752]
There remains a question most doubtful of "all that have been
discussed." Neither those who have given money or land to the College,
nor students who have profited by those benefactions, "complain of the
alteration made in its charter, or think themselves injured by it. The
trustees alone complain, and the trustees have no beneficial interest to
be protected." Can the charter "be such a contract as the constitution
intended to withdraw from the power of state legislation?"[753]
Wheelock and the other philanthropists who had endowed the College, both
before and after the charter was granted, made their gifts "for
something ... of inestimable value--... the perpetual application of the
fund to its object, in the mode prescribed by themselves.... The
corporation ... stands in their place, and distributes their bounty, as
they would themselves have distributed it, had they been immortal." Also
the rights of the students "collectively" are "to be exercised ... by
the corporation."[754]
The British Parliament is omnipotent. Yet had it annulled the charter,
even immediately after it had been granted and conveyances made to the
corporation upon the faith of that charter, "so that the living donors
would have witnessed the disappointment of their hopes, the perfidy of
the transaction would have been universally acknowledged." Nevertheless,
Parliament would have had the power to perpetrate such an outrage.
"Then, as now, the donors would have had no interest in the
property; ... the students ... no rights to be violated; ... the
trustees ... no private, individual, beneficial interest in the property
confided to their protection." But, despite the legal power of
Parliament to destroy it, "the contract would at that time have been
deemed sacred by all."
"What has since occurred to strip it of its inviolability? Circumstances
have not changed it. In reason, in justice, and in law, it is now what
it was in 1769." The donors and Trustees, on the one hand, and the Crown
on the other, were the original parties to the arrangement stated in the
charter, which was "plainly a contract" between those parties. To the
"rights and obligations" of the Crown under that contract, "New
Hampshire succeeds."[755] Can such a contract be impaired by a State
Legislature?
"It is a contract made on a valuable consideration.
"It is a contract for the security and disposition of property.
"It is a contract, on the faith of which real and personal estate has
been conveyed to the corporation.
"It is then a contract within the letter of the constitution, and within
its spirit also, unless" the nature of the trust creates "a particular
exception, taking this case out of the prohibition contained in the
constitution."
It is doubtless true that the "preservation of rights of this
description was not particularly in the view of the framers of the
constitution when the clause under consideration was introduced into
that instrument," and that legislative interferences with contractual
obligations "of more frequent recurrence, to which the temptation was
stronger, and of which the mischief was more extensive, constituted the
great motive for imposing this restriction on the state legislatures.
"But although a particular and a rare case may not ... induce a rule,
yet it must be governed by the rule, when established, unless some plain
and strong reason for excluding it can be given. It is not enough to say
that this particular case was not in the mind of the convention when the
article was framed, nor of the American people when it was adopted. It
is necessary to go farther, and to say that, had this particular case
been suggested, the language [of the contract clause] would have been so
varied as to exclude it, or it would have been made a special
exception."[756]
Can the courts now make such an exception? "On what safe and
intelligible ground can this exception stand?" Nothing in the language
of the Constitution; no "sentiment delivered by its contemporaneous
expounders ... justify us in making it."
Does "the nature and reason of the case itself ... sustain a
construction of the constitution, not warranted by its words?" The
contract clause was made a part of the Nation's fundamental law "to give
stability to contracts." That clause in its "plain import" comprehends
Dartmouth's charter. Does public policy demand a construction which
will exclude it? The fate of all similar corporations is involved. "The
law of this case is the law of all."[757] Is it so necessary that
Legislatures shall "new-model" such charters "that the ordinary rules of
construction must be disregarded in order to leave them exposed to
legislative alteration?"
The importance attached by the American people to corporate charters
like that of Dartmouth College is proved by "the interest which this
case has excited." If the framers of the Constitution respected science
and literature so highly as to give the National Government exclusive
power to protect inventors and writers by patents and copyrights, were
those statesman "so regardless of contracts made for the advancement of
literature as to intend to exclude them from provisions made for the
security of ordinary contracts between man and man?"[758]
No man ever did or will found a college, "believing at the time that an
act of incorporation constitutes no security for the institution;
believing that it is immediately to be deemed a public institution,
whose funds are to be governed and applied, not by the will of the
donor, but by the will of the legislature. All such gifts are made in
the pleasing, perhaps delusive hope, that the charity will flow forever
in the channel which the givers have marked out for it."
Since every man finds evidence of this truth "in his own bosom," can it
be imagined that "the framers of our constitution were strangers" to
the same universal sentiment? Although "feeling the necessity ... of
giving permanence and security to contracts," because of the
"fluctuating" course and "repeated interferences" of Legislatures which
resulted in the "most perplexing and injurious embarrassments," did the
framers of the Constitution nevertheless deem it "necessary to leave
these contracts subject to those interferences?" Strong, indeed, must be
the motives for making such exceptions.[759]
Finally, Marshall declares that the "opinion of the court, after mature
deliberation, is, that this is a contract, the obligation of which
cannot be impaired without violating the Constitution of the United
States."[760]
Do the New Hampshire College Acts impair the obligations of Dartmouth's
charter? That instrument gave the Trustees "the whole power of governing
the college"; stipulated that the corporation "should continue forever";
and "that the number of trustees should forever consist of twelve, and
no more." This contract was made by the Crown, a power which could have
made "no violent alteration in its essential terms, without impairing
its obligation."
The powers and duties of the Crown were, by the Revolution, "devolved on
the people of New Hampshire." It follows that, since the Crown could not
change the charter of Dartmouth without impairing the contract, neither
can New Hampshire. "All contracts, and rights, respecting property,
remained unchanged by the revolution."[761]
As to whether the New Hampshire College Acts radically alter the charter
of Dartmouth College, "two opinions cannot be entertained." The State
takes over the government of the institution. "The will of the state is
substituted for the will of the donors, in every essential operation of
the college.... The charter of 1769 exists no longer"--the College has
been converted into "a machine entirely subservient to the will of
government," instead of the "will of its founders."[762] Therefore, the
New Hampshire College laws "are repugnant to the constitution of the
United States."[763]
On account of the death of Woodward, who had been Secretary and
Treasurer of the University, and formerly held the same offices in the
College against whom the College Trustees had brought suit, Webster
moved for judgment _nunc pro tunc_; and judgment was immediately entered
accordingly.
Not for an instant could Webster restrain the expression of his joy.
Before leaving the court-room he wrote his brother: "All is safe.... The
opinion was delivered by the Chief Justice. It was very able and very
elaborate; it goes the whole length, and leaves not an inch of ground
for the University to stand on."[764] He informed President Brown that
"all is safe and certain.... I feel a load removed from my shoulders
much heavier than they have been accustomed to bear."[765] To Mason,
Webster describes Marshall's manner: "The Chief Justice's opinion was
in his own peculiar way. He reasoned along from step to step; and, not
referring to the cases [cited], adopted the principles of them, and
worked the whole into a close, connected, and very able argument."[766]
At the same time Hopkinson wrote Brown in a vein equally exuberant: "Our
triumph ... has been complete. Five judges, only six attending, concur
not only in a decision in our favor, but in placing it upon principles
broad and deep, and which secure corporations of this description from
legislative despotism and party violence for the future.... I would have
an inscription over the door of your building, 'Founded by Eleazar
Wheelock, Refounded by Daniel Webster.'"[767] The high-tempered Pinkney
was vocally indignant. "He talked ... and blustered" ungenerously, wrote
Webster, "because ... the party was in a fever and he must do something
for his fees. As he could not talk _in_ court, he therefore talked _out_
of court."[768]
As we have seen, Marshall had prepared his opinion under his trees at
Richmond and in the mountains during the vacation of 1818; and he had
barely time to read it to his associates before the opening of court at
the session when it was delivered. But he afterward submitted the
manuscript to Story, who made certain changes, although enthusiastically
praising it. "I am much obliged," writes Marshall, "by the alterations
you have made in the Dartmouth College case & am highly gratified by
what you say respecting it."[769]
Story also delivered an opinion upholding the charter[770]--one of his
ablest papers. It fairly bristles with citations of precedents and
historical examples. The whole philosophy of corporations is expounded
with clearness, power, and learning. Apparently Justice Livingston liked
Story's opinion even more than that of Marshall. Story had sent it to
Livingston, who, when returning the manuscript, wrote: It "has afforded
me more pleasure than can easily be expressed. It was exactly what I had
expected from you, and hope it will be adopted without alteration."[771]
At the time of the Dartmouth decision little attention was paid to it
outside of New Hampshire and Massachusetts.[772] The people, and even
the bar, were too much occupied with bank troubles, insolvency, and the
swiftly approaching slavery question, to bother about a small New
Hampshire college. The profound effect of Marshall's opinion was first
noted in the _North American Review_ a year after the Chief Justice
delivered it. "Perhaps no judicial proceedings in this country ever
involved more important consequences, ... than the case of Dartmouth
College."[773]
Important, indeed, were the "consequences" of the Dartmouth decision.
Everywhere corporations were springing up in response to the necessity
for larger and more constant business units and because of the
convenience and profit of such organizations. Marshall's opinion was a
tremendous stimulant to this natural economic tendency. It reassured
investors in corporate securities and gave confidence and steadiness to
the business world. It is undeniable and undenied that America could not
have been developed so rapidly and solidly without the power which the
law as announced by Marshall gave to industrial organization.
One result of his opinion was, for the period, of even higher value than
the encouragement it gave to private enterprise and the steadiness it
brought to business generally; it aligned on the side of Nationalism all
powerful economic forces operating through corporate organization. A
generation passed before railway development began in America; but
Marshall lived to see the first stage of the evolution of that mighty
element in American commercial, industrial, and social life; and all of
that force, except the part of it which was directly connected with and
under the immediate influence of the slave power, was aggressively and
most effectively Nationalist.
That this came to be the fact was due to Marshall's Dartmouth opinion
more than to any other single cause. The same was true of other
industrial corporate organizations. John Fiske does not greatly
exaggerate in his assertion that the law as to corporate franchises
declared by Marshall, in subjecting to the National Constitution every
charter granted by a State "went farther, perhaps, than any other in our
history toward limiting State sovereignty and extending the Federal
jurisdiction."[774]
Sir Henry Sumner Maine has some ground for his rather dogmatic statement
that the principle of Marshall's opinion "is the basis of credit of many
of the great American Railway Incorporations," and "has ... secured full
play to the economical forces by which the achievement of cultivating
the soil of the North American Continent has been performed." Marshall's
statesmanship is, asserts Maine, "the bulwark of American individualism
against democratic impatience and Socialistic fantasy."[775] Such views
of the Dartmouth decision are remarkably similar to those which Story
himself expressed soon after it was rendered. Writing to Chancellor
Kent Story says: "Unless I am very much mistaken the principles on which
that decision rests will be found to apply with an extensive reach to
all the great concerns of the people, and will check any undue
encroachments upon civil rights, which the passions or the popular
doctrines of the day may stimulate our State Legislatures to
adopt."[776]
The court's decision, however, made corporate franchises infinitely more
valuable and strengthened the motives for procuring them, even by
corruption. In this wise tremendous frauds have been perpetrated upon
negligent, careless, and indifferent publics; and "enormous and
threatening powers," selfish and non-public in their purposes and
methods, have been created.[777] But Marshall's opinion put the public
on its guard. Almost immediately the States enacted laws reserving to
the Legislature the right to alter or repeal corporate charters; and the
constitutions of several States now include this limitation on corporate
franchises. Yet these reservations did not, as a practical matter,
nullify or overthrow Marshall's philosophy of the sacredness of
contracts.
Within the last half-century the tendency has been strongly away from
the doctrine of the Dartmouth decision, and this tendency has steadily
become more powerful. The necessity of modifying and even abrogating
legislative grants, more freely than is secured by the reservation to do
so contained in State constitutions and corporate charters, has further
restricted the Dartmouth decision. It is this necessity that has
produced the rapid development of "that well-known but undefined power
called the police power,"[778] under which laws may be passed and
executed, in disregard of what Marshall would have called contracts,
provided such laws are necessary for the protection or preservation of
life, health, property, morals, or order. The modern doctrine is that
"the Legislature cannot, by any contract, divest itself of the power to
provide for these objects.... They are to be attained and provided for
by such appropriate means as the legislative discretion may devise. That
discretion can no more be bargained away than the power itself."[779]
Aside from the stability which this pronouncement of the Chief Justice
gave to commercial transactions in general, and the confidence it
inspired throughout the business world, the largest permanent benefit of
it to the American people was to teach them that faith once plighted,
whether in private contracts or public grants, must not and cannot be
broken by State legislation; that, by the fundamental law which they
themselves established for their own government, they as political
entities are forbidden to break their contracts by enacting statutes,
just as, by the very spirit of the law, private persons are forbidden to
break their contracts. If it be said that their representatives may
betray the people, the plain answer is that the people must learn to
elect honest agents.
For exactly a century Marshall's Dartmouth opinion has been assailed
and the Supreme Court itself has often found ways to avoid its
conclusions. But the theory of the Chief Justice has shown amazing
vitality. Sixty years after Marshall delivered it, Chief Justice Waite
declared that the principles it announced are so "imbedded in the
jurisprudence of the United States as to make them to all intents and
purposes a part of the Constitution itself."[780] Thirty-one years after
Marshall died, Justice Davis avowed that "a departure from it
[Marshall's doctrine] _now_ would involve dangers to society that cannot
be foreseen, would shock the sense of justice of the country, unhinge
its business interests, and weaken, if not destroy, that respect which
has always been felt for the judicial department of the
Government."[781] As late as 1895, Justice Brown asserted that it has
"become firmly established as a canon of American jurisprudence."[782]
It was a principle which Marshall introduced into American
Constitutional law, and, fortunately for the country, that principle
still stands; but to-day the courts, when construing a law said to
impair the obligation of contracts, most properly require that it be
established that the unmistakable purpose of the Legislature is to make
an actual contract for a sufficient consideration.[783]
It is highly probable that in the present state of the country's
development, the Supreme Court would not decide that the contract clause
so broadly protects corporate franchises as Marshall held a century ago.
In considering the Dartmouth decision, however, the state of things
existing when it was rendered must be taken into account. It is certain
that Marshall was right in his interpretation of corporation law as it
existed in 1819; right in the practical result of his opinion in that
particular case; and, above all, right in the purpose and effect of that
opinion on the condition and tendency of the country at the perilous
time it was delivered.
FOOTNOTES:
[615] See vol. I, 147, 231, of this work.
[616] See vol. III, chap. X, of this work.
[617] 7 Cranch, 164.
[618] _Ib._ 165.
[619] 7 Cranch, 166-67.
[620] This was true also of the entire court, since all the Justices
concurred in Marshall's opinions in both cases as far as the legislative
violations of the contract clause were concerned.
[621] He was not at all related to the Chief Justice. See vol. I,
footnote to 15-16, of this work.
[622] Chase: _History of Dartmouth College and the Town of Hanover, New
Hampshire_, I, 49.
[623] Chase, 45-48.
[624] _Ib._ 59.
[625] _Ib._ 54-55.
[626] Dartmouth and the English Trustees opposed incorporation and the
Bishops of the Church of England violently resisted Wheelock's whole
project. (_Ib._ 90.)
[627] Farrar: _Report of the Case of the Trustees of Dartmouth College
against William H. Woodward_, 11, 16; also see Charter of Dartmouth
College, Chase, 639-49. (Although the official copy of the charter
appears in Chase's history, the author cites Farrar in the report of the
case; the charter also is cited from his book.)
[628] Chase, 556.
[629] See Wheelock's will, _ib._ 562.
[630] Young Wheelock was very active in the Revolution. He was a member
of the New Hampshire Assembly in 1775, a Captain in the army in 1776, a
Major the following year, and then Lieutenant-Colonel, serving on the
staff of General Horatio Gates until called from military service by the
death of his father in 1779. (See Smith: _History of Dartmouth College_,
76.)
[631] Chase, 564.
[632] Rachel Murch "To y^e Session of y^e Church of Christ in Hanover,"
April 26, 1783, Shirley: _Dartmouth College Causes and the Supreme Court
of the Untied States_, 67.
[633] Shirley, 66-70.
[634] _Ib._ 70-75. Only three of the scores of Congregationalist
ministers in New Hampshire were Republicans. (_Ib._ 70.)
[635] _Ib._ 82.
[636] Shirley, 81, 84-85.
[637] _Sketches of the History of Dartmouth College and Moors' Charity
School._
[638] _A Candid, Analytical Review of the Sketches of the History of
Dartmouth College._
[639] _Vindication of the Official Conduct of the Trustees_, etc., and
_A True and Concise Narrative of the Origin and Progress of the Church
Difficulties_, by Benoni Dewey, James Wheelock, and Benjamin J. Gilbert.
[640] _Answer to the "Vindication_," etc., by Josiah Dunham.
[641] Lord: _History of Dartmouth College_, 73-77.
[642] Lord, 78.
[643] In 1811 the salary of Chief Justices of the Court of Common Pleas
for four of the counties was fixed at $200 a year; and that of the other
Justices of those courts at $180. "The Chief Justice of said court in
Grafton County, $180, and the other Justices in that court $160." (Act
of June 21, _Laws of New Hampshire, 1811_, 33.)
[644] Acts of June 24 and Nov. 5, _Laws of New Hampshire, 1813_, 6-19;
Barstow: _History of New Hampshire_, 363-64; Morison: _Life of Jeremiah
Smith_, 265-67. This law was, however, most excellent. It established a
Supreme Court and systematized the entire judicial system.
[645] This was the second time Plumer had been elected Governor. He was
first chosen to that office in 1812. Plumer had abandoned the failing
and unpatriotic cause of Federalism in 1808 (Plumer, 365), and had since
become an ardent follower of Jefferson.
[646] The number of votes cast at this election was the largest ever
polled in the history of the State up to that time. (_Ib._ 432.)
[647] See Act of June 27, _Laws of New Hampshire, 1816_, 45-48. This
repealed the Federalist Judiciary Acts of 1813 and revived laws repealed
by those acts. (See Barstow, 383, and Plumer, 437-38.)
The burning question of equality of religious taxation was not taken up
by this Legislature. The bill was introduced in the State Senate by the
Reverend Daniel Young, a Methodist preacher, but it received only three
votes. Apparently the reform energy of the Republicans was, for that
session, exhausted by the Judiciary and College Acts. The "Toleration
Act" was not passed until three years later. (McClintock: _History of
New Hampshire_, 507-29; also Barstow, 422.) This law is omitted from the
published acts, although it is indexed.
[648] In his Message to the Legislature recommending reform laws for
Dartmouth College, Governor Plumer denounced the provision of the
charter relating to the Trustees as "hostile to the spirit and genius of
a free government." (Barstow, 396.) This message Plumer sent to
Jefferson, who replied that the idea "that institutions, established for
the use of the nation, cannot be touched nor modified, even to make them
answer their end ... is most absurd.... Yet our lawyers and priests
generally inculcate this doctrine; and suppose that preceding
generations ... had a right to impose laws on us, unalterable by
ourselves; ... in fine, that the earth belongs to the dead, and not to
the living." (Jefferson to Plumer, July 21, 1816, Plumer, 440-41.)
[649] Act of June 27, _Laws of New Hampshire_, 1816, 48-51; and see
Lord, 687-90.
The temper of the Republicans is illustrated by a joint resolution
adopted June 29, 1816, denouncing the increase of salaries of Senators
and Representatives in Congress, which "presents the most inviting
inducements to avarice and ambition," "will introduce a monopolizing
power," and "contaminate our elections." (Act of June 27, _Laws of New
Hampshire_, 1816, 65-66.)
[650] _Journal_, House of Representatives (N.H.), June 28, 1816, 238-41.
[651] Resolutions of the Trustees, Lord, 690-94.
[652] Lord, 96.
[653] "It is an important question and merits your serious consideration
whether a law passed and approved by all the constituted authorities of
the State shall be carried into effect, or whether _a few individuals_
not vested with _any judicial authority_ shall be permitted to declare
your statutes _dangerous and arbitrary, unconstitutional and void_:
whether a _minority_ of the trustees of a literary institution formed
for the education of your children shall be encouraged to inculcate the
doctrine of resistance to the law and their example tolerated in
disseminating principles of insubordination and rebellion against
government." (Plumer's Message, Nov. 20, 1816, Lord, 103.)
[654] Acts of Dec. 18 and 26, 1816, (_Laws of New Hampshire, 1816_,
74-75; see also Lord, 104.)
[655] Lord, 111-12.
[656] _Ib._ 112-15.
[657] _Ib._ 115.
[658] Lord, 121. So few students went with the University that it dared
not publish a catalogue. (_Ib._ 129.)
[659] _Ib._ 92.
[660] One of the many stories that sprang up in after years about
Webster's management of the case is that, since the College was founded
for the education of Indians and none of them had attended for a long
time, Webster advised President Brown to procure two or three. Brown got
a number from Canada and brought them to the river beyond which were the
College buildings. While the party were rowing across, the young
Indians, seeing the walls and fearing that they were to be put in
prison, gave war whoops, sprang into the stream, swam to shore and fled.
So Webster had to go on without them. (Harvey: _Reminiscences and
Anecdotes of Daniel Webster_, 111-12.) There is not the slightest
evidence to support this absurd tale. (Letters to the author from Eugene
F. Clark, Secretary of Dartmouth College, and from Professor John K.
Lord, author of _History of Dartmouth College_.)
[661] Lord, 99.
[662] Farrar, 1.
[663] These arguments are well worth perusal. (See Farrar, 28-206; also
65 N.H. Reports, 473-624.)
[664] For instance, Mason's argument, which is very compact, consists of
forty-two pages of which only four are devoted to "the contract clause"
of the National Constitution and the violation of it by the New
Hampshire College Act. (Farrar, 28-70; 65 N.H. 473-502.)
[665] Farrar, 212-13; 65 N.H. 628-29.
[666] Farrar, 214-15; 65 N.H. 630.
[667] The contract clause.
[668] Farrar, 216; 65 N.H. 631.
[669] Farrar, 228-29; 65 N.H. 639.
[670] Farrar, 231; 65 N.H. 641.
[671] Farrar, 232; 65 N.H. 642.
[672] Farrar, 235.
[673] _Ib._
[674] Webster was then thirty-six years of age.
[675] Goodrich's statement in Brown: _Works of Rufus Choate: With a
Memoir of his Life_, I, 515.
[676] They were Rufus Greene Amory and George Black of Boston, David B.
Ogden and "a Mr. Baldwin from New York," Thomas Sergeant and Charles J.
Ingersoll of Philadelphia, John Wickham, Philip Norborne, Nicholas and
Benjamin Watkins Leigh of Virginia, and John McPherson Berrien of
Georgia. (Webster to Sullivan, Feb. 27, 1818, _Priv. Corres_.: Webster,
I, 273.)
[677] Brown, I, 515. Story makes no comment on the argument of the
Dartmouth case--a pretty sure sign that it attracted little attention in
Washington. Contrast Story's silence as to this argument with his vivid
description of that of M'Culloch _vs._ Maryland (_infra_, chap. VI).
Goodrich attributes the scant attendance to the fact that the court sat
"in a mean apartment of moderate size"; but that circumstance did not
keep women as well as men from thronging the room when a notable case
was to be heard or a celebrated lawyer was to speak. (See description of
the argument of the case of the Nereid, _supra_, 133-34.)
[678] For example, in M'Culloch _vs._ Maryland, Luther Martin spoke for
three days. (Webster to Smith, Feb. 28, 1819, Van Tyne, 80; and see
_infra_, chap, VI.)
[679] See vol. III, chap, IV, of this work.
[680] The College Trustees at first thought of employing Luther Martin
to assist Webster in the Supreme Court (Brown to Kirkland, Nov. 15,
1817, as quoted by Warren in _American Law Review_, XLVI, 665). It is
possible that Hopkinson was chosen instead, upon the advice of Webster,
who kept himself well informed of the estimate placed by Marshall and
the Associate Justices on lawyers who appeared before them. Marshall
liked and admired Hopkinson, had been his personal friend for years, and
often wrote him. When Peters died in 1828, Marshall secured the
appointment of Hopkinson in his place. (Marshall to Hopkinson, March 16,
1827, and same to same [no date, but during 1828], Hopkinson MSS.)
[681] It was considered to be a "needless expense" to send the original
counsel, Sullivan and Bartlett, to Washington. (Lord, 140.)
[682] Webster to McGaw, July 27, 1818, Van Tyne, 77.
[683] Shirley, 229-32. The fact that Holmes was employed plainly shows
the influence of "practical politics" on the State officials and the
Trustees of the University. The Board voted December 31, 1817, "to take
charge of the case." Benjamin Hale, one of the new Trustees, was
commissioned to secure other counsel if Holmes did not accept.
Apparently Woodward was Holmes's champion: "I have thought him extremely
ready ... [a] good lawyer, inferior to D. W. only in point of oratory."
(Woodward to Hall, Jan. 18, 1818, Lord, 139-40.) Hardly had Hale reached
Washington than he wrote Woodward: "Were you sensible of the low ebb of
Mr. Holmes' reputation here, you would ... be unwilling to trust the
cause with him." (Hale to Woodward, Feb. 15, 1818, _ib._ 139.)
[684] "It is late at night--the fag-end of a hard day's work. My eyes,
hand and mind all tired.... I have been up till midnight, at work, every
night, and still have my hands full.... I am now worn out ... extremely
fatigued.... The Supreme Court is approaching. It will half kill you to
hear that it will find me unprepared." (Wirt to Carr, Jan. 21, 1818,
Kennedy, II, 73-74.) Wirt had just become Attorney-General. Apparently
he found the office in very bad condition. The task of putting it in
order burdened him. He was compelled to do much that was not "properly
[his] duty." (_Ib._ 73.) His fee in the Dartmouth College case did not
exceed $500. (Hale to Plumer, Jan. 1818, Lord, 140.)
[685] "He seemed to treat this case as if his side could furnish nothing
but declamation." (Webster to Mason, March 13, 1818, _Priv. Corres._:
Webster, I, 275.)
[686] Farrar, 241; 65 N.H. 596; 4 Wheaton, 534; and see Curtis, I,
163-66.
[687] Farrar, 242-44; 65 N.H. 597-98; 4 Wheaton, 556-57.
[688] Farrar, 244; 65 N.H. 598-99; 4 Wheaton, 558-59.
[689] Farrar, 248; 65 N.H. 600-01; 4 Wheaton, 563-64.
[690] Farrar, 255-56; 65 N.H. 605-06; 4 Wheaton, 567-68.
[691] Farrar, 258-59; 65 N.H. 607-08; 4 Wheaton, 571-72.
[692] Farrar, 260-61; 65 N.H. 609; 4 Wheaton, 571.
[693] In Terrett _vs._ Taylor, 9 Cranch, 45 _et seq._ Story delivered
the unanimous opinion of the Supreme Court in this case. This fact was
well known at the time of the passage of the College Acts; and, in view
of it, there is difficulty in understanding how Story could have been
expected to support the New Hampshire legislation. (See _infra_, 257.)
[694] Farrar, 262; 65 N.H. 609-10; 4 Wheaton, 574-75.
[695] Farrar, 273; 65 N.H. 617; 4 Wheaton, 588.
[696] Farrar, 246-47; 65 N.H. 598-600; 4 Wheaton, 557-59.
[697] See vol. III, chap, X, of this work.
[698] Farrar, 273-74; 65 N.H. 618-19; 4 Wheaton, 591-92.
[699] _Supra_, 223.
[700] Farrar, 275; 65 N.H. 619; 4 Wheaton, 591.
[701] In Terrett _vs._ Taylor, see _supra_, footnote to 243.
[702] Farrar, 275; 65 N.H. 619; 4 Wheaton, 591. (Italics the author's.)
It will be observed that Webster puts the emphasis upon "natural
justice" and "fundamental laws" rather than upon the Constitutional
point.
[703] Farrar, 276; 65 N.H. 619-20; 4 Wheaton, 592.
[704] Terrett _vs._ Taylor.
[705] Farrar, 277; 65 N.H. 620; 4 Wheaton, 592.
[706] Farrar, 280; 65 N.H. 622. The two paragraphs containing these
statements of Webster are omitted in _Wheaton's Reports_.
[707] Farrar, 282-83; 65 N.H. 624; 4 Wheaton, 599.
[708] Brown, I, 516.
[709] _Ib._ 516-17. This scene, the movement and color of which grew in
dignity and vividness through the innumerable repetitions of it, caught
the popular fancy. Speeches, poems, articles, were written about the
incident. It became one of the chief sources from which the idolaters of
Webster drew endless adulation of that great man.
[710] See Brown, I, 517; Curtis, I, 169-71.
Chauncey Allen Goodrich was in his twenty-eighth year when he heard
Webster's argument. He was sixty-three when he gave Choate the
description which the latter made famous in his "Eulogy of Webster."
[711] Compare their arguments with Webster's. See Farrar 28-70; 104-61;
238-84.
[712] "Your notes I found to contain the whole matter. They saved me
great labor; but that was not the best part of their service; they put
me in the right path.... The only new aspect of the argument was
produced by going into cases to prove these ideas, which indeed lie at
the very bottom of your argument." (Webster to Smith, March 14, 1818,
_Priv. Corres._: Webster, I, 276-77; and see Webster to Mason, March 22,
1818, _ib._ 278.)
A year later, after the case had been decided, when the question of
publishing Farrar's _Report_ of all the arguments and opinions in the
Dartmouth College case was under consideration, Webster wrote Mason: "My
own interest would be promoted by _preventing_ the Book. I shall strut
well enough in the Washington Report, & if the 'Book' should not be
published, the world would not know where I borrowed my plumes--But I am
still inclined to have the Book--One reason is, that you & Judge Smith
may have the credit which belongs to you." (Webster to Mason, April 10,
1819, Van Tyne, 80.)
Farrar's _Report_ was published in August, 1819. It contains the
pleadings and special verdict, the arguments of counsel, opinions, and
the judgments in the State and National courts, together with valuable
appendices. The Farrar _Report_ is indispensable to those who wish to
understand this celebrated case from the purely legal point of view.
[713] Story to Mason, Oct. 6, 1819, Story, I, 323.
[714] Webster to Mason, April 28, 1818, _Priv. Corres._: Webster, I,
282-83. (Italics the author's.) In fact three such suits were brought
early in 1818 on the ground of diverse citizenship. (Shirley, 2-3.) Any
one of them would have enabled the Supreme Court to have passed on the
"general principles" of contract and government. These cases, had they
arrived on time, would have afforded Story his almost frantically
desired opportunity to declare that legislation violative of contracts
was against "natural right"--an opinion he fervently desired to give.
But the wiser Marshall saw in the case, as presented to the Supreme
Court on the contract guarantee of the Constitution, the occasion to
declare, in effect, that these same fundamental principles are embraced
in the contract clause of the written Constitution of the American
Nation.
[715] Webster to Mason, March 13, 1818, _Priv. Corres._: Webster, I,
275.
"Every body was grinning at the folly he uttered. Bell could not stand
it. He seized his hat and went off." (Webster to Smith, March 14, 1818,
_ib._ 277; and see Webster to Brown, March 11, 1818, Van Tyne, 75-76.)
Holmes "has attempted as a politician ... such a desire to be admired by
_everybody_, that he has ceased for weeks to be regarded by
_anybody_.... In the Dartmouth College Cause, he sunk lower at the bar
than he had in the Hall of Legislature." (Daggett to Mason, March 18,
1818, Hillard: _Memoir and Correspondence of Jeremiah Mason_, 199.)
The contempt of the legal profession for Holmes is shown by the fact
that in Farrar's _Report_ but four and one half pages are given to his
argument, while those of all other counsel for Woodward (Sullivan and
Bartlett in the State court and Wirt in the Supreme Court) are published
in full.
[716] "He made an apology for himself, that he had not had time to study
the case, and had hardly thought of it, till it was called on." (Webster
to Mason, March 13, 1818, _Priv. Corres._: Webster, I, 275-76.)
[717] "Before he concluded he became so exhausted ... that he was
obliged to request the Court to indulge him until the next day."
(_Boston Daily Advertiser_, March 23, 1818.)
"Wirt ... argues a good cause well. In this case he said more
nonsensical things than became him." (Webster to Smith, March 14, 1818,
_Priv. Corres._: Webster, I, 277.)
[718] Hopkinson wrote this anthem when Marshall returned from France.
(See vol. II, 343, of this work.)
[719] This description of Hopkinson is from Philadelphia according to
traditions gathered by the author.
[720] Choate says that Webster called to his aid "the ripe and beautiful
culture of Hopkinson." (Brown, I, 514.)
[721] The same was true of Hopkinson's argument for Chase. (See vol.
III, chap. IV, of this work.)
[722] Webster to Brown, March 11, 1818, Van Tyne, 75-76.
After Hopkinson's argument Webster wrote Brown: "Mr. Hopkinson
understood every part of the cause, and in his argument did it great
justice." (Webster to Brown, March 13, 1818, _Priv. Corres._: Webster,
I, 274; and see Webster to Mason, March 13, 1818, _ib._ 275-76.)
"Mr. Hopkinson closed the cause for the College with great ability, and
in a manner which gave perfect satisfaction and delight to all who heard
him." (_Boston Daily Advertiser_, March 23, 1818.)
It was expected that the combined fees of Webster and Hopkinson would be
$1000, "not an unreasonable compensation." (Marsh to Brown, Nov. 22,
1817, Lord, 139.) Hopkinson was paid $500. (Brown to Hopkinson, May 4,
1819, Hopkinson MSS.)
At their first meeting after the decision, the Trustees, "feeling the
inadequacy" of the fees of all the lawyers for the College, asked Mason,
Smith, Webster, and Hopkinson to sit for their portraits by Gilbert
Stuart, the artist to be paid by the Trustees. (Shattuck to Hopkinson,
Jan. 4, 1835, enclosing resolution of the Trustees, April 4, 1819,
attested by Miles Olcott, secretary, Hopkinson MSS.; also, Webster to
Hopkinson, May 9, 1819, _ib._)
[723] Webster to Smith, March 14, 1818, _Priv. Corres._: Webster, I,
577.
[724] Many supposed that Story was undecided, perhaps opposed to the
College. In fact, he was as decided as Marshall. (See _infra_, 257-58,
275 and footnote.)
[725] Webster to Smith, March 14, 1818, _Priv. Corres._: Webster, I,
577.
[726] For example, William Wirt, Monroe's Attorney-General, in urging
the appointment of Kent, partisan Federalist though he was, to the
Supreme Bench to succeed Justice Livingston, who died March 19, 1823,
wrote that "Kent holds so lofty a stand everywhere for almost matchless
intellect and learning, as well as for spotless purity and high-minded
honor and patriotism, that I firmly believe the nation at large would
approve and applaud the appointment." (Wirt to Monroe, May 5, 1823,
Kennedy, II, 153.)
[727] Kent to Marsh, Aug. 26, 1818, Shirley, 263. Moreover, in 1804,
Kent, as a member of the New York Council of Revision, had held that
"charters of incorporation containing grants of personal and municipal
privileges were not to be essentially affected without the consent of
the parties concerned." (Record of Board, as quoted in _ib._ 254.)
[728] Shirley, 253. Shirley says that Kent "agreed to draw up an opinion
for Johnson in this case."
[729] Webster to Story, Sept. 9, 1818, _Priv. Corres._: Webster, I, 287.
[730] Lord, 143.
[731] "The folks in this region are frightened.... It is ascertained
that Judge Story ... is the original framer of the law.... They suppose
that on this account the cause is hopeless before the Sup. Ct. of U.S.
This is, however, report." (Murdock to Brown, Dec. 27, 1817, _ib._ 142.)
Murdock mentions Pickering as one of those who believed the rumors about
Story. This explains much. The soured old Federalist was an incessant
gossip and an indefatigable purveyor of rumors concerning any one he did
not like, provided the reports were bad enough for him to repeat. He
himself would, with great facility, apply the black, if the canvas were
capable of receiving it; and he could not forget that Story, when a
young man, had been a Republican.
[732] Hopkinson to Marsh, Dec. 31, 1817, Shirley, 274-75.
[733] This is principally the work of John M. Shirley in his book
_Dartmouth College Causes and the Supreme Court of the United States_.
The volume is crammed with the results of extensive research, strange
conglomeration of facts, suppositions, inferences, and insinuations, so
inextricably mingled that it is with the utmost difficulty that the
painstaking student can find his way.
Shirley leaves the impression that Justices Johnson and Livingston were
improperly worked upon because they consulted Chancellor Kent. Yet the
only ground for this is that Judge Marsh sent Webster's argument to
Kent, who was Marsh's intimate friend; and that the Reverend Francis
Brown, President of Dartmouth, went to see Kent, reported that his
opinion was favorable to the College, and that the effect of this would
be good upon Johnson and Livingston.
From the mere rumor, wholly without justification, that Story was at
first against the College--indeed, had drawn the College Acts (for so
the rumor grew, as rumors always grow)--Shirley would have us believe,
without any evidence whatever, that some improper influence was exerted
over Story.
Because Webster said that there was something "left out" of the report
of his argument, Shirley declares that for a whole hour Webster spoke as
a Federalist partisan in order to influence Marshall. (Shirley, 237.)
But such an attempt would have been resented by every Republican member
of the court and, most of all, by Marshall himself. Moreover, Marshall
needed no such persuasion, nor, indeed, persuasion of any kind. His
former opinions showed where he stood; so did the views which he had
openly and constantly avowed since he was a member of the Virginia House
of Burgesses in 1783. The something "left out" of Webster's reported
argument was, of course, his extemporaneous and emotional peroration
described by Goodrich.
These are only a very few instances of Shirley's assumptions. Yet,
because of the mass of data his book contains, and because of the
impossibility of getting out of them a connected narrative without the
most laborious and time-consuming examination, together with the
atmosphere of wrongdoing with which Shirley manages to surround the
harried reader, his volume has had a strong and erroneous effect upon
general opinion.
[734] Hopkinson to Webster, Nov. 17, 1818, _Priv. Corres._: Webster, I,
288-89. "I suppose he expects to do something very extraordinary in it,
as he says Mr. Wirt 'was not strong enough for it, has not back
enough.'" (_Ib._ 289.)
[735] Both Hopkinson and Webster resolved to prevent Pinkney from making
his anticipated argument. (_Ib._)
[736] Not only did Pinkney master the law of the case, but, in order to
have at his command every practical detail of the controversy, he kept
Cyrus Perkins, who succeeded Woodward, deceased, as Secretary of the
University Trustees, under continuous examination for an entire week.
Perkins knew every possible fact about the College controversy and
submitted to Pinkney the whole history of the dispute and also all
documents that could illuminate the subject. "Dr. Perkins had been a
week at Baltimore, conferring with Mr. Pinkney." (Webster to Mason, Feb.
4, 1819, Hillard, 213; and see Shirley, 203.)
[737] This fact was unknown to anybody but the Justices themselves. "No
public or general opinion seems to be formed of the opinion of any
particular judge." (Webster to Brown, Jan. 10, 1819, _Priv. Corres._:
Webster, I, 299.)
[738] "On Tuesday morning, he [Pinkney] being in court, as soon as the
judges had taken their seats, the Chief Justice said that in vacation
the judges had formed opinions in the College case. He then immediately
began reading his opinion, and, of course, nothing was said of a second
argument." (Webster to Mason, Feb. 4, 1819, Hillard, 213.)
[739] 4 Wheaton, 625.
[740] _Ib._ 626-27.
[741] 4 Wheaton, 627.
[742] _Ib._ 627-28.
[743] 4 Wheaton, 629-30.
[744] _Ib._ 630.
[745] _Ib._ 631-34. The statement of facts and of the questions growing
out of them was by far the best work Marshall did. In these statements
he is as brief, clear, and pointed as, in his arguments, he is prolix,
diffuse, and repetitious.
[746] _Ib._ 634.
[747] 4 Wheaton, 635-36.
[748] _Ib._ 636.
[749] 4 Wheaton, 637.
[750] 4 Wheaton, 638-39.
[751] _Ib._ 639-40.
[752] 4 Wheaton, 640-41.
[753] _Ib._ 641.
[754] _Ib._ 642-43.
[755] 4 Wheaton, 643.
[756] 4 Wheaton, 644.
[757] 4 Wheaton. 645.
[758] _Ib._ 646-47.
[759] 4 Wheaton, 647-48.
[760] _Ib._ 650.
[761] _Ib._ 651.
[762] 4 Wheaton, 652-53.
[763] _Ib._ 654.
[764] Webster "in court" to his brother, Feb. 2, 1819, _Priv. Corres._
Webster, I, 300.
[765] Webster to Brown, Feb. 2, 1819, _ib._
[766] Webster to Mason, Feb. 4, 1819, Hillard, 213-14. Webster adds:
"Some of the other judges, I am told, have drawn opinions with more
reference to authorities." (_Ib._ 214.)
[767] Hopkinson to Brown, Feb. 2, 1819, _Priv. Corres._: Webster, I,
301.
[768] Webster to Mason, April 13, 1819, Hillard, 223.
[769] Marshall to Story, May 27, 1819, _Proceedings, Mass. Hist. Soc._
2d Series, XIV, 324-25.
[770] 4 Wheaton, 666-713.
[771] Livingston to Story, Jan. 24, 1819, Story, I, 323. This important
letter discredits the rumor that Story at first thought the College Acts
valid.
Story sent copies of his opinion to eminent men other than his
associates on the Supreme Bench, among them William Prescott, father of
the historian, a Boston lawyer highly esteemed by the leaders of the
American bar. "I have read your opinion with care and great pleasure,"
writes Prescott. "In my judgment it is supported by the principles of
our constitutions, and of all free governments, as well as by the
authority of adjudged cases. As one of the public, I thank you for
establishing a doctrine affecting so many valuable rights and interests,
with such clearness and cogency of argument, and weight of authority as
must in all probability prevent its ever being again disturbed, I see
nothing I should wish altered in it. I hope it will be adopted without
diminution or subtraction. You have placed the subject in some strong,
and to me, new lights, although I had settled my opinion on the general
question years ago." (Prescott to Story, Jan. 9, 1819, _ib._ 324.)
[772] For instance, the watchful Niles does not even mention it in his
all-seeing and all-recording _Register_. Also see Warren, 377.
[773] _North American Review_ (1820), X, 83.
[774] Fiske: _Essays, Historical and Literary_, I, 379.
[775] Maine: _Popular Government_, 248.
[776] Story to Kent, Aug. 21, 1819, Story, I, 331.
[777] See Cooley: _Constitutional Limitations_ (6th ed.), footnote to
335.
[778] Butchers' Union, etc. _vs._ Crescent City, etc. 111 U.S. 750.
[779] Beer Company _vs._ Massachusetts, 97 U.S. 25; and see Fertilizing
Co. _vs._ Hyde Park, _ib._ 659.
[780] Stone _vs._ Mississippi, October, 1879, 11 Otto (101 U.S.) 816.
[781] The Binghamton Bridge, December, 1865, 3 Wallace, 73.
[782] Pearsall _vs._ Great Northern Railway, 161 U.S. 660.
[783] More has been written of Marshall's opinion in this case than of
any other delivered by him except that in Marbury _vs._ Madison.
For recent discussions of the subject see Russell: "Status and
Tendencies of the Dartmouth College Case," _Am. Law Rev._ XXX, 322-56,
an able, scholarly, and moderate paper; Doe: "A New View of the
Dartmouth College Case," _Harvard Law Review_, VI, 161-81, a novel and
well-reasoned article; Trickett: "The Dartmouth College Paralogism,"
_North American Review_, XL, 175-87, a vigorous radical essay; Hall:
"The Dartmouth College Case," _Green Bag_, XX, 244-47, a short but
brilliant attack upon the assailants of Marshall's opinion; Jenkins:
"Should the Dartmouth College Decision be Recalled," _Am. Law Rev._ LI,
711-51, a bright, informed, and thorough treatment from the extremely
liberal point of view. A calm, balanced, and convincing review of the
effect of the Dartmouth decision on American economic and social life is
that of Professor Edward S. Corwin in his _Marshall and the
Constitution_, 167-72. When reading these comments, however, the student
should, at the same time, carefully reëxamine Marshall's opinion.
CHAPTER VI
VITALIZING THE CONSTITUTION
The crisis is one which portends destruction to the liberties of
the American people. (Spencer Roane.)
The constitutional government of this republican empire cannot
be practically enforced but by a fair and liberal interpretation
of its powers. (William Pinkney.)
The Judiciary of the United States is the subtle corps of
sappers and miners constantly working under ground to undermine
the foundations of our confederated fabric. (Jefferson.)
The government of the Union is emphatically and truly a
government of the people. In form and substance it emanates from
them. Its powers are granted by them, and are to be exercised
directly on them and for their benefit. (Marshall.)
Although it was the third of the great causes to be decided by the
Supreme Court in the memorable year, 1819, M'Culloch _vs._ Maryland was
the first in importance and in the place it holds in the development of
the American Constitution. Furthermore, in his opinion in this case John
Marshall rose to the loftiest heights of judicial statesmanship. If his
fame rested solely on this one effort, it would be secure.
To comprehend the full import of Marshall's opinion in this case, the
reader must consider the state of the country as described in the fourth
chapter of this volume. While none of his expositions of our fundamental
law, delivered in the critical epoch from 1819 to 1824, can be entirely
understood without knowledge of the National conditions that produced
them, this fact must be especially borne in mind when reviewing the case
of M'Culloch _vs._ Maryland.
[Illustration: Associate Justices sitting with Marshall in the case of
M'Culloch _versus_ Maryland: STORY, JOHNSON, WASHINGTON, DUVAL,
LIVINGSTON, TODD]
Like most of the controversies in which Marshall's Constitutional
opinions were pronounced, M'Culloch _vs._ Maryland came before the
Supreme Court on an agreed case. The facts were that Congress had
authorized the incorporation of the second Bank of the United States;
that this institution had instituted a branch at Baltimore; that the
Legislature of Maryland had passed an act requiring all banks,
established "without authority from the state," to issue notes only on
stamped paper and only of certain denominations, or, in lieu of these
requirements, only upon the payment of an annual tax of fifteen thousand
dollars; that, in violation of this law, the Baltimore branch of the
National Bank continued to issue its notes on unstamped paper without
paying the tax; and that on May 8, 1818, John James, "Treasurer of the
Western Shore," had sued James William M'Culloch, the cashier of the
Baltimore branch, for the recovery of the penalties prescribed by the
Maryland statute.[784]
The immediate question was whether the Maryland law was Constitutional;
but the basic issue was the supremacy of the National Government as
against the dominance of State Governments. Indeed, the decision of this
case involved the very existence of the Constitution as an "ordinance of
Nationality," as Marshall so accurately termed it.
At no time in this notable session of the Supreme Court was the
basement room, where its sittings were now again held, so thronged with
auditors as it was when the argument in M'Culloch _vs._ Maryland took
place. "We have had a crowded audience of ladies and gentlemen," writes
Story toward the close of the nine days of discussion. "The hall was
full almost to suffocation, and many went away for want of room."[785]
Webster opened the case for the Bank. His masterful argument in the
Dartmouth College case the year before had established his reputation as
a great Constitutional lawyer as well as an orator of the first class.
He was attired in the height of fashion, tight breeches, blue cloth
coat, cut away squarely at the waist, and adorned with large brass
buttons, waist-coat exposing a broad expanse of ruffled shirt with high
soft collar surrounded by an elaborate black stock.[786]
The senior counsel for the Bank was William Pinkney. He was dressed with
his accustomed foppish elegance, and, as usual, was nervous and
impatient. Notwithstanding his eccentricities, he was Webster's equal,
if not his superior, except in physical presence and the gift of
political management. With Webster and Pinkney was William Wirt, then
Attorney-General of the United States, who had arrived at the fullness
of his powers.
Maryland was represented by Luther Martin, still Attorney-General for
that State, then seventy-five years old, but a strong lawyer despite
his half-century, at least, of excessive drinking. By his side was
Joseph Hopkinson of Philadelphia, now fifty years of age, one of the
most learned men at the American bar. With Martin and Hopkinson was
Walter Jones of Washington, who appears to have been a legal genius, his
fame obliterated by devotion to his profession and unaided by any public
service, which so greatly helps to give permanency to the lawyer's
reputation. All told, the counsel for both sides in M'Culloch _vs._
Maryland were the most eminent and distinguished in the Republic.
Webster said in opening that Hamilton had "exhausted" the arguments for
the power of Congress to charter a bank and that Hamilton's principles
had long been acted upon. After thirty years of acquiescence it was too
late to deny that the National Legislature could establish a bank.[787]
With meticulous care Webster went over Hamilton's reasoning to prove
that Congress can "pass all laws 'necessary and proper' to carry into
execution powers conferred on it."[788]
Assuming the law which established the Bank to be Constitutional,
could Maryland tax a branch of that Bank? If the State could tax the
Bank at all, she could put it out of existence, since a "power to tax
involves ... a power to destroy"[789]--words that Marshall, in
delivering his opinion, repeated as his own. The truth was, said
Webster, that, in taxing the Baltimore branch of the National Bank,
Maryland taxed the National Government itself.[790]
Joseph Hopkinson, as usual, made a superb argument--a performance all
the more admirable as an intellectual feat in that, as an advocate for
Maryland, his convictions were opposed to his reasoning.[791] Walter
Jones was as thorough as he was lively, but he did little more than to
reinforce the well-nigh perfect argument of Hopkinson.[792] On the same
side the address of Luther Martin deserves notice as the last worthy of
remark which that great lawyer ever made. Old as he was, and wasted as
were his astonishing powers, his argument was not much inferior to those
of Webster, Hopkinson, and Pinkney. Martin showed by historical evidence
that the power now claimed for Congress was suspected by the opponents
of the Constitution, but denied by its supporters and called "a dream of
distempered jealousy." So came the Tenth Amendment; yet, said Martin,
now, "we are asked to engraft upon it [the Constitution] powers ...
which were disclaimed by them [the advocates of the Constitution], and
which, if they had been fairly avowed at the time, would have prevented
its adoption."[793]
Could powers of Congress be inferred as a necessary means to the desired
end? Why, then, did the Constitution _expressly_ confer powers which, of
necessity, must be implied? For instance, the power to declare war
surely implied the power to raise armies; and yet that very power was
granted in specific terms. But the power to create corporations "is not
expressly delegated, either as an end or a means of national
government."[794]
When Martin finished, William Pinkney, whom Marshall declared to be "the
greatest man he had ever seen in a Court of justice,"[795] rose to make
what proved to be the last but one of the great arguments of that
unrivaled leader of the American bar of his period. To reproduce his
address is to set out in advance the opinion of John Marshall stripped
of Pinkney's rhetoric which, in that day, was deemed to be the
perfection of eloquence.[796]
For three days Pinkney spoke. Few arguments ever made in the Supreme
Court affected so profoundly the members of that tribunal. Story
describes the argument thus: "Mr. Pinkney rose on Monday to conclude the
argument; he spoke all that day and yesterday, and will probably
conclude to-day. I never, in my whole life, heard a greater speech; it
was worth a journey from Salem to hear it; his elocution was excessively
vehement, but his eloquence was overwhelming. His language, his style,
his figures, his arguments, were most brilliant and sparkling. He spoke
like a great statesman and patriot, and a sound constitutional lawyer.
All the cobwebs of sophistry and metaphysics about State rights and
State sovereignty he brushed away with a mighty besom."[797]
Indeed, all the lawyers in this memorable contest appear to have
surpassed their previous efforts at the bar. Marshall, in his opinion,
pays this tribute to all their addresses: "Both in maintaining the
affirmative and the negative, a splendor of eloquence, and strength of
argument seldom, if ever, surpassed, have been displayed."[798]
After he had spoken, Webster, who at that moment was intent on the
decision of the Dartmouth College case,[799] became impatient. "Our Bank
argument goes on--& threatens to be long," he writes Jeremiah
Mason.[800] Four days later, while Martin was still talking, Webster
informs Jeremiah Smith: "We are not yet thro. the Bank question. Martin
has been _talking 3 ds_. Pinkney replies tomorrow & that finishes--I set
out for home next day."[801] The arguments in M'Culloch _vs._ Maryland
occupied nine days.[802]
Four days before the Bank argument opened in the Supreme Court, the
House took up the resolution offered by James Johnson of Virginia to
repeal the Bank's charter.[803] The debate over this proposal continued
until February 25, the third day of the argument in M'Culloch _vs._
Maryland. How, asked Johnson, had the Bank fulfilled expectations and
promises? "What ... is our condition? Surrounded by one universal gloom.
We are met by the tears of the widow and the orphan."[804] Madison has
"cast a shade" on his reputation by signing the Bank Bill--that "act of
usurpation." Under the common law the charter "is forfeited."[805]
The Bank is a "mighty corporation," created "to overawe ... the local
institutions, that had dealt themselves almost out of breath in
supporting the Government in times of peril and adversity." The
financial part of the Virginia Republican Party organization thus spoke
through James Pindall of that State.[806]
William Lowndes of South Carolina brilliantly defended the Bank, but
admitted that its "early operation" had been "injudicious."[807] John
Tyler of Virginia assailed the Bank with notable force. "This charter
has been violated," he said; "if subjected to investigation before a
court of justice, it will be declared null and void."[808] David Walker
of Kentucky declared that the Bank "is an engine of favoritism--of stock
jobbing"--a machine for "binding in adamantine chains the blessed,
innocent lambs of America to accursed, corrupt European tigers."[809] In
spite of all this eloquence, Johnson's resolution was defeated, and the
fate of the Bank left in the hands of the Supreme Court.
On March 6, 1819, before a few spectators, mostly lawyers with business
before the court, Marshall read his opinion. It is the misfortune of the
biographer that only an abstract can be given of this epochal state
paper--among the very first of the greatest judicial utterances of all
time.[810] It was delivered only three days after Pinkney concluded his
superb address.
Since it is one of the longest of Marshall's opinions and, by general
agreement, is considered to be his ablest and most carefully prepared
exposition of the Constitution, it seems not unlikely that much of it
had been written before the argument. The court was very busy every day
of the session and there was little, if any, time for Marshall to write
this elaborate document. The suit against M'Culloch had been brought
nearly a year before the Supreme Court convened; Marshall undoubtedly
learned of it through the newspapers; he was intimately familiar with
the basic issue presented by the litigation; and he had ample time to
formulate and even to write out his views before the ensuing session of
the court. He had, in the opinions of Hamilton and Jefferson,[811] the
reasoning on both sides of this fundamental controversy. It appears to
be reasonably probable that at least the framework of the opinion in
M'Culloch _vs._ Maryland was prepared by Marshall when in Richmond
during the summer, autumn, and winter of 1818-19.
The opening words of Marshall are majestic: "A sovereign state denies
the obligation of a law ... of the Union.... The constitution of our
country, in its most ... vital parts, is to be considered; the
conflicting powers of the government of the Union and of its
members, ... are to be discussed; and an opinion given, which may
essentially influence the great operations of the government."[812] He
cannot "approach such a question without a deep sense of ... the awful
responsibility involved in its decision. But it must be decided
peacefully, or remain a source of hostile legislation, perhaps of
_hostility of a still more serious nature_."[813] In these solemn words
the Chief Justice reveals the fateful issue which M'Culloch _vs._
Maryland foreboded.
That Congress has power to charter a bank is not "an open question....
The principle ... was introduced at a very early period of our history,
has been recognized by many successive legislatures, and has been acted
upon by the judicial department ... as a law of undoubted obligation....
An exposition of the constitution, deliberately established by
legislative acts, on the faith of which an immense property has been
advanced, ought not to be lightly disregarded."
The first Congress passed the act to incorporate a National bank. The
whole subject was at the time debated exhaustively. "The bill for
incorporating the bank of the United States did not steal upon an
unsuspecting legislature, & pass unobserved," says Marshall. Moreover,
it had been carefully examined with "persevering talent" in Washington's
Cabinet. When that act expired, "a short experience of the
embarrassments" suffered by the country "induced the passage of the
present law." He must be intrepid, indeed, who asserts that "a measure
adopted under these circumstances was a bold and plain usurpation, to
which the constitution gave no countenance."[814]
But Marshall examines the question as though it were "entirely new"; and
gives an historical account of the Constitution which, for clearness and
brevity, never has been surpassed.[815] Thus he proves that "the
government proceeds directly from the people; ... their act was final.
It required not the affirmance, and could not be negatived, by the state
governments. The constitution when thus adopted ... bound the state
sovereignties." The States could and did establish "a league, such as
was the confederation.... But when, 'in order to form a more perfect
union,' it was deemed necessary to change this alliance into an
effective government, ... acting directly on the people," it was the
people themselves who acted and established a fundamental law for their
government.[816]
The Government of the American Nation is, then, "emphatically, and
truly, a government of the people. In form and in substance it emanates
from them. Its powers are granted by them, and are to be exercised
directly on them, and for their benefit"[817]--a statement, the grandeur
of which was to be enhanced forty-four years later, when, standing on
the battle-field of Gettysburg, Abraham Lincoln said that "a government
of the people, by the people, for the people, shall not perish from the
earth."[818]
To be sure, the States, as well as the Nation, have certain powers, and
therefore "the supremacy of their respective laws, when they are in
opposition, must be settled." Marshall proceeds to settle that basic
question. The National Government, he begins, "is supreme within its
sphere of action. This would seem to result necessarily from its
nature." For "it is the government of all; its powers are delegated by
all; it represents all, and acts for all. Though any one state may be
willing to control its operations, no state is willing to allow others
to control them. The nation, on those subjects on which it can act, must
necessarily bind its component parts." Plain as this truth is, the
people have not left the demonstration of it to "mere reason"--for they
have, "in express terms, decided it by saying" that the Constitution,
and the laws of the United States which shall be made in pursuance
thereof, "shall be the supreme law of the land," and by requiring all
State officers and legislators to "take the oath of fidelity to
it."[819]
The fact that the powers of the National Government enumerated in the
Constitution do not include that of creating corporations does not
prevent Congress from doing so. "There is no phrase in the instrument
which, like the articles of confederation, _excludes_ incidental or
implied powers; and which requires that everything granted shall be
expressly and minutely described.... A constitution, to contain an
accurate detail of all the subdivisions of which its great powers will
admit, and of all the means by which they may be carried into execution,
would partake of a prolixity of a legal code, and could scarcely be
embraced by the human mind. It would probably never be understood by the
public."
The very "nature" of a constitution, "therefore requires, that only its
great outlines should be marked, its important objects designated, and
the minor ingredients which compose those _objects be deduced from the
nature of the objects themselves_." In deciding such questions "we must
never forget," reiterates Marshall, "that it is a _constitution_ we are
expounding."[820]
This being true, the power of Congress to establish a bank is
undeniable--it flows from "the great powers to lay and collect taxes; to
borrow money; to regulate commerce; to declare and conduct a war; and to
raise and support armies and navies." Consider, he continues, the scope
of the duties of the National Government: "The sword and the purse, all
the external relations, and no inconsiderable portion of the industry of
the nation, are entrusted to its government.... A government, entrusted
with such ample powers, on the due execution of which the happiness and
prosperity of the nation so vitally depends, must also be entrusted with
ample means for their execution. The power being given, it is the
interest of the nation to facilitate its execution. It can never be
their interest, and cannot be presumed to have been their intention, to
clog and embarrass its execution by withholding the most appropriate
means."[821]
At this point Marshall's language becomes as exalted as that of the
prophets: "Throughout this vast republic, from the St. Croix to the Gulf
of Mexico, from the Atlantic to the Pacific, revenue is to be collected
and expended, armies are to be marched and supported. The exigencies of
the nation may require that the treasure raised in the north should be
transported to the south, that raised in the east conveyed to the west,
or that this order should be reversed." Here Marshall the soldier is
speaking. There is in his words the blast of the bugle of Valley Forge.
Indeed, the pen with which Marshall wrote M'Culloch _vs._ Maryland was
fashioned in the army of the Revolution.[822]
The Chief Justice continues: "Is that construction of the constitution
to be preferred which would render these operations difficult,
hazardous, and expensive?" Did the framers of the Constitution "when
granting these powers for the public good" intend to impede "their
exercise by withholding a choice of means?" No! The Constitution "does
not profess to enumerate the means by which the powers it confers may be
executed; nor does it prohibit the creation of a corporation, if the
existence of such a being be essential to the beneficial exercise of
those powers."[823]
Resorting to his favorite method in argument, that of repetition,
Marshall again asserts that the fact that "the power of creating a
corporation is one appertaining to sovereignty and is not expressly
conferred on Congress," does not take that power from Congress. If it
does, Congress, by the same reasoning, would be denied the power to pass
most laws; since "all legislative powers appertain to sovereignty." They
who say that Congress may not select "any appropriate means" to carry
out its admitted powers, "take upon themselves the burden of
establishing that exception."[824]
The establishment of the National Bank was a means to an end; the power
to incorporate it is "as incidental" to the great, substantive, and
independent powers expressly conferred on Congress as that of making
war, levying taxes, or regulating commerce.[825] This is not only the
plain conclusion of reason, but the clear language of the Constitution
itself as expressed in the "necessary and proper" clause[826] of that
instrument. Marshall treats with something like contempt the argument
that this clause does not mean what it says, but is "really restrictive
of the general right, which might otherwise be implied, of selecting
means for executing the enumerated powers"--a denial, in short, that,
without this clause, Congress is authorized to make laws.[827] After
conferring on Congress all legislative power, "after allowing each house
to prescribe its own course of proceeding, after describing the manner
in which a bill should become a law, would it have entered into the
mind ... of the convention that an express power to make laws was
necessary to enable the legislature to make them?"[828]
In answering the old Jeffersonian argument that,[829] under the
"necessary and proper" clause, Congress can adopt only those means
absolutely "necessary" to the execution of express powers, Marshall
devotes an amount of space which now seems extravagant. But in 1819 the
question was unsettled and acute; indeed, the Republicans had again made
it a political issue. The Chief Justice repeats the arguments made by
Hamilton in his opinion to Washington on the first Bank Bill.[830]
Some words have various shades of meaning, of which courts must select
that justified by "common usage." "The word 'necessary' is of this
description.... It admits of all degrees of comparison.... A thing may
be necessary, very necessary, absolutely or indispensably necessary."
For instance, the Constitution itself prohibits a State from "laying
'imposts or duties on imports or exports, except what may be
_absolutely_ necessary for executing its inspection laws'"; whereas it
authorizes Congress to "'make all laws which shall be necessary and
proper'" for the execution of powers expressly conferred.[831]
Did the framers of the Constitution intend to forbid Congress to employ
"_any_" means "which might be appropriate, and which were conducive to
the end"? Most assuredly not! "The subject is the execution of those
great powers on which the welfare of a nation essentially depends." The
"necessary and proper" clause is found "in a constitution intended to
endure for ages to come, and, consequently, to be adapted to the various
crises of human affairs.... To have declared that the best means shall
not be used, but those alone without which the power given would be
nugatory, would have been to deprive the legislature of the capacity to
avail itself of experience, to exercise its reason, and to accommodate
its legislation to circumstances."[832]
The contrary conclusion is tinged with "insanity." Whence comes the
power of Congress to prescribe punishment for violations of National
laws? No such general power is expressly given by the Constitution. Yet
nobody denies that Congress has this general power, although "it is
expressly given in some cases," such as counterfeiting, piracy, and
"offenses against the law of nations." Nevertheless, the specific
authorization to provide for the punishment of these crimes does not
prevent Congress from doing the same as to crimes not specified.[833]
Now comes an example of Marshall's reasoning when at his best--and
briefest.
"Take, for example, the power 'to establish post-offices and
post-roads.' This power is executed by the single act of making the
establishment. But, from this has been inferred the power and duty of
carrying the mail along the post-road, from one post-office to another.
And, from this implied power, has again been inferred the right to
punish those who steal letters from the post-office, or rob the mail. It
may be said, with some plausibility, that the right to carry the mail,
and to punish those who rob it, is not indispensably necessary to the
establishment of a post-office and post-road. This right is indeed
essential to the beneficial exercise of the power, but not
indispensably necessary to its existence. So, of the punishment of the
crimes of stealing or falsifying a record or process of a court of the
United States, or of perjury in such court. To punish these offenses is
certainly conducive to the due administration of justice. But courts may
exist, and may decide the causes brought before them, though such crimes
escape punishment.
"The baneful influence of this narrow construction on all the operations
of the government, and the absolute impracticability of maintaining it
without rendering the government incompetent to its great objects, might
be illustrated by numerous examples drawn from the constitution, and
from our laws. The good sense of the public has pronounced, without
hesitation, that the power of punishment appertains to sovereignty, and
may be exercised whenever the sovereign has a right to act, as
incidental to his constitutional powers. It is a means for carrying into
execution all sovereign powers, and may be used, although not
indispensably necessary. It is a right incidental to the power, and
conducive to its beneficial exercise."[834]
To attempt to prove that Congress _might_ execute its powers without the
use of other means than those absolutely necessary would be "to waste
time and argument," and "not much less idle than to hold a lighted taper
to the sun." It is futile to speculate upon imaginary reasons for the
"necessary and proper" clause, since its purpose is obvious. It "is
placed among the powers of Congress, not among the limitations on those
powers. Its terms purport to enlarge, not to diminish the powers vested
in the government.... If no other motive for its insertion can be
suggested, a sufficient one is found in the desire to remove all doubts
respecting the right to legislate on the vast mass of incidental powers
which must be involved in the constitution, if that instrument be not a
splendid bauble."[835]
Marshall thus reaches the conclusion that Congress may "perform the high
duties assigned to it, in the manner most beneficial to the people."
Then comes that celebrated passage--one of the most famous ever
delivered by a jurist: "Let the end be legitimate, let it be within
the scope of the constitution, and all means which are appropriate,
which are plainly adapted to that end, which are not prohibited,
but consist with the letter and spirit of the constitution, are
constitutional."[836]
Further on the Chief Justice restates this fundamental principle,
without which the Constitution would be a lifeless thing: "Where the law
is not prohibited, and is really calculated to effect any of the objects
entrusted to the government, to undertake here to inquire into the
degree of its necessity, would be to pass the line which circumscribes
the judicial department, and to tread on legislative ground. The court
disclaims all pretensions to such a power."[837]
The fact that there were State banks with whose business the National
Bank might interfere, had nothing to do with the question of the power
of Congress to establish the latter. The National Government does not
depend on State Governments "for the execution of the great powers
assigned to it. Its means are adequate to its ends." It can choose a
National bank rather than State banks as an agency for the transaction
of its business; "and Congress alone can make the election."
It is, then, "the unanimous and decided opinion" of the court that the
Bank Act is Constitutional. So is the establishment of the branches of
the parent bank. Can States tax these branches, as Maryland has tried to
do? Of course the power of taxation "is retained by the states," and "is
not abridged by the grant of a similar power to the government of the
Union." These are "truths which have never been denied."
With sublime audacity Marshall then declares that "such is the paramount
character of the constitution that its capacity to withdraw any subject
from the action of even this power, is admitted."[838] This assertion
fairly overwhelms the student, since the States then attempting to tax
out of existence the branches of the National Bank did not admit, but
emphatically denied, that the National Government could withdraw from
State taxation any taxable subject whatever, except that which the
Constitution itself specifically withdraws.
"The States," argues Marshall, "are expressly forbidden" to tax imports
and exports. This being so, "the same paramount character would seem to
restrain, as it certainly may restrain, a state from such other
exercise of this [taxing] power, as is in its nature incompatible with,
and repugnant to, the constitutional laws of the Union. A law,
absolutely repugnant to another, as entirely repeals that other as if
express terms of repeal were used."
In this fashion Marshall holds, in effect, that Congress can restrain
the States from taxing certain subjects not mentioned in the
Constitution as fully as though those subjects were expressly named.
It is on this ground that the National Bank claims exemption "from the
power of a state to tax its operations." Marshall concedes that "there
is no express provision [in the Constitution] for the case, but the
claim has been sustained on a principle which so entirely pervades the
constitution, is so intermixed with the materials which compose it, so
interwoven with its web, so blended with its texture, as to be incapable
of being separated from it without rendering it into shreds."[839]
This was, indeed, going far--the powers of Congress placed on "a
principle" rather than on the language of the Constitution. When we
consider the period in which this opinion was given to the country, we
can understand--though only vaguely at this distance of time--the daring
of John Marshall. Yet he realizes the extreme radicalism of the theory
of Constitutional interpretation he is thus advancing, and explains it
with scrupulous care.
"This great principle is that the constitution and the laws made in
pursuance thereof are supreme; that they control the constitution and
laws of the respective states, and cannot be controlled by them. From
this, which may be almost termed an axiom, other propositions are
deduced as corollaries, on the truth or error of which ... the cause is
supposed to depend."[840]
That "cause" was not so much the one on the docket of the Supreme Court,
entitled M'Culloch _vs._ Maryland, as it was that standing on the docket
of fate entitled Nationalism _vs._ Localism. And, although Marshall did
not actually address them, everybody knew that he was speaking to the
disunionists who were increasing in numbers and boldness. Everybody
knew, also, that the Chief Justice was, in particular, replying to the
challenge of the Virginia Republican organization as given through the
Court of Appeals of that State.[841]
The corollaries which Marshall deduced from the principle of National
supremacy were: "1st. That a power to create implies a power to
preserve. 2d. That a power to destroy, if wielded by a different hand,
is hostile to, and incompatible with these powers to create and to
preserve. 3d. That where this repugnancy exists, that authority which is
supreme must control, not yield to that over which it is supreme."[842]
It is "too obvious to be denied," continues Marshall that, if permitted
to exercise the power, the States can tax the Bank "so as to destroy
it." The power of taxation is admittedly "sovereign"; but the taxing
power of the States "is subordinate to, and may be controlled by the
constitution of the United States. How far it has been controlled by
that instrument must be a question of construction. In making this
construction, no principle not declared can be admissible, which would
defeat the legitimate operations of a supreme government. It is of the
very essence of supremacy to remove all obstacles to its action within
its own sphere, and so to modify every power vested in subordinate
governments as to exempt its own operations from their own influence.
This effect need not be stated in terms. It is so involved in the
declaration of supremacy, so necessarily implied in it, that the
expression of it could not make it more certain. We must, therefore,
keep it [the principle of National supremacy] in view while construing
the constitution."[843]
Unlimited as is the power of a State to tax objects within its
jurisdiction, that State power does not "extend to those means which are
employed by Congress to carry into execution powers conferred on that
body by the people of the United States ... powers ... given ... to a
government whose laws ... are declared to be supreme.... The right never
existed [in the States] ... to tax the means employed by the government
of the Union, for the execution of its powers."[844]
Regardless of this fact, however, can States tax instrumentalities of
the National Government? It cannot be denied, says Marshall, that "the
power to tax involves the power to destroy; that the power to destroy
may defeat ... the power to create; that there is a plain repugnance, in
conferring on one government a power to control the constitutional
measures of another, which other, with respect to those very measures,
is declared to be supreme over that which exerts the control."[845]
Here Marshall permits himself the use of sarcasm, which he dearly loved
but seldom employed. The State Rights advocates insisted that the States
can be trusted not to abuse their powers--confidence must be reposed in
State Legislatures and officials; they would not destroy needlessly,
recklessly. "All inconsistencies are to be reconciled by the magic of
the word CONFIDENCE," says Marshall. "But," he continues, "is this a
case of 'confidence'? Would the people of any one state trust those of
another with a power to control the most insignificant operations of
their state government? We know they would not."
By the same token the people of one State would never consent that the
Government of another State should control the National Government "to
which they have confided the most important and most valuable interests.
In the legislature of the Union alone, are all represented. The
legislature of the Union alone, therefore, can be trusted by the people
with the power of controlling measures which concern all, in the
confidence that it will not be abused. This, then, is not a case of
confidence."[846]
The State Rights theory is "capable of arresting all the measures of the
government, and of prostrating it at the foot of the states." Instead of
the National Government being "supreme," as the Constitution declares it
to be, "supremacy" would be transferred "in fact, to the states"; for,
"if the states may tax one instrument, employed by the government in the
execution of its powers, they may tax any and every other instrument.
They may tax the mail; they may tax the mint; they may tax
patent-rights; they may tax the papers of the custom-house; they may tax
judicial process; they may tax all the means employed by the government,
to an excess which would defeat all the ends of government. This was not
intended by the American people. They did not design to make their
government dependent on the states."
The whole question is, avows Marshall, "in truth, a question of
supremacy." If the anti-National principle that the States can tax the
instrumentalities of the National Government is to be sustained, then
the declaration in the Constitution that it and laws made under it
"shall be the supreme law of the land, is empty and unmeaning
declamation."[847]
Maryland had argued that, since the taxing power is, at least,
"concurrent" in the State and National Governments, the States can tax a
National bank as fully as the Nation can tax State banks. But, remarks
Marshall, "the two cases are not on the same reason." The whole American
people and all the States are represented in Congress; when they tax
State banks, "they tax their constituents; and these taxes must be
uniform. But, when a state taxes the operations of the government of the
United States, it acts upon institutions created, not by their own
constituents, but by people over whom they claim no control. It acts
upon the measures of a government created by others as well as
themselves, for the benefit of others in common with themselves.
"The difference is that which always exists, and always must exist,
between the action of the whole on a part, and the action of a part on
the whole--between the laws of a government declared to be supreme, and
those of a government which, when in opposition to those laws, is not
supreme.... The states have no power, by taxation or otherwise, to
retard, impede, burden, or in any manner control the operations of the
constitutional laws enacted by Congress to carry into execution the
powers vested in the general government."[848]
For these reasons, therefore, the judgment of the Supreme Court was that
the Maryland law taxing the Baltimore branch of the National Bank was
"contrary to the constitution ... and void"; that the judgment of the
Baltimore County Court against the branch bank "be reversed and
annulled," and that the judgment of the Maryland Court of Appeals
affirming the judgment of the County Court also "be reversed and
annulled."[849]
In effect John Marshall thus rewrote the fundamental law of the Nation;
or, perhaps it may be more accurate to say that he made a written
instrument a living thing, capable of growth, capable of keeping pace
with the advancement of the American people and ministering to their
changing necessities. This greatest of Marshall's treatises on
government may well be entitled the "Vitality of the Constitution."
Story records that Marshall's opinion aroused great political
excitement;[850] and no wonder, since the Chief Justice announced, in
principle, that Congress had sufficient power to "emancipate every slave
in the United States" as John Randolph declared five years later.[851]
Roane, Ritchie, Taylor, and the Republican organization of Virginia had
anticipated that the Chief Justice would render a Nationalist opinion;
but they were not prepared for the bold and crushing blows which he
rained upon their fanatically cherished theory of Localism. As soon as
they recovered from their surprise and dismay, they opened fire from
their heaviest batteries upon Marshall and the National Judiciary. The
way was prepared for them by a preliminary bombardment in the _Weekly
Register_ of Hezekiah Niles.
This periodical had now become the most widely read and influential
publication in the country; it had subscribers from Portland to New
Orleans, from Savannah to Fort Dearborn. Niles had won the confidence of
his far-flung constituency by his honesty, courage, and ability. He was
the prototype of Horace Greeley, and the _Register_ had much the same
hold on its readers that the _Tribune_ came to have thirty years later.
In the first issue of the _Register_, after Marshall's opinion was
delivered, Niles began an attack upon it that was to spread all over the
land. "A deadly blow has been struck at the _sovereignty of the states_,
and from a quarter so far removed from the people as to be hardly
accessible to public opinion," he wrote. "The welfare of the union has
received a more dangerous wound than fifty _Hartford_ conventions ...
could inflict." Parts of Marshall's opinion are "_incomprehensible_. But
perhaps, as some people tell us of what _they_ call the _mysteries_ of
religion, the _common people_ are not to understand them, such things
being reserved only for the _priests_!!"[852]
The opinion of the Chief Justice was published in full in Niles's
_Register_ two weeks after he delivered it,[853] and was thus given
wider publicity than any judicial utterance previously rendered in
America. Indeed, no pronouncement of any court, except, perhaps, that in
Gibbons _vs._ Ogden,[854] was read so generally as Marshall's opinion in
M'Culloch _vs._ Maryland, until the publication of the Dred Scott
decision thirty-eight years later. Niles continues his attack in the
number of the _Register_ containing the Bank opinion:
It is "more important than any ever before pronounced by that exalted
tribunal--a tribunal so far removed from the people, that some seem to
regard it with a species of that awful reverence in which the
inhabitants of Asia look up to their princes."[855] This exasperated
sentence shows the change that Marshall, during his eighteen years on
the bench, had wrought in the standing and repute of the Supreme
Court.[856] The doctrines of the Chief Justice amount to this, said
Niles--"congress may grant _monopolies_" at will, "if the _price_ is
paid for them, or without any pecuniary consideration at all." As for
the Chief Justice personally, he "has not added ... to his stock of
reputation by writing it--_it is excessively labored_."[857]
Papers throughout the country copied Niles's bitter criticisms,[858] and
public opinion rapidly crystallized against Marshall's Nationalist
doctrine. Every where the principle asserted by the Chief Justice became
a political issue; or, rather, his declaration, that that principle was
law, made sharper the controversy that had divided the people since the
framing of the Constitution.
In number after number of his _Register_ Niles, pours his wrath on
Marshall's matchless interpretation. It is "far more dangerous to the
union and happiness of the people of the United States than ... _foreign
invasion_.[859] ... Certain nabobs in Boston, New York, Philadelphia and
Baltimore, ... to secure the passage of an act of _incorporation_, ...
fairly purchase the souls of some members of the national legislature
with _money_, as happened in Georgia, or secure the votes of others by
making them _stockholders_, as occurred in New York, and the act is
passed.[860]... We call upon the people, the honest people, who hate
_monopolies_ and _privileged orders_, to arise in their strength and
purge our political temple of the _money-changers_ and those who sell
_doves_--causing a reversion to the original purity of our system of
government, that the faithful centinel may again say, 'ALL'S
WELL!'"[861]
Extravagant and demagogical as this language of Niles's now seems, he
was sincere and earnest in the use of it. Copious quotations from the
_Register_ have been here made because it had the strongest influence on
American public opinion of any publication of its time. Niles's
_Register_ was, emphatically, the mentor of the country editor.[862]
At last the hour had come when the Virginia Republican triumvirate could
strike with an effect impossible of achievement in 1816 when the Supreme
Court rebuked and overpowered the State appellate tribunal in Martin
_vs._ Hunter's Lessee.[863] Nobody outside of Virginia then paid any
attention to that decision, so obsessed was the country by speculation
and seeming prosperity. But in 1819 the collapse had come; poverty and
discontent were universal; rebellion against Nationalism was under way;
and the vast majority blamed the Bank of the United States for all their
woes. Yet Marshall had upheld "the monster." The Virginia Junto's
opportunity had arrived.
No sooner had Marshall returned to Richmond than he got wind of the
coming assault upon him. On March 23, 1819, the _Enquirer_ published his
opinion in full. The next day the Chief Justice wrote Story: "Our
opinion in the Bank case has aroused the sleeping spirit of Virginia,
if indeed it ever sleeps. It will, I understand, be attacked in the
papers with some asperity, and as those who favor it never write for the
publick it will remain undefended & of course be considered as _damnably
heretical_."[864] He had been correctly informed. The attack came
quickly.
On March 30, Spencer Roane opened fire in the paper of his cousin Thomas
Ritchie, the _Enquirer_,[865] under the _nom de guerre_ of "Amphictyon."
His first article is able, calm, and, considering his intense feelings,
fair and moderate. Roane even extols his enemy:
"That this opinion is very able every one must admit. This was to have
been expected, proceeding as it does from a man of the most profound
legal attainments, and upon a subject which has employed his thoughts,
his tongue, and his pen, as a politician, and an historian for more than
thirty years. The subject, too, is one which has, perhaps more than any
other, heretofore drawn a broad line of distinction between the two
great parties in this country, on which line no one has taken a more
distinguished and decided rank than the judge who has thus expounded the
supreme law of the land. It is not in my power to carry on a contest
upon such a subject with a man of his gigantic powers."[866]
Niles had spoken to "the plain people"; Roane is now addressing the
lawyers and judges of the country. His essay is almost wholly a legal
argument. It is based on the Virginia Resolutions of 1799 and gives the
familiar State Rights arguments, applying them to Marshall's
opinion.[867] In his second article Roane grows vehement, even fiery,
and finally exclaims that Virginia "never will _employ force to support
her doctrines till other measures have entirely failed_."[868]
His attacks had great and immediate response. No sooner had copies of
the _Enquirer_ containing the first letters of Amphictyon reached
Kentucky than the Republicans of that State declared war on Marshall. On
April 20, the _Enquirer_ printed the first Western response to Roane's
call to arms. Marshall's principles, said the Kentucky correspondent,
"must raise an alarm throughout our widely extended empire.... The
people must rouse from the lap of Delilah and prepare to meet the
Philistines.... No mind can compass the extent of the encroachments upon
State and individual rights which may take place under the principles of
this decision."[869]
[Illustration: SPENCER ROANE]
Even Marshall, a political and judicial veteran in his sixty-fifth
year, was perturbed. "The opinion in the Bank case continues to be
denounced by the democracy in Virginia," he writes Story, after the
second of Roane's articles appeared. "An effort is certainly making to
induce the legislature which will meet in December to take up the
subject & to pass resolutions not very unlike those which were called
forth by the alien & sedition laws in 1799. Whether the effort will be
successful or not may perhaps depend in some measure on the sentiments
of our sister states. To excite this ferment the opinion has been
grossly misrepresented; and where its argument has been truly stated it
has been met by principles one would think too palpably absurd for
intelligent men.
"But," he gloomily continues, "prejudice will swallow anything. If the
principles which have been advanced on this occasion were to prevail the
constitution would be converted into the old confederation."[870]
As yet Roane had struck but lightly. He now renewed the Republican
offensive with greater spirit. During June, 1819, the _Enquirer_
published four articles signed "Hampden," from Roane's pen. Ritchie
introduced the "Hampden" essays in an editorial in which he urged the
careful reading of the exposure "of the alarming errors of the Supreme
Court.... Whenever State rights are threatened or invaded, Virginia will
not be the last to sound the tocsin."[871]
Are the people prepared "to give _carte blanche_ to our federal rulers"?
asked Hampden. Amendment of the Constitution by judicial interpretation
is taking the place of amendment by the people. Infamous as the methods
of National judges had been during the administration of Adams, "the
most abandoned of our rulers," Marshall and his associates have done
worse. They have given "a _general_ letter of attorney to the future
legislators of the Union.... That man must be a deplorable idiot who
does not see that there is no ... difference" between an "_unlimited_
grant of power and a grant limited in its terms, but accompanied with
_unlimited_ means of carrying it into execution.... The crisis is one
which portends destruction to the liberties of the American people."
Hampden scoldingly adds: "If Mason or Henry could lift their patriot
heads from the grave, ... they would almost exclaim, with Jugurtha,
'Venal people! you will soon perish if you can find a purchaser.'"[872]
For three more numbers Hampden pressed the Republican assault on
Marshall's opinion. The Constitution is a "_compact_, to which the
_States_ are the parties." Marshall's argument in the Virginia
Convention of 1788 is quoted,[873] and his use of certain terms in his
"Life of Washington" is cited.[874] If the powers of the National
Government ought to be enlarged, "let this be the act of the _people_,
and not that of subordinate agents."[875] The opinion of the Chief
Justice repeatedly declares "that the general government, though limited
in its powers, is supreme." Hampden avows that he does "not understand
this jargon.... The _people_ only are supreme.[876]... Our general
government ... is as much a ... 'league' as was the former
confederation." Therefore, the Virginia Court of Appeals, in Hunter
_vs._ Fairfax, declared an act of Congress "unconstitutional, although
it had been sanctioned by the opinion of the Supreme Court of the United
States." Pennsylvania, too, had maintained its "sovereignty."[877]
Hampden has only scorn for "_some_ of the judges" who concurred in the
opinion of the Chief Justice. They "had before been accounted
republicans.... Few men come out from high places, as pure as they went
in."[878] If Marshall's doctrine stands, "the triumph over our liberties
will be ... easy and complete." What, then, could "arrest this
calamity"? Nothing but an "appeal" to the people. Let this majestic and
irresistible power be invoked.[879]
That he had no faith in his own theory is proved by the rather dismal
fact that, more than two months before Marshall "violated the
Constitution" and "endangered the liberties" of the people by his Bank
decision, Roane actually arranged for the purchase, as an investment for
his son, of $4900 worth of the shares of the Bank of the United States,
and actually made the investment.[880] This transaction, consummated
even before the argument in M'Culloch _vs._ Maryland, shows that Roane,
the able lawyer, was sure that Marshall would and ought to sustain the
Bank in its controversy with the States that were trying to destroy it.
Moreover, Dr. John Brockenbrough, President of the Bank of Virginia,
actually advised the investment.[881]
It is of moment, too, to note at this point the course taken by
Marshall, who had long owned stock in the Bank of the United States. As
soon as he learned that the suit had been brought which, of a certainty,
must come before him, the Chief Justice disposed of his holdings.[882]
So disturbed was Marshall by Roane's attacks that he did a thoroughly
uncharacteristic thing. By way of reply to Roane he wrote, under the
_nom de guerre_ of "A Friend of the Union," an elaborate defense of his
opinion and, through Bushrod Washington, procured the publication of it
in the _Union_ of Philadelphia, the successor of the _Gazette of the
United States_, and the strongest Federalist newspaper then surviving.
On June 28, 1819, the Chief Justice writes Washington: "I expected three
numbers would have concluded my answer to Hampden but I must write two
others which will follow in a few days. If the publication has not
commenced I could rather wish the signature to be changed to 'A
Constitutionalist.' A Friend of the Constitution is so much like a
Friend of the Union that it may lead to some suspicion of identity.... I
hope the publication has commenced unless the Editor should be unwilling
to devote so much of his paper to this discussion. The letters of
Amphyction & of Hampden have made no great impression in Richmond but
they were designed for the country [Virginia] & have had considerable
influence there. I wish the refutation to be in the hands of some
respectable members of the legislature as it may prevent some act of the
assembly [torn--probably "both"] silly & wicked. If the publication be
made I should [like] to have two or three sets of the papers to hand if
necessary. I will settle with you for the printer."[883]
The reading of Marshall's newspaper effort is exhausting; a summary of
the least uninteresting passages will give an idea of the whole paper.
The articles published in the _Enquirer_ were intended, so he wrote, to
inflict "deep wounds on the constitution," are full of "mischievous
errours," and are merely new expressions of the old Virginia spirit of
hostility to the Nation. The case of M'Culloch _vs._ Maryland serves
only as an excuse "for once more agitating the publick mind, and
reviving those unfounded jealousies by whose blind aid ambition climbs
the ladder of power."[884]
After a long introduction, Marshall enters upon his defense which is as
wordy as his answer to the Virginia Resolutions. He is sensitive over
the charge, by now popularly made, that he controls the Supreme Court,
and cites the case of the Nereid to prove that the Justices give
dissenting opinions whenever they choose. "The course of every tribunal
must necessarily be, that the opinion which is to be delivered as the
opinion of the court, is previously submitted to the consideration of
all the judges; and, if any part of the reasoning be disapproved, it
must be so modified as to receive the approbation of all, before it can
be delivered as the opinion of all."
Roane's personal charges amount to this: "The chief justice ... is a
federalist; who was a politician of some note before he was judge; and
who with his tongue and his pen supported the opinions he avowed." With
the politician's skill Marshall uses the fact that the majority of the
court, which gave the Nationalist judgment in M'Culloch _vs._ Maryland,
were Republicans--"four of whom [Story, Johnson, Duval, and Livingston]
have no political sin upon their heads;--who in addition to being
eminent lawyers, have the still greater advantage of being sound
republicans; of having been selected certainly not for their federalism,
by Mr Jefferson, and Mr Madison, for the high stations they so properly
fill." For eight tedious columns of diffuse repetition Marshall goes on
in defense of his opinion.[885]
When the biographer searches the daily life of a man so surpassingly
great and good as Marshall, he hopes in no ungenerous spirit to find
some human frailty that identifies his hero with mankind. The Greeks did
not fail to connect their deities with humanity. The leading men of
American history have been ill-treated in this respect--for a century
they have been held up to our vision as superhuman creatures to admire
whom was a duty, to criticize whom was a blasphemy, and to love or
understand whom was an impossibility.
All but Marshall have been rescued from this frigid isolation. Any
discovery of human frailty in the great Chief Justice is, therefore,
most welcome. Some small and gracious defects in Marshall's character
have appeared in the course of these volumes; and this additional
evidence of his susceptibility to ordinary emotion is very pleasing.
With all his stern repression of that element of his character, we find
that he was sensitive in the extreme; in reality, thirsting for
approval, hurt by criticism. In spite of this desire for applause and
horror of rebuke, however, he did his duty, knowing beforehand that his
finest services would surely bring upon him the denunciation and abuse
he so disliked. By such peevishness as his anonymous reply in the
_Union_ to Roane's irritating attacks, we are able to get some measure
of the true proportions of this august yet very human character.
When Marshall saw, in print, this controversial product of his pen, he
was disappointed and depressed. The editor had, he avowed, so confused
the manuscript that it was scarcely intelligible. At any rate, Marshall
did not want his defense reproduced in New England. Story had heard of
the article in the _Union_, and wrote Marshall that he wished to secure
the publication of it. The Chief Justice replied:
"The piece to which you allude was not published in Virginia. Our
patriotic papers admit no such political heresies. It contained, I
think, a complete demonstration of the fallacies & errors contained in
those attacks on the opinion of the Court which have most credit here &
are supposed to proceed from a high source,[886] but was so mangled in
the publication that those only who had bestowed close attention to the
subject could understand it.
"There were two numbers[887] & the editor of the Union in Philadelphia,
the paper in which it was published, had mixed the different numbers
together so as in several instances to place the reasoning intended to
demonstrate one proposition under another. The points & the arguments
were so separated from each other, & so strangely mixed as to constitute
a labyrinth to which those only who understood the whole subject
perfectly could find a clue."[888]
It appears that Story insisted on having at least Marshall's rejoinder
to Roane's first article reproduced in the Boston press. Again the Chief
Justice evades the request of his associate and confidant: "I do not
think a republication of the piece you mention in the Boston papers to
be desired, as the antifederalism of Virginia will not, I trust, find
its way to New England. I should also be sorry to see it in Mr.
Wheaton's[889] appendix because that circumstance might lead to
suspicions regarding the author & because I should regret to see it
republished in its present deranged form with the two centres
transposed."[890]
For a brief space, then, the combatants rested on their arms, but each
was only gathering strength for the inevitable renewal of the engagement
which was to be sterner than any previous phases of the contest.
Soon after the convening of the first session of the Virginia
Legislature held subsequent to the decision of M'Culloch _vs._ Maryland,
Roane addressed the lawmakers through the _Enquirer_, now signing
himself "Publicola." He pointed out the "absolute disqualification of
the supreme court of the U. S. to decide with impartiality upon
controversies between the General and State Governments";[891] and, to
"ensure _unbiassed_" decisions, insisted upon a Constitutional amendment
to establish a tribunal "(as occasion may require)" appointed partly by
the States and partly by the National Government, "with _appellate_
jurisdiction from the present supreme court."[892]
Promptly a resolution against Marshall's opinion was offered in the
House of Delegates.[893] This noteworthy paper was presented by Andrew
Stevenson, a member of the "committee for Courts of Justice."[894] The
resolutions declared that the doctrines of M'Culloch _vs._ Maryland
would "undermine the pillars of the Constitution itself." The provision
giving to the judicial power "_all cases_ arising _under the
Constitution_" did not "extend to questions which would amount to a
subversion of the constitution itself, by the usurpation of one
contracting party on another." But Marshall's opinion was calculated to
"change the whole character of the government."[895]
Sentences from the opinion of the Chief Justice are quoted, including
the famous one: "Let the end be legitimate, ... and all the means which
are appropriate, ... which are not prohibited, ... are constitutional."
Did not such expressions import that Congress could "conform the
constitution to their own designs" by the exercise of "unlimited and
uncontrouled" power? The ratifying resolution of the Constitution by the
Virginia Convention of 1788 is quoted.[896] Virginia's voice had been
heard to the same effect in the immortal Resolutions of 1799. Her views
had been endorsed by the country in the Presidential election of
1800--that "great revolution of principle." Her Legislature, therefore,
"enter their most solemn protest, against the decision of the supreme
court, and of the principles contained in it."
In this fashion the General Assembly insisted on an amendment to the
National Constitution "creating a _tribunal_" authorized to decide
questions relative to the "powers of the general and state governments,
under the compact." The Virginia Senators are, therefore, instructed to
do their best to secure such an amendment and "to resist on every
occasion" attempted legislation by Congress in conflict with the views
set forth in this resolution or those of 1799 "which have been
re-considered, and are fully and entirely approved of by this Assembly."
The Governor is directed to transmit the resolutions to the other
States.[897]
At this point Slavery and Secession enter upon the scene. Almost
simultaneously with the introduction of the resolutions denouncing
Marshall and the Supreme Court for the judgment and opinion in M'Culloch
_vs._ Maryland, other resolutions were offered by a member of the House
named Baldwin denouncing the imposition of restrictions on Missouri (the
prohibition of slavery) as a condition of admitting that Territory to
the Union. Such action by Congress would "excite feelings eminently
hostile to the fraternal affection and prudent forbearance which ought
ever to pervade the confederated union."[898] Two days later, December
30, the same delegate introduced resolutions to the effect that only the
maintenance of the State Rights principle could "preserve the
confederated union," since "no government can long exist which lies at
the mercy of another"; and, inferentially, that Marshall's opinion in
M'Culloch _vs._ Maryland had violated that principle.[899]
A yet sterner declaration on the Missouri question quickly followed,
declaring that Congress had no power to prohibit slavery in that State,
and that "Virginia will support the good people of Missouri in their
just rights ... and will co-operate with them in resisting with manly
fortitude any attempt which Congress may make to impose restraints or
restrictions as the price of their admission" to the Union.[900] The
next day these resolutions, strengthened by amendment, were
adopted.[901] On February 12, 1820, the resolutions condemning the
Nationalist doctrine expounded by the Chief Justice in the Bank case
also came to a vote and passed, 117 ayes to 38 nays.[902] They had been
amended and reamended,[903] but, as adopted, they were in substance the
same as those originally offered by Stevenson. Through both these sets
of resolutions--that on the Missouri question and that on the Bank
decision--ran the intimation of forcible resistance to National
authority. Introduced at practically the same time, drawn and advocated
by the same men, passed by votes of the same members, these important
declarations of the Virginia Legislature were meant to be and must be
considered as a single expression of the views of Virginia upon National
policy.
In this wise did the Legislature of his own State repudiate and defy
that opinion of John Marshall which has done more for the American
Nation than any single utterance of any other one man, excepting only
the Farewell Address of Washington. In such manner, too, was the slavery
question brought face to face with Marshall's lasting exposition of the
National Constitution. For, it should be repeated, in announcing the
principles by virtue of which Congress could establish the Bank of the
United States, the Chief Justice had also asserted, by necessary
inference, the power of the National Legislature to exact the exclusion
of slavery as a condition upon which a State could be admitted to the
Union. At least this was the interpretation of Virginia and the South.
The slavery question did not, to be sure, closely touch Northern States,
but their local interests did. Thus it was that Ohio aligned herself
with Virginia in opposition to Marshall's Nationalist statesmanship, and
in support of the Jeffersonian doctrine of Localism. In such fashion did
the Ohio Bank question become so intermingled with the conflict over
Slavery and Secession that, in the consideration of Marshall's opinions
at this time, these controversies cannot be separated. The facts of the
Ohio Bank case must, therefore, be given at this point.[904]
Since the establishment at Cincinnati, early in 1817, of a branch of
the Bank of the United States, Ohio had threatened to drive it from the
State by a prohibitive tax. Not long before the argument of M'Culloch
_vs._ Maryland in the Supreme Court, the Ohio Legislature laid an annual
tax of $50,000 on each of the two branches which, by that time, had been
established in that State.[905] On February 8, 1819, only four days
previous to the hearing of the Maryland case at Washington, and less
than a month before Marshall delivered his opinion, the Ohio lawmakers
passed an act directing the State Auditor, Ralph Osborn, to charge this
tax of $50,000 against each of the branches, and to issue a warrant for
the immediate collection of $100,000, the total amount of the first
year's tax.
This law is almost without parallel in severity, peremptoriness, and
defiant contempt for National authority. If the branches refused to pay
the tax, the Ohio law enjoined the person serving the State Auditor's
warrant to seize all money or property belonging to the Bank, found on
its premises or elsewhere. The agent of the Auditor was directed to open
the vaults, search the offices, and take everything of value.[906]
Immediately the branch at Chillicothe obtained from the United States
District Court, then in session at that place, an injunction forbidding
Osborn from collecting the tax;[907] but the bank's counsel forgot to
have a writ issued to stay the proceedings. Therefore, no order of the
court was served; instead a copy of the bill praying that the Auditor be
restrained, together with a subpoena to answer, was sent to Osborn.
These papers were not, of course, an injunction, but merely notice that
one had been applied for. Thinking to collect the tax before the
injunction could be issued, Osborn forthwith issued his Auditor's
warrant to one John L. Harper to collect the tax immediately. Assisted
by a man named Thomas Orr, Harper entered the Chillicothe branch of the
Bank of the United States, opened the vaults, seized all the money to be
found, and deposited it for the night in the local State bank. Next
morning Harper and Orr loaded the specie, bank notes, and other
securities in a wagon and started for Columbus.[908]
The branch bank tardily obtained an order from the United States Court
restraining Osborn, the State Auditor, and Harper, the State agent, from
delivering the money to the State Treasurer and from making any report
to the Legislature of the collection of the tax. This writ was served on
Harper as he and Orr were on the road to the State Capital with the
money. Harper simply ignored the writ, drove on to Columbus, and handed
over to the State Treasurer the funds which he had seized at
Chillicothe.
Harper and Orr were promptly arrested and imprisoned in the jail at
Chillicothe.[909] Because of technical defects in serving the warrant
for their arrest and in the return of the marshal, the prisoners were
set free.[910] An order was secured from the United States Court
directing Osborn and Harper to show cause why an attachment should not
be issued against them for having disobeyed the court's injunction not
to deliver the bank's money to the State Treasurer. After extended
argument, the court issued the attachment, which, however, was not made
returnable until the January term, 1821.
Meanwhile the Virginia Legislature passed its resolutions denouncing
Marshall's opinion in M'Culloch _vs._ Maryland, and throughout the
country the warfare upon the Supreme Court began. The Legislature of
Ohio acted with a celerity and boldness that made the procedure of the
Virginia Legislature seem hesitant and timid. A joint committee was
speedily appointed and as promptly made its report. This report and the
resolutions recommended by it were adopted without delay and transmitted
to the Senate of the United States.[911]
The Ohio declaration is drawn with notable ability. A State cannot be
sued--the true meaning of the Constitution forbids, and the Eleventh
Amendment specifically prohibits, such procedure.
Yet the action against Osborn, State Auditor, and Samuel Sullivan, State
Treasurer, is, "to every substantial purpose, a process against the
State." The decision of the National Supreme Court that the States have
no power to tax branches of the Bank of the United States does not bind
Ohio or render her tax law "a dead letter."[912]
The Ohio Legislature challenges the _bona fides_ of M'Culloch _vs._
Maryland: "If, by the management of a party, and through the
inadvertence or connivance of a State, a case be made, presenting to the
Supreme Court of the United States for decision important ... questions
of State power and State authority, upon no just principle ought the
States to be concluded by any decision had upon such a case.... Such is
the true character of the case passed upon the world by the title of
McCulloch _vs._ Maryland," which, "when looked into, is found to be ...
throughout, an agreed case, made expressly for the purpose of obtaining
the opinion of the Supreme Court of the United States.... This agreed
case was manufactured in the summer of the year 1818" and rushed through
two Maryland courts, "so as to be got upon the docket of the Supreme
Court of the United States for adjudication at their February term,
1819.... It is truly an alarming circumstance if it be in the power of
an aspiring corporation and an unknown and obscure individual thus to
elicit opinions compromitting the vital interests of the States that
compose the American Union."
Luckily for Ohio and all the States, this report goes on to say, some
of Marshall's opinions have been "totally impotent and unavailing," as,
for instance, in the case of Marbury _vs._ Madison. Marbury did not get
his commission; "the person appointed in his place continued to act; his
acts were admitted to be valid; and President Jefferson retained his
standing in the estimation of the American people." It was the same in
the case of Fletcher _vs._ Peck. Marshall held that "the Yazoo
purchasers ... were entitled to their lands. But the decision availed
them nothing, unless as a make-weight in effecting a compromise." Since,
in neither of these cases, had the National Government paid the
slightest attention to the decision of the Supreme Court, how could Ohio
"be condemned because she did not abandon her solemn legislative acts as
a dead letter upon the promulgation of an opinion of that
tribunal"?[913]
The Ohio Legislature then proceeds to analyze Marshall's opinion in
M'Culloch _vs._ Maryland. All the arguments made against the principle
of implied powers since Hamilton first announced that principle,[914]
and all the reasons advanced against the doctrine that the National
Government is supreme, in the sense employed by Marshall, are restated
with clearness and power. However, since the object of the tax was to
drive the branches of the Bank out of Ohio, the Legislature suggests a
compromise. If the National institution will cease business within the
State and "give assurance" that the branches be withdrawn, the State
will refund the tax money it has seized.[915]
Instantly turning from conciliation to defiance, "because the reputation
of the State has been assailed," the Legislature challenges the National
Government to make good Marshall's assertion that the power which
created the Bank "must have the power to preserve it." Ohio should pass
laws "forbidding the keepers of our jails from receiving into their
custody any person committed at the suit of the Bank of the United
States," and prohibiting Ohio judges, recorders, notaries public, from
recognizing that institution in any way.[916] Congress will then have to
provide a criminal code, a system of conveyances, and other extensive
measures. Ohio and the country will then learn whether the power that
created the Bank can preserve it.
The Ohio memorial concludes with a denial that the "political rights"
and "sovereign powers" of a State can be settled by the Supreme Court of
the Nation "in cases contrived between individuals, and where they [the
States] are, no one of them, parties direct." The resolutions further
declare that the opinion of the other States should be secured.[917]
This alarming manifesto was presented to the National Senate on February
1, 1821, just six weeks before Marshall delivered the opinion of the
Supreme Court in Cohens _vs._ Virginia.[918]
Pennsylvania had already taken stronger measures; had anticipated even
Virginia. Within seven weeks from the delivery of Marshall's opinion in
M'Culloch _vs._ Maryland, the Legislature of Pennsylvania proposed an
amendment to the National Constitution prohibiting Congress from
authorizing "any bank or other monied institution" outside of the
District of Columbia.[919] The action of Ohio was an endorsement of that
of Virginia and Pennsylvania. Indiana had already swung into line.[920]
So had Illinois and Tennessee.[921] For some reason, Kentucky, soon to
become one of the most belligerent and persevering of all the States in
her resistance to the "encroachments" of Nationalism as expounded by the
Supreme Court, withheld her hand for the moment.
Most unaccountably, South Carolina actually upheld Marshall's
opinion,[922] which that State, within a decade, was to repudiate,
denounce, and defy in terms of armed resistance.[923] New York and
Massachusetts,[924] consulting their immediate interests, were very
stern against the Localism of Ohio, Virginia, and Pennsylvania.[925]
Georgia expressed her sympathy with the Localist movement, but, for the
time being, was complaisant[926]--a fact the more astonishing that she
had already proved, and was soon to prove again, that Nationalism is a
fantasy unless it is backed by force.[927]
Notwithstanding the eccentric attitude of various members of the Union,
it was only too plain that a powerful group of States were acting in
concert and that others ardently sympathized with them.
At this point, in different fashion, Virginia spoke again, this time by
the voice of that great protagonist of Localism, John Taylor of
Caroline, the originator of the Kentucky Resolutions,[928] and the most
brilliant mind in the Republican organization of the Old Dominion.
Immediately after Marshall's opinion in M'Culloch _vs._ Maryland, and
while the Ohio conflict was in progress, he wrote a book in denunciation
and refutation of Marshall's Nationalist principles. The editorial by
Thomas Ritchie, commending Taylor's book, declares that "the crisis has
come"; the Missouri question, the Tariff question, the Bank question,
have brought the country to the point where a decision must be made as
to whether the National Government shall be permitted to go on with its
usurpations. "If there is any book capable of arousing the people, it is
the one before us."
Taylor gave to his volume the title "Construction Construed, and
Constitutions Vindicated." The phrases "exclusive interests" and
"exclusive privileges" abound throughout the volume. Sixteen chapters
compose this classic of State Rights philosophy. Five of them are
devoted to Marshall's opinion in M'Culloch _vs._ Maryland; the others to
theories of government, the state of the country, the protective tariff,
and the Missouri question. The principles of the Revolution, avows
Taylor, "are the keys of construction" and "the locks of
liberty.[929]... No form of government can foster a fanaticism for
wealth, without being corrupted." Yet Marshall's ideas establish "the
despotick principle of a gratuitous distribution of wealth and poverty
by law."[930]
If the theory that Congress can create corporations should prevail,
"legislatures will become colleges for teaching the science of getting
money by monopolies or favours."[931] To pretend faith in Christianity,
and yet foster monopoly, is "like placing Christ on the car of
Juggernaut."[932] The framers of the National Constitution tried to
prevent the evils of monopoly and avarice by "restricting the powers
given to Congress" and safeguarding those of the States; "in fact, by
securing the freedom of property."[933]
Marshall is enamored of the word "sovereignty," an "equivocal and
illimitable word," not found in "the declaration of independence, nor
the federal constitution, nor the constitution of any single state"; all
of them repudiated it "as a traitor of civil rights."[934] Well that
they had so rejected this term of despotism! No wonder Jugurtha
exclaimed, "Rome was for sale," when "the government exercised an
absolute power over the national property." Of course it would "find
purchasers."[935] To this condition Marshall's theories will bring
America.
[Illustration: JOHN TAYLOR]
Whence this effort to endow the National Government with powers
comparable to those of a monarchy? Plainly it is a reaction--"many wise
and good men, ... alarmed by the illusions of Rousseau and Godwin, and
the atrocities of the French revolution, honestly believe that these
[democratic] principles have teeth and claws, which it is expedient to
draw and pare, however constitutional they may be; without considering
that such an operation will subject the generous lion to the wily
fox; ... subject liberty and property to tyranny and fraud."[936]
In chapter after chapter of clever arguments, illumined by the sparkle
of such false gems as these quotations, Taylor prepares the public mind
for his direct attack on John Marshall. He is at a sad disadvantage; he,
"an unknown writer," can offer only "an artless course of reasoning"
against the "acute argument" of Marshall's opinion, concurred in by the
members of the Supreme Court whose "talents," "integrity,"
"uprightness," and "erudition" are universally admitted.[937] The
essence of Marshall's doctrine is that, although the powers of the
National Government are limited, the means by which they may be executed
are unlimited. But, "as ends may be made to beget means, so means may be
made to beget ends, until the co-habitation shall rear a progeny of
unconstitutional bastards, which were not begotten by the people."[938]
Marshall had said that "'the creation of a corporation appertains to
sovereignty.'" This is the language of tyranny. The corporate idea crept
into British law "wherein it hides the heart of a prostitute under the
habiliments of a virgin."[939] But since, in America, only the people
are "sovereign," and, to use Marshall's own words, the power to create
corporations "appertains to sovereignty," it follows that neither State
nor National Governments can create corporations.[940]
The Chief Justice is a master of the "science of verbality" by which the
Constitution may be rendered "as unintelligible, as a single word would
be made by a syllabick dislocation, or a jumble of its letters; and turn
it into a reservoir of every meaning for which its expounder may have
occasion."
Where does Marshall's "artifice of verbalizing" lead?[941] To an
"artificially reared, a monied interest ... which is gradually obtaining
an influence over the federal government," and "craftily works upon the
passions of the states it has been able to delude" [on the slavery
question], "to coerce the defrauded and discontented states into
submission." For this reason talk of civil war abounds. "For what are
the states talking about disunion, and for what are they going to war
among themselves? To create or establish a monied sect, composed of
privileged combinations, as an aristocratical oppressor of them
all."[942] Marshall's doctrine that Congress may bestow "exclusive
privileges" is at the bottom of the Missouri controversy. "Had the
motive ... never existed, the discussion itself would never have
existed; but if the same cause continues, more fatal controversies may
be expected."[943]
Finally Taylor hurls at the Nation the challenge of the South, which the
representatives of that section, from the floor of Congress, quickly
repeated in threatenings of civil war.[944] "There remains a right,
anterior to every political power whatsoever, ... the natural right of
self-defence.... It is allowed, on all hands, that danger to the
slave-holding states lurks in their existing situation, ... and it must
be admitted that the right of self-defence applies to that situation....
I leave to the reader the application of these observations."[945]
Immediately upon its publication, Ritchie sent a copy of Taylor's book
to Jefferson, who answered that he knew "before reading it" that it
would prove "orthodox." The attack upon the National courts could not be
pressed too energetically: "The judiciary of the United States is the
subtle corps of sappers and miners constantly working under ground to
undermine the foundations of our confederated fabric.... An opinion is
huddled up in conclave, perhaps by a majority of one, delivered as if
unanimous, and with the silent acquiescence of lazy and timid
associates, by a crafty chief judge, who sophisticates the law to his
mind, by the turn of his own reasoning."[946]
FOOTNOTES:
[784] These penalties were forfeits of $500 for every offense--a sum
that would have aggregated hundreds of thousands, perhaps millions of
dollars, in the case of the Baltimore branch, which did an enormous
business. The Maryland law also provided that "every person having any
agency in circulating" any such unauthorized note of the Bank should be
fined one hundred dollars. (Act of Feb. 11, 1818, _Laws of Maryland_,
174.)
[785] Story to White, March 3, 1819, Story, I, 325.
[786] Webster always dressed with extreme care when he expected to make
a notable speech or argument. For a description of his appearance on
such an occasion see Sargent: _Public Men and Events_, I, 172.
[787] 4 Wheaton, 323.
[788] _Ib._ 324.
[789] _Ib._ 327.
[790] _Ib._ 328.
[791] 4 Wheaton, 330 _et seq._
[792] _Ib._ 362 _et seq._
[793] _Ib._ 272-73.
[794] _Ib._ 374.
[795] Tyler: _Memoir of Roger Brooke Taney_, 141.
[796] The student should carefully examine Pinkney's argument. Although
the abstract of it given in Wheaton's report is very long, a painstaking
study of it will be helpful to a better understanding of the development
of American Constitutional law. (4 Wheaton, 377-400.)
[797] Story to White, March 3, 1819, Story, I, 324-25.
[798] 4 Wheaton, 426.
[799] See _supra_, chap. V.
[800] Webster to Mason, Feb. 24, 1819, Van Tyne, 78-79.
[801] Webster to Smith, Feb. 28, 1819, _ib._ 79-80.
[802] From February 22 to February 27 and from March 1 to March 3, 1819.
[803] February 18, 1819. See _Annals_, 15th Cong. 2d Sess. 1240.
[804] _Ib._ 1242.
[805] _Annals_, 15th Cong. 2d Sess. 1249-50.
[806] _Ib._ 1254.
[807] _Ib._ 1286.
[808] _Ib._ 1311.
[809] _Ib._ 1404-06.
[810] "Marshall's opinion in M'Culloch _vs._ Maryland, is perhaps the
most celebrated Judicial utterance in the annals of the English speaking
world." (_Great American Lawyers_: Lewis, II, 363.)
[811] As the biographer of Washington, Marshall had carefully read both
Hamilton's and Jefferson's Cabinet opinions on the constitutionality of
a National bank. Compare Hamilton's argument (vol. II, 72-74, of this
work) with Marshall's opinion in M'Culloch _vs._ Maryland.
[812] 4 Wheaton, 400.
[813] _Ib._ (Italics the author's.)
[814] 4 Wheaton, 400-02.
[815] "In discussing this question, the counsel for the state of
Maryland have deemed it of some importance, in the construction of the
constitution, to consider that instrument not as emanating from the
people, but as the act of sovereign and independent states. The powers
of the general government, it has been said, are delegated by the
states, who alone are truly sovereign; and must be exercised in
subordination to the states, who alone possess supreme dominion.
"It would be difficult to sustain this proposition. The convention which
framed the constitution was indeed elected by the state legislatures.
But the instrument, when it came from their hands, was a mere proposal,
without obligation, or pretensions to it. It was reported to the then
existing Congress of the United States, with a request that it might 'be
submitted to a convention of delegates, chosen in each state, by the
people thereof, under the recommendation of its legislature, for their
assent and ratification.' This mode of proceeding was adopted; and by
the convention, by Congress, and by the state legislatures, the
instrument was submitted to the people.
"They acted upon it in the only manner in which they can act safely,
effectively, and wisely, on such a subject, by assembling in convention.
It is true, they assembled in their several states--and where else
should they have assembled? No political dreamer was ever wild enough to
think of breaking down the lines which separate the states, and of
compounding the American people into one common mass. Of consequence,
when they act, they act in their states. But the measures they adopt do
not, on that account, cease to be the measures of the people themselves,
or become the measures of the state governments. From these conventions
the constitution derives its whole authority." (4 Wheaton, 402-03.)
[816] 4 Wheaton, 403-04.
[817] _Ib._ 405.
[818] The Nationalist ideas of Marshall and Lincoln are identical; and
their language is so similar that it seems not unlikely that Lincoln
paraphrased this noble passage of Marshall and thus made it immortal.
This probability is increased by the fact that Lincoln was a profound
student of Marshall's Constitutional opinions and committed a great many
of them to memory.
The famous sentence of Lincoln's Gettysburg Address was, however, almost
exactly given by Webster in his Reply to Hayne: "It is ... the people's
Government; made for the people; made by the people; and answerable to
the people." (_Debates_, 21st Cong. 1st Sess. 74; also Curtis, I,
355-61.) But both Lincoln and Webster merely stated in condensed and
simpler form Marshall's immortal utterance in M'Culloch _vs._ Maryland.
(See also _infra_, chap. X.)
[819] 4 Wheaton, 405-06.
[820] 4 Wheaton, 406-07. (Italics the author's.)
[821] _Ib._, 407-08.
[822] See vol. I, 72, of this work.
[823] 4 Wheaton, 408-09.
[824] 4 Wheaton, 409-10.
[825] _Ib._ 411.
[826] "The Congress shall have Power ... to make all Laws which shall be
necessary and proper for carrying into Execution the foregoing Powers,
and all other Powers vested by this Constitution in the Government of
the United States, or in any Department or Officer thereof."
(Constitution of the United States, Article I, Section 8.)
[827] 4 Wheaton, 412.
[828] _Ib._ 413.
[829] See vol. II, 71, of this work.
[830] Vol. II, 72-74, of this work.
[831] 4 Wheaton, 414.
[832] 4 Wheaton, 415.
[833] _Ib._ 416-17.
[834] 4 Wheaton, 417-18.
[835] 4 Wheaton, 419-21.
[836] _Ib._ 421.
[837] _Ib._ 423.
[838] 4 Wheaton, 424-25.
[839] 4 Wheaton, 425-26.
[840] 4 Wheaton, 426.
[841] See _supra_, 158 _et seq._
[842] 4 Wheaton, 426.
[843] 4 Wheaton, 427.
[844] _Ib._ 429-30.
[845] 4 Wheaton, 431.
[846] _Ib._
[847] 4 Wheaton, 432-33.
[848] 4 Wheaton, 435-36.
[849] _Ib._ 437.
[850] Story to his mother, March 7, 1819, Story, I, 325-26.
[851] See _infra_, 420; also 325-27; 338-39, 534-37.
[852] Niles, XVI, 41-44.
[853] _Ib._ 68-76.
[854] See _infra_, chap. VIII.
[855] Niles, XVI, 65.
[856] See vol. III, 130-31, of this work.
[857] Niles, XVI, 65.
[858] _Ib._ 97. For instance, the _Natchez Press_, in announcing its
intention to print Marshall's whole opinion, says that, if his doctrine
prevails, "the independence of the individual states ... is obliterated
at one fell sweep." No country can remain free "that tolerates
incorporated banks, in any guise." (_Ib._ 210.)
[859] _Ib._ 103.
[860] _Ib._ 104.
[861] Niles, XVI, 105.
[862] Niles's attack on Marshall's opinion in M'Culloch _vs._ Maryland
ran through three numbers. (See _ib._ 41-44; 103-05; 145-47.)
[863] See _supra_, 161-67.
[864] Marshall to Story, March 24, 1819, _Proceedings, Mass, Hist. Soc._
2d Series, XIV, 324.
[865] See _supra_, 146.
[866] Enquirer, March 30, 1819, as quoted in _Branch Hist. Papers_,
June, 1905, 52-53.
[867] _Branch Hist. Papers_, June, 1905, 51-63.
[868] _Enquirer_, April 2, 1819, as quoted in _Branch Hist. Papers_,
June, 1905, 76. (Italics the author's.)
[869] _Enquirer_, April 20, 1819, as quoted in _ib._ 76.
[870] Marshall to Story, May 27, 1819, _Proceedings, Mass. Hist. Soc._
2d Series, XIV, 325.
[871] _Enquirer_, June 11, 1819, as quoted in _Branch Hist. Papers_,
June, 1905, footnote to 77.
[872] _Enquirer_, June 11, 1819, as quoted in _Branch Hist. Papers_,
June, 1905, 77-82.
[873] _Enquirer_, June 15, 1819, as quoted in _ib._ 85; also _Enquirer_,
June 18, 1819, as quoted in _ib._ 95.
[874] _Enquirer_, June 15, 1819, as quoted in _ib._ 91.
[875] _Ib._ 87; also _Enquirer_, June 18, 1819, as quoted in _ib._
96-97.
[876] _Ib._ 98.
[877] _Enquirer_, June 22, 1819, as quoted in _Branch Hist. Papers_,
June, 1905, 116.
[878] _Ib._ 118.
[879] _Ib._ 121. Madison endorsed Roane's attacks on Marshall. (See
Madison to Roane, Sept. 2, 1819, _Writings of James Madison_: Hunt,
VIII, 447-53.)
[880] See Roane to his son, Jan. 4, 1819, _Branch Hist. Papers_, June,
1905, 134; and same to same, Feb. 4, 1819, _ib._ 135.
Eighteen days before Marshall delivered his opinion Roane again writes
his son: "I have to-day deposited in the vaults of the Virga. bank a
certificate in your name for 50 shares U. S. bank stock, as per memo.,
by Mr. Dandridge Enclosed. The shares cost, as you will see, $98 each."
(Roane to his son, Feb. 16, 1810, _ib._ 136.)
[881] Roane to his son, note 4, p. 317.
[882] The entire transaction is set out in letters of Benjamin Watkins
Leigh to Nicholas Biddle, Aug. 21, Aug. 28, Sept. 4, and Sept. 13, 1837;
and Biddle to Leigh, Aug. 24 and 25, Sept. 7 and Sept. 15, 1837. (Biddle
MSS. in possession of Professor R. C. McGrane of the University of Ohio,
to whose courtesy the author is indebted for the use of this material.
These letters appear in full in the _Correspondence of Nicholas Biddle_:
McGrane, 283-89, 291-92, published in September, 1919, by Houghton
Mifflin Company, Boston.)
[883] Marshall to Bushrod Washington, June 28, 1819. This letter is
unsigned, but is in Marshall's unmistakable handwriting and is endorsed
by Bushrod Washington, "C. Just. Marshall." (Marshall MSS. Lib. Cong.)
[884] UNION, April 24, 1819.
[885] _Union_, April 24, 1819.
[886] Marshall means that Jefferson inspired Roane's attacks.
[887] Marshall had written five essays, but the editor condensed them
into two numbers.
[888] Marshall to Story, May 27, 1819, _Proceedings, Mass. Hist. Soc._
2d Series, XIV, 325.
[889] Henry Wheaton, Reporter of the Supreme Court.
[890] Marshall to Story, July 13, 1819, _Proceedings, Mass. Hist. Soc._
2d Series, XIV, 326.
[891] _Enquirer_, Jan. 30, 1821.
[892] _Ib._ Feb. 1, 1821.
[893] _Journal_, House of Delegates, Virginia, 1819-20, 56-59.
[894] _Ib._ 9.
[895] _Ib._ 57.
[896] This resolution declared that Virginia assented to the
Constitution only on condition that "Every power _not granted_, remains
with the people, and at their will; that _therefore no right of any
denomination can be cancelled, abridged, restrained, or modified_, by
the congress, by the senate, or house of representatives acting in any
capacity; by the President or any department, or officer of the United
States, except in those instances in which power is given by the
constitution for those purposes." (_Journal_, House of Delegates,
Virginia, 1819-20, 58.)
[897] _Journal_, House of Delegates, Virginia, 1819-20, 59.
[898] _Ib._ 76.
[899] _Journal_, House of Delegates, Virginia, 1819-20, 85.
[900] _Ib._ 105.
[901] _Ib._ 108-09.
[902] _Ib._ 179.
[903] _Ib._ 175-78.
[904] For Marshall's opinion in this controversy see _infra_, 347 _et
seq._
[905] The second branch was established at Chillicothe.
[906] Chap. 83, _Laws of Ohio, 1818-19_, 1st Sess. 190-99.
Section 5 of this act will give the student the spirit of this
autocratic law. This section made it the "duty" of the State agent
collecting the tax, after demand on and refusal of the bank officers to
pay the tax, if he cannot readily find in the bank offices the necessary
amount of money, "to go into each and any other room or vault ... and to
every closet, chest, box or drawer in such banking house, to open and
search," and to levy on everything found. (_Ib._ 193.)
[907] A private letter to Niles says that when it was found that an
injunction had been granted, the friends of the bank rejoiced, "wine was
drank freely and mirth abounded." (Niles, XVII, 85.) This explains the
otherwise incredible negligence of the bank's attorneys in the
proceedings next day.
[908] Niles, XVII, 85-87, reprinting account as published in the
_Chillicothe Supporter_, Sept. 22, 1819, and the _Ohio Monitor_, Sept.
25, 1819.
[909] Niles, XVII, 147.
[910] _Ib._ 338.
[911] Report of Committee made to the Ohio Legislature and transmitted
to Congress. (_Annals_, 16th Cong. 2d Sess. 1685 _et seq._)
[912] _Annals_, 16th Cong. 2d Sess. 1691.
[913] _Annals_, 16th Cong. 2d Sess. 1696-97.
[914] See vol. II, 72-74, of this work.
[915] _Annals_, 16th Cong. 2d Sess. 1712.
[916] _Ib._ 1713.
[917] _Ib._ 1714.
[918] See _infra_, chap. VII of this work.
[919] _State Doc. Fed. Rel._: Ames, 90; and see Niles, XVI, 97, 132.
[920] Pennsylvania House of Representatives, _Journal, 1819-20_, 537;
_State Doc. Fed. Rel._: Ames, footnote to 90-91.
[921] _Ib._
[922] _Ib._ 91.
[923] See _infra_, chap. X.
[924] _State Doc. Fed. Rel._: Ames, 92-103.
[925] _Ib._ 92, 101-03.
[926] _Ib._ 91.
[927] See _infra_, chap. X.
[928] See vol. II, 397, of this work.
[929] Taylor: _Construction Construed, and Constitutions Vindicated_, 9.
[930] Taylor: _Construction Construed_, 11-12. Taylor does not, of
course, call Marshall by name, either in this book or in his other
attacks on the Chief Justice.
[931] _Ib._ 15.
[932] _Ib._ 16.
[933] _Ib._ 18.
[934] _Ib._ 25-26.
[935] _Ib._ 28.
[936] Taylor: _Construction Construed_, 77.
[937] _Ib._ 79.
[938] _Ib._ 84.
[939] _Ib._ 87.
[940] Taylor: _Construction Construed_, 89.
[941] _Ib._ 161.
[942] _Ib._ 233.
[943] _Ib._ 237.
It is interesting to observe that Taylor brands the protective tariff as
one of the evils of Marshall's Nationalist philosophy. "It destroys the
division of powers between federal and state governments, ... it
violates the principles of representation, ... it recognizes a sovereign
power over property, ... it destroys the freedom of labour, ... it
taxes the great mass of capital and labour, to enrich the few; ... it
increases the burden upon the people ... increases the mass of
poverty; ... it impoverishes workmen and enriches employers; ... it
increases the expenses of government, ... it deprives commerce of the
freedom of exchanges, ... it corrupts congress ... generates the
extremes of luxury and poverty." (Taylor: _Construction Construed_,
252-53.)
[944] See _infra_, 340-42; and see _infra_, chap. X.
[945] Taylor: _Construction Construed_, 314.
[946] Jefferson to Ritchie, Dec. 25, 1820, _Works_: Ford, XII, 176-78.
He declined, however, to permit publication of his endorsement of
Taylor's book. (_Ib._)
CHAPTER VII
THREATS OF WAR
Cannot the Union exist unless Congress and the Supreme Court
shall make banks and lotteries? (John Taylor "of Caroline.")
If a judge can repeal a law of Congress, by declaring it
unconstitutional, is not this the exercise of political power?
(Senator Richard M. Johnson.)
The States must shield themselves and meet the invader foot to
foot. (Jefferson.)
The United States ... form a single nation. In war we are one
people. In making peace we are one people. In all commercial
regulations we are one and the same people. (Marshall.)
The crisis has arrived contemplated by the framers of the
Constitution. (Senator James Barbour.)
The appeals of Niles, Roane, and Taylor, and the defiant attitude toward
Nationalism of Virginia, Ohio, Pennsylvania, and other States, expressed
a widespread and militant Localism which now manifested itself in
another and still more threatening form. The momentous and dramatic
struggle in Congress over the admission of Missouri quickly followed
these attacks on Marshall and the Supreme Court.
Should that Territory come into the Union only on condition that slavery
be prohibited within the new State, or should the slave system be
retained? The clamorous and prophetic debate upon that question stirred
the land from Maine to Louisiana. A division of the Union was everywhere
discussed, and the right of a State to secede was boldly proclaimed.
In the House and Senate, civil war was threatened. "I fear this subject
will be an ignited spark, which, communicated to an immense mass of
combustion, will produce an explosion that will shake this Union to its
centre.... The crisis has arrived, contemplated by the framers of the
Constitution.... This portentous subject, twelve months ago, was a
little speck scarcely visible above the horizon; it has already overcast
the heavens, obscuring every other object; materials are everywhere
accumulating with which to render it darker."[947] In these bombastic,
yet serious words Senator James Barbour of Virginia, when speaking on
the Missouri question on January 14, 1820, accurately described the
situation.
"I behold the father armed against the son, ... a brother's sword
crimsoned with a brother's blood, ... our houses wrapt in flames,"
exclaimed Senator Freeman Walker of Georgia. "If Congress ... impose the
restriction contemplated [exclusion of slavery from Missouri], ...
consequences fatal to the peace and harmony of this Union will ...
result."[948] Senator William Smith of South Carolina asked "if, under
the misguided influence of fanaticism and humanity, the impetuous
torrent is once put in motion, what hand short of Omnipotence can stay
it?"[949] In picturing the coming horrors Senator Richard Mentor Johnson
of Kentucky declared that "the heart sickens, the tongue falters."[950]
In the House was heard language even more sanguinary. "Let gentlemen
beware!" exclaimed Robert Raymond Reid of Georgia; for to put limits on
slavery was to implant "envy, hatred, and bitter reproaches, which
'Shall grow to clubs and naked swords,
To murder and to death.'...
Sir, the firebrand, which is even now cast into your society, will
require blood ... for its quenching."[951]
Only a few Northern members answered with spirit. Senator Walter Lowrie
of Pennsylvania preferred "a dissolution of this Union" rather than "the
extension of slavery."[952] Daniel Pope Cook of Illinois avowed that
"the sound of disunion ... has been uttered so often in this debate, ...
that it is high time ... to adopt measures to prevent it.... Such
declarations ... will have no ... effect upon me.... Is it ... the
intention of gentlemen to arouse ... the South to rebellion?"[953] For
the most part, however, Northern Representatives were mild and even
hopeful.[954]
Such was the situation concerning which John Marshall addressed the
American people in his epochal opinion in the case of Cohens _vs._
Virginia. The noble passages of that remarkable state paper were
inspired by, and can be understood only in the light of, the crisis that
produced them. Not in the mere facts of that insignificant case, not in
the precise legal points involved, is to be found the inspiration of
Marshall's transcendent effort on this occasion. Indeed, it is possible,
as the Ohio Legislature and the Virginia Republican organization soon
thereafter charged, that Cohens _vs._ Virginia was "feigned" for the
purpose of enabling Marshall to assert once more the supremacy of the
Nation.
If the case came before Marshall normally, without design and in the
regular course of business, it was an event nothing short of
providential. If, on the contrary, it was "arranged" so that Marshall
could deliver his immortal Nationalist address, never was such
contrivance so thoroughly justified. While the legal profession has
always considered this case to be identical, judicially, with that of
Martin _vs._ Hunter's Lessee, it is, historically, a part of M'Culloch
_vs._ Maryland and of Osborn _vs._ The Bank. The opinion of John
Marshall in the Cohens case is one of the strongest and most enduring
strands of that mighty cable woven by him to hold the American people
together as a united and imperishable nation.
Fortunate, indeed, for the Republic that Marshall's fateful
pronouncement came forth at such a critical hour, even if technicalities
were waived in bringing before him a case in which he could deliver that
opinion. For, in conjunction with his exposition in M'Culloch _vs._
Maryland, it was the most powerful answer that could be given, and from
the source of greatest authority, to that defiance of the National
Government and to the threats of disunion then growing ever bolder and
more vociferous. Marshall's utterances did not still those hostile
voices, it is true, but they gave strength and courage to Nationalists
and furnished to the champions of the Union arguments of peculiar force
as coming from the supreme tribunal of the Nation.
Could John Marshall have seen into the future he would have beheld
Abraham Lincoln expounding from the stump to the farmers of Illinois, in
1858, the doctrines laid down by himself in 1819 and 1821.
Briefly stated, the facts in the case of Cohens _vs._ Virginia were as
follows: The City of Washington was incorporated under an act of
Congress[955] which, among other things, empowered the corporation to
"authorize the drawing of lotteries for effecting any important
improvements in the city which the ordinary funds or revenue thereof
will not accomplish," to an amount not to exceed ten thousand dollars,
the object first to be approved by the President.[956] Accordingly a
city ordinance was passed, creating "The National Lottery" and
authorizing it to sell tickets and conduct drawings.
By an act of the Virginia Legislature[957] the purchase or sale within
the State of lottery tickets, except those of lotteries authorized by
the laws of Virginia, was forbidden under penalty of a fine of one
hundred dollars for each offense.
On June 1, 1820, "P. J. & M. J. Cohen, ... being evil-disposed persons,"
violated the Virginia statute by selling to one William H. Jennings in
the Borough of Norfolk two half and four quarter lottery tickets "of the
National Lottery, to be drawn in the city of Washington, that being a
lottery not authorized by the laws of this commonwealth," as the
information of James Nimmo, the prosecuting attorney, declared.[958]
At the quarterly session of the Court of Norfolk, held September 2,
1820, the case came on for hearing before the Mayor, Recorder, and
Aldermen of said borough and was decided upon an agreed case "in lieu of
a special verdict," which set forth the sale of the lottery tickets, the
Virginia statute, the act of Congress incorporating the City of
Washington, and the fact that the National Lottery had been established
under that act.[959] The Norfolk Court found the defendants guilty and
fined them in the sum of one hundred dollars. This paltry amount could
not have paid one twentieth part of the fees which the eminent counsel
who appeared for the Cohens would, ordinarily, have charged.[960] The
case was carried to the Supreme Court on a writ of error.
On behalf of Virginia, Senator James Barbour of that State[961] moved
that the writ of error be dismissed, and upon this motion the main
arguments were made and Marshall's principal opinion delivered. In
concluding his argument, Senator Barbour came near threatening
secession, as he had done in the Senate: "Nothing can so much endanger
it [the National Government] as exciting the hostility of the state
governments. With them it is to determine how long this government shall
endure."[962]
In opening for the Cohens, David B. Ogden of New York denied that "there
is any such thing as a sovereign state, independent of the Union." The
authority of the Supreme Court "extends ... to all cases arising under
the constitution, laws, and treaties of the United States."[963] Cohens
_vs._ Virginia was such a case.
Upon the supremacy of the Supreme Court over State tribunals depended
the very life of the Nation, declared William Pinkney, who appeared as
the principal counsel for the Cohens. Give up the appellate jurisdiction
of National courts "from the decisions of the state tribunals" and
"every other branch of federal authority might as well be surrendered.
To part with this, leaves the Union a mere league or confederacy."[964]
Long, brilliantly, convincingly, did Pinkney speak. The extreme State
Rights arguments were, he asserted, "too wild and extravagant"[965] to
deserve consideration.
Promptly Marshall delivered the opinion of the court on Barbour's motion
to dismiss the writ of error. The points made against the jurisdiction
of the Supreme Court were, he said: "1st. That a state is a defendant.
2d. That no writ of error lies from this court to a state court. 3d. ...
that this court ... has no right to review the judgment of the state
court, because neither the constitution nor any law of the United States
has been violated by that judgment."[966]
The first two points "vitally ... affect the Union," declared the Chief
Justice, who proceeds to answer the reasoning of the State judges when,
in Hunter _vs._ Fairfax's Devisee, they hurled at the Supreme Court
Virginia's defiance of National authority.[967] Marshall thus states the
Virginia contentions: That the Constitution has "provided no tribunal
for the final construction of itself, or of the laws or treaties of the
nation; but that this power may be exercised ... by the courts of every
state of the Union. That the constitution, laws, and treaties, may
receive as many constructions as there are states; and that this is not
a mischief, or, if a mischief, is irremediable."[968]
Why was the Constitution established? Because the "American States, as
well as the American people, have believed a close and firm Union to be
essential to their liberty and to their happiness. They have been
taught by experience, that this Union cannot exist without a government
for the whole; and they have been taught by the same experience that
this government would be a mere shadow, that must disappoint all their
hopes, unless invested with large portions of that sovereignty which
belongs to independent states."[969]
The very nature of the National Government leaves no doubt of its
supremacy "in all cases where it is empowered to act"; that supremacy
was also expressly declared in the Constitution itself, which plainly
states that it, and laws and treaties made under it, "'shall be the
supreme law of the land; and the judges in every state shall be bound
thereby; anything in the constitution or laws of any state to the
contrary notwithstanding.'"
This supremacy of the National Government is a Constitutional
"principle." And why were "ample powers" given to that Government? The
Constitution answers: "In order to form a more perfect union, establish
justice, ensure domestic tranquillity, provide for the common defense,
promote the general welfare."[970]
The "limitations on the sovereignty of the states" were made for the
same reason that the "supreme government" of the Nation was endowed with
its broad powers. In addition to express limitations on State
"sovereignty" were many instances "where, perhaps, _no other power is
conferred on Congress than a conservative power to maintain the
principles_ established in the constitution. The maintenance of these
principles in their purity, is certainly among the great duties of the
government."[971]
Marshall had been Chief Justice of the United States for twenty years,
and these were the boldest and most extreme words that he had spoken
during that period. Like all men of the first rank, Marshall met in a
great way, and without attempt at compromise, a great issue that could
not be compromised--an issue which, everywhere, at that moment, was
challenging the existence of the Nation. There must be no dodging, no
hedging, no equivocation. Instead, there must be the broadest, frankest,
bravest declaration of National powers that words could express. For
this reason Marshall said that these powers might be exercised even as a
result of "a conservative power" in Congress "to maintain the principles
established in the constitution."
The Judicial Department is an agency essential to the performance of the
"great duty" to preserve those "principles." "It is authorized to decide
all cases of every description, arising under the constitution or laws
of the United States." Those cases in which a State is a party are not
excepted. There are cases where the National courts are given
jurisdiction solely because a State is a party, and regardless of the
subject of the controversy; but in all cases involving the Constitution,
laws, or treaties of the Nation, the National tribunals have
jurisdiction, regardless of parties.[972]
"Principles" drawn from the very "_nature of government_" require that
"the judicial power ... must be co-extensive with the legislative, and
must be capable of deciding every judicial question which grows out of
the constitution and laws"--not that "it is fit that it should be so;
but ... that this fitness" is an aid to the right interpretation of the
Constitution.[973]
What will be the result if Virginia's attitude is confirmed? Nothing
less than the prostration of the National Government "at the feet of
every state in the Union.... Each member will possess a veto on the will
of the whole." Consider the country's experience. Assumption[974] had
been deemed unconstitutional by some States; opposition to excise taxes
had produced the Whiskey Rebellion;[975] other National statutes "have
been questioned partially, while they were supported by the great
majority of the American people."[976] There can be no assurance that
such divergent and antagonistic actions may not again be taken. State
laws in conflict with National laws probably will be enforced by State
judges, since they are subject to the same prejudices as are the State
Legislatures--indeed, "in many states the judges are dependent for
office and for salary on the will of the legislature."[977]
The Constitution attaches first importance to the "independence" of the
Judiciary; can it have been intended to leave to State "tribunals, where
this independence may not exist," cases in which "a state shall
prosecute an individual who claims the protection of an act of
Congress?" Marshall gives examples of possible collisions between
National and State authority, in ordinary times, as well as in
exceptional periods.[978] Even to-day it is obvious that the Chief
Justice was denouncing the threatened resistance by State officials to
the tariff laws, a fact of commanding importance at the time when
Marshall's opinion in Cohens _vs._ Virginia was delivered.
At this point he rises to the heights of august eloquence: "A
constitution is framed for ages to come, and is designed to approach
immortality as nearly as human institutions can approach it. Its course
cannot always be tranquil. It is exposed to storms and tempests, and its
framers must be unwise statesmen indeed, if they have not provided
it ... with the means of self-preservation from the perils it may be
destined to encounter. No government ought to be so defective in its
organization as not to contain within itself the means of securing the
execution of its own laws against other dangers than those which occur
every day."
Marshall is here replying to the Southern threats of secession, just as
he rebuked the same spirit when displayed by his New England friends ten
years earlier.[979] Then turning to the conflict of courts, he remarks,
as though the judicial collision is all that he has in mind: "A
government should repose on its own courts, rather than on others."[980]
He recalls the state of the country under the Confederation when
requisitions on the States were "habitually disregarded," although they
were "as constitutionally obligatory as the laws enacted by the present
Congress." In view of this fact is it improbable that the framers of the
Constitution meant to give the Nation's courts the power of preserving
that Constitution, and laws made in pursuance of it, "from all violation
from every quarter, so far as judicial decisions can preserve
them"?[981]
Virginia contends that if States wish to destroy the National Government
they can do so much more simply and easily than by judicial
decision--"they have only not to elect senators, and it expires without
a struggle"; and that therefore the destructive effect on the Nation of
decisions of State courts cannot be taken into account when construing
the Constitution.
To this Marshall makes answer: "Whenever hostility to the existing
system shall become universal, it will be also irresistible. The people
made the constitution, and the people can unmake it. It is the creature
of their own will, and lives only by their will. But this supreme and
irresistible power to make or to unmake, resides only in the whole body
of the people; not in any sub-division of them. The attempt of any of
the parts to exercise it is usurpation, and ought to be repelled by
those to whom the people have delegated their power of repelling it. The
acknowledged inability of the government, then, to sustain itself
against the public will, and, by force or otherwise, to control the
whole nation, is no sound argument in support of its constitutional
inability to preserve itself against a section of the nation acting in
opposition to the general will."[982]
This is a direct reply to the Southern arguments in the Missouri debate
which secessionists were now using wherever those who opposed National
laws and authority raised their voices. John Marshall is blazing the way
for Abraham Lincoln. He speaks of a "section" instead of a State. The
Nation, he says, may constitutionally preserve itself "against a
section." And this right of the Nation rests on "principles" inherent in
the Constitution. But in Cohens _vs._ Virginia no "section" was arrayed
against the Nation--on the record there was nothing but a conflict of
jurisdiction of courts, and this only by a strained construction of a
municipal lottery ordinance into a National law.
The Chief Justice is exerting to the utmost his tremendous powers, not
to protect two furtive peddlers of lottery tickets, but to check a
powerful movement that, if not arrested, must destroy the Republic.
Should that movement go forward thereafter, it must do so over every
Constitutional obstacle which the Supreme Court of the Nation could
throw in its way. In Cohens _vs._ Virginia, John Marshall stamped upon
the brow of Localism the brand of illegality. If this is not the true
interpretation of his opinion in that case, all of the exalted language
he used is mere verbiage.
Marshall dwells on "the subordination of the parts to the whole." The
one great motive for establishing the National Judiciary "was the
preservation of the constitution and laws of the United States, so far
as they can be preserved by judicial authority."[983]
Returning to the technical aspects of the controversy, Marshall points
out that the Supreme Court plainly has appellate jurisdiction of the
Cohens case: "If a state be a party, the jurisdiction of this court is
original; if the case arise under a [National] constitution or a
[National] law, the jurisdiction is appellate. But a case to which a
state is a party may arise under the constitution or a law of the United
States."[984] That would mean a double jurisdiction. Marshall,
therefore, shows, at provoking length,[985] that the appellate
jurisdiction of the Supreme Court "in all cases arising under the
constitution, laws, or treaties of the United States, was not arrested
by the circumstance that a state was a party";[986] and in this way he
explains that part of his opinion in Marbury _vs._ Madison, in which he
reasoned that Section 13 of the Ellsworth Judiciary Act was
unconstitutional.[987]
Marshall examines the Eleventh Amendment and becomes, for a moment, the
historian, a rôle in which he delighted. "The states were greatly
indebted" at the close of the Revolution; the Constitution was opposed
because it was feared that their obligations would be collected in the
National courts. This very thing happened. "The alarm was general; and,
to quiet the apprehensions that were so extensively entertained, this
amendment was ... adopted." But "its motive was not to maintain the
sovereignty of a state from the degradation supposed to attend a
compulsory appearance before the tribunal of the nation." It was to
prevent creditors from suing a State--"no interest could be felt in so
changing the relations between the whole and its parts, as to strip the
government of the means of protecting, by the instrumentality of its
courts, the constitution and laws from active violation."[988]
With savage relish the Chief Justice attacks and demolishes the State
Rights theory that the Supreme Court cannot review the judgment of a
State court "in any case." That theory, he says, "considers the federal
judiciary as completely foreign to that of a state; and as being no more
connected with it, in any respect whatever, than the court of a foreign
state."[989] But "the United States form, for many, and for most
important purposes, a single nation.... In war, we are one people. In
making peace, we are one people. In all commercial regulations, we are
one and the same people. In many other respects, the American people are
one; and the government which is alone capable of controlling and
managing their interests in all these respects, is the government of the
Union.
"It is their government, and in that character they have no other.
America has chosen to be, in many respects, and to many purposes, a
nation; and for all these purposes, her government is complete; to all
these objects, it is competent. The people have declared, that in the
exercise of all powers given for these objects it is supreme. It can,
then, in effecting these objects, legitimately control all individuals
or governments within the American territory. The Constitution and laws
of a state, so far as they are repugnant to the Constitution and laws of
the United States, are absolutely void.
"These states are constituent parts of the United States. They are
members of one great empire."[990] The National Court alone can decide
all questions arising under the Constitution and laws of the Nation.
"The uniform decisions of this court on the point now under
consideration," he continues, "have been assented to, with a single
exception,[991] by the courts of every state in the Union whose
judgments have been revised."[992]
As to the lottery ordinance of the City of Washington, Congress has
exclusive power to legislate for the District of Columbia and, in
exercising that power, acts "as the legislature of the Union." The
Constitution declares that it, and all laws made under it, constitute
"the supreme law of the land."[993] Laws for the government of
Washington are, therefore, parts of this "supreme law" and "bind the
nation.... Congress legislates, in the same forms, and in the same
character, in virtue of powers of equal obligation, conferred in the
same instrument, when exercising its exclusive powers of legislation, as
well as when exercising those which are limited."[994]
The Chief Justice gives examples of the exclusive powers of Congress,
all of which are binding throughout the Republic. "Congress is not a
local legislature, but exercises this particular power [to legislate for
the District of Columbia], like all its other powers, in its high
character, as the legislature of the Union."[995] The punishment of the
Cohens for selling tickets of the National Lottery, created by the City
of Washington under authority of an act of Congress, involves the
construction of the Constitution and of a National law. The Supreme
Court, therefore, has jurisdiction of the case, and the motion to
dismiss the writ of error is denied.
Marshall having thus established the jurisdiction of the Supreme Court
to hear and decide the case, it was argued "on the merits." Again David
B. Ogden appeared for the Cohens and was joined by William Wirt as
Attorney-General. For Virginia Webster took the place of Senator
Barbour. The argument was upon the true construction of the act of
Congress authorizing the City of Washington to establish a lottery; and
upon this Marshall delivered a second opinion, to the effect that the
lottery ordinance was "only co-extensive with the city" and a purely
local affair; that the court at Norfolk had a right to fine the Cohens
for violating a law of Virginia; and that its judgment must be
affirmed.[996]
So ended, as far as the formal record goes, the famous case of Cohens
_vs._ Virginia. On its merits it amounted to nothing; the practical
result of the appeal was nothing; but it afforded John Marshall the
opportunity to tell the Nation its duty in a crowning National
emergency.
Intense was the excitement and violent the rage in the anti-Nationalist
camp when Marshall's opinion was published. Ritchie, in his paper,
demanded that the Supreme Court should be abolished.[997] The Virginia
Republican organization struck instantly, Spencer Roane wielding its
sword. The _Enquirer_ published a series of five articles between May 25
and June 8, 1821, inclusive, signed "Algernon Sidney," Roane's latest
_nom de plume_.
"The liberties and constitution of our country are ... deeply and
vitally endangered by the fatal effects" of Marshall's opinion.
"Appointed in one generation it [the Supreme Court] claims to make laws
and constitutions for another."[998] The unanimity of the court can be
explained only on the ground of "a culpable apathy in the other judges,
or a confidence not to be excused, in the principles and talents of
their chief." Sidney literally wastes reams of paper in restating the
State Rights arguments. He finds a malign satisfaction in calling the
Constitution a "compact," a "league," a "treaty" between "sovereign
governments."[999]
National judges have "_no_ interest in the government or laws of
any state but that of which they are citizens," asserts Sidney.
"As to every other state but that, they are, completely, aliens and
foreigners."[1000] Virginia is as much a foreign nation as Russia[1001]
so far as jurisdiction of the Supreme Court over the judgments of State
courts is concerned. Marshall's doctrine "is the blind and absolute
despotism which exists in an army, or is exercised by a tyrant over his
slaves."[1002]
The apostate Republican Justices who concurred with Marshall are
denounced, and with greater force, by reason of a tribute paid to the
hated Chief Justice: "How else is it that they also go to all lengths
with the ultra-federal leader who is at the head of their court? That
leader is honorably distinguished from you messieurs judges. He is true
to his former politics. He has even pushed them to an extreme never
until now anticipated. He must be equally delighted and _surprised_ to
find his _Republican_ brothers going with him"--a remark as true as it
was obvious. "How is it ... that they go with him, not only as to the
results of his opinions, but as to all the points and positions
contained in the most lengthy, artful and alarming opinions?" Because,
answers Sidney, they are on the side of power and of "the government
that feeds them."[1003]
What Marshall had said in the Virginia Constitutional Convention of 1788
refutes his opinions now. "Great principles then operated on his
luminous mind, not hair-splitting quibbles and verbal criticisms."[1004]
The "artifices" of the Chief Justice render his opinions the more
dangerous.[1005]
If the anger of John Marshall ever was more aroused than it was by
Roane's assaults upon him, no evidence of the fact exists. Before the
last number of the Algernon Sidney essays appeared, the Chief Justice
confides his wrathful feelings to the devoted and sympathetic Story:
"The opinion of the Supreme Court in the Lottery case has been assaulted
with a degree of virulence transcending what has appeared on any former
occasion. Algernon Sidney is written by the gentleman who is so much
distinguished for his feelings towards the Supreme Court, & if you have
not an opportunity of seeing the Enquirer I will send it to you.
"There are other minor gentry who seek to curry favor & get into office
by adding their mite of abuse, but I think for coarseness & malignity of
invention Algernon Sidney surpasses all party writers who have ever made
pretensions to any decency of character. There is on this subject no
such thing as a free press in Virginia, and of consequence the calumnies
and misrepresentations of this gentleman will remain uncontradicted &
will by many be believed to be true. He will be supposed to be the
champion of state rights, instead of being what he really is, the
champion of dismemberment."[1006]
When Roane's articles were finished, Marshall wrote Story: "I send you
the papers containing the essays of Algernon Sidney. Their coarseness &
malignity would designate the author if he was not avowed. The argument,
if it may be called one, is, I think, as weak as its language is violent
& prolix. Two other gentlemen[1007] have appeared in the papers on this
subject, one of them is deeply concerned in pillaging the purchasers of
the Fairfax estate in which goodly work he fears no other obstruction
than what arises from the appellate power of the Supreme Court, & the
other is a hunter after office who hopes by his violent hostility to the
Union, which in Virginia assumes the name of regard for state rights, &
by his devotion to Algernon Sidney, to obtain one. In support of the
sound principles of the constitution & of the Union of the States, not a
pen is drawn. In Virginia the tendency of things verges rapidly to the
destruction of the government & the re-establishment of a league of
sovereign states. I look elsewhere for safety."[1008]
Another of the "minor gentry" of whom Marshall complained was William C.
Jarvis, who in 1820 had written a book entitled "The Republicans," in
which he joined in the hue and cry against Marshall because of his
opinion in M'Culloch _vs._ Maryland. Jarvis sent a copy of his book to
Jefferson who, in acknowledging the receipt of it, once more spoke his
mind upon the National Judiciary. To Jarvis's statement that the courts
are "the ultimate arbiters of all constitutional questions," Jefferson
objected.
It was "a very dangerous doctrine indeed, and one which would place us
under the despotism of an oligarchy," wrote the "Sage of Monticello."
"The constitution has erected no such single tribunal, knowing that to
whatever hands confided, with the corruptions of time and party, its
members would become despots.... If the legislature fails to pass"
necessary laws--such as those for taking of the census, or the payment
of judges; or even if "they fail to meet in congress, the judges cannot
issue their mandamus to them."
So, concludes Jefferson, if the President does not appoint officers to
fill vacancies, "the judges cannot force him." In fact, the judges "can
issue their mandamus ... to no executive or legislative officer to
enforce the fulfilment of their official duties, any more than the
president or legislature may issue orders to the judges.... When the
legislature or executive functionaries act unconstitutionally, they are
responsible to the people in their elective capacity. The exemption of
the judges from that is quite dangerous enough."[1009]
This letter by Jefferson had just been made public, and Story, who
appears to have read everything from the Greek classics to the current
newspaper gossip, at once wrote Marshall. The Chief Justice replied that
Jefferson's view "rather grieves than surprizes" him. But he could not
"describe the surprize & mortification" he felt when he learned that
Madison agreed with Jefferson "with respect to the judicial department.
For M^r Jefferson's opinion as respects this department it is not
difficult to assign the cause. He is among the most ambitious, & I
suspect among the most unforgiving of men. His great power is over the
mass of the people, & this power is chiefly acquired by professions of
democracy. Every check on the wild impulse of the moment is a check on
his own power, & he is unfriendly to the source from which it flows. He
looks of course with ill will at an independent judiciary.
"That in a free country with a written constitution any intelligent man
should wish a dependent judiciary, or should think that the constitution
is not a law for the court as well as for the legislature would astonish
me, if I had not learnt from observation that with many men the
judgement is completely controuled by the passions."[1010]
To Jefferson, Marshall ascribes Roane's attacks upon the Supreme
Court: "There is some reason to believe that the essays written
against the Supreme Court were, in a degree at least, stimulated by
this gentleman, and that although the coarseness of the language
belongs exclusively to the author, its acerbity has been increased
by his communications with the great Lama of the mountains. He may
therefore feel himself ... required to obtain its republication in
some place of distinction."[1011]
John E. Hall was at that time the publisher at Philadelphia of _The
Journal of American Jurisprudence_. Jefferson had asked Hall to reprint
Roane's articles, and Hall had told Story, who faithfully reported to
Marshall. "I am a little surprized at the request which you say has been
made to M^r Hall, although there is no reason for my being so. The
settled hostility of the gentleman who has made that request to the
judicial department will show itself in that & in every other form which
he believes will conduce to its object. For this he has several motives,
& it is not among the weakest that the department would never lend
itself as a tool to work for his political power....
"What does M^r Hall purpose to do?" asks Marshall. "I do not suppose you
would willingly interfere so as to prevent his making the publication,
although I really think it is in form & substance totally unfit to be
placed in his law journal. I really think a proper reply to the request
would be to say that no objection existed to the publication of any law
argument against the opinion of the Supreme Court, but that the
coarseness of its language, its personal & official abuse & its tedious
prolixity constituted objections to the insertion of Algernon Sidney
which were insuperable. If, however, M^r Hall determines to comply with
this request, I think he ought, unless he means to make himself a party
militant, to say that he published that piece by particular request, &
ought to subjoin the masterly answer of M^r Wheaton. I shall wish to
know what course M^r Hall will pursue."[1012]
Roane's attacks on Marshall did not appear in Hall's law magazine!
Quitting such small, unworthy, and prideful considerations, Marshall
rises for a moment to the great issue which he met so nobly in his
opinions in M'Culloch _vs._ Maryland and in Cohens _vs._ Virginia. "A
deep design," he writes Story, "to convert our government into a mere
league of states has taken strong hold of a powerful & violent party in
Virginia. The attack upon the judiciary is in fact an attack upon the
union. The judicial department is well understood to be that through
which the government may be attacked most successfully, because it is
without patronage, & of course without power. And it is equally well
understood that every subtraction from its jurisdiction is a vital wound
to the government itself. The attack upon it therefore is a masked
battery aimed at the government itself.
"The whole attack, if not originating with M^r Jefferson, is obviously
approved & guided by him. It is therefore formidable in other states as
well as in this, & it behoves the friends of the union to be more on the
alert than they have been. An effort will certainly be made to repeal
the 25^{th} sec. of the judicial act."[1013] Marshall's indignation at
Roane exhausted his limited vocabulary of resentment. Had he possessed
Jefferson's resources of vituperation, the literature of animosity would
have been enriched by the language Marshall would have indulged in when
the next Republican battery poured its volleys upon him.
No sooner had Roane's artillery ceased to play upon Marshall and the
Supreme Court than the roar of Taylor's heavy guns was again heard. In a
powerful and brilliant book, called "Tyranny Unmasked," he directed his
fire upon the newly proposed protective tariff, "this sport for
capitalists and death for the rest of the nation."[1014] The theory of
the Chief Justice that there is a "supreme federal power" over the
States is proved false by the proceedings of the Constitutional
Convention at Philadelphia in 1787. Certain members then proposed to
give the National Government a veto over the acts of State
Governments.[1015] This proposal was immediately rejected. Yet to-day
Marshall proclaims a National power, "infinitely more objectionable,"
which asserts that the Supreme Court has "a negative or restraining
power over the State governments."[1016]
A protective tariff is only another monstrous child of Marshall's
accursed Nationalism, that prolific mother of special favors for the
few. By what reasoning is a protective tariff made Constitutional? By
the casuistry of John Marshall, that "present fashionable mode of
construction, which considers the constitution as a lump of fine gold, a
small portion of which is so malleable as to cover the whole mass. By
this golden rule for manufacturing the constitution, a particular power
given to the Federal Government may be made to cover all the rights
reserved to the people and the States;[1017] a limited jurisdiction
given to the Federal Courts is made to cover all the State Courts;[1018]
and a legislative power over ten miles square is malleated over the
whole of the United States,[1019] as a single guinea may be beaten out
so as to cover a whole house."[1020] Such is the method by which a
protective tariff is made Constitutional.
For one hundred and twenty-one scintillant and learned pages Taylor
attacks this latest creation of National "tyranny." The whole
Nationalist system is "tyranny," which it is his privilege to "unmask,"
and the duty of all true Americans to destroy.[1021] Marshall's
Constitutional doctrine "amounts to the insertion of the following
article in the constitution: 'Congress shall have power, with the assent
of the Supreme Court, to exercise or usurp, and to prohibit the States
from exercising, any or all of the powers reserved to the States,
whenever they [Congress] shall deem it convenient, or for the general
welfare.'"[1022] Such doctrines invite "civil war."[1023]
By Marshall's philosophy "the people are made the prey of exclusive
privileges." In short, under him the Supreme Court has become the agent
of special interests.[1024] "Cannot the Union subsist unless Congress
and the Supreme Court shall make banks and lotteries?"[1025]
Jefferson eagerly read Roane's essays and Taylor's book and wrote
concerning them: "The judiciary branch is the instrument which, working
like gravity, without intermission, is to press us at last into one
consolidated mass. Against this I know no one who, equally with Judge
Roane himself, possesses the power and the courage to make resistance;
and to him I look, and have long looked, as our strongest bulwark."
At this point Jefferson declares for armed resistance to the Nation in
even stronger terms than those used by Roane or Taylor: "If Congress
fails to shield the States from dangers so palpable and so imminent,
the States must shield themselves, and meet the invader foot to foot....
This is already half done by Colonel Taylor's book" which "is the most
effectual retraction of our government to its original principles which
has ever yet been sent by heaven to our aid. Every State in the Union
should give a copy to every member they elect, as a standing
instruction, and ours should set the example."[1026]
Until his death the aged politician raged continuously, except in one
instance,[1027] at Marshall and the Supreme Court because of such
opinions and decisions as those in the Bank and Lottery cases. He writes
Justice Johnson that he "considered ... maturely" Roane's attacks on the
doctrines of Cohens _vs._ Virginia and they appeared to him "to
pulverize every word which had been delivered by Judge Marshall, of the
extra-judicial part of his opinion." If Roane "can be answered, I
surrender human reason as a vain and useless faculty, given to bewilder,
and not to guide us.... This practice of Judge Marshall, of travelling
out of his case to prescribe what the law would be in a moot case not
before the court, is very irregular and censurable."[1028]
Again Jefferson writes that, above all other officials, those who most
need restraint from usurping legislative powers are "the judges of what
is commonly called our General Government, but what I call our Foreign
department.... A few such doctrinal decisions, as barefaced as that of
the Cohens," may so arouse certain powerful States as to check the march
of Nationalism. The Supreme Court "has proved that the power of
declaring what the law is, _ad libitum_, by sapping and mining, slily
and without alarm, the foundations of the Constitution, can do what open
force would not dare to attempt."[1029]
So it came to pass that John Marshall and the Supreme Court became a
center about which swirled the forces of a fast-gathering storm that
raged with increasing fury until its thunders were the roar of cannon,
its lightning the flashes of battle. Broadly speaking, slavery and free
trade, State banking and debtors' relief laws were arraigned on the side
of Localism; while slavery restriction, national banking, a protective
tariff, and security of contract were marshaled beneath the banner of
Nationalism. It was an assemblage of forces as incongruous as human
nature itself.
The Republican protagonists of Localism did not content themselves with
the writing of enraged letters or the publication of flaming articles
and books. They were too angry thus to limit their attacks, and they
were politicians of too much experience not to crystallize an aroused
public sentiment. On December 12, 1821, Senator Richard M. Johnson of
Kentucky, who later was honored by his party with the Vice-Presidency,
offered an amendment to the Constitution that the Senate be given
appellate jurisdiction in all cases where the Constitution or laws of a
State were questioned and the State desired to defend them; and in all
cases "where the judicial power of the United States shall be so
construed as to extend to any case ... arising under" the National
Constitution, laws, or treaties.[1030]
Coöperating with Johnson in the National Senate, Roane in Virginia, when
the Legislature of that State met, prepared amendments to the National
Constitution which, had they been adopted by the States, would have
destroyed the Supreme Court. He declares that he takes this step "with a
view to aid" the Congressional antagonists of Nationalism and the
Supreme Court, "or rather to lead, on this important subject." The
amendments "will be copied by another hand & circulated among the
members. I would not wish to injure the great Cause, by being known as
the author. My name would damn them, as I believe, nay hope, with the
_Tories_." Roane asks his correspondent to "jog your Chesterfield
Delegates ... and other good republicans," and complains that "Jefferson
& Madison hang back too much, in this great Crisis."[1031]
On Monday, January 14, 1822, Senator Johnson took the floor in support
of his proposition to reduce the power of the Supreme Court. "The
conflicts between the Federal judiciary and the sovereignty of the
States," he said, "are become so frequent and alarming, that the public
safety" demands a remedy. "The Federal judiciary has assumed a
guardianship over the States, even to the controlling of their peculiar
municipal regulations."[1032] The "basis of encroachment" is Marshall's
"doctrine of Federal supremacy ... established by a judicial tribunal
which knows no change. Its decisions are predicated upon the principle
of perfection, and assume the character of immutability. Like the laws
of the Medes and Persians, they live forever, and operate through all
time." What shall be done? An appeal to the Senate "will be not only
harmless, but beneficial." It will quiet "needless alarms ...
restore ... confidence ... preserve ... harmony." There is pressing need
to tranquillize the public mind concerning the National Judiciary,[1033]
a department of the government which is a denial of our whole democratic
theory. "Some tribunal should be established, responsible to the people,
to correct their [the Judges'] aberrations."
Why should not the National Judiciary be made answerable to the people?
No fair-minded man can deny that the judges exercise legislative power.
"If a judge can repeal a law of Congress, by declaring it
unconstitutional, is not this the exercise of political power? If he
can declare the laws of a State unconstitutional and void, and, in one
moment, subvert the deliberate policy of that State for twenty-four
years, as in Kentucky, affecting its whole landed property, ... is not
this the exercise of political power? All this they have done, and no
earthly power can investigate or revoke their decisions."[1034] The
Constitution gives the National Judiciary no such power--that instrument
"is as silent as death upon the subject."[1035]
How absurd is the entire theory of judicial independence! Why should not
Congress as properly declare the decisions of the National courts
unconstitutional as that the courts should do the same thing to acts of
Congress or laws of States? Think of it as a matter of plain common
sense--"forty-eight Senators, one hundred and eighty-eight
Representatives, and the President of the United States, all sworn to
maintain the Constitution, have concurred in the sentiment that the
measure is strictly conformable to it. Seven judges, irresponsible to
any earthly tribunal for their decisions, revise the measure, declare it
unconstitutional, and effectually destroy its operation. Whose opinion
shall prevail? that of the legislators and President, or that of the
Court?"[1036]
The Supreme Court, too, has gently exercised the principle of judicial
supervision over acts of Congress; has adjudged that Congress has a free
hand in choosing means to carry out powers expressly granted to that
body. But consider the conduct of the Supreme Court toward the States:
"An irresponsible judiciary" has ruthlessly struck down State law after
State law; has repeatedly destroyed the decisions of State courts. Look
at Marshall's opinions in M'Culloch _vs._ Maryland, in the Dartmouth
College case, in United States _vs._ Peters, in Sturges _vs._
Crowninshield, in Cohens _vs._ Virginia--smallest, but perhaps worst of
all, in Wilson _vs._ New Jersey. The same principle runs through all
these pronouncements;--the States are nothing, the Nation
everything.[1037]
Webster, in the House, heard of Johnson's speech and promptly wrote
Story: "Mr. Johnson of Kentucky ... has dealt, they say, pretty freely
with the supreme court. Dartmouth College, Sturges and Crowninshield,
_et cetera_, have all been demolished. To-morrow he is to pull to pieces
the case of the Kentucky betterment law. Then Governor [Senator] Barber
[Barbour] is to annihilate Cohens _v._ Virginia. So things go; but I see
less reality in all this smoke than I thought I should, before I came
here."[1038]
It would have been wiser for Webster to have listened carefully to
Johnson's powerful address than to have sneered at it on hearsay, for it
was as able as it was brave; and, erroneous though it was, it stated
most of the arguments advanced before or since against the supervisory
power of the National Judiciary over the enactments of State
Legislatures and the decisions of State courts.
When the Kentucky Senator resumed his speech the following day, he drove
home his strongest weapon--an instance of judicial interference with
State laws which, indeed, at first glance appeared to have been
arbitrary, autocratic, and unjust. The agreement between Virginia and
Kentucky by which the latter was separated from the parent Commonwealth
provided that "all private rights and interests of lands" in Kentucky
"derived from the laws of Virginia, shall remain valid ... and shall be
determined by the laws now existing" in Virginia.[1039]
In 1797 the Kentucky Legislature enacted that persons occupying lands in
that State who could show a clear and connected title could not, without
notice of any adverse title, upon eviction by the possessor of a
superior title, be held liable for rents and profits during such
occupancy.[1040] Moreover, all permanent improvements made on the land
must, in case of eviction, be deducted from the value of the land and
judgment therefor rendered in favor of the innocent occupant and against
the successful claimant. On January 31, 1812, this "occupying claimant"
law, as it was called, was further strengthened by a statute providing
that any person "seating and improving" lands in Kentucky, believing
them "to be his own" because of a claim founded on public record, should
be paid for such seating and improvements by any person who thereafter
was adjudged to be the lawful owner of the lands.
Against one such occupant, Richard Biddle, the heirs of a certain John
Green brought suit in the United States Court for the District of
Kentucky, and the case was certified to the Supreme Court on a division
of opinion of the judges. The case was argued and decided at the same
term at which Marshall delivered his opinion in Cohens _vs._ Virginia.
Story delivered the unanimous opinion of the court: that the Kentucky
"occupying claimant" laws violated the separation "compact" between
Virginia and Kentucky, because, "by the _general principles of law_, and
from the necessity of the case, titles to real estate can be determined
only by the laws of the state under which they were acquired."[1041]
Unfortunately Story did not specifically base the court's decision on
the contract clause of the Constitution, but left this vital point to
inference.
Henry Clay, "as _amicus curiæ_," moved for a rehearing because the
rights of numerous occupants of Kentucky lands "would be irrevocably
determined by this decision," and because Biddle had permitted the case
"to be brought to a hearing without appearing by his counsel, and
without any argument on that side of the question."[1042] In effect,
Clay thus intimated that the case was feigned. The motion was granted
and Green _vs._ Biddle was awaiting reargument when Senator Johnson made
his attack on the National Judiciary.
Johnson minutely examined the historical reasons for including the
contract clause in the National Constitution, "in order to understand
perfectly well the mystical influence" of that provision.[1043] It
never was intended to affect such legislation as the Kentucky land
system. The intent and meaning of the contract clause is, that "you
shall not declare to-day that contract void, ... which was made
yesterday under the sanction of law."[1044] Does this simple rule of
morality justify the National courts in annulling measures of public
policy "which the people have solemnly declared to be expedient"?[1045]
The decision of the Supreme Court in Green _vs._ Biddle, said Johnson,
"prostrates the deliberate" course which Kentucky has pursued for almost
a quarter of a century, "and affects its whole landed interest. The
effect is to legislate for the people; to regulate the interior policy
of that community, and to establish their municipal code as to real
estate."[1046]
If such judicial supremacy prevails, the courts can "establish systems
of policy by judicial decision." What is this but despotism? "I see no
difference, whether you take this power from the people and give it to
your judges, who are in office for life, or grant it to a King for
life."[1047]
The time is overripe, asserts Johnson, to check judicial
usurpation--already the National Judiciary has struck down laws of eight
States.[1048] The career of this judicial oligarchy must be ended. "The
security of our liberties demands it." Let the jurisdiction of National
courts be specifically limited; or let National judges be subject to
removal upon address of both Houses of Congress; or let their
commissions be vacated "after a limited term of service"; or, finally,
"vest a controlling power in the Senate ... or some other body who shall
be responsible to the elective franchise."[1049]
The Kentucky Legislature backed its fearless Senator;[1050] but the
Virginia Assembly weakened at the end. Most of the Kentucky land titles,
which the Supreme Court's decision had protected as against the
"occupying claimants," were, of course, held by Virginians or their
assignees. Virginia conservatives, too, were beginning to realize the
wisdom of Marshall's Nationalist policy as it affected all their
interests, except slavery and tariff taxation; and these men were
becoming hesitant about further attacks on the Supreme Court. Doubtless,
also, Marshall's friends were active among the members of the
Legislature. Roane understood the situation when he begged friends to
"jog up" the apathetic, and bemoaned the quiescence of Jefferson and
Madison. His proposed amendments were lost, though by a very close
vote.[1051]
Nevertheless, the Virginia Localists carried the fight to the floors of
Congress. On April 26, 1822, Andrew Stevenson, one of Roane's
lieutenants and now a member of the National House, demanded the repeal
of Section 25 of the Ellsworth Judiciary Act which gave the Supreme
Court appellate jurisdiction over the State courts. But Stevenson was
unwontedly mild. He offered his resolution "in a spirit of peace and
forbearance.... It was ... due to those States, in which the subject has
been lately so much agitated, as well as to the nation, to have it ...
decided."[1052]
As soon as Congress convened in the winter of 1823, Senator Johnson
renewed the combat; but he had become feeble, even apologetic. He did
not mean to reflect "upon the conduct of the judges, for he believed
them to be highly enlightened and intelligent." Nevertheless, their life
tenure and irresponsibility required that some limit should be fixed to
their powers. So he proposed that the membership of the Supreme Court be
increased to ten, and that at least seven Justices should concur in any
opinion involving the validity of National or State laws.[1053]
Four months later, Senator Martin Van Buren reported from the Judiciary
Committee, a bill "that no law of any of the States shall be rendered
invalid, without the concurrence of at least five Judges of the Supreme
Court; their opinions to be separately expressed."[1054] But the friends
of the Judiciary easily overcame the innovators; the bill was laid on
the table;[1055] and for that session the assault on the Supreme Court
was checked. At the next session, however, Kentucky again brought the
matter before Congress. Charles A. Wickliffe, a Representative from that
State, proposed that writs of error from the Supreme Court be "awarded
to either party," regardless of the decision of the Supreme Court of any
State.[1056] Webster, on the Judiciary Committee, killed Wickliffe's
resolution with hardly a wave of his hand.[1057]
After a reargument of Green _vs._ Biddle, lasting an entire week,[1058]
the Supreme Court stood to its guns and again held the Kentucky land
laws unconstitutional. Yet so grave was the crisis that the decision was
not handed down for a whole year. This time the opinion of the court was
delivered on February 27, 1823, by Bushrod Washington, who held that the
contract clause of the National Constitution was violated, but plainly
considered that "the principles of law and reason"[1059] were of more
importance in this case than the Constitutional provision. Washington's
opinion displays the alarm of the Supreme Court at the assaults upon it:
"We hold ourselves answerable to God, our consciences and our country,
to decide this question according to the dictates of our best judgment,
be the consequences of the decision what they may."[1060]
Kentucky promptly replied. In his Message to the Legislature, Governor
John Adair declared that the Kentucky decisions of the Supreme Court
struck at "the right of the people to govern themselves." The National
authority can undoubtedly employ force to "put down insurrection," but
"that ... day, when the government shall be compelled to resort to the
bayonet to compel a state to submit to its laws, will not long precede
an event of all others to be deprecated."[1061]
One of Marshall's numerous Kentucky kinsmen, who was an active member of
the Legislature, stoutly protested against any attack on the Supreme
Court; nevertheless he offered a resolution reciting the grievances of
the State and proposing an address "to the supreme court of the United
States, in full session," against the decision and praying for "its
total and definitive reversal."[1062] What! exclaimed John Rowan,
another member of the Legislature, shall Kentucky again petition "like
a degraded province of Rome"?[1063] He proposed counter-resolutions that
the Legislature "do ... most solemnly PROTEST ... against the erroneous,
injurious, and degrading doctrines of the opinion ... in ... Green and
Biddle."[1064] When modified, Rowan's resolutions, one of which hinted
at forcible resistance to the mandate of the Supreme Court, passed by
heavy majorities.[1065] Later resolutions openly threatened to "call
forth the physical power of the state, to resist the execution of the
decisions of the court," which were "considered erroneous and
unconstitutional."[1066]
In the same year that the Supreme Court decided the Kentucky land case,
Justice Johnson aroused South Carolina by a decision rendered in the
United States District Court of that State. One Henry Elkison, a negro
sailor and a British subject, was taken by the sheriff of the Charleston
district, from the British ship Homer; and imprisoned under a South
Carolina law which directed the arrest and confinement of any free negro
on board any ship entering the ports of that State, the negro to be
released only when the vessel departed.[1067] Johnson wrathfully
declared that the "unconstitutionality of the law ... will not bear
argument"--nobody denied that it could not be executed "without clashing
with the general powers of the United States, to regulate commerce."
Thereupon, one of the counsel for the State said that the statute must
and would be enforced; and "that if a dissolution [_sic_] of the union
must be the alternative he was ready to meet it"--an assertion which
angered Johnson who delivered an opinion almost as strong in its
Nationalism as those of Marshall.[1068]
Throughout South Carolina and other slaveholding States, the action of
Justice Johnson inflamed the passions of the white population. "A high
state of excitement exists," chronicles Niles.[1069] Marshall, of
course, heard of the outcry against his associate and promptly wrote
Story: "Our brother Johnson, I perceive, has hung himself on a
democratic snag in a hedge composed entirely of thorny state rights in
South Carolina.... You ... could scarcely have supposed that it
[Johnson's opinion] would have excited so much irritation as it seems to
have produced. The subject is one of much feeling in the South.... The
decision has been considered as another act of judicial usurpation; but
the sentiment has been avowed that if this be the constitution, it is
better to break that instrument than submit to the principle.... Fuel is
continually adding to the fire at which _exaltées_ are about to roast
the judicial department."[1070]
The Governor and Legislature of South Carolina fiercely maintained the
law of the State--it was to them a matter of "self-preservation." Niles
was distressingly alarmed. He thought that the collision of South
Carolina with the National Judiciary threatened to disturb the harmony
of the Republic as much as the Missouri question had done.[1071]
This, then, was the situation when the Ohio Bank case reached the
Supreme Court.[1072] Seven States were formally in revolt against the
National Judiciary, and others were hostile. Moreover, the protective
Tariff of 1824 was under debate in Congress; its passage was certain,
while in the South ever-growing bitterness was manifesting itself toward
this plundering device of Nationalism as John Taylor branded it. In the
House Southern members gave warning that the law might be forcibly
resisted.[1073] The first hints of Nullification were heard. Time and
again Marshall's Nationalist construction of the Constitution was
condemned. To the application of his theory of government was laid most
of the abuses of which the South complained; most of the dangers the
South apprehended.
Thus again stands out the alliance of the various forces of
Localism--slavery, State banking, debtors' relief laws, opposition to
protective tariffs--which confronted the Supreme Court with threats of
physical resistance to its decrees and with the ability to carry out
those threats.
Two arguments were had in Osborn _vs._ The Bank of the United States,
the first by Charles Hammond and by Henry Clay for the Bank;[1074] the
second by John C. Wright, Governor Ethan Allen Brown, and Robert Goodloe
Harper, for Ohio, and by Clay, Webster, and John Sergeant for the Bank.
Arguments on both sides were notable, but little was presented that was
new. Counsel for Ohio insisted that the court had no jurisdiction, since
the State was the real party against which the proceedings in the United
States Court in Ohio were had. Clay made the point that the Ohio tax,
unlike that of Maryland, "was a confiscation, and not a tax.... Is it
possible," he asked, "that ... the law of the whole may be defeated ...
by a single part?"[1075]
On March 19, 1824, Marshall delivered the opinion of the court. All
well-organized governments, he begins, "must possess, within themselves,
the means of expounding, as well as enforcing, their own laws." The
makers of the Constitution kept constantly in view this great political
principle. The Judiciary Article "enables the judicial department to
receive jurisdiction to the full extent of the constitution, laws, and
treaties of the United States.... That power is capable of acting only
when the subject is submitted to it by a party who asserts his rights in
the form prescribed by law. It then becomes a case" over which the
Constitution gives jurisdiction to the National courts. "The suit of
The Bank of the United States _v._ Osborn _et al._, is a case, and the
question is, whether it arises under a law of the United States."[1076]
The fact that other questions are involved does not "withdraw a case"
from the jurisdiction of the National courts; otherwise, "almost every
case, although involving the construction of a [National] law, would be
withdrawn; and a clause in the constitution, relating to a subject of
vital importance to the government and expressed in the most
comprehensive terms, would be construed to mean almost nothing."
It is true that the Constitution specifies the cases in which the
Supreme Court shall have original jurisdiction, but nowhere in the
Constitution is there any "prohibition" against Congress giving the
inferior National courts original jurisdiction; such a restriction is
not "insinuated." Congress, then, can give the National Circuit Courts
"original jurisdiction, in any case to which the appellate jurisdiction
[of the Supreme Court] extends."[1077]
At this particular period of our history this was, indeed, a tremendous
expansion of the power of Congress and the National Judiciary. Marshall
flatly declares that Congress can invest the inferior National courts
with any jurisdiction whatsoever which the Constitution does not
prohibit. It marks another stage in the development of his
Constitutional principle that the National Government not only has all
powers expressly granted, but also all powers not expressly prohibited.
For that is just what Marshall's reasoning amounts to during these
crucial years.
No matter, continues the Chief Justice, how many questions, other than
that affecting the Constitution or laws, are involved in a case; if any
National question "forms an ingredient of the original cause," Congress
can "give the circuit courts jurisdiction of that cause." The Ohio Bank
case "is of this description." All the Bank's powers, functions, and
duties are conferred or imposed by its charter, and "that charter is a
law of the United States.... Can a being, thus constituted, have a case
which does not arise literally, as well as substantially, under the
law?"[1078]
If the Bank brings suits on a contract, the very first, the "foundation"
question is, "has this legal entity a right to sue?... This depends on a
law of the United States"--a fact that can never be waived. "Whether it
be in fact relied on or not, in the defense, it is still a part of the
cause, and may be relied on."[1079] Assume, as counsel for Ohio assert,
that "the case arises on the contract"; still, "the validity of the
contract depends on a law of the United States.... The case arises
emphatically under the law. The act of Congress is its foundation....
The act itself is the first ingredient in the case; is its origin; is
that from which every other part arises."[1080]
Marshall concedes that the State is directly interested in the suit and
that, if the Bank could have done so, it ought to have made the State a
party. "But this was not in the power of the bank," because the Eleventh
Amendment exempts a State from being sued in such a case. So the "very
difficult question" arises, "whether, in such a case, the court may act
upon the agents employed by the state, and on the property in their
hands."[1081]
Just what will be the result if the National courts have not this power?
"A denial of jurisdiction forbids all inquiry into the nature of the
case," even of "cases perfectly clear in themselves; ... where the
government is in the exercise of its best-established and most essential
powers." If the National courts have no jurisdiction over the agents of
a State, then those agents, under the "authority of a [State] law void
in itself, because repugnant to the constitution, may arrest the
execution of any law in the United States"--this they may do without any
to say them nay.[1082]
In this fashion Marshall leads up to the serious National problem of the
hour--the disposition of some States, revealed by threats and sometimes
carried into execution, to interfere with the officers of the National
Government in the execution of the Nation's laws. According to the
Ohio-Virginia-Kentucky idea, those officers "can obtain no protection
from the judicial department of the government. The carrier of the mail,
the collector of the revenue,[1083] the marshal of a district, the
recruiting officer, may all be inhibited, under ruinous penalties, from
the performance of their respective duties"; and not one of them can
"avail himself of the preventive justice of the nation to protect him in
the performance of his duties."[1084]
Addressing himself still more directly to those who were flouting the
authority of the Nation and preaching resistance to it, Marshall uses
stern language. What is the real meaning of the anti-National crusade;
what the certain outcome of it? "Each member of the Union is capable, at
its will, of attacking the nation, of arresting its progress at every
step, of acting vigorously and effectually in the execution of its
designs, while the nation stands naked, stripped of its defensive armor,
and incapable of shielding its agent or executing its laws, otherwise
than by proceedings which are to take place after the mischief is
perpetrated, and which must often be ineffectual, from the inability of
the agents to make compensation."
Once more Marshall cites the case of a State "penalty on a revenue
officer, for performing his duty," and in this way warns those who are
demanding forcible obstruction of National law or authority, that they
are striking at the Nation and that the tribunals of the Nation will
shield the agents and officers of the Nation: "If the courts of the
United States cannot rightfully protect the agents who execute every law
authorized by the constitution, from the direct action of state agents
in the collecting of penalties, they cannot rightfully protect those who
execute any law."[1085]
Here, in judicial language, was that rebuke of the spirit of
Nullification which Andrew Jackson was soon to repeat in words that rang
throughout the land and which still quicken the pulses of Americans.
What is the great question before the court in the case of Osborn _vs._
The Bank of the United States; what, indeed, the great question before
the country in the controversy between recalcitrant States and the
imperiled Nation? It is, says Marshall, "whether the constitution of the
United States has provided a tribunal which can peacefully and
rightfully protect those who are employed in carrying into execution the
laws of the Union, from the attempts of a particular state to resist the
execution of those laws."
Ohio asserts that "no preventive proceedings whatever," no action even
to stay the hand of a State agent from seizing property, no suit to
recover it from that agent, can be maintained because it is brought
"substantially against the State itself, in violation of the 11th
amendment of the constitution." Is this true? "Is a suit, brought
against an individual, for any cause whatever, a suit against a state,
in the sense of the constitution?"[1086] There are many cases in which a
State may be vitally interested, as, for example, those involving grants
of land by different States.
If the mere fact that the State is "interested" in, or affected by, a
suit makes the State a party, "what rule has the constitution given, by
which this interest is to be measured?" No rule, of course! Is then the
court to decide the _degree_ of "interest" necessary to make a State a
party? Absurd! since the court would have to examine the "whole
testimony of a cause, inquiring into, and deciding on, the extent of a
State's interest, without having a right to exercise any jurisdiction
in the case."[1087]
At last he affirms that it may be "laid down as a rule which admits of
no exception, that, in all cases where jurisdiction depends on the
party, it is the party _named in the record_." Therefore, the Eleventh
Amendment is, "of necessity, limited to those suits in which a state is
a party _on the record_."[1088] In the Ohio Bank case, it follows that,
"the state not being a party on the record, and the court having
jurisdiction over those who are parties on the record, the true question
is, not one of jurisdiction, but whether" the officers and agents of
Ohio are "only nominal parties" or whether "the court ought to make a
decree" against them.[1089] The answer to this question depends on the
constitutionality of the Ohio tax law. Although that exact point was
decided in M'Culloch _vs._ Maryland,[1090] "a revision of that opinion
has been requested; and many considerations combine to induce a review
of it."[1091]
Maryland and Ohio claim the right to tax the National Bank as an
"individual concern ... having private trade and private profit for its
great end and principal object." But this is not true; the Bank is a
"public corporation, created for public and national purposes"; the fact
that it transacts "private as well as public business" does not destroy
its character as the "great instrument by which the fiscal operations of
the government are effected."[1092] Obviously the Bank cannot live
unless it can do a general business as authorized by its charter. This
being so, the right to transact such business "is necessary to the
legitimate operations of the government, and was constitutionally and
rightfully engrafted on the institution." Indeed, the power of the Bank
to engage in general banking is "the vital part of the corporation; it
is its soul." As well say that, while the human body must not be
touched, the "vivifying principle" which "animates" it may be destroyed,
as to say that the Bank shall not be annihilated, but that the faculty
by which it exists may be extinguished.
For a State, then, to tax the Bank's "faculties, its trade and
occupation, is to tax the Bank itself. To destroy or preserve the one,
is to destroy or preserve the other."[1093] The mere fact that the
National Government created this corporation does not relieve it from
"state authority"; but the "operations" of the Bank "give its value to
the currency in which all the transactions of the government are
conducted." In short, the Bank's business is "inseparably connected"
with the "transactions" of the Government. "Its corporate character is
merely an incident, which enables it to transact that business more
beneficially."[1094]
The Judiciary "has no will, in any case"--no option but to execute the
law as it stands. "Judicial power, as contradistinguished from the power
of the laws, has no existence. Courts are the mere instruments of the
law, and can will nothing." They can exercise no "discretion," except
that of "discerning the course prescribed by law; and, when that is
discerned, it is the duty of the court to follow it. Judicial power is
never exercised for the purpose of giving effect to the will of the
judge; always for the purpose of giving effect to the will of the
legislature."[1095] This passage, so wholly unnecessary to the decision
of the case or reasoning of the opinion, was inserted as an answer to
the charges of judicial "arrogance" and "usurpation."
In conclusion, Marshall holds that the Ohio law taxing the National
Bank's branches is unconstitutional and void; that the State is not a
"party on the record"; that Osborn, Harper, Currie, and Sullivan are
"incontestably liable for the full amount of the money taken out of the
Bank"; that this money may be pursued, since it "remained a distinct
deposit"--in fact, was "kept untouched, in a trunk, by itself, ... to
await the event of the pending suit respecting it."[1096] The judgment
of the lower court that the money must be restored to the Bank was
right; but the judgment was wrong in charging interest against the State
officers, since they "were restrained by the authority of the Circuit
Court from using "the money, taken and held by them.[1097]
So everybody having an immediate personal and practical interest in that
particular case was made happy, and only the State Rights theorists were
discomfited. It was an exceedingly human situation, such as Marshall,
the politician, managed to create in his disposition of those cases that
called for his highest judicial statesmanship. No matter how acutely he
irritated party leaders and forced upon them unwelcome issues, Marshall
contrived to satisfy the persons immediately interested in most of the
cases he decided.
The Chief Justice himself was a theorist--one of the greatest theorists
America has produced; but he also had an intimate acquaintance with
human nature, and this knowledge he rightly used, in the desperate
conflicts waged by him, to leave his antagonists disarmed of those
weapons with which they were wont to fight.
Seemingly Justice Johnson dissented; but, burning with anger at South
Carolina's defiance of his action in the negro sailor case, he
strengthened Marshall's opinion in his very "dissent." This is so
conspicuously true that it may well be thought that Marshall inspired
Johnson's "disagreement" with his six brethren of the Supreme Court.
Whether the decision was "necessary or unnecessary originally," begins
Johnson, "a _state of things has now grown up, in some of the states_,
which renders all the protection necessary, that the general government
can give to this bank."[1098] He makes a powerful and really stirring
appeal for the Bank, but finally concludes, on technical grounds, that
the Supreme Court has no jurisdiction.[1099]
Immediately the fight upon the Supreme Court was renewed in Congress. On
May 3, 1824, Representative Robert P. Letcher of Kentucky rose in the
House and proposed that the Supreme Court should be forbidden by law to
hold invalid any provision of a State constitution or statute unless
five out of the seven Justices concurred, each to give his opinion
"separately and distinctly," if the court held against the State.[1100]
Kentucky, said Letcher, had been deprived of "equal rights and
privileges." How? By "_construction_.... Yes, construction! Its mighty
powers are irresistible; ... it creates new principles; ... it destroys
laws long since established; and it is daily acquiring new
strength."[1101] John Forsyth of Georgia proposed as a substitute to
Letcher's resolutions that, for the transaction of business, "a majority
of the quorum" of the Supreme Court "shall be a majority of the whole
court, including the Chief Justice." A long and animated debate[1102]
ensued in which Clay, Webster, Randolph, and Philip P. Barbour, among
others, took part.
David Trimble of Kentucky declared that "no nation ought to submit, to
an umpire of minorities.[1103]... If less than three-fourths of the
States cannot amend the Constitution, less than three-fourths of the
judges ought not to construe it"--for judicial constructions are
"explanatory amendments" by which "the person and property of every
citizen must stand or fall."[1104]
So strong had been the sentiment for placing some restraint on the
National Judiciary that Webster, astute politician and most resourceful
friend of the Supreme Court, immediately offered a resolution that, in
any cause before the Supreme Court where the validity of a State law or
Constitution is drawn in question "on the ground of repugnancy to the
Constitution, treaties, or laws, of the United States, no judgment shall
be pronounced or rendered until a majority of all the justices ...
legally competent to sit, ... shall concur in the opinion."[1105]
But Marshall's opinion in Gibbons _vs._ Ogden[1106] had now reached the
whole country and, for the time being, changed popular hostility to the
Supreme Court into public favor toward it. The assault in Congress died
away and Webster allowed his soothing resolution to be forgotten. When
the attack on the National Judiciary was again renewed, the language of
its adversaries was almost apologetic.
FOOTNOTES:
[947] _Annals_, 16th Cong. 1st Sess. 107-08.
[948] _Ib._ 175.
[949] _Ib._ 275.
[950] _Ib._ 359.
[951] _Annals_, 16th Cong. 1st Sess. 1033.
[952] _Ib._ 209. The Justices of the Supreme Court followed the
proceedings in Congress with the interest and accuracy of politicians.
(See, for example, Story's comments on the Missouri controversy, Story
to White, Feb. 27, 1820, Story, I, 362.)
[953] _Annals_, 16th Cong. 1st Sess. 1106-07.
[954] For instance, Joshua Cushman of Massachusetts was sure that,
instead of disunion, "the Canadas, with New Brunswick and Nova Scotia,
allured by the wisdom and beneficence of our institutions, will stretch
out their hands for an admission into this Union. The Floridas will
become a willing victim. Mexico will mingle her lustre with the federal
constellation. South America ... will burn incense on our ... altar. The
Republic of the United States shall have dominion from sea to sea, ...
from the river Columbia to the ends of the earth. The American Eagle ...
will soar aloft to the stars of Heaven." (_Ib._ 1309.)
[955] May 3, 1802, _U.S. Statutes at Large_. This act, together with a
supplementary act (May 4, 1812, _ib._), is a vivid portrayal of a phase
of the life of the National Capital at that period. See especially
Section VI.
[956] Lotteries had long been a favorite method of raising funds for
public purposes. As a member of the Virginia House of Delegates,
Marshall had voted for many lottery bills. (See vol. II, footnote 1, to
56, of this work.) For decades after the Constitution was adopted,
lotteries were considered to be both moral and useful.
[957] Effective January 21, 1820.
[958] 6 Wheaton, 266-67.
[959] _Ib._ 268-90.
[960] William Pinkney was at this time probably the highest paid lawyer
in America. Five years before he argued the case of Cohens _vs._
Virginia, his professional income was $21,000 annually (Story to White,
Feb. 26, 1816, Story, I, 278), more than four times as much as Marshall
ever received when leader of the Richmond bar (see vol. II, 201, of this
work). David B. Ogden, the other counsel for the Cohens, was one of the
most prominent and successful lawyers of New York. See Warren, 303-04.
Another interesting fact in this celebrated case is that the Norfolk
Court fined the Cohens the minimum allowed by the Virginia statute. They
could have been fined at least $800, $100 for each offense--perhaps
should have been fined that amount had the law been strictly observed.
Indeed, the Virginia Act permitted a fine to the extent of "the whole
sum of money proposed to be raised by such lottery." (6 Wheaton, 268.)
[961] Barbour declined a large fee offered him by the State. (Grigsby:
_Virginia Convention of 1829-30_.)
[962] 6 Wheaton, 344.
[963] _Ib._ 347.
[964] _Ib._ 354.
[965] 6 Wheaton, 375. For a better report of Pinkney's speech see
Wheaton: _Pinkney_, 612-16.
[966] _Ib._ 376.
[967] See _supra_, 157-58.
[968] 6 Wheaton, 377.
[969] 6 Wheaton, 380.
[970] _Ib._ 381.
[971] 6 Wheaton, 382. (Italics the author's.)
[972] _Ib._ 382.
[973] 6 Wheaton, 384-85. (Italics the author's.)
[974] See vol. II, 66, of this work.
[975] 6 Wheaton, 87.
[976] _Ib._ 385-86.
[977] _Ib._ 387.
[978] 6 Wheaton, 386-87.
[979] See U.S. _vs._ Peters, _supra_, 18 _et seq._
[980] 6 Wheaton, 387-88.
[981] 6 Wheaton, 388.
[982] 6 Wheaton, 389-90.
[983] 6 Wheaton, 390-91.
[984] _Ib._ 393.
[985] _Ib._ 394-404.
[986] _Ib._ 405.
[987] See vol. III, 127-28, of this work.
[988] 6 Wheaton, 406-07.
[989] _Ib._ 413.
[990] 6 Wheaton, 413-14.
[991] Fairfax's Devisee _vs._ Hunter, _supra_, 157-60.
[992] 6 Wheaton, 420.
[993] _Ib._ 424.
[994] _Ib._ 425-26.
[995] 6 Wheaton, 429.
[996] _Ib._ 445-47.
[997] Ambler: _Ritchie_, 81.
[998] _Enquirer_, May 25, 1821, as quoted in _Branch Hist. Papers_,
June, 1906, 78, 85.
[999] _Enquirer_, May 25 and May 29, 1821, as quoted in _ib._ 89, 100.
[1000] _Enquirer_, May 29, 1821, as quoted in _ib._ 101.
[1001] _Enquirer_, June 21, 1821, as quoted in _ib._ 110.
[1002] _Branch Hist. Papers_, June, 1906, 119.
[1003] _Ib._ 123-24.
[1004] _Enquirer_, June 5, 1821, as quoted in _Branch Hist. Papers_,
June, 1906, 146-47.
[1005] _Ib._ 182-83.
[1006] Marshall to Story, June 15, 1821, _Proceedings, Mass. Hist. Soc._
2d Series, XIV, 327-28.
[1007] Marshall refers to three papers published in the _Enquirer_ of
May 15 and 22, and June 22, the first two signed "Somers" and the third
signed "Fletcher of Saltoun." It is impossible to discover who these
writers were. Their essays, although vicious, are so dull as not to be
worth the reading, though Jefferson thought them "luminous and
striking." (Jefferson to Johnson, June 12, 1823, _Works_: Ford, XII,
252, footnote.)
"Somers," however, is compelled to admit the irresistible appeal of
Marshall's personality. "Superior talents and address will forever
attract the homage of inferior minds." (_Enquirer_, May 15, 1821.)
"The Supreme court ... have rendered the constitution the sport of legal
ingenuity.... Its meaning is locked up from the profane vulgar, and
distributed only by the high priests of the temple." (_Ib._ May 22,
1821.)
"Fletcher of Saltoun" is intolerably verbose: "The victories ... of
courts ... though bloodless, are generally decisive.... The progress of
the judiciary, though slow, is steady and untiring as the foot of time."
The people act as though hypnotized, he laments--"the powerful mind of
the chief justice has put forth its strength, and we are quiet as if
touched by the wand of enchantment;--we fall prostrate before his genius
as though we had looked upon the dazzling brightness of the shield of
Astolfo.--Triumphant indeed has been this most powerful effort of his
extraordinary mind. His followers exult--those who doubted, have
yielded; even the faithful are found wavering, and the unconvinced can
find no opening in his armor of defense."
This writer points out Marshall's "abominable inconsistencies," but
seems to be himself under the spell of the Chief Justice: "I mention not
this to the disadvantage of the distinguished individual who has
pronounced these conflicting opinions. No man can have a higher respect
for the virtues of his character, or greater admiration of the powers of
his mind."
Alas for the change that time works upon the human intellect! Consider
Marshall, the young man, and Marshall, the Chief Justice! "How little
did he, at that early day, contemplate the possibility of his carrying
the construction of the constitution to an extent so far beyond even
what he then renounced!" [_sic._]
Thereupon "Fletcher of Saltoun" plunges into an ocean of words
concerning Hamilton's theories of government and Marshall's application
of them. He announces this essay to be the first of a series; but,
luckily for everybody, this first effort exhausted him. Apparently he,
too, fell asleep under Marshall's "wand," for nothing more came from his
drowsy pen. (_Ib._ June 22, 1821.)
[1008] Marshall to Story, July 13, 1821, _Proceedings, Mass. Hist. Soc._
2d Series, XIV, 329.
[1009] Jefferson to Jarvis, Sept. 28, 1820, _Works_: Ford, XII, 162-63.
[1010] Marshall to Story, July 13, 1821, _Proceedings, Mass. Hist. Soc._
2d Series, XIV, 328-29.
[1011] Same to same, Sept. 18, 1821, _ib._ 330.
[1012] Marshall to Story, July 13, 1821, _Proceedings, Mass. Hist. Soc._
2d Series, XIV, 329-30.
[1013] Marshall to Story, July 13, 1821, _Proceedings, Mass. Hist. Soc._
2d Series, XIV, 330-31.
[1014] Taylor: _Tyranny Unmasked_, 89.
[1015] This was Madison's idea. See vol. I, 312, of this work.
[1016] Taylor: _Tyranny Unmasked_, 33.
[1017] M'Culloch _vs._ Maryland.
[1018] Martin _vs._ Hunter's Lessee and Cohens _vs._ Virginia.
[1019] Cohens _vs._ Virginia.
[1020] Taylor: _Tyranny Unmasked_, 132-33.
[1021] Taylor: _Tyranny Unmasked_, 133-254. Taylor was the first to
state fully most of the arguments since used by the opponents of
protective tariffs.
[1022] _Ib._ 260.
[1023] _Ib._ 285.
[1024] _Ib._ 305.
[1025] _Ib._ 341.
[1026] Jefferson to Thweat, Jan. 19, 1821, _Works_: Ford, XII, 196-97.
Wirt, though a Republican, asserted that "the functions to be performed
by the Supreme Court ... are among the most difficult and perilous which
are to be performed under the Constitution. They demand the loftiest
range of talents and learning and a soul of Roman purity and firmness.
The questions which come before them frequently involve the fate of the
Constitution, the happiness of the whole nation." (Wirt to Monroe, May
5, 1823, Kennedy, II, 153.)
Wirt, in this letter, was urging the appointment of Kent to the Supreme
Bench, notwithstanding the Federalism of the New York Chancellor.
"Federal politics are no way dangerous on the bench of the Supreme
Court," adds Wirt. (_Ib._ 155.)
[1027] His strange failure to come to Roane's support in the fight, over
the Judiciary amendments to the Constitution, in the Virginia
Legislature during the session of 1821-22. (See _infra_, 371.)
[1028] Jefferson to Johnson, June 12,1823, _Works_: Ford, XII, footnote
to 255-56.
[1029] Jefferson to Livingston, March 25, 1825, Hunt: _Livingston_,
295-97.
[1030] _Annals_, 17th Cong. 1st Sess. 68.
[1031] Roane to Thweat, Dec. 24, 1821, Jefferson MSS. Lib. Cong.
[1032] _Annals_, 17th Cong. 1st Sess. 69-70.
[1033] _Ib._ 71-72.
[1034] _Annals_, 17th Cong. 1st Sess. 74-75.
[1035] _Ib._ 79.
[1036] _Ib._ 79-80.
[1037] _Annals_, 17th Cong. 1st Sess. 84-90.
[1038] Webster to Story, Jan. 14, 1822, _Priv. Corres._: Webster, I,
320.
[1039] Ordinance of Separation, 1789.
[1040] Act of Feb. 27, _Laws of Kentucky_, 1797: Littell, 641-45. See
also Act of Feb. 28 (_ib._ 652-71), apparently on a different subject;
and, especially, Act of March 1 (_ib._ 682-87). Compare Act of 1796
(_ib._ 392-420); and Act of Dec. 19, 1796 (_ib._ 554-57). See also in
_ib._ general land laws.
[1041] 8 Wheaton, 11-12. (Italics the author's.)
[1042] _Ib._ 18.
[1043] _Annals_, 17th Cong. 1st Sess. 96-98.
[1044] _Annals_, 17th Cong. 1st Sess. 102.
[1045] _Ib._ 103.
[1046] _Ib._ 104.
[1047] _Ib._ 108.
[1048] Georgia, Fletcher _vs._ Peck (see vol. III, chap, X, of this
work); Pennsylvania, U.S. _vs._ Peters (_supra_, chap. I); New Jersey,
New Jersey _vs._ Wilson (_supra_, chap. V); New Hampshire, Dartmouth
College _vs._ Woodward (_supra_, chap. V); New York, Sturges _vs._
Crowninshield (_supra_, chap. IV); Maryland, M'Culloch _vs._ Maryland
(_supra_, chap. VI); Virginia, Cohens _vs._ Virginia (_supra_, chap.
VII); Kentucky, Green _vs._ Biddle (_supra_, this chapter).
[1049] _Annals_, 17th Cong. 1st Sess. 113.
[1050] Niles, XXI, 404.
[1051] _Ib._ The resolutions, offered by John Wayles Eppes, Jefferson's
son-in-law, "_instructed_" Virginia's Senators and requested her
Representatives in Congress to "procure" these amendments to the
Constitution:
1. The judicial power shall not extend to any power "not expressly
granted ... or _absolutely_ necessary for carrying the same into
execution."
2. Neither the National Government nor any department thereof shall have
power to bind "_conclusively_" the States in conflicts between Nation
and State.
3. The judicial power of the Nation shall never include "_any_ case in
which a State shall be a party," except controversies between States;
nor cases involving the rights of a State "to which such a state shall
ask to become a party."
4. No appeal to any National court shall be had from the decisions of
any State court.
5. Laws applying to the District of Columbia or the Territories, which
conflict with State laws, shall not be enforceable within State
jurisdiction. (Niles, XXI, 404.)
[1052] _Annals_, 17th Cong. 1st Sess. 1682.
[1053] _Ib._, 18th Cong. 1st Sess. 28.
[1054] _Annals_, 18th Cong. 1st Sess. 336.
[1055] _Ib._ 419.
[1056] _Ib._ 915.
[1057] Webster, from the Judiciary Committee, which he seems to have
dominated, merely reported that Wickliffe's proposed reform was "not
expedient." (_Annals_, 18th Cong. 1st Sess. 1291.)
[1058] March 7 to 13, 1822, inclusive.
[1059] 8 Wheaton, 75.
[1060] 8 Wheaton, 93. Johnson dissented. (_Ib._ 94-107.) Todd of
Kentucky was absent because of illness, a circumstance that greatly
worried Story, who wrote the sick Justice: "We have missed you
exceedingly during the term and particularly in the Kentucky causes....
We have had ... tough business" and "wanted your firm vote on many
occasions." (Story to Todd, March 24, 1823, Story, I, 422-23.)
[1061] Niles, XXV, 203-05.
[1062] _Ib._ 206.
[1063] Niles, XXV, 205.
[1064] _Ib._ 261.
[1065] _Ib._ 275-76.
[1066] _Ib._ XXIX, 228-29.
[1067] _Ib._ XXV, 12; and see Elkison _vs._ Deliesseline, 8 _Federal
Cases_, 493.
[1068] Niles, XXV, 13-16.
[1069] _Ib._ 12; and see especially _ib._ XXVII, 242-43.
[1070] Marshall to Story, Sept. 26, 1823, Story MSS. Mass. Hist. Soc.
[1071] Niles, XXVII, 242. The Senate of South Carolina resolved by a
vote of six to one that the duty of the State to "guard against
insubordination or insurrection among our colored population ... is
paramount to all _laws_, all _treaties_, all _constitutions_ ... and
will never, by this state, be renounced, compromised, controlled or
participated with any power whatever."
Johnson's decision is viewed as "an unconstitutional interference" with
South Carolina's slave system, and the State "will, on this subject, ...
make common cause with ... other southern states similarly circumstanced
in this respect." (Niles, XXVII, 264.) The House rejected the savage
language of the Senate and adopted resolutions moderately worded, but
expressing the same determination. (_Ib._ 292.)
[1072] For the facts in Osborn _vs._ The Bank of the United States, see
_supra_, 328-329.
[1073] See, for instance, speech of John Carter of South Carolina.
(_Annals_, 18th Cong. 1st Sess. 2097; and upon this subject, generally,
see _infra_, chap. X.)
[1074] Who appeared for Ohio on the first argument is not disclosed by
the records.
[1075] 9 Wheaton, 795-96.
[1076] 9 Wheaton, 818-19.
[1077] _Ib._ 819-21.
[1078] 9 Wheaton, 823.
[1079] _Ib._ 823-24.
[1080] _Ib._ 824-25.
[1081] 9 Wheaton, 846-47.
[1082] _Ib._ 847.
[1083] Marshall here refers to threats to resist forcibly the execution
of the Tariff of 1824. See _infra_, 535-36.
[1084] 9 Wheaton, 847-48.
[1085] 9 Wheaton, 848-49.
[1086] 9 Wheaton, 849.
[1087] _Ib._ 852-53.
[1088] 9 Wheaton, 857. (Italics the author's.)
[1089] _Ib._ 858.
[1090] See _supra_, chap, VI.
[1091] 9 Wheaton, 859.
[1092] _Ib._ 859-60.
[1093] 9 Wheaton, 861-62.
[1094] _Ib._ 862-63.
[1095] 9 Wheaton, 866.
[1096] _Ib._ 868-69.
[1097] _Ib._ 871.
[1098] 9 Wheaton, 871-72. (Italics the author's.) In reality Johnson is
here referring to the threats of physical resistance to the proposed
tariff law of 1824. (See _infra_, chap. X.)
[1099] _Ib._ 875-903.
[1100] _Annals_, 18th Cong. 1st Sess. 2514.
[1101] _Ib._ 2519-20.
[1102] _Ib._ 2527. This debate was most scantily reported. Webster wrote
of it: "We had the Supreme Court before us yesterday.... A debate arose
which lasted all day. Cohens _v._ Virginia, Green and Biddle, &c. were
all discussed.... The proposition for the concurrence of five judges
will not prevail." (Webster to Story, May 4, 1824, _Priv. Corres._:
Webster, I, 350.)
[1103] _Annals_, 18th Cong. 1st Sess. 2538.
[1104] _Ib._ 2539.
[1105] _Annals_, 18th Cong. 1st Sess. 2541.
Throughout this session Webster appears to have been much disturbed. For
example, as early as April 10, 1824, he writes Story: "I am exhausted.
When I look in the glass, I think of our old New England saying, 'As
thin as a shad.' I have not vigor enough left, either mental or
physical, to try an action for assault and battery.... I shall call up
some bills reported by our [Judiciary] committee.... The gentlemen of
the West will propose a clause, requiring the assent of a majority of
all the judges to a judgment, which pronounces a state law void, as
being in violation of the constitution or laws of the United States. Do
you see any great evil in such a provision? Judge Todd told me he
thought it would give great satisfaction in the West. In what
phraseology would you make such a provision?" (Webster to Story, April
10, 1824, _Priv. Corres._: Webster, I, 348-49.)
[1106] See next chapter.
CHAPTER VIII
COMMERCE MADE FREE
Marshall's decision involved in its consequences the existence
of the Union. (John F. Dillon.)
Opposing rights to the same thing cannot exist under the
Constitution of our country. (Chancellor Nathan Sanford.)
Sir, we shall keep on the windward side of treason, but we must
combine to resist these encroachments,--and that effectually.
(John Randolph.)
That uncommon man who presides over the Supreme Court is, in all
human probability, the ablest Judge now sitting on any judicial
bench in the world. (Martin Van Buren.)
At six o'clock in the evening of August 9, 1803, a curious assembly of
curious people was gathered at a certain spot on the banks of the Seine
in Paris. They were gazing at a strange object on the river--the model
of an invention which was to affect the destinies of the world more
powerfully and permanently than the victories and defeats of all the
armies that, for a dozen years thereafter, fought over the ancient
battle-fields of Europe from Moscow to Madrid. The occasion was the
first public exhibition of Robert Fulton's steamboat.
France was once more gathering her strength for the war which, in May,
Great Britain had declared upon her; and Bonaparte, as First Consul, was
in camp at Boulogne. Fulton had been experimenting for a long time, and
the public exhibition now in progress would have been made months
earlier had not an accident delayed it. His activities had been reported
to Bonaparte, who promptly ordered members of the Institute[1107] to
attend the exhibition and report to him on the practicability of the
invention, which, he wrote, and in italics, "_may change the face of the
world_."[1108] Prominent, therefore, among the throng were these learned
men, doubting and skeptical as mere learning usually is.
More conspicuous than Bonaparte's scientific agents, and as interested
and confident as they were indifferent or scornful, was a tall man of
distinguished bearing, whose powerful features, bold eyes, aggressive
chin, and acquisitive nose indicated a character of unyielding
determination, persistence, and hopefulness. This was the American
Minister to France, Robert R. Livingston of New York, who, three months
before, had conducted the Louisiana Purchase. By his side was Fulton
himself, a man of medium height, slender and erect, whose intellectual
brow and large, speculative eyes indicated the dreamer and contriver.
The French scientists were not impressed, and the French Government
dropped consideration of the subject. But Fulton and Livingston were
greatly encouraged. An engine designed by Fulton was ordered from a
Birmingham manufacturer and, when constructed, was shipped to America.
For many years inventive minds had been at work on the problem of steam
navigation. Because of the cost and difficulties of transportation, and
the ever-growing demand for means of cheap and easy water carriage, the
most active and fruitful efforts to solve the problem had been made in
America.[1109] Livingston, then Chancellor of New York, had taken a deep
and practical interest in the subject.[1110] He had constructed a boat
on the Hudson, and was so confident of success that, five years before
the Paris experiments of Fulton, he had procured from the New York
Legislature an act giving him the exclusive right for twenty years to
navigate by steamboats the streams and other waters of the State,
provided that, within a year, he should build a boat making four miles
an hour against the current of the Hudson.[1111] The only difficulty
Livingston encountered in securing the passage of this act was the
amused incredulity of the legislators. The bill "was a standing subject
of ridicule" and had to run the gamut of jokes, jeers, and
raillery.[1112] The legislators did not object to granting a monopoly on
New York waters for a century or for a thousand years,[1113] provided
the navigation was by steam; but they required, in payment to
themselves, the price of derision and laughter.
Livingston failed to meet in time the conditions of the steamboat act,
but, with Livingston tenacity,[1114] persevered in his efforts to build
a practicable vessel. When, in 1801, he arrived in Paris as American
Minister, his mind was almost as full of the project as of his delicate
and serious official tasks.
Robert Fulton was then living in the French Capital, working on his
models of steamboats, submarines, and torpedoes, and striving to
interest Napoleon in his inventions.[1115] Livingston and Fulton soon
met; a mutual admiration, trust, and friendship followed and a
partnership was formed.[1116] Livingston had left his interests in the
hands of an alert and capable agent, Nicholas J. Roosevelt, who, in
1803, had no difficulty in securing from the now hilarious New York
Legislature an extension of Livingston's monopoly for twenty years upon
the same terms as the first.[1117] Livingston resigned his office and
returned home. Within a year Fulton joined his partner.
The grant of 1803 was forfeited like the preceding one, because its
conditions had not been complied with in time, and another act was
passed by the Legislature reviving the grant and extending it for two
years.[1118] Thus encouraged and secured, Fulton and Livingston put
forth every effort, and on Monday, August 17, 1807, four years and eight
days after the dramatic exhibition on the river Seine in Paris, the
North River,[1119] the first successful steamboat, made her voyage up
the Hudson from New York to Albany[1120] and the success of the great
enterprise was assured.
On April 11, 1808, a final law was enacted by the New York Legislature.
The period of ridicule had passed; the members of that body now voted
with serious knowledge of the possibilities of steam navigation. The new
act provided that, for each new boat "established" on New York waters by
Livingston and Fulton and their associates, they should be "entitled to
five years prolongation of their grant _or contract_ with this state,"
the "whole term" of their monopoly not to exceed thirty years. All other
persons were forbidden to navigate New York waters by steam craft
without a license from Livingston and Fulton; and any unlicensed vessel,
"together with the engine, tackle and apparel thereof," should be
forfeited to them.[1121]
Obedient to "the great god, Success," the public became as enthusiastic
and friendly as it had been frigid and hostile and eagerly patronized
this pleasant, cheap, and expeditious method of travel. The profits
quickly justified the faith and perseverance of Livingston and Fulton.
Soon three boats were running between New York and Albany. The fare each
way was seven dollars and proportionate charges were made for
intermediate landings, of which there were eleven.[1122] Immediately the
monopoly began operating steam ferryboats between New York City and New
Jersey.[1123] Having such solid reason for optimism, Livingston and
Fulton, with prudent foresight, leaped half a continent and placed
steamboats on the Mississippi, the traffic of which they planned to
control by securing from the Legislature of Orleans Territory the same
exclusive privileges for steam navigation upon Louisiana waters, which
included the mouth of the Mississippi,[1124] that New York had granted
upon the waters of that State. Nicholas J. Roosevelt was put in charge
of this enterprise, and in an incredibly short time the steamboat New
Orleans was ploughing the turgid and treacherous currents of the great
river.[1125]
It was not long, however, before troubles came--the first from New
Jersey. Enterprising citizens of that State also built steamboats; but
the owners of any vessel entering New York waters, even though acting
merely as a ferry between Hoboken and New York City, must procure a
license from Livingston and Fulton or forfeit their boats. From
discontent at this condition the feelings of the people rose to
resentment and then to anger. At last they determined to retaliate, and
early in 1811 the New Jersey Legislature passed an act authorizing the
owner of any boat seized under the New York law, in turn to capture and
hold any steam-propelled craft belonging "in part or in whole" to any
citizen of New York; "which boat ... shall be forfeited ... to the ...
owner ... of such ... boats which may have been seized" under the New
York law.[1126]
New York was not slow to reply. Her Legislature was in session when that
of New Jersey thus declared commercial war. An act was speedily passed
providing that Livingston and Fulton might enforce at law or in equity
the forfeiture of boats unlicensed by them, "as if the same had been
tortiously and wrongfully taken out of their possession"; and that when
such a suit was brought the defendants should be enjoined from running
the boat or "removing the same or any part thereof out of the
jurisdiction of the court."[1127]
Connecticut forbade any vessel licensed by Livingston and Fulton from
entering Connecticut waters.[1128] The opposition to the New York
steamboat monopoly was not, however, confined to other States. Citizens
of New York defied it and began to run steam vessels on the
Hudson.[1129] James Van Ingen and associates were the first thus to
challenge the exclusive "contract," as the New York law termed the
franchise which the State had granted to Livingston and Fulton. Suit was
brought against Van Ingen in the United States Circuit Court in New
York, praying that Livingston and Fulton be "quieted in the possession,"
or in the exclusive right, to navigate the Hudson secured to them by two
patents.[1130] The bill was dismissed for want of jurisdiction. Thus far
the litigation was exclusively a State controversy. Upon the face of the
record the National element did not appear; yet it was the governing
issue raised by the dispute.
Immediately Livingston and Fulton sued Van Ingen and associates in the
New York Court of Chancery, praying that they be enjoined from operating
their boats. In an opinion of great ability and almost meticulous
learning, Chancellor John Lansing denied the injunction; he was careful,
however, not to base his decision on a violation of the commerce clause
of the National Constitution by the New York steamboat monopoly act. He
merely held that act to be invalid because it was a denial of a natural
right of all citizens alike to the free navigation of the waters of the
State. In such fashion the National question was still evaded.
The Court of Errors[1131] reversed the decree of Chancellor Lansing.
Justice Yates and Justice Thompson delivered State Rights opinions that
would have done credit to Roane.[1132] At this point the National
consideration develops. The opinion of James Kent, then Chief Justice,
was more moderate in its denial of National power over the subject.
Indeed, Kent appears to have anticipated that the Supreme Court would
reverse him. Nevertheless, his opinion was the source of all the
arguments thereafter used in defense of the steamboat monopoly. Because
of this fact; because of Kent's eminence as a jurist; and because
Marshall so crushingly answered his arguments, a _précis_ of them must
be given. It should be borne in mind that Kent was defending a law
which, in a sense, was his own child; as a member of the New York
Council of Revision, he had passed upon and approved it before its
passage.
There could have been "no very obvious constitutional objection" to the
steamboat monopoly act, began Kent, "or it would not so repeatedly have
escaped the notice of the several branches of the government[1133] when
these acts were under consideration."[1134] There had been five acts all
told;[1135] that of 1798 would surely have attracted attention since it
was the first to be passed on the subject after the National
Constitution was adopted. It amounted to "a legislative exposition" of
State powers under the new National Government.
Members of the New York Legislature of 1798 had also been members of the
State Convention that ratified the Constitution, and "were masters of
all the critical discussions" attending the adoption of that instrument.
This was peculiarly true of that "exalted character," John Jay, who was
Governor at that time; and "who was distinguished, as well in the
_council of revision_, as elsewhere, for the scrupulous care and
profound attention with which he examined every question of a
constitutional nature."[1136] The Act of 1811 was passed after the
validity of the previous ones had been challenged and "was, therefore,
equivalent to a declaratory opinion of high authority, that the former
laws were valid and constitutional."[1137]
The people of New York had not "alienated" to the National Government
the power to grant exclusive privileges. This was proved by the charters
granted by the State to banks, ferries, markets, canal and bridge
companies. "The legislative power in a _single, independent government_,
extends to every proper object of power, and is limited only by its own
constitutional provisions, or by the fundamental principles of all
government, and the unalienable rights of mankind."[1138] In what
respect did the steamboat monopoly violate any of these restrictions?
In no respect. "It interfered with no man's property." Everybody could
freely use the waters of New York in the same manner that he had done
before. So there was "no violation of first principles."[1139]
Neither did the New York steamboat acts violate the National
Constitution. State and Nation are "supreme within their respective
constitutional spheres." It is true that when National and State laws
"come directly in contact, as when they are aimed at each other," those
of the State "must yield"; but State Legislatures cannot all the time be
on the watch for some possible future collision. The only "safe rule of
construction" is this: "If any given power was originally vested in this
State, if it has not been exclusively ceded to Congress, or if the
exercise of it has not been prohibited to the States, we may then go on
in the exercise of the power until it comes practically in collision
with the actual exercise of some congressional power."[1140]
The power given Congress to regulate commerce is not, "in express terms,
exclusive, and the only prohibition upon the States" in this regard
concerns the making of treaties and the laying of tonnage import or
export duties. All commerce within a State is "exclusively" within the
power of that State.[1141] Therefore, New York's steamboat grant to
Livingston and Fulton is valid. It conflicts with no act of Congress,
according to Kent, who cannot "perceive any power which ... can lawfully
carry to that extent." If Congress has any control whatever over New
York waters, it is concurrent with that of the State, and even then, "no
further than may be incidental and requisite to the due regulation of
commerce between the States, and with foreign nations."[1142]
Kent then plunges into an appalling mass of authorities, in dealing with
which he delighted as much as Marshall recoiled from the thought of
them.[1143] So Livingston and Fulton's steamboat monopoly was
upheld.[1144]
But what were New York waters and what were New Jersey waters? Confusion
upon this question threatened to prevent the monopoly from gathering fat
profits from New Jersey traffic. Aaron Ogden,[1145] who had purchased
the privilege of running ferryboats from New York to certain points on
the New Jersey shore, combined with one Thomas Gibbons, who operated a
boat between New Jersey landings, to exchange passengers at
Elizabethtown Point in the latter State. Gibbons had not secured the
permission of the New York steamboat monopoly to navigate New York
waters. By his partnership with Ogden he, in reality, carried passengers
from New York to various points in New Jersey. In fact, Ogden and
Gibbons had a common traffic agent in New York who booked passengers for
routes, to travel which required the service of the boats of both Ogden
and Gibbons.
So ran the allegations of the bill for an injunction against the
offending carriers filed in the New York Court of Chancery by the
steamboat monopoly in the spring of 1819. Ogden answered that his
license applied only to waters "_exclusively_ within the state of
New-York," and that the waters lying between the New Jersey ports "are
within the jurisdiction of _New Jersey_." Gibbons admitted that he ran a
boat between New Jersey ports under "a coasting _license_" from the
National Government. He denied, however, that the monopoly had "any
exclusive right" to run steamboats from New York to New Jersey. Both
Ogden and Gibbons disclaimed that they ran boats in combination, or by
agreement with each other.[1146]
Kent, now Chancellor, declared that a New York statute[1147] asserted
jurisdiction of the State over "the whole of the river Hudson, southward
of the northern boundary of the city of New-York, and the whole of the
bay between Staten Island and Long or Nassau Island." He refused to
enjoin Ogden because he operated his boat under license of the steamboat
monopoly; but did enjoin Gibbons "from navigating the waters in the bay
of New-York, or Hudson river, between Staten Island and Powles
Hook."[1148]
Ogden was content, but Gibbons, thoroughly angered by the harshness of
the steamboat monopoly and by the decree of Chancellor Kent, began to
run boats regularly between New York and New Jersey in direct
competition with Ogden.[1149] To stop his former associate, now his
rival, Ogden applied to Chancellor Kent for an injunction. As in the
preceding case, Gibbons again set up his license from the National
Government, asserting that by virtue of this license he was entitled to
run his boats "in the coasting trade between ports of the same state, or
of different states," and could not be excluded from such traffic "by
any law or grant of any particular state, on any pretence to an
exclusive right to navigate the waters of any particular state by
steam-boats." Moreover, pleaded Gibbons, the representatives of
Livingston and Fulton had issued to Messrs. D. D. Tompkins, Adam Brown,
and Noah Brown a license to navigate New York Bay; and this license had
been assigned to Gibbons.[1150]
Kent held that the act of Congress,[1151] concerning the enrollment and
licensing of vessels for the coasting trade, conferred no right
"incompatible with an exclusive right in Livingston and Fulton" to
navigate New York waters.[1152] The validity of the steamboat monopoly
laws had been settled by the decision of the Court of Errors in
Livingston _vs._ Van Ingen.[1153] If a National law gave to all vessels,
"duly licensed" by the National Government, the right to navigate all
waters "within the several states," despite State laws to the contrary,
the National statute would "overrule and set aside" the incompatible
legislation of the States. "The only question that could arise in such a
case, would be, whether the [National] law was constitutional." But that
was not the situation; "there is no collision between the act of
Congress and the acts of this State, creating the steam-boat monopoly."
At least "some judicial decision of the supreme power of the Union,
acting upon those laws, in direct collision and conflict" with them, is
necessary before the courts of New York "can retire from the support and
defence of them."[1154]
Undismayed, Gibbons lost no time in appealing to the New York Court of
Errors, and in January, 1820, Justice Jonas Platt delivered the opinion
of that tribunal. Immediately after the decision in Livingston _vs._ Van
Ingen, he said, many, who formerly had resisted the steamboat monopoly
law, acquiesced in the judgment of the State's highest court and secured
licenses from Livingston and Fulton. Ogden was one of these. The Court
of Errors rejected Gibbons's defense, followed Chancellor Kent's
opinion, and affirmed his decree.[1155]
[Illustration: _John Marshall_
_From a painting by J. B. Martin, in the University of Virginia_]
Thus did the famous case of Gibbons _vs._ Ogden reach the Supreme Court
of the United States; thus was John Marshall given the opportunity to
deliver the last but one of his greatest nation-making opinions--an
opinion which, in the judgment of most lawyers and jurists, is second
only to that in M'Culloch _vs._ Maryland in ability and statesmanship.
By some, indeed, it is thought to be superior even to that state paper.
The Supreme Court, the bar, and the public anticipated an Homeric combat
of legal warriors when the case was argued, since, for the first time,
the hitherto unrivaled Pinkney was to meet the new legal champion,
Daniel Webster, who had won his right to that title by his efforts in
the Dartmouth College case and in M'Culloch _vs._ Maryland.[1156] It was
expected that the steamboat monopoly argument would be made at the
February session of 1821, and Story wrote to a friend that "the
arguments will be very splendid."[1157]
But, on March 16, 1821, the case was dismissed because the record did
not show that there was a final decree in the court "from which said
appeal was made."[1158] On January 10, 1822, the case was again
docketed, but was continued at each term of the Supreme Court thereafter
until February, 1824. Thus, nearly four years elapsed from the time the
appeal was first taken until argument was heard.[1159]
By the time the question was at last submitted to Marshall,
transportation had become the most pressing and important of all
economic and social problems confronting the Nation, excepting only that
of slavery; nor was any so unsettled, so confused.
Localism had joined hands with monopoly--at the most widely separated
points in the Republic, States had granted "exclusive privileges" to the
navigation of "State waters." At the time that the last steamboat grant
was made by New York to Livingston and Fulton, in 1811, the Legislature
of the Territory of Orleans passed, and Governor Claiborne approved, an
act bestowing upon the New York monopoly the same exclusive privileges
conferred by the New York statute. This had been done soon after
Nicholas J. Roosevelt had appeared in New Orleans on the bridge of the
first steamboat to navigate the Mississippi. Whoever operated any steam
vessel upon Louisiana waters without license from Livingston and Fulton
must pay them $5000 for each offense, and also forfeit the boat and
equipment.[1160]
The expectations of Livingston and Fulton of a monopoly of the traffic
of that master waterway were thus fulfilled. When, a few months later,
Louisiana was admitted to the Union, the new State found herself bound
by this monopoly from which, however, it does not appear that she wished
to be released. Thus Livingston and Fulton held the keys to the two
American ports into which poured the greatest volume of domestic
products for export, and from which the largest quantity of foreign
trade found its way into the interior.
Three years later Georgia granted to Samuel Howard of Savannah a rigid
monopoly to transport merchandise upon Georgia waters in all vessels "or
rafts" towed by steam craft.[1161] Anybody who infringed Howard's
monopoly was to forfeit $500 for each offense, as well as the boat and
its machinery. The following year Massachusetts granted to John Langdon
Sullivan the "exclusive rights to the Connecticut river within this
Commonwealth for the use of his patent steam towboats for ...
twenty-eight years."[1162] A few months afterwards New Hampshire made a
like grant to Sullivan.[1163] About the same time Vermont granted a
monopoly of navigation in the part of Lake Champlain under her
jurisdiction.[1164] These are some examples of the general tendency of
States and the promoters of steam navigation to make commerce pay
tribute to monopoly by the exercise of the sovereignty of States over
waters within their jurisdiction. Retaliation of State upon State again
appeared--and in the same fashion that wrecked the States under the
Confederation.[1165]
But this ancient monopolistic process could not keep pace with the
prodigious development of water travel and transportation by steamboat.
On every river, on every lake, glided these steam-driven vessels. Their
hoarse whistles startled the thinly settled wilderness; or, at the
landings on big rivers flowing through more thickly peopled regions,
brought groups of onlookers to witness what then were considered to be
marvels of progress.[1166]
By 1820 seventy-nine steamboats were running on the Ohio between
Pittsburgh and St. Louis, most of them from 150 to 650 tons burden.
Pittsburgh, Cincinnati, and Louisville were the chief places where these
boats were built, though many were constructed at smaller towns along
the shore.[1167] They carried throngs of passengers and an ever-swelling
volume of freight. Tobacco, pork, beef, flour, corn-meal, whiskey--all
the products of the West[1168] were borne to market on the decks of
steamboats which, on the return voyage, were piled high with
manufactured goods.
River navigation was impeded, however, by snags, sandbars, and shallows,
while the traffic overland was made difficult, dangerous, and expensive
by atrocious roads. Next to the frantic desire to unburden themselves
of debt by "relief laws" and other forms of legislative
contract-breaking, the thought uppermost in the minds of the people was
the improvement of means of communication and transportation. This
popular demand was voiced in the second session of the Fourteenth
Congress. On December 16, 1816, John C. Calhoun brought the subject
before the House.[1169] Four days later he reported a bill to devote to
internal improvements "the bonus of the National bank and the United
States's share of its dividends."[1170] It met strenuous opposition,
chiefly on the ground that Congress had no Constitutional power to
expend money for such purposes.[1171] An able report was made to the
House based on the report of Secretary Gallatin in 1808. The vital
importance of "internal navigation" was pointed out,[1172] and the bill
finally passed.[1173]
The last official act of President James Madison was the veto of this
first bill for internal improvements passed by Congress. The day before
his second term as President expired, he returned the bill with the
reasons for his disapproval of it. He did this, he explained, because of
the "insuperable difficulty ... in reconciling the bill with the
Constitution." The power "proposed to be exercised by the bill" was not
"enumerated," nor could it be deduced "by any just interpretation" from
the power of Congress "to make laws necessary and proper" for the
execution of powers expressly conferred on Congress. "The power to
regulate commerce among the several States can not include a power to
construct roads and canals, and to improve the navigation of water
courses." Nor did the "'common defense and general welfare'" clause
justify Congress in passing such a measure.[1174]
But not thus was the popular demand to be silenced. Hardly had the next
session convened when the subject was again taken up.[1175] On December
15, 1817, Henry St. George Tucker of Virginia, chairman of the Select
Committee appointed to investigate the subject, submitted an uncommonly
able report ending with a resolution that the Bank bonus and dividends
be expended on internal improvements "with the assent of the
States."[1176] For two weeks this resolution was debated.[1177] Every
phase of the power of Congress to regulate commerce was examined. And so
the controversy went on year after year.
Three weeks before the argument of Gibbons _vs._ Ogden came on in the
Supreme Court, a debate began in Congress over a bill to appropriate
funds for surveying roads and canals, and continued during all the time
that the court was considering the case. It was going on, indeed, when
Marshall delivered his opinion and lasted for several weeks. Once more
the respective powers of State and Nation over internal improvements,
over commerce, over almost everything, were threshed out. As was usual
with him, John Randolph supplied the climax of the debate.
Three days previous to the argument of Gibbons _vs._ Ogden before
Marshall and his associates, Randolph arose in the House and delivered a
speech which, even for him, was unusually brilliant. In it he revealed
the intimate connection between the slave power and opposition to the
National control of commerce. Randolph conceded the progress made by
Nationalism through the extension of the doctrine of implied powers. The
prophecy of Patrick Henry as to the extinction of the sovereignty,
rights, and powers of the State had been largely realized, he said. The
promises of the Nationalists, made in order to secure the ratification
of the Constitution, and without which pledges it never would have been
adopted, had been contemptuously broken, he intimated. He might well
have made the charge outright, for it was entirely true.
Randolph laid upon Madison much of the blame for the advancement of
implied powers; and he arraigned that always weak and now ageing man in
an effective passage of contemptuous eloquence.[1178] When, in the
election of 1800, continued Randolph, the Federalists were overthrown,
and "the construction of the Constitution according to the Hamiltonian
version" was repudiated, "did we at that day dream, ... that a new sect
would arise after them, which would so far transcend Alexander Hamilton
and his disciples, as they outwent Thomas Jefferson, James Madison, and
John Taylor of Caroline? This is the deplorable fact: such is now the
actual state of things in this land; ... it speaks to the senses, so
that every one may understand it."[1179] And to what will all this
lead? To this, at last: "If Congress possesses the power to do
what is proposed by this bill [appropriate money to survey roads
and canals], ... they may _emancipate every slave in the United
States_[1180]--and with stronger color of reason than they can exercise
the power now contended for."
Let Southern men beware! If "a coalition of knavery and fanaticism ...
be got up on this floor, I ask gentlemen, who stand in the same
predicament as I do, to look well to what they are now doing--to the
colossal power with which they are now arming this Government."[1181]
And why, at the present moment, insist on this "new construction of the
Constitution?... Are there not already causes enough of jealousy and
discord existing among us?... Is this a time to increase those
jealousies between different quarters of the country already
sufficiently apparent?"
In closing, Randolph all but threatened armed rebellion: "Should this
bill pass, one more measure only requires to be consummated; and then
we, who belong to that unfortunate portion of this Confederacy which
is south of Mason and Dixon's line, ... have to make up our mind to
perish ... or we must resort to the measures which we first opposed to
British aggressions and usurpations--to maintain that independence which
the valor of our fathers acquired, but which is every day sliding from
under our feet.... Sir, this is a state of things that cannot last....
We shall keep on the windward side of treason--but we must combine to
resist, and that effectually, these encroachments."[1182]
Moreover, Congress and the country, particularly the South, were deeply
stirred by the tariff question; in the debate then impending over the
Tariff of 1824, Nationalism and Marshall's theory of Constitutional
construction were to be denounced in language almost as strong as that
of Randolph on internal improvements.[1183] The Chief Justice and his
associates were keenly alive to this agitation; they well knew that the
principles to be upheld in Gibbons _vs._ Ogden would affect other
interests and concern other issues than those directly involved in that
case.
So it was, then, when the steamboat monopoly case came on for hearing,
that two groups of interests were in conflict. State Sovereignty
standing for exclusive privileges as chief combatant, with Free Trade
and Slavery as brothers in arms, confronted Nationalism, standing at
that moment for the power of the Nation over all commerce as the
principal combatant, with a Protective Tariff and Emancipation as its
most effective allies. Fate had interwoven subjects that neither
logically nor naturally had any kinship.[1184]
The specific question to be decided was whether the New York steamboat
monopoly laws violated that provision of the National Constitution which
bestows on Congress the "power to regulate commerce among the several
States."
The absolute necessity of a general supervision of commerce was the sole
cause of the Convention at Annapolis, Maryland, in 1786, which resulted
in the Constitutional Convention in Philadelphia the following
year.[1185] Since the adoption of uniform commercial regulations was the
prime object of the Convention, there was no disagreement as to, or
discussion of, the propriety of giving Congress full power over that
subject. Every draft except one[1186] of the Committee of Detail, the
Committee of Style, and the notes taken by members contained some
reference to a clause to that effect.[1187]
The earliest exposition of the commerce clause of the Constitution by
any eminent National authority, therefore, came from John Marshall. In
his opinion in Gibbons _vs._ Ogden he spoke the first and last
authoritative word on that crucial subject.
Pinkney was fatally ill when the Supreme Court convened in 1822 and died
during that session. His death was a heavy blow to the steamboat
monopoly, and his loss was not easily made good. It was finally decided
to employ Thomas J. Oakley, Attorney-General of New York, a cold, clear
reasoner, and carefully trained lawyer, but lacking imagination,
warmth, or breadth of vision.[1188] He was not an adequate substitute
for the masterful and glowing Pinkney.
When on February 4, 1824, the argument at last was begun, the interest
in the case was so great that, although the incomparable Pinkney was
gone, the court-room could hold but a small part of those who wished to
hear that brilliant legal debate. Thomas Addis Emmet, whose "whole soul"
was in the case, appeared for the steamboat monopoly and made in its
behalf his last great argument. With him came Oakley, who was expected
to perform some marvelous intellectual feat, his want of attractive
qualities of speech having enhanced his reputation as a thinker. Wirt
reported that he was "said to be one of the first logicians of the
age."[1189]
Gibbons was represented by Webster who, says Wirt, "is as ambitious as
Cæsar," and "will not be outdone by any man, if it is within the compass
of his power to avoid it."[1190] Wirt appeared with Webster against the
New York monopoly. The argument was opened by Webster; and never in
Congress or court had that surprising man prepared so carefully--and
never so successfully.[1191] Of all his legal arguments, that in the
steamboat case is incontestably supreme. And, as far as the assistance
of associate counsel was concerned, Webster's address, unlike that in
the Dartmouth College case, was all his own. It is true that every point
he made had been repeated many times in the Congressional debates over
internal improvements, or before the New York courts in the steamboat
litigation. But these facts do not detract from the credit that is
rightfully Webster's for his tremendous argument in Gibbons _vs._ Ogden.
He began by admissions--a dangerous method and one which only a man of
highest power can safely employ. The steamboat monopoly law had been
"deliberately re-enacted," he said, and afterwards had the "sanction" of
various New York courts," than which there were few, if any, in the
country, more justly entitled to respect and deference." Therefore he
must, acknowledged Webster, "make out a clear case" if he hoped to
win.[1192]
What was the state of the country with respect to transportation?
Everybody knew that the use of steamboats had become general; everywhere
they plied over rivers and bays which often formed the divisions between
States. It was inevitable that the regulations of such States should be
"hostile" to one another. Witness the antagonistic laws of New York, New
Jersey, and Connecticut. Surely all these warring statutes were not
"consistent with the laws and constitution of the United States." If any
one of them were valid, would anybody "point out where the state right
stopped?"[1193]
Webster carefully described the New York steamboat monopoly laws, the
rights they conferred, and the prohibitions they inflicted.[1194] He
contended, among other things, that these statutes violated the National
Constitution. "The power of Congress to regulate commerce was complete
and entire," said Webster, "and to a certain extent necessarily
exclusive."[1195] It was well known that the "immediate" reason and
"prevailing motive" for adopting the Constitution was to "rescue"
commerce "from the embarrassing and destructive consequences resulting
from the legislation of so many different states, and to place it under
the protection of a uniform law."[1196] The paramount object of
establishing the present Government was "to benefit and improve" trade.
This, said Webster, was proved by the undisputed history of the period
preceding the Constitution.[1197]
What commerce is to be regulated by Congress? Not that of the several
States, but that of the Nation as a "unit." Therefore, the regulation of
it "must necessarily be complete, entire and uniform. Its character was
to be described in the flag which waved over it, _E Pluribus Unum_." Of
consequence, Congressional regulation of commerce must be "exclusive."
Individual States cannot "assert a right of concurrent legislation, ...
without manifest encroachment and confusion."[1198]
If New York can grant a monopoly over New York Bay, so can Virginia over
the entrance of the Chesapeake, so can Massachusetts over the bay
bearing the name and under the jurisdiction of that State. Worse still,
every State may grant "an exclusive right of entry of vessels into her
ports."[1199]
Oakley, Emmet, and Wirt exhausted the learning then extant on every
point involved in the controversy. Not even Pinkney at his best ever was
more thorough than was Emmet in his superb argument in Gibbons _vs._
Ogden.[1200]
The small information possessed by the most careful and thorough lawyers
at that time concerning important decisions in the Circuit Courts of the
United States, even when rendered by the Chief Justice himself, is
startlingly revealed in all these arguments. Only four years previously,
Marshall, at Richmond, had rendered an opinion in which he asserted the
power of Congress over commerce as emphatically as Webster or Wirt now
insisted upon it. This opinion would have greatly strengthened their
arguments, and undoubtedly they would have cited it had they known of
it. But neither Wirt nor Webster made the slightest reference to the
case of the Brig Wilson _vs._ The United States, decided during the May
term, 1820.
One offense charged in the libel of that vessel by the National
Government was, that she had brought into Virginia certain negroes in
violation of the laws of that State and in contravention of the act of
Congress forbidding the importation of negroes into States whose laws
prohibited their admission. Was this act of Congress Constitutional? The
power to pass such a law is, says Marshall, "derived entirely" from that
clause of the Constitution which "enables Congress, 'to regulate
commerce with foreign nations, and among the several States.'"[1201]
This power includes navigation. The authority to forbid foreign ships to
enter our ports comes exclusively from the commerce clause. "If this
power over vessels is not in Congress, where does it reside? Does it
reside in the States?
"No American politician has ever been so extravagant as to contend for
this. No man has been wild enough to maintain, that, although the power
to regulate commerce, gives Congress an unlimited power over the
cargoes, it does not enable that body to control the vehicle in which
they are imported: that, while the whole power of commerce is vested in
Congress, the state legislatures may confiscate every vessel which
enters their ports, and Congress is unable to prevent their entry."
The truth, continues Marshall, is that "even an empty vessel, or a
packet, employed solely in the conveyance of passengers and letters, may
be regulated and forfeited" under a National law. "There is not, in the
Constitution, one syllable on the subject of navigation. And yet, every
power that pertains to navigation has been ... rightfully exercised by
Congress. From the adoption of the Constitution, till this time, the
universal sense of America has been, that the word commerce, as used in
that instrument, is to be considered a generic term, comprehending
navigation, or, that a control over navigation is necessarily incidental
to the power to regulate commerce."[1202]
Here was a weapon which Webster could have wielded with effect, but he
was unaware that it existed--a fact the more remarkable in that both
Webster and Emmet commented, in their arguments, upon State laws that
prohibited the admission of negroes.
But Webster never doubted that the court's decision would be against the
New York steamboat monopoly laws. "Our Steam Boat case is not yet
decided, but it _can go but one way_," he wrote his brother a week after
the argument.[1203]
On March 2, 1824, Marshall delivered that opinion which has done more to
knit the American people into an indivisible Nation than any other one
force in our history, excepting only war. In Marbury _vs._ Madison he
established that fundamental principle of liberty that a permanent
written constitution controls a temporary Congress; in Fletcher _vs._
Peck, in Sturges _vs._ Crowninshield, and in the Dartmouth College case
he asserted the sanctity of good faith; in M'Culloch _vs._ Maryland and
Cohens _vs._ Virginia he made the Government of the American people a
living thing; but in Gibbons _vs._ Ogden he welded that people into a
unit by the force of their mutual interests.
The validity of the steamboat monopoly laws of New York, declares
Marshall, has been repeatedly upheld by the Legislature, the Council of
Revision, and the various courts of that State, and is "supported by
great names--by names which have all the titles to consideration that
virtue, intelligence, and office, can bestow."[1204] Having paid this
tribute to Chancellor Kent--for every word of it was meant for that
great jurist--Marshall takes up the capital question of construction.
It is urged, he says, that, before the adoption of the Constitution, the
States "were sovereign, were completely independent, and were connected
with each other only by a league. This is true. But when these allied
sovereigns converted their league into a government, when they converted
their Congress of Ambassadors, deputed to deliberate on their common
concerns, and to recommend measures of general utility, into a
legislature, empowered to enact laws ... the whole character" of the
States "underwent a change, the extent of which must be determined by a
fair consideration" of the Constitution.
Why ought the powers "expressly granted" to the National Government to
be "construed strictly," as many insist that they should be? "Is there
one sentence in the constitution which gives countenance to this rule?"
None has been pointed out; none exists. What is meant by "a strict
construction"? Is it "that narrow construction, which would cripple the
government and render it unequal to the objects for which it is declared
to be instituted,[1205] and to which the powers given, as fairly
understood, render it competent"? The court cannot adopt such a rule for
expounding the Constitution.[1206]
Just as men, "whose intentions require no concealment," use plain words
to express their meaning, so did "the enlightened patriots who framed
our constitution," and so did "the people who adopted it." Surely they
"intended what they have said." If any serious doubt of their meaning
arises, concerning the extent of any power, "the objects for which it
was given ... should have great influence in the construction."[1207]
Apply this common-sense rule to the commerce clause of the
Constitution.[1208] What does the word "commerce" mean? Strict
constructionists, like the advocates of the New York steamboat monopoly,
"limit it to ... buying and selling ... and do not admit that it
comprehends navigation." But why not navigation? "Commerce ... is
traffic, but it is something more; it is intercourse." If this is not
true, then the National Government can make no law concerning American
vessels--"yet this power has been exercised from the commencement of
the government, has been exercised with the consent of all, and has
been understood by all to be a commercial regulation. All America
understands ... the word 'commerce' to comprehend navigation.... The
power over commerce, including navigation, was one of the primary
objects for which the people of America adopted their government.... The
attempt to restrict it [the meaning of the word "commerce"] comes too
late."
Was not the object of the Embargo, which "engaged the attention of every
man in the United States," avowedly "the protection of commerce?... By
its friends and its enemies that law was treated as a commercial, not as
a war measure." Indeed, its very object was "the avoiding of war."
Resistance to it was based, not on the denial that Congress can regulate
commerce, but on the ground that "a perpetual embargo was the
annihilation, and not the regulation of commerce." This illustration
proves that "the universal understanding of the American people" was,
and is, that "a power to regulate navigation is as expressly granted as
if that term had been added to the word 'commerce.'"[1209]
Nobody denies that the National Government has unlimited power over
foreign commerce--"no sort of trade can be carried on between this
country and any other, to which this power does not extend." The same is
true of commerce among the States. The power of the National Government
over trade with foreign nations, and "among" the several States, is
conferred in the same sentence of the Constitution, and "must carry the
same meaning throughout the sentence.... The word 'among' means
intermingled with." So "commerce among the states cannot stop at the
external boundary line of each state, but may be introduced into the
interior." This does not, of course, include the "completely interior
traffic of a state."[1210]
Everybody knows that foreign commerce is that of the whole Nation and
not of its parts. "Every district has a right to participate in it. The
deep streams which penetrate our country in every direction, pass
through the interior of almost every state in the Union." The power to
regulate this commerce "must be exercised whenever the subject exists.
If it exists within a state, if a foreign voyage may commence or
terminate within a state, then the power of Congress may be exercised
within a state."[1211]
If possible, "this principle ... is still more clear, when applied to
commerce 'among the several states.' They either join each other, in
which case they are separated by a mathematical line, or they are remote
from each other, in which case other states lie between them.... Can a
trading expedition between two adjoining states commence and terminate
outside of each?" The very idea is absurd. And must not commerce between
States "remote" from one another, pass through States lying between
them? The power to regulate this commerce is in the National
Government.[1212]
What is this power to "regulate commerce"? It is the power "to prescribe
the rule by which commerce is to be governed. This power ... is complete
in itself, may be exercised to its utmost extent, and acknowledges no
limitations, other than are prescribed in the constitution;" and these
do not affect the present case. Power over interstate commerce "is
vested in Congress as absolutely as it would be in a single government"
under a Constitution like ours. There is no danger that Congress will
abuse this power, because "the wisdom and the discretion of Congress,
their identity with the people, and the influence which their
constituents possess at election, are, in this, as in many other
instances, as that, for example, of declaring war, the sole restraints
on which they [the people] have relied, to secure them from its abuse.
They are restraints on which the people must often rely solely, in all
representative governments." The upshot of the whole dispute is,
declares Marshall, that Congress has power over navigation "within the
limits of every state ... so far as that navigation may be, in any
manner, connected" with foreign or interstate trade.[1213]
Marshall tries to answer the assertion that the power to regulate
commerce is concurrent in Congress and the State Legislatures; but, in
doing so, he is diffuse, prolix, and indirect. There is, he insists, no
analogy between the taxing power of Congress and its power to regulate
commerce; the former "does not interfere with the power of the states to
tax for the support of their own governments." In levying such taxes,
the States "are not doing what Congress is empowered to do." But when a
State regulates foreign or interstate commerce, "it is exercising the
very power ... and doing the very thing which Congress is authorized to
do." However, says Marshall evasively, in the case before the court the
question whether Congress has exclusive power over commerce, or whether
the States can exercise it until Congress acts, may be dismissed, since
Congress has legislated on the subject. So the only practical question
is: "Can a state regulate commerce with foreign nations and among the
states while Congress is regulating it?"[1214]
The argument is not sound that, since the States are expressly forbidden
to levy duties on tonnage, exports, and imports which they might
otherwise have levied, they may exercise other commercial regulations,
not in like manner expressly prohibited. For the taxation of exports,
imports, and tonnage is a part of the general taxing power and is not
connected with the power to regulate commerce. It is true that duties on
tonnage often are laid "with a view to the regulation of commerce; but
they may be also imposed with a view to revenue," and, therefore, the
States are prohibited from laying such taxes. There is a vast difference
between taxation for the regulation of commerce and taxation for raising
revenue. "Those illustrious statesmen and patriots" who launched the
Revolution and framed the Constitution understood and acted upon this
distinction: "The right to regulate commerce, even by the imposition of
duties, was not controverted; but the right to impose a duty for the
purpose of revenue, produced a war as important, perhaps, in its
consequences to the human race, as any the world has ever
witnessed."[1215]
In the same way, State inspection laws, while influencing commerce, do
not flow from a power to regulate commerce. The purpose of inspection
laws is "to improve the quality of the articles produced by the labor of
the country.... They act upon the subject before it becomes an article"
of foreign or interstate commerce. Such laws "form a portion of that
immense mass of legislation which embraces everything within the
territory of a state," and "which can be most advantageously exercised
by the states themselves." Of this description are "inspection laws,
quarantine laws, health laws ... as well as laws for regulating the
internal commerce of a state, and those which respect turnpike-roads,
ferries, etc."[1216]
Legislation upon all these subjects is a matter of State
concern--Congress can act upon them only "for national purposes ...
where the power is expressly given for a special purpose, or is clearly
incidental to some power which is expressly given." Obviously, however,
the National Government "in the exercise of its express powers, that,
for example, of regulating [foreign and interstate] commerce ... may use
means that may also be employed by a state, ... that, for example, of
regulating commerce within the state." The National coasting laws,
though operating upon ports within the same State, imply "no claim of a
direct power to regulate the purely internal commerce of a state, or to
act directly on its system of police." State laws on these subjects,
although of the "same character" as those of Congress, do not flow from
the same source whence the National laws flow, "but from some other,
which remains with the state, and may be executed by the same means."
Although identical measures may proceed from different powers, "this
does not prove that the powers themselves are identical."[1217]
It is inevitable in a "complex system" of government like ours that
"contests respecting power must arise" between State and Nation. But
this "does not prove that one is exercising, or has a right to exercise,
the powers of the other."[1218] It cannot be inferred from National
statutes requiring National officials to "conform to, and assist in the
execution of the quarantine and health laws of a state ... that a state
may rightfully regulate commerce"; such laws flow from "the acknowledged
power of a state, to provide for the health of its citizens."
Nevertheless, "Congress may control the state [quarantine and health]
laws, so far as it may be necessary to control them, for the regulation
of commerce."[1219]
Marshall analyzes, at excessive length, National and State laws on the
importation of slaves, on pilots, on lighthouses,[1220] to show that
such legislation does not justify the inference that "the states
possess, concurrently" with Congress, "the power to regulate commerce
with foreign nations and among the states."
In the regulation of "their own purely internal affairs," States may
pass laws which, although in themselves proper, become invalid when they
interfere with a National law. Is this the case with the New York
steamboat monopoly acts? Have they "come into collision with an act of
Congress, and deprived a citizen of a right to which that act entitles
him"? If so, it matters not whether the State laws are the exercise of a
concurrent power to regulate commerce, or of a power to "regulate their
domestic trade and police." In either case, "the acts of New York must
yield to the law of Congress."[1221]
This truth is "founded as well on the nature of the government as on the
words of the constitution." The theory that if State and Nation each
rightfully pass conflicting laws on the same subject, "they affect the
subject, and each other, like equal opposing powers," is demolished by
the "supremacy" of the Constitution and "of the laws made in pursuance
of it. The nullity of _any act_, inconsistent with the constitution, is
produced by the declaration that the constitution is the supreme law."
So when a State statute, enacted under uncontrovertible State powers,
conflicts with a law, treaty, or the Constitution of the Nation, the
State enactment "must yield to it."[1222]
It is not the Constitution, but "those laws whose authority is
acknowledged by civilized man throughout the world" that "confer the
right of intercourse between state and state.... The constitution found
it an existing right, and gave to Congress the power to regulate it. In
the exercise of this power, Congress has passed an act" regulating the
coasting trade. Any law "must imply a power to exercise the right" it
confers. How absurd, then, the contention that, while the State of New
York cannot prevent a vessel licensed under the National coasting law,
when proceeding from a port in New Jersey to one in New York, "from
enjoying ... all the privileges conferred by the act of Congress,"
nevertheless, the State of New York "can shut her up in her own port,
and prohibit altogether her entering the waters and ports of another
state"![1223]
A National license to engage in the coasting trade gives the right to
navigate between ports of different States.[1224] The fact that
Gibbons's boats carried passengers only did not make those vessels any
the less engaged in the coasting trade than if they carried nothing but
merchandise--"no clear distinction is perceived between the power to
regulate vessels employed in transporting men for hire, and property
for hire.... A coasting vessel employed in the transportation of
passengers, is as much a portion of the American marine as one
employed in the transportation of a cargo."[1225] Falling into his
characteristic over-explanation, Marshall proves the obvious by many
illustrations.[1226]
However the question as to the nature of the business is beside the
point, since the steamboat monopoly laws are based solely on the method
of propelling boats--"whether they are moved by steam or wind. If by the
former, the waters of New York are closed against them, though their
cargoes be dutiable goods, which the laws of the United States permit
them to enter and deliver in New York. If by the latter, those waters
are free to them, though they should carry passengers only." What is the
injury which Ogden complains that Gibbons has done him? Not that
Gibbons's boats carry passengers, but only that those vessels "are moved
by steam."
"The writ of injunction and decree" of the State court "restrain these
[Gibbons's] licensed vessels, not from carrying passengers, but from
being moved through the waters of New York by steam, for any purpose
whatever." Therefore, "the real and sole question seems to be, whether a
steam machine, in actual use, deprives a vessel of the privileges
conferred by a [National] license." The answer is easy--indeed, there is
hardly any question to answer: "The laws of Congress, for the regulation
of commerce, do not look to the principle by which vessels are
moved."[1227]
Steamboats may be admitted to the coasting trade "in common with
vessels using sails. They are ... entitled to the same privileges, and
can no more be restrained from navigating waters, and entering ports
which are free to such vessels, than if they were wafted on their voyage
by the winds, instead of being propelled by the agency of fire. The one
element may be as legitimately used as the other, for every commercial
purpose authorized by the laws of the Union; and the act of a state
inhibiting the use of either to any vessel having a license under the
act of Congress comes ... in direct collision with that act."[1228]
Marshall refuses to discuss the question of Fulton's patents since,
regardless of that question, the cause must be decided by the supremacy
of National over State laws that regulate commerce between the States.
The Chief Justice apologizes, and very properly, for taking so "much
time ... to demonstrate propositions which may have been thought axioms.
It is felt that the tediousness inseparable from the endeavor to prove
that which is already clear, is imputable to a considerable part of this
opinion. But it was unavoidable." The question is so great, the judges,
from whose conclusions "we dissent," are so eminent,[1229] the arguments
at the bar so earnest, an "unbroken" statement of principles upon which
the court's judgment rests so indispensable, that Marshall feels that
nothing should be omitted, nothing taken for granted, nothing
assumed.[1230]
Having thus placated Kent, Marshall turns upon his Virginia
antagonists: "Powerful and ingenious minds, taking, as postulates, that
the powers expressly granted to the government of the Union, are to be
contracted, by construction, into the narrowest possible compass, and
that the original powers of the States are retained, if any possible
construction will retain them, may, by a course of well digested, but
refined and metaphysical reasoning, founded on these premises, _explain
away the constitution 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 to sustain those principles, and, when sustained,
to make them the tests of the arguments to be examined."[1231]
So spoke John Marshall, in his seventieth year, when closing the last
but one of those decisive opinions which vitalized the American
Constitution, and assured for himself the grateful and reverent homage
of the great body of the American people as long as the American Nation
shall endure. It is pleasant to reflect that the occasion for this
ultimate effort of Marshall's genius was the extinction of a monopoly.
Marshall, the statesman, rather than the judge, appears in his opinion.
While avowing the most determined Nationalism in the body of his
opinion, he is cautious, nevertheless, when coming to close grips with
the specific question of the respective rights of Gibbons and Ogden. He
is vague on the question of concurrent powers of the States over
commerce, and rests the concrete result of his opinion on the National
coasting laws and the National coasting license to Gibbons.
William Johnson, a Republican, appointed by Jefferson, had, however, no
such scruples. In view of the strong influence Marshall had, by now,
acquired over Johnson, it appears to be not improbable that the Chief
Justice availed himself of the political status of the South Carolinian,
as well as of his remarkable talents, to have Johnson state the real
views of the master of the Supreme Court.
At any rate, Johnson delivered a separate opinion so uncompromisingly
Nationalist that Marshall's Nationalism seems hesitant in comparison. In
it Johnson gives one of the best statements ever made, before or since,
of the regulation of commerce as the moving purpose that brought about
the American Constitution. That instrument did not originate liberty of
trade: "The law of nations ... pronounces all commerce legitimate in a
state of peace, until prohibited by positive law." So the power of
Congress over that vital matter "must be exclusive; it can reside but in
one potentate; and hence, the grant of this power carries with it the
whole subject, leaving nothing for the state to act upon."[1232]
Commercial laws! Were the whole of them "repealed to-morrow, all
commerce would be lawful." The authority of Congress to control foreign
commerce is precisely the same as that over interstate commerce. The
National power over navigation is not "incidental to that of regulating
commerce; ... it is as the thing itself; inseparable from it as vital
motion is from vital existence.... Shipbuilding, the carrying trade, and
the propagation of seamen, are such vital agents of commercial
prosperity, that the nation which could not legislate over these
subjects would not possess power to regulate commerce."[1233]
Johnson therefore finds it "impossible" to agree with Marshall that
freedom of interstate commerce rests on any such narrow basis as
National coasting law or license: "I do not regard it as the foundation
of the right set up in behalf of the appellant [Gibbons]. If there was
any one object riding over every other in the adoption of the
constitution, it was to keep the commercial intercourse among the states
free from all invidious and partial restraints.... If the [National]
licensing act was repealed to-morrow," Gibbons's right to the free
navigation of New York waters "would be as strong as it is under this
license."[1234]
So it turned out that the first man appointed for the purpose of
thwarting Marshall's Nationalism, expressed, twenty years after his
appointment, stronger Nationalist sentiments than Marshall himself was,
as yet, willing to avow openly. Johnson's astonishing opinion in Gibbons
_vs._ Ogden is conclusive proof of the mastery the Chief Justice had
acquired over his Republican associate, or else of the conquest by
Nationalism of the mind of the South Carolina Republican.
For the one and only time in his career on the Supreme Bench, Marshall
had pronounced a "popular" opinion. The press acclaimed him as the
deliverer of the Nation from thralldom to monopoly. His opinion, records
the _New York Evening Post_, delivered amidst "the most unbroken
silence" of a "courtroom ... crowded with people," was a wonderful
exhibition of intellect--"one of the most powerful efforts of the human
mind that has ever been displayed from the bench of any court. Many
passages indicated a profoundness and a forecast in relation to the
destinies of our confederacy peculiar to the great man who acted as the
organ of the court. The steamboat grant is at an end."[1235]
Niles published Marshall's opinion in full,[1236] and in this way it
reached, directly or indirectly, every paper, big and little, in the
whole country, and was reproduced by most of them. Many journals
contained long articles or editorials upon it, most of them highly
laudatory. _The New York Evening Post_ of March 8 declared that it would
"command the assent of every impartial mind competent to embrace the
subject." Thus, for the moment, Marshall was considered the benefactor
of the people and the defender of the Nation against the dragon of
monopoly. His opinion in Gibbons _vs._ Ogden changed into applause that
disfavor which his opinion in M'Culloch _vs._ Maryland had evoked. Only
the Southern political leaders saw the "danger"; but so general was the
satisfaction of the public that they were, for the most part, quiescent
as to Marshall's assertion of Nationalism in this particular case.
But few events in our history have had a larger and more substantial
effect on the well-being of the American people than this decision, and
Marshall's opinion in the announcement of it. New York instantly became
a free port for all America. Steamboat navigation of American rivers,
relieved from the terror of possible and actual State-created
monopolies, increased at an incredible rate; and, because of two decades
of restraint and fear, at abnormal speed.[1237]
New England manufacturers were given a new life, since the
transportation of anthracite coal--the fuel recently discovered and
aggravatingly needed--was made cheap and easy. The owners of factories,
the promoters of steamboat traffic, the innumerable builders of river
craft on every navigable stream in the country, the farmer who wished to
send his products to market, the manufacturer who sought quick and
inexpensive transportation of his wares--all acclaimed Marshall's
decision because all found in it a means to their own interests.
The possibilities of transportation by steam railways soon became a
subject of discussion by enterprising men, and Marshall's opinion gave
them tremendous encouragement. It was a guarantee that they might build
railroads across State lines and be safe from local interference with
interstate traffic. Could the Chief Justice have foreseen the
development of the railway as an agency of Nationalism, he would have
realized, in part, the permanent and ever-growing importance of his
opinion--in part, but not wholly; for the telegraph, the telephone, the
oil and gas pipe line were also to be affected for the general good by
Marshall's statesmanship as set forth in his outgiving in Gibbons _vs._
Ogden.
It is not immoderate to say that no other judicial pronouncement in
history was so wedded to the inventive genius of man and so interwoven
with the economic and social evolution of a nation and a people. After
almost a century, Marshall's Nationalist theory of commerce is more
potent than ever; and nothing human is more certain than that it will
gather new strength as far into the future as forecast can penetrate.
At the time of its delivery, nobody complained of Marshall's opinion
except the agents of the steamboat monopoly, the theorists of Localism,
and the slave autocracy. All these influences beheld, in Marshall's
statesmanship, their inevitable extinction. All correctly understood
that the Nationalism expounded by Marshall, if truly carried out,
sounded their doom.
Immediately after the decision was published, a suit was brought in the
New York Court of Equity, apparently for the purpose of having that
tribunal define the extent of the Supreme Court's holding. John R.
Livingston secured a coasting license for the Olive Branch, and sent the
boat from New York to Albany, touching at Jersey and unloading there two
boxes of freight. The North River Steamboat Company, assignee of the
Livingston-Fulton monopoly, at once applied for an injunction.[1238] The
matter excited intense interest, and Nathan Sanford, who had succeeded
Kent as Chancellor, took several weeks to "consider the question."[1239]
He delivered two opinions, the second almost as Nationalist as that of
Marshall. "The law of the United States is supreme.... The state law is
annihilated, so far as the ground is occupied by the law of the union;
and the supreme law prevails, as if the state law had never been made.
The supremacy of constitutional laws of the union, and the nullity of
state laws inconsistent with such laws of the union, are principles of
the constitution of the United States.... So far as the law of the union
acts upon the case, the state law is extinguished.... Opposing rights to
the same thing, can not co-exist under the constitution of our
country."[1240] But Chancellor Sanford held that, over commerce
exclusively within the State, the Nation had no control.
Livingston appealed to the Court of Errors, and in February, 1825, the
case was heard. The year intervening since Marshall delivered his
opinion had witnessed the rise of an irresistible tide of public
sentiment in its favor; and this, more influential than all arguments
of counsel even upon an "independent judiciary," was reflected in the
opinion delivered by John Woodworth, one of the judges of the Supreme
Court of that State. He quotes Marshall liberally, and painstakingly
analyzes his opinion, which, says Woodworth, is confined to commerce
among the States to the exclusion of that wholly within a single State.
Over this latter trade Congress has no power, except for "national
purposes," and then only where such power is "'expressly given ... or is
clearly incidental to some power expressly given.'"[1241]
Chief Justice John Savage adopted the same reasoning as did Justice
Woodworth, and examined Marshall's opinion with even greater
particularity, but arrived at the same conclusion. Savage adds, however,
"a few general remarks," and in these he almost outruns the Nationalism
of Marshall. "The constitution ... should be so construed as best to
promote the great objects for which it was made"; among them a principal
one was "'to form a more perfect union,'" etc.[1242] The regulation of
commerce among the States "was one great and leading inducement to the
adoption" of the Nation's fundamental law.[1243] "We are the citizens of
two distinct, yet connected governments.... The powers given to the
general government are to be first satisfied."
To the warning that the State Governments "will be swallowed up" by the
National Government, Savage declares, "my answer is, if such danger
exists, the states should not provoke a termination of their existence,
by encroachments on their part."[1244] In such ringing terms did Savage
endorse Marshall's opinion in Gibbons _vs._ Ogden.
The State Senators "concurred" automatically in the opinion of Chief
Justice Savage, and the decree of Chancellor Sanford, refusing an
injunction on straight trips of the Olive Branch between New York
landings, but granting one against commerce of any kind with other
States, was affirmed.
So the infinitely important controversy reached a settlement that, to
this day, has not been disturbed. Commerce among the States is within
the exclusive control of the National Government, including that which,
though apparently confined to State traffic, affects the business
transactions of the Nation at large. The only supervision that may be
exercised by a State over trade must be wholly confined to that State,
absolutely without any connection whatever with intercourse with other
States.
One year after the decision of Gibbons _vs._ Ogden, the subject of the
powers and duties of the Supreme Court was again considered by Congress.
During February, 1825, an extended debate was held in the Senate over a
bill which, among other things, provided for three additional members of
that tribunal.[1245] But the tone of its assailants had mellowed. The
voice of denunciation now uttered words of deference, even praise.
Senator Johnson, while still complaining of the evils of an
"irresponsible" Judiciary, softened his attack with encomium:
"Our nation has ever been blessed with a most distinguished Supreme
Court, ... eminent for moral worth, intellectual vigor, extensive
acquirements, and profound judicial experience and knowledge.... Against
the Federal Judiciary, I have not the least malignant emotion."[1246]
Senator John H. Eaton of Tennessee said that Virginia's two members of
the Supreme Court (Marshall and Bushrod Washington) were "men of
distinction, ... whose decisions carried satisfaction and
confidence."[1247]
Senator Isham Talbot of Kentucky paid tribute to the "wise, mild, and
guiding influence of this solemn tribunal."[1248] In examining the
Nationalist decisions of the Supreme Court he went out of his way to
declare that he did not mean "to cast the slightest shade of imputation
on the purity of intention or the correctness of judgment with which
justice is impartially dispensed from this exalted bench."[1249]
This remarkable change in the language of Congressional attack upon the
National Judiciary became still more conspicuous at the next session in
the debate upon practically the same bill and various amendments
proposed to it. Promptly after Congress convened in December, 1825,
Webster himself reported from the Judiciary Committee of the House a
bill increasing to ten the membership of the Supreme Court and
rearranging the circuits.[1250] This measure passed substantially as
reported.[1251]
When the subject was taken up in the Senate, Senator Martin Van Buren in
an elaborate speech pointed out the vast powers of that tribunal,
unequaled and without precedent in the history of the world--powers
which, if now "presented for the first time," would undoubtedly be
denied by the people.[1252] Yet, strange as it may seem, opposition has
subsided in an astonishing manner, he said; even those States whose laws
have been nullified, "after struggling with the giant strength of the
Court, have submitted to their fate."[1253]
Indeed, says Van Buren, there has grown up "a sentiment ... of idolatry
for the Supreme Court ... which claims for its members an almost entire
exemption from the fallibilities of our nature." The press, especially,
is influenced by this feeling of worship. Van Buren himself concedes
that the Justices have "talents of the highest order and spotless
integrity." Marshall, in particular, deserves unbounded praise and
admiration: "That ... uncommon man who now presides over the Court ...
is, in all human probability, the ablest Judge now sitting upon any
judicial bench in the world."[1254]
The fiery John Rowan of Kentucky, now Senator from that State, and one
of the boldest opponents of the National Judiciary, offered an amendment
requiring that "seven of the ten Justices of the Supreme Court shall
concur in any judgement or decree, which denies the validity, or
restrains the operation, of the Constitution, or law of any of the
States, or any provision or enaction in either."[1255] In advocating his
amendment, however, Rowan, while still earnestly attacking the
"encroachments" of the Supreme Court, admitted the "unsuspected
integrity" of the Justices upon which "suspicion has never scowled....
The present incumbents are above all suspicion; obliquity of motive has
never been ascribed to any of them."[1256] Nevertheless, he complains of
"a judicial superstition--which encircles the Judges with
infallibility."[1257]
This seemingly miraculous alteration of public opinion, manifesting
itself within one year from the violent outbursts of popular wrath
against Marshall and the National Judiciary, was the result of the
steady influence of the conservatives, unwearyingly active for a quarter
of a century; of the natural reaction against extravagance of language
and conduct shown by the radicals during that time; of the realization
that the Supreme Court could be resisted only by force continuously
exercised; and, above all, of the fundamental soundness and essential
justness of Marshall's opinions, which, in spite of the local and
transient hardship they inflicted, in the end appealed to the good sense
and conscience of the average man. Undoubtedly, too, the character of
the Chief Justice, which the Nation had come to appreciate, was a
powerful element in bringing about the alteration in the popular concept
of the Supreme Court.
But, notwithstanding the apparent diminution of animosity toward the
Chief Justice and the National Judiciary, hatred of both continued, and
within a few years showed itself with greater violence than ever. How
Marshall met this recrudescence of Localism is the story of his closing
years.
When, in Gibbons _vs._ Ogden, Marshall established the supremacy of
Congress over commerce among the States, he also announced the absolute
power of the National Legislature to control trade with foreign nations.
It was not long before an opportunity was afforded him to apply this
principle, and to supplement his first great opinion on the meaning of
the commerce clause, by another pronouncement of equal power and
dignity. By acts of the Maryland Legislature importers or wholesalers of
imported goods were required to take out licenses, costing fifty dollars
each, before they could sell "by wholesale, bale or package, hogshead,
barrel, or tierce." Non-observance of this requirement subjected the
offender to a fine of one hundred dollars and forfeiture of the amount
of the tax.[1258]
Under this law Alexander Brown and his partners, George, John, and
James Brown, were indicted in the City Court of Baltimore for having
sold a package of foreign dry goods without a license. Judgment against
the merchants was rendered; and this was affirmed by the Court of
Appeals. The case was then taken to the Supreme Court on a writ of error
and argued for Brown & Co. by William Wirt and Jonathan Meredith, and
for Maryland by Roger Brooke Taney[1259] and Reverdy Johnson.[1260]
On March 12, 1827, the Chief Justice delivered the opinion of the
majority of the court, Justice Thompson dissenting. The only question,
says Marshall, is whether a State can constitutionally require an
importer to take out a license "before he shall be permitted to sell a
bale or package" of imported goods.[1261] The Constitution prohibits any
State from laying imposts or duties on imports or exports, except what
may be "absolutely necessary for executing its inspection laws."
The Maryland act clearly falls within this prohibition: "A duty on
imports ... is not merely a duty on the act of importation, but is a
duty on the thing imported....
"There is no difference," continues Marshall, "between a power to
prohibit the sale of an article and a power to prohibit its introduction
into the country.... No goods would be imported if none could be sold."
The power which can levy a small tax can impose a great one--can, in
fact, prohibit the thing taxed: "Questions of power do not depend on the
degree to which it may be exercised."[1262] He admits that "there must
be a point of time when the prohibition [of States to tax imports]
ceases and the power of the State to tax commences"; but "this point of
time is [not] the instant that the articles enter the country."[1263]
Here Marshall becomes wisely cautious. The power of the States to tax
and the "restriction" on that power, "though quite distinguishable when
they do not approach each other, may yet, like the intervening colors
between white and black, approach so nearly as to perplex the
understanding, as colors perplex the vision in marking the distinction
between them. Yet the distinction exists, and must be marked as cases
arise. Till they do arise, it might be premature to state any rule as
being universal in its application. It is sufficient for the present, to
say, generally, that, when the importer has so acted upon the thing
imported that it has become incorporated and mixed up with the mass of
property in the country, it has, perhaps, lost its distinctive character
as an import, and has become subject to the taxing power of the State;
but while remaining the property of the importer, in his warehouse, in
the original form or package in which it was imported, a tax upon it is
too plainly a duty on imports to escape the prohibition in the
constitution."[1264]
It is not true that under the rule just stated, the State is precluded
from regulating its internal trade and from protecting the health or
morals of its citizens. The Constitutional inhibition against State
taxation of imports applies only to "the form in which it was imported."
When the importer sells his goods "the [State] law may treat them as it
finds them." Measures may also be taken by the State concerning
dangerous substances like gunpowder or "infectious or unsound
articles"--such measures are within the "police power, which
unquestionably remains, and ought to remain, with the States." But State
taxation of imported articles in their original form is a violation of
the clause of the Constitution forbidding States to lay any imposts or
duties on imports and exports.[1265]
Such taxation also violates the commerce clause. Marshall once more
outlines the reasons for inserting that provision into the Constitution,
cites his opinion in Gibbons _vs._ Ogden, and again declares that the
power of Congress to regulate commerce "is co-extensive with the subject
on which it acts and cannot be stopped at the external boundary of a
State, but must enter its interior." This power, therefore, "must be
capable of authorizing the sale of those articles which it introduces."
In almost the same words already used, the Chief Justice reiterates that
goods would not be imported if they could not be sold. "Congress has a
right, not only to authorize importation, but to authorize the importer
to sell." A tariff law "offers the privilege [of importation] for sale
at a fixed price to every person who chooses to become a purchaser." By
paying the duty the importer makes a contract with the National
Government--"he ... purchase[s] the privilege to sell."
"The conclusion, that the right to sell is connected with the law
permitting importation, as an inseparable incident, is inevitable." To
deny that right "would break up commerce." The power of a State "to tax
its own citizens, or their property within its territory," is
"acknowledged" and is "sacred"; but it cannot be exercised "so as to
obstruct or defeat the power [of Congress] to regulate commerce." When
State laws conflict with National statutes, "that which is not supreme
must yield to that which is supreme"--a "great and universal truth ...
inseparable from the nature of things," which "the constitution has
applied ... to the often interfering powers of the general and State
governments, as a vital principle of perpetual operation."
The States, through the taxing power, "cannot reach and restrain the
action of the national government ...--cannot reach the administration
of justice in the Courts of the Union, or the collection of the taxes of
the United States, or restrain the operation of any law which Congress
may constitutionally pass--... cannot interfere with any regulation of
commerce." Otherwise a State might tax "goods in their transit through
the State from one port to another for the purpose of re-exportation";
or tax articles "passing through it from one State to another, for the
purpose of traffic"; or tax "the transportation of articles passing from
the State itself to another State for commercial purposes." Of what
avail the power given Congress by the Constitution if the States may
thus "derange the measures of Congress to regulate commerce"?
Marshall is here addressing South Carolina and other States which, at
that time, were threatening retaliation against the manufacturers of
articles protected by the tariff.[1266] He pointedly observes that the
decision in M'Culloch _vs._ Maryland is "entirely applicable" to the
present controversy, and adds that "we suppose the principle laid down
in this case to apply equally to importations from a sister
State."[1267]
The principles announced by Marshall in Brown _vs._ Maryland have been
upheld by nearly all courts that have since dealt with the subject of
commerce. But there has been much "distinguishing" of various cases from
that decision; and, in this process, the application of his great
opinion has often been modified, sometimes evaded. In some cases in
which Marshall's statesmanship has thus been weakened and narrowed,
local public sentiment as to questions that have come to be considered
moral, has been influential. It is fortunate for the Republic that
considerations of this kind did not, in such fashion, impair the liberty
of commerce among the States before the American Nation was firmly
established. When estimating our indebtedness to John Marshall, we must
have in mind the state of the country at the time his Constitutional
expositions were pronounced and the inevitable and ruinous effect that
feebler and more restricted assertions of Nationalism would then have
had.
Seldom has a triumph of sound principles and of sound reasoning in the
assertion of those principles been more frankly acknowledged than in the
tribute which Roger Brooke Taney inferentially paid to John Marshall,
whom he succeeded as Chief Justice. Twenty years after the decision of
Brown _vs._ Maryland, Taney declared: "I at that time persuaded myself
that I was right.... But further and more mature reflection has
convinced me that the rule laid down by the Supreme Court is a just and
safe one, and perhaps the best that could have been adopted for
preserving the right of the United States on the one hand, and of the
States on the other, and preventing collision between them."[1268]
Chief Justice Taney's experience has been that of many thoughtful men
who, for a season and when agitated by intense concern for a particular
cause or policy, have felt Marshall to have been wrong in this, that, or
the other of his opinions. Frequently, such men have, in the end, come
to the steadfast conclusion that they were wrong and that Marshall was
right.
FOOTNOTES:
[1107] Institut national des sciences et des arts.
[1108] Dickinson: _Robert Fulton, Engineer and Artist_, 156-57; also see
Thurston: _Robert Fulton_, 113.
[1109] See Dickinson, 126-32; also Knox: _Life of Robert Fulton_, 72-86;
and Fletcher: _Steam-Ships_, 19-24.
[1110] Dickinson, 134-35; Knox, 90-93.
[1111] Act of March 27, 1798, _Laws of New York, 1798_, 382-83.
This act, however, was merely the transfer of similar privileges granted
to John Fitch on March 19, 1787, to whom, rather than to Robert Fulton,
belongs the honor of having invented the steamboat. It was printed in
the _Laws of New York_ edited by Thomas Greenleaf, published in 1792, I,
411; and also appears as Appendix A to "A Letter, addressed to
Cadwallader D. Colden, Esquire," by William Alexander Duer, the first
biographer of Fulton. (Albany, 1817.) Duer's pamphlet is uncommonly
valuable because it contains all the petitions to, and the acts of, the
New York Legislature concerning the steamboat monopoly.
[1112] Reigart: _Life of Robert Fulton_, 163. Nobody but Livingston was
willing to invest in what all bankers and business men considered a
crazy enterprise. (_Ib._ 100-01.)
[1113] Knox, 93. It should be remembered, however, that the granting of
monopolies was a very common practice everywhere during this period.
(See Prentice: _Federal Power over Carriers and Corporations_, 60-65.)
[1114] Compare with his brother's persistence in the Batture
controversy, _supra_, 100-15.
[1115] Dickinson, 64-123; Knox, 35-44.
[1116] Knox, 93; see also Dickinson, 136.
[1117] Act of April 5, 1803, _Laws of New York, 1802-04_, 323-24.
[1118] Act of April 6, 1807, _Laws of New York, 1807-09_, 213-14.
[1119] The North River was afterward named the Clermont, which was the
name of Livingston's county seat. (Dickinson, 230.)
[1120] The country people along the Hudson thought the steamboat a sea
monster or else a sign of the end of the world. (Knox, 110-11.)
[1121] Act of April 11, 1808, _Laws of New York, 1807-09_, 407-08.
(Italics the author's.)
[1122] Dickinson, 233-34.
[1123] _Ib._ 234-36. The thoroughfare in New York, at the foot of which
these boats landed, was thereafter named Fulton Street. (_Ib._ 236.)
[1124] See _infra_, 414.
[1125] Dickinson, 230. From the first Roosevelt had been associated with
Livingston in steamboat experiments. He had constructed the engine for
the craft with which Livingston tried to fulfill the conditions of the
first New York grant to him in 1798. Roosevelt was himself an inventor,
and to him belongs the idea of the vertical wheel for propelling
steamboats which Fulton afterward adopted with success. (See J. H. B.
Latrobe, in _Maryland Historical Society Fund-Publication_, No. 5,
13-14.)
Roosevelt was also a manufacturer and made contracts with the Government
for rolled and drawn copper to be used in war-vessels. The Government
failed to carry out its agreement, and Roosevelt became badly
embarrassed financially. In this situation he entered into an
arrangement with Livingston and Fulton that if the report he was to make
to them should be favorable, he was to have one third interest in the
steamboat enterprise on the Western waters, while Livingston and Fulton
were to supply the funds.
The story of his investigations and experiments on the Ohio and
Mississippi glows with romance. Although forty-six years old, he had but
recently married and took his bride with him on this memorable journey.
At Pittsburgh he built a flatboat and on this the newly wedded couple
floated to New Orleans; the trip, with the long and numerous stops to
gather information concerning trade, transportation, the volume and
velocity of various streams, requiring six months' time.
Before proceeding far Roosevelt became certain of success. Discovering
coal on the banks of the Ohio, he bought mines, set men at work in them,
and stored coal for the steamer he felt sure would be built. His
expectation was justified and, returning to New York from New Orleans,
he readily convinced Livingston and Fulton of the practicability of the
enterprise and was authorized to go back to Pittsburgh to construct a
steamboat, the design of which was made by Fulton. By the summer of 1811
the vessel was finished. It cost $38,000 and was named the New Orleans.
Late in September, 1811, the long voyage to New Orleans was begun, the
only passengers being Roosevelt and his wife. A great crowd cheered them
as the boat set out from Pittsburgh. At Cincinnati the whole population
greeted the arrival of this extraordinary craft. Mr. and Mrs. Roosevelt
were given a dinner at Louisville, where, however, all declared that
while the boat could go down the river, it never could ascend. Roosevelt
invited the banqueters to dine with him on the New Orleans the next
night and while toasts were being drunk and hilarity prevailed, the
vessel was got under way and swiftly proceeded upstream, thus convincing
the doubters of the power of the steamboat.
From Louisville onward the voyage was thrilling. The earthquake of 1811
came just after the New Orleans passed Louisville and this changed the
river channels. At another time the boat took fire and was saved with
difficulty. Along the shore the inhabitants were torn between terror of
the earthquake and fright at this monster of the waters. The crew had to
contend with snags, shoals, sandbars, and other obstructions. Finally
Natchez was reached and here thousands of people gathered on the bluffs
to witness this triumph of science.
At last the vessel arrived at New Orleans and the first steamboat voyage
on the Ohio and Mississippi was an accomplished fact. The experiment,
which began two years before with the flatboat voyage of a bride and
groom, ended at the metropolis of the Southwest in the marriage of the
steamboat captain to Mrs. Roosevelt's maid, with whom he had fallen in
love during this thrilling and historic voyage. (See Latrobe, in _Md.
Hist. Soc. Fund-Pub_. No. 6. A good summary of Latrobe's narrative is
given in Preble: _Chronological History of the Origin and Development of
Steam Navigation_, 77-81.)
[1126] Act of Jan. 25, 1811, _Acts of New Jersey, 1811_, 298-99.
[1127] Act of April 9, 1811, _Laws of New York, 1811_, 368-70.
[1128] _Laws of Connecticut_, May Sess. 1822, chap. XXVIII.
[1129] Dickinson, 244.
[1130] Livingston _et al._ _vs._ Van Ingen _et al._, 1 Paine, 45-46.
Brockholst Livingston, Associate Justice of the Supreme Court, sat in
this case with William P. Van Ness (the friend and partisan of Burr),
and delivered the opinion.
[1131] The full title of this tribunal was the "Court for the Trial of
Impeachments and the Correction of Errors." It was the court of last
resort, appeals lying to it from the Supreme Court of Judicature and
from the Court of Chancery. It consisted of the Justices of the Supreme
Court of Judicature and a number of State Senators. A more absurdly
constituted court cannot well be imagined.
[1132] 9 Johnson, 558, 563.
[1133] The State Senate, House, Council of Revision, and Governor.
[1134] 9 Johnson, 572.
[1135] Those enacted in 1798, 1803, 1807, 1808, and 1811.
[1136] 9 Johnson, 573. Jay as Governor was Chairman of the Council of
Revision, of which Kent was a member.
[1137] _lb._ 572.
[1138] _Ib._ 573. (Italics the author's.)
[1139] 9 Johnson, 574.
[1140] _Ib._ 575-76.
[1141] _Ib._ 577-78.
[1142] 9 Johnson, 578, 580.
[1143] _Ib._ 582-88.
[1144] All the Senators concurred except two, Lewis and Townsend, who
declined giving opinions because of relationship with the parties to the
action. (_Ib._ 589.)
[1145] Ogden protested against the Livingston-Fulton steamboat monopoly
in a Memorial to the New York Legislature. (See Duer, 94-97.) A
committee was appointed and reported the facts as Ogden stated them; but
concluded that, since New York had granted exclusive steamboat
privileges to Livingston, "the honor of the State requires that its
faith should be preserved." However, said the committee, the
Livingston-Fulton boats "are in substance the invention of John Fitch,"
to whom the original monopoly was granted, after the expiration of which
"the right to use" steamboats "became common to all the citizens of the
United States." Moreover, the statements upon which rested the
Livingston monopoly of 1798 "were not true in fact," Fitch having
forestalled the claims of the Livingston pretensions. (_Ib._ 103-04.)
[1146] 4 Johnson's _Chancery Reports_, 50-51. The reader must not
confuse the two series of Reports by Johnson; one contains the decisions
of the Court of Errors; the other, those of the Court of Chancery.
[1147] Act of April 6, 1808, _Laws of New York, 1807-09_, 313-15.
[1148] 4 Johnson's _Chancery Reports_, 51, 53.
[1149] _Ib._ 152.
[1150] _Ib._ 154.
[1151] Act of Feb. 18, 1793, _U.S. Statutes at Large_, I, 305-18.
[1152] 4 Johnson's _Chancery Reports_, 156.
[1153] 9 Johnson, 507 _et seq._
[1154] 4 Johnson's _Chancery Reports_, 158-59.
[1155] 17 Johnson, 488 _et seq._
[1156] See _supra_, 240-50, 284-86.
[1157] Story to Fettyplace, Feb. 28, 1821, Story, I, 397.
[1158] Records Supreme Court, MS.
[1159] The case was first docketed, June 7, 1820, as Aaron Ogden _vs._
Thomas _Gibbins_, and the defective transcript was filed October 17, of
the same year. When next docketed, the title was correctly given, Thomas
Gibbons _vs._ Aaron Ogden. (_Ib._)
[1160] Act of April 19, 1811, _Acts of Territory of Orleans, 1811_,
112-18.
[1161] Act of Nov. 18, 1814, _Laws of Georgia, 1814_, October Sess.
28-30.
[1162] Act of Feb. 7, 1815, _Laws of Massachusetts, 1812-15_, 595.
[1163] Act of June 15, 1815, _Laws of New Hampshire, 1815_, II, 5.
[1164] Act of Nov. 10, 1815, _Laws of Vermont, 1815_, 20.
[1165] Ohio, for example, passed two laws for the "protection" of its
citizens owning steamboats. This act provided that no craft propelled by
steam, operated under a license from the New York monopoly, should land
or receive passengers at any point on the Ohio shores of Lake Erie
unless Ohio boats were permitted to navigate the waters of that lake
within the jurisdiction of New York. For every passenger landed in
violation of these acts the offender was made subject to a fine of $100.
(Chap, XXV, Act of Feb. 18, 1822, and chap. II, Act of May 23, 1822,
_Laws of Ohio, 1822_.)
[1166] Niles's _Register_ for these years is full of accounts of the
building, launching, and departures and arrivals of steam craft
throughout the whole interior of the country.
[1167] See Blane: _An Excursion Through the United States and Canada_,
by "An English Gentleman," 119-21. For an accurate account of the
commercial development of the West see also Johnson: _History of
Domestic and Foreign Commerce_, I, 213-15.
On March 1, 1819, Flint saw a boat on the stocks at Jeffersonville,
Indiana, 180 feet long, 40 feet broad, and of 700 tons burden. (Flint's
Letters, in _E. W. T._: Thwaites, IX, 164.)
[1168] Blane, 118.
[1169] _Annals_, 14th Cong. 2d Sess. 296.
[1170] _Ib._ 361.
[1171] See debate in the House, _ib._ 851-923; and in the Senate, _ib._
166-70.
[1172] _Ib._ 924-33.
[1173] March 1, 1817, _ib._ 1052.
[1174] Veto Message of March 3, 1817, Richardson, I, 584-85.
[1175] Monroe gingerly referred to it in his First Inaugural Address.
(Richardson, II, 8.) But in his First Annual Message he dutifully
followed Madison and declared that "Congress do not possess the right"
to appropriate National funds for internal improvements. So this third
Republican President recommended an amendment to the Constitution "which
shall give to Congress the right in question." (_Ib._ 18.)
[1176] _Annals_, 15th Cong. 1st Sess. 451-60.
[1177] _Ib._ 1114-1250, 1268-1400.
[1178] "All the difficulties under which we have labored and now labor
on this subject have grown out of a fatal admission" by Madison "which
runs counter to the tenor of his whole political life, and is expressly
contradicted by one of the most luminous and able State papers that ever
was written [the Virginia Resolutions]--an admission which gave a
sanction to the principle that this Government had the power to charter
the present colossal Bank of the United States. Sir, ... that act, and
one other which I will not name [Madison's War Message in 1812], bring
forcibly home to my mind a train of melancholy reflections on the
miserable state of our mortal being:
'In life's last scenes, what prodigies surprise!
Fears of the brave, and follies of the wise.
From Marlborough's eyes the streams of dotage flow,
And Swift expires a driv'ler and a show.'
"Such is the state of the case, Sir. It is miserable to think of it--and
we have nothing left to us but to weep over it." (_Annals_, 18th Cong.
1st Sess. 1301.)
Randolph was as violently against the War of 1812 as was Marshall, but
he openly proclaimed his opposition.
[1179] _Ib._
[1180] Italics the author's.
[1181] _Annals_, 18th Cong. 1st Sess. 1308.
[1182] _Ib._ 1310-11. The bill passed, 115 yeas to 86 nays. (_Ib._
1468-69.)
[1183] See _infra_, 535-36.
[1184] See _infra_, chap. X.
[1185] See vol. I, 310-12, of this work; also Marshall: _Life of George
Washington_, 2d ed. II, 105-06, 109-10, 125. And see Madison's "Preface
to Debates in the Convention of 1787." (_Records of the Federal
Convention_: Farrand, III, 547.) "The want of authy. in Congs. to
regulate Commerce had produced in Foreign nations particularly G. B. a
monopolizing policy injurious to the trade of the U. S. and destructive
to their navigation.... The same want of a general power over Commerce
led to an exercise of this power separately, by the States, w^{ch} not
only proved abortive, but engendered rival, conflicting and angry
regulations."
[1186] _Records, Fed. Conv_.: Farrand, II, 143. The provision in this
draft is very curious. It declares that "a navigation act shall not be
passed, but with the consent of (eleven states in) <2/3d. of the Members
present of> the senate and (10 in) the house of
representatives."
[1187] _Ib._ 135, 157, 569, 595, 655. Roger Sherman mentioned interstate
trade only incidentally. Speaking of exports and imports, he said that
"the oppression of the uncommercial States was guarded agst. by the
power to regulate trade between the States." (_Ib._ 308.)
Writing in 1829, Madison said that the commerce clause "being in the
same terms with the power over foreign commerce, the same extent, if
taken literally, would belong to it. Yet it ... grew out of the abuse of
the power by the importing States in taxing the non-importing, and was
intended as a negative and preventive provision against injustice among
the States themselves, rather than as a power to be used for the
positive purposes of the General Government, in which alone, however,
the remedial power could be lodged." (Madison to Cabell, Feb. 13, 1829,
_ib._ III, 478.)
[1188] See _Monthly Law Reporter_, New Series, X, 177.
[1189] Wirt to Carr, Feb. 1, 1824, Kennedy, II, 164.
[1190] _Ib._
[1191] "Reminiscence," that betrayer of history, is responsible for the
fanciful story, hitherto accepted, that Webster was speaking on the
tariff in the House when he was suddenly notified that Gibbons _vs._
Ogden would be called for argument the next morning; and that, swiftly
concluding his great tariff argument, he went home, took medicine, slept
until ten o'clock that night, then rose, and in a strenuous effort
worked until 9 A.M. on his argument in the steamboat case; and that this
was all the preparation he had for that glorious address. (Ticknor's
reminiscences of Webster, as quoted by Curtis, I, 216-17.)
On its face, Webster's argument shows that this could not have been
true. The fact was that Webster had had charge of the case in the
Supreme Court for three years; and that, since the argument was twice
before expected, he had twice before prepared for it.
The legend about his being stopped in his tariff speech is utterly
without foundation. The debate on that subject did not even begin in the
House until February 11, 1824 (_Annals_, 18th Cong. 1st Sess. 1470),
three days after the argument of Gibbons _vs._ Ogden was concluded; and
Webster did not make his famous speech on the Tariff Bill of 1824 until
April 1-2, one month after the steamboat case had been decided. (_Ib._
2026-68.)
Moreover, as has been stated in the text, the debate on the survey of
roads and canals was on in the House when the argument in Gibbons _vs._
Ogden was heard; had been in progress for three weeks previously and
continued for some time afterward; and in this debate Webster did not
participate. Indeed, the record shows that for more than a week before
the steamboat argument Webster took almost no part in the House
proceedings. (_Ib._ 1214-1318.)
[1192] 9 Wheaton, 3.
[1193] 9 Wheaton, 4-5.
[1194] _Ib._ 6-9.
[1195] _Ib._ 9.
[1196] _Ib._ 11.
[1197] _Ib._ 11-12.
[1198] 9 Wheaton, 14.
[1199] _Ib._ 24.
[1200] The student should carefully read these three admirable
arguments, particularly that of Emmet. All of them deal with patent law
as well as with the commerce clause of the Constitution. (See 9 Wheaton,
33-135.) The argument lasted from February 4 to February 9 inclusive.
[1201] 1 Brockenbrough, 430-31.
[1202] 1 Brockenbrough, 431-32.
[1203] Webster to his brother, Feb. 15, 1824, Van Tyne, 102.
[1204] 9 Wheaton, 186.
[1205] "WE THE PEOPLE of the United States, in Order to form a more
perfect Union, establish Justice, insure domestic Tranquility, provide
for the common defence, promote the general Welfare, and secure the
Blessings of Liberty to ourselves and our Posterity, do ordain and
establish this CONSTITUTION for the United States of America." (Preamble
to the Constitution of the United States.)
[1206] 9 Wheaton, 187-88.
[1207] _Ib._ 188-89.
[1208] "The Congress shall have Power ... to regulate Commerce with
foreign Nations, and among the Several States, and with the Indian
Tribes." (Constitution of the United States, Article I, Section 8.)
[1209] 9 Wheaton, 192-93.
[1210] 9 Wheaton, 193-94.
[1211] _Ib._ 195.
[1212] 9 Wheaton, 195-96.
[1213] _Ib._ 196-97.
[1214] 9 Wheaton, 199-200.
[1215] 9 Wheaton, 202-03.
[1216] _Ib._ 203.
[1217] 9 Wheaton, 203-04.
[1218] _Ib._ 204-05.
[1219] _Ib._ 205-06.
[1220] 9 Wheaton, 206-09.
[1221] _Ib._ 209-10.
[1222] 9 Wheaton, 210-11. (Italics the author's.)
[1223] _Ib._ 211-12.
[1224] _Ib._ 214.
[1225] 9 Wheaton, 215-16.
[1226] _Ib._ 216-18.
[1227] _Ib._ 218-20.
[1228] 9 Wheaton, 221.
[1229] Marshall is here referring particularly to Chancellor Kent.
[1230] 9 Wheaton, 221-22.
[1231] 9 Wheaton, 222. (Italics the author's.)
[1232] 9 Wheaton, 227.
[1233] 9 Wheaton, 228-30.
[1234] _Ib._ 231-32.
[1235] _New York Evening Post_, March 5, 1824, as quoted in Warren, 395.
[1236] Niles, XXVI, 54-62.
[1237] For example, steamboat construction on the Ohio alone almost
doubled in a single year, and quadrupled within two years. (See table in
Meyer-MacGill: _History of Transportation in the United States_, etc.,
108.)
[1238] 1 Hopkins's _Chancery Reports_, 151.
[1239] _Ib._ 198.
[1240] 3 Cowen, 716-17.
[1241] 3 Cowen, 731-34.
[1242] _Ib._ 750.
[1243] _Ib._
[1244] 3 Cowen, 753-54.
[1245] This bill had been proposed by Senator Richard M. Johnson of
Kentucky at the previous session (_Annals_, 18th Cong. 1st Sess, 575) as
an amendment to a bill reported from the Judiciary Committee by Senator
Martin Van Buren (_ib._ 336).
[1246] _Debates_, 18th Cong. 2d Sess. 527-33.
[1247] _Ib._ 588.
[1248] _Ib._ 609.
[1249] _Ib._ 614.
After considerable wrangling, the bill was reported favorably from the
Judiciary Committee (_ib._ 630), but too late for further action at that
session.
[1250] _Debates_, 19th Cong. 1st Sess. 845.
[1251] Four days after the House adopted Webster's bill (_ib._ 1149), he
wrote his brother: "The judiciary bill will probably pass the Senate, as
it left our House. There will be no difficulty in finding perfectly safe
men for the new appointments. The contests on those constitutional
questions in the West have made men fit to be judges." (Webster to his
brother, Jan. 29, 1826, _Priv. Corres_.: Webster, I, 401.)
[1252] _Debates_, 19th Cong. 1st Sess. 417-18.
[1253] _Ib._ 419.
[1254] _Ib._ 420-21.
[1255] _Debates_, 19th Cong. 1st Sess. 423-24.
[1256] _Ib._ 436.
[1257] _Ib._ 442. Rowan's amendment was defeated (_ib._ 463). Upon
disagreements between the Senate and House as to the number and
arrangement of districts and circuits, the entire measure was lost. In
the House it was "indefinitely postponed" by a vote of 99 to 89 (_ib._
2648); and in the Senate the bill was finally laid on the table (_ib._
784).
[1258] 12 Wheaton, 420.
[1259] Taney, leading counsel for Maryland, had just been appointed
Attorney-General of that State, and soon afterwards was made
Attorney-General of the United States. He succeeded Marshall as Chief
Justice. (See _infra_, 460.)
[1260] Johnson was only thirty-one years old at this time, but already a
leader of the Baltimore bar and giving sure promise of the distinguished
career he afterward achieved.
[1261] 12 Wheaton, 436.
[1262] 12 Wheaton, 437-39.
[1263] _Ib._ 441.
[1264] _Ib._ 441-42.
[1265] 12 Wheaton, 443-44.
[1266] See _infra_, 536-38.
[1267] 12 Wheaton, 448-49.
[1268] 5 Howard, 575.
CHAPTER IX
THE SUPREME CONSERVATIVE
If a judge becomes odious to the people, let him be removed.
(William Branch Giles.)
Our wisest friends look with gloom to the future. (Joseph
Story.)
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. (Marshall.)
"I was in a very great crowd the other evening at M^{rs} Adams' drawing
room, but I see very few persons there whom I know & fewer still in whom
I take any interest. A person as old as I am feels that his home is his
place of most comfort, and his old wife the companion in the world in
whose society he is most happy.
"I dined yesterday with Mr. Randolph. He is absorbed in the party
politics of the day & seems as much engaged in them as he was twenty
five years past. It is very different with me. I long to leave this busy
bustling scene & to return to the tranquility of my family & farm.
Farewell my dearest Polly. That Heaven may bless you is the unceasing
prayer of your ever affectionate
"J. MARSHALL."[1269]
This letter to his ageing and afflicted wife, written in his
seventy-second year, reveals Marshall's state of mind as he entered the
final decade of his life. While the last of his history-making and
nation-building opinions had been delivered, the years still before him
were to be crowded with labor as arduous and scenes as picturesque as
any during his career on the Bench. It was to be a period of
disappointment and grief, but also of that supreme reward for sound and
enduring work which comes from recognition of the general and lasting
benefit of that work and of the greatness of mind and nobility of
character of him who performed it.
For twenty years the Chief Justice had not voted. The last ballot he had
cast was against the reëlection of Jefferson in 1804. From that time
forward until 1828, he had kept away from the polls. In the latter year
he probably voted for John Quincy Adams, or rather against Andrew
Jackson, who, as Marshall thought, typified the recrudescence of that
unbridled democratic spirit which he so increasingly feared and
distrusted.[1270]
[Illustration: JOHN MARSHALL]
Yet, even in so grave a crisis as Marshall believed the Presidential
election of 1828 to be, he shrank from the appearance of partisanship.
The _Marylander_, a Baltimore Democratic paper, published an item
quoting Marshall as having said: "I have not voted for twenty years; but
I shall consider it a solemn duty I owe my country to go to the polls
and vote at the next presidential election--for should Jackson be
elected, I shall look upon the government as virtually dissolved."[1271]
This item was widely published in the Administration newspapers,
including the Richmond _Whig and Advertiser_. To this paper Marshall
wrote, denying the statement of the Baltimore publication: "Holding the
situation I do ... I have thought it right to abstain from any public
declarations on the election; ... I admit having said in private that
though I had not voted since the establishment of the general ticket
system, and had believed that I never should vote during its
continuance, I might probably depart from my resolution in this
instance, from the strong sense I felt of the injustice of the charge
of corruption against the President & Secretary of State: I never did
use the other expressions ascribed to me."[1272] This "card" the
_Enquirer_ reproduced, together with the item from the _Marylander_,
commenting scathingly upon the methods of Adams's supporters.
Clay, deeply touched, wrote the Chief Justice of his appreciation and
gratitude; but he is sorry that Marshall paid any attention to the
matter "because it will subject you to a part of that abuse which is so
indiscriminately applied to ... everything standing in the way of the
election of a certain individual."[1273]
Marshall was sorely worried. He writes Story that the incident
"provoked" him, "not because I have any objection to its being known
that my private judgement is in favor of the re-election of M^r Adams,
but because I have great objections to being represented in the
character of a furious partisan. Intemperate language does not become my
age or office, and is foreign from my disposition and habits. I was
therefore not a little vexed at a publication which represented me as
using language which could be uttered only by an angry party man."
He explains that the item got into the _Marylander_ through a remark of
one of his nephews "who was on the Adams convention" at Baltimore, to
the effect that he had heard Marshall say that, although he had "not
voted for upwards of twenty years" he "should probably vote at the
ensuing election." His nephew wrote a denial, but it was not published.
So, concludes Marshall, "I must bear the newspaper scurrility which I
had hoped to escape, and which is generally reserved for more important
personages than myself. It is some consolation that it does not wound me
very deeply."[1274]
It would seem that Marshall had early resolved to go to any length to
deprive the enemies of the National Judiciary of any pretext for
attacking him or the Supreme Court because of any trace of partisan
activity on his part. One of the largest tasks he had set for himself
was to create public confidence in that tribunal, and to raise it above
the suspicion that party considerations swayed its decisions. He had
seen how nearly the arrogance and political activity of the first
Federalist judges had wrecked the Supreme Court and the whole Judicial
establishment, and had resolved, therefore, to lessen popular hostility
to courts, as far as his neutral attitude to party controversies could
accomplish that purpose.
It thus came about that Marshall refrained even from exercising his
right of suffrage from 1804 to 1828--perhaps, indeed, to the end of his
life, since it is not certain that he voted even at the election of
1828. Considering the intensity of his partisan feelings, his refusal to
vote, during nearly all the long period when he was Chief Justice, was a
real sacrifice, the extent of which may be measured by the fact that,
according to his letter to Story, he did not even vote against Madison
in 1812, notwithstanding the violence of his emotions aroused by the
war.[1275]
On March 4, 1829, Marshall administered the oath of office to the newly
elected President, Andrew Jackson. No two men ever faced one another
more unlike in personality and character. The mild, gentle, benignant
features of the Chief Justice contrasted strongly with the stern, rigid,
and aggressive countenance of "Old Hickory." The one stood for the reign
of law; the other for autocratic administration. In Jackson, whim,
prejudice, hatred, and fierce affections were dominant; in Marshall,
steady, level views of life and government, devotion to order and
regularity, abhorrence of quarrel and feud, constancy and evenness in
friendship or conviction, were the chief elements of character.
Moreover, the Chief Justice personified the static forces of society;
the new President was the product of a fresh upheaval of democracy, not
unlike that which had placed Jefferson in power.
Marshall had administered the Presidential oath seven times
before--twice each to Jefferson, Madison, and Monroe, and once to John
Quincy Adams. And now he was reading the solemn words to the passionate
frontier soldier from whose wild, undisciplined character he feared so
much. Marshall briefly writes his wife about the inauguration: "We had
yesterday a most busy and crowded day. People have flocked to Washington
from every quarter of the United States. When the oath was administered
to the President the computation is that 12 or 15000 people were
present--a great number of them ladies. A great ball was given at night
to celebrate the election. I of course did not attend it. The
affliction of our son[1276] would have been sufficient to restrain me
had I even felt a desire to go."[1277] In a previous letter to his wife
he forecast the crowds and commotion: "The whole world it is said will
be here.... I wish I could leave it all and come to you. How much more
delightful would it be to me to sit by your side than to witness all the
pomp and parade of the inauguration."[1278]
Much as he had come to dislike taking part in politics or in public
affairs, except in the discharge of his judicial duties, Marshall was
prevailed upon to be a delegate to the Virginia Constitutional
Convention of 1829-30. He refused, at first, to stand for the place and
hastened to reassure his "dearest Polly." "I am told," he continues in
his letter describing Jackson's induction into office, "by several that
I am held up as a candidate for the convention. I have no desire to be
in the convention and do not mean to be a candidate. I should not
trouble you with this did I not apprehend that the idea of my wishing to
be in the convention might prevent some of my friends who are themselves
desirous of being in it from becoming candidates. I therefore wish you
to give this information to Mr. Harvie.[1279]... Farewell my dearest
Polly. Your happiness is always nearest the heart of your J.
Marshall."[1280]
He yielded, however, and wrote Story of his disgust at having done so:
"I am almost ashamed of my weakness and irresolution when I tell you
that I am a member of our convention. I was in earnest when I told you
that I would not come into that body, and really believed that I should
adhere to that determination; but I have acted like a girl addressed by
a gentleman she does not positively dislike, but is unwilling to marry.
She is sure to yield to the advice and persuasion of her friends.... The
body will contain a great deal of eloquence as well as talent, and yet
will do, I fear, much harm with some good. Our freehold suffrage is, I
believe, gone past redemption. It is impossible to resist the influence,
I had almost said contagion of universal example."[1281]
For fifty-three years Virginia had been governed under the constitution
adopted at the beginning of the Revolution. As early as the close of
this war the injustice and inadequacy of the Constitution of 1776 had
become evident, and, as a member of the House of Delegates, Marshall
apparently had favored the adoption of a new fundamental law for the
State.[1282] Almost continuously thereafter the subject had been brought
forward, but the conservatives always had been strong enough to defeat
constitutional reform.
On July 12, 1816, in a letter to Samuel Kercheval, one of the ablest
documents he ever produced, Jefferson had exposed the defects of
Virginia's constitution which, he truly said, was without "leading
principles." It denied equality of representation; the Governor was
neither elected nor controlled by the people; the higher judges were
"dependent on none but themselves." With unsparing severity Jefferson
denounces the County Court system.
Clearly and simply he enumerates the constructive reforms imperatively
demanded, beginning with "General Suffrage" and "Equal representation,"
on which, however, he says that he wishes "to take no public share"
because that question "has become a party one." Indeed, at the very
beginning of this brilliant and well-reasoned letter, Jefferson tells
Kercheval that it is "for your satisfaction only, and not to be quoted
before the public."[1283]
But Kercheval handed the letter around freely and proposed to print it
for general circulation. On hearing of this, Jefferson was "alarmed" and
wrote Kercheval harshly, repeating that the letter was not to be given
out and demanding that the original and copies be recalled.[1284] This
uncharacteristic perturbation of the former President reveals in
startling fashion the bitterness of the strife over the calling of the
convention, and over the issues confronting that body in making a new
constitution for Virginia.
Of the serious problems to be solved by the Convention of 1829-30, that
of suffrage was the most important. Up to that time nobody could vote in
Virginia except white owners of freehold estates. Counties, regardless
of size, had equal representation in the House of Delegates. This gave
to the eastern and southern slaveholding sections of the State, with
small counties having few voters, an immense preponderance over the
western and northwestern sections, with large counties having many
voters. On the other hand, the rich slavery districts paid much heavier
taxes than the poorer free counties.[1285]
Marshall was distressed by every issue, to settle which the convention
had been called. The question of the qualification for suffrage
especially agitated him. Immediately after his election to the
convention, he wrote Story of his troubles and misgivings: "We shall
have a good deal of division and a good deal of heat, I fear, in our
convention. The freehold principle will, I believe, be lost. It will,
however, be supported with zeal. If that zeal should be successful I
should not regret it. If we find that a decided majority is against
retaining it I should prefer making a compromise by which a substantial
property qualification may be preserved in exchange for it.
"I fear the excessive [torn--probably, democratic spirit, coin]cident to
victory after a hard fought battle continued to the last extremity may
lead to universal suffrage or something very near it. What is the
prop[erty] qualification for your Senate? How are your Senators
apportioned on the State? And how does your system work? The question
whether white population alone, or white population compounded with
taxation, shall form the basis of representation will excite perhaps
more interest than even the freehold suffrage. I wish we were well
through the difficulty."[1286]
The Massachusetts Constitutional Convention had been held nearly a
decade before that of Virginia. The problem of suffrage had troubled the
delegates almost as much as it now perplexed Marshall. The reminiscent
Pickering writes the Chief Justice of the fight made in 1820 by the
Massachusetts conservatives against "the conceited innovators." Story
had been a delegate, and so had John Adams, fainting with extreme age,
but rich with the wisdom of his eighty-five years: "He made a short, but
very good speech," begging the convention to retain the State Senate as
"the representative of _property_; ... the number of Senators in each
district was proportioned to its direct taxes to the State revenue--and
not to its population. Some democrats desired that the number of
Senators should be apportioned not according to the taxation, but
exclusively to the population. This, Mr. Adams and all the most
intelligent and considerate members opposed."[1287]
Ultra-conservative as Marshall was, strongly as he felt the great body
of the people incapable of self-government, he was deeply concerned for
the well-being of what he called "the mass of the people." The best
that can be done for them, he says in a letter to Charles F. Mercer, is
to educate them. "In governments entirely popular" general education "is
more indispensable ... than in an other." The labor problem troubles him
sorely. When population becomes so great that "the surplus hands" must
turn to other employment, a grave situation will arise.
"As the supply exceeds the demand the price of labour will cheapen until
it affords a bare subsistence to the labourer. The superadded demands of
a family can scarcely be satisfied and a slight indisposition, one which
suspends labour and compensation for a few days produces famine and
pauperism. How is this to be prevented?" Education may be relied on "in
the present state of our population, and for a long time to come.... But
as our country fills up how shall we escape the evils which have
followed a dense population?"[1288]
The Chief Justice went to the Virginia Convention a firm supporter of
the strongest possible property qualification for suffrage. On the
question of slavery, which arose in various forms, he had not made his
position clear. The slavery question, as a National matter, perplexed
and disturbed Marshall. There was nothing in him of the humanitarian
reformer, but there was everything of the statesman. He never had but
one, and that a splendid, vision.
The American Nation was his dream; and to the realization of it he
consecrated his life. A full generation after Marshall wrote his last
despairing word on slavery, Abraham Lincoln expressed the conviction
which the great Chief Justice had entertained: "I would save the Union.
I would save it the shortest way under the Constitution.... If I could
save the Union without freeing any slave, I would do it; and if I could
save it by freeing some and leaving others alone, I would also do that.
What I do about slavery and the colored race, I do because I believe it
helps to save the Union."[1289]
Pickering, the incessant, in one of his many and voluminous letters to
Marshall which the ancient New Englander continued to write as long as
he lived, had bemoaned the existence of slavery--one of the rare
exhibitions of Liberalism displayed by that adamantine Federalist
conservative. Marshall answered: "I concur with you in thinking that
nothing portends more calamity & mischief to the Southern States than
their slave population. Yet they seem to cherish the evil and to view
with immovable prejudice & dislike every thing which may tend to
diminish it. I do not wonder that they should resist any attempt, should
one be made, to interfere with the rights of property, but they have a
feverish jealousy of measures which may do good without the hazard of
harm that is, I think, very unwise."[1290]
Marshall heartily approved the plan of the American Colonization Society
to send free negroes back to Africa. The Virginia branch of that
organization was formed in 1829, the year of the State Constitutional
Convention, and Marshall became a member. Two years later he became
President of the Virginia branch, with James Madison, John Tyler, Abel
P. Upshur, and other prominent Virginians as Vice-Presidents.[1291] In
1831, Marshall was elected one of twenty-four Vice-Presidents of the
National society, among whom were Webster, Clay, Crawford, and
Lafayette.[1292]
The Reverend R. R. Gurley, Secretary of this organization, wrote to the
more eminent members asking for their views. Among those who replied
were Lafayette, Madison, and Marshall. The Chief Justice says that he
feels a "deep interest in the ... society," but refuses to "prepare any
thing for publication." The cause of this refusal is "the present state
of [his] family"[1293] and a determination "long since formed ...
against appearing in print on any occasion." Nevertheless, he writes
Gurley a letter nearly seven hundred words in length.
Marshall thinks it "extremely desirable" that the States shall pass
"permanent laws" affording financial aid to the colonization project. It
will be "also desirable" if this legislation can be secured "to incline
the people of color to migrate." He had thought for a long time that it
was just possible that more negroes might like to go to Liberia than
"can be provided for with the funds [of] the Society"; therefore he had
"suggested, some years past," to the managers, "to allow a small
additional bounty in lands to those who would pay their passage in whole
or in part."
To Marshall it appears to be of "great importance to retain the
countenance and protection of the General Government. Some of our
cruizers stationed on the coast of Africa would, at the same time,
interrupt the slave trade--a horrid traffic detested by all good
men--and would protect the vessels and commerce of the Colony from
pirates who infest those seas. The power of the government to afford
this aid is not, I believe, contested." He thinks the plan of Rufus King
to devote part of the proceeds from the sale of public lands to a fund
for the colonization scheme, "the most effective that can be devised,"
Marshall makes a brief but dreary argument for this method of raising
funds for the exportation of the freed blacks.
He thus closes this eminently practical letter: "The removal of our
colored population is, I think, a common object, by no means confined to
the slave States, although they are more immediately interested in it.
The whole Union would be strengthened by it, and relieved from a danger,
whose extent can scarcely be estimated." Furthermore, says the Chief
Justice, "it lessens very much ... the objection in a political view to
the application of this ample fund [from the sale of the public domain],
that our lands are becoming an object for which the States are to
scramble, and which threatens to sow the seeds of discord among us
instead of being what they might be--a source of national wealth."[1294]
Marshall delivered two opinions in which the question of slavery was
involved, but they throw little light on his sentiments. In the case of
the Antelope he held that the slave trade was not prohibited by
international law as it then existed; but since the court, including
Story and Thompson, both bitter antagonists of slavery, was unanimous,
the views of Marshall cannot be differentiated from those of his
associates. Spain and Portugal claimed certain negroes forcibly taken
from Spanish and Portuguese slavers by an American slaver off the coast
of Africa. After picturesque vicissitudes the vessel containing the
blacks was captured by an American revenue cutter and taken to Savannah
for adjudication.
In due course the case reached the Supreme Court and was elaborately
argued. The Government insisted that the captured negroes should be
given their liberty, since they had been brought into the country in
violation of the statutes against the importation of slaves. Spain and
Portugal demanded them as slaves "acquired as property ... in the
regular course of legitimate commerce."[1295] It was not surprising that
opinion on the slave trade was "unsettled," said Marshall in delivering
the opinion of the court.
All "Christian and civilized nations ... have been engaged in it....
Long usage, and general acquiescence" have sanctioned it.[1296] America
had been the first to "check" the monstrous traffic. But, whatever its
feelings or the state of public opinion, the court "must obey the
mandate of the law."[1297] He cites four English decisions, especially a
recent one by Sir William Scott, the effect of all being that the slave
trade "could not be pronounced contrary to the law of nations."[1298]
Every nation, therefore, has a right to engage in it. Some nations may
renounce that right sanctioned by "universal assent." But other nations
cannot be bound by such "renunciation." For all nations, large and
small, are equal--"Russia and Geneva have equal rights." No one nation
"can rightfully impose a rule on another ... none can make a law of
nations; and this traffic remains lawful to those whose governments have
not forbidden it.... It follows, that a foreign vessel engaged in the
African slave trade, captured on the high seas in time of peace, by an
American cruiser, and brought in for adjudication, would be
restored."[1299]
Four months before Marshall was elected a member of the Virginia
Constitutional Convention, he delivered another opinion involving the
legal status of slaves. Several negroes, the property of one Robert
Boyce, were on a steamboat, the Teche, which was descending the
Mississippi. The vessel took fire and those on board, including the
negroes, escaped to the shore. Another steamboat, the Washington, was
coming up the river at the time, and her captain, in response to appeals
from the stranded passengers of the burning vessel, sent a yawl to bring
them to the Washington. The yawl was upset and the slaves drowned. The
owner of them sued the owner of the Washington for their value. The
District Court held that the doctrine of common carriers did not apply
to human beings; and this was the only question before the Supreme
Court, to which Boyce appealed.
"A slave ... cannot be stowed away as a common package," said Marshall
in his brief opinion. "The responsibility of the carrier should be
measured by the law which is applicable to passengers, rather than by
that which is applicable to the carriage of common goods.... The law
applicable to common carriers is one of great rigor.... It has not been
applied to living men, and ... ought not to be applied to them."
Nevertheless, "the ancient rule 'that the carrier is liable only for
ordinary neglect,' still applies" to slaves. Therefore the District
Court was right in its instructions to the jury.[1300]
The two letters quoted and the opinions expressing the unanimous
judgment of the Supreme Court are all the data we have as to Marshall's
views on slavery. It appears that he regretted the existence of slavery,
feared the results of it, saw no way of getting rid of it, but hoped to
lessen the evil by colonizing in Africa such free black people as were
willing to go there. In short, Marshall held the opinion on slavery
generally prevailing at that time. He was far more concerned that the
Union should be strengthened, and dissension in Virginia quieted, than
he was over the problem of human bondage, of which he saw no solution.
When he took his seat as a delegate to the Virginia Constitutional
Convention of 1829-30, a more determined conservative than Marshall did
not live. Apparently he did not want anything changed--especially if the
change involved conflict--except, of course, the relation of the States
to the Nation. He was against a new constitution for Virginia; against
any extension of suffrage; against any modification of the County Court
system except to strengthen it; against a free white basis of
representation; against legislative interference with business. His
attitude was not new, nor had he ever concealed his views.
His opinions of legislation and corporate property, for instance, are
revealed in a letter written twenty years before the Convention of
1829-30. In withdrawing from some Virginia corporation because the
General Assembly of the State had passed a law for the control of it,
Marshall wrote: "I consider the interference of the legislature in the
management of our private affairs, whether those affairs are committed
to a company or remain under individual direction, as equally dangerous
and unwise. I have always thought so and I still think so. I may be
compelled to subject my property to these interferences, and when
compelled I shall submit; but I will not voluntarily expose myself to
the exercise of a power which I think so improperly usurped."[1301]
Two years before the convention was called, Marshall's unyielding
conservatism was displayed in a most conspicuous manner. In Sturges
_vs._ Crowninshield,[1302] a State law had been held invalid which
relieved creditors from contracts made before the passage of that law.
But, in his opinion in that case, Marshall used language that also
applied to contracts made after the enactment of insolvency statutes;
and the bench and bar generally had accepted his statement as the
settled opinion of the Supreme Court. But so acute had public discontent
become over this rigid doctrine, so strident the demand for bankrupt
laws relieving insolvents, at least from contracts made after such
statutes were enacted, that the majority of the Supreme Court yielded to
popular insistence and, in Ogden _vs._ Saunders,[1303] held that "an
insolvent law of a State does not impair the obligation of future
contracts between its citizens."[1304]
For the first time in twenty-seven years the majority of the court
opposed Marshall on a question of Constitutional law. The Chief Justice
dissented and delivered one of the most powerful opinions he ever wrote.
The very "nature of our Union," he says, makes us "one people, as to
commercial objects."[1305] The prohibition in the contract clause "is
complete and total. There is no exception from it.[1306]... Insolvent
laws are to operate on a future, contingent unforseen event."[1307] Yet
the majority of the court hold that such legislation enters into
subsequent contracts "so completely as to become a ... part" of them. If
this is true of one law, it is true of "every other law which relates to
the subject."
But this would mean, contends Marshall, that a vital provision of the
Constitution, "one on which the good and the wise reposed confidently
for securing the prosperity and harmony of our citizens, would lie
prostrate, and be construed into an inanimate, inoperative, unmeaning
clause." The construction of the majority of the court would "convert an
inhibition to pass laws impairing the obligation of contracts into an
inhibition to pass retrospective laws."[1308] If the Constitution means
this, why is it not so expressed? The mischievous laws which caused the
insertion of the contract clause "embraced future contracts, as well as
those previously formed."[1309]
The gist of Marshall's voluminous opinion in Ogden _vs._ Saunders is
that the Constitution protects all contracts, past or future, from State
legislation which in any manner impairs their obligation.[1310]
Considering that even the rigidly conservative Bushrod Washington,
Marshall's stanch supporter, refused to follow his stern philosophy, in
this case, the measure and character of Marshall's conservatism are seen
when, in his seventy-fifth year, he helped to frame a new constitution
for Virginia.
Still another example of Marshall's rock-like conservatism and of the
persistence with which he held fast to his views is afforded by a second
dissent from the majority of the court at the same session. This time
every one of the Associate Justices was against him, and Story delivered
their unanimous opinion. The Bank of the United States had sued Julius
B. Dandridge, cashier of the Richmond branch, and his sureties, on his
official bond. Marshall, sitting as Circuit Judge, had held that only
the written record of the bank's board of directors, that they approved
and accepted the bond, could be received to prove that Dandridge had
been legally authorized to act as cashier.
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 destitute 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 constitution
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 Assembly.
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 constitution 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
petition of non-freeholders for suffrage.[1316] No more impressive
document 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 Assembly: 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 Constitution 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 Constitution 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 Assembly 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 Assumption, 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 Constitution, 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 passed since the repeal of
the Federalist Judiciary Act of 1801,[1328] Marshall would not, even
now, admit that repeal to be Constitutional. Littleton W. Tazewell,
also a member of the Judiciary Committee, asserted that, under the
proposed new State Constitution, 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 Constitution 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 passed 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 constitutional 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 Constitution
should go forth, "uninfluenced by the opinion of any individual: let
those, whose duty it was to settle the interpretation of the
Constitution, decide on the Constitution 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 résumé 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 hitherto 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 constitution. 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
constitution 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 class 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 pass 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 passes 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 God 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 Constitution?" countered Marshall. Why
provide that "no bill of attainder, or an _ex post facto_ law, shall be
passed? What a calumny is here upon the Legislature," he sarcastically
exclaimed. "Do you believe, that the Legislature will pass a bill of
attainder, or an _ex post facto_ law? Do you believe, that they will
pass 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 God 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 constitutional
capacity to receive Judicial power, and to perform Judicial Duties....
"If the Constitution 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 Constitution 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."
Giles "had, however, such high respect" for Marshall's standing, "that
he always doubted his own opinion when put in opposition" to that of the
Chief Justice. He had not intended, he avowed, "to throw reproach upon
the Judges in office." Far be it from him to reflect "in the least
degree on their honour and integrity." His point was that, by Marshall's
plan, "responsibility was rather avoided than sought to be secured."
Giles was willing to risk his liberty thus far--"if a Judge became
odious to the people, let him be removed from office."[1348]
The debate continued upon another amendment by Thompson. Viewing the
contest as a sheer struggle of minds, the conservatives were superior to
the reformers,[1349] and steadily they gained votes.[1350]
Again Marshall spoke, this time crossing swords with Benjamin W. S.
Cabell and James Madison, over a motion of the former that judges whose
courts were abolished, and to whom the Legislature assigned no new
duties, should not receive salaries: "There were upwards of one hundred
Inferior Courts in Virginia.... No gentleman could look at the dockets
of these courts, and possibly think" that the judges would ever have no
business to transact.
Cabell's amendment "stated an impossible case," said Marshall,--a "case
where there should be no controversies between man and man, and no
crimes committed against society. It stated a case that could not
happen--and would the convention encounter the real hazard of putting
almost every Judge in the Commonwealth in the power of the Legislature,
for the sake of providing for an impossible case?"[1351] But in spite of
Marshall's opposition, Cabell's amendment was adopted by a vote of 59
to 36.[1352] Two weeks later, however, the convention reversed itself by
two curious and contradictory votes.[1353] So in the end Marshall won.
The subject of the Judiciary did not seriously arise again until the
vote on the adoption of the entire constitution was imminent. As it
turned out, the constitution, when adopted, contained, in substance, the
Judiciary provisions which Marshall had written and reported at the
beginning of that body's deliberations.[1354]
The other and the commanding problem, for the solution of which the
contention had been called, was made up of the associated questions of
suffrage, taxation, and representation. Broadly speaking, the issue was
that of white manhood suffrage and representation based upon the
enumeration of whites, as against suffrage determined by property and
taxation, representation to be based on an enumeration which included
three fifths of the slave population.[1355]
In these complex and tangled questions the State and the convention were
divided; so fierce were the contending factions, and so diverse were
opinions on various elements of the confused problem, especially among
those demanding reform, that at times no solution seemed possible. The
friends of reform were fairly well organized and coöperated in a spirit
of unity uncommon to liberals. But, as generally happens, the
conservatives had much better discipline, far more harmony of opinion
and conduct. The debate on both sides was able and brilliant.[1356]
Finally the convention seemingly became deadlocked. Each side declared
it would not yield.[1357] Then came the inevitable reaction--a spirit of
conciliation mellowed everybody. Sheer human nature, wearied of strife,
sought the escape that mutual accommodation alone afforded. The moment
came for which Marshall had been patiently waiting. Rising slowly, as
was his wont, until his great height seemed to the convention to be
increased, his soothing voice, in the very gentleness of its timbre,
gave a sense of restfulness and agreement so grateful to, and so desired
by, even the sternest of the combatants.
"No person in the House," began the Chief Justice, "can be more truly
gratified than I am, at seeing the spirit that has been manifested here
to-day; and it is my earnest wish that this spirit of conciliation may
be acted upon in a fair, equal and honest manner, adapted to the
situation of the different parts of the Commonwealth, which are to be
affected."
The warring factions, said Marshall, were at last in substantial
accord. "That the Federal numbers [the enumeration of slaves as fixed in
the National Constitution] and the plan of the white basis shall be
blended together so as to allow each an equal portion of power, seems to
be very generally agreed to." The only difference now was that one
faction insisted on applying this plan to both Houses of the
Legislature, while the other faction would restrict the white basis to
the popular branch, leaving the Senate to be chosen on the combined free
white and black slave enumeration.
This involves the whole theory of property. One gentleman, in
particular, "seems to imagine that we claim nothing of republican
principles, when we claim a representation for property." But
"republican principles" do not depend on "the naked principle of
numbers." On the contrary, "the soundest principles of republicanism do
sanction some relation between representation and taxation.... The two
ought to be connected.... This was the principle of the revolution....
This basis of Representation is ... so important to Virginia" that
everybody had thought about it before this convention was called.
"Several different plans were contemplated. The basis of white
population alone; the basis of free population alone; a basis of
population alone; a basis compounded of taxation and white population,
(or which is the same thing, a basis of Federal numbers:).... Now, of
these various propositions, the basis of white population, and the basis
of taxation alone are the two extremes." But, "between the free
population, and the white population, there is almost no difference:
Between the basis of total population and the basis of taxation, there
is but little difference."
Frankly and without the least disguise of his opinions, Marshall
admitted that he was a conservative of conservatives: "The people of the
East," of whom he avowed himself to be one, "thought that they offered a
fair compromise, when they proposed the compound basis of population and
taxation, or the basis of the Federal numbers. We thought that we had
republican precedent for this--a precedent given us by the wisest and
truest patriots that ever were assembled: but that is now past.
"We are now willing to meet on a new middle ground." Between the two
extremes "the majority is too small to calculate upon.... We are all
uncertain as to the issue. But all know this, that if either extreme is
carried, it must leave a wound in the breast of the opposite party which
will fester and rankle, and produce I know not what mischief." The
conservatives were now the majority of the convention, yet they were
again willing to make concessions. Avoiding both extremes, Marshall
proposed, "as a compromise," that the basis of representation "shall be
made according to an exact compound of the two principles, of the white
basis and of the Federal numbers, according to the Census of
1820."[1358]
Further debate ensued, during which animosity seemed about to come to
life again, when the Chief Justice once more exerted his mollifying
influence. "Two propositions respecting the basis of Representation
have divided this Convention almost equally," he said. "The question
has been discussed, until discussion has become useless. It has been
argued, until argument is exhausted. We have now met on the ground of
compromise." It is no longer a matter of the triumph of either side. The
only consideration now is whether the convention can agree on some plan
to lay before the people "with a reasonable hope that it may be adopted.
Some concession must be made on both sides.... What is the real
situation of the parties?" Unquestionably both are sincere. "To attempt
now to throw considerations of principle into either scale, is to add
fuel to a flame which it is our purpose to extinguish. We must lose
sight of the situation of parties and state of opinion, if we make this
attempt."
The convention is nearly evenly balanced. At this moment those favoring
a white basis only have a trembling majority of two. This may
change--the reversal of a single vote would leave the House "equally
divided."
The question must be decided "one way or the other"; but, if either
faction prevails by a bare majority, the proposed constitution will go
to the people from an almost equally divided convention. That means a
tremendous struggle, a riven State. Interests in certain parts of the
Commonwealth will surely resist "with great force" a purely white basis
of representation, especially if no effective property qualification for
suffrage is provided. This opposition is absolutely certain "unless
human nature shall cease to be what it has been in all time."
No human power can forecast the result of further contest. But one
thing is certain: "To obtain a just compromise, concession must not only
be mutual--it must be equal also.... Each ought to concede to the other
as much as he demands from that other.... There can be no hope that
either will yield more than it gets in return."
The proposal that white population and taxation "mixed" with Federal
numbers in "equal proportions" shall "form the basis of Representation
in both Houses," is equal and just. "All feel it to be equal." Yet the
conservatives now go still further--they are willing to place the House
on the white basis and apply the mixed basis to the Senate only. Why
refuse this adjustment? Plainly it will work well for everybody: "If the
Senate would protect the East, will it not protect the West also?"
Marshall's satisfaction was "inexpressible" when he heard from both
sides the language of conciliation. "I hailed these auspicious
appearances with as much joy, as the inhabitant of the polar regions
hails the re-appearance of the sun after his long absence of six tedious
months. Can these appearances prove fallacious? Is it a meteor we have
seen and mistaken for that splendid luminary which dispenses light and
gladness throughout creation? It must be so, if we cannot meet on equal
ground. If we cannot meet on the line that divides us equally, then take
the hand of friendship, and make an equal compromise; it is vain to hope
that any compromise can be made."[1359]
The basis of representation does not appear in the constitution, the
number of Senators and Representatives being arbitrarily fixed by
districts and counties; but this plan, in reality, gave the slaveholding
sections almost the same preponderance over the comparatively
non-slaveholding sections as would have resulted from the enumeration of
three fifths of all slaves in addition to all whites.[1360]
While the freehold principle was abandoned, as Marshall foresaw that it
would be, the principle of property qualification as against manhood
suffrage was triumphant.[1361] With a majority against them, the
conservatives won by better management, assisted by the personal
influence of the Chief Justice, to which, on most phases of the
struggle, was added that of Madison and Giles.
Nearly a century has passed since these happenings, and Marshall's
attitude now appears to have been that of cold reaction; but he was as
honest as he was outspoken in his resistance to democratic reforms. He
wanted good government, safe government. He was not in the least
concerned in the rule of the people as such. Indeed, he believed that
the more they directly controlled public affairs the worse the business
of government would be conducted.
He feared that sheer majorities would be unjust, intolerant, tyrannical;
and he was certain that they would be untrustworthy and freakishly
changeable. These convictions would surely have dictated his course in
the Virginia Constitutional Convention of 1829-30, had no other
considerations influenced him.
But, in addition to his long settled and ever-petrifying conservative
views, we must also take into account the conditions and public temper
existing in Virginia ninety years ago. Had the convention reached any
other conclusion than that to which Marshall gently guided it, it is
certain that the State would have been torn by dissension, and it is not
improbable that there would have been bloodshed. All things considered,
it seems unsafe to affirm that Marshall's course was not the wisest for
that immediate period and for that particular State.
Displaying no vision, no aspiration, no devotion to human rights, he
merely acted the uninspiring but necessary part of the practical
statesman dealing with an existing and a very grave situation. If
Jefferson could be so frightened in 1816 that he forbade the public
circulation of his perfectly sound views on the wretched Virginia
Constitution of 1776,[1362] can it be wondered at that the conservative
Marshall in 1830 wished to compose the antagonisms of the warring
factions?
The fact that the Nation was then facing the possibility of
dissolution[1363] must also be taken into account. That circumstance,
indeed, influenced Marshall even more than did his profound
conservatism. There can be little doubt that, had either the radicals or
the conservatives achieved an outright victory, one part of Virginia
would have separated from the other and the growing sentiment for
disunion would have received a powerful impulse.
Hurrying from Richmond to Washington when the convention adjourned,
Marshall listened to the argument of Craig _vs._ Missouri; and then
delivered one of the strongest opinions he ever wrote--the only one of
his Constitutional expositions to be entirely repudiated by the Supreme
Court after his death. The case grew out of the financial conditions
described in the fourth chapter of this volume.
When Missouri became a State in 1821, her people found themselves in
desperate case. There was no money. Banks had suspended, and specie had
been drained to the Eastern commercial centers. The simplest business
transactions were difficult, almost impossible. Even taxes could not be
paid. The Legislature, therefore, established loan offices where
citizens, by giving promissory notes, secured by mortgage or pledge of
personal property, could purchase loan certificates issued by the State.
These certificates were receivable for taxes and other public debts and
for salt from the State salt mines. The faith and resources of Missouri
were pledged for the redemption of the certificates which were
negotiable and issued in denominations not exceeding ten dollars or less
than fifty cents. In effect and in intention, the State thus created a
local circulating medium of exchange.
On August 1, 1822, Hiram Craig and two others gave their promissory
notes for $199.99 in payment for loan certificates. On maturity of these
notes the borrowers refused to pay, and the State sued them; judgment
against them was rendered in the trial court and this judgment was
affirmed by the Supreme Court of Missouri. The case was taken, by writ
of error, to the Supreme Court of the United States, where the sole
question to be decided was the constitutionality of the Missouri loan
office statutes.
Marshall's associates were now Johnson, Duval, Story, Thompson, McLean,
and Baldwin; the last two recently appointed by Jackson. It was becoming
apparent that the court was growing restive under the rigid practice of
the austere theory of government and business which the Chief Justice
had maintained for nearly a generation. This tendency was shown in this
case by the stand taken by three of the Associate Justices. Marshall was
in his seventy-sixth year, but never did his genius shine more
resplendently than in his announcement of the opinion of the Supreme
Court in Craig _vs._ Missouri.[1364]
He held that the Missouri loan certificates were bills of credit, which
the National Constitution prohibited any State to issue. "What is a bill
of credit?" It is "any instrument by which a state engages to pay money
at a future day; thus including a certificate given for money
borrowed.... To 'emit bills of credit' conveys to the mind the idea of
issuing paper intended to circulate through the community, for its
ordinary purposes, as money, which paper is redeemable at a future
day."[1365] The Chief Justice goes into the history of the paper money
evil that caused the framers of the Constitution to forbid the States
to "emit bills of credit."
Such currency always fluctuates. "Its value is continually changing; and
these changes, often great and sudden, expose individuals to immense
loss, are the sources of ruinous speculations, and destroy all
confidence between man and man." To "cut up this mischief by the
roots ... the people declared, in their Constitution, that no state
should emit bills of credit. If the prohibition means anything, if the
words are not empty sounds, it must comprehend the emission of any paper
medium by a state government, for the purpose of common
circulation."[1366]
Incontestably the Missouri loan certificates are just such bills of
credit. Indeed, the State law itself "speaks of them in this character."
That the statute calls them certificates instead of bills of credit does
not change the fact. How absurd to claim that the Constitution "meant to
prohibit names and not things! That a very important act, big with great
and ruinous mischief, which is expressly forbidden ... may be performed
by the substitution of a name." The Constitution is not to be evaded "by
giving a new name to an old thing."[1367]
It is nonsense to say that these particular bills of credit are lawful
because they are not made legal tender, since a separate provision
applies to legal tender. The issue of legal tender currency, and also
bills of credit, is equally and separately forbidden: "To sustain the
one because it is not also the other; to say that bills of credit may be
emitted if they be not made a tender in payment of debts; is ... to
expunge that distinct, independent prohibition."[1368]
In a well-nigh perfect historical summary, Marshall reviews experiments
before and during the Revolution in bills of credit that were made legal
tender, and in others that were not--all "productive of the same
effects," all equally ruinous in results.[1369] The Missouri law
authorizing the loan certificates, for which Craig gave his promissory
note, is "against the highest law of the land, and ... the note itself
is utterly void."[1370]
The Chief Justice closes with a brief paragraph splendid in its simple
dignity and power. In his argument for Missouri, Senator Thomas H.
Benton had used violent language of the kind frequently employed by the
champions of State Rights: "If ... the character of a sovereign State
shall be impugned," he cried, "contests about civil rights would be
settled amid the din of arms, rather than in these halls of national
justice."[1371]
To this outburst Marshall replies: The court has been told of "the
dangers which may result from" offending a sovereign State. If obedience
to the Constitution and laws of the Nation "shall be calculated to bring
on those dangers ... or if it shall be indispensable to the preservation
of the union, and consequently of the independence and liberty of these
states; these are considerations which address themselves to those
departments which may with perfect propriety be influenced by them. This
department can listen only to the mandates of law; and can tread only
that path which is marked out by duty."[1372]
In this noble passage Marshall is not only rebuking Benton; he is also
speaking to the advocates of Nullification, then becoming clamorous and
threatening; he is pointing out to Andrew Jackson the path of
duty.[1373]
Justices Johnson, Thompson, and McLean afterwards filed dissenting
opinions, thus beginning the departure, within the Supreme Court, from
the stern Constitutional Nationalism of Marshall. This breach in the
court deeply troubled the Chief Justice during the remaining four years
of his life.
Johnson thought "that these certificates are of a truly amphibious
character." The Missouri law "does indeed approach as near to a
violation of the Constitution as it can well go without violating its
prohibition, but it is in the exercise of an unquestionable right,
although in rather a questionable form." So, on the whole, Johnson
concluded that the Supreme Court had better hold the statute
valid.[1374]
"The right of a State to borrow money cannot be questioned," said
Thompson; that is all the Missouri scheme amounts to. If these loan
certificates are bills of credit, so are "all bank notes, issued either
by the States, or under their authority."[1375] Justice McLean pointed
out that Craig's case was only one of many of the same kind. "The solemn
act of a State ... cannot be set aside ... under a doubtful construction
of the Constitution.[1376]... It would be as gross usurpation on the
part of the federal government to interfere with State rights by an
exercise of powers not delegated, as it would be for a State to
interpose its authority against a law of the Union."[1377]
In Congress attacks upon Marshall and the Supreme Court now were
renewed--but they grew continuously feebler. At the first session after
the decision of the Missouri loan certificate case, a bill was
introduced to repeal the provision of the Judiciary Act upon which the
National powers of the Supreme Court so largely depended. "If the
twenty-fifth section is repealed, the Constitution is practically gone,"
declared Story. "Our wisest friends look with great gloom to the
future."[1378]
Marshall was equally despondent, but his political vision was clearer.
When he read the dissenting opinions of Johnson, Thompson, and McLean,
he wrote Story: "It requires no prophet to predict that the 25th section
[of the Judiciary Act] is to be repealed, or to use a more fashionable
phrase to be nullified by the Supreme Court of the United States."[1379]
He realized clearly that the great tribunal, the power and dignity of
which he had done so much to create, would soon be brought under the
control of those who, for some years at least, would reject that broad
and vigorous Nationalism which he had steadily and effectively asserted
during almost a third of a century. One more vacancy on the Supreme
Bench and a single new appointment by Jackson would give the court to
the opponents of Marshall's views. Before he died, the Chief Justice was
to behold two such vacancies.[1380]
On January 24, 1831, William R. Davis of South Carolina presented the
majority report of the Judiciary Committee favoring the repeal of that
section of the Judiciary Act under which the Supreme Court had
demolished State laws and annihilated the decisions of State
courts.[1381] James Buchanan presented the minority report.[1382] A few
minutes' preliminary discussion revealed the deep feeling on both sides.
Philip Doddridge of Virginia declared that the bill was of "as much
importance as if it were a proposition to repeal the Union of these
States." William W. Ellsworth of Connecticut avowed that it was of
"overwhelming magnitude."[1383]
Thereupon the subject was furiously debated. Thomas H. Crawford of
Pennsylvania considered Section 25 of the Judiciary Act, to be as
"sacred" as the Constitution itself.[1384] Henry Daniel of Kentucky
asserted that the Supreme Court "stops at nothing to obtain power." Let
the "States ... prepare for the worst, and protect themselves against
the assaults of this gigantic tribunal."[1385]
William Fitzhugh Gordon of Virginia, recently elected, but already a
member of the Judiciary Committee, stoutly defended the report of the
majority: "When a committee of the House had given to a subject the
calmest and maturest investigation, and a motion is made to print their
report, a gentleman gets up, and, in a tone of alarm, denounces the
proposition as tantamount to a motion to repeal the Union." Gordon
repudiated the very thought of dismemberment of the Republic--that
"palladium of our hopes, and of the liberties of mankind."
As to the constitutionality of Section 25 of the Judiciary Act--"could
it be new, especially to a Virginia lawyer"? when the Virginia
Judiciary, with Roane at its head, had solemnly proclaimed the
illegality of that section. And had not Georgia ordered her Governor to
resist the enforcement of that provision of that ancient act of
Congress? "I declare to God ... that I believe nothing would tend so
much to compose the present agitation of the country ... as the repeal
of that portion of the judiciary act." Gordon was about to discuss the
nefarious case of Cohens _vs._ Virginia when his emotions overcame
him--"he did not wish ... to go into the merits of the question."[1386]
Thomas F. Foster of Georgia said that the Judiciary Committee had
reported under a "galling fire from the press"; quoted Marshall's
unfortunate language in the Convention of 1788;[1387] and insisted that
the "vast and alarming" powers of the Supreme Court must be
bridled.[1388]
But the friends of the court overwhelmed the supporters of the bill,
which was rejected by a vote of 138 to 51.[1389] It was ominous,
however, that the South stood almost solid against the court and
Nationalism.
FOOTNOTES:
[1269] Marshall to his wife, March 12, 1826, MS.
[1270] Nevertheless he watched the course of politics closely. For
instance: immediately after the House had elected John Quincy Adams to
the Presidency, Marshall writes his brother a letter full of political
gossip. He is surprised that Adams was chosen on the first ballot; many
think Kremer's letter attacking Clay caused this unexpectedly quick
decision, since it "was & is thought a sheer calumny; & the resentment
of Clay's friends probably determined some of the western members who
were hesitating. It is supposed to have had some influence elsewhere.
The vote of New York was not decided five minutes before the ballots
were taken."
Marshall tells his brother about Cabinet rumors--Crawford has refused
the Treasury and Clay has been offered the office of Secretary of State.
"It is meer [_sic_] common rumor" that Clay will accept. "Mr. Adams will
undoubtedly wish to strengthen himself in the west," and Clay is strong
in that section unless Kremer's letter has weakened him. The Chief
Justice at first thought it had, but "on reflection" doubts whether it
will "make any difference." (Marshall to his brother, Feb. 14, 1825,
MS.) Marshall here refers to the letter of George Kremer, a
Representative in Congress from Pennsylvania. Kremer wrote an anonymous
letter to the _Columbian Observer_ in which he asserted that Clay had
agreed to deliver votes to Adams as the price of Clay's appointment to
the office of Secretary of State. After much bluster, Kremer admitted
that he had no evidence whatever to support his charge; yet his
accusation permanently besmirched Clay's reputation. (For an account of
the Kremer incident see Sargent, I, 67-74, 123-24.)
Out of the Kremer letter grew a distrust of Clay which he never really
lived down. Some time later, John Randolph seized an opportunity to call
the relation between President Adams and his Secretary of State "the
coalition of Blifil and Black George--the combination, unheard of till
then, of the Puritan with the blackleg." The bloodless, but not the less
real duel, that followed, ended this quarrel, though the unjust charges
never quite died out. (Schurz: _Henry Clay_, I, 273-74.)
[1271] Baltimore _Marylander_, March 22, 1828.
[1272] _Enquirer_, April 4, 1828.
[1273] Meaning Jackson. Clay to Marshall, April 8, 1828, MS.
[1274] Marshall to Story, May 1, 1828, _Proceedings, Mass. Hist. Soc._
2d Series, XIV, 336-37.
[1275] See chap. I of this volume.
[1276] Thomas, whose wife died Feb. 2, 1829. (Paxton, 92.)
[1277] Marshall to his wife, March 5 [1829], MS.
[1278] Same to same, Feb. 1, 1829, MS.
[1279] Jacquelin B. Harvie, who married Marshall's daughter, Mary.
[1280] Marshall to his wife, March 5 [1829], MS.
[1281] Marshall to Story, June 11, 1829, _Proceedings, Mass. Hist. Soc._
2d Series, XIV, 338-39.
[1282] See vol. I, 216-17, of this work.
[1283] Jefferson to Kercheval, July 12, 1816, _Works_: Ford, XII, 3-15.
[1284] Same to same, Oct. 8, 1816, _ib._ footnote to 17.
[1285] At the time of the convention the eastern part of the State paid,
on the average, more than three times as much in taxes per acre as the
west. The extremes were startling--the trans-Alleghany section (West
Virginia) paid only 92 cents for every $8.43 paid by the Tidewater.
(_Proceedings and Debates of the Virginia State Convention of 1829-30_,
214, 258, 660-61.)
[1286] Marshall to Story, July 3, 1829, _Proceedings, Mass. Hist. Soc._
2d Series, XIV, 340-41.
[1287] Pickering to Marshall, Dec. 26, 1828, Pickering MSS. Mass. Hist.
Soc.; see also Story, I, 386-96.
[1288] Marshall to Mercer, April 7, 1827, Chamberlain MSS. Boston Pub.
Lib.
[1289] Lincoln to Greeley, Aug. 22, 1862, _Complete Works of Abraham
Lincoln_: Nicolay and Hay, II, 227-28.
[1290] Marshall to Pickering, March 20, 1826, _Proceedings, Mass. Hist.
Soc._ 2d Series, XIV, 321.
[1291] _Fifteenth Annual Report, Proceedings, American Colonization
Society._ The abolitionists, later, mercilessly attacked the
Colonization Society. (See Wilson: _Rise of the Slave Power_, I, 208 _et
seq._)
[1292] _Fourteenth Annual Report, Proceedings, American Colonization
Society._
[1293] His wife's illness. She died soon afterwards. See _infra_,
524-25.
[1294] Marshall to Gurley, Dec. 14, 1831, _Fifteenth Annual Report,
Proceedings, American Colonization Society_, pp. vi-viii.
In a letter even less emotional than Marshall's, Madison favored the
same plan. (_Ib._ pp. v, vi.) Lafayette, with his unfailing floridity,
says that he is "proud ... of the honor of being one of the Vice
Presidents of the Society," and that "the progressing state of our
Liberia establishment is ... a source of enjoyment, and the most lively
interest" to him. (_Ib._ p. v.)
At the time of his death, Marshall was President of the Virginia branch
of the Society, and his ancient enemy, John Tyler, who succeeded him in
that office, paid a remarkable tribute to the goodness and greatness of
the man he had so long opposed. (Tyler: _Tyler_, I, 567-68.)
[1295] 10 Wheaton, 114.
[1296] _Ib._ 115. Marshall delivered this opinion March 15, 1825.
[1297] _Ib._ 114.
[1298] _Ib._ 118-19.
[1299] _Ib._ 122-23.
[1300] 2 Peters, 150-56.
[1301] Marshall to Greenhow, Oct. 17, 1809, MSS. "Judges and Eminent
Lawyers," Mass. Hist. Soc.
[1302] See _supra_, 209-18, of this volume.
[1303] 12 Wheaton, 214 _et seq._ John Saunders, a citizen of Kentucky,
sued George M. Ogden, a citizen of Louisiana, on bills of exchange which
Ogden, then a citizen of New York, had accepted in 1806, but which were
protested for non-payment. The defendant pleaded a discharge granted by
a New York court under the insolvent law of that State enacted in 1801.
(_Ib._) On the manuscript records of the Supreme Court, Saunders is
spelled _Sanders_. After the case was filed, the death of Ogden was
suggested, and his executors, Charles Harrod and Francis B. Ogden, were
substituted.
[1304] Washington, Johnson, Thompson, and Trimble each delivered long
opinions supporting this view. (12 Wheaton, 254-331, 358-369.)
[1305] _Ib._ 334.
[1306] _Ib._ 335.
[1307] _Ib._ 337.
[1308] _Ib._ 356.
[1309] _Ib._ 357.
[1310] Story and Duval concurred with Marshall.
[1311] 12 Wheaton, 65-90.
[1312] Webster to Biddle, Feb. 20, 1827, _Writings and Speeches of
Webster_: (Nat. ed.) XVI, 140.
[1313] 12 Wheaton, 90-116.
[1314] Grigsby: _Virginia Convention of 1829-30_; and see Ambler:
_Sectionalism in Virginia_, 145. Chapter V of Professor Ambler's book is
devoted exclusively to the convention. Also see preface to _Debates Va.
Conv._ iii; and see Dodd, in _American Journal of Sociology_, XXVI, no.
6, 735 _et seq._; and Anderson, 229-36.
[1315] _Debates, Va. Conv._ 23.
[1316] _Ib._ 25.
[1317] _Ib._ 25-31.
[1318] Statement of Marshall. (_Ib._ 872.)
[1319] _Debates, Va. Conv._ 33.
[1320] See _supra_, 146, 147.
[1321] See Giles's speech, _Debates, Va. Conv._ 604-05.
[1322] See Ambler: _Sectionalism in Virginia_, 139.
[1323] See vol. II, 62-69, of this work.
[1324] Serious abuses sprang up, however. In the convention, William
Naylor of Hampshire County charged that the office of sheriff was sold
to the highest bidder, sometimes at public auction. (_Debates, Va.
Conv._ 486; and see Anderson, 229.)
[1325] See Marshall's defense of the County Court system, _infra_, 491.
[1326] See vol. I, 302, of this work.
[1327] For example, Thomas R. Joynes of Accomack County, who earnestly
opposed Marshall in the Judiciary debate, said that no man felt "more
respect" than he for Marshall's opinions which are justly esteemed "not
only in this Convention, but throughout the United States." (_Debates,
Va. Conv._ 505.) Randolph spoke of "the very great weight" which
Marshall had in the convention, in Virginia, and throughout the Nation.
(_Ib._ 500.) Thomas M. Bayly of Accomack County, while utterly
disagreeing with the Chief Justice on the County Court system, declared
that Marshall, "as a lawyer and Judge, is without a rival." (_Ib._ 510.)
Richard H. Henderson of Loudoun County called the Chief Justice his
"political father" whose lessons he delighted to follow, and upon whose
"wisdom, ... virtue, ... prudence" he implicitly relied. (Henderson's
statement as repeated by Benjamin W. Leigh, _ib._ 544.) Charles F.
Mercer of the same county "expressed toward Judge Marshall a filial
respect and veneration not surpassed by the ties which had bound him to
a natural parent." (_Ib._ 563.) Such are examples of the expressions
toward Marshall throughout the prolonged sessions of the convention.
[1328] See vol. III, chap, II, of this work.
[1329] _Debates, Va. Conv._ 871-72.
[1330] _Ib._ 872-74.
[1331] _Debates, Va. Conv._ 873.
[1332] See _infra_, 493-501.
[1333] Accordingly the following provision was inserted into the
Constitution: "No law abolishing any court shall be construed to deprive
a Judge thereof of his office, unless two-thirds of the members of each
House present concur in the passing thereof; but the Legislature may
assign other Judicial duties to the Judges of courts abolished by any
law enacted by less than two-thirds of the members of each House
present." (Article V, Section 2, Constitution of Virginia, 1830.)
[1334] _Debates, Va. Conv._ 505.
[1335] _Debates, Va. Conv._ 509.
[1336] _Ib._ 524, 530, 531, 533, 534.
[1337] _Ib._ 604-05.
[1338] _Ib._ 605. The provision as it finally appeared in the
constitution was that these "appointments shall be made by the Governor,
on the recommendation of the respective County Courts." (Article V,
Section 7, Constitution of Virginia, 1830.)
[1339] _Debates, Va. Conv._ 615-17.
[1340] See vol. III, chap. II, of this work.
[1341] _Debates, Va. Conv._ 619.
[1342] _Ib._ 618-19.
[1343] _Ib._ 726.
[1344] See vol. III, chap. II, of this work.
[1345] _Debates, Va. Conv._ 731.
[1346] _Debates, Va. Conv._ 726-27.
[1347] _Debates, Va. Conv._ 727-29.
[1348] _Debates, Va. Conv._ 729-30.
[1349] See especially the speech of Benjamin Watkins Leigh, _ib._
733-37.
[1350] See _ib._ for ayes and noes, 740, 741, 742, 744, 748.
[1351] _Ib._ 764.
[1352] _Debates, Va. Conv._ 767.
[1353] _Ib._ 880.
[1354] Compare Marshall's report (_ib._ 33) with Article V of the
constitution (_ib._ 901-02; and see _supra_, 491, note 2.)
[1355] Contrast Marshall's resolutions (_Debates, Va. Conv._ 39-40),
which expressed the conservative stand, with those of William H.
Fitzhugh of Fairfax County (_ib._ 41-42), of Samuel Clayton of Campbell
County (_ib._ 42), of Charles S. Morgan of Monongalia (_ib._ 43-44), and
of Alexander Campbell of Brooke County (_ib._ 45-46), which state the
views of the radicals.
[1356] See, for instance, the speech of John R. Cooke of Frederick
County for the radicals (_Debates, Va. Conv._ 54-65), of Abel P. Upshur
of Northampton for the conservatives (_ib._ 65-79), of Philip Doddridge
of Brooke County for the radicals (_ib._ 79-89), of Philip P. Barbour of
Orange County for the conservatives (_ib._ 90-98), and especially the
speeches of Benjamin Watkins Leigh for the conservatives (_ib._ 151-74,
544-48). Indeed, the student cannot well afford to omit any one of the
addresses in this remarkable contest.
[1357] It is at this point that we see the reason for Jefferson's alarm
thirteen years before the convention was called. (_See supra_, 469.)
[1358] _Debates, Va. Conv._ 497-500.
[1359] _Debates, Va. Conv._ 561-62.
[1360] Constitution of Virginia, 1830, Article III, Sections 1 and 2.
[1361] _Ib._ Article III, Section 14.
[1362] See _supra_, 469.
[1363] See next chapter.
[1364] March 12, 1830.
[1365] 4 Peters, 432.
[1366] 4 Peters, 432.
[1367] _Ib._ 433.
[1368] _Ib._ 434.
[1369] 4 Peters, 434-36.
[1370] _Ib._ 437.
[1371] _Ib._ 420.
[1372] _Ib._ 438.
[1373] See 552-58.
[1374] 4 Peters, 438-44.
[1375] _Ib._ 445-50.
[1376] _Ib._ 458.
[1377] 4 Peters, 464.
[1378] Story to Ticknor, Jan. 22, 1831, Story, II, 49. Nevertheless
Story did not despair. "It is now whispered, that the demonstrations of
public opinion are so strong, that the majority [of the Judiciary
Committee] will conclude not to present their report." (_Ib._)
[1379] Marshall to Story, Oct. 15, 1830, _Proceedings, Mass. Hist. Soc._
2d Series, XIV, 342.
[1380] See _infra_, 584.
[1381] _Debates_, 21st Cong. 2d Sess. 532.
[1382] _Ib._ 535.
[1383] _Ib._ 534.
[1384] _Ib._ 659.
[1385] _Ib._ 665.
[1386] _Debates_, 21st Cong. 2d Sess. 620-21.
[1387] _Ib._ 731, 748; and see vol. I, 454-55, of this work.
[1388] _Debates_, 21st Cong. 2d Sess. 739.
[1389] _Debates_, 21st Cong. 2d Sess. 542.
This was the last formal attempt, but one, made in Congress during
Marshall's lifetime, to impair the efficiency of National courts. The
final attack was made by Joseph Lecompte, a Representative from
Kentucky, who on January 27, 1832, offered a resolution instructing the
Judiciary Committee to "inquire into the expediency of amending the
constitution ... so that the judges of the Supreme Court, and of the
inferior courts, shall hold their offices for a limited term of years."
On February 24, the House, by a vote of 141 to 27, refused to consider
Lecompte's resolution, ignoring his plea to be allowed to explain it.
(_Debates_, 22d Cong. 1st Sess. 1856-57.) So summary and brusque--almost
contemptuous--was the rejection of Lecompte's proposal, as almost to
suggest that personal feeling was an element in the action taken by the
House.
CHAPTER X
THE FINAL CONFLICT
Liberty and Union, now and forever, one and inseparable. (Daniel
Webster.)
Fellow citizens, the die is now cast. Prepare for the crisis and
meet it as becomes men and freemen. (South Carolina Ordinance of
Nullification.)
The Union has been prolonged thus far by miracles. I fear they
cannot continue. (Marshall.)
It is time to be old,
To take in sail. (Emerson.)
The last years of Marshall's life were clouded with sadness, almost
despair. His health failed; his wife died; the Supreme Court was
successfully defied; his greatest opinion was repudiated and denounced
by a strong and popular President; his associates on the Bench were
departing from some of his most cherished views; and the trend of public
events convinced him that his labor to construct an enduring nation, to
create institutions of orderly freedom, to introduce stability and
system into democracy, had been in vain.
Yet, even in this unhappy period, there were hours of triumph for John
Marshall. He heard his doctrine of Nationalism championed by Daniel
Webster, who, in one of the greatest debates of history, used Marshall's
arguments and almost his very words; he beheld the militant assertion of
the same principle by Andrew Jackson, who, in this instance, also
employed Marshall's reasoning and method of statement; and he witnessed
the sudden flowering of public appreciation of his character and
services.
During the spring of 1831, Marshall found himself, for the first time
in his life, suffering from acute pain. His Richmond physician could
give him no relief; and he became so despondent that he determined to
resign immediately after the ensuing Presidential election, in case
Jackson should be defeated, an event which many then thought probable.
In a letter about the house at which the members of the Supreme Court
were to board during the next term, Marshall tells Story of his purpose:
"Being ... a bird of passage, whose continuance with you cannot be long,
I did not chuse to permit my convenience or my wishes to weigh a feather
in the permanent arrangements.... But in addition, I felt serious
doubts, although I did not mention them, whether I should be with you at
the next term.
"What I am about to say is, of course, in perfect confidence which I
would not breathe to any other person whatever. I had unaccountably
calculated on the election of P[residen]t taking place next fall, and
had determined to make my continuance in office another year dependent
on that event.
"You know how much importance I attach to the character of the person
who is to succeed me, and calculate the influence which probabilities on
that subject would have on my continuance in office. This, however, is a
matter of great delicacy on which I cannot and do not speak.
"My erroneous calculation of the time of the election was corrected as
soon as the pressure of official duty was removed from my mind, and I
had nearly decided on my course, but recent events produce such real
uncertainty respecting the future as to create doubts whether I ought
not to await the same chances in the fall of 32 which I had intended to
await in the fall of 31."[1390]
Marshall steadily became worse, and in September he went to Philadelphia
to consult the celebrated physician and surgeon, Dr. Philip Syng
Physick, who at once perceived that the Chief Justice was suffering from
stone in the bladder. His affliction could be relieved only by the
painful and delicate operation of lithotomy, which Dr. Physick had
introduced in America. From his sick-room Marshall writes Story of his
condition during the previous five months, and adds that he looks "with
impatience for the operation."[1391] He is still concerned about the
court's boarding-place and again refers to his intention of leaving the
Bench: "In the course of the summer ... I found myself unequal to the
effective consideration of any subject, and had determined to resign at
the close of the year. This determination, however, I kept to myself,
being determined to remain master of my own conduct." Story had answered
Marshall's letter of June 26, evidently protesting against the thought
of the Chief Justice giving up his office.
Marshall replies: "On the most interesting part of your letter I have
felt, and still feel, great difficulty. You understand my general
sentiments on that subject as well as I do myself. I am most earnestly
attached to the character of the department, and to the wishes and
convenience of those with whom it has been my pride and my happiness to
be associated for so many years. I cannot be insensible to the gloom
which lours over us. I have a repugnance to abandoning you under such
circumstances which is almost invincible. But the solemn convictions of
my judgement sustained by some pride of character admonish me not to
hazard the disgrace of continuing in office a mere inefficient
pageant."[1392]
Had Adams been reëlected in 1828, there can be no doubt that Marshall
would have resigned during that Administration; and it is equally
certain that, if Jackson had been defeated in 1832, the Chief Justice
would have retired immediately. The Democratic success in the election
of that year determined him to hold on in an effort to keep the Supreme
Court, as long as possible, unsubmerged by the rising tide of radical
Localism. Perhaps he also clung to a desperate hope that, during his
lifetime, a political reaction would occur and a conservative President
be chosen who could appoint his successor.
When Marshall arrived at Philadelphia, the bar of that city wished to
give him a dinner, and, by way of invitation, adopted remarkable
resolutions expressing their grateful praise and affectionate
admiration. The afflicted Chief Justice, deeply touched, declined in a
letter of singular grace and dignity: "It is impossible for me ... to do
justice to the feelings with which I receive your very flattering
address; ... to have performed the official duties assigned to me by my
country in such a manner as to acquire the approbation of" the
Philadelphia bar, "affords me the highest gratification of which I am
capable, and is more than an ample reward for the labor which those
duties impose." Marshall's greatest satisfaction, he says, is that he
and his associates on the Supreme Bench "have never sought to enlarge
the judicial power beyond its proper bounds, nor feared to carry it to
the fullest extent that duty required."[1393] The members of the bar
then begged the Chief Justice to receive them "in a body" at "the United
States Courtroom"; and also to "permit his portrait to be taken" by "an
eminent artist of this city."[1394]
With anxiety, but calmness and even good humor, Marshall awaited the
operation. Just before he went to the surgeon's table, Dr. Jacob
Randolph, who assisted Dr. Physick, found Marshall eating a hearty
breakfast. Notwithstanding the pain he suffered, the Chief Justice
laughingly explained that, since it might be the last meal he ever would
enjoy, he had determined to make the most of it. He understood that the
chances of surviving the operation were against him, but he was eager to
take them, since he would rather die than continue to suffer the agony
he had been enduring.
While the long and excruciating operation went on, by which more than a
thousand calculi were removed, Marshall was placid, "scarcely uttering
a murmur throughout the whole procedure." The physicians ascribed his
recovery "in a great degree ... to his extraordinary self possession,
and to the calm and philosophical views which he took of his
case."[1395]
Marshall writes Story about his experience and the results of the
treatment, saying that he must take medicine "continually to prevent new
formations," and adding, with humorous melancholy, that he "must submit
too to a severe and most unsociable regimen." He cautions Story to care
for his own health, which Judge Peters had told him was bad. "Without
your vigorous and powerful co-operation I should be in despair, and
think the 'ship must be given up.'"[1396]
On learning of his improved condition, Story writes Peters from
Cambridge: "This seems to me a special interposition of Providence in
favor of the Constitution.... He is beloved and reverenced here beyond
all measure, though not beyond his merits. Next to Washington he stands
the idol of all good men."[1397]
While on this distressing visit to Philadelphia, Marshall writes his
wife two letters--the last letters to her of which any originals or
copies can be found. "I anticipate with a pleasure which I know you will
share the time when I may sit by your side by our tranquil fire side &
enjoy the happiness of your society without inflicting on you the pain
of witnessing my suffering.... I am treated with the most flattering
attentions in Philadelphia. They give me pain, the more pain as the
necessity of declining many of them may be ascribed to a want of
sensibility."[1398]
His recovery assured, Marshall again writes his wife: "I have at length
risen from my bed and am able to hold a pen. The most delightful use I
can make of it is to tell you that I am getting well ... from the
painful disease with which I have been so long affected.... Nothing
delights me so much as to hear from my friends and especially from you.
How much was I gratified at the line from your own hand in Mary's
letter.[1399]... I am much obliged by your offer to lend me money.[1400]
I hope I shall not need it but can not as yet speak positively as my
stay has been longer and my expenses greater than I had anticipated on
leaving home. Should I use any part of it, you may be assured it will be
replaced on my return. But this is a subject on which I know you feel no
solicitude.... God bless you my dearest Polly love to all our friends.
Ever your most affectionate J. Marshall."[1401]
On December 25, 1831, his "dearest Polly" died. The previous day, she
hung about his neck a locket containing a wisp of her hair. For the
remainder of his life he wore this memento, never parting with it night
or day.[1402] Her weakness, physical and mental, which prevailed
throughout practically the whole of their married life, inspired in
Marshall a chivalric adoration. On the morning of the first anniversary
of her death, Story chanced to go into Marshall's room and "found him in
tears. He had just finished writing out for me some lines of General
Burgoyne, of which he spoke to me last evening as eminently beautiful
and affecting.... I saw at once that he had been shedding tears over the
memory of his own wife, and he has said to me several times during the
term, that the moment he relaxes from business he feels exceedingly
depressed, and rarely goes through a night without weeping over his
departed wife.... I think he is the most extraordinary man I ever saw,
for the depth and tenderness of his feelings."[1403]
But Marshall had also written something which he did not show even to
Story--a tribute to his wife:
"This day of joy and festivity to the whole Christian world is, to my
sad heart, the anniversary of the keenest affliction which humanity can
sustain. While all around is gladness, my mind dwells on the silent
tomb, and cherishes the remembrance of the beloved object which it
contains.
"On the 25th of December, 1831, it was the will of Heaven to take to
itself the companion who had sweetened the choicest part of my life, had
rendered toil a pleasure, had partaken of all my feelings, and was
enthroned in the inmost recess of my heart. Never can I cease to feel
the loss and to deplore it. Grief for her is too sacred ever to be
profaned on this day, which shall be, during my existence, marked by a
recollection of her virtues.
"On the 3d of January, 1783, I was united by the holiest bonds to the
woman I adored. From the moment of our union to that of our separation,
I never ceased to thank Heaven for this its best gift. Not a moment
passed in which I did not consider her as a blessing from which the
chief happiness of my life was derived. This never-dying sentiment,
originating in love, was cherished by a long and close observation of
as amiable and estimable qualities as ever adorned the female bosom. To
a person which in youth was very attractive, to manners uncommonly
pleasing, she added a fine understanding, and the sweetest temper which
can accompany a just and modest sense of what was due to herself.
"She was educated with a profound reverence for religion, which she
preserved to her last moments. This sentiment, among her earliest and
deepest impressions, gave a colouring to her whole life. Hers was the
religion taught by the Saviour of man. She was a firm believer in the
faith inculcated by the Church (Episcopal) in which she was bred.
"I have lost her, and with her have lost the solace of my life! Yet she
remains still the companion of my retired hours, still occupies my
inmost bosom. When alone and unemployed, my mind still recurs to her.
More than a thousand times since the 25th of December, 1831, have I
repeated to myself the beautiful lines written by General Burgoyne,
under a similar affliction, substituting 'Mary' for 'Anna':
"'Encompass'd in an angel's frame,
An angel's virtues lay:
Too soon did Heaven assert its claim
And take its own away!
My Mary's worth, my Mary's charms,
Can never more return!
What now shall fill these widow'd arms?
Ah, me! my Mary's urn!
Ah, me! ah, me! my Mary's urn!'"[1404]
After his wife's death, Marshall arranged to live at "Leeds Manor,"
Fauquier County, a large house on part of the Fairfax estate which he
had given to his son, James Keith Marshall. A room, with very thick
walls to keep out the noise of his son's many children, was built for
him, adjoining the main dwelling. Here he brought his library, papers,
and many personal belongings. His other sons and their families lived
not far away; "Leeds Manor" was in the heart of the country where he had
grown to early manhood; and there he expected to spend his few remaining
years.[1405] He could not, however, tear himself from his Richmond home,
where he continued to live most of the time until his death.[1406]
When fully recovered from his operation, Marshall seemed to acquire
fresh strength. He "is in excellent health, never better, and as firm
and robust in mind as in body," Story informs Charles Sumner.[1407]
The Chief Justice was, however, profoundly depressed. The course that
President Jackson was then pursuing--his attitude toward the Supreme
Court in the Georgia controversy,[1408] his arbitrary and violent rule,
his hostility to the second Bank of the United States--alarmed and
distressed Marshall.
[Illustration: "_Leeds Manor_"
_The principal house in the Fairfax purchase and the home of Marshall's
son, James Keith Marshall, where he expected to spend his declining
years._]
The Bank had finally justified the brightest predictions of its friends.
Everywhere in the country its notes were as good as gold, while abroad
they were often above par.[1409] Its stock was owned in every nation and
widely distributed in America.[1410] Up to the time when Jackson began
his warfare upon the Bank, the financial management of Nicholas Biddle
had been as brilliant as it was sound.[1411]
But popular hostility to the Bank had never ceased. In addition to the
old animosity toward any central institution of finance, charges were
made that directors of certain branches of the Bank had used their power
to interfere in politics. As implacable as they were unjust were the
assaults made by Democratic politicians upon Jeremiah Mason, director of
the branch at Portsmouth, New Hampshire. Had the Bank consented to
Mason's removal, it is possible that Jackson's warfare on it would not
have been prosecuted.[1412]
The Bank's charter was to expire in 1836. In his first annual Message to
Congress the President briefly called attention to the question of
rechartering the institution. The constitutionality of the Bank Act was
doubtful at best, he intimated, and the Bank certainly had not
established a sound and uniform currency.[1413] In his next Message, a
year later, Jackson repeated more strongly his attack upon the
Bank.[1414]
Two years afterwards, on the eve of the Presidential campaign of 1832,
the friends of the Bank in Congress passed, by heavy majorities, a bill
extending the charter for fifteen years after March 3, 1836, the date of
its expiration.[1415] The principal supporters of this measure were Clay
and Webster and, indeed, most of the weighty men in the National
Legislature. But they were enemies of Jackson, and he looked upon the
rechartering of the Bank as a personal affront.
On July 4, 1832, the bill was sent to the President. Six days later he
returned it with his veto. Jackson's veto message was as able as it was
cunning. Parts of it were demagogic appeals to popular passion; but the
heart of it was an attack upon Marshall's opinions in M'Culloch _vs._
Maryland and Osborn _vs._ The Bank.
The Bank is a monopoly, its stockholders and directors a "privileged
order"; worse still, the institution is rapidly passing into the hands
of aliens--"already is almost a third of the stock in foreign hands." If
we must have a bank, let it be "_purely American_." This aristocratic,
monopolistic, un-American concern exists by the authority of an
unconstitutional act of Congress. Even worse is the rechartering act
which he now vetoed.
The decision of the Supreme Court in the Bank cases, settled nothing,
said Jackson. Marshall's opinions were, for the most part, erroneous and
"ought not to control the co-ordinate authorities of this Government.
The Congress, the Executive, and the Court must each for itself be
guided by its own opinion of the Constitution.... It is as much the
duty of the House of Representatives, of the Senate, and of the
President to decide upon the constitutionality of any bill or resolution
which may be presented to them for passage or approval as it is of the
supreme judges when it may be brought before them for judicial decision.
"The opinion of the judges has no more authority over Congress than the
opinion of Congress has over the judges, and on that point the President
is independent of both. The authority of the Supreme Court must not,
therefore, be permitted to control the Congress or the Executive when
acting in their legislative capacities, but to have only such influence
as the force of their reasoning may deserve."[1416]
But, says Jackson, the court did not decide that "all features of this
corporation are compatible with the Constitution." He quotes--and puts
in italics--Marshall's statement that "_where the law is not prohibited
and is really calculated to effect any of the objects intrusted to the
Government, to undertake here to inquire into the degree of its
necessity would be to pass the line which circumscribes the judicial
department and to tread on legislative ground_." This language, insists
Jackson, means that "it is the exclusive province of Congress and the
President to decide whether the particular features of this act are
_necessary_ and _proper_ ... and therefore constitutional, or
_unnecessary_ and _improper_, and therefore unconstitutional."[1417]
Thereupon Jackson points out what he considers to be the defects of the
bill.
Congress has no power to "grant exclusive privileges or monopolies,"
except in the District of Columbia and in the matter of patents and
copyrights. "Every act of Congress, therefore, which attempts, by grants
of monopolies or sale of exclusive privileges for a limited time, or a
time without limit, to restrict or extinguish its own discretion in the
choice of means to execute its delegated powers, is equivalent to a
legislative amendment of the Constitution, and palpably
unconstitutional."[1418] Jackson fiercely attacks Marshall's opinion
that the States cannot tax the National Bank and its branches.
The whole message is able, adroit, and, on its face, plainly intended as
a campaign document.[1419] A shrewd appeal is made to the State banks.
Popular jealousy and suspicion of wealth and power are skillfully played
upon: "The rich and powerful" always use governments for "their selfish
purposes." When laws are passed "to grant titles, gratuities, and
exclusive privileges, to make the rich richer and the potent more
powerful, the humble members of society--the farmers, mechanics, and
laborers--who have neither the time nor the means of securing like
favors to themselves, have a right to complain of the injustice of their
Government.
"There are no necessary evils in government," says Jackson. "Its evils
exist only in its abuses. If it would confine itself to equal
protection, and, as Heaven does its rains, shower its favors alike on
the high and the low, the rich and the poor, it would be an unqualified
blessing"--thus he runs on to his conclusion.[1420]
The masses of the people, particularly those of the South, responded
with wild fervor to the President's assault upon the citadel of the
"money power." John Marshall, the defender of special privilege, had
said that the Bank law was protected by the Constitution; but Andrew
Jackson, the champion of the common people, declared that it was
prohibited by the Constitution. Hats in the air, then, and loud cheers
for the hero who had dared to attack and to overcome this financial
monster as he had fought and beaten the invading British!
Marshall was infinitely disgusted. He informs Story of Virginia's
applause of Jackson's veto: "We are up to the chin in politics. Virginia
was always insane enough to be opposed to the Bank of The United States,
and therefore hurras for the veto. But we are a little doubtful how it
may work in Pennsylvania. It is not difficult to account for the part
New York may take. She has sagacity enough to see her interest in
putting down the present bank. Her mercantile position gives her a
controul, a commanding controul, over the currency and the exchanges of
the country, if there be no Bank of The United States. Going for herself
she may approve this policy; but Virginia ought not to drudge for her
benefit."[1421]
Jackson did not sign the bill for the improvement of rivers and harbors,
passed at the previous session of Congress, because, as he said, he had
not "sufficient time ... to examine it before the adjournment."[1422]
Everybody took the withholding of his signature as a veto.[1423] This
bill included a feasible project for making the Virginia Capital
accessible to seagoing vessels. Even this action of the President was
applauded by Virginians:
"We show our wisdom most strikingly in approving the veto on the harbor
bill also," Marshall writes Story. "That bill contained an appropriation
intended to make Richmond a seaport, which she is not at present, for
large vessels fit to cross the Atlantic. The appropriation was whittled
down in the House of Representatives to almost nothing.... Yet we wished
the appropriation because we were confident that Congress when correctly
informed, would add the necessary sum. This too is vetoed; and for this
too our sagacious politicians are thankful. We seem to think it the
summit of human wisdom, or rather of American patriotism, to preserve
our poverty."[1424]
During the Presidential campaign of 1832, Marshall all but despaired of
the future of the Republic. The autocracy of Jackson's reign; the
popular enthusiasm which greeted his wildest departures from established
usage and orderly government; the state of the public mind, indicated
everywhere by the encouragement of those whom Marshall believed to be
theatrical and adventurous demagogues--all these circumstances perturbed
and saddened him.
And for the time being, his fears were wholly justified. Triumphantly
reëlected, Jackson pursued the Bank relentlessly. Finally he ordered
that the Government funds should no longer be deposited in that hated
institution. Although that desperate act brought disaster on business
throughout the land, it was acclaimed by the multitude. In alarm and
despair, Marshall writes Story: "We [Virginians] are insane on the
subject of the Bank. Its friends, who are not numerous, dare not, a few
excepted, to avow themselves."[1425]
But the sudden increase and aggressiveness of disunion sentiment
oppressed Marshall more heavily than any other public circumstance of
his last years. The immediate occasion for the recrudescence of
Localism was the Tariff. Since the Tariff of 1816 the South had been
discontented with the protection afforded the manufacturers of the North
and East; and had made loud outcry against the protective Tariff of
1824. The Southern people felt that their interests were sacrificed for
the benefit of the manufacturing sections; they believed that all that
they produced had to be sold in a cheap, unprotected market, and all
that they purchased had to be bought in a dear, protected market; they
were convinced that the protective tariff system, and, indeed, the whole
Nationalist policy, meant the ruin of the South.
Moreover, they began to see that the power that could enact a protective
tariff, control commerce, make internal improvements, could also control
slavery--perhaps abolish it.[1426] Certainly that was "the spirit" of
Marshall's construction of the Constitution, they said. "Sir," exclaimed
Robert S. Garnett of Virginia during the debate in the House on the
Tariff of 1824, "we must look very little to consequences if we do not
perceive in the spirit of this construction, combined with the political
fanaticism of the period, reason to anticipate, at no distant day, the
usurpation, on the part of Congress, of the right to legislate upon a
subject which, if you once touch, will inevitably throw this country
into revolution--I mean that of slavery.... Can whole nations be
mistaken? When I speak of nations, I mean Virginia, the Carolinas, and
other great Southern commonwealths."[1427]
John Carter of South Carolina warned the House not to pass a law "which
would, as to this portion of the Union, be registered on our statute
books as a dead letter."[1428] James Hamilton, Jr., of the same State,
afterwards a Nullification Governor, asked: "Is it nothing to weaken the
attachment of one section of this confederacy to the bond of Union?...
Is it nothing to sow the seeds of incurable alienation?"[1429]
The Tariff of 1828 alarmed and angered the Southern people to the point
of frenzy. "The interests of the South have been ... shamefully
sacrificed!" cried Hayne in the Senate. "Her feelings have been
disregarded; her wishes slighted; her honest pride insulted!"[1430] So
enraged were Southern Representatives that, for the most part, they
declined to speak. Hamilton expressed their sentiments. He disdained to
enter into the "chaffering" about the details of the bill.[1431] "You
are coercing us to inquire, whether we can afford to belong to a
confederacy in which severe restrictions, tending to an ultimate
prohibition of foreign commerce, is its established policy.[1432]... Is
it ... treason, sir, to tell you that there is a condition of public
feeling throughout the southern part of this confederacy, which no
prudent man will treat with contempt, and no man who loves his country
will not desire to see allayed?[1433]... I trust, sir, that this cup may
pass from us.... But, if an adverse destiny should be ours--if we are
doomed to drink 'the waters of bitterness,' in their utmost woe, ...
South Carolina will be found on the side of those principles, standing
firmly, on the very ground which is canonized by that revolution which
has made us what we are, and imbued us with the spirit of a free and
sovereign people."[1434]
Retaliation, even forcible resistance, was talked throughout the South
when this "Tariff of Abominations," as the Act of 1828 was called,
became a law. The feeling in South Carolina especially ran high. Some of
her ablest men proposed that the State should tax all articles[1435]
protected by the tariff. Pledges were made at public meetings not to buy
protected goods manufactured in the North. At the largest gathering in
the history of the State, resolutions were passed demanding that all
trade with tariff States be stopped.[1436] Nullification was
proposed.[1437] The people wildly acclaimed such a method of righting
their wrongs, and Calhoun gave to the world his famous "Exposition," a
treatise based on the Jeffersonian doctrine of thirty years
previous.[1438]
A little more than a year after the passage of the Tariff of 1824, and
the publication of Marshall's opinions in Osborn _vs._ The Bank and
Gibbons _vs._ Ogden, Jefferson had written Giles of the "encroachments"
by the National Government, particularly by the Supreme Court and by
Congress. How should these invasions of the rights of the States be
checked? "Reason and argument? You might as well reason and argue with
the marble columns encircling them [Congress and the Supreme Court]....
Are we then _to stand to our arms_?... No. That must be the last
resource." But the States should denounce the acts of usurpation "until
their accumulation shall overweigh that of separation."[1439]
Jefferson's letter, written only six months before his death, was made
public just as the tide of belligerent Nullification was beginning to
rise throughout the South.[1440]
At the same time defiance of National authority came also from Georgia,
the cause being as distinct from the tariff as the principle of
resistance was identical. This cause was the forcible seizure, by
Georgia, of the lands of the Cherokee Indians and the action of the
Supreme Court in cases growing out of Georgia's policy and the execution
of it.
By numerous treaties between the National Government and the Cherokee
Nation, the Indians were guaranteed protection in the enjoyment of their
lands. When Georgia, in 1802, ceded her claim to that vast territory
stretching westward to the Mississippi, it had been carefully provided
that the lands of the Indians should be preserved from seizure or entry
without their consent, and that their rights should be defended from
invasion or disturbance. The Indian titles were to be extinguished,
however, as soon as this could be done peaceably, and without inordinate
expense.
In 1827, these Georgia Cherokees, who were highly civilized, adopted a
constitution, set up a government of their own modeled upon that of the
United States, and declared themselves a sovereign independent
nation.[1441] Immediately thereafter the Legislature of Georgia passed
resolutions declaring that the Cherokee lands belonged to the State
"absolutely"--that the Indians were only "tenants at her will"; that
Georgia had the right to, and would, extend her laws throughout her
"conventional limits," and "coerce obedience to them from all
descriptions of people, be they white, red, or black."[1442]
Deliberately, but without delay, the State enacted laws taking over the
Cherokee lands, dividing them into counties, and annulling "all laws,
usages and customs" of the Indians.[1443] The Cherokees appealed to
President Jackson, who rebuffed them and upheld Georgia.[1444] Gold was
discovered in the Indian country, and white adventurers swarmed to the
mines.[1445] Georgia passed acts forbidding the Indians to hold courts,
or to make laws or regulations for the tribe. White persons found in the
Cherokee country without a license from the Governor were, upon
conviction, to be imprisoned at hard labor for four years. A State guard
was established to "protect" the mines and arrest any one "detected in a
violation of the laws of this State."[1446] Still other acts equally
oppressive were passed.[1447]
On the advice of William Wirt, then Attorney-General of the United
States, and of John Sergeant of Philadelphia, the Indians applied to the
Supreme Court for an injunction to stop Georgia from executing these
tyrannical statutes. The whole country was swept by a tempest of popular
excitement. South and North took opposite sides. The doctrine of State
Rights, in whose name internal improvements, the Tariff, the Bank, and
other Nationalist measures had been opposed, was invoked in behalf of
Georgia.
The Administration tried to induce the Cherokees to exchange their
farms, mills, and stores in Georgia for untamed lands in the Indian
Territory. The Indians sent a commission to investigate that far-off
region, which reported that it was unfit for agriculture and that, once
there, the Cherokees would have to fight savage tribes.[1448] Again they
appealed to the President; again Jackson told them that Georgia had
absolute authority over them. Angry debates arose in Congress over a
bill to send the reluctant natives to the wilds of the then remote
West.[1449]
Such was the origin of the case of The Cherokee Nation _vs._ The State
of Georgia.[1450] At Wirt's request, Judge Dabney Carr laid the whole
matter before Marshall, Wirt having determined to proceed with it or to
drop it as the Chief Justice should advise. Marshall, of course,
declined to express any opinion on the legal questions involved: "I have
followed the debate in both houses of Congress, with profound attention
and with deep interest, and have wished, most sincerely, that both the
executive and legislative departments had thought differently on the
subject. Humanity must bewail the course which is pursued, whatever may
be the decision of policy."[1451]
Before the case could be heard by the Supreme Court, Georgia availed
herself of an opportunity to show her contempt for the National
Judiciary and to assert her "sovereign rights." A Cherokee named George
Tassels was convicted of murder in the Superior Court of Hall County,
Georgia, and lay in jail until the sentence of death should be executed.
A writ of error from the Supreme Court was obtained, and Georgia was
ordered to appear before that tribunal and defend the judgment of the
State Court.
The order was signed by Marshall. Georgia's reply was as insulting and
belligerent as it was prompt and spirited. The Legislature resolved that
"the interference by the chief justice of the supreme court of the U.
States, in the administration of the criminal laws of this state, ... is
a flagrant violation of her rights"; that the Governor "and every other
officer of this state" be directed to "disregard any and every mandate
and process ... purporting to proceed from the chief justice or any
associate justice of the supreme court of the United States"; that the
Governor be "authorised and required, with all the force and means ...
at his command ... to resist and repel any and every invasion from
whatever quarter, upon the administration of the criminal laws of this
state"; that Georgia refuses to become a party to "the case sought to be
made before the supreme court"; and that the Governor, "by express,"
direct the sheriff of Hall County to execute the law in the case of
George Tassels.[1452]
Five days later, Tassels was hanged,[1453] and the Supreme Court of the
United States, powerless to vindicate its authority, defied and insulted
by a "sovereign" State, abandoned by the Administration, was humiliated
and helpless.
When he went home on the evening of January 4, 1831, John Quincy Adams,
now a member of Congress, wrote in his diary that "the resolutions of
the legislature of Georgia setting at defiance the Supreme Court of the
United States are published and approved in the Telegraph, the
Administration newspaper at this place.... The Constitution, the laws
and treaties of the United States are prostrate in the State of Georgia.
Is there any remedy for this state of things? None. Because the
Executive of the United States is in League with the State of
Georgia.... This example ... will be imitated by other States, and with
regard to other national interests--perhaps the tariff.... The Union is
in the most imminent danger of dissolution.... The ship is about to
founder."[1454]
Meanwhile the Cherokee Nation brought its suit in the Supreme Court to
enjoin the State from executing its laws, and at the February term of
1831 it was argued for the Indians by Wirt and Sergeant. Georgia
disdained to appear--not for a moment would that proud State admit that
the Supreme Court of the Nation could exercise any authority whatever
over her.[1455]
On March 18, 1831, Marshall delivered the opinion of the majority of the
court, and in it he laid down the broad policy which the Government has
unwaveringly pursued ever since. At the outset the Chief Justice plainly
stated that his sympathies were with the Indians,[1456] but that the
court could not examine the merits or go into the moralities of the
controversy, because it had no jurisdiction. The Cherokees sued as a
foreign nation, but, while they did indeed constitute a separate state,
they were not a foreign nation. The relation of the Indians to the
United States is "unlike that of any other two people in existence." The
territory comprises a "part of the United States."[1457]
In our foreign affairs and commercial regulations, the Indians are
subject to the control of the National Government. "They acknowledge
themselves in their treaties to be under the protection of the United
States." They are not, then, foreign nations, but rather "domestic
dependent nations.... They are in a state of pupilage." Foreign
governments consider them so completely under our "sovereignty and
dominion" that it is universally conceded that the acquisition of their
lands or the making of treaties with them would be "an invasion of our
territory, and an act of hostility." By the Constitution power is given
Congress to regulate commerce among the States, with foreign nations,
and with Indian tribes, these terms being "entirely distinct."[1458]
The Cherokees not being a foreign nation, the Supreme Court has no
jurisdiction in a suit brought by them in that capacity, said Marshall.
Furthermore, the court was asked "to control the Legislature of Georgia,
and to restrain the exertion of its physical force"--a very questionable
"interposition," which "savors too much of the exercise of political
power to be within the proper province of the judicial department." In
"a proper case with proper parties," the court might, perhaps, decide
"the mere question of right" to the Indian lands. But the suit of the
Cherokee Nation against Georgia is not such a case.
Marshall closes with a reflection upon Jackson in terms much like those
with which, many years earlier, he had so often rebuked Jefferson: "If
it be true that the Cherokee Nation have rights, this is not the
tribunal in which those rights are to be asserted. If it be true that
wrongs have been inflicted, and that still greater are to be
apprehended, this is not the tribunal which can redress the past or
prevent the future."[1459]
In this opinion the moral force of Marshall was displayed almost as much
as in the case of the Schooner Exchange.[1460] He was friendly to the
whole Indian race; he particularly detested Georgia's treatment of the
Cherokees; he utterly rejected the State Rights theory on which the
State had acted; and he could easily have decided in favor of the
wronged and harried Indians, as the dissent of Thompson and Story
proves. But the statesman and jurist again rose above the man of
sentiment, law above emotion, the enduring above the transient.
As a "foreign state" the Indians had lost, but the constitutionality of
Georgia's Cherokee statutes had not been affirmed. Wirt and Sergeant had
erred as to the method of attacking that legislation. Another proceeding
by Georgia, however, soon brought the validity of her expansion laws
before the Supreme Court. Among the missionaries who for years had
labored in the Cherokee Nation was one Samuel A. Worcester, a citizen of
Vermont. This brave minister, licensed by the National Government,
employed by the American Board of Commissioners for Foreign Missions,
appointed by President John Quincy Adams to be postmaster at New Echota,
a Cherokee town, refused, in company with several other missionaries, to
leave the Indian country.
Worcester and a Reverend Mr. Thompson were arrested by the Georgia
guard. The Superior Court of Gwinnett County released them, however, on
a writ of habeas corpus, because, both being licensed missionaries
expending National funds appropriated for civilizing Indians, they must
be considered as agents of the National Government. Moreover, Worcester
was postmaster at New Echota. Georgia demanded his removal and inquired
of Jackson whether the missionaries were Government agents. The
President assured the State that they were not, and removed Worcester
from office.[1461]
Thereupon both Worcester and Thompson were promptly ordered to leave the
State. But they and some other missionaries remained, and were
arrested; dragged to prison--some of them with chains around their
necks;[1462] tried and convicted. Nine were pardoned upon their promise
to depart forthwith from Georgia. But Worcester and one Elizur Butler
sternly rejected the offer of clemency on such a condition and were put
to hard labor in the penitentiary.
From the judgment of the Georgia court, Worcester and Butler appealed to
the Supreme Court of the United States. Once more Marshall and Georgia
confronted each other; again the Chief Justice faced a hostile President
far more direct and forcible than Jefferson, but totally lacking in the
subtlety and skill of that incomparable politician. Thrilling and highly
colored accounts of the treatment of the missionaries had been published
in every Northern newspaper; religious journals made conspicuous display
of soul-stirring narratives of the whole subject; feeling in the North
ran high; resentment in the South rose to an equal degree.
This time Georgia did more than ignore the Supreme Court as in the case
of George Tassels and in the suit of the Cherokee Nation; she formally
refused to appear; formally denied the right of that tribunal to pass
upon the decisions of her courts.[1463] Never would Georgia so
"compromit her dignity as a sovereign State," never so "yield her rights
as a member of the Confederacy." The new Governor, Wilson Lumpkin,
avowed that he would defend those rights by every means in his
power.[1464] When the case of Worcester _vs._ Georgia came on for
hearing before the Supreme Court, no one answered for the State. Wirt,
Sergeant, and Elisha W. Chester appeared for the missionaries as they
had for the Indians.[1465] Wirt and Sergeant made extended and powerful
arguments.[1466]
Marshall's opinion, delivered March 3, 1832, is one of the noblest he
ever wrote. "The legislative power of a State, the controlling power of
the Constitution and laws of the United States, the rights, if they have
any, the political existence of a once numerous and powerful people, the
personal liberty of a citizen, are all involved," begins the aged Chief
Justice.[1467] Does the act of the Legislature of Georgia, under which
Worcester was convicted, violate the Constitution, laws, and treaties of
the United States?[1468] That act is "an assertion of jurisdiction over
the Cherokee Nation."[1469]
He then goes into a long historical review of the relative titles of the
natives and of the white discoverers of America; of the effect upon
these titles of the numerous treaties with the Indians; of the acts of
Congress relating to the red men and their lands; and of previous laws
of Georgia on these subjects.[1470] This part of his opinion is the most
extended and exhaustive historical analysis Marshall ever made in any
judicial utterance, except that on the law of treason during the trial
of Aaron Burr.[1471]
Then comes his condensed, unanswerable, brilliant conclusion: "A weaker
power does not surrender its independence, its rights to
self-government, by associating with a stronger, and taking its
protection. A weak state, in order to provide for its safety, may place
itself under the protection of one more powerful, without stripping
itself of the right of self-government, and ceasing to be a state....
The Cherokee Nation ... is a distinct community, occupying its own
territory ... in which the laws of Georgia can have no force, and which
the citizens of Georgia have no right to enter but with the assent of
the Cherokees themselves, or in conformity with treaties, and with the
acts of Congress. The whole intercourse between the United States and
this nation is by our Constitution and laws vested in the government of
the United States."
The Cherokee Acts of the Georgia Legislature "are repugnant to the
constitution, laws and treaties of the United States. They interfere
forcibly with the relations established between the United States and
the Cherokee Nation." This controlling fact the laws of Georgia ignore.
They violently disrupt the relations between the Indians and the United
States; they are equally antagonistic to acts of Congress based upon
these treaties. Moreover, "the forcible seizure and abduction" of
Worcester, "who was residing in the nation with its permission and by
authority of the President of the United States, is also a violation of
the acts which authorize the chief magistrate to exercise this
authority."
Marshall closes with a passage of eloquence almost equal to, and of
higher moral grandeur than, the finest passages in M'Culloch _vs._
Maryland and in Cohens _vs._ Virginia. So the decision of the court was
that the judgment of the Georgia court be "reversed and annulled."[1472]
Congress was intensely excited by Marshall's opinion; Georgia was
enraged; the President agitated and belligerent. In a letter to Ticknor,
written five days after the judgment of the court was announced, Story
accurately portrays the situation: "The decision produced a very strong
sensation in both houses; Georgia is full of anger and violence....
Probably she will resist the execution of our judgement, & if she does I
do not believe the President will interfere.... The Court has done its
duty. Let the nation do theirs. If we have a government let its commands
be obeyed; if we have not it is as well to know it at once, & to look to
consequences."[1473]
Story's forecast was justified. Georgia scoffed at Marshall's opinion,
flouted the mandate of the Supreme Court. "Usurpation!" cried Governor
Lumpkin. He would meet it "with the spirit of determined
resistance."[1474] Jackson defied the Chief Justice. "John Marshall has
made his decision:--_now let him enforce it_!" the President is reported
to have said.[1475] Again the Supreme Court found itself powerless; the
judgment in Worcester _vs._ Georgia came to nothing; the mandate was
never obeyed, never heeded.[1476]
For the time being, Marshall was defeated; Nationalism was prostrate;
Localism erect, strong, aggressive. Soon, however, Marshall and
Nationalism were to be sustained, for the moment, by the man most
dreaded by the Chief Justice, most trusted by Marshall's foes. Andrew
Jackson was to astound the country by the greatest and most illogical
act of his strange career--the issuance of his immortal Proclamation
against Nullification.
Georgia's very first assertion of her "sovereignty" in the Indian
controversy had strengthened South Carolina's fast growing determination
to resist the execution of the Tariff Law. On January 25, 1830, Senator
Robert Young Hayne of South Carolina, in his brilliant challenge to
Webster, set forth the philosophy of Nullification: "Sir, if, the
measures of the Federal Government were less oppressive, we should
still strive against this usurpation. The South is acting on a principle
she has always held sacred--resistance to unauthorized taxation."[1477]
Webster's immortal reply, so far as his Constitutional argument is
concerned, is little more than a condensation of the Nationalist
opinions of John Marshall stated in popular and dramatic language.
Indeed, some of Webster's sentences are practically mere repetitions of
Marshall's, and his reasoning is wholly that of the Chief Justice.
"We look upon the States, not as separated, but as united under the same
General Government, having interests, common, associated, intermingled.
In war and peace, we are one; in commerce, one; because the authority of
the General Government reaches to war and peace, and to the regulation
of commerce."[1478]
What is the capital question in dispute? It is this: "Whose prerogative
is it to decide on the constitutionality or unconstitutionality of the
laws?"[1479] Can States decide? Can States "annul the law of Congress"?
Hayne, expressing the view of South Carolina, had declared that they
could. He had based his argument upon the Kentucky and Virginia
Resolutions--upon the theory that the States, and not the people, had
created the Constitution; that the States, and not the people, had
established the General Government.
But is this true? asked Webster. He answered by paraphrasing Marshall's
words in M'Culloch _vs._ Maryland: "It is, sir, the people's
constitution, the people's Government; made for the people; made by the
people; and answerable to the people.[1480] The people ... have declared
that this Constitution shall be the supreme law....[1481] Who is to
judge between the people and the Government?"[1482]
The Constitution settles that question by declaring that "the judicial
power shall extend to all cases arising under the Constitution and
laws."[1483] Because of this the Union is secure and strong. "Instead of
one tribunal, established by all, responsible to all, with power to
decide for all, shall constitutional questions be left to four and
twenty popular bodies, each at liberty to decide for itself, and none
bound to respect the decisions of others?"[1484]
Then Webster swept grandly forward to that famous peroration ending
with the words which in time became the inspiring motto of the whole
American people: "Liberty _and_ Union, now and forever, one and
inseparable!"[1485]
Immediately after the debate between Hayne and Webster, Nullification
gathered force in South Carolina. Early in the autumn of 1830, Governor
Stephen Decatur Miller spoke at a meeting of the Sumter district of that
State. He urged that a State convention be called for the purpose of
declaring null and void the Tariff of 1828. Probably the National courts
would try to enforce that law, he said, but South Carolina would "refuse
to sustain" it. Nullification involved no danger, and if it did, what
matter!--"those who fear to defend their rights, have none. Their
property belongs to the banditti: they are only tenants at will of their
own firesides."[1486]
Public excitement steadily increased; at largely attended meetings
ominous resolutions were adopted. "The attitude which the federal
government continues to assume towards the southern states, calls for
decisive and unequivocal resistance." So ran a typical declaration of a
gathering of citizens of Georgetown, South Carolina, in December,
1830.[1487]
In the Senate, Josiah Stoddard Johnston of Louisiana, but
Connecticut-born, made a speech denouncing the doctrine of
Nullification, asserting the supremacy of the National Government, and
declaring that the Supreme Court was the final judge of the
constitutionality of legislation. "It has fulfilled the design of its
institution; ... it has given form and consistency to the constitution,
and uniformity to the laws."[1488] Nullification, said Johnston, means
"either disunion, or civil war; or, in the language of the times,
disunion and blood."[1489]
The Louisiana Senator sent his speech to Marshall, who answered that "it
certainly is not among the least extraordinary of the doctrines of the
present day that such a question [Nullification] should be seriously
debated."[1490]
All Nullification arguments were based on the Kentucky and Virginia
Resolutions. Madison was still living, and Edward Everett asked him for
his views. In a letter almost as Nationalist as Marshall's opinions, the
venerable statesman replied at great length and with all the ability and
clearness of his best years.
The decision by States of the constitutionality of acts of Congress
would destroy the Nation, he wrote. Such decision was the province of
the National Judiciary. While the Supreme Court had been criticized,
perhaps justly in some cases, "still it would seem that, with but few
exceptions, the course of the judiciary has been hitherto sustained by
the predominant sense of the nation." It was absurd to deny the
"supremacy of the judicial power of the U. S. & denounce at the same
time nullifying power in a State.... A law of the land" cannot be
supreme "without a supremacy in the exposition & execution of the law."
Nullification was utterly destructive of the Constitution and the
Union.[1491]
This letter, printed in the _North American Review_,[1492] made a
strong impression on the North, but it only irritated the South.
Marshall read it "with peculiar pleasure," he wrote Story: "M^r
Madison ... is himself again. He avows the opinions of his best days,
and must be pardoned for his oblique insinuations that some of the
opinions of our Court are not approved. Contrast this delicate hint
with the language M^r Jefferson has applied to us. He [Madison] is
attacked ... by our Enquirer, who has arrayed his report of 1799 against
his letter. I never thought that report could be completely defended;
but M^r Madison has placed it upon its best ground, that the language is
incautious, but is intended to be confined to a mere declaration of
opinion, or is intended to refer to that ultimate right which all admit,
to resist despotism, a right not exercised under a constitution, but in
opposition to it."[1493]
At a banquet on April 15, 1830, in celebration of Jefferson's birthday,
Jackson had given a warning not to be misunderstood except by Nullifiers
who had been blinded and deafened by their new political religion. "The
Federal Union;--it must be preserved," was the solemn and inspiring
toast proposed by the President. Southern leaders gave no heed. They
apparently thought that Jackson meant to endorse Nullification, which,
most illogically, they always declared to be the only method of
preserving the Union peaceably.
Their denunciation of the Tariff grew ever louder; their insistence on
Nullification ever fiercer, ever more determined. To a committee of
South Carolina Union men who invited him to their Fourth of July
celebration at Charleston in 1831, Jackson sent a letter which plainly
informed the Nullifiers that if they attempted to carry out their
threats, the National Government would forcibly suppress them.[1494]
At last the eyes of the South were opened. At last the South understood
the immediate purpose of that enigmatic and self-contradictory man who
ruled America, at times, in the spirit of the Czars of Russia; at times,
in the spirit of the most compromising of opportunists.
Jackson's outgiving served only to enrage the South and especially South
Carolina. The Legislature of that State replied to the President's
letter thus: "Is this Legislature to be schooled and rated by the
President of the United States? Is it to legislate under the sword of
the Commander-in-Chief?... This is a confederacy of sovereign States,
and each may withdraw from the confederacy when it chooses."[1495]
Marshall saw clearly what the outcome was likely to be, but yielded
slowly to the despair so soon to master him. "Things to the South wear a
very serious aspect," he tells Story. "If we can trust appearances the
leaders are determined to risk all the consequences of dismemberment. I
cannot entirely dismiss the hope that they may be deserted by their
followers--at least to such an extent as to produce a pause at the
Rubicon. They undoubtedly believe that Virginia will support them. I
think they are mistaken both with respect to Virginia and North
Carolina. I do not think either State will embrace this mad and wicked
measure. New Hampshire and Maine seem to belong to the tropics. It is
time for New Hampshire to part with Webster and Mason. She has no longer
any use for such men."[1496]
As the troubled weeks passed, Marshall's apprehension increased. Story,
profoundly concerned, wrote the Chief Justice that he could see no light
in the increasing darkness. "If the prospects of our country inspire you
with gloom," answered Marshall, "how do you think a man must be affected
who partakes of all your opinions and whose geographical position
enables him to see a great deal that is concealed from you? I yield
slowly and reluctantly to the conviction that our constitution cannot
last. I had supposed that north of the Potowmack a firm and solid
government competent to the security of rational liberty might be
preserved. Even that now seems doubtful. The case of the south seems to
me to be desperate. Our opinions are incompatible with a united
government even among ourselves. The union has been prolonged thus far
by miracles. I fear they cannot continue."[1497]
Congress heeded the violent protest of South Carolina--perhaps it would
be more accurate to say that Congress obeyed Andrew Jackson. In 1832 it
reduced tariff duties; but the protective policy was retained. The South
was infuriated--if the principle were recognized, said Southern men,
what could they expect at a later day when this capitalistic,
manufacturing North would be still stronger and the unmoneyed and
agricultural South still weaker?
South Carolina especially was frantic. The spirit of the State was
accurately expressed by R. Barnwell Smith at a Fourth of July
celebration: "If the fire and the sword of war are to be brought to our
dwellings, ... let them come! Whilst a bush grows which may be dabbled
with blood, or a pine tree stands to support a rifle, let them
come!"[1498] At meetings all over the State treasonable words were
spoken. Governor James Hamilton, Jr., convened the Legislature in
special session and the election of a State convention was ordered.
"Let us act, next October, at the ballot box--next November, in the
state house--and afterwards, should any further action be necessary, let
it be where our ancestors acted, _in the field of battle_";[1499] such
were the toasts proposed at banquets, such the sentiments adopted at
meetings.
On November 24, 1832, the State Convention, elected[1500] to consider
the new Tariff Law, adopted the famous Nullification Ordinance which
declared that the Tariff Acts of 1828 and 1832 were "null, void, and no
law"; directed the Legislature to take measures to prevent the
enforcement of those acts within South Carolina; forbade appeal to the
Supreme Court of the United States from South Carolina courts in any
case where the Tariff Law was involved; and required all State
officers, civil and military, to take oath to "obey, execute and enforce
this Ordinance, and such act or acts of the Legislature as may be passed
in pursuance thereof."
The Ordinance set forth that "we, the People of South Carolina, ... _Do
further Declare_, that we will not submit to the application of force,
on the part of the Federal Government, to reduce this State to
obedience; but that we will consider" any act of the National Government
to enforce the Tariff Laws "as inconsistent with the longer continuance
of South Carolina in the Union: and that the People of this State ...
will forthwith proceed to organize a separate Government, and to do all
other acts and things which sovereign and independent States may of
right do."[1501]
Thereupon the Convention issued an address to the people.[1502] It was
long and, from the Nullification point of view, very able; it ended in
an exalted, passionate appeal: "Fellow citizens, the die is now cast. NO
MORE TAXES SHALL BE PAID HERE.... Prepare for the crisis, and ... meet
it as becomes men and freemen.... Fellow citizens, DO YOUR DUTY TO YOUR
COUNTRY, AND LEAVE THE CONSEQUENCES TO GOD."[1503]
Excepting only at the outbreak of war could a people be more deeply
stirred than were all Americans by the desperate action of South
Carolina. In the North great Union meetings were held, fervid speeches
made, warlike resolutions adopted. The South, at first, seemed dazed.
Was war at hand? This was the question every man asked of his neighbor.
A pamphlet on the situation, written by some one in a state of great
emotion, had been sent to Marshall, and Judge Peters had inquired about
it, giving at the same time the name of the author.
"I am not surprised," answered Marshall, "that he [the author] is
excited by the doctrine of nullification. It is well calculated to
produce excitement in all.... Leaving it to the courts and the custom
house will be leaving it to triumphant victory, and to victory which
must be attended with more pernicious consequences to our country and
with more fatal consequences to its reputation than victory achieved in
any other mode which rational men can devise."[1504] If Nullification
must prevail, John Marshall preferred that it should win by the sword
rather than through the intimidation of courts.
Jackson rightly felt that his reëlection meant that the country in
general approved of his attitude toward Nullification as well as that
toward the Bank. He promptly answered the defiance of South Carolina. On
December 10, 1832, he issued his historic Proclamation. Written by
Edward Livingston,[1505] Secretary of State, it is one of the ablest of
American state papers. Moderate in expression, simple in style, solid in
logic, it might have been composed by Marshall himself. It is, indeed, a
restatement of Marshall's Nationalist reasoning and conclusions. Like
the argument in Webster's Reply to Hayne, Jackson's Nullification
Proclamation was a repetition of those views of the Constitution and of
the nature of the American Government for which Marshall had been
fighting since Washington was made President.
As in Webster's great speech, sentences and paragraphs are in almost the
very words used by Marshall in his Constitutional opinions, so in
Jackson's Proclamation the same parallelism exists. Gently, but firmly,
and with tremendous force, in the style and spirit of Abraham Lincoln
rather than of Andrew Jackson, the Proclamation makes clear that the
National laws will be executed and resistance to them will be put down
by force of arms.[1506]
The Proclamation was a triumph for Marshall. That the man whom he
distrusted and of whom he so disapproved, whose election he had thought
to be equivalent to a dissolution of the Union, should turn out to be
the stern defender of National solidarity, was, to Marshall, another of
those miracles which so often had saved the Republic. His disapproval of
Jackson's rampant democracy, and whimsical yet arbitrary executive
conduct, turned at once to hearty commendation.
"Since his last proclamation and message," testifies Story, "the Chief
Justice and myself have become his warmest supporters, and shall
continue so just as long as he maintains the principles contained in
them. Who would have dreamed of such an occurrence?"[1507] Marshall
realized, nevertheless, that even the bold course pursued by the
President could not permanently overcome the secession convictions of
the Southern people.
The Union men of South Carolina who, from the beginning of the
Nullification movement, had striven earnestly to stay its progress,
rallied manfully.[1508] Their efforts were futile--disunion sentiment
swept the State. "With ... indignation and contempt," with "defiance and
scorn," most South Carolinians greeted the Proclamation[1509] of the man
who, only three years before, had been their idol. To South Carolinians
Jackson was now "a tyrant," a would-be "Cæsar," a "Cromwell," a
"Bonaparte."[1510]
The Legislature formally requested Hayne, now Governor, to issue a
counter-proclamation,[1511] and adopted spirited resolutions declaring
the right of any State "to secede peaceably from the Union." One count
in South Carolina's indictment of the President was thoroughly
justified--his approval of Georgia's defiance of Marshall and the
Supreme Court. Jackson's action, declared the resolutions, was the more
"extraordinary, that he has silently, and ... with entire approbation,
witnessed our sister state of Georgia avow, act upon, and carry into
effect, even to the taking of life, principles identical with those now
denounced by him in South Carolina." The Legislature finally resolved
that the State would "repel force by force, and, relying upon the
blessing of God, will maintain its liberty at all hazards."[1512]
Swiftly Hayne published his reply to the President's Proclamation. It
summed up all the arguments for the right of a State to decide the
constitutionality of acts of Congress, that had been made since the
Kentucky Resolutions were written by Jefferson--that "great Apostle of
American liberty ... who has consecrated these principles, and left them
as a legacy to the American people, recorded by his own hand." It was
Jefferson, said Hayne, who had first penned the immortal truth that
"NULLIFICATION" of unconstitutional acts of Congress was the "RIGHTFUL
REMEDY" of the States.[1513]
In his Proclamation Jackson had referred to the National Judiciary as
the ultimate arbiter of the constitutionality of National laws. How
absurd such a claim by such a man, since that doctrine "has been denied
by none more strongly than the President himself" in the Bank
controversy and in the case of the Cherokees! "And yet when it serves
the purpose of bringing odium on South Carolina, 'his native State,' the
President has no hesitation in regarding the attempt of a State to
release herself from the control of the Federal Judiciary, in a
matter affecting her sovereign rights, as a violation of the
Constitution."[1514]
In closing, Governor Hayne declares that "the time has come when it must
be seen, whether the people of the several States have indeed lost the
spirit of the revolution, and whether they are to become the willing
instruments of an unhallowed despotism. In such a sacred cause, South
Carolina will feel that she is not striking for her own, but the
liberties of the Union and the RIGHTS OF MAN."[1515]
Instantly[1516] the Legislature enacted one law to prevent the
collection of tariff duties in South Carolina;[1517] another authorizing
the Governor to "order into service the whole military force of this
State" to resist any attempt of the National Government to enforce the
Tariff Acts.[1518] Even before Hayne's Proclamation was published,
extensive laws had been passed for the reorganization of the militia,
and the Legislature now continued to enact similar legislation. In four
days fourteen such acts were passed.[1519]
The spirit and consistency of South Carolina were as admirable as her
theory was erroneous and narrow. If she meant what she had said, the
State could have taken no other course. If, moreover, she really
intended to resist the National Government, Jackson had given cause for
South Carolina's militant action. As soon as the Legislature ordered the
calling of the State Convention to consider the tariff, the President
directed the Collector at Charleston to use every resource at the
command of the Government to collect tariff duties. The commanders of
the forts at Charleston were ordered to be in readiness to repel any
attack. General Scott was sent to the scene of the disturbance. Military
and naval dispositions were made so as to enable the National Government
to strike quickly and effectively.[1520]
Throughout South Carolina the rolling of drums and blare of bugles were
heard. Everywhere was seen the blue cockade with palmetto button.[1521]
Volunteers were called for,[1522] and offered themselves by thousands;
in certain districts "almost the entire population" enlisted.[1523] Some
regiments adopted a new flag, a banner of red with a single black star
in the center.[1524]
Jackson attempted to placate the enraged and determined State. In his
fourth annual Message to Congress he barely mentioned South Carolina's
defiance, but, for the second time, urgently recommended a reduction of
tariff duties. Protection, he said, "must be ultimately limited to those
articles of domestic manufacture which are indispensable to our safety
in time of war.... Beyond this object we have already seen the operation
of the system productive of discontent."[1525]
Other Southern States, although firmly believing in South Carolina's
principles and sympathetic with her cause, were alarmed by her bold
course. Virginia essayed the rôle of mediator between her warlike sister
and the "usurping" National Government. In his Message to the
Legislature, Governor John Floyd stoutly defended South Carolina--"the
land of Sumpter [_sic_] and of Marion." "Should force be resorted to by
the federal government, the horror of the scenes hereafter to be
witnessed cannot now be pictured.... What surety has any state for her
existence as a sovereign, if a difference of opinion should be punished
by the sword as treason?" The situation calls for a reference of the
whole question to "the PEOPLE of the states. On you depends in a high
degree the future destiny of this republic. It is for you now to say
whether the brand of civil war shall be thrown into the midst of these
states."[1526]
Mediative resolutions were instantly offered for the appointment of a
committee "to take into consideration the relations existing between the
state of South Carolina and the government of the United States," and
the results to each and to Virginia flowing from the Ordinance of
Nullification and Jackson's Proclamation. The committee was to report
"such measures as ... it may be expedient for Virginia to adopt--the
propriety of recommending a general convention to the states--and such a
declaration of our views and opinions as it may be proper for her to
express in the present fearful impending crisis, for the protection of
the right of the states, the restoration of harmony, and the
preservation of the union."[1527]
Only five members voted against the resolution.[1528]
The committee was appointed and, on December 20, 1832, reported a set of
resolutions--"worlds of words," as Niles aptly called them--disapproving
Jackson's Proclamation; applauding his recommendation to Congress that
the tariff be reduced; regretting South Carolina's hasty action;
deprecating "the intervention of arms on either side"; entreating "our
brethren in S. Carolina to pause in their career"; appealing to Jackson
"to withstay the arm of force"; instructing Virginia Senators and
requesting Virginia Representatives in Congress to do their best to
"procure an immediate reduction of the tariff"; and appointing two
commissioners to visit South Carolina with a view to securing an
adjustment of the dispute.[1529]
With painful anxiety and grave alarm, Marshall, then in Richmond,
watched the tragic yet absurd procession of events. Much as the doings
and sayings of the mediators and sympathizers with Nullification
irritated him, serious as were his forebodings, the situation appealed
to his sense of humor. He wrote Story an account of what was going on in
Virginia. No abler or more accurate statement of the conditions and
tendencies of the period exists. Marshall's letter is a document of
historical importance. It reveals, too, the character of the man.
It was written in acknowledgment of the receipt of "a proof sheet" of a
page of Story's "Commentaries on the Constitution of the United States,"
dedicating that work to Marshall. "I am ... deeply penetrated," says
Marshall, "by the evidence it affords of the continuance of that partial
esteem and friendship which I have cherished for so many years, and
still cherish as one of the choicest treasures of my life. The only
return I can make is locked up in my own bosom, or communicated in
occasional conversation with my friends." He congratulates Story on
having finished his "Herculean task." He is sure that Story has
accomplished it with ability and "correctness," and is "certain in
advance" that he will read "every sentence with entire approbation. It
is a subject on which we concur exactly. Our opinions on it are, I
believe, identical. Not so with Virginia or the South generally."
Marshall then relates what has happened in Richmond: "Our legislature is
now in session, and the dominant party receives the message of the
President to Congress with enthusiastic applause. Quite different was
the effect of his proclamation. That paper astonished, confounded, and
for a moment silenced them. In a short time, however, the power of
speech was recovered, and was employed in bestowing on its author the
only epithet which could possibly weigh in the scales against the name
of 'Andrew Jackson,' and countervail its popularity.
"Imitating the Quaker who said the dog he wished to destroy was mad,
they said Andrew Jackson had become a Federalist, even an ultra
Federalist. To have said he was ready to break down and trample on every
other department of the government would not have injured him, but to
say that he was a Federalist--a convert to the opinions of Washington,
was a mortal blow under which he is yet staggering.
"The party seems to be divided. Those who are still true to their
President pass by his denunciation of all their former theories; and
though they will not approve the sound opinions avowed in his
proclamation are ready to denounce nullification and to support him in
maintaining the union. This is going a great way for them--much farther
than their former declarations would justify the expectation of, and
much farther than mere love of union would carry them.
"You have undoubtedly seen the message of our Governor and the
resolutions reported by the committee to whom it was referred--a message
and resolutions which you will think skillfully framed had the object
been a civil war. They undoubtedly hold out to South Carolina the
expectation of support from Virginia; and that hope must be the
foundation on which they have constructed their plan for a southern
confederacy or league.
"A want of confidence in the present support of the people will prevent
any direct avowal in favor of this scheme by those whose theories and
whose secret wishes may lead to it; but the people may be so entangled
by the insane dogmas which have become axioms in the political creed of
Virginia, and involved so inextricably in the labyrinth into which those
dogmas conduct them, as to do what their sober judgement disapproves.
"On Thursday these resolutions are to be taken up, and the debate will,
I doubt not, be ardent and tempestuous enough. I pretend not to
anticipate the result. Should it countenance the obvious design of South
Carolina to form a southern confederacy, it may conduce to a southern
league--never to a southern government. Our theories are incompatible
with a government for more than a single State. We can form no union
which shall be closer than an alliance between sovereigns.
"In this event there is some reason to apprehend internal convulsion.
The northern and western section of our State, should a union be
maintained north of the Potowmack, will not readily connect itself with
the South. At least such is the present belief of their most intelligent
men. Any effort on their part to separate from Southern Virginia and
unite with a northern confederacy may probably be punished as treason.
'We have fallen on evil times.'"
Story had sent Marshall, Webster's speech at Faneuil Hall, December 17,
1832, in which he declared that he approved the "general principles" of
Jackson's Proclamation, and that "nullification ... is but another name
for civil war." "I am," said Webster, "for the Union as it is; ... for
the Constitution as it is." He pledged his support to the President in
"maintaining this Union."[1530]
Marshall was delighted: "I thank you for M^r Webster's speech.
Entertaining the opinion he has expressed respecting the general course
of the administration, his patriotism is entitled to the more credit for
the determination he expressed at Faneuil Hall to support it in the
great effort it promises to make for the preservation of the union. No
member of the then opposition avowed a similar determination during the
Western Insurrection, which would have been equally fatal had it not
been quelled by the well timed vigor of General Washington.
"We are now gathering the bitter fruits of the tree even before that
time planted by M^r Jefferson, and so industriously and perseveringly
cultivated by Virginia."[1531]
Marshall's predictions of a tempestuous debate over the Virginia
resolutions were fulfilled. They were, in fact, "debated to death,"
records Niles. "It would seem that the genuine spirit of 'ancient
_dominionism_' would lead to a making of speeches, even in 'the cave of
the Cyclops when forging thunderbolts,' instead of striking the hammers
from the hands of the workers of iniquity. Well--the matter was debated,
and debated and debated.... The proceedings ... were measured by the
_square yard_." At last, however, resolutions were adopted.
These resolutions "respectfully requested and entreated" South Carolina
to rescind her Ordinance of Nullification; "respectfully requested and
entreated" Congress to "modify" the tariff; reaffirmed Virginia's faith
in the principles of 1798-99, but held that these principles did not
justify South Carolina's Ordinance or Jackson's Proclamation; and
finally, authorized the appointment of one commissioner to South
Carolina to communicate Virginia's resolutions, expressing at the same
time, however, "our sincere good will to our sister state, and our
anxious solicitude that the kind and respectful recommendations we have
addressed to her, may lead to an accommodation of all the difficulties
between that state and the general government."[1532] Benjamin
Watkins Leigh was unanimously elected to be the ambassador of
accommodation.[1533]
So it came about that South Carolina, anxious to extricate herself from
a perilous situation, yet ready to fight if she could not disentangle
herself with honor, took informal steps toward a peaceful adjustment of
the dispute; and that Jackson and Congress, equally wishing to avoid
armed conflict, were eager to have a tariff enacted that would work a
"reconciliation." On January 26, 1833, at a meeting in Charleston,
attended by the first men of the State of all parties, resolutions,
offered by Hamilton himself, were adopted which, as a practical matter,
suspended the Ordinance of Nullification that was to have gone into
effect on February 1. Vehement, spirited, defiant speeches were made,
all ending, however, in expressions of hope that war might be avoided.
The resolutions were as ferocious as the most bloodthirsty Secessionist
could desire; but they accepted the proposed "beneficial modification of
the tariff," and declared that, "pending the process" of reducing the
tariff, "all ... collision between the federal and state authorities
should be sedulously avoided on both sides."[1534]
The Tariff Bill of 1833--Clay's compromise--resulted. Jackson signed it;
South Carolina was mollified. For the time the storm subsided; but the
net result was that Nullification triumphed[1535]--a National law had
been modified at the threat of a State which was preparing to back up
that threat by force.
Marshall was not deceived. "Have you ever seen anything to equal the
exhibition in Charleston and in the far South generally?" he writes
Story. "Those people pursue a southern league steadily or they are
insane. They have caught at Clay's bill, if their conduct is at all
intelligible, not as a real accommodation, a real adjustment, a real
relief from actual or supposed oppression, but as an apology for
avoiding the crisis and deferring the decisive moment till the other
States of the South will unite with them."[1536] Marshall himself was
for the compromise Tariff of 1833, but not because it afforded a means
of preventing armed collision: "Since I have breathed the air of James
River I think favorably of Clay's bill. I hope, if it can be maintained,
that our manufactures will still be protected by it."[1537]
The "settlement" of the controversy, of course, satisfied nobody,
changed no conviction, allayed no hostility, stabilized no condition.
The South, though victorious, was nevertheless morose, indignant--after
all, the principle of protection had been retained. "The political
world, at least our part of it, is surely moved _topsy turvy_," Marshall
writes Story in the autumn of 1833. "What is to become of us and of our
constitution? Can the wise men of the East answer that question? Those
of the South perceive no difficulty. Allow a full range to state rights
and state sovereignty, and, in their opinion, all will go well."[1538]
Placid as was his nature, perfect as was the co-ordination of his
powers, truly balanced as were his intellect and emotions, Marshall
could not free his mind of the despondency that had now settled upon
him. Whatever the subject upon which he wrote to friends, he was sure to
refer to the woeful state of the country, and the black future it
portended.
Story informed him that an abridged edition of his own two volumes on
the Constitution would soon be published. "I rejoice to hear that the
abridgement of your Commentaries is coming before the public," wrote
Marshall in reply, "and should be still more rejoiced to learn that it
was used in all our colleges and universities. The first impressions
made on the youthful mind are of vast importance; and, most
unfortunately, they are in the South all erroneous. Our young men,
generally speaking, grow up in the firm belief that liberty depends on
construing our Constitution into a league instead of a government; that
it has nothing to fear from breaking these United States into numerous
petty republics. Nothing in their view is to be feared but that bugbear,
consolidation; and every exercise of legitimate power is construed into
a breach of the Constitution. Your book, if read, will tend to remove
these prejudices."[1539]
A month later he again writes Story: "I have finished reading your great
work, and wish it could be read by every statesman, and every would-be
statesman in the United States. It is a comprehensive and an accurate
commentary on our Constitution, formed in the spirit of the original
text. In the South, we are so far gone in political metaphysics, that I
fear no demonstration can restore us to common sense. The word 'State
Rights,' as expounded by the resolutions of '98 and the report of '99,
construed by our legislature, has a charm against which all reasoning
is vain.
"Those resolutions and that report constitute the creed of every
politician, who hopes to rise in Virginia; and to question them, or even
to adopt the construction given by their author [Jefferson] is deemed
political sacrilege. The solemn ... admonitions of your concluding
remarks[1540] will not, I fear, avail as they ought to avail against
this popular frenzy."[1541]
He once more confides to his beloved Story his innermost thoughts and
feelings. Story had sent the Chief Justice a copy of the _New England
Magazine_ containing an article by Story entitled "Statesmen: their
Rareness and Importance," in which Marshall was held up as the true
statesman and the poor quality of the generality of American public men
was set forth in scathing terms.
Marshall briefly thanks Story for the compliment paid him, and
continues: "It is in vain to lament, that the portrait which the author
has drawn of our political and party men, is, in general, true. Lament
it as we may, much as it may wound our vanity or our pride, it is still,
in the main, true; and will, I fear, so remain.... In the South,
political prejudice is too strong to yield to any degree of merit; and
the great body of the nation contains, at least appears to me to
contain, too much of the same ingredient.
"To men who think as you and I do, the present is gloomy enough; and the
future presents no cheering prospect. The struggle now maintained in
every State in the Union seems to me to be of doubtful issue; but should
it terminate contrary to the wishes of those who support the enormous
pretensions of the Executive, should victory crown the exertions of the
champions of constitutional law, what serious and lasting advantage is
to be expected from this result?
"In the South (things may be less gloomy with you) those who support the
Executive do not support the Government. They sustain the personal power
of the President, but labor incessantly to impair the legitimate powers
of the Government. Those who oppose the violent and rash measures of the
Executive (many of them nullifiers, many of them seceders) are generally
the bitter enemies of a constitutional government. Many of them are the
avowed advocates of a league; and those who do not go the whole length,
go great part of the way. What can we hope for in such circumstances? As
far as I can judge, the Government is weakened, whatever party may
prevail. Such is the impression I receive from the language of those
around me."[1542]
During the last years of Marshall's life, the country's esteem for him,
slowly forming through more than a generation, manifested itself by
expressions of reverence and affection. When he and Story attended the
theater, the audience cheered him.[1543] His sentiment still youthful
and tender, he wept over Fanny Kemble's affecting portrayal of Mrs.
Haller in "The Stranger."[1544] To the very last Marshall performed his
judicial duties thoroughly, albeit with a heavy heart. He "looked more
vigorous than usual," and "seemed to revive and enjoy anew his green old
age," testifies Story.[1545]
It is at this period of his career that we get Marshall's account of the
course he pursued toward his malignant personal and political enemy,
Thomas Jefferson. Six years after Jefferson's death,[1546] Major Henry
Lee, who hated that great reformer even more than Jefferson hated
Marshall, wrote the Chief Justice for certain facts, and also for his
opinion of the former President. In his reply Marshall said:
"I have never allowed myself to be irritated by M^r Jeffersons
unprovoked and unjustifiable aspersions on my conduct and principles,
nor have I ever noticed them except on one occasion[1547] when I thought
myself called on to do so, and when I thought that declining to enter
upon my justification might have the appearance of crouching under the
lash, and admitting the justice of its infliction."[1548]
Intensely as he hated Jefferson, attributing to him, as Marshall did,
most of the country's woes, the Chief Justice never spoke a personally
offensive word concerning his radical cousin.[1549] On the other hand,
he never uttered a syllable of praise or appreciation of Jefferson.
Even when his great antagonist died, no expression of sorrow or esteem
or regret or admiration came from the Chief Justice. Marshall could not
be either hypocritical or vindictive; but he could be silent.
Holding to the old-time Federalist opinion that Jefferson's principles
were antagonistic to orderly government; convinced that, if they
prevailed, they would be destructive of the Nation; believing the man
himself to be a demagogue and an unscrupulous if astute and able
politician--Marshall, nevertheless, said nothing about Jefferson to
anybody except to Story, Lee, and Pickering; and, even to these close
friends, he gave only an occasional condemnation of Jefferson's
policies.
The general feeling toward Marshall, especially that of the bench and
bar, during his last two years is not too strongly expressed in Story's
dedication to the Chief Justice of his "Commentaries on the Constitution
of the United States." Marshall had taken keen interest in the
preparation of Story's masterpiece and warned him against haste.
"Precipitation ought carefully to be avoided. This is a subject on which
I am not without experience."[1550]
Story begins by a tribute "to one whose youth was engaged in the arduous
enterprises of the Revolution; whose manhood assisted in framing and
supporting the national Constitution; and whose maturer years have been
devoted to the task of unfolding its powers, and illustrating its
principles." As the expounder of the Constitution, "the common consent
of your countrymen has admitted you to stand without a rival. Posterity
will assuredly confirm, by its deliberate award, what the present age
has approved, as an act of undisputed justice.
"But," continues Story, "I confess that I dwell with even more pleasure
upon the entirety of a life adorned by consistent principles, and filled
up in the discharge of virtuous duty; where there is nothing to regret,
and nothing to conceal; no friendships broken; no confidence betrayed;
no timid surrenders to popular clamor; no eager reaches for popular
favor. Who does not listen with conscious pride to the truth, that the
disciple, the friend, the biographer of Washington, still lives, the
uncompromising advocate of his principles?"[1551]
Excepting only the time of his wife's death, the saddest hours of his
life were, perhaps, those when he opened the last two sessions of the
Supreme Court over which he presided. When, on January 13, 1834, the
venerable Chief Justice, leading his associate justices to their places,
gravely returned the accustomed bow of the bar and spectators, he also,
perforce, bowed to temporary events and to the iron, if erratic, rule of
Andrew Jackson. He bowed, too, to time and death. Justice Washington
was dead, Johnson was fatally ill, and Duval, sinking under age and
infirmity, was about to resign.
Republicans as Johnson and Duval were, they had, generally, upheld
Marshall's Nationalism. Their places must soon be filled, he knew, by
men of Jackson's choosing--men who would yield to the transient public
pressure then so fiercely brought to bear on the Supreme Court. Only
Joseph Story could be relied upon to maintain Marshall's principles. The
increasing tendency of Justices Thompson, McLean, and Baldwin was known
to be against his unyielding Constitutional philosophy. It was more than
probable that, before another year, Jackson would have the opportunity
to appoint two new Justices--and two cases were pending that involved
some of Marshall's dearest Constitutional principles.
The first of these was a Kentucky case[1552] in which almost precisely
the same question, in principle, arose that Marshall had decided in
Craig _vs._ Missouri.[1553] The Kentucky Bank, owned by the State, was
authorized to issue, and did issue, bills which were made receivable for
taxes and other public dues. The Kentucky law furthermore directed that
an endorsement and tender of these State bank notes should, with certain
immaterial modifications, satisfy any judgment against a debtor.[1554]
In short, the Legislature had authorized a State currency--had emitted
those bills of credit, expressly forbidden by the National Constitution.
Another case, almost equally important, came from New York.[1555] To
prevent the influx of impoverished foreigners, who would be a charge
upon the City of New York, the Legislature had enacted that the masters
of ships arriving at that port should report to the Mayor all facts
concerning passengers. The ship captain must remove those whom the Mayor
decided to be undesirable.[1556] It was earnestly contended that this
statute violated the commerce clause of the Constitution.
Both cases were elaborately argued; both, it was said, had been settled
by former decisions--the Kentucky case by Craig _vs._ Missouri, the New
York case by Gibbons _vs._ Ogden and Brown _vs._ Maryland. The court was
almost equally divided. Thompson, McLean, and Baldwin thought the
Kentucky and New York laws Constitutional; Marshall, Story, Duval, and
Johnson believed them invalid. But Johnson was absent because of his
serious illness. No decision, therefore, was possible.
Marshall then announced a rule of the court, hitherto unknown by the
public: "The practice of this court is not (except in cases of absolute
necessity) to deliver any judgment in cases where constitutional
questions are involved, unless four judges concur in opinion, thus
making the decision that of a majority of the whole court. In the
present cases four judges do not concur in opinion as to the
constitutional questions which have been argued. The court therefore
direct these cases to be re-argued at the next term, under the
expectation that a larger number of the judges may then be
present."[1557]
The next term! When, on January 12, 1835, John Marshall for the last
time presided over the Supreme Court of the United States, the
situation, from his point of view, was still worse. Johnson had died and
Jackson had appointed James M. Wayne of Georgia in his place. Duval had
resigned not long before the court convened, and his successor had not
been named. Again the New York and Kentucky cases were continued, but
Marshall fully realized that the decision of them must be in opposition
to his firm and pronounced views.[1558]
[Illustration: Associate Justices at the last session of the Supreme
Court over which John Marshall presided: McLEAN, THOMPSON, STORY, WAYNE,
BALDWIN]
It is doubtful whether history shows more than a few examples of an aged
man, ill, disheartened, and knowing that he soon must die, who
nevertheless continued his work to the very last with such scrupulous
care as did Marshall. He took active part in all cases argued and
decided and actually delivered the opinion of the court in eleven of the
most important.[1559] None of these are of any historical interest; but
in all of them Marshall was as clear and vigorous in reasoning and style
as he had been in the immortal Constitutional opinions delivered at the
height of his power. The last words Marshall ever uttered as Chief
Justice sparkle with vitality and high ideals. In Mitchel _et al. vs._
The United States,[1560] a case involving land titles in Florida, he
said, in ruling on a motion to continue the case: "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 ... may be sometimes indulged. Even this is not
always attainable. In the excitement produced by ardent controversy,
gentlemen view the same object through such different media that minds,
not infrequently receive therefrom precisely opposite impressions. The
Court, however, must see with its own eyes, and exercise its own
judgment, guided by its own reason."[1561]
At last Marshall had grave intimations that his life could not be
prolonged. Quite suddenly his health declined, although his mind was as
strong and clear as ever. "Chief Justice Marshall still possesses his
intellectual powers in very high vigor," writes Story during the last
session of the Supreme Court over which his friend and leader presided.
"But his physical strength is manifestly on the decline; and it is now
obvious, that after a year or two, he will resign, from the pressing
infirmities of age.... What a gloom will spread over the nation when he
is gone! His place will not, nay, it cannot be supplied."[1562]
As the spring of 1835 ripened into summer, Marshall grew weaker. "I pray
God," wrote Story in agonies of apprehension, "that he may long live to
bless his country; but I confess that I have many fears whether he can
be long with us. His complaints are, I am sure, incurable, but I suppose
that they may be alleviated, unless he should meet with some accidental
cold or injury to aggravate them. Of these, he is in perpetual danger,
from his imprudence as well as from the natural effects of age."[1563]
In May, 1835, Kent went to Richmond in order to see Marshall, whom "he
found very emaciated, feeble & dangerously low. He injured his Spine by
a Post Coach fall & oversetting.... He ... made me _Promise to see him
at Washington next Winter_."[1564]
Kent wrote Jeremiah Smith of New Hampshire that Marshall must soon die.
Smith was overwhelmed with grief "because his life, at this time
especially, is of incalculable value." Marshall's "views ... of our
national affairs" were those of Smith also. "Perfectly just in
themselves they now come to us confirmed by the dying attestation of one
of the greatest and best of men."[1565]
Marshall's "incurable complaint," which so distressed Story, was a
disease of the liver.[1566] Finding his health failing, he again
repaired to Philadelphia for treatment by Dr. Physick. When informed
that the prospects for his friend's recovery were desperate, Story was
inconsolable. "Great, good and excellent man!" he wrote. "I shall never
see his like again! His gentleness, his affectionateness, his glorious
virtues, his unblemished life, his exalted talents, leave him without a
rival or a peer."[1567]
At six o'clock in the evening of Monday, July 6, 1835, John Marshall
died, in his eightieth year, in the city where American Independence was
proclaimed and the American Constitution was born--the city which, a
patriotic soldier, he had striven to protect and where he had received
his earliest national recognition. Without pain, his mind as clear and
strong as ever, he "met his fate with the fortitude of a Philosopher,
and the resignation of a Christian," testifies Dr. Nathaniel Chapman,
who was present.[1568] By Marshall's direction, the last thing taken
from his body after he expired was the locket which his wife had hung
about his neck just before she died.[1569] The morning after his death,
the bar of Philadelphia met to pay tribute to Marshall, and at half-past
five of the same day a town meeting was held for the same purpose.[1570]
Immediately afterward, his body was sent by boat to Richmond. The bench,
bar, and hundreds of citizens of Philadelphia accompanied the funeral
party to the vessel. During the voyage a transfer was made to another
craft.[1571] A committee, consisting of Major-General Winfield Scott, of
the United States Army, Henry Baldwin, Associate Justice of the Supreme
Court, Richard Peters, formerly Judge for the District of Pennsylvania,
John Sergeant, Edward D. Ingraham, and William Rawle, of the
Philadelphia bar, went to Richmond.
In the late afternoon of July 9, 1835, the steamboat Kentucky, bearing
Marshall's body, drew up at the Richmond wharf. Throughout the day the
bells had been tolling, the stores were closed, and, as the vessel came
within sight, a salute of three guns was fired. All Richmond assembled
at the landing. An immense procession marched to Marshall's house,[1572]
where he had requested that his body be first taken, and then to the
"New Burying Ground," on Shockoe Hill. There Bishop Richard Channing
Moore of the Episcopal Church read the funeral service, and John
Marshall was buried by the side of his wife.
When his ancient enemy and antagonist, the Richmond _Enquirer_,
published the news of Marshall's death, it expressed briefly its true
estimate of the man. It would be impossible, said the _Enquirer_, to
over-praise Marshall's "brilliant talents." It would be "a more grateful
incense" to his memory to say "that he was as much beloved as he was
respected.... There was about him so little of 'the insolence of
office,' and so much of the benignity of the man, that his presence
always produced ... the most delightful impressions. There was something
irresistibly winning about him." Strangers could hardly be persuaded
that "in the plain, unpretending ... man who told his anecdote and
enjoyed the jest--they had been introduced to the Chief Justice of the
United States, whose splendid powers had filled such a large space in
the eye of mankind."[1573]
The Richmond _Whig and Public Advertiser_ said that "no man has lived or
died in this country, save its father George Washington alone, who
united such a warmth of affection for his person, with so deep and
unaffected a respect for his character, and admiration for his great
abilities. No man ever bore public honors with so meek a dignity ... It
is hard ... to conceive of a more perfect character than his, for who
can point to a vice, scarcely to a defect--or who can name a virtue that
did not shine conspicuously in his life and conduct?"[1574]
The day after the funeral the citizens of Richmond gathered at and about
the Capitol, again to honor the memory of their beloved neighbor and
friend. The resolutions, offered by Benjamin Watkins Leigh, declared
that the people of Richmond knew "better than any other community can
know" Marshall's private and public "virtues," his "wisdom,"
"simplicity," "self-denial," "unbounded charity," and "warm benevolence
towards all men." Since nothing they can say can do justice to "such a
man," the people of Richmond "most confidently trust, to History alone,
to render due honors to his memory, by a faithful and immortal record of
his wisdom, his virtues and his services."[1575]
All over the country similar meetings were held, similar resolutions
adopted. Since the death of Washington no such universal public
expressions of appreciation and sorrow had been witnessed.[1576] The
press of the country bore laudatory editorials and articles. Even
Hezekiah Niles, than whom no man had attacked Marshall's Nationalist
opinions more savagely, lamented his death, and avowed himself unequal
to the task of writing a tribute to Marshall that would be worthy of the
subject. "'A great man has fallen in Israel,'" said Niles's _Register_.
"Next to WASHINGTON, only, did he possess the reverence and homage of
the heart of the American people."[1577]
One of the few hostile criticisms of Marshall's services appeared in the
_New York Evening Post_ over the name of "Atlantic."[1578] This paper
had, by now, departed from the policy of its Hamiltonian founder.
"Atlantic" said that Marshall's "political doctrines ... were of the
ultra federal or aristocratic kind.... With Hamilton" he "distrusted the
virtue and intelligence of the people, and was in favor of a strong and
vigorous General Government, at the expense of the rights of the States
and of the people." While he was "sincere" in his beliefs and "a good
and exemplary man" who "truly loved his country ... he has been, all his
life long, a stumbling block ... in the way of democratic principles....
His situation ... at the head of an important tribunal, constituted in
utter defiance of the very first principles of democracy, has always
been ... an occasion of lively regret. That he is at length removed from
that station is a source of satisfaction."[1579]
The most intimate and impressive tributes came, of course, from
Virginia. Scarcely a town in the State that did not hold meetings, hear
orations, adopt resolutions. For thirty days the people of Lynchburg
wore crape on the arm.[1580] Petersburg honored "the Soldier, the
Orator, the Patriot, the Statesman, the Jurist, and above all, the good
and virtuous man."[1581] Norfolk testified to his "transcendent ability,
perfect integrity and pure patriotism."[1582] For weeks the Virginia
demonstrations continued. That at Alexandria was held five weeks after
his death. "The flags at the public square and on the shipping were
displayed at half mast; the bells were tolled ... during the day, and
minute guns fired by the Artillery"; there was a parade of military
companies, societies and citizens, and an oration by Edgar
Snowden.[1583]
The keenest grief of all, however, was felt by Marshall's intimates of
the Quoit Club of Richmond. Benjamin Watkins Leigh proposed, and the
club resolved, that, as to the vacancy caused by Marshall's death,
"there should be no attempt to fill it ever; but that the number of the
club should remain one less than it was before his death."[1584]
[Illustration: _The Grave of John Marshall_]
Story composed this "inscription for a cenotaph":
"To Marshall reared--the great, the good, the wise;
Born for all ages, honored in all skies;
His was the fame to mortals rarely given,
Begun on earth, but fixed in aim on heaven.
Genius, and learning, and consummate skill,
Moulding each thought, obedient to the will;
Affections pure, as e'er warmed human breast,
And love, in blessing others, doubly blest;
Virtue unspotted, uncorrupted truth,
Gentle in age, and beautiful in youth;--
These were his bright possessions. These had power
To charm through life and cheer his dying hour.
Are these all perished? No! but snatched from time,
To bloom afresh in yonder sphere sublime.
Kind was the doom (the fruit was ripe) to die,
Mortal is clothed with immortality."[1585]
Upon his tomb, however, were carved only the words he himself wrote for
that purpose two days before he died, leaving nothing but the final date
to be supplied:
JOHN MARSHALL
The son of Thomas and Mary Marshall
Was born on the 24th of
September, 1755; intermarried
with Mary Willis Ambler
the 3d of January, 1783;
departed this life the 6th day
of July, 1835.
FOOTNOTES:
[1390] Marshall to Story, June 26, 1831, _Proceedings, Mass. Hist. Soc.
2d_ Series, XIV, 344-45.
[1391] Same to same, Oct. 12, 1831, _ib._ 346-48.
[1392] Marshall to Story, Oct. 12, 1831, _Proceedings, Mass. Hist. Soc._
2d Series, XIV, 347. A rumor finally got about that Marshall
contemplated resigning. (See Niles, XL, 90.)
[1393] The resolutions of the bar had included the same idea, and
Marshall emphasized it by reiterating it in his response.
[1394] Hazard's _Pennsylvania Register_, as quoted in Dillon, III,
430-33. The artist referred to was either Thomas Sully, or Henry Inman,
who had studied under Sully. During the following year, Inman painted
the portrait and it was so excellent that it brought the artist his
first general recognition. The original now hangs in the rooms of the
Philadelphia Law Association. A reproduction of it appears as the
frontispiece of this volume.
[1395] Randolph: _A Memoir on the Life and Character of Philip Syng
Physick, M.D._ 97-99.
[1396] Marshall to Story, Nov. 10, 1831, _Proceedings, Mass. Hist. Soc._
2d Series, XIV, 348-49.
[1397] Story to Peters, Oct. 29, 1831, Story, II, 70.
[1398] Marshall to his wife, Oct. 6, 1831, MS.
[1399] This is the only indication in any of Marshall's letters that his
wife had written him.
[1400] Mrs. Marshall had a modest fortune of her own, bequeathed to her
by her uncle. She invested this quite independently of her husband.
(Leigh to Biddle, Sept. 7, 1837, McGrane, 289.)
[1401] Marshall to his wife, Nov. 8, 1831, MS.
[1402] Terhune, 98. This locket is now in the possession of Marshall's
granddaughter, Miss Emily Harvie of Richmond.
[1403] Story to his wife, March 4, 1832, Story, II, 86-87.
Soon after the death of his wife, Marshall made his will "entirely in
[his] ... own handwriting." A more informal document of the kind seldom
has been written. It is more like a familiar letter than a legal paper;
yet it is meticulously specific. "I owe nothing on my own account," he
begins. (He specifies one or two small obligations as trustee for women
relatives and as surety for "considerable sums" for his son-in-law,
Jacquelin B. Harvie.) The will shows that he owns bank and railroad
stock and immense quantities of land. He equally divides his property
among his children, making special provision that the portion of his
daughter Mary shall be particularly safeguarded.
One item of the will is curious: "I give to each of my grandsons named
John one thousand acres, part of my tract of land called Canaan lying in
Randolph county. If at the time of my death either of my sons should
have no son living named John, then I give the thousand acres to any son
he may have named Thomas, in token for my love for my father and
veneration for his memory. If there should be no son named John or
Thomas, then I give the land to the eldest son and if no sons to the
daughters."
He makes five additions to his will, three of which he specifically
calls "codicils." One of these is principally "to emancipate my faithful
servant Robin and I direct his emancipation if he _chuses_ to conform to
the laws on that subject, requiring that he should leave the state or if
permission can be obtained for his continuing to reside in it." If Robin
elects to go to Liberia, Marshall gives him one hundred dollars. "If he
does not go there I give him fifty dollars." In case it should be found
"impracticable to liberate" Robin, "I desire that he may choose his
master among my sons, or if he prefer my daughter that he may be held in
trust for her and her family as is the other property bequeathed in
trust for her, and that he may always be treated as a faithful and
meritorious servant." (Will and Codicils of John Marshall, Records of
Henrico County, Richmond, and Fauquier County, Warrenton, Virginia.)
[1404] Meade, II, footnote to 222. It would seem that Marshall showed
this tribute to no one during his lifetime except, perhaps, to his
children. At any rate, it was first made public in Bishop Meade's book
in 1857.
[1405] Statements to the author by Miss Elizabeth Marshall of "Leeds
Manor," and by Judge J. K. N. Norton of Alexandria, Va.
[1406] Statement to the author by Miss Emily Harvie. Most of Marshall's
letters to Story during these years were written from Richmond.
[1407] Story to Sumner, Feb. 6, 1833, Story, II, 120.
[1408] See _infra_, 540-51.
[1409] See Catterall, 407, 421-22, 467; and see especially Parton:
_Jackson_, III, 257-58.
[1410] Catterall, Appendix IX, 508.
[1411] _Ib._ chaps. V and VII. Biddle was appointed director of the Bank
by President Monroe in 1819, and displayed such ability that, in 1823,
he was elected president of the institution. Not until he received
information that Jackson was hostile to the Bank did Biddle begin the
morally wrong and practically unwise policy of loaning money without
proper security to editors and members of Congress.
[1412] Parton: _Jackson_, III, 260.
[1413] Richardson, II, 462.
[1414] _Ib._ 528-29
[1415] See Catterall, 235. For account of the fight for the Bank Bill
see _ib._ chap. X.
[1416] Richardson, II, 580-82.
[1417] _Ib._ 582-83.
[1418] Richardson, II, 584.
[1419] Jackson's veto message was used with tremendous effect in the
Presidential campaign of 1832. There cannot be the least doubt that the
able politicians who managed Jackson's campaign and, indeed, shaped his
Administration, designed that the message should be put to this use.
These politicians were William B. Lewis, Amos Kendall, Martin Van Buren,
and Samuel Swartwout.
[1420] Richardson, II, 590-91.
[1421] Marshall to Story, Aug. 2, 1832, _Proceedings, Mass. Hist. Soc._
2d Series, XIV, 349-51.
[1422] Richardson, II, 638. There was a spirited contest in the House
over this bill. (See _Debates_, 22d Cong. 1st Sess. 2438-44, 3248-57,
3286.) It reached the President at the end of the session, so that he
had only to refuse to sign it, in order to kill the measure.
[1423] In fact Jackson did send a message to Congress on December 6,
1832, explaining his reasons for having let the bill die. (Richardson,
II, 638-39.)
[1424] Marshall to Story, Aug. 2, 1832, _Proceedings, Mass. Hist. Soc._
2d Series, XIV, 350.
[1425] Marshall to Story, Dec. 3, 1834, _Proceedings, Mass. Hist. Soc._
2d Series, XIV, 359.
The outspoken and irritable Kent expressed the conservatives' opinion of
Jackson almost as forcibly as Ames stated their views of Jefferson: "I
look upon Jackson as a detestable, ignorant, reckless, vain and
malignant Tyrant.... This American Elective Monarchy frightens me. The
Experiment, with its foundations laid on universal Suffrage and an
unfettered and licentious Press is of too violent a nature for our
excitable People. We have not in our large cities, if we have in our
country, moral firmness enough to bear it. _It racks the machine too
much._" (Kent to Story, April 11, 1834, Story MSS. Mass. Hist. Soc.) In
this letter Kent perfectly states Marshall's convictions, which were
shared by nearly every judge and lawyer in America who was not "in
politics."
[1426] See _supra_, 420.
[1427] _Annals_, 18th Cong. 1st Sess. 2097.
[1428] _Annals_, 18th Cong. 1st Sess. 2163.
[1429] _Ib._ 2208.
[1430] _Debates_, 20th Cong. 1st Sess. 746.
[1431] _Ib._ 2431.
[1432] _Ib._ 2434.
[1433] _Ib._ 2435.
[1434] _Debates_, 20th Cong. 1st Sess. 2437.
[1435] This was the plan of George McDuffie. Calhoun approved it.
(Houston: _A Critical Study of Nullification in South Carolina_, 70-71.)
[1436] _Ib._
[1437] _Ib._ 75.
[1438] Calhoun's "Exposition" was reported by a special committee of the
South Carolina House of Representatives on December 19, 1828. It was not
adopted, however, but was printed, and is included in _Statutes at Large
of South Carolina_, edited by Thomas Cooper, I, 247-73.
[1439] Jefferson to Giles, Dec. 26, 1825, _Works_: Ford, XII, 425-26.
[1440] Niles, XXV, 48.
[1441] See Phillips: _Georgia and State Rights_, in _Annual Report, Am.
Hist. Ass'n_ (1901), II, 71.
[1442] Resolution of Dec. 27, 1827, _Laws of Georgia, 1827_, 249; and
see Phillips, 72.
[1443] Act of Dec. 20, _Laws of Georgia, 1828_, 88-89.
[1444] Parton: _Jackson_, III, 272.
[1445] Phillips, 72.
[1446] Act of Dec. 22, _Laws of Georgia, 1830_, 114-17.
[1447] Act of Dec. 23, _ib._ 118; Dec. 21, _ib._ 127-43; Dec. 22, _ib._
145-46
[1448] Wirt to Carr, June 21, 1830, Kennedy, II, 292-93.
[1449] See _Debates_, 21st Cong. 1st Sess. 309-57, 359-67, 374-77,
994-1133. For the text of this bill as it passed the House see _ib._
1135-36. It became a law May 28, 1830. (_U.S. Statutes at Large_, IV,
411.) For an excellent account of the execution of this measure see
Abel: _The History of the Events Resulting in Indian Consolidation West
of the Mississippi River, Annual Report, Am. Hist. Ass'n_, 1906, I,
381-407. This essay, by Dr. Anne Héloise Abel, is an exhaustive and
accurate treatment of the origin, development, and execution of the
policy pursued by the National and State Governments toward the Indians.
Dr. Abel attaches a complete bibliography and index to her brochure.
[1450] 5 Peters, 1.
[1451] Marshall to Carr, 1830, Kennedy, II, 296-97.
As a young man Marshall had thought so highly of Indians that he
supported Patrick Henry's plan for white amalgamation with them. (See
vol. I, 241, of this work.) Yet he did not think our general policy
toward the Indians had been unwise. They were, he wrote Story, "a fierce
and dangerous enemy whose love of war made them sometimes the
aggressors, whose numbers and habits made them formidable, and whose
cruel system of warfare seemed to justify every endeavour to remove them
to a distance from civilized settlements. It was not until after the
adoption of our present government that respect for our own safety
permitted us to give full indulgence to those principles of humanity and
justice which ought always to govern our conduct towards the aborigines
when this course can be pursued without exposing ourselves to the most
afflicting calamities. That time, however, is unquestionably arrived,
and every oppression now exercised on a helpless people depending on our
magnanimity and justice for the preservation of their existence
impresses a deep stain on the American character. I often think with
indignation on our disreputable conduct (as I think) in the affair of
the Creeks of Georgia." (Marshall to Story, Oct. 29, 1829, _Proceedings,
Mass. Hist. Soc._ 2d Series, XIV, 337-38.)
[1452] Niles, XXXIX, 338.
[1453] _Ib._ 353.
[1454] _Memoirs, J. Q. A._: Adams, VIII, 262-63.
[1455] The argument for the Cherokee Nation was made March 12 and 14,
1831.
[1456] 5 Peters, 15.
[1457] 5 Peters, 16-17.
[1458] _Ib._ 17-18.
[1459] 5 Peters, 20. Justice Smith Thompson dissented in an opinion of
immense power in which Story concurred. These two Justices maintained
that in legal controversies, such as that between the Cherokees and
Georgia, the Indian tribe must be treated as a foreign nation. (_Ib._
50-80.)
Thompson's opinion was as Nationalist as any ever delivered by Marshall.
It well expressed the general opinion of the North, which was vigorously
condemnatory of Georgia as the ruthless despoiler of the rights of the
Indians and the robber of their lands.
[1460] See _supra_, 121-25.
[1461] Phillips, 79.
[1462] See McMaster, VI, 47-50.
[1463] Phillips, 81.
[1464] _Ib._ 80-81.
[1465] 6 Peters, 534-35.
[1466] Story to his wife, Feb. 26, 1832, Story, II, 84.
[1467] 6 Peters, 536.
[1468] _Ib._ 537-42.
[1469] _Ib._ 542.
[1470] _Ib._ 542-61
[1471] See vol. III, 504-13, of this work.
[1472] 6 Peters, 561-63.
[1473] Story to Ticknor, March 8, 1832, Story, II, 83.
[1474] Lumpkin's Message to the Legislature, Nov. 6, 1832, as quoted in
Phillips, 82.
[1475] Greeley: _The American Conflict_, I, 106; and see Phillips, 80.
[1476] When the Georgia Legislature first met after the decision of the
Worcester case, acts were passed to strengthen the lottery and
distribution of Cherokee lands (Acts of Nov. 14, 22, and Dec. 24, 1832,
_Laws of Georgia, 1832_, 122-25, 126, 127) and to organize further the
Cherokee territory under the guise of protecting the Indians. (Act of
Dec. 24, 1832, _ib_. 102-05.) Having demonstrated the power of the State
and the impotence of the highest court of the Nation, the Governor of
Georgia, one year after Marshall delivered his opinion, pardoned
Worcester and Butler, but not without protests from the people.
Two years later, Georgia's victory was sealed by a final successful
defiance of the Supreme Court. One James Graves was convicted of murder;
a writ of error was procured from the Supreme Court; and a citation
issued to Georgia as in the case of George Tassels. The high spirit of
the State, lifted still higher by three successive triumphs over the
Supreme Court, received the order with mingled anger and derision.
Governor Lumpkin threatened secession: "Such attempts, if persevered in,
will eventuate in the dismemberment and overthrow of our great
confederacy," he told the Legislature. (Governor Lumpkin's Special
Message to the Georgia Legislature, Nov. 7, 1834, as quoted in Phillips,
84.)
The Indians finally were forced to remove to the Indian Territory. (See
Phillips, 83.) Worcester went to his Vermont home.
[1477] _Debates_, 21st Cong. 1st Sess. 58. The debate between Webster
and Hayne occurred on a resolution offered by Senator Samuel Augustus
Foot of Connecticut, "that the Committee on Public Lands be instructed
to inquire into the expediency of limiting for a certain period the
sales of public lands," etc. (_Ib._ 11.) The discussion of this
resolution, which lasted more than three months (see _ib._ 11-302),
quickly turned to the one great subject of the times, the power of the
National Government and the rights of the States. It was on this
question that the debate between Webster and Hayne took place.
[1478] _Ib._ 64. Compare with Marshall's language in Cohens _vs._
Virginia, _supra_, 355.
[1479] _Debates_, 21st Cong. 1st Sess. 73.
[1480] See Marshall's statement of this principle, _supra_, 293, 355.
[1481] _Debates_, 21st Cong. 1st Sess. 74.
This was the Constitutional theory of the Nationalists. As a matter of
fact, it was not, perhaps, strictly true. There can be little doubt that
a majority of the people did not favor the Constitution when adopted by
the Convention and ratified by the States. Had manhood suffrage existed
at that time, and had the Constitution been submitted directly to the
people, it is highly probable that it would have been rejected. (See
vol. I, chaps, IX-XII, of this work.)
[1482] _Debates_, 21st Cong. 1st Sess. 76. See chap, III, vol. III, of
this work.
[1483] _Debates_, 21st Cong. 1st Sess. 78.
[1484] _Ib._ See Marshall's opinion in Cohens _vs._ Virginia, _supra_,
347-57.
[1485] _Debates_, 21st Cong. 1st Sess. 80.
[1486] Niles, XXXIX, 118.
[1487] _Ib._ 330.
[1488] _Debates_, 21st Cong. 1st Sess. 287.
[1489] _Ib._ 285.
[1490] Marshall to Johnston, May 22, 1830, MSS. "Society Collection,"
Pa. Hist. Soc.
[1491] Madison to Everett, Aug. 28, 1830, _Writings_: Hunt, IX, 383-403.
[1492] _North American Review_ (1830), XXXI, 537-46.
[1493] Marshall to Story, Oct. 15, 1830, _Proceedings, Mass. Hist. Soc._
2d Series, XIV, 342-43.
[1494] Jackson to the Committee, June 14, 1831, Niles, XL, 351.
[1495] _State Doc. Fed. Rel._: Ames, 167-68.
[1496] Marshall to Story, Aug. 2, 1832, _Proceedings, Mass. Hist. Soc._
2d Series, XIV, 350.
[1497] Same to same, Sept. 22, 1832, _ib._ 351-52.
[1498] Niles, XLII, 387.
[1499] _Ib._ 388.
[1500] Under Act of Oct. 26, 1832, _Statutes at Large of South
Carolina_: Cooper, I, 309-10.
[1501] _Statutes at Large of South Carolina_: Cooper, I, 329-31.
[1502] _Ib._ 434-45.
[1503] _Ib._ 444-45; also Niles, XLIII, 219-20.
[1504] Marshall to Peters, Dec. 3, 1832, Peters MSS. Pa. Hist. Soc.
[1505] See _supra_, footnote to 115.
[1506] Richardson, II, 640-56; Niles, XLIII, 260-64.
[1507] Story to his wife, Jan. 27, 1838, Story, II, 119.
[1508] Niles, XLIII, 266-67.
[1509] _Ib._ 287.
[1510] _Ib._
[1511] _Statutes at Large of South Carolina_: Cooper, I, 355.
[1512] _Ib._ 356-57.
[1513] _Statutes at Large of South Carolina_: Cooper, I, 362.
[1514] _Ib._ 360.
[1515] _Ib._ 370.
[1516] December 20, the same day that Hayne's Proclamation appeared.
[1517] _Statutes at Large of South Carolina_: Cooper, I, 271-74.
[1518] _Ib._ VIII, 562-64.
[1519] _Ib._ 562-98.
[1520] Parton: _Jackson_, III, 460-61, 472; Bassett: _Life of Andrew
Jackson_, 564; MacDonald: _Jacksonian Democracy_, 156.
[1521] Parton: _Jackson_, III, 459.
[1522] Niles, XLIII, 312.
[1523] _Ib._ 332.
[1524] Parton: _Jackson_, III, 472.
[1525] Richardson, II, 598-99.
[1526] Niles, XLIII, 275.
[1527] _Ib._
[1528] _Ib._ 276.
[1529] Niles, XLIII, 394-96. The resolutions, as adopted, provided for
only one commissioner. (See _infra_, 573.)
[1530] _Writings and Speeches of Daniel Webster_ (Nat. ed.) XIII, 40-42.
[1531] Marshall to Story, Dec. 25, 1832, _Proceedings_, _Mass. Hist.
Soc._ 2d Series, XIV, 352-54.
[1532] Niles, XLIII, 396-97; also _Statutes at Large of South Carolina_:
Cooper, I, 381-83.
[1533] Niles, XLIII, 397. For the details of Leigh's mission see _ib._
377-93; also _Statutes at Large of South Carolina_: Cooper, I, 384-94.
[1534] Niles, XLIII, 380-82.
[1535] See Parton: _Jackson_, III, 475-82.
[1536] Marshall to Story, April 24, 1833, _Proceedings, Mass. Hist.
Soc._ 2d Series, XIV, 356-57.
[1537] _Ib._
[1538] Same to same, Nov. 16, 1833, _ib._ 358.
[1539] Marshall to Story, June 3, 1833, _Proceedings, Mass. Hist. Soc._
2d Series, XIV, 358.
[1540] Story ends his _Commentaries on the Constitution of the United
States_ by a fervent, passionate, and eloquent appeal for the
preservation, at all hazards, of the Constitution and the Union.
[1541] Marshall to Story, July 31, 1833, Story, II, 135-36.
[1542] Marshall to Story, Oct. 6, 1834, Story, II, 172-73.
[1543] Story to his wife, Jan. 20, 1833, _ib._ 116.
[1544] _Ib._ 117.
[1545] Story to his wife, Jan. 20, 1833, Story, II, 116.
[1546] July 4, 1826.
[1547] Jefferson's attacks on Marshall in the X. Y. Z. affair. (See vol.
II, 359-63, 368-69, of this work.)
[1548] Marshall to Major Henry Lee, Jan. 20, 1832, MSS. Lib. Cong. In no
collection, but, with a few unimportant letters, in a portfolio marked
"M," sometimes referred to as "Marshall Papers."
[1549] _Green Bag_, VIII, 463.
[1550] Marshall to Story, July 3, 1829, _Proceedings, Mass. Hist Soc._
2d Series, XIV, 340.
[1551] Story to Marshall, January, 1833, Story, II, 132-33. This letter
appears in Story's _Commentaries on the Constitution_, immediately after
the title-page of volume I.
Story's perfervid eulogium did not overstate the feeling--the
instinct--of the public. Nathan Sargent, that trustworthy writer of
reminiscences, testifies that, toward the end of Marshall's life, his
name had "become a household word with the American people implying
greatness, purity, honesty, and all the Christian virtues." (Sargent, I,
299.)
[1552] Briscoe _vs._ The Commonwealth's Bank of the State of Kentucky, 8
Peters, 118 _et seq._
[1553] See _supra_, 509-13.
[1554] Act of Dec. 25, _Laws of Kentucky, 1820_, 183-88.
[1555] The Mayor, Aldermen and Commonalty of the City of New York _vs._
Miln, 8 Peters, 121 _et seq._
[1556] 11 Peters, 104. This was the first law against unrestricted
immigration.
[1557] 8 Peters, 122.
[1558] These cases were not decided until 1837, when Roger Brooke Taney
of Maryland took his seat on the bench as Marshall's successor. Philip
Pendleton Barbour of Virginia succeeded Duval. Of the seven Justices,
only one disciple of Marshall remained, Joseph Story.
In the New York case the court held that the State law was a local
police regulation. (11 Peters, 130-43; 144-53.) Story dissented in a
signally able opinion of almost passionate fervor.
"I have the consolation to know," he concludes, "that I had the entire
concurrence ... of that great constitutional jurist, the late Mr. Chief
Justice Marshall. Having heard the former arguments, his deliberate
opinion was that the act of New York was unconstitutional, and that the
present case fell directly within the principles established in the case
of Gibbons v. Ogden." (_Ib._ 153-61.)
In the Kentucky Bank case, decided immediately after the New York
immigrant case, Marshall's opinion in Craig _vs._ Missouri was
completely repudiated, although Justice McLean, who delivered the
opinion of the court (_ib._ 311-28), strove to show that the judgment
was within Marshall's reasoning.
Story, of course, dissented, and never did that extraordinary man write
with greater power and brilliancy. When the case was first argued in
1834, he said, a majority of the court "were decidedly of the opinion"
that the Kentucky Bank Law was unconstitutional. "In principle it was
thought to be decided by the case of Craig v. The State of Missouri."
Among that majority was Marshall--"a name never to be pronounced without
reverence." (_Ib._ 328.)
In closing his great argument, Story says that the frankness and fervor
of his language are due to his "reverence and affection" for Marshall.
"I have felt an earnest desire to vindicate his memory.... I am sensible
that I have not done that justice to his opinion which his own great
mind and exalted talents would have done. But ... I hope that I have
shown that there were solid grounds on which to rest his exposition of
the Constitution. _His saltem accumulem donis, et fungar inani munere._"
(11 Peters, 350.)
[1559] Lessee of Samuel Smith _vs._ Robert Trabue's Heirs, 9 Peters,
4-6; U.S. _vs._ Nourse, _ib._ 11-32; Caldwell _et al. vs._ Carrington's
Heirs, _ib._ 87-105; Bradley _vs._ The Washington, etc. Steam Packet Co.
_ib._ 107-16; Delassus _vs._ U.S. _ib._ 118-36; Chouteau's Heirs _vs._
U.S. _ib._ 137-46; U.S. _vs._ Clarke, _ib._ 168-70; U.S. _vs._. Huertas,
_ib._ 171-74; Field et _al. vs._ U.S. _ib._ 182-203; Mayor, etc. of New
Orleans _vs._ De Armas and Cucullo, _ib._. 224-37; Life and Fire Ins.
Co. of New York _vs._ Adams, _ib._ 571-605.
[1560] _Ib._ 711-63.
[1561] 9 Peters, 723.
[1562] Story to Fay, March 2, 1835, Story, II, 193.
[1563] Story to Peters, May 20, 1835, _ib._ 194.
[1564] Kent's Journal, May 16, 1835, Kent MSS. Lib. Cong.
[1565] Smith to Kent, June 13, 1835, Kent MSS. Lib. Cong.
[1566] Randolph: _Physick_, 100-01.
[1567] Story to Peters, June 19, 1835, Story, II, 199-200.
[1568] Chapman to Brockenbrough, July 6, 1835, quoted in the Richmond
_Enquirer_, July 10, 1835. Marshall died "at the Boarding House of Mrs.
Crim, Walnut street below Fourth." (Philadelphia _Inquirer_, July 7,
1835.) Three of Marshall's sons were with him when he died. His eldest
son, Thomas, when hastening to his father's bedside, had been killed in
Baltimore by the fall upon his head of bricks from a chimney blown down
by a sudden and violent storm. Marshall was not informed of his son's
death.
[1569] Terhune, 98.
[1570] Philadelphia _Inquirer_, July 7, 1835.
[1571] Niles, XLVIII, 322.
[1572] Richmond _Enquirer_ July 10, 1835.
[1573] _Ib._
[1574] Richmond _Whig and Public Advertiser_, July 10, 1835.
[1575] Richmond _Enquirer_, July 14, 1835.
[1576] See Sargent, I, 299. If the statements in the newspapers and
magazines of the time are to be trusted, even the death of Jefferson
called forth no such public demonstrations as were accorded Marshall.
[1577] Niles, XLVIII, 321.
[1578] Undoubtedly William Leggett, one of the editors. See Leggett: _A
Collection of Political Writings_, II, 3-7.
[1579] As reprinted in _Richmond Whig and Public Advertiser_, July 14,
1835.
[1580] Richmond _Enquirer_, July 21, 1835.
[1581] _Ib._
[1582] _Ib._ July 17, 1835.
[1583] Alexandria _Gazette_, Aug. 13, 1835, reprinted in the Richmond
_Enquirer_, Aug. 21, 1835.
[1584] Magruder: _John Marshall_, 282.
[1585] Story, II, 206.
THE END
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_World's Work._
GENERAL INDEX
GENERAL INDEX
Abel, Anne H., monograph on Indian consolidation, =4=, 541 _n._
Adair, John, and Burr Conspiracy, =3=, 291, 292, 314;
career, 292 _n._, 336 _n._;
Wilkinson's letter to, 314, 336;
arrested by Wilkinson, 335, 336, 337 _n._;
suit against Wilkinson, 336 _n._;
brought to Baltimore, released, 344;
statement, 488 _n._;
and Green _vs._ Biddle, =4=, 381.
Adams, Abijah, trial, =3=, 44-46.
Adams, Henry, on M. in Jonathan Robins case, =2=, 458;
on Pickering impeachment, =3=, 143;
on isolation of Burr, 280;
on Burr and Merry, 289;
on American law of treason, 401 _n._;
on impressment, =4=, 8 _n._;
on causes of War of 1812, 29 _n._
Adams, John, on drinking, =1=, 23 _n._;
library, 25;
on Philadelphia campaign, 102;
belittles Washington (1778), 123 _n._;
story of expected kingship, 291;
on American and French revolutions, =2=, 2 _n._;
and title for President, 36;
on Hamilton's financial genius, 61 _n._;
and policy of neutrality, 92;
M. on, 214;
on M., 218;
address to Congress on French affairs (1797), French demand of
withdrawal of it, 225, 226, 316;
appointment of X. Y. Z. Mission, 226-29;
and X. Y. Z. dispatches, 336, 338;
offers M. Associate Justiceship, 347, 378, 379;
Federalist toast to, 349 _n._;
statement of French policy (1798), 351;
and M.'s journal of mission, 366;
M. on foreign policy, 403;
and prosecutions under Sedition Law, 421;
reopening of French negotiations, political result, 422-28;
pardons Fries insurrectionists, political effect, 429-31, =3=, 36;
absence from Capital, =2=, 431, 493;
address to Congress (1799), 433;
M.'s reply of House, 433-36;
Jonathan Robins case, 458-75;
disruption of Cabinet, 485-88;
temperament contrasted with Washington's, 486, 488;
appointment of M. as Secretary of State, 486, 489-93;
Republican comment on reorganized Cabinet, 491, 494;
pardon of Williams, 495;
and Bowles in Florida, 497;
and British debts dispute, 503, 505;
and possible failure of new French negotiations, 522;
M. writes address to Congress (1800), 530, 531;
eulogy by _Washington Federalist_, 532 _n._;
and enlargement of Federal Judiciary, 547;
and Chief Justiceship, appointment of M., 552-54, 558;
continues M. as Secretary of State, 558;
midnight appointments, 559-62, =3=, 57, 110;
magnanimous appointment of Wolcott, =2=, 559, 560;
Jefferson and midnight appointments, =3=, 21;
Republican seditious utterances, 30, 33, 37, 42 _n._;
and subpoena, 33, 86;
and partisan appointments, 81;
on Bayard's Judiciary speech (1802), 82;
on John Randolph, 171;
and Chase, 211 _n._;
and M's biography of Washington, 257;
on his situation as President, 258 _n._;
biography of Washington on, 263 _n._;
on Embargo controversy, =4=, 15;
on banking mania, 176, 178;
in Massachusetts Constitutional Convention (1820), 471.
_See also_ Elections (1800).
Adams, John Q., Publicola papers, =2=, 15-19;
on vandalism of French Revolution, 32 _n._;
on American support of French Revolution, 39;
on economic division on policy of neutrality, 97 _n._;
on dangers of war with England (1795), 110 _n._, 112 _n._;
on necessity of neutrality, 119 _n._;
Minister to Prussia, 229 _n._;
on France and American politics, 279 _n._;
on Washington streets (1818), =3=, 5;
on Federalist defeat, 12;
on impeachment plans (1804), 157-60, 173;
on impeachment of Pickering, 166, 167;
on articles of impeachment against Chase, 172;
on Chase trial, 190 _n._, 191 _n._;
on Randolph's speech at trial, 216 _n._;
votes to acquit Chase, 218;
on Burr's farewell address, 274 _n._;
on Wilkinson, 341 _n._;
on Eaton's story on Burr, 345;
on Swartwout and Bollmann trial, 346;
report on Burr conspiracy and trial, 541-44;
report and courtship of administration, 541 _n._;
later support of M., 542 _n._;
on Giles's speech on report, 544;
and Yazoo claims, attorney in Fletcher _vs._ Peck, 582, 585, 586;
and Justiceship, =4=, 110;
on crisis of 1819, 205;
M. and election of 1828, 462-65;
on Georgia-Cherokee controversy, 543.
Adams, Mrs. John Q., drawing room, =4=, 461.
Adams, Samuel, and Ratification, =1=, 348.
Adams, Thomas, sedition, =3=, 44.
Addison, Alexander, charge on Sedition Act, =2=, 385 _n._;
and British precedents, =3=, 28 _n._;
as judge, denounces Republicans, 46;
on the stump, 47;
on declaring acts void, 117;
impeachment, 164.
Admiralty, M. on unfairness of British courts, =2=, 511, 512;
Story as authority, =4=, 119;
jurisdiction in Territories, 142-44.
_See also_ International law; Prize.
_Adventure_ and Her Cargo case, =4=, 119.
Agriculture, M. on French (1797), =2=, 267;
M.'s interest, =4=, 63.
Albany Plan, =1=, 9 _n._
Alexander, James, and Burr conspiracy, arrested, =3=, 334;
freed, 343.
Alexandria, Va., tribute to M., =4=, 592.
_Alexandria Advertiser_, campaign virulence (1800), =2=, 529 _n._
Alien and Sedition Acts, fatality, =2=, 361;
provisions, 381;
Hamilton on danger in, 382;
Federalist attempts to defend, 382;
Republican assaults, unconstitutionality, 383;
Washington's defense, 384, 385;
Addison's charge, 385;
M.'s views of expediency, 386, 388, 389, 577;
Federalists and M.'s views, 389-94, 406;
M. on motives of Virginia Republicans, 394, 407;
Jefferson's plan of attack, 397, 399;
Kentucky Resolutions, 397-99;
Virginia Resolutions, 399, 400;
Madison's address of Virginia Legislature, 400, 401;
M.'s address of the minority of the Legislature, 402-06;
M. on constitutionality, 404;
Virginia military measures, 406, 408;
prosecutions, conduct of Federalist judges, 420, 421, =3=, 29-43,
86, 189-96, 202-05, 214;
repeal of section, M.'s vote, =2=, 451;
as issue (1800), 520, 521;
State trials, =3=, 43-47;
resulting issues, 47-49;
M.'s position quoted by Republicans, 106.
Allbright, Jacob, testimony in Burr trial, =3=, 425-27, 465, 488.
Allegiance. _See_ Expatriation; Naturalization.
Allen, Nathaniel, Granville heirs case, =4=, 154.
Alston, Aaron Burr, death, =3=, 538 _n._
Alston, Joseph, at trial of Burr, =3=, 479, 481.
Alston, Theodosia (Burr), and trial of father, =3=, 381, 479;
death, 538 _n._
Ambler, Edward, courtship, =1=, 150 _n._;
country place, 164 _n._
Ambler, Eliza, on Arnold's invasion, =1=, 144 _n._
_See also_ Carrington, Eliza.
Ambler, Jacquelin, career, =1=, 149, 160;
and M., 170;
and M.'s election to Council of State, 209 _n._;
M.'s neighbor, =2=, 172.
Ambler, John, wealth, =1=, 166;
marries M.'s sister, 166 _n._;
grand juror on Burr, =3=, 413 _n._
Ambler, Mary Willis, family, =1=, 148-50;
meeting with M., 151, 152;
courtship, 153, 159, 160, 163;
marriage, 165, 166.
_See also_ Marshall, Mary W.
Ambler, Richard, immigrant, =1=, 165.
_Amelia_ case, =3=, 16, 17.
Amendment of constitutions, M.'s idea, =1=, 216.
Amendment of Federal Constitution,
demand for previous, =1=, 245, 405, 412, 418, 423, 428;
expected, 251;
proposed by Massachusetts, 348;
Randolph's support of recommendatory, 377, 378;
method, in Ratification debate, 389;
Virginia contest over recommendatory, 468-75;
character of Virginia recommendations, 477;
history of first ten amendments, =2=, 57-59;
Eleventh, 84 _n._, =3=, 554, =4=, 354, 385, 387-91;
proposals caused by Jay Treaty, =2=, 141-43;
Twelfth, 533 _n._;
proposed, on removal of judges, =3=, 167, 221, 389;
proposed, for recall of Senators, =3=, 221;
proposed, to restrict appellate jurisdiction of Supreme Court,
=4=, 323, 325, 371, 378;
proposed, to limit judicial tenure, 517 _n._
American Academy of Arts and Sciences, M.'s membership, =4=, 89.
American Colonization Society, M. and, =4=, 473-76.
American Insurance Co. _vs._ Canter, right of annexation, territorial
government, =3=, 148 _n._, =4=, 142-44.
American Philosophical Society, M.'s membership, =4=, 89.
American Revolution,
influence of Bacon's Rebellion and Braddock's defeat, =1=, 6, 9;
Virginia and Stamp Act, 61-65;
Virginia Resolutions for Arming and Defense (1775), 65, 66;
preparation in back-country Virginia, 69-74;
Dunmore's Norfolk raid, battle of Great Bridge, 74-79;
condition of the army, militia, 80-88, 92;
effect of State sovereignty, 82, 88-90, 100, 146;
Brandywine campaign, 92-98;
campaign before Philadelphia, 98-102;
Germantown, 102-04;
desperate state, 104, 105;
final movements before Philadelphia, 105-07;
efforts to get Washington to abandon cause, 105, 130, 131;
Philadelphia during British occupation, 108-10;
Valley Forge, 110-20, 131;
treatment of prisoners, 115;
Washington as sole dependence, 121, 124;
Conway Cabal, 121-23;
Washington and weakness of Congress, 124-26, 131;
Jefferson accused of shirking, 126-30;
French alliance, relaxing effect, 133, 138, 143;
Monmouth campaign, 134-38;
Stony Point, 138-42;
Pawles Hook, 142;
Arnold in Virginia, Jefferson's conduct, 143;
depreciated currency and prices, 167-69;
influence on France, =2=, 1;
M.'s biography of Washington on, =3=, 244, 245, 253-56.
_See also_ Continental Congress.
Ames, Fisher, on democratic societies, =2=, 40;
on contest over funding, 61 _n._;
on contest over National Capital, 63 _n._;
on lack of national feeling, 67, 74;
on Republican discipline, 81;
on British-debts cases, 83 _n._;
on crisis with England (1794), 109;
on Giles, 129;
and M. (1796), 198, 199;
on effect of X. Y. Z. dispatches, 341;
attack on M.'s views of Alien and Sedition Acts, 390;
on reopening of French negotiations, 423, 426-28;
on Adams's temperament, 489 _n._;
on Adams's advances to Republicans (1800), 519;
on advance of Republicans, 519;
on attack on standing army, 520 _n._;
on character of parties, 521 _n._;
opposition to Adams, 527;
on campaign virulence of newspapers, 530;
on resumption of European war, =3=, 14;
on Jefferson and Judiciary, 53;
and secession, 53 _n._, 97, 98 _n._;
on repeal of Judiciary Act, 94;
on Louisiana Purchase, 150;
on Chase impeachment, 174;
on Yazoo lands, 568;
as British partisan, =4=, 5;
and M.'s logic, 85.
Ames, Nathaniel, attack on Washington, =2=, 117 _n._
Amory, Rufus G., practitioner before M., =4=, 237 _n._
Amsterdam, decline of trade (1797), =2=, 233.
Amusements, in colonial Virginia, =1=, 22;
of period of Confederation, 283;
M.'s diversions, =2=, 182-85, =4=, 66, 76-80.
Anarchy, spirit, =1=, 275, 284, 285, 289;
as spirit of Shays's Rebellion, 299, 300;
Jefferson's defense, 302-04.
_See also_ Government.
Ancestry, M.'s, =1=, 9-18.
Anderson, John E., pamphlet on Yazoo lands, =3=, 573 _n._
Anderson, Joseph, of Smith committee, =3=, 541 _n._
Anderson, Richard, and Mary Ambler, =1=, 164.
André, John, in Philadelphia society, =1=, 110.
Andrews, ----, and Jay Treaty, =2=, 132.
Andrews, Robert, professor at William and Mary, =1=, 155 _n._
Annapolis Convention, and commercial regulation, =4=, 422.
Annexation, constitutionality, =3=, 147, =4=, 143.
_Antelope_ case, =4=, 476.
Antwerp, trade (1797), =2=, 233;
M. on conditions, 246, 247.
Appellate jurisdiction of Supreme Court over State acts, =4=, 156-67,
347-57;
proposed measures to restrict or repeal, 323, 325, 371, 379, 380,
514-17.
_See also_ Declaring acts void; Supreme Court.
Aristocracy, of colonial Virginia, =1=, 25-27;
after the Revolution, 277.
Armed Neutrality, M.'s biography of Washington on, =3=, 255.
Armstrong, John, and Pickering impeachment, =3=, 168 _n._;
and St. Cloud Decree, =4=, 37.
Army, condition of Revolutionary, =1=, 80-86, 92;
sickness, 86, 116;
discipline, 87, 120;
lack of training, 88 _n._;
lack of equipment, 97, 99;
at Valley Forge, 110-20, 131, 132;
improved commissary, 133;
Steuben's instruction, 133;
size (1778), 138 _n._;
light infantry, 139 _n._;
arguments during Ratification on standing, 334, 342, 346, 389,
435, 477;
Washington commands (1798), =2=, 357, =3=, 258 _n._;
M. and officers for, =2=, 420;
debate on reduction (1800), 436, 439, 476-81;
as issue (1800), 520.
_See also_ Preparedness.
Arnold, Benedict, invasion of Virginia, =1=, 143;
M.'s biography of Washington on, =3=, 255.
Assumption of State debts, contest, =2=, 61-64;
opposition in Virginia, 62, 65-69;
question of constitutionality, 66;
political results, 82.
_Atalanta_ case, =4=, 142 _n._
Athletics, M.'s prowess, =1=, 73, 118, 132.
Attainder, Philips case, =1=, 393, 398, 411.
Attorney-General, M. declines office, =2=, 122, 123;
Henry declines, 125;
Breckenridge as, =3=, 58 _n._;
Wirt as, =4=, 239.
Augereau, Pierre F. C., and 18th Fructidor, =2=, 246 _n._
_Augusta Chronicle_, on Yazoo frauds, =3=, 561.
_Aurora_, abuse of Washington, =2=, 162, 163;
on M.'s appointment to X. Y. Z. Mission, 218, 219;
and X. Y. Z. dispatches, 337, 338;
on M.'s reception, 345, 351;
on Addison's charge on Sedition Act, 385 _n._;
Curtius letters on M., 395, 396;
on pardon of Fries, 430 _n._;
on M. and powers of territorial Governor, 446 _n._;
and Disputed Elections Bill, 454;
on Jonathan Robins case, 460, 471-73;
on M.'s appointment as Secretary of State, 489-91;
on the reorganized Cabinet, 491;
attack on Pickering, 491 _n._;
on new French negotiations, 522 _n._;
campaign virulence (1800), 529 _n._;
on Mazzei letter, 538 _n._;
on Judiciary Bill, 549 _n._, 555, 561 _n._;
on M.'s appointment as Chief Justice, 556;
on Judiciary, =3=, 159 _n._;
attack on M. during Burr trial, 532-35.
Austen, Jane, M. as reader, =4=, 79.
Babcock, Kendric C., on Federalists and War of 1812, =4=, 48 _n._
Bache, Benjamin F., attacks on Washington, =2=, 93 _n._
_See also_ _Aurora_.
Bacon, John, and Kentucky and Virginia Resolutions, =3=, 43;
in Judiciary debate (1802), 91.
Bacon's Rebellion, influence, =1=, 6.
Bailey, Theodorus, resigns from Senate, =3=, 121 _n._
Baily, Francis, on hardships of travel, =1=, 264 _n._.
Baker, John, Hite _vs._ Fairfax, =1=, 191, 193;
Ware _vs._ Hylton, =2=, 188;
counsel for Burr, =3=, 407.
_Balaou._ _See_ _Exchange_.
Baldwin, ----, sedition trial, =3=, 42 _n._
Baldwin, ----, and Missouri question, =4=, 325.
Baldwin, Abraham, and Judiciary Act of 1789, =3=, 129.
Baldwin, Henry, practitioner before M., =4=, 237 _n._;
appointment to the Supreme Court, 510;
and M., 582;
and Briscoe _vs._ Bank and New York _vs._ Miln, 583;
escort to M.'s body, 588.
Ball, Burgess, on M. at Valley Forge, =1=, 120.
Baltimore, in 1794, =1=, 263;
and policy of neutrality, =2=, 94 _n._;
proposed removal of Federal Capital to, =3=, 8;
public tumult over Burr trial, 529, 535-40.
Baltimore _Marylander_, on M. and election of 1828, =4=, 463.
Bancroft, George, on M.'s biography of Washington, =3=, 270;
on M., =4=, 90.
Bangs, Edward, on Ratification contest, =1=, 341.
Bank of the United States,
first, Jefferson and Hamilton on constitutionality, =2=, 71-74;
hostility in Virginia, 84;
Virginia branch, 141;
M.'s investment, 199, 200;
as monopoly, =3=, 336, 338;
success, =4=, 171;
continued opposition, 171-73;
failure of recharter, machinations of State banks, 173-76.
Bank of the United States, second, charter, =4=, 179, 180;
and Localism, 191;
early mismanagement, 196;
its demands on State banks and reforms force crisis, 197-99;
early popular hostility, blamed for economic conditions, 198, 199,
206, 312;
movement to destroy through State taxation, 206-08;
attempt to repeal charter (1819), 288, 289;
Bonus Bill, 417, 418;
success and continued hostility to, 528, 529;
Mason affair, 529;
Jackson's war on, veto of recharter, 529-33;
Biddle's conduct, 529 _n._;
as monopoly, 531;
as issue in 1832, 532 _n._, 533;
M. on Jackson's war, 533, 535;
Jackson's withdrawal of deposits, 535.
_See also_ next title, and M'Culloch _vs._ Maryland; Osborn _vs._
Bank.
Bank of the United States _vs._ Dandridge, =4=, 482, 483.
Bank of Virginia, M. and, =2=, 174;
political power, =4=, 174;
refuses to redeem notes, 194.
Banking, effects of chaos (1818), =4=, 170, 171;
mania for State banks, their character and issues, 176-79, 181, 188;
and war finances, 177, 179;
and speculation, 181-84;
frauds, 184, 185;
resulting suits, 185, 198;
lack of regulation, 186;
private, 192;
depreciation of notes, no specie redemption, 192-95;
counterfeits, 195;
Bank of the United States forces crisis, 197-99;
distress, 204-06.
_See also_ preceding titles.
Bankruptcy, M. and National act, =2=, 481, 482;
lax State laws and fraud, =4=, 200-03.
_See also_ Ogden _vs._ Saunders; Sturges _vs._ Crowninshield.
Bannister, John, resigns from Council of State, =1=, 209.
Barbary Powers, M. and protection from, =2=, 499;
general tribute to, 499 _n._;
Eaton and war, =3=, 302 _n._, 303 _n._
Barbecue Club. _See_ Quoit Club.
Barbour, James, grand juror on Burr, =3=, 413 _n._;
counsel in Cohens _vs._ Virginia, =4=, 346;
on Missouri question, 341.
Barbour, Philip P., in debate on Supreme Court, =4=, 395;
in Virginia Constitutional Convention, 484;
in debate on State Judiciary, 494;
in debate on suffrage, 502 _n._;
appointment to Supreme Court, 584 _n._
Barlow, Joel, seditious utterances, =3=, 30;
to write Republican history of the United States, 228, 229, 265,
266;
and Decree of St. Cloud, =4=, 36, 50.
Barrett, Nathaniel, and Ratification, =1=, 342, 349.
Barron, James, _Chesapeake-Leopard_ affair, =3=, 475.
Bartlett, Ichabod, counsel in Dartmouth College case, =4=, 234.
Bassett, Richard, and Judiciary Act of 1789, =3=, 129.
Bastrop lands. _See_ Washita.
Batture litigation, =4=, 100-16.
Bayard, James A., on hardships of travel, =1=, 260;
on French Revolution, =2=, 32 _n._;
and Jonathan Robins case, 460;
on Adams's temperament, 488 _n._;
opposition to Adams, 517 _n._;
on Jefferson-Burr contest, 536, 545 _n._, 546 _n._;
on Washington (1804), =3=, 5 _n._;
on Federalists and Judiciary debate (1802), 71;
in debate, 72, 79-83;
appearance, 78;
on bill on sessions of Supreme Court, 95, 96;
on test of repeal of Judiciary Act, 123 _n._;
on Jefferson and impeachment plan, 160;
on Chase impeachment, 173;
and Chase trial, 185 _n._;
and attempt to suspend habeas corpus (1807), 347;
on J. Q. Adams's Burr Conspiracy report, 544.
Bayard _vs._ Singleton, =3=, 611.
Bayly, Thomas M., on M., =4=, 489 _n._
Beard, Charles A., on character of Framers, =1=, 255 _n._
Beaumarchais, Pierre A. Caron de, mortgage on M.'s land, =2=, 173;
American debt to, and X. Y. Z. Mission, 292-94, 310, 314 _n._,
317-20, 332, 366 _n._;
history of debt, 292 _n._
Bedford, Gunning, Jr.,
in Federal Convention, on declaring acts void, =3=, 115 _n._
Bee, Thomas, Jonathan Robins case, =2=, 458.
Beer Co. _vs._ Massachusetts, =4=, 279 _n._
Begon, Dennis M., _Exchange_ case, =4=, 122.
Belknap, Morris P., testimony in Burr trial, =3=, 490.
Bell, Samuel, and Dartmouth College case, =4=, 234, 253 _n._
Bellamy, ----,
as agent in X. Y. Z. Mission, =2=, 261-67, 272, 278, 293, 294.
Bellamy, Joseph, and Wheelock, =4=, 227.
Belligerency, of revolting provinces, =4=, 126-28.
Bellini, Charles, professor at William and Mary, =1=, 155 _n._
Bentham, Jeremy, and Burr, =3=, 537 _n._
Benton, Thomas H., duelist, =3=, 278 _n._;
counsel in Craig _vs._ Missouri, =4=, 512.
Berkeley, Sir William, M. on, =3=, 242 _n._
Berlin Decree, =4=, 6 _n._
Berrien, John M., practitioner before M., =4=, 237 _n._
Beverly, Munford, grand juror on Burr, =3=, 413 _n._
Biddeford, Me., and Ratification, =1=, 340.
Biddle, Nicholas, management of the Bank, =4=, 529;
conduct, 529 _n._
Biddle, Richard. _See_ Green _vs._ Biddle.
Bill of Rights, and Virginia's extradition act (1784), =1=, 238-41;
and National Government, 239;
contest over lack of Federal, 334, 439;
first ten Federal amendments, =2=, 57-59.
_See also_ Government.
Bingham, William, wealth, =2=, 202 _n._
Binghamton Bridge case, =4=, 280 _n._
Biography of Washington,
M. undertakes, financial motive, =2=, 211 _n._, =3=, 223, 224;
importance in life of M., 223;
estimate of financial return, negotiations with publishers, 224-27;
agreement, 227, 228;
delay in beginning, 227, 235;
M.'s desire for anonymity, 228, 236, 237;
Jefferson's plan to offset, 228, 229, 265, 266;
solicitation of subscriptions, postmasters as agents, 230, 234;
Weems as agent, popular distrust, 230-34, 252;
small subscription, 235;
list of subscribers, 235 _n._;
financial problem, change in contract, 236, 250, 251;
problems of composition, delay and prolixity, 236-39, 241, 246-49,
251;
publication of first two volumes, 239;
M. and praise and criticism, 240, 241, 245-47, 271;
revised edition, 241, 247, 247 _n._, 272;
character of first volumes, 242-45, 249;
royalty, 247, 251;
mistake in plan, compression of vital formative years, 249,
250, 258;
volumes on American Revolution, 253-56;
without political effect, 256, 257;
character of final volume (1783-99), 257-65;
Federalists on last volume, 265;
Jefferson on biography, 265-69;
other criticism, 269-71;
edition for school-children, 273 _n._
Bishop, Abraham, pamphlet on Yazoo lands, =3=, 570.
Bissel, Daniel, and Burr conspiracy, =3=, 361, 462.
Black, George, practitioner before M., =4=, 237 _n._
Blackstone, Sir William, M. and Commentaries, =1=, 56.
_Blackwood's Magazine_, on M.'s biography of Washington, =3=, 271.
Blain, ----, and Attorney-Generalship, =2=, 132.
Blair, John, Commonwealth _vs._ Caton, =3=, 611.
Blair, John D., at Barbecue Club, =2=, 183.
Bland, Theodoric, on Randolph's apostasy (1788), =1=, 378.
Blennerhassett, Harman, beginning of Burr's connection, =3=, 291;
joins enterprise, 301, 310, 313;
newspaper letters, 311;
island as center, gathering there, 324, 425-27, 484, 488-91;
attack by militia, flight, 325;
joins Burr, 361;
indicted for treason, 465;
on Martin's intemperance, 501 _n._;
attempt to seduce, 514;
_nolle prosequi_, 515, 524;
on Wilkinson at trial, 523 _n._;
on Jefferson's hatred of M., 525;
commitment for trial in Ohio, 527;
on M., 528, 531;
and Baltimore mob, 538;
Wirt's speech on, 616-18.
_See also_ Burr Conspiracy.
Blennerhassett, Mrs. Harman, warns Burr, =3=, 316.
Blockade, M.'s protest on paper, =2=, 511.
Blomfield, Samuel, =1=, 23 _n._
Bloomington, Ohio, bank (1820), =4=, 192 _n._
Boarding-houses at Washington (1801), =3=, 2, 7.
Bollmann, Justus E., takes Burr's letter to Wilkinson, =3=, 307;
career, 307 _n._
arrested, 332, 334;
brought to Washington, 343;
held for trial, 344-46;
discharged by Supreme Court, 346-57;
interview with Jefferson, Jefferson's violation of faith, 391, 392;
question of evidence and pardon, 392, 430, 431, 450-54;
not indicted, 466 _n._
Bonus Bill, Madison's veto, =4=, 418;
further attempt, 419.
Boone, Daniel, and British debts, =1=, 229 _n._
Boston, Jacobin enthusiasm, =2=, 35, 36;
protest on Jay Treaty, 115, 116;
Yazoo land speculation, =3=, 567.
Boston _Columbian Centinel_. _See_ _Columbian Centinel_.
_Boston Commercial Gazette_, on obligation of contracts, =3=, 558.
_Boston Daily Advertiser_,
on Dartmouth College case, =4=, 254 _n._, 255 _n._
_Boston Gazette_, on bribery in Ratification, =1=, 353 _n._;
on French Revolution, =2=, 5.
_Boston Gazette-Commercial and Political_,
on Republican Party (1799), =3=, 12.
_Boston Independent Chronicle_, on the Cincinnati, =1=, 293;
on Publicola papers, =2=, 19;
seditious utterances, =3=, 43-46;
on repeal of Judiciary Act, 94, 99;
on Marbury _vs._ Madison and impeachment, 112 _n._, 113 _n._
_Boston Palladium_, on repeal of Judiciary Act, =3=, 93;
threatens secession, 97.
Botetourt, Lord, fate of Virginia statue, =2=, 35.
Botta, Carlo G. G., Jefferson on history, =3=, 266.
Botts, Benjamin, counsel for Burr, =3=, 407;
and motion to commit Burr for treason, 415, 424;
on subpoena to Jefferson, 438;
on overt act, 497-500;
on popular hatred, 516.
Boudinot, Elias, on Adams for Chief Justice, =2=, 554.
Bowles, William A., M. and activity, =2=, 497-99.
Bowman _vs._ Middleton, =3=, 612.
Boyce, Robert, suit, =4=, 478.
Boyce _vs._ Anderson, =4=, 478.
Brackenridge, Hugh H., and Addison, =3=, 47 _n._
Braddock, Edward, defeat, =1=, 2-5;
reputation, 2 _n._;
effect of defeat on colonists, 5, 6, 9.
Bradford, William, Attorney-General, death, =2=, 122, 123.
Bradley, Stephen R., and Pickering impeachment, =3=, 168 _n._
at Chase trial, 183 _n._;
votes to acquit Chase, 218, 219.
Braintree, Mass., denounces lawyers, =3=, 23 _n._
Brandywine campaign, =1=, 93-98.
Brearly, David, Holmes _vs._ Walton, =3=, 611.
Breckenridge, John,
and Kentucky Resolutions, =2=, 398, 398 _n._, =3=, 58 _n._;
in debate on repeal of Judiciary Act of 1801, 58, 59, 66, 68-70;
Attorney-General, 58 _n._
Brig Wilson _vs._ United States, =4=, 428, 429.
Bright, Michael, and Olmstead case, =4=, 21.
Brightwell, Theodore, and Burr conspiracy, =3=, 367.
Brigstock, William, case, =2=, 464.
Briscoe _vs._ Bank of Kentucky,
facts, currency of State-owned bank, =4=, 582;
equal division of Supreme Court, 583, 584;
State upheld, Story voices M.'s dissent, 584 _n._
British debts,
conditions and controversy in Virginia, =1=, 215, 223-31;
amount in Virginia, 295 _n._;
in Ratification debate, 441, 444, 464;
before Federal courts, Ware _vs._ Hylton, =2=, 83, 186-92;
in Jay Treaty, 114, 121 _n._;
disruption of commission on, 500-02;
M. on disruption and compromise, 502-05;
settlement, =3=, 103.
Brockenbrough, John, grand juror on Burr, =3=, 413 _n._;
political control, =4=, 174;
and redemption of his bank's notes, 194;
and stock of Bank of the United States, 318.
Brooks, John, and Ratification, =1=, 347 _n._
Broom, James M., and Burr conspiracy, =3=, 358.
Brown, Adam, and Livingston steamboat monopoly, =4=, 411.
Brown, Alexander. _See_ Brown _vs._ Maryland.
Brown, Ethan A., counsel in Osborn _vs._ Bank, =4=, 385.
Brown, Francis, elected President of Dartmouth, =4=, 229;
and Kent, 258 _n._
Brown, Henry B., on Dartmouth College case, =4=, 280.
Brown, John, of R.I., and slave trade (1800), =2=, 449.
Brown, John, of Va. and Ky., on lack of patriotism (1780), =1=, 157;
on Wythe as professor, 158;
dinner to, =2=, 131 _n._;
and Pickering impeachment, =3=, 168 _n._;
Indiana Canal Company, 291 _n._;
and Burr conspiracy, 292.
Brown, Noah, and Livingston steamboat monopoly, =4=, 411.
Brown _vs._ Maryland, facts, =4=, 454;
counsel, 455;
M.'s opinion, 455-59;
State license on importers an import duty, 455-57;
and a regulation of foreign commerce, 457-59;
as precedent, 459, 460.
Bruff, James, testimony in Burr trial, =3=, 523 _n._
Bryan, George, and Centinel letters, =1=, 335 _n._
Bryan, Joseph, and Randolph, =3=, 566.
Buchanan, J., Barbecue Club, =2=, 183.
Buchanan, James, and attack on Supreme Court, =4=, 515.
Bullitt, William M., book of M.'s possessed by, =1=, 186 _n._
Burford, _ex parte_, =3=, 154 _n._
Burgess, John W., on revolutionary action of Framers, =1=, 323 _n._
Burke, Ædanus, and the Cincinnati, =1=, 293;
shipwrecked, =3=, 55 _n._
Burke, Edmund, on French Revolution, =2=, 10-12.
Burling, Walter, and Burr conspiracy, =3=, 329.
Burnaby, Andrew, plea for reunion with England, =1=, 130, 131.
Burr, Aaron, and X. Y. Z. Mission, =2=, 281;
suppresses Wood's book, 380 _n._;
and Hamilton's attack on Adams, 528;
character, and appearance, 535, =3=, 371, 372;
presides over Senate, 67;
and repeal of Judiciary Act, personal effect, 67, 68 _n._, 279;
and Pickering impeachment, 168 _n._;
arranges Senate for Chase trial, 179 _n._;
as presiding officer of trial, 180, 183, 218, 219;
effort of Administration to conciliate, 181;
farewell address to Senate, 274;
plight on retirement from Vice-Presidency, 276-78, 285;
Hamilton's pursuit, 277 _n._;
the duel, 278 _n._;
Jefferson's hostility, isolation, 279, 280;
toast on Washington's birthday, 280;
candidacy for Governor, 281;
and Federalist secession plots, 281;
and Manhattan Company charter, 287 _n._;
gratitude to Jackson, 405;
later career, 537 _n._, 538 _n._;
and Martin, 538 _n._;
death, monument, 538 _n._;
report on Yazoo lands, 570.
_See also_ Burr Conspiracy; Elections (_1800_).
Burr, Levi, _ex parte_, =3=, 537 _n._
Burr conspiracy, and life of M., =3=, 275;
Burr's plight on retirement from Vice-Presidency, 276-78;
Jefferson's hostility and isolation of Burr, 279-81;
Burr and Federalist Secessionists, 281;
West and Union, 282-84;
popular desire to free Spanish America, 284, 286;
expected war with Spain, 285;
West as field for rehabilitation of Burr, 286;
his earlier proposal to invade Spanish America, 286;
Burr's intrigue with Merry, real purpose, 287-90, 299;
first western trip, 290;
conference with Dayton, 290;
Wilkinson's connection, he proposes Mexican invasion, 290, 294,
297, 460;
and Blennerhassett, 291;
conference at Cincinnati, 291;
in Kentucky, 291, 296;
plan for Ohio River canal, 291 _n._;
in Tennessee, Jackson's relationship, 292-96;
Burr and Tennessee seat in House, 292;
no proposals for disunion, 292, 297, 303, 312;
invasion of Mexico, contingent on war, 292 _n._, 294-96, 298,
301-03, 306-09, 312, 313, 319, 460-62, 523, 527;
settlement of Washita lands, 292 _n._, 303, 310, 312, 313, 314 _n._,
319, 324 _n._, 361 _n._, 362, 461, 462, 523, 527;
Burr at New Orleans, 294, 295;
disunion rumors, Spanish source, 296, 298, 299;
Wilkinson plans to abandon Burr, 298, 300 _n._, 320;
Casa Yrujo intrigue, purpose, 300, 300 _n._;
and Miranda's plans, 300, 301, 306, 308;
hopes, 301, 302;
Wilkinson on frontier, expected to precipitate war, 302, 307,
308, 314;
Burr requests diplomatic position, 302;
Burr's conferences with Truxton and Decatur, 302, 303;
and with Eaton, Eaton's report of it, 303-05, 307, 345;
Jefferson and reports of plans, 305, 310, 315, 317, 323, 338 _n._;
Burr's letter to Jackson for military preparation, 306;
Burr begins second journey, 307, 309;
cipher letter to Wilkinson by Swartwout and Bollmann, 307-09,
614, 615;
Morgan visit, report of it to Jefferson, 309, 310;
Blennerhassett's enthusiasm, his newspaper letters mentioning
disunion, 310, 311;
gathering at his island, 311, 324, 325, 425-27, 484, 488-91;
recruits, 311, 313, 324, 326, 360;
Wilkinson's letters to Adair and Smith, 314;
renewal of disunion reports, 315, 316;
Burr denies disunion plans, 316, 318 _n._, 319, 326;
arrest and release of Burr in Kentucky, 317-19;
Administration's knowledge of Burr's plans, 318 _n._;
Wilkinson and Swartwout, 320, 465;
Wilkinson's revelations to Jefferson, 321-23, 334, 341, 352-56;
Jefferson's action on revelations, proclamation against expedition,
324, 327;
seizure of supplies, 324;
militia attack on Blennerhassett's island, flight of gathering
there, 325;
Burr afloat, 326, 360-62;
popular belief in disunion plan, 327;
Wilkinson's pretended terror, 328;
his appeal for funds to Viceroy, 329;
and to Jefferson, 330;
his reign of terror at New Orleans, 330-37;
Jefferson's Annual Message on, 337;
mystery and surmises at Washington, 338;
House demand for information, 339;
Special Message declaring Burr guilty, 339-41;
effect of message on public opinion, 341;
Wilkinson's prisoners brought to Washington, 343, 344;
Swartwout and Bollmann held for trial, 344-46;
payment of Eaton's claim, 345 _n._;
Supreme Court writ of habeas corpus for Swartwout and Bollmann, 346;
attempt of Congress to suspend privilege of writ, 346-48;
discharge of Swartwout and Bollmann, M.'s opinion, 348-57;
constitutional limitation of treason, 349-51;
necessity of overt act, 351, 442;
presence at overt act, effect of misunderstanding of M.'s opinion,
350, 414 _n._, 484, 493, 496, 502, 504-13, 540, 619-26;
lack of evidence of treasonable design, 353-56, 377-79, 388;
Judiciary and Administration and public opinion, 357, 376, 388;
House debate on Wilkinson's conduct, 358-60;
Burr's assembly on island at mouth of Cumberland, 361;
boats, 361 _n._;
Burr in Mississippi, grand jury refuses to indict him, 363-65;
release refused, flight and military arrest, 365-68, 374;
taken to Richmond, 368-70;
M.'s warrant for civil arrest, 370;
preliminary hearing before M., 370, 372, 379;
Burr and M. contrasted, 371, 372;
bail question, 372, 379, 380, 423, 424, 429, 516;
Burr's statement at hearing, 374;
M.'s opinion, commits for high misdemeanor only, 375-79;
M.'s conduct and position at trials, 375, 397, 404, 407, 408,
413 _n._, 421, 423, 480, 494, 517, 526;
public opinion, appeal to it, Jefferson as prosecutor, 374, 379-91,
395-97, 401, 406, 411, 413, 414, 416-22, 430-32, 435, 437,
439, 441, 471, 476, 477, 479, 480, 497 _n._, 499, 499 _n._,
503, 516 _n._;
M.'s reflection on Jefferson's conduct, 376;
collection of evidence, time question, 378, 385-90, 415, 417, 418,
425, 473;
Wilkinson's attendance awaited, 383, 393, 415, 416, 429, 431, 432,
440;
supposed overt acts, 386 _n._;
money spent by Administration, 391, 423;
Jefferson's violation of faith with Bollmann, 391, 392;
pardons for informers, 392, 393;
Dunbaugh's evidence, 393, 427, 462, 463;
development of Burr support at Richmond, 393, 415, 470, 478, 479;
M. and Burr at Wickham's dinner, 394-97;
appearance of court, crowd, 398-400;
M. on difficulty of fair trial, 401;
Jackson's denunciation of Jefferson and Wilkinson, 404, 405, 457;
Burr's conduct and appearance in court, 406, 408, 456, 457, 479,
481, 499, 518;
Burr's counsel, 407, 428;
prosecuting attorneys, 407;
M. and counsel, 408;
selection of grand jury, 408-13, 422;
Burr's demand for equal rights, 413, 414, 418;
instruction of grand jury, 413-15, 442, 451;
Hay's reports to Jefferson, 415, 431;
new motion to commit for treason, 415-29;
Jefferson and publication of evidence, 422, 515;
legal order of proof, 424, 484-87;
conduct of Eaton at Richmond, 429;
Bollmann and pardon, 430, 431, 450-54;
demand for Wilkinson's letter to Jefferson, subpoena _duces tecum_,
433-47, 450, 454-56, 518-22;
M.'s admonition to counsel, 439;
M.'s statement on prosecution's expectation of conviction, 447-49;
Wilkinson's arrival, conduct and testimony, just escapes indictment,
456, 457, 463, 464;
testimony before grand jury, 458-65;
indictment of Burr and Blennerhassett for treason and misdemeanor,
465, 466;
other indictments, 466 _n._;
attacks on Wilkinson, 471-75, 477;
confinement of Burr, 474, 478, 479;
selection of petit jury, 475, 481-83;
M. seeks advice of Justices on treason, 480;
Hay's opening statement, 484;
testimony on Burr's expressions, 487, 488;
on overt act, 488-91;
argument of proof of overt act, 491-504;
unprecedented postponement, 494;
Wirt's famous passage, 497, 616-18;
poison hoax, 499 _n._;
irrelevant testimony, 512, 515, 542;
attacks on M., threats of impeachment, Jefferson's Message, 500,
501, 503, 516, 525, 530-35, 540;
judgment of law and fact, 500, 531;
irregular verdict of not guilty, 513, 514;
prosecution's advances to Blennerhassett and others, 514 _n._;
_nolle prosequi_, 515, 524;
reception of verdict in Richmond, 517;
trial for misdemeanor, 522-24;
commitment for trial in Ohio, 524, 527, 528, 531 _n._;
Burr's anger at M., 524, 528;
and Daveiss's pamphlet, 525;
Burr on drawn battle, 527;
prosecution dropped, 528;
M. on trial, 530;
Baltimore mob, 535-40;
bibliography, 538 _n._;
attempt to amend law of treason, 540;
attempt to expel Senator Smith, Adams's report, 540-44.
Burrill, James, Jr., on bankruptcy frauds, =4=, 202.
Burwell, Rebecca, and Jefferson, =1=, 149.
Burwell, William A.,
and attempt to suspend habeas corpus (1807), =3=, 348.
Butchers' Union _vs._ Crescent City, =4=, 279 _n._
Butler, Elizur, arrest by Georgia, =4=, 548;
pardoned, 552 _n._
_See also_ Worcester _vs._ Georgia.
Byrd, William, library, =1=, 25.
Cabell, Benjamin W. S.,
in Virginia Constitutional Convention, =4=, 500.
Cabell, Joseph, at William and Mary, =1=, 159.
Cabell, Joseph C., grand juror on Burr, =3=, 413 _n._;
on Swartwout, 465.
Cabell, William, at William and Mary, =1=, 159;
in the Legislature, 203;
and Henry-Randolph quarrel, 407 _n._
Cabell, William H.,
opinion in Martin _vs._ Hunter's Lessee, =4=, 158-60.
Cabinet, dissensions in Washington's, =2=, 82;
changes in Washington's, his offers to M., 122-25, 147;
disruption of Adams's, 485-88;
M.'s appointment as Secretary of State, 486, 489-91, 493;
Republican comment on Adams's reorganized, 491;
salaries (1800), 539 _n._
Cabot, George, on democratic clubs, =2=, 38;
on policy of neutrality, 94 _n._;
and M. (1796), 198;
on Gerry, 364, 366;
on M.'s views on Alien and Sedition Acts, 391-93;
on reopening of French negotiations, 424, 426;
on M. in Congress, 432;
on Adams and Hamiltonians, 488;
on M. as Secretary of State, 492;
opposition to Adams, 517 _n._;
in defeat, =3=, 11;
on Republican success, 11;
political character, 11 _n._;
on attack on Judiciary, 98;
on protest on repeal of Judiciary Act, 123 _n._;
on Louisiana Purchase, 150;
and secession, 152;
and Hartford Convention, =4=, 52;
and Story, 98.
Calder _vs._ Bull, =3=, 612.
Caldwell, Elisha B., Supreme Court sessions in house, =4=, 130.
Calhoun, John C., and War of 1812, =4=, 29;
Bonus Bill, 417;
Exposition, 538;
and non-intercourse with tariff States, 538 _n._
Call, Daniel, as lawyer, =1=, 173;
M.'s neighbor, =2=, 171;
counsel in Hunter _vs._ Fairfax's Devisee, =4=, 151.
Callender, James T., on M.'s address (1798), =2=, 405;
on M.'s campaign, 409;
later attacks on M., 541 _n._, 556, 560 _n._;
trial for sedition, =3=, 36-41, 189-96, 202-05, 214;
proposed public appropriation for, 38 _n._;
popular subscription, 38 _n._;
pardoned, 40 _n._
Camillus letters, =2=, 120.
Campbell, Alexander, as lawyer, =1=, 173;
and Richmond meeting on Jay Treaty, =2=, 151, 152;
Ware _vs._ Hylton, 188, 189, 192;
Hunter _vs._ Fairfax's Devisee, 207;
in Virginia Constitutional Convention, =4=, 501 _n._
Campbell, Archibald, as M.'s instructor, =1=, 57;
as Mason, =2=, 176.
Campbell, Charles, on frontier (1756), =1=, 7 _n._
Campbell, George W., argument in Chase trial, =3=, 198;
on Burr conspiracy, 339.
Campbell, William, in Virginia Constitutional Convention, =4=, 492.
Campo Formio, Treaty of, M. on, =2=, 271;
and X. Y. Z. Mission, 272, 273.
Canal, Burr's plan for, on Ohio River, =3=, 291 _n._
_See also_ Internal Improvements.
Canning, George, letter to Pinkney, =4=, 23.
Capital, Federal, deal on assumption and location, =2=, 63, 64;
proposed removal to Baltimore, =3=, 8.
_See also_ District of Columbia; Washington, D.C.
Capitol, of Virginia (1783), =1=, 200;
Federal, in 1801, =3=, 1, 2;
religious services there, 7 _n._;
quarters for Supreme Court, 121 _n._
Card playing in Virginia, =1=, 177 _n._
Carlisle, Pa., Ratification riot, =1=, 334.
Carr, Dabney, and Cherokee Indians controversy, =4=, 542.
Carrington, Edward, supports Jay Treaty, =2=, 121;
and M.'s advice on Cabinet positions, 124-26, 132;
on Virginia and Jay Treaty, 131, 132, 134, 137, 138 _n._, 142, 143;
inaccuracy of reports to Washington, 131 _n._;
and Richmond meeting on Jay Treaty, 149, 154;
M.'s neighbor, 171;
verdict in Burr trial, =3=, 513, 514.
Carrington, Eliza (Ambler), on Arnold's invasion, =1=, 144 _n._;
on first and later impressions of M., 150-54;
on Richmond in, 1780, 165;
M.'s sympathy, 188;
on prevalence of irreligion, 221;
on attacks on M.'s character, =2=, 101, 102;
on Mrs. Marshall's invalidism, 371 _n._;
M.'s sister-in-law, =4=, 67 _n._
Carrington, Paul, as Judge, =1=, 173, =4=, 148;
candidacy for Ratification Convention, =1=, 359.
Carroll, Charles, opposition to Adams, =2=, 517 _n._;
on Hamilton's attack on Adams, 528 _n._
Carter, John, and tariff, =4=, 384 _n._, 536.
Carter, Robert, landed estate, =1=, 20 _n._;
character, 21 _n._;
library, 25.
Cary, Mary, courtship, =1=, 150 _n._
Cary, Wilson M., on M.'s ancestry, =1=, 15.
Casa Yrujo, Marqués de, and Burr, =3=, 289, 296 _n._, 300;
on Wilkinson, 320 _n._
Cecil County, Md., and Burr trial, =3=, 479 _n._
Centinel letters in opposition to Federal Constitution, =1=, 335-37;
probable authors, 335 _n._
Centralization. _See_ Nationalism.
Chancery. _See_ Equity.
Chandler, John, case, =3=, 130 _n._
Channing, Edward, on Washington, =1=, 121;
on origin of Kentucky Resolutions, =2=, 398 _n._;
on attacks on neutral trade, =4=, 7 _n._;
on purpose of Orders in Council, 12 _n._;
on Minister Jackson, 23 _n._;
on causes of War of 1812, 29 _n._
Chapman, H., on opposition to Ratification, =1=, 338.
Chapman, Nathaniel, on death of M., =4=, 588.
Charleston, S.C., Jacobin enthusiasm, =2=, 35.
Charters. _See_ Dartmouth College _vs._ Woodward.
Chase, Samuel, and Adams, =2=, 495 _n._;
and common-law jurisdiction, =3=, 28 _n._;
conduct in sedition trials, 33, 36, 41;
Fries trial, 35;
on the stump, 47;
on declaring acts void, 117, 612;
House impeaches, 169;
anti-Republican charge to grand jury, 169, 170;
arousing of public opinion against, 171;
articles of impeachment, 171, 172;
despair of Federalists, 173;
effect of Yazoo frauds on trial, 174;
opening of trial, 175;
arrangement of Senate, 179, 180;
Burr as presiding officer, efforts of Administration to win him,
180-83;
seat for Chase, 183;
appearance, 184;
career, 184 _n._, 185 _n._;
counsel, 185;
Randolph's opening speech, 187-89;
testimony, 189-92;
M. as witness, 192-96;
Giles-Randolph conferences, 197;
argument of Manager Early, 197;
of Manager Campbell, 198;
of Hopkinson, 198-200;
indictable or political offense, 199, 200, 202, 207-13;
arguments of Key and Lee, 201;
of Martin, 201-06;
trial as precedent, 201;
trial as political affair, 206;
argument of Manager Nicholson, 207-10;
of Manager Rodney, 210-12;
and Chief Justiceship, 211 _n._;
argument of Manager Randolph, 212;
Randolph's praise of M., 214-16;
trial and secession, 217;
vote and acquittal, 217-20;
trial as crisis, 220;
effect on Republicans, 220-22;
on M., 222;
Chase and Swartwout and Bollmann case, 349 _n._;
and Fletcher _vs._ Peck, 585 _n._;
death, =4=, 60.
Chastellux, Marquis de, on William and Mary, =1=, 156 _n._;
on hardships of travel, 262;
on drinking, =2=, 102 _n._
Chatham, Earl of, fate of Charleston statue, =2=, 35.
Checks and balances of Federal Constitution,
Ratification debate on, =1=, 389, 417;
and repeal of Judiciary Act of 1801, =3=, 60, 61, 65.
_See also_ Division of powers; Government; Separation of powers;
Union.
Cherokee Indians, power, =3=, 553;
origin of Georgia contest, =4=, 539, 540;
Jackson's attitude, 540, 541, 547, 548, 551;
first appeal to Supreme Court, 541;
popular interest and political involution, 541, 548;
and removal, 541;
monograph on contest, 541 _n._;
Tassels incident, Georgia's defiance of Supreme Court, 542-44;
Cherokee Nation _vs._ Georgia, Georgia ignores, 544;
M.'s opinion, Cherokees not a foreign nation, 544-46;
M.'s rebuke of Jackson, 546;
dissent from opinion, 546 _n._;
origin of Worcester _vs._ Georgia, arrest of missionaries, 547, 548;
Georgia refuses to appear before Court, 548;
counsel, 549;
M.'s opinion, no State control over Indians, 549-51;
mandate of Court ignored, 551;
final defiance of Court, Graves case, 552 _n._;
removal of Indians, 552 _n._
Cherokee Nation _vs._ Georgia. _See_ Cherokee Indians.
_Chesapeake-Leopard_ affair, Jefferson and, =3=, 475-77, =4=, 9.
Chester, Elisha W., counsel in Worcester _vs._ Georgia, =4=, 549.
Cheves, Langdon, and War of 1812, =4=, 29.
Children, M.'s fondness for, =4=, 63.
Chisholm _vs._ Georgia, =2=, 83 _n._, =3=, 554 _n._
Choate, Rufus, on Marbury _vs._ Madison, =3=, 101;
on Webster's tribute to Dartmouth, =4=, 248.
Choctaw Indians, power, =3=, 553.
Christie, Gabriel, and slavery, =2=, 450.
Church ----, and X. Y. Z. Mission, =2=, 254.
_Cincinnati_, first steamboat, =4=, 403 _n._
Cincinnati, Order of the, popular prejudice against, =1=, 292-94.
Cipher, necessity of use, =1=, 266 _n._
Circuit Courts, Supreme Court Justices in, =3=, 55, 56;
rights of original jurisdiction, =4=, 386.
_See also_ Judiciary; Judiciary Act of 1801.
Circuit riders, work, =4=, 189 _n._
Citizenship, Virginia bill (1783), =1=, 208.
_See also_ Naturalization.
Civil rights, lack, =3=, 13 _n._
_See also_ Bill of Rights.
Civil service, M. and office-seekers, =2=, 494;
Adams and partisan appointments, =3=, 81;
Jefferson's use of patronage, 81 _n._, 208.
_See also_ Religious tests.
Claiborne, William C. C.,
and election of Jefferson, reward, =3=, 81 _n._;
and Wilkinson and Burr conspiracy, 326, 331, 363, 366;
and Livingston, =4=, 102;
and steamboat monopoly, 414.
Clark, Daniel, and Burr, =3=, 294, 295;
and disunion rumors, 296.
Clark, Eugene F., acknowledgment to, =4=, 233 _n._
Clark, George Rogers, surveyor, =1=, 210 _n._;
Indiana Canal Company, =3=, 291 _n._
Classes, in colonial Virginia, =1=, 25-28;
after the Revolution, 277, 278.
Clay, Charles, in Virginia Ratification Convention, =1=, 472.
Clay, Henry, duelist, =3=, 278 _n._;
and Burr conspiracy, 296, 318, 319 _n._;
on Daveiss and Burr, 317 _n._;
as exponent of Nationalism, =4=, 28, 29;
as practitioner before M., 95, 135;
and Green _vs._ Biddle, 376;
counsel in Osborn _vs._ Bank, 385;
in debate on Supreme Court, 395;
Kremer's attack, 462 _n._;
Randolph duel, 463 _n._;
and report on M. and election of 1828, 464;
and American Colonization Society, 474;
and recharter of Bank of the United States, 530;
Compromise Tariff, 574.
Clayton, Philip, and Yazoo lands act, =3=, 547, 548.
Clayton, Samuel, in Virginia Constitutional Convention, =4=, 501 _n._
_Clermont_, Fulton's steamboat, =4=, 401 _n._
Clinton, De Witt, presidential candidacy (1812), =4=, 47.
Clinton, George, letter for second Federal convention, =1=, 379-81,
477, =2=, 49, 57 _n._;
elected Vice-President, =3=, 197;
defeats recharter of Bank of the United States, =4=, 176.
Clopton, John, deserts Congress (1798), =2=, 340 _n._;
candidacy (1798), 414.
Clothing. _See_ Dress.
Cobbett, William,
on American enthusiasm over French Revolution, =2=, 5 _n._;
as conservative editor, 30 _n._
Cockade, black, =2=, 343.
Cocke, William, on Judiciary Act of 1801, =3=, 57 _n._;
at Chase trial, 194.
Cohens _vs._ Virginia,
conditions causing opinion, its purpose, =4=, 342-44, 353;
facts, 344, 345;
as moot case, 343;
counsel, argument, 346;
M.'s opinion on appellate power, 347-57;
statement of State Rights position, 347;
supremacy of National Government, 347-49;
Federal Judiciary as essential agency in this supremacy, 349-52;
resistance of disunion, 352, 353;
State as party, Eleventh Amendment, 354-56;
hearing on merits, 357;
Roane's attack on, 358, 359;
rebuke of concurring Republican Justices, 358, 359;
M. on attacks, 359-62;
other Virginia attacks, 361 _n._;
Jefferson's attack on principles, M. on it, 362-66, 368-70;
attack as one on Union, 365;
Taylor's attack on principles, 366-68.
Coleman, _vs._ Dick and Pat, =2=, 180 _n._
Colhoun, John E., and repeal of Judiciary Act, =3=, 62 _n._, 72 _n._
College charters as contracts. _See_ Dartmouth College _vs._ Woodward.
Collins, Josiah, Granville heirs case, =4=, 154.
Collins, Minton, on economic division on Ratification, =1=, 313;
on opposition to Ratification, 322.
Colston, Rawleigh,
purchase of Fairfax estate, =2=, 203 _n._, 204, =4=, 149, 150 _n._;
M.'s debt, =3=, 224.
_Columbian Centinel_, on Republicans (1799), =3=, 43;
on Judiciary debate (1802), 65 _n._, 72 _n._, 99.
Commerce, effects of lack of transportation, =1=, 262;
Madison on need of uniform regulation, 312;
Jefferson's dislike, 316;
Federal powers in Ratification debate, 427, 477;
foreign, and South Carolina negro seamen act, Elkison case,
=4=, 382, 383;
power to regulate, and internal improvements, 417;
power over navigation, Brig Wilson _vs._ United States, 428, 429;
doctrine of common carrier and transportation of slaves, 478.
_See also_ Bankruptcy; Brown _vs._ Maryland; Communication; Economic
conditions; Gibbons _vs._ Ogden; Internal improvements;
Navigation acts; Neutral trade, New York _vs._ Miln;
Slave trade; Tariff.
Common carrier, doctrine, and transportation of slaves, =4=, 478.
Common law, Federal jurisdiction, =2=, 549 _n._, =3=, 23-29, 30 _n._,
78, 84, 89.
Commonwealth _vs._ Caton, =3=, 611.
Communication, roads of colonial Virginia, =1=, 36 _n._;
at period of Confederation and later, hardships of travel, 250,
255-64, =3=, 5 _n._, 55 _n._;
lack as index of political conditions, =1=, 251, 255;
sparseness of population, 264;
mails, 264-67;
character of newspapers, 267-70;
conditions breed demagogism, 290-92;
local isolation, =4=, 191.
_See also_ Commerce.
Commutable Act of Virginia, =1=, 207.
Concurrent jurisdiction of Federal and State courts, =1=, 452.
_See also_ Appellate jurisdiction.
Concurrent powers, M.'s exposition in Ratification debate, =1=, 436;
and State bankruptcy laws, =4=, 208-12;
commercial, 409.
Confederation, Washington on State antagonism, =1=, 206 _n._;
effect of British-debts controversy, 228, 228 _n._;
financial powerlessness, 232, 295-97, 304, 387, 388, 415-17;
effort for power to levy impost, 233;
debt problem, 233-35, 254;
proposed power to pass navigation acts, 234, 235;
social conditions during, 250-87;
popular spirit, 253, 254;
opportunity for demagogism, 288-92, 297, 309;
Shays's Rebellion, 298-304;
impotence of Congress, 305;
prosperity during, 306;
responsibility of masses for failure, 307;
responsibility of States for failure, 308-10;
antagonistic State tariff acts, 310, 311;
economic basis of failure, 310-13;
Jefferson on, 315;
Randolph on, 377;
Henry's defense, 388, 389, 399;
M.'s biography of Washington on, =3=, 259-61.
Congress,
Ratification debate on character, =1=, 344, 416, 419, 422, 423;
M. on discretionary powers (1788), 454;
_First_: titles, =2=, 36;
election in Virginia, 49, 50;
amendments, 58, 59;
funding, assumption, and National Capital, 59-64;
Judiciary, =3=, 53-56;
_Third_: Yazoo lands, 560, 569, 570;
_Fourth_: Jay Treaty, =3=, 148, 155;
Yazoo lands, =3=, 570;
_Fifth_: Adams's address on French depredations, =2=, 225, 226;
X. Y. Z. dispatches, 336, 338, 339;
war preparations, 355;
Alien and Sedition Acts, 381;
Georgia's Western claims, =3=, 573;
_Sixth_: M.'s campaign for, =2=, 374-80, 401, 409-16;
M.'s importance to Federalists, 432, 436, 437;
Adams's address at first session, 433;
reply of House, 433-36;
and presidential campaign, 438;
and death of Washington, 440-45;
M.'s activity, 445;
cession of Western Reserve, 446;
powers of territorial Governor, 446;
insult to Randolph, 446;
Marine Corps, 446-48;
land grants for veterans, 448;
and slavery, 449;
Sedition Law, 451;
M.'s independence, 451, 452;
Disputed Election Bill, 452-58;
Jonathan Robins case, 460-75;
reduction of army, 476-81;
Bankruptcy Bill, 481, 482;
results of first session, 482;
French treaty, 525;
M. and Adams's address at second session, 530, 531;
Jefferson-Burr contest, 532-47;
Judiciary Bill, 548-52, =3=, 53, 56;
reduction of navy, 458 _n._;
Georgia cession, 574;
_Seventh_: Judiciary in Jefferson's Message, 51-53;
repeal of Judiciary Act of 1801, 58-92;
Supreme Court, 94-97;
_Eighth_: impeachment of Pickering, 164-68;
Chase impeachment, 169-222;
electoral vote counting, 197;
Burr's farewell address, 274;
Yazoo claims, 575-82;
_Ninth_: Jefferson's Annual Message on Burr conspiracy, 337;
demand for information and Special Message, 339;
payment of Eaton's claim, 345 _n._;
attempt to suspend habeas corpus, 346-48;
Burr conspiracy debate, 357-60;
non-importation, =4=, 9;
_Tenth_: _Chesapeake-Leopard_ affair, =3=, 477;
attempt to amend law of treason, 540;
attempt to expel Senator Smith, 540-44;
Embargo, =4=, 11, 13, 14, 22;
Force Act, 16;
non-intercourse, 22;
_Eleventh_: Yazoo claims, =3=, 595-97;
Jackson resolution, =4=, 24;
Louisiana, 27;
bank, 173-76;
_Twelfth_: Yazoo claims, =3=, 597-600;
war, =4=, 29;
_Thirteenth_: Yazoo claims, =3=, 600;
St. Cloud Decree resolution, =4=, 48;
bank, 179;
_Fourteenth_: bank, 180;
salaries, 231 _n._;
Bonus Bill, 417;
_Fifteenth_: bank, 196 _n._, 288, 289;
internal improvements, 418;
_Sixteenth_: bankruptcy, 201, 302;
Missouri, 340-42;
_Seventeenth_: Judiciary, 371-79;
_Eighteenth_: Judiciary, 379, 380, 394, 450, 451;
internal improvements, 418-21;
presidential election, 462 _n._;
tariff, 536;
_Nineteenth_: Supreme Court, 451-53;
_Twentieth_: tariff, 537;
_Twenty-first_: Supreme Court, 514-17;
Cherokee Indians, 541;
Hayne-Webster debate, 552-55;
_Twenty-second_: Judiciary, 517 _n._;
recharter of Bank, 529-33;
river and harbor improvement, 534;
tariff, 559, 567, 574.
Conkling, Roscoe, resemblance to Pinkney, =4=, 133 _n._
Connecticut, Ratification, =1=, 325;
cession of Western Reserve, =2=, 446, =3=, 578;
and Kentucky and Virginia Resolutions, 105 _n._;
and Embargo, =4=, 17;
and War of 1812, 48 _n._;
and Livingston steamboat monopoly, 404.
Connecticut Reserve, cession, =2=, 446;
Granger's connection, =3=, 578.
Conrad and McMunn's boarding-house, =3=, 7.
Conscription, for War of 1812, =4=, 51.
Conservatism, growth, =1=, 252, 253;
M.'s extreme, =3=, 109, 265, =4=, 4, 55, 93, 479-83, 488.
_See also_ Democracy; Nationalism; People.
Consolidation. _See_ Nationalism.
Constitution, question of amending Virginia's (1784), =1=, 216;
attack on Virginia's (1789), =2=, 56 _n._;
Massachusetts Convention (1820), =4=, 471.
_See also_ Federal Constitution; Virginia Constitutional Convention.
Continental Congress, denunciation by army officers, =1=, 90;
flight, 102;
and intrigue against Washington, 122, 123;
decline, 124;
Washington's plea for abler men and harmony, 124-26, 131.
_See also_ Confederation.
Contraband, in Jay Treaty and X. Y. Z. Mission, =2=, 306;
M. on British unwarranted increase of list, 509-11.
Contracts, obligation of,
M.'s first connection with legislative franchise, =1=, 218;
and with ideas of contract, 223, 224;
in debate on Ratification, 428;
M. on, as political factor under Confederation, =3=, 259-61;
M. on (1806), and new National Government, 263;
importance of M.'s expositions, 556, 593-95, =4=, 213, 219, 276-81;
legal-tender violation, =3=, 557;
origin of clause in Federal Constitution, 557 _n._, 558 _n._;
effect of constitutional clause on public mind, 558;
and repeal of Yazoo land act, 562, 563, 586;
discussions of repeal, 571, 572;
congressional debate on Yazoo claims, 575, 579, 580;
M.'s interest in stability, 582;
M.'s opinion in Fletcher _vs._ Peck, repeal of Yazoo act as
impairment, 586-91;
and corrupt legislation, 587;
involved in Sturges _vs._ Crowninshield, =4=, 209, 212;
meaning in Constitution, 213;
contract of future acquisitions and insolvency laws, 214;
not limited to paper money obligations, 214;
not necessary to enumerate particular subjects, 215;
humanitarian limitations, 215, 216;
broad field without historical limitations, 216-18, 269, 271;
New Jersey _vs._ Wilson, exemption of lands from taxation, 221-23;
Dartmouth College case, right to change charter of public
institution, 230 _n._, 235, 243;
limitation to private rights, 234, 263;
colleges as eleemosynary not civil corporations, 241-44, 247,
263, 264;
Terrett _vs._ Taylor, private rights under grants to towns,
243 _n._, 246;
precedents in Dartmouth College case, 245-47;
college charters as contracts, 262;
purpose of college does not make it public institution, 264;
nor does act of incorporation, 265-68;
rights of non-profiting trustees, 268, 269;
and public policy, 270-72;
as element in strife of political theories, 370;
and Kentucky occupying claimant law, 375-77, 380-82;
Ogden _vs._ Saunders, future, not violated by insolvency laws, 480;
M.'s dissent, 481.
Conway Cabal, =1=, 121-23.
Cook, Daniel P., on Missouri question, =4=, 342.
Cooke, ----, tavern at Raleigh, =4=, 65.
Cooke, John R., in Virginia Constitutional Convention, =4=, 502 _n._
Cooper, Thomas, sedition trial, =3=, 33, 34, 86.
Cooper, William, on Jefferson-Burr contest, =2=, 546 _n._
Cooper _vs._ Telfair, =3=, 612.
Corbin, Francis,
and calling of Virginia Ratification Convention, =1=, 245;
in Ratification Convention; characterized, 396;
in the debate, 396, 435;
on detailed debate, 432;
on badges of aristocracy, =2=, 78.
Cornwallis, Earl of, Brandywine, =1=, 95.
Corporations, M.'s definition, =4=, 265;
M.'s opposition to State regulation, 479;
presumptive authorization of agency, M.'s dissent, 482, 483.
_See also_ Contracts.
Correspondence, M.'s negligence, =1=, 183 _n._, =4=, 203 _n._
Cotton, effect of invention of gin, =3=, 555.
Council of State of Virginia, M.'s election to, =1=, 209;
as a political machine, 210, 217 _n._;
M. forced out, 211, 212.
Counterfeiting, of paper money, =1=, 297, =4=, 195.
County court system of Virginia,
political machine, =4=, 146, 147, 485-88;
debate in Constitutional Convention on (1830), 491-93.
Court days, as social event, =1=, 284.
_See also_ Judiciary.
Court martial, M. on jurisdiction, =2=, 447, 448.
Coxe, Tench, on British depredations on neutral trade, =2=, 506 _n._
Craig, Hiram. See Craig _vs._ Missouri.
Craig _vs._ Missouri, facts, State loan certificates, =4=, 509;
M.'s opinion, certificates as bills of credit, 510-12;
his reply to threat of disunion, 512;
dissenting opinions, 513;
and renewal of attack on Supreme Court, 514-17;
repudiated, 584 _n._
Cranch, William, and trial of Swartwout and Bollmann, =3=, 344, 346.
Crawford, Thomas H., and attack on Supreme Court, =4=, 515.
Crawford, William H., and Yazoo frauds, =3=, 552;
and recharter of first Bank of the United States, =4=, 174, 175;
and Treasury portfolio (1825), 462 _n._;
and American Colonization Society, 474.
Creek Indians, power, =3=, 553.
Crèvecoeur, Hector St. John de, on frontier farmers, =1=, 30 _n._
Crime, M. on jurisdiction over cases on high seas, =2=, 465-67;
Federal punishment of common-law offenses, =3=, 23-29.
_See also_ Alien and Sedition Acts; Extradition.
Crisis of 1819, banking and speculation, =4=, 176-85;
bank suits to recover loans, 185, 198;
popular demand for more money, 186;
character of State bank notes, 191-96;
early mismanagement of second Bank of the United States, 196;
its reforms and demands on State banks force crisis, 197-99;
popular hostility to it, 198, 199, 206;
lax bankrupt laws and frauds, 200-03;
influence on M., 205;
distress and demagoguery, 206;
movement to destroy Bank of United States through State taxation,
206-08;
M.'s decisions as remedies, 208, 220.
_See also_ Dartmouth College _vs._ Woodward; M'Culloch _vs._
Maryland; Sturges _vs._ Crowninshield.
Crissy, James, publishes biography of Washington, =3=, 273 _n._
Crouch, Richard, on M., =4=, 67 _n._
Crowninshield, Richard. See Sturges _vs._ Crowninshield.
Culpeper County, Va., minute men, =1=, 69.
Curtius letters on M.'s candidacy (1798), =2=, 395, 396;
recalled, =3=, 534.
Cushing, William, and Chief Justiceship, =3=, 121 _n._;
Fletcher _vs._ Peck, 584, 585 _n._;
death, =4=, 60, 106.
Cushman, Joshua, on expansion, =4=, 342 _n._
Cutler, Manasseh,
on Chase trial, =3=, 183 _n._, 212 _n._, 217 _n._, 221.
Daggett, David, counsel in Sturges _vs._ Crowninshield, =4=, 209;
on Holmes in Dartmouth College case, 253 _n._
Dallas, Alexander J., in Fries trial, =3=, 36;
and Burr, 68 _n._;
counsel in _Nereid_ case, =4=, 131.
Dana, Edmund P., testimony in Burr trial, =3=, 491.
Dana, Francis, and X. Y. Z. Mission, =2=, 227;
sedition trial, =3=, 44-46;
on declaring acts void, 117.
Dana, Samuel W., Jonathan Robins case, =2=, 472, 475;
in Judiciary debate (1802), =3=, 90, 91;
on Chandler case, 130 _n._;
and Eaton's report on Burr's plans, 305 _n._
Dandridge, Julius B., case, =4=, 482.
Daniel, Henry, attack on Supreme Court, =4=, 515.
Daniel, William, grand juror on Burr, =3=, 413 _n._
Dartmouth, Earl of, and Dartmouth College, =4=, 224.
Dartmouth College _vs._ Woodward,
origin of college, charter, =4=, 223-26;
troubles, 226-29;
political involution, 229;
State reorganization and annulment of charter, 230, 231;
rival administrations, 231-33;
Story's relationship, 232, 243 _n._, 251, 252, 257, 259 _n._,
274, 275;
counsel, 233, 234, 237-40, 259;
case, 233;
story of recruiting Indian students, 233 _n._;
State trial and decision, 234-36;
appeal to Supreme Court, lack of public interest there, 236;
argument, 240-55;
effort to place case on broader basis, 244, 251, 252;
Webster's tribute to Dartmouth, 248-50;
continued, 255;
influences on Justices, Kent, 255-58, 258 _n._, 259 _n._;
fees and portraits, 255 _n._;
value of Shirley's book on, 258 _n._, 259 _n._;
Pinkney's attempt to reopen, frustrated by M., 259-61, 274;
M.'s opinion, 261-73;
judgment _nunc pro tunc_, 273;
later public attention, 275;
far-reaching consequences, modern attitude, 276-81;
recent discussions, 280 _n._
_See also_ Contracts.
Daveiss, Joseph Hamilton, Federal appointment, =2=, 560 _n._;
and Burr conspiracy, =3=, 315-19;
middle name, 317 _n._;
pamphlet, 525.
Davis, ----, on "Hail, Columbia!" =2=, 343 _n._
Davis, David, on Dartmouth College case, =4=, 280.
Davis, John, and M.'s candidacy for President, =4=, 33;
identity, 34 _n._
Davis, Judge John, United States _vs._ Palmer, =4=, 126.
Davis, Sussex D., anecdote of M., =4=, 83 _n._
Davis, Thomas T., in debate on repeal of Judiciary Act, =3=, 74.
Davis, William R., on Judiciary Act of 1789, =3=, 54;
Granville heirs case, =4=, 154;
report on Supreme Court, 515.
Dawson, Henry B.,
on bribery in Massachusetts Ratification, =1=, 354 _n._
Dawson, John, in Virginia Ratification Convention, =1=, 470.
Dawson's Lessee _vs._ Godfrey, =4=, 54 _n._
Dayson, Aquella, sells land to M., =1=, 196.
Dayson, Lucy, sells land to M., =1=, 196.
Dayton, Jonathan, support of Adams (1800), =2=, 518;
in debate on repeal of Judiciary Act, =3=, 67;
and Pickering impeachment, 167, 168 _n._;
and Burr conspiracy, 290, 291, 300, 308;
career, 290 _n._;
Indiana Canal Company, 291 _n._;
_nolle prosequi_, 515;
security for Burr, 517.
Deane, Silas, and Beaumarchais, =2=, 292 _n._
Dearborn, Henry, and Ogden-Smith trial, =3=, 436 _n._
Debating at William and Mary, =1=, 158.
Debts, spirit of repudiation of private, =1=, 294, 298;
imprisonment for, =3=, 13 _n._, 15 _n._, =4=, 215, 216;
and hostility to lawyers, =3=, 23 _n._;
M. on political factor under Confederation, 259-61.
_See also_ British debts;
Contracts; Crisis of 1819; Finances; Public debts.
Decatur, Stephen, and Burr conspiracy, =3=, 302, 303;
at trial of Burr, testimony, 452, 458, 488 _n._;
career and grievance, 458 _n._
Declaration of Independence, anticipated, =3=, 118;
M.'s biography of Washington on, 244.
Declaring acts void, Henry on, =1=, 429;
M. on, in Ratification debate, 452, 453, =2=, 18;
Jefferson's suppressed paragraph on (1801), =3=, 52;
congressional debate on judicial right (1802), 60, 62, 64, 67-71,
73, 74, 82, 85, 87, 91;
M.'s preparation for assertion of power, 104, 109;
Kentucky and Virginia Resolutions and State Rights doctrine, 105-08;
effect of this, 108;
necessity of decision on power, 109, 131;
problem of vehicle for assertion, 111, 121-24;
dangers involved in M.'s course, 111-14;
question in Federal Convention, 114-16;
importance of Marbury _vs._ Madison, unique opportunity, 116, 118,
127, 131, 142;
no new argument in it, M.'s knowledge of previous opinions, 116-20,
611-13;
condition of Supreme Court as obstacle to M.'s determination, 120;
dilemma of Marbury _vs._ Madison as vehicle, solution, 126-33;
opinion on power in Marbury _vs._ Madison, 138-42;
effect of decision on attacks on Judiciary, 143, 153, 155;
Jefferson and opinion, 143, 144, 153;
lack of public notice of opinion, 153-55;
M. suggests legislative reversal of judicial opinions, 177, 178;
bibliography, 613;
M.'s avoidance in Federal laws, =4=, 117, 118;
his caution in State laws, 261;
Supreme Court action on State laws, 373, 377;
proposed measures to restrict it, 378-80.
_See also_ Judiciary; and, respecting State laws, Appellate
jurisdiction; Contracts; Eleventh Amendment, and the
following cases: Brown _vs._ Maryland; Cohens _vs._ Virginia;
Craig _vs._ Missouri; Dartmouth College _vs._ Woodward;
Fletcher _vs._ Peck; Gibbons _vs._ Ogden; Green _vs._ Biddle;
M'Culloch _vs._ Maryland; Martin _vs._ Hunter's Lessee;
New Jersey _vs._ Wilson; Osgood _vs._ Bank;
Sturges _vs._ Crowninshield; Terrett _vs._ Taylor;
Worcester _vs._ Georgia.
Dedham, Mass., denounces lawyers, =3=, 23 _n._
Delaware, Ratification, =1=, 325.
Delaware Indians, New Jersey land case, =4=, 221-23.
Demagogism,
opportunity and tales under Confederation, =1=, 290-92, 297, 309;
J. Q. Adams on opportunity, =2=, 17;
and crisis of, 1819, =4=, 206.
_See also_ Government.
Democracy,
growth of belief in restriction, =1=, 252, 253, 300-02, 308;
union with State Rights, =3=, 48;
M.'s extreme lack of faith in, 109, 265, =4=, 4, 55, 93, 479-83,
488;
chaotic condition after War of 1812, =4=, 170.
_See also_ Government; People; Social conditions.
Democratic Party, as term of contempt, =2=, 439 _n._, =3=, 234 _n._
_See also_ Republican Party.
Democratic societies, development, =2=, 38;
opposition and support, 38-41;
decline, 41;
and Whiskey Insurrection, 88;
and Jay's negotiations, 113.
Denmark, and Barbary Powers, =2=, 499.
Dennison, ----, and Yazoo lands act, =3=, 547.
De Pestre, Colonel, attempt to seduce, =3=, 515 _n._
Despotism, demagogic fear, =1=, 291;
feared under Federal Constitution, 333;
in Ratification debate, 352, 398, 400, 404, 406, 409-11, 417, 427,
428.
Dexter, Samuel, and M. (1796), =2=, 198;
Secretary of War, 485, 493, 494;
_Aurora_ on, 492;
seals M.'s commission, 557;
and M.'s logic, =4=, 85;
as practitioner before M., 95;
counsel in Martin _vs._ Hunter's Lessee, 161;
as court orator, 133.
Dickinson, John,
in Federal Convention, on declaring acts void, =3=, 115 _n._
Dickinson, Philemon, and intrigue against Adams, =2=, 529 _n._
_Diligente, Amelia_ case, =3=, 16.
Dinners, as form of social life in Richmond, =3=, 394;
of Quoit Club, =4=, 77;
M.'s lawyer, 78, 79.
Direct tax,
Fries's Insurrection and pardon, =2=, 429-31, 435, =3=, 34-36.
_See also_ Taxation.
Directory, M. declines mission to, =2=, 144-46;
18th Fructidor, 230, 245 _n._, 246 _n._;
M. on it, 232, 236-44;
M.'s analysis of economic conditions, 267-70;
English negotiations (1797), 295;
preparations against England (1798), 321, 322;
need of funds, 322, 323.
_See also_ Franco-American War;
French Revolution; X. Y. Z. Mission.
Discipline, in Revolutionary army, =1=, 87, 120.
Disestablishment, Virginia controversy, =1=, 221, 222;
in New Hampshire, =4=, 227, 230 _n._
Disputed Elections Bill (1800), =2=, 452-58.
District-attorneys, United States, plan to remove Federalist, =3=, 21.
District of Columbia, popular fear of, =1=, 291, 438, 439, 456, 477.
_See also_ Capital; Washington, D.C.
_Divina Pastora_ case, =4=, 128.
Division of powers, arguments on, during Ratification, =1=, 320, 334,
375, 382, 388, 405, 438;
supremacy of National powers, =4=, 293, 302-08, 347-49, 438.
_See also_ Nationalism.
Divorce, by legislation, =2=, 55 _n._
Doddridge, Philip,
in Virginia Constitutional Convention, =4=, 502 _n._;
on attack on Supreme Court, 515.
Domicil in enemy country, enemy character of property, =4=, 128, 129.
Dorchester, Lord, Indian speech, =2=, 111.
Drake, James, and sedition trial, =3=, 32.
Dred Scott case, and declaring Federal acts void, =3=, 132 _n._
Dress, frontier, =1=, 40;
of Virginia legislators, 59, 200;
contrast of elegance and squalor, 280;
of early National period, =3=, 396, 397.
Drinking, in colonial and later Virginia, =1=, 23;
rules of William and Mary College on, 156 _n._;
extent (c. 1800), 186 _n._, 281-83, =2=, 102 _n._, =3=, 400,
501 _n._;
M.'s wine bills, =1=, 186;
distilleries, =2=, 86 _n._;
at Washington, =3=, 9;
frontier, =4=, 189 _n._
Duane, William, prosecution by Senate, =2=, 454 _n._;
trial for sedition, =3=, 46 _n._;
advances to Blennerhassett, 514.
_See also_ _Aurora_.
Duché, Jacob, beseeches Washington to apostatize, =1=, 105.
Duckett, Allen B., and Swartwout and Bollmann, =3=, 346.
Dueling, prevalence, =3=, 278 _n._
Dunbar, Thomas, in Braddock's defeat, =1=, 5.
Dunbaugh, Jacob, and trial of Burr, evidence, =3=, 393, 459, 462, 463;
credibility destroyed, 523.
Dunmore, Lord, Norfolk raid, =1=, 74-79.
Dutrimond, ----, and X. Y. Z. Mission, =2=, 326.
Duval, Gabriel, appointed Justice, =4=, 60;
and Dartmouth College case, 255;
dissent in Ogden _vs._ Saunders, 482 _n._;
resigns, 582, 584;
and Briscoe _vs._ Bank and New York _vs._ Miln, 583.
Dwight, Theodore, on Republican rule (1801), =3=, 12.
Early, Peter, argument in Chase trial, =3=, 197.
Eaton, John H., on Supreme Court, =4=, 451.
Eaton, William, on Jefferson, =3=, 149 _n._;
antagonism to Jefferson, 302;
career in Africa, 302 _n._, 303 _n._;
conference with Burr, report of it, 303-05, 307;
affidavit on Burr's statement, 345, 352;
claim paid, 345 _n._;
at trial of Burr, testimony, 429, 452, 459, 487;
loses public esteem, 523.
Economic conditions, influence on Federal Convention and Ratification,
=1=, 241, 242, 310, 312, 429 _n._, 441 _n._;
prosperity during Confederation, 306;
influence on attitude towards French Revolution, =2=, 42;
and first parties, 75, 96 _n._, 125 _n._
_See also_ Banking; Commerce;
Contracts; Crisis of 1819; Land; Prices; Social conditions.
_Edinburgh Review_, on M.'s biography of Washington, =3=, 271;
on United States (1820), =4=, 190 _n._
Education, of colonial Virginia women, =1=, 18 _n._, 24 _n._;
in colonial Virginia, 24;
M.'s, 42, 53, 57;
condition under Confederation, 271-73;
M. on general, =4=, 472.
_See also_ Dartmouth College _vs._ Woodward; Social conditions.
Eggleston, Joseph, grand juror on Burr, =3=, 412.
Egotism, as National characteristic, =3=, 13.
Eighteenth Fructidor _coup d'état_, =2=, 230, 245 _n._, 246 _n._;
M. on, 232, 236-44;
Pinckney and, 246 _n._
Elections, Federal, in Virginia (1789), =2=, 49, 50;
(1794), 106;
State, in Virginia (1795), 129-30;
Henry and presidential candidacy (1796), 156-58;
M.'s campaign for Congress (1798), 374-80, 401, 409-16;
issues in 1798, 410;
methods and scenes in Virginia, 413.
_1800_:
Federalist dissensions, Hamiltonian plots, =2=, 438, 488, 515-18,
521, 526;
issues, 439, 520;
influence of campaign on Congress, 438;
Federalist bill to control, M.'s defeat of it, 452-58;
effect of defeat of bill, 456;
effect of Federalist dissensions, 488;
Adams's attack on Hamiltonians, 518, 525;
Adams's advances to Jefferson, 519;
Republican ascendancy, 519, 521;
and new French negotiations, 522, 524;
M.'s efforts for Federalist harmony, 526;
Hamilton's attack on Adams, 527-29;
campaign virulence, 529;
size of Republican success, 531;
Federalist press on result, 532 _n._;
Jefferson-Burr contest in Congress, 532-47;
Jefferson's fear of Federalist intentions, 533;
reasons for Federalist support of Burr, 534-36;
Burr and Republican success, 535 _n._;
M.'s neutrality, 536-38;
his personal interest in contest, 538, 539;
influence of his neutrality, 539;
Burr's refusal to favor Federalist plan, 539 _n._;
_Washington Federalist's_ contrast of Jefferson and Burr,
541 _n._;
question of deadlock and appointment of a Federalist, 541-43;
Jefferson's threat of armed resistance, 543;
Federalists ignore threat, 544, 545 _n._;
effect of Burr's attitude and Jefferson's promises, 545-47,
=3=, 18;
election of Jefferson, =2=, 547;
rewards to Republican workers, =3=, 81 _n._
_1804_:
Campaign and attacks on Judiciary, =3=, 184.
_1812_:
M.'s candidacy, =4=, 31-34;
Clinton as candidate, 47;
possible victory if M. had been nominated, 47.
_1828_:
M. and, 462-65.
_1832_:
Bank as issue, 532 _n._, 533;
M.'s attitude, 534.
Electoral vote, counting in open session, =3=, 197.
Eleventh Amendment, origin, =2=, 84 _n._, =3=, 554;
purpose and limitation, =4=, 354;
and suits against State officers, 385, 387-91.
Elkison, Henry, case, =4=, 382.
Elliot, James, on Wilkinson's conduct, =3=, 358.
Elliot, Jonathan, inaccuracy of _Debates_, =1=, 388 _n._
Ellsworth, Oliver, and presidential candidacy (1800), =2=, 438;
on Sedition Law, 451;
resigns Chief Justiceship, 552;
and common-law jurisdiction on expatriation, =3=, 27, =4=, 53;
and Judiciary Act of 1789, =3=, 53, 128;
on obligation of contracts, 558 _n._
Ellsworth, William W., and attack on Supreme Court, =4=, 515.
Emancipation,
as involved in Nationalist development, =4=, 370, 420, 536.
Embargo Act, =4=, 11;
effect, opposition, 12-16;
M.'s opinion, 14, 118;
Force Act, 16;
repeal, 22.
_See also_ Neutral trade.
Emmet, Thomas A., as practitioner before M., =4=, 95, 135 _n._;
counsel in _Nereid_ case, 131;
appearance, 133;
counsel in Gibbons _vs._ Ogden, 424, 427.
Eppes, John W., and attempt to suspend habeas corpus (1807), =3=, 348;
and amendment on Judiciary, =4=, 378 _n._
Eppes, Tabby, M.'s gossip on, =1=, 182.
Equality, demand for division of property, =1=, 294, 298;
lack of social (1803), =3=, 13.
Equity, M. and Virginia act on proceedings (1787), =1=, 218-20.
_See also_ Judiciary.
Erskine, David M., non-intercourse controversy, =4=, 22.
Everett, Edward, and Madison's views on Nullification, =4=, 556.
_Exchange case_, =4=, 121-25.
Excise, unpopularity of Federal, =2=, 86;
New England and, 86 _n._
_See also_ Taxation; Whiskey Insurrection.
Exclusive powers, and State bankruptcy laws, =4=, 208-12.
_See also_ Gibbons _vs._ Ogden.
Expatriation, Ellsworth's denial of right, =3=, 27;
and impressment, 27 _n._
_See also_ Impressment.
Exterritoriality of foreign man-of-war, =4=, 122-25.
Extradition, foreign, Virginia act (1784), =1=, 235-41;
Jonathan Robins case, =2=, 458-75.
"Faction," as a term of political reproach, =2=, 410 _n._
Fairfax, Baron, career and character, =1=, 47-50;
influence on Washington and M.'s father, 50.
_See also_ Fairfax estate.
Fairfax, Denny M., M.'s debt, =3=, 223;
and Hunter's grant, =4=, 147;
sale of land to M.'s brother, 150 _n._
Fairfax estate, M.'s argument on right, =1=, 191-96;
M.'s purchase and title, 196, =2=, 100, 101, 203-11, 371, 373,
=3=, 582;
in Reconstruction debate, =1=, 447-49, 458;
Jay Treaty and, =2=, 129;
controversy over title, Virginia Legislature and compromise, 206,
209, =4=, 148-50;
and Judiciary Bill (1801), =2=, 551;
M.'s children at, =4=, 74;
M.'s life at, 74.
See also Martin _vs._ Hunter's Lessee.
Fairfax's Devisee _vs._ Hunter's Lessee.
_See_ Martin _vs._ Hunter's Lessee.
Falls of the Ohio, Burr's plan to canalize, =3=, 291 _n._
Farmicola, ----, tavern in Richmond, =1=, 172.
Farrar, Timothy, Report of Dartmouth College case, =4=, 250 _n._
Fauchet, Jean A. J., and Randolph, =2=, 146.
Fauquier County, Va., minute men, =1=, 69.
Faux, William,
on frontier inhabitants, =4=, 188, 189 _n._, 190, 190 _n._
Federal Constitution, constitutionality of assumption, =2=, 66;
Bank, 71-74;
and party politics, 75;
excise, 87;
neutrality proclamation, 95;
treaty-making power, 119, 128, 133, 134-36, 141;
Alien and Sedition Acts, 383, 404.
_See also_ Amendment;
Federal Convention; Government;
Marshall, John (_Chief Justice_);
Nationalism; Ratification; State Rights.
Federal Convention, economic mainspring, =1=, 241, 242, 310, 312;
demand for a second convention, 242, 248, 355, 362, 379-81, 477,
=2=, 49, 57 _n._;
class of Framers, =1=, 255 _n._;
secrecy, 323, 335, 405;
revolutionary results, 323-25, 373, 375, 425;
and declaring acts void, =3=, 114-16;
M.'s biography of Washington on, 262;
and treason, 402;
on obligation of contracts, 557 _n._, 558 _n._;
commerce clause, =4=, 423.
_See also_ Ratification.
Federal District. See District of Columbia.
_Federalist_, influence on Marbury decision, =3=, 119, 120.
Federalist Party, use, =2=, 74-76;
economic basis, 125 _n._;
leaders impressed by M. (1796), 198;
effect of X. Y. Z. Mission, 355, 358;
fatality of Alien and Sedition Acts, 361, 381;
issues in 1798, 410;
French hostility as party asset, 422, 424, 427;
and Adams's renewal of negotiations, 422-28;
and pardon of Fries, 429-31;
M.'s importance to, in Congress, 432, 436;
M. and breaking-up, 514, 515, 526;
hopes in control of enlarged Judiciary, 547, 548;
in defeat, on Republican rule, =3=, 11-15;
Jefferson on forebodings, 14;
Judiciary as stronghold, Republican fear, 20, 21, 77;
and plans against Judiciary, 22;
and perpetual allegiance, 27 _n._;
and Louisiana Purchase, 148-53;
and impeachment of Chase, 173;
moribund, 256, 257;
M. on origin, 259-61;
secession plots and Burr, 281, 298;
intrigue with Merry, 281, 288;
as British partisans, =4=, 1, 2, 9, 10;
and _Chesapeake-Leopard_ affair, 9;
and Embargo, 12-17;
and Erskine, 22;
and War of, 1812, 30, 45, 46, 48.
_See also_ Congress; Elections; Politics; Secession.
Fenno, John, on troubles of conservative editor, =2=, 30.
Fertilizing Co. _vs._ Hyde Park, =4=, 279 _n._
Few, William, and Judiciary Act of 1789, =3=, 129.
Fiction, M.'s fondness, =1=, 41, =4=, 79.
Field, Peter, =1=, 11 _n._
Filibustering, first act against, =1=, 237.
Finances, powerlessness of Confederation, =1=, 232, 295-97, 304, 387,
388, 415-17.
_See also_ Banking; Bankruptcy; Debts; Economic conditions; Money;
Taxation.
Finch, Francis M., on treason, =3=, 401.
Findley, John, on Yazoo claims, =3=, 579.
Finnie, William, relief bill, =1=, 215.
Fisher, George, M.'s neighbor, =2=, 172;
and Bank of Virginia, =4=, 194.
Fiske, John, on Dartmouth College case, =4=, 277.
Fitch, Jabez G., and Lyon, =3=, 31, 32.
Fitch, John, steamboat invention, =4=, 399 _n._, 409 _n._
Fitzhugh,----, at William and Mary, =1=, 159.
Fitzhugh, Nicholas, and Swartwout and Bollmann, =3=, 346.
Fitzhugh, William H.,
in Virginia Constitutional Convention, =4=, 501 _n._
Fitzpatrick, Richard, in Philadelphia society, =1=, 110.
Fleming, William, of Virginia Court of Appeals, =4=, 148.
"Fletcher of Saltoun," attack on M., =4=, 361 _n._
Fletcher, Robert. _See_ Fletcher _vs._ Peck.
Fletcher _vs._ Peck, decision anticipated, =3=, 88;
importance and results, 556, 593-95, 602;
origin, 583;
before Circuit Court, 584;
before Supreme Court, first hearing, 585;
collusion, Johnson's separate opinion, 585, 592, 601;
second hearing, 585;
M.'s opinion, 586-91;
congressional denunciation of decision, 595-601.
Fleury, Louis, Stony Point, =1=, 140.
Flint, James, on newspaper abuse, =4=, 175 _n._;
on bank mania, 187, 188, 192 _n._, 193;
on bankruptcy frauds, 202.
Flint, Timothy, on M.'s biography of Washington, =3=, 270.
Florida, Bowles's activity, =2=, 497-99;
M. on annexation and territorial government, =4=, 142-44.
_See also_ West Florida.
Floyd, Davis, Indiana Canal Company, =3=, 291 _n._;
Burr conspiracy, 361.
Floyd, John, and Nullification, =4=, 567.
Folch, Visente, on Wilkinson, =3=, 284 _n._, 337 _n._
Food, frontier, =1=, 39;
of period of the Confederation, 280-82.
Foot, Samuel A., resolution and Hayne-Webster debate, =4=, 553 _n._
Force Act (1809), =4=, 16.
Fordyce, Captain, battle of Great Bridge, =1=, 77.
Foreign relations, policy of isolation, =2=, 235, 388, =3=, 14.
_See also_ Neutrality.
Forsyth, John, attack on Supreme Court, =4=, 395.
Foster, Thomas F., attack on Supreme Court, =4=, 516.
Foushee, William, Richmond physician, =1=, 189 _n._;
candidacy for Ratification Convention, 364;
and Richmond meeting on Jay Treaty, =2=, 152;
grand juror on Burr, =3=, 413.
Fowler, John, on Judiciary Act of 1801, =2=, 561 _n._
France, American alliance, =1=, 133, 138;
hatred of Federalists, =4=, 2-5, 15.
_See also_ Directory; Franco-American War; French and Indian War;
French Revolution; Napoleonic Wars; Neutral trade; X. Y. Z.
Mission.
Franco-American War, preparations, =2=, 355, 357, 403;
Washington on, 357;
Jefferson and prospect, 358;
French hostility as Federalist asset, 422, 424, 427;
political result of reopening negotiations, 422-28, 433, 436;
naval exploits, 427;
M. and renewal of negotiations, 428;
M. on need of continued preparedness, debate on reducing
army (1800), 436, 439, 476-81;
army as political issue, 439;
_Sandwich_ incident, 496;
England and renewal of negotiations, 501;
negotiations and presidential campaign, 522, 524;
M. and prospects of negotiations, 522, 523;
treaty, 524;
treaty in Senate, 525;
_Amelia_ case, =3=, 16, 17.
_See also_ X. Y. Z. Mission.
Franklin, Benjamin, Albany Plan, =1=, 9 _n._;
on newspaper abuse, 268, 269, =3=, 204;
in Federal Convention, on declaring acts void, 115 _n._
Franklin, Jesse, and Pickering impeachment, =3=, 168 _n._;
of Smith committee, 541 _n._
Franks, Rebecca, on British occupation of Philadelphia, =1=, 109.
Fraud, and obligation of contracts, =3=, 587, 598, 599.
Frederick County, Va., Indian raids, =1=, 1 _n._
Fredericksburg, Va., as Republican stronghold (1798), =2=, 354.
Free ships, free goods, Jay Treaty and, =2=, 114, 128;
and X. Y. Z. Mission, 303-05;
and neutral goods in enemy ships, =4=, 137-41.
"Freeholder," queries to M. (1898), M.'s reply, =2=, 386-89, 574-77.
Freeman, Constant, and Burr conspiracy, =3=, 330.
French and Indian War, raids, =1=, 1, 30 _n._;
Braddock's march and defeat, 2-5;
effect of defeat on colonists, 5, 6, 9.
French decrees on Neutral trade, =4=, 6, 7, 26, 36-39.
French Revolution, influence of American Revolution, =2=, 1;
influence on United States, 2-4, 42-44;
universality of early American approval, 4, 9;
Morris's unfavorable reports, 6-9, 248;
first division of American opinion, 10, 15, 22;
Burke's warning, 10-12;
influence of Paine's _Rights of Man_, 12-15;
Adams's Publicola papers, 15-18;
replies to them, 18, 19;
American enthusiasm and popular support, 19, 22, 23, 27-31;
influence on politicians, 20;
influence of St. Domingo rising, 20-22;
conservative American opinion, 23, 32, 40;
Jefferson on influence, 24, 39;
Jefferson's support of excesses, 24-26;
Short's reports, 24 _n._, 25 _n._;
popular reception of Genêt, his conduct, 28, 29, 301;
humors of popular enthusiasm, 34-36;
and hostility to titles, 36-38;
American democratic clubs, 38-40, 88, 89;
economic division of opinion, 42;
policy of American neutrality, 92-107;
British depredations on neutral trade, question of war, 108-12;
Jay Treaty, 112-15;
support of Republican Party, 131 _n._, 223;
Monroe as Minister, 222, 224;
Henry's later view, 411.
_See also_ Directory.
Freneau, Philip, on country editor, =1=, 270 _n._;
on frontiersman, 275;
defends French Revolution, =2=, 30 _n._;
on Lafayette, 33;
as Jefferson's mouthpiece, 81;
attacks on Washington, 93 _n._;
on Jay Treaty, 118.
Fries's Insurrection, pardons, =2=, 429-31, =3=, 36 _n._;
M. on, =2=, 435;
trial, 8, 34-36.
Frontier, advance after French and Indian War, =1=, 38;
qualities of frontiersmen, 28-31, 235, 274-77, =4=, 188-90;
conditions of life, =1=, 39-41, 53, 54 _n._;
and Virginia foreign extradition act (1784), 236-41.
_See also_ West.
Frontier posts, retention and non-payment of British debts, =1=, 225,
227, 230, =2=, 108, 111;
surrender, 114.
Fulton, Robert,
steamboat experiments, Livingston's interest, =4=, 397-99;
partnership and success, grant of New York monopoly, 400;
and steamboats on the Mississippi, monopoly in Louisiana, 402, 414.
_See also_ Gibbons _vs._ Ogden.
Fulton Street, New York, origin of name, =4=, 402 _n._
Funding. _See_ Public debt.
Fur-trade, and retention of frontier posts, =2=, 108.
Gaillard, John, votes to acquit Chase, =3=, 218.
Gaines, Edward P., and Burr conspiracy, =3=, 367, 456 _n._
Gallatin, Albert, and M. in Richmond (1784), =1=, 183;
on Murray and French negotiations, =2=, 423 _n._;
and cession of Western Reserve, 446;
and Jonathan Robins case, 464, 474;
on Jefferson-Burr contest, 547;
on Washington (1802), =3=, 4;
commission on Georgia's cession, 574 _n._
Gamble, John G., Burr's security, =3=, 429 _n._
Garnett, James M., grand juror on Burr, =3=, 413 _n._
Garnett, Robert S., on Nationalism and overthrow of slavery, =4=, 536.
Gaston, William, and Granville heirs case, =4=, 156 _n._
Gates, Horatio, Conway Cabal, =1=, 121-23.
_Gazette of the United States_, lack of public support, =2=, 30;
on M.'s reception (1798), 344;
on Republican success (1800), 532 _n._
Gazor, Madame de, actress, =2=, 232.
General welfare, clause feared, =1=, 333;
M. on protection (1788), 414;
and internal improvements, =4=, 418.
_See also_ Implied powers.
Georgetown in 1801, =3=, 3.
Genêt, Edmond C., popular and official reception, =2=, 28, 29;
M.'s review of conduct, 301.
Georgia, Ratification, =1=, 325;
conditions (1795), =3=, 552;
western claim and cession, 553, 569, 570, 573;
tax on Bank of the United States, =4=, 207;
and M'Culloch _vs._ Maryland, 334;
steamboat monopoly, 415.
_See also_ Cherokee Indians; Yazoo.
Georgia Company, Yazoo land purchase, =3=, 550.
_See also_ Yazoo.
Georgia Mississippi Company, Yazoo land purchase, =3=, 550.
_See also_ Yazoo.
Germantown, Pa., battle, =1=, 102.
Germantown, Va., on frontier, =1=, 7.
Gerry, Elbridge, on revolutionary action of Framers, =1=, 324;
and Ratification, 352, 353;
on Judiciary Act of 1789, =3=, 54;
accident (1790), 55 _n._;
in Federal Convention, on declaring acts void, 115 _n._;
and on obligation of contracts, 558 _n._
_See also_ X. Y. Z. Mission.
Gettysburg Address, M. and, =4=, 293 _n._
Gibbons, Thomas, and Livingston steamboat monopoly, =4=, 409-11.
_See also_ Gibbons _vs._ Ogden.
Gibbons _vs._ Ogden, steamship monopoly in New York, =4=, 401;
claim to monopoly in interstate voyages, opposition, retaliatory
acts, 403, 404, 415;
early suits on monopoly, avoidance of Federal Constitution, 405;
Kent's opinion on monopoly and power over interstate commerce,
406-12;
concurrent or exclusive power, 409, 426, 427, 434-38, 443-45;
early history of final case, 409-12;
importance and effect of decision, 413, 423, 429, 446, 447, 450;
counsel before Supreme Court, 413, 423, 424;
continuance, 413;
increase of State monopoly grants, 414, 415;
great development of steamboat transportation, 415, 416;
suit and internal improvements controversy, 416-21;
and tariff controversy, 421;
political importance, 422;
specific question, 422;
origin of commerce clause in Constitution, 422;
argument, 424-37;
confusion in State regulation, 426;
M.'s earlier decision on subject, 427-29;
M.'s opinion, 429-33;
field of term commerce, navigation, 431, 432;
power oversteps State boundaries, 433;
supremacy of National coasting license over State regulations,
438-41;
effect of strict construction, 442;
Johnson's opinion, 443;
popularity of decision, 445;
later New York decision upholding, 447-51.
Gibson, John B., and M., =4=, 82.
Gilchrist _vs._ Collector, =3=, 154 _n._
Giles, William B., attack on Hamilton, =2=, 84 _n._;
on Jay Treaty and Fairfax estate, 129;
accuses M. of hypocrisy, 140;
on Washington, 165 _n._;
deserts Congress (1798), 340 _n._;
and Judiciary Bill (1801), 551;
and assault on Judiciary, repeal of Act of 1801, =3=, 22, 76-78,
=4=, 490, 491;
as House leader, =3=, 75;
appearance, 76;
and M., 76 _n._;
accident (1805), 55 _n._;
on spoils, 157;
leader in Senate, 157 _n._, 159 _n._;
on right of impeachment, 158, 173;
attempt to win Burr, 182;
and Chase trial, 197;
vote on Chase, 218, 219;
and bill to suspend habeas corpus (1807), 346;
and Judiciary and Burr trial, 357, 382, 507;
and grand jury on Burr, 410, 422;
and attempted expulsion of Senator Smith, 544;
on Yazoo claims, 581;
on Federalists as Anglicans, =4=, 10;
and recharter of first Bank of the United States, 174;
in Virginia Constitutional Convention, 484;
conservatism there, 489, 507;
in debate on State Judiciary, 490-492, 496, 499;
reflects on Jefferson, 491.
Gilmer, Francis W., on M. as a lawyer, =2=, 178, 193-95;
character, 396 _n._
Gindrat, Henry, and Yazoo lands act, =3=, 546, 547.
Goddard, Calvin, in Judiciary debate (1802), =3=, 74 _n._, 87.
Goode, Samuel, and slavery, =2=, 450.
Goodrich, Chauncey, on Federalist confusion (1800), =2=, 516;
and new French negotiations, 522;
on Dartmouth College case, =4=, 237 _n._, 248.
Goodrich, Samuel G., on state of education (c. 1790), =1=, 271.
Gordon, William F., and bill on Supreme Court, =4=, 515, 516.
Gore, Christopher, argument for Ratification, =1=, 343.
Gorham, Nathaniel,
on Constitutionalist leaders in Massachusetts, =1=, 347 _n._
Government,
general dislike after Revolution, =1=, 232, 275, 284, 285, 289;
effect of Paine's _Common Sense_, 288.
_See also_ Anarchy; Bill of Rights; Confederation; Congress;
Continental Congress; Crime; Demagogism; Democracy; Despotism;
Division of powers; Federal Constitution; Judiciary; Law and
order; Legislature; Liberty; License; Majority; Marshall,
John (_Chief Justice_); Monarchy; Nationalism; Nobility;
Nullification; People; Police powers; Politics; President;
Religious tests; State Rights; Secession; Separation of
powers; Treason; Suffrage.
Governor, powers of territorial, =2=, 446.
_Grace_, brig, =2=, 219.
Graham, Catharine M., on American and French revolutions, =2=, 2 _n._
Graham, John, and Burr conspiracy, =3=, 323, 324, 326, 456 _n._
Grand jury, character of early Federal charges, =3=, 30 _n._;
in Burr trial, 408-15, 422, 442, 451.
Granger, Gideon, and drinking, =3=, 9 _n._;
and Yazoo claims, Randolph's denunciation, 576 _n._, 577, 578, 581;
and Connecticut Reserve, 578;
and Justiceship, =4=, 109, 110.
Granville heirs case, =4=, 154, 155, 155 _n._, 156 _n._
Graves, James, case, =4=, 552 _n._
Gravier, John, New Orleans batture controversy, =4=, 102.
Gray, William F., on M., =4=, 67 _n._
Graydon, Alexander, on Ratification in Pennsylvania, =1=, 327 _n._;
on military titles, 328 _n._;
on reception of Genêt, =2=, 29.
Grayson, William, in the Legislature, =1=, 203;
on Ratification in Virginia, 402, 403 _n._;
characterized, 423;
in debate in Ratification Convention, 424-27, 431, 435, 436, 438,
461, 470;
appeal to fear, 439 _n._;
on prospect of Ratification, 442, 444;
on Washington's influence on it, 475;
chosen Senator, =2=, 50;
on Judiciary Act of 1789, =3=, 54.
Great Bridge, battle of, =1=, 76-78.
Great Britain,
Anti-Constitutionalist praise of government, =1=, 391, 405, 426;
M.'s reply, 418;
depredations on neutral trade (1793-94), =2=, 107, 108;
retention of frontier posts, 108;
unpreparedness for war with, 108-10;
courts war, 110-12;
Jay Treaty, 112-15;
American and French relations and X. Y. Z. Mission, 271, 283, 312,
321, 322;
French negotiations (1797), 295;
French preparations to invade (1798), 321, 322;
and Bowles in Florida, 498;
disruption of commission on British debts, compromise, 500-05;
and renewal of American negotiations with France, 501;
M.'s protest on depredations on neutral trade, 506-14;
Federalists as partisans, =4=, 2-5, 9, 10;
Jefferson's hatred, 8, 11 _n._, 26 _n._
_See also_ American Revolution; British debts; Jay Treaty;
Napoleonic Wars; Neutral trade; War of 1812.
Green, John. _See_ Green _vs._ Biddle.
Green _vs._ Biddle, =4=, 375, 376, 380.
Greene, Nathanael, on state of the army (1776), =1=, 81;
intrigue against, 122;
as Quartermaster-General, 133;
Johnson's biography, =3=, 267 _n._
Greene, Mrs. Nathanael, and Eli Whitney, =3=, 555.
Gregg, Andrew, and reply to President's address (1799), =2=, 436.
Grenville, Lord, and British debts, =2=, 502.
Grey, Sir Charles, in Philadelphia campaign, =1=, 100.
Greybell, ----, evidence in Burr trial, =3=, 451.
Griffin, Cyrus, Ware _vs._ Hylton, =2=, 188;
and trial of Burr, =3=, 398;
Jefferson's attempt to influence, 520;
question of successor, =4=, 100, 103-06;
career, 105 _n._
Grigsby, Hugh B., on hardships of travel, =1=, 260;
on prosperity of Virginia, 306 _n._;
on importance of Virginia in Ratification, 359;
value of work on Virginia Ratification Convention, 369 _n._;
on Giles, =3=, 75 _n._
Griswold, Roger, Judiciary Bill (1801), =2=, 548;
in Judiciary debate (1802), =3=, 74 _n._, 89;
on bill on sessions of Supreme Court, 96;
on secession, 152;
and Burr and secession, 281, 289.
Grundy, Felix, and War of 1812, =4=, 29.
Gunn, James, on enlargement of Federal Judiciary, =2=, 548;
on Chief Justiceship, 553;
and Yazoo lands, =3=, 549, 550, 555;
character, 550 _n._;
burned in effigy, 559.
Gurley, R. R., and M. and American Colonization Society, =4=, 474.
Habeas corpus, attempt of Congress to suspend privileges of
writ (1807), =3=, 346-48.
Hague, The, M. on, =2=, 231.
"Hail, Columbia!" origin, historic importance, =2=, 343.
Hale, Benjamin, and Dartmouth College case, =4=, 239 _n._
Hale, Joseph, on Republican rule (1801), =3=, 12;
on plans against Judiciary, 22.
Hall, John E., and Jefferson's attack on Judiciary, =4=, 364.
Hamilton, Alexander, in Philadelphia campaign, =1=, 101;
army intrigue against, 122;
on revolutionary action of Framers, 323 _n._;
and organization of Constitutionalists, 357, 358;
on importance of Ratification by Virginia, 358;
compared with Madison, 397 _n._;
financial aid to Lee, 435 _n._;
and aid for Fenno, =2=, 30 _n._;
financial measures, 60;
deal on Assumption and Capital, 63, 64;
on Virginia's protest on Assumption, 68;
on constitutionality of Bank, 72-74;
and antagonism in Cabinet, 82;
congressional inquiry, 84;
and Whiskey Insurrection, 87;
on constitutionality of Neutrality Proclamation, 95;
on mercantile support of Jay Treaty, 116, 148;
mobbed, 116;
defense of Jay Treaty, Camillus letters, 120;
and Henry's presidential candidacy (1796), 157 _n._;
and appointment to X. Y. Z. Mission, 227;
on Alien and Sedition Acts, 382;
on Kentucky and Virginia Resolutions, 408;
control over Adams's Cabinet, 486-88;
attack on Adams, 516, 517 _n._, 527-29;
on new French treaty, 524;
and Jefferson-Burr contest, 533, 536;
statement in _Federalist_ on judicial supremacy, =3=, 119, 120;
Adams on, and French War, 258 _n._;
M.'s biography of Washington on, 263;
pursuit of Burr, 277 _n._, 281;
duel, 278 _n._;
and army in French War, 277 _n._;
and Spanish America, 286 _n._;
opinion on Yazoo lands, 568, 569;
and Harper's opinion, 572 _n._
Hamilton, James, Jr., on Tariff of 1824, =4=, 537;
and of 1828, 537;
and Nullification, 560, 574.
Hammond, Charles, counsel in Osborn _vs._ Bank, =4=, 385.
Hampton, Wade, and Yazoo lands, =3=, 548, 566 _n._
Hancock, John, and Ratification, =1=, 339, 344, 347;
Madison on, 339 _n._
Handwriting, M.'s, =1=, 211.
Hanson, A. C, on Embargo and secession, =4=, 17.
Harding, Chester, portraits of M., on M., =4=, 76, 85.
Harding, Samuel B.,
on bribery in Massachusetts Ratification, =1=, 354 _n._
Hare, Charles W., on Embargo, =4=, 17 _n._
Harper, John L., Osborn _vs._ Bank, =4=, 329, 330.
Harper, Robert G., on French and Jefferson (1797), =2=, 279 _n._;
mob threat against, 355;
cites Marbury _vs._ Madison, =3=, 154 _n._;
counsel for Chase, 185;
argument, 206;
counsel for Swartwout and Bollmann, 345;
and Yazoo lands, pamphlet and debate, 555, 571, 572, 573 _n._;
counsel in Fletcher _vs._ Peck, 585;
and Story, =4=, 98;
on Pinkney, 131 _n._;
counsel in Fairfax's Devisee _vs._ Hunter's Lessee, 156;
counsel in Osborn _vs._ Bank, 385.
Harper, William, Marbury _vs._ Madison, =3=, 110.
Harrison, Benjamin, and British debts, =1=, 231;
in the Legislature, 203;
in Ratification Convention: and delay, 372;
characterized, 420;
in the debate, 421;
and amendments, 473.
Harrison, Thomas, grand juror on Burr, =3=, 413 _n._
Harrison, William Henry,
Wilkinson's letter introducing Burr, =3=, 298.
Hartford Convention, =4=, 51.
Harvard University, M.'s sons attend, =4=, 73;
honorary degree to M., 89.
Harvey, ----, and Jay Treaty, =2=, 121.
Harvie, Emily, acknowledgment to, =4=, 528 _n._
Harvie, Jacquelin B., and Callender trial, =3=, 192;
M.'s son-in-law, 192 _n._, =4=, 73.
Harvie, Mary (Marshall), =3=, 192 _n._, =4=, 73.
Haskell, Anthony, trial, =3=, 31, 32.
Hauteval, ----, as agent in X. Y. Z. Mission, =2=, 276.
Hay, George, attack on M. in Jefferson-Burr contest, =2=, 542;
career, 542 _n._;
in Callender trial, =3=, 38, 40;
as witness in Chase trial, 189;
and preliminary hearing on Burr, 370, 372, 373, 379, 380;
and pardon for Bollmann, 392, 450, 452, 453;
prosecutes Burr, 407;
and M., 408, =4=, 78;
and instruction of grand jury, =3=, 413;
and new commitment for treason, 415-17, 423-25;
on incitation of public opinion at trial, 420 _n._;
and subpoena to Jefferson, 434, 435, 440, 518, 520;
reports to Jefferson, instructions from him, 430-32, 434, 448-51,
483, 484;
on M.'s statement of prosecution's expectation of conviction, 448,
449;
on Jackson at trial, 457 _n._;
and confinement of Burr, 477;
on M. and Burr, 483, 484;
opening statement, 484;
on overt act, 500;
threat against M., 500, 501;
and further trials, 515, 521, 523, 524, 527;
on conduct of trial, 526;
fee, 530 _n._;
pamphlet on impressment, =4=, 52.
Hayburn case, =3=, 612.
Hayne, Robert Y., on Tariff of 1828, =4=, 537;
Webster debate, 552;
counter on Jackson's Nullification Proclamation, 564, 565.
Haywood, John, on M., =4=, 66.
Haywood, M. D., anecdote on M., =4=, 64 _n._
Hazard, ----, and Henry Lee, =1=, 435 _n._
Haze, Samuel, and Dartmouth College troubles, =4=, 226.
Health, conditions in Washington, =3=, 6.
Heath, John, on Jay Treaty and Fairfax grant, =2=, 129;
as witness in Chase trial, =3=, 191, 192.
Heath, William, and Ratification, =1=, 347.
Henderson, Archibald, in Judiciary debate (1802), =3=, 73.
Henderson, Archibald,
acknowledgments to, =4=, 63 _n._, 64 _n._, 66 _n._
Henderson, Richard H., on M., =4=, 489 _n._
Henfield, Gideon, trial, =3=, 25, 26.
Henry, Patrick, as statesman, =1=, 32;
and Robinson's loan-office bill, 60;
Stamp-Act Resolutions, 62-65;
Resolutions for Arming and Defense, 66;
and Conway Cabal, 121;
in the Legislature, 203, 208;
and Council of State as a machine, 210;
and amendment of Virginia Constitution, 217;
and chancery bill (1787), 219;
and British debts, 226, 229 _n._, 230, 441;
and Confederate navigation act, 235;
and extradition bill (1784), 239;
plan for intermarriage of Indians and whites, 240 _n._;
and calling of Ratification Convention, 245;
fear of the Federal District, 291, 439 _n._;
on popular majority against Ratification, 321;
feared by Constitutionalists, 358;
in campaign for Ratification delegates, 365;
in Ratification Convention: on revolutionary action of Framers, 373,
375;
and Nicholas, 374;
characterized, 375;
in the debate, 375, 388-91, 397-400, 403-06, 428-30, 433, 435, 438,
440, 441, 449, 464;
on consolidated government, 375, 388, 389, 433;
on power of the President, 390;
effect of speeches, 392, 403;
and Philips case, 393 _n._, 398;
on Randolph's change of front, 398, 406;
defense of the Confederation, 388, 389, 399;
on Federal Government as alien, 389, 399, 428, 439 _n._;
on free navigation of the Mississippi, 403, 430, 431;
on obligation of contracts, 428;
on payment of paper money, 429;
on declaring acts void, 429;
on danger to the South, 430;
on standing army, 435;
and M., 438, 464;
on need of a Bill of Rights, 440;
on Federal Judiciary, 449, 464;
on Indian lands, 464;
assault on, speculation, 465-67, =2=, 203 _n._;
in contest over recommendatory amendments, =1=, 469-71, 474;
threat to secede from Convention, 472;
submits, 474, 478;
effect of French Revolution on, =2=, 41, 411;
and opposition after Ratification, 48-50, 57 _n._;
and Federal Convention, 60 _n._;
and assumption of State debts, 65;
on Jefferson and Madison, 79;
and offer of Attorney-Generalship, 124-26;
Federalist, 124 _n._;
and presidential candidacy (1796), 156-58;
on abuse of Washington, 164;
Ware _vs._ Hylton, 188;
champions M.'s candidacy for Congress (1798), 411-13;
on Virginia Resolutions, 411;
Jefferson on support of M., 419, 420;
and Chief Justiceship, =3=, 121 _n._;
in M.'s biography of Washington, 244;
and Yazoo lands, 554.
Herbert, George, on War of 1812, =4=, 51 _n._
Heyward, Mrs. ----, M. and, =2=, 217.
Higginson, Stephen, on Gerry, =2=, 364.
High seas, M. on jurisdiction over crimes on, =2=, 465-67;
as common possession, =4=, 119.
Hill, Aaron, and Kentucky and Virginia Resolutions, =3=, 43.
Hill, Jeremiah, on Ratification contest, =1=, 341;
on importance of Virginia in Ratification, 358.
Hillard, George S., on M., =4=, 61 _n._
Hillhouse, James, and Burr, =3=, 281;
and secession, 281, 289;
on Adams's report on Burr conspiracy, 544;
and Embargo, =4=, 13.
Hinson, ----, and Burr, =3=, 367.
Hitchcock, Samuel, Lyon trial, =3=, 31 _n._
Hite _vs._ Fairfax, =1=, 191-96.
Hobby, William J., pamphlet on Yazoo lands, =3=, 573 _n._
Hoffman, J. Ogden, counsel in _Nereid_ case, =4=, 131.
Hollow, The, M.'s early home, =1=, 36-38.
Holmes, John, in Ratification Convention, =1=, 346.
Holmes, John, counsel in Dartmouth College case, =4=, 239, 253.
Holmes _vs._ Walton, =3=, 611.
Holt, Charles, trial, =3=, 41.
Hooe, Robert T., Marbury _vs._ Madison, =3=, 110.
Hopkinson, Joseph, "Hail, Columbia!" =2=, 343;
counsel for Chase, =3=, 185;
argument, 198;
on Embargo, =4=, 12 _n._;
as practitioner before M., 95;
counsel in Sturges _vs._ Crowninshield, 209;
counsel in Dartmouth College case, 238, 254, 258, 259;
and M., 238 _n._;
appointment as District Judge, 238 _n._;
appearance, 254;
fee and portrait in Dartmouth case, 255 _n._;
and success in case, 274;
counsel in M'Culloch _vs._ Maryland, 285.
Horatius articles, =2=, 541 _n._, 542 _n._
Horses, scarcity, =1=, 162 _n._
Hortensius letter, =2=, 542.
Hottenguer, ----, and M.'s purchase of Fairfax estate, =2=, 205;
as agent in X. Y. Z. Mission, 259-65, 272-78, 281.
House of Burgesses, M.'s father as member, =1=, 58;
control by tide-water aristocracy, 59;
Robinson case, 60;
Henry's Stamp-Act Resolutions, sectional divergence, 61-65.
_See also_ Legislature of Virginia.
Houses, M.'s boyhood homes, =1=, 37, 55;
of period of Confederation, 280, 281.
Hovey, Benjamin, Indiana Canal Company, =3=, 291 _n._
Howard, Samuel, steamboat monopoly, =4=, 415.
Howe, Henry, on frontier illiteracy, =1=, 272 _n._
Howe, Sir William, Pennsylvania campaign, =1=, 92-106.
Hudson River. _See_ Gibbons _vs._ Ogden.
Hulme, Thomas, on frontiersmen, =4=, 189 _n._
Humor, M.'s quality, =1=, 73, =4=, 62, 78, 83.
Humphries, David, on Shays's Rebellion, =1=, 299.
Hunter, David. _See_ Martin _vs._ Hunter's Lessee.
Hunter, William, counsel in Sturges _vs._ Crowninshield, =4=, 209.
Hunter _vs._ Fairfax's Devisee, =2=, 206-08.
_See also_ Martin _vs._ Hunter's Lessee.
Huntingdon, Countess of, on M. as orator, =2=, 188.
Huntington, Ebenezer, on Republican ascendancy (1800), =2=, 521.
Hutchinson, Thomas, and declaring acts void, =3=, 612.
Illinois, prohibits external banks, =4=, 207;
and M'Culloch _vs._ Maryland, 334.
Illiteracy, at period of Confederation, =1=, 272;
later prevalence, =3=, 13 _n._
_See also_ Education.
Immigration. _See_ New York _vs._ Miln.
Immunity of foreign man-of-war, =4=, 122-25.
Impeachment, proposed amendment on, =2=, 141;
as weapon against Federalist judges, =3=, 21;
Monroe's suggestion for Justices (1802), 59;
in debate on repeal of Judiciary Act, 73, 80, 81;
expected excuse in Marbury _vs._ Madison opinion, 62 _n._, 112, 113;
as second phase of attack on Judiciary, 111;
Pickering case, 111, 164-68;
State case of Judge Addison, 112, 163, 164;
and opinion in Marbury _vs._ Madison, 143, 153, 155;
M.'s fear, 155, 176-79, 192, 196;
for political or indictable offense, 158, 164, 165, 168 _n._, 173,
198-200, 202, 207, 206-12;
of all Justices planned, 159, 160, 173, 176, 178;
Marshall as particular object, 161-63;
of Chase voted, 169;
Jefferson and attitude of Northern Republicans, 170, 221;
House manager, 170;
public opinion prepared for trial of Chase, 171;
articles against Chase, 171, 172;
despair of Federalists, 173;
and Yazoo frauds, 174;
arrangement of Senate, 179, 180;
Burr as presiding officer, 180, 183;
efforts of Administration to placate Burr, 181-83;
seat for Chase, 183;
his appearance, 184;
his counsel, 185;
Randolph's opening speech, 187-89;
testimony, 189-92;
M. as witness, 192-96;
conferences of Giles and Randolph, 197;
argument by Manager Early, 197;
by Manager Campbell, 198;
by Hopkinson, 198-201;
Chase trial as precedent, 201;
argument by Key, 201;
by Lee, 201;
by Martin, 201-06;
by Manager Nicholson, 207-10;
by Manager Rodney, 210-12;
by Manager Randolph, 212;
Randolph's praise of M., its political importance, 214-16;
Chase trial and secession, 217;
vote, acquittal, 217-20;
importance of acquittal, 220;
programme abandoned, 222, 389;
M. and acquittal, 222;
threat against M. during Burr trial, 500, 501, 503, 512, 516;
Jefferson urges it, 530-32;
foreign affairs prevent, 545.
Implied powers, in contest over Assumption, =2=, 66, 67;
in Bank controversy, 71-74;
M. upholds (1804), =3=, 162;
interpretation of "necessary and proper laws," =4=, 285, 286,
294-301, 316, 337.
_See also_ Nationalism.
Import duties,
unconstitutionality of State license on importers, =4=, 455-57.
_See also_ Tariff.
Impressment, by British, =2=, 107, =4=, 8;
M.'s protest, =2=, 513;
and perpetual allegiance, =3=, 27 _n._;
_Chesapeake-Leopard_ affair, 475-77, =4=, 9;
discussion of right, 52, 53;
M.'s later opinion, 53-55.
_See also_ Neutral trade.
Imprisonment for debt, =3=, 13 _n._, 15 _n._;
M. on, and obligation of contracts, =4=, 215, 216.
Independence, germ in Henry's Stamp-Act Resolutions, =1=, 63;
anticipation of Declaration, =3=, 118;
M.'s biography of Washington on Declaration, 244.
Indian Queen, boarding-house, =3=, 7.
Indiana, prohibition on external banks, =4=, 207;
and M'Culloch _vs._ Maryland, 334.
Indiana Canal Company, =3=, 291 _n._
Indians, frontier raid, =1=, 1, 30 _n._;
Virginia's attempt to protect (1784), 236-41;
Henry's plan for intermarriage with whites, 240 _n._, 241;
in Ratification debate, 465;
fear of, and Ratification, 476;
and British relations (1794), =2=, 110, 111;
Bowlee's intrigue, 497-99;
and Yazoo lands, =3=, 552, 553, 569, 570;
M. and policy toward, =4=, 542 _n._
_See also_ Cherokee Indians.
Individualism, as frontier trait, =1=, 29, 275;
rampant, 285.
Ingersoll, Charles J., practitioner before M., =4=, 237 _n._
Ingersoll, Jared, Hunter, _vs._ Fairfax, =2=, 207.
Ingraham, Edward D., escort for M.'s body, =4=, 588.
Inman, Henry, portrait of M., =4=, 522 _n._
Innes, Harry, and Burr, =3=, 318.
Innes, James, as lawyer, =1=, 173;
characterized, 473;
in Ratification Convention, 474;
and Cabinet office, =2=, 124;
Ware _vs._ Hylton, 188.
Insolvency. _See_ Ogden _vs._ Saunders; Sturges _vs._ Crowninshield.
Inspection laws, State, and commerce clause, =4=, 436.
_See also_ Police powers.
Internal improvements, Potomac River (1784), =1=, 217;
Burr's plan for Ohio River canal, =3=, 291 _n._;
M. and Virginia survey, =4=, 42-45;
demand, 416;
Bonus Bill, Madison's veto, 417;
later debate, Randolph's speech on Nationalism, 418-21;
Jackson's pocket veto of River and Harbor Bill, 534.
International law, Jonathan Robins case, =2=, 465-71;
_Amelia_ case and law of prize, =3=, 16, 17;
_Adventure_ case, ocean as common property, =4=, 119;
M.'s contribution, 121;
_Exchange_ case, immunity of foreign man-of-war, 121-25;
United States _vs._ Palmer, _Divina Pastora_, belligerency of
revolted province, 126-28;
_Venus_ case, domicil and enemy character, 128, 129;
_Nereid_ case, neutral property in enemy ship, 130, 135-42;
recognition of slave trade, 476, 477.
Iredell, James, Ware _vs._ Hylton, =2=, 188;
on Virginia Resolutions, 399;
on Fries's Insurrection, 429, =3=, 35;
and common-law jurisdiction, 25;
and declaring acts void, 117;
and constructive treason, 403.
Iron Hill engagement, =1=, 93, 94.
Irving, Washington, on trial of Burr, =3=, 400, 416, 432, 435, 456,
457 _n._, 464 _n._, 477, 478 _n._
Irwin, Jared, and Yazoo frauds, =3=, 562.
Isham, Mary, descendants, =1=, 10.
Isham family, lineage, =1=, 10.
Isolation, M. and policy, =2=, 235, 388, =3=, 14 _n._;
need in early Federal history, =4=, 6;
local, 191.
_See also_ Neutrality.
Iturrigaray, José de, and Wilkinson, =3=, 329.
Jackson, Andrew, and Washington, =2=, 165 _n._;
duelist, =3=, 278 _n._;
and Burr conspiracy, 292, 295, 296, 305, 326, 361;
prepares for war with Spain, 313;
and rumors of disunion, 326;
at trial of Burr, denounce Jefferson and Wilkinson, 404, 429, 457,
471;
appearance, 404;
Burr's gratitude, 405;
battle of New Orleans, =4=, 57;
M. and candidacy (1828), 462-65;
contrasted with M., 466;
M. on inauguration, 466;
appointments to Supreme Court, 510, 581, 582, 584, 584 _n._;
war on the Bank, veto of recharter, 529-33;
pocket veto of River and Harbor Bill, 534;
place in M.'s inclination to resign, 519, 521;
M. and election of 1832, 534;
withdraws deposits from the Bank, 535;
Kent's opinion, 535 _n._;
and Georgia-Cherokee controversy, 540, 541, 547, 548, 551;
M. rebukes on Cherokee question, 546;
Union toast, 557;
warning to Nullifiers, 558;
Nullification Proclamation, its debt to M., 562, 563;
M.'s commendation, 563;
reply of South Carolina, his inconsistency with attitude on Cherokee
question, 564, 565;
recommends tariff reduction, 567;
Virginia and attitude on Nullification, 570;
character of Southern support, 578.
Jackson, Francis James, as Minister, =4=, 23-26.
Jackson, James, on Judiciary Act of 1789, =3=, 54;
journey (1790), 55 _n._;
in debate on repeal of Judiciary Act, 61;
and Chase trial, 220, 221;
and Yazoo frauds, 560-62, 565;
resigns from Senate, 561.
Jackson _vs._ Clarke, =4=, 165 _n._
James River Company, =2=, 56.
Jameson, J. Franklin, acknowledgments to, =4=, 63 _n._, 68 _n._
Jarvis, Charles, in Ratification Convention, =1=, 348.
Jarvis, William C, attack on M., =4=, 362.
Jay, John, on frontiersmen and Indians, =1=, 236, 237;
on demand for equality in all things, 295;
distrust of democracy, 300, 308;
on failure of requisitions, 305;
on decline of Continental Congress, 305 _n._;
on ability to pay public debt, 306, 306 _n._;
on extravagance, 306 _n._;
Jay Treaty, =2=, 113-15;
Ware _vs._ Hylton, 188;
refuses reappointment as Chief Justice, 552, =3=, 120 _n._;
and common-law jurisdiction, 24, 25;
on defective Federal Judiciary, 55;
and declaring acts void, 117;
and Manhattan Company, 287 _n._;
and Livingston steamboat monopoly, =4=, 407.
Jay Treaty, cause of negotiations, =2=, 108-13;
unpopularity of negotiation, 113;
humiliating terms, 114;
popular demonstrations against, 115-18, 120;
commercial and financial support, 116, 148;
Jefferson on, 118, 121;
question of constitutionality, 119, 128, 133-36;
Hamilton's defense, Camillus letters, 120;
attitude of Virginia, 120;
protests, 126;
typical address against, 126-29;
M.'s defense, 126, 129 _n._;
and free ships, free goods, 128, 303-05;
resolutions of Virginia Legislature, 131-37;
indirect legislative censure of Washington, 137-40;
proposed constitutional amendments caused by, 141-13;
contest in Congress, petitions, 148, 149, 155;
Richmond meeting and petition favoring, 149-55;
M. and commissionship under, 200-02;
France and, 223;
and X. Y. Z. Mission, 303-08;
submitted to French Minister, 305;
and contraband, 306;
Jonathan Robins case under, 458-75;
disruption of commission on British debts, 500-02;
M. and disruption and compromise, 502-05;
Federal common-law trials for violating, =3=, 24-29;
divulged, 63 _n._;
settlement of British debts, 103;
and land grants, =4=, 148, 153, 157
Jefferson, Jane (Randolph), =1=, 10, 11.
Jefferson, Peter, similarity to M.'s father, =1=, 11;
ancestry, 11 _n._
Jefferson, Thomas,
_pre-presidential years_:
relations with M., =1=, 9, 10;
similarity in conditions of M.'s birth, 11 _n._;
Randolph and Isham ancestry, 10, 11;
Jefferson ancestry, 11, 12;
landed estate, 20 _n._;
on Virginia society, 21, 22;
as statesman, 32;
accused of shirking duty during Revolution, 126-30;
in service of State, 128;
as Governor, 143;
and Arnold's invasion, 143-45;
and Rebecca Burwell, 149;
on William and Mary, 156;
licenses M. to practice law, 161;
as letter writer, 183 _n._;
in Legislature, 203;
use of Council of State as a machine, 210;
chancery act (1777), 219;
on British debts, 223 _n._, 228 _n._, 295 _n._;
debts for slaves, 224 _n._;
cause of retained faith in democracy, 253;
on hardships of travel, 259;
use of cipher, 266 _n._;
on license of the press, 270;
on sectional characteristics, 278-80;
inappreciative of conditions under Confederation, 286, 314-16;
on the Cincinnati, 292;
defense of Shays's Rebellion, preparation to lead radicalism,
302-04, =2=, 52;
dislike of commerce, =1=, 316;
on Randolph and Ratification, 378;
favors amendment before Ratification, 478;
influence of French Revolution on, =2=, 4, 44;
on first movements of it, 5;
approbation of _Rights of Man_, 14, 15, 16 _n._;
on Publicola papers, 19 _n._;
on St. Domingo negro insurrection, 21;
on influence of French Revolution on American government, 24, 39;
upholds excesses of French Revolution, 25, 26;
on reception of Genêt, 29;
development of Republican Party, 46, 81-83, 91, 96;
political fortunes broken (1785), 46 _n._;
first attitude toward Federal Constitution, 47;
cold reception (1789), 57;
deal on Assumption and Capital, 63, 64, 82 _n._;
tardy views on unconstitutionality of Assumption, 70;
opinion on Bank of United States, 71;
converts Madison, 79;
attempt to sidetrack M. (1792), 79-81;
and antagonism in Cabinet, 82;
on results of funding, 85;
and Whiskey Insurrection, 90, 91;
opposition to Neutrality, 94;
resignation from Cabinet, 96;
and drinking, 102 _n._;
attacks Jay Treaty, 118, 121;
accuses M. of hypocrisy (1795), 139, 140;
and abuse of Washington, 164;
growth of feud with M., 165;
on M.'s reason for accepting French mission, 211;
and Monroe's attack on Washington, 222 _n._;
and appointment to X. Y. Z. Mission, 227;
and Gerry's appointment, 227;
experience in France contrasted with M.'s, 289;
and news of X. Y. Z. Mission, 335;
and X. Y. Z. dispatches, 336, 339-41;
and M.'s return and reception, 345, 346;
call on M., 346, 347;
and expected French War, 358;
open warfare on M., 358;
attempt to undo effect of X. Y. Z. Mission, 359-63, 368;
and Langhorne letter, 375 _n._;
and Alien and Sedition Acts, hysteria, method of attack, 382,
384, 397, 399;
Kentucky Resolutions, 397;
expects M.'s defeat (1798), 411;
and M.'s election, 419;
on Henry's support of M., 419, 420;
on general election results (1798), 420;
and M.'s visit to Kentucky, 421;
on renewal of French negotiations, 428;
on M. and Disputed Elections Bill, 456;
and Jonathan Robins case, 459, 475;
blindness to M.'s merit, 475;
on Burr and Republican success (1800), 535 _n._;
M.'s opinion (1800), 537;
Mazzei letter, 537 _n._, 538 _n._;
and Judiciary Bill, 549, 550;
on Chief Justiceship (1801), 553 _n._;
on midnight appointments, 561 _n._, 562;
inappreciative of importance of M.'s Chief Justiceship, 562;
in Washington boarding-house, =3=, 7;
on common-law jurisdiction of National Judiciary, 29;
on Lyon trial, 31;
on right of judges to declare acts void (1786), 117;
merits of Declaration of Independence, 118.
_See also_ Elections (_1800_).
_As President and after_:
Wines, =3=, 9;
M. on, as terrorist, 11;
on Federalist forebodings, 14;
on renewal of European War, 14;
policy of isolation, 14 _n._;
and bargain of election, 18;
M. on inaugural, 18;
programme of demolition, caution, 18-20;
and popularity, 19 _n._;
plans against National Judiciary, suppressed paragraph of
message (1801), 20-22, 51-53, 57, 605, 606;
on Judiciary as Federalist stronghold, 21;
and repeal of Judiciary Act of 1801, 21 _n._;
and subpoena in Burr trial, 33, 86 _n._, 323, 433-47, 450, 454-56,
518-22;
and Callender, 36, 38;
on Giles, 75 _n._;
partisan rewards by, 81 _n._, 208;
Morris on, 90 _n._;
as following Washington's footsteps, 100 _n._;
and settlement of British debt controversy, 103;
and Adams's justices of the peace, 110;
desires to appoint Roane Chief Justice, 113;
and opinion in Marbury _vs._ Madison, 143-45, 154 _n._, 431, 432;
branches of the Bank and practical politics, 145;
and New Orleans problem, 145, 146;
dilemma of Louisiana Purchase, 147-49;
secretiveness, 149;
scents Republican misgivings of assault on Judiciary, 155;
and _Aurora's_ condemnation of Judiciary, 159 _n._;
head of impeachment programme, 160;
and impeachment of Pickering, 164 _n._, 165, 166;
and impeachment of Chase, 170;
break with Randolph, 174;
advances to Burr during Chase trial, 181, 182;
reward of Pickering trial witnesses, 181;
reëlected, 197;
Rodney's flattery, 212;
abandons impeachment programme, 221, 389;
plan to counteract M.'s biography of Washington, 228, 229;
preparation of Anas, 229;
M. on, in the biography, 244, 259, 263, 263 _n._;
on the biography, 265-69;
on Botta's History, 266;
hostility to Burr, 279, 280;
and secession of New England, 283, =4=, 15 _n._, 30 _n._;
and war with Spain, =3=, 285, 301, 313, 383 _n._;
and Miranda, 300, 301;
receives Burr (1806), 301;
hostility of naval officers, 302, 458 _n._, 459 _n._;
and Eaton, 302;
Eaton's report to, of Burr's plans, 304;
and other reports, 305, 310, 315, 317, 323, 338 _n._;
Wilkinson's revelation of Burr's plans, 321, 322;
action on Wilkinson's revelation, proclamation, 324, 327;
Annual Message on Conspiracy, 337;
Special Message declaring Burr guilty, 339-41;
its effect, 341;
and Swartwout and Bollmann, 344, 391, 392, 430;
on arrest of Burr, 368 _n._;
M.'s reflection on conduct in conspiracy, 376;
as prosecutor, prestige involved, on the trial, 383-91, 406, 417,
419, 422, 430-432, 437, 451, 476, 477, 499;
continued hostility to Judiciary, 384, 388, =4=, 339, 362, 363,
368-70, 538;
on making stifled evidence at Burr trial public, =3=, 422, 515;
pardons to obtain evidence, 392, 393;
M.'s defiance at trial of Burr, 404;
Jackson's denunciation, 404, 457 _n._;
Hay's reports on Burr trial, 415;
on Martin, 450, 451;
bolsters Wilkinson, 472;
and _Chesapeake-Leopard_ affair, 475-77, =4=, 9;
orders further trials of Burr, =3=, 515, 522;
and Daveiss's pamphlet, 525;
and attacks on M. during trial, 526, 535;
Message on trial, hints at impeachment of M., 530-32;
on Georgia's western claim, 553;
and Yazoo claims, 592;
prejudice-holding, =4=, 2;
love of France, 3;
and attacks on neutral trade, 7 _n._, 8, 9, 11;
hostility to England, 8, 11 _n._, 26 _n._;
on Federalist defense of British, 10;
toast on freedom of the seas, 23;
and Hay's pamphlet on impressment, 53;
on M.'s control over Supreme Court, 59;
and M.'s integrity, 90 _n._;
enmity to Story, 98-100;
Livingston case and Madison's judicial appointments, 100-16;
control of Virginia politics, 146;
and Martin _vs._ Hunter's Lessee, 160;
and first Bank of the United States, 172;
and second Bank, 180 _n._;
on _Niles' Register_, 183 _n._;
on financial madness (1816), 186;
on crisis of 1819, 204;
on Nathaniel Niles, 227;
on charters and obligation of contracts, 230 _n._;
and Taylor's exposition of State Rights, 339;
M. on Jefferson's later attacks, 363-66;
advocates resistance by States, 368;
and amendment on Judiciary (1821), 371, 378;
and demand for revision of Virginia Constitution, 468, 469,
502 _n._, 508;
called theoretical by Giles, 491;
M.'s attitude toward, 579, 580.
Jenkinson, Isaac, account of Burr episode, =3=, 538 _n._
Jennings, William H., Cohens _vs._ Virginia, =4=, 345.
Johnson, James,
and second Bank of the United States, =4=, 196 _n._, 288.
Johnson, Reverdy, counsel in Brown _vs._ Maryland, =4=, 455 _n._
Johnson, Richard M., on Missouri question, =4=, 341;
proposed amendment and attack on Judiciary, 371-79, 450.
Johnson, William, opinion on common-law jurisdiction, =3=, 28 _n._;
appointed Justice, 109 _n._, 159 _n._;
and mandamus, 154 _n._;
biography of Greene, 266;
and release of Swartwout and Bollmann, 349;
opinion in Fletcher _vs._ Peck, 592;
character, =4=, 60;
appearance, 132;
dissent in Martin _vs._ Hunter's Lessee, 157, 165, 166;
and Dartmouth College case, 255, 256, 258 _n._;
dissent in Green _vs._ Biddle, 381 _n._;
Nationalist opinion in Elkison case, 382, 383;
opinion in Osborn _vs._ Bank, 394;
opinion in Gibbons _vs._ Ogden, 443-45;
opinion in Ogden _vs._ Saunders, 481 _n._;
dissent in Craig _vs._ Missouri, 513;
ill, 582;
and Briscoe _vs._ Bank and New York _vs._ Miln, 583;
death, 584.
Johnson, William S., and Judiciary Act of 1789, =3=, 129.
Johnson, Zachariah, in Virginia Ratification Convention, =1=, 474.
Johnson _vs._ Bourn, =2=, 181 _n._
Johnston, Josiah S., on Nullification, =4=, 555.
Johnston, Samuel, on hardships of travel, =1=, 255.
Jonathan Robins case, facts, =2=, 458;
Republican attacks, 459;
before Congress, proof that Nash was not American, 460;
basis of debate in House, 460, 461;
Republican attempts at delay, 461-64;
M.'s speech, 464-71;
exclusive British jurisdiction, 465, 466;
not piracy, 467;
duty to deliver Nash, 467;
not within Federal judicial powers, 468-70;
incidental judicial powers of Executive, 470;
President as sole organ of external relations, 470;
comments on M.'s speech, its effect, 471-75.
Jones, James, and slavery, =2=, 450.
Jones, Walter,
counsel in Fairfax's Devisee _vs._ Hunter's Lessee, =4=, 156;
counsel in M'Culloch _vs._ Maryland, 285, 286.
Joynes, Thomas R., on M., =4=, 489 _n._
Judge-made law,
and Federal assumption of common-law jurisdiction, =3=, 23;
Johnson on, =4=, 372.
_See also_ Declaring acts void.
Judiciary, Federal, arguments on, during Ratification debate,
=1=, 334, 426, 444, 461, 464;
expected independence and fairness, 430, 451, 459;
and gradual consolidation, 446;
jury trial, 447, 449, 456, 457;
M. on, in Convention, 450-61;
inferior courts, 451;
extent of jurisdiction, 452, 454-56, =2=, 468-70;
concurrent jurisdiction, =1=, 452;
as a relief to State courts, 453;
proposed amendment on, 477;
British-debts cases, =2=, 83;
suits against States, Eleventh Amendment, 83 _n._, 84 _n._,
=3=, 554, =4=, 354, 385, 387-91;
proposed amendment against pluralism, =2=, 141;
incidental exercise of powers by Executive, 470;
M. favors extension (1800), 531;
Federalist plans to retain control, 547, 548;
Republican plans against, =3=, 19-22;
as Federalist stronghold, 21, 77;
Federalist expectation of assault, 22;
assumption of common-law jurisdiction, 23-29, 78, 84, =4=, 30 _n._;
conduct of sedition trials, =3=, 29-43;
lectures from the bench, 30 _n._;
results on public opinion of conduct, 47, 48;
defects in act of 1789, 53-56, 81, 117;
effect of Marbury _vs._ Madison on Republican attack, 143, 153, 155;
and campaign of 1804, 145;
assault and Federalist threats of secession, 151, 152;
Republican misgivings on assault, 155;
_Aurora_ on, 159 _n._;
removal on address of Congress, 167, 221, 389;
political speeches from bench, 169, 206;
M. suggests legislative reversal of judicial decisions, 177, 178;
stabilizing function in a republic, 200;
necessity of independence, 200, 204, 373;
Jefferson's continued hatred, 384, 388, =4=, 339, 362-66, 368-70;
Federalist attacks, 30 _n._;
effort for court of appeals above Supreme Court, 323, 325;
right of original jurisdiction, 385-87;
proposed amendment for limited tenure, 517 _n._;
as interpreter of Constitution, 554.
_See also_ Contracts; Declaring acts void; Impeachment; Judiciary
Act of 1801; Marshall, John (_Chief Justice_); Supreme Court.
Judiciary, State, equity, =1=, 218-20;
popular antagonism during Confederation, 297-99, =3=, 23 _n._;
conduct of sedition trials, 43-47;
conduct of Republican judges, 48 _n._;
Virginia, as political machine, =4=, 146, 485-88;
controversy over, in New Hampshire, 229, 230;
M.'s report on, in Virginia Constitutional Convention, 485;
tenure of judges and discontinued offices, 485, 490, 493-501;
removal of judges, 485;
extent of reform demanded in Virginia, 488;
debate in her Convention, 489-501.
Judiciary Act of 1801, bill, =2=, 548;
character of first Republican opposition to it, 549, 550, 555 _n._;
Federalist toast, 548 _n._;
debate and passage of bill, 550-52;
Fairfax estate in debate, 551;
midnight appointments, 559-62;
importance of repeal debate, =3=, 50, 75;
Jefferson and attack, last hour changes in Message, 51-53, 605;
character of act, 53, 56;
extravagance as excuse for repeal, 57, 58, 64;
repeal debate in Senate, 58-72;
tenure of judge and abolition of office, 59, 63, 607-10;
and declaring acts void, 60, 62, 64, 67-71, 73, 74, 82, 85, 87, 91;
independence _versus_ responsibility of Judiciary, 60, 61, 65, 68,
74, 88;
fear of Judiciary, 61;
Marbury _vs._ Madison in debate, 61 _n._, 63, 78, 80, 86, 90;
select committee and discharge of it, 67, 68, 279;
indifference of mass of Federalists, 71;
vote in Senate, 72;
attempt to postpone in House, 72;
Federalist threats of secession, 72, 73, 82, 89, 93, 97, 98;
debate in House, 73-91;
and impeachment of Justices, 73, 80, 81;
Republican concern, 76 _n._;
Republicans on origin of act, 76-78;
Supreme Court and annulment of repeal, 85, 91, 92, 95-97, 122, 123,
=4=, 489, 490;
predictions of effect of repeal, =3=, 88;
Federal common-law jurisdiction, 78, 84, 89;
vote in House, 91;
reception of repeal, 92-94, 97-100;
act on disability of judges, 165 _n._
Jury trial,
Reconstruction debate on Federal, =1=, 447, 449, 456, 457, 464;
juries in sedition cases, =3=, 42.
Kamper _vs._ Hawkins, =3=, 612.
Keith, James, M.'s grandfather, career, =1=, 17, 18.
Keith, James, on M., =4=, 67 _n._
Keith, Mary Isham (Randolph), M.'s grandmother, =1=, 10, 17.
Keith, Mary Randolph, M.'s mother, =1=, 10.
_See also_ Marshall, Mary Randolph (Keith).
Kendall, Amos, as Jackson's adviser, =4=, 532 _n._
Kent, James, on M.'s biography of Washington, =3=, 265;
on Livingston _vs._ Jefferson, =4=, 114;
standing as judge, 256;
and Dartmouth College case, 256, 258 _n._;
and Supreme Bench, 256 _n._, 369 _n._;
on Livingston's steamboat monopoly and interstate commerce, 406-12,
430, 441;
on Jackson, 535 _n._;
on M.'s decline, 586.
Kent, Joseph, votes for war, =4=, 29 _n._
Kent, Moses, letters, =4=, 84 _n._
Kenton, Simon, birth and birthplace, =1=, 9 _n._
Kentucky, delegates in Ratification Convention, influences on,
=1=, 384, 399, 403, 411, 420, 430-32, 434, 443;
Virginia act for statehood, =2=, 55;
land case, =3=, 17;
and repeal of Judiciary Act of 1801, 58 _n._;
Burr in, 291, 296, 313-19;
bank mania and distress, =4=, 187, 204, 205;
and M'Culloch _vs._ Maryland, 314, 334;
Green _vs._ Biddle, occupying claimant law, 375-77, 380-82.
_See also_ next title.
Kentucky Resolutions, purpose, =2=, 397;
Taylor's suggestion of nullification doctrine, 397;
production, 397;
importance, 398;
Hamilton on, 408;
consideration in Massachusetts, =3=, 43;
Dana on, 45;
as Republican gospel, 105-08;
resolutions in Federalist States on, 105 _n._, 106 _n._
_See also_ State Rights.
Kercheval, Samuel,
and Jefferson's letter on Virginia Constitution, =4=, 468, 469.
Key, Francis S., counsel for Swartwout and Bollmann, =3=, 345.
Key, Philip B., counsel for Chase, =3=, 185;
argument, 201.
King, Rufus,
on Ratification in Massachusetts, =1=, 340, 347, 348 _n._, 351;
and organization of Constitutionalists, 357;
and Henry's presidential candidacy (1796), =2=, 156;
on M. as lawyer, 191;
and M. (1796), 198;
conciliatory letter to Talleyrand (1797), 252, 253;
and X. Y. Z. Mission, 286, 295, 364;
and presidential candidacy (1800), 438;
and British-debts dispute, 502-05, =3=, 103;
on fever in Washington, 6;
in Federal Convention, on declaring acts void, 115 _n._;
and on obligation of contracts, 557 _n._;
on Adams's Burr conspiracy report, 543 _n._;
and Yazoo lands, 570;
on bank mania and crisis of 1819, =4=, 181, 206 _n._;
and American Colonization Society, 475.
Knox, Henry, army intrigue against, =1=, 122;
on spirit of anarchy, 275;
on demand for division of property, 298;
on Shays's Rebellion, 300;
on Henry as Anti-Constitutionalist, 358;
support of Adams (1800), =2=, 518;
enmity toward Hamilton, 518 _n._
Knox, James, and Burr conspiracy, =3=, 473.
Kremer, George, attack on Clay, =4=, 462 _n._
Labor, attitude toward, in colonial Virginia, =1=, 21;
price (c. 1784), 181;
M. and problem, =4=, 472.
Lafayette, Marquis de, on Washington at Monmouth, =1=, 136;
on French indifference to reforms (1788), =2=, 6;
value of letters on French Revolution, 7 _n._;
and key of the Bastille, 9;
M. and imprisonment, 32-34;
and American Colonization Society, =4=, 474, 476 _n._
Lamb, John, on Washington and Federal Constitution, =1=, 331 _n._
Lamballe, Madame de, executed, =2=, 27 _n._
Land, M. on colonial grants, =1=, 191-96;
Virginia grants and Ratification, 445, 447-49, 458;
Indian purchases, 464, 465;
speculation, =2=, 202;
M. on tenure in France (1797), 268-70;
Kentucky case, =3=, 17;
importance in early National history, 556;
Kentucky occupying claimant law, =4=, 375-77, 380-82.
_See also_ Fairfax estate; Public lands; Yazoo.
Langbourne, William, Burr's security, =3=, 429 _n._, 517.
Langdon, John, on Ratification in New Hampshire, =1=, 354.
Langhorne letter to Washington, =2=, 375 _n._
Lanier, Clem, and Yazoo lands act, =3=, 546, 547.
Lansing, John, decision on Livingston steamboat monopoly, =4=, 405.
La Rochefoucauld Liancourt, Duc de,
on Virginia social conditions, =1=, 20 _n._;
on frontiersmen, 275 _n._, 276 _n._, 281 _n._;
on social contrasts, 280 _n._;
on drinking, 282;
on court days, 284 _n._;
on speculation and luxury in Philadelphia, =2=, 85 _n._;
on M. as a lawyer, 171;
on M.'s character, 196, 197.
Latrobe, B. H., and Burr, =3=, 311 _n._
Law and lawyers, Virginia bar (1780), =1=, 173;
extent of M.'s studies, 174-76;
M.'s argument in Hite _vs._ Fairfax, colonial land grants, 191-96;
M. as pleader, =2=, 177-82, 192-96;
M.'s argument in Ware _vs._ Hylton, 186-92;
practice and evidence, =3=, 18;
popular hostility, 23 _n._;
M.'s popularity with, =4=, 94;
character of practitioners before him, 94, 95, 132-35;
oratory and woman auditors, 133, 134;
as publicists, 135;
fees, 345 _n._
_See also_ Judiciary.
Law and order, frontier license, =1=, 29, 235, 239, 274;
M. on, =3=, 402.
_See also_ Government.
Lear, Tobias, on Ratification in New Hampshire, =1=, 354, 354 _n._;
and Eaton, =3=, 303 _n._
Lecompte, Joseph, and Supreme Court, =4=, 517 _n._
Lee, Arthur, and Beaumarchais, =2=, 292 _n._
Lee, Gen. Charles, on militia, =1=, 86;
Monmouth, 135-37.
Lee, Charles, of Va., and Jay Treaty, =2=, 132, 133;
and legislative implied censure of Washington, 138;
and Federal office for M., 201;
Hunter _vs._ Fairfax, 207, =4=, 156;
on M. and new French negotiations, =2=, 428;
_Aurora_ on, 492;
counsel in Marbury _vs._ Madison, =3=, 126, 130 _n._;
counsel for Chase, 185;
counsel for Swartwout and Bollmann, 345;
counsel for Burr, on overt act, 500;
report on Yazoo lands, 570.
Lee, Henry, Randolph ancestry, =1=, 10;
in charge of light infantry, 142;
Pawles Hook, 142;
in the Legislature, 208;
in Ratification Convention: and haste, 372;
characterised, 387;
in the debate, 387, 423, 430, 467;
taunts Henry, 406;
on prospects, 434;
Hamilton's financial aid, 435 _n._;
on threat of forcible resistance, 467;
and Whiskey Insurrection, =2=, 87;
and Fairfax estate, 100, 204;
and enforcement of neutrality, 104, 106;
and Jay Treaty, 132;
and Henry's presidential candidacy, 157;
candidacy (1798), 416;
and "first in war" description, 443-45;
and powers of territorial Governor, 446 _n._;
and slavery, 449;
and Adams's advances to Jefferson, 519 _n._;
and Jefferson, =4=, 579.
Lee, Richard Henry, lease to M.'s father, =1=, 51;
in the Legislature, 203, 208;
on distance as obstacle to Federal Government, 256;
on revolutionary action of Framers, 324;
in campaign for Ratification delegates, arguments, 366;
and title for President, =2=, 36;
chosen Senator, 50.
Lee, Robert E., Randolph ancestry, =1=, 10.
Lee, S., on Ratification contest, =1=, 341.
Lee, Thomas Ludwell, lease to M.'s father, =1=, 51.
Leggett, William, hostile criticism of M.'s career, =4=, 591.
Legislature of Virginia, M.'s elections to, =1=, 164, 202, 211, 212,
228, 242, =2=, 54, 130, 159;
aspect and character after the Revolution, =1=, 200-02, 205-08;
M.'s colleagues (1782), 203;
organisation (1782), 203;
M.'s committee appointments, 204, 213;
regulation of elections, 207;
commutable act, 207;
citizenship bill, 208;
relief bill for Thomas Paine, 213;
loyalists, 214;
insulted, 215;
avoids just debt, 215;
and amendment of State Constitution, 216;
Potomac River improvement, 217, 218;
chancery act, 218-20;
religious freedom, 221, 222;
British debts, 224-31;
and Confederate impost, 233;
and Continental debt, 234, 235;
and Confederate navigation acts, 234, 235;
foreign extradition act, 235-41;
calling of Ratification Convention, 244-48;
hope of Anti-Constitutionalists in, 462, 463, 468;
and Clinton's letter for second Federal Convention, 477;
attempt to undo Ratification, =2=, 48-51, 57 _n._;
measures (1789), 55-57;
ratifies first ten Federal amendments, 57, 58;
on assumption of State debts, 65-69;
and Federal suits on British debts, 83;
and suits against States, 83;
hostility to Bank of United States, 84;
and investigation of Hamilton, 84;
resolutions on Jay Treaty, 131-37;
virtual censure of Washington, 137-40;
Federal constitutional amendments proposed by, 141-43;
cold address to Washington (1796), 149-52;
and compromise on Fairfax estate, 208;
M. foretells Virginia Resolutions, 395;
passage of the Resolutions, 399;
Madison's address of the majority, 400, 401;
M.'s address of the minority, 402-06;
military measures, 406, 408;
proposed appropriation to defend Callender, =3=, 38 _n._;
Olmstead case and Nationalism, =4=, 21 _n._;
censure of M'Culloch _vs._ Maryland and restrictions on Missouri,
324-27;
proposed amendment on Federal Judiciary, 371, 378;
and Nullification, 558, 567-73.
_See also_ House of Burgesses.
Leigh, Benjamin Watkins, practitioner before M., =4=, 237 _n._;
in Virginia Constitutional Convention, 502 _n._;
Virginia commission to South Carolina, 573;
tribute to M., 590;
and Quoit Club memorial to M., 592.
Leigh, Nicholas, practitioner before M., =4=, 237 _n._
Leipzig, battle of, =4=, 51.
_Leopard-Chesapeake_ affair, =3=, 475-77, =4=, 9.
Letcher, Robert P., attack on Supreme Court, =4=, 394.
Lewis, B., sells house to M., =1=, 189.
Lewis, Morgan, and Livingston steamboat monopoly, =4=, 409 _n._
Lewis, William, in Fries trial, =3=, 35.
Lewis, William B., as Jackson's adviser, =4=, 532 _n._
Lewis, William D.,
on opinion in M'Culloch _vs._ Maryland, =4=, 289 _n._
_Lex Mercatoria_, as a vade mecum, =1=, 186 _n._
Lexington, Ky., and Jay Treaty, =2=, 118.
Liberty, J. Q. Adams on genuine, =2=, 17, 18.
_See also_ Government.
Libraries, in colonial Virginia, =1=, 25.
License, unconstitutionally of State, of importers, =4=, 454-59.
Lincoln, Abraham, resemblance to M., =4=, 92, 93;
M.'s M'Culloch _vs._ Maryland opinion and Gettysburg Address,
293 _n._;
as expounding M.'s doctrines, 344;
and Union and slavery, 473.
Lincoln, Benjamin, and the militia, =1=, 86;
on Shays's Rebellion and Ratification, 343, 347 _n._;
and Embargo, =4=, 16.
Lincoln, Levi, midnight-appointments myth, =2=, 561, 562;
and Marbury _vs._ Madison, =3=, 126;
commission on Georgia cession, 574 _n._;
and Justiceship, =4=, 108, 109.
Lindsay _vs._ Commissioners, =3=, 613.
Linn, James, and election of Jefferson, reward, =3=, 81 _n._
Liston, Robert, and Bowles, =2=, 498.
Literature, in colonial Virginia, =1=, 24, 25, 43;
M.'s taste and reading, 41, 44-46, =4=, 79, 80;
M.'s book-buying, =1=, 184-86, =2=, 170;
Weems's orders for books (c. 1806), =3=, 252 _n._, 253 _n._
Little _vs._ Barreme, =3=, 273 _n._
Livermore, Samuel, on Judiciary Act of 1789, =3=, 54.
Livingston, Brockholst, on Fletcher _vs._ Peck, =3=, 585;
appearance, =4=, 132;
and Dartmouth College case, 255-57, 258 _n._, 275;
death, 256 _n._
Livingston, Edward, and Jonathan Robins case, =2=, 461, 474;
and Wilkinson's reign of terror, =3=, 335;
Jefferson's hatred, 335 _n._;
Batture litigation, Jefferson case, =4=, 100-16;
later career, 115 _n._;
Jackson's Nullification Proclamation, 562.
Livingston, John R. _See_ North River Steamboat Co. _vs._ Livingston.
Livingston, Robert R., and steamboat experiments, =4=, 398, 399;
grants of steamboat monopoly in New York, 399;
and steamboats on the Mississippi, monopoly in Louisiana, 402, 414;
monopoly and interstate voyages, 403, 404;
suits, 405-09.
_See also_ Gibbons _vs._ Ogden.
Livingston, William, on militia, =1=, 86;
on evils of paper money, 296.
Livingston _vs._ Jefferson, =4=, 100-16.
Livingston _vs._ Van Ingen, =4=, 405-09.
Loan certificates. _See_ Craig _vs._ Missouri.
Localism, and isolation, =4=, 191.
_See also_ Nationalism; State Rights.
Logan, ----, on Ratification in Virginia, =1=, 445.
London, John, and Granville heirs case, =4=, 155 _n._, 156 _n._
Longstreet, William, and Yazoo lands act, =3=, 546-48.
Lord, John K., acknowledgment to, =4=, 233 _n._
Lotteries, popularity, =2=, 56 _n._;
for public funds, =4=, 344 _n._
_See also_ Cohens _vs._ Virginia.
Louis XVI and early French Revolution, =2=, 31 _n._
Louisiana, admission as reason for secession, =4=, 27;
grant of steamship monopoly, 402, 414.
Louisiana Purchase, retrocession to France, =3=, 146;
Jefferson and problem of New Orleans, 146;
treaty, 147;
Jefferson's dilemma, 147-49;
attitude of Federalists, 148-53.
Louisville, first steamboat, =4=, 403 _n._
Love, William, testimony in Burr trial, =3=, 488.
Lovejoy, King, and Ratification, =1=, 341.
Lovell, Sarah (Marshall), =1=, 485.
Lowell, John, on Adams's Burr conspiracy report, =3=, 543 _n._;
as British partisan, =4=, 9;
opposition to War of 1812, 45, 46;
on impressment, 53.
Lowdermilk, Will H., on Braddock's defeat, =1=, 2 _n._-6 _n._
Lowndes, William, and War of 1812, =4=, 29;
on Bank of the United States, 289.
Lowrie, Walter, on Missouri question, =4=, 342.
Loyalists, Virginia post-Revolutionary legislation, =1=, 214;
support Ratification, 423 _n._;
attitude (1794), =2=, 110;
Federalists accused of favoring, =3=, 32;
in M.'s biography of Washington, 245.
Lucas, John C. B., and Addison, =3=, 47 _n._
Lucius letters, =2=, 543 _n._
Luckett, John R. N., and Adair, =3=, 336.
Lumpkin, Wilson,
defies Supreme Court in Cherokee question, =4=, 548, 551, 552 _n._
Lusk, Thomas, in Ratification Convention, =1=, 346.
Lynch, Charles, and Burr, =3=, 313.
Lynchburg, Va., tribute to M., =4=, 591.
Lyon, Matthew, conviction for sedition, =3=, 30, 31;
lottery to aid, 32;
Jefferson's favor, 81 _n._;
and Burr, 292.
Lyons, Peter of Virginia Court of Appeals, =4=, 148.
McAlister, Matthew, and Yazoo lands, =3=, 555.
McCaleb, Walter F., on isolation of Burr, =3=, 280 _n._;
on Burr-Merry intrigue, 289 _n._;
on Burr-Casa Yrujo intrigue, 290 _n._, 300 _n._;
on Morgans, 309 _n._;
study of Burr conspiracy, 538 _n._
M'Castle, Doctor, in Burr conspiracy, =3=, 491.
Maclay, Samuel, on Judiciary Act of 1789, =3=, 54;
of Smith committee, 541 _n._
McCleary, Michael, witness against Pickering, reward, =3=, 181 _n._
McClung, James, professor at William and Mary, =1=, 155 _n._
McClurg, James, Richmond physician, =1=, 189 _n._
M'Culloch, James W. _See_ M'Culloch _vs._ Maryland.
M'Culloch _vs._ Maryland,
importance and underlying conditions, =4=, 282, 290, 304, 308;
agreed case, facts, 283, 331;
public interest, 283;
counsel, 284;
argument, 285-88;
acquiescence in power to establish bank, 285, 291;
scope of implied powers, 285, 286, 294-301, 316, 337;
M.'s opinion, 289-308;
preparation of opinion, 290;
Federal government established by the people, 292;
supremacy of National laws, 293;
sources of power to establish bank, 295;
Federal freedom of choice of instruments, 301;
Federal instruments exempt from State taxation, 304-07;
and National taxation of State banks, 307, 308;
National powers paramount over State power of taxation, 302-04;
attack on opinion in _Niles' Register_, 309-12;
bank as monopoly, 310, 311, 338;
opinion as political issue, union of attack with slavery and
secession questions, 311, 314, 325-27, 338, 339;
opinion as opportunity for Virginia attack on M., 312;
Roane's attack, 312-17;
M. and attacks, his reply, 314, 315, 318-23;
attack on concurring Republican Justices, 317;
Roane buys and M. sells bank stock, 317, 318;
demand for another court, 323, 325;
censure by Virginia Legislature, 324-27;
denunciation by Ohio Legislature, 330-33;
action by other States, 333-35;
denial of power to erect bank, 334, 336, 337;
Taylor's attack, 335-39;
Jefferson's comment, 339;
Jackson denies authority of decision, 530-32.
McDonald, Anthony, as teaching hatter, =1=, 272.
McDonald, Joseph E., on M. as a lover, =1=, 163 _n._
McDuffie, George, and non-intercourse with tariff States, =4=, 538.
McGrane, R. C., acknowledgment to, =4=, 318 _n._
McHenry, James, forced resignation, =2=, 485;
on M. and State portfolio, 489;
on Adams's temperament, 489 _n._;
on Federalist dissensions, 521;
and sedition trial, =3=, 32.
M'Ilvaine _vs._ Coxe's Lessee, =4=, 54 _n._
M'Intosh, Lachlan, and Yazoo lands act, =3=, 547.
McKean, Thomas, in Ratification Convention, =1=, 330, 332;
and pardon of Fries, =2=, 429.
Mackie, ----, Richmond physician, =1=, 189 _n._
M'Lean, John, relief bill, =1=, 204.
McLean, Justice John, appointment, =4=, 510;
dissent in Craig _vs._ Missouri, 513;
and M., 582;
and Briscoe _vs._ Bank and New York _vs._ Miln, 583, 584 _n._
Macon, Nathaniel, and Chase impeachment, =3=, 170.
MacRae, Alexander, prosecutes Burr, =3=, 407;
on subpoena to Jefferson, 437;
on M.'s statement of prosecution's expectation of conviction, 448;
on overt act, 494;
in trial for misdemeanor, 522.
Madison, Bishop James, as professor at William and Mary, =1=, 155.
Madison, James, as statesman, =1=, 32;
in the Legislature, 203;
on post-Revolutionary Legislature, 205, 206;
on amendment of constitutions, 216;
and British debts, 226, 228;
and payment of Continental debt, 235, 440;
and extradition bill, 236, 239;
loses faith in democracy, 252, 300;
on state of trade (1785), 262;
use of cipher, 266 _n._;
on community isolation, 285;
on demand for division of property, 294;
on spirit of repudiation, 295, 306;
fear of paper money, 297 _n._;
on failure of requisitions, 305 _n._;
on economic basis of evils under Confederation, 310, 311;
on need of uniform control of commerce, 312;
on need of negative on State acts, 312;
on opposition in Pennsylvania to Ratification, 338;
change of views, 338, 401, =2=, 46, 50, 79;
on Ratification contest in Massachusetts, =1=, 339;
on Hancock, 339 _n._;
on Massachusetts amendments, 349;
on contest in New Hampshire, 355;
and Randolph's attitude on Ratification, 362, 363, 377;
on delegates to the Virginia Convention, 367;
in Ratification Convention: and detailed debate, 370;
and offer of conciliation, 384;
on prospects of Convention, 384, 434, 462;
participation in debate deferred, 384;
characterized, 394;
in the debate in Convention, 394, 395, 397, 421, 428, 430-32,
440, 442, 449, 470;
compared with Hamilton, 397 _n._;
on Oswald at Richmond, 402;
on opposition's policy of delay, 434;
on treaty-making power, 442;
and gradual consolidation, 446;
on Judiciary, 449;
on Judiciary debate, 461, 462;
in contest over recommendatory amendments, 473;
on personal influence in Ratification, 476;
on Publicola papers, =2=, 15 _n._, 19;
influence on, of popularity of French Revolution, 20, 27;
on opposition after Ratification, 45;
defeated for Senate, 49, 50;
elected to the House, 50 _n._;
attacks M. (1793), 99, 100;
and M.'s integrity, 140;
and appointment to X. Y. Z. Mission, 227, 281;
on X. Y. Z. dispatches, 340;
on Alien Act, 382;
Virginia Resolutions, 399;
address of the Legislature, 400, 401;
and Adams's Cabinet, 487;
on Washington's and Adams's temperaments, 487 _n._;
on champagne, =3=, 10 _n._;
and Marbury _vs._ Madison, 110, 111, 126;
on declaring acts void, 115 _n._, 120 _n._;
and Judiciary Act of 1789, 129;
and M.'s biography of Washington, 228, 229;
and Miranda, 300, 301;
and trial of Burr, 390-92;
and Andrew Jackson, 405;
and Ogden-Smith trial, 436 _n._;
and J. Q. Adams, 541 _n._;
on obligation of contracts, 558 _n._, =4=, 245;
commission on Georgia cession, =3=, 574 _n._;
inauguration, 585;
and Fletcher _vs._ Peck, 593;
and Olmstead case, =4=, 21;
Erskine incident, 22;
and Minister Jackson, 23;
and Napoleon's pretended revocation of decrees, 26, 36-39, 48-50;
War Message, 29;
M. proposed as opponent for Presidency (1812), 31-34;
dismisses Smith, 34;
and Hay's pamphlet on impressment, 53;
Jefferson and appointment of Tyler as District Judge, 103-06;
and successor to Justice Cushing, 106-10;
and first Bank of the United States, 172;
and second Bank, 180;
and attack on Judiciary, 371, 378;
veto of Bonus Bill, 417;
Randolph's arraignment, 419;
on commerce clause, 423 _n._;
and American Colonization Society, 474, 476 _n._;
in Virginia Constitutional Convention, 484;
conservatism there, 489, 507;
and tenure of judges of abolished court, 496, 500;
on Nullification, 556;
M. on it, 557;
later explanation of Virginia Resolves, 557.
Mail, conditions (c. 1790), =1=, 264-66;
secrecy violated, 266.
Maine, Sir Henry S., on Dartmouth College case, =4=, 277.
Maine, and Nullification, =4=, 559.
Majority, decrease in faith of rule by, =1=, 252, 253;
rights, =2=, 17;
M. on rule, 402.
_See also_ Democracy; Government.
Malaria, in Washington, =3=, 6.
Mandamus jurisdiction of Supreme Court in Judiciary Act of 1789,
M.'s opinion of unconstitutionality, =3=, 127, 128, 132, 133;
general acceptance of jurisdiction, 128-30.
Manhattan Company, Burr and charter, =3=, 287 _n._
Manufactures, M. on conditions in France (1797), =2=, 267, 268;
effect of War of 1812, =4=, 57.
Marbury, William, Marbury _vs._ Madison, =3=, 110.
Marbury _vs._ Madison, underlying question, =3=, 49, 50, 75, 104-09,
116, 118, 127, 131, 142;
references to, in Judiciary debate (1802), 61 _n._, 63, 78, 80, 86;
expected granting of mandamus, 62 _n._, 90 _n._, 112;
arguments anticipated, M.'s knowledge of earlier statements, 75,
116-20, 611-13;
facts of case, 110, 111;
as vehicle for assertion of constitutional authority of Judiciary,
dilemma and its solution, 111, 126-33;
dangers in M.'s course, 111-14;
M.'s personal interest, 124, 125;
practical unimportance of case, 125;
hearing, 125, 126;
M.'s opinion, 133-42;
right to commission, 133-35;
mandamus as remedy, 135;
unconstitutionality of Court's mandamus jurisdiction, 136-38;
declaring acts void, 138-42;
opinion and assault on Judiciary, 143, 153, 155;
Jefferson and opinion, 143, 144, 153, 431, 432, =4=, 363;
little notice of decision, =3=, 153-55;
first citation, 154 _n._
Marietta, Ohio, and Burr conspiracy, =3=, 312, 324.
Marine Corps, debate in Congress (1800), =2=, 446-48.
Markham, Elizabeth, =1=, 14, 16.
Markham, Lewis, =1=, 16.
Marriage, Henry's plan for intermarriage of whites and Indians,
=1=, 240 _n._, 241.
Marryat, Frederick, on newspaper abuse, =4=, 175 _n._;
on Localism, 191.
Marsh, Charles, and Dartmouth College case, =4=, 256, 258.
Marshall, Abraham, M.'s uncle, =1=, 485.
Marshall, Alexander, M.'s brother, birth, =1=, 38 _n._
Marshall, Ann, Mrs. Smith, =1=, 485.
Marshall, Charles, M.'s brother, birth, =1=, 38 _n._
Marshall, Charlotte, M.'s sister, birth, =1=, 56 _n._
Marshall, Edward C, M.'s son, birth, =4=, 73 _n._;
education, 73.
Marshall, Elizabeth (Markham), M.'s grandmother, =1=, 14, 16;
bequest in husband's will, 485, 486.
Marshall, Elizabeth, M.'s sister, birth, =1=, 34 _n._
Marshall, Elizabeth, acknowledgment to, =4=, 528 _n._
Marshall, Hester (Morris), =2=, 203.
Marshall, Humphrey, as delegate to Ratification Convention, =1=, 320;
on popular fear of Constitution, 321 _n._;
votes for ratification, 411 _n._;
and Jay Treaty, =2=, 118;
and Burr conspiracy, =3=, 315, 317;
on Embargo and secession, =4=, 17.
Marshall, Jacquelin A., M.'s son, birth, =1=, 190 _n._, =4=, 73 _n._;
education, 73.
Marshall, James K., M.'s son, birth, =2=, 453, =4=, 73 _n._;
education, 73;
M.'s home with, 528.
Marshall, James M., M.'s brother, birth, =1=, 38 _n._;
M. helps, 197;
and imprisonment of Lafayette, =2=, 33;
and Fairfax estate, 100, 203-11;
and M.'s business affairs, 173 _n._;
marriage to Morris's daughter, 203;
and M. in Europe, 232 _n._;
staff office in French War, 357;
Federal appointment as nepotism, 560 _n._;
witness in Marbury _vs._ Madison, =3=, 126.
_See also_ Martin _vs._ Hunter's Lessee.
Marshall, Jane, M.'s sister, birth, =1=, 56 _n._;
M. and love affair, =2=, 174, 175;
marriage, 175 _n._
Marshall, John, M.'s grandfather, career, =1=, 12, 13;
will, 485;
deed from William Marshall, 487, 488.
Marshall, John, M.'s uncle, =1=, 485.
Marshall, John,
_early years and private life_:
birth, =1=, 6;
Randolph and Isham ancestry, 10;
similarity in conditions of Jefferson's birth, 11 _n._;
Marshall ancestry, real and traditional, 12-16;
Keith ancestry, 16;
boyhood homes and migrations, 33-37, 55;
boyhood life, 38-41;
education, 42, 53, 57;
and his father, 42;
reading, Pope's poems, 44-46;
training in order, 45;
influence of Lord Fairfax on training, 49 _n._;
influence of James Thompson, 54;
reads Blackstone, 56;
to be a lawyer, 56;
military training, 56;
training from father's service as burgess, 65, 66;
drilling master for other youths, 70;
patriotic speeches (1775), 72;
at battle of Great Bridge, 76, 78;
lieutenant in the line, 79, 91;
on militia during the Revolution, 85, 100;
military promotions, 91, 138;
spirit as army officer, 91;
in Brandywine campaign, 93-97;
in the retreat, 99;
in battle of Germantown, 102;
cheerful influence at Valley Forge, 117-19, 132;
Deputy Judge Advocate, 119;
judicial training in army, 119;
in Monmouth campaign, 135, 137;
on Lee at Monmouth, 137;
Stony Point, 139, 140;
Pawles Hook, 142;
inaction, awaiting a command, 143, 161;
and Arnold's invasion, 144;
meeting with future wife, courting, relations with Ambler family,
152-54, 159-61, 163;
at William and Mary, extent of law studies, 154, 155, 160, 161,
174-76;
in Phi Beta Kappa, 158;
in debating society, 159;
licensed to practice law, 161;
resigns commission, 162;
walks to Philadelphia to be inoculated, 162;
marriage, 165, 166;
financial circumstances at time of marriage, 166-69;
slaves, 167, 180;
social effect of marriage, 170;
first Richmond home, 170;
lack of legal equipment, 173, 176;
early account books, 176-81, 184-90, 197;
early fees and practice, 177, 181, 184, 187, 190, 196;
children, 179, 190, =2=, 370 _n._, 453, =4=, 72-74;
and Gallatin (1784), =1=, 183;
buys military certificates, 184;
Fauquier land from father, 186;
as a Mason, 187, =2=, 176;
City Recorder, =1=, 188;
later Richmond home and neighbors, 189, =2=, 171;
first prominent case, Hite _vs._ Fairfax, =1=, 191-96;
employed by Washington, 196;
buys Fauquier land, 196;
Robert Morris's lawyer, 401 _n._;
list of cases, 567-70;
and James River Company, =2=, 56;
profits from legal practice, 169-71, 201;
and new enterprises, 174;
method as pleader, 177-82, 192-96;
extent of legal knowledge, 178;
neglect of precedents, 179;
statement of cases, 180, 181;
character of cases, 181;
in Ware _vs._ Hylton, on British debts, 186-92;
and Robert Morris, investments, 199, 200;
Fairfax estate, 203-11, 371, 372, =3=, 223, 224, =4=, 148-50,
150 _n._, 152, 157;
financial reasons for accepting X. Y. Z. Mission, =2=, 211-13;
biography of Washington (_see_ Biography);
as Beaumarchais's attorney, 292;
interest in stability of contracts, =3=, 582;
life in Washington, =4=, 80, 81;
illness, operation for stone, 518, 520-24, 528;
will, 525 _n._;
later residence, 527;
decline, 586, 587;
death, 587;
escort of body to Richmond, 588;
funeral, 588;
inscription on tomb, 593.
_Virginia Legislature, Ratification, and later State affairs_:
elections to Legislature, =1=, 164, 202, 211, 212, 228, 242,
=2=, 54, 130, 159;
character as legislator, =1=, 202;
committee appointments and routine work, 204, 213, 218, 368,
=2=, 54-56, 141;
first votes, =1=, 204;
on character of Legislature, 206-08;
elected to Council of State, 209;
election resented, forced out, 209, 211, 212;
political importance of membership in Council, 209 _n._, 210;
and Revolutionary veterans, 213;
and relief for Thomas Paine, 213;
and loyalists, 214;
on amendment of Constitution, 216;
and Potomac Company, 218;
and chancery bill (1787), 218-20;
indifference to religious freedom question, 220, 222;
and British debts, 222, 225-31;
and Continental debt and navigation acts, 234, 235;
and extradition bill, 240;
and intermarriage of whites and Indians, 240 _n._, 241;
and calling of Ratification Convention, 242, 246, 247;
on Shays's Rebellion, 298, 299, 300 _n._, 302;
practical influences on stand for Ratification, 313, 314;
on opposition to Ratification, 356;
candidacy for Ratification Convention, 364;
importance in the Convention, 367;
in the Convention: study, 391;
on Philips attainder case, 393 _n._, 411;
social influence in Convention, 409;
in the debate, 409-20, 436-38, 450-61;
on necessity of well-ordered government, 409-11;
on navigation of the Mississippi, 411;
on necessity of delegated powers, 412, 413;
on Federal taxation, 413-16, 419;
on amendments, 412, 418;
on control of militia and preparedness, 436-38;
on concurrent powers, 436;
and Henry, 438, 464;
on Federal Judiciary, 450-61;
on independence of Judiciary, 451, 459;
on declaring acts void, 452, 453, =2=, 18;
on suits against States, =1=, 454;
on discretion in Congress, 454;
on other jurisdiction, 455;
on jury trial, 456, 457;
of committee on amendments, 477;
on opposition after Ratification, =2=, 45 _n._;
survey and report on Virginia internal improvements, =4=, 42-45;
and Bank of Virginia incident, 194;
election to Constitutional Convention, 467;
attitude on issues there, 468, 470, 471, 488, 507, 508;
standing there, 489;
in debate on Judiciary, 489-501;
and on suffrage, 502;
anticipates split of Virginia, 571.
_Federal affairs_:
relationship with Jefferson, =1=, 9;
on early approbation of French Revolution, =2=, 4;
on St. Domingo negro insurrection, 20, 21;
on popular enthusiasm for French Revolution, 22, 23;
on conservative American opinion, 23;
and imprisonment of Lafayette, 32-34;
and democratic societies, 41;
on origin of State Rights contest, 48;
and Madison's candidacy for Senate, 50;
declines Federal appointments, 53;
and first amendments, 58;
and attack on assumption, 65, 66;
continued popularity, 78;
Jefferson's attempt to sidetrack him (1792), 79-81;
refuses to stand for Congress (1792), 81;
on opposition to Federal excise, 87;
and Whiskey Insurrection, 89, 90;
Brigadier-General of Militia, 90;
on assault on Neutrality Proclamation, 93, 94, 96;
support of policy of neutrality, 97-99, 235, 387, 402, 403,
507-09;
first Republican attacks on, 98-103;
and post at New Orleans (1793), 99;
attacks on character, 101-03, 409, 410;
military enforcement of neutrality, 103-06;
on British depredations on neutral trade (1794), 108;
on retention of frontier posts, 111;
leader of Virginia Federalists, 122;
refuses Cabinet offers, 122, 123, 147;
advises on Cabinet appointments, 124-26, 132;
defense of Jay Treaty, 126, 129 _n._;
and Jay Treaty resolutions of Legislature, 133-37;
on treaty-making power (1795), 134-36;
and Legislature's indirect censure of Washington, 138, 140;
Jefferson's accusation of hypocrisy (1795), 139, 140;
and proposed amendments, 141;
declines French mission (1796), 144-46;
and Richmond meeting on Jay Treaty, 149-55;
sounds Henry on presidential candidacy (1796), 156-58;
and Virginia address to Washington (1796), 159-62;
growth of the Jefferson feud, 165;
and Federalist leaders (1796), 198;
declines Jay Treaty commissionship, 200-02;
X. Y. Z. Mission [_see_ this title];
on John Adams (1797), 214;
Adams on, 218;
on The Hague, 231;
on 18th Fructidor, 232, 236-44;
on conditions in Holland (1797), 233-35;
on conditions at Antwerp, 246, 247;
on French economic conditions, 267-70;
on Treaty of Campo Formio, 271;
on French military and financial conditions, 321-23;
on liberty and excess of press, 331;
refuses Associate Justiceship, 347, 378, 379;
beginning of Jefferson's open warfare, 358;
Washington persuades him to run for Congress (1798), 374-78;
Republican attacks on candidacy, M. on attacks, 379, 395, 396,
407, 409, 410;
on expediency of Alien and Sedition Acts, 386, 388, 389, =3=, 106;
answers to queries on principles, =2=, 386-89, 574-77;
Federalists on views on Alien and Sedition Acts, 389-94, 406;
on motives of Virginia Republicans, 394, 407;
address of minority of Virginia Legislature, 402-06;
on rule of the majority, 402;
on preparedness, 403, 476-80, 531;
attack on Virginia Resolutions, 404;
on constitutionality of Alien and Sedition Acts, 404;
electioneering, 409;
defeat expected, 410;
effect of Henry's support, 410-13;
at the polls, 413-16;
elected, 416;
Washington's congratulations, 416;
apology to Washington for statements of supporters, 416, 417;
Federalists on election, their misgivings, 417-19;
Jefferson on election, 419;
and officers for army (1799), 420;
visit to father in Kentucky, Jefferson's fear of political
mission, 421, 422;
and French hostility as Federalist asset, 422;
approves reopening of French negotiations, 428, 433, 436;
importance to Federalists in Congress, 432, 436, 437;
of committee to notify President, 432;
reply of House to Adams's address, 433-36;
on question of reducing army (1800), 436, 439, 476-81;
on campaign plots and issues, 438-40;
addresses on death of Washington, 440-43;
and phrase "first in war," 443-45;
use of term "American Nation," 441;
activity in Congress, 445;
and cession of Western Reserve, 446;
and powers of territorial Governor, 446;
and army officers' insult of Randolph, 446;
and Marine Corps Bill, debate with Randolph, 446-48;
and land grants for veterans, 448;
attitude towards slavery (1800), 449, 450;
votes to repeal Sedition Act, 451;
political independence, 451, 452;
kills Disputed Elections Bill, 455-58;
and delay in Jonathan Robins case, 462, 463;
importance and oratory of speech on case, 464, 473;
arguments in speech, 465-71;
on jurisdiction on high seas, 465-67;
on basis of piracy, 467;
on limitation to jurisdiction of Federal Courts, 468-70;
on incidental judicial powers of Executive, 470;
on President as sole organ in external relations, 470;
comments and effect of speech, 471-75;
Jefferson's blindness to merit, 475;
and Bankruptcy Bill, 481, 482;
refuses War portfolio, 485;
appointment as Secretary of State, 486, 489, 491;
Republican comment on appointment, 490, 492;
Federalist comment, 492;
as Secretary, incidents of service, 493, 494, 499;
and office-seekers, 494;
and pardon of Williams, 495;
and continued depredations on neutral trade, 496;
and _Sandwich_ incident, 496;
and Bowles's activity in Florida, 497-99;
and Barbary Powers, 499;
and disruption of British-debts commission and proposed
compromise, 502-05;
instructions to King on British depredations, 506-14;
on unwarranted increase of contraband list, 509-11;
on paper blockade, 511;
on unfairness of British admiralty courts, 511, 512;
on impressment, 513;
and breaking-up of Federalist Party, 514, 515, 526;
loses control of district, 515;
and prospects of new French negotiations, 522, 523;
and French treaty, 525;
writes Adams's address to Congress, 530, 531;
on need of navy, 531;
and extension of Federal Judiciary, 531, 548;
and _Washington Federalist_, 532 _n._, 541, 547 _n._;
neutrality in Jefferson-Burr contest, 536-38;
personal interest in it, 538, 539;
effect of his neutrality, 539;
opinion of Jefferson (1800), 537;
and threatened deadlock, 541-43;
Fairfax estate and Judiciary Bill (1801), 551;
continues as Secretary of State, 558;
and judgeship for Wolcott, 559, 560;
and midnight appointments, myth concerning, 559, 561, 562;
and accusation of nepotism, 560 _n._;
in defeat of party, =3=, 11;
and Republican success, 15;
on Jefferson's inaugural, 18;
and Callender trial, 39;
on trials for violating Neutrality Proclamation, 26;
on settlement of British debts controversy, 103;
on political conditions (1802), 104;
opposition to War of 1812 and hatred of France, =4=, 1-3, 15,
35-41, 49, 50, 55, 125;
opposition to Embargo, 14, 15;
on Jackson incident and Federalist defeat (1809), 24, 25;
proposed for President (1812), 31-34, 46, 47;
and Richmond Vigilance Committee, 41 _n._;
refrains from voting, 462, 465;
incident of election of 1828, 462-65;
on House election of Adams, 462 _n._;
on Jackson's inauguration, 466;
and American Colonization Society, 473-76;
and Jackson's war on the Bank, 528, 533, 535;
on Virginia and Jackson's veto of Harbor Bill, 534;
and election of 1832, 534;
and Indian policy, 542 _n._
_Chief Justice_:
Appointment, =2=, 553;
Adams on qualifications, 554:
reception of appointment, 555-57;
acceptance, 557, 558;
Jefferson and appointment, 652, =3=, 20;
general inappreciation of appointment, =2=, 563;
change in delivery of opinions, =3=, 16;
_Amelia case_, law of prize, 16, 17;
Wilson _vs._ Mason, Kentucky land case, 17;
United States _vs._ Peggy, treaty as supreme law, 17;
Turner _vs._ Fendall, practice and evidence, 18;
influence of Alien and Sedition Acts on career, 49;
and assault on the Judiciary (1802), 50, 75;
Judiciary Act of 1801 and acceptance of Chief Justiceship, 58;
and Giles, 76 _n._;
Giles's sneer at and Bayard's reply, 77;
and annulment of repeal of Judiciary Act, 85, 91, 92, 93 _n._,
95-97, 122, 123, =4=, 489, 490;
on circuit, =3=, 101-03, =4=, 63-66;
preparation for assertion of constitutional authority of
Judiciary, 104, 109;
Marbury _vs._ Madison [_see_ this title];
American Insurance Co. _vs._ Canter, annexation and territorial
government, =3=, 148, =4=, 143, 144;
removal by impeachment planned, his fear of it, =3=, 155, 161-63,
176-79, 192, 196;
United States _vs._ Fisher, implied powers, 162;
importance of Chase trial to, 175-79, 191, 192, 196, 220, 222;
suggests legislative reversal of judicial opinions, 177, 178;
Randolph's tribute to, in Chase trial, its political importance,
188, 214-16;
as witness in trial, 192-96;
early opinions, 273;
and rumors on Burr Conspiracy, 338;
and habeas corpus for Swartwout and Bollmann, 346;
opinion on their discharge, effect of misunderstanding of
statement on presence at overt act, 349-57, 414 _n._, 484,
493, 496, 502, 506-09;
rebukes of Jefferson's conduct, 351, 376;
warrant for Burr's arrest, 370;
preliminary hearing and opinion, 370, 372-79;
conduct and position during Burr trial, 375, 397, 404, 407, 408,
413 _n._, 421, 423, 480, 483, 484, 494, 517, 526;
Jefferson's criticism of preliminary hearing, 386-89;
at dinner with Burr, 394-97;
on difficulty of fair trial, 401;
and counsel at trial, 408;
and selection of grand Jury 409, 410, 413;
instructions to grand jury, 413-15, 442, 451;
and new motion to commit for treason, 415, 416, 421, 422, 424,
425, 428;
and subpoena to Jefferson, 434, 443-17, 455, 518-22;
admonition to counsel, 439;
opinion on overt act, 442, 504-13, 619-26;
on prosecution's expectation of conviction, 447-49;
and pardon for Bollmann, 452, 453;
and attachment against Wilkinson, 473, 475;
and confinement of Burr, 474, 478;
and selection of petit jury, 475, 482;
seeks advice of associates, 480;
on preliminary proof of overt act, 485-87;
and threat of impeachment, 500, 501, 503, 512, 516;
on testimony not on specified overt act, 512, 542;
and irregular verdict, 514;
denies further trial for treason, 515;
and bail after treason verdict, 516;
and commitment for trial in Ohio, 524, 527, 528, 531 _n._;
Burr's anger at, 524, 528;
and Daveiss's pamphlet, 525;
attacks on for trial, 526, 532-35, 540;
on trial and Baltimore tumult, 529;
Jefferson urges impeachment, 530-32;
Baltimore mob burns him in effigy, 535-40;
J. Q. Adams's report on Burr trial, 542, 543;
later relations with Adams, 542 _n._;
foreign affairs prevent efforts to impeach, 545;
importance of Fletcher _vs._ Peck opinion, 556, 593, 602;
knowledge of Granger's memorial on Yazoo claims, 576 _n._;
and of congressional debate on it, 582;
administers oath to Madison, 585;
hearings and opinion in Fletcher _vs._ Peck, Yazoo claims and
obligation of contract, 585-91;
congressional denunciation of opinion, 595-601;
rebukes resistance of National authority by State, opinion in
Olmstead case, =4=, 18-20;
checks reaction against Nationalism, 58;
period of creative labor, 59;
influence over associates, causes, 59-61, 444;
conduct on the bench, 82;
life and consultation of Justices, 86-89;
character of control over Supreme Court, 89, 90;
popularity with the bar, 94;
encourages argument, 94 _n._, 95;
Story as supplementing, 96, 119, 120, 523;
Story's devotion, 99, 523;
Livingston _vs._ Jefferson, Jefferson's manipulation of colleague,
104-16;
Nationalism and upholding of doubtful acts of Congress,
suppression of personal feelings, 117, 546;
_Adventure_ case, interpretation of Embargo, 118;
_obiter dicta_, 121, 369;
and international law, 121;
_Exchange_ case, immunity of foreign man-of-war, 121-25;
United States _vs._ Palmer, _Divina Pastora_, international status
of revolted province, belligerency, 126-28;
dissent in _Venus_ case, domicil during war and enemy character,
128, 129;
_Nereid_ case, neutral property in enemy ship, 136-42;
and Martin _vs._ Hunter's Lessee, 145, 148-50, 150 _n._, 152-155,
157, 161, 164;
Granville heirs case, 154, 155;
private letter on Hunter decision, 164 _n._, 165 _n._;
decisions of 1819 as remedies for National ills, 168, 169, 203,
208, 220;
Sturges _vs._ Crowninshield, State insolvency laws and obligation
of contracts, 209-19;
New Jersey _vs._ Wilson, exemption from taxation and obligation
of contracts, 221-23;
and Dartmouth College case, 251, 252, 255, 259 _n._, 261, 273,
274;
opinion in case, charters and obligation of contracts, 261-73;
consequences of opinion, 276-81;
importance and aim of M'Culloch _vs._ Maryland opinion, 282, 308;
on Pinkney, 287;
tribute to argument of case, 288;
opinion in case, 289-308;
debt of Webster and Lincoln to, 293 _n._, 553, 554;
attacks on opinion, 309-17, 323-27, 330-39;
and change in reputation of Supreme Court, 310;
on attacks reply to them, 312, 314, 315, 318-23;
sells bank stock, 318;
importance and purpose of Cohens _vs._ Virginia, 342;
opinion in case, 347-57;
on attacks on opinion, 359-62;
Jefferson's attack (1821), 363-66;
Taylor's attack on Nationalist doctrine, 367;
as center of strife over political theories, 370;
on Johnson's Elkison opinion, 383;
opinion in Osborn _vs._ Bank, 385-94;
satisfying disposition of cases, 393, 394;
importance and effect of Gibbons _vs._ Ogden, 413, 423, 429, 446,
447, 450;
opinion in Brig Wilson _vs._ United States, navigation, 428, 429;
opinion in Gibbons _vs._ Ogden, control over commerce, 429-43;
tribute to Kent, 430, 441;
reception of opinion, 445;
change in congressional attitude toward, 452, 454;
opinion in Brown _vs._ Maryland, foreign commerce, 455-59;
warning to Nullifiers, 459;
survival of opinions, 460;
character of last decade, 461, 518, 581, 582;
_Antelope_ case, slave trade and international law, 476, 477;
Boyce _vs._ Anderson, common carriers and transportation of
slaves, 478;
dissent in Ogden _vs._ Saunders, insolvency laws and future
contracts, 481;
opinion in Craig _vs._ Missouri, State bills of credit, 510;
on Supreme Court and threats of disunion, 512, 513;
anticipates reaction in Supreme Court, 513, 514, 582, 584;
on proposed repeal of appellate jurisdiction, 514;
question of resignation, 519-21;
and homage of Philadelphia bar, 521;
Jackson's denial of authority of opinions, 530-32;
and Georgia-Cherokee contest, 542;
opinion in Cherokee Nation _vs._ Georgia, Indians not foreign
nation, 544-46;
rebukes Jackson's attitude toward contest, 546;
opinion in Worcester _vs._ Georgia, control over Indians, 549-51;
mandate ignored, 551;
opinions and Jackson's Nullification Proclamation, 562, 563;
on Story's article on statesmen, 577;
and Briscoe _vs._ Bank and New York _vs._ Miln, 583, 584 _n._,
585 _n._;
in last term, 585;
last opinion, 585.
_Characteristics, opinions and their development_:
idea of Union in early training, =1=, 9;
motto, 17;
filial and brotherly affection and care, 39, 196, =2=, 174, 175;
influence of early environment, =1=, 33, 41, 42;
poetry and novels, 41, =4=, 79, 80;
appearance at nineteen, =1=, 71;
at twenty-six, 151;
in middle age, =2=, 166-69;
fighter, =1=, 73;
humor, 73, =2=, 111, 146, 181, 182, =4=, 61, 62, 78, 82;
athletic ability, =1=, 73, 118, 132;
nickname, 74, 132;
first lessons on need of organization, 78;
influence of army experience, 89, 90, 100, 126, 145-47, 244, 420;
sociability, generosity, conviviality, 152, 180, 187, 188,
=2=, 102, 483, =4=, 78, 79;
as reader, =1=, 153;
book-buying, 184-86, =2=, 170;
negligent dress, =1=, 163, =4=, 61;
gossip, =1=, 182, 183;
as letter-writer, negligent of correspondence, 183 _n._,
=4=, 203 _n._;
and drinking, =1=, 186, =2=, 102 _n._, 332 _n._, =4=, 79;
sympathy, =1=, 188;
and wife's invalidism, 198, =4=, 66-71;
reverence for woman, =1=, 198, =4=, 71, 72;
handwriting, =1=, 211;
early self-confidence, 211;
influence of service in Legislature, 216, 223, 231, 232, 244;
growth of Nationalism, 223, 231, 240, 242-44, 286, 287, =2=, 77,
91, =4=, 1, 55;
loses faith in democracy, =1=, 252, 254, 294, 302, =3=, 109, 265,
=4=, 4, 55, 93, 479-83, 488, 507;
characterized at Ratification Convention, =1=, 408, 409;
as speaker, 409 _n._, 420, =2=, 188, 464;
argument by questions, =1=, 457 _n._;
influence of Ratification, 479;
influence of French Revolution, =2=, 3, 4, 7-9, 20, 32, 34, 44;
preparation for Nationalistic leadership, 52;
integrity, 140, 563, =4=, 90;
effect on, of abuse of Washington, =2=, 163;
appreciation of own powers, 168;
and French language, 170 _n._, 219;
trust, 173;
diversions, 182-85, =4=, 66, 76-78;
La Rochefoucauld's analysis of character, =2=, 196, 197;
ambitiousness, 197;
indolence, 197, 483;
domesticity, 214, 215, 217, 219, 220, 231, 284-86, 369-71,
=4=, 461, 532;
love of theater, =2=, 217, 231;
influence of experiences in France, 287-89, =4=, 2, 3, 15, 125;
peacefulness, =2=, 369;
Sedgwick on character, 483, 484;
and popularity, 483;
good nature, 483, 484;
charm, 483, 484, 563, =4=, 81, 90;
independence, =2=, 484;
fearlessness, 484;
unappreciated masterfulness, 563;
and policy of isolation, =3=, 14 _n._;
light-heartedness, 102;
and honors, 271, =4=, 89;
appearance in maturity, =3=, 371;
and Burr contrasted, 371, 372;
on right of secession, 430;
impressiveness, 447;
prejudice-holding, =4=, 2;
denies right of expatriation, 53-55;
not learned, 60;
simplicity of daily life, 61-63;
marketing, 61;
deliberateness, 62;
fondness for children, 63;
interest in agriculture, 63;
habits of thought and writing, 64, 67, 169, 220, 290;
abstraction, 64, 85;
religion, 69-71;
life at Fairfax estate, 74;
kindness, 75;
conscientiousness, 76;
lack of personal enemies, 78;
dislike of Washington formal society, 83-85;
as conversationalist, 85;
portraits, 85 _n._, 522 _n._;
dislike of publicity, 89;
character in general, 90;
resemblance to Lincoln, 92, 93;
and imprisonment for debt, 215, 216;
Roane's tribute, 313;
and criticism, 321;
humanness, 321;
contrasted with Jackson, 466;
on uplift and labor problem, 471;
and slavery, 472-79;
and death of wife, tribute to her memory, 524-27;
country's esteem, 578, 581 _n._;
Story on green old age, 579;
on attitude toward Jefferson, 579, 580;
and Story's Commentaries and dedication to himself, 569, 576,
580, 581;
on Nullification, 556-59, 562, 569-72, 574, 575;
despondent over state of country, 575-78;
tributes at death, 589-92;
hostile criticism, 591;
Story's verses on, 592, 593.
Marshall, John, M.'s son, M. on, as baby, =2=, 370;
birth, 370 _n._, =4=, 73 _n._;
education, 73.
Marshall, John, New England skipper, =4=, 223.
Marshall, Judith, M.'s sister, birth, =1=, 38 _n._
Marshall, Louis, M.'s brother, birth, =1=, 56 _n._
Marshall, Lucy, M.'s sister, birth, =1=, 38 _n._;
marriage, 166 _n._;
M. helps, 197.
Marshall, Martha, M.'s putative great-grandmother, =1=, 483.
Marshall, Mary, M.'s aunt, =1=, 486.
Marshall, Mary, M.'s sister, birth, =1=, 34 _n._
Marshall, Mary, M.'s daughter, Mrs. Jacquelin B. Harvie,
=3=, 192 _n._, =4=, 73;
birth, 73 _n._
Marshall, Mary Randolph (Keith), M.'s mother,
ancestry and parents, =1=, 10, 16-18;
education and character, 18, 19;
children, 19, 34, 38 _n._, 56 _n._
Marshall, Mary W. (Ambler), courtship, =1=, 148-54, 159, 160, 163;
marriage to M., 165, 166;
children, 179, 190, =2=, 370 _n._, 453, =4=, 73 _n._;
religion, =1=, 189 _n._, =4=, 69;
items in M.'s account book, =1=, 197;
invalid, M.'s devotion, 198, =2=, 371 _n._, =4=, 66-69;
independent means, 524 _n._;
death, M.'s tribute, 524-27.
Marshall, Nancy, M.'s sister, birth, =1=, 56 _n._
Marshall, Peggy, M.'s aunt, =1=, 486.
Marshall, Sarah, Mrs. Lovell, =1=, 485.
Marshall, Susan, M.'s sister, birth, =1=, 56 _n._
Marshall, Thomas, M.'s putative great grandfather, =1=, 14;
will, 483, 484.
Marshall, Thomas, father of M., and Washington, =1=, 7, 46;
and Braddock's expedition, 8;
similarity to Jefferson's father, 11;
birth, 13;
character, 19;
children, 19, 34, 38 _n._, 56 _n._;
as a frontiersman, 31;
settlement in Fauquier County, 33, 34;
migration to "The Hollow," 34-37;
appearance, 35;
slaves, 37 _n._;
education, 42;
and M., 42;
influence of Lord Fairfax, 47, 50;
offices, 51, 58 _n._, 170 _n._;
leases land, 51;
vestryman, 52;
acquires Oak Hill, 55;
in House of Burgesses, 58, 61, 64;
in Virginia Convention (1775), 65, 66;
prepares for war, 67;
major of minute-men, 69;
at battle of Great Bridge, 76, 77;
enters Continental service, 79;
in crossing of the Delaware, 91;
promotions, 95;
in Brandywine campaign, 95;
colonel of State Artillery, 96 _n._, 117 _n._;
source on military services, 148 _n._, 489;
not at surrender of Charleston, 148 _n._;
property, 166;
financial stress, moves to Kentucky, 167-69;
gives M. land, 186;
and M.'s election to Legislature, 202;
and M.'s election to Council of State, 209 _n._;
and British debts, 229, 231;
in Virginia Legislature from Kentucky, 229;
bequest from father, 485;
on Kentucky and National Government (1791), =2=, 68 _n._;
resignation as Supervisor of Revenue, on trials of office, 212 _n._,
213 _n._;
M.'s visit to (1799), 421, 422.
Marshall, Thomas, M.'s brother, birth, =1=, 34 _n._;
in Revolutionary army, 117 _n._
Marshall, Thomas, M.'s son, birth, =1=, 179 _n._, =4=, 73 _n._;
education, 73;
home, 74;
killed, 588.
Marshall, William, putative great uncle of M., =1=, 12, 14, 483;
deed to M.'s grandfather, 487, 488.
Marshall, William, M.'s uncle, =1=, 485.
Marshall, William, M.'s brother, birth, =1=, 38 _n._;
and Chase impeachment, =3=, 176, 191, 192.
Marshals, United States, plan to remove Federalist, =3=, 21;
conduct in sedition trials, 42.
Martin, Luther, and Callender trial, =3=, 37;
in Federal Convention, on declaring acts void, 115 _n._;
counsel for Chase, 186;
career and character, 186 _n._, 187 _n._, 538 _n._;
argument, 201-06;
counsel for Swartwout and Bollmann, 348;
counsel for Burr, 407, 428;
security for Burr, 429 _n._;
on subpoena to Jefferson, 436, 437, 441, 451;
Jefferson's threat to arrest, 451;
on pardon for Bollmann, 452-54;
and confining of Burr, 474;
public hostility, 480 _n._;
on preliminary proof of overt act, 485;
intemperance, 501 _n._, 586 _n._;
on overt act, 501-04;
on the verdict, 513;
and Baltimore mob, 535-40;
Burr's friendship, 538 _n._;
counsel in Fletcher _vs._ Peck, 585, 586;
as practitioner before M., =4=, 95;
and Dartmouth College case, 238 _n._;
counsel in M'Culloch _vs._ Maryland, 284, 286.
Martin, Philip,
sale of Fairfax estate, =2=, 203 _n._, =4=, 149, 150 _n._
_See also_ Martin _vs._ Hunter's Lessee.
Martin _vs._ Hunter's Lessee, early case, =2=, 206-08;
importance, =4=, 144, 166, 167;
M.'s connection with decision, 145, 153, 161, 164;
interest of M.'s brother in case, 145, 150, 153 _n._, 160;
Virginia's political organization, 146;
Hunter's grant, Fairfax's State case against it, 147;
Marshall syndicate compromise on Fairfax lands, 148;
compromise and Hunter's claim, 149, 150 _n._, 152, 157, 163;
decision for Hunter in State court, 151, 152;
Hunter's social position, 151 _n._;
appeal to Supreme Court involving treaties, 153;
Federal statute covering appeal, 153 _n._;
M. and similar North Carolina case, 154, 155;
Story's opinion, treaty protects Fairfax rights, 156;
Johnson's dissent, 157;
Virginia court denies right of Supreme Court to hear appeal, 157-60;
second appeal to Supreme Court, 160;
Story's opinion on right of appeal, 161-63;
M.'s private letter on appellate power, 164 _n._, 165 _n._;
Johnson's dissent on control over State courts, 165, 166.
Martineau, Harriet, on M.'s attitude toward women, =4=, 72.
Maryland, and Kentucky and Virginia Resolutions, =3=, 105 _n._;
tax on Bank of the United States, =4=, 207.
_See also_ Brown _vs._ Maryland; M'Culloch _vs._ Maryland.
Mason, George, as statesman, =1=, 32;
in the Legislature, 203;
on character of post-Revolutionary Legislature, 205 _n._;
and amendment of Virginia Constitution (1784), 217;
and chancery bill (1787), 219;
on loose morals, 220;
and British debts, 229 _n._, 230 _n._, 231;
and Confederate navigation acts, 235;
and calling of Ratification Convention, 245;
in Ratification Convention: characterized, 369;
motion for detailed debate, 369;
and delay, 372;
on consolidated government, 382;
on conciliation, 383;
in the debate, 421-23, 435, 438-40, 445, 448, 467;
appeal to class hatred, 422, 439 _n._, 467;
denounces Randolph, 423;
fear of the Federal District, 438, 439;
on payment of public debt, 440, 441;
on Judiciary, 445-47;
on suppression of Clinton's letter, 478;
and M., =2=, 78;
in Federal Convention, on declaring acts void, =3=, 115 _n._;
and on obligation of contracts, 558 _n._
Mason, Jeremiah, as practitioner before M., =4=, 95;
counsel in Dartmouth College case, 233, 234, 250, 251;
fee and portrait, 255 _n._;
Bank controversy, 529.
Mason, Jonathan, on X. Y. Z. dispatches, =2=, 338, 342;
in debate on repeal of Judiciary Act, =3=, 60.
Mason, Stevens T., divulges Jay Treaty, =2=, 115, =3=, 63 _n._;
on Virginia and Jay Treaty, =2=, 151 _n._;
appearance, =3=, 62;
in debate on repeal of the Judiciary Act, 63-65.
Masonry, M.'s interest, =1=, 187, =2=, 176;
first hall at Richmond, =1=, 188.
Massac, Fort, Burr at, =3=, 294.
Massachusetts, drinking in colonial, =1=, 23 _n._;
Shays's Rebellion, 298-303;
policy of Constitutionalists, 339;
character of opposition to Ratification, 339, 340, 344-47;
strength and standpoint of opposition, 344;
influence of Hancock, 347;
recommendatory amendments and Ratification, 348, 349;
soothing the opposition, 350-53;
question of bribery, 353 _n._, 354 _n._;
and Kentucky and Virginia Resolutions, =3=, 43, 105 _n._;
and Embargo, =4=, 12, 15, 17;
and War of 1812, 48 _n._;
and M'Culloch _vs._ Maryland, 334;
steamboat monopoly, 415;
Constitutional Convention (1820), 471.
Massachusetts Historical Society,
makes M. a corresponding member, =3=, 271.
Massie, Thomas, buys land from M.'s father, =1=, 168.
Mattauer divorce case in Virginia, =2=, 55 _n._
Matthews, George, journey (1790), =3=, 55 _n._;
and Yazoo lands bill, 549-51.
Matthews, Thomas, and chancery bill (1787), =1=, 219;
presides in Ratification Convention, 468.
Maxwell, William, Brandywine campaign, =1=, 93.
Mayo, John, defeat and duel, =2=, 515.
Mazzei letter, =2=, 537 _n._, 538 _n._
Mead, Cowles, and Burr conspiracy, =3=, 362, 363.
Meade, William, on drinking, =1=, 23;
on irreligion, 221 _n._;
on M.'s daily life, =4=, 63, 63 _n._, 69.
Mellen, Prentice, on bankruptcy frauds, =4=, 202.
Mercer, Charles F., on M., =4=, 489 _n._
Mercer, John, grand juror on Burr, =3=, 413 _n._
Mercer, John Francis,
in Federal Convention, on declaring acts void, =3=, 115 _n._
Meredith, Jonathan, counsel in Brown _vs._
Maryland, =4=, 455.
Merlin de Douai, Philippe A., election to Directory, =2=, 243.
Merry, Anthony, intrigue with Federalist Secessionists, =3=, 281;
and Burr, 287-90, 299.
Mexican Association, =3=, 295.
Mexico. _See_ Burr Conspiracy.
Midnight appointments, =2=, 559-62;
ousted, =3=, 95.
Milan Decree, =4=, 7.
Military certificates, M. purchases, =1=, 184.
Military titles, passion for, =1=, 327 _n._, 328 _n._
Militia, in the Revolution, =1=, 83-86, 100;
debate in Ratification Convention on efficiency, 393, 406 _n._;
on control, 435-38;
uniform in Virginia (1794), =2=, 104 _n._;
M. on unreliability, 404.
Milledge, John, on Yazoo lands, =3=, 573 _n._
Miller, James, and Yazoo lands, =3=, 566 _n._
Miller, Stephen D., and Nullification, =4=, 555.
"Millions for defense," origin of slogan, =2=, 348.
Minor, Stephen, Spanish agent, and Burr conspiracy, =3=, 256, 329 _n._
Mirabeau, Comte de, on the Cincinnati, =1=, 293.
Miranda, Francisco de,
plans, knowledge of Administration, =3=, 286, 300, 301, 306;
and Burr conspiracy, 306, 308;
Ogden-Smith trial, 436 _n._
Mississippi River, free navigation in Virginia debate on Ratification,
=1=, 399, 403, 411, 420, 430-32;
first steamboat =4=, 402, 402 _n._, 403 _n._;
steamboat monopoly, 402, 414.
Mississippi Territory, powers of Governor, =2=, 446;
Burr, =3=, 362-68.
Missouri. _See_ next title, and Craig _vs._ Missouri.
Missouri Compromise,
Virginia resolutions against restriction, =4=, 325-29;
struggle and secession, 340-42.
Mitchel _vs._ United States, M.'s last opinion, =4=, 585.
Mitchell, Samuel L., votes to acquit Chase, =3=, 219, 220.
Monarchy, fear, =1=, 290 _n._, 291, 334, 391, =2=, 383.
_See also_ Government.
Money, varieties in circulation (1784), =1=, 218 _n._;
debased, 297;
scarcity (c. 1788), =2=, 60 _n._
_See also_ Finances; Paper money.
Monmouth campaign, =1=, 134-38.
Monopoly, Bank of the United States as, =4=, 310, 311, 336, 338, 531.
Monroe, James, Stirling's aide, =1=, 119;
and selling of land rights, 168;
and realizing on warrants, 181, 212;
and chancery bill (1787), 219;
and British debts, 229 _n._, 231;
use of cipher, 266 _n._;
in debate in Ratification Convention, 407, 408, 431;
candidacy for House (1789), =2=, 50 _n._;
on service in Legislature, 81 _n._;
on M.'s support of policy of neutrality, 98;
and M.'s integrity, 140;
as Minister to France, 144, 222, 224;
attack on Washington, 222;
and movement to impeach Justices, =3=, 59;
and J. Q. Adams, 541 _n._;
and M., =4=, 40;
report on St. Cloud Decree, 48;
M.'s review of it, 49, 50;
and Hay's pamphlet on impressment, 53;
and Martin _vs._ Hunter's Lessee, 160;
and second Bank of the United States, 180 _n._;
and internal improvements, 418 _n._;
in Virginia Constitutional Convention, 484;
conservatism there, 489.
Montgomery, John, and Chase, =3=, 170;
as witness in Chase trial, 189 _n._
Moore, Albert, resigns Justiceship, =3=, 109 _n._
Moore, John B., on M. and international law, =4=, 117, 121 _n._
Moore, Richard C., at M.'s funeral, =4=, 589.
Moore, Thomas, on Washington, =3=, 9.
Moore, William, on election of Ratification delegates, =1=, 360.
Moravians, during American Revolution, =1=, 110 _n._, 116.
Morgan, Charles S.,
in Virginia Constitutional Convention, =4=, 501 _n._
Morgan, George, and Burr conspiracy, =3=, 309, 465, 488.
Morgan, James, votes for war, =4=, 29 _n._
Morrill, David L., resolution against dueling, =3=, 278 _n._
Morris, Gouverneur, and Ratification in Virginia, =1=, 401, 433;
on American and French revolutions, =2=, 2 _n._;
unfavorable reports of French Revolution, 6-9, 26 _n._, 248;
recall from French Mission, 221;
in debate on repeal of Judiciary Act, =3=, 60, 61, 65, 66, 70, 71;
Mason's sarcasm, 64;
on reporting debates, 67 _n._;
on Jefferson's pruriency, 90 _n._;
in Federal Convention, on declaring acts void, 115 _n._;
and on obligation of contracts, 557 _n._;
and Judiciary Act of 1789, 128;
on Napoleon, =4=, 2.
Morris, Hester, marries J. M. Marshall, =2=, 203.
Morris, Robert, as financial boss, =1=, 335;
as a peculator, 336;
and Ratification in Virginia, 401, 402 _n._;
and M., 401 _n._;
and Cabinet position, =2=, 63;
and M.'s purchase of Fairfax estate, 101, 203, 206, 209, 211;
and M.'s investments, 199, 200;
land speculation, 202, 205 _n._;
connection with M.'s family, 203;
and Judiciary Act of 1789, =3=, 129;
and Yazoo lands, 555.
Morris, Thomas, in Judiciary debate (1802), =3=, 74 _n._
Morse, Jedediah, on secession, =3=, 152.
Morton, Perez, and Yazoo claims, =3=, 576 _n._
Motto, M.'s, =1=, 17.
Mumkins, Betsy, M.'s domestic, =1=, 190.
Murch, Rachel, and Dartmouth College troubles, =4=, 226.
Murdock, T. J., on Story and Dartmouth College case, =4=, 257 _n._
Murphey, Archibald D., on M.'s biography of Washington, =3=, 272.
Murray, William Vans,
on Gerry in X. Y. Z. Mission, =2=, 258 _n._, 363;
on memorial of X. Y. Z. envoys, 309;
on M.'s views on Alien and Sedition Acts, 394, 406;
on M.'s election (1799), 419;
and reopening of French negotiations, 423;
on repeal of Judiciary Act, =3=, 94.
Murrell, John, and Burr conspiracy, =3=, 362.
Mutual Assurance Society of Virginia, M. and origin, =2=, 174.
Napoleon I., and 18th Fructidor, =2=, 230, 246;
Treaty of Campo Formio, 271;
and Talleyrand, 272;
reception in Paris (1797), 287, 288;
and American negotiations, 524;
and Burr, =3=, 537 _n._;
Morris on, =4=, 2;
decrees on neutral trade, 6;
and Embargo Act, 12 _n._;
pretended revocation of decrees, 26, 36-39, 48-50;
battle of Leipzig, 51;
and Fulton's steamboat experiments, 397.
Napoleonic Wars, peace and resumption, =3=, 14;
and American politics, =4=, 2-5.
_See also_ Neutral trade.
Nash, Thomas. _See_ Jonathan Robins case.
Nashville, Burr at, =3=, 292, 296, 313.
Nason, Samuel, and Ratification, =1=, 342, 345.
Natchez, first steamboat, =4=, 403 _n._
_Natchez Press_, on M'Culloch _vs._ Maryland, =4=, 311 _n._
_National Gazette_, as Jefferson's organ, =2=, 81.
_See also_ Freneau.
National Government, M. on start, =3=, 263.
Nationalism, growth of M.'s idea, =1=, 223, 231, 232, 240, 242-44,
286, 287, =2=, 77;
lack of popular conception under Confederation, =1=, 232, 285;
Washington's spirit during Confederation, 243;
fear of consolidation, 320, 375, 382, 388-390, 405, 433, =2=, 69;
fear of gradual consolidation, =1=, 446;
lesson of Ratification contest, 479;
influence of French Revolution on views, =2=, 42-44;
M. on origin of contest, 48;
made responsible for all discontents, 51-53;
M.'s use of "Nation," 441;
centralization as issue (1800), 520;
union with reaction, =3=, 48;
importance of M.'s Chief Justiceship to, 113;
M. on, as factor under Confederation, 259-61;
M. on Washington's, 259 _n._;
influence of Fletcher _vs._ Peck, 594, 602;
as M.'s purpose in life, =4=, 1, 55;
assertion in Embargo controversy, 12, 16;
Olmstead case, M.'s opinion, 18-21;
moves westward, 28;
M. on internal improvements and, 45;
M. as check to reaction against, 58;
and M.'s upholding of doubtful acts of Congress, 117-19;
of Story, 145;
in M'Culloch _vs._ Maryland, 292;
forces (c. 1821), 370;
original jurisdiction of National Courts, 386;
Randolph's denunciation in internal improvements contest, 419-21;
importance of Gibbons _vs._ Ogden, 429;
and tariff and overthrow of slavery, 536;
M.'s opinions and Webster's reply to Hayne, 552-55;
M. anticipates reaction in Supreme Court, 582, 584.
_See also_ Declaring acts void; Division of powers; Federalist
Party; Government; Implied powers; Kentucky Resolutions;
Marshall, John (_Chief Justice_); Nullification; Secession;
State Rights; Virginia Resolutions.
Naturalization, Madison on uniform regulation, =1=, 312.
_See also_ Impressment.
Navigation, power over, under commerce clause, =4=, 428, 432, 433.
Navigation acts, proposed power for Confederation, =1=, 234, 235.
_See also_ Commerce.
Navy, M. on need (1788), =1=, 419;
French War, =2=, 427;
M.'s support (1800), 531;
reduction, =3=, 458 _n._;
in War of 1812, =4=, 56;
immunity in foreign ports, 122-25.
Naylor, William, on Virginia County Courts, =4=, 487.
Necessary and proper powers. _See_ Implied powers.
Negro seamen law of South Carolina, Johnson's opinion, =4=, 382, 383.
Nelson, William, Jr., decision in Hunter _vs._ Fairfax, =4=, 148 _n._
Nereid case, neutral goods in enemy ship, =4=, 135-42.
Netherlands, M. on political conditions (1797), =2=, 223-26.
Neufchatel, François de, election to Directory, =2=, 243.
Neutral trade, British seizures in 1793-94, =2=, 107;
question of war over, 108-12;
French depredations, 223, 224, 229, 257, 270, 271, 277, 283, 284,
403, 496;
French rôle d'équipage, 294 _n._;
free ships, free goods, 303-05;
Spanish depredations, 496;
British depredations after Jay Treaty, 506;
Tench Coxe on them, 506 _n._;
M.'s protest on contraband, 509-11;
on paper blockade, 511;
on unfair judicial proceedings, 511, 512;
on impressment, 513;
moderation of French depredations, 523;
and new French treaty, 524 _n._;
renewal of British and French violations, =4=, 6-8, 122;
Non-Importation Act (1806), 9;
partisan attitude, 9-11;
Embargo, 11;
its effect, opposition, 12-16;
M.'s opinion, 14;
non-intercourse, 22;
Erskine incident, 22;
Jackson incident, 23-26;
Napoleon's pretended revocation of decrees, 26, 36-39, 48-50;
M.'s interpretation of Jefferson's acts, 118, 125;
_Nereid_ case, neutral property in enemy ship, 135-42.
_See also_ Jay Treaty; Neutrality.
Neutrality, as Washington's great conception, =2=, 92;
proclamation, 93;
unpopularity, 93;
opposition of Jefferson and Republicans, 94, 95;
mercantile support, 94 _n._, 96;
constitutionality of proclamation, 95;
M.'s support, 97-99, 298-301, 387, 388, 402, 403, 507-09;
M.'s military enforcement, 103-06;
as issue in Virginia, 106;
J. Q. Adams on necessity, 119 _n._;
Federal common-law trials for violating, =3=, 24-29;
M.'s biography of Washington on policy, 264.
_See also_ Isolation; Neutral trade.
New England, hardships of travel, =1=, 256;
type of pioneers (c. 1790), 276;
and excise on distilleries, =2=, 86 _n._;
and secession, =3=, 97;
escapes crisis of 1819, =4=, 170.
_See also_ States by name.
New England Mississippi Company, Yazoo claims, =3=, 576-83, 595-602.
_See also_ Fletcher _vs._ Peck.
New Hampshire, Ratification contest, =1=, 354, 355, 478;
and disestablishment, =4=, 227, 230 _n._;
denounces congressional salary advance (1816), 231 _n._;
Judiciary controversy, 229, 230;
steamboat monopoly, 415;
branch bank controversy, 529;
and Nullification, 559.
_See also_ Dartmouth College _vs._ Woodward.
New Jersey, hardships of travel, =1=, 259;
and State tariff laws, 311;
Ratification, 325;
and Livingston steamboat monopoly, =4=, 403, 404.
_See also_ next title.
New Jersey _vs._ Wilson, exemption of land from taxation and
obligation of contracts, =4=, 221-23.
New Orleans, reception of Burr, =3=, 294, 295;
Wilkinson's reign of terror, 330-37;
battle, =4=, 56;
first steamboat, 403 _n._
New York, hardships of travel, =1=, 257;
Jefferson on social characteristics, 279;
and Kentucky and Virginia Resolutions, =3=, 105 _n._, 106;
bank investigation (1818), =4=, 184;
and M'Culloch _vs._ Maryland, 334.
_See also_ Gibbons _vs._ Ogden; Sturges _vs._ Crowninshield.
New York City, Jacobin enthusiasm, =2=, 35.
_See also_ New York _vs._ Miln.
_New York Evening Post_, on M.'s biography of Washington, =3=, 270;
on Adams's report on Burr Conspiracy, 544;
on Gibbons _vs._ Ogden, =4=, 445;
hostile criticism on M., 591.
New York _vs._ Miln, facts, State regulation of immigration, =4=, 583;
division of Supreme Court on, 583, 584;
decision, proper police regulation, 584 _n._;
Story voices M.'s dissent, 584 _n._
Newspapers, character at period of Confederation, =1=, 267-70;
virulence, =2=, 529, =4=, 175 _n._;
development of influence, =3=, 10;
and first Bank of the United States, =4=, 175.
_See also_ Press.
Nicholas, George, in the Legislature, =1=, 203;
citizen bill, 208;
and chancery bill (1787), 219;
and calling of Ratification Convention, 245;
on popular ignorance of draft Constitution, 320;
in Ratification Convention: characterized, 374;
in debate, 395, 421, 432, 440, 465, 471, 472;
assault on Henry, 466;
in contest over recommendatory amendments, 472.
Nicholas, John, deserts Congress (1798), =2=, 340 _n._;
on the crisis (1799), 434;
in Jonathan Robins case, 475;
and reduction of army, 476;
and Judiciary Bill, 551.
Nicholas, Wilson C., and M., =2=, 100;
sells land to Morris, 202 _n._;
and Kentucky Resolutions, 398, 398 _n._;
and Pickering impeachment, =3=, 167;
and Burr conspiracy, 381;
and grand jury on Burr, 410-12, 422.
Nicholson, Joseph H., in Judiciary debate (1802), =3=, 89;
on bill on sessions of Supreme Court, 95;
and Chase impeachment, 170;
argument in Chase trial, 207-10;
and acquittal of Chase, 221;
releases Alexander, 343;
on Jefferson's popularity, 404.
Nickname, M.'s, =1=, 74, 132.
Nightingale, John C., and Yazoo lands, =3=, 566 _n._
Niles, Hezekiah, on banking chaos after War of 1812, =4=, 181 _n._,
182, 183, 186 _n._, 192, 194, 196;
on bankruptcy frauds, 201;
on Sturges _vs._ Crowninshield, 218;
and Dartmouth College case, 276 _n._;
value of his _Register_, 309;
attack on M'Culloch _vs._ Maryland opinion, 309-12;
on Elkison case, 383, 384 _n._;
and Gibbons _vs._ Ogden, 445;
on Virginia and Nullification, 568, 572;
tribute to M., 590.
Niles, Nathaniel, and Burr, =3=, 68 _n._;
and Dartmouth College troubles, =4=, 227;
Jefferson on, 227.
_Niles' Register_, value, =4=, 309.
_See also_ Niles, Hezekiah.
Nimmo, James, Cohens _vs._ Virginia, =4=, 345.
Nobility, fear from Order of the Cincinnati, =1=, 292.
_See also_ Government.
Non-Importation Act (1806), =4=, 9;
M. and constitutionality, 118.
_See also_ Neutral trade.
Non-intercourse, act of 1809, =4=, 22;
Erskine incident, 22;
M. and constitutionality, 118;
South Carolina's proposed, with tariff States, 459, 538.
_See also_ Neutral trade.
Norbonne, Philip, practitioner before M., =4=, 237 _n._
Norfolk, Va., Dunmore's burning, =1=, 78;
tribute to M., =4=, 592.
North Carolina, hardships of travel, =1=, 263;
and State tariff acts, 311;
Granville heirs case, =4=, 154, 155;
tax on Bank of the United States, 207.
North River Steamboat Co. _vs._ Livingston, =4=, 448-51.
Norton, George F., and British debts, =1=, 226.
Norton, J. K. N., M.'s books possessed by, =1=, 186 _n._;
acknowledgment to, =4=, 528 _n._
Nullification, first hints, =4=, 384;
M.'s rebukes, 389, 459, 513;
movement, 555;
M. on movement, 556, 557;
Madison on, 556;
Jackson's Union toast, 557;
and warning, 558;
M. on doctrine and progress, 558, 559, 562;
and Tariff of 1832, 559, 560;
Convention and Ordinance, 560, 561;
popular excitement, 561;
Jackson's Proclamation, its debt to M.'s opinions, 562, 563;
M. on it, 563;
South Carolina and the proclamation, Jackson's inconsistencies,
564, 565;
military preparations, 566;
Jackson's recommendation of reduction of tariff, 567;
Virginia and mediation, M. on it, 567-73;
M. on Webster's speech against, 572;
suspension of ordinance, 573;
compromise Tariff, 574;
M. on virtual victory for, 574, 575;
M.'s resulting despondency on state of the country, 575-78.
_See also_ State Rights.
Oak Hill, acquired by M.'s father, =1=, 55;
as home for M.'s son, =4=, 74.
Oakley, Thomas J., counsel in Gibbons _vs._ Ogden, =4=, 423, 424, 427.
_Obiter dicta_, M.'s use, =4=, 121, 369.
Obligation of contracts. _See_ Contracts.
Occom, Samson, visit to England, =4=, 223.
Office. _See_ Civil service.
Ogden, Aaron, and Livingston steamboat monopoly, =4=, 409-411.
_See also_ Gibbons _vs._ Ogden.
Ogden, David B., counsel in Sturges _vs._ Crowninshield, =4=, 209;
practitioner before M., 237 _n._;
fees, 345 _n._;
counsel in Cohens _vs._ Virginia, 346, 376.
Ogden, George M. _See_ Ogden _vs._ Saunders.
Ogden, Peter V., and Burr conspiracy, arrested, =3=, 333, 334.
Ogden, Samuel G., trial, =3=, 436 _n._
Ogden _vs._ Saunders, obligation of future contracts not impaired by
insolvency laws, =4=, 480;
M.'s dissent, 481.
Ohio, cession of Western Reserve, =2=, 446;
tax on Bank of the United States, =4=, 207, 328;
legislative denunciation of M'Culloch _vs._ Maryland, 330-33;
and New York steamboat monopoly, 415 _n._
_See also_ Osborn _vs._ Bank.
Ohio River, Burr and plan for canal, =3=, 291 _n._;
first steamboat, =4=, 403 _n._;
development of steam transportation, 416.
Old Field Schools, =1=, 24.
Olmstead case, State defiance of Federal mandate, =4=, 18-21.
Opinions, M.'s rule on delivering, =3=, 16.
Orange County, Va., minute men, =1=, 69.
Oratory, court, and woman auditors, =4=, 133, 134.
Orders in Council on neutral trade, =4=, 6, 7.
_See also_ Neutral trade.
Orr, Thomas, Osborn _vs._ Bank, =4=, 329, 330.
Orr _vs._ Hodgson, =4=, 165 _n._
Osborn, Ralph. _See_ Osborn _vs._ Bank.
Osborn _vs._ Bank of the United States, facts, =4=, 327-30;
compromise proposed by Ohio, 332;
defiance of Ohio, 333;
argument, 385;
M.'s opinion, 385-94;
original jurisdiction of National Courts, 385-87;
and Eleventh Amendment, protection of Federal agents from State
agents, 387-91;
tax on business of bank void, 391, 392;
courts and execution of law, 392;
general satisfaction of parties on the record, 393;
Johnson's opinion, 394;
resulting attack on Supreme Court, 394-96;
Jackson denies authority, 530-32.
Osmun, Benijah, and Burr, =3=, 365, 366.
Oswald, Eleazer, and _Centinel_ letters, =1=, 335 _n._, 338;
and Ratification in Virginia, 402, 434, 435.
Otis, Harrison Gray, and slavery (1800), =2=, 449;
on Washington streets (1815), =3=, 4;
on traveling conditions, 5 _n._;
on speculation, 557 _n._;
and Story, =4=, 98;
and bankruptcy laws, 201.
Otsego, N.Y., conditions of travel (1790), =1=, 257.
Paine, Robert Treat, on X. Y. Z. Mission, =2=, 356.
Paine, Thomas, on militia, =1=, 84;
relief bill, 213;
on government as an evil, 288;
popularity of _Common Sense_, 288 _n._;
on American and French revolutions, =2=, 2 _n._;
and key of the Bastille, 10;
_Rights of Man_, influence in United States, 12-14;
Jefferson's approbation, 14, 15, 16 _n._;
J. Q. Adams's reply, 15-19;
disapproves of excesses, 25 _n._, 27;
on the King and early revolution, 31 _n._;
on Republican Party and France, 223;
and X. Y. Z. Mission, 254.
Palmer, William P., anecdote on M., =4=, 63 _n._
Paper money, depreciation and confusion during Revolution and
Confederation, =1=, 167, 168, 295-97;
counterfeiting, 297, =4=, 195;
post-bellum demand, =1=, 297, 299;
Continental, in debate on Ratification, 429, 440, 441;
and impairment of obligation of contracts, =3=, 557, 558 _n._,
=4=, 214;
flood and character of State bank bills, 176-79, 181, 184, 187, 192;
popular demand for more, 186, 199;
local issues, 187;
depreciation, 192;
endless chain of redemption with other paper, 193;
reforms by second Bank of the United States, 197-99.
_See also_ Briscoe _vs._ Bank; Craig _vs._ Missouri money.
Paris, in 1797, =2=, 247.
Parker, Richard E., verdict in Burr trial, =3=, 514.
Parsons, Theophilus, Ratification amendments, =1=, 348.
Parton, James,
on Administration's knowledge of Burr's plans, =3=, 318 _n._;
on Jefferson and trial of Burr, 390 _n._;
biography of Burr, 538 _n._
Partridge, George, accident, =3=, 55 _n._
"Party," as term of political reproach, =2=, 410 _n._
Paterson, William, and Chief Justiceship, =2=, 553;
charge to grand jury, =3=, 30 _n._;
sedition trials, 31, 32;
and declaring acts void, 117, 611, 612;
and Judiciary Act of, 1789, 128;
Ogden-Smith trial, 436 _n._
Paulding, James K., on M., =4=, 77.
Pawles Hook, Lee's surprise, =1=, 142.
Peace of 1783, and land titles, =4=, 147, 148, 153.
_See also_ British debts; Frontier posts; Slaves.
Pearsall _vs._ Great Northern Railway, =4=, 279 _n._
Peck, Jedediah, trial, =3=, 42 _n._
Peck, John. _See_ Fletcher _vs._ Peck.
Peele, W. J., on M., =4=, 66 _n._
Pegram, Edward, grand juror on Burr, =3=, 413 _n._
Pendleton, Edmund, as judge, =1=, 173;
on M.'s election to Council of State, 209;
candidacy for Ratification Convention, 359;
in the Convention: President, 368;
and impeachment of authority of Framers, 373;
characterized, 385;
on failure of Confederation, 386;
in debate, 427, 428, 445;
on Judiciary, 445.
Pendleton, Nathaniel, and Yazoo lands, =3=, 549, 555.
Pennsylvania, during the Revolution, =1=, 85;
hardships of travel, 258, 259;
Jefferson on social characteristics, 279;
tariff, 310 _n._, 311 _n._;
calling of Ratification Convention, 326;
election of delegates, 327-29;
precipitancy in Ratification Convention, 329-32;
address of minority, 333, 334, 342;
continued opposition after Ratification, 334-38;
and Kentucky and Virginia Resolutions, =3=, 105 _n._;
Olmstead case, =4=, 18-21;
legislative censure of M'Culloch _vs._ Maryland, 333.
Pennsylvania, University of, honorary degree to M., =4=, 89.
People, character of masses under Confederation, =1=, 253, 254;
community isolation, 264, =4=, 191;
responsible for failure of Confederation, =1=, 307;
basis of Federal Government, =4=, 292, 352.
_See also_ Democracy; Government; Nationalism.
Perkins, Cyrus, and Dartmouth College case, =4=, 260 _n._
Perkins, Nicholas, and Burr conspiracy, =3=, 367-69, 372.
Peters, Richard [1], and common-law jurisdiction, =3=, 25, 28 _n._;
sedition trial, 33;
impeachment contemplated, 172 _n._;
on United States and Napoleonic War, =4=, 6 _n._;
Olmstead case, 18-21;
death, 238 _n._
Peters, Richard [2], escort for M.'s body, =4=, 588.
Phi Beta Kappa, M. as member, =1=, 158;
Jacobin opposition, =2=, 37.
Philadelphia, march of Continental army through (1777), =1=, 92;
capture by British, 98-102;
during British occupation, 108-10;
Jacobin enthusiasm, =2=, 31;
luxury, 85 _n._;
and M.'s return from X. Y. Z. Mission, 344-51;
tributes to M. as Chief Justice, =4=, 521, 588.
Philadelphia _Aurora_. _See_ _Aurora_.
Philadelphia _Federal Gazette_, on Publicola papers, =2=, 19.
Philadelphia _Gazette of the United States_. _See_ _Gazette_.
Philadelphia _General Advertiser_, on French Revolution, =2=, 28 _n._;
on Neutrality Proclamation, 94 _n._
Philadelphia _Independent Gazette_, and Ratification, =1=, 328.
_Sec also_ Oswald.
Philadelphia _National Gazette_. _See_ _National Gazette_.
Philips, Josiah, attainder case, =1=, 393, 398, 411.
Phillips, Isaac N., on treason, =3=, 403 _n._
Physick, Philip S., operates on M., =4=, 520;
and M.'s final illness, 587.
Pichegru, Charles, and 18th Fructidor, =2=, 240, 241, 245 _n._
Pickering, John, impeachment, =3=, 111, 143, 164-68;
witnesses against, rewarded, 181.
Pickering, Timothy, on hardships of travel, =1=, 257 _n._;
on Jefferson and Madison, =2=, 79;
and Gerry at Paris, 366, 369;
on M.'s views on Alien and Sedition Acts, 394;
on M.'s election (1799), 417;
on M. in Jonathan Robins case, 471;
dismissed by Adams, 486, 487;
_Aurora's_ attack, 489 _n._, 491 _n._;
on M. as his successor, 492;
on M. and Jefferson-Burr contest, 539;
and secession, =3=, 98, 151, 281, 289, =4=, 13 _n._, 30, 49;
on Giles, =3=, 159 _n._;
on impeachment programme, 160;
on Pickering impeachment, 168 _n._;
on Chase impeachment, 173;
at trial of Chase, 183 _n._;
on M.'s biography of Washington, 233;
on Adams's Burr Conspiracy report, 543 _n._;
as British partisan, =4=, 2 _n._;
on Embargo, 13, 14;
and M., 27, 473;
on election of 1812, 47;
and Story, 98;
and Story and Dartmouth College case, 257 _n._;
on Massachusetts Constitutional Convention (1820), 471;
on slavery, 473.
Pickett, George, bank stock, =2=, 200.
Pinckney, Charles, on campaign virulence (1800), =2=, 530;
reward for election services, =3=, 81 _n._;
in Federal Convention, on declaring acts void, 116 _n._
Pinckney, Charles C.,
appointment to French mission, =2=, 145, 146, 223;
not received, 224;
at The Hague, 231;
accused of assisting Royalist conspiracy, 246 _n._;
and "millions for defense" slogan, 348;
toast to, 349 _n._;
candidacy (1800), 438;
Hamiltonian intrigue for, 517, 528 _n._, 529 _n._;
and Chief Justiceship, 553.
_See also_ Elections (1800); X. Y. Z. Mission.
Pinckney, Thomas, on Gerry, =2=, 364.
Pindall, James, on Bank of the United States, =4=, 289.
Pinkney, William, Canning's letter, =4=, 23;
as practitioner before M., 95;
counsel in _Nereid_ case, 131, 140;
character, 131-33;
influence of woman auditors on oratory, 133, 134, 140 _n._;
Conkling's resemblance, 133 _n._;
M. on, 141, 287;
Story on _Nereid_ argument, 142 _n._;
counsel in Dartmouth College case, 259-61, 274;
counsel in M'Culloch _vs._ Maryland, 284;
argument, 287;
fees, 345 _n._;
argument in Cohens _vs._ Virginia, 346;
counsel in Gibbons _vs._ Ogden, 413;
death, 423.
Pinto, Manuel, _Nereid_ case, =4=, 135.
Piracy, M. on basis, =2=, 467.
Pitt, William, and Burr, =3=, 289.
Pittsburgh, first steamboat, =4=, 403 _n._
Platt, Jonas, opinion in Gibbons _vs._ Ogden, =4=, 412.
Pleasants, James, grand juror on Burr, =2=, 413 _n._
Plumer, William, on Washington (1805), =3=, 6;
on drinking there, 9;
on Jefferson and popularity, 19 _n._;
on Bayard, 79 _n._;
on Randolph, 83 _n._;
on repeal of Judiciary Act, 93;
on Louisiana Purchase, 148 _n._, 150;
on Giles, 159 _n._;
on impeachment plan, 160;
on Pickering impeachment, 167 _n._, 168 _n._;
on Chase impeachment and trial, 171 _n._, 173, 179 _n._, 181 _n._,
192 _n._, 205 _n._, 217 _n._, 220;
on Burr, 180, 182 _n._, 183 _n._, 219 _n._, 274 _n._, 279 _n._, 470;
on M. as witness, 196;
on not celebrating Washington's birthday, 210 _n._;
joins Republican Party, 222 _n._;
on M.'s biography of Washington, 269;
on Swartwout, 321 _n._, 333 _n._;
on Burr conspiracy, 338 _n._, 341;
on arrest of Bollmann, 343 _n._;
on Jefferson's personal rancor, 384 _n._;
on trial of Burr, 526;
on Adams's Burr conspiracy report, 543 _n._;
on Embargo and secession threats, =4=, 24 _n._;
on Federalists as aristocracy, 55;
Governor of New Hampshire, and Dartmouth College affairs, 230, 232.
Pocket veto, Randolph on, as impeachable offense, =3=, 213.
Poetry, M. and, =1=, 41, =4=, 79, 80.
Police power, as offset to obligation of contracts, =4=, 279;
and commerce clause, 436, 437, 457, 459.
_See also_ New York _vs._ Miln.
Politics,
machine in Virginia, =1=, 210, 217 _n._, =2=, 56 _n._, =4=, 146,
147, 485-88;
share in Ratification in Virginia, =1=, 252, 356, 357, 381, 402;
Federal Constitution and parties, =2=, 75;
abuse, 396;
influence of newspapers, =3=, 10;
period of National egotism, 13;
effect of Republican rule, 15 _n._;
Randolph on government by, 464 _n._
_See also_ Elections, Federalist Party; Republican Party.
Poole, Simeon, testimony in Burr trial, =3=, 490.
Poor whites of colonial Virginia, =1=, 27.
Pope, John, M. and his poems, =1=, 44, 45.
Pope, John, of Smith committee, =3=, 541 _n._
Popularity, Jefferson's desire, =3=, 19 _n._
Population, density (c. 1787), =1=, 264;
character of Washington, =3=, 8.
Portraits of M., =4=, 85 _n._, 522 _n._
Posey, Thomas, and Ratification, =1=, 392 _n._
Potomac River, company for improvement, =1=, 217, 218.
Potter, Henry, Granville heirs case, =4=, 154.
Powell, Levin, slandered, =1=, 290 _n._;
on House's reply to Adams's address (1799), =2=, 434;
on M. in Jonathan Robins case, 475 _n._
Practice and evidence, M.'s opinion on, =3=, 18.
Precedents, M.'s neglect of legal, =2=, 179, =4=, 409.
Preparedness, M. on need, =1=, 414, 415, 437, =2=, 403, 476-80, 531;
ridiculed, =1=, 425;
utter lack (1794), =2=, 109.
_See also_ Army.
Prescott, William, on Dartmouth College case, =4=, 275 _n._
President, Ratification debate on office and powers, =1=, 390, 442;
question of title, =2=, 36;
M. on, as sole organ of external relations, 470.
_See also_ Elections; Subpoena; and Presidents by name.
Press, freedom of, Franklin on license, =1=, 268-70;
M. on liberty and excess, =2=, 329-31;
Martin on license, =3=, 204, 205.
_See also_ Alien and Sedition Acts; Newspapers.
Prices, at Richmond (c. 1783), =1=, 177-81;
board in Washington (1801), =3=, 7.
Priest, William, on speculation, =3=, 557.
Princeton University, honorary degree to M., =4=, 89.
Prisoners of war, treatment, =1=, 115.
Privateering, Genêt's commissions, =2=, 28;
_Unicorn_ incident in Virginia, 103-06.
Prize law, Amelia case, =3=, 16, 17.
_See also_ Admiralty; International law.
Property, demand for equal division, =1=, 294, 298;
M.'s conservatism on rights, =4=, 479, 503.
Prosperity, degree, at period of Confederation, =1=, 273, 274, 306.
Public debt, problem under Confederation, =1=, 233-35;
unpopularity, 254;
spirit of repudiation, 295, 298, 299;
resources under Confederation, 306;
in Ratification debate, 396, 416, 425, 440;
funding and assumption of State debts, =2=, 59-64;
financial and political effects of funding, 64-68, 82, 85, 127.
_See also_ Debts; Finances; Paper money.
Public lands, Jefferson on public virtue and, =1=, 316;
State claims, =3=, 553;
Foot resolution, =4=, 553 _n._
_See also_ Yazoo; Land.
Publicists, lawyers as, =4=, 135.
Publicola papers, =2=, 15-18;
replies, 18, 19.
Punch, recipe, =4=, 77.
Punishments, cruel, =3=, 13 _n._
Putnam, ----, arrest in France, =2=, 283.
_Quarterly Review_, on insolvency frauds, =4=, 203 _n._
Quincy, Josiah, on Jefferson and popularity, =3=, 19 _n._;
on resolution against Minister Jackson, =4=, 24;
on admission of Louisiana and secession, =4=, 27;
and Localism, 28.
Quoit (Barbecue) Club, M. as member, =2=, 182-85, =4=, 76-78;
memorial to M., 592.
Railroads, influence of Dartmouth College case and Gibbons _vs._ Ogden
on development, =4=, 276, 277, 446.
Raleigh, M. on circuit at, =3=, 101, 102, =4=, 65, 66.
Rambouillet Decree, =4=, 122.
Ramsay, David, biography of Washington, =3=, 225 _n._
Ramsay, Dennis, Marbury _vs._ Madison, =3=, 110.
Randall, Benjamin, in Ratification Convention, =1=, 340.
Randall, Henry S., on M. as Secretary of State, =2=, 494;
on M., =4=, 154.
Randolph, David M., as witness in Chase trial, =3=, 191, 192.
Randolph, Edmund, ancestry, =1=, 10;
as lawyer, 173;
transfers practice to M., 190;
Hite _vs._ Fairfax, 191, 192;
in the Legislature, 203;
importance of attitude on Ratification, 360-63, 378-82;
secret intention to support it, 363;
in the Convention: characterized, 376;
disclosure of support of Ratification, 376-79;
suppresses Clinton's letter, 379-81, 477;
effect on reputation, 382;
ascription of motives, in Washington's Cabinet, 382 _n._;
in Convention debate, 392, 393, 397, 406, 461, 470;
and Philips case, 393 _n._;
personal explanations, 393 _n._, 476;
Henry on change of front, 398;
answers Henry's taunt, 406;
Mason's denunciation, 423;
on Fairfax grants, 458 _n._;
on opposition after Ratification, =2=, 46 _n._;
and first amendments, 59;
Fauchet incident, resignation from Cabinet, 146, 147;
on Richmond meeting on Jay Treaty, 151, 152;
as orator, 195;
on weakness of Supreme Court, =3=, 121 _n._;
counsel for Burr, 407;
on motion to commit Burr for treason, 417;
on subpoena to Jefferson, 440, 441;
on overt act, 494.
Randolph, George, ancestry, =1=, 10.
Randolph, Isham, =1=, 10.
Randolph, Jacob, operates on M., =4=, 522.
Randolph, Jane, =1=, 10, 11.
Randolph, John, of Roanoke, ancestry, =1=, 10;
insult by army officers, =2=, 446;
debate with M. on Marine Corps, 447, 448;
in Jonathan Robins case, 474;
appearance, =3=, 83;
as House leader, 83 _n._;
in Judiciary debate (1802), 84-87;
manager of Chase impeachment, 171;
and articles of impeachment, 172;
break with Jefferson over Yazoo frauds, 174;
opening speech at Chase trial, 187-89;
references to M., political significance, 187, 188, 214-16;
examination of M. at trial, 194;
conferences with Giles, 197;
argument, 212-16;
and acquittal, 220;
duelist, 278 _n._;
and Burr conspiracy, 339;
and Eaton's claim, 345 _n._;
on Wilkinson's conduct, 359, 464;
on Burr as military captive, 369;
and removal of judges on address, 389 _n._;
grand juror on Burr, 413;
on government by politics, 464 _n._;
and _Chesapeake-Leopard_ affair, 476;
and Yazoo frauds, 566, 575, 577-79, 581, 595, 596, 600;
on Localism, =4=, 191;
on dangers in M.'s Nationalist opinions, 309, 420;
in debate on Supreme Court (1824), 395;
on internal improvements and Nationalism, 419-21;
absorption in politics, 461;
Clay duel, 463 _n._;
in Virginia Constitutional Convention, 484;
on M. in convention, 489 _n._
Randolph, Mary (Isham), descendants, =1=, 10.
Randolph, Mary Isham, =1=, 10.
Randolph, Peyton, and Henry's Stamp-Act Resolutions, =1=, 64.
Randolph, Richard, of Curels, estate, =1=, 20 _n._
Randolph, Susan, on Jefferson and Rebecca Burwell, =1=, 150 _n._
Randolph, Thomas, =1=, 10.
Randolph, Thomas M., on Jay Treaty resolutions in Virginia
Legislature, =2=, 134, 135, 137.
Randolph, William, descendants, =1=, 10.
Randolph, William, and Peter Jefferson, =1=, 12 _n._
Randolph family, origin and characteristics, =1=, 10, 11.
Rappahannock County, Va., loyal celebration, =1=, 23 _n._
Ratification, opposition in Virginia, =1=, 242;
contest over call of Virginia Convention, previous amendment
question, 245-48;
effort for second framing convention, 248, 317, 355, 362, 379-81;
practical politics in, 252, 356, 357, 381, 402;
economic division, 312;
division in Virginia, 317;
importance of Virginia's action, 318, 358, 359;
gathering of Virginia delegates, 319;
popular ignorance of draft Constitution, 320, 345, 354;
popular idea of consolidated government, 320;
popular majority against, 321, 322, 356, 391, 469, =4=, 554 _n._;
Virginia Convention as first real debate, =1=, 322, 323, 329, 355;
influence of revolutionary action of Framers, 323-25, 373, 425;
unimportance of action of four early States, 325;
calling of Pennsylvania Convention, 326;
election there, 327-29;
Pennsylvania Convention, precipitancy, 329-32;
address of Pennsylvania minority, 333, 334, 342;
post-convention opposition in Pennsylvania, 334-38;
policy of Constitutionalists in Massachusetts, 339;
character of opposition there, 339, 340, 344-47;
election there, 340;
general distrust as basis of opposition, 340, 347, 356, 371, 372,
422, 428, 429 _n._, 439 _n._, 467;
condensed argument for, 343;
and Shays's Rebellion, 343;
strength and standpoint of Massachusetts opposition, 344;
influence of Hancock, 347;
Massachusetts recommendatory amendments and ratification, 348, 349;
soothing the opposition there, 350-53;
question of bribery in Massachusetts, 353 _n._, 354 _n._;
contest in New Hampshire, adjournment, 354, 355;
character of Virginia Convention, 356, 367;
effect of previous, on Virginia, 356, 399;
election of delegates in Virginia, 359-67;
importance and uncertainty of Randolph's attitude, 360-64, 378-82;
M.'s candidacy, 364;
campaign for opposition delegates, 365-67;
opposition of leaders in State politics, 366 _n._;
maneuvers of Constitutionalists, 367, 374, 384, 385, 392;
officers, 368, 432;
tactical mistakes of opposition, 368, 383;
detailed debate as a Constitutionalist victory, 369-72, 432;
characterizations, 369, 373-76, 385, 387, 394, 396, 408, 420, 423,
465, 473;
attempts at delay, 372, 434, 461, 462;
authority of Framers, 373, 375;
Nicholas's opening for Constitutionalists, 374;
Henry's opening for opposition, 375;
disclosure of Randolph's support, 376-79;
organization of Anti-Constitutionalists, 379, 434;
Clinton's letter for a second Federal Convention, Randolph's
suppression of it, 379, 477, =2=, 49 _n._;
Mason's speeches, =1=, 382, 383, 421-23, 438, 439, 446-48, 467;
untactful offer on "conciliation," 383;
prospects, ascendancy of opposition, 384, 433-35, 442;
influences on Kentucky delegates, navigation of Mississippi River,
384, 403, 411, 420, 430-32, 434, 443;
Pendleton's speeches, 385-87, 427, 428;
Lee's speeches, 387, 406, 423, 467;
Henry's speeches, 388-92, 397-400, 403-06, 428, 433, 435, 440, 441,
449, 464, 469-71;
Federal Government as alien, 389, 399, 428, 439 _n._;
Randolph's later speeches, 392, 393, 397, 406;
Madison's speeches, 394, 395, 397, 421, 428, 430, 440, 442, 449;
Nicholas's later speeches, 395, 421, 432;
Corbin's speech, 396;
political managers from other States, 401, 402, 435;
question of use of money in Virginia, 402 _n._;
demand for previous amendment, 405, 412, 418, 423, 428;
Monroe's speech, 407, 408;
inattention to debate, 408;
M.'s social influence, 409;
M.'s speeches, 409-20, 436-38, 450-61;
Harrison's speech, 421;
Grayson's speech, 424-27;
slight attention to economic questions, 429 _n._, 441 _n._;
and Bill of Rights, 439;
slavery question, 440;
payment of public debt, 440;
British debts, 441;
executive powers, 442;
Judiciary debate, 449-61, 464;
Anti-Constitutionalists and appeal to Legislature, 462, 463, 468;
assault on Henry's land speculations, 465-67;
threats of forcible resistance, 467, 478;
contest over recommendatory amendments, 475;
vote, 475;
Washington's influence, 476;
other personal influences, 476 _n._;
and fear of Indians, 476;
character of Virginia amendments, 477;
influence of success in New Hampshire, 478;
Jefferson's stand on amendments, 478;
influence on M., 479;
as a preliminary contest, 479, =2=, 45, 46;
attempt of Virginia Legislature to undo, 48-51;
Virginia reservations, =4=, 324 _n._
Rattlesnakes, as medicine, =1=, 172.
Ravara, Joseph, trial, =3=, 24.
Rawle, William, escort for M.'s body, =4=, 588.
Read, George, and Judiciary Act of 1789, =3=, 129.
_Rebecca Henry_ incident, =2=, 496.
Reed, George, as witness in Chase trial, =3=, 189 _n._
Reeves, John, and Burr, =3=, 537 _n._
Reeves, Tapping, on Louisiana Purchase, =3=, 150.
Reid, Robert R., on Missouri question, =4=, 341.
Religion, state in Virginia (1783), =1=, 220, 221;
conditions in Washington, =3=, 6;
revival, 7 _n._;
M.'s attitude, =4=, 69-71;
frontier, 189 _n._;
troubles and disestablishment in New Hampshire, 226, 227.
_See also_ next titles.
Religious freedom, controversy in Virginia, =1=, 221, 222.
Religious tests, debate during Ratification, =1=, 346.
Representation, basis in Virginia, =1=, 217 _n._;
debate on slave, in Virginia Constitutional Convention (1830),
=4=, 501-07.
Republican Party,
Jefferson's development, =2=, 46, 74-76, 81-83, 91, 96;
as defender of the Constitution, 88 _n._;
assaults on Neutrality Proclamation, 95;
economic basis, 125 _n._;
and French Revolution, 131 _n._, 223;
and X. Y. Z. dispatches, 336-42, 355, 358-63;
M. on motives in attack on Alien and Sedition Acts, 394, 407;
issues in 1798, 410;
and name "Democratic," 439 _n._, =3=, 234 _n._;
Federalist forebodings (1801), 11-15;
social effects of rule, 15 _n._;
plans against Judiciary, cause, 19-22, 48;
union of democracy and State Rights, 48;
Chase's denunciations, 169, 170, 206;
and M.'s biography of Washington, 228-30;
treatment in biography, 256, 259-61;
Justices as apostates, 317, 358, 359, 444.
_See also_ Congress; Elections; Jefferson, Thomas; State Rights.
Republicans, name for Anti-Constitutionalists (1788), =1=, 379.
Repudiation, spirit, =1=, 294, 295, 298, 299.
_See also_ Debts.
Requisitions, failure, =1=, 232, 304, 305, 413;
proposed new basis of apportionment, 234, 235.
Rhoad, John, Juror, =3=, 35.
Rhode Island, declaration of independence, =3=, 118 _n._
Richardson, William M., votes for war, =4=, 29 _n._;
opinion in Dartmouth College case, 234-36.
Richmond, Va., social and economic life (1780-86), =1=, 176-90;
in 1780, 165, 171-73;
hospitality, 183;
M. City Recorder, 188;
fire (1787), 190, =2=, 172;
meeting on Jay Treaty, 149-55;
growth, 172;
Quoit Club, 182-85, =4=, 76-78, 592;
reception of M. on return from France, =2=, 352-54;
M.'s reply to address, 571-73;
later social life, =3=, 394;
Vigilance Committee, =4=, 41 _n._;
M.'s lawyer dinners, 78, 79;
city currency, 187;
and Jackson's veto of River and Harbor Bill (1832), 534;
M.'s funeral, 588;
tributes to him, 589.
_Richmond Enquirer_, on M. and Burr at Wickham's dinner, =3=, 396;
and subpoena to Jefferson, 450;
attack on M. during Burr trial, 532-35;
on Yazoo claims, 581;
attack on M'Culloch _vs._ Maryland, =4=, 312-17, 323;
tribute to M., 589.
_See also_ Ritchie, Thomas.
_Richmond Examiner_, attacks on M. (1801), =2=, 542, 543 _n._
Richmond Light Infantry Blues, punch, =4=, 78 _n._
Richmond Society for Promotion of Agriculture, M.'s interest, =4=, 63.
_Richmond Whig and Advertiser_, on M. and election of 1828, =4=, 463;
tribute to M., 589.
Ritchie, Thomas, Council of State as his machine, =1=, 210;
and trial of Burr, =3=, 450;
on Federalists as traitors, =4=, 10 _n._;
control over Virginia politics, 146;
and first Bank of the United States, 174;
attack on M'Culloch _vs._ Maryland, 309;
and Taylor's attack on M.'s opinions, 335, 339;
attack on Cohens _vs._ Virginia, 358.
_See also_ _Richmond Enquirer_.
Rittenhouse, David, Olmstead case, =4=, 19.
River and Harbor Bill, Jackson's pocket veto, =4=, 534.
River navigation, steamboat and internal improvements, =4=, 415-17.
Roads. _See_ Communication.
Roane, Spencer, as judge, =1=, 173;
Council of State as his machine, 210;
Anti-Constitutionalist attack on Randolph (1787), 361 _n._;
accuses M. of hypocrisy, =2=, 140;
and Chief Justiceship, =3=, 20, 113, 178;
and Nationalism, 114;
M.'s enemy, =4=, 78;
and M.'s integrity, 90 _n._;
and Livingston _vs._ Jefferson, 111;
control of Virginia politics, 146;
decision in Hunter _vs._ Fairfax's Devises, 148, 152;
denies right of Supreme Court to hear case, 157, 160;
and first Bank of the United States, 174;
attack on M'Culloch _vs._ Maryland, 309, 313-17, 323;
inconsistent purchase of Bank stock, 317;
tribute to M., 313;
M.'s reply to attack, 318-23;
attack on Cohens _vs._ Virginia, 358, 359;
M. on it, 359, 360;
and amendment on Judiciary, 371, 378.
Robertson, David, report of Virginia Ratification debates, =1=, 368;
stenographer and linguist, =3=, 408.
Robin, M.'s servant, =4=, 525 _n._
Robins, Jonathan. _See_ Jonathan Robins case.
Robinson, John, loan-office bill and defalcations, =1=, 60.
Rodney, Cæsar A., and Marbury _vs._ Madison, =3=, 154 _n._;
argument in Chase trial, 210-12;
and holding of Swartwout and Bollmann, 345, 349 _n._;
and trial of Burr, 390.
Rodney, Thomas, and Burr, =3=, 365.
Rôle d'équipage,
and French depredations on neutral trade, =2=, 294 _n._
Ronald, William, as lawyer, =1=, 173;
in Virginia Ratification Convention, 472;
Ware _vs._ Hylton, =2=, 188.
Roosevelt, Nicholas J., and steamboat experiments, =4=, 400;
and steamboat navigation of the Mississippi, 402, 402 _n._, 403 _n._
Roosevelt, Theodore, on British naval power, =4=, 7 _n._;
on impressment, 8 _n._
Ross, James, and Disputed Elections Bill, =2=, 453.
Rowan, John, on Green _vs._ Biddle, =4=, 381;
on Supreme Court, 453.
Rush, Benjamin, Conway Cabal, =1=, 121-23.
Rutgers _vs._ Waddington, =3=, 612.
Rutledge, Edward, on spirit of repudiation, =1=, 307.
Rutledge, John [1], and Supreme Court, =3=, 121 _n._;
in Federal Convention, on obligation of contracts, 558 _n._
Rutledge, John [2], and slavery, =2=, 449:
on Judiciary Bill (1801), 550;
on French treaty, 525 _n._;
in Judiciary debate (1802), =3=, 87-89;
as British partisan, =4=, 5.
S. (? Samuel Nason), and Ratification, =1=, 342.
St. Cloud Decree, =4=, 36-39, 48-50.
St. Tammany's feast at Richmond, =1=, 189.
Salaries, Federal (1800), =2=, 539 _n._
_Sandwich_ incident, =2=, 496.
Sanford, Nathan,
opinion on steamboat monopoly and interstate commerce, =4=, 448.
Sanford, Me., and Ratification, =1=, 342.
Santo Domingo,
influence in United States of negro insurrection, =2=, 20-22.
Sargent, Nathan, on esteem of M., =4=, 581 _n._
Saunders, John. _See_ Ogden _vs._ Saunders.
Savage, John, opinion on steamboat monopoly, =4=, 449.
_Savannah Gazette_, on Yazoo frauds, =3=, 561.
Schmidt, Gustavus, on M. as a lawyer, =2=, 178.
Schoepf, Johann D., on Virginia social conditions, =1=, 21 _n._;
on irreligion in Virginia, 221 _n._;
on shiftlessness, 278.
Schuyler, Philip, dissatisfaction, =1=, 86;
and Burr, =3=, 277 _n._
Scott, John, in Virginia Constitutional Convention, =4=, 490.
Scott, John B., and Yazoo lands, =3=, 566 _n._
Scott, Joseph, and Burr conspiracy, =3=, 370.
Scott, Sir Walter, and Burr, =3=, 537 _n._
Scott, Sir William, on slave trade and law of nations, =4=, 477.
Scott, Winfield, on irreligion in Washington, =3=, 7;
on Jefferson and trial of Burr, 406;
and Nullification, =4=, 566;
escort for M.'s body, 588.
Secession, Federalist threats over assault on Judiciary (1802),
=3=, 73, 82, 89, 93, 97, 98, 151;
Louisiana Purchase and threats, 150;
and Chase trial, 217;
New England Federalist plots and Burr, 281, 298;
Merry's intrigue, 281, 288;
sentiment in West, 282, 297, 299;
of New England thought possible, 283;
Burr and Merry, 288-90;
no proposals in Burr's conferences, 292, 297, 303, 312;
rumors of Burr's purpose, Spanish source, 296, 299, 315;
Burr denies such plans, 316, 318 _n._, 319, 326;
M. and Tucker on right, 430;
threats over neutral trade controversy, =4=, 13 _n._, 15, 17, 25;
M.'s rebuke, 17;
and admission of Louisiana, 27;
War of 1812 and threats, 30;
Hartford Convention, 51;
threats in attacks on M.'s Nationalist opinions, 314, 326, 338, 339,
381;
and Missouri struggle, 340-42;
M. on resistance to, 352, 353;
Jefferson's later threats, 368, 539;
South Carolina threat over Elkison case, 382;
threat on internal improvement policy, 421;
M. on Supreme Court and threats, 512, 513.
_See also_ Nationalism; Nullification; State Rights.
Secretary of State, M. and (1795), =2=, 147;
M.'s appointment, 486, 489-93;
M. remains after Chief Justiceship, 558.
Secretary of War, M. declines, =2=, 485.
Sedgwick, Theodore, and M. (1796), =2=, 198;
on effect of X. Y. Z. dispatches, 341;
on Gerry, 364;
on M.'s views on Alien and Sedition Acts, 391, 394, 406;
on M.'s election (1799), 417;
on M.'s importance to Federalists in Congress, 432;
on M. and Disputed Elections Bill, 457, 458;
on results of session (1800), 482;
on M. as man and legislator, 483, 484;
on M.'s efforts for harmony, 527;
on Republican rule, =3=, 12;
on plans against Judiciary, 22;
on repeal of Judiciary Act, 94;
and secession, 97;
on Burr, 279 _n._
Sedition Act. _See_ Alien and Sedition Acts.
Senate, arguments on, during Ratification, =1=, 345;
opposition to secrecy, =2=, 57.
_See also_ Congress.
Separation of powers,
M. on limitation to judicial powers, =2=, 468-70;
incidental executive exercise of judicial powers, 470;
M. on legislative reversal of judicial decisions, =3=, 177, 178.
_See also_ Declaring acts void.
Sergeant, John, counsel in Osborn _vs._ Bank, =4=, 385;
and in Cherokee Nation _vs._ Georgia, 541, 544, 547;
and in Worcester _vs._ Georgia, 549;
escort for M.'s body, 588.
Sergeant, Thomas, practitioner before M., =4=, 237 _n._
Sewall, David, on demagoguery, =1=, 290 _n._;
on Ratification contest, 341.
Seward, Anna, as Philadelphia belle, =1=, 100.
Sewell, T., and French War, =2=, 424.
Shannon, Richard C., witness against Pickering, reward, =3=, 181 _n._
Shays's Rebellion, M. on causes, =1=, 298, 299, =3=, 262 _n._;
taxation not the cause, =1=, 299, 300;
effect on statesmen, 300-02;
Jefferson's defense, 302-04;
as phase of a general movement, 300 _n._;
and Ratification, 343.
Shephard, Alexander, grand juror on Burr, =3=, 413 _n._
Shepperd, John, and Yazoo lands act, =3=, 547.
Sherburne, John S., witness against Pickering, reward, =3=, 181 _n._
Sherman, Roger, and Judiciary Act of 1789, =3=, 129;
on obligation of contracts, 558 _n._
Shippen, Margaret, as Philadelphia belle, =1=, 109.
Shirley, John M., work on Dartmouth College case, =4=, 258 _n._
Short, Payton, at William and Mary, =1=, 159.
Short, William, at William and Mary, =1=, 159;
on French Revolution, =2=, 24;
Jefferson's admonitions, 25, 26;
on Lafayette, 34 _n._
"Silver Heels," M.'s nickname, =1=, 74, 132.
Simcoe, John G., and frontier posts, =2=, 111.
Sims, Thomas, on slander on Powell, =1=, 290 _n._
Singletary, Amos, in Ratification Convention, =1=, 344, 346.
Skipwith, Fulwar, on X. Y. Z. Mission, =2=, 336;
on probable war, 358.
Slaughter, Philip, on M. at Valley Forge, =1=, 117, 118.
Slave representation,
debate in Virginia Constitutional Convention (1830), =4=, 501-07.
Slave trade, Northern defense (1800), =2=, 449;
act against engaging in, 482;
M. on international recognition, =4=, 476, 477.
Slavery, effect in colonial Virginia, =1=, 20-22;
in debate on Ratification, 440;
attitude of Congress (1800), =2=, 449;
acquiescence in, =3=, 13 _n._;
Nationalism and overthrow, =4=, 370, 420, 536;
M.'s attitude, 472-79.
_See also_ adjoining titles; and Missouri Compromise.
Slaves, of M.'s father, =1=, 37 _n._;
owned by M., 167, 180;
Jefferson's debts for, 224 _n._;
provision in Peace of 1783, controversy, 230, =2=, 108, 114,
121 _n._;
in Washington (1801), =3=, 8;
common carriers and transportation, =4=, 478.
Sloan, James, and attempt to suspend habeas corpus (1807), =3=, 348.
Smallpox, in Revolutionary army, =1=, 87;
inoculation against, 162.
Smallwood, William, in Philadelphia campaign, =1=, 100.
Smilie, John, in Ratification Convention, =1=, 330.
Smith, Ann (Marshall), =1=, 485.
Smith, Augustine, M.'s uncle, =1=, 485.
Smith, Israel, of New York, in Burr conspiracy, =3=, 466 _n._, 491.
Smith, Senator Israel, of Vermont,
and impeachment of Chase, =3=, 158, 159;
votes to acquit, 219, 220.
Smith, Jeremiah, on Republican hate of M., =3=, 161;
counsel in Dartmouth College case, =4=, 233, 234, 250;
fee and portrait, 255 _n._;
on M.'s decline, 586.
Smith, John, M.'s uncle, =1=, 485.
Smith, John, of New York, votes to acquit Chase, =3=, 219, 220.
Smith, John, of Ohio, votes to acquit Chase, =3=, 219;
and Burr conspiracy, 291, 312;
Wilkinson's letter to, 314;
and rumor of disunion plan, 316, 319;
indicted for treason, 466 _n._;
_nolle prosequi_, 524, 541 _n._;
attempt to expel from Senate, 540-44.
Smith, John Blair,
on Henry in campaign for Ratification delegates, =1=, 365.
Smith, John Cotton, and Eaton's report on Burr's plans, =3=, 305 _n._
Smith, Jonathan, in Ratification Convention, =1=, 347.
Smith, Lize (Marshall), =1=, 485.
Smith, Melancthon, on prosperity during Confederation, =1=, 306;
on revolutionary action of Framers, 324.
Smith, R. Barnwell, on Nullification, =4=, 560.
Smith, Robert, dismissal, =4=, 34;
vindication, and M., 35.
Smith, Sam, on English interest in Ratification, =1=, 313.
Smith, Samuel, on Pickering impeachment, =3=, 167;
votes to acquit Chase, 220;
and attempt to suspend habeas corpus (1807), 347;
and Ogden-Smith trial, 436 _n._;
of committee on expulsion of Smith of Ohio, 541 _n._
Smith, Samuel H., on drinking at Washington, =3=, 10 _n._
Smith, Mrs. Samuel H., on Washington social life (1805), =3=, 8 _n._;
on Pinkney in court, =4=, 134.
Smith, Thomas M., anecdote of M., =4=, 83 _n._
Smith, Judge William, of Georgia, and Yazoo lands, =3=, 549.
Smith, Representative William, of South Carolina,
on French agents in United States (1797), =2=, 281;
on travel (1790), =3=, 55 _n._
Smith, Senator William, of South Carolina, on Missouri question,
=4=, 341.
Smith, William S., trial, =3=, 436 _n._
Smith _vs._ Maryland, =4=, 165 _n._
Sneyd, Honora, as Philadelphia belle, =1=, 109.
Snowden, Edgar, oration on M., =4=, 592.
Soane, Henry, =1=, 11 _n._
Social conditions, in later colonial Virginia, =1=, 19-28;
drinking, 23, 156 _n._, 186 _n._, 281-83, =2=, 86, 102 _n._, =3=, 9,
400, 501 _n._, =4=, 189 _n._;
qualities and influence of backwoodsmen, =1=, 28-31, 235, 236,
274-77;
frontier life, 39-41, 53, 54 _n._, =4=, 188-90;
dress, =1=, 59, 200, 208, =3=, 396, 397;
Richmond in 1780, =1=, 165;
degree of prosperity at period of Confederation, 273, 274;
classes in Virginia, 277, 278;
Jefferson on sectional characteristics, 278-80;
contrasts of elegance, 280;
food and houses, 280, 281;
amusements, 283;
Washington boarding-houses, =3=, 7;
lack of equality (1803), 13;
state then, 13 _n._;
advance under Republican rule, 15 _n._;
later social life at Richmond, 394.
_See also_ Bill of Rights; Communication; Economic conditions;
Education; Government; Law and order; Literature; Marriage;
Religion; Slavery.
Society, M.'s dislike of official, at Washington, =4=, 83-85.
"Somers," attack on M., =4=, 360 _n._, 361 _n._
South Carolina, and M'Culloch _vs._ Maryland, =4=, 334;
Elkison negro seaman case, attack on Johnson's decision, 382, 383;
and Tariff of 1828, 537;
effect of Georgia-Cherokee contest on, 552.
_See also_ Nullification.
South Carolina Yazoo Company, =3=, 553 _n._
_See also_ Yazoo.
Spain, attitude toward United States (1794), =2=, 109;
depredations on American commerce, 496;
intrigue in West, Wilkinson as agent, =3=, 283, 284;
resentment of West, expectation of war over West Florida, 284, 285,
295, 301, 306, 312, 383 _n._;
treaty of 1795, 550 _n._;
intrigue and Yazoo grant, 554.
Spanish America, desire to free, =3=, 284, 286;
Miranda's plans, 286, 300, 301, 306;
revolt and M.'s contribution to international law, =4=, 126-28.
_See also_ Burr Conspiracy.
Speculation, after funding, =2=, 82, 85;
in land, 202;
as National trait, =3=, 557;
after War of 1812, =4=, 169, 181-84.
_See also_ Crisis of, 1819.
Speech, freedom, and sedition trials, =3=, 42.
_See also_ Press.
Stamp Act, opposition in Virginia, =1=, 61-65.
Standing army. _See_ Army.
Stanley, John, in Judiciary debate (1802), =3=, 74 _n._, 75.
Stark, John, Ware _vs._ Hylton, =2=, 188.
State Rights and Sovereignty,
effect on Revolutionary army, =1=, 82, 88-90, 100;
in American Revolution, 146;
and failure of the Confederation, 308-10;
union with democracy, =3=, 48;
and declaring Federal acts void, 105;
M. on, as factor under Confederation, 259-62;
compact, =4=, 316;
strict construction and reserved rights, 324 _n._;
Taylor's exposition, 335-39;
forces (c. 1821), 370;
M. on effect of strict construction, 442;
and Georgia-Cherokee contest, 541;
incompatible with federation, 571.
_See also_ Contracts; Eleventh Amendment; Implied powers;
Government; Kentucky Resolutions; Nationalism;
Nullification; Secession; Virginia Resolutions.
States, Madison on necessity of Federal veto of acts, =1=, 312;
suits against, in Federal courts, 454, =2=, 83.
_See also_ Government.
Stay and tender act in Virginia, =1=, 207 _n._
_See also_ Debts.
Steamboats, Fulton's experiments, Livingston's interest, =4=, 397-99;
Livingston's grants of monopoly in New York, 399;
first on the Mississippi, grant of monopoly in Louisiana, 402,
402 _n._, 403 _n._, 414;
other grants of monopoly, 415;
interstate retaliation, 415;
great development, 415, 416.
_See also_ Gibbons _vs._ Ogden.
Steele, Jonathan, witness against Pickering, reward, =3=, 181 _n._
Stephen, Adam, in Ratification Convention, characterized, =1=, 465;
on Indians, 465.
Steuben, Baron von, on Revolutionary army, =1=, 84;
training of the army, 88 _n._, 133.
Stevens, Edward, officer of minute men, =1=, 69.
Stevens, Thaddeus, as House leader, =3=, 84 _n._
Stevens _vs._ Taliaferro, =2=, 180 _n._
Stevenson, Andrew,
resolution against M'Culloch _vs._ Maryland, =4=, 324;
and repeal of appellate jurisdiction of Supreme Court, 379.
Stewart, Dr. ----, and Jay Treaty, =2=, 121.
Stirling, William, Lord, intrigue against, =1=, 122.
Stith, Judge, and Yazoo lands, =3=, 555.
Stoddert, Benjamin, _Aurora_ on, =2=, 492;
at Burr trial, =3=, 458;
as Secretary of the Navy, 458 _n._;
proposes M. for President, =4=, 31-34.
Stone, David, and Granville heirs case, =4=, 155 _n._
Stone _vs._ Mississippi, =4=, 279 _n._
Stony Point, assault, =1=, 138-42.
Story, ----, on Ratification in Virginia, =1=, 445.
Story, Elisha, Republican, =4=, 96;
children, 97;
in Revolution, 97 _n._
Story, Joseph, on M. and his father, =1=, 43;
on M. in Jonathan Robins case, =2=, 473;
on Washington (1808), =3=, 6;
and common-law jurisdiction, 28 _n._, =4=, 30 _n._;
on Chase, =3=, 184 _n._;
on Jefferson's Anas, 230 _n._;
and Yazoo claims, 583, 586;
on conduct of Minister Jackson, =4=, 23;
on conduct of Federalists (1809), 23 _n._;
on Federalists and War of 1812, 30, 40;
on Chief Justiceship, 59 _n._;
appointed Justice, history of appointment, 60, 106-10;
compared and contrasted with M., 60;
on M.'s attitude toward women, 71;
and poetry, 80;
on M.'s charm, 81;
on life of Justices, 86, 87;
on M.'s desire for argument of cases, 94 _n._, 95 _n._;
character, 95;
as supplement to M., 96, 120, 523;
Republican, 96;
birth, education, 97;
antipathy of Federalists, 97;
in Congress, Jefferson's enmity, 97, 99;
cultivated by Federalists, 98;
devotion to M., 99, 523;
authority on law of real estate, 100;
and Nationalism, 116, 145;
on constitutionality of Embargo, 118 _n._;
authority on admiralty, 119;
United States _vs._ Palmer, 126;
appearance, 132;
on oratory before Supreme Court, 133, 135 _n._;
dissent in _Nereid_ case, 142;
opinions in Martin _vs._ Hunter's Lessee, 144, 145, 156, 161-64;
assailed for opinion, contemplates resignation, 166;
and Dartmouth College case, 232, 243 _n._, 251, 255, 257, 259 _n._,
274, 275;
opinion in Terrett _vs._ Taylor, 243;
on Dartmouth decision, 277;
on M'Culloch _vs._ Maryland, 284, 287;
and M.'s reply to Roane, 322;
omnivorous reader, 363;
and Jefferson's attack on Judiciary, 363, 364;
opinion in Green _vs._ Biddle, 376;
on Todd's absence, 381 _n._;
in Massachusetts Constitutional Convention, 471;
on slave trade and law of nations, 476;
opinion in Bank _vs._ Dandridge, 482;
dissent in Ogden _vs._ Saunders, 482 _n._;
on proposed repeal of appellate jurisdiction, 514;
and M.'s suggested resignation, 520;
on M.'s recovery, 528;
dissent in Cherokee Nation _vs._ Georgia, 546 _n._;
on Worcester _vs._ Georgia, 551;
on Nullification movement, 559;
on Jackson's Proclamation, 563;
M. and Commentaries and its dedication, 569, 576, 580, 581;
on Webster's speech against Nullification, 572;
article on statesmen, 577;
on M.'s green old age, 579;
and Briscoe _vs._ Bank and New York _vs._ Miln, 583, 584 _n._;
and M.'s decline, 586, 587;
epitaph for M., 592, 593.
Strict construction. _See_ Nationalism; State Rights.
Strong, Caleb, and Judiciary Act of 1789, =3=, 129.
Stuart, David, and chancery bill (1787), =1=, 219;
on title for President, =2=, 36;
on Virginia's hostility to National Government (1790), 68 _n._
Stuart, Gilbert, and engraving for M.'s _Washington_, =3=, 236 _n._;
portraits of Dartmouth College case counsel, =4=, 255 _n._
Stuart _vs._ Laird, =3=, 130.
Sturges _vs._ Crowninshield, case, =4=, 209;
M.'s opinion, 209-18;
right of State to enact bankruptcy laws, 208-12;
New York insolvency law as impairing the obligation of contracts,
212-18;
reception of opinion, 218, 219.
Sturgis, Josiah. _See_ Sturges _vs._ Crowninshield.
Subpoena _duces tecum_, to President Adams, =3=, 33, 86;
to Jefferson in Burr trial, 433-47, 450, 518-22;
Jefferson's reply, 454-56;
of Cabinet officers in Ogden-Smith case, 436 _n._
Suffrage, limitation, =1=, 217 _n._, 284, =3=, 13 _n._, 15 _n._;
problem in Virginia, M.'s conservatism on it, =4=, 468-71;
in Massachusetts Constitutional Convention (1820), 471;
debate in Virginia Constitutional Convention (1830), 501-07.
Sullivan, George, counsel in Dartmouth College case, =4=, 234.
Sullivan, John, dissatisfaction, =1=, 86;
Brandywine campaign, 95;
Germantown, 102;
intrigue against, 122.
Sullivan, John L., steamboat monopoly, =4=, 415.
Sullivan, Samuel, Osborn _vs._ Bank, =4=, 331.
Sumter, Thomas, on Judiciary Act of 1789, =3=, 54;
and Yazoo claims, 583.
Supreme Court, Ware _vs._ Hylton, M.'s argument, =2=, 189-92;
Hunter _vs._ Fairfax, 206-08;
M. declines Associate Justiceship, 347, 378, 379;
salaries (1800), 539 _n._;
question of Chief Justice (1801), 552;
Jefferson's attitude and plans against, =3=, 20-22;
United States _vs._ Hudson, no Federal common-law jurisdiction,
28 _n._;
influence of Alien and Sedition Acts on position, 49;
Justices on circuit, 55;
act abolishing June session, purpose, 94-97;
low place in public esteem, 120;
first room in Capitol, 121 _n._;
mandamus jurisdiction, 127-32;
plan to impeach all Federal Justices, 159-63, 173, 176, 178;
release of Swartwout and Bollmann on habeas corpus, 346, 348-57;
renewal of attack on, during Burr trial, 357;
becomes Republican, =4=, 60;
under M. life and consultations of Justices, 86-89;
character on M.'s control, 89;
practitioners in M.'s time, 94, 95, 131-35;
appointment of successor to Cushing, Story, 106-10;
quarters after burning of Capitol, 130;
appearance in _Nereid_ case, 131;
Martin _vs._ Hunter's Lessee, right of appeal from State courts,
156-67;
salary question (1816), 166;
change in repute, 310;
apostacy of Republican Justices, 317, 358, 359, 444;
Wirt on, 369 _n._;
attack in Congress, movement to restrict power over State
laws (1821-25), 371-80, 394-96, 450;
renewal of attempt (1830), 514-17;
proposed Virginia amendment, 371, 378;
Green _vs._ Biddle, protest of Kentucky, 375-77, 380-82;
alarm in, over attacks, 381;
reversal of attitude toward, causes, 450-54;
personnel (1830), 510;
becomes restive under M.'s rule, 510, 513;
M. anticipates reaction in, against Nationalism, 513, 514, 582, 584;
Jefferson's later denunciation, 538;
Jackson's denial of authority of opinions, 530-32;
rule of majority on constitutional questions, 583.
_See also_ Commerce; Contracts; Declaring acts void; Implied powers;
International law; Judiciary; Marshall, John (_Chief
Justice_); Nationalism; Story, Joseph; cases by title.
Swartwout, Samuel, takes Burr's letter to Wilkinson, =3=, 307;
and Wilkinson, 320, 332 _n._, 354 _n._;
denial of Wilkinson's statement, 320 _n._;
character then, later fall, 321 _n._, 465;
arrested, mistreatment, 332, 334;
brought to Washington, 343;
held for trial, 344-46;
discharged by Supreme Court, 346-57;
testifies at Burr trial, 465;
not indicted, 466 _n._;
insults and challenges Wilkinson, 471;
as Jackson's adviser, =4=, 532 _n._
Sweden, and Barbary Powers, =2=, 499.
Talbot, Isham, on Supreme Court, =4=, 451.
Talbot, Silas, _Sandwich_ affair, =2=, 496;
_Amelia_ case, =3=, 16.
Talbot _vs._ Seeman, =3=, 16, 17, 273 _n._
Taliaferro, Lawrence, colonel of minute men, =1=, 69.
Talleyrand Périgord, Charles M. de,
on narrow belt of settlement, =1=, 258;
on Baltimore, 264;
on food and drink, 282;
rise, =2=, 249, 250;
opinion of United States, 250, 251;
and Bonaparte, 272, 288;
and reopening of American negotiations, 423.
_See also_ X. Y. Z. Mission.
Tallmadge, Benjamin, on War of 1812, =4=, 40 _n._
Talmadge, Matthias B., Ogden-Smith trial, =3=, 436 _n._
Taney, Roger B., as practitioner before M., =4=, 135 _n._;
counsel in Brown _vs._ Maryland, 455;
career, 455 _n._;
later opinion on Brown _vs._ Maryland, 460;
Chief Justice, 584 _n._
Tariff, antagonistic State laws during Confederation, =1=, 310, 311;
Taylor's attack on protection, =4=, 338 _n._, 366-68;
as element in strife of political theories, 370, 536;
threatened resistance, reference to by M. and Johnson, 384,
388 _n._, 394 _n._, 459, 536, 537, 555;
debate (1824) and Gibbons _vs._ Ogden, 421;
Compromise, 574.
_See also_ Import duties; Nullification; Taxation.
Tarleton, Banastre, in Philadelphia society, =1=, 109;
in Virginia, 144 _n._
Tarring and feathering, practice, =1=, 214 _n._
Tassels, George, trial and execution, =4=, 542, 543.
Tavern, Richmond (1780), =1=, 172;
at Raleigh, =4=, 65.
Taxation, Virginia commutable act, =1=, 207 _n._;
not cause of Shays's Rebellion, 299, 300;
opposition to power in Federal Constitution, 334;
Ratification debate, 342, 366, 390, 404, 413, 416, 419, 421;
proposed amendment on power, 477;
Federal, as issue (1800), =2=, 520, 530 _n._;
exemption of lands as contract, =4=, 221-23;
M'Culloch _vs._ Maryland, Osborn _vs._ Bank, State taxation of
Federal instruments, 302-08;
State power and commerce clause, 435, 454-59.
_See also_ Directory; Excise; Finances;
Requisitions; Tariff.
Taylor, George Keith, and privateer incident, =2=, 106;
courtship and marriage, M.'s interest, 174, 175;
Federal appointment as nepotism, 560 _n._
Taylor, John, of Caroline, Hite _vs._ Fairfax, =1=, 191, 192;
attack on Hamilton's financial system, =2=, 69;
suggests idea of Kentucky Resolutions, 397;
and Callender trial, =3=, 38 _n._, 39, 176, 177, 190, 214;
and repeal of Judiciary Act, 58 _n._, 607-10;
control of Virginia politics, =4=, 146;
attack on M.'s Nationalist opinions, 309, 335-39;
attack on protective tariff, 338 _n._, 366-68.
Taylor, John, of Mass., on travel, =1=, 257;
in Ratification Convention, 345.
Taylor, Peter, testimony in Burr trial, =3=, 425, 426, 465, 488.
Taylor, Robert, grand juror on Burr, =3=, 413 _n._
Taylor, Thomas, security for Burr, =3=, 429 _n._
Tazewell, Littleton W., grand juror on Burr, =3=, 413 _n._;
on Swartwout, 465 _n._;
M. soothes, =4=, 88;
in Virginia Constitutional Convention, 484;
in debate on State Judiciary, 489, 490.
Tennessee,
Burr in, his plan to represent in Congress, =3=, 292-96, 312, 313;
tax on external banks, =4=, 207;
and M'Culloch _vs._ Maryland, 334.
Tennessee Company, =3=, 550, 553 _n._
_See also_ Yazoo.
Terence, on law and injustice, =3=, 1.
Terrett _vs._ Taylor, =4=, 243 _n._, 246 _n._
Territory, powers of Governor, =2=, 446;
M. on government, =4=, 142-44.
Thacher, George, and slavery, =2=, 450.
Thatcher, Samuel C., on M.'s biography of Washington, =3=, 269, 270.
Thayer, James B., on M. at Wickham's dinner, =3=, 396 _n._
Theater, M. and, =2=, 217, 231.
Thibaudeau, Antoine C. de, and 18th Fructidor, =2=, 240.
Thomas, Robert, and Yazoo lands act, =3=, 547.
Thompson, James, as M.'s instructor, =1=, 53;
parish, 54;
political opinions, 54;
and military preparation, 70.
Thompson, John, address on Jay Treaty, =2=, 126-29;
Curtius letters on M., 395, 396, =3=, 354;
character, =2=, 396 _n._
Thompson, John A., arrest by Georgia, =4=, 574.
Thompson, Lucas P.,
in Virginia Constitutional Convention, =4=, 496, 500.
Thompson, Philip R., in debate on repeal of Judiciary Act, =3=, 74;
and attempt to suspend habeas corpus (1807), 347.
Thompson, Samuel, in Ratification Convention, =1=, 345, 346, 348.
Thompson, Smith, on Livingston steamboat monopoly, =4=, 406;
dissents from Brown _vs._ Maryland, 455;
on slave trade and law of nations, 476;
opinion in Ogden _vs._ Saunders, 481 _n._;
dissent in Craig _vs._ Missouri, 513;
dissent in Cherokee Nation _vs._ Georgia, 546 _n._;
and M., 582;
and Briscoe _vs._ Bank and New York _vs._ Miln, 583.
Thompson, William, attack on M., =3=, 525, 533-35.
Thruston, Buckner, of Smith committee, =3=, 541 _n._
Ticknor, George, on M., =4=, 91 _n._;
on Supreme Court in _Nereid_ case, 131.
Tiffin, Edward, and Burr conspiracy, =3=, 324.
Tilghman, Tench, on luxury in Philadelphia, =1=, 108 _n._
Titles, influence of French Revolutions, =2=, 36-38.
Toasts, typical Federalist (1798), =2=, 349 _n._;
Federalist, to the Judiciary, 548 _n._;
Burr's, on Washington's birthday, =3=, 280;
Jefferson's, on freedom of the seas, =4=, 23;
Jackson's "Union," 557.
Tobacco, characteristics of culture, =1=, 19;
universal use, =3=, 399.
Todd, Thomas, and Martin _vs._ Hunter's Lessee, =4=, 153;
and Dartmouth College case, 255;
and Green _vs._ Biddle, 381 _n._;
on regulating power to declare State acts void, 396 _n._
Tompkins, Daniel D., and Livingston steamboat monopoly, =4=, 411.
Tories. _See_ Loyalists.
Townsend, Henry A., and Livingston steamboat monopoly, =4=, 409 _n._
Tracy, Uriah, and reopening of French negotiations, =2=, 425;
on pardon of Fries, 430 _n._;
on Republican ascendancy (1800), 521 _n._;
in debate on repeal of Judiciary Act, =3=, 61;
on Louisiana Purchase, 150;
at Chase trial, 217;
and Burr, 281.
Transportation. _See_ Commerce; Communication; Internal improvements.
Travel, hardships, =1=, 250, 255-64;
conditions as an index of community isolation, 251, 255;
conditions (c. 1815), =3=, 4 _n._, 5 _n._;
stage time between Richmond and Raleigh (c. 1810), =4=, 63 _n._
Treason, Jefferson's views in 1794 and 1807, =2=, 91;
Fries trial, =3=, 34-36;
basis of constitutional limitation, 349-51, 402-04;
necessity of actual levy of war, what constitutes, 350, 351, 377-79,
388, 442, 491, 505-09, 619;
presence of accused at assembly, 350, 484, 493-97, 502, 509-12, 540,
620-26;
legal order of proof, 424, 425, 484-87;
attempt to amend law, 540.
Treaties, M. on constitutional power of execution, Jonathan Robins
case, =2=, 461-71;
supreme law, =3=, 17, =4=, 156.
_See also_ next title.
Treaty-making power, in Ratification debate, =1=, 442, 444;
in contest over Jay Treaty, =2=, 119, 128, 133-36, 141-43.
Trevett _vs._ Weeden, =3=, 611.
Trimble, David, attack on Supreme Court, =4=, 395.
Trimble, Robert, opinion in Ogden _vs._ Saunders, =4=, 481 _n._
Triplett, James, and Callender trial, =3=, 37.
Tronçon, -----, and 18th Fructidor, =2=, 240.
Troup, George M., and Yazoo claims, denunciation of M., =3=, 596-601.
Troup, Robert on Republicans and X. Y. Z. dispatches, =2=, 339, 342;
on M.'s return, 344;
on war preparations, 357, 363;
on Adams's absence, 431;
on disruption of British-debts commission, 501;
on Federalist dissensions, 526;
on Hamilton's attack on Adams, 528 _n._;
on Morris in Judiciary debate (1802), =3=, 71;
on isolation of Burr, 279 _n._, 280 _n._
Trumbull, Jonathan, and pardon of Williams, =2=, 496 _n._
Truxtun, Thomas, and Burr Conspiracy, =3=, 302, 303, 614;
at trial, testimony, 451, 458-62, 488;
career and grievance, 458 _n._, 462.
Tucker, George,
on social conditions in Virginia, =1=, 23 _n._, 24 _n._
Tucker, Henry St. George, and internal improvements, =4=, 418;
counsel in Martin _vs._ Hunter's Lessee, 161.
Tucker, St. George, on British debts, =1=, 441 _n._;
and right of secession, =3=, 430;
and Martin _vs._ Hunter's Lessee, =4=, 148 _n._, 151 _n._
Tucker, Thomas T., journey (1790), =3=, 55 _n._
Tunno, Adam, and Yazoo lands, =3=, 566 _n._
Tupper, Edward W., and Burr conspiracy, =3=, 427.
Turner, Thomas, sale to M.'s father, =1=, 55.
Turner _vs._ Fendall, =3=, 18.
Turreau, Louis M., on secession threats, =4=, 25 _n._
Twelfth Amendment, origin, =2=, 533 _n._
Tyler, Comfort, in Burr conspiracy, =3=, 324, 361, 489, 491;
indicted for treason, 466 _n._
Tyler, John [1], in Ratification Convention: Vice-President, =1=, 432;
in the debate, 440;
and amendments, 473, 474;
on Judiciary, =3=, 28;
on speculation, 557 _n._;
on M. and neutral trade controversy, =4=, 25;
appointment as District Judge, Jefferson's activity, 103-06;
Livingston _vs._ Jefferson, 111-13.
Tyler, John [2], on Bank of the United States, =4=, 289;
and American Colonization Society, 474, 476 _n._;
tribute to M., 476 _n._;
in Virginia Constitutional Convention, 484.
_Unicorn_ incident, =2=, 103-06.
Union, M.'s early training in idea, =1=, 9;
lack of popular appreciation, 285.
_See also_ Confederation; Continental Congress; Federal
Constitution; Government; Nationalism; Nullification;
State Rights; Secession.
_United States Oracle of the Day_, on Paterson's charge, =3=, 30 _n._
United States _vs._ Fisher, =3=, 162.
United States _vs._ Hopkins, =3=, 130 _n._
United States _vs._ Hudson, =3=, 28 _n._
United States _vs._ Lawrence, =3=, 129 _n._
United States _vs._ Palmer, =4=, 126, 127.
United States _vs._ Peters, =3=, 129 _n._, =4=, 18-21.
United States _vs._ Ravara, =3=, 129 _n._
United States _vs._ Schooner Peggy, =3=, 17, 273 _n._
United States _vs._ Worral, =3=, 28 _n._
Upper Mississippi Company, Yazoo land purchase, =3=, 550.
_See also_ Yazoo.
Upshur, Abel P., and American Colonization Society, =4=, 474;
in Virginia Constitutional Convention, 484, 502 _n._
Valentine, Edward V., on M., =4=, 67 _n._
Valley Forge, army at, =1=, 110-17, 131, 132;
M.'s cheerful influence, 117-20, 132;
discipline, 120.
Van Buren, Martin, on revolutionary action of Framers, =1=, 323 _n._;
on Supreme Court, =4=, 380, 452;
as Jackson's adviser, 532 _n._
Van Horne's Lessee _vs._ Dorrance, =3=, 612.
Van Ingen, James, and Livingston steamboat monopoly, suits,
=4=, 405-09.
Varnum, James M., on army at Valley Forge, =1=, 115.
Varnum, Joseph B., and attempt to suspend habeas corpus (1807),
=3=, 348.
Vassalborough, Me., and Ratification, =1=, 341.
_Venus_ case, M.'s dissent, =4=, 128, 129.
Vermont, and Kentucky and Virginia Resolutions, =3=, 105 _n._, 106;
steamboat monopoly, =4=, 415.
Vestries in colonial Virginia, =1=, 52.
Veto of State laws, Madison on necessity of Federal, =1=, 312.
_See also_ Declaring acts void.
Villette, Madame de, as agent in X. Y. Z. Mission, =2=, 290;
M.'s farewell to, 333.
Virginia, state of colonial society, =1=, 19-28;
character and influence of frontiersmen, 28-31;
as birthplace of statesmen, 32;
colonial roads, 36 _n._;
vestries, 52;
Convention (1775), 65, 66;
preparation for the Revolution, 69-74;
battle of Great Bridge, 74-78;
Norfolk, 78;
Jefferson's services during the Revolution, 128;
M. in Council of State, 209-12;
political machine, 210, =2=, 56 _n._, =4=, 146, 174, 485-88;
suffrage and representation under first Constitution, =1=, 217 _n._;
religious state and controversy, 220-22;
and British debts, 223-31;
hardships of travel, 259-62;
classes, 277, 278;
houses and food, 280, 281;
drinking, 281-83;
paper money, 296;
prosperity during Confederation, 306;
tariff, 310;
attack on Constitution of 1776 (1789), =2=, 56 _n._;
and assumption of State debts, 62-69;
hostility to new government (1790), 68 _n._;
and Whiskey Insurrection, 88-90;
_Unicorn_ privateer incident, 103-06;
election on neutrality issue (1794), 106;
and Jay Treaty, 120, 126, 129;
Richmond meeting on Jay Treaty, 149-55;
Marshall's campaign for Congress (1798), 374-80, 401, 409-16;
election methods and scenes, 413-15;
survey for internal improvements (1812), =4=, 42-45;
M. anticipates split, 571.
_See also_ following titles; and Bank of Virginia;
Cohens _vs._ Virginia; House of Burgesses;
Legislature; Martin _vs._ Hunter's Lessee;
Ratification.
Virginia Constitutional Convention (1829-30),
M. and election to, =4=, 467;
need, Jefferson and demand, 468, 469;
suffrage problem, M.'s conservatism on in, 469-71;
prominent members, 484;
petition on suffrage, 484;
M.'s report on Judiciary, 484, 485;
existing oligarchic system, 485-88;
extent of demand for judicial reform, 488;
M. as reactionary in, 488, 507, 508;
M.'s standing, 489;
debate on Judiciary, 489-501;
debate on suffrage, 501-07;
justification of conservatism, 508.
Virginia Resolutions, M. foretells, =2=, 394;
framing and adoption, 399;
Madison's address of the majority, 400, 411;
M.'s address of the minority, 402-06;
military measure to uphold, 406, 408;
Henry on, 411;
consideration in Massachusetts, =3=, 43;
Dana on, 45;
as Republican gospel, 105-08;
resolutions of Federalist States on, 105 _n._, 106 _n._;
Madison's later explanation, 557;
as continued creed of Virginia, 576, 577.
_See also_ State Rights.
Virginia Yazoo Company, =3=, 553 _n._
_See also_ Yazoo.
Visit and search, by British vessels, =2=, 229.
_See also_ Impressment; Neutral trade.
Wadsworth, Peleg, and M. (1796), =2=, 198.
Wait, Thomas B., on Ratification in Pennsylvania, =1=, 331 _n._, 342.
Waite, Morrison R., on Dartmouth College case, =4=, 280.
Waldo, Albigence, on army at Valley Forge, =1=, 112-14, 124;
on prisoners of war, 115.
Walker, David, on Bank of the United States, =4=, 289.
Walker, Freeman, on Missouri question, =4=, 341.
War. _See_ Army; Militia; Navy; Preparedness; and wars by name.
War of 1812, M.'s opposition, =4=, 1, 35-41;
bibliography, 8 _n._;
demanded by second generation of statesmen, 28, 29;
declaration, 29;
causes, 29 _n._, 52-55;
opposition of Federalists, 30, 45, 46, 48;
and M.'s candidacy for President, 31-34;
dependence on European war, 50, 51;
Hartford Convention, 51;
direct and indirect results, 56-58;
finances, 177, 179.
Warden, John, offends Virginia House, =1=, 215.
Ware _vs._ Hylton, M.'s connection and arguments, =2=, 186-92.
Warrington, James, and Yazoo lands, =3=, 566 _n._
Warville, Jean P. Brissot de, on tobacco culture, =1=, 20 _n._;
on drinking, 282 _n._
Washington, Bushrod, on Madison in Ratification Convention, =1=, 395;
and Jay Treaty, =2=, 121;
and M. (1798), 375;
appointment to Supreme Court, 378, 379;
appearance, =4=, 131, 249;
and Martin _vs._ Hunter's Lessee, 156;
and Dartmouth College case, 255;
and M.'s reply to attack on M'Culloch _vs._ Maryland, 318;
opinion in Green _vs._ Biddle, 380;
opinion in Ogden _vs._ Saunders, 481 _n._;
death, 581.
_See also_ Biography.
Washington, George,
_pre-presidential years_:
in Braddock's march and defeat, =1=, 2-5;
reported slain, 5;
and M.'s father, 7, 46;
landed estate, 20 _n._;
as statesman, 32;
early reading, 46 _n._;
influence of Lord Fairfax, 50;
on frontier discomforts, 53 _n._, 54 _n._;
in Virginia Convention (1775), 66;
on military preparedness, 69;
on state of the army, 80-83, 86, 92, 131, 132;
on militia, 83-86, 100;
smallpox, 87 _n._;
Brandywine campaign, 92-98;
campaign before Philadelphia, 98-102;
as sole dependence of the Revolution (1778), 101, 121, 124;
Germantown, 102-04;
besought to apostatize, 105, 130, 131;
final movements before Philadelphia, 105-07;
fears at Valley Forge, 114;
discipline, 120;
intrigue against, 121-23;
plea for a better Continental Congress, 124-26, 131;
distrust of effect of French alliance, 134;
Monmouth, 134-38;
and Stony Point, 139;
and light infantry, 139 _n._;
and military smartness, 140 _n._;
and Mary Cary, 150 _n._;
and purchase of land from M.'s father, 167;
employs M.'s legal services, 196;
on post-Revolutionary Assembly, 206;
and relief for Thomas Paine, 213;
and internal improvements, 217;
hot-tempered Nationalism during Confederation, 342;
loses faith in democracy, 252;
on unreliability of newspapers, 268;
on drinking, 282 _n._, 283;
on chimney-corner patriots, 286;
on debased specie, 297;
despair (1786), 301, 307;
on requisitions, 305;
on responsibility of States for failure of Confederation, 308,
309;
on influence in Virginia of previous ratifications, 356;
and Randolph's attitude on Ratification, 362, 377 _n._, 382 _n._;
on campaign for Anti-Constitutionalist delegates, 366, 367;
on opposition of leaders in State politics, 366 _n._;
on detailed debate in Virginia Convention, 370 _n._;
influence on Ratification Convention, 476;
on the contest in Virginia, 478;
and opposition after Ratification, 248;
as distiller, =2=, 86 _n._;
on West and Union, =3=, 282 _n._
_As President and after_:
hardships of travel, =1=, 255, 259;
influence of French Revolution, =2=, 3;
and beginning of French Revolution, 10;
and Genêt, 28;
and imprisonment of Lafayette, 33;
on democratic clubs, 38, 88, 89;
Virginia address (1789), 57;
on Virginia's opposition (1790), 68 _n._;
opposes partisanship, 76;
and antagonism in Cabinet, 82;
and Whiskey Insurrection, 87, 89;
and neutrality, 92;
on attacks, 93 _n._, 164;
and attacks on M.'s character, 102, 103;
and British crisis (1794), 112;
attacks on, over Jay Treaty, 116-18;
J. Q. Adams on policy, 119 _n._;
on attacks on treaty, 120;
M. refuses Cabinet offices, 122, 123, 147;
M. advises on Cabinet positions, 124-26, 132;
virtual censure by Virginia Legislature, 137-40;
offers French mission to M., 144-46;
and support of Jay Treaty, 149, 150;
final Republican abuse, 158, 162-64;
address of Virginia Legislature (1796), 159-62;
and M.'s appointment to X. Y. Z. Mission, 216;
Monroe's attack, 222;
M.'s letters during X. Y. Z. mission, 229, 233-44, 267-72, 320-23;
on hopes for X. Y. Z. Mission, 244;
on X. Y. Z. dispatches and French partisans, 340, 359, 360;
Federalist toast to (1798), 349 _n._;
accepts command of army, 357;
does not anticipate land war, 357;
on Gerry, 365;
persuades M. to run for Congress (1798), 374-78;
Langhorne letter, 375 _n._;
and M.'s election, 416;
and M.'s apology for statement by supporters, 416, 417;
death, M.'s announcement in Congress, 440-43;
House resolutions, authorship of "first in war" designation,
443-45;
and slavery petitions, 450 _n._;
temperament contrasted with Adams's, 487 _n._;
Jefferson's Mazzei letter on, 537 _n._;
Weems's biography, =3=, 231 _n._;
and French War, 258 _n._;
M.'s biography on Administration, 263-65;
and Yazoo lands, 569.
_See also_ Biography.
Washington, D.C., Morris's land speculation, =2=, 205 _n._;
condition when first occupied, 494 _n._;
aspect (1801), =3=, 1-4;
lack of progress, 4-6;
malaria, 6;
absence of churches, 6;
boarding-houses, 7;
population, 9;
drinking, 9;
factions, 10;
Webster on, =4=, 86.
_See also_ District of Columbia.
_Washington Federalist_, on Hamilton's attack on Adams, =2=, 528;
campaign virulence, 530 _n._;
eulogism of Adams, 532 _n._;
M.'s reputed influence over, 532 _n._, 541, 547 _n._;
and Jefferson-Burr contest, 534 _n._, 540;
on Hay's attack on M., 543 _n._;
on Republican armed threat, 544 _n._, 545 _n._;
sentiment after Jefferson's election, 547 _n._;
on Judiciary debate (1802), and secession, =3=, 72;
on Bayard's speech on Judiciary, 82;
on Randolph's speech, 87 _n._;
on repeal of Judiciary Act, 92, 93;
on Burr's farewell address, 274 _n._
Washington's birthday, celebration abandoned (1804), =3=, 210 _n._;
Burr's toast, 280.
Washita lands, Burr's plan to settle, =3=, 292 _n._, 303, 310, 312,
313, 314 _n._, 319, 324 _n._, 361 _n._, 362, 461, 462, 523,
527;
Water travel, hardships, =1=, 259, =3=, 55 _n._
_See also_ Steamboat.
Watkins, John, and Burr, =3=, 295;
and Wilkinson and Adair, 337 _n._
Watson, Elkanah, on army at Valley Forge, =1=, 111 _n._;
on hardships of travel, 263 _n._;
on Virginia social conditions, 277 _n._;
on dissipation, 283 _n._
Wayne, Anthony, discipline, =1=, 88;
in Brandywine campaign, 93, 95, 96;
in Philadelphia campaign, 100;
Germantown, 102;
Monmouth campaign, 135;
Stony Point, 139-41;
and supplies, 139 _n._;
on military smartness, 139 _n._
Wayne, C. P., negotiations to publish M.'s biography, =3=, 225-27;
agreement, 227, 228;
and political situation, 230;
solicitation of subscriptions, 230, 235;
and M.'s delays and prolixity, 235, 236, 239, 241;
and financial problem, 236, 250;
payment of royalty, 247, 248, 251;
and revised edition, 272.
Wayne, James M., appointment to Supreme Court, =4=, 584.
Webb, Foster, and Tabby Eppes, =1=, 182.
Webster, Daniel, on Yazoo claims, =3=, 602;
opposes new Western States, =4=, 28 _n._;
and War of 1812, 48;
opposes conscription, 51 _n._, 52 _n._;
on M., 59 _n._;
on Washington, 86;
as practitioner before M., 95, 135;
on bank debate, 180;
counsel in Dartmouth College case, 233, 234, 260, 273;
and story of Indian students, 233 _n._;
on the trial, 237, 240 _n._, 250 _n._, 253 _n._, 254 _n._, 261 _n._,
273, 274;
argument in case, 240-52;
tribute to Dartmouth, 248-50;
fee and portrait, 255 _n._;
and success in case, 273;
counsel in M'Culloch _vs._ Maryland, appearance, 284;
argument, 285;
on the case, 288;
debt to M. in reply to Hayne, 293 _n._, 552-55;
counsel in Cohens _vs._ Virginia, 357;
in and on debate on Supreme Court, 379, 380, 395, 395 _n._,
452 _n._;
counsel in Osborn _vs._ Bank, 385;
resolution on regulating power to declare State acts void, 396, 451;
counsel in Gibbons _vs._ Ogden, 413, 424;
argument, 424-27;
fanciful story on it, 424 _n._;
overlooks M.'s earlier decision on question, 427-29;
and American Colonization Society, 474;
and recharter of the Bank, 530;
on Nullification, M.'s commendation, 572.
Webster, Ezekiel, on War of 1812, =4=, 46 _n._
Webster, Noah, on Jacobin enthusiasm, =2=, 35 _n._;
on license of the press, 530;
and biography of Washington, =3=, 225 _n._
Weems, Mason L., biography of Washington, =3=, 225 _n._, 231 _n._;
character, 231;
career, 231 _n._;
soliciting agent for M.'s biography of Washington, 231-34, 252;
his orders for books, 252 _n._, 253 _n._
Weld, Isaac, on hardships of travel, =1=, 250;
on William and Mary, 272;
on lack of comforts, 274;
on drinking, 281;
on passion for military titles, 328 _n._;
on attacks on Washington, =2=, 117 _n._
Wentworth, John, charter for Dartmouth College, =4=, 224.
West, and attitude toward Union, Spanish intrigue, =3=, 282-85, 297,
299, 554;
Burr turns to, 286;
M. on internal improvements and (1812), =4=, 43-45;
War of 1812 and migration, 57;
_See also_ Burr conspiracy; Frontier; Yazoo lands.
West Florida, expected war with Spain over, =3=, 284, 285, 295, 301,
306, 312, 383 _n._
West Virginia, M. anticipates formation, =4=, 571.
Western claims, Georgia claim and cession, =3=, 553, 569, 570, 573.
Western Reserve, cession, =2=, 446;
Granger's connection, =3=, 578.
Westmoreland County, Vs., slave population (1790), =1=, 21 _n._
Wharton, Colonel, and Swartwout and Bollmann, =3=, 344.
Wheaton, Joseph, and Burr, =3=, 304 _n._
Wheelock, Eleazer, and origin of Dartmouth College, =4=, 223-26;
and Bellamy, 227.
Wheelock, John, President of Dartmouth College, =4=, 226;
in Revolution, 226 _n._;
troubles and removal, 227, 228;
reëlected under State reorganization, 232.
Whiskey Insurrection, opposition to Federal excise, =2=, 86, 87;
outbreak, 87;
democratic societies and, 88, 89;
M. and, 89, 90;
Jefferson's support, 90;
political effect, 91.
Whitaker, Nathaniel, and Dartmouth College, =4=, 223.
White, Abraham, in Ratification Convention, =1=, 345.
White, Samuel, and Pickering impeachment, =3=, 167, 168 _n._
White House, in 1801, =3=, 2.
Whitehill, Robert, in Ratification Convention, =1=, 329.
Whitney, Eli, cotton gin, =3=, 555.
Whittington _vs._ Polk, =3=, 612.
Wickham, John, as lawyer, =1=, 173;
mock argument with M., =2=, 184;
Ware _vs._ Hylton, 188;
and Chase impeachment, =3=, 176;
Burr's counsel, at preliminary hearing, 373, 379, 407;
Burr and M. at dinner with, 394-97;
on motion to commit Burr for treason, 416, 418, 424;
and subpoena to Jefferson, 435;
on preliminary proof of overt act, 485;
on overt act, 491-94;
counsel in Hunter _vs._ Fairfax's Devisee, =4=, 151;
practitioner before M., 237 _n._
Wickliffe, Charles A., bill on Supreme Court, =4=, 380.
Widgery, William, in Ratification Convention, =1=, 344, 345, 350.
Wilkins, William, and Burr, =3=, 311 _n._
Wilkinson, James, Conway Cabal, =1=, 121-23;
as Spanish agent, =3=, 283, 284, 316, 320 _n._, 337 _n._;
and Burr's plans, proposes Mexican invasion, 290, 294, 297, 460;
and rumors of disunion plans, 297;
plans to abandon Burr, 298, 300 _n._, 320;
at Louisiana frontier, expected to bring on war, 302, 308, 314;
Burr's cipher letter, 307-09, 614, 615;
letters to Adair and Smith, 314;
and Swartwout, 320, 354 _n._, 465;
revelation to Jefferson, 321-23, 433, 518-22;
ordered to New Orleans, 324;
pretended terror, 328;
appeal for money to Viceroy, 329;
and to Jefferson, 330;
reign of terror in New Orleans, 330-37;
sends Jefferson a version of Burr's letter, 334;
Jefferson's message on it, 339, 341;
affidavit and version of Burr's letter in Swartwout case, 341,
352-56;
House debate on conduct, 358-60;
and Burr in Mississippi, denounced there, 364, 365;
attendance awaited at trial of Burr, 383, 393, 415, 416, 429, 431,
432, 440;
arrival and conduct, 456, 457;
Jackson denounces, 457;
before grand jury, barely escapes indictment, 463, 464;
swallows Swartwout's insult, 471;
fear, Jefferson bolsters, 472, 477;
attachment against, 473-75;
and _Chesapeake-Leopard_ affair, 476;
personal effect of testimony, 523;
Daveiss's pamphlet on, 525.
William and Mary College, M. at, =1=, 154;
conditions during period of M.'s attendance, 155-58, 272;
Phi Beta Kappa, 158;
debating, 159;
fees from surveys, 179 _n._
Williams, ----, counsel for Bollmann, =3=, 453.
Williams, Isaac, trial and pardon, =2=, 495, =3=, 26.
Williams, Robert, in debate on repeal of Judiciary Act, =3=, 73.
Williamsburg, and frontier minute men, =1=, 75;
"Palace," 163 _n._
Williamson, ----, loyalist, mobbed, =1=, 214.
Williamson, Charles, and Burr, =3=, 288, 289.
Wills, of M.'s putative great-grandfather, =1=, 483, 484;
of M.'s grandfather, 485;
M.'s, =4=, 525 _n._
Wilson, James, and Ratification in Pennsylvania, =1=, 329, 332;
and in Virginia, 401;
and common-law jurisdiction, =3=, 24-26;
and British precedents, 28 _n._;
on declaring acts void, 115 _n._, 117;
and Yazoo lands, 548, 555;
in Federal Convention, on obligation of contracts, 558 _n._
Wilson _vs._ Mason, =3=, 17 _n._
Wine, M. as judge, =4=, 79.
_See also_ Drinking.
Wirt, William, on William and Mary, =1=, 156 _n._;
on frontiersmen, 236 _n._;
on M.'s appearance, =2=, 168, 169;
on M. as lawyer, 192, 193, 195, 196;
on social contrasts (1803), =3=, 13;
_Letters of a British Spy_, 13 _n._;
in Callender trial, 38-40, 190, 203;
prosecutes Burr, 407;
dissipation, 407 _n._;
on motion to commit Burr for treason, 417;
on subpoena to Jefferson, 438, 439;
on preliminary proof of overt act, 485;
on overt act, 495-97, 616-18;
on M. at trial, 517, 521;
in trial for misdemeanor, 522;
on M.'s personality, =4=, 91 _n._;
as practitioner before M., 95, 135 _n._;
on long arguments, 95 _n._;
on Pinkney, 131 _n._, 134 _n._;
counsel in Dartmouth College case, 239, 253;
and Kent, 256 _n._;
counsel in M'Culloch _vs._ Maryland, 284;
and in Cohens _vs._ Virginia, 357;
on importance of Supreme Court, 369 _n._;
on Oakley, 424;
counsel in Gibbons _vs._ Ogden, 424, 427;
and in Brown _vs._ Maryland, 455;
and in Cherokee Nation _vs._ Georgia, 541, 544, 547;
and in Worcester _vs._ Georgia, 549.
Wolcott, Alexander, and Justiceship, =4=, 110.
Wolcott, Oliver [1], on Giles, =2=, 84 _n._
Wolcott, Oliver [2],
on support of new government (1791), =2=, 61 _n._, 148;
on French Revolution, 92;
on M. and new French mission, 433;
on M.'s reply to Adams's address (1799), 434;
on M.'s position in Congress, 436, 437;
underhand opposition to Adams, 488 _n._, 493, 517 _n._;
_Aurora_ on, 491;
on M. as Secretary of State, 492, 493;
on Federalist defeat in M.'s district, 515;
on Republican influence over Adams, 518;
and Hamilton's attack on Adams, 527 _n._;
and M. and Jefferson-Burr contest, 536;
banquet to, 548;
on enlargement of Federal Judiciary, 548;
appointment as Circuit Judge, 559, 560;
on Washington (1800), =3=, 4, 8, 8 _n._;
on Jefferson and popularity, 19 _n._;
on M.'s biography of Washington, 233.
Women, education in colonial Virginia, =1=, 18 _n._, 24 _n._;
M.'s attitude, 198, =4=, 71, 72.
Wood, John, attacks on Federalists, =2=, 379, 409;
book suppressed by Burr, 380 _n._;
character, =3=, 316 _n._
Woodbridge, Dudley, testimony in Burr trial, =3=, 489.
Woodbury, Levi, hears Dartmouth College case, =4=, 234.
Woodford, William, battle of Great Bridge, =1=, 76;
in battle of Germantown, 103.
Woodward, William H., and Dartmouth College case, =4=, 233, 239 _n._,
273.
Woodworth, John, opinion on Livingston steamboat monopoly, =4=, 449.
Worcester, Samuel A., arrest by Georgia, =4=, 547;
pardoned, 552 _n._
_See also_ Cherokee Indians.
Worcester, Mass., and Ratification, =1=, 341.
Worcester _vs._ Georgia. _See_ Cherokee Indians.
Workman, James, and Burr, =3=, 295;
and Wilkinson's reign of terror, 335.
Wright, John C., counsel in Osborn _vs._ Bank, =4=, 385.
Wright, Robert, at Chase trial, =3=, 183 _n._;
on Yazoo claims, 600.
Wylly, Thomas, and Yazoo lands act, =3=, 546, 547.
Wythe, George, M. attends law lectures, =1=, 154;
as professor, 157;
as judge, 173;
candidacy for Ratification Convention, 359;
in the Convention: Chairman, 368;
appearance, 373;
and recommendatory amendments, 469;
and Judiciary Act of, 1789, =3=, 129;
Commonwealth _vs._ Caton, 611.
X. Y. Z. Mission,
M.'s financial reason for accepting, =2=, 211-13, 371-73;
_Aurora_ on M.'s appointment, 218, 219;
M. in Philadelphia awaiting voyage, 214-18;
Adams on M.'s fitness, 218;
M.'s outward voyage, 219-21, 229;
as turning point in M.'s career, 221;
task, 221;
French depredations on neutral trade, 223-25;
Pinckney not received as Minister, 224;
Adams's address to Congress, French demand for withdrawal, 225, 226,
255, 262, 316;
wisdom of appointment, 226;
selection of envoys, Gerry, 226-29;
envoys at The Hague, Gerry's delay, 230, 231;
influence of 18th Fructidor, 244;
Washington on expectations, 244;
journey to Paris, 245;
M.'s pessimistic view of prospects, 246;
venality of French Government, 247-49;
and victims of French depredations, 249;
Talleyrand's opinion of United States, 250;
Talleyrand's position and need of money, 251;
Gerry's arrival, 251;
Talleyrand's informal reception, meeting visualized, 251, 253;
Talleyrand's measure of the envoys, 252;
Talleyrand and King's conciliatory letter, 252, 253;
Church's hint, 254;
Paine's interference, 254;
American instructions, 255;
origin of name, 256, 339;
depredations continue, protests of envoys, 257, 258, 270, 271-277,
283, 284, 310, 313, 331;
Gerry's opposition to action, 258;
Federalist opinions of Gerry, 258 _n._, 295, 296, 363-65;
first unofficial agent's proposal of loan and bribe, 259-61;
division of envoys on unofficial negotiations and bribe, 260, 261,
264, 314-17;
second unofficial agent, 261;
other French demands, 262;
further urging of loan and bribe, 263, 265-67, 273-76, 291, 313,
314, 315, 317, 318;
proposed return for instructions, 265;
and British-American and British-French relations, 271, 283, 295,
312, 321, 322;
and treaty of Campo Formio, 271-73;
third unofficial agent, 276;
intrigue and private conferences with Gerry, 276-78, 287, 294, 295,
310, 311, 313, 333;
intimidation, 278, 311;
threat of overthrowing Federalists, 278-81, 283, 286, 311;
decision against further unofficial negotiations, 281;
threat to asperse envoys in United States, 281, 312, 318-20, 327;
division on addressing Talleyrand directly, 282;
newspaper calumny, 282, 331;
Talleyrand's refusal to receive envoys, 284;
female agent to work on Pinckney, 290;
attempt to use debt to Beaumarchais, 292-94;
desire of M. and Pinckney to terminate, demand for passports, 296,
309, 310, 314, 326, 327, 331, 332;
preparation of American memorial, 296, 297;
its importance, 297;
its contents, 297-309;
necessity of American neutrality, 298-301;
review of Genêt's conduct, 301-03;
free ships, free goods, and Jay Treaty, 303-05;
defense of Jay Treaty, 305-08;
memorial ignored, 310;
French plan to retain Gerry, 312, 315, 317, 320, 323, 324, 326, 331;
meetings with Talleyrand, 315, 317;
dissension, 316, 328;
M.'s assertion of purely American attitude, 319;
M. on loan as ultimatum, 321;
Talleyrand's reply to memorial, 323-26;
complaint against American newspaper attacks, 324;
insult to M. and Pinckney, 325, 332;
American rejoinder, 326, 328-31;
Gerry stays, 327, 328, 333, 363;
reply on complaint about newspapers, 329-31;
departure of M. and Pinckney, 332;
M.'s farewell to friends, 333;
Pinckney on Gerry and M., 333, 365;
conditions in United States during, 335;
French reports in United States, 335;
arrival of first dispatches, Adams's warning to Congress, 336;
Republican demand for dispatches, 336-38;
effect of publication, war spirit, Republican about face, 338-43,
363;
M.'s return and reception, 343-55;
Jefferson's call on M., 346, 347;
origin of "millions for defense" slogan, 348;
M.'s addresses on, 350, 352, 353, 571-73;
Adams's statement of policy, 351;
effect on Federalist Party, 355-57, 361;
Jefferson's attempt to undo effect, 359-61, 368;
effect of dispatches in Europe, 363;
Talleyrand's demand on Gerry for the X. Y. Z. names, 364, 366;
M.'s fear of Gerry's stay, 365;
Adams and M.'s journal, 366;
Gerry's defense, M. and question of rejoinder, 367-69;
Giles's sneer and Bayard's answer (1802), =3=, 77, 80.
Yates, Joseph C., on Livingston steamboat monopoly, =4=, 406.
Yazoo lands,
Rutledge on (1802), =3=, 88;
and Chase impeachment, 174;
sale act (1795), graft, 546-50;
provisions, 550, 551;
popular denunciation of act, 551, 559-62;
and Indian titles, 552, 569, 570, 592;
earlier grant, 554;
character of second companies, 554;
and invention of cotton gin, 555, 556;
matter before first congresses, 560, 569, 570;
repeal of grant, theatricalism, 562-66;
Hamilton's opinion on validity of titles, 562, 563;
resale, "innocent purchasers" and property rights, 566, 578-80, 586,
588-90, 598;
National interest, pamphlets, 570-72;
and cession of Georgia's Western claim, 574;
report of Federal Commission, 574;
claim before Congress, Randolph's opposition, 574-83, 595-602;
memorial of New England Mississippi Company, 576;
popular support of Randolph, 581;
obstacles to judicial inquiry, 583;
friendly suit, Fletcher _vs._ Peck before Circuit Court, 583, 584;
case before Supreme Court, first hearing, 585;
question of collusion, Johnson's separate opinion, 585, 592, 601;
second hearing, 585;
M.'s opinion, 586-91;
legality of grant, effect of corruption, 587, 598, 599;
unconstitutionality of repeal, impairment of obligation of
contracts, 590, 591;
attitude of Administration, 592;
importance of opinion, 593-95, 602;
congressional denunciation of opinion, 595-601;
popular support of denunciation, 599;
local influences on settlement, 601;
settlement, 602.
York, Me., and Ratification, =1=, 341.
Young, Daniel, and disestablishment in New Hampshire, =4=, 230 _n._
Zubly, John J., denounced by Chase, =3=, 185 _n._
* * * * *
Transcriber's Notes:
1. Passages in italics are surrounded by _underscores_.
2. Within index the bold numbers from original are enclosed within
=equals= sign indicating the volume for that particular index entry.
3. Obvious errors in spelling and punctuation have been corrected.
4. Footnotes have been renumbered and moved from the page end to the
end of their respective chapters.
5. Images have been moved from the middle of a paragraph to the closest
paragraph break.
6. Certain words use an oe ligature in the original.
7. Carat character (^) followed by a single letter or a set of letters
in curly brackets is indicative of subscript in the original book.
*** End of this LibraryBlog Digital Book "The Life of John Marshall Volume 4 of 4" ***
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