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."