Pickering, the incessant, in one of his many and voluminous letters to

Marshall which the ancient New Englander continued to write as long as

he lived, had bemoaned the existence of slavery--one of the rare

exhibitions of Liberalism displayed by that adamantine Federalist

conservative. Marshall answered: "I concur with you in thinking that

nothing portends more calamity & mischief to the Southern States than

their slave population. Yet they seem to cherish the evil and to view

with immovable prejudice & dislike every thing which may tend to

diminish it. I do not wonder that they should resist any attempt, should

one be made, to interfere with the rights of property, but they have a

feverish jealousy of measures which may do good without the hazard of

harm that is, I think, very unwise."[1290]

Marshall heartily approved the plan of the American Colonization Society

to send free negroes back to Africa. The Virginia branch of that

organization was formed in 1829, the year of the State Constitutional

Convention, and Marshall became a member. Two years later he became

President of the Virginia branch, with James Madison, John Tyler, Abel

P. Upshur, and other prominent Virginians as Vice-Presidents.[1291] In

1831, Marshall was elected one of twenty-four Vice-Presidents of the

National society, among whom were Webster, Clay, Crawford, and

Lafayette.[1292]

The Reverend R. R. Gurley, Secretary of this organization, wrote to the

more eminent members asking for their views. Among those who replied

were Lafayette, Madison, and Marshall. The Chief Justice says that he

feels a "deep interest in the ... society," but refuses to "prepare any

thing for publication." The cause of this refusal is "the present state

of [his] family"[1293] and a determination "long since formed ...

against appearing in print on any occasion." Nevertheless, he writes

Gurley a letter nearly seven hundred words in length.

Marshall thinks it "extremely desirable" that the States shall pass

"permanent laws" affording financial aid to the colonization project. It

will be "also desirable" if this legislation can be secured "to incline

the people of color to migrate." He had thought for a long time that it

was just possible that more negroes might like to go to Liberia than

"can be provided for with the funds [of] the Society"; therefore he had

"suggested, some years past," to the managers, "to allow a small

additional bounty in lands to those who would pay their passage in whole

or in part."

To Marshall it appears to be of "great importance to retain the

countenance and protection of the General Government. Some of our

cruizers stationed on the coast of Africa would, at the same time,

interrupt the slave trade--a horrid traffic detested by all good

men--and would protect the vessels and commerce of the Colony from

pirates who infest those seas. The power of the government to afford

this aid is not, I believe, contested." He thinks the plan of Rufus King

to devote part of the proceeds from the sale of public lands to a fund

for the colonization scheme, "the most effective that can be devised,"

Marshall makes a brief but dreary argument for this method of raising

funds for the exportation of the freed blacks.

He thus closes this eminently practical letter: "The removal of our

colored population is, I think, a common object, by no means confined to

the slave States, although they are more immediately interested in it.

The whole Union would be strengthened by it, and relieved from a danger,

whose extent can scarcely be estimated." Furthermore, says the Chief

Justice, "it lessens very much ... the objection in a political view to

the application of this ample fund [from the sale of the public domain],

that our lands are becoming an object for which the States are to

scramble, and which threatens to sow the seeds of discord among us

instead of being what they might be--a source of national wealth."[1294]

Marshall delivered two opinions in which the question of slavery was

involved, but they throw little light on his sentiments. In the case of

the Antelope he held that the slave trade was not prohibited by

international law as it then existed; but since the court, including

Story and Thompson, both bitter antagonists of slavery, was unanimous,

the views of Marshall cannot be differentiated from those of his

associates. Spain and Portugal claimed certain negroes forcibly taken

from Spanish and Portuguese slavers by an American slaver off the coast

of Africa. After picturesque vicissitudes the vessel containing the

blacks was captured by an American revenue cutter and taken to Savannah

for adjudication.

In due course the case reached the Supreme Court and was elaborately

argued. The Government insisted that the captured negroes should be

given their liberty, since they had been brought into the country in

violation of the statutes against the importation of slaves. Spain and

Portugal demanded them as slaves "acquired as property ... in the

regular course of legitimate commerce."[1295] It was not surprising that

opinion on the slave trade was "unsettled," said Marshall in delivering

the opinion of the court.

All "Christian and civilized nations ... have been engaged in it....

Long usage, and general acquiescence" have sanctioned it.[1296] America

had been the first to "check" the monstrous traffic. But, whatever its

feelings or the state of public opinion, the court "must obey the

mandate of the law."[1297] He cites four English decisions, especially a

recent one by Sir William Scott, the effect of all being that the slave

trade "could not be pronounced contrary to the law of nations."[1298]

Every nation, therefore, has a right to engage in it. Some nations may

renounce that right sanctioned by "universal assent." But other nations

cannot be bound by such "renunciation." For all nations, large and

small, are equal--"Russia and Geneva have equal rights." No one nation

"can rightfully impose a rule on another ... none can make a law of

nations; and this traffic remains lawful to those whose governments have

not forbidden it.... It follows, that a foreign vessel engaged in the

African slave trade, captured on the high seas in time of peace, by an

American cruiser, and brought in for adjudication, would be

restored."[1299]

Four months before Marshall was elected a member of the Virginia

Constitutional Convention, he delivered another opinion involving the

legal status of slaves. Several negroes, the property of one Robert

Boyce, were on a steamboat, the Teche, which was descending the

Mississippi. The vessel took fire and those on board, including the

negroes, escaped to the shore. Another steamboat, the Washington, was

coming up the river at the time, and her captain, in response to appeals

from the stranded passengers of the burning vessel, sent a yawl to bring

them to the Washington. The yawl was upset and the slaves drowned. The

owner of them sued the owner of the Washington for their value. The

District Court held that the doctrine of common carriers did not apply

to human beings; and this was the only question before the Supreme

Court, to which Boyce appealed.

"A slave ... cannot be stowed away as a common package," said Marshall

in his brief opinion. "The responsibility of the carrier should be

measured by the law which is applicable to passengers, rather than by

that which is applicable to the carriage of common goods.... The law

applicable to common carriers is one of great rigor.... It has not been

applied to living men, and ... ought not to be applied to them."

Nevertheless, "the ancient rule 'that the carrier is liable only for

ordinary neglect,' still applies" to slaves. Therefore the District

Court was right in its instructions to the jury.[1300]

The two letters quoted and the opinions expressing the unanimous

judgment of the Supreme Court are all the data we have as to Marshall's

views on slavery. It appears that he regretted the existence of slavery,

feared the results of it, saw no way of getting rid of it, but hoped to

lessen the evil by colonizing in Africa such free black people as were

willing to go there. In short, Marshall held the opinion on slavery

generally prevailing at that time. He was far more concerned that the

Union should be strengthened, and dissension in Virginia quieted, than

he was over the problem of human bondage, of which he saw no solution.

When he took his seat as a delegate to the Virginia Constitutional

Convention of 1829-30, a more determined conservative than Marshall did

not live. Apparently he did not want anything changed--especially if the

change involved conflict--except, of course, the relation of the States

to the Nation. He was against a new constitution for Virginia; against

any extension of suffrage; against any modification of the County Court

system except to strengthen it; against a free white basis of

representation; against legislative interference with business. His

attitude was not new, nor had he ever concealed his views.

His opinions of legislation and corporate property, for instance, are

revealed in a letter written twenty years before the Convention of

1829-30. In withdrawing from some Virginia corporation because the

General Assembly of the State had passed a law for the control of it,

Marshall wrote: "I consider the interference of the legislature in the

management of our private affairs, whether those affairs are committed

to a company or remain under individual direction, as equally dangerous

and unwise. I have always thought so and I still think so. I may be

compelled to subject my property to these interferences, and when

compelled I shall submit; but I will not voluntarily expose myself to

the exercise of a power which I think so improperly usurped."[1301]

Two years before the convention was called, Marshall's unyielding

conservatism was displayed in a most conspicuous manner. In Sturges

_vs._ Crowninshield,[1302] a State law had been held invalid which

relieved creditors from contracts made before the passage of that law.

But, in his opinion in that case, Marshall used language that also

applied to contracts made after the enactment of insolvency statutes;

and the bench and bar generally had accepted his statement as the

settled opinion of the Supreme Court. But so acute had public discontent

become over this rigid doctrine, so strident the demand for bankrupt

laws relieving insolvents, at least from contracts made after such

statutes were enacted, that the majority of the Supreme Court yielded to

popular insistence and, in Ogden _vs._ Saunders,[1303] held that "an

insolvent law of a State does not impair the obligation of future

contracts between its citizens."[1304]

For the first time in twenty-seven years the majority of the court

opposed Marshall on a question of Constitutional law. The Chief Justice

dissented and delivered one of the most powerful opinions he ever wrote.

The very "nature of our Union," he says, makes us "one people, as to

commercial objects."[1305] The prohibition in the contract clause "is

complete and total. There is no exception from it.[1306]... Insolvent

laws are to operate on a future, contingent unforseen event."[1307] Yet

the majority of the court hold that such legislation enters into

subsequent contracts "so completely as to become a ... part" of them. If

this is true of one law, it is true of "every other law which relates to

the subject."

But this would mean, contends Marshall, that a vital provision of the

Constitution, "one on which the good and the wise reposed confidently

for securing the prosperity and harmony of our citizens, would lie

prostrate, and be construed into an inanimate, inoperative, unmeaning

clause." The construction of the majority of the court would "convert an

inhibition to pass laws impairing the obligation of contracts into an

inhibition to pass retrospective laws."[1308] If the Constitution means

this, why is it not so expressed? The mischievous laws which caused the

insertion of the contract clause "embraced future contracts, as well as

those previously formed."[1309]

The gist of Marshall's voluminous opinion in Ogden _vs._ Saunders is

that the Constitution protects all contracts, past or future, from State

legislation which in any manner impairs their obligation.[1310]

Considering that even the rigidly conservative Bushrod Washington,

Marshall's stanch supporter, refused to follow his stern philosophy, in

this case, the measure and character of Marshall's conservatism are seen

when, in his seventy-fifth year, he helped to frame a new constitution

for Virginia.

Still another example of Marshall's rock-like conservatism and of the

persistence with which he held fast to his views is afforded by a second

dissent from the majority of the court at the same session. This time

every one of the Associate Justices was against him, and Story delivered

their unanimous opinion. The Bank of the United States had sued Julius

B. Dandridge, cashier of the Richmond branch, and his sureties, on his

official bond. Marshall, sitting as Circuit Judge, had held that only

the written record of the bank's board of directors, that they approved

and accepted the bond, could be received to prove that Dandridge had

been legally authorized to act as cashier.

The Supreme Court reversed Marshall's judgment, holding that the

authorization of an agent by a corporation can be established by

presumptive evidence,[1311] an opinion that was plainly sound and which

stated the law as it has continued to be ever since. But despite the

unanimity of his brethren, the clear and convincing opinion of Story,

the disapproval of his own views by the bench, bar, and business men of

the whole country, Marshall would not yield. "The Ch: Jus: I fear will

_die hard_," wrote Webster, who was of counsel for the bank.[1312]

In a very long opinion Marshall insists that his decision in the Circuit

Court was right, fortifying his argument by more than thirty citations.

He begins by frank acknowledgment of the discontent his decision in the

Circuit Court has aroused: "I should now, as is my custom, when I have

the misfortune to differ with this court, acquiesce silently in its

opinion, did I not believe that the judgment of the circuit court of

Virginia gave general surprise to the profession, and was generally

condemned." Corporations, "being destitute of human organs," can express

themselves only by writing. They must act through agents; but the agency

can be created and proved only by writing.

Marshall points out the serious possibilities to those with whom

corporations deal, as well as to the corporations themselves, of the

acts of persons serving as agents without authority of record.[1313]

Powerful as his reasoning is, it is based on mistaken premises

inapplicable to modern corporate transactions; but his position, his

method, his very style, reveal the stubborn conservative at bay, bravely

defending himself and his views.

This, then, was the John Marshall, who, in his old age, accepted the

call of men as conservative as himself to help frame a new constitution

for Virginia, On Monday, October 5, 1829, the convention met in the

House of Delegates at Richmond. James Madison, then in his seventy-ninth

year, feeble and wizened, called the members to order and nominated

James Monroe for President of the convention. This nomination was

seconded by Marshall. These three men, whose careers since before the

Revolution and throughout our formative period, had been more

distinguished, up to that time, than had that of any American then

living, were the most conspicuous persons in that notable Assembly.

Giles, now Governor of the State, was also a member; so were Randolph,

Tyler, Philip P. Barbour, Upshur, and Tazewell. Indeed, the very ablest

men in Virginia had been chosen to make a new constitution for the

State. In the people's anxiety to select the best men to do that

important work, delegates were chosen regardless of the districts in

which they lived.[1314]

To Marshall, who naturally was appointed to the Judiciary

Committee,[1315] fell the task of presenting to the convention the first

petition of non-freeholders for suffrage.[1316] No more impressive

document was read before that body. It stated the whole democratic

argument clearly and boldly.[1317] The first report received from any

committee was made by Marshall and also was written by him.[1318] It

provided for the organization of the State Judiciary, but did not seek

materially to change the system of appointments of judges.

Two sentences of this report are important: "No modification or

abolition of any Court, shall be construed to deprive any Judge thereof

of his office"; and, "Judges may be removed from office by a vote of the

General Assembly: but two-thirds of the whole number of each House must

concur in such vote."[1319] Marshall promptly moved that this report be

made the order of the day and this was done.

Ranking next to the question of the basis of suffrage and of

representation was that of judiciary reform. To accomplish this reform

was one of the objects for which the convention had been called. At that

time the Judiciary of Virginia was not merely a matter of courts and

judges; it involved the entire social and political organization of that

State. No more essentially aristocratic scheme of government ever

existed in America. Coming down from Colonial times, it had been

perpetuated by the Revolutionary Constitution of 1776. It had, in

practical results, some good qualities and others that were evil, among

the latter a well-nigh faultless political mechanism.[1320]

The heart of this system was the County Courts. Too much emphasis cannot

be placed on this fact. These local tribunals consisted of justices of

the peace who sat together as County Courts for the hearing and decision

of the more important cases. They were almost always the first men of

their counties, appointed by the Governor for life; vacancies were, in

practice, filled only on the recommendation of the remaining justices.

While the Constitution of 1776 did not require the Governor to accept

the nominations of the County Courts for vacancies in these offices, to

do so had been a custom long established.[1321]

For this acquiescence of the Governor in the recommendation of the

County Courts, there was a very human reason of even weightier influence

than that of immemorial practice. The Legislature chose the Governor;

and the justices of the peace selected, in most cases, the candidates

for the Legislature--seldom was any man elected by the people to the

State Senate or House of Delegates who was not approved by the County

Courts. Moreover, the other county offices, such as county clerks and

sheriffs, were appointed by the Governor only on the suggestion of the

justices of the peace; and these officials worked in absolute agreement

with the local judicial oligarchy. In this wise members of Congress

were, in effect, named by the County Courts, and the Legislature dared

not and did not elect United States Senators of whom the justices of the

peace disapproved.

The members of the Court of Appeals, appointed by the Governor, were

never offensive to these minor county magistrates, although the judges

of this highest tribunal in Virginia, always able and learned men

holding their places for life, had great influence over the County

Courts, and, therefore, over the Governor and General Assembly also. Nor

was this the limit of the powers of the County Courts. They fixed the

county rate of taxation and exercised all local legislative and

executive as well as judicial power.[1322]

In theory, a more oligarchic system never was devised for the government

of a free state; but in practice, it responded to the variations of

public opinion with almost the precision of a thermometer. For example,

nearly all the justices of the peace were Federalists during the first

two years of Washington's Administration; yet the State supported Henry

against Assumption, and, later, went over to Jefferson as against

Washington and Henry combined.[1323]

Rigid and self-perpetuating as was the official aristocracy which the

Virginia judicial system had created, its members generally attended to

their duties and did well their public work.[1324] They lived among the

people, looked after the common good, composed disputes between

individuals; soothed local animosities, prevented litigation; and

administered justice satisfactorily when, despite their preventive

efforts, men would bring suits. But the whole scheme was the very

negation of democracy.[1325]

While, therefore, this judicial-social-political plan worked well for

the most part, the idea of it was offensive to liberal-minded men who

believed in democracy as a principle. Moreover, the official oligarchy

was more powerful in the heavy slaveholding, than in the comparatively

"free labor," sections; it had been longer established, and it better

fitted conditions, east of the mountains.

So it came about that there was, at last, a demand for judicial reform.

Seemingly this demand was not radical--it was only that the

self-perpetuating County Court system should be changed to appointments

by the Governor without regard to recommendations of the local justices;

but, in reality, this change would have destroyed the traditional

aristocratic organization of the political, social, and to a great

extent the economic, life of Virginia.

On every issue over which the factions of this convention fought,

Marshall was reactionary and employed all his skill to defeat, whenever

possible, the plans and purposes of the radicals. In pursuing this

course he brought to bear the power of his now immense reputation for

wisdom and justice. Perhaps no other phase of his life displays more

strikingly his intense conservatism.

The conclusion of his early manhood--reluctantly avowed after

Washington, following the Revolution, had bitterly expressed the same

opinion,[1326] that the people, left to themselves, are not capable of

self-government--had now become a profound moral belief. It should again

be stated that most of Marshall's views, formed as a young lawyer during

the riotous years between the achievement of Independence and the

adoption of the Constitution, had hardened, as life advanced, into

something like religious convictions. It is noteworthy, too, that, in

general, Madison, Giles, and even Monroe, now stood with Marshall.

The most conspicuous feature of those fourteen weeks of tumultuous

contest, as far as it reveals Marshall's personal standing in Virginia,

was the trust, reverence, and affection in which he was held by all

members, young and old, radical and conservative, from every part of the

State. Speaker after speaker, even in the fiercest debates, went out of

his way to pay tribute to Marshall's uprightness and wisdom.[1327]

Marshall spoke frequently on the Judiciary; and, at one point in a

debate on the removal of judges, disclosed opinions of historical

importance. Although twenty-seven years had passed since the repeal of

the Federalist Judiciary Act of 1801,[1328] Marshall would not, even

now, admit that repeal to be Constitutional. Littleton W. Tazewell,

also a member of the Judiciary Committee, asserted that, under the

proposed new State Constitution, the Legislature could remove judges

from office by abolishing the courts. John Scott of Fauquier County

asked Marshall what he thought of the ousting of Federalist judges by

the Republicans in 1802.

The Chief Justice answered, "with great, very great repugnance," that

throughout the debate he had "most carefully avoided" expressing any

opinion on that subject. He would say, however, that "he did not

conceive the Constitution to have been at all definitely expounded by a

single act of Congress." Especially when "there was no union of

Departments, but the Legislative Department alone had acted, and acted

but once," ignoring the Judicial Department, such an act, "even

admitting that act not to have passed in times of high political

and party excitement, could never be admitted as final and

conclusive."[1329]

Tazewell was of "an exactly opposite opinion"--the Repeal Act of 1802

"was perfectly constitutional and proper." Giles also disagreed with

Marshall. Should "a public officer ... receive the public money any

longer than he renders service to the public"?[1330] Marshall replied

with spirit. No serious question can be settled, he declared, by mere

"confidence of conviction, but on the reason of the case." All that he

asked was that the Judiciary Article of the proposed State Constitution

should go forth, "uninfluenced by the opinion of any individual: let

those, whose duty it was to settle the interpretation of the

Constitution, decide on the Constitution itself."[1331] After extended

debate[1332] and some wrangling, Marshall's idea on this particular

phase of the subject prevailed.[1333]

The debate over the preservation of the County Court system, for which

Marshall's report provided, was long and acrimonious, and a résumé of it

is impossible here. Marshall stoutly supported these local tribunals;

their "abolition will affect our whole internal police.... No State in

the Union, has hitherto enjoyed more complete internal quiet than

Virginia. There is no part of America, where ... less of ill-feeling

between man and man is to be found than in this Commonwealth, and I

believe most firmly that this state of things is mainly to be ascribed

to the practical operation of our County Courts." The county judges

"consist in general of the best men in their respective counties. They

act in the spirit of peace-makers, and allay, rather than excite the

small disputes ... which will sometimes arise among neighbours."[1334]

Giles now aligned himself with Marshall as a champion of the County

Court system. In an earnest defense of it he went so far as to reflect

on the good sense of Jefferson. Everybody, said Giles, knew that that

"highly respectable man ... dealt very much in theories."[1335]

During the remainder of the discussion on this subject, Marshall rose

frequently, chiefly, however, to guide the debate.[1336] He insisted

that the custom of appointing justices of the peace only on nomination

of the County Courts should be written into the constitution. The

Executive ought to appoint _all_ persons recommended by "a County Court,

taken as a whole." Marshall then moved an amendment to that

effect.[1337]

This was a far more conservative idea than was contained in the old

constitution itself. "Let the County Court who now recommended, have

power also to appoint: for there it ended at last," said William

Campbell of Bedford County. Giles was for Marshall's plan: "The existing

County Court system" threw "power into the hands of the middle class of

the community," he said; and it ought to be fortified rather than

weakened.

Marshall then withdrew his astonishing amendment and proposed, instead,

that the advice and "consent of the Senate" should not be required for

appointments of county justices, thus utterly eliminating all

legislative control over these important appointments; and this extreme

conservative proposition was actually adopted without dissent.[1338]

Thus the very foundation of Virginia's aristocratic political

organization was greatly strengthened.

Concerning the retention of his office by a judge after the court had

been abolished, Marshall made an earnest and impressive speech. What

were the duties of a judge? "He has to pass between the Government and

the man whom that Government is prosecuting: between the most powerful

individual in the community, and the poorest and most unpopular. It is

of the last importance, that in the exercise of these duties, he should

observe the utmost fairness. Need I press the necessity of this? Does

not every man feel that his own personal security and the security of

his property depends on that fairness?

"The Judicial Department comes home in its effects to every man's

fireside: it passes on his property, his reputation, his life, his all.

Is it not, to the last degree important, that he should be rendered

perfectly and completely independent, with nothing to influence or

control him but God and his conscience?

"You do not allow a man to perform the duties of a juryman or a Judge,

if he has one dollar of interest in the matter to be decided: and will

you allow a Judge to give a decision when his office may depend upon it?

when his decision may offend a powerful and influential man?

"Your salaries do not allow any of your Judges to lay up for his old

age: the longer he remains in office, the more dependant he becomes upon

his office. He wishes to retain it; if he did not wish to retain it, he

would not have accepted it. And will you make me believe that if the

manner of his decision may affect the tenure of that office, the man

himself will not be affected by that consideration?... The whole good

which may grow out of this Convention, be it what it may, will never

compensate for the evil of changing the tenure of the Judicial office."

Barbour had said that to presume that the Legislature would oust judges

because of unpopular decisions, was to make an unthinkable imputation.

But "for what do you make a Constitution?" countered Marshall. Why

provide that "no bill of attainder, or an _ex post facto_ law, shall be

passed? What a calumny is here upon the Legislature," he sarcastically

exclaimed. "Do you believe, that the Legislature will pass a bill of

attainder, or an _ex post facto_ law? Do you believe, that they will

pass a law impairing the obligation of contracts? If not, why provide

against it?...

"You declare, that the Legislature shall not take private property for

the public use, without just compensation. Do you believe, that the

Legislature will put forth their grasp upon private property, without

compensation? Certainly I do not. There is as little reason to believe

they will do such an act as this, as there is to believe, that a

Legislature will offend against a Judge who has given a decision against

some favourite opinion and favourite measure of theirs, or against a

popular individual who has almost led the Legislature by his talents and

influence.

"I am persuaded, there is at least as much danger that they will lay

hold on such an individual, as that they will condemn a man to death for

doing that which, when he committed it, was no crime. The gentleman

says, it is impossible the Legislature should ever think of doing such a

thing. Why then expunge the prohibition?... This Convention can do

nothing that would entail a more serious evil upon Virginia, than to

destroy the tenure by which her Judges hold their offices."[1339]

An hour later, the Chief Justice again addressed the convention on the

independence of the Judiciary. Tazewell had spoken much in the vein of

the Republicans of 1802.[1340] "The independence of all those who try

causes between man and man, and between a man and his Government,"

answered Marshall, "can be maintained only by the tenure of their

office. Is not their independence preserved under the present system?

None can doubt it. Such an idea was never heard of in Virginia, as to

remove a Judge from office." Suppose the courts at the mercy of the

Legislature? "What would then be the condition of the court, should the

Legislature prosecute a man, with an earnest wish to convict him?... If

they may be removed at pleasure, will any lawyer of distinction come

upon your bench?

"No, Sir. I have always thought, from my earliest youth till now, that

the greatest scourge an angry Heaven ever inflicted upon an ungrateful

and a sinning people, was an ignorant, a corrupt, or a dependent

Judiciary. Will you draw down this curse upon Virginia? Our ancestors

thought so: we thought so till very lately; and I trust the vote of this

day will shew that we think so still."[1341]

Seldom in any parliamentary body has an appeal been so fruitful of

votes. Marshall's idea of the inviolability of judicial tenure was

sustained by a vote of 56 to 29, Madison voting with him.[1342]

Lucas P. Thompson of Amherst County moved to strike out the provision in

Marshall's Judiciary Article that the abolition of a court should not

"deprive any Judge thereof of his office."[1343] Thus the direct

question, so fiercely debated in Congress twenty-seven years

earlier,[1344] was brought before the convention. It was promptly

decided, and against the views and action of Jefferson and the

Republicans of 1802. By a majority of 8 out of a total of 96,[1345] the

convention sustained the old Federalist idea that judges should continue

to hold their positions and receive their salaries, even though their

offices were abolished.

Before the vote was taken, however, a sharp debate occurred between

Marshall and Giles. To keep judges in office, although that office be

destroyed, "was nothing less than to establish a privileged corps in a

free community," said Giles. Marshall had said "that a Judge ought to be

responsible only to God and to his own conscience." Although "one of the

first objects in view, in calling this Convention, was to make the

Judges responsible--not nominally, but really responsible," Marshall

actually proposed to establish "a _privileged order_ of men." Another

part of Marshall's plan, said Giles, required the concurrent vote of

both Houses of the Legislature to remove a judge from the bench. "This

was inserted, for what?" To prevent the Legislature from removing a

judge "whenever his conduct had been such, that he became unpopular and

odious to the people"--the very power the Legislature ought to

have.[1346]

In reply, Marshall said that he would not, at that time, discuss the

removal of judges by the Legislature, but would confine himself

"directly to the object before him," as to whether the abolition of a

court should not deprive the judge of his office. Giles had fallen into

a strange confusion--he had treated "the office of a Judge, and the

Court in which he sat, as being ... indissolubly united." But, asked

Marshall, were the words "office and Court synonymes"? By no means. The

proposed Judiciary Article makes the distinction when it declares that

though the _court_ be abolished, the judge still holds his _office_. "In

what does the office of a Judge consist? ... in his constitutional

capacity to receive Judicial power, and to perform Judicial Duties....

"If the Constitution shall declare that when the court is abolished, he

shall still hold" his office, "there is no inconsistency in the

declaration.... What creates the office?" An election to it by the

Legislature and a commission by the Governor. "When these acts have been

performed, the Judges are in office. Now, if the Constitution shall say

that his office shall continue, and he shall perform Judicial duties,

though his court may be abolished, does he, because of any modification

that may be made in that court, cease to be a Judge?...

"The question constantly recurs--do you mean that the Judges shall be

removable at the will of the Legislature? The gentleman talks of

responsibility. Responsibility to what? to the will of the Legislature?

can there be no responsibility, unless your Judges shall be removable at

pleasure? will nothing short of this satisfy gentlemen? Then, indeed,

there is an end to independence. The tenure during good behaviour, is a

mere imposition on the public belief--a sound that is kept to the

ear--and nothing else. The consequences must present themselves to every

mind. There can be no member of this body who does not feel them.

"If your Judges are to be removable at the will of the Legislature, all

that you look for from fidelity, from knowledge, from capacity, is gone

and gone forever." Seldom did Marshall show more feeling than when

pressing this point; he could not "sit down," he said, without "noticing

the morality" of giving the Legislature power to remove judges from

office. "Gentlemen talk of sinecures, and privileged orders--with a

view, as it would seem, to cast odium on those who are in office.

"You seduce a lawyer from his practice, by which he is earning a

comfortable independence, by promising him a certain support for life,

unless he shall be guilty of misconduct in his office. And after thus

seducing him, when his independence is gone, and the means of

supporting his family relinquished, you will suffer him to be

displaced and turned loose on the world with the odious brand of

sinecure-pensioner--privileged order--put upon him, as a lazy drone who

seeks to live upon the labour of others. This is the course you are

asked to pursue."

The provisions of the Judiciary Article before the convention secure

ample responsibility. "If not, they can be made [to do] so. But is it

not new doctrine to declare, that the Legislature by merely changing the

name of a court or the place of its meeting, may remove any Judge from

his office? The question to be decided is, and it is one to which we

must come, whether the Judges shall be permanent in their office, or

shall be dependent altogether upon the breath of the Legislature."[1347]

Giles answered on the instant. In doing so, he began by a tribute to

Marshall's "standing and personal excellence" which were so great "that

he was willing to throw himself into the background, as to any weight to

be attached to his [Giles's] own opinion." Therefore, he would "rely

exclusively on the merits" of the controversy. Marshall had not shown

"that it was not an anomaly to have the court out of being, and an

office pertain[ing] to the court in being.... It was an anomaly in

terms."

Giles "had, however, such high respect" for Marshall's standing, "that

he always doubted his own opinion when put in opposition" to that of the

Chief Justice. He had not intended, he avowed, "to throw reproach upon

the Judges in office." Far be it from him to reflect "in the least

degree on their honour and integrity." His point was that, by Marshall's

plan, "responsibility was rather avoided than sought to be secured."

Giles was willing to risk his liberty thus far--"if a Judge became

odious to the people, let him be removed from office."[1348]

The debate continued upon another amendment by Thompson. Viewing the

contest as a sheer struggle of minds, the conservatives were superior to

the reformers,[1349] and steadily they gained votes.[1350]

Again Marshall spoke, this time crossing swords with Benjamin W. S.

Cabell and James Madison, over a motion of the former that judges whose

courts were abolished, and to whom the Legislature assigned no new

duties, should not receive salaries: "There were upwards of one hundred

Inferior Courts in Virginia.... No gentleman could look at the dockets

of these courts, and possibly think" that the judges would ever have no

business to transact.

Cabell's amendment "stated an impossible case," said Marshall,--a "case

where there should be no controversies between man and man, and no

crimes committed against society. It stated a case that could not

happen--and would the convention encounter the real hazard of putting

almost every Judge in the Commonwealth in the power of the Legislature,

for the sake of providing for an impossible case?"[1351] But in spite of

Marshall's opposition, Cabell's amendment was adopted by a vote of 59

to 36.[1352] Two weeks later, however, the convention reversed itself by

two curious and contradictory votes.[1353] So in the end Marshall won.

The subject of the Judiciary did not seriously arise again until the

vote on the adoption of the entire constitution was imminent. As it

turned out, the constitution, when adopted, contained, in substance, the

Judiciary provisions which Marshall had written and reported at the

beginning of that body's deliberations.[1354]

The other and the commanding problem, for the solution of which the

contention had been called, was made up of the associated questions of

suffrage, taxation, and representation. Broadly speaking, the issue was

that of white manhood suffrage and representation based upon the

enumeration of whites, as against suffrage determined by property and

taxation, representation to be based on an enumeration which included

three fifths of the slave population.[1355]

In these complex and tangled questions the State and the convention were

divided; so fierce were the contending factions, and so diverse were

opinions on various elements of the confused problem, especially among

those demanding reform, that at times no solution seemed possible. The

friends of reform were fairly well organized and coöperated in a spirit

of unity uncommon to liberals. But, as generally happens, the

conservatives had much better discipline, far more harmony of opinion

and conduct. The debate on both sides was able and brilliant.[1356]

Finally the convention seemingly became deadlocked. Each side declared

it would not yield.[1357] Then came the inevitable reaction--a spirit of

conciliation mellowed everybody. Sheer human nature, wearied of strife,

sought the escape that mutual accommodation alone afforded. The moment

came for which Marshall had been patiently waiting. Rising slowly, as

was his wont, until his great height seemed to the convention to be

increased, his soothing voice, in the very gentleness of its timbre,

gave a sense of restfulness and agreement so grateful to, and so desired

by, even the sternest of the combatants.

"No person in the House," began the Chief Justice, "can be more truly

gratified than I am, at seeing the spirit that has been manifested here

to-day; and it is my earnest wish that this spirit of conciliation may

be acted upon in a fair, equal and honest manner, adapted to the

situation of the different parts of the Commonwealth, which are to be

affected."

The warring factions, said Marshall, were at last in substantial

accord. "That the Federal numbers [the enumeration of slaves as fixed in

the National Constitution] and the plan of the white basis shall be

blended together so as to allow each an equal portion of power, seems to

be very generally agreed to." The only difference now was that one

faction insisted on applying this plan to both Houses of the

Legislature, while the other faction would restrict the white basis to

the popular branch, leaving the Senate to be chosen on the combined free

white and black slave enumeration.

This involves the whole theory of property. One gentleman, in

particular, "seems to imagine that we claim nothing of republican

principles, when we claim a representation for property." But

"republican principles" do not depend on "the naked principle of

numbers." On the contrary, "the soundest principles of republicanism do

sanction some relation between representation and taxation.... The two

ought to be connected.... This was the principle of the revolution....

This basis of Representation is ... so important to Virginia" that

everybody had thought about it before this convention was called.

"Several different plans were contemplated. The basis of white

population alone; the basis of free population alone; a basis of

population alone; a basis compounded of taxation and white population,

(or which is the same thing, a basis of Federal numbers:).... Now, of

these various propositions, the basis of white population, and the basis

of taxation alone are the two extremes." But, "between the free

population, and the white population, there is almost no difference:

Between the basis of total population and the basis of taxation, there

is but little difference."

Frankly and without the least disguise of his opinions, Marshall

admitted that he was a conservative of conservatives: "The people of the

East," of whom he avowed himself to be one, "thought that they offered a

fair compromise, when they proposed the compound basis of population and

taxation, or the basis of the Federal numbers. We thought that we had

republican precedent for this--a precedent given us by the wisest and

truest patriots that ever were assembled: but that is now past.

"We are now willing to meet on a new middle ground." Between the two

extremes "the majority is too small to calculate upon.... We are all

uncertain as to the issue. But all know this, that if either extreme is

carried, it must leave a wound in the breast of the opposite party which

will fester and rankle, and produce I know not what mischief." The

conservatives were now the majority of the convention, yet they were

again willing to make concessions. Avoiding both extremes, Marshall

proposed, "as a compromise," that the basis of representation "shall be

made according to an exact compound of the two principles, of the white

basis and of the Federal numbers, according to the Census of

1820."[1358]

Further debate ensued, during which animosity seemed about to come to

life again, when the Chief Justice once more exerted his mollifying

influence. "Two propositions respecting the basis of Representation

have divided this Convention almost equally," he said. "The question

has been discussed, until discussion has become useless. It has been

argued, until argument is exhausted. We have now met on the ground of

compromise." It is no longer a matter of the triumph of either side. The

only consideration now is whether the convention can agree on some plan

to lay before the people "with a reasonable hope that it may be adopted.

Some concession must be made on both sides.... What is the real

situation of the parties?" Unquestionably both are sincere. "To attempt

now to throw considerations of principle into either scale, is to add

fuel to a flame which it is our purpose to extinguish. We must lose

sight of the situation of parties and state of opinion, if we make this

attempt."

The convention is nearly evenly balanced. At this moment those favoring

a white basis only have a trembling majority of two. This may

change--the reversal of a single vote would leave the House "equally

divided."

The question must be decided "one way or the other"; but, if either

faction prevails by a bare majority, the proposed constitution will go

to the people from an almost equally divided convention. That means a

tremendous struggle, a riven State. Interests in certain parts of the

Commonwealth will surely resist "with great force" a purely white basis

of representation, especially if no effective property qualification for

suffrage is provided. This opposition is absolutely certain "unless

human nature shall cease to be what it has been in all time."

No human power can forecast the result of further contest. But one

thing is certain: "To obtain a just compromise, concession must not only

be mutual--it must be equal also.... Each ought to concede to the other

as much as he demands from that other.... There can be no hope that

either will yield more than it gets in return."

The proposal that white population and taxation "mixed" with Federal

numbers in "equal proportions" shall "form the basis of Representation

in both Houses," is equal and just. "All feel it to be equal." Yet the

conservatives now go still further--they are willing to place the House

on the white basis and apply the mixed basis to the Senate only. Why

refuse this adjustment? Plainly it will work well for everybody: "If the

Senate would protect the East, will it not protect the West also?"

Marshall's satisfaction was "inexpressible" when he heard from both

sides the language of conciliation. "I hailed these auspicious

appearances with as much joy, as the inhabitant of the polar regions

hails the re-appearance of the sun after his long absence of six tedious

months. Can these appearances prove fallacious? Is it a meteor we have

seen and mistaken for that splendid luminary which dispenses light and

gladness throughout creation? It must be so, if we cannot meet on equal

ground. If we cannot meet on the line that divides us equally, then take

the hand of friendship, and make an equal compromise; it is vain to hope

that any compromise can be made."[1359]

The basis of representation does not appear in the constitution, the

number of Senators and Representatives being arbitrarily fixed by

districts and counties; but this plan, in reality, gave the slaveholding

sections almost the same preponderance over the comparatively

non-slaveholding sections as would have resulted from the enumeration of

three fifths of all slaves in addition to all whites.[1360]

While the freehold principle was abandoned, as Marshall foresaw that it

would be, the principle of property qualification as against manhood

suffrage was triumphant.[1361] With a majority against them, the

conservatives won by better management, assisted by the personal

influence of the Chief Justice, to which, on most phases of the

struggle, was added that of Madison and Giles.

Nearly a century has passed since these happenings, and Marshall's

attitude now appears to have been that of cold reaction; but he was as

honest as he was outspoken in his resistance to democratic reforms. He

wanted good government, safe government. He was not in the least

concerned in the rule of the people as such. Indeed, he believed that

the more they directly controlled public affairs the worse the business

of government would be conducted.

He feared that sheer majorities would be unjust, intolerant, tyrannical;

and he was certain that they would be untrustworthy and freakishly

changeable. These convictions would surely have dictated his course in

the Virginia Constitutional Convention of 1829-30, had no other

considerations influenced him.

But, in addition to his long settled and ever-petrifying conservative

views, we must also take into account the conditions and public temper

existing in Virginia ninety years ago. Had the convention reached any

other conclusion than that to which Marshall gently guided it, it is

certain that the State would have been torn by dissension, and it is not

improbable that there would have been bloodshed. All things considered,

it seems unsafe to affirm that Marshall's course was not the wisest for

that immediate period and for that particular State.

Displaying no vision, no aspiration, no devotion to human rights, he

merely acted the uninspiring but necessary part of the practical

statesman dealing with an existing and a very grave situation. If

Jefferson could be so frightened in 1816 that he forbade the public

circulation of his perfectly sound views on the wretched Virginia

Constitution of 1776,[1362] can it be wondered at that the conservative

Marshall in 1830 wished to compose the antagonisms of the warring

factions?

The fact that the Nation was then facing the possibility of

dissolution[1363] must also be taken into account. That circumstance,

indeed, influenced Marshall even more than did his profound

conservatism. There can be little doubt that, had either the radicals or

the conservatives achieved an outright victory, one part of Virginia

would have separated from the other and the growing sentiment for

disunion would have received a powerful impulse.

Hurrying from Richmond to Washington when the convention adjourned,

Marshall listened to the argument of Craig _vs._ Missouri; and then

delivered one of the strongest opinions he ever wrote--the only one of

his Constitutional expositions to be entirely repudiated by the Supreme

Court after his death. The case grew out of the financial conditions

described in the fourth chapter of this volume.

When Missouri became a State in 1821, her people found themselves in

desperate case. There was no money. Banks had suspended, and specie had

been drained to the Eastern commercial centers. The simplest business

transactions were difficult, almost impossible. Even taxes could not be

paid. The Legislature, therefore, established loan offices where

citizens, by giving promissory notes, secured by mortgage or pledge of

personal property, could purchase loan certificates issued by the State.

These certificates were receivable for taxes and other public debts and

for salt from the State salt mines. The faith and resources of Missouri

were pledged for the redemption of the certificates which were

negotiable and issued in denominations not exceeding ten dollars or less

than fifty cents. In effect and in intention, the State thus created a

local circulating medium of exchange.

On August 1, 1822, Hiram Craig and two others gave their promissory

notes for $199.99 in payment for loan certificates. On maturity of these

notes the borrowers refused to pay, and the State sued them; judgment

against them was rendered in the trial court and this judgment was

affirmed by the Supreme Court of Missouri. The case was taken, by writ

of error, to the Supreme Court of the United States, where the sole

question to be decided was the constitutionality of the Missouri loan

office statutes.

Marshall's associates were now Johnson, Duval, Story, Thompson, McLean,

and Baldwin; the last two recently appointed by Jackson. It was becoming

apparent that the court was growing restive under the rigid practice of

the austere theory of government and business which the Chief Justice

had maintained for nearly a generation. This tendency was shown in this

case by the stand taken by three of the Associate Justices. Marshall was

in his seventy-sixth year, but never did his genius shine more

resplendently than in his announcement of the opinion of the Supreme

Court in Craig _vs._ Missouri.[1364]

He held that the Missouri loan certificates were bills of credit, which

the National Constitution prohibited any State to issue. "What is a bill

of credit?" It is "any instrument by which a state engages to pay money

at a future day; thus including a certificate given for money

borrowed.... To 'emit bills of credit' conveys to the mind the idea of

issuing paper intended to circulate through the community, for its

ordinary purposes, as money, which paper is redeemable at a future

day."[1365] The Chief Justice goes into the history of the paper money

evil that caused the framers of the Constitution to forbid the States

to "emit bills of credit."

Such currency always fluctuates. "Its value is continually changing; and

these changes, often great and sudden, expose individuals to immense

loss, are the sources of ruinous speculations, and destroy all

confidence between man and man." To "cut up this mischief by the

roots ... the people declared, in their Constitution, that no state

should emit bills of credit. If the prohibition means anything, if the

words are not empty sounds, it must comprehend the emission of any paper

medium by a state government, for the purpose of common

circulation."[1366]

Incontestably the Missouri loan certificates are just such bills of

credit. Indeed, the State law itself "speaks of them in this character."

That the statute calls them certificates instead of bills of credit does

not change the fact. How absurd to claim that the Constitution "meant to

prohibit names and not things! That a very important act, big with great

and ruinous mischief, which is expressly forbidden ... may be performed

by the substitution of a name." The Constitution is not to be evaded "by

giving a new name to an old thing."[1367]

It is nonsense to say that these particular bills of credit are lawful

because they are not made legal tender, since a separate provision

applies to legal tender. The issue of legal tender currency, and also

bills of credit, is equally and separately forbidden: "To sustain the

one because it is not also the other; to say that bills of credit may be

emitted if they be not made a tender in payment of debts; is ... to

expunge that distinct, independent prohibition."[1368]

In a well-nigh perfect historical summary, Marshall reviews experiments

before and during the Revolution in bills of credit that were made legal

tender, and in others that were not--all "productive of the same

effects," all equally ruinous in results.[1369] The Missouri law

authorizing the loan certificates, for which Craig gave his promissory

note, is "against the highest law of the land, and ... the note itself

is utterly void."[1370]

The Chief Justice closes with a brief paragraph splendid in its simple

dignity and power. In his argument for Missouri, Senator Thomas H.

Benton had used violent language of the kind frequently employed by the

champions of State Rights: "If ... the character of a sovereign State

shall be impugned," he cried, "contests about civil rights would be

settled amid the din of arms, rather than in these halls of national

justice."[1371]

To this outburst Marshall replies: The court has been told of "the

dangers which may result from" offending a sovereign State. If obedience

to the Constitution and laws of the Nation "shall be calculated to bring

on those dangers ... or if it shall be indispensable to the preservation

of the union, and consequently of the independence and liberty of these

states; these are considerations which address themselves to those

departments which may with perfect propriety be influenced by them. This

department can listen only to the mandates of law; and can tread only

that path which is marked out by duty."[1372]

In this noble passage Marshall is not only rebuking Benton; he is also

speaking to the advocates of Nullification, then becoming clamorous and

threatening; he is pointing out to Andrew Jackson the path of

duty.[1373]

Justices Johnson, Thompson, and McLean afterwards filed dissenting

opinions, thus beginning the departure, within the Supreme Court, from

the stern Constitutional Nationalism of Marshall. This breach in the

court deeply troubled the Chief Justice during the remaining four years

of his life.

Johnson thought "that these certificates are of a truly amphibious

character." The Missouri law "does indeed approach as near to a

violation of the Constitution as it can well go without violating its

prohibition, but it is in the exercise of an unquestionable right,

although in rather a questionable form." So, on the whole, Johnson

concluded that the Supreme Court had better hold the statute

valid.[1374]

"The right of a State to borrow money cannot be questioned," said

Thompson; that is all the Missouri scheme amounts to. If these loan

certificates are bills of credit, so are "all bank notes, issued either

by the States, or under their authority."[1375] Justice McLean pointed

out that Craig's case was only one of many of the same kind. "The solemn

act of a State ... cannot be set aside ... under a doubtful construction

of the Constitution.[1376]... It would be as gross usurpation on the

part of the federal government to interfere with State rights by an

exercise of powers not delegated, as it would be for a State to

interpose its authority against a law of the Union."[1377]

In Congress attacks upon Marshall and the Supreme Court now were

renewed--but they grew continuously feebler. At the first session after

the decision of the Missouri loan certificate case, a bill was

introduced to repeal the provision of the Judiciary Act upon which the

National powers of the Supreme Court so largely depended. "If the

twenty-fifth section is repealed, the Constitution is practically gone,"

declared Story. "Our wisest friends look with great gloom to the

future."[1378]

Marshall was equally despondent, but his political vision was clearer.

When he read the dissenting opinions of Johnson, Thompson, and McLean,

he wrote Story: "It requires no prophet to predict that the 25th section

[of the Judiciary Act] is to be repealed, or to use a more fashionable

phrase to be nullified by the Supreme Court of the United States."[1379]

He realized clearly that the great tribunal, the power and dignity of

which he had done so much to create, would soon be brought under the

control of those who, for some years at least, would reject that broad

and vigorous Nationalism which he had steadily and effectively asserted

during almost a third of a century. One more vacancy on the Supreme

Bench and a single new appointment by Jackson would give the court to

the opponents of Marshall's views. Before he died, the Chief Justice was

to behold two such vacancies.[1380]

On January 24, 1831, William R. Davis of South Carolina presented the

majority report of the Judiciary Committee favoring the repeal of that

section of the Judiciary Act under which the Supreme Court had

demolished State laws and annihilated the decisions of State

courts.[1381] James Buchanan presented the minority report.[1382] A few

minutes' preliminary discussion revealed the deep feeling on both sides.

Philip Doddridge of Virginia declared that the bill was of "as much

importance as if it were a proposition to repeal the Union of these

States." William W. Ellsworth of Connecticut avowed that it was of

"overwhelming magnitude."[1383]

Thereupon the subject was furiously debated. Thomas H. Crawford of

Pennsylvania considered Section 25 of the Judiciary Act, to be as

"sacred" as the Constitution itself.[1384] Henry Daniel of Kentucky

asserted that the Supreme Court "stops at nothing to obtain power." Let

the "States ... prepare for the worst, and protect themselves against

the assaults of this gigantic tribunal."[1385]

William Fitzhugh Gordon of Virginia, recently elected, but already a

member of the Judiciary Committee, stoutly defended the report of the

majority: "When a committee of the House had given to a subject the

calmest and maturest investigation, and a motion is made to print their

report, a gentleman gets up, and, in a tone of alarm, denounces the

proposition as tantamount to a motion to repeal the Union." Gordon

repudiated the very thought of dismemberment of the Republic--that

"palladium of our hopes, and of the liberties of mankind."

As to the constitutionality of Section 25 of the Judiciary Act--"could

it be new, especially to a Virginia lawyer"? when the Virginia

Judiciary, with Roane at its head, had solemnly proclaimed the

illegality of that section. And had not Georgia ordered her Governor to

resist the enforcement of that provision of that ancient act of

Congress? "I declare to God ... that I believe nothing would tend so

much to compose the present agitation of the country ... as the repeal

of that portion of the judiciary act." Gordon was about to discuss the

nefarious case of Cohens _vs._ Virginia when his emotions overcame

him--"he did not wish ... to go into the merits of the question."[1386]

Thomas F. Foster of Georgia said that the Judiciary Committee had

reported under a "galling fire from the press"; quoted Marshall's

unfortunate language in the Convention of 1788;[1387] and insisted that

the "vast and alarming" powers of the Supreme Court must be

bridled.[1388]

But the friends of the court overwhelmed the supporters of the bill,

which was rejected by a vote of 138 to 51.[1389] It was ominous,

however, that the South stood almost solid against the court and

Nationalism.

FOOTNOTES:

[1269] Marshall to his wife, March 12, 1826, MS.

[1270] Nevertheless he watched the course of politics closely. For

instance: immediately after the House had elected John Quincy Adams to

the Presidency, Marshall writes his brother a letter full of political

gossip. He is surprised that Adams was chosen on the first ballot; many

think Kremer's letter attacking Clay caused this unexpectedly quick

decision, since it "was & is thought a sheer calumny; & the resentment

of Clay's friends probably determined some of the western members who

were hesitating. It is supposed to have had some influence elsewhere.

The vote of New York was not decided five minutes before the ballots

were taken."

Marshall tells his brother about Cabinet rumors--Crawford has refused

the Treasury and Clay has been offered the office of Secretary of State.

"It is meer [_sic_] common rumor" that Clay will accept. "Mr. Adams will

undoubtedly wish to strengthen himself in the west," and Clay is strong

in that section unless Kremer's letter has weakened him. The Chief

Justice at first thought it had, but "on reflection" doubts whether it

will "make any difference." (Marshall to his brother, Feb. 14, 1825,

MS.) Marshall here refers to the letter of George Kremer, a

Representative in Congress from Pennsylvania. Kremer wrote an anonymous

letter to the _Columbian Observer_ in which he asserted that Clay had

agreed to deliver votes to Adams as the price of Clay's appointment to

the office of Secretary of State. After much bluster, Kremer admitted

that he had no evidence whatever to support his charge; yet his

accusation permanently besmirched Clay's reputation. (For an account of

the Kremer incident see Sargent, I, 67-74, 123-24.)

Out of the Kremer letter grew a distrust of Clay which he never really

lived down. Some time later, John Randolph seized an opportunity to call

the relation between President Adams and his Secretary of State "the

coalition of Blifil and Black George--the combination, unheard of till

then, of the Puritan with the blackleg." The bloodless, but not the less

real duel, that followed, ended this quarrel, though the unjust charges

never quite died out. (Schurz: _Henry Clay_, I, 273-74.)

[1271] Baltimore _Marylander_, March 22, 1828.

[1272] _Enquirer_, April 4, 1828.

[1273] Meaning Jackson. Clay to Marshall, April 8, 1828, MS.

[1274] Marshall to Story, May 1, 1828, _Proceedings, Mass. Hist. Soc._

2d Series, XIV, 336-37.

[1275] See chap. I of this volume.

[1276] Thomas, whose wife died Feb. 2, 1829. (Paxton, 92.)

[1277] Marshall to his wife, March 5 [1829], MS.

[1278] Same to same, Feb. 1, 1829, MS.

[1279] Jacquelin B. Harvie, who married Marshall's daughter, Mary.

[1280] Marshall to his wife, March 5 [1829], MS.

[1281] Marshall to Story, June 11, 1829, _Proceedings, Mass. Hist. Soc._

2d Series, XIV, 338-39.

[1282] See vol. I, 216-17, of this work.

[1283] Jefferson to Kercheval, July 12, 1816, _Works_: Ford, XII, 3-15.

[1284] Same to same, Oct. 8, 1816, _ib._ footnote to 17.

[1285] At the time of the convention the eastern part of the State paid,

on the average, more than three times as much in taxes per acre as the

west. The extremes were startling--the trans-Alleghany section (West

Virginia) paid only 92 cents for every $8.43 paid by the Tidewater.

(_Proceedings and Debates of the Virginia State Convention of 1829-30_,

214, 258, 660-61.)

[1286] Marshall to Story, July 3, 1829, _Proceedings, Mass. Hist. Soc._

2d Series, XIV, 340-41.

[1287] Pickering to Marshall, Dec. 26, 1828, Pickering MSS. Mass. Hist.

Soc.; see also Story, I, 386-96.

[1288] Marshall to Mercer, April 7, 1827, Chamberlain MSS. Boston Pub.

Lib.

[1289] Lincoln to Greeley, Aug. 22, 1862, _Complete Works of Abraham

Lincoln_: Nicolay and Hay, II, 227-28.

[1290] Marshall to Pickering, March 20, 1826, _Proceedings, Mass. Hist.

Soc._ 2d Series, XIV, 321.

[1291] _Fifteenth Annual Report, Proceedings, American Colonization

Society._ The abolitionists, later, mercilessly attacked the

Colonization Society. (See Wilson: _Rise of the Slave Power_, I, 208 _et

seq._)

[1292] _Fourteenth Annual Report, Proceedings, American Colonization

Society._

[1293] His wife's illness. She died soon afterwards. See _infra_,

524-25.

[1294] Marshall to Gurley, Dec. 14, 1831, _Fifteenth Annual Report,

Proceedings, American Colonization Society_, pp. vi-viii.

In a letter even less emotional than Marshall's, Madison favored the

same plan. (_Ib._ pp. v, vi.) Lafayette, with his unfailing floridity,

says that he is "proud ... of the honor of being one of the Vice

Presidents of the Society," and that "the progressing state of our

Liberia establishment is ... a source of enjoyment, and the most lively

interest" to him. (_Ib._ p. v.)

At the time of his death, Marshall was President of the Virginia branch

of the Society, and his ancient enemy, John Tyler, who succeeded him in

that office, paid a remarkable tribute to the goodness and greatness of

the man he had so long opposed. (Tyler: _Tyler_, I, 567-68.)

[1295] 10 Wheaton, 114.

[1296] _Ib._ 115. Marshall delivered this opinion March 15, 1825.

[1297] _Ib._ 114.

[1298] _Ib._ 118-19.

[1299] _Ib._ 122-23.

[1300] 2 Peters, 150-56.

[1301] Marshall to Greenhow, Oct. 17, 1809, MSS. "Judges and Eminent

Lawyers," Mass. Hist. Soc.

[1302] See _supra_, 209-18, of this volume.

[1303] 12 Wheaton, 214 _et seq._ John Saunders, a citizen of Kentucky,

sued George M. Ogden, a citizen of Louisiana, on bills of exchange which

Ogden, then a citizen of New York, had accepted in 1806, but which were

protested for non-payment. The defendant pleaded a discharge granted by

a New York court under the insolvent law of that State enacted in 1801.

(_Ib._) On the manuscript records of the Supreme Court, Saunders is

spelled _Sanders_. After the case was filed, the death of Ogden was

suggested, and his executors, Charles Harrod and Francis B. Ogden, were

substituted.

[1304] Washington, Johnson, Thompson, and Trimble each delivered long

opinions supporting this view. (12 Wheaton, 254-331, 358-369.)

[1305] _Ib._ 334.

[1306] _Ib._ 335.

[1307] _Ib._ 337.

[1308] _Ib._ 356.

[1309] _Ib._ 357.

[1310] Story and Duval concurred with Marshall.

[1311] 12 Wheaton, 65-90.

[1312] Webster to Biddle, Feb. 20, 1827, _Writings and Speeches of

Webster_: (Nat. ed.) XVI, 140.

[1313] 12 Wheaton, 90-116.

[1314] Grigsby: _Virginia Convention of 1829-30_; and see Ambler:

_Sectionalism in Virginia_, 145. Chapter V of Professor Ambler's book is

devoted exclusively to the convention. Also see preface to _Debates Va.

Conv._ iii; and see Dodd, in _American Journal of Sociology_, XXVI, no.

6, 735 _et seq._; and Anderson, 229-36.

[1315] _Debates, Va. Conv._ 23.

[1316] _Ib._ 25.

[1317] _Ib._ 25-31.

[1318] Statement of Marshall. (_Ib._ 872.)

[1319] _Debates, Va. Conv._ 33.

[1320] See _supra_, 146, 147.

[1321] See Giles's speech, _Debates, Va. Conv._ 604-05.

[1322] See Ambler: _Sectionalism in Virginia_, 139.

[1323] See vol. II, 62-69, of this work.

[1324] Serious abuses sprang up, however. In the convention, William

Naylor of Hampshire County charged that the office of sheriff was sold

to the highest bidder, sometimes at public auction. (_Debates, Va.

Conv._ 486; and see Anderson, 229.)

[1325] See Marshall's defense of the County Court system, _infra_, 491.

[1326] See vol. I, 302, of this work.

[1327] For example, Thomas R. Joynes of Accomack County, who earnestly

opposed Marshall in the Judiciary debate, said that no man felt "more

respect" than he for Marshall's opinions which are justly esteemed "not

only in this Convention, but throughout the United States." (_Debates,

Va. Conv._ 505.) Randolph spoke of "the very great weight" which

Marshall had in the convention, in Virginia, and throughout the Nation.

(_Ib._ 500.) Thomas M. Bayly of Accomack County, while utterly

disagreeing with the Chief Justice on the County Court system, declared

that Marshall, "as a lawyer and Judge, is without a rival." (_Ib._ 510.)

Richard H. Henderson of Loudoun County called the Chief Justice his

"political father" whose lessons he delighted to follow, and upon whose

"wisdom, ... virtue, ... prudence" he implicitly relied. (Henderson's

statement as repeated by Benjamin W. Leigh, _ib._ 544.) Charles F.

Mercer of the same county "expressed toward Judge Marshall a filial

respect and veneration not surpassed by the ties which had bound him to

a natural parent." (_Ib._ 563.) Such are examples of the expressions

toward Marshall throughout the prolonged sessions of the convention.

[1328] See vol. III, chap, II, of this work.

[1329] _Debates, Va. Conv._ 871-72.

[1330] _Ib._ 872-74.

[1331] _Debates, Va. Conv._ 873.

[1332] See _infra_, 493-501.

[1333] Accordingly the following provision was inserted into the

Constitution: "No law abolishing any court shall be construed to deprive

a Judge thereof of his office, unless two-thirds of the members of each

House present concur in the passing thereof; but the Legislature may

assign other Judicial duties to the Judges of courts abolished by any

law enacted by less than two-thirds of the members of each House

present." (Article V, Section 2, Constitution of Virginia, 1830.)

[1334] _Debates, Va. Conv._ 505.

[1335] _Debates, Va. Conv._ 509.

[1336] _Ib._ 524, 530, 531, 533, 534.

[1337] _Ib._ 604-05.

[1338] _Ib._ 605. The provision as it finally appeared in the

constitution was that these "appointments shall be made by the Governor,

on the recommendation of the respective County Courts." (Article V,

Section 7, Constitution of Virginia, 1830.)

[1339] _Debates, Va. Conv._ 615-17.

[1340] See vol. III, chap. II, of this work.

[1341] _Debates, Va. Conv._ 619.

[1342] _Ib._ 618-19.

[1343] _Ib._ 726.

[1344] See vol. III, chap. II, of this work.

[1345] _Debates, Va. Conv._ 731.

[1346] _Debates, Va. Conv._ 726-27.

[1347] _Debates, Va. Conv._ 727-29.

[1348] _Debates, Va. Conv._ 729-30.

[1349] See especially the speech of Benjamin Watkins Leigh, _ib._

733-37.

[1350] See _ib._ for ayes and noes, 740, 741, 742, 744, 748.

[1351] _Ib._ 764.

[1352] _Debates, Va. Conv._ 767.

[1353] _Ib._ 880.

[1354] Compare Marshall's report (_ib._ 33) with Article V of the

constitution (_ib._ 901-02; and see _supra_, 491, note 2.)

[1355] Contrast Marshall's resolutions (_Debates, Va. Conv._ 39-40),

which expressed the conservative stand, with those of William H.

Fitzhugh of Fairfax County (_ib._ 41-42), of Samuel Clayton of Campbell

County (_ib._ 42), of Charles S. Morgan of Monongalia (_ib._ 43-44), and

of Alexander Campbell of Brooke County (_ib._ 45-46), which state the

views of the radicals.

[1356] See, for instance, the speech of John R. Cooke of Frederick

County for the radicals (_Debates, Va. Conv._ 54-65), of Abel P. Upshur

of Northampton for the conservatives (_ib._ 65-79), of Philip Doddridge

of Brooke County for the radicals (_ib._ 79-89), of Philip P. Barbour of

Orange County for the conservatives (_ib._ 90-98), and especially the

speeches of Benjamin Watkins Leigh for the conservatives (_ib._ 151-74,

544-48). Indeed, the student cannot well afford to omit any one of the

addresses in this remarkable contest.

[1357] It is at this point that we see the reason for Jefferson's alarm

thirteen years before the convention was called. (_See supra_, 469.)

[1358] _Debates, Va. Conv._ 497-500.

[1359] _Debates, Va. Conv._ 561-62.

[1360] Constitution of Virginia, 1830, Article III, Sections 1 and 2.

[1361] _Ib._ Article III, Section 14.

[1362] See _supra_, 469.

[1363] See next chapter.

[1364] March 12, 1830.

[1365] 4 Peters, 432.

[1366] 4 Peters, 432.

[1367] _Ib._ 433.

[1368] _Ib._ 434.

[1369] 4 Peters, 434-36.

[1370] _Ib._ 437.

[1371] _Ib._ 420.

[1372] _Ib._ 438.

[1373] See 552-58.

[1374] 4 Peters, 438-44.

[1375] _Ib._ 445-50.

[1376] _Ib._ 458.

[1377] 4 Peters, 464.

[1378] Story to Ticknor, Jan. 22, 1831, Story, II, 49. Nevertheless

Story did not despair. "It is now whispered, that the demonstrations of

public opinion are so strong, that the majority [of the Judiciary

Committee] will conclude not to present their report." (_Ib._)

[1379] Marshall to Story, Oct. 15, 1830, _Proceedings, Mass. Hist. Soc._

2d Series, XIV, 342.

[1380] See _infra_, 584.

[1381] _Debates_, 21st Cong. 2d Sess. 532.

[1382] _Ib._ 535.

[1383] _Ib._ 534.

[1384] _Ib._ 659.

[1385] _Ib._ 665.

[1386] _Debates_, 21st Cong. 2d Sess. 620-21.

[1387] _Ib._ 731, 748; and see vol. I, 454-55, of this work.

[1388] _Debates_, 21st Cong. 2d Sess. 739.

[1389] _Debates_, 21st Cong. 2d Sess. 542.

This was the last formal attempt, but one, made in Congress during

Marshall's lifetime, to impair the efficiency of National courts. The

final attack was made by Joseph Lecompte, a Representative from

Kentucky, who on January 27, 1832, offered a resolution instructing the

Judiciary Committee to "inquire into the expediency of amending the

constitution ... so that the judges of the Supreme Court, and of the

inferior courts, shall hold their offices for a limited term of years."

On February 24, the House, by a vote of 141 to 27, refused to consider

Lecompte's resolution, ignoring his plea to be allowed to explain it.

(_Debates_, 22d Cong. 1st Sess. 1856-57.) So summary and brusque--almost

contemptuous--was the rejection of Lecompte's proposal, as almost to

suggest that personal feeling was an element in the action taken by the

House.

CHAPTER X

THE FINAL CONFLICT

Liberty and Union, now and forever, one and inseparable. (Daniel

Webster.)

Fellow citizens, the die is now cast. Prepare for the crisis and

meet it as becomes men and freemen. (South Carolina Ordinance of

Nullification.)

The Union has been prolonged thus far by miracles. I fear they

cannot continue. (Marshall.)

It is time to be old,

To take in sail. (Emerson.)

The last years of Marshall's life were clouded with sadness, almost

despair. His health failed; his wife died; the Supreme Court was

successfully defied; his greatest opinion was repudiated and denounced

by a strong and popular President; his associates on the Bench were

departing from some of his most cherished views; and the trend of public

events convinced him that his labor to construct an enduring nation, to

create institutions of orderly freedom, to introduce stability and

system into democracy, had been in vain.

Yet, even in this unhappy period, there were hours of triumph for John

Marshall. He heard his doctrine of Nationalism championed by Daniel

Webster, who, in one of the greatest debates of history, used Marshall's

arguments and almost his very words; he beheld the militant assertion of

the same principle by Andrew Jackson, who, in this instance, also

employed Marshall's reasoning and method of statement; and he witnessed

the sudden flowering of public appreciation of his character and

services.

During the spring of 1831, Marshall found himself, for the first time

in his life, suffering from acute pain. His Richmond physician could

give him no relief; and he became so despondent that he determined to

resign immediately after the ensuing Presidential election, in case

Jackson should be defeated, an event which many then thought probable.

In a letter about the house at which the members of the Supreme Court

were to board during the next term, Marshall tells Story of his purpose:

"Being ... a bird of passage, whose continuance with you cannot be long,

I did not chuse to permit my convenience or my wishes to weigh a feather

in the permanent arrangements.... But in addition, I felt serious

doubts, although I did not mention them, whether I should be with you at

the next term.

"What I am about to say is, of course, in perfect confidence which I

would not breathe to any other person whatever. I had unaccountably

calculated on the election of P[residen]t taking place next fall, and

had determined to make my continuance in office another year dependent

on that event.

"You know how much importance I attach to the character of the person

who is to succeed me, and calculate the influence which probabilities on

that subject would have on my continuance in office. This, however, is a

matter of great delicacy on which I cannot and do not speak.

"My erroneous calculation of the time of the election was corrected as

soon as the pressure of official duty was removed from my mind, and I

had nearly decided on my course, but recent events produce such real

uncertainty respecting the future as to create doubts whether I ought

not to await the same chances in the fall of 32 which I had intended to

await in the fall of 31."[1390]

Marshall steadily became worse, and in September he went to Philadelphia

to consult the celebrated physician and surgeon, Dr. Philip Syng

Physick, who at once perceived that the Chief Justice was suffering from

stone in the bladder. His affliction could be relieved only by the

painful and delicate operation of lithotomy, which Dr. Physick had

introduced in America. From his sick-room Marshall writes Story of his

condition during the previous five months, and adds that he looks "with

impatience for the operation."[1391] He is still concerned about the

court's boarding-place and again refers to his intention of leaving the

Bench: "In the course of the summer ... I found myself unequal to the

effective consideration of any subject, and had determined to resign at

the close of the year. This determination, however, I kept to myself,

being determined to remain master of my own conduct." Story had answered

Marshall's letter of June 26, evidently protesting against the thought

of the Chief Justice giving up his office.

Marshall replies: "On the most interesting part of your letter I have

felt, and still feel, great difficulty. You understand my general

sentiments on that subject as well as I do myself. I am most earnestly

attached to the character of the department, and to the wishes and

convenience of those with whom it has been my pride and my happiness to

be associated for so many years. I cannot be insensible to the gloom

which lours over us. I have a repugnance to abandoning you under such

circumstances which is almost invincible. But the solemn convictions of

my judgement sustained by some pride of character admonish me not to

hazard the disgrace of continuing in office a mere inefficient

pageant."[1392]

Had Adams been reëlected in 1828, there can be no doubt that Marshall

would have resigned during that Administration; and it is equally

certain that, if Jackson had been defeated in 1832, the Chief Justice

would have retired immediately. The Democratic success in the election

of that year determined him to hold on in an effort to keep the Supreme

Court, as long as possible, unsubmerged by the rising tide of radical

Localism. Perhaps he also clung to a desperate hope that, during his

lifetime, a political reaction would occur and a conservative President

be chosen who could appoint his successor.

When Marshall arrived at Philadelphia, the bar of that city wished to

give him a dinner, and, by way of invitation, adopted remarkable

resolutions expressing their grateful praise and affectionate

admiration. The afflicted Chief Justice, deeply touched, declined in a

letter of singular grace and dignity: "It is impossible for me ... to do

justice to the feelings with which I receive your very flattering

address; ... to have performed the official duties assigned to me by my

country in such a manner as to acquire the approbation of" the

Philadelphia bar, "affords me the highest gratification of which I am

capable, and is more than an ample reward for the labor which those

duties impose." Marshall's greatest satisfaction, he says, is that he

and his associates on the Supreme Bench "have never sought to enlarge

the judicial power beyond its proper bounds, nor feared to carry it to

the fullest extent that duty required."[1393] The members of the bar

then begged the Chief Justice to receive them "in a body" at "the United

States Courtroom"; and also to "permit his portrait to be taken" by "an

eminent artist of this city."[1394]

With anxiety, but calmness and even good humor, Marshall awaited the

operation. Just before he went to the surgeon's table, Dr. Jacob

Randolph, who assisted Dr. Physick, found Marshall eating a hearty

breakfast. Notwithstanding the pain he suffered, the Chief Justice

laughingly explained that, since it might be the last meal he ever would

enjoy, he had determined to make the most of it. He understood that the

chances of surviving the operation were against him, but he was eager to

take them, since he would rather die than continue to suffer the agony

he had been enduring.

While the long and excruciating operation went on, by which more than a

thousand calculi were removed, Marshall was placid, "scarcely uttering

a murmur throughout the whole procedure." The physicians ascribed his

recovery "in a great degree ... to his extraordinary self possession,

and to the calm and philosophical views which he took of his

case."[1395]

Marshall writes Story about his experience and the results of the

treatment, saying that he must take medicine "continually to prevent new

formations," and adding, with humorous melancholy, that he "must submit

too to a severe and most unsociable regimen." He cautions Story to care

for his own health, which Judge Peters had told him was bad. "Without

your vigorous and powerful co-operation I should be in despair, and

think the 'ship must be given up.'"[1396]

On learning of his improved condition, Story writes Peters from

Cambridge: "This seems to me a special interposition of Providence in

favor of the Constitution.... He is beloved and reverenced here beyond

all measure, though not beyond his merits. Next to Washington he stands

the idol of all good men."[1397]

While on this distressing visit to Philadelphia, Marshall writes his

wife two letters--the last letters to her of which any originals or

copies can be found. "I anticipate with a pleasure which I know you will

share the time when I may sit by your side by our tranquil fire side &

enjoy the happiness of your society without inflicting on you the pain

of witnessing my suffering.... I am treated with the most flattering

attentions in Philadelphia. They give me pain, the more pain as the

necessity of declining many of them may be ascribed to a want of

sensibility."[1398]

His recovery assured, Marshall again writes his wife: "I have at length

risen from my bed and am able to hold a pen. The most delightful use I

can make of it is to tell you that I am getting well ... from the

painful disease with which I have been so long affected.... Nothing

delights me so much as to hear from my friends and especially from you.

How much was I gratified at the line from your own hand in Mary's

letter.[1399]... I am much obliged by your offer to lend me money.[1400]

I hope I shall not need it but can not as yet speak positively as my

stay has been longer and my expenses greater than I had anticipated on

leaving home. Should I use any part of it, you may be assured it will be

replaced on my return. But this is a subject on which I know you feel no

solicitude.... God bless you my dearest Polly love to all our friends.

Ever your most affectionate J. Marshall."[1401]

On December 25, 1831, his "dearest Polly" died. The previous day, she

hung about his neck a locket containing a wisp of her hair. For the

remainder of his life he wore this memento, never parting with it night

or day.[1402] Her weakness, physical and mental, which prevailed

throughout practically the whole of their married life, inspired in

Marshall a chivalric adoration. On the morning of the first anniversary

of her death, Story chanced to go into Marshall's room and "found him in

tears. He had just finished writing out for me some lines of General

Burgoyne, of which he spoke to me last evening as eminently beautiful

and affecting.... I saw at once that he had been shedding tears over the

memory of his own wife, and he has said to me several times during the

term, that the moment he relaxes from business he feels exceedingly

depressed, and rarely goes through a night without weeping over his

departed wife.... I think he is the most extraordinary man I ever saw,

for the depth and tenderness of his feelings."[1403]

But Marshall had also written something which he did not show even to

Story--a tribute to his wife:

"This day of joy and festivity to the whole Christian world is, to my

sad heart, the anniversary of the keenest affliction which humanity can

sustain. While all around is gladness, my mind dwells on the silent

tomb, and cherishes the remembrance of the beloved object which it

contains.

"On the 25th of December, 1831, it was the will of Heaven to take to

itself the companion who had sweetened the choicest part of my life, had

rendered toil a pleasure, had partaken of all my feelings, and was

enthroned in the inmost recess of my heart. Never can I cease to feel

the loss and to deplore it. Grief for her is too sacred ever to be

profaned on this day, which shall be, during my existence, marked by a

recollection of her virtues.

"On the 3d of January, 1783, I was united by the holiest bonds to the

woman I adored. From the moment of our union to that of our separation,

I never ceased to thank Heaven for this its best gift. Not a moment

passed in which I did not consider her as a blessing from which the

chief happiness of my life was derived. This never-dying sentiment,

originating in love, was cherished by a long and close observation of

as amiable and estimable qualities as ever adorned the female bosom. To

a person which in youth was very attractive, to manners uncommonly

pleasing, she added a fine understanding, and the sweetest temper which

can accompany a just and modest sense of what was due to herself.

"She was educated with a profound reverence for religion, which she

preserved to her last moments. This sentiment, among her earliest and

deepest impressions, gave a colouring to her whole life. Hers was the

religion taught by the Saviour of man. She was a firm believer in the

faith inculcated by the Church (Episcopal) in which she was bred.

"I have lost her, and with her have lost the solace of my life! Yet she

remains still the companion of my retired hours, still occupies my

inmost bosom. When alone and unemployed, my mind still recurs to her.

More than a thousand times since the 25th of December, 1831, have I

repeated to myself the beautiful lines written by General Burgoyne,

under a similar affliction, substituting 'Mary' for 'Anna':

"'Encompass'd in an angel's frame,

An angel's virtues lay:

Too soon did Heaven assert its claim

And take its own away!

My Mary's worth, my Mary's charms,

Can never more return!

What now shall fill these widow'd arms?

Ah, me! my Mary's urn!

Ah, me! ah, me! my Mary's urn!'"[1404]

After his wife's death, Marshall arranged to live at "Leeds Manor,"

Fauquier County, a large house on part of the Fairfax estate which he

had given to his son, James Keith Marshall. A room, with very thick

walls to keep out the noise of his son's many children, was built for

him, adjoining the main dwelling. Here he brought his library, papers,

and many personal belongings. His other sons and their families lived

not far away; "Leeds Manor" was in the heart of the country where he had

grown to early manhood; and there he expected to spend his few remaining

years.[1405] He could not, however, tear himself from his Richmond home,

where he continued to live most of the time until his death.[1406]

When fully recovered from his operation, Marshall seemed to acquire

fresh strength. He "is in excellent health, never better, and as firm

and robust in mind as in body," Story informs Charles Sumner.[1407]

The Chief Justice was, however, profoundly depressed. The course that

President Jackson was then pursuing--his attitude toward the Supreme

Court in the Georgia controversy,[1408] his arbitrary and violent rule,

his hostility to the second Bank of the United States--alarmed and

distressed Marshall.

[Illustration: "_Leeds Manor_"

_The principal house in the Fairfax purchase and the home of Marshall's

son, James Keith Marshall, where he expected to spend his declining

years._]

The Bank had finally justified the brightest predictions of its friends.

Everywhere in the country its notes were as good as gold, while abroad

they were often above par.[1409] Its stock was owned in every nation and

widely distributed in America.[1410] Up to the time when Jackson began

his warfare upon the Bank, the financial management of Nicholas Biddle

had been as brilliant as it was sound.[1411]

But popular hostility to the Bank had never ceased. In addition to the

old animosity toward any central institution of finance, charges were

made that directors of certain branches of the Bank had used their power

to interfere in politics. As implacable as they were unjust were the

assaults made by Democratic politicians upon Jeremiah Mason, director of

the branch at Portsmouth, New Hampshire. Had the Bank consented to

Mason's removal, it is possible that Jackson's warfare on it would not

have been prosecuted.[1412]

The Bank's charter was to expire in 1836. In his first annual Message to

Congress the President briefly called attention to the question of

rechartering the institution. The constitutionality of the Bank Act was

doubtful at best, he intimated, and the Bank certainly had not

established a sound and uniform currency.[1413] In his next Message, a

year later, Jackson repeated more strongly his attack upon the

Bank.[1414]

Two years afterwards, on the eve of the Presidential campaign of 1832,

the friends of the Bank in Congress passed, by heavy majorities, a bill

extending the charter for fifteen years after March 3, 1836, the date of

its expiration.[1415] The principal supporters of this measure were Clay

and Webster and, indeed, most of the weighty men in the National

Legislature. But they were enemies of Jackson, and he looked upon the

rechartering of the Bank as a personal affront.

On July 4, 1832, the bill was sent to the President. Six days later he

returned it with his veto. Jackson's veto message was as able as it was

cunning. Parts of it were demagogic appeals to popular passion; but the

heart of it was an attack upon Marshall's opinions in M'Culloch _vs._

Maryland and Osborn _vs._ The Bank.

The Bank is a monopoly, its stockholders and directors a "privileged

order"; worse still, the institution is rapidly passing into the hands

of aliens--"already is almost a third of the stock in foreign hands." If

we must have a bank, let it be "_purely American_." This aristocratic,

monopolistic, un-American concern exists by the authority of an

unconstitutional act of Congress. Even worse is the rechartering act

which he now vetoed.

The decision of the Supreme Court in the Bank cases, settled nothing,

said Jackson. Marshall's opinions were, for the most part, erroneous and

"ought not to control the co-ordinate authorities of this Government.

The Congress, the Executive, and the Court must each for itself be

guided by its own opinion of the Constitution.... It is as much the

duty of the House of Representatives, of the Senate, and of the

President to decide upon the constitutionality of any bill or resolution

which may be presented to them for passage or approval as it is of the

supreme judges when it may be brought before them for judicial decision.

"The opinion of the judges has no more authority over Congress than the

opinion of Congress has over the judges, and on that point the President

is independent of both. The authority of the Supreme Court must not,

therefore, be permitted to control the Congress or the Executive when

acting in their legislative capacities, but to have only such influence

as the force of their reasoning may deserve."[1416]

But, says Jackson, the court did not decide that "all features of this

corporation are compatible with the Constitution." He quotes--and puts

in italics--Marshall's statement that "_where the law is not prohibited

and is really calculated to effect any of the objects intrusted to the

Government, to undertake here to inquire into the degree of its

necessity would be to pass the line which circumscribes the judicial

department and to tread on legislative ground_." This language, insists

Jackson, means that "it is the exclusive province of Congress and the

President to decide whether the particular features of this act are

_necessary_ and _proper_ ... and therefore constitutional, or

_unnecessary_ and _improper_, and therefore unconstitutional."[1417]

Thereupon Jackson points out what he considers to be the defects of the

bill.

Congress has no power to "grant exclusive privileges or monopolies,"

except in the District of Columbia and in the matter of patents and

copyrights. "Every act of Congress, therefore, which attempts, by grants

of monopolies or sale of exclusive privileges for a limited time, or a

time without limit, to restrict or extinguish its own discretion in the

choice of means to execute its delegated powers, is equivalent to a

legislative amendment of the Constitution, and palpably

unconstitutional."[1418] Jackson fiercely attacks Marshall's opinion

that the States cannot tax the National Bank and its branches.

The whole message is able, adroit, and, on its face, plainly intended as

a campaign document.[1419] A shrewd appeal is made to the State banks.

Popular jealousy and suspicion of wealth and power are skillfully played

upon: "The rich and powerful" always use governments for "their selfish

purposes." When laws are passed "to grant titles, gratuities, and

exclusive privileges, to make the rich richer and the potent more

powerful, the humble members of society--the farmers, mechanics, and

laborers--who have neither the time nor the means of securing like

favors to themselves, have a right to complain of the injustice of their

Government.

"There are no necessary evils in government," says Jackson. "Its evils

exist only in its abuses. If it would confine itself to equal

protection, and, as Heaven does its rains, shower its favors alike on

the high and the low, the rich and the poor, it would be an unqualified

blessing"--thus he runs on to his conclusion.[1420]

The masses of the people, particularly those of the South, responded

with wild fervor to the President's assault upon the citadel of the

"money power." John Marshall, the defender of special privilege, had

said that the Bank law was protected by the Constitution; but Andrew

Jackson, the champion of the common people, declared that it was

prohibited by the Constitution. Hats in the air, then, and loud cheers

for the hero who had dared to attack and to overcome this financial

monster as he had fought and beaten the invading British!

Marshall was infinitely disgusted. He informs Story of Virginia's

applause of Jackson's veto: "We are up to the chin in politics. Virginia

was always insane enough to be opposed to the Bank of The United States,

and therefore hurras for the veto. But we are a little doubtful how it

may work in Pennsylvania. It is not difficult to account for the part

New York may take. She has sagacity enough to see her interest in

putting down the present bank. Her mercantile position gives her a

controul, a commanding controul, over the currency and the exchanges of

the country, if there be no Bank of The United States. Going for herself

she may approve this policy; but Virginia ought not to drudge for her

benefit."[1421]

Jackson did not sign the bill for the improvement of rivers and harbors,

passed at the previous session of Congress, because, as he said, he had

not "sufficient time ... to examine it before the adjournment."[1422]

Everybody took the withholding of his signature as a veto.[1423] This

bill included a feasible project for making the Virginia Capital

accessible to seagoing vessels. Even this action of the President was

applauded by Virginians:

"We show our wisdom most strikingly in approving the veto on the harbor

bill also," Marshall writes Story. "That bill contained an appropriation

intended to make Richmond a seaport, which she is not at present, for

large vessels fit to cross the Atlantic. The appropriation was whittled

down in the House of Representatives to almost nothing.... Yet we wished

the appropriation because we were confident that Congress when correctly

informed, would add the necessary sum. This too is vetoed; and for this

too our sagacious politicians are thankful. We seem to think it the

summit of human wisdom, or rather of American patriotism, to preserve

our poverty."[1424]

During the Presidential campaign of 1832, Marshall all but despaired of

the future of the Republic. The autocracy of Jackson's reign; the

popular enthusiasm which greeted his wildest departures from established

usage and orderly government; the state of the public mind, indicated

everywhere by the encouragement of those whom Marshall believed to be

theatrical and adventurous demagogues--all these circumstances perturbed

and saddened him.

And for the time being, his fears were wholly justified. Triumphantly

reëlected, Jackson pursued the Bank relentlessly. Finally he ordered

that the Government funds should no longer be deposited in that hated

institution. Although that desperate act brought disaster on business

throughout the land, it was acclaimed by the multitude. In alarm and

despair, Marshall writes Story: "We [Virginians] are insane on the

subject of the Bank. Its friends, who are not numerous, dare not, a few

excepted, to avow themselves."[1425]

But the sudden increase and aggressiveness of disunion sentiment

oppressed Marshall more heavily than any other public circumstance of

his last years. The immediate occasion for the recrudescence of

Localism was the Tariff. Since the Tariff of 1816 the South had been

discontented with the protection afforded the manufacturers of the North

and East; and had made loud outcry against the protective Tariff of

1824. The Southern people felt that their interests were sacrificed for

the benefit of the manufacturing sections; they believed that all that

they produced had to be sold in a cheap, unprotected market, and all

that they purchased had to be bought in a dear, protected market; they

were convinced that the protective tariff system, and, indeed, the whole

Nationalist policy, meant the ruin of the South.

Moreover, they began to see that the power that could enact a protective

tariff, control commerce, make internal improvements, could also control

slavery--perhaps abolish it.[1426] Certainly that was "the spirit" of

Marshall's construction of the Constitution, they said. "Sir," exclaimed

Robert S. Garnett of Virginia during the debate in the House on the

Tariff of 1824, "we must look very little to consequences if we do not

perceive in the spirit of this construction, combined with the political

fanaticism of the period, reason to anticipate, at no distant day, the

usurpation, on the part of Congress, of the right to legislate upon a

subject which, if you once touch, will inevitably throw this country

into revolution--I mean that of slavery.... Can whole nations be

mistaken? When I speak of nations, I mean Virginia, the Carolinas, and

other great Southern commonwealths."[1427]

John Carter of South Carolina warned the House not to pass a law "which

would, as to this portion of the Union, be registered on our statute

books as a dead letter."[1428] James Hamilton, Jr., of the same State,

afterwards a Nullification Governor, asked: "Is it nothing to weaken the

attachment of one section of this confederacy to the bond of Union?...

Is it nothing to sow the seeds of incurable alienation?"[1429]

The Tariff of 1828 alarmed and angered the Southern people to the point

of frenzy. "The interests of the South have been ... shamefully

sacrificed!" cried Hayne in the Senate. "Her feelings have been

disregarded; her wishes slighted; her honest pride insulted!"[1430] So

enraged were Southern Representatives that, for the most part, they

declined to speak. Hamilton expressed their sentiments. He disdained to

enter into the "chaffering" about the details of the bill.[1431] "You

are coercing us to inquire, whether we can afford to belong to a

confederacy in which severe restrictions, tending to an ultimate

prohibition of foreign commerce, is its established policy.[1432]... Is

it ... treason, sir, to tell you that there is a condition of public

feeling throughout the southern part of this confederacy, which no

prudent man will treat with contempt, and no man who loves his country

will not desire to see allayed?[1433]... I trust, sir, that this cup may

pass from us.... But, if an adverse destiny should be ours--if we are

doomed to drink 'the waters of bitterness,' in their utmost woe, ...

South Carolina will be found on the side of those principles, standing

firmly, on the very ground which is canonized by that revolution which

has made us what we are, and imbued us with the spirit of a free and

sovereign people."[1434]

Retaliation, even forcible resistance, was talked throughout the South

when this "Tariff of Abominations," as the Act of 1828 was called,

became a law. The feeling in South Carolina especially ran high. Some of

her ablest men proposed that the State should tax all articles[1435]

protected by the tariff. Pledges were made at public meetings not to buy

protected goods manufactured in the North. At the largest gathering in

the history of the State, resolutions were passed demanding that all

trade with tariff States be stopped.[1436] Nullification was

proposed.[1437] The people wildly acclaimed such a method of righting

their wrongs, and Calhoun gave to the world his famous "Exposition," a

treatise based on the Jeffersonian doctrine of thirty years

previous.[1438]

A little more than a year after the passage of the Tariff of 1824, and

the publication of Marshall's opinions in Osborn _vs._ The Bank and

Gibbons _vs._ Ogden, Jefferson had written Giles of the "encroachments"

by the National Government, particularly by the Supreme Court and by

Congress. How should these invasions of the rights of the States be

checked? "Reason and argument? You might as well reason and argue with

the marble columns encircling them [Congress and the Supreme Court]....

Are we then _to stand to our arms_?... No. That must be the last

resource." But the States should denounce the acts of usurpation "until

their accumulation shall overweigh that of separation."[1439]

Jefferson's letter, written only six months before his death, was made

public just as the tide of belligerent Nullification was beginning to

rise throughout the South.[1440]

At the same time defiance of National authority came also from Georgia,

the cause being as distinct from the tariff as the principle of

resistance was identical. This cause was the forcible seizure, by

Georgia, of the lands of the Cherokee Indians and the action of the

Supreme Court in cases growing out of Georgia's policy and the execution

of it.

By numerous treaties between the National Government and the Cherokee

Nation, the Indians were guaranteed protection in the enjoyment of their

lands. When Georgia, in 1802, ceded her claim to that vast territory

stretching westward to the Mississippi, it had been carefully provided

that the lands of the Indians should be preserved from seizure or entry

without their consent, and that their rights should be defended from

invasion or disturbance. The Indian titles were to be extinguished,

however, as soon as this could be done peaceably, and without inordinate

expense.

In 1827, these Georgia Cherokees, who were highly civilized, adopted a

constitution, set up a government of their own modeled upon that of the

United States, and declared themselves a sovereign independent

nation.[1441] Immediately thereafter the Legislature of Georgia passed

resolutions declaring that the Cherokee lands belonged to the State

"absolutely"--that the Indians were only "tenants at her will"; that

Georgia had the right to, and would, extend her laws throughout her

"conventional limits," and "coerce obedience to them from all

descriptions of people, be they white, red, or black."[1442]

Deliberately, but without delay, the State enacted laws taking over the

Cherokee lands, dividing them into counties, and annulling "all laws,

usages and customs" of the Indians.[1443] The Cherokees appealed to

President Jackson, who rebuffed them and upheld Georgia.[1444] Gold was

discovered in the Indian country, and white adventurers swarmed to the

mines.[1445] Georgia passed acts forbidding the Indians to hold courts,

or to make laws or regulations for the tribe. White persons found in the

Cherokee country without a license from the Governor were, upon

conviction, to be imprisoned at hard labor for four years. A State guard

was established to "protect" the mines and arrest any one "detected in a

violation of the laws of this State."[1446] Still other acts equally

oppressive were passed.[1447]

On the advice of William Wirt, then Attorney-General of the United

States, and of John Sergeant of Philadelphia, the Indians applied to the

Supreme Court for an injunction to stop Georgia from executing these

tyrannical statutes. The whole country was swept by a tempest of popular

excitement. South and North took opposite sides. The doctrine of State

Rights, in whose name internal improvements, the Tariff, the Bank, and

other Nationalist measures had been opposed, was invoked in behalf of

Georgia.

The Administration tried to induce the Cherokees to exchange their

farms, mills, and stores in Georgia for untamed lands in the Indian

Territory. The Indians sent a commission to investigate that far-off

region, which reported that it was unfit for agriculture and that, once

there, the Cherokees would have to fight savage tribes.[1448] Again they

appealed to the President; again Jackson told them that Georgia had

absolute authority over them. Angry debates arose in Congress over a

bill to send the reluctant natives to the wilds of the then remote

West.[1449]

Such was the origin of the case of The Cherokee Nation _vs._ The State

of Georgia.[1450] At Wirt's request, Judge Dabney Carr laid the whole

matter before Marshall, Wirt having determined to proceed with it or to

drop it as the Chief Justice should advise. Marshall, of course,

declined to express any opinion on the legal questions involved: "I have

followed the debate in both houses of Congress, with profound attention

and with deep interest, and have wished, most sincerely, that both the

executive and legislative departments had thought differently on the

subject. Humanity must bewail the course which is pursued, whatever may

be the decision of policy."[1451]

Before the case could be heard by the Supreme Court, Georgia availed

herself of an opportunity to show her contempt for the National

Judiciary and to assert her "sovereign rights." A Cherokee named George

Tassels was convicted of murder in the Superior Court of Hall County,

Georgia, and lay in jail until the sentence of death should be executed.

A writ of error from the Supreme Court was obtained, and Georgia was

ordered to appear before that tribunal and defend the judgment of the

State Court.

The order was signed by Marshall. Georgia's reply was as insulting and

belligerent as it was prompt and spirited. The Legislature resolved that

"the interference by the chief justice of the supreme court of the U.

States, in the administration of the criminal laws of this state, ... is

a flagrant violation of her rights"; that the Governor "and every other

officer of this state" be directed to "disregard any and every mandate

and process ... purporting to proceed from the chief justice or any

associate justice of the supreme court of the United States"; that the

Governor be "authorised and required, with all the force and means ...

at his command ... to resist and repel any and every invasion from

whatever quarter, upon the administration of the criminal laws of this

state"; that Georgia refuses to become a party to "the case sought to be

made before the supreme court"; and that the Governor, "by express,"

direct the sheriff of Hall County to execute the law in the case of

George Tassels.[1452]

Five days later, Tassels was hanged,[1453] and the Supreme Court of the

United States, powerless to vindicate its authority, defied and insulted

by a "sovereign" State, abandoned by the Administration, was humiliated

and helpless.

When he went home on the evening of January 4, 1831, John Quincy Adams,

now a member of Congress, wrote in his diary that "the resolutions of

the legislature of Georgia setting at defiance the Supreme Court of the

United States are published and approved in the Telegraph, the

Administration newspaper at this place.... The Constitution, the laws

and treaties of the United States are prostrate in the State of Georgia.

Is there any remedy for this state of things? None. Because the

Executive of the United States is in League with the State of

Georgia.... This example ... will be imitated by other States, and with

regard to other national interests--perhaps the tariff.... The Union is

in the most imminent danger of dissolution.... The ship is about to

founder."[1454]

Meanwhile the Cherokee Nation brought its suit in the Supreme Court to

enjoin the State from executing its laws, and at the February term of

1831 it was argued for the Indians by Wirt and Sergeant. Georgia

disdained to appear--not for a moment would that proud State admit that

the Supreme Court of the Nation could exercise any authority whatever

over her.[1455]

On March 18, 1831, Marshall delivered the opinion of the majority of the

court, and in it he laid down the broad policy which the Government has

unwaveringly pursued ever since. At the outset the Chief Justice plainly

stated that his sympathies were with the Indians,[1456] but that the

court could not examine the merits or go into the moralities of the

controversy, because it had no jurisdiction. The Cherokees sued as a

foreign nation, but, while they did indeed constitute a separate state,

they were not a foreign nation. The relation of the Indians to the

United States is "unlike that of any other two people in existence." The

territory comprises a "part of the United States."[1457]

In our foreign affairs and commercial regulations, the Indians are

subject to the control of the National Government. "They acknowledge

themselves in their treaties to be under the protection of the United

States." They are not, then, foreign nations, but rather "domestic

dependent nations.... They are in a state of pupilage." Foreign

governments consider them so completely under our "sovereignty and

dominion" that it is universally conceded that the acquisition of their

lands or the making of treaties with them would be "an invasion of our

territory, and an act of hostility." By the Constitution power is given

Congress to regulate commerce among the States, with foreign nations,

and with Indian tribes, these terms being "entirely distinct."[1458]

The Cherokees not being a foreign nation, the Supreme Court has no

jurisdiction in a suit brought by them in that capacity, said Marshall.

Furthermore, the court was asked "to control the Legislature of Georgia,

and to restrain the exertion of its physical force"--a very questionable

"interposition," which "savors too much of the exercise of political

power to be within the proper province of the judicial department." In

"a proper case with proper parties," the court might, perhaps, decide

"the mere question of right" to the Indian lands. But the suit of the

Cherokee Nation against Georgia is not such a case.

Marshall closes with a reflection upon Jackson in terms much like those

with which, many years earlier, he had so often rebuked Jefferson: "If

it be true that the Cherokee Nation have rights, this is not the

tribunal in which those rights are to be asserted. If it be true that

wrongs have been inflicted, and that still greater are to be

apprehended, this is not the tribunal which can redress the past or

prevent the future."[1459]

In this opinion the moral force of Marshall was displayed almost as much

as in the case of the Schooner Exchange.[1460] He was friendly to the

whole Indian race; he particularly detested Georgia's treatment of the

Cherokees; he utterly rejected the State Rights theory on which the

State had acted; and he could easily have decided in favor of the

wronged and harried Indians, as the dissent of Thompson and Story

proves. But the statesman and jurist again rose above the man of

sentiment, law above emotion, the enduring above the transient.

As a "foreign state" the Indians had lost, but the constitutionality of

Georgia's Cherokee statutes had not been affirmed. Wirt and Sergeant had

erred as to the method of attacking that legislation. Another proceeding

by Georgia, however, soon brought the validity of her expansion laws

before the Supreme Court. Among the missionaries who for years had

labored in the Cherokee Nation was one Samuel A. Worcester, a citizen of

Vermont. This brave minister, licensed by the National Government,

employed by the American Board of Commissioners for Foreign Missions,

appointed by President John Quincy Adams to be postmaster at New Echota,

a Cherokee town, refused, in company with several other missionaries, to

leave the Indian country.

Worcester and a Reverend Mr. Thompson were arrested by the Georgia

guard. The Superior Court of Gwinnett County released them, however, on

a writ of habeas corpus, because, both being licensed missionaries

expending National funds appropriated for civilizing Indians, they must

be considered as agents of the National Government. Moreover, Worcester

was postmaster at New Echota. Georgia demanded his removal and inquired

of Jackson whether the missionaries were Government agents. The

President assured the State that they were not, and removed Worcester

from office.[1461]

Thereupon both Worcester and Thompson were promptly ordered to leave the

State. But they and some other missionaries remained, and were

arrested; dragged to prison--some of them with chains around their

necks;[1462] tried and convicted. Nine were pardoned upon their promise

to depart forthwith from Georgia. But Worcester and one Elizur Butler

sternly rejected the offer of clemency on such a condition and were put

to hard labor in the penitentiary.

From the judgment of the Georgia court, Worcester and Butler appealed to

the Supreme Court of the United States. Once more Marshall and Georgia

confronted each other; again the Chief Justice faced a hostile President

far more direct and forcible than Jefferson, but totally lacking in the

subtlety and skill of that incomparable politician. Thrilling and highly

colored accounts of the treatment of the missionaries had been published

in every Northern newspaper; religious journals made conspicuous display

of soul-stirring narratives of the whole subject; feeling in the North

ran high; resentment in the South rose to an equal degree.

This time Georgia did more than ignore the Supreme Court as in the case

of George Tassels and in the suit of the Cherokee Nation; she formally

refused to appear; formally denied the right of that tribunal to pass

upon the decisions of her courts.[1463] Never would Georgia so

"compromit her dignity as a sovereign State," never so "yield her rights

as a member of the Confederacy." The new Governor, Wilson Lumpkin,

avowed that he would defend those rights by every means in his

power.[1464] When the case of Worcester _vs._ Georgia came on for

hearing before the Supreme Court, no one answered for the State. Wirt,

Sergeant, and Elisha W. Chester appeared for the missionaries as they

had for the Indians.[1465] Wirt and Sergeant made extended and powerful

arguments.[1466]

Marshall's opinion, delivered March 3, 1832, is one of the noblest he

ever wrote. "The legislative power of a State, the controlling power of

the Constitution and laws of the United States, the rights, if they have

any, the political existence of a once numerous and powerful people, the

personal liberty of a citizen, are all involved," begins the aged Chief

Justice.[1467] Does the act of the Legislature of Georgia, under which

Worcester was convicted, violate the Constitution, laws, and treaties of

the United States?[1468] That act is "an assertion of jurisdiction over

the Cherokee Nation."[1469]

He then goes into a long historical review of the relative titles of the

natives and of the white discoverers of America; of the effect upon

these titles of the numerous treaties with the Indians; of the acts of

Congress relating to the red men and their lands; and of previous laws

of Georgia on these subjects.[1470] This part of his opinion is the most

extended and exhaustive historical analysis Marshall ever made in any

judicial utterance, except that on the law of treason during the trial

of Aaron Burr.[1471]

Then comes his condensed, unanswerable, brilliant conclusion: "A weaker

power does not surrender its independence, its rights to

self-government, by associating with a stronger, and taking its

protection. A weak state, in order to provide for its safety, may place

itself under the protection of one more powerful, without stripping

itself of the right of self-government, and ceasing to be a state....

The Cherokee Nation ... is a distinct community, occupying its own

territory ... in which the laws of Georgia can have no force, and which

the citizens of Georgia have no right to enter but with the assent of

the Cherokees themselves, or in conformity with treaties, and with the

acts of Congress. The whole intercourse between the United States and

this nation is by our Constitution and laws vested in the government of

the United States."

The Cherokee Acts of the Georgia Legislature "are repugnant to the

constitution, laws and treaties of the United States. They interfere

forcibly with the relations established between the United States and

the Cherokee Nation." This controlling fact the laws of Georgia ignore.

They violently disrupt the relations between the Indians and the United

States; they are equally antagonistic to acts of Congress based upon

these treaties. Moreover, "the forcible seizure and abduction" of

Worcester, "who was residing in the nation with its permission and by

authority of the President of the United States, is also a violation of

the acts which authorize the chief magistrate to exercise this

authority."

Marshall closes with a passage of eloquence almost equal to, and of

higher moral grandeur than, the finest passages in M'Culloch _vs._

Maryland and in Cohens _vs._ Virginia. So the decision of the court was

that the judgment of the Georgia court be "reversed and annulled."[1472]

Congress was intensely excited by Marshall's opinion; Georgia was

enraged; the President agitated and belligerent. In a letter to Ticknor,

written five days after the judgment of the court was announced, Story

accurately portrays the situation: "The decision produced a very strong

sensation in both houses; Georgia is full of anger and violence....

Probably she will resist the execution of our judgement, & if she does I

do not believe the President will interfere.... The Court has done its

duty. Let the nation do theirs. If we have a government let its commands

be obeyed; if we have not it is as well to know it at once, & to look to

consequences."[1473]

Story's forecast was justified. Georgia scoffed at Marshall's opinion,

flouted the mandate of the Supreme Court. "Usurpation!" cried Governor

Lumpkin. He would meet it "with the spirit of determined

resistance."[1474] Jackson defied the Chief Justice. "John Marshall has

made his decision:--_now let him enforce it_!" the President is reported

to have said.[1475] Again the Supreme Court found itself powerless; the

judgment in Worcester _vs._ Georgia came to nothing; the mandate was

never obeyed, never heeded.[1476]

For the time being, Marshall was defeated; Nationalism was prostrate;

Localism erect, strong, aggressive. Soon, however, Marshall and

Nationalism were to be sustained, for the moment, by the man most

dreaded by the Chief Justice, most trusted by Marshall's foes. Andrew

Jackson was to astound the country by the greatest and most illogical

act of his strange career--the issuance of his immortal Proclamation

against Nullification.

Georgia's very first assertion of her "sovereignty" in the Indian

controversy had strengthened South Carolina's fast growing determination

to resist the execution of the Tariff Law. On January 25, 1830, Senator

Robert Young Hayne of South Carolina, in his brilliant challenge to

Webster, set forth the philosophy of Nullification: "Sir, if, the

measures of the Federal Government were less oppressive, we should

still strive against this usurpation. The South is acting on a principle

she has always held sacred--resistance to unauthorized taxation."[1477]

Webster's immortal reply, so far as his Constitutional argument is

concerned, is little more than a condensation of the Nationalist

opinions of John Marshall stated in popular and dramatic language.

Indeed, some of Webster's sentences are practically mere repetitions of

Marshall's, and his reasoning is wholly that of the Chief Justice.

"We look upon the States, not as separated, but as united under the same

General Government, having interests, common, associated, intermingled.

In war and peace, we are one; in commerce, one; because the authority of

the General Government reaches to war and peace, and to the regulation

of commerce."[1478]

What is the capital question in dispute? It is this: "Whose prerogative

is it to decide on the constitutionality or unconstitutionality of the

laws?"[1479] Can States decide? Can States "annul the law of Congress"?

Hayne, expressing the view of South Carolina, had declared that they

could. He had based his argument upon the Kentucky and Virginia

Resolutions--upon the theory that the States, and not the people, had

created the Constitution; that the States, and not the people, had

established the General Government.

But is this true? asked Webster. He answered by paraphrasing Marshall's

words in M'Culloch _vs._ Maryland: "It is, sir, the people's

constitution, the people's Government; made for the people; made by the

people; and answerable to the people.[1480] The people ... have declared

that this Constitution shall be the supreme law....[1481] Who is to

judge between the people and the Government?"[1482]

The Constitution settles that question by declaring that "the judicial

power shall extend to all cases arising under the Constitution and

laws."[1483] Because of this the Union is secure and strong. "Instead of

one tribunal, established by all, responsible to all, with power to

decide for all, shall constitutional questions be left to four and

twenty popular bodies, each at liberty to decide for itself, and none

bound to respect the decisions of others?"[1484]

Then Webster swept grandly forward to that famous peroration ending

with the words which in time became the inspiring motto of the whole

American people: "Liberty _and_ Union, now and forever, one and

inseparable!"[1485]

Immediately after the debate between Hayne and Webster, Nullification

gathered force in South Carolina. Early in the autumn of 1830, Governor

Stephen Decatur Miller spoke at a meeting of the Sumter district of that

State. He urged that a State convention be called for the purpose of

declaring null and void the Tariff of 1828. Probably the National courts

would try to enforce that law, he said, but South Carolina would "refuse

to sustain" it. Nullification involved no danger, and if it did, what

matter!--"those who fear to defend their rights, have none. Their

property belongs to the banditti: they are only tenants at will of their

own firesides."[1486]

Public excitement steadily increased; at largely attended meetings

ominous resolutions were adopted. "The attitude which the federal

government continues to assume towards the southern states, calls for

decisive and unequivocal resistance." So ran a typical declaration of a

gathering of citizens of Georgetown, South Carolina, in December,

1830.[1487]

In the Senate, Josiah Stoddard Johnston of Louisiana, but

Connecticut-born, made a speech denouncing the doctrine of

Nullification, asserting the supremacy of the National Government, and

declaring that the Supreme Court was the final judge of the

constitutionality of legislation. "It has fulfilled the design of its

institution; ... it has given form and consistency to the constitution,

and uniformity to the laws."[1488] Nullification, said Johnston, means

"either disunion, or civil war; or, in the language of the times,

disunion and blood."[1489]

The Louisiana Senator sent his speech to Marshall, who answered that "it

certainly is not among the least extraordinary of the doctrines of the

present day that such a question [Nullification] should be seriously

debated."[1490]

All Nullification arguments were based on the Kentucky and Virginia

Resolutions. Madison was still living, and Edward Everett asked him for

his views. In a letter almost as Nationalist as Marshall's opinions, the

venerable statesman replied at great length and with all the ability and

clearness of his best years.

The decision by States of the constitutionality of acts of Congress

would destroy the Nation, he wrote. Such decision was the province of

the National Judiciary. While the Supreme Court had been criticized,

perhaps justly in some cases, "still it would seem that, with but few

exceptions, the course of the judiciary has been hitherto sustained by

the predominant sense of the nation." It was absurd to deny the

"supremacy of the judicial power of the U. S. & denounce at the same

time nullifying power in a State.... A law of the land" cannot be

supreme "without a supremacy in the exposition & execution of the law."

Nullification was utterly destructive of the Constitution and the

Union.[1491]

This letter, printed in the _North American Review_,[1492] made a

strong impression on the North, but it only irritated the South.

Marshall read it "with peculiar pleasure," he wrote Story: "M^r

Madison ... is himself again. He avows the opinions of his best days,

and must be pardoned for his oblique insinuations that some of the

opinions of our Court are not approved. Contrast this delicate hint

with the language M^r Jefferson has applied to us. He [Madison] is

attacked ... by our Enquirer, who has arrayed his report of 1799 against

his letter. I never thought that report could be completely defended;

but M^r Madison has placed it upon its best ground, that the language is

incautious, but is intended to be confined to a mere declaration of

opinion, or is intended to refer to that ultimate right which all admit,

to resist despotism, a right not exercised under a constitution, but in

opposition to it."[1493]

At a banquet on April 15, 1830, in celebration of Jefferson's birthday,

Jackson had given a warning not to be misunderstood except by Nullifiers

who had been blinded and deafened by their new political religion. "The

Federal Union;--it must be preserved," was the solemn and inspiring

toast proposed by the President. Southern leaders gave no heed. They

apparently thought that Jackson meant to endorse Nullification, which,

most illogically, they always declared to be the only method of

preserving the Union peaceably.

Their denunciation of the Tariff grew ever louder; their insistence on

Nullification ever fiercer, ever more determined. To a committee of

South Carolina Union men who invited him to their Fourth of July

celebration at Charleston in 1831, Jackson sent a letter which plainly

informed the Nullifiers that if they attempted to carry out their

threats, the National Government would forcibly suppress them.[1494]

At last the eyes of the South were opened. At last the South understood

the immediate purpose of that enigmatic and self-contradictory man who

ruled America, at times, in the spirit of the Czars of Russia; at times,

in the spirit of the most compromising of opportunists.

Jackson's outgiving served only to enrage the South and especially South

Carolina. The Legislature of that State replied to the President's

letter thus: "Is this Legislature to be schooled and rated by the

President of the United States? Is it to legislate under the sword of

the Commander-in-Chief?... This is a confederacy of sovereign States,

and each may withdraw from the confederacy when it chooses."[1495]

Marshall saw clearly what the outcome was likely to be, but yielded

slowly to the despair so soon to master him. "Things to the South wear a

very serious aspect," he tells Story. "If we can trust appearances the

leaders are determined to risk all the consequences of dismemberment. I

cannot entirely dismiss the hope that they may be deserted by their

followers--at least to such an extent as to produce a pause at the

Rubicon. They undoubtedly believe that Virginia will support them. I

think they are mistaken both with respect to Virginia and North

Carolina. I do not think either State will embrace this mad and wicked

measure. New Hampshire and Maine seem to belong to the tropics. It is

time for New Hampshire to part with Webster and Mason. She has no longer

any use for such men."[1496]

As the troubled weeks passed, Marshall's apprehension increased. Story,

profoundly concerned, wrote the Chief Justice that he could see no light

in the increasing darkness. "If the prospects of our country inspire you

with gloom," answered Marshall, "how do you think a man must be affected

who partakes of all your opinions and whose geographical position

enables him to see a great deal that is concealed from you? I yield

slowly and reluctantly to the conviction that our constitution cannot

last. I had supposed that north of the Potowmack a firm and solid

government competent to the security of rational liberty might be

preserved. Even that now seems doubtful. The case of the south seems to

me to be desperate. Our opinions are incompatible with a united

government even among ourselves. The union has been prolonged thus far

by miracles. I fear they cannot continue."[1497]

Congress heeded the violent protest of South Carolina--perhaps it would

be more accurate to say that Congress obeyed Andrew Jackson. In 1832 it

reduced tariff duties; but the protective policy was retained. The South

was infuriated--if the principle were recognized, said Southern men,

what could they expect at a later day when this capitalistic,

manufacturing North would be still stronger and the unmoneyed and

agricultural South still weaker?

South Carolina especially was frantic. The spirit of the State was

accurately expressed by R. Barnwell Smith at a Fourth of July

celebration: "If the fire and the sword of war are to be brought to our

dwellings, ... let them come! Whilst a bush grows which may be dabbled

with blood, or a pine tree stands to support a rifle, let them

come!"[1498] At meetings all over the State treasonable words were

spoken. Governor James Hamilton, Jr., convened the Legislature in

special session and the election of a State convention was ordered.

"Let us act, next October, at the ballot box--next November, in the

state house--and afterwards, should any further action be necessary, let

it be where our ancestors acted, _in the field of battle_";[1499] such

were the toasts proposed at banquets, such the sentiments adopted at

meetings.

On November 24, 1832, the State Convention, elected[1500] to consider

the new Tariff Law, adopted the famous Nullification Ordinance which

declared that the Tariff Acts of 1828 and 1832 were "null, void, and no

law"; directed the Legislature to take measures to prevent the

enforcement of those acts within South Carolina; forbade appeal to the

Supreme Court of the United States from South Carolina courts in any

case where the Tariff Law was involved; and required all State

officers, civil and military, to take oath to "obey, execute and enforce

this Ordinance, and such act or acts of the Legislature as may be passed

in pursuance thereof."

The Ordinance set forth that "we, the People of South Carolina, ... _Do

further Declare_, that we will not submit to the application of force,

on the part of the Federal Government, to reduce this State to

obedience; but that we will consider" any act of the National Government

to enforce the Tariff Laws "as inconsistent with the longer continuance

of South Carolina in the Union: and that the People of this State ...

will forthwith proceed to organize a separate Government, and to do all

other acts and things which sovereign and independent States may of

right do."[1501]

Thereupon the Convention issued an address to the people.[1502] It was

long and, from the Nullification point of view, very able; it ended in

an exalted, passionate appeal: "Fellow citizens, the die is now cast. NO

MORE TAXES SHALL BE PAID HERE.... Prepare for the crisis, and ... meet

it as becomes men and freemen.... Fellow citizens, DO YOUR DUTY TO YOUR

COUNTRY, AND LEAVE THE CONSEQUENCES TO GOD."[1503]

Excepting only at the outbreak of war could a people be more deeply

stirred than were all Americans by the desperate action of South

Carolina. In the North great Union meetings were held, fervid speeches

made, warlike resolutions adopted. The South, at first, seemed dazed.

Was war at hand? This was the question every man asked of his neighbor.

A pamphlet on the situation, written by some one in a state of great

emotion, had been sent to Marshall, and Judge Peters had inquired about

it, giving at the same time the name of the author.

"I am not surprised," answered Marshall, "that he [the author] is

excited by the doctrine of nullification. It is well calculated to

produce excitement in all.... Leaving it to the courts and the custom

house will be leaving it to triumphant victory, and to victory which

must be attended with more pernicious consequences to our country and

with more fatal consequences to its reputation than victory achieved in

any other mode which rational men can devise."[1504] If Nullification

must prevail, John Marshall preferred that it should win by the sword

rather than through the intimidation of courts.

Jackson rightly felt that his reëlection meant that the country in

general approved of his attitude toward Nullification as well as that

toward the Bank. He promptly answered the defiance of South Carolina. On

December 10, 1832, he issued his historic Proclamation. Written by

Edward Livingston,[1505] Secretary of State, it is one of the ablest of

American state papers. Moderate in expression, simple in style, solid in

logic, it might have been composed by Marshall himself. It is, indeed, a

restatement of Marshall's Nationalist reasoning and conclusions. Like

the argument in Webster's Reply to Hayne, Jackson's Nullification

Proclamation was a repetition of those views of the Constitution and of

the nature of the American Government for which Marshall had been

fighting since Washington was made President.

As in Webster's great speech, sentences and paragraphs are in almost the

very words used by Marshall in his Constitutional opinions, so in

Jackson's Proclamation the same parallelism exists. Gently, but firmly,

and with tremendous force, in the style and spirit of Abraham Lincoln

rather than of Andrew Jackson, the Proclamation makes clear that the

National laws will be executed and resistance to them will be put down

by force of arms.[1506]

The Proclamation was a triumph for Marshall. That the man whom he

distrusted and of whom he so disapproved, whose election he had thought

to be equivalent to a dissolution of the Union, should turn out to be

the stern defender of National solidarity, was, to Marshall, another of

those miracles which so often had saved the Republic. His disapproval of

Jackson's rampant democracy, and whimsical yet arbitrary executive

conduct, turned at once to hearty commendation.

"Since his last proclamation and message," testifies Story, "the Chief

Justice and myself have become his warmest supporters, and shall

continue so just as long as he maintains the principles contained in

them. Who would have dreamed of such an occurrence?"[1507] Marshall

realized, nevertheless, that even the bold course pursued by the

President could not permanently overcome the secession convictions of

the Southern people.

The Union men of South Carolina who, from the beginning of the

Nullification movement, had striven earnestly to stay its progress,

rallied manfully.[1508] Their efforts were futile--disunion sentiment

swept the State. "With ... indignation and contempt," with "defiance and

scorn," most South Carolinians greeted the Proclamation[1509] of the man

who, only three years before, had been their idol. To South Carolinians

Jackson was now "a tyrant," a would-be "Cæsar," a "Cromwell," a

"Bonaparte."[1510]

The Legislature formally requested Hayne, now Governor, to issue a

counter-proclamation,[1511] and adopted spirited resolutions declaring

the right of any State "to secede peaceably from the Union." One count

in South Carolina's indictment of the President was thoroughly

justified--his approval of Georgia's defiance of Marshall and the

Supreme Court. Jackson's action, declared the resolutions, was the more

"extraordinary, that he has silently, and ... with entire approbation,

witnessed our sister state of Georgia avow, act upon, and carry into

effect, even to the taking of life, principles identical with those now

denounced by him in South Carolina." The Legislature finally resolved

that the State would "repel force by force, and, relying upon the

blessing of God, will maintain its liberty at all hazards."[1512]

Swiftly Hayne published his reply to the President's Proclamation. It

summed up all the arguments for the right of a State to decide the

constitutionality of acts of Congress, that had been made since the

Kentucky Resolutions were written by Jefferson--that "great Apostle of

American liberty ... who has consecrated these principles, and left them

as a legacy to the American people, recorded by his own hand." It was

Jefferson, said Hayne, who had first penned the immortal truth that

"NULLIFICATION" of unconstitutional acts of Congress was the "RIGHTFUL

REMEDY" of the States.[1513]

In his Proclamation Jackson had referred to the National Judiciary as

the ultimate arbiter of the constitutionality of National laws. How

absurd such a claim by such a man, since that doctrine "has been denied

by none more strongly than the President himself" in the Bank

controversy and in the case of the Cherokees! "And yet when it serves

the purpose of bringing odium on South Carolina, 'his native State,' the

President has no hesitation in regarding the attempt of a State to

release herself from the control of the Federal Judiciary, in a

matter affecting her sovereign rights, as a violation of the

Constitution."[1514]

In closing, Governor Hayne declares that "the time has come when it must

be seen, whether the people of the several States have indeed lost the

spirit of the revolution, and whether they are to become the willing

instruments of an unhallowed despotism. In such a sacred cause, South

Carolina will feel that she is not striking for her own, but the

liberties of the Union and the RIGHTS OF MAN."[1515]

Instantly[1516] the Legislature enacted one law to prevent the

collection of tariff duties in South Carolina;[1517] another authorizing

the Governor to "order into service the whole military force of this

State" to resist any attempt of the National Government to enforce the

Tariff Acts.[1518] Even before Hayne's Proclamation was published,

extensive laws had been passed for the reorganization of the militia,

and the Legislature now continued to enact similar legislation. In four

days fourteen such acts were passed.[1519]

The spirit and consistency of South Carolina were as admirable as her

theory was erroneous and narrow. If she meant what she had said, the

State could have taken no other course. If, moreover, she really

intended to resist the National Government, Jackson had given cause for

South Carolina's militant action. As soon as the Legislature ordered the

calling of the State Convention to consider the tariff, the President

directed the Collector at Charleston to use every resource at the

command of the Government to collect tariff duties. The commanders of

the forts at Charleston were ordered to be in readiness to repel any

attack. General Scott was sent to the scene of the disturbance. Military

and naval dispositions were made so as to enable the National Government

to strike quickly and effectively.[1520]

Throughout South Carolina the rolling of drums and blare of bugles were

heard. Everywhere was seen the blue cockade with palmetto button.[1521]

Volunteers were called for,[1522] and offered themselves by thousands;

in certain districts "almost the entire population" enlisted.[1523] Some

regiments adopted a new flag, a banner of red with a single black star

in the center.[1524]

Jackson attempted to placate the enraged and determined State. In his

fourth annual Message to Congress he barely mentioned South Carolina's

defiance, but, for the second time, urgently recommended a reduction of

tariff duties. Protection, he said, "must be ultimately limited to those

articles of domestic manufacture which are indispensable to our safety

in time of war.... Beyond this object we have already seen the operation

of the system productive of discontent."[1525]

Other Southern States, although firmly believing in South Carolina's

principles and sympathetic with her cause, were alarmed by her bold

course. Virginia essayed the rôle of mediator between her warlike sister

and the "usurping" National Government. In his Message to the

Legislature, Governor John Floyd stoutly defended South Carolina--"the

land of Sumpter [_sic_] and of Marion." "Should force be resorted to by

the federal government, the horror of the scenes hereafter to be

witnessed cannot now be pictured.... What surety has any state for her

existence as a sovereign, if a difference of opinion should be punished

by the sword as treason?" The situation calls for a reference of the

whole question to "the PEOPLE of the states. On you depends in a high

degree the future destiny of this republic. It is for you now to say

whether the brand of civil war shall be thrown into the midst of these

states."[1526]

Mediative resolutions were instantly offered for the appointment of a

committee "to take into consideration the relations existing between the

state of South Carolina and the government of the United States," and

the results to each and to Virginia flowing from the Ordinance of

Nullification and Jackson's Proclamation. The committee was to report

"such measures as ... it may be expedient for Virginia to adopt--the

propriety of recommending a general convention to the states--and such a

declaration of our views and opinions as it may be proper for her to

express in the present fearful impending crisis, for the protection of

the right of the states, the restoration of harmony, and the

preservation of the union."[1527]

Only five members voted against the resolution.[1528]