VI. VITALIZING THE CONSTITUTION…

VI. VITALIZING THE CONSTITUTION

The crisis is one which portends destruction to the liberties of the American people. (Spencer Roane.)

The constitutional government of this republican empire cannot be practically enforced but by a fair and liberal interpretation of its powers. (William Pinkney.)

The Judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. (Jefferson.)

The government of the Union is emphatically and truly a government of the people. In form and substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them and for their benefit. (Marshall.)

Although it was the third of the great causes to be decided by the Supreme Court in the memorable year, 1819, M'Culloch vs. Maryland was the first in importance and in the place it holds in the development of the American Constitution. Furthermore, in his opinion in this case John Marshall rose to the loftiest heights of judicial statesmanship. If his fame rested solely on this one effort, it would be secure.

To comprehend the full import of Marshall's opinion in this case, the reader must consider the state of the country as described in the fourth chapter of this volume. While none of his expositions of our fundamental law, delivered in the critical epoch from 1819 to 1824, can be entirely understood without knowledge of the National conditions that produced them, this fact must be especially borne in mind when reviewing the case of M'Culloch vs. Maryland.

Like most of the controversies in which Marshall's Constitutional opinions were pronounced, M'Culloch vs. Maryland came before the Supreme Court on an agreed case. The facts were that Congress had authorized the incorporation of the second Bank of the United States; that this institution had instituted a branch at Baltimore; that the Legislature of Maryland had passed an act requiring all banks, established "without authority from the state," to issue notes only on stamped paper and only of certain denominations, or, in lieu of these requirements, only upon the payment of an annual tax of fifteen thousand dollars; that, in violation of this law, the Baltimore branch of the National Bank continued to issue its notes on unstamped paper without paying the tax; and that on May 8, 1818, John James, "Treasurer of the Western Shore," had sued James William M'Culloch, the cashier of the Baltimore branch, for the recovery of the penalties prescribed by the Maryland statute.[784]

The immediate question was whether the Maryland law was Constitutional; but the basic issue was the supremacy of the National Government as against the dominance of State Governments. Indeed, the decision of this case involved the very existence of the Constitution as an "ordinance of Nationality," as Marshall so accurately termed it.

At no time in this notable session of the Supreme Court was the basement room, where its sittings were now again held, so thronged with auditors as it was when the argument in M'Culloch vs. Maryland took place. "We have had a crowded audience of ladies and gentlemen," writes Story toward the close of the nine days of discussion. "The hall was full almost to suffocation, and many went away for want of room."[785]

Webster opened the case for the Bank. His masterful argument in the Dartmouth College case the year before had established his reputation as a great Constitutional lawyer as well as an orator of the first class. He was attired in the height of fashion, tight breeches, blue cloth coat, cut away squarely at the waist, and adorned with large brass buttons, waist-coat exposing a broad expanse of ruffled shirt with high soft collar surrounded by an elaborate black stock.[786]

The senior counsel for the Bank was William Pinkney. He was dressed with his accustomed foppish elegance, and, as usual, was nervous and impatient. Notwithstanding his eccentricities, he was Webster's equal, if not his superior, except in physical presence and the gift of political management. With Webster and Pinkney was William Wirt, then Attorney-General of the United States, who had arrived at the fullness of his powers.

Maryland was represented by Luther Martin, still Attorney-General for that State, then seventy-five years old, but a strong lawyer despite his half-century, at least, of excessive drinking. By his side was Joseph Hopkinson of Philadelphia, now fifty years of age, one of the most learned men at the American bar. With Martin and Hopkinson was Walter Jones of Washington, who appears to have been a legal genius, his fame obliterated by devotion to his profession and unaided by any public service, which so greatly helps to give permanency to the lawyer's reputation. All told, the counsel for both sides in M'Culloch vs. Maryland were the most eminent and distinguished in the Republic.

Webster said in opening that Hamilton had "exhausted" the arguments for the power of Congress to charter a bank and that Hamilton's principles had long been acted upon. After thirty years of acquiescence it was too late to deny that the National Legislature could establish a bank.[787] With meticulous care Webster went over Hamilton's reasoning to prove that Congress can "pass all laws 'necessary and proper' to carry into execution powers conferred on it."[788]

Assuming the law which established the Bank to be Constitutional, could Maryland tax a branch of that Bank? If the State could tax the Bank at all, she could put it out of existence, since a "power to tax involves ... a power to destroy"[789]--words that Marshall, in delivering his opinion, repeated as his own. The truth was, said Webster, that, in taxing the Baltimore branch of the National Bank, Maryland taxed the National Government itself.[790]

Joseph Hopkinson, as usual, made a superb argument--a performance all the more admirable as an intellectual feat in that, as an advocate for Maryland, his convictions were opposed to his reasoning.[791] Walter Jones was as thorough as he was lively, but he did little more than to reinforce the well-nigh perfect argument of Hopkinson.[792] On the same side the address of Luther Martin deserves notice as the last worthy of remark which that great lawyer ever made. Old as he was, and wasted as were his astonishing powers, his argument was not much inferior to those of Webster, Hopkinson, and Pinkney. Martin showed by historical evidence that the power now claimed for Congress was suspected by the opponents of the Constitution, but denied by its supporters and called "a dream of distempered jealousy." So came the Tenth Amendment; yet, said Martin, now, "we are asked to engraft upon it [the Constitution] powers ... which were disclaimed by them [the advocates of the Constitution], and which, if they had been fairly avowed at the time, would have prevented its adoption."[793]

Could powers of Congress be inferred as a necessary means to the desired end? Why, then, did the Constitution expressly confer powers which, of necessity, must be implied? For instance, the power to declare war surely implied the power to raise armies; and yet that very power was granted in specific terms. But the power to create corporations "is not expressly delegated, either as an end or a means of national government."[794]

When Martin finished, William Pinkney, whom Marshall declared to be "the greatest man he had ever seen in a Court of justice,"[795] rose to make what proved to be the last but one of the great arguments of that unrivaled leader of the American bar of his period. To reproduce his address is to set out in advance the opinion of John Marshall stripped of Pinkney's rhetoric which, in that day, was deemed to be the perfection of eloquence.[796]

For three days Pinkney spoke. Few arguments ever made in the Supreme Court affected so profoundly the members of that tribunal. Story describes the argument thus: "Mr. Pinkney rose on Monday to conclude the argument; he spoke all that day and yesterday, and will probably conclude to-day. I never, in my whole life, heard a greater speech; it was worth a journey from Salem to hear it; his elocution was excessively vehement, but his eloquence was overwhelming. His language, his style, his figures, his arguments, were most brilliant and sparkling. He spoke like a great statesman and patriot, and a sound constitutional lawyer. All the cobwebs of sophistry and metaphysics about State rights and State sovereignty he brushed away with a mighty besom."[797]

Indeed, all the lawyers in this memorable contest appear to have surpassed their previous efforts at the bar. Marshall, in his opinion, pays this tribute to all their addresses: "Both in maintaining the affirmative and the negative, a splendor of eloquence, and strength of argument seldom, if ever, surpassed, have been displayed."[798]

After he had spoken, Webster, who at that moment was intent on the decision of the Dartmouth College case,[799] became impatient. "Our Bank argument goes on--& threatens to be long," he writes Jeremiah Mason.[800] Four days later, while Martin was still talking, Webster informs Jeremiah Smith: "We are not yet thro. the Bank question. Martin has been talking 3 ds. Pinkney replies tomorrow & that finishes--I set out for home next day."[801] The arguments in M'Culloch vs. Maryland occupied nine days.[802]

Four days before the Bank argument opened in the Supreme Court, the House took up the resolution offered by James Johnson of Virginia to repeal the Bank's charter.[803] The debate over this proposal continued until February 25, the third day of the argument in M'Culloch vs. Maryland. How, asked Johnson, had the Bank fulfilled expectations and promises? "What ... is our condition? Surrounded by one universal gloom. We are met by the tears of the widow and the orphan."[804] Madison has "cast a shade" on his reputation by signing the Bank Bill--that "act of usurpation." Under the common law the charter "is forfeited."[805]

The Bank is a "mighty corporation," created "to overawe ... the local institutions, that had dealt themselves almost out of breath in supporting the Government in times of peril and adversity." The financial part of the Virginia Republican Party organization thus spoke through James Pindall of that State.[806]

William Lowndes of South Carolina brilliantly defended the Bank, but admitted that its "early operation" had been "injudicious."[807] John Tyler of Virginia assailed the Bank with notable force. "This charter has been violated," he said; "if subjected to investigation before a court of justice, it will be declared null and void."[808] David Walker of Kentucky declared that the Bank "is an engine of favoritism--of stock jobbing"--a machine for "binding in adamantine chains the blessed, innocent lambs of America to accursed, corrupt European tigers."[809] In spite of all this eloquence, Johnson's resolution was defeated, and the fate of the Bank left in the hands of the Supreme Court.

On March 6, 1819, before a few spectators, mostly lawyers with business before the court, Marshall read his opinion. It is the misfortune of the biographer that only an abstract can be given of this epochal state paper--among the very first of the greatest judicial utterances of all time.[810] It was delivered only three days after Pinkney concluded his superb address.

Since it is one of the longest of Marshall's opinions and, by general agreement, is considered to be his ablest and most carefully prepared exposition of the Constitution, it seems not unlikely that much of it had been written before the argument. The court was very busy every day of the session and there was little, if any, time for Marshall to write this elaborate document. The suit against M'Culloch had been brought nearly a year before the Supreme Court convened; Marshall undoubtedly learned of it through the newspapers; he was intimately familiar with the basic issue presented by the litigation; and he had ample time to formulate and even to write out his views before the ensuing session of the court. He had, in the opinions of Hamilton and Jefferson,[811] the reasoning on both sides of this fundamental controversy. It appears to be reasonably probable that at least the framework of the opinion in M'Culloch vs. Maryland was prepared by Marshall when in Richmond during the summer, autumn, and winter of 1818-19.

The opening words of Marshall are majestic: "A sovereign state denies the obligation of a law ... of the Union.... The constitution of our country, in its most ... vital parts, is to be considered; the conflicting powers of the government of the Union and of its members, ... are to be discussed; and an opinion given, which may essentially influence the great operations of the government."[812] He cannot "approach such a question without a deep sense of ... the awful responsibility involved in its decision. But it must be decided peacefully, or remain a source of hostile legislation, perhaps of hostility of a still more serious nature."[813] In these solemn words the Chief Justice reveals the fateful issue which M'Culloch vs. Maryland foreboded.

That Congress has power to charter a bank is not "an open question.... The principle ... was introduced at a very early period of our history, has been recognized by many successive legislatures, and has been acted upon by the judicial department ... as a law of undoubted obligation.... An exposition of the constitution, deliberately established by legislative acts, on the faith of which an immense property has been advanced, ought not to be lightly disregarded."

The first Congress passed the act to incorporate a National bank. The whole subject was at the time debated exhaustively. "The bill for incorporating the bank of the United States did not steal upon an unsuspecting legislature, & pass unobserved," says Marshall. Moreover, it had been carefully examined with "persevering talent" in Washington's Cabinet. When that act expired, "a short experience of the embarrassments" suffered by the country "induced the passage of the present law." He must be intrepid, indeed, who asserts that "a measure adopted under these circumstances was a bold and plain usurpation, to which the constitution gave no countenance."[814]

But Marshall examines the question as though it were "entirely new"; and gives an historical account of the Constitution which, for clearness and brevity, never has been surpassed.[815] Thus he proves that "the government proceeds directly from the people; ... their act was final. It required not the affirmance, and could not be negatived, by the state governments. The constitution when thus adopted ... bound the state sovereignties." The States could and did establish "a league, such as was the confederation.... But when, 'in order to form a more perfect union,' it was deemed necessary to change this alliance into an effective government, ... acting directly on the people," it was the people themselves who acted and established a fundamental law for their government.[816]

The Government of the American Nation is, then, "emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit"[817]--a statement, the grandeur of which was to be enhanced forty-four years later, when, standing on the battle-field of Gettysburg, Abraham Lincoln said that "a government of the people, by the people, for the people, shall not perish from the earth."[818]

To be sure, the States, as well as the Nation, have certain powers, and therefore "the supremacy of their respective laws, when they are in opposition, must be settled." Marshall proceeds to settle that basic question. The National Government, he begins, "is supreme within its sphere of action. This would seem to result necessarily from its nature." For "it is the government of all; its powers are delegated by all; it represents all, and acts for all. Though any one state may be willing to control its operations, no state is willing to allow others to control them. The nation, on those subjects on which it can act, must necessarily bind its component parts." Plain as this truth is, the people have not left the demonstration of it to "mere reason"--for they have, "in express terms, decided it by saying" that the Constitution, and the laws of the United States which shall be made in pursuance thereof, "shall be the supreme law of the land," and by requiring all State officers and legislators to "take the oath of fidelity to it."[819]

The fact that the powers of the National Government enumerated in the Constitution do not include that of creating corporations does not prevent Congress from doing so. "There is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described.... A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of a prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public."

The very "nature" of a constitution, "therefore requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves." In deciding such questions "we must never forget," reiterates Marshall, "that it is a constitution we are expounding."[820]

This being true, the power of Congress to establish a bank is undeniable--it flows from "the great powers to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies." Consider, he continues, the scope of the duties of the National Government: "The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are entrusted to its government.... A government, entrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depends, must also be entrusted with ample means for their execution. The power being given, it is the interest of the nation to facilitate its execution. It can never be their interest, and cannot be presumed to have been their intention, to clog and embarrass its execution by withholding the most appropriate means."[821]

At this point Marshall's language becomes as exalted as that of the prophets: "Throughout this vast republic, from the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be marched and supported. The exigencies of the nation may require that the treasure raised in the north should be transported to the south, that raised in the east conveyed to the west, or that this order should be reversed." Here Marshall the soldier is speaking. There is in his words the blast of the bugle of Valley Forge. Indeed, the pen with which Marshall wrote M'Culloch vs. Maryland was fashioned in the army of the Revolution.[822]

The Chief Justice continues: "Is that construction of the constitution to be preferred which would render these operations difficult, hazardous, and expensive?" Did the framers of the Constitution "when granting these powers for the public good" intend to impede "their exercise by withholding a choice of means?" No! The Constitution "does not profess to enumerate the means by which the powers it confers may be executed; nor does it prohibit the creation of a corporation, if the existence of such a being be essential to the beneficial exercise of those powers."[823]

Resorting to his favorite method in argument, that of repetition, Marshall again asserts that the fact that "the power of creating a corporation is one appertaining to sovereignty and is not expressly conferred on Congress," does not take that power from Congress. If it does, Congress, by the same reasoning, would be denied the power to pass most laws; since "all legislative powers appertain to sovereignty." They who say that Congress may not select "any appropriate means" to carry out its admitted powers, "take upon themselves the burden of establishing that exception."[824]

The establishment of the National Bank was a means to an end; the power to incorporate it is "as incidental" to the great, substantive, and independent powers expressly conferred on Congress as that of making war, levying taxes, or regulating commerce.[825] This is not only the plain conclusion of reason, but the clear language of the Constitution itself as expressed in the "necessary and proper" clause[826] of that instrument. Marshall treats with something like contempt the argument that this clause does not mean what it says, but is "really restrictive of the general right, which might otherwise be implied, of selecting means for executing the enumerated powers"--a denial, in short, that, without this clause, Congress is authorized to make laws.[827] After conferring on Congress all legislative power, "after allowing each house to prescribe its own course of proceeding, after describing the manner in which a bill should become a law, would it have entered into the mind ... of the convention that an express power to make laws was necessary to enable the legislature to make them?"[828]

In answering the old Jeffersonian argument that,[829] under the "necessary and proper" clause, Congress can adopt only those means absolutely "necessary" to the execution of express powers, Marshall devotes an amount of space which now seems extravagant. But in 1819 the question was unsettled and acute; indeed, the Republicans had again made it a political issue. The Chief Justice repeats the arguments made by Hamilton in his opinion to Washington on the first Bank Bill.[830]

Some words have various shades of meaning, of which courts must select that justified by "common usage." "The word 'necessary' is of this description.... It admits of all degrees of comparison.... A thing may be necessary, very necessary, absolutely or indispensably necessary." For instance, the Constitution itself prohibits a State from "laying 'imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws'"; whereas it authorizes Congress to "'make all laws which shall be necessary and proper'" for the execution of powers expressly conferred.[831]

Did the framers of the Constitution intend to forbid Congress to employ "any" means "which might be appropriate, and which were conducive to the end"? Most assuredly not! "The subject is the execution of those great powers on which the welfare of a nation essentially depends." The "necessary and proper" clause is found "in a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.... To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances."[832]

The contrary conclusion is tinged with "insanity." Whence comes the power of Congress to prescribe punishment for violations of National laws? No such general power is expressly given by the Constitution. Yet nobody denies that Congress has this general power, although "it is expressly given in some cases," such as counterfeiting, piracy, and "offenses against the law of nations." Nevertheless, the specific authorization to provide for the punishment of these crimes does not prevent Congress from doing the same as to crimes not specified.[833]

Now comes an example of Marshall's reasoning when at his best--and briefest.

"Take, for example, the power 'to establish post-offices and post-roads.' This power is executed by the single act of making the establishment. But, from this has been inferred the power and duty of carrying the mail along the post-road, from one post-office to another. And, from this implied power, has again been inferred the right to punish those who steal letters from the post-office, or rob the mail. It may be said, with some plausibility, that the right to carry the mail, and to punish those who rob it, is not indispensably necessary to the establishment of a post-office and post-road. This right is indeed essential to the beneficial exercise of the power, but not indispensably necessary to its existence. So, of the punishment of the crimes of stealing or falsifying a record or process of a court of the United States, or of perjury in such court. To punish these offenses is certainly conducive to the due administration of justice. But courts may exist, and may decide the causes brought before them, though such crimes escape punishment.

"The baneful influence of this narrow construction on all the operations of the government, and the absolute impracticability of maintaining it without rendering the government incompetent to its great objects, might be illustrated by numerous examples drawn from the constitution, and from our laws. The good sense of the public has pronounced, without hesitation, that the power of punishment appertains to sovereignty, and may be exercised whenever the sovereign has a right to act, as incidental to his constitutional powers. It is a means for carrying into execution all sovereign powers, and may be used, although not indispensably necessary. It is a right incidental to the power, and conducive to its beneficial exercise."[834]

To attempt to prove that Congress might execute its powers without the use of other means than those absolutely necessary would be "to waste time and argument," and "not much less idle than to hold a lighted taper to the sun." It is futile to speculate upon imaginary reasons for the "necessary and proper" clause, since its purpose is obvious. It "is placed among the powers of Congress, not among the limitations on those powers. Its terms purport to enlarge, not to diminish the powers vested in the government.... If no other motive for its insertion can be suggested, a sufficient one is found in the desire to remove all doubts respecting the right to legislate on the vast mass of incidental powers which must be involved in the constitution, if that instrument be not a splendid bauble."[835]

Marshall thus reaches the conclusion that Congress may "perform the high duties assigned to it, in the manner most beneficial to the people." Then comes that celebrated passage--one of the most famous ever delivered by a jurist: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."[836]

Further on the Chief Justice restates this fundamental principle, without which the Constitution would be a lifeless thing: "Where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. The court disclaims all pretensions to such a power."[837]

The fact that there were State banks with whose business the National Bank might interfere, had nothing to do with the question of the power of Congress to establish the latter. The National Government does not depend on State Governments "for the execution of the great powers assigned to it. Its means are adequate to its ends." It can choose a National bank rather than State banks as an agency for the transaction of its business; "and Congress alone can make the election."

It is, then, "the unanimous and decided opinion" of the court that the Bank Act is Constitutional. So is the establishment of the branches of the parent bank. Can States tax these branches, as Maryland has tried to do? Of course the power of taxation "is retained by the states," and "is not abridged by the grant of a similar power to the government of the Union." These are "truths which have never been denied."

With sublime audacity Marshall then declares that "such is the paramount character of the constitution that its capacity to withdraw any subject from the action of even this power, is admitted."[838] This assertion fairly overwhelms the student, since the States then attempting to tax out of existence the branches of the National Bank did not admit, but emphatically denied, that the National Government could withdraw from State taxation any taxable subject whatever, except that which the Constitution itself specifically withdraws.

"The States," argues Marshall, "are expressly forbidden" to tax imports and exports. This being so, "the same paramount character would seem to restrain, as it certainly may restrain, a state from such other exercise of this [taxing] power, as is in its nature incompatible with, and repugnant to, the constitutional laws of the Union. A law, absolutely repugnant to another, as entirely repeals that other as if express terms of repeal were used."

In this fashion Marshall holds, in effect, that Congress can restrain the States from taxing certain subjects not mentioned in the Constitution as fully as though those subjects were expressly named.

It is on this ground that the National Bank claims exemption "from the power of a state to tax its operations." Marshall concedes that "there is no express provision [in the Constitution] for the case, but the claim has been sustained on a principle which so entirely pervades the constitution, is so intermixed with the materials which compose it, so interwoven with its web, so blended with its texture, as to be incapable of being separated from it without rendering it into shreds."[839]

This was, indeed, going far--the powers of Congress placed on "a principle" rather than on the language of the Constitution. When we consider the period in which this opinion was given to the country, we can understand--though only vaguely at this distance of time--the daring of John Marshall. Yet he realizes the extreme radicalism of the theory of Constitutional interpretation he is thus advancing, and explains it with scrupulous care.

"This great principle is that the constitution and the laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective states, and cannot be controlled by them. From this, which may be almost termed an axiom, other propositions are deduced as corollaries, on the truth or error of which ... the cause is supposed to depend."[840]

That "cause" was not so much the one on the docket of the Supreme Court, entitled M'Culloch vs. Maryland, as it was that standing on the docket of fate entitled Nationalism vs. Localism. And, although Marshall did not actually address them, everybody knew that he was speaking to the disunionists who were increasing in numbers and boldness. Everybody knew, also, that the Chief Justice was, in particular, replying to the challenge of the Virginia Republican organization as given through the Court of Appeals of that State.[841]

The corollaries which Marshall deduced from the principle of National supremacy were: "1st. That a power to create implies a power to preserve. 2d. That a power to destroy, if wielded by a different hand, is hostile to, and incompatible with these powers to create and to preserve. 3d. That where this repugnancy exists, that authority which is supreme must control, not yield to that over which it is supreme."[842]

It is "too obvious to be denied," continues Marshall that, if permitted to exercise the power, the States can tax the Bank "so as to destroy it." The power of taxation is admittedly "sovereign"; but the taxing power of the States "is subordinate to, and may be controlled by the constitution of the United States. How far it has been controlled by that instrument must be a question of construction. In making this construction, no principle not declared can be admissible, which would defeat the legitimate operations of a supreme government. It is of the very essence of supremacy to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments as to exempt its own operations from their own influence. This effect need not be stated in terms. It is so involved in the declaration of supremacy, so necessarily implied in it, that the expression of it could not make it more certain. We must, therefore, keep it [the principle of National supremacy] in view while construing the constitution."[843]

Unlimited as is the power of a State to tax objects within its jurisdiction, that State power does not "extend to those means which are employed by Congress to carry into execution powers conferred on that body by the people of the United States ... powers ... given ... to a government whose laws ... are declared to be supreme.... The right never existed [in the States] ... to tax the means employed by the government of the Union, for the execution of its powers."[844]

Regardless of this fact, however, can States tax instrumentalities of the National Government? It cannot be denied, says Marshall, that "the power to tax involves the power to destroy; that the power to destroy may defeat ... the power to create; that there is a plain repugnance, in conferring on one government a power to control the constitutional measures of another, which other, with respect to those very measures, is declared to be supreme over that which exerts the control."[845]

Here Marshall permits himself the use of sarcasm, which he dearly loved but seldom employed. The State Rights advocates insisted that the States can be trusted not to abuse their powers--confidence must be reposed in State Legislatures and officials; they would not destroy needlessly, recklessly. "All inconsistencies are to be reconciled by the magic of the word CONFIDENCE," says Marshall. "But," he continues, "is this a case of 'confidence'? Would the people of any one state trust those of another with a power to control the most insignificant operations of their state government? We know they would not."

By the same token the people of one State would never consent that the Government of another State should control the National Government "to which they have confided the most important and most valuable interests. In the legislature of the Union alone, are all represented. The legislature of the Union alone, therefore, can be trusted by the people with the power of controlling measures which concern all, in the confidence that it will not be abused. This, then, is not a case of confidence."[846]

The State Rights theory is "capable of arresting all the measures of the government, and of prostrating it at the foot of the states." Instead of the National Government being "supreme," as the Constitution declares it to be, "supremacy" would be transferred "in fact, to the states"; for, "if the states may tax one instrument, employed by the government in the execution of its powers, they may tax any and every other instrument. They may tax the mail; they may tax the mint; they may tax patent-rights; they may tax the papers of the custom-house; they may tax judicial process; they may tax all the means employed by the government, to an excess which would defeat all the ends of government. This was not intended by the American people. They did not design to make their government dependent on the states."

The whole question is, avows Marshall, "in truth, a question of supremacy." If the anti-National principle that the States can tax the instrumentalities of the National Government is to be sustained, then the declaration in the Constitution that it and laws made under it "shall be the supreme law of the land, is empty and unmeaning declamation."[847]

Maryland had argued that, since the taxing power is, at least, "concurrent" in the State and National Governments, the States can tax a National bank as fully as the Nation can tax State banks. But, remarks Marshall, "the two cases are not on the same reason." The whole American people and all the States are represented in Congress; when they tax State banks, "they tax their constituents; and these taxes must be uniform. But, when a state taxes the operations of the government of the United States, it acts upon institutions created, not by their own constituents, but by people over whom they claim no control. It acts upon the measures of a government created by others as well as themselves, for the benefit of others in common with themselves.

"The difference is that which always exists, and always must exist, between the action of the whole on a part, and the action of a part on the whole--between the laws of a government declared to be supreme, and those of a government which, when in opposition to those laws, is not supreme.... The states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government."[848]

For these reasons, therefore, the judgment of the Supreme Court was that the Maryland law taxing the Baltimore branch of the National Bank was "contrary to the constitution ... and void"; that the judgment of the Baltimore County Court against the branch bank "be reversed and annulled," and that the judgment of the Maryland Court of Appeals affirming the judgment of the County Court also "be reversed and annulled."[849]

In effect John Marshall thus rewrote the fundamental law of the Nation; or, perhaps it may be more accurate to say that he made a written instrument a living thing, capable of growth, capable of keeping pace with the advancement of the American people and ministering to their changing necessities. This greatest of Marshall's treatises on government may well be entitled the "Vitality of the Constitution." Story records that Marshall's opinion aroused great political excitement;[850] and no wonder, since the Chief Justice announced, in principle, that Congress had sufficient power to "emancipate every slave in the United States" as John Randolph declared five years later.[851]

Roane, Ritchie, Taylor, and the Republican organization of Virginia had anticipated that the Chief Justice would render a Nationalist opinion; but they were not prepared for the bold and crushing blows which he rained upon their fanatically cherished theory of Localism. As soon as they recovered from their surprise and dismay, they opened fire from their heaviest batteries upon Marshall and the National Judiciary. The way was prepared for them by a preliminary bombardment in the Weekly Register of Hezekiah Niles.

This periodical had now become the most widely read and influential publication in the country; it had subscribers from Portland to New Orleans, from Savannah to Fort Dearborn. Niles had won the confidence of his far-flung constituency by his honesty, courage, and ability. He was the prototype of Horace Greeley, and the Register had much the same hold on its readers that the Tribune came to have thirty years later.

In the first issue of the Register, after Marshall's opinion was delivered, Niles began an attack upon it that was to spread all over the land. "A deadly blow has been struck at the sovereignty of the states, and from a quarter so far removed from the people as to be hardly accessible to public opinion," he wrote. "The welfare of the union has received a more dangerous wound than fifty Hartford conventions ... could inflict." Parts of Marshall's opinion are "incomprehensible. But perhaps, as some people tell us of what they call the mysteries of religion, the common people are not to understand them, such things being reserved only for the priests!!"[852]

The opinion of the Chief Justice was published in full in Niles's Register two weeks after he delivered it,[853] and was thus given wider publicity than any judicial utterance previously rendered in America. Indeed, no pronouncement of any court, except, perhaps, that in Gibbons vs. Ogden,[854] was read so generally as Marshall's opinion in M'Culloch vs. Maryland, until the publication of the Dred Scott decision thirty-eight years later. Niles continues his attack in the number of the Register containing the Bank opinion:

It is "more important than any ever before pronounced by that exalted tribunal--a tribunal so far removed from the people, that some seem to regard it with a species of that awful reverence in which the inhabitants of Asia look up to their princes."[855] This exasperated sentence shows the change that Marshall, during his eighteen years on the bench, had wrought in the standing and repute of the Supreme Court.[856] The doctrines of the Chief Justice amount to this, said Niles--"congress may grant monopolies" at will, "if the price is paid for them, or without any pecuniary consideration at all." As for the Chief Justice personally, he "has not added ... to his stock of reputation by writing it--it is excessively labored."[857]

Papers throughout the country copied Niles's bitter criticisms,[858] and public opinion rapidly crystallized against Marshall's Nationalist doctrine. Every where the principle asserted by the Chief Justice became a political issue; or, rather, his declaration, that that principle was law, made sharper the controversy that had divided the people since the framing of the Constitution.

In number after number of his Register Niles, pours his wrath on Marshall's matchless interpretation. It is "far more dangerous to the union and happiness of the people of the United States than ... foreign invasion.[859] ... Certain nabobs in Boston, New York, Philadelphia and Baltimore, ... to secure the passage of an act of incorporation, ... fairly purchase the souls of some members of the national legislature with money, as happened in Georgia, or secure the votes of others by making them stockholders, as occurred in New York, and the act is passed.[860]... We call upon the people, the honest people, who hate monopolies and privileged orders, to arise in their strength and purge our political temple of the money-changers and those who sell doves--causing a reversion to the original purity of our system of government, that the faithful centinel may again say, 'ALL'S WELL!'"[861]

Extravagant and demagogical as this language of Niles's now seems, he was sincere and earnest in the use of it. Copious quotations from the Register have been here made because it had the strongest influence on American public opinion of any publication of its time. Niles's Register was, emphatically, the mentor of the country editor.[862]

At last the hour had come when the Virginia Republican triumvirate could strike with an effect impossible of achievement in 1816 when the Supreme Court rebuked and overpowered the State appellate tribunal in Martin vs. Hunter's Lessee.[863] Nobody outside of Virginia then paid any attention to that decision, so obsessed was the country by speculation and seeming prosperity. But in 1819 the collapse had come; poverty and discontent were universal; rebellion against Nationalism was under way; and the vast majority blamed the Bank of the United States for all their woes. Yet Marshall had upheld "the monster." The Virginia Junto's opportunity had arrived.

No sooner had Marshall returned to Richmond than he got wind of the coming assault upon him. On March 23, 1819, the Enquirer published his opinion in full. The next day the Chief Justice wrote Story: "Our opinion in the Bank case has aroused the sleeping spirit of Virginia, if indeed it ever sleeps. It will, I understand, be attacked in the papers with some asperity, and as those who favor it never write for the publick it will remain undefended & of course be considered as damnably heretical."[864] He had been correctly informed. The attack came quickly.

On March 30, Spencer Roane opened fire in the paper of his cousin Thomas Ritchie, the Enquirer,[865] under the nom de guerre of "Amphictyon." His first article is able, calm, and, considering his intense feelings, fair and moderate. Roane even extols his enemy:

"That this opinion is very able every one must admit. This was to have been expected, proceeding as it does from a man of the most profound legal attainments, and upon a subject which has employed his thoughts, his tongue, and his pen, as a politician, and an historian for more than thirty years. The subject, too, is one which has, perhaps more than any other, heretofore drawn a broad line of distinction between the two great parties in this country, on which line no one has taken a more distinguished and decided rank than the judge who has thus expounded the supreme law of the land. It is not in my power to carry on a contest upon such a subject with a man of his gigantic powers."[866]

Niles had spoken to "the plain people"; Roane is now addressing the lawyers and judges of the country. His essay is almost wholly a legal argument. It is based on the Virginia Resolutions of 1799 and gives the familiar State Rights arguments, applying them to Marshall's opinion.[867] In his second article Roane grows vehement, even fiery, and finally exclaims that Virginia "never will employ force to support her doctrines till other measures have entirely failed."[868]

His attacks had great and immediate response. No sooner had copies of the Enquirer containing the first letters of Amphictyon reached Kentucky than the Republicans of that State declared war on Marshall. On April 20, the Enquirer printed the first Western response to Roane's call to arms. Marshall's principles, said the Kentucky correspondent, "must raise an alarm throughout our widely extended empire.... The people must rouse from the lap of Delilah and prepare to meet the Philistines.... No mind can compass the extent of the encroachments upon State and individual rights which may take place under the principles of this decision."[869]

Even Marshall, a political and judicial veteran in his sixty-fifth year, was perturbed. "The opinion in the Bank case continues to be denounced by the democracy in Virginia," he writes Story, after the second of Roane's articles appeared. "An effort is certainly making to induce the legislature which will meet in December to take up the subject & to pass resolutions not very unlike those which were called forth by the alien & sedition laws in 1799. Whether the effort will be successful or not may perhaps depend in some measure on the sentiments of our sister states. To excite this ferment the opinion has been grossly misrepresented; and where its argument has been truly stated it has been met by principles one would think too palpably absurd for intelligent men.

"But," he gloomily continues, "prejudice will swallow anything. If the principles which have been advanced on this occasion were to prevail the constitution would be converted into the old confederation."[870]

As yet Roane had struck but lightly. He now renewed the Republican offensive with greater spirit. During June, 1819, the Enquirer published four articles signed "Hampden," from Roane's pen. Ritchie introduced the "Hampden" essays in an editorial in which he urged the careful reading of the exposure "of the alarming errors of the Supreme Court.... Whenever State rights are threatened or invaded, Virginia will not be the last to sound the tocsin."[871]

Are the people prepared "to give carte blanche to our federal rulers"? asked Hampden. Amendment of the Constitution by judicial interpretation is taking the place of amendment by the people. Infamous as the methods of National judges had been during the administration of Adams, "the most abandoned of our rulers," Marshall and his associates have done worse. They have given "a general letter of attorney to the future legislators of the Union.... That man must be a deplorable idiot who does not see that there is no ... difference" between an "unlimited grant of power and a grant limited in its terms, but accompanied with unlimited means of carrying it into execution.... The crisis is one which portends destruction to the liberties of the American people." Hampden scoldingly adds: "If Mason or Henry could lift their patriot heads from the grave, ... they would almost exclaim, with Jugurtha, 'Venal people! you will soon perish if you can find a purchaser.'"[872]

For three more numbers Hampden pressed the Republican assault on Marshall's opinion. The Constitution is a "compact, to which the States are the parties." Marshall's argument in the Virginia Convention of 1788 is quoted,[873] and his use of certain terms in his "Life of Washington" is cited.[874] If the powers of the National Government ought to be enlarged, "let this be the act of the people, and not that of subordinate agents."[875] The opinion of the Chief Justice repeatedly declares "that the general government, though limited in its powers, is supreme." Hampden avows that he does "not understand this jargon.... The people only are supreme.[876]... Our general government ... is as much a ... 'league' as was the former confederation." Therefore, the Virginia Court of Appeals, in Hunter vs. Fairfax, declared an act of Congress "unconstitutional, although it had been sanctioned by the opinion of the Supreme Court of the United States." Pennsylvania, too, had maintained its "sovereignty."[877]

Hampden has only scorn for "some of the judges" who concurred in the opinion of the Chief Justice. They "had before been accounted republicans.... Few men come out from high places, as pure as they went in."[878] If Marshall's doctrine stands, "the triumph over our liberties will be ... easy and complete." What, then, could "arrest this calamity"? Nothing but an "appeal" to the people. Let this majestic and irresistible power be invoked.[879]

That he had no faith in his own theory is proved by the rather dismal fact that, more than two months before Marshall "violated the Constitution" and "endangered the liberties" of the people by his Bank decision, Roane actually arranged for the purchase, as an investment for his son, of $4900 worth of the shares of the Bank of the United States, and actually made the investment.[880] This transaction, consummated even before the argument in M'Culloch vs. Maryland, shows that Roane, the able lawyer, was sure that Marshall would and ought to sustain the Bank in its controversy with the States that were trying to destroy it. Moreover, Dr. John Brockenbrough, President of the Bank of Virginia, actually advised the investment.[881]

It is of moment, too, to note at this point the course taken by Marshall, who had long owned stock in the Bank of the United States. As soon as he learned that the suit had been brought which, of a certainty, must come before him, the Chief Justice disposed of his holdings.[882]

So disturbed was Marshall by Roane's attacks that he did a thoroughly uncharacteristic thing. By way of reply to Roane he wrote, under the nom de guerre of "A Friend of the Union," an elaborate defense of his opinion and, through Bushrod Washington, procured the publication of it in the Union of Philadelphia, the successor of the Gazette of the United States, and the strongest Federalist newspaper then surviving.

On June 28, 1819, the Chief Justice writes Washington: "I expected three numbers would have concluded my answer to Hampden but I must write two others which will follow in a few days. If the publication has not commenced I could rather wish the signature to be changed to 'A Constitutionalist.' A Friend of the Constitution is so much like a Friend of the Union that it may lead to some suspicion of identity.... I hope the publication has commenced unless the Editor should be unwilling to devote so much of his paper to this discussion. The letters of Amphyction & of Hampden have made no great impression in Richmond but they were designed for the country [Virginia] & have had considerable influence there. I wish the refutation to be in the hands of some respectable members of the legislature as it may prevent some act of the assembly [torn--probably "both"] silly & wicked. If the publication be made I should [like] to have two or three sets of the papers to hand if necessary. I will settle with you for the printer."[883]

The reading of Marshall's newspaper effort is exhausting; a summary of the least uninteresting passages will give an idea of the whole paper. The articles published in the Enquirer were intended, so he wrote, to inflict "deep wounds on the constitution," are full of "mischievous errours," and are merely new expressions of the old Virginia spirit of hostility to the Nation. The case of M'Culloch vs. Maryland serves only as an excuse "for once more agitating the publick mind, and reviving those unfounded jealousies by whose blind aid ambition climbs the ladder of power."[884]

After a long introduction, Marshall enters upon his defense which is as wordy as his answer to the Virginia Resolutions. He is sensitive over the charge, by now popularly made, that he controls the Supreme Court, and cites the case of the Nereid to prove that the Justices give dissenting opinions whenever they choose. "The course of every tribunal must necessarily be, that the opinion which is to be delivered as the opinion of the court, is previously submitted to the consideration of all the judges; and, if any part of the reasoning be disapproved, it must be so modified as to receive the approbation of all, before it can be delivered as the opinion of all."

Roane's personal charges amount to this: "The chief justice ... is a federalist; who was a politician of some note before he was judge; and who with his tongue and his pen supported the opinions he avowed." With the politician's skill Marshall uses the fact that the majority of the court, which gave the Nationalist judgment in M'Culloch vs. Maryland, were Republicans--"four of whom [Story, Johnson, Duval, and Livingston] have no political sin upon their heads;--who in addition to being eminent lawyers, have the still greater advantage of being sound republicans; of having been selected certainly not for their federalism, by Mr Jefferson, and Mr Madison, for the high stations they so properly fill." For eight tedious columns of diffuse repetition Marshall goes on in defense of his opinion.[885]

When the biographer searches the daily life of a man so surpassingly great and good as Marshall, he hopes in no ungenerous spirit to find some human frailty that identifies his hero with mankind. The Greeks did not fail to connect their deities with humanity. The leading men of American history have been ill-treated in this respect--for a century they have been held up to our vision as superhuman creatures to admire whom was a duty, to criticize whom was a blasphemy, and to love or understand whom was an impossibility.

All but Marshall have been rescued from this frigid isolation. Any discovery of human frailty in the great Chief Justice is, therefore, most welcome. Some small and gracious defects in Marshall's character have appeared in the course of these volumes; and this additional evidence of his susceptibility to ordinary emotion is very pleasing. With all his stern repression of that element of his character, we find that he was sensitive in the extreme; in reality, thirsting for approval, hurt by criticism. In spite of this desire for applause and horror of rebuke, however, he did his duty, knowing beforehand that his finest services would surely bring upon him the denunciation and abuse he so disliked. By such peevishness as his anonymous reply in the Union to Roane's irritating attacks, we are able to get some measure of the true proportions of this august yet very human character.

When Marshall saw, in print, this controversial product of his pen, he was disappointed and depressed. The editor had, he avowed, so confused the manuscript that it was scarcely intelligible. At any rate, Marshall did not want his defense reproduced in New England. Story had heard of the article in the Union, and wrote Marshall that he wished to secure the publication of it. The Chief Justice replied:

"The piece to which you allude was not published in Virginia. Our patriotic papers admit no such political heresies. It contained, I think, a complete demonstration of the fallacies & errors contained in those attacks on the opinion of the Court which have most credit here & are supposed to proceed from a high source,[886] but was so mangled in the publication that those only who had bestowed close attention to the subject could understand it.

"There were two numbers[887] & the editor of the Union in Philadelphia, the paper in which it was published, had mixed the different numbers together so as in several instances to place the reasoning intended to demonstrate one proposition under another. The points & the arguments were so separated from each other, & so strangely mixed as to constitute a labyrinth to which those only who understood the whole subject perfectly could find a clue."[888]

It appears that Story insisted on having at least Marshall's rejoinder to Roane's first article reproduced in the Boston press. Again the Chief Justice evades the request of his associate and confidant: "I do not think a republication of the piece you mention in the Boston papers to be desired, as the antifederalism of Virginia will not, I trust, find its way to New England. I should also be sorry to see it in Mr. Wheaton's[889] appendix because that circumstance might lead to suspicions regarding the author & because I should regret to see it republished in its present deranged form with the two centres transposed."[890]

For a brief space, then, the combatants rested on their arms, but each was only gathering strength for the inevitable renewal of the engagement which was to be sterner than any previous phases of the contest.

Soon after the convening of the first session of the Virginia Legislature held subsequent to the decision of M'Culloch vs. Maryland, Roane addressed the lawmakers through the Enquirer, now signing himself "Publicola." He pointed out the "absolute disqualification of the supreme court of the U. S. to decide with impartiality upon controversies between the General and State Governments";[891] and, to "ensure unbiassed" decisions, insisted upon a Constitutional amendment to establish a tribunal "(as occasion may require)" appointed partly by the States and partly by the National Government, "with appellate jurisdiction from the present supreme court."[892]

Promptly a resolution against Marshall's opinion was offered in the House of Delegates.[893] This noteworthy paper was presented by Andrew Stevenson, a member of the "committee for Courts of Justice."[894] The resolutions declared that the doctrines of M'Culloch vs. Maryland would "undermine the pillars of the Constitution itself." The provision giving to the judicial power "all cases arising under the Constitution" did not "extend to questions which would amount to a subversion of the constitution itself, by the usurpation of one contracting party on another." But Marshall's opinion was calculated to "change the whole character of the government."[895]

Sentences from the opinion of the Chief Justice are quoted, including the famous one: "Let the end be legitimate, ... and all the means which are appropriate, ... which are not prohibited, ... are constitutional." Did not such expressions import that Congress could "conform the constitution to their own designs" by the exercise of "unlimited and uncontrouled" power? The ratifying resolution of the Constitution by the Virginia Convention of 1788 is quoted.[896] Virginia's voice had been heard to the same effect in the immortal Resolutions of 1799. Her views had been endorsed by the country in the Presidential election of 1800--that "great revolution of principle." Her Legislature, therefore, "enter their most solemn protest, against the decision of the supreme court, and of the principles contained in it."

In this fashion the General Assembly insisted on an amendment to the National Constitution "creating a tribunal" authorized to decide questions relative to the "powers of the general and state governments, under the compact." The Virginia Senators are, therefore, instructed to do their best to secure such an amendment and "to resist on every occasion" attempted legislation by Congress in conflict with the views set forth in this resolution or those of 1799 "which have been re-considered, and are fully and entirely approved of by this Assembly." The Governor is directed to transmit the resolutions to the other States.[897]

At this point Slavery and Secession enter upon the scene. Almost simultaneously with the introduction of the resolutions denouncing Marshall and the Supreme Court for the judgment and opinion in M'Culloch vs. Maryland, other resolutions were offered by a member of the House named Baldwin denouncing the imposition of restrictions on Missouri (the prohibition of slavery) as a condition of admitting that Territory to the Union. Such action by Congress would "excite feelings eminently hostile to the fraternal affection and prudent forbearance which ought ever to pervade the confederated union."[898] Two days later, December 30, the same delegate introduced resolutions to the effect that only the maintenance of the State Rights principle could "preserve the confederated union," since "no government can long exist which lies at the mercy of another"; and, inferentially, that Marshall's opinion in M'Culloch vs. Maryland had violated that principle.[899]

A yet sterner declaration on the Missouri question quickly followed, declaring that Congress had no power to prohibit slavery in that State, and that "Virginia will support the good people of Missouri in their just rights ... and will co-operate with them in resisting with manly fortitude any attempt which Congress may make to impose restraints or restrictions as the price of their admission" to the Union.[900] The next day these resolutions, strengthened by amendment, were adopted.[901] On February 12, 1820, the resolutions condemning the Nationalist doctrine expounded by the Chief Justice in the Bank case also came to a vote and passed, 117 ayes to 38 nays.[902] They had been amended and reamended,[903] but, as adopted, they were in substance the same as those originally offered by Stevenson. Through both these sets of resolutions--that on the Missouri question and that on the Bank decision--ran the intimation of forcible resistance to National authority. Introduced at practically the same time, drawn and advocated by the same men, passed by votes of the same members, these important declarations of the Virginia Legislature were meant to be and must be considered as a single expression of the views of Virginia upon National policy.

In this wise did the Legislature of his own State repudiate and defy that opinion of John Marshall which has done more for the American Nation than any single utterance of any other one man, excepting only the Farewell Address of Washington. In such manner, too, was the slavery question brought face to face with Marshall's lasting exposition of the National Constitution. For, it should be repeated, in announcing the principles by virtue of which Congress could establish the Bank of the United States, the Chief Justice had also asserted, by necessary inference, the power of the National Legislature to exact the exclusion of slavery as a condition upon which a State could be admitted to the Union. At least this was the interpretation of Virginia and the South.

The slavery question did not, to be sure, closely touch Northern States, but their local interests did. Thus it was that Ohio aligned herself with Virginia in opposition to Marshall's Nationalist statesmanship, and in support of the Jeffersonian doctrine of Localism. In such fashion did the Ohio Bank question become so intermingled with the conflict over Slavery and Secession that, in the consideration of Marshall's opinions at this time, these controversies cannot be separated. The facts of the Ohio Bank case must, therefore, be given at this point.[904]

Since the establishment at Cincinnati, early in 1817, of a branch of the Bank of the United States, Ohio had threatened to drive it from the State by a prohibitive tax. Not long before the argument of M'Culloch vs. Maryland in the Supreme Court, the Ohio Legislature laid an annual tax of $50,000 on each of the two branches which, by that time, had been established in that State.[905] On February 8, 1819, only four days previous to the hearing of the Maryland case at Washington, and less than a month before Marshall delivered his opinion, the Ohio lawmakers passed an act directing the State Auditor, Ralph Osborn, to charge this tax of $50,000 against each of the branches, and to issue a warrant for the immediate collection of $100,000, the total amount of the first year's tax.

This law is almost without parallel in severity, peremptoriness, and defiant contempt for National authority. If the branches refused to pay the tax, the Ohio law enjoined the person serving the State Auditor's warrant to seize all money or property belonging to the Bank, found on its premises or elsewhere. The agent of the Auditor was directed to open the vaults, search the offices, and take everything of value.[906]

Immediately the branch at Chillicothe obtained from the United States District Court, then in session at that place, an injunction forbidding Osborn from collecting the tax;[907] but the bank's counsel forgot to have a writ issued to stay the proceedings. Therefore, no order of the court was served; instead a copy of the bill praying that the Auditor be restrained, together with a subpoena to answer, was sent to Osborn. These papers were not, of course, an injunction, but merely notice that one had been applied for. Thinking to collect the tax before the injunction could be issued, Osborn forthwith issued his Auditor's warrant to one John L. Harper to collect the tax immediately. Assisted by a man named Thomas Orr, Harper entered the Chillicothe branch of the Bank of the United States, opened the vaults, seized all the money to be found, and deposited it for the night in the local State bank. Next morning Harper and Orr loaded the specie, bank notes, and other securities in a wagon and started for Columbus.[908]

The branch bank tardily obtained an order from the United States Court restraining Osborn, the State Auditor, and Harper, the State agent, from delivering the money to the State Treasurer and from making any report to the Legislature of the collection of the tax. This writ was served on Harper as he and Orr were on the road to the State Capital with the money. Harper simply ignored the writ, drove on to Columbus, and handed over to the State Treasurer the funds which he had seized at Chillicothe.

Harper and Orr were promptly arrested and imprisoned in the jail at Chillicothe.[909] Because of technical defects in serving the warrant for their arrest and in the return of the marshal, the prisoners were set free.[910] An order was secured from the United States Court directing Osborn and Harper to show cause why an attachment should not be issued against them for having disobeyed the court's injunction not to deliver the bank's money to the State Treasurer. After extended argument, the court issued the attachment, which, however, was not made returnable until the January term, 1821.

Meanwhile the Virginia Legislature passed its resolutions denouncing Marshall's opinion in M'Culloch vs. Maryland, and throughout the country the warfare upon the Supreme Court began. The Legislature of Ohio acted with a celerity and boldness that made the procedure of the Virginia Legislature seem hesitant and timid. A joint committee was speedily appointed and as promptly made its report. This report and the resolutions recommended by it were adopted without delay and transmitted to the Senate of the United States.[911]

The Ohio declaration is drawn with notable ability. A State cannot be sued--the true meaning of the Constitution forbids, and the Eleventh Amendment specifically prohibits, such procedure.

Yet the action against Osborn, State Auditor, and Samuel Sullivan, State Treasurer, is, "to every substantial purpose, a process against the State." The decision of the National Supreme Court that the States have no power to tax branches of the Bank of the United States does not bind Ohio or render her tax law "a dead letter."[912]

The Ohio Legislature challenges the bona fides of M'Culloch vs. Maryland: "If, by the management of a party, and through the inadvertence or connivance of a State, a case be made, presenting to the Supreme Court of the United States for decision important ... questions of State power and State authority, upon no just principle ought the States to be concluded by any decision had upon such a case.... Such is the true character of the case passed upon the world by the title of McCulloch vs. Maryland," which, "when looked into, is found to be ... throughout, an agreed case, made expressly for the purpose of obtaining the opinion of the Supreme Court of the United States.... This agreed case was manufactured in the summer of the year 1818" and rushed through two Maryland courts, "so as to be got upon the docket of the Supreme Court of the United States for adjudication at their February term, 1819.... It is truly an alarming circumstance if it be in the power of an aspiring corporation and an unknown and obscure individual thus to elicit opinions compromitting the vital interests of the States that compose the American Union."

Luckily for Ohio and all the States, this report goes on to say, some of Marshall's opinions have been "totally impotent and unavailing," as, for instance, in the case of Marbury vs. Madison. Marbury did not get his commission; "the person appointed in his place continued to act; his acts were admitted to be valid; and President Jefferson retained his standing in the estimation of the American people." It was the same in the case of Fletcher vs. Peck. Marshall held that "the Yazoo purchasers ... were entitled to their lands. But the decision availed them nothing, unless as a make-weight in effecting a compromise." Since, in neither of these cases, had the National Government paid the slightest attention to the decision of the Supreme Court, how could Ohio "be condemned because she did not abandon her solemn legislative acts as a dead letter upon the promulgation of an opinion of that tribunal"?[913]

The Ohio Legislature then proceeds to analyze Marshall's opinion in M'Culloch vs. Maryland. All the arguments made against the principle of implied powers since Hamilton first announced that principle,[914] and all the reasons advanced against the doctrine that the National Government is supreme, in the sense employed by Marshall, are restated with clearness and power. However, since the object of the tax was to drive the branches of the Bank out of Ohio, the Legislature suggests a compromise. If the National institution will cease business within the State and "give assurance" that the branches be withdrawn, the State will refund the tax money it has seized.[915]

Instantly turning from conciliation to defiance, "because the reputation of the State has been assailed," the Legislature challenges the National Government to make good Marshall's assertion that the power which created the Bank "must have the power to preserve it." Ohio should pass laws "forbidding the keepers of our jails from receiving into their custody any person committed at the suit of the Bank of the United States," and prohibiting Ohio judges, recorders, notaries public, from recognizing that institution in any way.[916] Congress will then have to provide a criminal code, a system of conveyances, and other extensive measures. Ohio and the country will then learn whether the power that created the Bank can preserve it.

The Ohio memorial concludes with a denial that the "political rights" and "sovereign powers" of a State can be settled by the Supreme Court of the Nation "in cases contrived between individuals, and where they [the States] are, no one of them, parties direct." The resolutions further declare that the opinion of the other States should be secured.[917] This alarming manifesto was presented to the National Senate on February 1, 1821, just six weeks before Marshall delivered the opinion of the Supreme Court in Cohens vs. Virginia.[918]

Pennsylvania had already taken stronger measures; had anticipated even Virginia. Within seven weeks from the delivery of Marshall's opinion in M'Culloch vs. Maryland, the Legislature of Pennsylvania proposed an amendment to the National Constitution prohibiting Congress from authorizing "any bank or other monied institution" outside of the District of Columbia.[919] The action of Ohio was an endorsement of that of Virginia and Pennsylvania. Indiana had already swung into line.[920] So had Illinois and Tennessee.[921] For some reason, Kentucky, soon to become one of the most belligerent and persevering of all the States in her resistance to the "encroachments" of Nationalism as expounded by the Supreme Court, withheld her hand for the moment.

Most unaccountably, South Carolina actually upheld Marshall's opinion,[922] which that State, within a decade, was to repudiate, denounce, and defy in terms of armed resistance.[923] New York and Massachusetts,[924] consulting their immediate interests, were very stern against the Localism of Ohio, Virginia, and Pennsylvania.[925] Georgia expressed her sympathy with the Localist movement, but, for the time being, was complaisant[926]--a fact the more astonishing that she had already proved, and was soon to prove again, that Nationalism is a fantasy unless it is backed by force.[927]

Notwithstanding the eccentric attitude of various members of the Union, it was only too plain that a powerful group of States were acting in concert and that others ardently sympathized with them.

At this point, in different fashion, Virginia spoke again, this time by the voice of that great protagonist of Localism, John Taylor of Caroline, the originator of the Kentucky Resolutions,[928] and the most brilliant mind in the Republican organization of the Old Dominion. Immediately after Marshall's opinion in M'Culloch vs. Maryland, and while the Ohio conflict was in progress, he wrote a book in denunciation and refutation of Marshall's Nationalist principles. The editorial by Thomas Ritchie, commending Taylor's book, declares that "the crisis has come"; the Missouri question, the Tariff question, the Bank question, have brought the country to the point where a decision must be made as to whether the National Government shall be permitted to go on with its usurpations. "If there is any book capable of arousing the people, it is the one before us."

Taylor gave to his volume the title "Construction Construed, and Constitutions Vindicated." The phrases "exclusive interests" and "exclusive privileges" abound throughout the volume. Sixteen chapters compose this classic of State Rights philosophy. Five of them are devoted to Marshall's opinion in M'Culloch vs. Maryland; the others to theories of government, the state of the country, the protective tariff, and the Missouri question. The principles of the Revolution, avows Taylor, "are the keys of construction" and "the locks of liberty.[929]... No form of government can foster a fanaticism for wealth, without being corrupted." Yet Marshall's ideas establish "the despotick principle of a gratuitous distribution of wealth and poverty by law."[930]

If the theory that Congress can create corporations should prevail, "legislatures will become colleges for teaching the science of getting money by monopolies or favours."[931] To pretend faith in Christianity, and yet foster monopoly, is "like placing Christ on the car of Juggernaut."[932] The framers of the National Constitution tried to prevent the evils of monopoly and avarice by "restricting the powers given to Congress" and safeguarding those of the States; "in fact, by securing the freedom of property."[933]

Marshall is enamored of the word "sovereignty," an "equivocal and illimitable word," not found in "the declaration of independence, nor the federal constitution, nor the constitution of any single state"; all of them repudiated it "as a traitor of civil rights."[934] Well that they had so rejected this term of despotism! No wonder Jugurtha exclaimed, "Rome was for sale," when "the government exercised an absolute power over the national property." Of course it would "find purchasers."[935] To this condition Marshall's theories will bring America.

Whence this effort to endow the National Government with powers comparable to those of a monarchy? Plainly it is a reaction--"many wise and good men, ... alarmed by the illusions of Rousseau and Godwin, and the atrocities of the French revolution, honestly believe that these [democratic] principles have teeth and claws, which it is expedient to draw and pare, however constitutional they may be; without considering that such an operation will subject the generous lion to the wily fox; ... subject liberty and property to tyranny and fraud."[936]

In chapter after chapter of clever arguments, illumined by the sparkle of such false gems as these quotations, Taylor prepares the public mind for his direct attack on John Marshall. He is at a sad disadvantage; he, "an unknown writer," can offer only "an artless course of reasoning" against the "acute argument" of Marshall's opinion, concurred in by the members of the Supreme Court whose "talents," "integrity," "uprightness," and "erudition" are universally admitted.[937] The essence of Marshall's doctrine is that, although the powers of the National Government are limited, the means by which they may be executed are unlimited. But, "as ends may be made to beget means, so means may be made to beget ends, until the co-habitation shall rear a progeny of unconstitutional bastards, which were not begotten by the people."[938]

Marshall had said that "'the creation of a corporation appertains to sovereignty.'" This is the language of tyranny. The corporate idea crept into British law "wherein it hides the heart of a prostitute under the habiliments of a virgin."[939] But since, in America, only the people are "sovereign," and, to use Marshall's own words, the power to create corporations "appertains to sovereignty," it follows that neither State nor National Governments can create corporations.[940]

The Chief Justice is a master of the "science of verbality" by which the Constitution may be rendered "as unintelligible, as a single word would be made by a syllabick dislocation, or a jumble of its letters; and turn it into a reservoir of every meaning for which its expounder may have occasion."

Where does Marshall's "artifice of verbalizing" lead?[941] To an "artificially reared, a monied interest ... which is gradually obtaining an influence over the federal government," and "craftily works upon the passions of the states it has been able to delude" [on the slavery question], "to coerce the defrauded and discontented states into submission." For this reason talk of civil war abounds. "For what are the states talking about disunion, and for what are they going to war among themselves? To create or establish a monied sect, composed of privileged combinations, as an aristocratical oppressor of them all."[942] Marshall's doctrine that Congress may bestow "exclusive privileges" is at the bottom of the Missouri controversy. "Had the motive ... never existed, the discussion itself would never have existed; but if the same cause continues, more fatal controversies may be expected."[943]

Finally Taylor hurls at the Nation the challenge of the South, which the representatives of that section, from the floor of Congress, quickly repeated in threatenings of civil war.[944] "There remains a right, anterior to every political power whatsoever, ... the natural right of self-defence.... It is allowed, on all hands, that danger to the slave-holding states lurks in their existing situation, ... and it must be admitted that the right of self-defence applies to that situation.... I leave to the reader the application of these observations."[945]

Immediately upon its publication, Ritchie sent a copy of Taylor's book to Jefferson, who answered that he knew "before reading it" that it would prove "orthodox." The attack upon the National courts could not be pressed too energetically: "The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric.... An opinion is huddled up in conclave, perhaps by a majority of one, delivered as if unanimous, and with the silent acquiescence of lazy and timid associates, by a crafty chief judge, who sophisticates the law to his mind, by the turn of his own reasoning."[946]

FOOTNOTES:

[784] These penalties were forfeits of $500 for every offense--a sum that would have aggregated hundreds of thousands, perhaps millions of dollars, in the case of the Baltimore branch, which did an enormous business. The Maryland law also provided that "every person having any agency in circulating" any such unauthorized note of the Bank should be fined one hundred dollars. (Act of Feb. 11, 1818, Laws of Maryland, 174.)Return to passage

[785] Story to White, March 3, 1819, Story, I, 325.Return to passage

[786] Webster always dressed with extreme care when he expected to make a notable speech or argument. For a description of his appearance on such an occasion see Sargent: Public Men and Events, I, 172.Return to passage

[787] 4 Wheaton, 323.Return to passage

[788] Ib. 324.Return to passage

[789] Ib. 327.Return to passage

[790] Ib. 328.Return to passage

[791] 4 Wheaton, 330 et seq.Return to passage

[792] Ib. 362 et seq.Return to passage

[793] Ib. 272-73.Return to passage

[794] Ib. 374.Return to passage

[795] Tyler: Memoir of Roger Brooke Taney, 141.Return to passage

[796] The student should carefully examine Pinkney's argument. Although the abstract of it given in Wheaton's report is very long, a painstaking study of it will be helpful to a better understanding of the development of American Constitutional law. (4 Wheaton, 377-400.)Return to passage

[797] Story to White, March 3, 1819, Story, I, 324-25.Return to passage

[798] 4 Wheaton, 426.Return to passage

[799] See supra, chap. V.Return to passage

[800] Webster to Mason, Feb. 24, 1819, Van Tyne, 78-79.Return to passage

[801] Webster to Smith, Feb. 28, 1819, ib. 79-80.Return to passage

[802] From February 22 to February 27 and from March 1 to March 3, 1819.Return to passage

[803] February 18, 1819. See Annals, 15th Cong. 2d Sess. 1240.Return to passage

[804] Ib. 1242.Return to passage

[805] Annals, 15th Cong. 2d Sess. 1249-50.Return to passage

[806] Ib. 1254.Return to passage

[807] Ib. 1286.Return to passage

[808] Ib. 1311.Return to passage

[809] Ib. 1404-06.Return to passage

[810] "Marshall's opinion in M'Culloch vs. Maryland, is perhaps the most celebrated Judicial utterance in the annals of the English speaking world." (Great American Lawyers: Lewis, II, 363.)Return to passage

[811] As the biographer of Washington, Marshall had carefully read both Hamilton's and Jefferson's Cabinet opinions on the constitutionality of a National bank. Compare Hamilton's argument (vol. II, 72-74, of this work) with Marshall's opinion in M'Culloch vs. Maryland.Return to passage

[812] 4 Wheaton, 400.Return to passage

[813] Ib. (Italics the author's.)Return to passage

[814] 4 Wheaton, 400-02.Return to passage

[815] "In discussing this question, the counsel for the state of Maryland have deemed it of some importance, in the construction of the constitution, to consider that instrument not as emanating from the people, but as the act of sovereign and independent states. The powers of the general government, it has been said, are delegated by the states, who alone are truly sovereign; and must be exercised in subordination to the states, who alone possess supreme dominion.Return to passage

"It would be difficult to sustain this proposition. The convention which framed the constitution was indeed elected by the state legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation, or pretensions to it. It was reported to the then existing Congress of the United States, with a request that it might 'be submitted to a convention of delegates, chosen in each state, by the people thereof, under the recommendation of its legislature, for their assent and ratification.' This mode of proceeding was adopted; and by the convention, by Congress, and by the state legislatures, the instrument was submitted to the people.

"They acted upon it in the only manner in which they can act safely, effectively, and wisely, on such a subject, by assembling in convention. It is true, they assembled in their several states--and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding the American people into one common mass. Of consequence, when they act, they act in their states. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the state governments. From these conventions the constitution derives its whole authority." (4 Wheaton, 402-03.)

[816] 4 Wheaton, 403-04.Return to passage

[817] Ib. 405.Return to passage

[818] The Nationalist ideas of Marshall and Lincoln are identical; and their language is so similar that it seems not unlikely that Lincoln paraphrased this noble passage of Marshall and thus made it immortal. This probability is increased by the fact that Lincoln was a profound student of Marshall's Constitutional opinions and committed a great many of them to memory.Return to passage

The famous sentence of Lincoln's Gettysburg Address was, however, almost exactly given by Webster in his Reply to Hayne: "It is ... the people's Government; made for the people; made by the people; and answerable to the people." (Debates, 21st Cong. 1st Sess. 74; also Curtis, I, 355-61.) But both Lincoln and Webster merely stated in condensed and simpler form Marshall's immortal utterance in M'Culloch vs. Maryland. (See also infra, chap. X.)

[819] 4 Wheaton, 405-06.Return to passage

[820] 4 Wheaton, 406-07. (Italics the author's.)Return to passage

[821] Ib., 407-08.Return to passage

[822] See vol. I, 72, of this work.Return to passage

[823] 4 Wheaton, 408-09.Return to passage

[824] 4 Wheaton, 409-10.Return to passage

[825] Ib. 411.Return to passage

[826] "The Congress shall have Power ... to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." (Constitution of the United States, Article I, Section 8.)Return to passage

[827] 4 Wheaton, 412.Return to passage

[828] Ib. 413.Return to passage

[829] See vol. II, 71, of this work.Return to passage

[830] Vol. II, 72-74, of this work.Return to passage

[831] 4 Wheaton, 414.Return to passage

[832] 4 Wheaton, 415.Return to passage

[833] Ib. 416-17.Return to passage

[834] 4 Wheaton, 417-18.Return to passage

[835] 4 Wheaton, 419-21.Return to passage

[836] Ib. 421.Return to passage

[837] Ib. 423.Return to passage

[838] 4 Wheaton, 424-25.Return to passage

[839] 4 Wheaton, 425-26.Return to passage

[840] 4 Wheaton, 426.Return to passage

[841] See supra, 158 et seq.Return to passage

[842] 4 Wheaton, 426.Return to passage

[843] 4 Wheaton, 427.Return to passage

[844] Ib. 429-30.Return to passage

[845] 4 Wheaton, 431.Return to passage

[846] Ib.Return to passage

[847] 4 Wheaton, 432-33.Return to passage

[848] 4 Wheaton, 435-36.Return to passage

[849] Ib. 437.Return to passage

[850] Story to his mother, March 7, 1819, Story, I, 325-26.Return to passage

[851] See infra, 420; also 325-27; 338-39, 534-37.Return to passage

[852] Niles, XVI, 41-44.Return to passage

[853] Ib. 68-76.Return to passage

[854] See infra, chap. VIII.Return to passage

[855] Niles, XVI, 65.Return to passage

[856] See vol. III, 130-31, of this work.Return to passage

[857] Niles, XVI, 65.Return to passage

[858] Ib. 97. For instance, the Natchez Press, in announcing its intention to print Marshall's whole opinion, says that, if his doctrine prevails, "the independence of the individual states ... is obliterated at one fell sweep." No country can remain free "that tolerates incorporated banks, in any guise." (Ib. 210.)Return to passage

[859] Ib. 103.Return to passage

[860] Ib. 104.Return to passage

[861] Niles, XVI, 105.Return to passage

[862] Niles's attack on Marshall's opinion in M'Culloch vs. Maryland ran through three numbers. (See ib. 41-44; 103-05; 145-47.)Return to passage

[863] See supra, 161-67.Return to passage

[864] Marshall to Story, March 24, 1819, Proceedings, Mass, Hist. Soc. 2d Series, XIV, 324.Return to passage

[865] See supra, 146.Return to passage

[866] Enquirer, March 30, 1819, as quoted in Branch Hist. Papers, June, 1905, 52-53.Return to passage

[867] Branch Hist. Papers, June, 1905, 51-63.Return to passage

[868] Enquirer, April 2, 1819, as quoted in Branch Hist. Papers, June, 1905, 76. (Italics the author's.)Return to passage

[869] Enquirer, April 20, 1819, as quoted in ib. 76.Return to passage

[870] Marshall to Story, May 27, 1819, Proceedings, Mass. Hist. Soc. 2d Series, XIV, 325.Return to passage

[871] Enquirer, June 11, 1819, as quoted in Branch Hist. Papers, June, 1905, footnote to 77.Return to passage

[872] Enquirer, June 11, 1819, as quoted in Branch Hist. Papers, June, 1905, 77-82.Return to passage

[873] Enquirer, June 15, 1819, as quoted in ib. 85; also Enquirer, June 18, 1819, as quoted in ib. 95.Return to passage

[874] Enquirer, June 15, 1819, as quoted in ib. 91.Return to passage

[875] Ib. 87; also Enquirer, June 18, 1819, as quoted in ib. 96-97.Return to passage

[876] Ib. 98.Return to passage

[877] Enquirer, June 22, 1819, as quoted in Branch Hist. Papers, June, 1905, 116.Return to passage

[878] Ib. 118.Return to passage

[879] Ib. 121. Madison endorsed Roane's attacks on Marshall. (See Madison to Roane, Sept. 2, 1819, Writings of James Madison: Hunt, VIII, 447-53.)Return to passage

[880] See Roane to his son, Jan. 4, 1819, Branch Hist. Papers, June, 1905, 134; and same to same, Feb. 4, 1819, ib. 135.Return to passage

Eighteen days before Marshall delivered his opinion Roane again writes his son: "I have to-day deposited in the vaults of the Virga. bank a certificate in your name for 50 shares U. S. bank stock, as per memo., by Mr. Dandridge Enclosed. The shares cost, as you will see, $98 each." (Roane to his son, Feb. 16, 1810, ib. 136.)

[881] Roane to his son, note 4, p. 317.Return to passage

[882] The entire transaction is set out in letters of Benjamin Watkins Leigh to Nicholas Biddle, Aug. 21, Aug. 28, Sept. 4, and Sept. 13, 1837; and Biddle to Leigh, Aug. 24 and 25, Sept. 7 and Sept. 15, 1837. (Biddle MSS. in possession of Professor R. C. McGrane of the University of Ohio, to whose courtesy the author is indebted for the use of this material. These letters appear in full in the Correspondence of Nicholas Biddle: McGrane, 283-89, 291-92, published in September, 1919, by Houghton Mifflin Company, Boston.)Return to passage

[883] Marshall to Bushrod Washington, June 28, 1819. This letter is unsigned, but is in Marshall's unmistakable handwriting and is endorsed by Bushrod Washington, "C. Just. Marshall." (Marshall MSS. Lib. Cong.)Return to passage

[884] UNION, April 24, 1819.Return to passage

[885] Union, April 24, 1819.Return to passage

[886] Marshall means that Jefferson inspired Roane's attacks.Return to passage

[887] Marshall had written five essays, but the editor condensed them into two numbers.Return to passage

[888] Marshall to Story, May 27, 1819, Proceedings, Mass. Hist. Soc. 2d Series, XIV, 325.Return to passage

[889] Henry Wheaton, Reporter of the Supreme Court.Return to passage

[890] Marshall to Story, July 13, 1819, Proceedings, Mass. Hist. Soc. 2d Series, XIV, 326.Return to passage

[891] Enquirer, Jan. 30, 1821.Return to passage

[892] Ib. Feb. 1, 1821.Return to passage

[893] Journal, House of Delegates, Virginia, 1819-20, 56-59.Return to passage

[894] Ib. 9.Return to passage

[895] Ib. 57.Return to passage

[896] This resolution declared that Virginia assented to the Constitution only on condition that "Every power not granted, remains with the people, and at their will; that therefore no right of any denomination can be cancelled, abridged, restrained, or modified, by the congress, by the senate, or house of representatives acting in any capacity; by the President or any department, or officer of the United States, except in those instances in which power is given by the constitution for those purposes." (Journal, House of Delegates, Virginia, 1819-20, 58.)Return to passage

[897] Journal, House of Delegates, Virginia, 1819-20, 59.Return to passage

[898] Ib. 76.Return to passage

[899] Journal, House of Delegates, Virginia, 1819-20, 85.Return to passage

[900] Ib. 105.Return to passage

[901] Ib. 108-09.Return to passage

[902] Ib. 179.Return to passage

[903] Ib. 175-78.Return to passage

[904] For Marshall's opinion in this controversy see infra, 347 et seq.Return to passage

[905] The second branch was established at Chillicothe.Return to passage

[906] Chap. 83, Laws of Ohio, 1818-19, 1st Sess. 190-99.Return to passage

Section 5 of this act will give the student the spirit of this autocratic law. This section made it the "duty" of the State agent collecting the tax, after demand on and refusal of the bank officers to pay the tax, if he cannot readily find in the bank offices the necessary amount of money, "to go into each and any other room or vault ... and to every closet, chest, box or drawer in such banking house, to open and search," and to levy on everything found. (Ib. 193.)

[907] A private letter to Niles says that when it was found that an injunction had been granted, the friends of the bank rejoiced, "wine was drank freely and mirth abounded." (Niles, XVII, 85.) This explains the otherwise incredible negligence of the bank's attorneys in the proceedings next day.Return to passage

[908] Niles, XVII, 85-87, reprinting account as published in the Chillicothe Supporter, Sept. 22, 1819, and the Ohio Monitor, Sept. 25, 1819.Return to passage

[909] Niles, XVII, 147.Return to passage

[910] Ib. 338.Return to passage

[911] Report of Committee made to the Ohio Legislature and transmitted to Congress. (Annals, 16th Cong. 2d Sess. 1685 et seq.)Return to passage

[912] Annals, 16th Cong. 2d Sess. 1691.Return to passage

[913] Annals, 16th Cong. 2d Sess. 1696-97.Return to passage

[914] See vol. II, 72-74, of this work.Return to passage

[915] Annals, 16th Cong. 2d Sess. 1712.Return to passage

[916] Ib. 1713.Return to passage

[917] Ib. 1714.Return to passage

[918] See infra, chap. VII of this work.Return to passage

[919] State Doc. Fed. Rel.: Ames, 90; and see Niles, XVI, 97, 132.Return to passage

[920] Pennsylvania House of Representatives, Journal, 1819-20, 537; State Doc. Fed. Rel.: Ames, footnote to 90-91.Return to passage

[921] Ib.Return to passage

[922] Ib. 91.Return to passage

[923] See infra, chap. X.Return to passage

[924] State Doc. Fed. Rel.: Ames, 92-103.Return to passage

[925] Ib. 92, 101-03.Return to passage

[926] Ib. 91.Return to passage

[927] See infra, chap. X.Return to passage

[928] See vol. II, 397, of this work.Return to passage

[929] Taylor: Construction Construed, and Constitutions Vindicated, 9.Return to passage

[930] Taylor: Construction Construed, 11-12. Taylor does not, of course, call Marshall by name, either in this book or in his other attacks on the Chief Justice.Return to passage

[931] Ib. 15.Return to passage

[932] Ib. 16.Return to passage

[933] Ib. 18.Return to passage

[934] Ib. 25-26.Return to passage

[935] Ib. 28.Return to passage

[936] Taylor: Construction Construed, 77.Return to passage

[937] Ib. 79.Return to passage

[938] Ib. 84.Return to passage

[939] Ib. 87.Return to passage

[940] Taylor: Construction Construed, 89.Return to passage

[941] Ib. 161.Return to passage

[942] Ib. 233.Return to passage

[943] Ib. 237.Return to passage

It is interesting to observe that Taylor brands the protective tariff as one of the evils of Marshall's Nationalist philosophy. "It destroys the division of powers between federal and state governments, ... it violates the principles of representation, ... it recognizes a sovereign power over property, ... it destroys the freedom of labour, ... it taxes the great mass of capital and labour, to enrich the few; ... it increases the burden upon the people ... increases the mass of poverty; ... it impoverishes workmen and enriches employers; ... it increases the expenses of government, ... it deprives commerce of the freedom of exchanges, ... it corrupts congress ... generates the extremes of luxury and poverty." (Taylor: Construction Construed, 252-53.)

[944] See infra, 340-42; and see infra, chap. X.Return to passage

[945] Taylor: Construction Construed, 314.Return to passage

[946] Jefferson to Ritchie, Dec. 25, 1820, Works: Ford, XII, 176-78. He declined, however, to permit publication of his endorsement of Taylor's book. (Ib.)Return to passage

VII. THREATS OF WAR

Cannot the Union exist unless Congress and the Supreme Court shall make banks and lotteries? (John Taylor "of Caroline.")

If a judge can repeal a law of Congress, by declaring it unconstitutional, is not this the exercise of political power? (Senator Richard M. Johnson.)

The States must shield themselves and meet the invader foot to foot. (Jefferson.)

The United States ... form a single nation. In war we are one people. In making peace we are one people. In all commercial regulations we are one and the same people. (Marshall.)

The crisis has arrived contemplated by the framers of the Constitution. (Senator James Barbour.)

The appeals of Niles, Roane, and Taylor, and the defiant attitude toward Nationalism of Virginia, Ohio, Pennsylvania, and other States, expressed a widespread and militant Localism which now manifested itself in another and still more threatening form. The momentous and dramatic struggle in Congress over the admission of Missouri quickly followed these attacks on Marshall and the Supreme Court.

Should that Territory come into the Union only on condition that slavery be prohibited within the new State, or should the slave system be retained? The clamorous and prophetic debate upon that question stirred the land from Maine to Louisiana. A division of the Union was everywhere discussed, and the right of a State to secede was boldly proclaimed.

In the House and Senate, civil war was threatened. "I fear this subject will be an ignited spark, which, communicated to an immense mass of combustion, will produce an explosion that will shake this Union to its centre.... The crisis has arrived, contemplated by the framers of the Constitution.... This portentous subject, twelve months ago, was a little speck scarcely visible above the horizon; it has already overcast the heavens, obscuring every other object; materials are everywhere accumulating with which to render it darker."[947] In these bombastic, yet serious words Senator James Barbour of Virginia, when speaking on the Missouri question on January 14, 1820, accurately described the situation.

"I behold the father armed against the son, ... a brother's sword crimsoned with a brother's blood, ... our houses wrapt in flames," exclaimed Senator Freeman Walker of Georgia. "If Congress ... impose the restriction contemplated [exclusion of slavery from Missouri], ... consequences fatal to the peace and harmony of this Union will ... result."[948] Senator William Smith of South Carolina asked "if, under the misguided influence of fanaticism and humanity, the impetuous torrent is once put in motion, what hand short of Omnipotence can stay it?"[949] In picturing the coming horrors Senator Richard Mentor Johnson of Kentucky declared that "the heart sickens, the tongue falters."[950]

In the House was heard language even more sanguinary. "Let gentlemen beware!" exclaimed Robert Raymond Reid of Georgia; for to put limits on slavery was to implant "envy, hatred, and bitter reproaches, which

'Shall grow to clubs and naked swords, To murder and to death.'...

Sir, the firebrand, which is even now cast into your society, will require blood ... for its quenching."[951]

Only a few Northern members answered with spirit. Senator Walter Lowrie of Pennsylvania preferred "a dissolution of this Union" rather than "the extension of slavery."[952] Daniel Pope Cook of Illinois avowed that "the sound of disunion ... has been uttered so often in this debate, ... that it is high time ... to adopt measures to prevent it.... Such declarations ... will have no ... effect upon me.... Is it ... the intention of gentlemen to arouse ... the South to rebellion?"[953] For the most part, however, Northern Representatives were mild and even hopeful.[954]

Such was the situation concerning which John Marshall addressed the American people in his epochal opinion in the case of Cohens vs. Virginia. The noble passages of that remarkable state paper were inspired by, and can be understood only in the light of, the crisis that produced them. Not in the mere facts of that insignificant case, not in the precise legal points involved, is to be found the inspiration of Marshall's transcendent effort on this occasion. Indeed, it is possible, as the Ohio Legislature and the Virginia Republican organization soon thereafter charged, that Cohens vs. Virginia was "feigned" for the purpose of enabling Marshall to assert once more the supremacy of the Nation.

If the case came before Marshall normally, without design and in the regular course of business, it was an event nothing short of providential. If, on the contrary, it was "arranged" so that Marshall could deliver his immortal Nationalist address, never was such contrivance so thoroughly justified. While the legal profession has always considered this case to be identical, judicially, with that of Martin vs. Hunter's Lessee, it is, historically, a part of M'Culloch vs. Maryland and of Osborn vs. The Bank. The opinion of John Marshall in the Cohens case is one of the strongest and most enduring strands of that mighty cable woven by him to hold the American people together as a united and imperishable nation.

Fortunate, indeed, for the Republic that Marshall's fateful pronouncement came forth at such a critical hour, even if technicalities were waived in bringing before him a case in which he could deliver that opinion. For, in conjunction with his exposition in M'Culloch vs. Maryland, it was the most powerful answer that could be given, and from the source of greatest authority, to that defiance of the National Government and to the threats of disunion then growing ever bolder and more vociferous. Marshall's utterances did not still those hostile voices, it is true, but they gave strength and courage to Nationalists and furnished to the champions of the Union arguments of peculiar force as coming from the supreme tribunal of the Nation.

Could John Marshall have seen into the future he would have beheld Abraham Lincoln expounding from the stump to the farmers of Illinois, in 1858, the doctrines laid down by himself in 1819 and 1821.

Briefly stated, the facts in the case of Cohens vs. Virginia were as follows: The City of Washington was incorporated under an act of Congress[955] which, among other things, empowered the corporation to "authorize the drawing of lotteries for effecting any important improvements in the city which the ordinary funds or revenue thereof will not accomplish," to an amount not to exceed ten thousand dollars, the object first to be approved by the President.[956] Accordingly a city ordinance was passed, creating "The National Lottery" and authorizing it to sell tickets and conduct drawings.

By an act of the Virginia Legislature[957] the purchase or sale within the State of lottery tickets, except those of lotteries authorized by the laws of Virginia, was forbidden under penalty of a fine of one hundred dollars for each offense.

On June 1, 1820, "P. J. & M. J. Cohen, ... being evil-disposed persons," violated the Virginia statute by selling to one William H. Jennings in the Borough of Norfolk two half and four quarter lottery tickets "of the National Lottery, to be drawn in the city of Washington, that being a lottery not authorized by the laws of this commonwealth," as the information of James Nimmo, the prosecuting attorney, declared.[958]

At the quarterly session of the Court of Norfolk, held September 2, 1820, the case came on for hearing before the Mayor, Recorder, and Aldermen of said borough and was decided upon an agreed case "in lieu of a special verdict," which set forth the sale of the lottery tickets, the Virginia statute, the act of Congress incorporating the City of Washington, and the fact that the National Lottery had been established under that act.[959] The Norfolk Court found the defendants guilty and fined them in the sum of one hundred dollars. This paltry amount could not have paid one twentieth part of the fees which the eminent counsel who appeared for the Cohens would, ordinarily, have charged.[960] The case was carried to the Supreme Court on a writ of error.

On behalf of Virginia, Senator James Barbour of that State[961] moved that the writ of error be dismissed, and upon this motion the main arguments were made and Marshall's principal opinion delivered. In concluding his argument, Senator Barbour came near threatening secession, as he had done in the Senate: "Nothing can so much endanger it [the National Government] as exciting the hostility of the state governments. With them it is to determine how long this government shall endure."[962]

In opening for the Cohens, David B. Ogden of New York denied that "there is any such thing as a sovereign state, independent of the Union." The authority of the Supreme Court "extends ... to all cases arising under the constitution, laws, and treaties of the United States."[963] Cohens vs. Virginia was such a case.

Upon the supremacy of the Supreme Court over State tribunals depended the very life of the Nation, declared William Pinkney, who appeared as the principal counsel for the Cohens. Give up the appellate jurisdiction of National courts "from the decisions of the state tribunals" and "every other branch of federal authority might as well be surrendered. To part with this, leaves the Union a mere league or confederacy."[964] Long, brilliantly, convincingly, did Pinkney speak. The extreme State Rights arguments were, he asserted, "too wild and extravagant"[965] to deserve consideration.

Promptly Marshall delivered the opinion of the court on Barbour's motion to dismiss the writ of error. The points made against the jurisdiction of the Supreme Court were, he said: "1st. That a state is a defendant. 2d. That no writ of error lies from this court to a state court. 3d. ... that this court ... has no right to review the judgment of the state court, because neither the constitution nor any law of the United States has been violated by that judgment."[966]

The first two points "vitally ... affect the Union," declared the Chief Justice, who proceeds to answer the reasoning of the State judges when, in Hunter vs. Fairfax's Devisee, they hurled at the Supreme Court Virginia's defiance of National authority.[967] Marshall thus states the Virginia contentions: That the Constitution has "provided no tribunal for the final construction of itself, or of the laws or treaties of the nation; but that this power may be exercised ... by the courts of every state of the Union. That the constitution, laws, and treaties, may receive as many constructions as there are states; and that this is not a mischief, or, if a mischief, is irremediable."[968]

Why was the Constitution established? Because the "American States, as well as the American people, have believed a close and firm Union to be essential to their liberty and to their happiness. They have been taught by experience, that this Union cannot exist without a government for the whole; and they have been taught by the same experience that this government would be a mere shadow, that must disappoint all their hopes, unless invested with large portions of that sovereignty which belongs to independent states."[969]

The very nature of the National Government leaves no doubt of its supremacy "in all cases where it is empowered to act"; that supremacy was also expressly declared in the Constitution itself, which plainly states that it, and laws and treaties made under it, "'shall be the supreme law of the land; and the judges in every state shall be bound thereby; anything in the constitution or laws of any state to the contrary notwithstanding.'"

This supremacy of the National Government is a Constitutional "principle." And why were "ample powers" given to that Government? The Constitution answers: "In order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defense, promote the general welfare."[970]

The "limitations on the sovereignty of the states" were made for the same reason that the "supreme government" of the Nation was endowed with its broad powers. In addition to express limitations on State "sovereignty" were many instances "where, perhaps, no other power is conferred on Congress than a conservative power to maintain the principles established in the constitution. The maintenance of these principles in their purity, is certainly among the great duties of the government."[971]

Marshall had been Chief Justice of the United States for twenty years, and these were the boldest and most extreme words that he had spoken during that period. Like all men of the first rank, Marshall met in a great way, and without attempt at compromise, a great issue that could not be compromised--an issue which, everywhere, at that moment, was challenging the existence of the Nation. There must be no dodging, no hedging, no equivocation. Instead, there must be the broadest, frankest, bravest declaration of National powers that words could express. For this reason Marshall said that these powers might be exercised even as a result of "a conservative power" in Congress "to maintain the principles established in the constitution."

The Judicial Department is an agency essential to the performance of the "great duty" to preserve those "principles." "It is authorized to decide all cases of every description, arising under the constitution or laws of the United States." Those cases in which a State is a party are not excepted. There are cases where the National courts are given jurisdiction solely because a State is a party, and regardless of the subject of the controversy; but in all cases involving the Constitution, laws, or treaties of the Nation, the National tribunals have jurisdiction, regardless of parties.[972]

"Principles" drawn from the very "nature of government" require that "the judicial power ... must be co-extensive with the legislative, and must be capable of deciding every judicial question which grows out of the constitution and laws"--not that "it is fit that it should be so; but ... that this fitness" is an aid to the right interpretation of the Constitution.[973]

What will be the result if Virginia's attitude is confirmed? Nothing less than the prostration of the National Government "at the feet of every state in the Union.... Each member will possess a veto on the will of the whole." Consider the country's experience. Assumption[974] had been deemed unconstitutional by some States; opposition to excise taxes had produced the Whiskey Rebellion;[975] other National statutes "have been questioned partially, while they were supported by the great majority of the American people."[976] There can be no assurance that such divergent and antagonistic actions may not again be taken. State laws in conflict with National laws probably will be enforced by State judges, since they are subject to the same prejudices as are the State Legislatures--indeed, "in many states the judges are dependent for office and for salary on the will of the legislature."[977]

The Constitution attaches first importance to the "independence" of the Judiciary; can it have been intended to leave to State "tribunals, where this independence may not exist," cases in which "a state shall prosecute an individual who claims the protection of an act of Congress?" Marshall gives examples of possible collisions between National and State authority, in ordinary times, as well as in exceptional periods.[978] Even to-day it is obvious that the Chief Justice was denouncing the threatened resistance by State officials to the tariff laws, a fact of commanding importance at the time when Marshall's opinion in Cohens vs. Virginia was delivered.

At this point he rises to the heights of august eloquence: "A constitution is framed for ages to come, and is designed to approach immortality as nearly as human institutions can approach it. Its course cannot always be tranquil. It is exposed to storms and tempests, and its framers must be unwise statesmen indeed, if they have not provided it ... with the means of self-preservation from the perils it may be destined to encounter. No government ought to be so defective in its organization as not to contain within itself the means of securing the execution of its own laws against other dangers than those which occur every day."

Marshall is here replying to the Southern threats of secession, just as he rebuked the same spirit when displayed by his New England friends ten years earlier.[979] Then turning to the conflict of courts, he remarks, as though the judicial collision is all that he has in mind: "A government should repose on its own courts, rather than on others."[980]

He recalls the state of the country under the Confederation when requisitions on the States were "habitually disregarded," although they were "as constitutionally obligatory as the laws enacted by the present Congress." In view of this fact is it improbable that the framers of the Constitution meant to give the Nation's courts the power of preserving that Constitution, and laws made in pursuance of it, "from all violation from every quarter, so far as judicial decisions can preserve them"?[981]

Virginia contends that if States wish to destroy the National Government they can do so much more simply and easily than by judicial decision--"they have only not to elect senators, and it expires without a struggle"; and that therefore the destructive effect on the Nation of decisions of State courts cannot be taken into account when construing the Constitution.

To this Marshall makes answer: "Whenever hostility to the existing system shall become universal, it will be also irresistible. The people made the constitution, and the people can unmake it. It is the creature of their own will, and lives only by their will. But this supreme and irresistible power to make or to unmake, resides only in the whole body of the people; not in any sub-division of them. The attempt of any of the parts to exercise it is usurpation, and ought to be repelled by those to whom the people have delegated their power of repelling it. The acknowledged inability of the government, then, to sustain itself against the public will, and, by force or otherwise, to control the whole nation, is no sound argument in support of its constitutional inability to preserve itself against a section of the nation acting in opposition to the general will."[982]

This is a direct reply to the Southern arguments in the Missouri debate which secessionists were now using wherever those who opposed National laws and authority raised their voices. John Marshall is blazing the way for Abraham Lincoln. He speaks of a "section" instead of a State. The Nation, he says, may constitutionally preserve itself "against a section." And this right of the Nation rests on "principles" inherent in the Constitution. But in Cohens vs. Virginia no "section" was arrayed against the Nation--on the record there was nothing but a conflict of jurisdiction of courts, and this only by a strained construction of a municipal lottery ordinance into a National law.

The Chief Justice is exerting to the utmost his tremendous powers, not to protect two furtive peddlers of lottery tickets, but to check a powerful movement that, if not arrested, must destroy the Republic. Should that movement go forward thereafter, it must do so over every Constitutional obstacle which the Supreme Court of the Nation could throw in its way. In Cohens vs. Virginia, John Marshall stamped upon the brow of Localism the brand of illegality. If this is not the true interpretation of his opinion in that case, all of the exalted language he used is mere verbiage.

Marshall dwells on "the subordination of the parts to the whole." The one great motive for establishing the National Judiciary "was the preservation of the constitution and laws of the United States, so far as they can be preserved by judicial authority."[983]

Returning to the technical aspects of the controversy, Marshall points out that the Supreme Court plainly has appellate jurisdiction of the Cohens case: "If a state be a party, the jurisdiction of this court is original; if the case arise under a [National] constitution or a [National] law, the jurisdiction is appellate. But a case to which a state is a party may arise under the constitution or a law of the United States."[984] That would mean a double jurisdiction. Marshall, therefore, shows, at provoking length,[985] that the appellate jurisdiction of the Supreme Court "in all cases arising under the constitution, laws, or treaties of the United States, was not arrested by the circumstance that a state was a party";[986] and in this way he explains that part of his opinion in Marbury vs. Madison, in which he reasoned that Section 13 of the Ellsworth Judiciary Act was unconstitutional.[987]

Marshall examines the Eleventh Amendment and becomes, for a moment, the historian, a rôle in which he delighted. "The states were greatly indebted" at the close of the Revolution; the Constitution was opposed because it was feared that their obligations would be collected in the National courts. This very thing happened. "The alarm was general; and, to quiet the apprehensions that were so extensively entertained, this amendment was ... adopted." But "its motive was not to maintain the sovereignty of a state from the degradation supposed to attend a compulsory appearance before the tribunal of the nation." It was to prevent creditors from suing a State--"no interest could be felt in so changing the relations between the whole and its parts, as to strip the government of the means of protecting, by the instrumentality of its courts, the constitution and laws from active violation."[988]

With savage relish the Chief Justice attacks and demolishes the State Rights theory that the Supreme Court cannot review the judgment of a State court "in any case." That theory, he says, "considers the federal judiciary as completely foreign to that of a state; and as being no more connected with it, in any respect whatever, than the court of a foreign state."[989] But "the United States form, for many, and for most important purposes, a single nation.... In war, we are one people. In making peace, we are one people. In all commercial regulations, we are one and the same people. In many other respects, the American people are one; and the government which is alone capable of controlling and managing their interests in all these respects, is the government of the Union.

"It is their government, and in that character they have no other. America has chosen to be, in many respects, and to many purposes, a nation; and for all these purposes, her government is complete; to all these objects, it is competent. The people have declared, that in the exercise of all powers given for these objects it is supreme. It can, then, in effecting these objects, legitimately control all individuals or governments within the American territory. The Constitution and laws of a state, so far as they are repugnant to the Constitution and laws of the United States, are absolutely void.

"These states are constituent parts of the United States. They are members of one great empire."[990] The National Court alone can decide all questions arising under the Constitution and laws of the Nation. "The uniform decisions of this court on the point now under consideration," he continues, "have been assented to, with a single exception,[991] by the courts of every state in the Union whose judgments have been revised."[992]

As to the lottery ordinance of the City of Washington, Congress has exclusive power to legislate for the District of Columbia and, in exercising that power, acts "as the legislature of the Union." The Constitution declares that it, and all laws made under it, constitute "the supreme law of the land."[993] Laws for the government of Washington are, therefore, parts of this "supreme law" and "bind the nation.... Congress legislates, in the same forms, and in the same character, in virtue of powers of equal obligation, conferred in the same instrument, when exercising its exclusive powers of legislation, as well as when exercising those which are limited."[994]

The Chief Justice gives examples of the exclusive powers of Congress, all of which are binding throughout the Republic. "Congress is not a local legislature, but exercises this particular power [to legislate for the District of Columbia], like all its other powers, in its high character, as the legislature of the Union."[995] The punishment of the Cohens for selling tickets of the National Lottery, created by the City of Washington under authority of an act of Congress, involves the construction of the Constitution and of a National law. The Supreme Court, therefore, has jurisdiction of the case, and the motion to dismiss the writ of error is denied.

Marshall having thus established the jurisdiction of the Supreme Court to hear and decide the case, it was argued "on the merits." Again David B. Ogden appeared for the Cohens and was joined by William Wirt as Attorney-General. For Virginia Webster took the place of Senator Barbour. The argument was upon the true construction of the act of Congress authorizing the City of Washington to establish a lottery; and upon this Marshall delivered a second opinion, to the effect that the lottery ordinance was "only co-extensive with the city" and a purely local affair; that the court at Norfolk had a right to fine the Cohens for violating a law of Virginia; and that its judgment must be affirmed.[996]

So ended, as far as the formal record goes, the famous case of Cohens vs. Virginia. On its merits it amounted to nothing; the practical result of the appeal was nothing; but it afforded John Marshall the opportunity to tell the Nation its duty in a crowning National emergency.

Intense was the excitement and violent the rage in the anti-Nationalist camp when Marshall's opinion was published. Ritchie, in his paper, demanded that the Supreme Court should be abolished.[997] The Virginia Republican organization struck instantly, Spencer Roane wielding its sword. The Enquirer published a series of five articles between May 25 and June 8, 1821, inclusive, signed "Algernon Sidney," Roane's latest nom de plume.

"The liberties and constitution of our country are ... deeply and vitally endangered by the fatal effects" of Marshall's opinion. "Appointed in one generation it [the Supreme Court] claims to make laws and constitutions for another."[998] The unanimity of the court can be explained only on the ground of "a culpable apathy in the other judges, or a confidence not to be excused, in the principles and talents of their chief." Sidney literally wastes reams of paper in restating the State Rights arguments. He finds a malign satisfaction in calling the Constitution a "compact," a "league," a "treaty" between "sovereign governments."[999]

National judges have "no interest in the government or laws of any state but that of which they are citizens," asserts Sidney. "As to every other state but that, they are, completely, aliens and foreigners."[1000] Virginia is as much a foreign nation as Russia[1001] so far as jurisdiction of the Supreme Court over the judgments of State courts is concerned. Marshall's doctrine "is the blind and absolute despotism which exists in an army, or is exercised by a tyrant over his slaves."[1002]

The apostate Republican Justices who concurred with Marshall are denounced, and with greater force, by reason of a tribute paid to the hated Chief Justice: "How else is it that they also go to all lengths with the ultra-federal leader who is at the head of their court? That leader is honorably distinguished from you messieurs judges. He is true to his former politics. He has even pushed them to an extreme never until now anticipated. He must be equally delighted and surprised to find his Republican brothers going with him"--a remark as true as it was obvious. "How is it ... that they go with him, not only as to the results of his opinions, but as to all the points and positions contained in the most lengthy, artful and alarming opinions?" Because, answers Sidney, they are on the side of power and of "the government that feeds them."[1003]

What Marshall had said in the Virginia Constitutional Convention of 1788 refutes his opinions now. "Great principles then operated on his luminous mind, not hair-splitting quibbles and verbal criticisms."[1004] The "artifices" of the Chief Justice render his opinions the more dangerous.[1005]

If the anger of John Marshall ever was more aroused than it was by Roane's assaults upon him, no evidence of the fact exists. Before the last number of the Algernon Sidney essays appeared, the Chief Justice confides his wrathful feelings to the devoted and sympathetic Story: "The opinion of the Supreme Court in the Lottery case has been assaulted with a degree of virulence transcending what has appeared on any former occasion. Algernon Sidney is written by the gentleman who is so much distinguished for his feelings towards the Supreme Court, & if you have not an opportunity of seeing the Enquirer I will send it to you.

"There are other minor gentry who seek to curry favor & get into office by adding their mite of abuse, but I think for coarseness & malignity of invention Algernon Sidney surpasses all party writers who have ever made pretensions to any decency of character. There is on this subject no such thing as a free press in Virginia, and of consequence the calumnies and misrepresentations of this gentleman will remain uncontradicted & will by many be believed to be true. He will be supposed to be the champion of state rights, instead of being what he really is, the champion of dismemberment."[1006]

When Roane's articles were finished, Marshall wrote Story: "I send you the papers containing the essays of Algernon Sidney. Their coarseness & malignity would designate the author if he was not avowed. The argument, if it may be called one, is, I think, as weak as its language is violent & prolix. Two other gentlemen[1007] have appeared in the papers on this subject, one of them is deeply concerned in pillaging the purchasers of the Fairfax estate in which goodly work he fears no other obstruction than what arises from the appellate power of the Supreme Court, & the other is a hunter after office who hopes by his violent hostility to the Union, which in Virginia assumes the name of regard for state rights, & by his devotion to Algernon Sidney, to obtain one. In support of the sound principles of the constitution & of the Union of the States, not a pen is drawn. In Virginia the tendency of things verges rapidly to the destruction of the government & the re-establishment of a league of sovereign states. I look elsewhere for safety."[1008]

Another of the "minor gentry" of whom Marshall complained was William C. Jarvis, who in 1820 had written a book entitled "The Republicans," in which he joined in the hue and cry against Marshall because of his opinion in M'Culloch vs. Maryland. Jarvis sent a copy of his book to Jefferson who, in acknowledging the receipt of it, once more spoke his mind upon the National Judiciary. To Jarvis's statement that the courts are "the ultimate arbiters of all constitutional questions," Jefferson objected.

It was "a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy," wrote the "Sage of Monticello." "The constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots.... If the legislature fails to pass" necessary laws--such as those for taking of the census, or the payment of judges; or even if "they fail to meet in congress, the judges cannot issue their mandamus to them."

So, concludes Jefferson, if the President does not appoint officers to fill vacancies, "the judges cannot force him." In fact, the judges "can issue their mandamus ... to no executive or legislative officer to enforce the fulfilment of their official duties, any more than the president or legislature may issue orders to the judges.... When the legislature or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough."[1009]

This letter by Jefferson had just been made public, and Story, who appears to have read everything from the Greek classics to the current newspaper gossip, at once wrote Marshall. The Chief Justice replied that Jefferson's view "rather grieves than surprizes" him. But he could not "describe the surprize & mortification" he felt when he learned that Madison agreed with Jefferson "with respect to the judicial department. For M^r Jefferson's opinion as respects this department it is not difficult to assign the cause. He is among the most ambitious, & I suspect among the most unforgiving of men. His great power is over the mass of the people, & this power is chiefly acquired by professions of democracy. Every check on the wild impulse of the moment is a check on his own power, & he is unfriendly to the source from which it flows. He looks of course with ill will at an independent judiciary.

"That in a free country with a written constitution any intelligent man should wish a dependent judiciary, or should think that the constitution is not a law for the court as well as for the legislature would astonish me, if I had not learnt from observation that with many men the judgement is completely controuled by the passions."[1010]

To Jefferson, Marshall ascribes Roane's attacks upon the Supreme Court: "There is some reason to believe that the essays written against the Supreme Court were, in a degree at least, stimulated by this gentleman, and that although the coarseness of the language belongs exclusively to the author, its acerbity has been increased by his communications with the great Lama of the mountains. He may therefore feel himself ... required to obtain its republication in some place of distinction."[1011]

John E. Hall was at that time the publisher at Philadelphia of The Journal of American Jurisprudence. Jefferson had asked Hall to reprint Roane's articles, and Hall had told Story, who faithfully reported to Marshall. "I am a little surprized at the request which you say has been made to M^r Hall, although there is no reason for my being so. The settled hostility of the gentleman who has made that request to the judicial department will show itself in that & in every other form which he believes will conduce to its object. For this he has several motives, & it is not among the weakest that the department would never lend itself as a tool to work for his political power....

"What does M^r Hall purpose to do?" asks Marshall. "I do not suppose you would willingly interfere so as to prevent his making the publication, although I really think it is in form & substance totally unfit to be placed in his law journal. I really think a proper reply to the request would be to say that no objection existed to the publication of any law argument against the opinion of the Supreme Court, but that the coarseness of its language, its personal & official abuse & its tedious prolixity constituted objections to the insertion of Algernon Sidney which were insuperable. If, however, M^r Hall determines to comply with this request, I think he ought, unless he means to make himself a party militant, to say that he published that piece by particular request, & ought to subjoin the masterly answer of M^r Wheaton. I shall wish to know what course M^r Hall will pursue."[1012]

Roane's attacks on Marshall did not appear in Hall's law magazine!

Quitting such small, unworthy, and prideful considerations, Marshall rises for a moment to the great issue which he met so nobly in his opinions in M'Culloch vs. Maryland and in Cohens vs. Virginia. "A deep design," he writes Story, "to convert our government into a mere league of states has taken strong hold of a powerful & violent party in Virginia. The attack upon the judiciary is in fact an attack upon the union. The judicial department is well understood to be that through which the government may be attacked most successfully, because it is without patronage, & of course without power. And it is equally well understood that every subtraction from its jurisdiction is a vital wound to the government itself. The attack upon it therefore is a masked battery aimed at the government itself.

"The whole attack, if not originating with M^r Jefferson, is obviously approved & guided by him. It is therefore formidable in other states as well as in this, & it behoves the friends of the union to be more on the alert than they have been. An effort will certainly be made to repeal the 25^{th} sec. of the judicial act."[1013] Marshall's indignation at Roane exhausted his limited vocabulary of resentment. Had he possessed Jefferson's resources of vituperation, the literature of animosity would have been enriched by the language Marshall would have indulged in when the next Republican battery poured its volleys upon him.

No sooner had Roane's artillery ceased to play upon Marshall and the Supreme Court than the roar of Taylor's heavy guns was again heard. In a powerful and brilliant book, called "Tyranny Unmasked," he directed his fire upon the newly proposed protective tariff, "this sport for capitalists and death for the rest of the nation."[1014] The theory of the Chief Justice that there is a "supreme federal power" over the States is proved false by the proceedings of the Constitutional Convention at Philadelphia in 1787. Certain members then proposed to give the National Government a veto over the acts of State Governments.[1015] This proposal was immediately rejected. Yet to-day Marshall proclaims a National power, "infinitely more objectionable," which asserts that the Supreme Court has "a negative or restraining power over the State governments."[1016]

A protective tariff is only another monstrous child of Marshall's accursed Nationalism, that prolific mother of special favors for the few. By what reasoning is a protective tariff made Constitutional? By the casuistry of John Marshall, that "present fashionable mode of construction, which considers the constitution as a lump of fine gold, a small portion of which is so malleable as to cover the whole mass. By this golden rule for manufacturing the constitution, a particular power given to the Federal Government may be made to cover all the rights reserved to the people and the States;[1017] a limited jurisdiction given to the Federal Courts is made to cover all the State Courts;[1018] and a legislative power over ten miles square is malleated over the whole of the United States,[1019] as a single guinea may be beaten out so as to cover a whole house."[1020] Such is the method by which a protective tariff is made Constitutional.

For one hundred and twenty-one scintillant and learned pages Taylor attacks this latest creation of National "tyranny." The whole Nationalist system is "tyranny," which it is his privilege to "unmask," and the duty of all true Americans to destroy.[1021] Marshall's Constitutional doctrine "amounts to the insertion of the following article in the constitution: 'Congress shall have power, with the assent of the Supreme Court, to exercise or usurp, and to prohibit the States from exercising, any or all of the powers reserved to the States, whenever they [Congress] shall deem it convenient, or for the general welfare.'"[1022] Such doctrines invite "civil war."[1023]

By Marshall's philosophy "the people are made the prey of exclusive privileges." In short, under him the Supreme Court has become the agent of special interests.[1024] "Cannot the Union subsist unless Congress and the Supreme Court shall make banks and lotteries?"[1025]

Jefferson eagerly read Roane's essays and Taylor's book and wrote concerning them: "The judiciary branch is the instrument which, working like gravity, without intermission, is to press us at last into one consolidated mass. Against this I know no one who, equally with Judge Roane himself, possesses the power and the courage to make resistance; and to him I look, and have long looked, as our strongest bulwark."

At this point Jefferson declares for armed resistance to the Nation in even stronger terms than those used by Roane or Taylor: "If Congress fails to shield the States from dangers so palpable and so imminent, the States must shield themselves, and meet the invader foot to foot.... This is already half done by Colonel Taylor's book" which "is the most effectual retraction of our government to its original principles which has ever yet been sent by heaven to our aid. Every State in the Union should give a copy to every member they elect, as a standing instruction, and ours should set the example."[1026]

Until his death the aged politician raged continuously, except in one instance,[1027] at Marshall and the Supreme Court because of such opinions and decisions as those in the Bank and Lottery cases. He writes Justice Johnson that he "considered ... maturely" Roane's attacks on the doctrines of Cohens vs. Virginia and they appeared to him "to pulverize every word which had been delivered by Judge Marshall, of the extra-judicial part of his opinion." If Roane "can be answered, I surrender human reason as a vain and useless faculty, given to bewilder, and not to guide us.... This practice of Judge Marshall, of travelling out of his case to prescribe what the law would be in a moot case not before the court, is very irregular and censurable."[1028]

Again Jefferson writes that, above all other officials, those who most need restraint from usurping legislative powers are "the judges of what is commonly called our General Government, but what I call our Foreign department.... A few such doctrinal decisions, as barefaced as that of the Cohens," may so arouse certain powerful States as to check the march of Nationalism. The Supreme Court "has proved that the power of declaring what the law is, ad libitum, by sapping and mining, slily and without alarm, the foundations of the Constitution, can do what open force would not dare to attempt."[1029]

So it came to pass that John Marshall and the Supreme Court became a center about which swirled the forces of a fast-gathering storm that raged with increasing fury until its thunders were the roar of cannon, its lightning the flashes of battle. Broadly speaking, slavery and free trade, State banking and debtors' relief laws were arraigned on the side of Localism; while slavery restriction, national banking, a protective tariff, and security of contract were marshaled beneath the banner of Nationalism. It was an assemblage of forces as incongruous as human nature itself.

The Republican protagonists of Localism did not content themselves with the writing of enraged letters or the publication of flaming articles and books. They were too angry thus to limit their attacks, and they were politicians of too much experience not to crystallize an aroused public sentiment. On December 12, 1821, Senator Richard M. Johnson of Kentucky, who later was honored by his party with the Vice-Presidency, offered an amendment to the Constitution that the Senate be given appellate jurisdiction in all cases where the Constitution or laws of a State were questioned and the State desired to defend them; and in all cases "where the judicial power of the United States shall be so construed as to extend to any case ... arising under" the National Constitution, laws, or treaties.[1030]

Coöperating with Johnson in the National Senate, Roane in Virginia, when the Legislature of that State met, prepared amendments to the National Constitution which, had they been adopted by the States, would have destroyed the Supreme Court. He declares that he takes this step "with a view to aid" the Congressional antagonists of Nationalism and the Supreme Court, "or rather to lead, on this important subject." The amendments "will be copied by another hand & circulated among the members. I would not wish to injure the great Cause, by being known as the author. My name would damn them, as I believe, nay hope, with the Tories." Roane asks his correspondent to "jog your Chesterfield Delegates ... and other good republicans," and complains that "Jefferson & Madison hang back too much, in this great Crisis."[1031]

On Monday, January 14, 1822, Senator Johnson took the floor in support of his proposition to reduce the power of the Supreme Court. "The conflicts between the Federal judiciary and the sovereignty of the States," he said, "are become so frequent and alarming, that the public safety" demands a remedy. "The Federal judiciary has assumed a guardianship over the States, even to the controlling of their peculiar municipal regulations."[1032] The "basis of encroachment" is Marshall's "doctrine of Federal supremacy ... established by a judicial tribunal which knows no change. Its decisions are predicated upon the principle of perfection, and assume the character of immutability. Like the laws of the Medes and Persians, they live forever, and operate through all time." What shall be done? An appeal to the Senate "will be not only harmless, but beneficial." It will quiet "needless alarms ... restore ... confidence ... preserve ... harmony." There is pressing need to tranquillize the public mind concerning the National Judiciary,[1033] a department of the government which is a denial of our whole democratic theory. "Some tribunal should be established, responsible to the people, to correct their [the Judges'] aberrations."

Why should not the National Judiciary be made answerable to the people? No fair-minded man can deny that the judges exercise legislative power. "If a judge can repeal a law of Congress, by declaring it unconstitutional, is not this the exercise of political power? If he can declare the laws of a State unconstitutional and void, and, in one moment, subvert the deliberate policy of that State for twenty-four years, as in Kentucky, affecting its whole landed property, ... is not this the exercise of political power? All this they have done, and no earthly power can investigate or revoke their decisions."[1034] The Constitution gives the National Judiciary no such power--that instrument "is as silent as death upon the subject."[1035]

How absurd is the entire theory of judicial independence! Why should not Congress as properly declare the decisions of the National courts unconstitutional as that the courts should do the same thing to acts of Congress or laws of States? Think of it as a matter of plain common sense--"forty-eight Senators, one hundred and eighty-eight Representatives, and the President of the United States, all sworn to maintain the Constitution, have concurred in the sentiment that the measure is strictly conformable to it. Seven judges, irresponsible to any earthly tribunal for their decisions, revise the measure, declare it unconstitutional, and effectually destroy its operation. Whose opinion shall prevail? that of the legislators and President, or that of the Court?"[1036]

The Supreme Court, too, has gently exercised the principle of judicial supervision over acts of Congress; has adjudged that Congress has a free hand in choosing means to carry out powers expressly granted to that body. But consider the conduct of the Supreme Court toward the States: "An irresponsible judiciary" has ruthlessly struck down State law after State law; has repeatedly destroyed the decisions of State courts. Look at Marshall's opinions in M'Culloch vs. Maryland, in the Dartmouth College case, in United States vs. Peters, in Sturges vs. Crowninshield, in Cohens vs. Virginia--smallest, but perhaps worst of all, in Wilson vs. New Jersey. The same principle runs through all these pronouncements;--the States are nothing, the Nation everything.[1037]

Webster, in the House, heard of Johnson's speech and promptly wrote Story: "Mr. Johnson of Kentucky ... has dealt, they say, pretty freely with the supreme court. Dartmouth College, Sturges and Crowninshield, et cetera, have all been demolished. To-morrow he is to pull to pieces the case of the Kentucky betterment law. Then Governor [Senator] Barber [Barbour] is to annihilate Cohens v. Virginia. So things go; but I see less reality in all this smoke than I thought I should, before I came here."[1038]

It would have been wiser for Webster to have listened carefully to Johnson's powerful address than to have sneered at it on hearsay, for it was as able as it was brave; and, erroneous though it was, it stated most of the arguments advanced before or since against the supervisory power of the National Judiciary over the enactments of State Legislatures and the decisions of State courts.

When the Kentucky Senator resumed his speech the following day, he drove home his strongest weapon--an instance of judicial interference with State laws which, indeed, at first glance appeared to have been arbitrary, autocratic, and unjust. The agreement between Virginia and Kentucky by which the latter was separated from the parent Commonwealth provided that "all private rights and interests of lands" in Kentucky "derived from the laws of Virginia, shall remain valid ... and shall be determined by the laws now existing" in Virginia.[1039]

In 1797 the Kentucky Legislature enacted that persons occupying lands in that State who could show a clear and connected title could not, without notice of any adverse title, upon eviction by the possessor of a superior title, be held liable for rents and profits during such occupancy.[1040] Moreover, all permanent improvements made on the land must, in case of eviction, be deducted from the value of the land and judgment therefor rendered in favor of the innocent occupant and against the successful claimant. On January 31, 1812, this "occupying claimant" law, as it was called, was further strengthened by a statute providing that any person "seating and improving" lands in Kentucky, believing them "to be his own" because of a claim founded on public record, should be paid for such seating and improvements by any person who thereafter was adjudged to be the lawful owner of the lands.

Against one such occupant, Richard Biddle, the heirs of a certain John Green brought suit in the United States Court for the District of Kentucky, and the case was certified to the Supreme Court on a division of opinion of the judges. The case was argued and decided at the same term at which Marshall delivered his opinion in Cohens vs. Virginia. Story delivered the unanimous opinion of the court: that the Kentucky "occupying claimant" laws violated the separation "compact" between Virginia and Kentucky, because, "by the general principles of law, and from the necessity of the case, titles to real estate can be determined only by the laws of the state under which they were acquired."[1041] Unfortunately Story did not specifically base the court's decision on the contract clause of the Constitution, but left this vital point to inference.

Henry Clay, "as amicus curiæ," moved for a rehearing because the rights of numerous occupants of Kentucky lands "would be irrevocably determined by this decision," and because Biddle had permitted the case "to be brought to a hearing without appearing by his counsel, and without any argument on that side of the question."[1042] In effect, Clay thus intimated that the case was feigned. The motion was granted and Green vs. Biddle was awaiting reargument when Senator Johnson made his attack on the National Judiciary.

Johnson minutely examined the historical reasons for including the contract clause in the National Constitution, "in order to understand perfectly well the mystical influence" of that provision.[1043] It never was intended to affect such legislation as the Kentucky land system. The intent and meaning of the contract clause is, that "you shall not declare to-day that contract void, ... which was made yesterday under the sanction of law."[1044] Does this simple rule of morality justify the National courts in annulling measures of public policy "which the people have solemnly declared to be expedient"?[1045] The decision of the Supreme Court in Green vs. Biddle, said Johnson, "prostrates the deliberate" course which Kentucky has pursued for almost a quarter of a century, "and affects its whole landed interest. The effect is to legislate for the people; to regulate the interior policy of that community, and to establish their municipal code as to real estate."[1046]

If such judicial supremacy prevails, the courts can "establish systems of policy by judicial decision." What is this but despotism? "I see no difference, whether you take this power from the people and give it to your judges, who are in office for life, or grant it to a King for life."[1047]

The time is overripe, asserts Johnson, to check judicial usurpation--already the National Judiciary has struck down laws of eight States.[1048] The career of this judicial oligarchy must be ended. "The security of our liberties demands it." Let the jurisdiction of National courts be specifically limited; or let National judges be subject to removal upon address of both Houses of Congress; or let their commissions be vacated "after a limited term of service"; or, finally, "vest a controlling power in the Senate ... or some other body who shall be responsible to the elective franchise."[1049]

The Kentucky Legislature backed its fearless Senator;[1050] but the Virginia Assembly weakened at the end. Most of the Kentucky land titles, which the Supreme Court's decision had protected as against the "occupying claimants," were, of course, held by Virginians or their assignees. Virginia conservatives, too, were beginning to realize the wisdom of Marshall's Nationalist policy as it affected all their interests, except slavery and tariff taxation; and these men were becoming hesitant about further attacks on the Supreme Court. Doubtless, also, Marshall's friends were active among the members of the Legislature. Roane understood the situation when he begged friends to "jog up" the apathetic, and bemoaned the quiescence of Jefferson and Madison. His proposed amendments were lost, though by a very close vote.[1051]

Nevertheless, the Virginia Localists carried the fight to the floors of Congress. On April 26, 1822, Andrew Stevenson, one of Roane's lieutenants and now a member of the National House, demanded the repeal of Section 25 of the Ellsworth Judiciary Act which gave the Supreme Court appellate jurisdiction over the State courts. But Stevenson was unwontedly mild. He offered his resolution "in a spirit of peace and forbearance.... It was ... due to those States, in which the subject has been lately so much agitated, as well as to the nation, to have it ... decided."[1052]

As soon as Congress convened in the winter of 1823, Senator Johnson renewed the combat; but he had become feeble, even apologetic. He did not mean to reflect "upon the conduct of the judges, for he believed them to be highly enlightened and intelligent." Nevertheless, their life tenure and irresponsibility required that some limit should be fixed to their powers. So he proposed that the membership of the Supreme Court be increased to ten, and that at least seven Justices should concur in any opinion involving the validity of National or State laws.[1053]

Four months later, Senator Martin Van Buren reported from the Judiciary Committee, a bill "that no law of any of the States shall be rendered invalid, without the concurrence of at least five Judges of the Supreme Court; their opinions to be separately expressed."[1054] But the friends of the Judiciary easily overcame the innovators; the bill was laid on the table;[1055] and for that session the assault on the Supreme Court was checked. At the next session, however, Kentucky again brought the matter before Congress. Charles A. Wickliffe, a Representative from that State, proposed that writs of error from the Supreme Court be "awarded to either party," regardless of the decision of the Supreme Court of any State.[1056] Webster, on the Judiciary Committee, killed Wickliffe's resolution with hardly a wave of his hand.[1057]

After a reargument of Green vs. Biddle, lasting an entire week,[1058] the Supreme Court stood to its guns and again held the Kentucky land laws unconstitutional. Yet so grave was the crisis that the decision was not handed down for a whole year. This time the opinion of the court was delivered on February 27, 1823, by Bushrod Washington, who held that the contract clause of the National Constitution was violated, but plainly considered that "the principles of law and reason"[1059] were of more importance in this case than the Constitutional provision. Washington's opinion displays the alarm of the Supreme Court at the assaults upon it: "We hold ourselves answerable to God, our consciences and our country, to decide this question according to the dictates of our best judgment, be the consequences of the decision what they may."[1060]

Kentucky promptly replied. In his Message to the Legislature, Governor John Adair declared that the Kentucky decisions of the Supreme Court struck at "the right of the people to govern themselves." The National authority can undoubtedly employ force to "put down insurrection," but "that ... day, when the government shall be compelled to resort to the bayonet to compel a state to submit to its laws, will not long precede an event of all others to be deprecated."[1061]

One of Marshall's numerous Kentucky kinsmen, who was an active member of the Legislature, stoutly protested against any attack on the Supreme Court; nevertheless he offered a resolution reciting the grievances of the State and proposing an address "to the supreme court of the United States, in full session," against the decision and praying for "its total and definitive reversal."[1062] What! exclaimed John Rowan, another member of the Legislature, shall Kentucky again petition "like a degraded province of Rome"?[1063] He proposed counter-resolutions that the Legislature "do ... most solemnly PROTEST ... against the erroneous, injurious, and degrading doctrines of the opinion ... in ... Green and Biddle."[1064] When modified, Rowan's resolutions, one of which hinted at forcible resistance to the mandate of the Supreme Court, passed by heavy majorities.[1065] Later resolutions openly threatened to "call forth the physical power of the state, to resist the execution of the decisions of the court," which were "considered erroneous and unconstitutional."[1066]

In the same year that the Supreme Court decided the Kentucky land case, Justice Johnson aroused South Carolina by a decision rendered in the United States District Court of that State. One Henry Elkison, a negro sailor and a British subject, was taken by the sheriff of the Charleston district, from the British ship Homer; and imprisoned under a South Carolina law which directed the arrest and confinement of any free negro on board any ship entering the ports of that State, the negro to be released only when the vessel departed.[1067] Johnson wrathfully declared that the "unconstitutionality of the law ... will not bear argument"--nobody denied that it could not be executed "without clashing with the general powers of the United States, to regulate commerce." Thereupon, one of the counsel for the State said that the statute must and would be enforced; and "that if a dissolution [sic] of the union must be the alternative he was ready to meet it"--an assertion which angered Johnson who delivered an opinion almost as strong in its Nationalism as those of Marshall.[1068]

Throughout South Carolina and other slaveholding States, the action of Justice Johnson inflamed the passions of the white population. "A high state of excitement exists," chronicles Niles.[1069] Marshall, of course, heard of the outcry against his associate and promptly wrote Story: "Our brother Johnson, I perceive, has hung himself on a democratic snag in a hedge composed entirely of thorny state rights in South Carolina.... You ... could scarcely have supposed that it [Johnson's opinion] would have excited so much irritation as it seems to have produced. The subject is one of much feeling in the South.... The decision has been considered as another act of judicial usurpation; but the sentiment has been avowed that if this be the constitution, it is better to break that instrument than submit to the principle.... Fuel is continually adding to the fire at which exaltées are about to roast the judicial department."[1070]

The Governor and Legislature of South Carolina fiercely maintained the law of the State--it was to them a matter of "self-preservation." Niles was distressingly alarmed. He thought that the collision of South Carolina with the National Judiciary threatened to disturb the harmony of the Republic as much as the Missouri question had done.[1071]

This, then, was the situation when the Ohio Bank case reached the Supreme Court.[1072] Seven States were formally in revolt against the National Judiciary, and others were hostile. Moreover, the protective Tariff of 1824 was under debate in Congress; its passage was certain, while in the South ever-growing bitterness was manifesting itself toward this plundering device of Nationalism as John Taylor branded it. In the House Southern members gave warning that the law might be forcibly resisted.[1073] The first hints of Nullification were heard. Time and again Marshall's Nationalist construction of the Constitution was condemned. To the application of his theory of government was laid most of the abuses of which the South complained; most of the dangers the South apprehended.

Thus again stands out the alliance of the various forces of Localism--slavery, State banking, debtors' relief laws, opposition to protective tariffs--which confronted the Supreme Court with threats of physical resistance to its decrees and with the ability to carry out those threats.

Two arguments were had in Osborn vs. The Bank of the United States, the first by Charles Hammond and by Henry Clay for the Bank;[1074] the second by John C. Wright, Governor Ethan Allen Brown, and Robert Goodloe Harper, for Ohio, and by Clay, Webster, and John Sergeant for the Bank. Arguments on both sides were notable, but little was presented that was new. Counsel for Ohio insisted that the court had no jurisdiction, since the State was the real party against which the proceedings in the United States Court in Ohio were had. Clay made the point that the Ohio tax, unlike that of Maryland, "was a confiscation, and not a tax.... Is it possible," he asked, "that ... the law of the whole may be defeated ... by a single part?"[1075]

On March 19, 1824, Marshall delivered the opinion of the court. All well-organized governments, he begins, "must possess, within themselves, the means of expounding, as well as enforcing, their own laws." The makers of the Constitution kept constantly in view this great political principle. The Judiciary Article "enables the judicial department to receive jurisdiction to the full extent of the constitution, laws, and treaties of the United States.... That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. It then becomes a case" over which the Constitution gives jurisdiction to the National courts. "The suit of The Bank of the United States v. Osborn et al., is a case, and the question is, whether it arises under a law of the United States."[1076]

The fact that other questions are involved does not "withdraw a case" from the jurisdiction of the National courts; otherwise, "almost every case, although involving the construction of a [National] law, would be withdrawn; and a clause in the constitution, relating to a subject of vital importance to the government and expressed in the most comprehensive terms, would be construed to mean almost nothing."

It is true that the Constitution specifies the cases in which the Supreme Court shall have original jurisdiction, but nowhere in the Constitution is there any "prohibition" against Congress giving the inferior National courts original jurisdiction; such a restriction is not "insinuated." Congress, then, can give the National Circuit Courts "original jurisdiction, in any case to which the appellate jurisdiction [of the Supreme Court] extends."[1077]

At this particular period of our history this was, indeed, a tremendous expansion of the power of Congress and the National Judiciary. Marshall flatly declares that Congress can invest the inferior National courts with any jurisdiction whatsoever which the Constitution does not prohibit. It marks another stage in the development of his Constitutional principle that the National Government not only has all powers expressly granted, but also all powers not expressly prohibited. For that is just what Marshall's reasoning amounts to during these crucial years.

No matter, continues the Chief Justice, how many questions, other than that affecting the Constitution or laws, are involved in a case; if any National question "forms an ingredient of the original cause," Congress can "give the circuit courts jurisdiction of that cause." The Ohio Bank case "is of this description." All the Bank's powers, functions, and duties are conferred or imposed by its charter, and "that charter is a law of the United States.... Can a being, thus constituted, have a case which does not arise literally, as well as substantially, under the law?"[1078]

If the Bank brings suits on a contract, the very first, the "foundation" question is, "has this legal entity a right to sue?... This depends on a law of the United States"--a fact that can never be waived. "Whether it be in fact relied on or not, in the defense, it is still a part of the cause, and may be relied on."[1079] Assume, as counsel for Ohio assert, that "the case arises on the contract"; still, "the validity of the contract depends on a law of the United States.... The case arises emphatically under the law. The act of Congress is its foundation.... The act itself is the first ingredient in the case; is its origin; is that from which every other part arises."[1080]

Marshall concedes that the State is directly interested in the suit and that, if the Bank could have done so, it ought to have made the State a party. "But this was not in the power of the bank," because the Eleventh Amendment exempts a State from being sued in such a case. So the "very difficult question" arises, "whether, in such a case, the court may act upon the agents employed by the state, and on the property in their hands."[1081]

Just what will be the result if the National courts have not this power? "A denial of jurisdiction forbids all inquiry into the nature of the case," even of "cases perfectly clear in themselves; ... where the government is in the exercise of its best-established and most essential powers." If the National courts have no jurisdiction over the agents of a State, then those agents, under the "authority of a [State] law void in itself, because repugnant to the constitution, may arrest the execution of any law in the United States"--this they may do without any to say them nay.[1082]

In this fashion Marshall leads up to the serious National problem of the hour--the disposition of some States, revealed by threats and sometimes carried into execution, to interfere with the officers of the National Government in the execution of the Nation's laws. According to the Ohio-Virginia-Kentucky idea, those officers "can obtain no protection from the judicial department of the government. The carrier of the mail, the collector of the revenue,[1083] the marshal of a district, the recruiting officer, may all be inhibited, under ruinous penalties, from the performance of their respective duties"; and not one of them can "avail himself of the preventive justice of the nation to protect him in the performance of his duties."[1084]

Addressing himself still more directly to those who were flouting the authority of the Nation and preaching resistance to it, Marshall uses stern language. What is the real meaning of the anti-National crusade; what the certain outcome of it? "Each member of the Union is capable, at its will, of attacking the nation, of arresting its progress at every step, of acting vigorously and effectually in the execution of its designs, while the nation stands naked, stripped of its defensive armor, and incapable of shielding its agent or executing its laws, otherwise than by proceedings which are to take place after the mischief is perpetrated, and which must often be ineffectual, from the inability of the agents to make compensation."

Once more Marshall cites the case of a State "penalty on a revenue officer, for performing his duty," and in this way warns those who are demanding forcible obstruction of National law or authority, that they are striking at the Nation and that the tribunals of the Nation will shield the agents and officers of the Nation: "If the courts of the United States cannot rightfully protect the agents who execute every law authorized by the constitution, from the direct action of state agents in the collecting of penalties, they cannot rightfully protect those who execute any law."[1085]

Here, in judicial language, was that rebuke of the spirit of Nullification which Andrew Jackson was soon to repeat in words that rang throughout the land and which still quicken the pulses of Americans. What is the great question before the court in the case of Osborn vs. The Bank of the United States; what, indeed, the great question before the country in the controversy between recalcitrant States and the imperiled Nation? It is, says Marshall, "whether the constitution of the United States has provided a tribunal which can peacefully and rightfully protect those who are employed in carrying into execution the laws of the Union, from the attempts of a particular state to resist the execution of those laws."

Ohio asserts that "no preventive proceedings whatever," no action even to stay the hand of a State agent from seizing property, no suit to recover it from that agent, can be maintained because it is brought "substantially against the State itself, in violation of the 11th amendment of the constitution." Is this true? "Is a suit, brought against an individual, for any cause whatever, a suit against a state, in the sense of the constitution?"[1086] There are many cases in which a State may be vitally interested, as, for example, those involving grants of land by different States.

If the mere fact that the State is "interested" in, or affected by, a suit makes the State a party, "what rule has the constitution given, by which this interest is to be measured?" No rule, of course! Is then the court to decide the degree of "interest" necessary to make a State a party? Absurd! since the court would have to examine the "whole testimony of a cause, inquiring into, and deciding on, the extent of a State's interest, without having a right to exercise any jurisdiction in the case."[1087]

At last he affirms that it may be "laid down as a rule which admits of no exception, that, in all cases where jurisdiction depends on the party, it is the party named in the record." Therefore, the Eleventh Amendment is, "of necessity, limited to those suits in which a state is a party on the record."[1088] In the Ohio Bank case, it follows that, "the state not being a party on the record, and the court having jurisdiction over those who are parties on the record, the true question is, not one of jurisdiction, but whether" the officers and agents of Ohio are "only nominal parties" or whether "the court ought to make a decree" against them.[1089] The answer to this question depends on the constitutionality of the Ohio tax law. Although that exact point was decided in M'Culloch vs. Maryland,[1090] "a revision of that opinion has been requested; and many considerations combine to induce a review of it."[1091]

Maryland and Ohio claim the right to tax the National Bank as an "individual concern ... having private trade and private profit for its great end and principal object." But this is not true; the Bank is a "public corporation, created for public and national purposes"; the fact that it transacts "private as well as public business" does not destroy its character as the "great instrument by which the fiscal operations of the government are effected."[1092] Obviously the Bank cannot live unless it can do a general business as authorized by its charter. This being so, the right to transact such business "is necessary to the legitimate operations of the government, and was constitutionally and rightfully engrafted on the institution." Indeed, the power of the Bank to engage in general banking is "the vital part of the corporation; it is its soul." As well say that, while the human body must not be touched, the "vivifying principle" which "animates" it may be destroyed, as to say that the Bank shall not be annihilated, but that the faculty by which it exists may be extinguished.

For a State, then, to tax the Bank's "faculties, its trade and occupation, is to tax the Bank itself. To destroy or preserve the one, is to destroy or preserve the other."[1093] The mere fact that the National Government created this corporation does not relieve it from "state authority"; but the "operations" of the Bank "give its value to the currency in which all the transactions of the government are conducted." In short, the Bank's business is "inseparably connected" with the "transactions" of the Government. "Its corporate character is merely an incident, which enables it to transact that business more beneficially."[1094]

The Judiciary "has no will, in any case"--no option but to execute the law as it stands. "Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing." They can exercise no "discretion," except that of "discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature."[1095] This passage, so wholly unnecessary to the decision of the case or reasoning of the opinion, was inserted as an answer to the charges of judicial "arrogance" and "usurpation."

In conclusion, Marshall holds that the Ohio law taxing the National Bank's branches is unconstitutional and void; that the State is not a "party on the record"; that Osborn, Harper, Currie, and Sullivan are "incontestably liable for the full amount of the money taken out of the Bank"; that this money may be pursued, since it "remained a distinct deposit"--in fact, was "kept untouched, in a trunk, by itself, ... to await the event of the pending suit respecting it."[1096] The judgment of the lower court that the money must be restored to the Bank was right; but the judgment was wrong in charging interest against the State officers, since they "were restrained by the authority of the Circuit Court from using "the money, taken and held by them.[1097]

So everybody having an immediate personal and practical interest in that particular case was made happy, and only the State Rights theorists were discomfited. It was an exceedingly human situation, such as Marshall, the politician, managed to create in his disposition of those cases that called for his highest judicial statesmanship. No matter how acutely he irritated party leaders and forced upon them unwelcome issues, Marshall contrived to satisfy the persons immediately interested in most of the cases he decided.

The Chief Justice himself was a theorist--one of the greatest theorists America has produced; but he also had an intimate acquaintance with human nature, and this knowledge he rightly used, in the desperate conflicts waged by him, to leave his antagonists disarmed of those weapons with which they were wont to fight.

Seemingly Justice Johnson dissented; but, burning with anger at South Carolina's defiance of his action in the negro sailor case, he strengthened Marshall's opinion in his very "dissent." This is so conspicuously true that it may well be thought that Marshall inspired Johnson's "disagreement" with his six brethren of the Supreme Court. Whether the decision was "necessary or unnecessary originally," begins Johnson, "a state of things has now grown up, in some of the states, which renders all the protection necessary, that the general government can give to this bank."[1098] He makes a powerful and really stirring appeal for the Bank, but finally concludes, on technical grounds, that the Supreme Court has no jurisdiction.[1099]

Immediately the fight upon the Supreme Court was renewed in Congress. On May 3, 1824, Representative Robert P. Letcher of Kentucky rose in the House and proposed that the Supreme Court should be forbidden by law to hold invalid any provision of a State constitution or statute unless five out of the seven Justices concurred, each to give his opinion "separately and distinctly," if the court held against the State.[1100] Kentucky, said Letcher, had been deprived of "equal rights and privileges." How? By "construction.... Yes, construction! Its mighty powers are irresistible; ... it creates new principles; ... it destroys laws long since established; and it is daily acquiring new strength."[1101] John Forsyth of Georgia proposed as a substitute to Letcher's resolutions that, for the transaction of business, "a majority of the quorum" of the Supreme Court "shall be a majority of the whole court, including the Chief Justice." A long and animated debate[1102] ensued in which Clay, Webster, Randolph, and Philip P. Barbour, among others, took part.

David Trimble of Kentucky declared that "no nation ought to submit, to an umpire of minorities.[1103]... If less than three-fourths of the States cannot amend the Constitution, less than three-fourths of the judges ought not to construe it"--for judicial constructions are "explanatory amendments" by which "the person and property of every citizen must stand or fall."[1104]

So strong had been the sentiment for placing some restraint on the National Judiciary that Webster, astute politician and most resourceful friend of the Supreme Court, immediately offered a resolution that, in any cause before the Supreme Court where the validity of a State law or Constitution is drawn in question "on the ground of repugnancy to the Constitution, treaties, or laws, of the United States, no judgment shall be pronounced or rendered until a majority of all the justices ... legally competent to sit, ... shall concur in the opinion."[1105]

But Marshall's opinion in Gibbons vs. Ogden[1106] had now reached the whole country and, for the time being, changed popular hostility to the Supreme Court into public favor toward it. The assault in Congress died away and Webster allowed his soothing resolution to be forgotten. When the attack on the National Judiciary was again renewed, the language of its adversaries was almost apologetic.

FOOTNOTES:

[947] Annals, 16th Cong. 1st Sess. 107-08.Return to passage

[948] Ib. 175.Return to passage

[949] Ib. 275.Return to passage

[950] Ib. 359.Return to passage

[951] Annals, 16th Cong. 1st Sess. 1033.Return to passage

[952] Ib. 209. The Justices of the Supreme Court followed the proceedings in Congress with the interest and accuracy of politicians. (See, for example, Story's comments on the Missouri controversy, Story to White, Feb. 27, 1820, Story, I, 362.)Return to passage

[953] Annals, 16th Cong. 1st Sess. 1106-07.Return to passage

[954] For instance, Joshua Cushman of Massachusetts was sure that, instead of disunion, "the Canadas, with New Brunswick and Nova Scotia, allured by the wisdom and beneficence of our institutions, will stretch out their hands for an admission into this Union. The Floridas will become a willing victim. Mexico will mingle her lustre with the federal constellation. South America ... will burn incense on our ... altar. The Republic of the United States shall have dominion from sea to sea, ... from the river Columbia to the ends of the earth. The American Eagle ... will soar aloft to the stars of Heaven." (Ib. 1309.)Return to passage

[955] May 3, 1802, U.S. Statutes at Large. This act, together with a supplementary act (May 4, 1812, ib.), is a vivid portrayal of a phase of the life of the National Capital at that period. See especially Section VI.Return to passage

[956] Lotteries had long been a favorite method of raising funds for public purposes. As a member of the Virginia House of Delegates, Marshall had voted for many lottery bills. (See vol. II, footnote 1, to 56, of this work.) For decades after the Constitution was adopted, lotteries were considered to be both moral and useful.Return to passage

[957] Effective January 21, 1820.Return to passage

[958] 6 Wheaton, 266-67.Return to passage

[959] Ib. 268-90.Return to passage

[960] William Pinkney was at this time probably the highest paid lawyer in America. Five years before he argued the case of Cohens vs. Virginia, his professional income was $21,000 annually (Story to White, Feb. 26, 1816, Story, I, 278), more than four times as much as Marshall ever received when leader of the Richmond bar (see vol. II, 201, of this work). David B. Ogden, the other counsel for the Cohens, was one of the most prominent and successful lawyers of New York. See Warren, 303-04.Return to passage

Another interesting fact in this celebrated case is that the Norfolk Court fined the Cohens the minimum allowed by the Virginia statute. They could have been fined at least $800, $100 for each offense--perhaps should have been fined that amount had the law been strictly observed. Indeed, the Virginia Act permitted a fine to the extent of "the whole sum of money proposed to be raised by such lottery." (6 Wheaton, 268.)

[961] Barbour declined a large fee offered him by the State. (Grigsby: Virginia Convention of 1829-30.)Return to passage

[962] 6 Wheaton, 344.Return to passage

[963] Ib. 347.Return to passage

[964] Ib. 354.Return to passage

[965] 6 Wheaton, 375. For a better report of Pinkney's speech see Wheaton: Pinkney, 612-16.Return to passage

[966] Ib. 376.Return to passage

[967] See supra, 157-58.Return to passage

[968] 6 Wheaton, 377.Return to passage

[969] 6 Wheaton, 380.Return to passage

[970] Ib. 381.Return to passage

[971] 6 Wheaton, 382. (Italics the author's.)Return to passage

[972] Ib. 382.Return to passage

[973] 6 Wheaton, 384-85. (Italics the author's.)Return to passage

[974] See vol. II, 66, of this work.Return to passage

[975] 6 Wheaton, 87.Return to passage

[976] Ib. 385-86.Return to passage

[977] Ib. 387.Return to passage

[978] 6 Wheaton, 386-87.Return to passage

[979] See U.S. vs. Peters, supra, 18 et seq.Return to passage

[980] 6 Wheaton, 387-88.Return to passage

[981] 6 Wheaton, 388.Return to passage

[982] 6 Wheaton, 389-90.Return to passage

[983] 6 Wheaton, 390-91.Return to passage

[984] Ib. 393.Return to passage

[985] Ib. 394-404.Return to passage

[986] Ib. 405.Return to passage

[987] See vol. III, 127-28, of this work.Return to passage

[988] 6 Wheaton, 406-07.Return to passage

[989] Ib. 413.Return to passage

[990] 6 Wheaton, 413-14.Return to passage

[991] Fairfax's Devisee vs. Hunter, supra, 157-60.Return to passage

[992] 6 Wheaton, 420.Return to passage

[993] Ib. 424.Return to passage

[994] Ib. 425-26.Return to passage

[995] 6 Wheaton, 429.Return to passage

[996] Ib. 445-47.Return to passage

[997] Ambler: Ritchie, 81.Return to passage

[998] Enquirer, May 25, 1821, as quoted in Branch Hist. Papers, June, 1906, 78, 85.Return to passage

[999] Enquirer, May 25 and May 29, 1821, as quoted in ib. 89, 100.Return to passage

[1000] Enquirer, May 29, 1821, as quoted in ib. 101.

[1001] Enquirer, June 21, 1821, as quoted in ib. 110.

[1002] Branch Hist. Papers, June, 1906, 119.

[1003] Ib. 123-24.

[1004] Enquirer, June 5, 1821, as quoted in Branch Hist. Papers, June, 1906, 146-47.

[1005] Ib. 182-83.

[1006] Marshall to Story, June 15, 1821, Proceedings, Mass. Hist. Soc. 2d Series, XIV, 327-28.

[1007] Marshall refers to three papers published in the Enquirer of May 15 and 22, and June 22, the first two signed "Somers" and the third signed "Fletcher of Saltoun." It is impossible to discover who these writers were. Their essays, although vicious, are so dull as not to be worth the reading, though Jefferson thought them "luminous and striking." (Jefferson to Johnson, June 12, 1823, Works: Ford, XII, 252, footnote.)

"Somers," however, is compelled to admit the irresistible appeal of Marshall's personality. "Superior talents and address will forever attract the homage of inferior minds." (Enquirer, May 15, 1821.)

"The Supreme court ... have rendered the constitution the sport of legal ingenuity.... Its meaning is locked up from the profane vulgar, and distributed only by the high priests of the temple." (Ib. May 22, 1821.)

"Fletcher of Saltoun" is intolerably verbose: "The victories ... of courts ... though bloodless, are generally decisive.... The progress of the judiciary, though slow, is steady and untiring as the foot of time."

The people act as though hypnotized, he laments--"the powerful mind of the chief justice has put forth its strength, and we are quiet as if touched by the wand of enchantment;--we fall prostrate before his genius as though we had looked upon the dazzling brightness of the shield of Astolfo.--Triumphant indeed has been this most powerful effort of his extraordinary mind. His followers exult--those who doubted, have yielded; even the faithful are found wavering, and the unconvinced can find no opening in his armor of defense."

This writer points out Marshall's "abominable inconsistencies," but seems to be himself under the spell of the Chief Justice: "I mention not this to the disadvantage of the distinguished individual who has pronounced these conflicting opinions. No man can have a higher respect for the virtues of his character, or greater admiration of the powers of his mind."

Alas for the change that time works upon the human intellect! Consider Marshall, the young man, and Marshall, the Chief Justice! "How little did he, at that early day, contemplate the possibility of his carrying the construction of the constitution to an extent so far beyond even what he then renounced!" [sic.]

Thereupon "Fletcher of Saltoun" plunges into an ocean of words concerning Hamilton's theories of government and Marshall's application of them. He announces this essay to be the first of a series; but, luckily for everybody, this first effort exhausted him. Apparently he, too, fell asleep under Marshall's "wand," for nothing more came from his drowsy pen. (Ib. June 22, 1821.)

[1008] Marshall to Story, July 13, 1821, Proceedings, Mass. Hist. Soc. 2d Series, XIV, 329.

[1009] Jefferson to Jarvis, Sept. 28, 1820, Works: Ford, XII, 162-63.

[1010] Marshall to Story, July 13, 1821, Proceedings, Mass. Hist. Soc. 2d Series, XIV, 328-29.

[1011] Same to same, Sept. 18, 1821, ib. 330.

[1012] Marshall to Story, July 13, 1821, Proceedings, Mass. Hist. Soc. 2d Series, XIV, 329-30.

[1013] Marshall to Story, July 13, 1821, Proceedings, Mass. Hist. Soc. 2d Series, XIV, 330-31.

[1014] Taylor: Tyranny Unmasked, 89.

[1015] This was Madison's idea. See vol. I, 312, of this work.

[1016] Taylor: Tyranny Unmasked, 33.

[1017] M'Culloch vs. Maryland.

[1018] Martin vs. Hunter's Lessee and Cohens vs. Virginia.

[1019] Cohens vs. Virginia.

[1020] Taylor: Tyranny Unmasked, 132-33.

[1021] Taylor: Tyranny Unmasked, 133-254. Taylor was the first to state fully most of the arguments since used by the opponents of protective tariffs.

[1022] Ib. 260.

[1023] Ib. 285.

[1024] Ib. 305.

[1025] Ib. 341.

[1026] Jefferson to Thweat, Jan. 19, 1821, Works: Ford, XII, 196-97.

Wirt, though a Republican, asserted that "the functions to be performed by the Supreme Court ... are among the most difficult and perilous which are to be performed under the Constitution. They demand the loftiest range of talents and learning and a soul of Roman purity and firmness. The questions which come before them frequently involve the fate of the Constitution, the happiness of the whole nation." (Wirt to Monroe, May 5, 1823, Kennedy, II, 153.)

Wirt, in this letter, was urging the appointment of Kent to the Supreme Bench, notwithstanding the Federalism of the New York Chancellor. "Federal politics are no way dangerous on the bench of the Supreme Court," adds Wirt. (Ib. 155.)

[1027] His strange failure to come to Roane's support in the fight, over the Judiciary amendments to the Constitution, in the Virginia Legislature during the session of 1821-22. (See infra, 371.)

[1028] Jefferson to Johnson, June 12,1823, Works: Ford, XII, footnote to 255-56.

[1029] Jefferson to Livingston, March 25, 1825, Hunt: Livingston, 295-97.

[1030] Annals, 17th Cong. 1st Sess. 68.

[1031] Roane to Thweat, Dec. 24, 1821, Jefferson MSS. Lib. Cong.

[1032] Annals, 17th Cong. 1st Sess. 69-70.

[1033] Ib. 71-72.

[1034] Annals, 17th Cong. 1st Sess. 74-75.

[1035] Ib. 79.

[1036] Ib. 79-80.

[1037] Annals, 17th Cong. 1st Sess. 84-90.

[1038] Webster to Story, Jan. 14, 1822, Priv. Corres.: Webster, I, 320.

[1039] Ordinance of Separation, 1789.

[1040] Act of Feb. 27, Laws of Kentucky, 1797: Littell, 641-45. See also Act of Feb. 28 (ib. 652-71), apparently on a different subject; and, especially, Act of March 1 (ib. 682-87). Compare Act of 1796 (ib. 392-420); and Act of Dec. 19, 1796 (ib. 554-57). See also in ib. general land laws.

[1041] 8 Wheaton, 11-12. (Italics the author's.)

[1042] Ib. 18.

[1043] Annals, 17th Cong. 1st Sess. 96-98.

[1044] Annals, 17th Cong. 1st Sess. 102.

[1045] Ib. 103.

[1046] Ib. 104.

[1047] Ib. 108.

[1048] Georgia, Fletcher vs. Peck (see vol. III, chap, X, of this work); Pennsylvania, U.S. vs. Peters (supra, chap. I); New Jersey, New Jersey vs. Wilson (supra, chap. V); New Hampshire, Dartmouth College vs. Woodward (supra, chap. V); New York, Sturges vs. Crowninshield (supra, chap. IV); Maryland, M'Culloch vs. Maryland (supra, chap. VI); Virginia, Cohens vs. Virginia (supra, chap. VII); Kentucky, Green vs. Biddle (supra, this chapter).

[1049] Annals, 17th Cong. 1st Sess. 113.

[1050] Niles, XXI, 404.

[1051] Ib. The resolutions, offered by John Wayles Eppes, Jefferson's son-in-law, "instructed" Virginia's Senators and requested her Representatives in Congress to "procure" these amendments to the Constitution:

1. The judicial power shall not extend to any power "not expressly granted ... or absolutely necessary for carrying the same into execution."

2. Neither the National Government nor any department thereof shall have power to bind "conclusively" the States in conflicts between Nation and State.

3. The judicial power of the Nation shall never include "any case in which a State shall be a party," except controversies between States; nor cases involving the rights of a State "to which such a state shall ask to become a party."

4. No appeal to any National court shall be had from the decisions of any State court.

5. Laws applying to the District of Columbia or the Territories, which conflict with State laws, shall not be enforceable within State jurisdiction. (Niles, XXI, 404.)

[1052] Annals, 17th Cong. 1st Sess. 1682.

[1053] Ib., 18th Cong. 1st Sess. 28.

[1054] Annals, 18th Cong. 1st Sess. 336.

[1055] Ib. 419.

[1056] Ib. 915.

[1057] Webster, from the Judiciary Committee, which he seems to have dominated, merely reported that Wickliffe's proposed reform was "not expedient." (Annals, 18th Cong. 1st Sess. 1291.)

[1058] March 7 to 13, 1822, inclusive.

[1059] 8 Wheaton, 75.

[1060] 8 Wheaton, 93. Johnson dissented. (Ib. 94-107.) Todd of Kentucky was absent because of illness, a circumstance that greatly worried Story, who wrote the sick Justice: "We have missed you exceedingly during the term and particularly in the Kentucky causes.... We have had ... tough business" and "wanted your firm vote on many occasions." (Story to Todd, March 24, 1823, Story, I, 422-23.)

[1061] Niles, XXV, 203-05.

[1062] Ib. 206.

[1063] Niles, XXV, 205.

[1064] Ib. 261.

[1065] Ib. 275-76.

[1066] Ib. XXIX, 228-29.

[1067] Ib. XXV, 12; and see Elkison vs. Deliesseline, 8 Federal Cases, 493.

[1068] Niles, XXV, 13-16.

[1069] Ib. 12; and see especially ib. XXVII, 242-43.

[1070] Marshall to Story, Sept. 26, 1823, Story MSS. Mass. Hist. Soc.

[1071] Niles, XXVII, 242. The Senate of South Carolina resolved by a vote of six to one that the duty of the State to "guard against insubordination or insurrection among our colored population ... is paramount to all laws, all treaties, all constitutions ... and will never, by this state, be renounced, compromised, controlled or participated with any power whatever."

Johnson's decision is viewed as "an unconstitutional interference" with South Carolina's slave system, and the State "will, on this subject, ... make common cause with ... other southern states similarly circumstanced in this respect." (Niles, XXVII, 264.) The House rejected the savage language of the Senate and adopted resolutions moderately worded, but expressing the same determination. (Ib. 292.)

[1072] For the facts in Osborn vs. The Bank of the United States, see supra, 328-329.

[1073] See, for instance, speech of John Carter of South Carolina. (Annals, 18th Cong. 1st Sess. 2097; and upon this subject, generally, see infra, chap. X.)

[1074] Who appeared for Ohio on the first argument is not disclosed by the records.

[1075] 9 Wheaton, 795-96.

[1076] 9 Wheaton, 818-19.

[1077] Ib. 819-21.

[1078] 9 Wheaton, 823.

[1079] Ib. 823-24.

[1080] Ib. 824-25.

[1081] 9 Wheaton, 846-47.

[1082] Ib. 847.

[1083] Marshall here refers to threats to resist forcibly the execution of the Tariff of 1824. See infra, 535-36.

[1084] 9 Wheaton, 847-48.

[1085] 9 Wheaton, 848-49.

[1086] 9 Wheaton, 849.

[1087] Ib. 852-53.

[1088] 9 Wheaton, 857. (Italics the author's.)

[1089] Ib. 858.

[1090] See supra, chap, VI.

[1091] 9 Wheaton, 859.

[1092] Ib. 859-60.

[1093] 9 Wheaton, 861-62.

[1094] Ib. 862-63.

[1095] 9 Wheaton, 866.

[1096] Ib. 868-69.

[1097] Ib. 871.

[1098] 9 Wheaton, 871-72. (Italics the author's.) In reality Johnson is here referring to the threats of physical resistance to the proposed tariff law of 1824. (See infra, chap. X.)

[1099] Ib. 875-903.

[1100] Annals, 18th Cong. 1st Sess. 2514.

[1101] Ib. 2519-20.

[1102] Ib. 2527. This debate was most scantily reported. Webster wrote of it: "We had the Supreme Court before us yesterday.... A debate arose which lasted all day. Cohens v. Virginia, Green and Biddle, &c. were all discussed.... The proposition for the concurrence of five judges will not prevail." (Webster to Story, May 4, 1824, Priv. Corres.: Webster, I, 350.)

[1103] Annals, 18th Cong. 1st Sess. 2538.

[1104] Ib. 2539.

[1105] Annals, 18th Cong. 1st Sess. 2541.

Throughout this session Webster appears to have been much disturbed. For example, as early as April 10, 1824, he writes Story: "I am exhausted. When I look in the glass, I think of our old New England saying, 'As thin as a shad.' I have not vigor enough left, either mental or physical, to try an action for assault and battery.... I shall call up some bills reported by our [Judiciary] committee.... The gentlemen of the West will propose a clause, requiring the assent of a majority of all the judges to a judgment, which pronounces a state law void, as being in violation of the constitution or laws of the United States. Do you see any great evil in such a provision? Judge Todd told me he thought it would give great satisfaction in the West. In what phraseology would you make such a provision?" (Webster to Story, April 10, 1824, Priv. Corres.: Webster, I, 348-49.)

[1106] See next chapter.