VIII. COMMERCE MADE FREE…

VIII. COMMERCE MADE FREE

Marshall's decision involved in its consequences the existence of the Union. (John F. Dillon.)

Opposing rights to the same thing cannot exist under the Constitution of our country. (Chancellor Nathan Sanford.)

Sir, we shall keep on the windward side of treason, but we must combine to resist these encroachments,--and that effectually. (John Randolph.)

That uncommon man who presides over the Supreme Court is, in all human probability, the ablest Judge now sitting on any judicial bench in the world. (Martin Van Buren.)

At six o'clock in the evening of August 9, 1803, a curious assembly of curious people was gathered at a certain spot on the banks of the Seine in Paris. They were gazing at a strange object on the river--the model of an invention which was to affect the destinies of the world more powerfully and permanently than the victories and defeats of all the armies that, for a dozen years thereafter, fought over the ancient battle-fields of Europe from Moscow to Madrid. The occasion was the first public exhibition of Robert Fulton's steamboat.

France was once more gathering her strength for the war which, in May, Great Britain had declared upon her; and Bonaparte, as First Consul, was in camp at Boulogne. Fulton had been experimenting for a long time, and the public exhibition now in progress would have been made months earlier had not an accident delayed it. His activities had been reported to Bonaparte, who promptly ordered members of the Institute[1107] to attend the exhibition and report to him on the practicability of the invention, which, he wrote, and in italics, "may change the face of the world."[1108] Prominent, therefore, among the throng were these learned men, doubting and skeptical as mere learning usually is.

More conspicuous than Bonaparte's scientific agents, and as interested and confident as they were indifferent or scornful, was a tall man of distinguished bearing, whose powerful features, bold eyes, aggressive chin, and acquisitive nose indicated a character of unyielding determination, persistence, and hopefulness. This was the American Minister to France, Robert R. Livingston of New York, who, three months before, had conducted the Louisiana Purchase. By his side was Fulton himself, a man of medium height, slender and erect, whose intellectual brow and large, speculative eyes indicated the dreamer and contriver.

The French scientists were not impressed, and the French Government dropped consideration of the subject. But Fulton and Livingston were greatly encouraged. An engine designed by Fulton was ordered from a Birmingham manufacturer and, when constructed, was shipped to America.

For many years inventive minds had been at work on the problem of steam navigation. Because of the cost and difficulties of transportation, and the ever-growing demand for means of cheap and easy water carriage, the most active and fruitful efforts to solve the problem had been made in America.[1109] Livingston, then Chancellor of New York, had taken a deep and practical interest in the subject.[1110] He had constructed a boat on the Hudson, and was so confident of success that, five years before the Paris experiments of Fulton, he had procured from the New York Legislature an act giving him the exclusive right for twenty years to navigate by steamboats the streams and other waters of the State, provided that, within a year, he should build a boat making four miles an hour against the current of the Hudson.[1111] The only difficulty Livingston encountered in securing the passage of this act was the amused incredulity of the legislators. The bill "was a standing subject of ridicule" and had to run the gamut of jokes, jeers, and raillery.[1112] The legislators did not object to granting a monopoly on New York waters for a century or for a thousand years,[1113] provided the navigation was by steam; but they required, in payment to themselves, the price of derision and laughter.

Livingston failed to meet in time the conditions of the steamboat act, but, with Livingston tenacity,[1114] persevered in his efforts to build a practicable vessel. When, in 1801, he arrived in Paris as American Minister, his mind was almost as full of the project as of his delicate and serious official tasks.

Robert Fulton was then living in the French Capital, working on his models of steamboats, submarines, and torpedoes, and striving to interest Napoleon in his inventions.[1115] Livingston and Fulton soon met; a mutual admiration, trust, and friendship followed and a partnership was formed.[1116] Livingston had left his interests in the hands of an alert and capable agent, Nicholas J. Roosevelt, who, in 1803, had no difficulty in securing from the now hilarious New York Legislature an extension of Livingston's monopoly for twenty years upon the same terms as the first.[1117] Livingston resigned his office and returned home. Within a year Fulton joined his partner.

The grant of 1803 was forfeited like the preceding one, because its conditions had not been complied with in time, and another act was passed by the Legislature reviving the grant and extending it for two years.[1118] Thus encouraged and secured, Fulton and Livingston put forth every effort, and on Monday, August 17, 1807, four years and eight days after the dramatic exhibition on the river Seine in Paris, the North River,[1119] the first successful steamboat, made her voyage up the Hudson from New York to Albany[1120] and the success of the great enterprise was assured.

On April 11, 1808, a final law was enacted by the New York Legislature. The period of ridicule had passed; the members of that body now voted with serious knowledge of the possibilities of steam navigation. The new act provided that, for each new boat "established" on New York waters by Livingston and Fulton and their associates, they should be "entitled to five years prolongation of their grant or contract with this state," the "whole term" of their monopoly not to exceed thirty years. All other persons were forbidden to navigate New York waters by steam craft without a license from Livingston and Fulton; and any unlicensed vessel, "together with the engine, tackle and apparel thereof," should be forfeited to them.[1121]

Obedient to "the great god, Success," the public became as enthusiastic and friendly as it had been frigid and hostile and eagerly patronized this pleasant, cheap, and expeditious method of travel. The profits quickly justified the faith and perseverance of Livingston and Fulton. Soon three boats were running between New York and Albany. The fare each way was seven dollars and proportionate charges were made for intermediate landings, of which there were eleven.[1122] Immediately the monopoly began operating steam ferryboats between New York City and New Jersey.[1123] Having such solid reason for optimism, Livingston and Fulton, with prudent foresight, leaped half a continent and placed steamboats on the Mississippi, the traffic of which they planned to control by securing from the Legislature of Orleans Territory the same exclusive privileges for steam navigation upon Louisiana waters, which included the mouth of the Mississippi,[1124] that New York had granted upon the waters of that State. Nicholas J. Roosevelt was put in charge of this enterprise, and in an incredibly short time the steamboat New Orleans was ploughing the turgid and treacherous currents of the great river.[1125]

It was not long, however, before troubles came--the first from New Jersey. Enterprising citizens of that State also built steamboats; but the owners of any vessel entering New York waters, even though acting merely as a ferry between Hoboken and New York City, must procure a license from Livingston and Fulton or forfeit their boats. From discontent at this condition the feelings of the people rose to resentment and then to anger. At last they determined to retaliate, and early in 1811 the New Jersey Legislature passed an act authorizing the owner of any boat seized under the New York law, in turn to capture and hold any steam-propelled craft belonging "in part or in whole" to any citizen of New York; "which boat ... shall be forfeited ... to the ... owner ... of such ... boats which may have been seized" under the New York law.[1126]

New York was not slow to reply. Her Legislature was in session when that of New Jersey thus declared commercial war. An act was speedily passed providing that Livingston and Fulton might enforce at law or in equity the forfeiture of boats unlicensed by them, "as if the same had been tortiously and wrongfully taken out of their possession"; and that when such a suit was brought the defendants should be enjoined from running the boat or "removing the same or any part thereof out of the jurisdiction of the court."[1127]

Connecticut forbade any vessel licensed by Livingston and Fulton from entering Connecticut waters.[1128] The opposition to the New York steamboat monopoly was not, however, confined to other States. Citizens of New York defied it and began to run steam vessels on the Hudson.[1129] James Van Ingen and associates were the first thus to challenge the exclusive "contract," as the New York law termed the franchise which the State had granted to Livingston and Fulton. Suit was brought against Van Ingen in the United States Circuit Court in New York, praying that Livingston and Fulton be "quieted in the possession," or in the exclusive right, to navigate the Hudson secured to them by two patents.[1130] The bill was dismissed for want of jurisdiction. Thus far the litigation was exclusively a State controversy. Upon the face of the record the National element did not appear; yet it was the governing issue raised by the dispute.

Immediately Livingston and Fulton sued Van Ingen and associates in the New York Court of Chancery, praying that they be enjoined from operating their boats. In an opinion of great ability and almost meticulous learning, Chancellor John Lansing denied the injunction; he was careful, however, not to base his decision on a violation of the commerce clause of the National Constitution by the New York steamboat monopoly act. He merely held that act to be invalid because it was a denial of a natural right of all citizens alike to the free navigation of the waters of the State. In such fashion the National question was still evaded.

The Court of Errors[1131] reversed the decree of Chancellor Lansing. Justice Yates and Justice Thompson delivered State Rights opinions that would have done credit to Roane.[1132] At this point the National consideration develops. The opinion of James Kent, then Chief Justice, was more moderate in its denial of National power over the subject. Indeed, Kent appears to have anticipated that the Supreme Court would reverse him. Nevertheless, his opinion was the source of all the arguments thereafter used in defense of the steamboat monopoly. Because of this fact; because of Kent's eminence as a jurist; and because Marshall so crushingly answered his arguments, a précis of them must be given. It should be borne in mind that Kent was defending a law which, in a sense, was his own child; as a member of the New York Council of Revision, he had passed upon and approved it before its passage.

There could have been "no very obvious constitutional objection" to the steamboat monopoly act, began Kent, "or it would not so repeatedly have escaped the notice of the several branches of the government[1133] when these acts were under consideration."[1134] There had been five acts all told;[1135] that of 1798 would surely have attracted attention since it was the first to be passed on the subject after the National Constitution was adopted. It amounted to "a legislative exposition" of State powers under the new National Government.

Members of the New York Legislature of 1798 had also been members of the State Convention that ratified the Constitution, and "were masters of all the critical discussions" attending the adoption of that instrument. This was peculiarly true of that "exalted character," John Jay, who was Governor at that time; and "who was distinguished, as well in the council of revision, as elsewhere, for the scrupulous care and profound attention with which he examined every question of a constitutional nature."[1136] The Act of 1811 was passed after the validity of the previous ones had been challenged and "was, therefore, equivalent to a declaratory opinion of high authority, that the former laws were valid and constitutional."[1137]

The people of New York had not "alienated" to the National Government the power to grant exclusive privileges. This was proved by the charters granted by the State to banks, ferries, markets, canal and bridge companies. "The legislative power in a single, independent government, extends to every proper object of power, and is limited only by its own constitutional provisions, or by the fundamental principles of all government, and the unalienable rights of mankind."[1138] In what respect did the steamboat monopoly violate any of these restrictions? In no respect. "It interfered with no man's property." Everybody could freely use the waters of New York in the same manner that he had done before. So there was "no violation of first principles."[1139]

Neither did the New York steamboat acts violate the National Constitution. State and Nation are "supreme within their respective constitutional spheres." It is true that when National and State laws "come directly in contact, as when they are aimed at each other," those of the State "must yield"; but State Legislatures cannot all the time be on the watch for some possible future collision. The only "safe rule of construction" is this: "If any given power was originally vested in this State, if it has not been exclusively ceded to Congress, or if the exercise of it has not been prohibited to the States, we may then go on in the exercise of the power until it comes practically in collision with the actual exercise of some congressional power."[1140]

The power given Congress to regulate commerce is not, "in express terms, exclusive, and the only prohibition upon the States" in this regard concerns the making of treaties and the laying of tonnage import or export duties. All commerce within a State is "exclusively" within the power of that State.[1141] Therefore, New York's steamboat grant to Livingston and Fulton is valid. It conflicts with no act of Congress, according to Kent, who cannot "perceive any power which ... can lawfully carry to that extent." If Congress has any control whatever over New York waters, it is concurrent with that of the State, and even then, "no further than may be incidental and requisite to the due regulation of commerce between the States, and with foreign nations."[1142]

Kent then plunges into an appalling mass of authorities, in dealing with which he delighted as much as Marshall recoiled from the thought of them.[1143] So Livingston and Fulton's steamboat monopoly was upheld.[1144]

But what were New York waters and what were New Jersey waters? Confusion upon this question threatened to prevent the monopoly from gathering fat profits from New Jersey traffic. Aaron Ogden,[1145] who had purchased the privilege of running ferryboats from New York to certain points on the New Jersey shore, combined with one Thomas Gibbons, who operated a boat between New Jersey landings, to exchange passengers at Elizabethtown Point in the latter State. Gibbons had not secured the permission of the New York steamboat monopoly to navigate New York waters. By his partnership with Ogden he, in reality, carried passengers from New York to various points in New Jersey. In fact, Ogden and Gibbons had a common traffic agent in New York who booked passengers for routes, to travel which required the service of the boats of both Ogden and Gibbons.

So ran the allegations of the bill for an injunction against the offending carriers filed in the New York Court of Chancery by the steamboat monopoly in the spring of 1819. Ogden answered that his license applied only to waters "exclusively within the state of New-York," and that the waters lying between the New Jersey ports "are within the jurisdiction of New Jersey." Gibbons admitted that he ran a boat between New Jersey ports under "a coasting license" from the National Government. He denied, however, that the monopoly had "any exclusive right" to run steamboats from New York to New Jersey. Both Ogden and Gibbons disclaimed that they ran boats in combination, or by agreement with each other.[1146]

Kent, now Chancellor, declared that a New York statute[1147] asserted jurisdiction of the State over "the whole of the river Hudson, southward of the northern boundary of the city of New-York, and the whole of the bay between Staten Island and Long or Nassau Island." He refused to enjoin Ogden because he operated his boat under license of the steamboat monopoly; but did enjoin Gibbons "from navigating the waters in the bay of New-York, or Hudson river, between Staten Island and Powles Hook."[1148]

Ogden was content, but Gibbons, thoroughly angered by the harshness of the steamboat monopoly and by the decree of Chancellor Kent, began to run boats regularly between New York and New Jersey in direct competition with Ogden.[1149] To stop his former associate, now his rival, Ogden applied to Chancellor Kent for an injunction. As in the preceding case, Gibbons again set up his license from the National Government, asserting that by virtue of this license he was entitled to run his boats "in the coasting trade between ports of the same state, or of different states," and could not be excluded from such traffic "by any law or grant of any particular state, on any pretence to an exclusive right to navigate the waters of any particular state by steam-boats." Moreover, pleaded Gibbons, the representatives of Livingston and Fulton had issued to Messrs. D. D. Tompkins, Adam Brown, and Noah Brown a license to navigate New York Bay; and this license had been assigned to Gibbons.[1150]

Kent held that the act of Congress,[1151] concerning the enrollment and licensing of vessels for the coasting trade, conferred no right "incompatible with an exclusive right in Livingston and Fulton" to navigate New York waters.[1152] The validity of the steamboat monopoly laws had been settled by the decision of the Court of Errors in Livingston vs. Van Ingen.[1153] If a National law gave to all vessels, "duly licensed" by the National Government, the right to navigate all waters "within the several states," despite State laws to the contrary, the National statute would "overrule and set aside" the incompatible legislation of the States. "The only question that could arise in such a case, would be, whether the [National] law was constitutional." But that was not the situation; "there is no collision between the act of Congress and the acts of this State, creating the steam-boat monopoly." At least "some judicial decision of the supreme power of the Union, acting upon those laws, in direct collision and conflict" with them, is necessary before the courts of New York "can retire from the support and defence of them."[1154]

Undismayed, Gibbons lost no time in appealing to the New York Court of Errors, and in January, 1820, Justice Jonas Platt delivered the opinion of that tribunal. Immediately after the decision in Livingston vs. Van Ingen, he said, many, who formerly had resisted the steamboat monopoly law, acquiesced in the judgment of the State's highest court and secured licenses from Livingston and Fulton. Ogden was one of these. The Court of Errors rejected Gibbons's defense, followed Chancellor Kent's opinion, and affirmed his decree.[1155]

Thus did the famous case of Gibbons vs. Ogden reach the Supreme Court of the United States; thus was John Marshall given the opportunity to deliver the last but one of his greatest nation-making opinions--an opinion which, in the judgment of most lawyers and jurists, is second only to that in M'Culloch vs. Maryland in ability and statesmanship. By some, indeed, it is thought to be superior even to that state paper.

The Supreme Court, the bar, and the public anticipated an Homeric combat of legal warriors when the case was argued, since, for the first time, the hitherto unrivaled Pinkney was to meet the new legal champion, Daniel Webster, who had won his right to that title by his efforts in the Dartmouth College case and in M'Culloch vs. Maryland.[1156] It was expected that the steamboat monopoly argument would be made at the February session of 1821, and Story wrote to a friend that "the arguments will be very splendid."[1157]

But, on March 16, 1821, the case was dismissed because the record did not show that there was a final decree in the court "from which said appeal was made."[1158] On January 10, 1822, the case was again docketed, but was continued at each term of the Supreme Court thereafter until February, 1824. Thus, nearly four years elapsed from the time the appeal was first taken until argument was heard.[1159]

By the time the question was at last submitted to Marshall, transportation had become the most pressing and important of all economic and social problems confronting the Nation, excepting only that of slavery; nor was any so unsettled, so confused.

Localism had joined hands with monopoly--at the most widely separated points in the Republic, States had granted "exclusive privileges" to the navigation of "State waters." At the time that the last steamboat grant was made by New York to Livingston and Fulton, in 1811, the Legislature of the Territory of Orleans passed, and Governor Claiborne approved, an act bestowing upon the New York monopoly the same exclusive privileges conferred by the New York statute. This had been done soon after Nicholas J. Roosevelt had appeared in New Orleans on the bridge of the first steamboat to navigate the Mississippi. Whoever operated any steam vessel upon Louisiana waters without license from Livingston and Fulton must pay them $5000 for each offense, and also forfeit the boat and equipment.[1160]

The expectations of Livingston and Fulton of a monopoly of the traffic of that master waterway were thus fulfilled. When, a few months later, Louisiana was admitted to the Union, the new State found herself bound by this monopoly from which, however, it does not appear that she wished to be released. Thus Livingston and Fulton held the keys to the two American ports into which poured the greatest volume of domestic products for export, and from which the largest quantity of foreign trade found its way into the interior.

Three years later Georgia granted to Samuel Howard of Savannah a rigid monopoly to transport merchandise upon Georgia waters in all vessels "or rafts" towed by steam craft.[1161] Anybody who infringed Howard's monopoly was to forfeit $500 for each offense, as well as the boat and its machinery. The following year Massachusetts granted to John Langdon Sullivan the "exclusive rights to the Connecticut river within this Commonwealth for the use of his patent steam towboats for ... twenty-eight years."[1162] A few months afterwards New Hampshire made a like grant to Sullivan.[1163] About the same time Vermont granted a monopoly of navigation in the part of Lake Champlain under her jurisdiction.[1164] These are some examples of the general tendency of States and the promoters of steam navigation to make commerce pay tribute to monopoly by the exercise of the sovereignty of States over waters within their jurisdiction. Retaliation of State upon State again appeared--and in the same fashion that wrecked the States under the Confederation.[1165]

But this ancient monopolistic process could not keep pace with the prodigious development of water travel and transportation by steamboat. On every river, on every lake, glided these steam-driven vessels. Their hoarse whistles startled the thinly settled wilderness; or, at the landings on big rivers flowing through more thickly peopled regions, brought groups of onlookers to witness what then were considered to be marvels of progress.[1166]

By 1820 seventy-nine steamboats were running on the Ohio between Pittsburgh and St. Louis, most of them from 150 to 650 tons burden. Pittsburgh, Cincinnati, and Louisville were the chief places where these boats were built, though many were constructed at smaller towns along the shore.[1167] They carried throngs of passengers and an ever-swelling volume of freight. Tobacco, pork, beef, flour, corn-meal, whiskey--all the products of the West[1168] were borne to market on the decks of steamboats which, on the return voyage, were piled high with manufactured goods.

River navigation was impeded, however, by snags, sandbars, and shallows, while the traffic overland was made difficult, dangerous, and expensive by atrocious roads. Next to the frantic desire to unburden themselves of debt by "relief laws" and other forms of legislative contract-breaking, the thought uppermost in the minds of the people was the improvement of means of communication and transportation. This popular demand was voiced in the second session of the Fourteenth Congress. On December 16, 1816, John C. Calhoun brought the subject before the House.[1169] Four days later he reported a bill to devote to internal improvements "the bonus of the National bank and the United States's share of its dividends."[1170] It met strenuous opposition, chiefly on the ground that Congress had no Constitutional power to expend money for such purposes.[1171] An able report was made to the House based on the report of Secretary Gallatin in 1808. The vital importance of "internal navigation" was pointed out,[1172] and the bill finally passed.[1173]

The last official act of President James Madison was the veto of this first bill for internal improvements passed by Congress. The day before his second term as President expired, he returned the bill with the reasons for his disapproval of it. He did this, he explained, because of the "insuperable difficulty ... in reconciling the bill with the Constitution." The power "proposed to be exercised by the bill" was not "enumerated," nor could it be deduced "by any just interpretation" from the power of Congress "to make laws necessary and proper" for the execution of powers expressly conferred on Congress. "The power to regulate commerce among the several States can not include a power to construct roads and canals, and to improve the navigation of water courses." Nor did the "'common defense and general welfare'" clause justify Congress in passing such a measure.[1174]

But not thus was the popular demand to be silenced. Hardly had the next session convened when the subject was again taken up.[1175] On December 15, 1817, Henry St. George Tucker of Virginia, chairman of the Select Committee appointed to investigate the subject, submitted an uncommonly able report ending with a resolution that the Bank bonus and dividends be expended on internal improvements "with the assent of the States."[1176] For two weeks this resolution was debated.[1177] Every phase of the power of Congress to regulate commerce was examined. And so the controversy went on year after year.

Three weeks before the argument of Gibbons vs. Ogden came on in the Supreme Court, a debate began in Congress over a bill to appropriate funds for surveying roads and canals, and continued during all the time that the court was considering the case. It was going on, indeed, when Marshall delivered his opinion and lasted for several weeks. Once more the respective powers of State and Nation over internal improvements, over commerce, over almost everything, were threshed out. As was usual with him, John Randolph supplied the climax of the debate.

Three days previous to the argument of Gibbons vs. Ogden before Marshall and his associates, Randolph arose in the House and delivered a speech which, even for him, was unusually brilliant. In it he revealed the intimate connection between the slave power and opposition to the National control of commerce. Randolph conceded the progress made by Nationalism through the extension of the doctrine of implied powers. The prophecy of Patrick Henry as to the extinction of the sovereignty, rights, and powers of the State had been largely realized, he said. The promises of the Nationalists, made in order to secure the ratification of the Constitution, and without which pledges it never would have been adopted, had been contemptuously broken, he intimated. He might well have made the charge outright, for it was entirely true.

Randolph laid upon Madison much of the blame for the advancement of implied powers; and he arraigned that always weak and now ageing man in an effective passage of contemptuous eloquence.[1178] When, in the election of 1800, continued Randolph, the Federalists were overthrown, and "the construction of the Constitution according to the Hamiltonian version" was repudiated, "did we at that day dream, ... that a new sect would arise after them, which would so far transcend Alexander Hamilton and his disciples, as they outwent Thomas Jefferson, James Madison, and John Taylor of Caroline? This is the deplorable fact: such is now the actual state of things in this land; ... it speaks to the senses, so that every one may understand it."[1179] And to what will all this lead? To this, at last: "If Congress possesses the power to do what is proposed by this bill [appropriate money to survey roads and canals], ... they may emancipate every slave in the United States[1180]--and with stronger color of reason than they can exercise the power now contended for."

Let Southern men beware! If "a coalition of knavery and fanaticism ... be got up on this floor, I ask gentlemen, who stand in the same predicament as I do, to look well to what they are now doing--to the colossal power with which they are now arming this Government."[1181] And why, at the present moment, insist on this "new construction of the Constitution?... Are there not already causes enough of jealousy and discord existing among us?... Is this a time to increase those jealousies between different quarters of the country already sufficiently apparent?"

In closing, Randolph all but threatened armed rebellion: "Should this bill pass, one more measure only requires to be consummated; and then we, who belong to that unfortunate portion of this Confederacy which is south of Mason and Dixon's line, ... have to make up our mind to perish ... or we must resort to the measures which we first opposed to British aggressions and usurpations--to maintain that independence which the valor of our fathers acquired, but which is every day sliding from under our feet.... Sir, this is a state of things that cannot last.... We shall keep on the windward side of treason--but we must combine to resist, and that effectually, these encroachments."[1182]

Moreover, Congress and the country, particularly the South, were deeply stirred by the tariff question; in the debate then impending over the Tariff of 1824, Nationalism and Marshall's theory of Constitutional construction were to be denounced in language almost as strong as that of Randolph on internal improvements.[1183] The Chief Justice and his associates were keenly alive to this agitation; they well knew that the principles to be upheld in Gibbons vs. Ogden would affect other interests and concern other issues than those directly involved in that case.

So it was, then, when the steamboat monopoly case came on for hearing, that two groups of interests were in conflict. State Sovereignty standing for exclusive privileges as chief combatant, with Free Trade and Slavery as brothers in arms, confronted Nationalism, standing at that moment for the power of the Nation over all commerce as the principal combatant, with a Protective Tariff and Emancipation as its most effective allies. Fate had interwoven subjects that neither logically nor naturally had any kinship.[1184]

The specific question to be decided was whether the New York steamboat monopoly laws violated that provision of the National Constitution which bestows on Congress the "power to regulate commerce among the several States."

The absolute necessity of a general supervision of commerce was the sole cause of the Convention at Annapolis, Maryland, in 1786, which resulted in the Constitutional Convention in Philadelphia the following year.[1185] Since the adoption of uniform commercial regulations was the prime object of the Convention, there was no disagreement as to, or discussion of, the propriety of giving Congress full power over that subject. Every draft except one[1186] of the Committee of Detail, the Committee of Style, and the notes taken by members contained some reference to a clause to that effect.[1187]

The earliest exposition of the commerce clause of the Constitution by any eminent National authority, therefore, came from John Marshall. In his opinion in Gibbons vs. Ogden he spoke the first and last authoritative word on that crucial subject.

Pinkney was fatally ill when the Supreme Court convened in 1822 and died during that session. His death was a heavy blow to the steamboat monopoly, and his loss was not easily made good. It was finally decided to employ Thomas J. Oakley, Attorney-General of New York, a cold, clear reasoner, and carefully trained lawyer, but lacking imagination, warmth, or breadth of vision.[1188] He was not an adequate substitute for the masterful and glowing Pinkney.

When on February 4, 1824, the argument at last was begun, the interest in the case was so great that, although the incomparable Pinkney was gone, the court-room could hold but a small part of those who wished to hear that brilliant legal debate. Thomas Addis Emmet, whose "whole soul" was in the case, appeared for the steamboat monopoly and made in its behalf his last great argument. With him came Oakley, who was expected to perform some marvelous intellectual feat, his want of attractive qualities of speech having enhanced his reputation as a thinker. Wirt reported that he was "said to be one of the first logicians of the age."[1189]

Gibbons was represented by Webster who, says Wirt, "is as ambitious as Cæsar," and "will not be outdone by any man, if it is within the compass of his power to avoid it."[1190] Wirt appeared with Webster against the New York monopoly. The argument was opened by Webster; and never in Congress or court had that surprising man prepared so carefully--and never so successfully.[1191] Of all his legal arguments, that in the steamboat case is incontestably supreme. And, as far as the assistance of associate counsel was concerned, Webster's address, unlike that in the Dartmouth College case, was all his own. It is true that every point he made had been repeated many times in the Congressional debates over internal improvements, or before the New York courts in the steamboat litigation. But these facts do not detract from the credit that is rightfully Webster's for his tremendous argument in Gibbons vs. Ogden.

He began by admissions--a dangerous method and one which only a man of highest power can safely employ. The steamboat monopoly law had been "deliberately re-enacted," he said, and afterwards had the "sanction" of various New York courts," than which there were few, if any, in the country, more justly entitled to respect and deference." Therefore he must, acknowledged Webster, "make out a clear case" if he hoped to win.[1192]

What was the state of the country with respect to transportation? Everybody knew that the use of steamboats had become general; everywhere they plied over rivers and bays which often formed the divisions between States. It was inevitable that the regulations of such States should be "hostile" to one another. Witness the antagonistic laws of New York, New Jersey, and Connecticut. Surely all these warring statutes were not "consistent with the laws and constitution of the United States." If any one of them were valid, would anybody "point out where the state right stopped?"[1193]

Webster carefully described the New York steamboat monopoly laws, the rights they conferred, and the prohibitions they inflicted.[1194] He contended, among other things, that these statutes violated the National Constitution. "The power of Congress to regulate commerce was complete and entire," said Webster, "and to a certain extent necessarily exclusive."[1195] It was well known that the "immediate" reason and "prevailing motive" for adopting the Constitution was to "rescue" commerce "from the embarrassing and destructive consequences resulting from the legislation of so many different states, and to place it under the protection of a uniform law."[1196] The paramount object of establishing the present Government was "to benefit and improve" trade. This, said Webster, was proved by the undisputed history of the period preceding the Constitution.[1197]

What commerce is to be regulated by Congress? Not that of the several States, but that of the Nation as a "unit." Therefore, the regulation of it "must necessarily be complete, entire and uniform. Its character was to be described in the flag which waved over it, E Pluribus Unum." Of consequence, Congressional regulation of commerce must be "exclusive." Individual States cannot "assert a right of concurrent legislation, ... without manifest encroachment and confusion."[1198]

If New York can grant a monopoly over New York Bay, so can Virginia over the entrance of the Chesapeake, so can Massachusetts over the bay bearing the name and under the jurisdiction of that State. Worse still, every State may grant "an exclusive right of entry of vessels into her ports."[1199]

Oakley, Emmet, and Wirt exhausted the learning then extant on every point involved in the controversy. Not even Pinkney at his best ever was more thorough than was Emmet in his superb argument in Gibbons vs. Ogden.[1200]

The small information possessed by the most careful and thorough lawyers at that time concerning important decisions in the Circuit Courts of the United States, even when rendered by the Chief Justice himself, is startlingly revealed in all these arguments. Only four years previously, Marshall, at Richmond, had rendered an opinion in which he asserted the power of Congress over commerce as emphatically as Webster or Wirt now insisted upon it. This opinion would have greatly strengthened their arguments, and undoubtedly they would have cited it had they known of it. But neither Wirt nor Webster made the slightest reference to the case of the Brig Wilson vs. The United States, decided during the May term, 1820.

One offense charged in the libel of that vessel by the National Government was, that she had brought into Virginia certain negroes in violation of the laws of that State and in contravention of the act of Congress forbidding the importation of negroes into States whose laws prohibited their admission. Was this act of Congress Constitutional? The power to pass such a law is, says Marshall, "derived entirely" from that clause of the Constitution which "enables Congress, 'to regulate commerce with foreign nations, and among the several States.'"[1201] This power includes navigation. The authority to forbid foreign ships to enter our ports comes exclusively from the commerce clause. "If this power over vessels is not in Congress, where does it reside? Does it reside in the States?

"No American politician has ever been so extravagant as to contend for this. No man has been wild enough to maintain, that, although the power to regulate commerce, gives Congress an unlimited power over the cargoes, it does not enable that body to control the vehicle in which they are imported: that, while the whole power of commerce is vested in Congress, the state legislatures may confiscate every vessel which enters their ports, and Congress is unable to prevent their entry."

The truth, continues Marshall, is that "even an empty vessel, or a packet, employed solely in the conveyance of passengers and letters, may be regulated and forfeited" under a National law. "There is not, in the Constitution, one syllable on the subject of navigation. And yet, every power that pertains to navigation has been ... rightfully exercised by Congress. From the adoption of the Constitution, till this time, the universal sense of America has been, that the word commerce, as used in that instrument, is to be considered a generic term, comprehending navigation, or, that a control over navigation is necessarily incidental to the power to regulate commerce."[1202]

Here was a weapon which Webster could have wielded with effect, but he was unaware that it existed--a fact the more remarkable in that both Webster and Emmet commented, in their arguments, upon State laws that prohibited the admission of negroes.

But Webster never doubted that the court's decision would be against the New York steamboat monopoly laws. "Our Steam Boat case is not yet decided, but it can go but one way," he wrote his brother a week after the argument.[1203]

On March 2, 1824, Marshall delivered that opinion which has done more to knit the American people into an indivisible Nation than any other one force in our history, excepting only war. In Marbury vs. Madison he established that fundamental principle of liberty that a permanent written constitution controls a temporary Congress; in Fletcher vs. Peck, in Sturges vs. Crowninshield, and in the Dartmouth College case he asserted the sanctity of good faith; in M'Culloch vs. Maryland and Cohens vs. Virginia he made the Government of the American people a living thing; but in Gibbons vs. Ogden he welded that people into a unit by the force of their mutual interests.

The validity of the steamboat monopoly laws of New York, declares Marshall, has been repeatedly upheld by the Legislature, the Council of Revision, and the various courts of that State, and is "supported by great names--by names which have all the titles to consideration that virtue, intelligence, and office, can bestow."[1204] Having paid this tribute to Chancellor Kent--for every word of it was meant for that great jurist--Marshall takes up the capital question of construction.

It is urged, he says, that, before the adoption of the Constitution, the States "were sovereign, were completely independent, and were connected with each other only by a league. This is true. But when these allied sovereigns converted their league into a government, when they converted their Congress of Ambassadors, deputed to deliberate on their common concerns, and to recommend measures of general utility, into a legislature, empowered to enact laws ... the whole character" of the States "underwent a change, the extent of which must be determined by a fair consideration" of the Constitution.

Why ought the powers "expressly granted" to the National Government to be "construed strictly," as many insist that they should be? "Is there one sentence in the constitution which gives countenance to this rule?" None has been pointed out; none exists. What is meant by "a strict construction"? Is it "that narrow construction, which would cripple the government and render it unequal to the objects for which it is declared to be instituted,[1205] and to which the powers given, as fairly understood, render it competent"? The court cannot adopt such a rule for expounding the Constitution.[1206]

Just as men, "whose intentions require no concealment," use plain words to express their meaning, so did "the enlightened patriots who framed our constitution," and so did "the people who adopted it." Surely they "intended what they have said." If any serious doubt of their meaning arises, concerning the extent of any power, "the objects for which it was given ... should have great influence in the construction."[1207]

Apply this common-sense rule to the commerce clause of the Constitution.[1208] What does the word "commerce" mean? Strict constructionists, like the advocates of the New York steamboat monopoly, "limit it to ... buying and selling ... and do not admit that it comprehends navigation." But why not navigation? "Commerce ... is traffic, but it is something more; it is intercourse." If this is not true, then the National Government can make no law concerning American vessels--"yet this power has been exercised from the commencement of the government, has been exercised with the consent of all, and has been understood by all to be a commercial regulation. All America understands ... the word 'commerce' to comprehend navigation.... The power over commerce, including navigation, was one of the primary objects for which the people of America adopted their government.... The attempt to restrict it [the meaning of the word "commerce"] comes too late."

Was not the object of the Embargo, which "engaged the attention of every man in the United States," avowedly "the protection of commerce?... By its friends and its enemies that law was treated as a commercial, not as a war measure." Indeed, its very object was "the avoiding of war." Resistance to it was based, not on the denial that Congress can regulate commerce, but on the ground that "a perpetual embargo was the annihilation, and not the regulation of commerce." This illustration proves that "the universal understanding of the American people" was, and is, that "a power to regulate navigation is as expressly granted as if that term had been added to the word 'commerce.'"[1209]

Nobody denies that the National Government has unlimited power over foreign commerce--"no sort of trade can be carried on between this country and any other, to which this power does not extend." The same is true of commerce among the States. The power of the National Government over trade with foreign nations, and "among" the several States, is conferred in the same sentence of the Constitution, and "must carry the same meaning throughout the sentence.... The word 'among' means intermingled with." So "commerce among the states cannot stop at the external boundary line of each state, but may be introduced into the interior." This does not, of course, include the "completely interior traffic of a state."[1210]

Everybody knows that foreign commerce is that of the whole Nation and not of its parts. "Every district has a right to participate in it. The deep streams which penetrate our country in every direction, pass through the interior of almost every state in the Union." The power to regulate this commerce "must be exercised whenever the subject exists. If it exists within a state, if a foreign voyage may commence or terminate within a state, then the power of Congress may be exercised within a state."[1211]

If possible, "this principle ... is still more clear, when applied to commerce 'among the several states.' They either join each other, in which case they are separated by a mathematical line, or they are remote from each other, in which case other states lie between them.... Can a trading expedition between two adjoining states commence and terminate outside of each?" The very idea is absurd. And must not commerce between States "remote" from one another, pass through States lying between them? The power to regulate this commerce is in the National Government.[1212]

What is this power to "regulate commerce"? It is the power "to prescribe the rule by which commerce is to be governed. This power ... is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution;" and these do not affect the present case. Power over interstate commerce "is vested in Congress as absolutely as it would be in a single government" under a Constitution like ours. There is no danger that Congress will abuse this power, because "the wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at election, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they [the people] have relied, to secure them from its abuse. They are restraints on which the people must often rely solely, in all representative governments." The upshot of the whole dispute is, declares Marshall, that Congress has power over navigation "within the limits of every state ... so far as that navigation may be, in any manner, connected" with foreign or interstate trade.[1213]

Marshall tries to answer the assertion that the power to regulate commerce is concurrent in Congress and the State Legislatures; but, in doing so, he is diffuse, prolix, and indirect. There is, he insists, no analogy between the taxing power of Congress and its power to regulate commerce; the former "does not interfere with the power of the states to tax for the support of their own governments." In levying such taxes, the States "are not doing what Congress is empowered to do." But when a State regulates foreign or interstate commerce, "it is exercising the very power ... and doing the very thing which Congress is authorized to do." However, says Marshall evasively, in the case before the court the question whether Congress has exclusive power over commerce, or whether the States can exercise it until Congress acts, may be dismissed, since Congress has legislated on the subject. So the only practical question is: "Can a state regulate commerce with foreign nations and among the states while Congress is regulating it?"[1214]

The argument is not sound that, since the States are expressly forbidden to levy duties on tonnage, exports, and imports which they might otherwise have levied, they may exercise other commercial regulations, not in like manner expressly prohibited. For the taxation of exports, imports, and tonnage is a part of the general taxing power and is not connected with the power to regulate commerce. It is true that duties on tonnage often are laid "with a view to the regulation of commerce; but they may be also imposed with a view to revenue," and, therefore, the States are prohibited from laying such taxes. There is a vast difference between taxation for the regulation of commerce and taxation for raising revenue. "Those illustrious statesmen and patriots" who launched the Revolution and framed the Constitution understood and acted upon this distinction: "The right to regulate commerce, even by the imposition of duties, was not controverted; but the right to impose a duty for the purpose of revenue, produced a war as important, perhaps, in its consequences to the human race, as any the world has ever witnessed."[1215]

In the same way, State inspection laws, while influencing commerce, do not flow from a power to regulate commerce. The purpose of inspection laws is "to improve the quality of the articles produced by the labor of the country.... They act upon the subject before it becomes an article" of foreign or interstate commerce. Such laws "form a portion of that immense mass of legislation which embraces everything within the territory of a state," and "which can be most advantageously exercised by the states themselves." Of this description are "inspection laws, quarantine laws, health laws ... as well as laws for regulating the internal commerce of a state, and those which respect turnpike-roads, ferries, etc."[1216]

Legislation upon all these subjects is a matter of State concern--Congress can act upon them only "for national purposes ... where the power is expressly given for a special purpose, or is clearly incidental to some power which is expressly given." Obviously, however, the National Government "in the exercise of its express powers, that, for example, of regulating [foreign and interstate] commerce ... may use means that may also be employed by a state, ... that, for example, of regulating commerce within the state." The National coasting laws, though operating upon ports within the same State, imply "no claim of a direct power to regulate the purely internal commerce of a state, or to act directly on its system of police." State laws on these subjects, although of the "same character" as those of Congress, do not flow from the same source whence the National laws flow, "but from some other, which remains with the state, and may be executed by the same means." Although identical measures may proceed from different powers, "this does not prove that the powers themselves are identical."[1217]

It is inevitable in a "complex system" of government like ours that "contests respecting power must arise" between State and Nation. But this "does not prove that one is exercising, or has a right to exercise, the powers of the other."[1218] It cannot be inferred from National statutes requiring National officials to "conform to, and assist in the execution of the quarantine and health laws of a state ... that a state may rightfully regulate commerce"; such laws flow from "the acknowledged power of a state, to provide for the health of its citizens." Nevertheless, "Congress may control the state [quarantine and health] laws, so far as it may be necessary to control them, for the regulation of commerce."[1219]

Marshall analyzes, at excessive length, National and State laws on the importation of slaves, on pilots, on lighthouses,[1220] to show that such legislation does not justify the inference that "the states possess, concurrently" with Congress, "the power to regulate commerce with foreign nations and among the states."

In the regulation of "their own purely internal affairs," States may pass laws which, although in themselves proper, become invalid when they interfere with a National law. Is this the case with the New York steamboat monopoly acts? Have they "come into collision with an act of Congress, and deprived a citizen of a right to which that act entitles him"? If so, it matters not whether the State laws are the exercise of a concurrent power to regulate commerce, or of a power to "regulate their domestic trade and police." In either case, "the acts of New York must yield to the law of Congress."[1221]

This truth is "founded as well on the nature of the government as on the words of the constitution." The theory that if State and Nation each rightfully pass conflicting laws on the same subject, "they affect the subject, and each other, like equal opposing powers," is demolished by the "supremacy" of the Constitution and "of the laws made in pursuance of it. The nullity of any act, inconsistent with the constitution, is produced by the declaration that the constitution is the supreme law." So when a State statute, enacted under uncontrovertible State powers, conflicts with a law, treaty, or the Constitution of the Nation, the State enactment "must yield to it."[1222]

It is not the Constitution, but "those laws whose authority is acknowledged by civilized man throughout the world" that "confer the right of intercourse between state and state.... The constitution found it an existing right, and gave to Congress the power to regulate it. In the exercise of this power, Congress has passed an act" regulating the coasting trade. Any law "must imply a power to exercise the right" it confers. How absurd, then, the contention that, while the State of New York cannot prevent a vessel licensed under the National coasting law, when proceeding from a port in New Jersey to one in New York, "from enjoying ... all the privileges conferred by the act of Congress," nevertheless, the State of New York "can shut her up in her own port, and prohibit altogether her entering the waters and ports of another state"![1223]

A National license to engage in the coasting trade gives the right to navigate between ports of different States.[1224] The fact that Gibbons's boats carried passengers only did not make those vessels any the less engaged in the coasting trade than if they carried nothing but merchandise--"no clear distinction is perceived between the power to regulate vessels employed in transporting men for hire, and property for hire.... A coasting vessel employed in the transportation of passengers, is as much a portion of the American marine as one employed in the transportation of a cargo."[1225] Falling into his characteristic over-explanation, Marshall proves the obvious by many illustrations.[1226]

However the question as to the nature of the business is beside the point, since the steamboat monopoly laws are based solely on the method of propelling boats--"whether they are moved by steam or wind. If by the former, the waters of New York are closed against them, though their cargoes be dutiable goods, which the laws of the United States permit them to enter and deliver in New York. If by the latter, those waters are free to them, though they should carry passengers only." What is the injury which Ogden complains that Gibbons has done him? Not that Gibbons's boats carry passengers, but only that those vessels "are moved by steam."

"The writ of injunction and decree" of the State court "restrain these [Gibbons's] licensed vessels, not from carrying passengers, but from being moved through the waters of New York by steam, for any purpose whatever." Therefore, "the real and sole question seems to be, whether a steam machine, in actual use, deprives a vessel of the privileges conferred by a [National] license." The answer is easy--indeed, there is hardly any question to answer: "The laws of Congress, for the regulation of commerce, do not look to the principle by which vessels are moved."[1227]

Steamboats may be admitted to the coasting trade "in common with vessels using sails. They are ... entitled to the same privileges, and can no more be restrained from navigating waters, and entering ports which are free to such vessels, than if they were wafted on their voyage by the winds, instead of being propelled by the agency of fire. The one element may be as legitimately used as the other, for every commercial purpose authorized by the laws of the Union; and the act of a state inhibiting the use of either to any vessel having a license under the act of Congress comes ... in direct collision with that act."[1228]

Marshall refuses to discuss the question of Fulton's patents since, regardless of that question, the cause must be decided by the supremacy of National over State laws that regulate commerce between the States.

The Chief Justice apologizes, and very properly, for taking so "much time ... to demonstrate propositions which may have been thought axioms. It is felt that the tediousness inseparable from the endeavor to prove that which is already clear, is imputable to a considerable part of this opinion. But it was unavoidable." The question is so great, the judges, from whose conclusions "we dissent," are so eminent,[1229] the arguments at the bar so earnest, an "unbroken" statement of principles upon which the court's judgment rests so indispensable, that Marshall feels that nothing should be omitted, nothing taken for granted, nothing assumed.[1230]

Having thus placated Kent, Marshall turns upon his Virginia antagonists: "Powerful and ingenious minds, taking, as postulates, that the powers expressly granted to the government of the Union, are to be contracted, by construction, into the narrowest possible compass, and that the original powers of the States are retained, if any possible construction will retain them, may, by a course of well digested, but refined and metaphysical reasoning, founded on these premises, explain away the constitution of our country, and leave it a magnificent structure indeed, to look at, but totally unfit for use.

"They may so entangle and perplex the understanding, as to obscure principles which were before thought quite plain, and induce doubts where, if the mind were to pursue its own course, none would be perceived.

"In such a case, it is peculiarly necessary to recur to safe and fundamental principles to sustain those principles, and, when sustained, to make them the tests of the arguments to be examined."[1231]

So spoke John Marshall, in his seventieth year, when closing the last but one of those decisive opinions which vitalized the American Constitution, and assured for himself the grateful and reverent homage of the great body of the American people as long as the American Nation shall endure. It is pleasant to reflect that the occasion for this ultimate effort of Marshall's genius was the extinction of a monopoly.

Marshall, the statesman, rather than the judge, appears in his opinion. While avowing the most determined Nationalism in the body of his opinion, he is cautious, nevertheless, when coming to close grips with the specific question of the respective rights of Gibbons and Ogden. He is vague on the question of concurrent powers of the States over commerce, and rests the concrete result of his opinion on the National coasting laws and the National coasting license to Gibbons.

William Johnson, a Republican, appointed by Jefferson, had, however, no such scruples. In view of the strong influence Marshall had, by now, acquired over Johnson, it appears to be not improbable that the Chief Justice availed himself of the political status of the South Carolinian, as well as of his remarkable talents, to have Johnson state the real views of the master of the Supreme Court.

At any rate, Johnson delivered a separate opinion so uncompromisingly Nationalist that Marshall's Nationalism seems hesitant in comparison. In it Johnson gives one of the best statements ever made, before or since, of the regulation of commerce as the moving purpose that brought about the American Constitution. That instrument did not originate liberty of trade: "The law of nations ... pronounces all commerce legitimate in a state of peace, until prohibited by positive law." So the power of Congress over that vital matter "must be exclusive; it can reside but in one potentate; and hence, the grant of this power carries with it the whole subject, leaving nothing for the state to act upon."[1232]

Commercial laws! Were the whole of them "repealed to-morrow, all commerce would be lawful." The authority of Congress to control foreign commerce is precisely the same as that over interstate commerce. The National power over navigation is not "incidental to that of regulating commerce; ... it is as the thing itself; inseparable from it as vital motion is from vital existence.... Shipbuilding, the carrying trade, and the propagation of seamen, are such vital agents of commercial prosperity, that the nation which could not legislate over these subjects would not possess power to regulate commerce."[1233]

Johnson therefore finds it "impossible" to agree with Marshall that freedom of interstate commerce rests on any such narrow basis as National coasting law or license: "I do not regard it as the foundation of the right set up in behalf of the appellant [Gibbons]. If there was any one object riding over every other in the adoption of the constitution, it was to keep the commercial intercourse among the states free from all invidious and partial restraints.... If the [National] licensing act was repealed to-morrow," Gibbons's right to the free navigation of New York waters "would be as strong as it is under this license."[1234]

So it turned out that the first man appointed for the purpose of thwarting Marshall's Nationalism, expressed, twenty years after his appointment, stronger Nationalist sentiments than Marshall himself was, as yet, willing to avow openly. Johnson's astonishing opinion in Gibbons vs. Ogden is conclusive proof of the mastery the Chief Justice had acquired over his Republican associate, or else of the conquest by Nationalism of the mind of the South Carolina Republican.

For the one and only time in his career on the Supreme Bench, Marshall had pronounced a "popular" opinion. The press acclaimed him as the deliverer of the Nation from thralldom to monopoly. His opinion, records the New York Evening Post, delivered amidst "the most unbroken silence" of a "courtroom ... crowded with people," was a wonderful exhibition of intellect--"one of the most powerful efforts of the human mind that has ever been displayed from the bench of any court. Many passages indicated a profoundness and a forecast in relation to the destinies of our confederacy peculiar to the great man who acted as the organ of the court. The steamboat grant is at an end."[1235]

Niles published Marshall's opinion in full,[1236] and in this way it reached, directly or indirectly, every paper, big and little, in the whole country, and was reproduced by most of them. Many journals contained long articles or editorials upon it, most of them highly laudatory. The New York Evening Post of March 8 declared that it would "command the assent of every impartial mind competent to embrace the subject." Thus, for the moment, Marshall was considered the benefactor of the people and the defender of the Nation against the dragon of monopoly. His opinion in Gibbons vs. Ogden changed into applause that disfavor which his opinion in M'Culloch vs. Maryland had evoked. Only the Southern political leaders saw the "danger"; but so general was the satisfaction of the public that they were, for the most part, quiescent as to Marshall's assertion of Nationalism in this particular case.

But few events in our history have had a larger and more substantial effect on the well-being of the American people than this decision, and Marshall's opinion in the announcement of it. New York instantly became a free port for all America. Steamboat navigation of American rivers, relieved from the terror of possible and actual State-created monopolies, increased at an incredible rate; and, because of two decades of restraint and fear, at abnormal speed.[1237]

New England manufacturers were given a new life, since the transportation of anthracite coal--the fuel recently discovered and aggravatingly needed--was made cheap and easy. The owners of factories, the promoters of steamboat traffic, the innumerable builders of river craft on every navigable stream in the country, the farmer who wished to send his products to market, the manufacturer who sought quick and inexpensive transportation of his wares--all acclaimed Marshall's decision because all found in it a means to their own interests.

The possibilities of transportation by steam railways soon became a subject of discussion by enterprising men, and Marshall's opinion gave them tremendous encouragement. It was a guarantee that they might build railroads across State lines and be safe from local interference with interstate traffic. Could the Chief Justice have foreseen the development of the railway as an agency of Nationalism, he would have realized, in part, the permanent and ever-growing importance of his opinion--in part, but not wholly; for the telegraph, the telephone, the oil and gas pipe line were also to be affected for the general good by Marshall's statesmanship as set forth in his outgiving in Gibbons vs. Ogden.

It is not immoderate to say that no other judicial pronouncement in history was so wedded to the inventive genius of man and so interwoven with the economic and social evolution of a nation and a people. After almost a century, Marshall's Nationalist theory of commerce is more potent than ever; and nothing human is more certain than that it will gather new strength as far into the future as forecast can penetrate.

At the time of its delivery, nobody complained of Marshall's opinion except the agents of the steamboat monopoly, the theorists of Localism, and the slave autocracy. All these influences beheld, in Marshall's statesmanship, their inevitable extinction. All correctly understood that the Nationalism expounded by Marshall, if truly carried out, sounded their doom.

Immediately after the decision was published, a suit was brought in the New York Court of Equity, apparently for the purpose of having that tribunal define the extent of the Supreme Court's holding. John R. Livingston secured a coasting license for the Olive Branch, and sent the boat from New York to Albany, touching at Jersey and unloading there two boxes of freight. The North River Steamboat Company, assignee of the Livingston-Fulton monopoly, at once applied for an injunction.[1238] The matter excited intense interest, and Nathan Sanford, who had succeeded Kent as Chancellor, took several weeks to "consider the question."[1239]

He delivered two opinions, the second almost as Nationalist as that of Marshall. "The law of the United States is supreme.... The state law is annihilated, so far as the ground is occupied by the law of the union; and the supreme law prevails, as if the state law had never been made. The supremacy of constitutional laws of the union, and the nullity of state laws inconsistent with such laws of the union, are principles of the constitution of the United States.... So far as the law of the union acts upon the case, the state law is extinguished.... Opposing rights to the same thing, can not co-exist under the constitution of our country."[1240] But Chancellor Sanford held that, over commerce exclusively within the State, the Nation had no control.

Livingston appealed to the Court of Errors, and in February, 1825, the case was heard. The year intervening since Marshall delivered his opinion had witnessed the rise of an irresistible tide of public sentiment in its favor; and this, more influential than all arguments of counsel even upon an "independent judiciary," was reflected in the opinion delivered by John Woodworth, one of the judges of the Supreme Court of that State. He quotes Marshall liberally, and painstakingly analyzes his opinion, which, says Woodworth, is confined to commerce among the States to the exclusion of that wholly within a single State. Over this latter trade Congress has no power, except for "national purposes," and then only where such power is "'expressly given ... or is clearly incidental to some power expressly given.'"[1241]

Chief Justice John Savage adopted the same reasoning as did Justice Woodworth, and examined Marshall's opinion with even greater particularity, but arrived at the same conclusion. Savage adds, however, "a few general remarks," and in these he almost outruns the Nationalism of Marshall. "The constitution ... should be so construed as best to promote the great objects for which it was made"; among them a principal one was "'to form a more perfect union,'" etc.[1242] The regulation of commerce among the States "was one great and leading inducement to the adoption" of the Nation's fundamental law.[1243] "We are the citizens of two distinct, yet connected governments.... The powers given to the general government are to be first satisfied."

To the warning that the State Governments "will be swallowed up" by the National Government, Savage declares, "my answer is, if such danger exists, the states should not provoke a termination of their existence, by encroachments on their part."[1244] In such ringing terms did Savage endorse Marshall's opinion in Gibbons vs. Ogden.

The State Senators "concurred" automatically in the opinion of Chief Justice Savage, and the decree of Chancellor Sanford, refusing an injunction on straight trips of the Olive Branch between New York landings, but granting one against commerce of any kind with other States, was affirmed.

So the infinitely important controversy reached a settlement that, to this day, has not been disturbed. Commerce among the States is within the exclusive control of the National Government, including that which, though apparently confined to State traffic, affects the business transactions of the Nation at large. The only supervision that may be exercised by a State over trade must be wholly confined to that State, absolutely without any connection whatever with intercourse with other States.

One year after the decision of Gibbons vs. Ogden, the subject of the powers and duties of the Supreme Court was again considered by Congress. During February, 1825, an extended debate was held in the Senate over a bill which, among other things, provided for three additional members of that tribunal.[1245] But the tone of its assailants had mellowed. The voice of denunciation now uttered words of deference, even praise. Senator Johnson, while still complaining of the evils of an "irresponsible" Judiciary, softened his attack with encomium: "Our nation has ever been blessed with a most distinguished Supreme Court, ... eminent for moral worth, intellectual vigor, extensive acquirements, and profound judicial experience and knowledge.... Against the Federal Judiciary, I have not the least malignant emotion."[1246] Senator John H. Eaton of Tennessee said that Virginia's two members of the Supreme Court (Marshall and Bushrod Washington) were "men of distinction, ... whose decisions carried satisfaction and confidence."[1247]

Senator Isham Talbot of Kentucky paid tribute to the "wise, mild, and guiding influence of this solemn tribunal."[1248] In examining the Nationalist decisions of the Supreme Court he went out of his way to declare that he did not mean "to cast the slightest shade of imputation on the purity of intention or the correctness of judgment with which justice is impartially dispensed from this exalted bench."[1249]

This remarkable change in the language of Congressional attack upon the National Judiciary became still more conspicuous at the next session in the debate upon practically the same bill and various amendments proposed to it. Promptly after Congress convened in December, 1825, Webster himself reported from the Judiciary Committee of the House a bill increasing to ten the membership of the Supreme Court and rearranging the circuits.[1250] This measure passed substantially as reported.[1251]

When the subject was taken up in the Senate, Senator Martin Van Buren in an elaborate speech pointed out the vast powers of that tribunal, unequaled and without precedent in the history of the world--powers which, if now "presented for the first time," would undoubtedly be denied by the people.[1252] Yet, strange as it may seem, opposition has subsided in an astonishing manner, he said; even those States whose laws have been nullified, "after struggling with the giant strength of the Court, have submitted to their fate."[1253]

Indeed, says Van Buren, there has grown up "a sentiment ... of idolatry for the Supreme Court ... which claims for its members an almost entire exemption from the fallibilities of our nature." The press, especially, is influenced by this feeling of worship. Van Buren himself concedes that the Justices have "talents of the highest order and spotless integrity." Marshall, in particular, deserves unbounded praise and admiration: "That ... uncommon man who now presides over the Court ... is, in all human probability, the ablest Judge now sitting upon any judicial bench in the world."[1254]

The fiery John Rowan of Kentucky, now Senator from that State, and one of the boldest opponents of the National Judiciary, offered an amendment requiring that "seven of the ten Justices of the Supreme Court shall concur in any judgement or decree, which denies the validity, or restrains the operation, of the Constitution, or law of any of the States, or any provision or enaction in either."[1255] In advocating his amendment, however, Rowan, while still earnestly attacking the "encroachments" of the Supreme Court, admitted the "unsuspected integrity" of the Justices upon which "suspicion has never scowled.... The present incumbents are above all suspicion; obliquity of motive has never been ascribed to any of them."[1256] Nevertheless, he complains of "a judicial superstition--which encircles the Judges with infallibility."[1257]

This seemingly miraculous alteration of public opinion, manifesting itself within one year from the violent outbursts of popular wrath against Marshall and the National Judiciary, was the result of the steady influence of the conservatives, unwearyingly active for a quarter of a century; of the natural reaction against extravagance of language and conduct shown by the radicals during that time; of the realization that the Supreme Court could be resisted only by force continuously exercised; and, above all, of the fundamental soundness and essential justness of Marshall's opinions, which, in spite of the local and transient hardship they inflicted, in the end appealed to the good sense and conscience of the average man. Undoubtedly, too, the character of the Chief Justice, which the Nation had come to appreciate, was a powerful element in bringing about the alteration in the popular concept of the Supreme Court.

But, notwithstanding the apparent diminution of animosity toward the Chief Justice and the National Judiciary, hatred of both continued, and within a few years showed itself with greater violence than ever. How Marshall met this recrudescence of Localism is the story of his closing years.

When, in Gibbons vs. Ogden, Marshall established the supremacy of Congress over commerce among the States, he also announced the absolute power of the National Legislature to control trade with foreign nations. It was not long before an opportunity was afforded him to apply this principle, and to supplement his first great opinion on the meaning of the commerce clause, by another pronouncement of equal power and dignity. By acts of the Maryland Legislature importers or wholesalers of imported goods were required to take out licenses, costing fifty dollars each, before they could sell "by wholesale, bale or package, hogshead, barrel, or tierce." Non-observance of this requirement subjected the offender to a fine of one hundred dollars and forfeiture of the amount of the tax.[1258]

Under this law Alexander Brown and his partners, George, John, and James Brown, were indicted in the City Court of Baltimore for having sold a package of foreign dry goods without a license. Judgment against the merchants was rendered; and this was affirmed by the Court of Appeals. The case was then taken to the Supreme Court on a writ of error and argued for Brown & Co. by William Wirt and Jonathan Meredith, and for Maryland by Roger Brooke Taney[1259] and Reverdy Johnson.[1260]

On March 12, 1827, the Chief Justice delivered the opinion of the majority of the court, Justice Thompson dissenting. The only question, says Marshall, is whether a State can constitutionally require an importer to take out a license "before he shall be permitted to sell a bale or package" of imported goods.[1261] The Constitution prohibits any State from laying imposts or duties on imports or exports, except what may be "absolutely necessary for executing its inspection laws." The Maryland act clearly falls within this prohibition: "A duty on imports ... is not merely a duty on the act of importation, but is a duty on the thing imported....

"There is no difference," continues Marshall, "between a power to prohibit the sale of an article and a power to prohibit its introduction into the country.... No goods would be imported if none could be sold." The power which can levy a small tax can impose a great one--can, in fact, prohibit the thing taxed: "Questions of power do not depend on the degree to which it may be exercised."[1262] He admits that "there must be a point of time when the prohibition [of States to tax imports] ceases and the power of the State to tax commences"; but "this point of time is [not] the instant that the articles enter the country."[1263]

Here Marshall becomes wisely cautious. The power of the States to tax and the "restriction" on that power, "though quite distinguishable when they do not approach each other, may yet, like the intervening colors between white and black, approach so nearly as to perplex the understanding, as colors perplex the vision in marking the distinction between them. Yet the distinction exists, and must be marked as cases arise. Till they do arise, it might be premature to state any rule as being universal in its application. It is sufficient for the present, to say, generally, that, when the importer has so acted upon the thing imported that it has become incorporated and mixed up with the mass of property in the country, it has, perhaps, lost its distinctive character as an import, and has become subject to the taxing power of the State; but while remaining the property of the importer, in his warehouse, in the original form or package in which it was imported, a tax upon it is too plainly a duty on imports to escape the prohibition in the constitution."[1264]

It is not true that under the rule just stated, the State is precluded from regulating its internal trade and from protecting the health or morals of its citizens. The Constitutional inhibition against State taxation of imports applies only to "the form in which it was imported." When the importer sells his goods "the [State] law may treat them as it finds them." Measures may also be taken by the State concerning dangerous substances like gunpowder or "infectious or unsound articles"--such measures are within the "police power, which unquestionably remains, and ought to remain, with the States." But State taxation of imported articles in their original form is a violation of the clause of the Constitution forbidding States to lay any imposts or duties on imports and exports.[1265]

Such taxation also violates the commerce clause. Marshall once more outlines the reasons for inserting that provision into the Constitution, cites his opinion in Gibbons vs. Ogden, and again declares that the power of Congress to regulate commerce "is co-extensive with the subject on which it acts and cannot be stopped at the external boundary of a State, but must enter its interior." This power, therefore, "must be capable of authorizing the sale of those articles which it introduces." In almost the same words already used, the Chief Justice reiterates that goods would not be imported if they could not be sold. "Congress has a right, not only to authorize importation, but to authorize the importer to sell." A tariff law "offers the privilege [of importation] for sale at a fixed price to every person who chooses to become a purchaser." By paying the duty the importer makes a contract with the National Government--"he ... purchase[s] the privilege to sell."

"The conclusion, that the right to sell is connected with the law permitting importation, as an inseparable incident, is inevitable." To deny that right "would break up commerce." The power of a State "to tax its own citizens, or their property within its territory," is "acknowledged" and is "sacred"; but it cannot be exercised "so as to obstruct or defeat the power [of Congress] to regulate commerce." When State laws conflict with National statutes, "that which is not supreme must yield to that which is supreme"--a "great and universal truth ... inseparable from the nature of things," which "the constitution has applied ... to the often interfering powers of the general and State governments, as a vital principle of perpetual operation."

The States, through the taxing power, "cannot reach and restrain the action of the national government ...--cannot reach the administration of justice in the Courts of the Union, or the collection of the taxes of the United States, or restrain the operation of any law which Congress may constitutionally pass--... cannot interfere with any regulation of commerce." Otherwise a State might tax "goods in their transit through the State from one port to another for the purpose of re-exportation"; or tax articles "passing through it from one State to another, for the purpose of traffic"; or tax "the transportation of articles passing from the State itself to another State for commercial purposes." Of what avail the power given Congress by the Constitution if the States may thus "derange the measures of Congress to regulate commerce"?

Marshall is here addressing South Carolina and other States which, at that time, were threatening retaliation against the manufacturers of articles protected by the tariff.[1266] He pointedly observes that the decision in M'Culloch vs. Maryland is "entirely applicable" to the present controversy, and adds that "we suppose the principle laid down in this case to apply equally to importations from a sister State."[1267]

The principles announced by Marshall in Brown vs. Maryland have been upheld by nearly all courts that have since dealt with the subject of commerce. But there has been much "distinguishing" of various cases from that decision; and, in this process, the application of his great opinion has often been modified, sometimes evaded. In some cases in which Marshall's statesmanship has thus been weakened and narrowed, local public sentiment as to questions that have come to be considered moral, has been influential. It is fortunate for the Republic that considerations of this kind did not, in such fashion, impair the liberty of commerce among the States before the American Nation was firmly established. When estimating our indebtedness to John Marshall, we must have in mind the state of the country at the time his Constitutional expositions were pronounced and the inevitable and ruinous effect that feebler and more restricted assertions of Nationalism would then have had.

Seldom has a triumph of sound principles and of sound reasoning in the assertion of those principles been more frankly acknowledged than in the tribute which Roger Brooke Taney inferentially paid to John Marshall, whom he succeeded as Chief Justice. Twenty years after the decision of Brown vs. Maryland, Taney declared: "I at that time persuaded myself that I was right.... But further and more mature reflection has convinced me that the rule laid down by the Supreme Court is a just and safe one, and perhaps the best that could have been adopted for preserving the right of the United States on the one hand, and of the States on the other, and preventing collision between them."[1268]

Chief Justice Taney's experience has been that of many thoughtful men who, for a season and when agitated by intense concern for a particular cause or policy, have felt Marshall to have been wrong in this, that, or the other of his opinions. Frequently, such men have, in the end, come to the steadfast conclusion that they were wrong and that Marshall was right.

FOOTNOTES:

[1107] Institut national des sciences et des arts.

[1108] Dickinson: Robert Fulton, Engineer and Artist, 156-57; also see Thurston: Robert Fulton, 113.

[1109] See Dickinson, 126-32; also Knox: Life of Robert Fulton, 72-86; and Fletcher: Steam-Ships, 19-24.

[1110] Dickinson, 134-35; Knox, 90-93.

[1111] Act of March 27, 1798, Laws of New York, 1798, 382-83.

This act, however, was merely the transfer of similar privileges granted to John Fitch on March 19, 1787, to whom, rather than to Robert Fulton, belongs the honor of having invented the steamboat. It was printed in the Laws of New York edited by Thomas Greenleaf, published in 1792, I, 411; and also appears as Appendix A to "A Letter, addressed to Cadwallader D. Colden, Esquire," by William Alexander Duer, the first biographer of Fulton. (Albany, 1817.) Duer's pamphlet is uncommonly valuable because it contains all the petitions to, and the acts of, the New York Legislature concerning the steamboat monopoly.

[1112] Reigart: Life of Robert Fulton, 163. Nobody but Livingston was willing to invest in what all bankers and business men considered a crazy enterprise. (Ib. 100-01.)

[1113] Knox, 93. It should be remembered, however, that the granting of monopolies was a very common practice everywhere during this period. (See Prentice: Federal Power over Carriers and Corporations, 60-65.)

[1114] Compare with his brother's persistence in the Batture controversy, supra, 100-15.

[1115] Dickinson, 64-123; Knox, 35-44.

[1116] Knox, 93; see also Dickinson, 136.

[1117] Act of April 5, 1803, Laws of New York, 1802-04, 323-24.

[1118] Act of April 6, 1807, Laws of New York, 1807-09, 213-14.

[1119] The North River was afterward named the Clermont, which was the name of Livingston's county seat. (Dickinson, 230.)

[1120] The country people along the Hudson thought the steamboat a sea monster or else a sign of the end of the world. (Knox, 110-11.)

[1121] Act of April 11, 1808, Laws of New York, 1807-09, 407-08. (Italics the author's.)

[1122] Dickinson, 233-34.

[1123] Ib. 234-36. The thoroughfare in New York, at the foot of which these boats landed, was thereafter named Fulton Street. (Ib. 236.)

[1124] See infra, 414.

[1125] Dickinson, 230. From the first Roosevelt had been associated with Livingston in steamboat experiments. He had constructed the engine for the craft with which Livingston tried to fulfill the conditions of the first New York grant to him in 1798. Roosevelt was himself an inventor, and to him belongs the idea of the vertical wheel for propelling steamboats which Fulton afterward adopted with success. (See J. H. B. Latrobe, in Maryland Historical Society Fund-Publication, No. 5, 13-14.)

Roosevelt was also a manufacturer and made contracts with the Government for rolled and drawn copper to be used in war-vessels. The Government failed to carry out its agreement, and Roosevelt became badly embarrassed financially. In this situation he entered into an arrangement with Livingston and Fulton that if the report he was to make to them should be favorable, he was to have one third interest in the steamboat enterprise on the Western waters, while Livingston and Fulton were to supply the funds.

The story of his investigations and experiments on the Ohio and Mississippi glows with romance. Although forty-six years old, he had but recently married and took his bride with him on this memorable journey. At Pittsburgh he built a flatboat and on this the newly wedded couple floated to New Orleans; the trip, with the long and numerous stops to gather information concerning trade, transportation, the volume and velocity of various streams, requiring six months' time.

Before proceeding far Roosevelt became certain of success. Discovering coal on the banks of the Ohio, he bought mines, set men at work in them, and stored coal for the steamer he felt sure would be built. His expectation was justified and, returning to New York from New Orleans, he readily convinced Livingston and Fulton of the practicability of the enterprise and was authorized to go back to Pittsburgh to construct a steamboat, the design of which was made by Fulton. By the summer of 1811 the vessel was finished. It cost $38,000 and was named the New Orleans.

Late in September, 1811, the long voyage to New Orleans was begun, the only passengers being Roosevelt and his wife. A great crowd cheered them as the boat set out from Pittsburgh. At Cincinnati the whole population greeted the arrival of this extraordinary craft. Mr. and Mrs. Roosevelt were given a dinner at Louisville, where, however, all declared that while the boat could go down the river, it never could ascend. Roosevelt invited the banqueters to dine with him on the New Orleans the next night and while toasts were being drunk and hilarity prevailed, the vessel was got under way and swiftly proceeded upstream, thus convincing the doubters of the power of the steamboat.

From Louisville onward the voyage was thrilling. The earthquake of 1811 came just after the New Orleans passed Louisville and this changed the river channels. At another time the boat took fire and was saved with difficulty. Along the shore the inhabitants were torn between terror of the earthquake and fright at this monster of the waters. The crew had to contend with snags, shoals, sandbars, and other obstructions. Finally Natchez was reached and here thousands of people gathered on the bluffs to witness this triumph of science.

At last the vessel arrived at New Orleans and the first steamboat voyage on the Ohio and Mississippi was an accomplished fact. The experiment, which began two years before with the flatboat voyage of a bride and groom, ended at the metropolis of the Southwest in the marriage of the steamboat captain to Mrs. Roosevelt's maid, with whom he had fallen in love during this thrilling and historic voyage. (See Latrobe, in Md. Hist. Soc. Fund-Pub. No. 6. A good summary of Latrobe's narrative is given in Preble: Chronological History of the Origin and Development of Steam Navigation, 77-81.)

[1126] Act of Jan. 25, 1811, Acts of New Jersey, 1811, 298-99.

[1127] Act of April 9, 1811, Laws of New York, 1811, 368-70.

[1128] Laws of Connecticut, May Sess. 1822, chap. XXVIII.

[1129] Dickinson, 244.

[1130] Livingston et al. vs. Van Ingen et al., 1 Paine, 45-46. Brockholst Livingston, Associate Justice of the Supreme Court, sat in this case with William P. Van Ness (the friend and partisan of Burr), and delivered the opinion.

[1131] The full title of this tribunal was the "Court for the Trial of Impeachments and the Correction of Errors." It was the court of last resort, appeals lying to it from the Supreme Court of Judicature and from the Court of Chancery. It consisted of the Justices of the Supreme Court of Judicature and a number of State Senators. A more absurdly constituted court cannot well be imagined.

[1132] 9 Johnson, 558, 563.

[1133] The State Senate, House, Council of Revision, and Governor.

[1134] 9 Johnson, 572.

[1135] Those enacted in 1798, 1803, 1807, 1808, and 1811.

[1136] 9 Johnson, 573. Jay as Governor was Chairman of the Council of Revision, of which Kent was a member.

[1137] lb. 572.

[1138] Ib. 573. (Italics the author's.)

[1139] 9 Johnson, 574.

[1140] Ib. 575-76.

[1141] Ib. 577-78.

[1142] 9 Johnson, 578, 580.

[1143] Ib. 582-88.

[1144] All the Senators concurred except two, Lewis and Townsend, who declined giving opinions because of relationship with the parties to the action. (Ib. 589.)

[1145] Ogden protested against the Livingston-Fulton steamboat monopoly in a Memorial to the New York Legislature. (See Duer, 94-97.) A committee was appointed and reported the facts as Ogden stated them; but concluded that, since New York had granted exclusive steamboat privileges to Livingston, "the honor of the State requires that its faith should be preserved." However, said the committee, the Livingston-Fulton boats "are in substance the invention of John Fitch," to whom the original monopoly was granted, after the expiration of which "the right to use" steamboats "became common to all the citizens of the United States." Moreover, the statements upon which rested the Livingston monopoly of 1798 "were not true in fact," Fitch having forestalled the claims of the Livingston pretensions. (Ib. 103-04.)

[1146] 4 Johnson's Chancery Reports, 50-51. The reader must not confuse the two series of Reports by Johnson; one contains the decisions of the Court of Errors; the other, those of the Court of Chancery.

[1147] Act of April 6, 1808, Laws of New York, 1807-09, 313-15.

[1148] 4 Johnson's Chancery Reports, 51, 53.

[1149] Ib. 152.

[1150] Ib. 154.

[1151] Act of Feb. 18, 1793, U.S. Statutes at Large, I, 305-18.

[1152] 4 Johnson's Chancery Reports, 156.

[1153] 9 Johnson, 507 et seq.

[1154] 4 Johnson's Chancery Reports, 158-59.

[1155] 17 Johnson, 488 et seq.

[1156] See supra, 240-50, 284-86.

[1157] Story to Fettyplace, Feb. 28, 1821, Story, I, 397.

[1158] Records Supreme Court, MS.

[1159] The case was first docketed, June 7, 1820, as Aaron Ogden vs. Thomas Gibbins, and the defective transcript was filed October 17, of the same year. When next docketed, the title was correctly given, Thomas Gibbons vs. Aaron Ogden. (Ib.)

[1160] Act of April 19, 1811, Acts of Territory of Orleans, 1811, 112-18.

[1161] Act of Nov. 18, 1814, Laws of Georgia, 1814, October Sess. 28-30.

[1162] Act of Feb. 7, 1815, Laws of Massachusetts, 1812-15, 595.

[1163] Act of June 15, 1815, Laws of New Hampshire, 1815, II, 5.

[1164] Act of Nov. 10, 1815, Laws of Vermont, 1815, 20.

[1165] Ohio, for example, passed two laws for the "protection" of its citizens owning steamboats. This act provided that no craft propelled by steam, operated under a license from the New York monopoly, should land or receive passengers at any point on the Ohio shores of Lake Erie unless Ohio boats were permitted to navigate the waters of that lake within the jurisdiction of New York. For every passenger landed in violation of these acts the offender was made subject to a fine of $100. (Chap, XXV, Act of Feb. 18, 1822, and chap. II, Act of May 23, 1822, Laws of Ohio, 1822.)

[1166] Niles's Register for these years is full of accounts of the building, launching, and departures and arrivals of steam craft throughout the whole interior of the country.

[1167] See Blane: An Excursion Through the United States and Canada, by "An English Gentleman," 119-21. For an accurate account of the commercial development of the West see also Johnson: History of Domestic and Foreign Commerce, I, 213-15.

On March 1, 1819, Flint saw a boat on the stocks at Jeffersonville, Indiana, 180 feet long, 40 feet broad, and of 700 tons burden. (Flint's Letters, in E. W. T.: Thwaites, IX, 164.)

[1168] Blane, 118.

[1169] Annals, 14th Cong. 2d Sess. 296.

[1170] Ib. 361.

[1171] See debate in the House, ib. 851-923; and in the Senate, ib. 166-70.

[1172] Ib. 924-33.

[1173] March 1, 1817, ib. 1052.

[1174] Veto Message of March 3, 1817, Richardson, I, 584-85.

[1175] Monroe gingerly referred to it in his First Inaugural Address. (Richardson, II, 8.) But in his First Annual Message he dutifully followed Madison and declared that "Congress do not possess the right" to appropriate National funds for internal improvements. So this third Republican President recommended an amendment to the Constitution "which shall give to Congress the right in question." (Ib. 18.)

[1176] Annals, 15th Cong. 1st Sess. 451-60.

[1177] Ib. 1114-1250, 1268-1400.

[1178] "All the difficulties under which we have labored and now labor on this subject have grown out of a fatal admission" by Madison "which runs counter to the tenor of his whole political life, and is expressly contradicted by one of the most luminous and able State papers that ever was written [the Virginia Resolutions]--an admission which gave a sanction to the principle that this Government had the power to charter the present colossal Bank of the United States. Sir, ... that act, and one other which I will not name [Madison's War Message in 1812], bring forcibly home to my mind a train of melancholy reflections on the miserable state of our mortal being:

'In life's last scenes, what prodigies surprise! Fears of the brave, and follies of the wise. From Marlborough's eyes the streams of dotage flow, And Swift expires a driv'ler and a show.'

"Such is the state of the case, Sir. It is miserable to think of it--and we have nothing left to us but to weep over it." (Annals, 18th Cong. 1st Sess. 1301.)

Randolph was as violently against the War of 1812 as was Marshall, but he openly proclaimed his opposition.

[1179] Ib.

[1180] Italics the author's.

[1181] Annals, 18th Cong. 1st Sess. 1308.

[1182] Ib. 1310-11. The bill passed, 115 yeas to 86 nays. (Ib. 1468-69.)

[1183] See infra, 535-36.

[1184] See infra, chap. X.

[1185] See vol. I, 310-12, of this work; also Marshall: Life of George Washington, 2d ed. II, 105-06, 109-10, 125. And see Madison's "Preface to Debates in the Convention of 1787." (Records of the Federal Convention: Farrand, III, 547.) "The want of authy. in Congs. to regulate Commerce had produced in Foreign nations particularly G. B. a monopolizing policy injurious to the trade of the U. S. and destructive to their navigation.... The same want of a general power over Commerce led to an exercise of this power separately, by the States, w^{ch} not only proved abortive, but engendered rival, conflicting and angry regulations."

[1186] Records, Fed. Conv.: Farrand, II, 143. The provision in this draft is very curious. It declares that "a navigation act shall not be passed, but with the consent of (eleven states in) <2/3d. of the Members present of> the senate and (10 in) <the like No. of> the house of representatives."

[1187] Ib. 135, 157, 569, 595, 655. Roger Sherman mentioned interstate trade only incidentally. Speaking of exports and imports, he said that "the oppression of the uncommercial States was guarded agst. by the power to regulate trade between the States." (Ib. 308.)

Writing in 1829, Madison said that the commerce clause "being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it ... grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged." (Madison to Cabell, Feb. 13, 1829, ib. III, 478.)

[1188] See Monthly Law Reporter, New Series, X, 177.

[1189] Wirt to Carr, Feb. 1, 1824, Kennedy, II, 164.

[1190] Ib.

[1191] "Reminiscence," that betrayer of history, is responsible for the fanciful story, hitherto accepted, that Webster was speaking on the tariff in the House when he was suddenly notified that Gibbons vs. Ogden would be called for argument the next morning; and that, swiftly concluding his great tariff argument, he went home, took medicine, slept until ten o'clock that night, then rose, and in a strenuous effort worked until 9 A.M. on his argument in the steamboat case; and that this was all the preparation he had for that glorious address. (Ticknor's reminiscences of Webster, as quoted by Curtis, I, 216-17.)

On its face, Webster's argument shows that this could not have been true. The fact was that Webster had had charge of the case in the Supreme Court for three years; and that, since the argument was twice before expected, he had twice before prepared for it.

The legend about his being stopped in his tariff speech is utterly without foundation. The debate on that subject did not even begin in the House until February 11, 1824 (Annals, 18th Cong. 1st Sess. 1470), three days after the argument of Gibbons vs. Ogden was concluded; and Webster did not make his famous speech on the Tariff Bill of 1824 until April 1-2, one month after the steamboat case had been decided. (Ib. 2026-68.)

Moreover, as has been stated in the text, the debate on the survey of roads and canals was on in the House when the argument in Gibbons vs. Ogden was heard; had been in progress for three weeks previously and continued for some time afterward; and in this debate Webster did not participate. Indeed, the record shows that for more than a week before the steamboat argument Webster took almost no part in the House proceedings. (Ib. 1214-1318.)

[1192] 9 Wheaton, 3.

[1193] 9 Wheaton, 4-5.

[1194] Ib. 6-9.

[1195] Ib. 9.

[1196] Ib. 11.

[1197] Ib. 11-12.

[1198] 9 Wheaton, 14.

[1199] Ib. 24.

[1200] The student should carefully read these three admirable arguments, particularly that of Emmet. All of them deal with patent law as well as with the commerce clause of the Constitution. (See 9 Wheaton, 33-135.) The argument lasted from February 4 to February 9 inclusive.

[1201] 1 Brockenbrough, 430-31.

[1202] 1 Brockenbrough, 431-32.

[1203] Webster to his brother, Feb. 15, 1824, Van Tyne, 102.

[1204] 9 Wheaton, 186.

[1205] "WE THE PEOPLE of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this CONSTITUTION for the United States of America." (Preamble to the Constitution of the United States.)

[1206] 9 Wheaton, 187-88.

[1207] Ib. 188-89.

[1208] "The Congress shall have Power ... to regulate Commerce with foreign Nations, and among the Several States, and with the Indian Tribes." (Constitution of the United States, Article I, Section 8.)

[1209] 9 Wheaton, 192-93.

[1210] 9 Wheaton, 193-94.

[1211] Ib. 195.

[1212] 9 Wheaton, 195-96.

[1213] Ib. 196-97.

[1214] 9 Wheaton, 199-200.

[1215] 9 Wheaton, 202-03.

[1216] Ib. 203.

[1217] 9 Wheaton, 203-04.

[1218] Ib. 204-05.

[1219] Ib. 205-06.

[1220] 9 Wheaton, 206-09.

[1221] Ib. 209-10.

[1222] 9 Wheaton, 210-11. (Italics the author's.)

[1223] Ib. 211-12.

[1224] Ib. 214.

[1225] 9 Wheaton, 215-16.

[1226] Ib. 216-18.

[1227] Ib. 218-20.

[1228] 9 Wheaton, 221.

[1229] Marshall is here referring particularly to Chancellor Kent.

[1230] 9 Wheaton, 221-22.

[1231] 9 Wheaton, 222. (Italics the author's.)

[1232] 9 Wheaton, 227.

[1233] 9 Wheaton, 228-30.

[1234] Ib. 231-32.

[1235] New York Evening Post, March 5, 1824, as quoted in Warren, 395.

[1236] Niles, XXVI, 54-62.

[1237] For example, steamboat construction on the Ohio alone almost doubled in a single year, and quadrupled within two years. (See table in Meyer-MacGill: History of Transportation in the United States, etc., 108.)

[1238] 1 Hopkins's Chancery Reports, 151.

[1239] Ib. 198.

[1240] 3 Cowen, 716-17.

[1241] 3 Cowen, 731-34.

[1242] Ib. 750.

[1243] Ib.

[1244] 3 Cowen, 753-54.

[1245] This bill had been proposed by Senator Richard M. Johnson of Kentucky at the previous session (Annals, 18th Cong. 1st Sess, 575) as an amendment to a bill reported from the Judiciary Committee by Senator Martin Van Buren (ib. 336).

[1246] Debates, 18th Cong. 2d Sess. 527-33.

[1247] Ib. 588.

[1248] Ib. 609.

[1249] Ib. 614.

After considerable wrangling, the bill was reported favorably from the Judiciary Committee (ib. 630), but too late for further action at that session.

[1250] Debates, 19th Cong. 1st Sess. 845.

[1251] Four days after the House adopted Webster's bill (ib. 1149), he wrote his brother: "The judiciary bill will probably pass the Senate, as it left our House. There will be no difficulty in finding perfectly safe men for the new appointments. The contests on those constitutional questions in the West have made men fit to be judges." (Webster to his brother, Jan. 29, 1826, Priv. Corres.: Webster, I, 401.)

[1252] Debates, 19th Cong. 1st Sess. 417-18.

[1253] Ib. 419.

[1254] Ib. 420-21.

[1255] Debates, 19th Cong. 1st Sess. 423-24.

[1256] Ib. 436.

[1257] Ib. 442. Rowan's amendment was defeated (ib. 463). Upon disagreements between the Senate and House as to the number and arrangement of districts and circuits, the entire measure was lost. In the House it was "indefinitely postponed" by a vote of 99 to 89 (ib. 2648); and in the Senate the bill was finally laid on the table (ib. 784).

[1258] 12 Wheaton, 420.

[1259] Taney, leading counsel for Maryland, had just been appointed Attorney-General of that State, and soon afterwards was made Attorney-General of the United States. He succeeded Marshall as Chief Justice. (See infra, 460.)

[1260] Johnson was only thirty-one years old at this time, but already a leader of the Baltimore bar and giving sure promise of the distinguished career he afterward achieved.

[1261] 12 Wheaton, 436.

[1262] 12 Wheaton, 437-39.

[1263] Ib. 441.

[1264] Ib. 441-42.

[1265] 12 Wheaton, 443-44.

[1266] See infra, 536-38.

[1267] 12 Wheaton, 448-49.

[1268] 5 Howard, 575.

IX. THE SUPREME CONSERVATIVE

If a judge becomes odious to the people, let him be removed. (William Branch Giles.)

Our wisest friends look with gloom to the future. (Joseph Story.)

I have always thought, from my earliest youth till now, that the greatest scourge an angry Heaven ever inflicted upon an ungrateful and a sinning people, was an ignorant, a corrupt, or a dependent judiciary. (Marshall.)

"I was in a very great crowd the other evening at M^{rs} Adams' drawing room, but I see very few persons there whom I know & fewer still in whom I take any interest. A person as old as I am feels that his home is his place of most comfort, and his old wife the companion in the world in whose society he is most happy.

"I dined yesterday with Mr. Randolph. He is absorbed in the party politics of the day & seems as much engaged in them as he was twenty five years past. It is very different with me. I long to leave this busy bustling scene & to return to the tranquility of my family & farm. Farewell my dearest Polly. That Heaven may bless you is the unceasing prayer of your ever affectionate

"J. MARSHALL."[1269]

This letter to his ageing and afflicted wife, written in his seventy-second year, reveals Marshall's state of mind as he entered the final decade of his life. While the last of his history-making and nation-building opinions had been delivered, the years still before him were to be crowded with labor as arduous and scenes as picturesque as any during his career on the Bench. It was to be a period of disappointment and grief, but also of that supreme reward for sound and enduring work which comes from recognition of the general and lasting benefit of that work and of the greatness of mind and nobility of character of him who performed it.

For twenty years the Chief Justice had not voted. The last ballot he had cast was against the reëlection of Jefferson in 1804. From that time forward until 1828, he had kept away from the polls. In the latter year he probably voted for John Quincy Adams, or rather against Andrew Jackson, who, as Marshall thought, typified the recrudescence of that unbridled democratic spirit which he so increasingly feared and distrusted.[1270]

Yet, even in so grave a crisis as Marshall believed the Presidential election of 1828 to be, he shrank from the appearance of partisanship. The Marylander, a Baltimore Democratic paper, published an item quoting Marshall as having said: "I have not voted for twenty years; but I shall consider it a solemn duty I owe my country to go to the polls and vote at the next presidential election--for should Jackson be elected, I shall look upon the government as virtually dissolved."[1271]

This item was widely published in the Administration newspapers, including the Richmond Whig and Advertiser. To this paper Marshall wrote, denying the statement of the Baltimore publication: "Holding the situation I do ... I have thought it right to abstain from any public declarations on the election; ... I admit having said in private that though I had not voted since the establishment of the general ticket system, and had believed that I never should vote during its continuance, I might probably depart from my resolution in this instance, from the strong sense I felt of the injustice of the charge of corruption against the President & Secretary of State: I never did use the other expressions ascribed to me."[1272] This "card" the Enquirer reproduced, together with the item from the Marylander, commenting scathingly upon the methods of Adams's supporters.

Clay, deeply touched, wrote the Chief Justice of his appreciation and gratitude; but he is sorry that Marshall paid any attention to the matter "because it will subject you to a part of that abuse which is so indiscriminately applied to ... everything standing in the way of the election of a certain individual."[1273]

Marshall was sorely worried. He writes Story that the incident "provoked" him, "not because I have any objection to its being known that my private judgement is in favor of the re-election of M^r Adams, but because I have great objections to being represented in the character of a furious partisan. Intemperate language does not become my age or office, and is foreign from my disposition and habits. I was therefore not a little vexed at a publication which represented me as using language which could be uttered only by an angry party man."

He explains that the item got into the Marylander through a remark of one of his nephews "who was on the Adams convention" at Baltimore, to the effect that he had heard Marshall say that, although he had "not voted for upwards of twenty years" he "should probably vote at the ensuing election." His nephew wrote a denial, but it was not published. So, concludes Marshall, "I must bear the newspaper scurrility which I had hoped to escape, and which is generally reserved for more important personages than myself. It is some consolation that it does not wound me very deeply."[1274]

It would seem that Marshall had early resolved to go to any length to deprive the enemies of the National Judiciary of any pretext for attacking him or the Supreme Court because of any trace of partisan activity on his part. One of the largest tasks he had set for himself was to create public confidence in that tribunal, and to raise it above the suspicion that party considerations swayed its decisions. He had seen how nearly the arrogance and political activity of the first Federalist judges had wrecked the Supreme Court and the whole Judicial establishment, and had resolved, therefore, to lessen popular hostility to courts, as far as his neutral attitude to party controversies could accomplish that purpose.

It thus came about that Marshall refrained even from exercising his right of suffrage from 1804 to 1828--perhaps, indeed, to the end of his life, since it is not certain that he voted even at the election of 1828. Considering the intensity of his partisan feelings, his refusal to vote, during nearly all the long period when he was Chief Justice, was a real sacrifice, the extent of which may be measured by the fact that, according to his letter to Story, he did not even vote against Madison in 1812, notwithstanding the violence of his emotions aroused by the war.[1275]

On March 4, 1829, Marshall administered the oath of office to the newly elected President, Andrew Jackson. No two men ever faced one another more unlike in personality and character. The mild, gentle, benignant features of the Chief Justice contrasted strongly with the stern, rigid, and aggressive countenance of "Old Hickory." The one stood for the reign of law; the other for autocratic administration. In Jackson, whim, prejudice, hatred, and fierce affections were dominant; in Marshall, steady, level views of life and government, devotion to order and regularity, abhorrence of quarrel and feud, constancy and evenness in friendship or conviction, were the chief elements of character. Moreover, the Chief Justice personified the static forces of society; the new President was the product of a fresh upheaval of democracy, not unlike that which had placed Jefferson in power.

Marshall had administered the Presidential oath seven times before--twice each to Jefferson, Madison, and Monroe, and once to John Quincy Adams. And now he was reading the solemn words to the passionate frontier soldier from whose wild, undisciplined character he feared so much. Marshall briefly writes his wife about the inauguration: "We had yesterday a most busy and crowded day. People have flocked to Washington from every quarter of the United States. When the oath was administered to the President the computation is that 12 or 15000 people were present--a great number of them ladies. A great ball was given at night to celebrate the election. I of course did not attend it. The affliction of our son[1276] would have been sufficient to restrain me had I even felt a desire to go."[1277] In a previous letter to his wife he forecast the crowds and commotion: "The whole world it is said will be here.... I wish I could leave it all and come to you. How much more delightful would it be to me to sit by your side than to witness all the pomp and parade of the inauguration."[1278]

Much as he had come to dislike taking part in politics or in public affairs, except in the discharge of his judicial duties, Marshall was prevailed upon to be a delegate to the Virginia Constitutional Convention of 1829-30. He refused, at first, to stand for the place and hastened to reassure his "dearest Polly." "I am told," he continues in his letter describing Jackson's induction into office, "by several that I am held up as a candidate for the convention. I have no desire to be in the convention and do not mean to be a candidate. I should not trouble you with this did I not apprehend that the idea of my wishing to be in the convention might prevent some of my friends who are themselves desirous of being in it from becoming candidates. I therefore wish you to give this information to Mr. Harvie.[1279]... Farewell my dearest Polly. Your happiness is always nearest the heart of your J. Marshall."[1280]

He yielded, however, and wrote Story of his disgust at having done so: "I am almost ashamed of my weakness and irresolution when I tell you that I am a member of our convention. I was in earnest when I told you that I would not come into that body, and really believed that I should adhere to that determination; but I have acted like a girl addressed by a gentleman she does not positively dislike, but is unwilling to marry. She is sure to yield to the advice and persuasion of her friends.... The body will contain a great deal of eloquence as well as talent, and yet will do, I fear, much harm with some good. Our freehold suffrage is, I believe, gone past redemption. It is impossible to resist the influence, I had almost said contagion of universal example."[1281]

For fifty-three years Virginia had been governed under the constitution adopted at the beginning of the Revolution. As early as the close of this war the injustice and inadequacy of the Constitution of 1776 had become evident, and, as a member of the House of Delegates, Marshall apparently had favored the adoption of a new fundamental law for the State.[1282] Almost continuously thereafter the subject had been brought forward, but the conservatives always had been strong enough to defeat constitutional reform.

On July 12, 1816, in a letter to Samuel Kercheval, one of the ablest documents he ever produced, Jefferson had exposed the defects of Virginia's constitution which, he truly said, was without "leading principles." It denied equality of representation; the Governor was neither elected nor controlled by the people; the higher judges were "dependent on none but themselves." With unsparing severity Jefferson denounces the County Court system.

Clearly and simply he enumerates the constructive reforms imperatively demanded, beginning with "General Suffrage" and "Equal representation," on which, however, he says that he wishes "to take no public share" because that question "has become a party one." Indeed, at the very beginning of this brilliant and well-reasoned letter, Jefferson tells Kercheval that it is "for your satisfaction only, and not to be quoted before the public."[1283]

But Kercheval handed the letter around freely and proposed to print it for general circulation. On hearing of this, Jefferson was "alarmed" and wrote Kercheval harshly, repeating that the letter was not to be given out and demanding that the original and copies be recalled.[1284] This uncharacteristic perturbation of the former President reveals in startling fashion the bitterness of the strife over the calling of the convention, and over the issues confronting that body in making a new constitution for Virginia.

Of the serious problems to be solved by the Convention of 1829-30, that of suffrage was the most important. Up to that time nobody could vote in Virginia except white owners of freehold estates. Counties, regardless of size, had equal representation in the House of Delegates. This gave to the eastern and southern slaveholding sections of the State, with small counties having few voters, an immense preponderance over the western and northwestern sections, with large counties having many voters. On the other hand, the rich slavery districts paid much heavier taxes than the poorer free counties.[1285]

Marshall was distressed by every issue, to settle which the convention had been called. The question of the qualification for suffrage especially agitated him. Immediately after his election to the convention, he wrote Story of his troubles and misgivings: "We shall have a good deal of division and a good deal of heat, I fear, in our convention. The freehold principle will, I believe, be lost. It will, however, be supported with zeal. If that zeal should be successful I should not regret it. If we find that a decided majority is against retaining it I should prefer making a compromise by which a substantial property qualification may be preserved in exchange for it.

"I fear the excessive [torn--probably, democratic spirit, coin]cident to victory after a hard fought battle continued to the last extremity may lead to universal suffrage or something very near it. What is the prop[erty] qualification for your Senate? How are your Senators apportioned on the State? And how does your system work? The question whether white population alone, or white population compounded with taxation, shall form the basis of representation will excite perhaps more interest than even the freehold suffrage. I wish we were well through the difficulty."[1286]

The Massachusetts Constitutional Convention had been held nearly a decade before that of Virginia. The problem of suffrage had troubled the delegates almost as much as it now perplexed Marshall. The reminiscent Pickering writes the Chief Justice of the fight made in 1820 by the Massachusetts conservatives against "the conceited innovators." Story had been a delegate, and so had John Adams, fainting with extreme age, but rich with the wisdom of his eighty-five years: "He made a short, but very good speech," begging the convention to retain the State Senate as "the representative of property; ... the number of Senators in each district was proportioned to its direct taxes to the State revenue--and not to its population. Some democrats desired that the number of Senators should be apportioned not according to the taxation, but exclusively to the population. This, Mr. Adams and all the most intelligent and considerate members opposed."[1287]

Ultra-conservative as Marshall was, strongly as he felt the great body of the people incapable of self-government, he was deeply concerned for the well-being of what he called "the mass of the people." The best that can be done for them, he says in a letter to Charles F. Mercer, is to educate them. "In governments entirely popular" general education "is more indispensable ... than in an other." The labor problem troubles him sorely. When population becomes so great that "the surplus hands" must turn to other employment, a grave situation will arise.

"As the supply exceeds the demand the price of labour will cheapen until it affords a bare subsistence to the labourer. The superadded demands of a family can scarcely be satisfied and a slight indisposition, one which suspends labour and compensation for a few days produces famine and pauperism. How is this to be prevented?" Education may be relied on "in the present state of our population, and for a long time to come.... But as our country fills up how shall we escape the evils which have followed a dense population?"[1288]

The Chief Justice went to the Virginia Convention a firm supporter of the strongest possible property qualification for suffrage. On the question of slavery, which arose in various forms, he had not made his position clear. The slavery question, as a National matter, perplexed and disturbed Marshall. There was nothing in him of the humanitarian reformer, but there was everything of the statesman. He never had but one, and that a splendid, vision.

The American Nation was his dream; and to the realization of it he consecrated his life. A full generation after Marshall wrote his last despairing word on slavery, Abraham Lincoln expressed the conviction which the great Chief Justice had entertained: "I would save the Union. I would save it the shortest way under the Constitution.... If I could save the Union without freeing any slave, I would do it; and if I could save it by freeing some and leaving others alone, I would also do that. What I do about slavery and the colored race, I do because I believe it helps to save the Union."[1289]

Pickering, the incessant, in one of his many and voluminous letters to Marshall which the ancient New Englander continued to write as long as he lived, had bemoaned the existence of slavery--one of the rare exhibitions of Liberalism displayed by that adamantine Federalist conservative. Marshall answered: "I concur with you in thinking that nothing portends more calamity & mischief to the Southern States than their slave population. Yet they seem to cherish the evil and to view with immovable prejudice & dislike every thing which may tend to diminish it. I do not wonder that they should resist any attempt, should one be made, to interfere with the rights of property, but they have a feverish jealousy of measures which may do good without the hazard of harm that is, I think, very unwise."[1290]

Marshall heartily approved the plan of the American Colonization Society to send free negroes back to Africa. The Virginia branch of that organization was formed in 1829, the year of the State Constitutional Convention, and Marshall became a member. Two years later he became President of the Virginia branch, with James Madison, John Tyler, Abel P. Upshur, and other prominent Virginians as Vice-Presidents.[1291] In 1831, Marshall was elected one of twenty-four Vice-Presidents of the National society, among whom were Webster, Clay, Crawford, and Lafayette.[1292]

The Reverend R. R. Gurley, Secretary of this organization, wrote to the more eminent members asking for their views. Among those who replied were Lafayette, Madison, and Marshall. The Chief Justice says that he feels a "deep interest in the ... society," but refuses to "prepare any thing for publication." The cause of this refusal is "the present state of [his] family"[1293] and a determination "long since formed ... against appearing in print on any occasion." Nevertheless, he writes Gurley a letter nearly seven hundred words in length.

Marshall thinks it "extremely desirable" that the States shall pass "permanent laws" affording financial aid to the colonization project. It will be "also desirable" if this legislation can be secured "to incline the people of color to migrate." He had thought for a long time that it was just possible that more negroes might like to go to Liberia than "can be provided for with the funds [of] the Society"; therefore he had "suggested, some years past," to the managers, "to allow a small additional bounty in lands to those who would pay their passage in whole or in part."

To Marshall it appears to be of "great importance to retain the countenance and protection of the General Government. Some of our cruizers stationed on the coast of Africa would, at the same time, interrupt the slave trade--a horrid traffic detested by all good men--and would protect the vessels and commerce of the Colony from pirates who infest those seas. The power of the government to afford this aid is not, I believe, contested." He thinks the plan of Rufus King to devote part of the proceeds from the sale of public lands to a fund for the colonization scheme, "the most effective that can be devised," Marshall makes a brief but dreary argument for this method of raising funds for the exportation of the freed blacks.

He thus closes this eminently practical letter: "The removal of our colored population is, I think, a common object, by no means confined to the slave States, although they are more immediately interested in it. The whole Union would be strengthened by it, and relieved from a danger, whose extent can scarcely be estimated." Furthermore, says the Chief Justice, "it lessens very much ... the objection in a political view to the application of this ample fund [from the sale of the public domain], that our lands are becoming an object for which the States are to scramble, and which threatens to sow the seeds of discord among us instead of being what they might be--a source of national wealth."[1294]

Marshall delivered two opinions in which the question of slavery was involved, but they throw little light on his sentiments. In the case of the Antelope he held that the slave trade was not prohibited by international law as it then existed; but since the court, including Story and Thompson, both bitter antagonists of slavery, was unanimous, the views of Marshall cannot be differentiated from those of his associates. Spain and Portugal claimed certain negroes forcibly taken from Spanish and Portuguese slavers by an American slaver off the coast of Africa. After picturesque vicissitudes the vessel containing the blacks was captured by an American revenue cutter and taken to Savannah for adjudication.

In due course the case reached the Supreme Court and was elaborately argued. The Government insisted that the captured negroes should be given their liberty, since they had been brought into the country in violation of the statutes against the importation of slaves. Spain and Portugal demanded them as slaves "acquired as property ... in the regular course of legitimate commerce."[1295] It was not surprising that opinion on the slave trade was "unsettled," said Marshall in delivering the opinion of the court.

All "Christian and civilized nations ... have been engaged in it.... Long usage, and general acquiescence" have sanctioned it.[1296] America had been the first to "check" the monstrous traffic. But, whatever its feelings or the state of public opinion, the court "must obey the mandate of the law."[1297] He cites four English decisions, especially a recent one by Sir William Scott, the effect of all being that the slave trade "could not be pronounced contrary to the law of nations."[1298]

Every nation, therefore, has a right to engage in it. Some nations may renounce that right sanctioned by "universal assent." But other nations cannot be bound by such "renunciation." For all nations, large and small, are equal--"Russia and Geneva have equal rights." No one nation "can rightfully impose a rule on another ... none can make a law of nations; and this traffic remains lawful to those whose governments have not forbidden it.... It follows, that a foreign vessel engaged in the African slave trade, captured on the high seas in time of peace, by an American cruiser, and brought in for adjudication, would be restored."[1299]

Four months before Marshall was elected a member of the Virginia Constitutional Convention, he delivered another opinion involving the legal status of slaves. Several negroes, the property of one Robert Boyce, were on a steamboat, the Teche, which was descending the Mississippi. The vessel took fire and those on board, including the negroes, escaped to the shore. Another steamboat, the Washington, was coming up the river at the time, and her captain, in response to appeals from the stranded passengers of the burning vessel, sent a yawl to bring them to the Washington. The yawl was upset and the slaves drowned. The owner of them sued the owner of the Washington for their value. The District Court held that the doctrine of common carriers did not apply to human beings; and this was the only question before the Supreme Court, to which Boyce appealed.

"A slave ... cannot be stowed away as a common package," said Marshall in his brief opinion. "The responsibility of the carrier should be measured by the law which is applicable to passengers, rather than by that which is applicable to the carriage of common goods.... The law applicable to common carriers is one of great rigor.... It has not been applied to living men, and ... ought not to be applied to them." Nevertheless, "the ancient rule 'that the carrier is liable only for ordinary neglect,' still applies" to slaves. Therefore the District Court was right in its instructions to the jury.[1300]

The two letters quoted and the opinions expressing the unanimous judgment of the Supreme Court are all the data we have as to Marshall's views on slavery. It appears that he regretted the existence of slavery, feared the results of it, saw no way of getting rid of it, but hoped to lessen the evil by colonizing in Africa such free black people as were willing to go there. In short, Marshall held the opinion on slavery generally prevailing at that time. He was far more concerned that the Union should be strengthened, and dissension in Virginia quieted, than he was over the problem of human bondage, of which he saw no solution.

When he took his seat as a delegate to the Virginia Constitutional Convention of 1829-30, a more determined conservative than Marshall did not live. Apparently he did not want anything changed--especially if the change involved conflict--except, of course, the relation of the States to the Nation. He was against a new constitution for Virginia; against any extension of suffrage; against any modification of the County Court system except to strengthen it; against a free white basis of representation; against legislative interference with business. His attitude was not new, nor had he ever concealed his views.

His opinions of legislation and corporate property, for instance, are revealed in a letter written twenty years before the Convention of 1829-30. In withdrawing from some Virginia corporation because the General Assembly of the State had passed a law for the control of it, Marshall wrote: "I consider the interference of the legislature in the management of our private affairs, whether those affairs are committed to a company or remain under individual direction, as equally dangerous and unwise. I have always thought so and I still think so. I may be compelled to subject my property to these interferences, and when compelled I shall submit; but I will not voluntarily expose myself to the exercise of a power which I think so improperly usurped."[1301]

Two years before the convention was called, Marshall's unyielding conservatism was displayed in a most conspicuous manner. In Sturges vs. Crowninshield,[1302] a State law had been held invalid which relieved creditors from contracts made before the passage of that law. But, in his opinion in that case, Marshall used language that also applied to contracts made after the enactment of insolvency statutes; and the bench and bar generally had accepted his statement as the settled opinion of the Supreme Court. But so acute had public discontent become over this rigid doctrine, so strident the demand for bankrupt laws relieving insolvents, at least from contracts made after such statutes were enacted, that the majority of the Supreme Court yielded to popular insistence and, in Ogden vs. Saunders,[1303] held that "an insolvent law of a State does not impair the obligation of future contracts between its citizens."[1304]

For the first time in twenty-seven years the majority of the court opposed Marshall on a question of Constitutional law. The Chief Justice dissented and delivered one of the most powerful opinions he ever wrote. The very "nature of our Union," he says, makes us "one people, as to commercial objects."[1305] The prohibition in the contract clause "is complete and total. There is no exception from it.[1306]... Insolvent laws are to operate on a future, contingent unforseen event."[1307] Yet the majority of the court hold that such legislation enters into subsequent contracts "so completely as to become a ... part" of them. If this is true of one law, it is true of "every other law which relates to the subject."

But this would mean, contends Marshall, that a vital provision of the Constitution, "one on which the good and the wise reposed confidently for securing the prosperity and harmony of our citizens, would lie prostrate, and be construed into an inanimate, inoperative, unmeaning clause." The construction of the majority of the court would "convert an inhibition to pass laws impairing the obligation of contracts into an inhibition to pass retrospective laws."[1308] If the Constitution means this, why is it not so expressed? The mischievous laws which caused the insertion of the contract clause "embraced future contracts, as well as those previously formed."[1309]

The gist of Marshall's voluminous opinion in Ogden vs. Saunders is that the Constitution protects all contracts, past or future, from State legislation which in any manner impairs their obligation.[1310] Considering that even the rigidly conservative Bushrod Washington, Marshall's stanch supporter, refused to follow his stern philosophy, in this case, the measure and character of Marshall's conservatism are seen when, in his seventy-fifth year, he helped to frame a new constitution for Virginia.

Still another example of Marshall's rock-like conservatism and of the persistence with which he held fast to his views is afforded by a second dissent from the majority of the court at the same session. This time every one of the Associate Justices was against him, and Story delivered their unanimous opinion. The Bank of the United States had sued Julius B. Dandridge, cashier of the Richmond branch, and his sureties, on his official bond. Marshall, sitting as Circuit Judge, had held that only the written record of the bank's board of directors, that they approved and accepted the bond, could be received to prove that Dandridge had been legally authorized to act as cashier.

The Supreme Court reversed Marshall's judgment, holding that the authorization of an agent by a corporation can be established by presumptive evidence,[1311] an opinion that was plainly sound and which stated the law as it has continued to be ever since. But despite the unanimity of his brethren, the clear and convincing opinion of Story, the disapproval of his own views by the bench, bar, and business men of the whole country, Marshall would not yield. "The Ch: Jus: I fear will die hard," wrote Webster, who was of counsel for the bank.[1312]

In a very long opinion Marshall insists that his decision in the Circuit Court was right, fortifying his argument by more than thirty citations. He begins by frank acknowledgment of the discontent his decision in the Circuit Court has aroused: "I should now, as is my custom, when I have the misfortune to differ with this court, acquiesce silently in its opinion, did I not believe that the judgment of the circuit court of Virginia gave general surprise to the profession, and was generally condemned." Corporations, "being destitute of human organs," can express themselves only by writing. They must act through agents; but the agency can be created and proved only by writing.

Marshall points out the serious possibilities to those with whom corporations deal, as well as to the corporations themselves, of the acts of persons serving as agents without authority of record.[1313] Powerful as his reasoning is, it is based on mistaken premises inapplicable to modern corporate transactions; but his position, his method, his very style, reveal the stubborn conservative at bay, bravely defending himself and his views.

This, then, was the John Marshall, who, in his old age, accepted the call of men as conservative as himself to help frame a new constitution for Virginia, On Monday, October 5, 1829, the convention met in the House of Delegates at Richmond. James Madison, then in his seventy-ninth year, feeble and wizened, called the members to order and nominated James Monroe for President of the convention. This nomination was seconded by Marshall. These three men, whose careers since before the Revolution and throughout our formative period, had been more distinguished, up to that time, than had that of any American then living, were the most conspicuous persons in that notable Assembly. Giles, now Governor of the State, was also a member; so were Randolph, Tyler, Philip P. Barbour, Upshur, and Tazewell. Indeed, the very ablest men in Virginia had been chosen to make a new constitution for the State. In the people's anxiety to select the best men to do that important work, delegates were chosen regardless of the districts in which they lived.[1314]

To Marshall, who naturally was appointed to the Judiciary Committee,[1315] fell the task of presenting to the convention the first petition of non-freeholders for suffrage.[1316] No more impressive document was read before that body. It stated the whole democratic argument clearly and boldly.[1317] The first report received from any committee was made by Marshall and also was written by him.[1318] It provided for the organization of the State Judiciary, but did not seek materially to change the system of appointments of judges.

Two sentences of this report are important: "No modification or abolition of any Court, shall be construed to deprive any Judge thereof of his office"; and, "Judges may be removed from office by a vote of the General Assembly: but two-thirds of the whole number of each House must concur in such vote."[1319] Marshall promptly moved that this report be made the order of the day and this was done.

Ranking next to the question of the basis of suffrage and of representation was that of judiciary reform. To accomplish this reform was one of the objects for which the convention had been called. At that time the Judiciary of Virginia was not merely a matter of courts and judges; it involved the entire social and political organization of that State. No more essentially aristocratic scheme of government ever existed in America. Coming down from Colonial times, it had been perpetuated by the Revolutionary Constitution of 1776. It had, in practical results, some good qualities and others that were evil, among the latter a well-nigh faultless political mechanism.[1320]

The heart of this system was the County Courts. Too much emphasis cannot be placed on this fact. These local tribunals consisted of justices of the peace who sat together as County Courts for the hearing and decision of the more important cases. They were almost always the first men of their counties, appointed by the Governor for life; vacancies were, in practice, filled only on the recommendation of the remaining justices. While the Constitution of 1776 did not require the Governor to accept the nominations of the County Courts for vacancies in these offices, to do so had been a custom long established.[1321]

For this acquiescence of the Governor in the recommendation of the County Courts, there was a very human reason of even weightier influence than that of immemorial practice. The Legislature chose the Governor; and the justices of the peace selected, in most cases, the candidates for the Legislature--seldom was any man elected by the people to the State Senate or House of Delegates who was not approved by the County Courts. Moreover, the other county offices, such as county clerks and sheriffs, were appointed by the Governor only on the suggestion of the justices of the peace; and these officials worked in absolute agreement with the local judicial oligarchy. In this wise members of Congress were, in effect, named by the County Courts, and the Legislature dared not and did not elect United States Senators of whom the justices of the peace disapproved.

The members of the Court of Appeals, appointed by the Governor, were never offensive to these minor county magistrates, although the judges of this highest tribunal in Virginia, always able and learned men holding their places for life, had great influence over the County Courts, and, therefore, over the Governor and General Assembly also. Nor was this the limit of the powers of the County Courts. They fixed the county rate of taxation and exercised all local legislative and executive as well as judicial power.[1322]

In theory, a more oligarchic system never was devised for the government of a free state; but in practice, it responded to the variations of public opinion with almost the precision of a thermometer. For example, nearly all the justices of the peace were Federalists during the first two years of Washington's Administration; yet the State supported Henry against Assumption, and, later, went over to Jefferson as against Washington and Henry combined.[1323]

Rigid and self-perpetuating as was the official aristocracy which the Virginia judicial system had created, its members generally attended to their duties and did well their public work.[1324] They lived among the people, looked after the common good, composed disputes between individuals; soothed local animosities, prevented litigation; and administered justice satisfactorily when, despite their preventive efforts, men would bring suits. But the whole scheme was the very negation of democracy.[1325]

While, therefore, this judicial-social-political plan worked well for the most part, the idea of it was offensive to liberal-minded men who believed in democracy as a principle. Moreover, the official oligarchy was more powerful in the heavy slaveholding, than in the comparatively "free labor," sections; it had been longer established, and it better fitted conditions, east of the mountains.

So it came about that there was, at last, a demand for judicial reform. Seemingly this demand was not radical--it was only that the self-perpetuating County Court system should be changed to appointments by the Governor without regard to recommendations of the local justices; but, in reality, this change would have destroyed the traditional aristocratic organization of the political, social, and to a great extent the economic, life of Virginia.

On every issue over which the factions of this convention fought, Marshall was reactionary and employed all his skill to defeat, whenever possible, the plans and purposes of the radicals. In pursuing this course he brought to bear the power of his now immense reputation for wisdom and justice. Perhaps no other phase of his life displays more strikingly his intense conservatism.

The conclusion of his early manhood--reluctantly avowed after Washington, following the Revolution, had bitterly expressed the same opinion,[1326] that the people, left to themselves, are not capable of self-government--had now become a profound moral belief. It should again be stated that most of Marshall's views, formed as a young lawyer during the riotous years between the achievement of Independence and the adoption of the Constitution, had hardened, as life advanced, into something like religious convictions. It is noteworthy, too, that, in general, Madison, Giles, and even Monroe, now stood with Marshall.

The most conspicuous feature of those fourteen weeks of tumultuous contest, as far as it reveals Marshall's personal standing in Virginia, was the trust, reverence, and affection in which he was held by all members, young and old, radical and conservative, from every part of the State. Speaker after speaker, even in the fiercest debates, went out of his way to pay tribute to Marshall's uprightness and wisdom.[1327]

Marshall spoke frequently on the Judiciary; and, at one point in a debate on the removal of judges, disclosed opinions of historical importance. Although twenty-seven years had passed since the repeal of the Federalist Judiciary Act of 1801,[1328] Marshall would not, even now, admit that repeal to be Constitutional. Littleton W. Tazewell, also a member of the Judiciary Committee, asserted that, under the proposed new State Constitution, the Legislature could remove judges from office by abolishing the courts. John Scott of Fauquier County asked Marshall what he thought of the ousting of Federalist judges by the Republicans in 1802.

The Chief Justice answered, "with great, very great repugnance," that throughout the debate he had "most carefully avoided" expressing any opinion on that subject. He would say, however, that "he did not conceive the Constitution to have been at all definitely expounded by a single act of Congress." Especially when "there was no union of Departments, but the Legislative Department alone had acted, and acted but once," ignoring the Judicial Department, such an act, "even admitting that act not to have passed in times of high political and party excitement, could never be admitted as final and conclusive."[1329]

Tazewell was of "an exactly opposite opinion"--the Repeal Act of 1802 "was perfectly constitutional and proper." Giles also disagreed with Marshall. Should "a public officer ... receive the public money any longer than he renders service to the public"?[1330] Marshall replied with spirit. No serious question can be settled, he declared, by mere "confidence of conviction, but on the reason of the case." All that he asked was that the Judiciary Article of the proposed State Constitution should go forth, "uninfluenced by the opinion of any individual: let those, whose duty it was to settle the interpretation of the Constitution, decide on the Constitution itself."[1331] After extended debate[1332] and some wrangling, Marshall's idea on this particular phase of the subject prevailed.[1333]

The debate over the preservation of the County Court system, for which Marshall's report provided, was long and acrimonious, and a résumé of it is impossible here. Marshall stoutly supported these local tribunals; their "abolition will affect our whole internal police.... No State in the Union, has hitherto enjoyed more complete internal quiet than Virginia. There is no part of America, where ... less of ill-feeling between man and man is to be found than in this Commonwealth, and I believe most firmly that this state of things is mainly to be ascribed to the practical operation of our County Courts." The county judges "consist in general of the best men in their respective counties. They act in the spirit of peace-makers, and allay, rather than excite the small disputes ... which will sometimes arise among neighbours."[1334]

Giles now aligned himself with Marshall as a champion of the County Court system. In an earnest defense of it he went so far as to reflect on the good sense of Jefferson. Everybody, said Giles, knew that that "highly respectable man ... dealt very much in theories."[1335]

During the remainder of the discussion on this subject, Marshall rose frequently, chiefly, however, to guide the debate.[1336] He insisted that the custom of appointing justices of the peace only on nomination of the County Courts should be written into the constitution. The Executive ought to appoint all persons recommended by "a County Court, taken as a whole." Marshall then moved an amendment to that effect.[1337]

This was a far more conservative idea than was contained in the old constitution itself. "Let the County Court who now recommended, have power also to appoint: for there it ended at last," said William Campbell of Bedford County. Giles was for Marshall's plan: "The existing County Court system" threw "power into the hands of the middle class of the community," he said; and it ought to be fortified rather than weakened.

Marshall then withdrew his astonishing amendment and proposed, instead, that the advice and "consent of the Senate" should not be required for appointments of county justices, thus utterly eliminating all legislative control over these important appointments; and this extreme conservative proposition was actually adopted without dissent.[1338] Thus the very foundation of Virginia's aristocratic political organization was greatly strengthened.

Concerning the retention of his office by a judge after the court had been abolished, Marshall made an earnest and impressive speech. What were the duties of a judge? "He has to pass between the Government and the man whom that Government is prosecuting: between the most powerful individual in the community, and the poorest and most unpopular. It is of the last importance, that in the exercise of these duties, he should observe the utmost fairness. Need I press the necessity of this? Does not every man feel that his own personal security and the security of his property depends on that fairness?

"The Judicial Department comes home in its effects to every man's fireside: it passes on his property, his reputation, his life, his all. Is it not, to the last degree important, that he should be rendered perfectly and completely independent, with nothing to influence or control him but God and his conscience?

"You do not allow a man to perform the duties of a juryman or a Judge, if he has one dollar of interest in the matter to be decided: and will you allow a Judge to give a decision when his office may depend upon it? when his decision may offend a powerful and influential man?

"Your salaries do not allow any of your Judges to lay up for his old age: the longer he remains in office, the more dependant he becomes upon his office. He wishes to retain it; if he did not wish to retain it, he would not have accepted it. And will you make me believe that if the manner of his decision may affect the tenure of that office, the man himself will not be affected by that consideration?... The whole good which may grow out of this Convention, be it what it may, will never compensate for the evil of changing the tenure of the Judicial office."

Barbour had said that to presume that the Legislature would oust judges because of unpopular decisions, was to make an unthinkable imputation. But "for what do you make a Constitution?" countered Marshall. Why provide that "no bill of attainder, or an ex post facto law, shall be passed? What a calumny is here upon the Legislature," he sarcastically exclaimed. "Do you believe, that the Legislature will pass a bill of attainder, or an ex post facto law? Do you believe, that they will pass a law impairing the obligation of contracts? If not, why provide against it?...

"You declare, that the Legislature shall not take private property for the public use, without just compensation. Do you believe, that the Legislature will put forth their grasp upon private property, without compensation? Certainly I do not. There is as little reason to believe they will do such an act as this, as there is to believe, that a Legislature will offend against a Judge who has given a decision against some favourite opinion and favourite measure of theirs, or against a popular individual who has almost led the Legislature by his talents and influence.

"I am persuaded, there is at least as much danger that they will lay hold on such an individual, as that they will condemn a man to death for doing that which, when he committed it, was no crime. The gentleman says, it is impossible the Legislature should ever think of doing such a thing. Why then expunge the prohibition?... This Convention can do nothing that would entail a more serious evil upon Virginia, than to destroy the tenure by which her Judges hold their offices."[1339]

An hour later, the Chief Justice again addressed the convention on the independence of the Judiciary. Tazewell had spoken much in the vein of the Republicans of 1802.[1340] "The independence of all those who try causes between man and man, and between a man and his Government," answered Marshall, "can be maintained only by the tenure of their office. Is not their independence preserved under the present system? None can doubt it. Such an idea was never heard of in Virginia, as to remove a Judge from office." Suppose the courts at the mercy of the Legislature? "What would then be the condition of the court, should the Legislature prosecute a man, with an earnest wish to convict him?... If they may be removed at pleasure, will any lawyer of distinction come upon your bench?

"No, Sir. I have always thought, from my earliest youth till now, that the greatest scourge an angry Heaven ever inflicted upon an ungrateful and a sinning people, was an ignorant, a corrupt, or a dependent Judiciary. Will you draw down this curse upon Virginia? Our ancestors thought so: we thought so till very lately; and I trust the vote of this day will shew that we think so still."[1341]

Seldom in any parliamentary body has an appeal been so fruitful of votes. Marshall's idea of the inviolability of judicial tenure was sustained by a vote of 56 to 29, Madison voting with him.[1342]

Lucas P. Thompson of Amherst County moved to strike out the provision in Marshall's Judiciary Article that the abolition of a court should not "deprive any Judge thereof of his office."[1343] Thus the direct question, so fiercely debated in Congress twenty-seven years earlier,[1344] was brought before the convention. It was promptly decided, and against the views and action of Jefferson and the Republicans of 1802. By a majority of 8 out of a total of 96,[1345] the convention sustained the old Federalist idea that judges should continue to hold their positions and receive their salaries, even though their offices were abolished.

Before the vote was taken, however, a sharp debate occurred between Marshall and Giles. To keep judges in office, although that office be destroyed, "was nothing less than to establish a privileged corps in a free community," said Giles. Marshall had said "that a Judge ought to be responsible only to God and to his own conscience." Although "one of the first objects in view, in calling this Convention, was to make the Judges responsible--not nominally, but really responsible," Marshall actually proposed to establish "a privileged order of men." Another part of Marshall's plan, said Giles, required the concurrent vote of both Houses of the Legislature to remove a judge from the bench. "This was inserted, for what?" To prevent the Legislature from removing a judge "whenever his conduct had been such, that he became unpopular and odious to the people"--the very power the Legislature ought to have.[1346]

In reply, Marshall said that he would not, at that time, discuss the removal of judges by the Legislature, but would confine himself "directly to the object before him," as to whether the abolition of a court should not deprive the judge of his office. Giles had fallen into a strange confusion--he had treated "the office of a Judge, and the Court in which he sat, as being ... indissolubly united." But, asked Marshall, were the words "office and Court synonymes"? By no means. The proposed Judiciary Article makes the distinction when it declares that though the court be abolished, the judge still holds his office. "In what does the office of a Judge consist? ... in his constitutional capacity to receive Judicial power, and to perform Judicial Duties....

"If the Constitution shall declare that when the court is abolished, he shall still hold" his office, "there is no inconsistency in the declaration.... What creates the office?" An election to it by the Legislature and a commission by the Governor. "When these acts have been performed, the Judges are in office. Now, if the Constitution shall say that his office shall continue, and he shall perform Judicial duties, though his court may be abolished, does he, because of any modification that may be made in that court, cease to be a Judge?...

"The question constantly recurs--do you mean that the Judges shall be removable at the will of the Legislature? The gentleman talks of responsibility. Responsibility to what? to the will of the Legislature? can there be no responsibility, unless your Judges shall be removable at pleasure? will nothing short of this satisfy gentlemen? Then, indeed, there is an end to independence. The tenure during good behaviour, is a mere imposition on the public belief--a sound that is kept to the ear--and nothing else. The consequences must present themselves to every mind. There can be no member of this body who does not feel them.

"If your Judges are to be removable at the will of the Legislature, all that you look for from fidelity, from knowledge, from capacity, is gone and gone forever." Seldom did Marshall show more feeling than when pressing this point; he could not "sit down," he said, without "noticing the morality" of giving the Legislature power to remove judges from office. "Gentlemen talk of sinecures, and privileged orders--with a view, as it would seem, to cast odium on those who are in office.

"You seduce a lawyer from his practice, by which he is earning a comfortable independence, by promising him a certain support for life, unless he shall be guilty of misconduct in his office. And after thus seducing him, when his independence is gone, and the means of supporting his family relinquished, you will suffer him to be displaced and turned loose on the world with the odious brand of sinecure-pensioner--privileged order--put upon him, as a lazy drone who seeks to live upon the labour of others. This is the course you are asked to pursue."

The provisions of the Judiciary Article before the convention secure ample responsibility. "If not, they can be made [to do] so. But is it not new doctrine to declare, that the Legislature by merely changing the name of a court or the place of its meeting, may remove any Judge from his office? The question to be decided is, and it is one to which we must come, whether the Judges shall be permanent in their office, or shall be dependent altogether upon the breath of the Legislature."[1347]

Giles answered on the instant. In doing so, he began by a tribute to Marshall's "standing and personal excellence" which were so great "that he was willing to throw himself into the background, as to any weight to be attached to his [Giles's] own opinion." Therefore, he would "rely exclusively on the merits" of the controversy. Marshall had not shown "that it was not an anomaly to have the court out of being, and an office pertain[ing] to the court in being.... It was an anomaly in terms."

Giles "had, however, such high respect" for Marshall's standing, "that he always doubted his own opinion when put in opposition" to that of the Chief Justice. He had not intended, he avowed, "to throw reproach upon the Judges in office." Far be it from him to reflect "in the least degree on their honour and integrity." His point was that, by Marshall's plan, "responsibility was rather avoided than sought to be secured." Giles was willing to risk his liberty thus far--"if a Judge became odious to the people, let him be removed from office."[1348]

The debate continued upon another amendment by Thompson. Viewing the contest as a sheer struggle of minds, the conservatives were superior to the reformers,[1349] and steadily they gained votes.[1350]

Again Marshall spoke, this time crossing swords with Benjamin W. S. Cabell and James Madison, over a motion of the former that judges whose courts were abolished, and to whom the Legislature assigned no new duties, should not receive salaries: "There were upwards of one hundred Inferior Courts in Virginia.... No gentleman could look at the dockets of these courts, and possibly think" that the judges would ever have no business to transact.

Cabell's amendment "stated an impossible case," said Marshall,--a "case where there should be no controversies between man and man, and no crimes committed against society. It stated a case that could not happen--and would the convention encounter the real hazard of putting almost every Judge in the Commonwealth in the power of the Legislature, for the sake of providing for an impossible case?"[1351] But in spite of Marshall's opposition, Cabell's amendment was adopted by a vote of 59 to 36.[1352] Two weeks later, however, the convention reversed itself by two curious and contradictory votes.[1353] So in the end Marshall won.

The subject of the Judiciary did not seriously arise again until the vote on the adoption of the entire constitution was imminent. As it turned out, the constitution, when adopted, contained, in substance, the Judiciary provisions which Marshall had written and reported at the beginning of that body's deliberations.[1354]

The other and the commanding problem, for the solution of which the contention had been called, was made up of the associated questions of suffrage, taxation, and representation. Broadly speaking, the issue was that of white manhood suffrage and representation based upon the enumeration of whites, as against suffrage determined by property and taxation, representation to be based on an enumeration which included three fifths of the slave population.[1355]

In these complex and tangled questions the State and the convention were divided; so fierce were the contending factions, and so diverse were opinions on various elements of the confused problem, especially among those demanding reform, that at times no solution seemed possible. The friends of reform were fairly well organized and coöperated in a spirit of unity uncommon to liberals. But, as generally happens, the conservatives had much better discipline, far more harmony of opinion and conduct. The debate on both sides was able and brilliant.[1356]

Finally the convention seemingly became deadlocked. Each side declared it would not yield.[1357] Then came the inevitable reaction--a spirit of conciliation mellowed everybody. Sheer human nature, wearied of strife, sought the escape that mutual accommodation alone afforded. The moment came for which Marshall had been patiently waiting. Rising slowly, as was his wont, until his great height seemed to the convention to be increased, his soothing voice, in the very gentleness of its timbre, gave a sense of restfulness and agreement so grateful to, and so desired by, even the sternest of the combatants.

"No person in the House," began the Chief Justice, "can be more truly gratified than I am, at seeing the spirit that has been manifested here to-day; and it is my earnest wish that this spirit of conciliation may be acted upon in a fair, equal and honest manner, adapted to the situation of the different parts of the Commonwealth, which are to be affected."

The warring factions, said Marshall, were at last in substantial accord. "That the Federal numbers [the enumeration of slaves as fixed in the National Constitution] and the plan of the white basis shall be blended together so as to allow each an equal portion of power, seems to be very generally agreed to." The only difference now was that one faction insisted on applying this plan to both Houses of the Legislature, while the other faction would restrict the white basis to the popular branch, leaving the Senate to be chosen on the combined free white and black slave enumeration.

This involves the whole theory of property. One gentleman, in particular, "seems to imagine that we claim nothing of republican principles, when we claim a representation for property." But "republican principles" do not depend on "the naked principle of numbers." On the contrary, "the soundest principles of republicanism do sanction some relation between representation and taxation.... The two ought to be connected.... This was the principle of the revolution.... This basis of Representation is ... so important to Virginia" that everybody had thought about it before this convention was called.

"Several different plans were contemplated. The basis of white population alone; the basis of free population alone; a basis of population alone; a basis compounded of taxation and white population, (or which is the same thing, a basis of Federal numbers:).... Now, of these various propositions, the basis of white population, and the basis of taxation alone are the two extremes." But, "between the free population, and the white population, there is almost no difference: Between the basis of total population and the basis of taxation, there is but little difference."

Frankly and without the least disguise of his opinions, Marshall admitted that he was a conservative of conservatives: "The people of the East," of whom he avowed himself to be one, "thought that they offered a fair compromise, when they proposed the compound basis of population and taxation, or the basis of the Federal numbers. We thought that we had republican precedent for this--a precedent given us by the wisest and truest patriots that ever were assembled: but that is now past.

"We are now willing to meet on a new middle ground." Between the two extremes "the majority is too small to calculate upon.... We are all uncertain as to the issue. But all know this, that if either extreme is carried, it must leave a wound in the breast of the opposite party which will fester and rankle, and produce I know not what mischief." The conservatives were now the majority of the convention, yet they were again willing to make concessions. Avoiding both extremes, Marshall proposed, "as a compromise," that the basis of representation "shall be made according to an exact compound of the two principles, of the white basis and of the Federal numbers, according to the Census of 1820."[1358]

Further debate ensued, during which animosity seemed about to come to life again, when the Chief Justice once more exerted his mollifying influence. "Two propositions respecting the basis of Representation have divided this Convention almost equally," he said. "The question has been discussed, until discussion has become useless. It has been argued, until argument is exhausted. We have now met on the ground of compromise." It is no longer a matter of the triumph of either side. The only consideration now is whether the convention can agree on some plan to lay before the people "with a reasonable hope that it may be adopted. Some concession must be made on both sides.... What is the real situation of the parties?" Unquestionably both are sincere. "To attempt now to throw considerations of principle into either scale, is to add fuel to a flame which it is our purpose to extinguish. We must lose sight of the situation of parties and state of opinion, if we make this attempt."

The convention is nearly evenly balanced. At this moment those favoring a white basis only have a trembling majority of two. This may change--the reversal of a single vote would leave the House "equally divided."

The question must be decided "one way or the other"; but, if either faction prevails by a bare majority, the proposed constitution will go to the people from an almost equally divided convention. That means a tremendous struggle, a riven State. Interests in certain parts of the Commonwealth will surely resist "with great force" a purely white basis of representation, especially if no effective property qualification for suffrage is provided. This opposition is absolutely certain "unless human nature shall cease to be what it has been in all time."

No human power can forecast the result of further contest. But one thing is certain: "To obtain a just compromise, concession must not only be mutual--it must be equal also.... Each ought to concede to the other as much as he demands from that other.... There can be no hope that either will yield more than it gets in return."

The proposal that white population and taxation "mixed" with Federal numbers in "equal proportions" shall "form the basis of Representation in both Houses," is equal and just. "All feel it to be equal." Yet the conservatives now go still further--they are willing to place the House on the white basis and apply the mixed basis to the Senate only. Why refuse this adjustment? Plainly it will work well for everybody: "If the Senate would protect the East, will it not protect the West also?"

Marshall's satisfaction was "inexpressible" when he heard from both sides the language of conciliation. "I hailed these auspicious appearances with as much joy, as the inhabitant of the polar regions hails the re-appearance of the sun after his long absence of six tedious months. Can these appearances prove fallacious? Is it a meteor we have seen and mistaken for that splendid luminary which dispenses light and gladness throughout creation? It must be so, if we cannot meet on equal ground. If we cannot meet on the line that divides us equally, then take the hand of friendship, and make an equal compromise; it is vain to hope that any compromise can be made."[1359]

The basis of representation does not appear in the constitution, the number of Senators and Representatives being arbitrarily fixed by districts and counties; but this plan, in reality, gave the slaveholding sections almost the same preponderance over the comparatively non-slaveholding sections as would have resulted from the enumeration of three fifths of all slaves in addition to all whites.[1360]

While the freehold principle was abandoned, as Marshall foresaw that it would be, the principle of property qualification as against manhood suffrage was triumphant.[1361] With a majority against them, the conservatives won by better management, assisted by the personal influence of the Chief Justice, to which, on most phases of the struggle, was added that of Madison and Giles.

Nearly a century has passed since these happenings, and Marshall's attitude now appears to have been that of cold reaction; but he was as honest as he was outspoken in his resistance to democratic reforms. He wanted good government, safe government. He was not in the least concerned in the rule of the people as such. Indeed, he believed that the more they directly controlled public affairs the worse the business of government would be conducted.

He feared that sheer majorities would be unjust, intolerant, tyrannical; and he was certain that they would be untrustworthy and freakishly changeable. These convictions would surely have dictated his course in the Virginia Constitutional Convention of 1829-30, had no other considerations influenced him.

But, in addition to his long settled and ever-petrifying conservative views, we must also take into account the conditions and public temper existing in Virginia ninety years ago. Had the convention reached any other conclusion than that to which Marshall gently guided it, it is certain that the State would have been torn by dissension, and it is not improbable that there would have been bloodshed. All things considered, it seems unsafe to affirm that Marshall's course was not the wisest for that immediate period and for that particular State.

Displaying no vision, no aspiration, no devotion to human rights, he merely acted the uninspiring but necessary part of the practical statesman dealing with an existing and a very grave situation. If Jefferson could be so frightened in 1816 that he forbade the public circulation of his perfectly sound views on the wretched Virginia Constitution of 1776,[1362] can it be wondered at that the conservative Marshall in 1830 wished to compose the antagonisms of the warring factions?

The fact that the Nation was then facing the possibility of dissolution[1363] must also be taken into account. That circumstance, indeed, influenced Marshall even more than did his profound conservatism. There can be little doubt that, had either the radicals or the conservatives achieved an outright victory, one part of Virginia would have separated from the other and the growing sentiment for disunion would have received a powerful impulse.

Hurrying from Richmond to Washington when the convention adjourned, Marshall listened to the argument of Craig vs. Missouri; and then delivered one of the strongest opinions he ever wrote--the only one of his Constitutional expositions to be entirely repudiated by the Supreme Court after his death. The case grew out of the financial conditions described in the fourth chapter of this volume.

When Missouri became a State in 1821, her people found themselves in desperate case. There was no money. Banks had suspended, and specie had been drained to the Eastern commercial centers. The simplest business transactions were difficult, almost impossible. Even taxes could not be paid. The Legislature, therefore, established loan offices where citizens, by giving promissory notes, secured by mortgage or pledge of personal property, could purchase loan certificates issued by the State. These certificates were receivable for taxes and other public debts and for salt from the State salt mines. The faith and resources of Missouri were pledged for the redemption of the certificates which were negotiable and issued in denominations not exceeding ten dollars or less than fifty cents. In effect and in intention, the State thus created a local circulating medium of exchange.

On August 1, 1822, Hiram Craig and two others gave their promissory notes for $199.99 in payment for loan certificates. On maturity of these notes the borrowers refused to pay, and the State sued them; judgment against them was rendered in the trial court and this judgment was affirmed by the Supreme Court of Missouri. The case was taken, by writ of error, to the Supreme Court of the United States, where the sole question to be decided was the constitutionality of the Missouri loan office statutes.

Marshall's associates were now Johnson, Duval, Story, Thompson, McLean, and Baldwin; the last two recently appointed by Jackson. It was becoming apparent that the court was growing restive under the rigid practice of the austere theory of government and business which the Chief Justice had maintained for nearly a generation. This tendency was shown in this case by the stand taken by three of the Associate Justices. Marshall was in his seventy-sixth year, but never did his genius shine more resplendently than in his announcement of the opinion of the Supreme Court in Craig vs. Missouri.[1364]

He held that the Missouri loan certificates were bills of credit, which the National Constitution prohibited any State to issue. "What is a bill of credit?" It is "any instrument by which a state engages to pay money at a future day; thus including a certificate given for money borrowed.... To 'emit bills of credit' conveys to the mind the idea of issuing paper intended to circulate through the community, for its ordinary purposes, as money, which paper is redeemable at a future day."[1365] The Chief Justice goes into the history of the paper money evil that caused the framers of the Constitution to forbid the States to "emit bills of credit."

Such currency always fluctuates. "Its value is continually changing; and these changes, often great and sudden, expose individuals to immense loss, are the sources of ruinous speculations, and destroy all confidence between man and man." To "cut up this mischief by the roots ... the people declared, in their Constitution, that no state should emit bills of credit. If the prohibition means anything, if the words are not empty sounds, it must comprehend the emission of any paper medium by a state government, for the purpose of common circulation."[1366]

Incontestably the Missouri loan certificates are just such bills of credit. Indeed, the State law itself "speaks of them in this character." That the statute calls them certificates instead of bills of credit does not change the fact. How absurd to claim that the Constitution "meant to prohibit names and not things! That a very important act, big with great and ruinous mischief, which is expressly forbidden ... may be performed by the substitution of a name." The Constitution is not to be evaded "by giving a new name to an old thing."[1367]

It is nonsense to say that these particular bills of credit are lawful because they are not made legal tender, since a separate provision applies to legal tender. The issue of legal tender currency, and also bills of credit, is equally and separately forbidden: "To sustain the one because it is not also the other; to say that bills of credit may be emitted if they be not made a tender in payment of debts; is ... to expunge that distinct, independent prohibition."[1368]

In a well-nigh perfect historical summary, Marshall reviews experiments before and during the Revolution in bills of credit that were made legal tender, and in others that were not--all "productive of the same effects," all equally ruinous in results.[1369] The Missouri law authorizing the loan certificates, for which Craig gave his promissory note, is "against the highest law of the land, and ... the note itself is utterly void."[1370]

The Chief Justice closes with a brief paragraph splendid in its simple dignity and power. In his argument for Missouri, Senator Thomas H. Benton had used violent language of the kind frequently employed by the champions of State Rights: "If ... the character of a sovereign State shall be impugned," he cried, "contests about civil rights would be settled amid the din of arms, rather than in these halls of national justice."[1371]

To this outburst Marshall replies: The court has been told of "the dangers which may result from" offending a sovereign State. If obedience to the Constitution and laws of the Nation "shall be calculated to bring on those dangers ... or if it shall be indispensable to the preservation of the union, and consequently of the independence and liberty of these states; these are considerations which address themselves to those departments which may with perfect propriety be influenced by them. This department can listen only to the mandates of law; and can tread only that path which is marked out by duty."[1372]

In this noble passage Marshall is not only rebuking Benton; he is also speaking to the advocates of Nullification, then becoming clamorous and threatening; he is pointing out to Andrew Jackson the path of duty.[1373]

Justices Johnson, Thompson, and McLean afterwards filed dissenting opinions, thus beginning the departure, within the Supreme Court, from the stern Constitutional Nationalism of Marshall. This breach in the court deeply troubled the Chief Justice during the remaining four years of his life.

Johnson thought "that these certificates are of a truly amphibious character." The Missouri law "does indeed approach as near to a violation of the Constitution as it can well go without violating its prohibition, but it is in the exercise of an unquestionable right, although in rather a questionable form." So, on the whole, Johnson concluded that the Supreme Court had better hold the statute valid.[1374]

"The right of a State to borrow money cannot be questioned," said Thompson; that is all the Missouri scheme amounts to. If these loan certificates are bills of credit, so are "all bank notes, issued either by the States, or under their authority."[1375] Justice McLean pointed out that Craig's case was only one of many of the same kind. "The solemn act of a State ... cannot be set aside ... under a doubtful construction of the Constitution.[1376]... It would be as gross usurpation on the part of the federal government to interfere with State rights by an exercise of powers not delegated, as it would be for a State to interpose its authority against a law of the Union."[1377]

In Congress attacks upon Marshall and the Supreme Court now were renewed--but they grew continuously feebler. At the first session after the decision of the Missouri loan certificate case, a bill was introduced to repeal the provision of the Judiciary Act upon which the National powers of the Supreme Court so largely depended. "If the twenty-fifth section is repealed, the Constitution is practically gone," declared Story. "Our wisest friends look with great gloom to the future."[1378]

Marshall was equally despondent, but his political vision was clearer. When he read the dissenting opinions of Johnson, Thompson, and McLean, he wrote Story: "It requires no prophet to predict that the 25th section [of the Judiciary Act] is to be repealed, or to use a more fashionable phrase to be nullified by the Supreme Court of the United States."[1379] He realized clearly that the great tribunal, the power and dignity of which he had done so much to create, would soon be brought under the control of those who, for some years at least, would reject that broad and vigorous Nationalism which he had steadily and effectively asserted during almost a third of a century. One more vacancy on the Supreme Bench and a single new appointment by Jackson would give the court to the opponents of Marshall's views. Before he died, the Chief Justice was to behold two such vacancies.[1380]

On January 24, 1831, William R. Davis of South Carolina presented the majority report of the Judiciary Committee favoring the repeal of that section of the Judiciary Act under which the Supreme Court had demolished State laws and annihilated the decisions of State courts.[1381] James Buchanan presented the minority report.[1382] A few minutes' preliminary discussion revealed the deep feeling on both sides. Philip Doddridge of Virginia declared that the bill was of "as much importance as if it were a proposition to repeal the Union of these States." William W. Ellsworth of Connecticut avowed that it was of "overwhelming magnitude."[1383]

Thereupon the subject was furiously debated. Thomas H. Crawford of Pennsylvania considered Section 25 of the Judiciary Act, to be as "sacred" as the Constitution itself.[1384] Henry Daniel of Kentucky asserted that the Supreme Court "stops at nothing to obtain power." Let the "States ... prepare for the worst, and protect themselves against the assaults of this gigantic tribunal."[1385]

William Fitzhugh Gordon of Virginia, recently elected, but already a member of the Judiciary Committee, stoutly defended the report of the majority: "When a committee of the House had given to a subject the calmest and maturest investigation, and a motion is made to print their report, a gentleman gets up, and, in a tone of alarm, denounces the proposition as tantamount to a motion to repeal the Union." Gordon repudiated the very thought of dismemberment of the Republic--that "palladium of our hopes, and of the liberties of mankind."

As to the constitutionality of Section 25 of the Judiciary Act--"could it be new, especially to a Virginia lawyer"? when the Virginia Judiciary, with Roane at its head, had solemnly proclaimed the illegality of that section. And had not Georgia ordered her Governor to resist the enforcement of that provision of that ancient act of Congress? "I declare to God ... that I believe nothing would tend so much to compose the present agitation of the country ... as the repeal of that portion of the judiciary act." Gordon was about to discuss the nefarious case of Cohens vs. Virginia when his emotions overcame him--"he did not wish ... to go into the merits of the question."[1386]

Thomas F. Foster of Georgia said that the Judiciary Committee had reported under a "galling fire from the press"; quoted Marshall's unfortunate language in the Convention of 1788;[1387] and insisted that the "vast and alarming" powers of the Supreme Court must be bridled.[1388]

But the friends of the court overwhelmed the supporters of the bill, which was rejected by a vote of 138 to 51.[1389] It was ominous, however, that the South stood almost solid against the court and Nationalism.

FOOTNOTES:

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

[1270] Nevertheless he watched the course of politics closely. For instance: immediately after the House had elected John Quincy Adams to the Presidency, Marshall writes his brother a letter full of political gossip. He is surprised that Adams was chosen on the first ballot; many think Kremer's letter attacking Clay caused this unexpectedly quick decision, since it "was & is thought a sheer calumny; & the resentment of Clay's friends probably determined some of the western members who were hesitating. It is supposed to have had some influence elsewhere. The vote of New York was not decided five minutes before the ballots were taken."

Marshall tells his brother about Cabinet rumors--Crawford has refused the Treasury and Clay has been offered the office of Secretary of State. "It is meer [sic] common rumor" that Clay will accept. "Mr. Adams will undoubtedly wish to strengthen himself in the west," and Clay is strong in that section unless Kremer's letter has weakened him. The Chief Justice at first thought it had, but "on reflection" doubts whether it will "make any difference." (Marshall to his brother, Feb. 14, 1825, MS.) Marshall here refers to the letter of George Kremer, a Representative in Congress from Pennsylvania. Kremer wrote an anonymous letter to the Columbian Observer in which he asserted that Clay had agreed to deliver votes to Adams as the price of Clay's appointment to the office of Secretary of State. After much bluster, Kremer admitted that he had no evidence whatever to support his charge; yet his accusation permanently besmirched Clay's reputation. (For an account of the Kremer incident see Sargent, I, 67-74, 123-24.)

Out of the Kremer letter grew a distrust of Clay which he never really lived down. Some time later, John Randolph seized an opportunity to call the relation between President Adams and his Secretary of State "the coalition of Blifil and Black George--the combination, unheard of till then, of the Puritan with the blackleg." The bloodless, but not the less real duel, that followed, ended this quarrel, though the unjust charges never quite died out. (Schurz: Henry Clay, I, 273-74.)

[1271] Baltimore Marylander, March 22, 1828.

[1272] Enquirer, April 4, 1828.

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

[1274] Marshall to Story, May 1, 1828, Proceedings, Mass. Hist. Soc. 2d Series, XIV, 336-37.

[1275] See chap. I of this volume.

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

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

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

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

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

[1281] Marshall to Story, June 11, 1829, Proceedings, Mass. Hist. Soc. 2d Series, XIV, 338-39.

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

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

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

[1285] At the time of the convention the eastern part of the State paid, on the average, more than three times as much in taxes per acre as the west. The extremes were startling--the trans-Alleghany section (West Virginia) paid only 92 cents for every $8.43 paid by the Tidewater. (Proceedings and Debates of the Virginia State Convention of 1829-30, 214, 258, 660-61.)

[1286] Marshall to Story, July 3, 1829, Proceedings, Mass. Hist. Soc. 2d Series, XIV, 340-41.

[1287] Pickering to Marshall, Dec. 26, 1828, Pickering MSS. Mass. Hist. Soc.; see also Story, I, 386-96.

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

[1289] Lincoln to Greeley, Aug. 22, 1862, Complete Works of Abraham Lincoln: Nicolay and Hay, II, 227-28.

[1290] Marshall to Pickering, March 20, 1826, Proceedings, Mass. Hist. Soc. 2d Series, XIV, 321.

[1291] Fifteenth Annual Report, Proceedings, American Colonization Society. The abolitionists, later, mercilessly attacked the Colonization Society. (See Wilson: Rise of the Slave Power, I, 208 et seq.)

[1292] Fourteenth Annual Report, Proceedings, American Colonization Society.

[1293] His wife's illness. She died soon afterwards. See infra, 524-25.

[1294] Marshall to Gurley, Dec. 14, 1831, Fifteenth Annual Report, Proceedings, American Colonization Society, pp. vi-viii.

In a letter even less emotional than Marshall's, Madison favored the same plan. (Ib. pp. v, vi.) Lafayette, with his unfailing floridity, says that he is "proud ... of the honor of being one of the Vice Presidents of the Society," and that "the progressing state of our Liberia establishment is ... a source of enjoyment, and the most lively interest" to him. (Ib. p. v.)

At the time of his death, Marshall was President of the Virginia branch of the Society, and his ancient enemy, John Tyler, who succeeded him in that office, paid a remarkable tribute to the goodness and greatness of the man he had so long opposed. (Tyler: Tyler, I, 567-68.)

[1295] 10 Wheaton, 114.

[1296] Ib. 115. Marshall delivered this opinion March 15, 1825.

[1297] Ib. 114.

[1298] Ib. 118-19.

[1299] Ib. 122-23.

[1300] 2 Peters, 150-56.

[1301] Marshall to Greenhow, Oct. 17, 1809, MSS. "Judges and Eminent Lawyers," Mass. Hist. Soc.

[1302] See supra, 209-18, of this volume.

[1303] 12 Wheaton, 214 et seq. John Saunders, a citizen of Kentucky, sued George M. Ogden, a citizen of Louisiana, on bills of exchange which Ogden, then a citizen of New York, had accepted in 1806, but which were protested for non-payment. The defendant pleaded a discharge granted by a New York court under the insolvent law of that State enacted in 1801. (Ib.) On the manuscript records of the Supreme Court, Saunders is spelled Sanders. After the case was filed, the death of Ogden was suggested, and his executors, Charles Harrod and Francis B. Ogden, were substituted.

[1304] Washington, Johnson, Thompson, and Trimble each delivered long opinions supporting this view. (12 Wheaton, 254-331, 358-369.)

[1305] Ib. 334.

[1306] Ib. 335.

[1307] Ib. 337.

[1308] Ib. 356.

[1309] Ib. 357.

[1310] Story and Duval concurred with Marshall.

[1311] 12 Wheaton, 65-90.

[1312] Webster to Biddle, Feb. 20, 1827, Writings and Speeches of Webster: (Nat. ed.) XVI, 140.

[1313] 12 Wheaton, 90-116.

[1314] Grigsby: Virginia Convention of 1829-30; and see Ambler: Sectionalism in Virginia, 145. Chapter V of Professor Ambler's book is devoted exclusively to the convention. Also see preface to Debates Va. Conv. iii; and see Dodd, in American Journal of Sociology, XXVI, no. 6, 735 et seq.; and Anderson, 229-36.

[1315] Debates, Va. Conv. 23.

[1316] Ib. 25.

[1317] Ib. 25-31.

[1318] Statement of Marshall. (Ib. 872.)

[1319] Debates, Va. Conv. 33.

[1320] See supra, 146, 147.

[1321] See Giles's speech, Debates, Va. Conv. 604-05.

[1322] See Ambler: Sectionalism in Virginia, 139.

[1323] See vol. II, 62-69, of this work.

[1324] Serious abuses sprang up, however. In the convention, William Naylor of Hampshire County charged that the office of sheriff was sold to the highest bidder, sometimes at public auction. (Debates, Va. Conv. 486; and see Anderson, 229.)

[1325] See Marshall's defense of the County Court system, infra, 491.

[1326] See vol. I, 302, of this work.

[1327] For example, Thomas R. Joynes of Accomack County, who earnestly opposed Marshall in the Judiciary debate, said that no man felt "more respect" than he for Marshall's opinions which are justly esteemed "not only in this Convention, but throughout the United States." (Debates, Va. Conv. 505.) Randolph spoke of "the very great weight" which Marshall had in the convention, in Virginia, and throughout the Nation. (Ib. 500.) Thomas M. Bayly of Accomack County, while utterly disagreeing with the Chief Justice on the County Court system, declared that Marshall, "as a lawyer and Judge, is without a rival." (Ib. 510.) Richard H. Henderson of Loudoun County called the Chief Justice his "political father" whose lessons he delighted to follow, and upon whose "wisdom, ... virtue, ... prudence" he implicitly relied. (Henderson's statement as repeated by Benjamin W. Leigh, ib. 544.) Charles F. Mercer of the same county "expressed toward Judge Marshall a filial respect and veneration not surpassed by the ties which had bound him to a natural parent." (Ib. 563.) Such are examples of the expressions toward Marshall throughout the prolonged sessions of the convention.

[1328] See vol. III, chap, II, of this work.

[1329] Debates, Va. Conv. 871-72.

[1330] Ib. 872-74.

[1331] Debates, Va. Conv. 873.

[1332] See infra, 493-501.

[1333] Accordingly the following provision was inserted into the Constitution: "No law abolishing any court shall be construed to deprive a Judge thereof of his office, unless two-thirds of the members of each House present concur in the passing thereof; but the Legislature may assign other Judicial duties to the Judges of courts abolished by any law enacted by less than two-thirds of the members of each House present." (Article V, Section 2, Constitution of Virginia, 1830.)

[1334] Debates, Va. Conv. 505.

[1335] Debates, Va. Conv. 509.

[1336] Ib. 524, 530, 531, 533, 534.

[1337] Ib. 604-05.

[1338] Ib. 605. The provision as it finally appeared in the constitution was that these "appointments shall be made by the Governor, on the recommendation of the respective County Courts." (Article V, Section 7, Constitution of Virginia, 1830.)

[1339] Debates, Va. Conv. 615-17.

[1340] See vol. III, chap. II, of this work.

[1341] Debates, Va. Conv. 619.

[1342] Ib. 618-19.

[1343] Ib. 726.

[1344] See vol. III, chap. II, of this work.

[1345] Debates, Va. Conv. 731.

[1346] Debates, Va. Conv. 726-27.

[1347] Debates, Va. Conv. 727-29.

[1348] Debates, Va. Conv. 729-30.

[1349] See especially the speech of Benjamin Watkins Leigh, ib. 733-37.

[1350] See ib. for ayes and noes, 740, 741, 742, 744, 748.

[1351] Ib. 764.

[1352] Debates, Va. Conv. 767.

[1353] Ib. 880.

[1354] Compare Marshall's report (ib. 33) with Article V of the constitution (ib. 901-02; and see supra, 491, note 2.)

[1355] Contrast Marshall's resolutions (Debates, Va. Conv. 39-40), which expressed the conservative stand, with those of William H. Fitzhugh of Fairfax County (ib. 41-42), of Samuel Clayton of Campbell County (ib. 42), of Charles S. Morgan of Monongalia (ib. 43-44), and of Alexander Campbell of Brooke County (ib. 45-46), which state the views of the radicals.

[1356] See, for instance, the speech of John R. Cooke of Frederick County for the radicals (Debates, Va. Conv. 54-65), of Abel P. Upshur of Northampton for the conservatives (ib. 65-79), of Philip Doddridge of Brooke County for the radicals (ib. 79-89), of Philip P. Barbour of Orange County for the conservatives (ib. 90-98), and especially the speeches of Benjamin Watkins Leigh for the conservatives (ib. 151-74, 544-48). Indeed, the student cannot well afford to omit any one of the addresses in this remarkable contest.

[1357] It is at this point that we see the reason for Jefferson's alarm thirteen years before the convention was called. (See supra, 469.)

[1358] Debates, Va. Conv. 497-500.

[1359] Debates, Va. Conv. 561-62.

[1360] Constitution of Virginia, 1830, Article III, Sections 1 and 2.

[1361] Ib. Article III, Section 14.

[1362] See supra, 469.

[1363] See next chapter.

[1364] March 12, 1830.

[1365] 4 Peters, 432.

[1366] 4 Peters, 432.

[1367] Ib. 433.

[1368] Ib. 434.

[1369] 4 Peters, 434-36.

[1370] Ib. 437.

[1371] Ib. 420.

[1372] Ib. 438.

[1373] See 552-58.

[1374] 4 Peters, 438-44.

[1375] Ib. 445-50.

[1376] Ib. 458.

[1377] 4 Peters, 464.

[1378] Story to Ticknor, Jan. 22, 1831, Story, II, 49. Nevertheless Story did not despair. "It is now whispered, that the demonstrations of public opinion are so strong, that the majority [of the Judiciary Committee] will conclude not to present their report." (Ib.)

[1379] Marshall to Story, Oct. 15, 1830, Proceedings, Mass. Hist. Soc. 2d Series, XIV, 342.

[1380] See infra, 584.

[1381] Debates, 21st Cong. 2d Sess. 532.

[1382] Ib. 535.

[1383] Ib. 534.

[1384] Ib. 659.

[1385] Ib. 665.

[1386] Debates, 21st Cong. 2d Sess. 620-21.

[1387] Ib. 731, 748; and see vol. I, 454-55, of this work.

[1388] Debates, 21st Cong. 2d Sess. 739.

[1389] Debates, 21st Cong. 2d Sess. 542.

This was the last formal attempt, but one, made in Congress during Marshall's lifetime, to impair the efficiency of National courts. The final attack was made by Joseph Lecompte, a Representative from Kentucky, who on January 27, 1832, offered a resolution instructing the Judiciary Committee to "inquire into the expediency of amending the constitution ... so that the judges of the Supreme Court, and of the inferior courts, shall hold their offices for a limited term of years." On February 24, the House, by a vote of 141 to 27, refused to consider Lecompte's resolution, ignoring his plea to be allowed to explain it. (Debates, 22d Cong. 1st Sess. 1856-57.) So summary and brusque--almost contemptuous--was the rejection of Lecompte's proposal, as almost to suggest that personal feeling was an element in the action taken by the House.