The Project Gutenberg EBook of The Life of John Marshall Volume 4 of 4, by 
Albert J. Beveridge

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Title: The Life of John Marshall Volume 4 of 4

Author: Albert J. Beveridge

Release Date: August 19, 2012 [EBook #40533]

Language: English

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Standard Library Edition



From the portrait by Henry Inman




Volume IV



The Riverside Press Cambridge



[Pg v]


     War and Marshall's career—Federalists become British partisans—Their hatred of France—Republicans are exactly the reverse—The deep and opposite prejudices of Marshall and Jefferson—Cause of their conflicting views—The people become Europeanized—They lose sight of American considerations—Critical need of a National American sentiment—Origin of the War of 1812—America suffers from both European belligerents—British depredations—Jefferson retaliates by ineffective peaceful methods—The Embargo laws passed—The Federalists enraged—Pickering makes sensational speech in the Senate—Marshall endorses it—Congress passes the "Force Act"—Jefferson practices an autocratic Nationalism—New England Federalists propose armed resistance and openly advocate secession—Marshall rebukes those who resist National authority—The case of Gideon Olmstead—Pennsylvania forcibly resists order of the United States Court—Marshall's opinion in U.S. vs. Judge Peters—Its historical significance—The British Minister repeats the tactics of Genêt—Federalists uphold him—Republicans make great gains in New England—Marshall's despondent letter—Henry Clay's heroic speeches—War is declared—Federalists violently oppose it: "The child of Prostitution"—Joseph Story indignant and alarmed—Marshall proposed as Presidential candidate of the peace party—Writes long letter advocating coalition of "all who wish peace"—Denounces Napoleon and the Decree of St. Cloud—He heads Virginia Commission to select trade route to the West—Makes extended and difficult journey through the mountains—Writes statesmanlike report—Peace party nominates Clinton—Marshall criticizes report of Secretary of State on the causes of the war—New England Federalists determine upon secession—The Administration pamphlet on expatriation—John Lowell brilliantly attacks it—Marshall warmly approves Lowell's essay—His judicial opinions on expatriation—The coming of peace—Results of the war—The new America is born.
     Marshall's greatest Constitutional decisions given during the decade after peace is declared—Majority of Supreme Court becomes Republican—Marshall's influence over the Associate Justices—His life in Richmond—His negligent attire—Personal anecdotes—Interest in farming—Simplicity of habits—Holds Circuit Court[Pg vi] at Raleigh—Marshall's devotion to his wife—His religious belief—His children—Life at Oak Hill—Generosity—Member of Quoit Club—His "lawyer dinners"—Delights in the reading of poetry and fiction—Familiarity and friendliness—Joseph Story first meets the Chief Justice—Is captivated by his personality—Marshall's dignity in presiding over Supreme Court—Quickness at repartee—Life in Washington—Marshall and Associate Justices live together in same boarding-house—His dislike of publicity—Honorary degrees conferred—Esteem of his contemporaries—His personality—Calmness of manner—Strength of intellect—His irresistible charm—Likeness to Abraham Lincoln—The strong and brilliant bar practicing before the Supreme Court—Legal oratory of the period—Length of arguments—Joseph Story—His character and attainments—Birth and family—A Republican—Devotion to Marshall—Their friendship mutually helpful—Jefferson fears Marshall's influence on Story—Edward Livingston sues Jefferson for one hundred thousand dollars—Circumstances leading to Batture litigation—Jefferson's desire to name District Judge in Virginia—Jefferson in letter attacks Marshall—He dictates appointment of John Tyler to succeed Cyrus Griffin—Death of Justice Cushing of the Supreme Court—Jefferson tries to name Cushing's successor—He objects to Story—Madison wishes to comply with Jefferson's request—His consequent difficulty in filling place—Appointment of Story—Jefferson prepares brief on Batture case—Public interest in case—Case is heard—Marshall's opinion reflects on Jefferson—Chancellor Kent's opinion—Jefferson and Livingston publish statements—Marshall ascribes Jefferson's animosity in subsequent years to the Batture litigation.
     Marshall uniformly upholds acts of Congress even when he thinks them unwise and of doubtful constitutionality—The Embargo, Non-Importation, and Non-Intercourse laws—Marshall's slight knowledge of admiralty law—His dependence on Story—Marshall is supreme only in Constitutional law—High rank of his opinions on international law—Examples: The Schooner Exchange; U.S. vs. Palmer; The Divina Pastora; The Venus; The Nereid—Scenes in the court-room—Appearance of the Justices—William Pinkney the leader of the American bar—His learning and eloquence—His extravagant dress and arrogant manner—Story's admiration of him—Marshall's tribute—Character of the bar—Its members statesmen as well as lawyers—The attendance of women at arguments—Mrs. Smith's letter—American Insurance Co. et al. vs. David Canter—Story delivers the opinion in Martin vs. Hunter's Lessee—Reason for Marshall's declining to sit in that case—The Virginia Republican organization—The great political triumvirate, Roane, Ritchie, and Taylor—The Fairfax litigation—The Marshall purchase of a part of the Fairfax estate—Separate purchases of James M. Marshall—The Marshall and Virginia "compromise"—Virginia Court of Appeals decides in favor of Hunter[Pg vii]—National Supreme Court reverses State court—The latter's bold defiance of the National tribunal—Marshall refuses to sit in the case of the Granville heirs—History of the Granville litigation—The second appeal from the Virginia Court in the Fairfax-Martin-Hunter case—Story's great opinion in Fairfax's Devisee vs. Hunter's Lessee—His first Constitutional pronouncement—Its resemblance to Marshall's opinions—The Chief Justice disapproves one ground of Story's opinion—His letter to his brother—Anger of the Virginia judges at reversal of their judgment—The Virginia Republican organization prepares to attack Marshall.
     February and March, 1819, mark an epoch in American history—Marshall, at that time, delivers three of his greatest opinions—He surveys the state of the country—Beholds terrible conditions—The moral, economic, and social breakdown—Bad banking the immediate cause of the catastrophe—Sound and brilliant career of the first Bank of the United States—Causes of popular antagonism to it—Jealousy of the State banks—Jefferson's hostility to a central bank—John Adams's description of State banking methods—Opposition to rechartering the National institution—Congress refuses to recharter it—Abnormal increase of State banks—Their great and unjustifiable profits—Congress forced to charter second Bank of the United States—Immoral and uneconomic methods of State banks—Growth of "private banks"—Few restrictions placed on State and private banks and none regarded by them—Popular craze for more "money"—Character and habits of Western settlers—Local banks prey upon them—Marshall's personal experience—State banks control local press, bar, and courts—Ruthless foreclosures of mortgages and incredible sacrifices of property—Counterfeiting and crime—People unjustly blame Bank of the United States for their financial misfortunes—It is, at first, bad, and corruptly managed—Is subsequently well administered—Popular demand for bankruptcy laws—State "insolvency" statutes badly drawn and ruinously executed—Speculators use them to escape the payment of their liabilities while retaining their assets—Foreclosures and sheriff's sales increase—Demand for "stay laws" in Kentucky—Marshall's intimate personal knowledge of conditions in that State—States begin to tax National Bank out of existence—Marshall delivers one of his great trilogy of opinions of 1819 on contract, fraud, and banking—Effect of the decision of the Supreme Court in Sturges vs. Crowninshield.
     The Dartmouth College case affected by the state of the country—Marshall prepares his opinion while on his vacation—His views well known—His opinion in New Jersey vs. Wilson—Eleazar Wheelock's frontier Indian school—The voyage and mission of[Pg viii] Whitaker and Occom—Funds to aid the school raised in England and Scotland—The Earl of Dartmouth—Governor Wentworth grants a royal charter—Provisions of this document—Colonel John Wheelock becomes President of the College—The beginnings of strife—Obscure and confused origins of the Dartmouth controversy, including the slander of a woman's reputation, sectarian warfare, personal animosities, and partisan conflict—The College Trustees and President Wheelock become enemies—The hostile factions attack one another by means of pamphlets—The Trustees remove Wheelock from the Presidency—The Republican Legislature passes laws violative of the College Charter and establishing Dartmouth University—Violent political controversy—The College Trustees and officers refuse to yield—The famous suit of Trustees of Dartmouth College vs. Woodward is brought—The contract clause of the Constitution is but lightly considered by Webster, Mason, and Smith, attorneys for the College—Supreme Court of New Hampshire upholds the acts of the Legislature—Chief Justice Richardson delivers able opinion—The case appealed to the Supreme Court of the United States—Webster makes his first great argument before that tribunal—He rests his case largely on "natural right" and "fundamental principles," and relies but little on the contract clause—He has small hopes of success—The court cannot agree—Activity of College Trustees and officers during the summer and autumn of 1818—Chancellor James Kent advises Justices Johnson and Livingston of the Supreme Court—William Pinkney is retained by the opponents of the College—He plans to ask for a reargument and makes careful preparation—Webster is alarmed—The Supreme Court opens in February, 1819—Marshall ignores Pinkney and reads his opinion to which five Associate Justices assent—The joy of Webster and disgust of Pinkney—Hopkinson's comment—The effect of Marshall's opinion—The foundations of good faith—Comments upon Marshall's opinion—The persistent vitality of his doctrine as announced in the Dartmouth College case—Departures from it—Recent discussions of Marshall's theory.
     The third of Marshall's opinions delivered in 1819—The facts in the case of M'Culloch vs. Maryland—Pinkney makes the last but one of his great arguments—The final effort of Luther Martin—Marshall delivers his historic opinion—He announces a radical Nationalism—"The power to tax involves the power to destroy"—Marshall's opinion is violently attacked—Niles assails it in his Register—Declares it "more dangerous than foreign invasion"—Marshall's opinion more widely published than any previous judicial pronouncement—The Virginia Republican organization perceives its opportunity and strikes—Marshall tells Story of the coming assault—Roane attacks in the Richmond Enquirer—"The people must rouse from the lap of Delilah to meet the Philistines"—The letters of "Amphyction" and "Hampden"—The United States is "as much a league as was the former confedera[Pg ix]tion"—Marshall is acutely alarmed by Roane's attacks—He writes a dull and petulant newspaper defense of his brilliant opinion—Regrets his controversial effort and refuses to permit its republication—The Virginia Legislature passes resolutions denouncing his opinion and proposing a new tribunal to decide controversies between States and the Nation—The slave power joins the attack upon Marshall's doctrines—Ohio aligns herself with Virginia—Ohio's dramatic resistance to the Bank of the United States—Passes extravagantly drastic laws—Adopts resolutions denouncing Marshall's opinions and defying the National Government—Pennsylvania, Tennessee, Indiana, Illinois also demand a new court—John Taylor "of Caroline" writes his notable book, Construction Construed—Jefferson warmly approves it—Declares the National Judiciary to be a "subtle corps of sappers and miners constantly working underground to undermine the foundations of our confederated fabric."
     Relation of slavery and Marshall's opinions—The South threatens war: "I behold a brother's sword crimsoned with a brother's blood"—Northern men quail—The source and purpose of Marshall's opinion in Cohens vs. Virginia—The facts in that case—A trivial police court controversy—The case probably "arranged"—William Pinkney and David B. Ogden appear for the Cohens—Senator James Barbour, for Virginia, threatens secession: "With them [State Governments], it is to determine how long their [National] government shall endure"—Marshall's opinion is an address to the American people—The grandeur of certain passages: "A Constitution is framed for ages to come and is designed to approach immortality"—The Constitution is vitalized by a "conservative power" within it—Independence of the Judiciary necessary to preservation of the Republic—Marshall directly replies to the assailants of Nationalism: "The States are members of one great empire"—Marshall originates the phraseology, "a government of, by, and for the people"—Publication of the opinion in Cohens vs. Virginia arouses intense excitement—Roane savagely attacks Marshall under the nom de guerre of "Algernon Sidney"—Marshall is deeply angered—He writes Story denouncing Roane's articles—Jefferson applauds and encourages attacks on Marshall—Marshall attributes to Jefferson the assaults upon him and the Supreme Court—The incident of John E. Hall and his Journal of American Jurisprudence—John Taylor again assails Marshall's opinions in his second book, Tyranny Unmasked—He connects monopoly, the protective tariff, internal improvements, "exclusive privileges," and emancipation with Marshall's Nationalist philosophy—Jefferson praises Taylor's essay and declares for armed resistance to National "usurpation": "The States must meet the invader foot to foot"—Senator Richard M. Johnson of Kentucky, in Congress, attacks Marshall and the Supreme Court—Offers an amend[Pg x]ment to the Constitution giving the Senate appellate jurisdiction from that tribunal—Roane asks the Virginia Legislature to demand an amendment to the National Constitution limiting the power of the Supreme Court—Senator Johnson makes bold and powerful speech in the Senate—Declares the Supreme Court to be a denial of the whole democratic theory—Webster sneers at Johnson's address—Kentucky and the Supreme Court—The "Occupying Claimant" laws—Decisions in Green vs. Biddle—The Kentucky Legislature passes condemnatory and defiant resolutions—Justice William Johnson infuriates the South by an opinion from the Circuit Bench—The connection of the foregoing events with the Ohio Bank case—The alignment of economic, political, and social forces—Marshall delivers his opinion in Osborn vs. The Bank of the United States—The historical significance of his declaration in that case.
     Fulton's experiments on the Seine in Paris—French scientists reject his invention—The Livingston-Fulton partnership—Livingston's former experiments in New York—Secures monopoly grants from the Legislature—These expire—The Clermont makes the first successful steamboat voyage—Water transportation revolutionized—New York grants monopoly of steamboat navigation to Livingston and Fulton—They send Nicholas J. Roosevelt to inspect the Ohio and Mississippi Rivers—His romantic voyage to New Orleans—Louisiana grants exclusive steamboat privileges to Livingston and Fulton—New Jersey retaliates on New York—Connecticut forbids Livingston and Fulton boats to enter her waters—New York citizens defy the steamboat monopoly—Livingston and Fulton sue James Van Ingen—New York courts uphold the steamboat monopoly, and assert the right of the State to control navigation on its waters—The opinion of Chief Justice Kent—The controversy between Aaron Ogden and Thomas Gibbons—Ogden, operating under a license from Livingston and Fulton, sues Gibbons—State courts again sustain the monopoly acts—Gibbons appeals to the Supreme Court—Ogden retains William Pinkney—The case is dismissed, refiled, and continued—Pinkney dies—Argument not heard for three years—Several States pass monopoly laws—Prodigious development of steamboat navigation—The demand for internal improvements stimulated—The slave interests deny power of Congress to build roads and canals—The daring speech of John Randolph—Declares slavery imperiled—Threatens armed resistance—Remarkable alignment of opposing forces when Gibbons vs. Ogden is heard in Supreme Court—Webster makes the greatest of his legal arguments—Marshall's opinion one of his most masterful state papers—His former opinion on the Circuit Bench in the case of the Brig Wilson anticipates that in Gibbons vs. Ogden—The power of Congress over interstate and foreign commerce absolute[Pg xi] and exclusive—Marshall attacks the enemies of Nationalism—The immediate effect of Marshall's opinion on steamboat transportation, manufacturing, and mining—Later effect still more powerful—Railway development incalculably encouraged—Results to-day of Marshall's theory of commerce—Litigation in New York following the Supreme Court's decision—The whole-hearted Nationalism of Chief Justice Savage and Chancellor Sanford—Popularity of Marshall's opinion—The attack in Congress on the Supreme Court weakens—Martin Van Buren, while denouncing the "idolatry" for the Supreme Court, pays an exalted tribute to Marshall: "The ablest judge now sitting on any judicial bench in the world"—Senator John Rowan of Kentucky calls the new popular attitude toward the Supreme Court "a judicial superstition"—The case of Brown vs. Maryland—Marshall's opinion completes his Constitutional expositions of the commerce clause—Taney's remarkable acknowledgment.
     Marshall's dislike for the formal society of Washington—His charming letters to his wife—He carefully avoids partisan politics—Refrains from voting for twenty years—Is irritated by newspaper report of partisanship—Writes denial to the Richmond Whig—Clay writes Marshall—The Chief Justice explains incident to Story—Marshall's interest in politics—His letter to his brother—Permits himself to be elected to the Virginia Constitutional Convention of 1829-30—His disgust at his "weakness"—Writes Story amusing account—Issues before the convention deeply trouble him—He is frankly and unshakably conservative—The antiquated and undemocratic State Constitution of 1776 and the aristocratic system under it—Jefferson's brilliant indictment of both in a private letter—His alarm and anger when his letter is circulated—He tries to withdraw it—Marshall's interest in the well-being of the people—His prophetic letter to Charles F. Mercer—Marshall's only public ideal that of Nationalism—His views on slavery—Letters to Gurley and Pickering—His judicial opinions involving slavery and the slave trade: The Antelope; Boyce vs. Anderson—Extreme conservatism of Marshall's views on legislation and private property—Letter to Greenhow—Opinions in Ogden vs. Saunders and Bank vs. Dandridge—Marshall's work in the Virginia convention—Is against any reform—Writes Judiciary report—The aristocratic County Court system—Marshall defends it—Impressive tributes to Marshall from members of the convention—His animated and powerful speeches on the Judiciary—He answers Giles, Tazewell, and Cabell, and carries the convention by an astonishing majority—Is opposed to manhood suffrage and exclusive white basis of representation—He pleads for compromise on the latter subject and prevails—Reasons for his course in the convention—He probably prevents civil strife and bloodshed in Virginia—The convention adjourns—History of Craig vs. Missouri—Marshall's[Pg xii] stern opinion—The splendid eloquence of his closing passage—Three members of the Supreme Court file dissenting opinions—Marshall's melancholy comments on them—Congressional assaults on the Supreme Court renewed—They are astonishingly weak, and are overwhelmingly defeated, but the vote is ominous.
     Sadness of Marshall's last years—His health fails—Contemplates resigning—His letters to Story—Goes to Philadelphia for surgical treatment—Remarkable resolutions by the bar of that city—Marshall's response—Is successfully operated upon by Dr. Physick—His cheerfulness—Letters to his wife—Mrs. Marshall dies—Marshall's grief—His tribute to her—He is depressed by the course of President Jackson—The warfare on the Bank of the United States—Congress recharters it—Jackson vetoes the Bank Bill and assails Marshall's opinions in the Bank cases—The people acclaim Jackson's veto—Marshall is disgusted—His letters to Story—He is alarmed at the growth of disunion sentiment—Causes of the recrudescence of Localism—Marshall's theory of Constitutional construction and its relation to slavery—The tariff—The South gives stern warnings—Dangerous agitation in South Carolina—Georgia asserts her "sovereignty" in the matter of the Cherokee Indians—The case of George Tassels—Georgia ignores the Supreme Court and rebukes Marshall—The Cherokee Nation vs. Georgia—The State again ignores the Supreme Court—Marshall delivers his opinion in that case—Worcester vs. Georgia—The State defies the Supreme Court—Marshall's opinion—Georgia flouts the Court and disregards its judgment—Jackson supports Georgia—Story's melancholy letter—The case of James Graves—Georgia once more defies the Supreme Court and threatens secession—South Carolina encouraged by Georgia's attitude—Nullification sentiment grows rapidly—The Hayne-Webster debate—Webster's great speech a condensation of Marshall's Nationalist opinions—Similarity of Webster's language to that of Marshall—The aged Madison repudiates Nullification—Marshall, pleased, writes Story: "Mr. Madison is himself again"—The Tariffs of 1828 and 1832 infuriate South Carolina—Scenes and opinion in that State—Marshall clearly states the situation—His letters to Story—South Carolina proclaims Nullification—Marshall's militant views—Jackson issues his Nullification Proclamation—It is based on Marshall's theory of the Constitution and is a triumph for Marshall—Story's letter—Hayne replies to Jackson—South Carolina flies to arms—Virginia intercedes—Both parties back down: South Carolina suspends Nullification and Congress passes Tariff of 1833—Marshall describes conditions in the South—His letters to Story—He almost despairs of the Republic—Public appreciation of his character—Story dedicates his Commentaries to Marshall—Marshall presides over the Supreme Court for the last time—His fatal illness—He dies at Philadelphia—The funeral at Richmond[Pg xiii]—Widespread expressions of sorrow—Only one of condemnation—The long-continued mourning in Virginia—Marshall's old club resolves never to fill his place or increase its membership—Story's "inscription for a cenotaph" and the words Marshall wrote for his tomb.

[Pg xiv]

[Pg xv]


JOHN MARSHALLColored Frontispiece
From the portrait painted in 1832 by Henry Inman, in the possession of The Law Association of Philadelphia. A copy was presented to the Connecticut State Library by Senator Frank B. Brandegee and was chosen by the Secretary of the Treasury out of all existing portraits to be engraved on steel for use as a vignette on certain government bonds and treasury notes.
From a painting by Stuart, owned by Mr. Robert M. Pratt, Boston.
From a crayon drawing by his son, William Wetmore Story, in the possession of the family.
From the original painting by Charles Wilson Peale, in the possession of Pinkney's grandson, William Pinkney Whyte, Esq., Baltimore, Maryland.
From the bust in the Court Room of the United States Supreme Court.
From a portrait owned by Dartmouth College.
From etchings by Max and Albert Rosenthal in Hampton L. Carson's history of The Supreme Court of the United States, reproduced through the courtesy of the Lawyers' Coöperative Publishing Company, Rochester, New York. The etchings were made from originals as follows: Washington, from a painting by Chester Harding in the possession of the family; Johnson, from a painting by Jarvis in the possession of the New York Historical Society; Livingston, from a painting in the possession of the family; Todd, from a painting in the possession of the family; Story, from a drawing by William Wetmore Story in the possession of the family; Duval, from a painting in the Capitol at Washington. Mr. Justice Todd is included as a member of the Court at that time, although absent because of illness.
From a painting in the Court of Appeals at Richmond, Virginia.
From a painting in the possession of the Virginia State Library, Richmond.
From a portrait painted by J. B. Martin and presented to the University of Virginia in 1901 by John L. Williams, Esq., of Richmond, Virginia.
From the original found in the desk of Mr. Justice Story.
From a photograph. This was the principal house in the Fairfax Purchase and was the home of Marshall's son James Keith Marshall. The wing on the left was built especially for the use of Chief Justice Marshall, who expected to spend his declining years there. Many of his books and papers were kept in this house.
From etchings by Max and Albert Rosenthal in Hampton L. Carson's history of The Supreme Court of the United States, reproduced by the courtesy of the Lawyers' Coöperative Publishing Company, Rochester, New York. The etchings were made from originals as follows: Story, from a drawing by William Wetmore Story in the possession of the family; Smith Thompson from a painting by Dumont in the possession of Smith Thompson, Esq., Hudson, New York; McLean, from a painting by Ives, in the possession of Mr. Justice Brown; Baldwin, from a painting by Lambdin in the possession of the family; Wayne, from a photograph by Brady in the possession of Mr. Justice Field.
From a photograph of the graves of Marshall and his Wife in the Shockoe Hill Cemetery, Richmond, Virginia.

[Pg xvii]


All references here are to the List of Authorities at the end of this volume

Adams: U.S. See Adams, Henry. History of the United States.

Ambler: Ritchie. See Ambler, Charles Henry. Thomas Ritchie: A Study in Virginia Politics.

Ames: Ames. See Ames, Fisher. Works.

Anderson. See Anderson, Dice Robins. William Branch Giles.

Babcock. See Babcock, Kendric Charles. Rise of American Nationality, 1811-1819.

Bayard Papers: Donnan. See Bayard, James Asheton. Papers from 1796 to 1815. Edited by Elizabeth Donnan.

Branch Historical Papers. See John P. Branch Historical Papers.

Catterall. See Catterall, Ralph Charles Henry. Second Bank of the United States.

Channing: Jeff. System. See Channing, Edward. Jeffersonian System, 1801-1811.

Channing: U.S. See Channing, Edward. History of the United States.

Curtis. See Curtis, George Ticknor. Life of Daniel Webster.

Dewey. See Dewey, Davis Rich. Financial History of the United States.

Dillon. See Dillon, John Forrest. John Marshall: Life, Character, and Judicial Services.

E. W. T.: Thwaites. See Thwaites, Reuben Gold. Early Western Travels.

Farrar. See Farrar, Timothy. Report of the Case of the Trustees of Dartmouth College against William H. Woodward.

Hildreth. See Hildreth, Richard. History of the United States of America.

Hunt: Livingston. See Hunt, Charles Havens. Life of Edward Livingston.

Kennedy. See Kennedy, John Pendleton. Memoirs of the Life of William Wirt.

King. See King, Rufus. Life and Correspondence. Edited by Charles R. King.

[Pg xviii]

Lodge: Cabot. See Lodge, Henry Cabot. Life and Letters of George Cabot.

Lord. See Lord, John King. A History of Dartmouth College, 1815-1909.

McMaster. See McMaster, John Bach. A History of the People of the United States.

Memoirs, J. Q. A.: Adams. See Adams, John Quincy. Memoirs. Edited by Charles Francis Adams.

Morison: Otis. See Morison, Samuel Eliot. Life and Letters of Harrison Gray Otis.

Morris. See Morris, Gouverneur. Diary and Letters. Edited by Anne Cary Morris.

N.E. Federalism: Adams. See Adams, Henry. Documents relating to New-England Federalism, 1800-1815.

Parton: Jackson. See Parton, James. Life of Andrew Jackson.

Plumer. See Plumer, William, Jr. Life of William Plumer.

Priv. Corres.: Webster. See Webster, Daniel. Private Correspondence. Edited by Fletcher Webster.

Quincy: Quincy. See Quincy, Edmund. Life of Josiah Quincy of Massachusetts.

Randall. See Randall, Henry Stephens. Life of Thomas Jefferson.

Records Fed. Conv.: Farrand. See Records of the Federal Convention of 1787. Edited by Max Farrand.

Richardson. See Richardson, James Daniel. A Compilation of the Messages and Papers of the Presidents, 1789-1897.

Shirley. See Shirley, John M. The Dartmouth College Causes and the Supreme Court of the United States.

Story. See Story, Joseph. Life and Letters. Edited by William Wetmore Story.

Sumner: Hist. Am. Currency. See Sumner, William Graham. A History of American Currency.

Sumner: Jackson. See Sumner, William Graham. Andrew Jackson. As a Public Man.

Tyler: Tyler. See Tyler, Lyon Gardiner. Letters and Times of the Tylers.

Works: Ford. See Jefferson, Thomas. Works. Edited by Paul Leicester Ford.

Writings: Adams. See Gallatin, Albert. Writings. Edited by Henry Adams.

Writings: Hunt. See Madison, James. Writings. Edited by Gaillard Hunt.

[Pg xix]


[Pg xx]

[Pg 1]




Great Britain is fighting our battles and the battles of mankind, and France is combating for the power to enslave and plunder us and all the world. (Fisher Ames.)

Though every one of these Bugbears is an empty Phantom, yet the People seem to believe every article of this bombastical Creed. Who shall touch these blind eyes. (John Adams.)

The object of England, long obvious, is to claim the ocean as her domain. (Jefferson.)

I am for resistance by the sword. (Henry Clay.)

Into the life of John Marshall war was strangely woven. His birth, his young manhood, his public services before he became Chief Justice, were coincident with, and affected by, war. It seemed to be the decree of Fate that his career should march side by side with armed conflict, and that the final phase of that career should open with a war—a war, too, which brought forth a National consciousness among the people and demonstrated a National strength hitherto unsuspected in their fundamental law.

Yet, while American Nationalism was Marshall's one and only great conception, and the fostering of it the purpose of his life, he was wholly out of sympathy with the National movement that led to our second conflict with Great Britain, and against the continuance of it. He heartily shared the opinion of the Federalist leaders that the War of 1812 was unnecessary, unwise, and unrighteous.

By the time France and England had renewed[Pg 2] hostilities in 1803, the sympathies of these men had become wholly British. The excesses of the French Revolution had started them on this course of feeling and thinking. Their detestation of Jefferson, their abhorrence of Republican doctrines, their resentment of Virginia domination, all hastened their progress toward partisanship for Great Britain. They had, indeed, reverted to the colonial state of mind, and the old phrases, "the mother country," "the protection of the British fleet,"[1] were forever on their lips.

These Federalists passionately hated France; to them France was only the monstrous child of the terrible Revolution which, in the name of human rights, had attacked successfully every idea dear to their hearts—upset all order, endangered all property, overturned all respectability. They were sure that Napoleon intended to subjugate the world; and that Great Britain was our only bulwark against the aggressions of the Conqueror—that "varlet" whose "patron-saint [is] Beelzebub," as Gouverneur Morris referred to Napoleon.[2]

So, too, thought John Marshall. No man, except his kinsman Thomas Jefferson, cherished a prejudice more fondly than he. Perhaps no better example of first impressions strongly made and tenaciously retained can be found than in these two men. Jefferson was as hostile as Marshall was friendly to Great Britain; and they held exactly opposite sentiments toward France. Jefferson's strongest title[Pg 3] to immortality was the Declaration of Independence; nearly all of his foreign embroilments had been with British statesmen. In British conservatism he had found the most resolute opposition to those democratic reforms he so passionately championed, and which he rightly considered the manifestations of a world movement.[3]

And Jefferson adored France, in whose entrancing capital he had spent his happiest years. There his radical tendencies had found encouragement. He looked upon the French Revolution as the breaking of humanity's chains, politically, intellectually, spiritually.[4] He believed that the war of the allied governments of Europe against the new-born French Republic was a monarchical combination to extinguish the flame of liberty which France had lighted.

Marshall, on the other hand, never could forget his experience with the French. And his revelation of what he had endured while in Paris had brought him his first National fame.[5] Then, too, his idol, Washington, had shared his own views—indeed, Marshall had been instrumental in the formation of Washington's settled opinions. Marshall had championed the Jay Treaty, and, in doing so, had necessarily taken the side of Great Britain as opposed to France.[6] His business interests[7] powerfully inclined him in the same direction. His personal friends were the ageing Federalists.[Pg 4]

He had also become obsessed with an almost religious devotion to the rights of property, to steady government by "the rich, the wise and good,"[8] to "respectable" society. These convictions Marshall found most firmly retained and best defended in the commercial centers of the East and North. The stoutest champions of Marshall's beloved stability of institutions and customs were the old Federalist leaders, particularly of New England and New York. They had been his comrades and associates in bygone days and continued to be his intimates.

In short, John Marshall had become the personification of the reaction against popular government that followed the French Revolution. With him and men of his cast of mind, Great Britain had come to represent all that was enduring and good, and France all that was eruptive and evil. Such was his outlook on social and political life when, after these traditional European foes were again at war, their spoliations of American commerce, violations of American rights, and insults to American honor once more became flagrant; and such continued to be his opinion and feeling after these aggressions had become intolerable.

Since the adoption of the Constitution, nearly all Americans, except the younger generation, had become re-Europeanized in thought and feeling. Their partisanship of France and Great Britain relegated America to a subordinate place in their minds and hearts. Just as the anti-Federalists and[Pg 5] their successors, the Republicans, had been more concerned in the triumph of revolutionary France over "monarchical" England than in the maintenance of American interests, rights, and honor, so now the Federalists were equally violent in their championship of Great Britain in her conflict with the France of Napoleon. Precisely as the French partisans of a few years earlier had asserted that the cause of France was that of America also,[9] the Federalists now insisted that the success of Great Britain meant the salvation of the United States.

"Great Britain is fighting our battles and the battles of mankind, and France is combating for the power to enslave and plunder us and all the world,"[10] wrote that faithful interpreter of extreme New England Federalism, Fisher Ames, just after the European conflict was renewed. Such opinions were not confined to the North and East. In South Carolina, John Rutledge was under the same spell. Writing to "the head Quarters of good Principles," Boston, he avowed that "I have long considered England as but the advanced guard of our Country.... If they fall we do."[11] Scores of quotations from prominent Federalists expressive of the same views might be adduced.[12] Even the assault on[Pg 6] the Chesapeake did not change or even soften them.[13] On the other hand, the advocates of France as ardently upheld her cause, as fiercely assailed Great Britain.[14]

Never did Americans more seriously need emancipation from foreign influence than in the early decades of the Republic—never was it more vital to their well-being that the people should develop an American spirit, than at the height of the Napoleonic Wars.

Upon the renewal of the European conflict, Great Britain announced wholesale blockades of French ports,[15] ordered the seizure of neutral ships wherever found carrying on trade with an enemy of England;[16] and forbade them to enter the harbors of immense stretches of European coasts.[17] In reply, Napoleon declared the British Islands to be under blockade, and ordered the capture in any waters whatsoever of all ships that had entered British harbors.[18] Great Britain responded with the Orders in Council of 1807 which, in effect, prohib[Pg 7]ited the oceans to neutral vessels except such as traded directly with England or her colonies; and even this commerce was made subject to a special tax to be paid into the British treasury.[19] Napoleon's swift answer was the Milan Decree,[20] which, among other things, directed all ships submitting to the British Orders in Council to be seized and confiscated in the ports of France or her allies, or captured on the high seas.

All these "decrees," "orders," and "instructions" were, of course, in flagrant violation of international law, and were more injurious to America than to all other neutrals put together. Both belligerents bore down upon American commerce and seized American ships with equal lawlessness.[21] But, since Great Britain commanded the oceans,[22] the United States suffered far more severely from the depredations of that Power.[23] Under pressure of conflict, Great[Pg 8] Britain increased her impressment[24] of American sailors. In effect, our ports were blockaded.[25]

Jefferson's lifelong prejudice against Great Britain[26] would permit him to see in all this nothing but a sordid and brutal imperialism. Not for a moment did he understand or consider the British point of view. England's "intentions have been to claim the ocean as her conquest, & prohibit any vessel from navigating it but on ... tribute," he wrote.[27] Nevertheless, he met Great Britain's orders and instructions with hesitant recommendations that the country be put in a state of defense; only feeble preliminary steps were taken to that end.[Pg 9]

The President's principal reliance was on the device of taking from Great Britain her American markets. So came the Non-Importation Act of April, 1806, prohibiting the admission of those products that constituted the bulk of Great Britain's immensely profitable trade with the United States.[28] This economic measure was of no avail—it amounted to little more than an encouragement of successful smuggling.

When the Leopard attacked the Chesapeake,[29] Jefferson issued his proclamation reciting the "enormity" as he called it, and ordering all British armed vessels from American waters.[30] The spirit of America was at last aroused.[31] Demands for war rang throughout the land.[32] But they did not come from the lips of Federalists, who, with a few exceptions, protested loudly against any kind of retaliation.

John Lowell, unequaled in talent and learning among the brilliant group of Federalists in Boston, wrote a pamphlet in defense of British conduct.[33][Pg 10] It was an uncommonly able performance, bright, informed, witty, well reasoned. "Despising the threats of prosecution for treason," he would, said Lowell, use his right of free speech to save the country from an unjustifiable war. What did the Chesapeake incident, what did impressment of Americans, what did anything and everything amount to, compared to the one tremendous fact of Great Britain's struggle with France? All thoughtful men knew that Great Britain alone stood between us and that slavery which would be our portion if France should prevail.[34]

Lowell's sparkling essay well set forth the intense conviction of nearly all leading Federalists. Giles was not without justification when he branded them as "the mere Anglican party."[35] The London press had approved the attack on the Chesapeake, applauded Admiral Berkeley, and even insisted upon war against the United States.[36] American Federalists were not far behind the Times and the Morning Post.

Jefferson, on the contrary, vividly stated the thought of the ordinary American: "The English being equally tyrannical at sea as he [Bonaparte] is on land, & that tyranny bearing on us in every point of either honor or interest, I say, 'down with Eng[Pg 11]land' and as for what Buonaparte is then to do to us, let us trust to the chapter of accidents, I cannot, with the Anglomen, prefer a certain present evil to a future hypothetical one."[37]

But the President did not propose to execute his policy of "down with England" by any such horrid method as bloodshed. He would stop Americans from trading with the world—that would prevent the capture of our ships and the impressment of our seamen.[38] Thus it was that the Embargo Act of December, 1807, and the supplementary acts of January, March, and April, 1808, were passed.[39] All exportation by sea or land was rigidly forbidden under heavy penalties. Even coasting vessels were not allowed to continue purely American trade unless heavy bond was given that landing would be made exclusively at American ports. Flour could be shipped by sea only in case the President thought it necessary to keep from hunger the population of any given port.[40]

[Pg 12]

Here was an exercise of National power such as John Marshall had never dreamed of. The effect was disastrous. American ocean-carrying trade was ruined; British ships were given the monopoly of the seas.[41] And England was not "downed," as Jefferson expected. In fact neither France nor Great Britain relaxed its practices in the least.[42]

The commercial interests demanded the repeal of the Embargo laws,[43] so ruinous to American shipping, so destructive to American trade, so futile in redressing the wrongs we had suffered. Massachusetts was enraged. A great proportion of the tonnage of the whole country was owned in that State and the Embargo had paralyzed her chief industry. Here was a fresh source of grievance against the Administration and a just one. Jefferson had, at last, given the Federalists a real issue. Had they[Pg 13] availed themselves of it on economic and purely American grounds, they might have begun the rehabilitation of their weakened party throughout the country. But theirs were the vices of pride and of age—they could neither learn nor forget; could not estimate situations as they really were, but only as prejudice made them appear to be.

As soon as Congress convened in November, 1808, New England opened the attack on Jefferson's retaliatory measures. Senator James Hillhouse of Connecticut offered a resolution for the repeal of the obnoxious statutes. "Great Britain was not to be threatened into compliance by a rod of coercion," he said.[44] Pickering made a speech which might well have been delivered in Parliament.[45] British maritime practices were right, the Embargo wrong, and principally injurious to America.[46] The Orders in Council had been issued only after Great Britain "had witnessed ... these atrocities" committed by Napoleon and his plundering armies, "and seen the[Pg 14] deadly weapon aimed at her vitals." Yet Jefferson had acted very much as if the United States were a vassal of France.[47]

Again Pickering addressed the Senate, flatly charging that all Embargo measures were "in exact conformity with the views and wishes of the French Emperor, ... the most ruthless tyrant that has scourged the European world, since the Roman Empire fell!" Suppose the British Navy were destroyed and France triumphant over Great Britain—to the other titles of Bonaparte would then "be added that of Emperor of the Two Americas"; for what legions of soldiers "could he not send to the United States in the thousands of British ships, were they also at his command?"[48]

As soon as they were printed, Pickering sent copies of these and speeches of other Federalists to his close associate, the Chief Justice of the United States. Marshall's prompt answer shows how far he had gone in company with New England Federalist opinion.

"I thank you very sincerely," he wrote "for the excellent speeches lately delivered in the senate.... If sound argument & correct reasoning could save our country it would be saved. Nothing can be more completely demonstrated than the inefficacy of the embargo, yet that demonstration seems to be of no avail. I fear most seriously that the same spirit which so tenaciously maintains this measure will impel us to a war with the only power which protects any part of the civilized world from the[Pg 15] despotism of that tyrant with whom we shall then be ravaged."[49]

Such was the change that nine years had wrought in the views of John Marshall. When Secretary of State he had arraigned Great Britain for her conduct toward neutrals, denounced the impressment of American sailors, and branded her admiralty courts as habitually unjust if not corrupt.[50] But his hatred of France had metamorphosed the man.

Before Marshall had written this letter, the Legislature of Massachusetts formally declared that the continuance of the Embargo would "endanger ... the union of these States."[51] Talk of secession was steadily growing in New England.[52] The National Government feared open rebellion.[53] Only one eminent Federalist dissented from these views of the party leaders which Marshall also held as fervently as they. That man was the one to whom he owed his place on the Supreme Bench. From his retirement in Quincy, John Adams watched the growing excitement with amused contempt.

"Our Gazettes and Pamphlets," he wrote, "tell us that Bonaparte ... will conquer England, and command all the British Navy, and send I know not how many hundred thousand soldiers here and con[Pg 16]quer from New Orleans to Passamaquoddy. Though every one of these Bugbears is an empty Phantom, yet the People seem to believe every article of this bombastical Creed and tremble and shudder in Consequence. Who shall touch these blind eyes?"[54]

On January 9, 1809, Jefferson signed the "Force Act," which the Republican Congress had defiantly passed, and again Marshall beheld such an assertion of National power as the boldest Federalist of Alien and Sedition times never had suggested. Collectors of customs were authorized to seize any vessel or wagon if they suspected the owner of an intention to evade the Embargo laws; ships could be laden only in the presence of National officials, and sailing delayed or prohibited arbitrarily. Rich rewards were provided for informers who should put the Government on the track of any violation of the multitude of restrictions of these statutes or of the Treasury regulations interpretative of them. The militia, the army, the navy were to be employed to enforce obedience.[55]

Along the New England coasts popular wrath swept like a forest fire. Violent resolutions were passed.[56] The Collector of Boston, Benjamin Lincoln, refused to obey the law and resigned.[57] The Legislature of[Pg 17] Massachusetts passed a bill denouncing the "Force Act" as unconstitutional, and declaring any officer entering a house in execution of it to be guilty of a high misdemeanor, punishable by fine and imprisonment.[58] The Governor of Connecticut declined the request of the Secretary of War to afford military aid and addressed the Legislature in a speech bristling with sedition.[59] The Embargo must go, said the Federalists, or New England would appeal to arms. Riots broke out in many towns. Withdrawal from the Union was openly advocated.[60] Nor was this sentiment confined to that section. "If the question were barely stirred in New England, some States would drop off the Union like fruit, rotten ripe," wrote A. C. Hanson of Baltimore.[61] Humphrey Marshall of Kentucky declared that he looked to "Boston ... the Cradle, and Salem, the nourse, of American Liberty," as "the source of reformation, or should that be unattainable, of disunion."[62]

Warmly as he sympathized with Federalist opinion of the absurd Republican retaliatory measures, and earnestly as he shared Federalist partisanship for Great Britain, John Marshall deplored all talk of[Pg 18] secession and sternly rebuked resistance to National authority, as is shown in his opinion in Fletcher vs. Peck,[63] wherein he asserted the sovereignty of the Nation over a State.

Another occasion, however, gave Marshall a better opportunity to state his views more directly, and to charge them with the whole force of the concurrence of all his associates on the Supreme Bench. This occasion was the resistance of the Legislature and Governor of Pennsylvania to a decree of Richard Peters, Judge of the United States Court for that district, rendered in the notable and dramatic case of Gideon Olmstead. During the Revolution, Olmstead and three other American sailors captured the British sloop Active and sailed for Egg Harbor, New Jersey. Upon nearing their destination, they were overhauled by an armed vessel belonging to the State of Pennsylvania and by an American privateer. The Active was taken to Philadelphia and claimed as a prize of war. The court awarded Olmstead and his comrades only one fourth of the proceeds of the sale of the vessel, the other three fourths going to the State of Pennsylvania, to the officers and crew of the State ship, and to those of the privateer. The Continental Prize Court reversed the decision and ordered the whole amount received for sloop and cargo to be paid to Olmstead and his associates.

This the State court refused to do, and a litigation began which lasted for thirty years. The funds were invested in United States loan certificates, and these were delivered by the State Judge to the State Treas[Pg 19]urer, David Rittenhouse, upon a bond saving the Judge harmless in case he, thereafter, should be compelled to pay the amount in controversy to Olmstead. Rittenhouse kept the securities in his personal possession, and after his death they were found among his effects with a note in his handwriting that they would become the property of Pennsylvania when the State released him from his bond to the Judge.

In 1803, Olmstead secured from Judge Peters an order to the daughters of Rittenhouse who, as his executrixes, had possession of the securities, to deliver them to Olmstead and his associates. This proceeding of the National court was promptly met by an act of the State Legislature which declared that the National court had "usurped" jurisdiction, and directed the Governor to "protect the just rights of the state ... from any process whatever issued out of any federal court."[64]

Peters, a good lawyer and an upright judge, but a timorous man, was cowed by this sharp defiance and did nothing. The executrixes held on to the securities. At last, on March 5, 1808, Olmstead applied to the Supreme Court of the United States for a rule directed to Judge Peters to show cause why a mandamus should not issue compelling him to execute his decree. Peters made return that the act of the State Legislature had caused him "from prudential ... motives ... to avoid embroiling the government of the United States and that of Pennsylvania."[65]

Thus the matter came before Marshall. On February 20, 1809, just when threats of resistance to the[Pg 20] "Force Act" were sounding loudest, when riots were in progress along the New England seaboard, and a storm of debate over the Embargo and Non-Intercourse laws was raging in Congress, the Chief Justice delivered his opinion in the case of the United States vs. Peters.[66] The court had, began Marshall, considered the return of Judge Peters "with great attention, and with serious concern." The act of the Pennsylvania Legislature challenged the very life of the National Government, for, "if the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery, and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals."

These clear, strong words were addressed to Massachusetts and Connecticut no less than to Pennsylvania. They were meant for Marshall's Federalist comrades and friends—for Pickering, and Gore, and Morris, and Otis—as much as for the State officials in Lancaster. His opinion was not confined to the case before him; it was meant for the whole country and especially for those localities where National laws were being denounced and violated, and National authority defied and flouted. Considering the depth and fervor of Marshall's feelings on the whole policy of the Republican régime, his opinion in United States vs. Judge Peters was signally brave and noble.[Pg 21]

Forcible resistance by a State to National authority! "So fatal a result must be deprecated by all; and the people of Pennsylvania, not less than the citizens of every other state, must feel a deep interest in resisting principles so destructive of the Union, and in averting consequences so fatal to themselves." Marshall then states the facts of the controversy and concludes that "the state of Pennsylvania can possess no constitutional right" to resist the authority of the National courts. His decision, he says, "is not made without extreme regret at the necessity which has induced the application." But, because "it is a solemn duty" to do so, the "mandamus must be awarded."[67]

Marshall's opinion deeply angered the Legislature and officials of Pennsylvania.[68] When Judge Peters, in obedience to the order of the Supreme Court, directed the United States Marshal to enforce the decree in Olmstead's favor, that official found the militia under command of General Bright drawn up around the house of the two executrixes. The dispute was at last composed, largely because President Madison rebuked Pennsylvania and upheld the National courts.[69][Pg 22]

A week after the delivery of Marshall's opinion, the most oppressive provisions of the Embargo Acts were repealed and a curious non-intercourse law enacted.[70] One section directed the suspension of all commercial restrictions against France or Great Britain in case either belligerent revoked its orders or decrees against the United States; and this the President was to announce by proclamation. The new British Minister, David M. Erskine, now tendered apology and reparation for the attack on the Chesapeake and positively assured the Administration that, if the United States would renew intercourse with Great Britain, the British Orders in Council would be withdrawn on June 10, 1809. Immediately President Madison issued his proclamation stating this fact and announcing that after that happy June day, Americans might renew their long and ruinously suspended trade with all the world not subject to French control.[71]

The Federalists were jubilant.[72] But their joy was quickly turned to wrath—against the Administration. Great Britain repudiated the agreement of her Minister, recalled him, and sent another charged with rigid and impossible instructions.[73] In deep humiliation, Madison issued a second proclamation reciting the facts and restoring to full operation against Great Britain all the restrictive commercial and maritime laws remaining on the statute[Pg 23] books.[74] At a banquet in Richmond, Jefferson proposed a toast: "The freedom of the seas!"[75]

Upon the arrival of Francis James Jackson, Erskine's successor as British Minister, the scenes of the Genêt drama[76] were repeated. Jackson was arrogant and overbearing, and his instructions were as harsh as his disposition.[77] Soon the Administration was forced to refuse further conference with him. Jackson then issued an appeal to the American people in the form of a circular to British Consuls in America, accusing the American Government of trickery, concealment of facts, and all but downright falsehood.[78] A letter of Canning to the American Minister at London[79] found its way into the Federalist newspapers, "doubtless by the connivance of the British Minister," says Joseph Story. This letter was, Story thought, an "infamous" appeal to the American people to repudiate their own Government, "the old game of Genêt played over again."[80][Pg 24]

Furious altercations arose all over the country. The Federalists defended Jackson. When the elections came on, the Republicans made tremendous gains in New England as well as in other States,[81] a circumstance that depressed Marshall profoundly. In December an acrimonious debate arose in Congress over a resolution denouncing Jackson's circular letter as a "direct and aggravated insult and affront to the American people and their Government."[82] Every Federalist opposed the resolution. Josiah Quincy of Massachusetts declared that every word of it was a "falsehood," and that the adoption of it would call forth "severe retribution, perhaps in war" from Great Britain.[83]

Disheartened, disgusted, wrathful, Marshall wrote Quincy: "The Federalists of the South participate with their brethren of the North in the gloomy anticipations which your late elections must inspire. The proceedings of the House of Representatives already demonstrate the influence of those elections on the affairs of the Union. I had supposed that the late letter to Mr. Armstrong,[84] and the late seizure [by[Pg 25] the French] of an American vessel, simply because she was an American, added to previous burnings, ransoms, and confiscations, would have exhausted to the dregs our cup of servility and degradation; but these measures appear to make no impression on those to whom the United States confide their destinies. To what point are we verging?"[85]

Nor did the Chief Justice keep quiet in Richmond. "We have lost our resentment for the severest injuries a nation ever suffered, because of their being so often repeated. Nay, Judge Marshall and Mr. Pickering & Co. found out Great Britain had given us no cause of complaint,"[86] writes John Tyler. And ever nearer drew the inevitable conflict.

Jackson was unabashed by the condemnation of Congress, and not without reason. Wherever he went, more invitations to dine than he could accept poured in upon him from the "best families"; banquets were given in his honor; the Senate of Massachusetts adopted resolutions condemning the Administration and upholding Jackson, who declared that the State had "done more towards justifying me to the world than it was possible ... that I or any other person could do."[87] The talk of secession grew.[88] At[Pg 26] a public banquet given Jackson, Pickering proposed the toast: "The world's last hope—Britain's fast-anchored isle!" It was greeted with a storm of cheers. Pickering's words sped over the country and became the political war cry of Federalism.[89] Marshall, who in Richmond was following "with anxiety" all political news, undoubtedly read it, and his letters show that Pickering's words stated the opinion of the Chief Justice.[90]

Upon the assurance of the French Foreign Minister that the Berlin and Milan Decrees would be revoked after November 1, 1810, President Madison, on November 2, announced what he believed to be Napoleon's settled determination, and recommended the resumption of commercial relations with France and the suspension of all intercourse with Great Britain unless that Power also withdrew its injurious and offensive Orders in Council.[91]

When at Washington, Marshall was frequently in[Pg 27] Pickering's company. Before the Chief Justice left for Richmond, the Massachusetts Senator had lent him pamphlets containing part of John Adams's "Cunningham Correspondence." In returning them, Marshall wrote that he had read Adams's letters "with regret." But the European war, rather than the "Cunningham Correspondence," was on the mind of the Chief Justice: "We are looking with anxiety towards the metropolis for political intelligence. Report gives much importance to the communications of Serrurier [the new French Minister],[92] & proclaims him to be charged with requisitions on our government, a submission to which would seem to be impossible.... I will flatter myself that I have not seen you for the last time. Events have so fully demonstrated the correctness of your opinions on subjects the most interesting to our country that I cannot permit myself to believe the succeeding legislature of Massachusetts will deprive the nation of your future services."[93]

As the Federalist faith in Great Britain grew stronger, Federalist distrust of the youthful and growing American people increased. Early in 1811, the bill to admit Louisiana was considered. The Federalists violently resisted it. Josiah Quincy declared that "if this bill passes, the bonds of this Union are virtually dissolved; that the States which compose it are free from their moral obligations, and that, as it will be the right of all, so it will be the duty of some, to prepare definitely for a separation[Pg 28]—amicably if they can, violently if they must."[94] Quincy was the embodiment of the soul of Localism: "The first public love of my heart is the Commonwealth of Massachusetts. There is my fireside; there are the tombs of my ancestors."[95]

The spirit of American Nationalism no longer dwelt in the breasts of even the youngest of the Federalist leaders. Its abode now was the hearts of the people of the West and South; and its strongest exponent was a young Kentuckian, Henry Clay, whose feelings and words were those of the heroic seventies. Although but thirty-three years old, he had been appointed for the second time to fill an unexpired term in the National Senate. On February 22, 1810, he addressed that body on the country's wrongs and duty: "Have we not been for years contending against the tyranny of the ocean?" We have tried "peaceful resistance.... When this is abandoned without effect, I am for resistance by the sword."[96] Two years later, in the House, to which he was elected immediately after his term in the Senate expired, and of which he was promptly chosen Speaker, Clay again made an appeal to American patriotism: "The real cause of British aggression was not to distress an enemy, but to destroy a rival!"[97][Pg 29] he passionately exclaimed. Another Patrick Henry had arisen to lead America to a new independence.

Four other young Representatives from the West and South, John C. Calhoun, William Lowndes, Langdon Cheves, and Felix Grundy were as hot for war as was Henry Clay.[98]

Clay's speeches, extravagant, imprudent, and grandiose, had at least one merit: they were thoroughly American and expressed the opinion of the first generation of Americans that had grown up since the colonies won their freedom. Henry Clay spoke their language. But it was not the language of the John Marshall of 1812.

Eventually the Administration was forced to act. On June 1, 1812, President Madison sent to Congress his Message which briefly, and with moderation, stated the situation.[99] On June 4, the House passed a bill declaring war on Great Britain. Every Federalist but three voted against it.[100] The Senate[Pg 30] made unimportant amendments which the House accepted;[101] and thus, on June 18, war was formally declared.

At the Fourth of July banquet of the Boston Federalists, among the toasts, by drinking to which the company exhilarated themselves, was this sentiment: "The Existing War—The Child of Prostitution, may no American acknowledge it legitimate."[102] Joseph Story was profoundly alarmed: "I am thoroughly convinced," he wrote, "that the leading Federalists meditate a severance of the Union."[103] His apprehension was justified: "Let the Union be severed. Such a severance presents no terrors to me," wrote the leading Federalist of New England.[104]

While opposition to the war thus began to blaze into open and defiant treason in that section,[105] the[Pg 31] old-time Southern Federalists, who detested it no less, sought a more practical, though more timid, way to resist and end it. "Success in this War, would most probably be the worst kind of ruin," wrote Benjamin Stoddert to the sympathetic James McHenry. "There is but one way to save our Country ... change the administration—... this can be affected by bringing forward another Virgn. as the competitor of Madison." For none but a Virginian can get the Presidential electors of that State, said Stoddert.

"There is, then, but one man to be thought of as the candidate of the Federalists and of all who were against the war. That man is John Marshall." Stoddert informs McHenry that he has written an article for a Maryland Federalist paper, the Spirit of Seventy-Six, recommending Marshall for President. "This I have done, because ... every body else ... seems to be seized with apathy ... and because I felt it sacred duty."[106]

Stoddert's newspaper appeal for Marshall's nomination was clear, persuasive, and well reasoned. It opened with the familiar Federalist arguments against the war. It was an "offensive war," which meant the ruin of America. "Thus thinking ... I feel it a solemn duty to my countrymen, to name John Marshall, as a man as highly gifted as any other in the United States, for the important office of Chief Magistrate; and more likely than any other to com[Pg 32]mand the confidence, and unite the votes of that description of men, of all parties, who desire nothing from government, but that it should be wisely and faithfully administered....

"The sterling integrity of this gentleman's character and his high elevation of mind, forbid the suspicion, that he could descend to be a mere party President, or less than the President of the whole people:—but one objection can be urged against him by candid and honorable men: He is a Virginian, and Virginia has already furnished more than her full share of Presidents—This objection in less critical times would be entitled to great weight; but situated as the world is, and as we are, the only consideration now should be, who amongst our ablest statesmen, can best unite the suffrages of the citizens of all parties, in a competition with Mr. Madison, whose continuance in power is incompatible with the safety of the nation?...

"It may happen," continues Stoddert, "that this our beloved country may be ruined for want of the services of the great and good man I have been prompted by sacred duty to introduce, from the mere want of energy among those of his immediate countrymen [Virginians], who think of his virtues and talents as I do; and as I do of the crisis which demands their employment.

"If in his native state men of this description will act in concert, & with a vigor called for by the occasion, and will let the people fairly know, that the contest is between John Marshall, peace, and a new order of things; and James Madison, Albert Gallatin[Pg 33] and war, with war taxes, war loans, and all the other dreadful evils of a war in the present state of the world, my life for it they will succeed, and by a considerable majority of the independent votes of Virginia."

Stoddert becomes so enthusiastic that he thinks victory possible without the assistance of Marshall's own State: "Even if they fail in Virginia, the very effort will produce an animation in North Carolina, the middle and Eastern states, that will most probably secure the election of John Marshall. At the worst nothing can be lost but a little labour in a good cause, and everything may be saved, or gained for our country." Stoddert signs his plea "A Maryland Farmer."[107]

In his letter to McHenry he says: "They vote for electors in Virga. by a general ticket, and I am thoroughly persuaded that if the men in that State, who prefer Marshall to Madison, can be animated into Exertion, he will get the votes of that State. What little I can do by private letters to affect this will be done." Stoddert had enlisted one John Davis, an Englishman—writer, traveler, and generally a rolling stone—in the scheme to nominate Marshall. Davis, it seems, went to Virginia on this mission. After investigating conditions in that State, he had informed Stoddert "that if the Virgns. have nerve to believe it will be agreeable to the Northern & E. States, he is sure Marshall will get the Virga. votes."[108][Pg 34]

Stoddert dwells with the affection and anxiety of parentage upon his idea of Marshall for President: "It is not because I prefer Marshall to several other men, that I speak of him—but because I am well convinced it is vain to talk of any other man, and Marshall is a Man in whom Fedts. may confide—Perhaps indeed he is the man for the crisis, which demands great good sense, a great firmness under the garb of great moderation." He then urges McHenry to get to work for Marshall—"support a cause [election of a peace President] on which all that is dear to you depends."[109] Stoddert also wrote two letters to William Coleman of New York, editor of the New York Evening Post, urging Marshall for the Presidency.[110]

Twelve days after Stoddert thus instructed McHenry, Marshall wrote strangely to Robert Smith of Maryland. President Madison had dismissed Smith from the office of Secretary of State for inefficiency in the conduct of our foreign affairs and for intriguing with his brother, Senator Samuel Smith, and others against the Administration's foreign[Pg 35] policy.[111] Upon his ejection from the Cabinet, Smith proceeded to "vindicate" himself by publishing a dull and pompous "Address" in which he asserted that we must have a President "of energetic mind, of enlarged and liberal views, of temperate and dignified deportment, of honourable and manly feelings, and as efficient in maintaining, as sagacious in discerning the rights of our much-injured and insulted country."[112] This was a good summary of Marshall's qualifications.

When Stoddert proposed Marshall for the Presidency, Smith wrote the Chief Justice, enclosing a copy of his attack on the Administration. On July 27, 1812, more than five weeks after the United States had declared war, Marshall replied: "Although I have for several years forborn to intermingle with those questions which agitate & excite the feelings of party, it is impossible that I could be inattentive to passing events, or an unconcerned observer of them." But "as they have increased in their importance, the interest, which as an American I must take in them, has also increased; and the declaration of war has appeared to me, as it has to you, to be one of those portentous acts which ought to concentrate on itself the efforts of all those who can take an active part in rescuing their country from the ruin it threatens.

"All minor considerations should be waived; the lines of subdivision between parties, if not absolutely effaced, should at least be convened for a time;[Pg 36] and the great division between the friends of peace & the advocates of war ought alone to remain. It is an object of such magnitude as to give to almost every other, comparative insignificance; and all who wish peace ought to unite in the means which may facilitate its attainment, whatever may have been their differences of opinion on other points."[113]

Marshall proceeds to analyze the causes of hostilities. These, he contends, were Madison's subserviency to France and the base duplicity of Napoleon. The British Government and American Federalists had, from the first, asserted that the Emperor's revocation of the Berlin and Milan Decrees was a mere trick to entrap that credulous French partisan, Madison; and this they maintained with ever-increasing evidence to support them. For, in spite of Napoleon's friendly words, American ships were still seized by the French as well as by the British.

In response to the demand of Joel Barlow, the new American Minister to France, for a forthright statement as to whether the obnoxious decrees against neutral commerce had or had not been revoked as to the United States, the French Foreign Minister delivered to Barlow a new decree. This document, called "The Decree of St. Cloud," declared that the former edicts of Napoleon, of which the American Government complained, "are definitively, and to date from the 1st day of November last [1810], considered as not having existed [non avenus] in regard to American vessels." The "decree" was dated April 28,[Pg 37] 1811, yet it was handed to Barlow on May 10, 1812. It expressly stated, moreover, that Napoleon issued it because the American Congress had, by the Act of May 2, 1811, prohibited "the vessels and merchandise of Great Britain ... from entering into the ports of the United States."[114]

General John Armstrong, the American Minister who preceded Barlow, never had heard of this decree; it had not been transmitted to the French Minister at Washington; it had not been made public in any way. It was a ruse, declared the Federalists when news of it reached America—a cheap and tawdry trick to save Madison's face, a palpable falsehood, a clumsy afterthought. So also asserted Robert Smith, and so he wrote to the Chief Justice.

Marshall agreed with the fallen Baltimore politician. Continuing his letter to Smith, the longest and most unreserved he ever wrote, except to Washington and to Lee when on the French Mission,[115] the Chief Justice said: "The view you take of the edict purporting to bear date of the 28tḥ of April 1811 appears to me to be perfectly correct ... I am astonished, if in these times any thing ought to astonish, that the same impression is not made on all." Marshall puts many questions based on dates, for the purpose of exposing the fraudulent nature of the French decree and continues:

"Had France felt for the United States any portion of that respect to which our real importance entitles us, would she have failed to give this proof of it? But[Pg 38] regardless of the assertion made by the President in his Proclamation of the 2 of Nov 1810, regardless of the communications made by the Executive to the Legislature, regardless of the acts of Congress, and regardless of the propositions which we have invariably maintained in our diplomatic intercourse with Great Britain, the Emperor has given a date to his decree, & has assigned a motive for its enactment, which in express terms contradict every assertion made by the American nation throughout all the departments of its government, & remove the foundation on which its whole system has been erected.

"The motive for this offensive & contemptuous proceeding cannot be to rescue himself from the imputation of continuing to enforce his decrees after their formal repeal because this imputation is precisely as applicable to a repeal dated the 28tḥ of April 1811 as to one dated the 1st of November 1810, since the execution of those decrees has continued after the one date as well as after the other. Why then is this obvious fabrication such as we find it? Why has M Barlow been unable to obtain a paper which might consult the honor & spare the feelings of his government? The answer is not to be disguised. Bonaparte does not sufficiently respect us to exhibit for our sake, to France, to America, to Britain, or to the world, any evidence of his having receded one step from the position he had taken.

"He could not be prevailed on, even after we had done all he required, to soften any one of his acts so far as to give it the appearance of his having advanced one step to meet us. That this step, or rather[Pg 39] the appearance of having taken it, might save our reputation was regarded as dust in the balance. Even now, after our solemn & repeated assertions that our discrimination between the belligerents is founded altogether on a first advance of France—on a decisive & unequivocal repeal of all her obnoxious decrees; after we have engaged in a war of the most calamitous character, avowedly, because France had repealed those decrees, the Emperor scorns to countenance the assertion or to leave it uncontradicted.

"He avers to ourselves, to our selected enemy, & to the world, that, whatever pretexts we may assign for our conduct, he has in fact ceded nothing, he has made no advance, he stands on his original ground & we have marched up to it. We have submitted, completely submitted; & he will not leave us the poor consolation of concealing that submission from ourselves. But not even our submission has obtained relief. His cruizers still continue to capture, sink, burn & destroy.

"I cannot contemplate this subject without excessive mortification as well at the contempt with which we are treated as at the infatuation of my countrymen. It is not however for me to indulge these feelings though I cannot so entirely suppress them as not sometimes though rarely to allow them a place in a private letter." Marshall assures Smith that he has "read with attention and approbation" the paper sent him and will see to its "republication."[116]

[Pg 40]

From reading Marshall's letter without a knowledge of the facts, one could not possibly infer that America ever had been wronged by the Power with which we were then at war. All the strength of his logical and analytical mind is brought to bear upon the date and motives of Napoleon's last decree. He wrote in the tone and style, and with the controversial ability of his state papers, when at the head of the Adams Cabinet. But had the British Foreign Secretary guided his pen, his indictment of France and America could not have been more unsparing. His letter to Smith was a call to peace advocates and British partisans to combine to end the war by overthrowing the Administration.

This unfortunate letter was written during the long period between the adjournment of the Supreme Court in March, 1812, and its next session in February of the following year. Marshall's sentiments are in sharp contrast with those of Joseph Story, whose letters, written from his Massachusetts home, strongly condemn those who were openly opposing the war. "The present," he writes, "was the last occasion which patriotism ought to have sought to create divisions."[117]

Apparently the Administration did not know of Marshall's real feelings. Immediately after the declaration of war, Monroe, who succeeded Smith as Secretary of State, had sent his old personal friend,[Pg 41] the Chief Justice, some documents relating to the war. If Marshall had been uninformed as to the causes that drove the United States to take militant action, these papers supplied that information. In acknowledging receipt of them, he wrote Monroe:

"On my return to day from my farm where I pass a considerable portion of my time in laborious relaxation, I found a copy of the message of the President of the 1st inst accompanied by the report of the Committee of foreign relations & the declaration of war against Great Britain, under cover from you.

"Permit me to subjoin to my thanks for this mark of your attention my fervent wish that this momentous measure may, in its operation on the interest & honor of our country, disappoint only its enemies. Whether my prayer be heard or not I shall remain with respectful esteem," etc.[118]

Cold as this letter was, and capable as it was of double interpretation, to the men sorely pressed by the immediate exigencies of combat, it gave no inkling that the Chief Justice of the United States was at that very moment not only in close sympathy with the peace party, but was actually encouraging that party in its efforts to end the war.[119]

Just at this time, Marshall must have longed for seclusion, and, by a lucky chance, it was afforded him. One of the earliest and most beneficial effects of the Non-Importation, Embargo, and Non-Inter[Pg 42]course laws that preceded the war, was the heavily increased migration from the seaboard States to the territories beyond the Alleghanies. The dramatic story of Burr's adventures and designs had reached every ear and had turned toward the Western country the eyes of the poor, the adventurous, the aspiring; already thousands of settlers were taking up the new lands over the mountains. Thus came a practical consideration of improved means of travel and transportation. Fresh interest in the use of waterways was given by Fulton's invention, which seized upon the imagination of men. The possibilities of steam navigation were in the minds of all who observed the expansion of the country and the growth of domestic commerce.

Before the outbreak of war, the Legislature of Virginia passed an act appointing commissioners "for the purpose of viewing certain rivers within this Commonwealth,"[120] and Marshall was made the head of this body of investigators. Nothing could have pleased him more. It was practical work on a matter that interested him profoundly, and the renewal of a subject which he had entertained since his young manhood.[121]

This tour of observation promised to be full of va[Pg 43]riety and adventure, tinged with danger, into forests, over mountains, and along streams and rivers not yet thoroughly explored. For a short time Marshall would again live over the days of his boyhood. Most inviting of all, he would get far away from talk or thought of the detested war. Whether the Presidential scheming in his behalf bore fruit or withered, his absence in the wilderness was an ideal preparation to meet either outcome.

In his fifty-seventh year Marshall set out at the head of the expedition, and a thorough piece of work he did. With chain and spirit level the route was carefully surveyed from Lynchburg to the Ohio. Sometimes progress was made slowly and with the utmost labor. In places the scenes were "awful and discouraging."

The elaborate report which the commission submitted to the Legislature was written by Marshall. It reads, says the surveyor of this division of the Chesapeake and Ohio Railway,[122] "as an account of that survey of 1869, when I pulled a chain down the rugged banks of New River." Practicable sections were accurately pointed out and the methods by which they could best be utilized were recommended with particular care.

Marshall's report is alive with far-seeing and statesmanlike suggestions. He thinks, in 1812, that steamboats can be run successfully on the New River, but fears that the expense will be too great. The[Pg 44] velocity of the current gives him some anxiety, but "the currents of the Hudson, of the Mohawk, and of the Mississippi, are very strong; and ... a practice so entirely novel as the use of steam in navigation, will probably receive great improvement."

The expense of the undertaking must, he says, depend on the use to be made of the route. Should the intention be only to assist the local traffic of the "upper country down the James river," the expense would not be great. But, "if the views of the legislature shall extend to a free commercial intercourse with the western states," the route must compete with others then existing "or that may be opened." In that case "no improvement ought to be undertaken but with a determination to make it complete and effectual." If this were done, the commerce of Kentucky, Ohio, and even a part of Southwestern Pennsylvania would pour through Virginia to the Atlantic States. This was a rich prize which other States were exerting themselves to capture. Moreover, such "commercial intercourse" would bind Virginia to the growing West by "strong ties" of "friendly sentiments," and these were above price. "In that mysterious future which is in reserve, and is yet hidden from us, events may occur to render" such a community of interest and mutual regard "too valuable to be estimated in dollars and cents."

Marshall pictures the growth of the West, "that extensive and fertile country ... increasing in wealth and population with a rapidity which baffles calculation." Not only would Virginia profit by opening a great trade route to the West, but the Nation[Pg 45] would be vastly benefited. "Every measure which tends to cement more closely the union of the eastern with the western states" would be invaluable to the whole country. The military uses of "this central channel of communication" were highly important: "For the want of it, in the course of the last autumn, government was reduced to the necessity of transporting arms in waggons from Richmond to the falls of the Great Kanawha," and "a similar necessity may often occur."[123]

When Marshall returned to Richmond, he found the country depressed and in turmoil. The war had begun dismally for the Americans. Our want of military equipment and training was incredible and assured those disasters that quickly fell upon us. The Federalist opposition to the war grew ever bolder, ever more bitter. The Massachusetts House of Representatives issued an "Address" to the people, urging the organization of a "peace party," adjuring "loud and deep ... disapprobation of this war," and demanding that nobody enlist in the army.[124] Pamphlets were widely circulated, abusing the American Government and upholding the British cause. The ablest of these, "Mr. Madison's War," was by John Lowell of Boston.

The President, he said, "impelled" Congress to declare an "offensive" war against Great Britain. Madison was a member of "the French party." British impressment was the pursuance of a sound policy; the British doctrine—once a British subject,[Pg 46] always a British subject—was unassailable. The Orders in Council were just; the execution of them "moderation" itself. On every point, in short, the British Government was right; the French, diabolical; the American, contemptible and wrong. How trivial America's complaints, even if there was a real basis for them, in view of Great Britain's unselfish struggle against "the gigantic dominion of France."

If that Power, "swayed" by that satanic genius, Napoleon, should win, would she not take Nova Scotia, Canada, Louisiana, the Antilles, Florida, South America? After these conquests, would not the United States, "the only remaining republic," be conquered. Most probably. What then ought America to do?" In war offensive and unjust, the citizens are not only obliged not to take part, but by the laws of God, and of civil society, they are bound to abstain." What were the rights of citizens in war-time? To oppose the war by tongue and pen, if they thought the war to be wrong, and to refuse to serve if called "contrary to the Constitution."[125]

Such was the Federalism of 1812-15, such the arguments that would have been urged for the election of Marshall had he been chosen as the peace candidate. But the peace Republicans of New York nominated the able, cunning, and politically corrupt[Pg 47] De Witt Clinton; and this man, who had assured the Federalists that he favored an "honourable peace" with England,[126] was endorsed by a Federalist caucus as the anti-war standard-bearer,[127] though not without a swirl of acrimony and dissension.

But for the immense efforts of Clinton to secure the nomination, and the desire of the Federalists and all conservatives that Marshall should continue as Chief Justice,[128] it is possible that he might have been named as the opponent of Madison in the Presidential contest of 1812. "I am far enough from desiring Clinton for President of the United States," wrote Pickering in the preceding July; "I would infinitely prefer another Virginian—if Judge Marshall could be the man."[129]

Marshall surely would have done better than Clinton, who, however, carried New York, New Jersey, Delaware, Maryland, and all the New England States except Vermont. The mercantile classes would have rallied to Marshall's standard more enthusiastically than to Clinton's. The lawyers generally would have worked hard for him. The Federalists, who accepted Clinton with repugnance, would have exerted themselves to the utmost for Marshall, the ideal representative of Federalism. He was personally very strong in North Carolina; the capture of Pennsylvania might have been possible;[130] Vermont might have given him her votes.[Pg 48]

The Federalist resistance to the war grew more determined as the months wore on. Throughout New England the men of wealth, nearly all of whom were Federalists, declined to subscribe to the Government loans.[131] The Governors of the New England States refused to aid the National Government with the militia.[132] In Congress the Federalists were obstructing war measures and embarrassing the Government in every way their ingenuity could devise. One method was to force the Administration to tell the truth about Napoleon's pretended revocation of his obnoxious decree. A resolution asking the President to inform the House "when, by whom, and in what manner, the first intelligence was given to this Government" of the St. Cloud Decree, was offered by Daniel Webster,[133] who had been elected to Congress from New Hampshire as the fiercest youthful antagonist of the war in his State.[134] The Republicans agreed, and Webster's resolution was passed by a vote of 137 yeas to only 26 nays.[135]

In compliance the President transmitted a long report. It was signed by the Secretary of State, James Monroe, but bears the imprint of Madison's lucid mind. The report states the facts upon which Congress was compelled to declare war and demonstrates[Pg 49] that the Decree of St. Cloud had nothing to do with our militant action, since it was not received until more than a month after our declaration of war. Then follow several clear and brilliant paragraphs setting forth the American view of the causes and purposes of the war.[136]

Timothy Pickering was not now in the Senate. The Republican success in Massachusetts at the State election of 1810 had given the Legislature to that party,[137] and the pugnacious Federalist leader was left at home. There he raged and intrigued and wrote reams of letters. Monroe's report lent new fury to his always burning wrath, and he sent that document, with his malediction upon it, to John Marshall at Richmond. In reply the Chief Justice said that the report "contains a labored apology for France but none for ourselves. It furnishes no reason for our tame unmurmuring acquiescence under the double insult of withholding this paper [Decree of St. Cloud] from us & declaring in our face that it has been put in our possession.

"The report is silent on another subject of still deeper interest. It leaves unnoticed the fact that the Berlin & Milan decrees were certainly not repealed by that insidious decree of April since it had never been communicated to the French courts and cruizers, & since their cruizers had at a period subsequent to the pretended date of that decree received orders[Pg 50] to continue to execute the offensive decrees on American vessels.

"The report manifests no sensibility at the disgraceful circumstances which tend strongly to prove that this paper was fabricated to satisfy the importunities of Mr. Barlow, was antedated to suit French purposes; nor at the contempt manifested for the feelings of Americans and their government, by not deigning so to antedate it as to save the credit of our Administration by giving some plausibility to their assertion that the repeal had taken place on the 1st of Novr—But this is a subject with which I dare not trust myself."

The plight of the American land forces, the splendid and unrivaled victories of the American Navy, apparently concerned Marshall not at all. His eyes were turned toward Europe; his ears strained to catch the sounds from foreign battle-fields.

"I look with anxious solicitude—with mingled hope & fear," he continues, "to the great events which are taking place in the north of Germany. It appears probable that a great battle will be fought on or near the Elbe & never had the world more at stake than will probably depend on that battle.

"Your opinions had led me to hope that there was some prospect for a particular peace for ourselves. My own judgement, could I trust it, would tell me that peace or war will be determined by the events in Europe."[138]

Tim Pickering Tim Pickering

[Pg 51]

The "great battle" which Marshall foresaw had been fought nearly eight weeks before his letter was written. Napoleon had been crushingly defeated at Leipzig in October, 1813, and the British, Prussian, and other armies which Great Britain had combined against him, were already invading France. When, later, the news of this arrived in America, it was hailed by the Federalists with extravagant rejoicings.[139]

Secession, if the war were continued, now became the purpose of the more determined Federalist leaders. It was hopeless to keep up the struggle, they said. The Administration had precipitated hostilities without reason or right, without conscience or sense.[140] The people never had favored this wretched conflict; and now the tyrannical Government, failing to secure volunteers, had resorted to conscription—an "infamous" expedient resorted to in brutal violation of the Constitution.[141] So came the Hartford[Pg 52] Convention which the cool wisdom of George Cabot saved from proclaiming secession.[142]

Of the two pretenses for war against Great Britain, the Federalists alleged that one had been removed even before we declared war, and that only the false and shallow excuse of British impressment of American seamen remained. Madison and Monroe recognized this as the one great remaining issue, and an Administration pamphlet was published asserting the reason and justice of the American position. This position was that men of every country have a natural right to remove to another land and there become citizens or subjects, entitled to the protection of the government of the nation of their adoption. The British principle, on the contrary, was that British subjects could never thus expatriate themselves, and that, if they did so, the British Government could seize them wherever found, and by force compel them to serve the Empire in any manner the Government chose to direct.

Monroe's brother-in-law, George Hay, still the United States Attorney for the District of Virginia, was selected to write the exposition of the American[Pg 53] view. It seems probable that his manuscript was carefully revised by Madison and Monroe, and perhaps by Jefferson.[143] Certainly Hay stated with singular precision the views of the great Republican triumvirate. The pamphlet was entitled "A Treatise on Expatriation." He began: "I hold in utter reprobation the idea that a man is bound by an obligation, permanent and unalterable, to the government of a country which he has abandoned and his allegiance to which he has solemnly adjured."[144]

Immediately John Lowell answered.[145] Nothing keener and more spirited ever came from the pen of that gifted man. "The presidential pamphleteer," as Lowell called Hay, ignored the law. The maxim, once a subject always a subject, was as true of America as of Britain. Had not Ellsworth, when Chief Justice, so decided in the famous case of Isaac Williams?[146] Yet Hay sneered at the opinion of that distinguished jurist.[147]

Pickering joyfully dispatched Lowell's brochure to Marshall, who lost not a moment in writing of his admiration. "I had yesterday the pleasure of receiv[Pg 54]ing your letter of the 8th accompanying Mr Lowell's very masterly review of the treatise on expatriation. I have read it with great pleasure, & thank you very sincerely for this mark of your recollection.

"Could I have ever entertained doubts on the subject, this review would certainly have removed them. Mingled with much pungent raillery is a solidity of argument and an array of authority which in my judgement is entirely conclusive. But in truth it is a question upon which I never entertained a scintilla of doubt; and have never yet heard an argument which ought to excite a doubt in any sound and reflecting mind. It will be to every thinking American a most afflicting circumstance, should our government on a principle so completely rejected by the world proceed to the execution of unfortunate, of honorable, and of innocent men."[148]

Astonishing and repellent as these words now appear, they expressed the views of every Federalist lawyer in America. The doctrine of perpetual allegiance was indeed then held and practiced by every government except our own,[149] nor was it rejected by the United States until the Administration became Republican. Marshall, announcing the opinion of the Supreme Court in 1804, had held that an alien could take lands in New Jersey because he had lived in that State when, in 1776, the Legislature passed a law making all residents citizens.[150] Thus he had declared that an American citizen did not cease to be[Pg 55] such because he had become the subject of a foreign power. Four years later, in another opinion involving expatriation, he had stated the law to be that a British subject, born in England before 1775, could not take, by devise, lands in Maryland, the statute of that State forbidding aliens from thus acquiring property there.[151] In both these cases, however, Marshall refrained from expressly declaring in terms against the American doctrine.

Even as late as 1821 the Chief Justice undoubtedly retained his opinion that the right of expatriation did not exist,[152] although he did not say so in express terms. But in Marshall's letter on Lowell's pamphlet he flatly avows his belief in the principle of perpetual allegiance, any direct expression on which he so carefully avoided when deciding cases involving it.

Thus the record shows that John Marshall was as bitterly opposed to the War of 1812 as was Pickering or Otis or Lowell. So entirely had he become one of "the aristocracy of talents of reputation, & of property," as Plumer, in 1804, had so accurately styled the class of which he himself was then a member,[153] that Marshall looked upon all but one subject then before the people with the eyes of confirmed reaction. That subject was Nationalism. To that supreme cause he was devoted with all the passion of his deep and powerful nature; and in the service of that cause he was soon to do much more than he had already performed.[Pg 56]

Our second war with Great Britain accomplished none of the tangible and immediate objects for which it was fought. The British refused to abandon "the right" of impressment; or to disclaim the British sovereignty of the oceans whenever they chose to assert it; or to pay a farthing for their spoliation of American commerce. On the other hand, the British did not secure one of their demands.[154] The peace treaty did little more than to end hostilities.

But the war achieved an inestimable good—it de-Europeanized America. It put an end to our thinking and feeling only in European terms and emotions. It developed the spirit of the new America, born since our political independence had been achieved, and now for the first time emancipated from the intellectual and spiritual sovereignty of the Old World. It had revealed to this purely American generation a consciousness of its own strength; it could exult in the fact that at last America had dared to fight.

The American Navy, ship for ship, officer for officer, man for man, had proved itself superior to the British Navy, the very name of which had hitherto been mentioned only in terror or admiration of its unconquerable might. In the end, raw and untrained American troops had beaten British regulars. American riflemen of the West and South had[Pg 57] overwhelmed the flower of all the armies of Europe. An American frontier officer, Andrew Jackson, had easily outwitted some of Great Britain's ablest and most experienced professional generals. In short, on land and sea America had stood up to, had really beaten, the tremendous Power that had overthrown the mighty Napoleon.

Such were the feelings and thoughts of that Young America which had come into being since John Marshall had put aside his Revolutionary uniform and arms. And in terms very much like those of the foregoing paragraph the American people generally expressed their sentiments.

Moreover, the Embargo, the Non-Intercourse and Non-Importation Acts, the British blockades, the war itself, had revolutionized the country economically and socially. American manufacturing was firmly established. Land travel and land traffic grew to proportions never before imagined, never before desired. The people of distant sections became acquainted.

The eyes of all Americans, except those of the aged or ageing, were turned from across the Atlantic Ocean toward the boundless, the alluring West—their thoughts diverted from the commotions of Europe and the historic antagonism of foreign nations, to the economic conquest of a limitless and virgin empire and to the development of incalculable and untouched resources, all American and all their own.

The migration to the West, which had been increasing for years, now became almost a folk movement. The Eastern States were drained of their[Pg 58] young men and women. Some towns were almost depopulated.[155] And these hosts of settlers carried into wilderness and prairie a spirit and pride that had not been seen or felt in America since the time of the Revolution. But their high hopes were to be quickly turned into despair, their pride into ashes; for a condition was speedily to develop that would engulf them in disaster. It was this situation which was to call forth some of the greatest of Marshall's Constitutional opinions. This forbidding future, however, was foreseen by none of that vast throng of home-seekers crowding every route to the "Western Country," in the year of 1815. Only the rosiest dreams were theirs and the spirited consciousness that they were Americans, able to accomplish all things, even the impossible.

It was then a new world in which John Marshall found himself, when, in his sixtieth year, the war which he so abhorred came to an end. A state of things surrounded him little to his liking and yet soon to force from him the exercise of the noblest judicial statesmanship in American history. From the extreme independence of this new period, the intense and sudden Nationalism of the war, the ideas of local sovereignty rekindled by the New England Federalists at the dying fires that Jefferson and the Republicans had lighted in 1798, and from the play of conflicting interests came a reaction against Nationalism which it was Marshall's high mission to check and to turn into channels of National power, National safety, and National well-being.


[1] "The navy of Britain is our shield." (Pickering: Open Letter [Feb. 16, 1808] to Governor James Sullivan, 8; infra, 5, 9-10, 25-26, 45-46.)

[2] Diary and Letters of Gouverneur Morris: Morris, ii, 548.

[3] Jefferson to D'Ivernois, Feb. 6, 1795, Works of Thomas Jefferson: Ford, viii, 165.

[4] Jefferson to Short, Jan. 3, 1793, ib. vii, 203; same to Mason, Feb. 4, 1791, ib. vi, 185.

[5] See vol. ii, 354, of this work.

[6] Ib. 133-39.

[7] The Fairfax transaction.

[8] The phrase used by the Federalists to designate the opponents of democracy.

[9] See vol. ii, 24-27, 92-96, 106-07, 126-28, of this work.

[10] Ames to Dwight, Oct. 31, 1803, Works of Fisher Ames: Ames, i, 330; and see Ames to Gore, Nov. 16, 1803, ib. 332; also Ames to Quincy, Feb. 12, 1806, ib. 360.

[11] Rutledge to Otis, July 29, 1806, Morison: Life and Letters of Harrison Gray Otis, i, 282.

[12] The student should examine the letters of Federalists collected in Henry Adams's New-England Federalism; those in the Life and Correspondence of Rufus King; in Lodge's Life and Letters of George Cabot; in the Works of Fisher Ames and in Morison's Otis.

[13] See Adams: History of the United States, iv, 29.

[14] Once in a long while an impartial view was expressed: "I think myself sometimes in an Hospital of Lunaticks, when I hear some of our Politicians eulogizing Bonaparte because he humbles the English; & others worshipping the latter, under an Idea that they will shelter us, & take us under the Shadow of their Wings. They would join, rather, to deal us away like Cattle." (Peters to Pickering, Feb. 4, 1807, Pickering MSS. Mass. Hist. Soc.)

[15] See Harrowby's Circular, Aug. 9, 1804, American State Papers, Foreign Relations, iii, 266.

[16] See Hawkesbury's Instructions, Aug. 17, 1805, ib.

[17] Fox to Monroe, April 8 and May 16, 1806, ib. 267.

[18] The Berlin Decree, Nov. 21, 1806, ib. 290-91.

[19] Orders in Council, Jan. 7 and Nov. 11, 1807, Am. State Papers, For. Rel. iii, 267-73; and see Channing: Jeffersonian System, 199.

[20] Dec. 17, 1807, Am. State Papers, For. Rel. iii, 290.

[21] Adams: U.S. v, 31.

[22] "England's naval power stood at a height never reached before or since by that of any other nation. On every sea her navies rode, not only triumphant, but with none to dispute their sway." (Roosevelt: Naval War of 1812, 22.)

[23] See Report, Secretary of State, July 6, 1812, Am. State Papers, For. Rel. iii, 583-85.

"These decrees and orders, taken together, want little of amounting to a declaration that every neutral vessel found on the high seas, whatsoever be her cargo, and whatsoever foreign port be that of her departure or destination, shall be deemed lawful prize." (Jefferson to Congress, Special Message, March 17, 1808, Works: Ford, xi, 20.)

"The only mode by which either of them [the European belligerents] could further annoy the other ... was by inflicting ... the torments of starvation. This the contending parties sought to accomplish by putting an end to all trade with the other nation." (Channing: Jeff. System, 169.)

[24] Theodore Roosevelt, who gave this matter very careful study, says that at least 20,000 American seamen were impressed. (Roosevelt, footnote to 42.)

"Hundreds of American citizens had been taken by force from under the American flag, some of whom were already lying beneath the waters off Cape Trafalgar." (Adams: U. S. iii, 202.)

See also Babcock: Rise of American Nationality, 76-77; and Jefferson to Crawford, Feb. 11, 1815, Works: Ford, XI, 451.

[25] See Channing: Jeff. System, 184-94. The principal works on the War of 1812 are, of course, by Henry Adams and by Alfred Mahan. But these are very extended. The excellent treatments of that period are the Jeffersonian System, by Edward Channing, and Rise of American Nationality, by Kendric Charles Babcock, and Life and Letters of Harrison Gray Otis, by Samuel Eliot Morison. The latter work contains many valuable letters hitherto unpublished.

[26] But see Jefferson to Madison, Aug. 27, 1805, Works: Ford, x, 172-73; same to Monroe, May 4, 1806, ib. 262-63; same to same, Oct. 26, 1806, ib. 296-97; same to Lincoln, June 25, 1806, ib. 272; also see Adams: U.S. iii, 75. While these letters speak of a temporary alliance with Great Britain, Jefferson makes it clear that they are merely diplomatic maneuvers, and that, if an arrangement was made, a heavy price must be paid for America's coöperation.

Jefferson's letters, in general, display rancorous hostility to Great Britain. See, for example, Jefferson to Paine, Sept. 6, 1807, Works: Ford, x, 493; same to Leib, June 23, 1808, ib. xi, 34-35; same to Meigs, Sept. 18, 1813, ib. 334-35; same to Monroe, Jan. 1, 1815, ib. 443.

[27] Jefferson to Dearborn, July 16, 1810, ib. 144.

[28] Annals, 9th Cong. 1st Sess. 1259-62; also see "An Act to Prohibit the Importation of Certain Goods, Wares, and Merchandise," chap. 29, 1806, Laws of the United States, iv, 36-38.

[29] See vol. iii, 475-76, of this work.

[30] Jefferson's Proclamation, July 2, 1807, Works: Ford, x, 434-47; and Messages and Papers of the Presidents: Richardson, i, 421-24.

[31] "This country has never been in such a state of excitement since the battle of Lexington." (Jefferson to Bowdoin, July 10, 1807, Works: Ford, x, 454; same to De Nemours, July 14, 1807, ib. 460.)

For Jefferson's interpretation of Great Britain's larger motive for perpetrating the Chesapeake crime, see Jefferson to Paine, Sept. 6, 1807, ib. 493.

[32] Adams: U.S. iv, 38.

[33] Lowell: Peace Without Dishonor—War Without Hope: by "A Yankee Farmer," 8. The author of this pamphlet was the son of one of the new Federal judges appointed by Adams under the Federalist Judiciary Act of 1801.

[34] See Peace Without Dishonor—War Without Hope, 39-40.

[35] Giles to Monroe, March 4, 1807; Anderson: William Branch Giles—A Study in the Politics of Virginia, 1790-1830, 108.

Thomas Ritchie, in the Richmond Enquirer, properly denounced the New England Federalist headquarters as a "hot-bed of treason." (Enquirer, Jan. 24 and April 4, 1809, as quoted by Ambler: Thomas Ritchie—A Study in Virginia Politics, 46.)

[36] Adams: U.S. iv, 41-44, 54.

[37] Jefferson to Leiper, Aug. 21, 1807, Works: Ford, x, 483-84.

Jefferson tenaciously clung to his prejudice against Great Britain: "The object of England, long obvious, is to claim the ocean as her domain.... We believe no more in Bonaparte's fighting merely for the liberty of the seas, than in Great Britain's fighting for the liberties of mankind." (Jefferson to Maury, April 25, 1812, ib. xi, 240-41.) He never failed to accentuate his love for France and his hatred for Napoleon.

[38] "During the present paroxysm of the insanity of Europe, we have thought it wisest to break off all intercourse with her." (Jefferson to Armstrong, May 2, 1808, ib. 30.)

[39] "Three alternatives alone are to be chosen from. 1. Embargo. 2. War. 3. Submission and tribute, &, wonderful to tell, the last will not want advocates." (Jefferson to Lincoln, Nov. 13, 1808, ib. 74.)

[40] See Act of December 22, 1807 (Annals, 10th Cong. 1st Sess. 2814-15); of January 9, 1808 (ib. 2815-17); of March 12, 1808 (ib. 2839-42); and of April 25, 1808 (ib. 2870-74); Treasury Circulars of May 6 and May 11, 1808 (Embargo Laws, 19-20, 21-22); and Jefferson's letter "to the Governours of Orleans, Georgia, South Carolina, Massachusetts and New Hampshire," May 6, 1808 (ib. 20-21).

Joseph Hopkinson sarcastically wrote: "Bless the Embargo—thrice bless the Presidents distribution Proclamation, by which his minions are to judge of the appetites of his subjects, how much food they may reasonably consume, and who shall supply them ... whether under the Proclamation and Embargo System, a child may be lawfully born without a clearing out at the Custom House." (Hopkinson to Pickering, May 25, 1808, Pickering MSS. Mass. Hist. Soc.)

[41] Professor Channing says that "the orders in council had been passed originally to give English ship-owners a chance to regain some of their lost business." (Channing: Jeff. System, 261.)

[42] Indeed, Napoleon, as soon as he learned of the American Embargo laws, ordered the seizure of all American ships entering French ports because their captains or owners had disobeyed these American statutes and, therefore, surely were aiding the enemy. (Armstrong to Secretary of State, April 23, postscript of April 25, 1808, Am. State Papers, For. Rel. iii, 291.)

[43] Morison: Otis, ii, 10-12; see also Channing: Jeff. System, 183.

[44] Annals, 10th Cong. 2d Sess. 22.

The intensity of the interest in the Embargo is illustrated by Giles's statement in his reply to Hillhouse that it "almost ... banish[ed] every other topic of conversation." (Ib. 94.)

[45] Four years earlier, Pickering had plotted the secession of New England and enlisted the support of the British Minister to accomplish it. (See vol. iii, chap. vii, of this work.) His wife was an Englishwoman, the daughter of an officer of the British Navy. (Pickering and Upham: Life of Timothy Pickering, i, 7; and see Pickering to his wife, Jan. 1, 1808, ib. iv, 121.) His nephew had been Consul-General at London under the Federalist Administrations and was at this time a merchant in that city. (Pickering to Rose, March 22, 1808, New-England Federalism: Adams, 370.) Pickering had been, and still was, carrying on with George Rose, recently British Minister to the United States, a correspondence all but treasonable. (Morison: Otis, ii, 6.)

[46] Annals, 10th Cong. 2d Sess. 175, 177-78.

[47] Annals, 10th Cong. 2d Sess. 193.

[48] Ib. 279-82.

[49] Marshall to Pickering, Dec. 19, 1808, Pickering MSS. Mass. Hist. Soc.

[50] See vol. ii, 509-14, of this work.

[51] Morison: Otis, ii, 3-4.

[52] "The tories of Boston openly threaten insurrection." (Jefferson to Dearborn, Aug. 9, 1808, Works: Ford, xi, 40.) And see Morison: Otis, ii, 6; Life and Correspondence of Rufus King: King, v, 88; also see Otis to Quincy, Dec. 15, 1808, Morison: Otis, ii, 115.

[53] Monroe to Taylor, Jan. 9, 1809, Branch Historical Papers, June, 1908, 298.

[54] Adams to Rush, July 25, 1808, Old Family Letters, 191-92.

[55] Annals, 10th Cong. 2d Sess. iii, 1798-1804.

[56] Morison: Otis, ii, 10. These resolutions denounced "'all those who shall assist in enforcing on others the arbitrary & unconstitutional provisions of this [Force Act]' ... as 'enemies to the Constitution of the United States and of this State, and hostile to the Liberties of the People.'" (Boston Town Records, 1796-1813, as quoted in ib.; and see McMaster: History of the People of the United States, iii, 328.)

[57] McMaster, iii, 329.

[58] McMaster, iii, 329-30; and see Morison: Otis, ii, 4.

The Federalist view was that the "Force Act" and other extreme portions of the Embargo laws were "so violently and palpably unconstitutional, as to render a reference to the judiciary absurd"; and that it was "the inherent right of the people to resist measures fundamentally inconsistent with the principles of just liberty and the Social compact." (Hare to Otis, Feb. 10, 1814, Morison: Otis, ii, 175.)

[59] McMaster, iii, 331-32.

[60] Morison: Otis, ii, 3, 8.

[61] Hanson to Pickering, Jan. 17, 1810, N.E. Federalism: Adams, 382.

[62] Humphrey Marshall to Pickering, March 17, 1809, Pickering MSS. Mass. Hist. Soc.

[63] See vol. iii, chap. x, of this work.

[64] 5 Cranch, 133.

[65] Ib. 117.

[66] 5 Cranch, 135.

[67] 5 Cranch, 136, 141. (Italics the author's.)

[68] The Legislature of Pennsylvania adopted a resolution, April 3, 1809, proposing an amendment to the National Constitution for the establishment of an "impartial tribunal" to decide upon controversies between States and the Nation. (State Documents on Federal Relations: Ames, 46-48.) In reply Virginia insisted that the Supreme Court, "selected from those ... who are most celebrated for virtue and legal learning," was the proper tribunal to decide such cases. (Ib. 49-50.) This Nationalist position Virginia reversed within a decade in protest against Marshall's Nationalist opinions. Virginia's Nationalist resolution of 1809 was read by Pinkney in his argument of Cohens vs. Virginia. (See infra, chap. vi.)

[69] See Madison to Snyder, April 13, 1809, Annals, 11th Cong. 2d Sess. 2269; also McMaster, v, 403-06.

[70] Annals, 10th Cong. 2d Sess. 1824-30.

[71] Erskine to Smith, April 18 and 19, 1809, Am. State Papers, For. Rel. iii, 296.

[72] Adams: U.S. v, 73-74; see also McMaster, iii, 337.

[73] Adams: U.S. v, 87-89, 112.

[74] Proclamation of Aug. 9, 1809, Am. State Papers, For. Rel. iii, 304.

[75] Tyler: Letters and Times of the Tylers, i, 229. For an expression by Napoleon on this subject, see Adams: U.S. v, 137.

[76] See vol. ii, 28-29, of this work.

[77] "The appointment of Jackson and the instructions given to him might well have justified a declaration of war against Great Britain the moment they were known." (Channing: Jeff. System, 237.)

[78] Circular, Nov. 13, 1809, Am. State Papers, For. Rel. iii, 323; Annals, 11th Cong. 2d Sess. 743.

[79] Canning to Pinkney, Sept. 23, 1808, Am. State Papers, For. Rel. iii, 230-31.

[80] Story to White, Jan. 17, 1809, Life and Letters of Joseph Story: Story, i, 193-94. There were two letters from Canning to Pinkney, both dated Sept. 23, 1808. Story probably refers to one printed in the Columbian Centinel, Boston, Jan. 11, 1809.

"It seems as if in New England the federalists were forgetful of all the motives for union & were ready to destroy the fabric which has been raised by the wisdom of our fathers. Have they altogether lost the memory of Washington's farewell address?... The riotous proceedings in some towns ... no doubt ... are occasioned by the instigation of men, who keep behind the curtain & yet govern the wires of the puppet shew." (Story to his brother, Jan. 3, 1809, Story MSS. Mass. Hist. Soc.)

"In New England, and even in New York, there appears a spirit hostile to the existence of our own government." (Plumer to Gilman, Jan. 24, 1809, Plumer: Life of William Plumer, 368.)

[81] Adams: U.S. v, 158.

[82] Annals, 11th Cong. 2d Sess. 481.

[83] Ib. 943. The resolution was passed over the strenuous resistance of the Federalists.

[84] Probably that of Madison, July 21, 1808, Annals, 10th Cong. 2d Sess. 1681.

[85] Marshall to Quincy, April 23, 1810, Quincy: Life of Josiah Quincy, 204.

[86] Tyler to Jefferson, May 12, 1810, Tyler: Tyler, i, 247; and see next chapter.

[87] Adams: U.S. v, 212-14; and see Morison: Otis, ii, 18-19.

[88] Turreau, then the French Minister at Washington, thus reported to his Government: "To-day not only is the separation of New England openly talked about, but the people of those five States wish for this separation, pronounce it, openly prepare it, will carry it out under British protection"; and he suggests that "perhaps the moment has come for forming a party in favor of France in the Central and Southern States, whenever those of the North, having given themselves a separate government under the support of Great Britain, may threaten the independence of the rest." (Turreau to Champagny, April 20, 1809, as quoted in Adams: U.S. v, 36.)

[89] For account of Jackson's reception in Boston and the effects of it, see Adams: U.S. 215-17, and Morison: Otis, 20-22.

[90] On the other hand, Jefferson, out of his bottomless prejudice against Great Britain, drew venomous abuse of the whole British nation: "What is to restore order and safety on the ocean?" he wrote; "the death of George III? Not at all. He is only stupid;... his ministers ... ephemeral. But his nation is permanent, and it is that which is the tyrant of the ocean. The principle that force is right, is become the principle of the nation itself. They would not permit an honest minister, were accident to bring such an one into power, to relax their system of lawless piracy." (Jefferson to Rodney, Feb. 10, 1810, Works: Ford, xi, 135-36.)

[91] Champagny, Duke de Cadore, to Armstrong, Aug. 5, 1810 (Am. State Papers, For. Rel. iii, 386-87), and Proclamation, Nov. 2, 1810 (ib. 392); and see Adams: U.S. v, 303-04.

[92] Adams: U.S. v, 346.

[93] Marshall to Pickering, Feb. 22, 1811, Pickering MSS. Mass. Hist. Soc.

[94] Annals, 11th Cong. 3d Sess. 525.

Daniel Webster was also emphatically opposed to the admission of new States: "Put in a solemn, decided, and spirited Protest against making new States out of new Territories. Affirm, in direct terms, that New Hampshire has never agreed to favor political connexions of such intimate nature, with any people, out of the limits of the U.S. as they existed at the time of the compact." (Webster to his brother, June 4, 1813, Letters of Daniel Webster: Van Tyne, 37.)

[95] Annals, 11th Cong. 3d Sess. 542.

[96] Ib. 1st and 2d Sess. 579-82.

[97] Annals, 12th Cong. 1st Sess. 601; also see Adams: U.S. v, 189-90.

[98] Adams: U.S. v, 316.

[99] Richardson, i, 499-505; Am. State Papers, For. Rel. iii, 567-70.

[100] Annals, 12th Cong. 1st Sess. 1637. The Federalists who voted for war were: Joseph Kent of Maryland, James Morgan of New Jersey, and William M. Richardson of Massachusetts.

Professor Channing thus states the American grievances: "Inciting the Indians to rebellion, impressing American seamen and making them serve on British war-ships, closing the ports of Europe to American commerce, these were the counts in the indictment against the people and government of Great Britain." (Channing: Jeff. System, 260.) See also ib. 268, and Jefferson's brilliant statement of the causes of the war, Jefferson to Logan, Oct. 3, 1813, Works: Ford, xi, 338-39.

"The United States," says Henry Adams, "had a superfluity of only too good causes for war with Great Britain." (Adams: Life of Albert Gallatin, 445.) Adams emphasizes this: "The United States had the right to make war on England with or without notice, either for her past spoliations, her actual blockades, her Orders in Council other than blockades, her Rule of 1756, her impressments, or her attack on the 'Chesapeake,' not yet redressed,—possibly also for other reasons less notorious." (Adams: U.S. v, 339.) And see Roosevelt, chaps, i and ii.

[101] Annals, 12th Cong. 1st Sess. 1675-82.

[102] Salem Gazette, July 7, 1812, as quoted in Morison: Otis, i, 298.

[103] Story to Williams, Aug. 24, 1812, Story, i, 229.

[104] Pickering to Pennington, July 12, 1812, N.E. Federalism: Adams, 389.

[105] Of course the National courts were attacked: "Attempts ... are made ... to break down the Judiciary of the United States through the newspapers, and mean and miserable insinuations are made to weaken the authority of its judgments." (Story to Williams, Aug. 3, 1813, Story, i, 247.) And again: "Conspirators, and traitors are enabled to carry on their purposes almost without check." (Same to same, May 27, 1813, ib. 244.) Story was lamenting that the National courts had no common-law jurisdiction. Some months earlier he had implored Nathaniel Williams, Representative in Congress from Story's district, to "induce Congress to give the Judicial Courts of the United States power to punish all crimes ... against the Government.... Do not suffer conspiracies to destroy the Union." (Same to same, Oct. 8, 1812, ib. 243.)

Jefferson thought the people were loyal: "When the questions of separation and rebellion shall be nakedly proposed ... the Gores and the Pickerings will find their levees crowded with silk stocking gentry, but no yeomanry." (Jefferson to Gerry, June 11, 1812, Works: Ford, xi, 257.)

[106] Stoddert to McHenry, July 15, 1812, Steiner: Life and Correspondence of James McHenry, 581-83.

[107] "To the Citizens of the United States," in the Spirit of Seventy-Six, July 17, 1812.

[108] Stoddert refers to this person as "Jo Davies." By some this has been thought to refer to Marshall's brother-in-law, "Jo" Daveiss of Kentucky. But the latter was killed in the Battle of Tippecanoe, November 7, 1811.

While the identity of Stoddert's agent cannot be established with certainty, he probably was one John Davis of Salisbury, England, as described in the text. "Jo" was then used for John as much as for Joseph; and Davis was frequently spelled "Davies." A John or "Jo" Davis or Davies, an Englishman, was a very busy person in America during the first decade of the nineteenth century. (See Loshe: Early American Novel, 74-77.) Naturally he would have been against the War of 1812, and he was just the sort of person that an impracticable man like Stoddert would have chosen for such a mission.

[109] Stoddert to McHenry, July 15, 1812, Steiner, 582.

[110] See King, v, 266.

[111] Adams: U.S. v, 375-78.

[112] Smith: An Address to the People of the United States, 42-43.

[113] Marshall to Smith, July 27, 1812, Dreer MSS. "American Lawyers," Pa. Hist. Soc.

[114] Am. State Papers, For. Rel. iii, 603; and see Charming: U.S. iv, 449.

[115] See vol. ii, 243-44, 245-47, of this work.

[116] Marshall to Smith, July 27, 1812, Dreer MSS. "American Lawyers," Pa. Hist. Soc.

A single quotation from the letters of Southern Federalists will show how accurately Marshall interpreted Federalist feeling during the War of 1812: "Heaven grant that ... our own Country may not be found ultimately, a solitary friend of this great Robber of Nations." (Tallmadge to McHenry, May 30, 1813, Steiner, 598.) The war had been in progress more than ten months when these words were written.

[117] Story to Williams, Oct. 8, 1812, Story, i, 243.

[118] Marshall to Monroe, June 25, 1812, Monroe MSS. Lib. Cong.

[119] Marshall, however, was a member of the "Vigilance Committee" of Richmond, and took an important part in its activities. (Virginia Magazine of History and Biography, vii, 230-31.)

[120] Report of the Commissioners appointed to view Certain Rivers within the Commonwealth of Virginia, 5.

[121] A practicable route for travel and transportation between Virginia and the regions across the mountains had been a favorite project of Washington. The Potomac and James River Company, of which Marshall when a young lawyer had become a stockholder (vol. i, 218, of this work), was organized partly in furtherance of this project. The idea had remained active in the minds of public men in Virginia and was, perhaps, the one subject upon which they substantially agreed.

[122] Much of the course selected by Marshall was adopted in the building of the Chesapeake and Ohio Railway. In 1869, Collis P. Huntington made a trip of investigation over part of Marshall's route. (Nelson: Address—The Chesapeake and Ohio Railway, 15.)

[123] Report of the Commissioners appointed to view Certain Rivers within the Commonwealth of Virginia, 38-39.

[124] Niles: Weekly Register, ii, 418.

[125] Lowell: Mr. Madison's War: by "A New England Farmer."

A still better illustration of Federalist hostility to the war and the Government is found in a letter of Ezekiel Webster to his brother Daniel: "Let gamblers be made to contribute to the support of this war, which was declared by men of no better principles than themselves." (Ezekiel Webster to Daniel Webster, Oct. 29, 1814, Van Tyne, 53.) Webster here refers to a war tax on playing-cards.

[126] Harper to Lynn, Sept. 25, 1812, Steiner, 584.

[127] See McMaster, iv, 199-200.

[128] Morison: Otis, i, 399.

[129] Pickering to Pennington, July 22, 1812, N.E. Federalism: Adams, 389.

[130] The vote of Pennsylvania, with those cast for Clinton, would have elected Marshall.

[131] Babcock, 157; and see Dewey: Financial History of the United States, 133.

[132] For an excellent statement of the conduct of the Federalists at this time see Morison: Otis, ii, 53-66. "The militia of Massachusetts, seventy thousand in enrolment, well-drilled, and well-equipped, was definitely withdrawn from the service of the United States in September, 1814." (Babcock, 155.) Connecticut did the same thing. (Ib. 156.)

[133] Annals, 13th Cong. 1st Sess. 302.

[134] See McMaster, iv, 213-14.

[135] Annals, 13th Cong. 1st Sess. 302

[136] Am. State Papers, For. Rel. iii, 609-12.

[137] The Republican victory was caused by the violent British partisanship of the Federalist leaders. In spite of the distress the people suffered from the Embargo, they could not, for the moment, tolerate Federalist opposition to their own country. (See Adams: U.S. v, 215.)

[138] Marshall to Pickering, Dec. 11, 1813, Pickering MSS. Mass. Hist Soc.

[139] Morison: Otis, ii, 54-56.

[140] "Curse This Government! I would march at 6 days notice for Washington ... and I would swear upon the altar never to return till Madison was buried under the ruins of the capitol." (Herbert to Webster, April 20, 1813, Van Tyne, 27.)

[141] The Federalists frantically opposed conscription. Daniel Webster, especially, denounced it. "Is this [conscription] ... consistent with the character of a free Government?... No, Sir.... The Constitution is libelled, foully libelled. The people of this country have not established ... such a fabric of despotism....

"Where is it written in the Constitution ... that you may take children from their parents ... & compel them to fight the battles of any war, in which the folly or the wickedness of Government may engage it?... Such an abominable doctrine has no foundation in the Constitution."

Conscription, Webster said, was a gambling device to throw the dice for blood; and it was a "horrible lottery." "May God, in his compassion, shield me from ... the enormity of this guilt." (See Webster's speech on the Conscription Bill delivered in the House of Representatives, December 9, 1814, Van Tyne, 56-68; see also Curtis: Life of Daniel Webster, i, 138.)

Webster had foretold what he meant to do: "Of course we shall oppose such usurpation." (Webster to his brother, Oct. 30, 1814, Van Tyne, 54.) Again: "The conscription has not come up—if it does it will cause a storm such as was never witnessed here" [in Washington]. (Same to same, Nov. 29, 1814, ib. 55.)

[142] See Morison: Otis, ii, 78-199. Pickering feared that Cabot's moderation would prevent the Hartford Convention from taking extreme measures against the Government. (See Pickering to Lowell, Nov. 7, 1814, N.E. Federalism: Adams, 406.)

[143] Some sentences are paraphrases of expressions by Jefferson on the same subject. For example: "I hold the right of expatriation to be inherent in every man by the laws of nature, and incapable of being rightfully taken from him even by the united will of every other person in the nation." (Jefferson to Gallatin, June 26, 1806, Works: Ford, x, 273.) Again: "Our particular and separate grievance is only the impressment of our citizens. We must sacrifice the last dollar and drop of blood to rid us of that badge of slavery." (Jefferson to Crawford, Feb. 11, 1815, ib. xi, 450-51.) This letter was written at Monticello the very day that the news of peace reached Washington.

[144] Hay: A Treatise on Expatriation, 24.

[145] Lowell: Review of 'A Treatise on Expatriation': by "A Massachusetts Lawyer."

[146] See vol. iii, chap. i, of this work.

[147] See Review of 'A Treatise on Expatriation,' 6.

[148] Marshall to Pickering, April 11, 1814, Pickering MSS. Mass. Hist. Soc.

[149] See Channing: Jeff. System, 170-71.

[150] M'Ilvaine vs. Coxe's Lessee, 4 Cranch, 209.

[151] Dawson's Lessee vs. Godfrey, 4 Cranch, 321.

[152] Case of the Santissima Trinidad et al., 1 Brockenbrough, 478-87; and see 7 Wheaton, 283.

[153] Plumer to Livermore, March 4, 1804, Plumer MSS. Lib. Cong.

[154] For example, the British "right" of impressment must be formally and plainly acknowledged in the treaty; an Indian dominion was to be established, and the Indian tribes were to be made parties to the settlements; the free navigation of the Mississippi was to be guaranteed to British vessels; the right of Americans to fish in Canadian waters was to be ended. Demands far more extreme were made by the British press and public. (See McMaster, iv, 260-74; and see especially Morison: Otis, ii, 171.)

[155] McMaster, iv, 383-88.

[Pg 59]



Either the office was made for the man or the man for the office. (George S. Hillard.)

I am in love with his character, positively in love. (Joseph Story.)

In the midst of these gay circles my mind is carried to my own fireside and to my beloved wife. (Marshall.)

Now the man Moses was very meek, above all the men which were upon the face of the earth. (Numbers xii, 3.)

"It will be difficult to find a character of firmness enough to preserve his independence on the same bench with Marshall."[156] So wrote Thomas Jefferson one year after he had ceased to be President. He was counseling Madison as to the vacancy on the Supreme Bench and one on the district bench at Richmond, in filling both of which he was, for personal reasons, feverishly concerned.

We are now to ascend with Marshall the mountain peaks of his career. Within the decade that followed after the close of our second war with Great Britain, he performed nearly all of that vast and creative labor, the lasting results of which have given him that distinctive title, the Great Chief Justice. During that period he did more than any other one man ever has done to vitalize the American Constitution; and, in the performance of that task, his influence over his associates was unparalleled.[157][Pg 60]

When Justices Chase and Cushing died and their successors Gabriel Duval[158] and Joseph Story were appointed, the majority of the Supreme Court, for the first time, became Republican. Yet Marshall continued to dominate it as fully as when its members were of his own political faith and views of government.[159] In the whole history of courts there is no parallel to such supremacy. Not without reason was that tribunal looked upon and called "Marshall's Court." It is interesting to search for the sources of his strange power.

These sources are not to be found exclusively in the strength of Marshall's intellect, surpassing though it was, nor yet in the mere dominance of his will. Joseph Story was not greatly inferior to Marshall in mind and far above him in accomplishments, while William Johnson, the first Justice of the Supreme Court appointed by Jefferson, was as determined as Marshall and was "strongly imbued with the principles of southern democracy, bold, independent, eccentric, and sometimes harsh."[160] Nor did learning give Marshall his commanding influence. John Jay and Oliver Ellsworth were his superiors in that respect; while Story so infinitely surpassed him in erudition that, between the two men, there is nothing but contrast. Indeed, Marshall had no "learning"[Pg 61] at all in the academic sense;[161] we must seek elsewhere for an explanation of his peculiar influence.

This explanation is, in great part, furnished by Marshall's personality. The manner of man he was, of course, is best revealed by the well-authenticated accounts of his daily life. He spent most of his time at Richmond, for the Supreme Court sat in Washington only a few weeks each year. He held circuit court at Raleigh as well as at the Virginia Capital, but the sessions seldom occupied more than a fortnight each. In Richmond, then, his characteristics were best known; and so striking were they that time has but little dimmed the memory of them.

Marshall, the Chief Justice, continued to neglect his dress and personal appearance as much as he did when, as a lawyer, his shabby attire so often "brought a blush" to the cheeks of his wife,[162] and his manners were as "lax and lounging" as when Jefferson called them proofs of a "profound hypocrisy."[163] Although no man in America was less democratic in his ideas of government, none was more democratic in his contact with other people. To this easy bonhomie was added a sense of humor, always quick to appreciate an amusing situation.

When in Richmond, Marshall often did his own marketing and carried home the purchases he made. The tall, ungainly, negligently clad Chief Justice, ambling along the street, his arms laden with pur[Pg 62]chases, was a familiar sight.[164] He never would hurry, and habitually lingered at the market-place, chatting with everybody, learning the gossip of the town, listening to the political talk that in Richmond never ceased, and no doubt thus catching at first hand the drift of public sentiment.[165] The humblest and poorest man in Virginia was not more unpretentious than John Marshall.

No wag was more eager for a joke. One day, as he loitered on the outskirts of the market, a newcomer in Richmond, who had never seen Marshall, offered him a small coin to carry home for him a turkey just purchased. Marshall accepted, and, with the bird under his arm, trudged behind his employer. The incident sent the city into gales of laughter, and was so in keeping with Marshall's ways that it has been retold from one generation to another, and is to-day almost as much alive as ever.[166] At another time the Chief Justice was taken for the butcher. He called on a relative's wife who had never met him, and who had not been told of his plain dress and rustic manners. Her husband wished to sell a calf and she expected the butcher to call to make the trade. She saw Marshall approaching, and judging by his appearance that he was the butcher, she directed the servant to tell him to go to the stable where the animal was awaiting inspection.[167]

It was Marshall's custom to go early every morning to a farm which he owned four miles from Richmond. For the exercise he usually walked, but, when he[Pg 63] wished to take something heavy, he would ride. A stranger coming upon him on the road would have thought him one of the poorer small planters of the vicinity. He was extremely fond of children and, if he met one trudging along the road, he would take the child up on the horse and carry it to its destination. Often he was seen riding into Richmond from his farm, with one child before and another behind him.[168]

Bishop Meade met Marshall on one of these morning trips, carrying on horseback a bag of clover seed.[169] On another, he was seen holding on the pommel a jug of whiskey which he was taking out to his farmhands. The cork had come out and he was using his thumb as a stopper.[170] He was keenly interested in farming, and in 1811 was elected President of the Richmond Society for Promotion of Agriculture.[171]

The distance from Richmond to Raleigh was, by road, more than one hundred and seventy miles. Except when he went by stage,[172] as he seldom did, it must have taken a week to make this journey. He traveled in a primitive vehicle called a stick gig, drawn by one horse which he drove himself, seldom taking a servant with him.[173] Making his slow way[Pg 64] through the immense stretches of tar pines and sandy fields, the Chief Justice doubtless thought out the solution of the problems before him and the plain, clear, large statements of his conclusions which, from the bench later, announced not only the law of particular cases, but fundamental policies of the Nation. His surroundings at every stage of the trip encouraged just such reflection—the vast stillness, the deep forests, the long hours, broken only by some accident to gig or harness, or interrupted for a short time to feed and rest his horse, and to eat his simple meal.

During these trips, Marshall would become so abstracted that, apparently, he would forget where he was driving. Once, when near the plantation of Nathaniel Macon in North Carolina, he drove over a sapling which became wedged between a wheel and the shaft. One of Macon's slaves, working in an adjacent field, saw the predicament, hurried to his assistance, held down the sapling with one hand, and with the other backed the horse until the gig was free. Marshall tossed the negro a piece of money and asked him who was his owner. "Marse Nat. Macon," said the slave. "He is an old friend," said Marshall; "tell him how you have helped me," giving his name. When the negro told his master, Macon said: "That was the great Chief Justice Marshall, the biggest lawyer in the United States." The slave grinned and answered: "Marse Nat., he may be de bigges' lawyer in de United States, but he ain't got sense enough to back a gig off a saplin'."[174][Pg 65]

At night he would stop at some log tavern on the route, eat with the family and other guests, if any were present, and sit before the fireplace after the meal, talking with all and listening to all like the simple and humble countryman he appeared to be. Since the minor part of his time was spent in court, and most of it about Richmond, or on the road to and from Raleigh, or journeying to his Fauquier County plantation and the beloved mountains of his youth where he spent the hottest part of each year, it is doubtful whether any other judge ever maintained such intimate contact with people in the ordinary walks of life as did John Marshall.

The Chief Justice always arrived at Raleigh stained and battered from travel.[175] The town had a population of from three hundred to five hundred.[176] He was wont to stop at a tavern kept by a man named Cooke and noted for its want of comfort; but, although the inn got worse year after year, he still frequented it. Early one morning an acquaintance saw the Chief Justice go to the woodpile, gather an armful of wood and return with it to the house. When they met later in the day, the occurrence was recalled. "Yes," said Marshall, "I suppose it is not convenient for Mr. Cooke to keep a servant, so I make up my own fires."[177]

The Chief Justice occupied a small room in which were the following articles: "A bed, ... two split-bot[Pg 66]tom chairs, a pine table covered with grease and ink, a cracked pitcher and broken bowl." The host ate with his guests and used his fingers instead of fork or knife.[178] When court adjourned for the day, Marshall would play quoits in the street before the tavern "with the public street characters of Raleigh," who were lovers of the game.[179]

He was immensely popular in Raleigh, his familiar manners and the justice of his decisions appealing with equal force to the bar and people alike. Writing at the time of the hearing of the Granville case,[180] John Haywood, then State Treasurer of North Carolina, testifies: "Judge Marshall ... is greatly respected here, as well on account of his talents and uprightness as for that sociability and ease of manner which render all happy and pleased when in his company."[181]

In spite of his sociability, which tempted him, while in Richmond, to visit taverns and the law offices of his friends, Marshall spent most of the day in his house or in the big yard adjoining it, for Mrs. Marshall's affliction increased with time, and the Chief Justice, whose affection for his wife grew as her illness advanced, kept near her as much as possi[Pg 67]ble. In Marshall's grounds and near his house were several great oak and elm trees, beneath which was a spring; to this spot he would take the papers in cases he had to decide and, sitting on a rustic bench under the shade, would write many of those great opinions that have immortalized his name.[182]

Mrs. Marshall's malady was largely a disease of the nervous system and, at times, it seemingly affected her mind. It was a common thing for the Chief Justice to get up at any hour of the night and, without putting on his shoes lest his footfalls might further excite his wife, steal downstairs and drive away for blocks some wandering animal—a cow, a pig, a horse—whose sounds had annoyed her.[183] Even upon entering his house during the daytime, Marshall would take off his shoes and put on soft slippers in the hall.[184]

She was, of course, unequal to the management of the household. When the domestic arrangements needed overhauling, Marshall would induce her to take a long drive with her sister, Mrs. Edward Carrington, or her daughter, Mrs. Jacquelin B. Harvie, over the still and shaded roads of Richmond. The carriage out of sight, he would throw off his coat and[Pg 68] vest, roll up his shirt-sleeves, twist a bandanna handkerchief about his head, and gathering the servants, lead as well as direct them in dusting the walls and furniture, scrubbing the floors and setting the house in order.[185]

Numerous incidents of this kind are well authenticated. To this day Marshall's unselfish devotion to his infirm and distracted wife is recalled in Richmond. But nobody ever heard the slightest word of complaint from him; nor did any act or expression of countenance so much as indicate impatience.

In his letters Marshall never fails to admonish his wife, who seldom if ever wrote to him, to care for her health. "Yesterday I received Jacquelin's letter of the 12th informing me that your health was at present much the same as when I left Richmond," writes Marshall.[186] "John [Marshall's son] passed through this city a day or two past, & although I did not see him I had the pleasure of hearing from Mr. Washington who saw him ... that you were as well as usual."[187] In another letter Marshall says: "Do my dearest Polly let me hear from you through someone of those who will be willing to write for you."[188] Again he says: "I am most anxious to know how you do but no body is kind enough to gratify my wishes.... I looked eagerly for a letter to day but no letter came.... You must not fail when you go to Chiccahominy [Marshall's farm near Richmond][Pg 69] ... to carry out blankets enough to keep you comfortable. I am very desirous of hearing what is doing there but as no body is good enough to let me know how you do & what is passing at home I could not expect to hear what is passing at the farm."[189] Indeed, only one letter of Marshall's has been discovered which indicates that he had received so much as a line from his wife; and this was when, an old man of seventy-five, he was desperately ill in Philadelphia.[190] Nothing, perhaps, better reveals the sweetness of his nature than his cheerful temper and tender devotion under trying domestic conditions.[191]

His "dearest Polly" was intensely religious, and Marshall profoundly respected this element of her character.[192] The evidence as to his own views and feelings on the subject of religion, although scanty, is definite. He was a Unitarian in belief and therefore never became a member of the Episcopal church, to which his parents, wife, children, and all other relatives belonged. But he attended services, Bishop Meade informs us, not only because "he was a sincere friend of religion," but also because he wished[Pg 70] "to set an example." The Bishop bears this testimony: "I can never forget how he would prostrate his tall form before the rude low benches, without backs, at Coolspring Meeting-House,[193] in the midst of his children and grandchildren and his old neighbors." When in Richmond, Marshall attended the Monumental Church where, says Bishop Meade, "he was much incommoded by the narrowness of the pews.... Not finding room enough for his whole body within the pew, he used to take his seat nearest the door of the pew, and, throwing it open, let his legs stretch a little into the aisle."[194]

It is said, however, that his daughter, during her last illness, declared that her father late in life was converted, by reading Keith on Prophecy, to a belief in the divinity of Christ; and that he determined to "apply for admission to the communion of our Church ... but died without ever communing."[195] There is, too, a legend about an astonishing flash of eloquence from Marshall—"a streak of vivid lightning"—at a tavern, on the subject of religion.[196] The impression said to have been made by Marshall on this occasion was heightened by his appearance when he arrived at the inn. The shafts of his ancient gig were broken and "held together by withes formed from the bark of a hickory sapling"; he was negligently dressed, his knee buckles loosened.[197]

In the tavern a discussion arose among some young men concerning "the merits of the Christian reli[Pg 71]gion." The debate grew warm and lasted "from six o'clock until eleven." No one knew Marshall, who sat quietly listening. Finally one of the youthful combatants turned to him and said: "Well, my old gentleman, what think you of these things?" Marshall responded with a "most eloquent and unanswerable appeal." He talked for an hour, answering "every argument urged against" the teachings of Jesus. "In the whole lecture there was so much simplicity and energy, pathos and sublimity, that not another word was uttered." The listeners wondered who the old man could be. Some thought him a preacher; and great was their surprise when they learned afterwards that he was the Chief Justice of the United States.[198]

His devotion to his wife illustrates his attitude toward women in general, which was one of exalted reverence and admiration. "He was an enthusiast in regard to the domestic virtues," testifies Story. "There was ... a romantic chivalry in his feelings, which, though rarely displayed, except in the circle of his most intimate friends, would there pour out itself with the most touching tenderness." He loved to dwell on the "excellences," "accomplishments," "talents," and "virtues" of women, whom he looked upon as "the friends, the companions, and the equals of man." He tolerated no wit at their expense, no fling, no sarcasm, no reproach. On no phase of Marshall's character does Story place so[Pg 72] much emphasis as on his esteem for women.[199] Harriet Martineau, too, bears witness that "he maintained through life and carried to his grave, a reverence for woman as rare in its kind as in its degree."[200] "I have always believed that national character as well as happiness depends more on the female part of society than is generally imagined," writes Marshall in his ripe age to Thomas White.[201]

Commenting on Story's account, in his centennial oration on the first settlement of Salem, of the death of Lady Arbella Johnson, Marshall expresses his opinion of women thus: "I almost envy the occasion her sufferings and premature death have furnished for bestowing that well-merited eulogy on a sex which so far surpasses ours in all the amiable and attractive virtues of the heart,—in all those qualities which make up the sum of human happiness and transform the domestic fireside into an elysium. I read the passage to my wife who expressed such animated approbation of it as almost to excite fears for that exclusive admiration which husbands claim as their peculiar privilege. Present my compliments to Mrs Story and say for me that a lady receives the highest compliment her husband can pay her when he expresses an exalted opinion of the sex, because the world will believe that it is formed on the model he sees at home."[202]

Ten children were born to John Marshall and[Pg 73] Mary Ambler, of whom six survived, five boys and one girl.[203] By 1815 only three of these remained at home; Jacquelin, twenty-eight years old, James Keith, fifteen, and Edward, ten years of age. John was in Harvard, where Marshall sent all his sons except Thomas, the eldest, who went to Princeton.[204] The daughter, Mary, Marshall's favorite child, had married Jacquelin B. Harvie and lived in Richmond not far from Marshall's house.[205] Four other children had died early.

"You ask," Marshall writes Story, "if Mrs Marshall and myself have ever lost a child. We have lost four, three of them bidding fairer for health and life than any that have survived them. One, a daughter about six or seven ... was one of the most fascinating children I ever saw. She was followed within a fortnight by a brother whose death was attended by a circumstance we can never forget.

"When the child was supposed to be dying I tore the distracted mother from the bedside. We soon afterwards heard a voice in the room which we considered as indicating the death of the infant. We believed him to be dead. [I went] into the room and found him still breathing. I returned [and] as the pang of his death had been felt by his mother and [I] was confident he must die, I concealed his being alive and prevailed on her to take refuge with her[Pg 74] mother who lived the next door across an open square from her.

"The child lived two days, during which I was agonized with its condition and with the occasional hope, though the case was desperate, that I might enrapture his mother with the intelligence of his restoration to us. After the event had taken place his mother could not bear to return to the house she had left and remained with her mother a fortnight.

"I then addressed to her a letter in verse in which our mutual loss was deplored, our lost children spoken of with the parental feeling which belonged to the occasion, her affection for those which survived was appealed to, and her religious confidence in the wisdom and goodness of Providence excited. The letter closed with a pressing invitation to return to me and her children."[206]

All of Marshall's sons married, settled on various parts of the Fairfax estate, and lived as country gentlemen. Thomas was given the old homestead at Oak Hill, and there the Chief Justice built for his eldest son the large house adjacent to the old one where he himself had spent a year before joining the army under Washington.[207] To this spot Marshall went every year, visiting Thomas and his other sons who lived not far apart, seeing old friends, wandering along Goose Creek, over the mountains, and among the haunts where his first years were spent.

Here, of course, he was, in bearing and appearance, even less the head of the Nation's Judiciary than he[Pg 75] was in Richmond or on the road to Raleigh. He was emphatically one of the people among whom he sojourned, familiar, interested, considerate, kindly and sociable to the last degree. Not one of his sons but showed more consciousness of his own importance than did John Marshall; not a planter of Fauquier, Warren, and Shenandoah Counties, no matter how poorly circumstanced, looked and acted less a Chief Justice of the United States. These characteristics, together with a peculiar generosity, made Marshall the most beloved man in Northern Virginia.

Once, when going from Richmond to Fauquier County, he overtook one of his Revolutionary comrades. As the two rode on together, talking of their war-time experiences and of their present circumstances, it came out that this now ageing friend of his youth was deeply in debt and about to lose all his possessions. There was, it appeared, a mortgage on his farm which would soon be foreclosed. After the Chief Justice had left the inn where they both had stopped for refreshments, an envelope was handed to his friend containing Marshall's check for the amount of the debt. His old comrade-in-arms quickly mounted his horse, overtook Marshall, and insisted upon returning the check. Marshall refused to take it back, and the two friends argued the matter, which was finally compromised by Marshall's agreeing to take a lien upon the land. But this he never foreclosed.[208]

This anecdote is highly characteristic of Marshall. He was infinitely kind, infinitely considerate.[Pg 76] Bishop Meade, who knew him well, says that he "was a most conscientious man in regard to some things which others might regard as too trivial to be observed." On one of Meade's frequent journeys with Marshall between Fauquier County and the "lower country," they came to an impassable stretch of road. Other travelers had taken down a fence and gone through the adjoining plantation, and the Bishop was about to follow the same route. Marshall refused—"He said we had better go around, although each step was a plunge, adding that it was his duty, as one in office, to be very particular in regard to such things."[209]

When in Richmond the one sport in which he delighted was the pitching of quoits. Not when a lawyer was he a more enthusiastic or regular attendant of the meetings of the Quoit Club, or Barbecue Club,[210] under the trees at Buchanan's Spring on the outskirts of Richmond, than he was when at the height of his fame as Chief Justice of the United States. More personal descriptions of Marshall at these gatherings have come down to us than exist for any other phase of his life. Chester Harding, the artist, when painting Marshall's portrait during the summer of 1826, spent some time in the Virginia Capital, and attended one of the meetings of the Quoit Club. It was a warm day, and presently Marshall, then in his seventy-second year, was seen coming, his coat on his arm, fanning himself with his hat. Walking straight up to a bowl of mint julep, he poured a[Pg 77] tumbler full of the liquid, drank it off, said, "How are you, gentlemen?" and fell to pitching quoits with immense enthusiasm. When he won, says Harding, "the woods would ring with his triumphant shout."[211]

James K. Paulding went to Richmond for the purpose of talking to the Chief Justice and observing his daily life. He was more impressed by Marshall's gayety and unrestraint at the Quoit Club than by anything else he noted. "The Chief-Justice threw off his coat," relates Paulding, "and fell to work with as much energy as he would have directed to the decision of ... the conflicting jurisdiction of the General and State Governments." During the game a dispute arose between two players "as to the quoit nearest the meg." Marshall was agreed upon as umpire. "The Judge bent down on one knee and with a straw essayed the decision of this important question, ... frequently biting off the end of the straw" for greater accuracy.[212]

The morning play over, the club dinner followed. A fat pig, roasted over a pit of coals, cold meats, melons, fruits, and vegetables, were served in the old Virginia style. The usual drinks were porter, toddy,[213] and the club punch made of "lemons, brandy, rum, madeira, poured into a bowl one-third filled with ice[Pg 78] (no water), and sweetened."[214] In addition, champagne and other wines were sometimes provided.[215] At these meals none of the witty company equaled Marshall in fun-making; no laugh was so cheery and loud as his. Not more was John Marshall the chief of the accomplished and able men who sat with him on the Supreme Bench at Washington than, even in his advancing years, he was the leader of the convivial spirits who gathered to pitch quoits, drink julep and punch, tell stories, sing songs, make speeches, and play pranks under the trees of Richmond.

Marshall dearly loved, when at home, to indulge in the giving of big dinners to members of the bench and bar. In a wholly personal sense he was the best-liked man in Richmond. The lawyers and judges living there were particularly fond of him, and the Chief Justice thoroughly reciprocated their regard. Spencer Roane, Judge of the Virginia Court of Appeals, seems to have been the one enemy Marshall had in the whole city. Indeed, Roane and Jefferson appear to have been the only men anywhere who ever hated him personally. Even the testy George Hay reluctantly yielded to his engaging qualities. When at the head of the Virginia bar, Marshall had been one of those leading attorneys who gave the attractive dinners that were so notable and delightful a feature of life in Richmond. After he became Chief Justice, he continued this custom until his "lawyer dinners" became, among men, the principal social events of the place.[Pg 79]

Many guests sat at Marshall's board upon these occasions. Among them were his own sons as well as those of some of his guests. These dinners were repetitions within doors of the Quoit Club entertainments, except that the food was more abundant and varied, and the cheering drinks were of better quality—for Marshall prided himself on this feature of hospitality, especially on his madeira, of which he was said to keep the best to be had in America. Wit and repartee, joke, story and song, speech and raillery, brought forth volleys of laughter and roars of applause until far into the morning hours.[216] Marshall was not only at the head of the table as host, but was the leader of the merriment.[217]

His labors as Chief Justice did not dull his delight in the reading of poetry and fiction, which was so keen in his earlier years.[218] At the summit of his career, when seventy-one years old, he read all of Jane Austen's works, and playfully reproved Story for failing to name her in a list of authors given in his Phi Beta Kappa oration at Harvard. "I was a little mortified," he wrote Story, "to find that you had not admitted the name of Miss Austen into your list of favorites. I had just finished reading her novels when I received your discourse, and was so much pleased with them that I looked in it for her name, and was rather disappointed at not finding it. Her flights are not lofty, she does not soar on eagle's wings, but she is pleasing, interesting, equable, and[Pg 80] yet amusing. I count on your making some apology for this omission."[219]

Story himself wrote poetry, and Marshall often asked for copies of his verses.[220] "The plan of life I had formed for myself to be adopted after my retirement from office," he tells Story, "is to read nothing but novels and poetry."[221] That this statement genuinely expressed his tastes is supported by the fact that, among the few books which the Chief Justice treasured, were the novels of Sir Walter Scott and an extensive edition of the British poets.[222] While his chief intellectual pleasure was the reading of fiction, Marshall liked poetry even better; and he committed to memory favorite passages which he quoted as comment on passing incidents. Once when he was told that certain men had changed their opinions as a matter of political expediency, he repeated Homer's lines:

"Ye gods, what havoc does ambition make
'Mong all your works."[223]

During the six or eight weeks that the Supreme Court sat each year, Marshall was the same in manner and appearance in Washington as he was among his neighbors in Richmond—the same in dress, in habits, in every way. Once a practitioner sent his little son to Marshall's quarters for some legal papers. The boy was in awe of the great man. But the Chief Justice, detecting the feelings of the lad, remarked:[Pg 81] "Billy, I believe I can beat you playing marbles; come into the yard and we will have a game." Soon the Chief Justice of the United States and the urchin were hard at play.[224]

If he reached the court-room before the hour of convening court, he sat among the lawyers and talked and joked as if he were one of them;[225] and, judging from his homely, neglected clothing, an uninformed onlooker would have taken him for the least important of the company. Yet there was about him an unconscious dignity that prevented any from presuming upon his good nature, for Marshall inspired respect as well as affection. After their surprise and disappointment at his ill attire and want of impressiveness,[226] attorneys coming in contact with him were unfailingly captivated by his simplicity and charm.

It was thus that Joseph Story, when a very young lawyer, first fell under Marshall's spell. "I love his laugh," he wrote; "it is too hearty for an intriguer,—and his good temper and unwearied patience are equally agreeable on the bench and in the study."[227] And Marshall wore well. The longer and more intimately men associated with him, the greater their fondness for him. "I am in love with his character, positively in love," wrote Story after twenty-four[Pg 82] years of close and familiar contact.[228] He "rises ... with the nearest survey," again testified Story in a magazine article.[229]

When, however, the time came for him to open court, a transformation came over him. Clad in the robes of his great office, with the Associate Justices on either side of him, no king on a throne ever appeared more majestic than did John Marshall. The kindly look was still in his eye, the mildness still in his tones, the benignity in his features. But a gravity of bearing, a firmness of manner, a concentration and intentness of mind, seemed literally to take possession of the man, although he was, and appeared to be, as unconscious of the change as he was that there was anything unusual in his conduct when off the bench.[230]

Marshall said and did things that interested other people and caused them to talk about him. He was noted for his quick wit, and the bar was fond of repeating anecdotes about him. "Did you hear what the Chief Justice said the other day?"—and then the story would be told of a bright saying, a quick repartee, a picturesque incident. Chief Justice Gibson of Pennsylvania, when a young man, went to Marshall for advice as to whether he should accept a position offered him on the State Bench. The young attorney, thinking to flatter him, remarked that the Chief Justice had "reached the acme of judicial distinction." "Let me tell you what that[Pg 83] means, young man," broke in Marshall. "The acme of judicial distinction means the ability to look a lawyer straight in the eyes for two hours and not hear a damned word he says."[231]

Wherever he happened to be, nothing pleased Marshall so much as to join a convivial party at dinner or to attend any sort of informal social gathering. On one occasion he went to the meeting of a club at Philadelphia, held in a room at a tavern across the hall from the bar. It was a rule of the club that every one present should make a rhyme upon a word suddenly given. As he entered, the Chief Justice observed two or three Kentucky colonels taking their accustomed drink. When Marshall appeared in the adjoining room, where the company was gathered, he was asked for an extemporaneous rhyme on the word "paradox." Looking across the hall, he quickly answered:

"In the Blue Grass region,
A 'Paradox' was born,
The corn was full of kernels
And the 'colonels' full of corn."[232]

But Marshall heartily disliked the formal society of the National Capital. He was, of course, often invited to dinners and receptions, but he was usually bored by their formality. Occasionally he would brighten his letters to his wife by short mention of some entertainment. "Since being in this place,"[Pg 84] he writes her, "I have been more in company than I wish.... I have been invited to dine with the President with our own secretaries & with the minister of France & tomorrow I dine with the British minister.... In the midst of these gay circles my mind is carried to my own fireside & to my beloved wife."[233]

Again: "Soon after dinner yesterday the French Chargé d'affaires called upon us with a pressing invitation to be present at a party given to the young couple, a gentleman of the French legation & the daughter of the secretary of the navy who are lately married. There was a most brilliant illumination which we saw and admired, & then we returned."[234] Of a dinner at the French Legation he writes his wife, it was "rather a dull party. Neither the minister nor his lady could speak English and I could not speak French. You may conjecture how far we were from being sociable. Yesterday I dined with Mr Van Buren the secretary of State. It was a grand dinner and the secretary was very polite, but I was rather dull through the evening. I make a poor return for these dinners. I go to them with reluctance and am bad company while there. I hope we have seen the last, but I fear we must encounter one more.[235] With the exception of these parties my time was never passed with more uniformity. I rise early, pour [sic] over law cases, go to court and return at[Pg 85] the same hour and pass the evening in consultation with the Judges."[236]

Chester Harding relates that, when he was in Washington making a full-length portrait of the Chief Justice,[237] Marshall arrived late for the sitting, which had been fixed for eight o'clock in the evening. He came without a hat. Congressman Storrs and one or two other men, having seen Marshall, bare-headed, hurrying by their inn with long strides, had "followed, curious to know the cause of such a strange appearance." But Marshall simply explained to the artist that the consultation lasted longer than usual, and that he had hurried off without his hat. When the Chief Justice was about to go home, Harding offered him a hat, but he said, "Oh, no! it is a warm night, I shall not need one."[238]

No attorney practicing in the Supreme Court was more unreserved in social conversation than was the Chief Justice. Sometimes, indeed, on a subject that appealed to him, Marshall would do all the talking, which, for some reason, would occasionally be quite beyond the understanding of his hearer. Of one such exhibition Fisher Ames remarked to Samuel Dexter: "I have not understood a word of his argument for[Pg 86] half an hour." "And I," replied the leader of the Massachusetts bar, "have been out of my depth for an hour and a half."[239]

The members of the Supreme Court made life as pleasant for themselves as they could during the weeks they were compelled to remain in "this dismal" place, as Daniel Webster described the National Capital. Marshall and the Associate Justices all lived together at one boarding-house, and thus became a sort of family. "We live very harmoniously and familiarly,"[240] writes Story, one year after his appointment. "My brethren are very interesting men," he tells another friend. We "live in the most frank and unaffected intimacy. Indeed, we are all united as one, with a mutual esteem which makes even the labors of Jurisprudence light."[241]

Sitting about a single table at their meals, or gathered in the room of one of them, these men talked over the cases before them. Not only did they "moot every question as" the arguments proceeded in court, but by "familiar conferences at our lodgings often come to a very quick, and ... accurate opinion, in a few hours," relates that faithful chronicler of their daily life, Joseph Story.[242] Story appears to have been even more impressed by the comradery of the members of the Supreme Court than by the difficulty of the cases they had to decide.

None of them ever took his wife with him to Washington, and this fact naturally made the personal relations of the Justices peculiarly close. "The[Pg 87] Judges here live with perfect harmony," Story reiterates, "and as agreeably as absence from friends and from families could make our residence. Our intercourse is perfectly familiar and unconstrained, and our social hours when undisturbed with the labors of law, are passed in gay and frank conversation, which at once enlivens and instructs."[243]

This "gay and frank conversation" of Marshall and his associates covered every subject—the methods, manners, and even dress of counsel who argued before them, the fortunes of public men, the trend of politics, the incident of the day, the gossip of society. "Two of the Judges are widowers," records Story, "and of course objects of considerable attraction among the ladies of the city. We have fine sport at their expense, and amuse our leisure with some touches at match-making. We have already ensnared one of the Judges, and he is now (at the age of forty-seven) violently affected with the tender passion."[244]

Thus Marshall, in his relation with his fellow occupants of the bench, was at the head of a family as much as he was Chief of a court. Although the discussion of legal questions occurred continuously at the boarding-house, each case was much more fully examined in the consultation room at the Capitol. There the court had a regular "consultation day" devoted exclusively to the cases in hand. Yet, even on these occasions, all was informality, and wit and humor brightened the tediousness. These "consul[Pg 88]tations" lasted throughout the day and sometimes into the night; and the Justices took their meals while the discussions proceeded. Amusing incidents, some true, some false, and others a mixture, were related of these judicial meetings. One such story went the rounds of the bar and outlived the period of Marshall's life.

"We are great ascetics, and even deny ourselves wine except in wet weather," Story dutifully informed his wife. "What I say about the wine gives you our rule; but it does sometimes happen that the Chief Justice will say to me, when the cloth is removed, 'Brother Story, step to the window and see if it does not look like rain.' And if I tell him that the sun is shining brightly, Judge Marshall will sometimes reply, 'All the better, for our jurisdiction extends over so large a territory that the doctrine of chances makes it certain that it must be raining somewhere.'"[245]

When, as sometimes happened, one of the Associate Justices displeased a member of the bar, Marshall would soothe the wounded feelings of the lawyer. Story once offended Littleton W. Tazewell of Virginia by something said from the bench. "On my return from court yesterday," the Chief Justice hastened to write the irritated Virginian, "I informed Mr Story that you had been much hurt at an expression used in the opinion he had delivered in the case of the Palmyra. He expressed equal surprize and regret on the occasion, and declared that the[Pg 89] words which had given offense were not used or understood by him in an offensive sense. He assented without hesitation to such modification of them as would render them in your view entirely unexceptionable."[246]

As Chief Justice, Marshall shrank from publicity, while printed adulation aggravated him. "I hope to God they will let me alone 'till I am dead," he exclaimed, when he had reached that eminence where writers sought to portray his life and character.[247]

He did, however, appreciate the recognition given from time to time by colleges and learned societies. In 1802 Princeton conferred upon him the honorary degree of LL.D.; in 1806 he received the same degree from Harvard and from the University of Pennsylvania in 1815. In 1809, as we have seen, he was elected a corresponding member of the Massachusetts Historical Society; on January 24, 1804, he was made a member of the American Academy of Arts and Sciences; and, in 1830, was elected to the American Philosophical Society. All these honors Marshall valued highly.

This, then, was the man who presided over the Supreme Court of the United States when the decisions of that tribunal developed the National powers of the Constitution and gave stability to our National life. His control of the court was made so easy for the Justices that they never resented it; often, perhaps, they did not realize it. The influence of his strong, deep, clear mind was powerfully aided[Pg 90] by his engaging personality. To agree with him was a pleasure.

Marshall's charm was as great as his intellect; he was never irritable; his placidity was seldom ruffled; not often was his good nature disturbed. His "great suavity, or rather calmness of manner, cannot readily be conceived," testifies George Bancroft.[248] The sheer magnitude of his views was, in itself, captivating, and his supremely lucid reasoning removed the confusion which more complex and subtle minds would have created in reaching the same conclusion. The elements of his mind and character were such, and were so combined, that it was both hard and unpleasant to differ with him, and both easy and agreeable to follow his lead.

Above all other influences upon his associates on the bench, and, indeed, upon everybody who knew him, was the sense of trustworthiness, honor, and uprightness he inspired.[249] Perhaps no public man ever stood higher in the esteem of his contemporaries for noble personal qualities than did John Marshall.

When reviewing his constructive work and marveling at his influence over his judicial associates, we must recall, even at the risk of iteration, the figure revealed by his daily life and habits—"a man who is tall to awkwardness, with a large head of[Pg 91] hair, which looked as if it had not been lately tied or combed, and with dirty boots,"[250] a body that seemed "without proportion," and arms and legs that "dangled from each other and looked half dislocated," dressed in clothes apparently "gotten from some antiquated slop-shop of second-hand raiment ... the coat and breeches cut for nobody in particular."[251] But we must also think of such a man as possessed of "style and tones in conversation uncommonly mild, gentle, and conciliating."[252] We must think of his hearty laughter, his "imperturbable temper,"[253] his shyness with strangers, his quaint humor, his hilarious unreserve with friends and convivial jocularity when with intimates, his cordial warm-heartedness, unassuming simplicity and sincere gentleness to all who came in contact with him—a man without "an atom of gall in his whole composition."[254] We must picture this distinctive American character among his associates of the bench in the Washington boarding-house no less than in court, his luminous mind guiding them, his irresistible personality drawing from them a real and lasting affection. We must bear in mind the trust and confidence which so powerfully impressed those who knew the man. We must imagine a person very much like Abraham Lincoln.

[Pg 92]

Indeed, the resemblance of Marshall to Lincoln is striking. Between no two men in American history is there such a likeness. Physically, intellectually, and in characteristics, Marshall and Lincoln were of the same type. Both were very tall men, slender, loose-jointed, and awkward, but powerful and athletic; and both fond of sport. So alike were they, and so identical in their negligence of dress and their total unconsciousness of, or indifference to, convention, that the two men, walking side by side, might well have been taken for brothers.

Both Marshall and Lincoln loved companionship with the same heartiness, and both had the same social qualities. They enjoyed fun, jokes, laughter, in equal measure, and had the same keen appreciation of wit and humor. Their mental qualities were the same. Each man had the gift of going directly to the heart of any subject; while the same lucidity of statement marked each of them. Their style, the simplicity of their language, the peculiar clearness of their logic, were almost identical. Notwithstanding their straightforwardness and amplitude of mind, both had a curious subtlety. Some of Marshall's opinions and Lincoln's state papers might have been written by the same man. The "Freeholder" questions and answers in Marshall's congressional campaign, and those of Lincoln's debate with Douglas, are strikingly similar in method and expression.

Each had a genius for managing men; and Marshall showed the precise traits in dealing with the[Pg 93] members of the Supreme Court that Lincoln displayed in the Cabinet.

Both were born in the South, each on the eve of a great epoch in American history when a new spirit was awakening in the hearts of the people. Although Southern-born, both Marshall and Lincoln sympathized with and believed in the North; and yet their manners and instinct were always those of the South. Marshall was given advantages that Lincoln never had; but both were men of the people, were brought up among them, and knew them thoroughly. Lincoln's outlook upon life, however, was that of the humblest citizen; Marshall's that of the well-placed and prosperous. Neither was well educated, but each acquired, in different ways, a command of excellent English and broad, plain conceptions of government and of life. Neither was a learned man, but both created the materials for learning.

Marshall and Lincoln were equally good politicians; but, although both were conservative in their mental processes, Marshall lost faith in the people's steadiness, moderation, and self-restraint; and came to think that impulse rather than wisdom was too often the temporary moving power in the popular mind, while the confidence of Lincoln in the good sense, righteousness, and self-control of the people became greater as his life advanced. If, with these distinctions, Abraham Lincoln were, in imagination, placed upon the Supreme Bench during the period we are now considering, we should have a good idea of John Marshall, the Chief Justice of the United States.[Pg 94]

It is, then, largely the personality of John Marshall that explains the hold, as firm and persistent as it was gentle and soothing, maintained by him upon the Associate Justices of the Supreme Court; and it is this, too, that enables us to understand his immense popularity with the bar—a fact only second in importance to the work he had to do, and to his influence upon the men who sat with him on the bench.

For the lawyers who practiced before the Supreme Court at this period were most helpful to Marshall.[255] Many of them were men of wide and accurate learning, and nearly all of them were of the first order of ability. No stronger or more brilliant bar ever was arrayed before any bench than that which displayed its wealth of intellect and resources to Marshall and his associates.[256] This assertion is strong, but wholly justified. Oratory of the finest quality, though of the old rhetorical kind, filled the court-room with admiring spectators, and entertained Marshall and the other Justices, as much as the solid reasoning illuminated their minds, and the exhaustive learning informed them.[Pg 95]

Marshall encouraged extended arguments; often demanded them. Frequently a single lawyer would speak for two or three days. No limit of time was put upon counsel.[257] Their reputation as speakers as well as their fame as lawyers, together with the throngs of auditors always present, put them on their mettle. Rhetoric adorned logic; often encumbered it. A conflict between such men as William Pinkney, Luther Martin of Maryland, Samuel Dexter of Massachusetts, Thomas Addis Emmet of New York, William Wirt of Virginia, Joseph Hopkinson of Pennsylvania, Jeremiah Mason of New Hampshire, Daniel Webster, Henry Clay, and others of scarcely less distinction, was, in itself, an event. These men, and indeed all the members of the bar, were Marshall's friends as well as admirers.

The appointment of Story to the Supreme Bench was, like the other determining circumstances in Marshall's career, providential.

Few characters in American history are more attractive than the New England lawyer and publicist who, at the age of thirty-two, took his place at Marshall's side on the Supreme Bench. Hand[Pg 96]some, vivacious, impressionable, his mind was a storehouse of knowledge, accurately measured and systematically arranged. He read everything, forgot nothing. His mental appetite was voracious, and he had a very passion for research. His industry was untiring, his memory unfailing. He supplied exactly the accomplishment and toilsomeness that Marshall lacked. So perfectly did the qualities and attainments of these two men supplement one another that, in the work of building the American Nation, Marshall and Story may be considered one and the same person.

Where Marshall was leisurely, Story was eager. If the attainments of the Chief Justice were not profuse, those of his young associate were opulent. Marshall detested the labor of investigating legal authorities; Story delighted in it. The intellect of the older man was more massive and sure; but that of the youthful Justice was not far inferior in strength, or much less clear and direct in its operation. Marshall steadied Story while Story enriched Marshall. Each admired the other, and between them grew an affection like that of father and son.

Story's father, Elisha Story, was a member of the Republican Party, a rare person among wealthy and educated men in Massachusetts at the time Jefferson founded that political organization. The son tells us that he "naturally imbibed the same opinions," which were so reprobated that not "more than four or five lawyers in the whole state ... dared avow themselves republicans. The very name was odious."[258]

[Pg 97]

Joseph Story was born in Marblehead, Massachusetts, September 18, 1779, one of a family of eighteen children, seven by a first wife and eleven by a second. He was the eldest son of the second wife, who had been a Miss Pedrick, the daughter of a rich merchant and shipowner.[259]

No young member of the Massachusetts bar equaled Joseph Story in intellectual gifts and acquirements. He was a graduate of Harvard, and few men anywhere had a broader or more accurate education. His personality was winning and full of charm. Yet, when he began practice at Salem, he was "persecuted" with "extreme ... virulence" because of his political opinions.[260] He became so depressed by what he calls "the petty prejudices and sullen coolness of New England, ... bigoted in opinion and satisfied in forms," where Federalism had "persecuted ... [him] unrelentingly for ... [his] political principles," that he thought seriously of going to Baltimore to live and practice his profession. He made headway, however, in spite of opposition; and, when the growing Republican Party, "the whole" of which he says were his "warm advocates,"[261] secured the majority of his district, Story was sent to Congress. "I was ... of course a supporter of the administration of Mr. Jefferson and Mr. Madison," although not "a[Pg 98] mere slave to the opinions of either." In exercising what he terms his "independent judgment,"[262] Story favored the repeal of the Embargo, and so earned, henceforth, the lasting enmity of Jefferson.[263]

Because of his recognized talents, and perhaps also because of the political party to which he belonged, he was employed to go to Washington as attorney for the New England and Mississippi Company in the Yazoo controversy.[264] It was at this period that the New England Federalist leaders began to cultivate him. They appreciated his ability, and the assertion of his "independent principles" was to their liking. Harrison Gray Otis was quick to advise that seasoned politician, Robert Goodloe Harper, of the change he thought observable in Story, and the benefit of winning his regard. "He is a young man of talents, who commenced Democrat a few years since and was much fondled by his party," writes Otis. "He discovered however too much sentiment and honor to go all lengths ... and a little attention from the right sort of people will be very useful to him & to us."[265]

The wise George Cabot gave Pickering the same hint when Story made one of his trips to Washington on the Yazoo business. "Though he is a man whom the Democrats support," says Cabot, "I have seldom if ever met with one of sounder mind on the principal points of national policy. He is well worthy the civil attention of the most respectable Federalists."[266][Pg 99]

It was while in the Capital, as attorney before Congress and the Supreme Court in the Georgia land controversy, that Story, then twenty-nine years old, met Marshall; and impulsively wrote of his delight in the "hearty laugh," "patience," consideration, and ability of the Chief Justice. On this visit to Washington the young Massachusetts lawyer took most of his meals with the members of the Supreme Court.[267] At that time began the devotion of Joseph Story to John Marshall which was to prove so helpful to both for more than a generation, and so influential upon the Republic for all time.

That Story, while in Washington, had copiously expressed his changing opinions, as well as his disapproval of Jefferson's Embargo, is certain; for he was "a very great talker,"[268] and stated his ideas with the volubility of his extremely exuberant nature. "At this time, as in after life," declares Story's son, "he was remarkable for fulness and fluency of conversation. It poured out from his mind ... sparkling, and exhaustless. Language was as a wide open sluice, through which every feeling and thought rushed forth.... It would be impossible to give an idea of his conversational powers."[269]

It was not strange, then, that Jefferson, who was eager for all gossip and managed to learn everything that happened, or was said to have happened, in Washington, heard of Story's association with the Federalists, his unguarded talk, and especially his admiration for the Chief Justice. It was plain to[Pg 100] Jefferson that such a person would never resist Marshall's influence.

In Jefferson's mind existed another objection to Story which may justly be inferred from the situation in which he found himself when the problem arose of filling the place on the Supreme Bench vacated by the death of Justice Cushing. Story had made a profound study of the law of real estate; and, young though he was, no lawyer in America equaled him, and few in England surpassed him, in the intricate learning of that branch of legal science. This fact was well known to the bar at Washington as well as to that of Massachusetts. Therefore, the thought of Story on the Supreme Bench, and under Marshall's influence, made Jefferson acutely uncomfortable; for the former President was then engaged in a lawsuit involving questions of real estate which, if decided against him, would, as he avowed, ruin him. This lawsuit was the famous Batture litigation. It was this predicament that led Jefferson to try to control the appointment of the successor to Cushing, whose death he declared to be "a Godsend"[270] to him personally; and also to dictate the naming of the district judge at Richmond to the vacancy caused by the demise of Judge Cyrus Griffin.

In the spring of 1810, Edward Livingston, formerly of New York and then of New Orleans, brought suit in the United States Court for the District of Virginia against Thomas Jefferson for damages to the amount of one hundred thousand dollars.[Pg 101] This was the same Livingston who in Congress had been the Republican leader in the House when Marshall was a member of that body.[271] Afterwards he was appointed United States Attorney for the District of New York and then became Mayor of that city. During the yellow fever epidemic that scourged New York in 1803, Livingston devoted himself to the care of the victims of the plague, leaving the administration of the Mayor's office to a trusted clerk. In time Livingston, too, was stricken. During his illness his clerk embezzled large sums of the public money. The Mayor was liable and, upon his recovery, did not attempt to evade responsibility, but resigned his office and gave all his property to make good the defalcation. A heavy amount, however, still remained unpaid; and the discharge of this obligation became the ruling purpose of Livingston's life until, twenty years afterward, he accomplished his object.

His health regained, Livingston went to New Orleans to seek fortune anew. There he soon became the leader of the bar. When Wilkinson set up his reign of terror in that city, it was Edward Livingston who swore out writs of habeas corpus for those illegally imprisoned and, in general, was the most vigorous as well as the ablest of those who opposed Wilkinson's lawless and violent measures.[272] Jefferson had been displeased that Livingston had not shown more enthusiasm for him, when, in 1801, the Federalists had tried to elect Burr to the Presidency,[Pg 102] and bitterly resented Livingston's interference with Wilkinson's plans to "suppress treason" in New Orleans.

One John Gravier, a lifelong resident of that city, had inherited from his brother Bertrand certain real estate abutting the river. Between this and the water the current had deposited an immense quantity of alluvium. The question of the title to this river-made land had never been raised, and everybody used it as a sort of common wharf front. Alert for opportunities to make money with which fully to discharge the defalcation in the New York Mayor's office, Livingston investigated the rightful ownership of the batture, as the alluvial deposit was termed; satisfied himself that the title was in Gravier; gave an opinion to that effect, and brought suit for the property as Gravier's attorney.[273] While the trial of Aaron Burr was in progress in Richmond, the Circuit Court in New Orleans rendered judgment in favor of Gravier,[274] who then conveyed half of his rights to his attorney, apparently as a fee for the recovery of the batture.

Livingston immediately began to improve his property, whereupon the people became excited and drove away his workmen. Governor Claiborne refused to protect him and referred the whole matter to Jefferson. The President did not direct the Attorney-General to bring suit for the possession of the batture—the obvious and the legal form of procedure. Indeed, the title to the property was not so much as examined. Jefferson did not even take into[Pg 103] consideration the fact that, if Livingston was not the rightful owner of the batture, it might belong to the City of New Orleans. He merely assumed that it was National property; and, hastily acting under a law against squatters on lands belonging to the United States, he directed Secretary of State Madison to have all persons removed from the disputed premises. Accordingly, the United States Marshal was ordered to eject the "intruder" and his laborers. This was done; but Livingston told his men to return to their work and secured an injunction against the Marshal from further molesting them. That official ignored the order of the court and again drove the laborers off the batture.

Livingston begged the President to submit the controversy to arbitration or to judicial decision, but Jefferson was deaf to his pleas. The distracted lawyer appealed to Congress for relief.[275] That body ignored his petition.[276] He then brought suit against the Marshal in New Orleans for the recovery of his property. Soon afterward he brought another in Virginia against Jefferson for one hundred thousand dollars damages. Such, in brief outline, was the beginning of the famous "Batture Controversy," in which Jefferson and Livingston waged a war of pamphlets for years.

When he learned that Livingston had begun action against him in the Federal court at Richmond, Jefferson was much alarmed. In anticipation of the death of Judge Cyrus Griffin, Governor John Tyler[Pg 104] had written Jefferson that, while he "never did apply for an office," yet "Judge Griffin is in a low state of health, and holds my old office." Tyler continues: "I really hope the President will chance to think of me ... in case of accidents, and if an opportunity offers, lay me down softly on a bed of roses in my latter days." He condemns Marshall for his opposition to the War of 1812, and especially for his reputed statement that Great Britain had done nothing to justify armed retaliation on our part.[277] "Is it possible," asks Tyler, "that a man who can assert this, can have any true sense of sound veracity? And yet these sort of folks retain their stations and consequence in life."[278]

Immediately Jefferson wrote to President Madison: "From what I can learn Griffin cannot stand it long, and really the state has suffered long enough by having such a cypher in so important an office, and infinitely the more from the want of any counter-point to the rancorous hatred which Marshall bears to the government of his country, & from the cunning & sophistry within which he is able to enshroud himself. It will be difficult to find a character of firmness enough to preserve his independence on the same bench with Marshall. Tyler, I am certain, would do it.... A milk & water character ... would be seen as a calamity. Tyler having been the former state judge of that court too, and removed to make way for so wretched a fool as Griffin,[279] has a kind of right of reclamation."[Pg 105]

Jefferson gives other reasons for the appointment of Tyler, and then addresses Madison thus: "You have seen in the papers that Livingston has served a writ on me, stating damages at 100,000. D... I shall soon look into my papers to make a state of the case to enable them to plead." Jefferson hints broadly that he may have to summon as witnesses his "associates in the proceedings," one of whom was Madison himself.

He concludes this astounding letter in these words: "It is a little doubted that his [Livingston's] knolege [sic] of Marshall's character has induced him to bring this action. His twistifications of the law in the case of Marbury, in that of Burr, & the late Yazoo case shew how dexterously he can reconcile law to his personal biasses: and nobody seems to doubt that he is ready prepared to decide that Livingston's right to the batture is unquestionable, and that I am bound to pay for it with my private fortune."[280]

The next day Jefferson wrote Tyler that he had "laid it down as a law" to himself "never to embarrass the President with any solicitations." Yet, in Tyler's case, says Jefferson, "I ... have done it with all my heart, and in the full belief that I serve him[Pg 106] and the public in urging the appointment." For, Jefferson confides to the man who, in case Madison named him, would, with Marshall, hear the suit, "we have long enough suffered under the base prostitution of the law to party passions in one judge, and the imbecility of another.

"In the hands of one [Marshall] the law is nothing more than an ambiguous text, to be explained by his sophistry into any meaning which may subserve his personal malice. Nor can any milk-and-water associate maintain his own independence, and by a firm pursuance of what the law really is, extend its protection to the citizens or the public.... And where you cannot induce your colleague to do what is right, you will be firm enough to hinder him from doing what is wrong, and by opposing sense to sophistry, leave the juries free to follow their own judgment."[281]

Upon the death of Judge Griffin in the following December, John Tyler was appointed to succeed him.

On September 13, 1810, William Cushing, Associate Justice of the Supreme Court, died. Only three Federalists now remained on the Supreme Bench, Samuel Chase, Bushrod Washington, and John Marshall. The other Justices, William Johnson of South Carolina, Brockholst Livingston of New York, and Thomas Todd of Kentucky, were Republicans, appointed by Jefferson. The selection of Cushing's successor would give the majority of the court to the Republican Party for the first time since its organization.[Pg 107] That Madison would fill the vacancy by one of his own following was certain; but this was not enough to satisfy Jefferson, who wanted to make sure that the man selected was one who would not fall under Marshall's baleful influence. If Griffin did not die in time, Jefferson's fate in the batture litigation would be in Marshall's hands.

Should Griffin be polite enough to breathe his last promptly and Tyler be appointed in season, still Jefferson would not feel safe—the case might go to the jury, and who could tell what their verdict would be under Marshall's instructions? Even Tyler might not be able to "hinder" Marshall "from wrong doing"; for nothing was more probable than that, no matter what the issue of the case might be, it would be carried to the Supreme Court if any ground for appeal could be found. Certainly Jefferson would take it there if the case should go against him. It was vital, therefore, that the latest vacancy on the Supreme Bench should also be filled by a man on whom Jefferson could depend.

The new Justice must come from New England, Cushing having presided over that circuit. Republican lawyers there, fit for the place, were at that time extremely hard to find. Jefferson had been corresponding about the batture case with Gallatin, who had been his Secretary of the Treasury and continued in that office under Madison. The moment he learned of Cushing's death, Jefferson wrote to Gallatin in answer to a letter from that able man, admitting that "the Batture ... could not be within the scope of the law ... against squatters," under[Pg 108] color of which Livingston had been forcibly ousted from that property. Jefferson adds: "I should so adjudge myself; yet I observe many opinions otherwise, and in defence against a spadassin it is lawful to use all weapons." The case is complex; still no unbiased man "can doubt what the issue of the case ought to be. What it will be, no one can tell.

"The judge's [Marshall's] inveteracy is profound, and his mind of that gloomy malignity which will never let him forego the opportunity of satiating it on a victim. His decisions, his instructions to a jury, his allowances and disallowances and garblings of evidence, must all be subjects of appeal.... And to whom is my appeal? From the judge in Burr's case to himself and his associate judges in the case of Marbury v. Madison.

"Not exactly, however. I observe old Cushing is dead.... The event is a fortunate one, and so timed as to be a Godsend to me. I am sure its importance to the nation will be felt, and the occasion employed to complete the great operation they have so long been executing, by the appointment of a decided Republican, with nothing equivocal about him. But who will it be?"

Jefferson warmly recommends Levi Lincoln, his former Attorney-General. Since the new Justice must come from New England, "can any other bring equal qualifications?... I know he was not deemed a profound common lawyer; but was there ever a profound common lawyer known in one of the Eastern States? There never was, nor never can be,[Pg 109] one from those States.... Mr. Lincoln is ... as learned in their laws as any one they have."[282]

After allowing time for Gallatin to carry this message to the President, Jefferson wrote directly to Madison. He congratulates him on "the revocation of the French decrees"; abuses Great Britain for her "principle" of "the exclusive right to the sea by conquest"; and then comes to the matter of the vacancy on the Supreme Bench.

"Another circumstance of congratulation is the death of Cushing," which "gives an opportunity of closing the reformation [the Republican triumph of 1800] by a successor of unquestionable republican principles." Jefferson suggests Lincoln. "Were he out of the way," then Gideon Granger ought to be chosen, "tho' I am sensible that J.[ohn] R.[andolph] has been able to lessen the confidence of many in him.[283]... As the choice must be of a New Englander, ... I confess I know of none but these two characters." Of course there was Joseph Story, but he is "unquestionably a tory," and "too young."[284]

Madison strove to follow Jefferson's desires. Cushing's place was promptly offered to Lincoln, who de[Pg 110]clined it because of approaching blindness. Granger, of course, was impossible—the Senate would not have confirmed him. So Alexander Wolcott, "an active Democratic politician of Connecticut," of mediocre ability and "rather dubious ... character,"[285] was nominated; but the Senate rejected him. It seemed impossible to find a competent lawyer in New England who would satisfy Jefferson's requirements. John Quincy Adams, who had deserted the Federalist Party and acted with the Republicans, and who was then Minister to Russia, was appointed and promptly confirmed. Jefferson himself had not denounced Marshall so scathingly as had Adams in his report to the Senate on the proposed expulsion of Senator John Smith of Ohio.[286] It was certain that he would not, as Associate Justice, be controlled by the Chief Justice. But Adams preferred to continue in his diplomatic post, and refused the appointment.

Thus Story became the only possible choice. After all, he was still believed to be a Republican by everybody except Jefferson and the few Federalist leaders who had been discreetly cultivating him. At least his appointment would not be so bad as the selection of an out-and-out Federalist. On November 18, 1811, therefore, Joseph Story was made an Associate Justice of the Supreme Court of the United States. In Massachusetts his appointment "was ridiculed and condemned."[287]

Although Jefferson afterward declared that he[Pg 111] "had a strong desire that the public should have been satisfied by a trial on the merits,"[288] he was willing that his counsel should prevent the case from coming to trial if they could. Fearing, however, that they would not succeed, Jefferson had prepared, for the use of his attorneys, an exhaustive brief covering his version of the facts and his views of the law. Spencer Roane, Judge of the Virginia Court of Appeals, and as hot a partisan of Jefferson as he was an implacable enemy of Marshall, read this manuscript and gave Tyler "some of the outlines of it." Tyler explains this to Jefferson after the decision in his favor, and adds that, much as Tyler wanted to get hold of Jefferson's brief, still, "as soon as I had received the appointment ... (which I owe to your favor in great measure), it became my duty to shut the door against every observation which might in any way be derived from either side, lest the impudent British faction, who had enlisted on Livingston's side, might suppose an undue influence had seized upon me."[289]

The case aroused keen interest in Virginia and, indeed, throughout the country. Jefferson was still the leader of the Republican Party and was as much beloved and revered as ever by the great majority of the people. When, therefore, he was sued for so large a sum of money, the fact excited wide and lively attention. That the plaintiff was such a man as Edward Livingston gave sharper edge to the general interest. Especially among lawyers, curiosity as to the out[Pg 112]come was keen. In Richmond, of course, "great expectation was excited."

When the case came on for hearing, Tyler was so ill from a very painful affliction that he could scarcely sit through the hearing; but he persisted because he had "determined to give an opinion." The question of jurisdiction alone was argued and only this was decided. Both judges agreed that the court had no jurisdiction, though Marshall did so with great reluctance. He wished "to carry the cause to the Supreme Court, by adjournment or somehow or other; but," says Tyler in his report to Jefferson, "I pressed the propriety of [its] being decided."[290]

Marshall, however, delivered a written opinion in which he gravely reflected on Jefferson's good faith in avoiding a trial on the merits. If the court, upon mere technicality, were prevented from trying and deciding the case, "the injured party may have a clear right without a remedy"; and that, too, "in a case where a person who has done the wrong, and who ought to make the compensation, is within the power of the court." The situation created by Jefferson's objection to the court's jurisdiction was unfortunate: "Where the remedy is against the person, and is within the power of the court, I have not yet discerned a reason, other than a technical one, which can satisfy my judgment" why the case should not be tried and justice done.

"If, however," continues Marshall, "this technical reason is firmly established, if all other judges respect it, I cannot venture to disregard it," no matter[Pg 113] how wrong in principle and injurious to Livingston the Chief Justice might think it. If Lord Mansfield, "one of the greatest judges who ever sat upon any bench, and who has done more than any other, to remove those technical impediments which ... too long continued to obstruct the course of substantial justice," had vainly attempted to remove the very "technical impediments" which Jefferson had thrown in Livingston's way, Marshall would not make the same fruitless effort.

To be sure, the technical point raised by Jefferson's counsel was a legal fiction derived from "the common law of England"; but "this common law has been adopted by the legislature of Virginia"; and "had it not been adopted, I should have thought it in force." Thus Marshall, by innuendo, blames Jefferson for invoking, for his own protection, a technicality of that very common law which the latter had so often and so violently denounced. For the third time Marshall deplores the use of a technicality "which produces the inconvenience of a clear right without a remedy." "Other judges have felt the weight of this argument, and have struggled ineffectually against" it; so, he concluded, "I must submit to it."[291]

Thus it was that Jefferson at last escaped; for it was nothing less than an escape. What a decision on the merits of the case would have been is shown by the opinion of Chancellor Kent, stated with his characteristic emphasis. Jefferson was anxious that the public should think that he was in the right. "Mr. Livingston's suit having gone off on the plea to the[Pg 114] jurisdiction, it's foundation remains of course unexplained to the public. I have therefore concluded to make it public thro' the ... press.... I am well satisfied to be relieved from it, altho' I had a strong desire that the public should have been satisfied by a trial on the merits."[292] Accordingly, Jefferson prepared his statement of the controversy and, curiously enough, published it just before Livingston's suit against the United States Marshal in New Orleans was approaching decision. To no other of his documents did he give more patient and laborious care. Livingston replied in an article[293] which justified the great reputation for ability and learning he was soon to acquire in both Europe and America.[294] Kent followed this written debate carefully. When Livingston's answer appeared, Kent wrote him: "I read it eagerly and studied it thoroughly, with a re-examination of Jefferson as I went along; and I should now be as willing to subscribe my name to the validity of your title and to the atrocious injustice you have received as to any opinion contained in Johnson's Reports."[295][Pg 115]

Marshall's attitude in the Batture litigation intensified Jefferson's hatred for the Chief Justice, while Jefferson's conduct in the whole matter still further deepened Marshall's already profound belief that the great exponent of popular government was dishonest and cowardly. Story shared Marshall's views; indeed, the Batture controversy may be said to have furnished that personal element which completed Story's forming antagonism to Jefferson. "Who ... can remember, without regret, his conduct in relation to the batture of New Orleans?" wrote Story many years afterward.[296]

The Chief Justice attributed the attacks which Jefferson made upon him in later years to his opinion in Livingston vs. Jefferson, and to the views he was known to have held as to the merits of that case and Jefferson's course in relation to it. "The Batture will never be forgotten," wrote the Chief Justice some years later when commenting on the attacks upon the National Judiciary which he attributed to[Pg 116] Jefferson.[297] Again: "The case of the mandamus[298] may be the cloak, but the batture is recollected with still more resentment."[299]

Events thus sharpened the hostility of Jefferson and his following to Marshall, but drew closer the bonds between the Chief Justice and Joseph Story. Once under Marshall's pleasing, steady, powerful influence, Story sped along the path of Nationalism until sometimes he was ahead of the great constructor who, as he advanced, was building an enduring and practicable highway.


[156] Jefferson to Madison, May 25,1810, Works: Ford, xi, 140.

"There is no man in the court that strikes me like Marshall.... I have never seen a man of whose intellect I had a higher opinion." (Webster to his brother, March 28, 1814, Private Correspondence of Daniel Webster: Webster, i, 244.)

[157] "In the possession of an ordinary man ... it [the office of Chief Justice] would be very apt to disgrace him." (Story to McLean, Oct. 12, 1835, Story, ii, 208.)

[158] Justice Duval's name is often, incorrectly, spelled with two "l's."

[159] "No man had ever a stronger influence upon the minds of others." (American Jurist, xiv, 242.)

[160] Ingersoll: Historical Sketch of the Second War between the United States and Great Britain, 2d Series, i, 74.

[161] "He was not, in any sense of the word, a learned man." (George S. Hillard in North American Review, xlii, 224.)

[162] See vol. i, 163, of this work; also Southern Literary Messenger, xvii, 154; and Terhune: Colonial Homesteads, 92.

[163] See vol. ii, 139, of this work.

[164] Mordecai: Richmond in By-Gone Days, 64.

[165] Terhune, 91.

[166] Ib. 92; and see Howe: Historical Collections of Virginia, 266.

[167] Green Bag, viii, 486.

[168] Personal experience related by Dr. William P. Palmer to Dr. J. Franklin Jameson, and by him to the author.

[169] Meade: Old Churches, Ministers and Families of Virginia, ii, 222.

[170] Magazine of American History, xii, 70; also Green Bag, viii, 486.

[171] Anderson, 214.

[172] The stage schedule was much shorter, but the hours of travel very long. The stage left Petersburg at 3 A.M., arrived at Warrenton at 8 P.M., left Warrenton at 3 A.M., and arrived at Raleigh the same night. (Data furnished by Professor Archibald Henderson.) The stage was seldom on time, however, and the hardships of traveling in it very great. Marshall used it only when in extreme haste, a state of mind into which he seldom would be driven by any emergency.

[173] Mordecai, 64-65. Bishop Meade says of Marshall on his trips to Fauquier County, "Servant he had none." (Meade, ii, 222.)

[174] As related by M. D. Haywood, Librarian of the Supreme Court of North Carolina, to Professor Archibald Henderson and by him to the author; and see Harper's Magazine, lxx, 610; World's Work, i, 395.

[175] Judge James C. MacRae in John Marshall—Life, Character and Judicial Services: Dillon, ii, 68.

[176] As late as April, 1811, the population of Raleigh was between six hundred and seven hundred. Nearly all the houses were of wood. By 1810 there were only four brick houses in the town.

[177] Magazine of American History, xii, 69.

[178] Account of eye-witness as related by Dr. Kemp P. Battle of Raleigh to Professor Henderson and by him to the author.

Another tavern was opened about 1806 by one John Marshall. He had been one of the first commissioners of Raleigh, serving until 1797. He was no relation whatever to the Chief Justice. As already stated (vol. i, footnote to 15, of this work) the name was a common one.

[179] Mr. W. J. Peele of Raleigh to Professor Henderson.

[180] See infra, 154-56.

[181] Haywood to Steele, June 19, 1805. (MS. supplied by Professor Henderson.)

[182] World's Work, i, 395. This statement is supported by the testimony of Mr. Edward V. Valentine of Richmond, who has spent many years gathering and verifying data concerning Richmond and its early citizens. It is also confirmed by the Honorable James Keith, until recently President of the Court of Appeals of Virginia, and by others of the older residents of Richmond. For some opinions thus written, see chaps, iv, v, and vi of this volume.

[183] Green Bag, viii, 484. Sympathetic Richmond even ordered the town clock and town bell muffled. (Meade, ii, 222.)

[184] Statements of two eye-witnesses, Dr. Richard Crouch and William F. Gray, to Mr. Edward V. Valentine and by him related to the author.

[185] Accounts given Professor J. Franklin Jameson by old residents of Richmond, and by Professor Jameson to the author.

[186] Marshall to his wife, Washington, Feb. 16, 1818, MS.

[187] Same to same, March 12, 1826, MS.

[188] Same to same, Feb. 19, 1829, MS.

[189] Marshall to his wife, Washington, Jan. 30, 1831, MS.

[190] See infra, chap. x.

[191] Mrs. Marshall did not write to her children, it would seem. When he was in Richmond, the Chief Justice himself sent messages from her which were ordinary expressions of affection.

"Your mother is very much gratified with the account you give from yourself and Claudia of all your affairs & especially of your children and hopes for its continuance. She looks with some impatience for similar information from John. She desires me to send her love to all the family including Miss Maria and to tell you that this hot weather distresses her very much & she wishes you also to give her love to John & Elizabeth & their children." (Marshall to his son James K. Marshall, Richmond, July 3, 1827, MS.)

[192] See vol. i, footnote to 189, of this work.

[193] In Leeds Parish, near Oakhill, Fauquier County.

[194] Meade, ii, 221-22.

[195] Green Bag, viii, 487.

[196] Howe, 275-76.

[197] Ib.

[198] This story was originally published in the Winchester Republican. The incident is said to have occurred at McGuire's hotel in Winchester. The newspaper account is reproduced in the Charleston (S.C.) edition (1845) of Howe's book, 275-76.

[199] Joseph Story in Dillon, iii, 364-66.

[200] Martineau: Retrospect of Western Travels, i, 150.

[201] North American Review, xx, 444-45.

[202] Marshall to Story, Oct. 29, 1828, Proceedings, Massachusetts Historical Society, 2d Series, xiv, 337-38.

[203] Thomas, born July 21, 1784; Jacquelin Ambler, born December 3, 1787; Mary, born September 17, 1795; John, born January 15, 1798; James Keith, born February 13, 1800; Edward Carrington, born January 13, 1805. (Paxton: Marshall Family, Genealogical Chart.)

[204] Edward Carrington was the only son to receive the degree of A.B. from Harvard (1826).

[205] Paxton, 100.

[206] Marshall to Story, June 26, 1831, Proceedings, Mass. Hist. Soc. 2d Series, xiv, 344-46.

[207] See vol. i, 55-56, of this work.

[208] Howe (Charleston, S.C., ed. of 1845), 266.

[209] Meade, ii, 222.

[210] Tyler: Tyler, i, 220; and see vol. ii, 182-83, of this work.

[211] White: A Sketch of Chester Harding, Artist, 195-96.

[212] Lippincott's Magazine, ii, 624. Paulding makes this comment on Marshall: "In his hours of relaxation he was as full of fun and as natural as a child. He entered into the spirit of athletic exercises with the ardor of youth; and at sixty-odd years of age was one of the best quoit-players in Virginia." (Ib. 626.)

[213] American Turf Register and Sporting Magazine (1829), i, 41-42; and see Mordecai, 188-89.

[214] Recipe for the Quoit Club punch, Green Bag, viii, 482. This recipe was used for many years by the Richmond Light Infantry Blues.

[215] See vol. ii, 183, of this work.

[216] On these occasions Mrs. Marshall spent the nights at the house of her daughter or sister.

[217] For an extended description of Marshall's "lawyer dinners" see Terhune, 85-87.

[218] See vol. i, 44-45, 153-54, of this work.

[219] Marshall to Story, Nov. 26, 1826, Story, i, 506.

[220] Story to his wife, Feb. 26, 1832, ib. ii, 84.

[221] Marshall to Story, Sept. 30, 1829, Proceedings, Mass. Hist. Soc. 2d Series, xiv, 341.

[222] Statement of Miss Elizabeth Marshall of Leeds Manor to the author.

[223] Meade, i, footnote to 99.

[224] World's Work, i, 395.

[225] Gustavus Schmidt in Louisiana Law Journal (1841), i, No. 1, 85-86. Mr. Schmidt's description is of Marshall in the court-room at Richmond when holding the United States Circuit Court at that place. Ticknor, Story, and others show that the same was true in Washington.

[226] Quincy: Figures of the Past, 242-43.

[227] Story to Fay, Feb. 25, 1808, Story, i, 166-67.

[228] Story to Martineau, Oct. 8, 1835, Story, ii, 205.

[229] Ib. i, 522.

[230] Gustavus Schmidt in Louisiana Law Journal (1841), i, No. 1, 85-86.

[231] Related to the author by Mr. Sussex D. Davis of the Philadelphia bar.

[232] Related to the author by Thomas Marshall Smith of Baltimore, a descendant of Marshall. Mr. Smith says that this story has been handed down through three generations of his family.

[233] Marshall to his wife, Feb. 14, 1817, MS.

[234] Same to same, Jan. 4, 1823, MS.

[235] For excellent descriptions of Washington society during Marshall's period see the letters of Moss Kent, then a Representative in Congress. These MSS. are in the Library of Congress. Also see Story to his wife, Feb. 7, 1810, Story, i, 196.

[236] Marshall to his wife, Jan. 30, 1831, MS.

[237] This was painted for the Boston Athenæum. See frontispiece in vol. iii. The other portrait by Harding, painted in Richmond (see supra, 76), was given to Story who presented it to the Harvard Law School.

[238] White: Sketch of Chester Harding, 194-96.

For the Chief Justice to lose or forget articles of clothing was nothing unusual. "He lost a coat, when he dined at the Secretary of the Navy's," writes Story who had been making a search for Marshall's missing garment. (Story to Webster, March 18, 1828, Story MSS. Mass. Hist. Soc.)

[239] Story, ii, 504-05.

[240] Story to Williams, Feb. 16, 1812, ib. i, 214.

[241] Story to Fay, Feb. 24, 1812, ib. 215.

[242] Ib.

[243] Story to his wife, March 5, 1812, Story, i, 217.

[244] Same to same, March 12, 1812, ib. 219.

[245] Magazine of American History, xii, 69; and see Quincy: Figures of the Past, 189-90. This tale, gathering picturesqueness as it was passed by word of mouth during many years, had its variations.

[246] Marshall to Tazewell, Jan. 20, 1827, MS.

[247] Wirt to Delaplaine, Nov. 5, 1818, Kennedy: Memoirs of the Life of William Wirt, ii, 85.

[248] Bancroft to his wife, Jan. 23, 1832, Howe: Life and Letters of George Bancroft, i, 202.

[249] Even Jefferson, in his bitterest attacks, never intimated anything against Marshall's integrity; and Spencer Roane, when assailing with great violence the opinion of the Chief Justice in M'Culloch vs. Maryland (see infra, chap, vi), paid a high tribute to the purity of his personal character.

[250] Ticknor to his father, Feb. 1, 1815, Ticknor: Life, Letters, and Journals of George Ticknor, i, 33.

[251] Description from personal observation, as quoted in Van Santvoord: Lives and Judicial Services of the Chief Justices, footnote to 363.

[252] Ticknor to his father, as cited in note 1, supra.

[253] Memoirs of John Quincy Adams: Adams, ix, 243.

[254] Wirt to Carr, Dec. 30, 1827, Kennedy, 240. For Story's estimate of Marshall's personality see Dillon, iii, 363-66.

[255] "He was solicitous to hear arguments, and not to decide causes without hearing them. And no judge ever profited more by them. No matter whether the subject was new or old; familiar to his thoughts or remote from them; buried under a mass of obsolete learning, or developed for the first time yesterday—whatever was its nature, he courted argument, nay, he demanded it." (Story in Dillon, iii, 377; and see vol. ii, 177-80, of this work.)

[256] See Story's description of Harper, Duponceau, Rawle, Dallas, Ingersoll, Lee, and Martin (Story to Fay, Feb. 16, 1808, Story, i, 162-64); and of Pinkney (notes supra); also see Warren: History of the American Bar, 257-63. We must remember, too, that Webster, Hopkinson, Emmet, Wirt, Ogden, Clay, and others of equal ability and accomplishments, practiced before the Supreme Court when Marshall was Chief Justice.

[257] Story relates that a single case was argued for nine days. (Story to Fay, Feb. 16, 1808, Story, i, 162.)

In the Charlestown Bridge case, argued in 1831, the opening counsel on each side occupied three days. (Story to Ashmun, March 10, 1831, ib. ii, 51.)

Four years later Story writes: "We have now a case ... which has been under argument eight days, and will probably occupy five more." (Story to Fay, March 2, 1835, ib. 193.)

In the lower courts the arguments were even longer. "This is the fourteenth day since this argument was opened. Pinkney ... promised to speak only two hours and a half. He has now spoken two days, and is, at this moment, at it again for the third day." (Wirt to his wife, April 7, 1821, Kennedy, ii, 119.)

[258] Story, i, 96.

[259] Story, i, 2. Elisha Story is said to have been one of the "Indians" who threw overboard the tea at Boston; and he fought at Lexington. When the Revolution got under way, he entered the American Army as a surgeon and served for about two years, when he resigned because of his disgust with the management of the medical department. (Ib.)

[260] Story to Duval, March 30, 1803, ib. 102.

[261] Story to Williams, June 6, 1805, ib. 105-06.

[262] Story, i, 128.

[263] At first, Story supported the Embargo.

[264] See vol. iii, chap, x, of this work.

[265] Otis to Harper, April 19, 1807, Morison: Otis, i, 283.

[266] Cabot to Pickering, Jan. 28, 1808, Lodge: Cabot, 377.

[267] Story to Fay, Feb. 16, 1808, Story, i, 162.

[268] Moss Kent to James Kent, Feb. 1, 1817, Kent MSS. Lib. Cong.

[269] Story, i, 140.

[270] Jefferson to Gallatin, Sept. 27, 1810, Works: Ford, xi, footnote to 152-54.

[271] See vol. ii, 461-74, of this work.

[272] See vol. iii, chap, vi, of this work.

[273] Hunt: Life of Edward Livingston, 138.

[274] Ib. 140.

[275] Annals, 10th Cong. 2d Sess. 702.

[276] Annals, 11th Cong. 1st and 2d Sess. 323, 327-49, 418-19, 1373, 1617-18, 1694-1702.

[277] See supra, 25, 35-41.

[278] Tyler to Jefferson, May 12, 1810, Tyler: Tyler, i, 246-47.

[279] Cyrus Griffin was educated in England; was a member of the first Legislature of Virginia after the Declaration of Independence; was a delegate to the Continental Congress in 1778-81, and again in 1787-88, and was President of that body during the last year of his service. He was made President of the Supreme Court of Admiralty, and held that office until the court was abolished. When the Constitution was adopted, and Washington elected President, one of his first acts, after the passage of the Ellsworth Judiciary Law, was to appoint Judge Griffin to the newly created office of Judge of the United States Court for the District of Virginia. It is thus evident that Jefferson's statement was not accurate.

[280] Jefferson to Madison, May 25, 1810, Works: Ford, xi, 139-41.

[281] Jefferson to Tyler, May 26, 1810, Tyler: Tyler, i, 247-48; also Works: Ford, xi, footnote to 141-43.

[282] Jefferson to Gallatin, Sept. 27, 1810, Works: Ford, xi, footnote to 152-54.

[283] Gideon Granger, as Jefferson's Postmaster-General, had lobbied on the floor of the House for the Yazoo Bill, offering government contracts for votes. He was denounced by Randolph in one of the most scathing arraignments ever heard in Congress. (See vol. iii, 578-79, of this work.)

[284] Jefferson to Madison, Oct. 15, 1810, Works: Ford, xi, 150-52. Granger was an eager candidate for the place, and had asked Jefferson's support. In assuring him that it was given, Jefferson tells Granger of his "esteem & approbation," and adds that the appointment of "a firm unequivocating republican" is vital. (Jefferson to Granger, Oct. 22, 1810, ib. footnote to 155.)

[285] Hildreth: History of the United States, vi, 241; and see Adams: U.S. v, 359-60.

[286] See vol. iii, 541-43, of this work.

[287] Story, i, 212.

[288] Jefferson to Wirt, April 12, 1812, Works: Ford, xi, 227.

[289] Tyler to Jefferson, May 17, 1812, Tyler: Tyler, i, 263.

[290] Tyler to Jefferson, May 17, 1812, Tyler: Tyler, i, 263-64.

[291] 1 Brockenbrough, 206-12.

[292] Jefferson to Wirt, April 12, 1812, Works: Ford, xi, 226-27. On the Batture controversy see Hildreth, vi, 143-48.

[293] The articles of both Jefferson and Livingston are to be found in Hall's American Law Journal (Philadelphia, 1816), vol. v, 1-91, 113-289. A brief but valuable summary of Livingston's reply to Jefferson is found in Hunt: Livingston, 143-80. For an abstract of Jefferson's attack, see Randall: Life of Thomas Jefferson, iii, 266-68.

[294] See Hunt: Livingston, 276-80.

[295] Kent to Livingston, May 13, 1814, Hunt: Livingston, 181-82. Kent was appointed Chancellor of the State of New York, Feb. 25, 1814. His opinions are contained in Johnson's Chancery Reports, to which he refers in this letter.

For twenty years Livingston fought for what he believed to be his rights to the batture, and, in the end, was successful; but in such fashion that the full value of the property was only realized by his family long after his death.

Notwithstanding Jefferson's hostility, Livingston grew in public favor, was elected to the Louisiana State Legislature and then to Congress, where his work was notable. Later, in 1829, he was chosen United States Senator from that State; and, after serving one term, was appointed Secretary of State by President Jackson. In this office he prepared most of the President's state papers and wrote Jackson's great Nullification Proclamation in 1832.

Livingston was then sent as Minister to France and, by his brilliant conduct of the negotiations over the French Spoliation Claims, secured the payment of them. He won fame throughout Europe and Spanish America by his various works on the penal code and code of procedure. In the learning of the law he was not far inferior to Story and Kent.

Aside from one or two sketches, there is no account of his life except an inadequate biography by Charles H. Hunt.

[296] Story, i, 186.

[297] Marshall to Story, Sept. 18, 1821, Proceedings, Mass. Hist. Soc. 2d series, xiv, 330; and see infra, 363-64.

[298] Marbury vs. Madison.

[299] Marshall to Story, July 13, 1821, Proceedings, Mass. Hist. Soc. 2d series, xiv, 328-29.

[Pg 117]



It was Marshall's lot in more than one case to blaze the way in the establishment of rules of international conduct. (John Bassett Moore.)

The defects of our system of government must be remedied, not by the judiciary, but by the sovereign power of the people. (Judge William H. Cabell of the Virginia Court of Appeals.)

I look upon this question as one which may affect, in its consequences, the permanence of the American Union. (Justice William Johnson of the Supreme Court.)

While Marshall unhesitatingly struck down State laws and shackled State authority, he just as firmly and promptly upheld National laws and National authority. In Marbury vs. Madison he proclaimed the power of National courts over Congressional legislation so that the denial of that power might not be admitted at a time when, to do so, would have yielded forever the vital principle of Judiciary supervision.[300] But that opinion is the significant exception to his otherwise unbroken practice of recognizing the validity of acts of Congress.

He carried out this practice even when he believed the law before him to be unwise in itself, injurious to the Nation, and, indeed, of extremely doubtful constitutionality. This course was but a part of Marshall's Nationalist policy. The purpose of his life was to strengthen and enlarge the powers of the National Government; to coördinate into harmonious operation its various departments; and to make it in fact, as well as in principle, the agent of[Pg 118] a people constituting a single, a strong, and efficient Nation.

A good example of his maintenance of National laws is his treatment of the Embargo, Non-Importation, and Non-Intercourse Acts. The hostility of the Chief Justice to those statutes was, as we have seen, extreme; the political party of which he was an ardent member had denounced them as unconstitutional; his closest friends thought them invalid. He himself considered them to be, if within the Constitution at all, on the periphery of it;[301] he believed them to be ruinous to the country and meant as an undeserved blow at Great Britain upon whose victory over France depended, in his opinion, the safety of America and the rescue of imperiled civilization.

Nevertheless, not once did Marshall, in his many opinions, so much as suggest a doubt of the validity of those measures, when cases came before him arising from them and requiring their interpretation and application. Most of these decisions are not now of the slightest historical importance.[302] His opinions relating to the Embargo are, indeed, tiresome[Pg 119] and dull, with scarcely a flash of genius to brighten them. Now and then, but so rarely that search for it is not worth making, a paragraph blazes with the statement of a great principle. In the case of the Ship Adventure and Her Cargo, one such statesmanlike expression illuminates the page. The Non-Intercourse Law forbade importation of British goods "from any foreign port or place whatever." The British ship Adventure had been captured by a French frigate and given to the master and crew of an American brig which the Frenchmen had previously taken. The Americans brought the Adventure into Norfolk, Virginia, and there claimed the proceeds of ship and cargo. The United States insisted that ship and cargo should be forfeited to the Government because brought in from "a foreign place." But, said Marshall on this point: "The broad navigable ocean, which is emphatically and truly termed the great highway of nations, cannot ... be denominated 'a foreign place.'... The sea is the common property of all nations. It belongs equally to all. None can appropriate it exclusively to themselves; nor is it 'foreign' to any."[303]

Where special learning, or the examination of the technicalities and nice distinctions of the law were required, Marshall did not shine. Of admiralty law in particular he knew little. The preparation of opinions in such cases he usually assigned to Story who, not unjustly, has been considered the father of American admiralty law.[304] Also, in knowledge of the intricate law of real estate, Story was the superior of[Pg 120] Marshall and, indeed, of all the other members of the court. Story's preëminence in most branches of legal learning was admitted by his associates, all of whom gladly handed over to the youthful Justice more than his share of work. Story was flattered by the recognition. "My brethren were so kind as to place confidence in my researches,"[305] he tells his friend Judge Samuel Fay.

During the entire twenty-four years that Marshall and Story were together on the Supreme Bench the Chief Justice sought and accepted the younger man's judgment and frankly acknowledged his authority in every variety of legal questions, excepting only those of international law or the interpretation of the Constitution. "I wish to consult you on a case which to me who am not versed in admiralty proceedings has some difficulty," Marshall writes to Story in 1819.[306] In another letter Marshall asks Story's help on a "question of great consequence."[307] Again and again he requests the assistance of his learned junior associate.[308] Sometimes he addresses Story as though that erudite Justice were his superior.[309] Small wonder that John Marshall should declare that Story's "loss would be irreparable" to the Supreme Bench, if he should be appointed to the place made vacant by the death of Chief Justice Parker of Massachusetts.[310][Pg 121]

Only in his expositions of the Constitution did Marshall take supreme command. If he did anything preëminent, other than the infusing of life into that instrument and thus creating a steadying force in the rampant activities of the young American people, it was his contributions to international law, which were of the highest order.[311]

The first two decades of his labors as Chief Justice were prolific in problems involving international relations. The capture of neutral ships by the European belligerents; the complications incident to the struggle of Spanish provinces in South America for independence; the tangle of conflicting claims growing out of the African slave trade—the unsettled questions arising from all these sources made that period of Marshall's services unique in the number, importance, and novelty of cases requiring new and authoritative announcements of the law of nations. An outline of three or four of his opinions in such cases will show the quality of his work in that field of legal science and also illustrate his broad conception of some of the fundamentals of American statesmanship in foreign affairs.

His opinion in the case of the Schooner Exchange lays down principles which embrace much more than was involved in the question immediately before the court[312]—a practice habitual with Marshall and dis[Pg 122]tinguishing him sharply from most jurists. The vessel in controversy, owned by citizens of Maryland, was, in 1810, captured by a French warship, armed, and taken into the French service. The capture was made under one of the decrees of Napoleon when the war between Great Britain and France was raging fiercely. This was the Rambouillet Decree of March 23, 1810, which because of the Non-Intercourse Act of March 1, 1809, ordered that American ships, entering French ports, be seized and sold.[313] The following year the Exchange, converted into a French national war-craft under the name of the Balaou, manned by a French crew, commanded by a French captain, Dennis M. Begon, put into the port of Philadelphia for repairs of injuries sustained in stress of weather. The former owners of the vessel libeled the ship, alleging that the capture was illegal and demanding their property.

In due course this case came before Marshall who, on March 3, 1812, delivered a long and exhaustive opinion, the effect of which is that the question of title to a ship having the character of a man-of-war is not justiciable in the courts of another country. The Chief Justice begins by avowing that he is "exploring an unbeaten path" and must rely, mainly, on "general principles." A nation's jurisdiction within its own territory is "necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself." The nation itself must consent to any restrictions upon its "full and complete power ... within its own territories."[Pg 123]

Nations are "distinct sovereignties, possessing equal rights and equal independence"; and, since mutual intercourse is for mutual benefit, "all sovereigns have consented" in certain cases to relax their "absolute and complete jurisdiction within their respective territories.... Common usage, and ... common opinion growing out of that usage" may determine whether such consent has been given.[314] Even when a nation has not expressly stipulated to modify its jurisdiction, it would be guilty of bad faith if "suddenly and without previous notice" it violated "the usages and received obligations of the civilized world."

One sovereign is not "amenable" to another in any respect, and "can be supposed to enter a foreign territory only under an express license, or in the confidence that the immunities belonging to his independent sovereign station, though not expressly stipulated, are reserved by implication, and will be extended to him." From the facts that sovereigns have "perfect equality and absolute independence," and that mutual intercourse and "an interchange of good offices with each other" are to their common advantage, flows a class of cases in which all sovereigns are "understood to waive the exercise of a part of that complete exclusive territorial jurisdiction" which is "the attribute of every nation."

One of these cases "is admitted to be the exemption of the person of the sovereign from arrest or detention within a foreign territory. If he enters that territory with the knowledge and license of its sover[Pg 124]eign, that license, although containing no stipulation exempting his person from arrest, is universally understood to imply such stipulation."[315] The protection of foreign ministers stands "on the same principles." The governments to which they are accredited need not expressly consent that these ministers shall receive immunity, but are "supposed to assent to it." This assent is implied from the fact that, "without such exemption, every sovereign would hazard his own dignity by employing a public minister abroad.... Therefore, a consent to receive him, implies a consent" that he shall be exempt from the territorial jurisdiction of the nation to which he is sent.[316]

The armies of one sovereign cannot pass through the territory of another without express permission; to do so would be a violation of faith. Marshall here enters into the reasons for this obvious rule. But the case is far otherwise, he says, as to "ships of war entering the ports of a friendly power." The same dangers and injuries do not attend the entrance of such vessels into a port as are inseparable from the march of an army through a country. But as to foreign vessels, "if there be no prohibition," of which notice has been given, "the ports of a friendly nation are considered as open to the public ships of all powers with whom it is at peace, and they are supposed to enter such ports and to remain in them while allowed to remain, under the protection of the government of the place."[317] Marshall goes into a long examination of whether the rule applies to ships of[Pg 125] war, and concludes that it does. So the Exchange, now an armed vessel of France, rightfully came into the port of Philadelphia and, while there, is under the protection of the American Government.

In this situation can the title to the vessel be adjudicated by American courts? It cannot, because the schooner "must be considered as having come into the American territory under an implied promise, that while necessarily within it, and demeaning herself in a friendly manner, she should be exempt from the jurisdiction of the country."[318]

Over this general question there was much confusion and wrangling in the courts of various countries, but Marshall's opinion came to be universally accepted, and is the foundation of international law on that subject as it stands to-day.[319]

Scarcely any other judicial act of Marshall's life reveals so clearly his moral stature and strength. He was, as he declared, "exploring an unbeaten path," and could have rendered a contrary decision, sustaining it with plausible arguments. Had he allowed his feelings to influence his judgment; had he permitted his prejudices to affect his reason; had he heeded the desires of political friends—his opinion in the case of the Exchange would have been the reverse of what it was.

In the war then desolating Europe, he was an intense partisan of Great Britain and bitterly hostile to France.[320] He hated Napoleon with all the vigor of his being. He utterly disapproved of what he[Pg 126] believed to be the Administration's truckling, or, at least, partiality, to the Emperor. Yet here was a ship, captured from Americans under the orders of that "satanic" ruler, a vessel armed by him and in his service. The emotions of John Marshall must have raged furiously; but he so utterly suppressed them that clear reason and considerations of statesmanship alone controlled him.

In the South American revolutions against Spain, American sailors generally and, indeed, the American people as a whole, ardently sympathized with those who sought to establish for themselves free and independent governments. Often American seamen took active part in the conflicts. On one such occasion three Yankee mariners, commissioned by the insurrectionary government of one of the revolting provinces, attacked a Spanish ship on the high seas, overawed the crew, and removed a large and valuable cargo. The offending sailors were indicted and tried in the United States Court for the District of Massachusetts.

Upon the many questions arising in this case, United States vs. Palmer,[321] the judges, Story of the Supreme Court, and John Davis, District Judge, disagreed and these questions were certified to the Supreme Court for decision. One of these questions was: What, in international law, is the status of a revolting province during civil war?[322] In an extended and closely reasoned opinion, largely devoted to the construction of the act of Congress on piracy, the Chief Justice lays down the rule that the relation[Pg 127] of the United States to parts of countries engaged in internecine war is a question which must be determined by the political departments of the Government and not by the Judicial Department. Questions of this kind "belong ... to those who can declare what the law shall be; who can place the nation in such a position with respect to foreign powers as to their own judgment shall appear wise; to whom are entrusted all its foreign relations.... In such contests a nation may engage itself with the one party or the other; may observe absolute neutrality; may recognize the new state absolutely; or may make a limited recognition of it.

"The proceeding in courts must depend so entirely on the course of the government, that it is difficult to give a precise answer to questions which do not refer to a particular nation. It may be said, generally, that if the government remains neutral, and recognizes the existence of a civil war, its courts cannot consider as criminal those acts of hostility which war authorizes, and which the new government may direct against its enemy. To decide otherwise, would be to determine that the war prosecuted by one of the parties was unlawful, and would be to arraign the nation to which the court belongs against that party. This would transcend the limits prescribed to the judicial department."[323] So the Yankee "liberators" were set free.

Another instance of the haling of American citizens before the courts of the United States for having taken part in the wars of South American coun[Pg 128]tries for liberation was the case of the Divina Pastora. This vessel was captured by a privateer manned and officered by Americans in the service of the United Provinces of Rio de la Plata. An American prize crew was placed on board the Spanish vessel which put into the port of New Bedford in stress of weather and was there libeled by the Spanish Consul. The United States District Court awarded restitution, the Circuit Court affirmed this decree, and the case was appealed to the Supreme Court.

Marshall held that the principle announced in the Palmer case governed the question arising from the capture of the Divina Pastora. "The United States, having recognized the existence of a civil war between Spain and her colonies, but remaining neutral, the courts of the Union are bound to consider as lawful those acts which war authorizes." Captures by privateers in the service of the revolting colonies are "regarded by us as other captures, jure belli, are regarded," unless our neutral rights or our laws or treaties are violated.[324]

The liberal statesman and humanitarian in Marshall on matters of foreign policy is often displayed in his international utterances. In the case of the Venus,[325] he dissented from the harsh judgment of the majority of the court, which clearly stated the cold law as it existed at the time, "that the property of an American citizen domiciled in a foreign country became, on the breaking out of war with that country, immediately confiscable as enemy's property, even though it was shipped before he had knowledge of[Pg 129] the war."[326] Surely, said Marshall, that rule ought not to apply to a merchant who, when war breaks out, intends to leave the foreign country where he has been doing business. Whether or not his property is enemy property depends not alone on his residence in the enemy country, but also on his intention to remain after war begins. But it is plain that evidence of his intention can seldom, if ever, be given during peace and that it can be furnished only "after the war shall be known to him." Of consequence, "justice requires that subsequent testimony shall be received to prove a pre-existing fact."[327]

It is not true that extended residence in a foreign country in time of peace is evidence of intention to remain there permanently. "The stranger merely residing in a country during peace, however long his stay, ... cannot ... be considered as incorporated into that society, so as, immediately on a declaration of war, to become the enemy of his own."[328] Even the ancient writers on international law concede this principle. But modern commerce has sensibly influenced international law and greatly strengthened the common sense and generally accepted considerations just mentioned. All know, as a matter of everyday experience, that "merchants, while belonging politically to one society, are considered commercially as the members of another."[329] The real motives of the merchant should be taken into account.

Of the many cases in which Marshall rendered opinions touching upon international law, however,[Pg 130] that of the Nereid[330] is perhaps the best known. The descriptions of the arguments in that controversy, and of the court when they were being made, are the most vivid and accurate that have been preserved of the Supreme Bench and the attorneys who practiced before it at that time. Because of this fact an account of the hearing in this celebrated case will be helpful to a realization of similar scenes.

The burning of the Capitol by the British in 1814 left the Supreme Court without its basement room in that edifice; at the time the case of the Nereid was heard, and for two years afterward,[331] that tribunal held its sessions in the house of Elias Boudinot Caldwell, the clerk of the court, on Capitol Hill.[332] Marshall and the Associate Justices sat "inconveniently at the upper end" of an uncomfortable room "unfit for the purpose for which it is used."[333] In the space before the court were the counsel and other lawyers who had gathered to hear the argument. Back of them were the spectators. On the occasion of this hearing, the room was well filled by members of the legal profession and by laymen, for everybody looked forward to a brilliant legal debate.

Nor were these expectations vain. The question[Pg 131] was as to whether a certain cargo owned by neutrals, but found in an enemy ship, should be restored. The claimants were represented by J. Ogden Hoffman of New York and the universally known and talked of Thomas Addis Emmet, the Irish patriot whose pathetic experiences, not less than his brilliant talents, appealed strongly to Americans of that day. For the captors appeared Alexander J. Dallas of Pennsylvania and that strangest and most talented advocate of his time, William Pinkney of Maryland, exquisite dandy and profound lawyer,[334] affected fop and accomplished diplomat, insolent as he was able, haughty[335] as he was learned.

George Ticknor gives a vivid description of the judges and lawyers. Marshall's neglected clothing was concealed by his flowing black robes, and his unkempt hair was combed, tied, and "fully powdered." The Associate Justices were similarly robed and powdered, and all "looked dignified." Justice Bushrod Washington, "a little sharp-faced gentleman with only one eye, and a profusion of snuff distributed over his face," did not, perhaps, add to the impressive appearance of the tribunal; but the noble[Pg 132] features and stately bearing of William Johnson, the handsome face and erect attitude of young Joseph Story, and the bald-headed, scholarly looking Brockholst Livingston, sitting beside Marshall, adequately filled in the picture of which he was the center.

Opinions were read by Marshall and Story, but evidently they bored the nervous Pinkney, who "was very restless, frequently moved his seat, and, when sitting, showed by the convulsive twitches of his face how anxious he was to come to the conflict. At last the judges ceased to read, and he sprang into the arena like a lion who has been loosed by his keepers on the gladiator that awaited him." This large, stout man wore "corsets to diminish his bulk," used "cosmetics ... to smooth and soften a skin growing somewhat wrinkled and rigid with age," and dressed "in a style which would be thought foppish in a much younger man."[336] His harsh, unmusical voice, grating and high in tone, no less than his exaggerated fashionable attire, at first repelled; but these defects were soon forgotten because of "his clear and forcible manner" of speaking, "his powerful and commanding eloquence, occasionally illuminated with sparkling lights, but always logical and appropriate, and above all, his accurate and discriminating law knowledge, which he pours out with wonderful precision."[337]

Aloof, affected, overbearing[338] as he was, Pinkney [Pg 133] overcame prejudice and compelled admiration "by force of eloquence, logic and legal learning and by the display of naked talent," testifies Ticknor, who adds that Pinkney "left behind him ... all the public speaking I had ever heard."[339] Emmet, the Irish exile, "older in sorrows than in years," with "an appearance of premature age," and wearing a "settled melancholy in his countenance," spoke directly to the point and with eloquence as persuasive as that of Pinkney was compelling.[340] Pinkney had insulted Emmet in a previous argument, and Marshall was so apprehensive that the Irish lawyer would now attack his opponent that Justice Livingston had to reassure the Chief Justice.[341]

The court was as much interested in the oratory as in the arguments of the counsel. Story's letters are rich in comment on the style and manner of the leading advocates. At the hearing of a cause at about the same time as that of the Nereid, he tells his wife that Pinkney and Samuel Dexter of Massachusetts "have called crowded houses; all the belles of the city have attended, and have been entranced for hours." Dexter was "calm, collected, and forcible, appealing to the judgment." Pinkney, "vivacious, sparkling, and glowing," although not "as close in his logic as Mr. Dexter," but "step[ping][Pg 134] aside at will from the path, and strew[ing] flowers of rhetoric around him."[342]

The attendance of women at arguments before the Supreme Court had as much effect on the performance of counsel at this period as on the oratory delivered in House and Senate. One of the belles of Washington jotted down what took place on one such occasion. "Curiosity led me, ... to join the female crowd who throng the court room. A place in which I think women have no business.... One day Mr. Pinckney [sic] had finished his argument and was just about seating himself when Mrs. Madison and a train of ladies enter'd,—he recommenced, went over the same ground, using fewer arguments, but scattering more flowers. And the day I was there I am certain he thought more of the female part of his audience than of the court, and on concluding, he recognized their presence, when he said, 'He would not weary the court, by going thro a long list of cases to prove his argument, as it would not only be fatiguing to them, but inimical to the laws of good taste, which on the present occasion, (bowing low) he wished to obey."[343][Pg 135]

This, then, is a fairly accurate picture of the Supreme Court of the United States when the great arguments were made before it and its judgments delivered through the historic opinions of Marshall—such the conduct of counsel, the appearance of the Justices, the auditors in attendance. Always, then, when thinking of the hearings in the Supreme Court while he was Chief Justice, we must bear in mind some such scene as that just described.

William Pinkney, the incomparable and enigmatic, passed away in time; but his place was taken by Daniel Webster, as able if not so accomplished, quite as interesting from the human point of view, and almost as picturesque. The lively, virile Clay succeeded the solid and methodical Dexter; and a procession of other eminent statesmen files past our eyes in the wake of those whose distinction for the moment had persuaded their admirers that their equals never would be seen again. It is essential to an understanding of the time that we firmly fix in our minds that the lawyers, no less than the judges, of that day, were publicists as well as lawyers. They were, indeed, statesmen, having deep in their minds the well-being of their Nation even more than the success of their clients.

Briefly stated, the facts in the case of the Nereid were as follows: More than a year after our second war with Great Britain had begun, one Manuel Pinto of Buenos Aires chartered the heavily armed British[Pg 136] merchant ship, the Nereid, to take a cargo from London to the South American city and another back to the British metropolis. The Nereid sailed under the protection of a British naval convoy. The outgoing cargo belonged partly to Pinto, partly to other Spaniards, and partly to British subjects. When approaching Madeira an American privateer attacked the Nereid and, after a brief fight, captured the British vessel and took her to New York as a prize. The British part of the cargo was condemned without contest. That part belonging to Pinto and the other Spaniards was also awarded to the captors, but over the earnest opposition of the owners, who appealed to the Supreme Court. The arguments before the Supreme Court were long and uncommonly able. Those of Pinkney and Emmet, however, contained much florid "eloquence."[344]

Space permits no summary of these addresses; the most that can be given here is the substance of Marshall's very long and tedious opinion which is of no historical interest, except that part of it dealing with international law. The Chief Justice stated this capital question: "Does the treaty between Spain and the United States subject the goods of either party, being neutral, to condemnation as enemy property, if found by the other in a vessel of an enemy? That treaty stipulates that neutral bottoms shall make neutral goods, but contains no stipulation that enemy bottoms shall communicate the hostile character to the cargo. It is contended by the captors that the[Pg 137] two principles are so completely identified that the stipulation of the one necessarily includes the other."

It was, said Marshall, "a part of the original law of nations" that enemy goods in friendly vessels "are prize of war," and that friendly goods in enemy vessels must be restored if captured. The reason of this rule was that "war gives a full right to capture the goods of an enemy, but gives no right to capture the goods of a friend." Just as "the neutral flag constitutes no protection to enemy property," so "the belligerent flag communicates no hostile character to neutral property." The nature of the cargo, therefore, "depends in no degree" upon the ship that carries it.[345]

Unless treaties expressly modified this immemorial law of nations there would, declared Marshall, "seem to be no necessity" to suppose that an exception was intended. "Treaties are formed upon deliberate reflection"; if they do not specifically designate that a particular item is to be taken out of the "ancient rule," it remains within it. "The agreement [in the Spanish treaty] that neutral bottoms shall make neutral goods is ... a concession made by the belligerent to the neutral"; as such it is to be encouraged since "it enlarges the sphere of neutral commerce, and gives to the neutral flag a capacity not given to it by the law of nations."

On the contrary, a treaty "stipulation which subjects neutral property, found in the bottom of an enemy, to condemnation as prize of war, is a concession made by the neutral to the belligerent. It narrows[Pg 138] the sphere of neutral commerce, and takes from the neutral a privilege he possessed under the law of nations." However, a government can make whatever contracts with another that it may wish to make. "What shall restrain independent nations from making such a compact" as they please?[346]

Suppose that, regardless of "our treaty with Spain, considered as an independent measure, the ordinances of that government would subject American property, under similar circumstances, to confiscation." Ought Spanish property, for that reason, to be "condemned as prize of war"? That was not a question for courts to decide: "Reciprocating to the subjects of a nation, or retaliating on them its unjust proceedings towards our citizens, is a political, not a legal measure. It is for the consideration of the government, not of its courts. The degree and the kind of retaliation depend entirely on considerations foreign to this tribunal."

The Government is absolutely free to do what it thinks best: "It is not for its courts to interfere with the proceedings of the nation and to thwart its views. It is not for us to depart from the beaten track prescribed for us, and to tread the devious and intricate path of politics." He and his associates had no difficulty, said Marshall, in arriving at these conclusions. "The line of partition" between "belligerent rights and neutral privileges" is "not so distinctly marked as to be clearly discernible."[347] Nevertheless, the neutral part of the Nereid's cargo must "be governed by the principles which would apply to it had[Pg 139] the Nereid been a general ship." That she was armed, that she fought to resist capture, did not charge the cargo with the belligerency of the ship, since the owners of the cargo had nothing to do with her armed equipment or belligerent conduct.

It is "universally recognized as the original rule of the law of nations" that a neutral may ship his goods on a belligerent vessel. This right is "founded on the plain and simple principle that the property of a friend remains his property wherever it may be found."[348] That it is lodged in an armed belligerent ship does not take it out of this universal rule. The plain truth is, declares Marshall, that "a belligerent has a perfect right to arm in his own defense; and a neutral has a perfect right to transport his goods in a belligerent vessel." Such merchandise "does not cease to be neutral" because placed on an armed belligerent ship, nor when that vessel exercises the undoubted belligerent right forcibly to resist capture by the enemy.

Shipping goods on an armed belligerent ship does not defeat or even impair the right of search. "What is this right of search? Is it a substantive and independent right wantonly, and in the pride of power, to vex and harass neutral commerce, because there is a capacity to do so?" No! It is a right "essential ... to the exercise of ... a full and perfect right to capture enemy goods and articles going to their enemy which are contraband of war.... It is a mean justified by the end," and "a right ... ancillary to the greater right of capture."[Pg 140]

For a neutral to place "his goods in the vessel of an armed enemy" does not connect him with that enemy or give him a "hostile character." Armed or unarmed, "it is the right and the duty of the carrier to avoid capture and to prevent a search." Neither arming nor resistance is "chargeable to the goods or their owner, where he has taken no part" in either.[349] Pinkney had cited two historical episodes, but Marshall waved these aside as of no bearing on the case. "If the neutral character of the goods is forfeited by the resistance of the belligerent vessel, why is not the neutral character of the passengers," who did not engage in the conflict, "forfeited by the same cause?"[350]

In the case of the Nereid, the goods of the neutral shipper were inviolable. Pinkney had drawn a horrid picture of the ship, partly warlike, partly peaceful, displaying either character as safety or profit dictated.[351] But, answers Marshall, falling into something[Pg 141] like the rhetoric of his youth,[352] "the Nereid has not that centaur-like appearance which has been ascribed to her. She does not rove over the ocean hurling the thunders of war while sheltered by the olive branch of peace." Her character is not part neutral, part hostile. "She is an open and declared belligerent; claiming all the rights, and subject to all the dangers of the belligerent character." One of these rights is to carry neutral goods which were subject to "the hazard of being taken into port" in case of the vessel's capture—in the event of which they would merely be "obliged to seek another conveyance." The ship might lawfully be captured and condemned; but the neutral cargo within it remained neutral, could not be forfeited, and must be returned to its owners.[353]

But Marshall anoints the wounds of the defeated Pinkney with a tribute to the skill and beauty of his oratory and argument: "With a pencil dipped in the most vivid colors, and guided by the hand of a master, a splendid portrait has been drawn exhibiting this vessel and her freighter as forming a single figure, composed of the most discordant materials of peace and war. So exquisite was the skill of the artist, so dazzling the garb in which the figure was presented, that it required the exercise of that cold investigating faculty which ought always to belong to those who sit on this bench, to discover its only imperfection; its want of resemblance."[354][Pg 142]

Such are examples of Marshall's expositions of international law and typical illustrations of his method in statement and reasoning. His opinion in the case of the Nereid is notable, too, because Story dissented[355]—and for Joseph Story to disagree with John Marshall was a rare event. Justice Livingston also disagreed, and the British High Court of Admiralty maintained the contrary doctrine. But the principle announced by Marshall, that enemy bottoms do not make enemy goods and that neutral property is sacred, remained and still remains the American doctrine. Indeed, by the Declaration of Paris in 1856, the principle thus announced by Marshall in 1815 is now the accepted doctrine of the whole world.

Closely akin to the statesmanship displayed in his pronouncements upon international law, was his assertion, in Insurance Co. vs. Canter,[356] that the Nation has power to acquire and to govern territory. The facts of this case were that a ship with a cargo of cotton, which was insured, was wrecked on the coast of Florida after that territory had been ceded to the United States and before it became a State of the Union. The cotton was saved, and taken to Key West, where, by order of a local court acting under[Pg 143] a Territorial law, it was sold at auction to satisfy claims for salvage. Part of the cotton was purchased by one David Canter, who shipped it to Charleston, South Carolina, where the insurance companies libeled it. The libelants contended, among other things, that the Florida court was not competent to order the auction sale because the Territorial act was "inconsistent" with the National Constitution. After a sharp and determined contest in the District and Circuit Courts of the United States at Charleston, in which Canter finally prevailed, the case was taken to the Supreme Court.[357]

Was the Territorial act, under which the local court at Key West ordered the auction sale, valid? The answer to that question, said Marshall, in delivering the opinion of the court, depends upon "the relation in which Florida stands to the United States." Since the National Government can make war and conclude treaties, it follows that it "possesses the power of acquiring territory either by conquest or treaty.... Ceded territory becomes a part of the nation to which it is annexed"; but "the relations of the inhabitants to each other [do not] undergo any change." Their allegiance is transferred; but the law "which regulates the intercourse and general conduct of individuals remains in force until altered by the newly created power of the state."[358]

The treaty by which Spain ceded Florida to the United States assures to the people living in that Territory "the enjoyment of the privileges, rights, and immunities" of American citizens; "they do not[Pg 144] however, participate in political power; they do not share in the government till Florida shall become a state. In the meantime Florida continues to be a Territory of the United States, governed by virtue of that clause in the Constitution which empowers Congress 'to make all needful rules & regulations respecting the territory or other property belonging to the United States.'"[359]

The Florida salvage act is not violative of the Constitution. The courts upon which that law confers jurisdiction are not "Constitutional Courts; ... they are legislative Courts, created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations respecting the territory belonging to the United States.... Although admiralty jurisdiction can be exercised, in the States, in those courts only" which are authorized by the Constitution, the same limitation does not extend to the Territories. In legislating for them, Congress exercises the combined powers of the general and of a state government.[360]

Admirable and formative as were Marshall's opinions of the law of nations, they received no attention from the people, no opposition from the politicians, and were generally approved by the bar. At the very next term of the Supreme Court, after the decision in the case of the Nereid, an opinion was delivered by Story that aroused more contention and had greater effect on the American Nation than had all the decisions of the Supreme Court on international[Pg 145] law up to that time. This was the opinion in the famous case of Martin vs. Hunter's Lessee.

It was Story's first exposition of Constitutional law and it closely resembles Marshall's best interpretations of the Constitution. So conspicuous is this fact that the bench and bar generally have adopted the view that the Chief Justice was, in effect, the spiritual author of this commanding judicial utterance.[361] But Story had now been by Marshall's side on the Supreme Bench for four years and, in his ardent way, had become more strenuously Nationalist, at least in expression, than Marshall.[362]

That the Chief Justice himself did not deliver this opinion was due to the circumstance that his brother, James M. Marshall, was involved in the controversy; was, indeed, a real party in interest. This fact, together with the personal hatred of Marshall by the head of the Virginia Republican organization, had much to do with the stirring events that attended and followed this litigation.[Pg 146]

At the time of the Fairfax-Hunter controversy, Virginia was governed by one of the most efficient party organizations ever developed under free institutions. Its head was Spencer Roane, President of the Court of Appeals, the highest tribunal in the State, an able and learned man of strong prejudices and domineering character. Jefferson had intended to appoint Roane Chief Justice of the United States upon the expected retirement of Ellsworth.[363] But Ellsworth's timely resignation gave Adams the opportunity to appoint Marshall. Thus Roane's highest ambition was destroyed and his lifelong dislike of Marshall became a personal and a virulent animosity.

Roane was supported by his cousin, Thomas Ritchie, editor of the Richmond Enquirer, the most influential of Southern newspapers, and, indeed, one of the most powerful journals in the Nation. Another of the Virginia junto was John Taylor of Caroline County, a brilliant, unselfish, and sincere man. Back of this triumvirate was Thomas Jefferson with his immense popularity and his unrivaled political sagacity. These men were the commanding officers of a self-perpetuating governmental system based on the smallest political unit, the County Courts. These courts were made up of justices of the peace appointed by the Governor. Vacancies in the County Courts were filled only on the recommendation of the remaining members.[364] These justices of the peace also named the men to be sent to the State Legislature which appointed the Governor and also chose[Pg 147] the members of the Court of Appeals who held office for life.[365] A perfect circle of political action was thus formed, the permanent and controlling center of which was the Court of Appeals.

These, then, were the judge, the court, and the party organization which now defied the Supreme Court of the United States. By one of those curious jumbles by which Fate confuses mortals, the excuse for this defiance of Nationalism by Localism arose from a land investment by Marshall and his brother. Thus the fact of the purchase of the larger part of the Fairfax estate[366] is woven into the Constitutional development of the Nation.

Five years before the Marshall syndicate made this investment,[367] one David Hunter obtained from Virginia a grant of seven hundred and eighty-eight acres of that part of the Fairfax holdings known as "waste and ungranted land."[368] The grant was made under the various confiscatory acts of the Virginia Legislature passed during the Revolution. These acts had not been carried into effect, however, and in 1783 the Treaty of Peace put an end to subsequent proceedings under them.

Denny Martin Fairfax, the devisee of Lord Fairfax, denied the validity of Hunter's grant from the[Pg 148] State on the ground that Virginia did not execute her confiscatory statutes during the war, and that all lands and property to which those laws applied were protected by the Treaty of Peace. In 1791, two years after he obtained his grant and eight years after the ratification of the treaty, Hunter brought suit in the Superior Court at Winchester[369] against Fairfax's devisee for the recovery of the land. The action was under the ancient form of legal procedure still practiced, and bore the title of "Timothy Trititle, Lessee of David Hunter, vs. Denny Fairfax," Devisee of Thomas, Lord Fairfax.[370] The facts were agreed to by the parties and, on April 24, 1794, the court decided against Hunter,[371] who appealed to the Court of Appeals at Richmond.[372] Two years later, in May, 1796, the case was argued before Judges Roane, Fleming, Lyons, and Carrington.[373] Meanwhile the Jay Treaty had been ratified, thus confirming the guarantees of the Treaty of Peace to the holders of titles of lands which Virginia, in her confiscatory acts, had declared forfeited.

At the winter session, 1796-97, of the Virginia Legislature, Marshall, acting for his brother and[Pg 149] brother-in-law, as well as for himself, agreed to execute deeds to relinquish their joint claims "to the waste and unappropriated lands in the Northern Neck" upon condition that the State would confirm the Fairfax title to lands specifically appropriated[374] by Lord Fairfax or by his devisee. But for the statement made many years later by Judges Roane and Fleming, of the Court of Appeals, that this adjustment covered the land claimed by Hunter, it would appear that Marshall did not intend to include it in the compromise,[375] even if, as seems improbable, it was a part of the Marshall syndicate's purchase; for the decision of the court at Winchester had been against Hunter, and after that decision and before the compromise, the Jay Treaty had settled the question of title.

On October 18, 1806, the Marshall syndicate, having finally made the remaining payments for that part of the Fairfax estate purchased by it—fourteen thousand pounds in all—Philip Martin, the devisee of Denny M. Fairfax, executed his warranty to John and James M. Marshall and their brother-in-law, Rawleigh Colston; and this deed was duly recorded in Fauquier, Warren, Frederick, and Shenandoah[Pg 150] Counties, where the Fairfax lands were situated.[376] Nearly ten years before this conveyance, James M. Marshall separately had purchased from Denny Martin Fairfax large quantities of land in Shenandoah and Hardy Counties where the Hunter grant probably was situated.[377][Pg 151]

It would seem that James M. Marshall continued in peaceful possession of the land, the title to which the Winchester court had decreed to be in the Fairfax devisee and not in Hunter. When Denny M. Fairfax died, he devised his estate to his younger brother[378] Major-General Philip Martin. About the same time he made James M. Marshall his administrator, with the will annexed, apparently for the purpose of enabling him to collect old rents.[379] For thirteen years and six months the case of Hunter vs. Fairfax's Devisee slumbered in the drowsy archives of the Virginia Court of Appeals. In the autumn of 1809, however, Hunter demanded a hearing of it and, on October 25, of that year, it was reargued.[380] Hunter was represented by John Wickham, then the acknowledged leader of the Virginia bar, and by another lawyer named Williams.[381] Daniel Call appeared for the Fairfax devisee.[Pg 152]

The following spring[382] the Court of Appeals decided in favor of Hunter, reversing the judgment of the lower court rendered more than sixteen years before. In his opinion Roane, revealing his animosity to Marshall, declared that the compromise of 1796 covered the case. "I can never consent that the appellees,[383] after having got the benefit thereof, should refuse to submit thereto, or pay the equivalent; the consequence of which would be, that the Commonwealth would have to remunerate the appellant for the land recovered from him! Such a course cannot be justified on the principles of justice and good faith; and, I confess, I was not a little surprised that the objection should have been raised in the case before us."[384][Pg 153]

To this judgment the Fairfax devisee[385] obtained from the Supreme Court of the United States[386] a writ of error to the Virginia court under Section 25 of the Ellsworth Judiciary Act, upon the ground that the case involved the construction of the Treaty of Peace with Great Britain and the Jay Treaty, the Virginia court having held against the right claimed by Fairfax's devisee under those treaties.[387]

The Supreme Court now consisted of two Federalists, Washington and Marshall, and five Republicans, Johnson, Livingston, Story, and Duval; and Todd, who was absent from illness at the decision of this cause. Marshall declined to sit during the arguments, or to participate in the deliberations and[Pg 154] conclusions of his associates. Indeed, throughout this litigation the Chief Justice may almost be said to have leaned backward. It was with good reason that Henry S. Randall, the biographer and apologist of Jefferson, went out of his way to laud Marshall's "stainless private character" and pay tribute to his "austere public and private virtue."[388]

Eight years before the Hunter-Fairfax controversy was first brought to the Supreme Court, the case of the Granville heirs against William R. Davie, Nathaniel Allen, and Josiah Collins, was tried at the June term, 1805, of the United States Court at Raleigh, North Carolina. Marshall, as Circuit Judge, sat with Potter, District Judge. The question was precisely that involved in the Fairfax title. The grant to Lord Granville[389] was the same as that to Lord Fairfax.[390] North Carolina had passed the same confiscatory acts against alien holdings as Virginia.[391] Under these statutes, Davie, Allen, and Collins obtained grants to parts of the Granville estate[392] identical with that of Hunter to a part of the Fairfax estate in Virginia.

Here was an excellent opportunity for Marshall to decide the Fairfax controversy once and for all. Nowhere was his reputation at that time higher than in North Carolina, nowhere was he more admired and trusted.[393] That his opinion would have been ac[Pg 155]cepted by the State authorities and acquiesced in by the people, there can be no doubt.[394] But the Chief Justice flatly stated that he would take no part in the trial because of an "opinion ... formed when he was very deeply interested (alluding to the cause of Lord Fairfax in Virginia). He could not consistently with his duty and the delicacy he felt, give an opinion in the cause."[395][Pg 156]

The case of Fairfax's Devisee vs. Hunter's Lessee was argued for the former by Charles Lee of Richmond and Walter Jones of Washington, D.C. Robert Goodloe Harper of Baltimore appeared for Hunter. On both sides the argument was mainly upon the effect on the Fairfax title of the Virginia confiscatory laws; of the proceedings or failure to proceed under them; and the bearing upon the controversy of the two treaties with Great Britain. Harper, however, insisted that the court consider the statute of Virginia which set forth and confirmed the Marshall compromise.

On March 15, 1813, Story delivered the opinion of the majority of the court, consisting of himself and Justices Washington, Livingston, Todd, and Duval. Johnson, alone, dissented. Story held that, since Virginia had not taken the prescribed steps to acquire legal possession of the land before the Treaty of Peace, the State could not do so afterward. "The patent of the original plaintiff [Hunter] ... issued im[Pg 157]providently and passed no title whatever." To uphold Virginia's grant to Hunter "would be selling suits and controversies through the whole country."[396] It was not necessary, said Story, to consider the Treaty of Peace, since "we are well satisfied that the treaty of 1794[397] completely protects and confirms the title of Denny Fairfax."[398]

In his dissenting opinion Justice Johnson ignored the "compromise" of 1796, holding that the grant by the State to Hunter extinguished the right of Fairfax's devisee.[399] He concurred with Story and Washington, however, in the opinion that, on the face of the record, the case came within Section 25 of the Judiciary Act; that, therefore, the writ of error had properly issued, and that the title must be inquired into before considering "how far the ... treaty ... is applicable to it."[400] Accordingly the mandate of the Supreme Court was directed to the judges of the Virginia Court of Appeals, instructing them "to enter judgment for the appellant, Philip Martin [the Fairfax devisee]." Like all writs of the Supreme Court, it was, of course, issued in the name of the Chief Justice.[401]

Hot was the wrath of Roane and the other judges of Virginia's highest court when they received this order from the National tribunal at Washington. At their next sitting they considered whether to obey or to defy the mandate. They called in "the members of the bar generally," and the question[Pg 158] "was solemnly argued" at Richmond for six consecutive days.[402] On December 16, 1815, the decision was published. The Virginia judges unanimously declined to obey the mandate of the Supreme Court of the United States. Each judge rendered a separate opinion, and all held that so much of Section 25 of the National Judiciary Act as "extends the appellate jurisdiction of the Supreme Court to this court, is not in pursuance of the constitution of the United States."[403]

But it was not only the Virginia Court of Appeals that now spoke; it was the entire Republican partisan machine, intensively organized and intelligently run, that brought its power to bear against the highest tribunal of the Nation. Beyond all possible doubt, this Republican organization, speaking through the supreme judiciary of the State, represented public sentiment, generally, throughout the Old Dominion. Unless this political significance of the opinions of the Virginia judges be held of higher value than their legal quality, the account of this historic controversy deserves no more than a brief paragraph stating the legal point decided.

The central question was well set forth by Judge Cabell thus: Even where the construction of a treaty is involved in the final decision of a cause by the highest court of a State, that decision being against the title of the party claiming under the treaty, can Congress "confer on the Supreme Court of the United States, a power to re-examine, by way of appeal or writ of error, the decision of the state Court; to[Pg 159] affirm or reverse that decision; and in case of reversal, to command the state Court to enter and execute a judgment different from that which it had previously rendered?"[404]

Every one of the judges answered in the negative. The opinion of Judge Cabell was the ablest, and stated most clearly the real issue raised by the Virginia court. Neither State nor National Government is dependent one upon the other, he said; neither can act "compulsively" upon the other. Controversies might arise between State and National Governments, "yet the constitution has provided no umpire, has erected no tribunal by which they shall be settled." Therefore, the National court could not oblige the State court to "enter a judgment not its own."[405] The meaning of the National "Constitution, laws and treaties, ... must, in cases coming before State courts, be decided by the State Judges, according to their own judgments, and upon their own responsibility."[406] National tribunals belong to one sovereignty; State tribunals to a different sovereignty—neither is "superior" to the other; neither can command or instruct the other.[407]

Grant that this interpretation of the Constitution results in conflicts between State and Nation and even deprives the "general government ... of the power of executing its laws and treaties"; even so, "the defects of our system of government must be remedied, not by the judiciary, but by the sovereign power of the people." The Constitution must be amended by the people, not by judicial interpre[Pg 160]tation;[408] yet Congress, in Section 25 of the Judiciary Act, "attempts, in fact, to make the State Courts Inferior Federal Courts." The appellate jurisdiction conferred on the Supreme Court, and the word "supreme" itself, had reference to inferior National courts and not to State courts.[409]

Judge Roane's opinion was very long and discussed extensively every phase of the controversy. He held that, in giving National courts power over State courts, Section 25 of the Ellsworth Judiciary Act violated the National Constitution. If National courts could control State tribunals, it would be a "plain case of the judiciary of one government correcting and reversing the decisions of that of another."[410] The Virginia Court of Appeals "is bound, to follow its own convictions ... any thing in the decisions, or supposed decisions, of any other court, to the contrary notwithstanding." Let the court at Winchester, therefore, be instructed to execute the judgment of the State Court of Appeals.[411]

Such was the open, aggressive, and dramatic defiance of the Supreme Court of the United States by the Court of Appeals of Virginia. Roane showed his opinion to Monroe, who approved it and sent it to Jefferson at Monticello. Jefferson heartily commended Roane,[412] whereat the Virginia judge was "very much flattered and gratified."[413]

Promptly Philip Martin, through James M. Marshall, took the case to the Supreme Court by means[Pg 161] of another writ of error. It now stood upon the docket of that court as Martin vs. Hunter's Lessee. Again Marshall refused to sit in the case. St. George Tucker of Virginia, one of the ablest lawyers of the South, and Samuel Dexter, the leader of the Massachusetts bar, appeared for Hunter.[414] As Harper had done on the first appeal, both Tucker and Dexter called attention to the fact that the decision of the Virginia Court of Appeals did not rest exclusively upon the Treaty of Peace, which alone in this case would have authorized an appeal to the Supreme Court.[415]

Story delivered the court's opinion, which was one of the longest and ablest he ever wrote. The Constitution was not ordained by the States, but "emphatically ... by 'the people of the United States.'[416]... Its powers are expressed in general terms, leaving to the legislature, from time to time, to adopt its own means to effectuate legitimate objects, and to mold and model the exercise of its powers, as its own wisdom and the public interests should require."[417] Story then quotes Sections 1 and 2 of Article III of the Constitution,[418] and continues: Thus is "the voice[Pg 162] of the whole American people solemnly declared, in establishing one great department of that government which was, in many respects, national, and in all, supreme." Congress cannot disregard this Constitutional mandate. At a length which, but for the newness of the question, would be intolerable, Story demonstrates that the Constitutional grant of judiciary powers is "imperative."[419]

What, then, is the "nature and extent of the appellate jurisdiction of the United States"? It embraces "every case ... not exclusively to be decided by way of original jurisdiction." There is nothing in the Constitution to "restrain its exercise over state tribunals in the enumerated cases.... It is the case, ... and not the court, that gives the jurisdiction."[420] If the appellate power does not extend to State courts having concurrent jurisdiction of specified cases, then that power does "not extend to all, but to some, cases"—whereas the Constitution declares that it extends to all other cases than those over which the Supreme Court is given original jurisdiction.[421]

With great care Story shows the "propriety" of this construction.[422] Then, with repetitiousness after the true Marshall pattern, he reasserts that the[Pg 163] Constitution acts on States as well as upon individuals, and gives many instances where the "sovereignty" of the States are "restrained." State judges are not independent "in respect to the powers granted to the United States";[423] and the appellate power of the Nation extends to the State courts in cases prescribed in Section 25 of the Judiciary Act; for the Constitution does not limit this power and "we dare not interpose a limitation where the people have not been disposed to create one."[424]

The case decided on the former record, says Story, is not now before the court. "The question now litigated is not upon the construction of a treaty, but upon the constitutionality of a statute of the United States, which is clearly within our jurisdiction." However, "from motives of a public nature," the Supreme Court would "re-examine" the grounds of its former decision.[425] After such reëxamination, extensive in length and detail, he finds the first decision of the Supreme Court to have been correct.

Story thus notices the Marshall adjustment of 1796: "If it be true (as we are informed)" that the compromise had been effected, the court could not take "judicial cognizance" of it "unless spread upon the record." Aside from the Treaty of Peace, the Fairfax title "was, at all events, perfect under the treaty of 1794."[426] In conclusion, Story announces: "It is the opinion of the whole court that the judgment of the Court of Appeals of Virginia, rendered on the mandate in this cause, be reversed, and the[Pg 164] judgment of the District Court, held at Winchester, be, and the same is hereby affirmed."[427]

It has been commonly supposed that Marshall practically dictated Story's two opinions in the Fairfax-Hunter controversy, and certain writers have stated this to be the fact. As we have seen, Story himself, fifteen years afterwards, declared that the Chief Justice had "concurred in every word of the second opinion"; yet in a letter to his brother concerning the effect of Story's opinion upon another suit in the State court at Winchester, involving the same question, Marshall says: "The case of Hunter & Fairfax is very absurdly put on the treaty of 94."[428][Pg 165]

Justice Johnson dissented in an opinion as inept and unhappy as his dissent in Fletcher vs. Peck.[429] He concurs in the judgment of his brethren, but, in doing so, indulges in a stump speech in which Nationalism and State Rights are mingled in astounding fashion. The Supreme Court of the United States, he says, "disavows all intention to decide on the right to issue compulsory process to the state courts." To be sure, the Supreme Court is "supreme over persons and cases as far as our judicial powers extend," but it cannot assert "any compulsory control over the state tribunals." He views "this question as one ... which may affect, in its consequences, the permanence of the American Union," since the Nation and "one of the greatest states" are in collision. The "general government must cease to exist" if the Virginia doctrine shall prevail, but "so firmly" was he "persuaded that the American people can no longer enjoy the blessings of a free government, whenever the state sovereignties shall be prostrated at the feet of the general government," that he "could borrow the language of a celebrated orator, and exclaim: 'I rejoice that Virginia has resisted.'"[430][Pg 166] Nevertheless, Johnson agrees with the judgment of his associates and, in doing so, delivers a Nationalist opinion, stronger if possible than that of Story.[431]

The public benefits and the historic importance of the decision was the assertion of the supremacy of the Supreme Court of the Nation over the highest court of any State in all cases where the National Constitution, laws and treaties—"the supreme law of the land"—are involved. The decision of the Supreme Court in Martin vs. Hunter's Lessee went further than any previous judicial pronouncement to establish the relation between National courts and State tribunals which now exists and will continue as long as the Republic endures.

When the news of this, the first Constitutional opinion ever delivered by Story, got abroad, he was mercilessly assailed by his fellow Republicans as a "renegade."[432] Congress refused to increase the salaries of the members of the Supreme Court,[433] who found it hard to live on the compensation allowed them,[434] and Story seriously considered resigning from the bench and taking over the Baltimore practice of Mr. Pinkney, who soon was to be appointed Minister[Pg 167] to Russia.[435] The decision aroused excitement and indignation throughout Virginia. Roane's popularity increased from the Tide Water to the Valley.[436] The Republican organization made a political issue of the judgment of the National tribunal at Washington. Judge Roane issued his orders to his political lieutenants. The party newspapers, led by the Enquirer, inveighed against the "usurpation" by this distant Supreme Court of the United States, a foreign power, an alien judiciary, unsympathetic with Virginia, ignorant of the needs of Virginians.

This conflict between the Supreme Court of the United States and the Court of Appeals of Virginia opened another phase of that fundamental struggle which war was to decide—a fact without knowledge of which this phase of American Constitutional history is colorless.

Not yet, however, was the astute Virginia Republican triumvirate ready to unloose the lightnings of Virginia's wrath. That must be done only when the whole South should reach a proper degree of emotion. This time was not long to be delayed. Within three years Marshall's opinion in M'Culloch vs. Maryland was to give Roane, Ritchie, and Taylor their cue to come upon the stage as the spokesmen of Virginia and the entire South, as the champions, indeed, of Localism everywhere throughout America. Important were the parts they played in the drama of Marshall's judicial career.


[300] See vol. iii, chap. iii, of this work.

[301] This is a fair inference from the statement of Joseph Story in his autobiography: "I have ever considered the embargo a measure, which went to the utmost limit of constructive power under the Constitution. It stands upon the extreme verge of the Constitution, being in its very form and terms an unlimited prohibition, or suspension of foreign commerce." (Story, i, 185-86.) When it is remembered that after Story was made Associate Justice his views became identical with those of Marshall on almost every subject, it would seem likely that Story expressed the opinions of the Chief Justice as well as his own on the constitutionality of the Embargo.

[302] See, for instance, the case of William Dixon et al. vs. The United States, 1 Brockenbrough, 177; United States vs. ——, ib. 195; the case of the Fortuna, ib. 299; the case of the Brig Caroline, ib. 384; Thomson and Dixon vs. United States (case of the Schooner Patriot), ib. 407.

[303] 1 Brockenbrough, 241.

[304] See Warren, 279.

[305] Story to Fay, April 24, 1814, Story, i, 261.

[306] Marshall to Story, May 27, 1819, Proceedings, Mass. Hist. Soc. 2d Series, xiv, 325. This was the case of the Little Charles.

[307] Same to same, July 13, 1819, ib. 326.

[308] Same to same, June 15, 1821, ib. 327; Sept. 18, 1821, ib. 331; Dec. 9, 1823, ib. 334; June 26, 1831, ib. 344.

[309] Same to same, July 2, 1823, ib. 331-33.

[310] Same to same, Oct. 15, 1830, ib. 342.

[311] John Bassett Moore, in his Digest of International Law, cites Marshall frequently and often uses passages from his opinions. Henry Wheaton, in his Elements of International Law, sometimes quotes Marshall's language as part of the text.

[312] Professor John Bassett Moore, in a letter to the author, says that he considers Marshall's opinion in this case his greatest in the realm of international law.

[313] Am. State Papers, For. Rel. iii, 384.

[314] 7 Cranch, 136.

[315] 7 Cranch, 137.

[316] Ib. 138-39.

[317] Ib. 141.

[318] 7 Cranch, 147.

[319] See John Bassett Moore in Dillon, i, 521-23.

[320] See supra, chap. i.

[321] 3 Wheaton, 610-44.

[322] Ib. 614.

[323] 3 Wheaton, 634-35.

[324] 4 Wheaton, 63-64.

[325] 8 Cranch, 253-317.

[326] John Bassett Moore in Dillon, i, 524.

[327] 8 Cranch, 289.

[328] Ib. 291-92.

[329] Ib. 293.

[330] 9 Cranch, 388 et seq.

[331] Until the February session of 1817. This room was not destroyed or injured by the fire, but was closed while the remainder of the Capitol was being repaired. In 1817, the court occupied another basement room in the Capitol, where it continued to meet until February, 1819, when it returned to its old quarters in the room where the library of the Supreme Court is now situated. (Bryan: History of the National Capital, ii, 39.)

[332] Ib., i, 632. Mr. Bryan says that this house still stands and is now known as 204-06 Pennsylvania Avenue, S.E.

[333] Ticknor to his father, Feb. 1815, Ticknor, i, 38.

[334] "His opinions had almost acquired the authority of judicial decisions." (Pinkney: Life of William Pinkney, quotation from Robert Goodloe Harper on title-page.)

[335] "He has ... a dogmatizing absoluteness of manner which passes with the million, ... for an evidence of power; and he has acquired with those around him a sort of papal infallibility." (Wirt to Gilmer, April 1, 1816, Kennedy, i, 403.)

Wirt's estimate of Pinkney must have been influenced by professional jealousy, for men like Story and Marshall were as profoundly affected by the Maryland legal genius as were the most emotional spectators. See the criticisms of Wirt's comments on Pinkney by his nephew, Rev. William Pinkney, in his Life of William Pinkney, 116-22.

[336] Ticknor to his father, Feb. [day omitted] 1815, Ticknor, i, 38-40.

[337] Story to Williams, Feb. 16, 1812, Story, i, 214; and March 6, 1814, ib. 252.

[338] "At the bar he is despotic and cares as little for his colleagues or adversaries as if they were men of wood." (Wirt to Gilmer, April 1, 1816, Kennedy, i, 403.)

The late Roscoe Conkling was almost the reincarnation of William Pinkney. In extravagance of dress, haughtiness of manner, retentiveness of memory, power and brilliancy of mind, and genuine eloquence, Pinkney and Conkling were well-nigh counterparts.

[339] Ticknor to his father, Feb. 21, 1815, Ticknor, i, 40.

[340] Ib. Feb. 1815, 39-40.

[341] Pinkney, 100-01.

[342] Story to his wife, March 10, 1814, Story, i, 253.

[343] Mrs. Samuel Harrison Smith to Mrs. Kirkpatrick, March 13, 1814, First Forty Years of Washington Society: Hunt, 96.

Pinkney especially would become eloquent, even in an argument of dry, commercial law, if women entered the court-room. "There were ladies present—and Pinkney was expected to be eloquent at all events. So, the mode he adopted was to get into his tragical tone in discussing the construction of an act of Congress. Closing his speech in this solemn tone he took his seat, saying to me, with a smile—'that will do for the ladies.'" (Wirt to Gilmer, April 1, 1816, Kennedy, i, 404.)

The presence of women affected others no less than Pinkney. "Webster, Wirt, Taney ... and Emmet, are the combatants, and a bevy of ladies are the promised and brilliant distributors of the prizes," writes Story of an argument in the Supreme Court many years later. (Story to Fay, March 8, 1826, Story, i, 493.)

[344] This is illustrated by the passage in Pinkney's argument to which Marshall in his opinion paid such a remarkable tribute (see infra, 141).

[345] 9 Cranch, 418-19.

[346] 9 Cranch, 419-20.

[347] Ib. 422-23.

[348] 9 Cranch, 425.

[349] 9 Cranch, 426-29.

[350] Ib. 428-29.

[351] "We ... have Neutrality, soft and gentle and defenceless in herself, yet clad in the panoply of her warlike neighbours—with the frown of defiance upon her brow, and the smile of conciliation upon her lip—with the spear of Achilles in one hand and a lying protestation of innocence and helplessness unfolded in the other. Nay, ... we shall have the branch of olive entwined around the bolt of Jove, and Neutrality in the act of hurling the latter under the deceitful cover of the former....

"Call you that Neutrality which thus conceals beneath its appropriate vestment the giant limbs of War, and converts the charter-party of the compting-house into a commission of marque and reprisals; which makes of neutral trade a laboratory of belligerent annoyance; which ... warms a torpid serpent into life, and places it beneath the footsteps of a friend with a more appalling lustre on its crest and added venom in its sting." (Wheaton: Some Account of the Life, Writings, and Speeches of William Pinkney, 463, 466.)

Pinkney frankly said that his metaphors, "hastily conceived and hazarded," were inspired by the presence of women "of this mixed and (for a court of judicature) uncommon audience." (Ib. 464-65.)

Except for this exhibition of rodomontade his address was a wonderful display of reasoning and erudition. His brief peroration was eloquence of the noblest order. (See entire speech, Wheaton: Pinkney, 455-516.)

[352] See vol. i, 72, 195, of this work.

[353] 9 Cranch, 430-31.

[354] Ib. 430.

[355] "Never in my whole life was I more entirely satisfied that the Court were wrong in their judgment. I hope Mr. Pinkney will ... publish his admirable argument ... it will do him immortal honor." (Story to Williams, May 8, 1815, Story, i, 256.)

Exactly the same question as that decided in the case of the Nereid was again brought before the Supreme Court two years later in the case of the Atalanta. (3 Wheaton, 409.) Marshall merely stated that the former decision governed the case. (Ib. 415.)

[356] The American Insurance Company et al. vs. David Canter, 1 Peters, 511-46.

[357] 1 Peters, 511-46.

[358] Ib. 542.

[359] 1 Peters, 542.

[360] Ib. 546.

[361] Story wrote George Ticknor that Marshall "concurred in every word of it." (Story to Ticknor, Jan. 22, 1831, Story, ii, 49.)

[362] "Let us extend the national authority over the whole extent of power given by the Constitution. Let us have great military and naval schools; an adequate regular army; the broad foundations laid of a permanent navy; a national bank; a national system of bankruptcy; a great navigation act; a general survey of our ports, and appointments of port-wardens and pilots; Judicial Courts which shall embrace the ... justices of the peace, for the commercial and national concerns of the United States. By such enlarged and liberal institutions, the Government of the United States will be endeared to the people.... Let us prevent the possibility of a division, by creating great national interests which shall bind us in an indissoluble chain." (Story to Williams, Feb. 22, 1815, ib. i, 254.)

Later in the same year Story repeated these views and added: "I most sincerely hope that a national newspaper may be established at Washington." (Story to Wheaton, Dec. 13, 1815, ib. 270-71.)

[363] Professor William E. Dodd, in Am. Hist. Rev. xii, 776.

[364] For fuller description of the Virginia County Court system, see chap. ix of this volume.

[365] On the Virginia Republican machine, Roane, Ritchie, etc., see Dodd in Am. Hist. Rev. xii, 776-77; and in Branch Hist. Papers, June, 1903, 222; Smith in ib. June, 1905, 15; Thrift in ib. June, 1908, 183; also Dodd: Statesmen of the Old South, 70 et seq.; Anderson, 205; Turner: Rise of the New West, 60; Ambler: Ritchie, 27, 82.

[366] Several thousand acres of the Fairfax estate were not included in this joint purchase. (See infra, 150.)

[367] 1793-94. See vol. ii, 202-11, of this work.

[368] April 30, 1789. See Hunter vs. Fairfax's Devisee, 1 Munford, 223.

[369] For the district composed of Frederick, Berkeley, Hampshire, Hardy, and Shenandoah Counties.

[370] Order Book, Superior Court, No. 2, 43, Office of Clerk of Circuit Court, Frederick Co., Winchester, Va.

[371] The judges rendering this decision were St. George Tucker and William Nelson, Jr. (Ib.)

[372] In making out the record for appeal the fictitious name of Timothy Trititle was, of course, omitted, so that in the Court of Appeals and in the appeals to the Supreme Court of the United States the title of the case is Hunter vs. Fairfax's Devisee, instead of "Timothy Trititle, Lessee of David Hunter," vs. Fairfax's Devisee, and Martin vs. Hunter's Lessee.

[373] 1 Munford, 223.

[374] See vol. ii, footnote to 209, of this work.

[375] The adjustment was made because of the memorial of about two hundred settlers or squatters (mostly Germans) on the wild lands who petitioned the Legislature to establish title in them. David Hunter was not one of these petitioners. Marshall agreed to execute deeds "extinguishing" the Fairfax title "so soon as the conveyance shall be transmitted to me from Mr. Fairfax." (Marshall to the Speaker of the House of Delegates, Va., Nov. 24, 1796. See vol. ii, footnote to 209, of this work.) The Fairfax deed to the Marshalls was not executed until ten years after this compromise. (Land Causes, 1833, 40, Records in Office of Clerk of Circuit Court, Fauquier Co., Va.)

[376] Two years later, on October 5, 1808, the Marshall brothers effected a partition of the estate between themselves on the one part and their brother-in-law on the other part, the latter receiving about forty thousand acres. (Deed Book 36, 302, Records in Office of Clerk of Circuit Court, Frederick Co., Va.)

[377] On August 30, 1797, Denny Martin Fairfax conveyed to James M. Marshall all the Fairfax lands in Virginia "save and except ... the manor of Leeds." (See Marshall vs. Conrad, 5 Call, 364.) Thereafter James M. Marshall lived in Winchester for several years and made many conveyances of land in Shenandoah and Berkeley Counties. For instance, Nov. 12, 1798, to Charles Lee, Deed Book 3, 634, Records in Office of Clerk of Circuit Court, Frederick County, Va.; Jan. 9, 1799, to Henry Richards, ib. 549; Feb. 4, 1799, to Joseph Baker, Deed Book 25, ib. 561; March 30, 1799, to Richard Miller, Deed Book 3, ib. 602, etc.

All of these deeds by James M. Marshall and Hester, his wife, recite that these tracts and lots are parts of the lands conveyed to James M. Marshall by Denny Martin Fairfax on August 30, 1797. John Marshall does not join in any of these deeds. Apparently, therefore, he had no personal interest in the tract claimed by Hunter.

In a letter to his brother Marshall speaks of the Shenandoah lands as belonging to James M. Marshall: "With respect to the rents due Denny Fairfax before the conveyance to you I should suppose a recovery could only be defeated by the circumstance that they passed to you by the deed conveying the land." (Marshall to his brother, Feb. 13, 1806, MS.)

At the time when the Fairfax heir, Philip Martin, executed a deed to the Marshall brothers and Rawleigh Colston, conveying to them the Manor of Leeds, the lands involved in the Hunter case had been owned by James M. Marshall exclusively for nearly ten years.

After the partition with Colston, October 5, 1808, John and James M. Marshall, on September 5, 1809, made a partial division between themselves of Leeds Manor, and Goony Run Manor in Shenandoah County, the latter going to James M. Marshall.

These records apparently establish the facts that the "compromise" of 1796 was not intended to include the land claimed by Hunter; that James M. Marshall personally owned most of the lands about Winchester; and that John Marshall had no personal interest whatever in the land in controversy in the litigation under review.

This explains the refusal of the Supreme Court, including even Justice Johnson, to take notice of the compromise of 1796. (See infra, 157.)

[378] When Lord Fairfax devised his Virginia estate to his nephew, Denny Martin, he required him to take the name of Fairfax.

[379] Order Book, Superior Court of Frederick Co. Va., iii, 721.

[380] 1 Munford, 223. The record states that Judge Tucker did not sit on account of his near relationship to a person interested.

[381] It should be repeated that David Hunter was not one of the destitute settlers who appealed to the Legislature in 1796. From the records it would appear that he was a very prosperous farmer and land-owner who could well afford to employ the best legal counsel, as he did throughout the entire litigation. As early as 1771 we find him selling to Edward Beeson 536 acres of land in Frederick County. (Deed Book 15, 213, Office of Clerk of Circuit Court, Frederick County, Va.) The same Hunter also sold cattle, farming implements, etc., to a large amount. (Deeds dated Nov. 2, 1771, Deed Book cited above, 279, 280.)

These transactions took place eighteen years before Hunter secured from Virginia the grant of Fairfax lands, twenty-five years before the Marshall compromise of 1796, thirty-eight years before Hunter employed Wickham to revive his appeal against the Fairfax devisee, forty-two years prior to the first arguments before the Supreme Court, and forty-five years before the final argument and decision of the famous case of Martin vs. Hunter's Lessee. So, far from being a poor, struggling, submissive, and oppressed settler, David Hunter was one of the most well-to-do, acquisitive, determined, and aggressive men in Virginia.

[382] April 23, 1810.

[383] By using the plural "appellees," Roane apparently intimates that Marshall was personally interested in the case; as we have seen, he was not. There was of record but one appellee, the Fairfax devisee.

[384] 1 Munford, 232.

The last two lines of Roane's language are not clear, but it would seem that the "objection" must have been that the Marshall compromise did not include the land claimed by Hunter and others, the title to which had been adjudged to be in Fairfax's devisee before the compromise. This is, indeed, probably the meaning of the sentence of Roane's opinion; otherwise it is obscure. It would appear certain that the Fairfax purchasers did make just this objection. Certainly they would have been foolish not to have done so if the Hunter land was not embraced in the compromise.

[385] Since James M. Marshall was the American administrator of the will of Denny M. Fairfax, and also had long possessed all the rights and title of the Fairfax heir to this particular land, it doubtless was he who secured the writ of error from the Supreme Court.

[386] 1 Munford, 238.

[387] 7 Cranch, 608-09, 612. The reader should bear in mind the provisions of Section 25 of the Judiciary Act, since the validity and meaning of it are involved in some of the greatest controversies hereafter discussed. The part of that section which was in controversy is as follows:

"A final judgment or decree in any suit, in the highest court of law or equity of a state in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favor of such their validity; or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said constitution, treaty, statute or commission, may be re-examined and reversed or affirmed in the supreme court of the United States upon a writ of error."

[388] Randall, ii, 35-36.

[389] For a full and painstaking account of the Granville grant, and the legislation and litigation growing out of it, see Henry G. Connor in University of Pennsylvania Law Review, vol. 62, 671 et seq.

[390] See vol. i, 192, of this work.

[391] Connor in Univ. of Pa. Law Rev. vol. 62, 674-75.

[392] Ib. 676.

[393] See supra, 69.

[394] This highly important fact is proved by the message of Governor David Stone to the Legislature of North Carolina in which he devotes much space to the Granville litigation and recommends "early provision to meet the justice of the claim of her [North Carolina's] citizens for remuneration in case of a decision against the sufficiency of the title derived from herself." The "possibility" of such a decision is apparent "when it is generally understood that a greatly and deservedly distinguished member of that [the Supreme] Court, has already formed an unfavorable opinion, will probably enforce the consideration that it is proper to make some eventual provision, by which the purchasers from the State, and those holding under that purchase, may have justice done them." (Connor in Univ. of Pa. Law Rev. vol. 62, 690-91.)

From this message of Governor Stone it is clear that the State expected a decision in favor of the Granville heirs, and that the Legislature and State authorities were preparing to submit to that decision.

[395] Raleigh Register, June 24, 1805, as quoted by Connor in Univ. of Pa. Law Rev. vol. 62, 689.

The jury found against the Granville heirs. A Mr. London, the Granville agent at Wilmington, still hoped for success: "The favorable sentiments of Judge Marshall encourage me to hope that we shall finally succeed," he writes William Gaston, the Granville counsel. Nevertheless, "I think the Judge's reasons for withdrawing from the cause partakes more of political acquiescence than the dignified, official independence we had a right to expect from his character. He said enough to convince our opponents he was unfavorable to their construction of the law and, therefore, should not have permitted incorrect principles to harass our clients and create expensive delays. Mr. Marshall had certainly no interest in our cause, he ought to have governed the proceedings of a Court over which he presided, according to such opinion—it has very much the appearance of shirking to popular impressions."

London ordered an appeal to be taken to the Supreme Court of the United States, remarking that "it is no doubt much in our favor what has already dropt from the Chief Justice." (London to Gaston, July 8, 1805, as quoted by Connor in Univ. of Pa. Law Rev. vol. 62, 690.)

He was, however, disgusted with Marshall. "I feel much chagrin that we are put to so much trouble and expense in this business, and which I fear is in great degree to be attributed to the Chief Justice's delivery." (Same to same, April 19, 1806, as quoted by Connor in ib. 691.)

For more than ten years the appeal of the Granville heirs from the judgment of the National Court for the District of North Carolina reposed on the scanty docket of the Supreme Court awaiting call for argument by counsel. Finally on February 4, 1817, on motion of counsel for the Granville heirs, the case was stricken from the docket. The reason for this action undoubtedly was that William Gaston, counsel for the Granville heirs, had been elected to Congress, was ambitious politically, was thereafter elected judge of the Supreme Court of North Carolina; none of these honors could possibly have been achieved had he pressed the Granville case.

[396] 7 Cranch, 625.

[397] The Jay Treaty. See vol. ii, 113-15, of this work.

[398] 7 Cranch, 627.

[399] Ib. 631.

[400] Ib. 632.

[401] For mandate see 4 Munford, 2-3.

[402] March 31, April 1 to April 6, 1814. (4 Munford, 3.)

[403] Ib. 58.

[404] 4 Munford, 7.

[405] Ib. 8-9.

[406] Ib. 11.

[407] Ib. 12.

[408] 4 Munford, 15.

[409] Ib. 133.

[410] Ib. 38.

[411] Ib. 54.

[412] Jefferson to Roane, Oct. 12, 1815, Works: Ford, xi, 488-90.

[413] Roane to Jefferson, Oct. 28, 1815, Branch Hist. Papers, June, 1905, 131-32.

[414] The employment of these expensive lawyers is final proof of Hunter's financial resources.

[415] 1 Wheaton, 317, 318.

[416] Ib. 324.

[417] Ib. 326-27.

[418] The sections of the Constitution pertaining to this dispute are as follows:

"Article III, Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.

"Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects."

[419] 1 Wheaton, 328.

[420] Ib. 337-38.

[421] Ib. 339.

[422] Ib. 341.

[423] 1 Wheaton, 343-44.

[424] Ib. 351.

[425] Ib. 355.

[426] Ib. 360.

[427] 1 Wheaton, 362.

[428] Marshall to his brother, July 9, 1822, MS.

Parts of this long letter are of interest: "Although Judge White [of the Winchester court] will, of course, conform to the decision of the court of appeals against the appellate jurisdiction of the Supreme court, & therefore deny that the opinion in the case of Fairfax & Hunter is binding, yet he must admit that the supreme court is the proper tribunal for expounding the treaties of the United States, & that its decisions on a treaty are binding on the state courts, whether they possess the appellate jurisdiction or not.... The exposition of any state law by the courts of that state, are considered in the courts of all the other states, and in those of the United States, as a correct exposition, not to be reexamined.

"The only exception to this rule is when the statute of a state is supposed to violate the constitution of the United States, in which case the courts of the Union claim a controuling & supervising power. Thus any construction made by the courts of Virginia on the statute of descents or of distribution, or on any other subject, is admitted as conclusive in the federal courts, although those courts might have decided differently on the statute itself. The principle is that the courts of every government are the proper tribunals for construing the legislative acts of that government.

"Upon this principle the Supreme court of the United States, independent of its appellate jurisdiction, is the proper tribunal for construing the laws & treaties of the United States; and the construction of that court ought to be received every where as the right construction. The Supreme court of the United States has settled the construction of the treaty of peace to be that lands at that time held by British subjects were not escheatable or grantable by a state.... I refer particularly to Smith v The State of Maryland 6th Cranch Jackson v Clarke 3 Wheaton & Orr v Hodgson 4 Wheaton. The last case is explicit & was decided unanimously, Judge Johnson assenting.

"This being the construction of the highest court of the government which is a party to the treaty is to be considered by all the world as its true construction unless Great Britain, the other party, should controvert it. The court of appeals has not denied this principle. The dicta of Judge Roane respecting the treaty were anterior to this constitutional construction of it."

[429] See vol. iii, chap. x, of this work.

[430] 1 Wheaton, 362-63.

[431] Johnson's opinion was published in the National Intelligencer, April 16, 1816, as an answer to Roane's argument. (Smith in Branch Hist. Papers, June, 1905, 23.)

[432] Story, i, 277.

[433] Annals, 14th Cong. 1st Sess. 194, 231-33.

A bill was reported March 22, 1816, increasing the salaries of all government officials. The report of the committee is valuable as showing the increased cost of living. (Ib.)

[434] Nearly three years after the decision of Martin vs. Hunter's Lessee, Story writes that the Justices of the Supreme Court are "starving in splendid poverty." (Story to Wheaton, Dec. 9, 1818, Story, i, 313.)

[435] Story to White, Feb. 26, 1816, Story, i, 278; and see Story to Williams, May 22, 1816, ib. 279.

[436] Ambler: Sectionalism in Virginia, 103.

[Pg 168]



Like a dropsical man calling out for water, water, our deluded citizens are calling for more banks. (Jefferson.)

Merchants are crumbling to ruin, manufactures perishing, agriculture stagnating and distress universal. (John Quincy Adams.)

If we can believe our Democratic editors and public declaimers it [Bank of the United States] is a Hydra, a Cerberus, a Gorgon, a Vulture, a Viper. (William Harris Crawford.)

Where one prudent and honest man applies for [bankruptcy] one hundred rogues are facilitated in their depredations. (Hezekiah Niles.)

Merchants and traders are harassed by twenty different systems of laws, prolific in endless frauds, perjuries and evasions. (Harrison Gray Otis.)

The months of February and March, 1819, are memorable in American history, for during those months John Marshall delivered three of his greatest opinions. All of these opinions have had a determinative effect upon the political and industrial evolution of the people; and one of them[437] has so decisively influenced the growth of the Nation that, by many, it is considered as only second in importance to the Constitution itself. At no period and in no land, in so brief a space of time, has any other jurist or statesman ever bestowed upon his country three documents of equal importance. Like the other fundamental state papers which, in the form of judicial opinions, Marshall gave out from the Supreme Bench, those of 1819 were compelled by grave and dangerous conditions, National in extent.

It was a melancholy prospect over which Marshall's broad vision ranged, when from his rustic[Pg 169] bench under his trees at Richmond, during the spring and autumn of 1818, he surveyed the situation in which the American people found themselves. It was there, or in the quiet of the Blue Ridge Mountains where he spent the summer months, that he formed the outlines of those charts which he was soon to present to the country for its guidance; and it was there that at least one of them was put on paper.

The interpretation of John Marshall as the constructing architect of American Nationalism is not satisfactorily accomplished by a mere statement of his Nationalist opinions and of the immediate legal questions which they answered. Indeed, such a narrative, by itself, does not greatly aid to an understanding of Marshall's immense and enduring achievements. Not in the narrow technical points involved, some of them diminutive and all uninviting in their formality; not in the dreary records of the law cases decided, is to be found the measure of his monumental service to the Republic or the meaning of what he did. The state of things which imperatively demanded the exercise of his creative genius and the firm pressure of his steadying hand must be understood in order to grasp the significance of his labors.

When the Supreme Court met in February, 1819, almost the whole country was in grievous turmoil; for nearly three years conditions had been growing rapidly worse and were now desperate. Poverty, bankruptcy, chicanery, crime were widespread and increasing. Thrift, prudence, honesty, and order had seemingly been driven from the hearts and minds of most of the people; while speculation, craft, and[Pg 170] unscrupulous devices were prevalent throughout all but one portion of the land. Only New England had largely escaped the universal curse that appeared to have fallen upon the United States; and even that section was not untouched by the economic and social plague that had raged and was becoming more deadly in every other quarter.

While it is true that a genuine democratizing evolution was in progress, this fact does not explain the situation that had grown up throughout the country. Neither does the circumstance that the development of land and resources was going forward in haphazard fashion, at the hands of a new population hard pressed for money and facilities for work and communication, reveal the cause of the appalling state of affairs. It must frankly be said of the conditions, to us now unbelievable, that they were due partly to the ignorance, credulity, and greed of the people; partly to the spirit of extravagance; partly to the criminal avarice of the financially ambitious; partly to popular dread of any great centralized moneyed institution, however sound; partly to that pest of all democracies, the uninformed and incessant demagogue whipping up and then pandering to the passions of the multitude; partly to that scarcely less dangerous creature in a Republic, the fanatical doctrinaire, proclaiming the perfection of government by word-logic and insisting that human nature shall be confined in the strait-jacket of verbal theory. From this general welter of moral and economic debauchery, Localism had once more arisen and was eagerly reasserting its domination.[Pg 171]

The immediate cause of the country's plight was an utter chaos in banking. Seldom has such a financial motley ever covered with variegated rags the backs of a people. The confusion was incredible; but not for a moment did the millions who suffered, blame themselves for their tragic predicament. Now praising banks as unfailing fountains of money, now denouncing banks as the sources of poisoned waters, clamoring for whatever promised even momentary relief, striking at whatever seemingly denied it, the people laid upon anything and anybody but themselves and their improvidence, the responsibility for their distress.

Hamilton's financial plans[438] had proved to be as successful as they were brilliant. The Bank of the United States, managed, on the whole, with prudence, skill, and honesty,[439] had fulfilled the expectations of its founders. It had helped to maintain the National credit by loans in anticipation of revenue; it had served admirably, and without compensation, as an agent for collecting, safeguarding, and transporting the funds of the Government; and, more important than all else, it had kept the currency, whether its own notes or those of private banks, on a sound specie basis. It had, indeed, "acted as the general guardian of commercial credit" and, as such, had faithfully and wisely performed its duties.[440]

But the success of the Bank had not overcome the[Pg 172] original antagonism to a great central moneyed institution. Following the lead of Jefferson, who had insisted that the project was unconstitutional,[441] Madison, in the first Congress, had opposed the bill to incorporate the first Bank of the United States. Congress had no power, he said, to create corporations.[442] After twelve years of able management, and in spite of the good it had accomplished, Jefferson still considered it, potentially, a monster that might overthrow the Republic. "This institution," he wrote in the third year of his Presidency, "is one of the most deadly hostility existing, against the principles & form of our Constitution.... An institution like this, penetrating by it's branches every part of the Union, acting by command & in phalanx, may, in a critical moment, upset the government.... What an obstruction could not this bank of the U.S., with all it's branch banks, be in time of war?"[443]

The fact that most of the stock of the Bank had been bought up by Englishmen added to the unpopularity of the institution.[444] Another source of hostility was the jealousy of State banks, much of the complaint about "unconstitutionality" and "foreign ownership" coming from the agents and friends of these local concerns. The State banks wished for themselves the profits made by the National Bank and its branches, and they chafed under the wise[Pg 173] regulation of their note issues, which the existence of the National system compelled.

For several years these State banks had been growing in number and activity.[445] When, in 1808, the directors of the Bank of the United States asked for a renewal of its charter, which would expire in 1811, and when the same request was made of Congress in 1809, opposition poured into the Capital from every section of the country. The great Bank was a British institution, it was said; its profits were too great; it was a creature of Federalism, brought forth in violation of the Constitution. Its directors, officers, and American stockholders were Federalists; and this fact was the next most powerful motive for the overthrow of the first Bank of the United States.[446]

Petitions to Congress denounced it and demanded its extinction. One from Pittsburgh declared "that your memorialists are 'the People of the United States,'" and asserted that the Bank "held in bondage thousands of our citizens," kept the Government "in duress," and subsidized the press, thus "thronging" the Capital with lobbyists who in general were the "head-waters of corruption."[447] The Legislatures of many States "instructed" their Senators and "earnestly requested" their Representatives in Congress to oppose a new charter for the expiring National institution. Such resolutions came from Pennsylvania, from Virginia, from Massachusetts.[448][Pg 174]

The State banks were the principal contrivers of all this agitation.[449] For instance, the Bank of Virginia, organized in 1804, had acquired great power and, but for the branch of the National concern at Richmond, would have had almost the banking monopoly of that State. Especially did the Virginia Bank desire to become the depository of National funds[450]—a thing that could not be accomplished so long as the Bank of the United States was in existence.[451] Dr. John Brockenbrough, the relative, friend, and political associate of Spencer Roane and Thomas Ritchie, was the president of this State institution, which was a most important part of the Republican machine in Virginia. Considering the absolute control held by this political organization over the Legislature, it seems probable that the State bank secured the resolution condemnatory of the Bank of the United States.

Certainly the General Assembly would not have taken any action not approved by Brockenbrough, Roane, and Ritchie. Ritchie's Enquirer boasted that it "was the first to denounce the renewal of the bank charter."[452] In the Senate, William H. Crawford boldly charged that the instructions of the State Legislatures were "induced by motives of avarice";[453] and Senator Giles was plainly embarrassed in his attempt to deny the indictment.[454][Pg 175]

Nearly all the newspapers were controlled by the State banks;[455] they, of course, denounced the National Bank in the familiar terms of democratic controversy and assailed the character of every public man who spoke in behalf of so vile and dangerous an institution.[456] It was also an ideal object of assault for local politicians who bombarded the Bank with their usual vituperation. All this moved Senator Crawford, in his great speech for the rechartering of the Bank, to a scathing arraignment of such methods.[457]

In spite of conclusive arguments in favor of the Bank of the United States on the merits of the question, the bill to recharter that institution was de[Pg 176]feated in the House by a single vote,[458] and in the Senate by the casting vote of the Vice-President, the aged George Clinton.[459] Thus, on the very threshold of the War of 1812, the Government was deprived of this all but indispensable fiscal agent; immense quantities of specie, representing foreign bank holdings, were withdrawn from the country; and the State banks were given a free hand which they soon used with unrestrained license.

These local institutions, which, from the moment the failure of the rechartering of the National Bank seemed probable, had rapidly increased in number, now began to spring up everywhere.[460] From the first these concerns had issued bills for the loan of which they charged interest. Thus banking was made doubly profitable. Even those banks, whose note issues were properly safeguarded, achieved immense profits. Banking became a mania.

"The Banking Infatuation pervades all America," wrote John Adams in 1810. "Our whole system of Banks is a violation of every honest Principle of Banks.... A Bank that issues Paper at Interest is a Pickpocket or a Robber. But the Delusion will have its Course. You may as well reason with a Hurricane. An Aristocracy is growing out of them, that will be as fatal as The Feudal Barons, if unchecked in Time.... Think of the Number, the Offices, Stations, Wealth, Piety and Reputations of the Persons in all the States, who have made Fortunes by these Banks, and then you will see how deeply rooted the evil is. The Number of Debtors who hope to pay[Pg 177] their debts by this Paper united with the Creditors who build Pallaces in our Cities, and Castles for Country Seats, by issuing this Paper form too impregnable a Phalanx to be attacked by any Thing less disciplined than Roman Legions."[461]

Such was the condition even before the expiration of the charter of the first Bank. But, when the restraining and regulating influence of that conservative and ably managed institution was removed altogether, local banking began a course that ended in a mad carnival of roguery, to the ruin of legitimate business and the impoverishment and bankruptcy of hundreds of thousands of the general public.

The avarice of the State banks was immediately inflamed by the war necessities of the National Government. Desperate for money, the Treasury exchanged six per cent United States bonds for the notes of State banks.[462] The Government thus lost five million dollars from worthless bank bills.[463] These local institutions now became the sole depositories of the Government funds which the National Bank had formerly held.[464] Sources of gain of this kind were only extra inducements to those who, by wit alone, would gather quick wealth to set up more local banks. But other advantages were quite enough to appeal to the greedy, the dishonest, and the adventurous.

Liberty to pour out bills without effective restriction as to the amount or security; to loan such[Pg 178] "rags" to any who could be induced to borrow; to collect these debts by foreclosure of mortgages or threats of imprisonment of the debtors—these were some of the seeds from which grew the noxious financial weeds that began to suck the prosperity of the country. When the first Bank of the United States was organized there were only three State banks in the country. By 1800, there were twenty-eight; by 1811, they had more than trebled,[465] and most of the eighty-eight State institutions in existence when the first National Bank was destroyed had been organized after it seemed probable that it would not be granted a recharter.

So rapidly did they increase and so great were their gains that, within little more than a year from the demise of the first Bank of the United States, John Adams records: "The Profits of our Banks to the advantage of the few, at the loss of the many, are such an enormous fraud and oppression as no other Nation ever invented or endured. Who can compute the amount of the sums taken out of the Pocketts of the Simple and hoarded in the Purses of the cunning in the course of every year?... If Rumour speaks the Truth Boston has and will emulate Philadelphia in her Proportion of Bankruptcies."[466]

Yet Boston and Philadelphia banks were the soundest and most carefully conducted of any in the whole land. If Adams spoke extravagantly of the methods and results of the best managed financial institutions of the country, he did not exaggerate[Pg 179] conditions elsewhere. From Connecticut to the Mississippi River, from Lake Erie to New Orleans, the craze for irresponsible banking spread like a contagious fever. The people were as much affected by the disease as were the speculators. The more "money" they saw, the more "money" they wanted. Bank notes fell in value; specie payments were suspended; rates of exchange were in utter confusion and constantly changing. From day to day no man knew, with certainty, what the "currency" in his pocket was worth. At Vincennes, Indiana, in 1818, William Faux records: "I passed away my 20 dollar note of the rotten bank of Harmony, Pennsylvania, for five dollars only!"[467]

The continuance of the war, of course, made this financial situation even worse for the Government than for the people. It could not negotiate its loans; the public dues were collected with difficulty, loss, and delay; the Treasury was well-nigh bankrupt. "The Department of State was so bare of money as to be unable to pay even its stationery bill."[468] In 1814, when on the verge of financial collapse, the Administration determined that another Bank of the United States was absolutely necessary to the conduct of the war.[469] Scheme after scheme was proposed, wrangled over, and defeated.

One plan for a bank[470] was beaten "after a day of the most tumultuous proceedings I ever saw," testi[Pg 180]fies Webster.[471] Another bill passed,[472] but was vetoed by President Madison because it could not aid in the rehabilitation of the public credit, nor "provide a circulating medium during the war, nor ... furnish loans, or anticipate public revenue."[473] When the war was over, Madison timidly suggested to Congress the advisability of establishing a National bank "that the benefits of a uniform national currency should be restored."[474] Thus, on April 10, 1816, two years after Congress took up the subject, a law finally was enacted and approved providing for the chartering and government of the second Bank of the United States.[475]

Within four years, then, of the refusal of Congress to recharter the sound and ably managed first Bank of the United States, it was forced to authorize another National institution, endowed with practically the same powers possessed by the Bank which Congress itself had so recently destroyed.[476] But the second establishment would have at least one advantage over the first in the eyes of the predominant political party—a majority of the officers and directors of the Bank would be Republicans.[477][Pg 181]

During their four years of "financial liberty" the number of State banks had multiplied. Those that could be enumerated in 1816 were 246.[478] In addition to these, scores of others, most of them "pure swindles,"[479] were pouring out their paper.[480] Even if they had been sound, not half of them were needed.[481] Nearly all of them extended their wild methods. "The Banks have been going on, as tho' the day of reckoning would never come," wrote Rufus King of conditions in the spring of 1816.[482]

The people themselves encouraged these practices. The end of the war released an immense quantity of English goods which flooded the American market. The people, believing that devastated Europe would absorb all American products, and beholding a vision of radiant prosperity, were eager to buy. A passion for extravagance swept over America;[483] the country was drained of specie by payments for exports.[484] Then came a frenzy of speculation. "The people were wild; ... reason seemed turned topsy turvey."[485]

The multitude of local banks intensified both these manias by every device that guile and avarice could suggest. Every one wanted to get rich at the expense of some one else by a mysterious process, the nature of[Pg 182] which was not generally understood beyond the fact that it involved some sort of trickery. Did any man's wife and family want expensive clothing—the local bank would loan him bills issued by itself, but only on good security. Did any man wish to start some unfamiliar and alluring enterprise by which to make a fortune speedily—if he had a farm to mortgage, the funds were his. Was a big new house desired? The money was at hand—nothing was required to get it but the pledge of property worth many times the amount with which the bank "accommodated" him.[486]

Indeed, the local banks urged such "investments," invited people with property to borrow, laid traps to ensnare them. "What," asked Hezekiah Niles, "is to be the end of such a business?—Mammoth fortunes for the wise, wretched poverty for the foolish.... Lands, lots, houses—stock, farming utensils and household furniture, under custody of the sheriff—SPECULATION in a coach, HONESTY in the jail."[487]

Many banks sent agents among the people to hawk their bills. These were perfectly good, the harpies would assure their victims, but they could now be had at a heavy discount; to buy them was to make a large profit. So the farmer, the merchant, even the laborer who had acquired a dwelling of his own, were induced to mortgage their property or sell it outright in exchange for bank paper that often proved to be worthless.[488]

Frequently these local banks ensnared prosperous farmers by the use of "cappers." Niles prints con[Pg 183]spicuously as "A True Story"[489] the account of a certain farmer who owned two thousand acres, well improved and with a commodious residence and substantial farm buildings upon it. Through his land ran a stream affording good water power. He was out of debt, prosperous, and contented. One day he went to a town not many miles from his plantation. There four pleasant-mannered, well-dressed men made his acquaintance and asked him to dinner, where a few directors of the local bank were present. The conversation was brought around to the profits to be made in the milling business. The farmer was induced to borrow a large sum from the local bank and build a mill, mortgaging his farm to secure the loan. The mill was built, but seldom used because there was no work for it to do; and, in the end, the two thousand acres, dwelling, buildings, mill, and all, became the property of the bank directors.[490]

This incident is illustrative of numerous similar cases throughout the country, especially in the West and South. Niles thus describes banking methods in general: "At first they throw out money profusely, to all that they believe are ultimately able to return it; nay, they wind round some like serpents to tempt them to borrow—... they then affect to draw in their notes, ... money becomes scarce, and notes of hand are shaved by them to meet bank engagements; it gets worse—the consummation[Pg 184] originally designed draws nigh, and farm after farm, lot after lot, house after house, are sacrificed."[491]

So terrifying became the evil that the Legislature of New York, although one of the worst offenders in the granting of bank charters, was driven to appoint a committee of investigation. It reported nothing more than every honest observer had noted. Money could not be transmitted from place to place, the committee said, because local banks had "engrossed the whole circulation in their neighborhood," while their notes abroad had depreciated. The operations of the bankers "immediately within their vicinity" were ruinous: "Designing, unprincipled speculator[s] ... impose on the credulity of the honest, industrious, unsuspecting ... by their specious flattery and misrepresentation, obtaining from them borrowed notes and endorsements, until the ruin is consummated, and their farms are sold by the sheriff."[492]

Some banks committed astonishing frauds, "such as placing a partial fund in a distant bank to redeem their paper" and then "issuing an emission of notes signed with ink of a different shade, at the same time giving secret orders to said bank not to pay the notes thus signed." Bank paper, called "facility notes," was issued, but "payable in neither money, country produce, or any thing else that has body or shape." Bank directors even terrorized merchants who did not submit to their practices. In one typical case all persons were denied discounts who traded at a cer[Pg 185]tain store, the owner of which had asked for bank bills that would be accepted in New York City, where they had to be remitted—this, too, when the offending merchant kept his account at the bank.

The committee describes, as illustrative of banking chicanery, the instance of "an aged farmer," owner of a valuable farm, who, "wishing to raise the sum of one thousand dollars, to assist his children, was told by a director, he could get it out of the bank ... and that he would endorse his note for him." Thus the loan was made; but, when the note expired, the director refused to obtain a renewal except upon the payment of one hundred dollars in addition to the discount. At the next renewal the same condition was exacted and also "a judgment ... in favor of said director, and the result was, his farm was soon after sold without his knowledge by the sheriff, and purchased by the said director for less than the judgment."[493]

Before the second Bank of the United States opened its doors for business, the local banks began to gather the first fruits of their labors. By the end of 1816 suits upon promissory notes, bonds, and mortgages, given by borrowers, were begun. Three fourths of all judgments rendered in the spring of 1818 by the Supreme Court of the State of New York alone were "in favor of banks, against real property."[494] Suits and judgments of this kind grew ever more frequent.

In such fashion was the country hastened toward the period of bankruptcy. Yet the people in general[Pg 186] still continued to demand more "money." The worse the curse, the greater the floods of it called for by the body of the public. "Like a dropsical man calling out for water, water, our deluded citizens are clamoring for more banks.... We are now taught to believe that legerdemain tricks upon paper can produce as solid wealth as hard labor in the earth," wrote Jefferson when the financial madness was becoming too apparent to all thoughtful men.[495]

Practically no restrictions were placed upon these financial freebooters,[496] while such flimsy regulations as their charters provided were disregarded at will.[497] There was practically no publicity as to the management and condition of even the best of these banks;[498] most of them denied the right of any authority to inquire into their affairs and scorned to furnish information as to their assets or methods.[499] For years the Legislatures of many States were controlled by these institutions; bank charters were secured by the worst methods of legislative manipulation; lobbyists thronged the State Capitols when the General Assemblies were in session; few, if any, lawmaking bodies of the States were without officers, directors, or agents of local banks among their membership.[500][Pg 187]

Thus bank charters were granted by wholesale and they were often little better than permits to plunder the public. During the session of the Virginia Legislature of 1816-17, twenty-two applications for bank charters were made.[501] At nearly the same time twenty-one banks were chartered in the newly admitted and thinly peopled State of Ohio.[502] The following year forty-three new banks were authorized in Kentucky.[503] In December, 1818, James Flint found in Kentucky, Ohio, and Tennessee a "vast host of fabricators, and venders of base money."[504] All sorts of "companies" went into the banking business. Bridge companies, turnpike companies, manufacturing companies, mercantile companies, were authorized to issue their bills, and this flood of paper became the "money" of the people; even towns and villages emitted "currency" in the form of municipal notes. The City of Richmond, Virginia, in 1815, issued "small paper bills for change, to the amount of $29,948."[505] Often bills were put in circulation of denominations as low as six and one fourth cents.[506][Pg 188] Rapidly the property of the people became encumbered to secure their indebtedness to the banks.

A careful and accurate Scotch traveler thus describes their methods: "By lending, and otherwise emitting their engravings, they have contrived to mortgage and buy much of the property of their neighbours, and to appropriate to themselves the labour of less moneyed citizens.... Bankers gave in exchange for their paper, that of other banks, equally good with their own.... The holder of the paper may comply in the barter, or keep the notes ...; but he finds it too late to be delivered from the snare. The people committed the lapsus, when they accepted of the gew-gaws clean from the press.... The deluded multitude have been basely duped."[507] Yet, says Flint, "every one is afraid of bursting the bubble."[508]

As settlers penetrated the Ohio and Indiana forests and spread over the Illinois prairies, the banks went with them and "levied their contributions on the first stroke of the axe."[509] Kentucky was comparatively well settled and furnished many emigrants to the newer regions north of the Ohio River. Rough log cabins were the abodes of nearly all of the people[510][Pg 189] who, for the most part, lived roughly,[511] drank heavily,[512] were poorly educated.[513] They were, however, hospitable, generous, and brave; but most of them preferred to speculate rather than to work.[514] Illness was general, sound health rare.[515] "I hate the prairies.... I would not have any of them of a gift, if I must be compelled to live on them," avowed an English emigrant.[516]

In short, the settlers reproduced most of the features of the same movement in the preceding generation.[517] There was the same squalor, suspicion,[Pg 190] credulity, and the same combativeness,[518] the same assertion of superiority over every other people on earth,[519] the same impatience of control, particularly from a source so remote as the National Government.[520] "The people speak and seem as if they were without a government, and name it only as a bugbear," wrote William Faux.[521]

Moreover, the inhabitants of one section knew lit[Pg 191]tle or nothing of what those in another were doing. "We are as ignorant of the temper prevailing in the Eastern States as the people of New Holland can be," testifies John Randolph in 1812.[522] Even a generation after Randolph made this statement, Frederick Marryat records that "the United States ... comprehend an immense extent of territory, with a population running from a state of refinement down to one of positive barbarism.... The inhabitants of the cities ... know as little of what is passing in Arkansas and Alabama as a cockney does of the manners and customs of ... the Isle of Man."[523] Communities were still almost as segregated as were those of a half-century earlier.[524] Marryat observes, a few years later, that "to write upon America as a nation would be absurd, for nation ... it is not."[525] Again, he notes in his journal that "the mass of the citizens of the United States have ... a very great dislike to all law except ... the decision of the majority."[526]

These qualities furnished rich soil for cultivation by demagogues, and small was the husbandry required to produce a sturdy and bellicose sentiment of Localism. Although the bills of the Bank of the United States were sought for,[527] the hostility to that National institution was increased rather than diminished by the superiority of its notes over those of the local money mills. No town was too small for a bank. The fact that specie payments were not exacted "indicated every village in the United[Pg 192] States, where there was a 'church, a tavern and a blacksmith's shop,' as a suitable site for a bank, and justified any persons in establishing one who could raise enough to pay the paper maker and engraver."[528]

Not only did these chartered manufactories of currency multiply, but private banks sprang up and did business without any restraint whatever. Niles was entirely within the truth when he declared that nothing more was necessary to start a banking business than plates, presses, and paper.[529] Often the notes of the banks, private or incorporated, circulated only in the region where they were issued.[530] In 1818 the "currency" of the local banks of Cincinnati was "mere waste paper ... out of the city."[531] The people had to take this local "money" or go without any medium of exchange. When the notes of distant banks were to be had, the people did not know the value of them. "Notes current in one part, are either refused, or taken at a large discount, in another," wrote Flint in 1818.[532]

In the cities firms dealing with bank bills printed[Pg 193] lists of them with the market values, which changed from day to day.[533] Sometimes the county courts fixed rates of exchange; for instance, the County Court of Norfolk County, Virginia, in March, 1816, decreed that the notes of the Bank of Virginia and the Bank of South Carolina were worth their face value, while the bills of Baltimore and Philadelphia and the District of Columbia were below par.[534] Merchants had to keep lists on which was estimated the value of bank bills and to take chances on the constant fluctuations of them.[535] "Of upwards of a hundred banks that lately figured in Indiana, Ohio, Kentucky, and Tennessee, the money of two is now only received in the land-office, in payment for public lands," testifies Flint, writing from Jeffersonville, Indiana, in March, 1820. "Discount," he adds, "varies from thirty to one hundred per cent."[536] By September, 1818, two thirds of the bank bills sent to Niles in payment for the Register could not "be passed for money."[537]

"Chains" of banks were formed by which one member of the conspiracy would redeem its notes only by paying out the bills of another. Thus, if a man presented at the counter of a certain bank the bills issued by it, he was given in exchange those of another bank; when these were taken to this second[Pg 194] institution, they were exchanged for the bills of a third bank, which redeemed them with notes of the first.[538] For instance, Bigelow's bank at Jeffersonville, Indiana, redeemed its notes with those of Piatt's bank at Cincinnati, Ohio; this, in turn, paid its bills with those of a Vincennes sawmill and the sawmill exchanged its paper for that of Bigelow's bank.[539]

The redemption of their bills by the payment of specie was refused even by the best State banks, and this when the law positively required it. Niles estimated in April, 1818, that, although many banks were sound and honestly conducted, there were not "half a dozen banks in the United States that are able to pay their debts as they are payable."[540]

All this John Marshall saw and experienced. In 1815, George Fisher[541] presented to the Bank of Virginia ten of its one-hundred-dollar notes for redemption, which was refused. After several months' delay, during which the bank officials ignored a summons to appear in court, a distringas[542] was secured. The President of the bank, Dr. Brockenbrough, resisted service of the writ, and the "Sheriff then called upon the by-standers, as a posse comitatus," to assist him. Among these was the Chief Justice of the United States. Fisher had hard work in finding a lawyer to take his case; for months no member of the bar would act as his attorney.[543] For [Pg 195]in Virginia as elsewhere—even less than in many States—the local banks were the most lucrative clients and the strongest political influence; and they controlled the lawyers as well as the press.

In June, 1818, for instance, a business man in Pennsylvania had accumulated several hundred dollars in bills of a local bank which refused to redeem them in specie or better bills. Three justices of the peace declined to entertain suit against the bank and no notary public would protest the bills. In Maryland, at the same time, a man succeeded in bringing an action against a bank for the redemption of some of its bills; but the cashier, while admitting his own signature on the notes, swore that he could not identify that of the bank's president, who had absented himself.[544]

Counterfeiting was widely practiced and, for a time, almost unpunished; a favorite device was the raising of notes, usually from five to fifty dollars. Bills were put in circulation purporting to have been issued by distant banks that did not exist, and never had existed. In a single week of June, 1818, the country newspapers contained accounts of twenty-eight cases of these and similar criminal operations.[545] Sometimes a forger or counterfeiter was caught; at Plattsburg, New York, one of these had twenty different kinds of fraudulent notes, "well executed."[546][Pg 196] In August, 1818, Niles estimates that "the notes of at least one hundred banks in the United States are counterfeited."[547] By the end of the year an organized gang of counterfeiters, forgers, and distributors of their products covered the whole country.[548] Counterfeits of the Marine Bank of Baltimore alone were estimated at $1,000,000;[549] one-hundred-dollar notes of the Bank of Louisiana were scattered far and wide.[550] Scarcely an issue of any newspaper appeared without notices of these depredations;[551] one half of the remittances sent Niles from the West were counterfeit.[552]

Into this chaos of speculation, fraud, and financial fiction came the second Bank of the United States. The management of it, at the beginning, was adventurous, erratic, corrupt; its officers and directors countenanced the most shameful manipulation of the Bank's stock; some of them participated in the incredible jobbery.[553] Nothing of this, however, was known to the country at large for many months,[554] nor did the knowledge of it, when revealed, afford the occasion for the popular wrath that soon came to be directed against the National Bank. This public hostility, indeed, was largely produced by measures which the Bank took to retrieve the early business blunders of its managers.

These blunders were appalling. As soon as it[Pg 197] opened in 1817, the Bank began to do business on the inflated scale which the State banks had established; by over-issue of its notes it increased the inflation, already blown to the bursting point. Except in New England, where its loans were moderate and well secured, it accommodated borrowers lavishly. The branches were not required to limit their business to a fixed capital; in many cases, the branch officers and directors, incompetent and swayed by local interest and feeling,[555] issued notes as recklessly as did some of the State banks. In the West particularly, and also in the South, the loans made were enormous. The borrowers had no expectation of paying them when due, but of renewing them from time to time, as had been the practice under State banking.

The National branches in these regions showed a faint gleam of prudence by refusing to accept bills of notoriously unsound local banks. This undemocratic partiality, although timidly exercised, aroused to activity the never-slumbering hostility of these local concerns. In the course of business, however, bills of most State banks accumulated to an immense amount in the vaults of the branches of the Bank of the United States. When, in spite of the disposition of the branch officers to extend unending and unlimited indulgence to the State banks and to borrowers generally, the branches finally were compelled by the parent Bank to demand payment of loans and redemption of bills of local banks held by it; and when, in consequence, the State banks were forced to collect debts due them, the catastrophe, so long[Pg 198] preparing, fell upon sections where the vices of State banking had been practiced most flagrantly.

Suits upon promissory notes, bonds and mortgages, already frequent, now became incessant; sheriffs were never idle. In the autumn of 1818, in a single small county[556] of Delaware, one hundred and fifty such actions were brought by the banks. In addition to this, records the financial chronicler of the period, "their vaults are loaded with bonds, mortgages and other securities, held in terrorem over the heads of several hundreds more."[557] At Harrisburg, Pennsylvania, one bank brought more than one hundred suits during May, 1818;[558] a few months later a single issue of one country newspaper in Pennsylvania contained advertisements of eighteen farms and mills at sheriff's sale; a village newspaper in New York advertised sixty-three farms and lots to be sold under the sheriff's hammer.[559] "Currency" decreased in quantity; unemployment was amazing; scores of thousands of men begged for work; throngs of the idle camped near cities and subsisted on charity.[560]

All this the people laid at the doors of the National Bank, while the State banks,[561] of course, encouraged the popular animosity. Another order of the National concern increased the anger of the people and of the State banks against it. For more than a year the parent institution and its branches had redeemed all notes issued by them wherever presented. Since the notes from the West and South[Pg 199] flowed to the North and East[562] in payment for the manufactures and merchandise of these sections, this universal redemption became impossible. So, on August 28, 1818, the branches were directed to refuse all notes except their own.[563]

Thus the Bank, "like an abandoned mother, ... bastardized its offspring,"[564] said the enemies of the National Bank, among them all State banks and most of the people. The enforcement of redemption of State bank bills, the reduction of the volume of "currency," were the real causes of the fury with which the Bank of the United States and its branches was now assailed. That institution was the monster, said local orators and editors; its branches were the tentacles of the Octopus, heads of the Hydra.[565] "The 'branches' are execrated on all hands," wrote an Ohio man. "We feel that to the policy pursued by them, we are indebted for all the evils we experience for want of a circulating medium."[566]

The popular cry was for relief. More money, not less, was needed, it was said; and more banks that could and would loan funds with which to pay debts. If the creditor would not accept the currency thus procured, let laws be passed that would compel him to do so, or prevent him from collecting what his contract called for. Thus, with such demands upon their lips, and in the midst of a storm of lawsuits, the people entered at last that inevitable period of bank[Pg 200]ruptcy to which for years they had been drawing nearer and for which they were themselves largely responsible.

Bankruptcy laws had already been enacted by some States; and if these acts had not been drawn for the benefit of speculators in anticipation of the possible evil day, the "insolvency" statutes certainly had been administered for the protection of rich and dishonest men who wished to escape their liabilities, and yet to preserve their assets. In New York[567] the debtor was enabled to discharge all accounts by turning over such property as he had; if he owed ten thousand dollars, and possessed but fifty dollars, his debt was cancelled by the surrender of that sum. For the honest and prudent man the law was just, since no great discrepancy usually existed between his reported assets and his liabilities. But lax administration of it afforded to the dishonest adventurer a shield from the righteous consequences of his wrongdoing.

The "bankruptcies" of knavish men were common operations. One merchant in an Eastern city "failed," but contrived to go on living in a house for which he "was offered $200,000 in real money."[568] Another in Philadelphia became "insolvent," yet had $7000 worth of wine in his cellar at the very time he was going through "bankruptcy."[569] A merchant tailor in the little town of York, Pennsylvania, resorted to bankruptcy to clear himself of eighty-four thousand dollars of debt.[570][Pg 201]

In their speculations adventurous men counted on the aid of these legislative acts for the relief of debtors. "Never ... have any ... laws been more productive of crime than the insolvent laws of Maryland," testifies Niles.[571] One issue of the Federal Gazette contained six columns of bankruptcy notices, and these were only about "one-third of the persons" then "'going through our mill.'" Several "bankrupts" had been millionaires, and continued to "live in splendid affluence, ... their wives and children, or some kind relative, having been made rich through their swindlings of the people."[572] Many "insolvents" were bankers; and this led Niles to propose that the following law be adopted:

"'Whereas certain persons ... unknown, have petitioned for the establishment of a bank at ——:

"'Be it enacted, that ... these persons, ... shall have liberty to become bankrupts, and may legally swindle as much as they can.'"[573]

In a Senate debate in March, 1820, for a proposed new National Bankruptcy Act,[574] Senator Harrison Gray Otis of Massachusetts moderately stated the results of the State insolvency laws. "Merchants and traders ... are harassed and perplexed by twenty[Pg 202] different systems of municipal laws, often repugnant to each other and themselves; always defective; seldom executed in good faith; prolific in endless frauds, perjuries, and evasions; and never productive of ... any sort of justice, to the creditor. Nothing could be ... comparable to their pernicious effects upon the public morals."[575] Senator Prentiss Mellen, of the same State, described the operation of the bankruptcy mill thus: "We frequently witness transactions, poisoned throughout with fraud ... in which all creditors are deceived and defrauded.... The man pretends to be a bankrupt; and having converted a large portion of his property into money ... he ... closes his doors; ... goes through the form of offering to give up all his property, (though secretly retaining thousands,) on condition of receiving a discharge from his creditors.... In a few months, or perhaps weeks, he recommences business, and finds himself ... with a handsome property at command."[576]

Senator James Burrill, Jr., of Rhode Island was equally specific and convincing. He pictured the career of a dishonest merchant, who transfers property to relatives, secures a discharge from the State bankruptcy courts, and "in a few days ... resumes his career of folly, extravagance, and rashness.... Thus the creditors are defrauded, and the debtor, in many cases, lives in affluence and splendor."[577] Flint records that "mutual credit and confidence are almost torn up by the roots."[578][Pg 203]

It was soon to be the good fortune of John Marshall to declare such State legislation null and void because in violation of the National Constitution. Never did common honesty, good faith, and fair dealing need such a stabilizing power as at the moment Marshall furnished to the American people. In most parts of the country even insolvency laws did not satisfy debtors; they were trying to avoid the results of their own acts by securing the enactment of local statutes that repealed the natural laws of human intercourse—of statutes that expressed the momentary wish of the uncomfortable, if honest, multitude, but that represented no less the devices of the clever and unscrupulous. Fortunate, indeed, was it for the United States, at this critical time in its development, that one department of the Government could not be swayed by the passion of the hour, and thrice happy that the head of that department was John Marshall.

The impression made directly on Marshall by what took place under his very eyes in Virginia was strengthened by events that occurred in Kentucky. All his brothers and sisters, except two, besides numerous cousins and relatives by marriage, lived there. Thus he was advised in an intimate and personal way of what went forward in that State.[579][Pg 204]

The indebtedness of Kentucky State banks, and of individual borrowers to the branches of the National Bank located in that Commonwealth, amounted to more than two and one half millions of dollars.[580] "This is the trifling sum which the people of Kentucky are called upon to pay in specie!"[581] exclaimed a Kentucky paper. The people of that State owed the local banks about $7,000,000 more, while the total indebtedness to all financial institutions within Kentucky was not far from $10,000,000.[582] The sacrifice of property for the satisfaction of mortgages grew ever more distressing. At Lexington, a house and lot, for which the owner had refused $15,000, brought but $1300 at sheriff's sale; another costing $10,000 sold under the hammer for $1500.[583] Even slaves could be sold only at a small fraction of their ordinary market price.

It was the same in other States. Within Marshall's personal observation in Virginia the people were forced to eat the fruits of their folly. "Lands in this State cannot now be sold for a year's rent," wrote Jefferson.[584] A farm near Easton, Pennsylvania, worth $12,500, mortgaged to secure a debt of $2500, was taken by the lender on foreclosure for the amount of the loan. A druggist's stock of the retail value of $10,000 was seized for rent by the landlord and sold for $400.[585] In Virginia a little later a farm[Pg 205] of three hundred acres with improvements worth, at the lowest estimate, $1500, sold for $300; two wagon horses costing $200 were sacrificed for $40.

Mines were shut down, shops closed, taxes unpaid. "The debtor ... gives up his land, and, ruined and undone, seeks a home for himself and his family in the western wilderness."[586] John Quincy Adams records in his diary: "Staple productions ... are falling to ... less than half the prices which they have lately borne, the merchants are crumbling to ruin, the manufactures perishing, agriculture stagnating, and distress universal in every part of the country."[587]

During the summer and autumn of 1818, the popular demand for legislation that would suspend contracts, postpone the payment of debts, and stay the judgment of courts, became strident and peremptory. "Our greatest real evil is the question between debtor and creditor, into which the banks have plunged us deeper than would have been possible without them," testifies Adams. "The bank debtors are everywhere so numerous and powerful that they control the newspapers throughout the Union, and give the discussion a turn extremely erroneous, and prostrate every principle of political economy."[588]

This was especially true of Kentucky. Throughout the State great assemblages were harangued by oratorical "friends of the people." "The reign of political quackery was in its glory."[589] Why the[Pg 206] scarcity of money when that commodity was most needed? Why the lawsuits for the collection of debts, the enforcement of bonds, the foreclosure of mortgages, instead of the renewal of loans, to which debtors had been accustomed? Financial manipulation had done it all. The money power was responsible for the misery of the people. Let that author and contriver of human suffering be suppressed.

What could be easier or more just than to enact legislation that would lift the burden of debt that was crushing the people? The State banks would not resist—were they not under the control of the people's Legislature? But they were also at the mercy of that remorseless creature of the National Government, the Bank of the United States. That malign Thing was the real cause of all the trouble.[590] Let the law by which Congress had given illegitimate life to that destroyer of the people's well-being be repealed. If that could not be done because so many of the National Legislature were corruptly interested in the Bank, the States had a sure weapon with which to destroy it—or at least to drive it out of business in every member of the Union.

That weapon was taxation. Let each Legislature, by special taxes, strangle the branches of the National Bank operating in the States. So came a popular determination to exterminate, by State action, the second Bank of the United States. Na[Pg 207]tional power should be brought to its knees by local authority! National agencies should be made helpless and be dispatched by State prohibition and State taxation! The arm of the National Government should be paralyzed by the blows showered on it when thrusting itself into the affairs of "sovereign" States! Already this process was well under way.

The first Constitution of Indiana, adopted soon after Congress had authorized the second Bank of the United States, prohibited any bank chartered outside the State from doing business within its borders.[591] During the very month that the National Bank opened its doors in 1817, the Legislature of Maryland passed an act taxing the Baltimore branch $15,000 annually. Seven months afterward the Legislature of Tennessee enacted a law that any bank not chartered under its authority should pay $50,000 each year for the privilege of banking in that State. A month later Georgia placed a special tax on branches of the Bank of the United States.

The Constitution of Illinois, adopted in August, 1818, forbade the establishment of any but State banks. In December of that year North Carolina taxed the branch of the National Bank in that State $5000 per annum. A few weeks later Kentucky laid an annual tax of $60,000 on each of the two branches of the Bank of the United States located at Lexington and Frankfort. Three weeks before John Marshall delivered his opinion in M'Culloch vs. Maryland, Ohio enacted a statute placing a yearly[Pg 208] tax of $50,000 on each of the two National Bank branches then doing business in that State.[592]

Thus the extinction of the second Bank of the United States by State legislation appeared to be inevitable. The past management of it had well deserved this fate; but earnest efforts were now in operation to recover it from former blunders and to retrieve its fortunes. The period of corruption was over, and a new, able, and honest management was about to take charge. If, however, the States could destroy this National fiscal agency, it mattered not how well it might thereafter be conducted, for nothing could be more certain than that the local influence of State banks always would be great enough to induce State Legislatures to lay impossible burdens on the National Bank.

Such, then, was the situation that produced those opinions of Marshall on insolvency, on contract, and on a National bank, delivered during February and March of 1819; such the National conditions which confronted him during the preceding summer and autumn. He could do nothing to ameliorate these conditions, nothing to relieve the universal unhappiness, nothing to appease the popular discontent. But he could establish great National principles, which would give steadiness to American business, vitality to the National Government; and which would encourage the people to practice honesty, prudence, and thrift. And just this John Marshall did. When considering the enduring work he performed at this time, we must have in our thought[Pg 209] the circumstances that made that work vitally necessary.

One of the earliest cases decided by the Supreme Court in 1819 involved the Bankrupt Law of New York. On November 25, 1817, Josiah Sturges[593] of Massachusetts sued Richard Crowninshield of New York in the United States Circuit Court for the District of Massachusetts to recover upon two promissory notes for the sum of $771.86 each, executed March 22, 1811, just twelve days before the passage, April 3, 1811, of the New York statute for the relief of insolvent debtors. The defendant pleaded his discharge under that act. The judges were divided in opinion on the questions whether a State can pass a bankrupt act, whether the New York law was a bankrupt act, and whether it impaired the obligations of a contract. These questions were, accordingly, certified to the Supreme Court.

The case was there argued long and exhaustively by David Daggett and Joseph Hopkinson for Sturges and by David B. Ogden and William Hunter for Crowninshield. In weight of reasoning and full citation of authority, the discussion was inferior only to those contests before the Supreme Bench which have found a place in history.

On February 17, 1819, Marshall delivered the unanimous opinion of the court.[594] Do the words of the Constitution, "Congress shall have power ... to establish ... uniform laws on the subject of[Pg 210] bankruptcies throughout the United States" take from the States the right to pass such laws?

Before the adoption of the Constitution, begins Marshall, the States "united for some purposes, but, in most respects, sovereign," could "exercise almost every legislative power." The powers of the States under the Constitution were not defined in that instrument. "These powers proceed, not from the people of America, but from the people of the several states; and remain, after the adoption of the constitution, what they were before, except so far as they may be abridged" by the Nation's fundamental law.

While the "mere grant of a power to Congress" does not necessarily mean that the States are forbidden to exercise the same power, such concurrent power does not extend to "every possible case" not expressly prohibited by the Constitution. "The confusion resulting from such a practice would be endless." As a general principle, declares the Chief Justice, "whenever the terms in which a power is granted to Congress, or the nature of the power, required that it should be exercised exclusively by Congress, the subject is as completely taken from the state legislatures as if they had been expressly forbidden to act on it."[595]

John Marshall
From the bust in the Supreme Court John Marshall
From the bust in the Court Room of the United States Supreme Court

Does this general principle apply to bankrupt laws? Assuredly it does. Congress is empowered to "establish uniform laws on the subject throughout the United States." Uniform National legislation is "incompatible with state legislation" on the same [Pg 211] subject. Marshall draws a distinction between bankrupt and insolvency laws, although "the line of partition between them is not so distinctly marked" that it can be said, "with positive precision, what belongs exclusively to the one, and not to the other class of laws."[596]

He enters upon an examination of the nature of insolvent laws which States may enact, and bankrupt laws which Congress may enact; and finds that "there is such a connection between them as to render it difficult to say how far they may be blended together.... A bankrupt law may contain those regulations which are generally found in insolvent laws"; while "an insolvent law may contain those which are common to a bankrupt law." It is "obvious," then, that it would be a hardship to "deny to the state legislatures the power of acting on this subject, in consequence of the grant to Congress." The true rule—"certainly a convenient one"—is to "consider the power of the states as existing over such cases as the laws of the Union may not reach."[597]

But, whether this common-sense construction is adopted or not, it is undeniable that Congress may exercise a power granted to it or decline to exercise it. So, if Congress thinks that uniform bankrupt laws "ought not to be established" throughout the country, surely the State Legislatures ought not, on that account, to be prevented from passing bankrupt acts. The idea of Marshall, the statesman, was that it was better to have bankrupt laws of some kind than none at all. "It is not the mere existence[Pg 212] of the power [in Congress], but its exercise, which is incompatible with the exercise of the same power by the states. It is not the right to establish these uniform laws, but their actual establishment, which is inconsistent with the partial acts of the states."[598]

Even should Congress pass a bankrupt law, that action does not extinguish, but only suspends, the power of the State to legislate on the same subject. When Congress repeals a National bankrupt law it merely "removes a disability" of the State created by the enactment of the National statute, and lasting only so long as that statute is in force. In short, "until the power to pass uniform laws on the subject of bankruptcies be exercised by Congress, the states are not forbidden to pass a bankrupt law, provided it contain no principle which violates the 10th section of the first article of the constitution of the United States."[599]

Having toilsomely reached this conclusion, Marshall comes to what he calls "the great question on which the cause must depend": Does the New York Bankrupt Law "impair the obligation of contracts"?[600]

What is the effect of that law? It "liberates the person of the debtor, and discharges him from all liability for any debt previously contracted, on his surrendering his property in the manner it prescribes." Here Marshall enters upon that series of expositions of the contract clause of the Constitu[Pg 213]tion which, next to the Nationalism of his opinions, is, perhaps, the most conspicuous feature of his philosophy of government and human intercourse.[601] "What is the obligation of a contract? and what will impair it?"[602]

It would be hard to find words "more intelligible, or less liable to misconstruction, than those which are to be explained." With a tinge of patient impatience, the Chief Justice proceeds to define the words "contract," "impair," and "obligation," much as a weary school teacher might teach the simplest lesson to a particularly dull pupil.

"A contract is an agreement in which a party undertakes to do, or not to do, a particular thing. The law binds him to perform his undertaking, and this is, of course, the obligation of his contract. In the case at bar, the defendant has given his promissory note to pay the plaintiff a sum of money on or before a certain day. The contract binds him to pay that sum on that day; and this is its obligation. Any law which releases a part of this obligation, must, in the literal sense of the word, impair it. Much more must a law impair it which makes it totally invalid, and entirely discharges it.

"The words of the constitution, then, are express, and incapable of being misunderstood. They admit of no variety of construction, and are acknowledged to apply to that species of contract, an engagement between man and man, for the payment of money, which has been entered into by these parties."[603][Pg 214]

What are the arguments that such law does not violate the Constitution? One is that, since a contract "can only bind a man to pay to the full extent of his property, it is an implied condition that he may be discharged on surrendering the whole of it." This is simply not true, says Marshall. When a contract is made, the parties to it have in mind, not only existing property, but "future acquisitions. Industry, talents and integrity, constitute a fund which is as confidently trusted as property itself. Future acquisitions are, therefore, liable for contracts; and to release them from this liability impairs their obligation."[604]

Marshall brushes aside, almost brusquely, the argument that the only reason for the adoption of the contract clause by the Constitutional Convention was the paper money evil; that the States always had passed bankrupt and insolvent laws; and that if the framers of the Constitution had intended to deprive the States of this power, "insolvent laws would have been mentioned in the prohibition."

No power whatever, he repeats, is conferred on the States by the Constitution. That instrument found them "in possession" of practically all legislative power and either prohibited "its future exercise entirely," or restrained it "so far as national policy may require."

While the Constitution permits States to pass bankrupt laws "until that power shall be exercised by Congress," the fundamental law positively for[Pg 215]bids the States to "introduce into such laws a clause which discharges the obligations the bankrupt has entered into. It is not admitted that, without this principle, an act cannot be a bankrupt law; and if it were, that admission would not change the constitution, nor exempt such acts from its prohibitions."[605]

There was, said Marshall, nothing in the argument that, if the framers of the Constitution had intended to "prohibit the States from passing insolvent laws," they would have plainly said so. "It was not necessary, nor would it have been safe" for them to have enumerated "particular subjects to which the principle they intended to establish should apply."

On this subject, as on every other dealt with in the Constitution, fundamental principles are set out. What is the one involved in this case? It is "the inviolability of contracts. This principle was to be protected in whatsoever form it might be assailed. To what purpose enumerate the particular modes of violation which should be forbidden, when it was intended to forbid all?... The plain and simple declaration, that no state shall pass any law impairing the obligation of contracts, includes insolvent laws and all other laws, so far as they infringe the principle the convention intended to hold sacred, and no farther."[606]

At this point Marshall displays the humanitarian which, in his character, was inferior only to the statesman. He was against imprisonment for debt, one of the many brutal customs still practiced.[Pg 216] "The convention did not intend to prohibit the passage of all insolvent laws," he avows. "To punish honest insolvency by imprisonment for life, and to make this a constitutional principle, would be an excess of inhumanity which will not readily be imputed to the illustrious patriots who framed our constitution, nor to the people who adopted it.... Confinement of the debtor may be a punishment for not performing his contract, or may be allowed as a means of inducing him to perform it. But the state may refuse to inflict this punishment, or may withhold this means and leave the contract in full force. Imprisonment is no part of the contract, and simply to release the prisoner does not impair its obligation."[607]

Following his provoking custom of taking up a point with which he had already dealt, Marshall harks back to the subject of the reason for inserting the contract clause into the Constitution. He restates the argument against applying that provision to State insolvent laws—that, from the beginning, the Colonies and States had enacted such legislation; that the history of the times shows that "the mind of the convention was directed to other laws which were fraudulent in their character, which enabled the debtor to escape from his obligation, and yet hold his property, not to this, which is beneficial in its operation."

But, he continues, "the spirit of ... a constitution" is not to be determined solely by a partial view of the history of the times when it was adopted[Pg 217]—"the spirit is to be collected chiefly from its words." And "it would be dangerous in the extreme to infer from extrinsic circumstances, that a case for which the words of an instrument expressly provide, shall be exempted from its operation." Where language is obscure, where words conflict, "construction becomes necessary." But, when language is clear, words harmonious, the plain meaning of that language and of those words is not "to be disregarded, because we believe the framers of that instrument could not intend what they say."[608]

The practice of the Colonies, and of the States before the Constitution was adopted, was a weak argument at best. For example, the Colonies and States had issued paper money, emitted bills of credit, and done other things, all of which the Constitution prohibits. "If the long exercise of the power to emit bills of credit did not restrain the convention from prohibiting its future exercise, neither can it be said that the long exercise of the power to impair the obligation of contracts, should prevent a similar prohibition." The fact that insolvent laws are not forbidden "by name" does not exclude them from the operation of the contract clause of the Constitution. It is "a principle which is to be forbidden; and this principle is described in as appropriate terms as our language affords."[609]

Perhaps paper money was the chief and impelling reason for making the contract clause a part of the National Constitution. But can the operation of that clause be confined to paper money? "No court[Pg 218] can be justified in restricting such comprehensive words to a particular mischief to which no allusion is made." The words must be given "their full and obvious meaning."[610] Doubtless the evils of paper money directed the Convention to the subject of contracts; but it did far more than to make paper money impossible thereafter. "In the opinion of the convention, much more remained to be done. The same mischief might be effected by other means. To restore public confidence completely, it was necessary not only to prohibit the use of particular means by which it might be effected, but to prohibit the use of any means by which the same mischief might be produced. The convention appears to have intended to establish a great principle, that contracts should be inviolable. The constitution therefore declares, that no state shall pass 'any law impairing the obligation of contracts.'"[611] From all this it follows that the New York Bankruptcy Act of 1812 is unconstitutional because it impaired the obligations of a contract.

The opinion of the Chief Justice aroused great excitement.[612] It, of course, alarmed those who had been using State insolvent laws to avoid payment of their debts, while retaining much of their wealth. It also was unwelcome to the great body of honest, though imprudent, debtors who were struggling to lighten their burdens by legislation. But the more thoughtful, even among radicals, welcomed Marshall's pronouncement. Niles approved it heartily.[613][Pg 219]

Gradually, surely, Marshall's simple doctrine grew in favor throughout the whole country, and is to-day a vital and enduring element of American thought and character as well as of Constitutional law.

As in Fletcher vs. Peck, the principle of the inviolability of contracts was applied where a State and individuals are parties, so the same principle was now asserted in Sturges vs. Crowninshield as to State laws impairing the obligation of contracts between man and man. At the same session, in the celebrated Dartmouth College case,[614] Marshall announced that this principle also covers charters granted by States. Thus did he develop the idea of good faith and stability of engagement as a life-giving principle of the American Constitution.


[437] M'Culloch vs. Maryland, see infra, chap. vi.

[438] See vol. ii, 60, of this work.

[439] Sumner: History of American Currency, 63.

[440] See Memorial of the Bank for a recharter, April 20, 1808 (Am. State Papers, Finance, ii, 301), and second Memorial, Dec. 18, 1810 (ib. 451-52). Every statement in these petitions was true. See also Dewey: Financial History of the United States, 100, 101.

[441] See vol. ii, 70-71, of this work.

[442] Annals, 1st Cong. 2d. Sess. 1945. By far the strongest objection to a National bank, however, was that it was a monopoly inconsistent with free institutions.

[443] Jefferson to Gallatin, Dec. 13, 1803, Works: Ford: x, 57.

[444] "Fully two thirds of the Bank stock ... were owned in England." (Adams: U.S. v, 328.)

[445] Dewey, 127; and Pitkin: Statistical View of the Commerce of the United States, 130-32.

[446] Adams: U.S. v, 328-29.

[447] Annals, 11th Cong. 3d Sess. 118-21.

[448] Ib. 153, 201, 308; and see Pitkin, 421.

[449] Adams: U.S. v, 327-28. "They induced one State legislature after another to instruct their senators on the subject." Pitkin, 422.

[450] Ambler: Ritchie, 26-27, 52.

[451] Ib. 67.

[452] Branch Hist. Papers, June, 1903, 179.

[453] Annals, 11th Cong. 3d Sess. 145.

[454] "It is true, that a branch of the Bank of the United States ... is established at Norfolk; and that a branch of the Bank of Virginia is also established there. But these circumstances furnish no possible motive of avarice to the Virginia Legislature.... They have acted ... from the purest and most honorable motives." (Annals, 11th Cong. 3d Sess. 200.)

[455] Pitkin, 421.

[456] The "newspapers teem with the most virulent abuse." (James Flint's Letters from America, in Early Western Travels: Thwaites, ix, 87.) Even twenty years later Captain Marryat records: "The press in the United States is licentious to the highest possible degree, and defies control.... Every man in America reads his newspaper, and hardly any thing else." (Marryat: Diary in America, 2d Series, 56-59.)

[457] "The Democratic presses ... have ... teemed with the most scurrilous abuse against every member of Congress who has dared to utter a syllable in favor of the renewal of the bank charter." Any member supporting the bank "is instantly charged with being bribed, ... with being corrupt, with having trampled upon the rights and liberties of the people, ... with being guilty of perjury."

According to "the rantings of our Democratic editors ... and the denunciations of our public declaimers," the bank "exists under the form of every foul and hateful beast and bird, and creeping thing. It is an Hydra; it is a Cerberus; it is a Gorgon; it is a Vulture; it is a Viper....

"Shall we tamely act under the lash of this tyranny of the press?... I most solemnly protest.... To tyranny, under whatever form it may be exercised, I declare open and interminable war ... whether the tyrant is an irresponsible editor or a despotic Monarch." (Annals, 11th Cong. 3d Sess. 145.)

[458] Annals, 11th Cong. 3d Sess. 826.

[459] Ib. 347.

[460] Pitkin, 430.

[461] Adams to Rush, Dec. 27, 1810, Old Family Letters, 272.

[462] Sumner: Andrew Jackson, 229.

[463] Dewey, 145.

[464] Twenty-one State banks were employed as Government depositories after the destruction of the first Bank of the United States (Ib. 128.)

[465] Dewey, 127.

[466] Adams to Rush, July 3, 1812, Old Family Letters, 299.

[467] William Faux's Journal, E. W. T.: Thwaites, xi, 207.

[468] Speech of Hanson in the House, Nov. 28, 1814, Annals, 13th Cong. 3d Sess. 656.

[469] Catterall: Second Bank of the United States, 13-17.

[470] Calhoun's bill.

[471] Webster to his brother, Nov. 29, 1814, Van Tyne, 55.

[472] Webster's bill.

[473] Annals, 13th Cong. 3d Sess. 189-91; Richardson, i, 555-57.

[474] Richardson, i, 565-66. Four years afterwards President Monroe told his Secretary of State, John Quincy Adams, that Jefferson, Madison, and himself considered all Constitutional objections to the Bank as having been "settled by twenty years of practice and acquiescence under the first bank." (Memoirs, J. Q. A.: Adams, iv, 499, Jan. 8, 1820.)

[475] Annals, 14th Cong. 1st Sess. 280-81.

[476] Annals, 1st Cong. 2d and 3d Sess. 2375-82; and 14th Cong. 1st Sess. 1812-25; also Dewey, 150-51.

[477] Catterall, 22.

[478] Dewey, 144.

[479] Sumner: Hist. Am. Currency, 70.

[480] In November, 1818, Niles estimated that there were about four hundred banks in the country with eight thousand "managers and clerks," costing $2,000,000, annually. (Niles, xv, 162.)

[481] "The present multitude of them ... is no more fitted to the condition of society, than a long-tailed coat becomes a sailor on ship-board." (Ib. xi, 130.)

[482] King to his son, May 1, 1816, King, vi, 22.

[483] King to Gore, May 14, 1816, Ib. 23-25.

[484] Niles, xiv, 109.

[485] Ib. xvi, 257.

[486] Niles, xvi, 257.

[487] Ib. xiv, 110.

[488] Ib. 195-96.

[489] "Niles' Weekly Register is ... an excellent repository of facts and documents." (Jefferson to Crawford, Feb. 11, 1815, Works: Ford, xi. 453.)

[490] Niles, xiv, 426-28.

[491] Niles, xiv, 2-3.

[492] "Report of the Committee on the Currency of this [New York] State," Feb. 24, 1818, ib. 39-42; also partially reproduced in American History told by Contemporaries: Hart, iii, 441-45.

[493] "Report of Committee on the Currency," New York, supra, 184.

[494] Niles, xiv, 108.

[495] Jefferson to Yancey, Jan. 6, 1816, Works: Ford, xi, 494.

[496] Dewey, 144; and Sumner: Hist. Am. Currency, 75.

[497] Niles proposed a new bank to be called "The Ragbank of the Universe," main office at "Lottery-ville," and branches at "Hookstown," "Owl Creek," "Botany Bay," and "Twisters-burg." Directors were to be empowered also "to put offices on wheels, on ship-board, or in balloons"; stock to be "one thousand million of old shirts." (Niles, xiv, 227.)

[498] Dewey, 144.

[499] Ib. 153-54.

[500] Flint's Letters, E. W. T.: Thwaites, ix, 136; and see "Report of the Committee on the Currency," New York, supra, 184.

[501] Tyler: Tyler, i, 302; Niles, xi, 130.

[502] Niles, xi, 128.

[503] Ib. iv, 109; Collins: Historical Sketches of Kentucky, 88.

These were in addition to the branches of the Bank of Kentucky and of the Bank of the United States. Including them, the number of chartered banks in that State was fifty-eight by the close of 1818. Of the towns where new banks were established during that year, Burksville had 106 inhabitants; Barboursville, 55; Hopkinsville, 131; Greenville, 75; thirteen others had fewer than 500 inhabitants. The "capital" of the banks in such places was never less than $100,000, but that at Glasgow, with 244 inhabitants, had a capital of $200,000, and several other villages were similarly favored. For full list see Niles, xiv, 109.

[504] Flint's Letters, E. W. T.: Thwaites, ix, 133.

[505] Niles, xvii, 85.

[506] John Woods's Two Years' Residence, E. W. T.: Thwaites, x, 236.

[507] Flint's Letters, E. W. T.: Thwaites, ix, 133-34.

[508] Ib. 136.

[509] Niles, xiv, 162.

[510] Woods's Two Years' Residence, E. W. T.: Thwaites, x, 274-78: and Flint's Letters, ib. ix, 69.

In southwestern Indiana, in 1818, Faux "saw nothing ... but miserable log holes, and a mean ville of eight or ten huts or cabins, sadly neglected farms, and indolent, dirty, sickly, wild-looking inhabitants." (Faux's Journal, Nov. 1, 1818, ib. xi, 213-14.) He describes Kentucky houses as "miserable holes, having one room only," where "all cook, eat, sleep, breed, and die, males and females, all together." (Ib. 185, and see 202.)

[511] For shocking and almost unbelievable conditions of living among the settlers see Faux's Journal, E. W. T.: Thwaites, xi, 226, 231, 252-53, 268-69.

[512] "We landed for some whiskey; for our men would do nothing without." (Woods's Two Years' Residence, ib. x, 245, 317.) "Excessive drinking seems the all-pervading, easily-besetting sin." (Faux's Journal, Nov. 3, 1818, ib. xi, 213.) This continued for many years and was as marked in the East as in the West. (See Marryat, 2d Series, 37-41.)

There was, however, a large and ever-increasing number who hearkened to those wonderful men, the circuit-riding preachers, who did so much to build up moral and religious America. Most people belonged to some church, and at the camp meetings and revivals, multitudes received conviction.

The student should carefully read the Autobiography of Peter Cartwright, edited by W. P. Strickland. This book is an invaluable historical source and is highly interesting. See also Schermerhorn and Mills: A Correct View of that part of the United States which lies west of the Allegany Mountains, with regard to Religion and Morals. Great Revival in the West, by Catharine C. Cleveland, is a careful and trustworthy account of religious conditions before the War of 1812. It has a complete bibliography.

[513] Flint's Letters, E. W. T.: Thwaites, 153; also Schermerhorn and Mills, 17-18.

[514] "Nature is the agriculturist here [near Princeton, Ind.]; speculation instead of cultivation, is the order of the day amongst men." (Thomas Hulme's Journal, E. W. T.: Thwaites, x, 62; see Faux's Journal, ib. xi, 227.)

[515] Faux's Journal, ib. 216, 236, 242-43.

[516] Ib. 214.

[517] See vol. i, chap, vii, of this work.

[518] Flint's Letters, E. W. T.: Thwaites, ix, 87; Woods's Two Years Residence, ib. x, 255. "I saw a man this day ... his nose bitten off close down to its root, in a fight with a nose-loving neighbour." (Faux's Journal, ib. xi, 222; and see Strickland, 24-25.)

[519] The reports of American conditions by British travelers, although from unsympathetic pens and much exaggerated, were substantially true. Thus Europe, and especially the United Kingdom, conceived for Americans that profound contempt which was to endure for generations.

"Such is the land of Jonathan," declared the Edinburgh Review in an analysis in 1820 (xxxiii, 78-80) of a book entitled Statistical Annals of the United States, by Adam Seybert. "He must not ... allow himself to be dazzled by that galaxy of epithets by which his orators and newspaper scribblers endeavour to persuade their supporters that they are the greatest, the most refined, the most enlightened, and the most moral people upon earth.... They have hitherto given no indications of genius, and made no approaches to the heroic, either in their morality or character....

"During the thirty or forty years of their independence, they have done absolutely nothing for the Sciences, for the Arts, for Literature, or even for statesman-like studies of Politics or Political Economy.... In the four quarters of the globe, who reads an American book? or goes to an American play? or looks at an American picture or statue? What does the world yet owe to American physicians or surgeons? What new substances have their chemists discovered? or what old ones have they analyzed? What new constellations have been discovered by the telescopes of Americans?—what have they done in the mathematics...? under which of the old tyrannical governments of Europe is every sixth man a Slave, whom his fellow-creatures may buy and sell and torture?"

[520] Nevertheless, these very settlers had qualities of sound, clean citizenship; and beneath their roughness and crudity were noble aspirations. For a sympathetic and scholarly treatment of this phase of the subject see Pease: Frontier State, i, 69.

[521] Faux's Journal, E. W. T.: Thwaites, xi, 246.

[522] Randolph to Quincy, Aug. 16, 1812, Quincy: Quincy, 270.

[523] Marryat, 2d Series, 1.

[524] See vol. i, chap, vii, of this work.

[525] Marryat, 1st Series, 15.

[526] Marryat, 2d Series, 176.

[527] Woods's Two Years' Residence, E. W. T.: Thwaites, x, 325.

[528] Niles, xiv, 2.

[529] See McMaster, iv, 287. This continued even after the people had at last become suspicious of unlicensed banks. In 1820, at Bloomington, Ohio, a hamlet of "ten houses ... in the edge of the prairie ... a [bank] company was formed, plates engraved, and the bank notes brought to the spot." Failing to secure a charter, the adventurers sold their outfit at auction, fictitious names were signed to the notes, which were then put into fraudulent circulation. (Flint's Letters, E. W. T.: Thwaites, ix, 310.)

[530] Ib. 130-31.

[531] Faux's Journal, Oct. 11, 1818, E. W. T.: Thwaites, xi, 171. Faux says that even in Cincinnati itself the bank bills of that town could be exchanged at stores "only 30 or 40 per centum below par, or United States' paper."

[532] Flint's Letters, E. W. T. Thwaites, ix, 132-36.

[533] In Baltimore Cohens's "lottery and exchange office" issued a list of nearly seventy banks, with rates of prices on their notes. The circular gave notice that the quotations were good for one day only. (Niles, xiv, 396.) At the same time G. & R. Waite, with offices in New York, Philadelphia, and Baltimore, issued a list covering the country from Connecticut to Ohio and Kentucky. (Ib. 415.) The rates as given by this firm differed greatly from those published by Cohens.

[534] Ib. x, 80.

[535] Sumner: Jackson, 229.

[536] Flint's Letters, E. W. T.: Thwaites, ix, 219.

[537] Niles, xv, 60.

[538] Niles, xiv, 193-96; also xv, 434.

[539] Ib. xvii, 164.

[540] Ib. xiv, 108.

[541] A wealthy Richmond merchant who had married a sister of Marshall's wife. (See vol. ii, 172, of this work.)

[542] A writ directing the sheriff to seize the goods and chattels of a person to compel him to satisfy an obligation. Bouvier (Rawle's ed.) i, 590.

[543] Richmond Enquirer, Jan. 16, 1816.

What was the outcome of this incident does not appear. Professor Sumner says that the bank was closed for a few days, but soon opened and went on with its business. (Sumner: Hist. Am. Currency, 74-75.) Sumner fixes the date in 1817, two years after the event.

[544] Niles, xiv, 281.

[545] Ib. 314-15.

[546] Ib. 333; and for similar cases, see ib. 356, 396-97, 428-30. All these accounts were taken from newspapers at the places where criminals were captured.

[547] Niles, xiv, 428.

[548] Ib. xvi, 147-48; also, ib. 360, 373, 390.

[549] Ib. 179.

[550] Ib. 210.

[551] Ib. 208.

[552] Ib. 210.

[553] See Catterall, 39-50.

[554] The frauds of the directors and officers of the Bank of the United States were used, however, as the pretext for an effort to repeal its charter. On Feb. 9, 1819, James Johnson of Virginia introduced a resolution for that purpose. (Annals, 15th Cong. 2d Sess. iii, 1140-42.)

[555] See Catterall, 32.

[556] New Castle County.

[557] Niles, xv, 162.

[558] Ib. 59.

[559] Ib. 418.

[560] Flint's Letters, E.W.T.: Thwaites, ix, 226.

[561] They, too, asserted that institution to be the author of their woes, (Niles, xvii, 2.)

[562] Catterall, 33-37.

[563] Ib. 51-53; and see Niles, xv, 25.

[564] Catterall, 33.

[565] Monster, Hydra, Cerberus, Octopus, and names of similar import were popularly applied to the Bank of the United States. (See Crawford's speech, supra, 175.)

[566] Niles, xv, 5.

[567] Act of April 3, 1811, Laws of New York, 1811, 205-21.

[568] Niles, xvi, 257.

[569] Ib.

[570] Ib. xvii, 147.

[571] "I have known several to calculate upon the 'relief' from them, just as they would do on an accommodation at bank, or on the payment of debts due to them! If we succeed in such and such a thing, say they—very well; if not, we can get the benefit of the insolvent laws.... Where one prudent and honest man applies for such benefit, one hundred rogues are facilitated in their depredations." (Niles, xvii, 115.)

[572] Ib.

[573] Ib. xv, 283.

[574] The bankruptcy law which Marshall had helped to draw when in Congress (see vol. ii, 481-82, of this work) had been repealed in 1803. (Annals, 8th Cong. 1st Sess. 215, 625, 631. For reasons for the repeal see ib. 616-22.)

[575] Annals, 16th Cong. 1st Sess. 505.

[576] Ib. 513.

[577] Ib. 517-18.

[578] Flint's Letters, E.W.T.: Thwaites, ix, 225.

In reviewing Sketches of America by Henry Bradshaw Fearon, an Englishman who traveled through the United States, the Quarterly Review of London scathingly denounced the frauds perpetrated by means of insolvent laws. (Quarterly Review, xxi, 165.)

[579] None of these letters to Marshall have been preserved. Indeed, only a scant half-dozen of the original great number of letters written him even by prominent men during his long life are in existence. For those of men like Story and Pickering we are indebted to copies preserved in their papers.

Marshall, at best, was incredibly negligent of his correspondence as he was of all other ordinary details of life. Most other important men of the time kept copies of their letters; Marshall kept none; and if he preserved those written to him, nearly all of them have disappeared.

[580] Niles, xv, 385.

[581] Ib.

[582] Ib. xvi, 261.

[583] Ib. xvii, 85.

[584] Jefferson to Adams, Nov. 7, 1819, Works: Ford, xii, 145.

[585] Niles, xvii, 85.

[586] Niles, xvii, 185.

[587] Memoirs, J. Q. A.: Adams, May 27, 1819, iv, 375.

[588] Ib. 391.

[589] Collins, 88.

[590] "The disappointment is altogether ascribed to the Bank of the U.S." (King to Mason, Feb. 7, 1819, King, vi, 205.) King's testimony is uncommonly trustworthy. His son was an officer of the branch of Chillicothe, Ohio.

[591] See Article x, Section 1, Constitution of Indiana, as adopted June 29, 1816.

[592] See Catterall, 64-65, and sources there cited.

[593] Spelled Sturgis on the manuscript records of the Supreme Court.

[594] 4 Wheaton, 192.

[595] 4 Wheaton, 192-93.

[596] 4 Wheaton, 194.

[597] Ib. 195.

[598] 4 Wheaton, 196.

[599] "No State shall ... emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any ... ex post facto Law, or Law impairing the Obligation of Contracts."

[600] 4 Wheaton, 196-97.

[601] For the proceedings in the Constitutional Convention on this clause, see vol. iii, chap. x, of this work.

[602] 4 Wheaton, 197.

[603] Ib. 197-98.

[604] 4 Wheaton, 198.

[605] 4 Wheaton, 199.

[606] Ib. 200.

[607] 4 Wheaton, 200-01.

[608] 4 Wheaton, 202.

[609] Ib. 203-04.

[610] 4 Wheaton, 205.

[611] Ib. 206.

[612] Niles, xvi, 76.

[613] "It will probably, make some great revolutions in property, and raise up many from penury ... and cause others to descend to the condition that becomes honest men, by compelling a payment of their debts—as every honest man ought to be compelled to do, if ever able.... It ought not to be at any one's discretion to say when, or under what convenient circumstances, he will wipe off his debts, by the benefit of an insolvent law—as some do every two or three years; or, just as often as they can get credit enough to make any thing by it." (Niles, xvi, 2.)

[614] See infra, next chapter.

[Pg 220]



Such a contract, in relation to a publick institution would be absurd and contrary to the principles of all governments. (Chief Justice William M. Richardson.)

It would seem as if the state legislatures have an invincible hostility to the sacredness of charters. (Marshall.)

Perhaps no judicial proceedings in this country ever involved more important consequences. (North American Review, 1820.)

It is the legitimate business of government to see that contracts are fulfilled, that charters are kept inviolate, and the foundations of human confidence not rudely or wantonly disturbed. (John Fiske.)

Just before Marshall delivered his opinion in Sturges vs. Crowninshield, he gave to the Nation another state paper which profoundly influenced the development of the United States. It was one of the trilogy of Constitutional expositions which make historic the February term, 1819, of the Supreme Court of the United States. This pronouncement, like that in the bankruptcy case, had to do with the stability of contract. Both were avowals that State Legislatures cannot, on any pretext, overthrow agreements, whether in the form of engagements between individuals or franchises to corporations. Both were meant to check the epidemic of repudiatory legislation which for three years had been sweeping over the land and was increasing in virulence at the time when Marshall prepared them. The Dartmouth opinion was wholly written in Virginia during the summer, autumn, or winter of 1818; and it is probable that the greater part of the opinion in[Pg 221] Sturges vs. Crowninshield was also prepared when the Chief Justice was at home or on his vacation.

Marshall's economic and political views, formed as a young man,[615] had been strengthened by every event that had since occurred until, in his sixty-fifth year, those early ideas had become convictions so deep as to pervade his very being. The sacredness of contract, the stability of institutions, and, above all, Nationalism in government, were, to John Marshall, articles of a creed as holy as any that ever inspired a religious enthusiast.

His opinion of contract had already been expressed by him not only in the sensational case of Fletcher vs. Peck,[616] but far more rigidly two years later, 1812, in the important case of the State of New Jersey vs. Wilson.[617] In 1758, the Proprietary Government of New Jersey agreed to purchase a tract of land for a band of Delaware Indians, provided that the Indians would surrender their title to all other lands claimed by them in New Jersey. The Indians agreed and the contract was embodied in an act of the Legislature, which further provided that the lands purchased for the Indians should "not hereafter be subject to any tax, any law, usage or custom to the contrary thereof, in any wise notwithstanding."[618] The contract was then executed, the State purchasing lands for the Indians and the latter relinquishing the lands claimed by them.

After forty years the Indians, wishing to join other Delawares in New York, asked the State of[Pg 222] New Jersey to authorize the sale of their lands. This was done by an act of the Legislature, and the lands were sold. Soon after this, another act was passed which repealed that part of the Act of 1758 exempting the lands from taxation. Accordingly the lands were assessed and payment of the tax demanded. The purchasers resisted and, the Supreme Court of New Jersey having held valid the repealing act, took the case to the Supreme Court of the United States.

In a brief opinion, in which it is worthy of particular note that the Supreme Court was unanimous, Marshall says that the Constitution protects "contracts to which a state is a party, as well as ... contracts between individuals.... The proceedings [of 1758] between the then colony ... and the Indians ... is certainly a contract clothed in forms of unusual solemnity." The exemption of the lands from taxation, "though for the benefit of the Indians, is annexed, by the terms which create it, to the land itself, not to their persons." This element of the contract was valuable to the Indians, since, "in the event of a sale, on which alone the question could become material, the value [of the lands] would be enhanced" by the exemption.

New Jersey "might have insisted on a surrender of this privilege as the sole condition on which a sale of the property should be allowed"; but this had not been done and the land was sold "with the assent of the state, with all its privileges and immunities. The purchaser succeeds, with the assent of the state, to all the rights of the Indians. He stands, with[Pg 223] respect to this land, in their place, and claims the benefit of their contract. This contract is certainly impaired by a law which would annul this essential part of it."[619]

After his opinions in Fletcher vs. Peck and in New Jersey vs. Wilson, nobody could have expected from John Marshall any other action than the one he took in the Dartmouth College case.[620]

The origins of the Dartmouth controversy are tangled and obscure. When on December 23, 1765, a little ocean-going craft, of which a New England John Marshall[621] was skipper, set sail from Boston Harbor for England with Nathaniel Whitaker and Samson Occom on board,[622] a succession of curious events began which, two generations afterward, terminated in one of the most influential decisions ever rendered by a court. Whitaker was a preacher and a disciple of George Whitefield; Occom was a young Indian, converted to Christianity by one Eleazar Wheelock, and endowed with uncommon powers of oratory.

Wheelock had built up a wilderness school to which were admitted Indian youth, in whom he became increasingly interested. Occom was one product of his labors, and Wheelock sent him to England as a living, speaking illustration of what his school[Pg 224] could do if given financial support. Whitaker went with the devout and talented Indian as the business agent.[623]

Their mission was to raise funds for the prosecution of this educational and missionary work on the American frontier. They succeeded in a manner almost miraculous. Over eleven thousand pounds were soon raised,[624] and this fund was placed under the control of the Trustees, at the head of whom was the Earl of Dartmouth, one of the principal donors.[625] From this circumstance the name of this nobleman was given to Wheelock's institution.

On December 13, 1769, John Wentworth, Royal Governor of the Province of New Hampshire, granted to Wheelock a charter for his school. It was, of course, in the name of the sovereign, but it is improbable that George III ever heard of it.[626] This charter sets forth the successful efforts of Wheelock, "at his own expense, on his own estate," to establish a charity school for Indian as well as white youth, in order to spread "the knowledge of the great Redeemer among their savage tribes"; the contributions to the cause; the trust, headed by Dartmouth—and all the other facts concerning Wheelock's adventure. Because of these facts the charter establishes "Dartmouth College" for the education of Indians, to be governed by "one body corporate and politick, ... by the name of the Trustees of Dartmouth College."[Pg 225]

These Trustees are constituted "forever hereafter ... in deed, act, and name a body corporate and politick," and are empowered to buy, receive, and hold lands, "jurisdictions, and franchises, for themselves and their successors, in fee simple, or otherwise howsoever." In short, the Trustees are authorized to do anything and everything that they may think proper. Wheelock is made President of the College, and given power to "appoint, ... by his last will" whomever he chooses to succeed himself as President of the College.

The charter grants to the Trustees and to "their successors forever," or "the major part of any seven or more of them convened," the power to remove and choose a President of the College, and to fill any vacancy in the Board of Trustees occasioned by death, or "removal," or any other cause. All this is to be done if seven Trustees, or a majority of seven, are present at any meeting. Also this majority of seven of the twelve Trustees, if no more attend a meeting, are authorized to make all laws, rules, and regulations for the College. Other powers are granted, all of which the Trustees and their successors are "to have and to hold ... forever."[627] Under this charter, Dartmouth College was established and, for nearly half a century, governed and managed.

Eleazar Wheelock died in 1779, when sixty-eight[Pg 226] years of age.[628] By his will he made his son John his successor as President of the College.[629] This young man, then but twenty-five years of age, was a Colonel of the Revolutionary Army.[630] He hesitated to accept the management of the institution, but the Trustees finally prevailed upon him to do so.[631] The son was as strong-willed and energetic as the father, and gave himself vigorously to the work to which he had thus been called.

Within four years troubles began to gather about the College. They came from sources as strange as human nature itself, and mingled at last into a compound of animosities, prejudices, ambitions, jealousies, as curious as any aggregation of passions ever arranged by the most extravagant novelist. It is possible here to mention but briefly only a few of the circumstances by which the famous Dartmouth quarrel may be traced. A woman, one Rachel Murch, complained to the church at Hanover, where Dartmouth College was situated, that a brother of the congregation, one Samuel Haze, had said of her, among other things, that her "character was ... as black as Hell."[632] This incident grew into a sectarian warfare that, by the most illogical and human[Pg 227] processes, eventuated in arraigning the Congregationalists, or "established" Church, on one side and all other denominations on the other.[633]

Into this religious quarrel the economic issue entered, as it always does. The property of ministers of the "standing order," or "State religion," was exempt from taxation while that of other preachers was not.[634] Another source of discord arose out of the question as to whether the College Professor of Theology should preach in the village church. Coincident with this grave problem were subsidiary ones concerning the attendance of students at village worship and the benches they were to occupy. The fates threw still another ingredient of trouble into the cauldron. This was the election in 1793, as one of the Trustees, of Nathaniel Niles, whom Jefferson, with characteristic exuberance of expression, once declared to be "the ablest man I ever knew."[635]

Although a lawyer by profession, Niles had taken a course in theology when a student, his instructor being a Dr. Joseph Bellamy. Both the elder Wheelock and Bellamy had graduated from Yale and had indulged in some bitter sectarian quarrels, Bellamy as a Congregationalist and Wheelock as a Presbyterian. From tutor and parent, Niles and the younger Wheelock inherited this religious antagonism. Moreover, they were as antipathetic by nature as they were bold, uncompromising, and dominant. Niles eventually acquired superior influence over his fel[Pg 228]low Trustees, and thereafter no friend of President Wheelock was elected to the Board.[636]

An implacable feud arose. Wheelock asked the Legislature to appoint a committee to investigate the conduct of the College. This further angered the Trustees. By this time the warfare in the one college in the State had aroused the interest of the people of New Hampshire and, indeed, of all New England, and they were beginning to take sides. This process was hastened by a furious battle of pamphlets which broke out in 1815. This logomachy of vituperation was opened by President Wheelock who wrote an unsigned attack upon the Trustees.[637] Another pamphlet followed immediately in support of that of Wheelock.[638]

The Trustees quickly answered by means of two pamphlets.[639] The Wheelock faction instantly replied.[640] With the animosity and diligence of political, religious, and personal enemies, the adherents of the hostile factions circulated these pamphlets among the people, who became greatly excited. On August 26, 1815, the Trustees removed Wheelock from the office of President,[641] and thereby increased the public agitation. Two days after Wheelock's removal, the[Pg 229] Trustees elected as his successor the Reverend Francis Brown of Yarmouth, Maine.[642]

During these years of increasing dissension, political parties were gradually drawn into the controversy; at the climax of it, the Federalists found themselves supporting the cause of the Trustees and the Republicans that of Wheelock. In a general, and yet quite definite, way the issue shaped itself into the maintenance of chartered rights and the established religious order, as against reform in college management and equality of religious sects. Into this issue was woven a contest over the State Judiciary. The Judiciary laws of New Hampshire were confused and inadequate and the courts had fallen in dignity. During the Republican control of the State, Republicans had been appointed to all judicial positions.[643] When, in 1813, the Federalists recovered supremacy, they, in turn, enacted a statute, the effect of which was the ousting of the Republican judges and the appointment of Federalists in their stead.[644] The Republicans made loud and savage outcry against this Federalist "outrage."

Upon questions so absurdly incongruous a political campaign raged throughout New Hampshire[Pg 230] during the autumn and winter of 1815. In March, 1816, the Republicans elected William Plumer Governor,[645] and a Republican majority was sent to the Legislature.[646] Bills for the reform of the Judiciary[647] and the management of Dartmouth College[648] were introduced. That relating to Dartmouth changed the name of the College to "Dartmouth University," increased the number of Trustees from twelve to twenty-one, provided for a Board of twenty-five Overseers with a veto power over acts of the Trustees, and directed the President of the "University" to report annually to the Governor of the State[Pg 231] upon the management and conditions of the institution. The Governor and Council of State were empowered to appoint the Overseers; to fill up the existing Board of Trustees to the number of twenty-one; and authorized to inspect the "University" and report to the Legislature concerning it at least once in every five years.[649] In effect the act annulled the charter and brought the College under the control of the Legislature.

The bitterness occasioned by the passage of this legislation was intense. Seventy-five members of the House entered upon the Journal their formal and emphatic protest.[650] The old Trustees adopted elaborate resolutions, declining to accept the provisions of the law and assigning many reasons for their action. Among their criticisms of the act, the fact that it violated the contract clause of the National Constitution was mentioned almost incidentally. In summing up their argument, the Trustees declared that "if the act ... has its intended operation and effect, every literary institution in the State will hereafter hold its rights, privileges and property, not according to the settled established principles of law, but according to the arbitrary will and pleasure of every successive Legislature."[651][Pg 232]

In later resolutions the old Trustees declined to accept the provisions of the law, "but do hereby expressly refuse to act under the same."[652] The Governor and Council promptly appointed Trustees and Overseers of the new University; among the latter was Joseph Story. The old Trustees were defiant and continued to run the College. When the winter session of the Legislature met, Governor Plumer sharply denounced their action;[653] and two laws were passed for the enforcement of the College Acts, the second of which provided that any person assuming to act as trustee or officer of the College, except as provided by law, should be fined $500 for each offense.[654]

The Trustees of the University "removed" the old Trustees of the College and the President, and the professors who adhered to them.[655] Each side took its case to the people.[656] The new régime ousted the old faculty from the College buildings and the faculty of the University were installed in them. Wheelock was elected President of the State institution.[657] The College faculty procured quarters in[Pg 233] Rowley Hall near by, and there continued their work, the students mostly adhering to them.[658]

The College Trustees took great pains to get the opinion of the best lawyers throughout New Hampshire,[659] as well as the advice of their immediate counsel, Jeremiah Mason, Jeremiah Smith, and Daniel Webster, the three ablest members of the New England bar, all three of them accomplished politicians.[660]

William H. Woodward, who for years had been Secretary and Treasurer of the College, had in his possession the records, account books, and seal. As one of the Wheelock faction he declined to recognize the College Trustees and acted with the Board of the University. The College Trustees removed him from his official position on the College Board;[661] and on February 8, 1817, brought suit against him in the Court of Common Pleas of Grafton County for the recovery of the original charter, the books of record and account, and the common seal—all of the value[Pg 234] of $50,000. By the consent of the parties the case was taken directly before the Superior Court of Appeals, and was argued upon an agreed state of facts returned by the jury in the form of a special verdict.[662]

There were two arguments in the Court of Appeals, the first during May and the second during September, 1817. The court consisted of William M. Richardson, Chief Justice, and Samuel Bell and Levi Woodbury, Associate Justices, all Republicans appointed by Governor Plumer.

Mason, Smith, and Webster made uncommonly able and learned arguments. The University was represented by George Sullivan and Ichabod Bartlett, who, while good lawyers, were no match for the legal triumvirate that appeared for the College.[663] The principle upon which Marshall finally overthrew the New Hampshire law was given a minor place[664] in the plans as well as in the arguments of Webster, Mason, and Smith.

The Superior Court of Appeals decided against the College. The opinion, delivered by Chief Justice Richardson, is able and persuasive. "A corporation, all of whose franchises are exercised for publick purposes, is a publick corporation"—a gift to such a corporation "is in reality a gift to the publick."[665] The[Pg 235] corporation of Dartmouth College is therefore public. "Who has any private interest either in the objects or the property of this institution?" If all its "property ... were destroyed, the loss would be exclusively publick." The Trustees, as individuals, would lose nothing. "The office of trustee of Dartmouth College is, in fact, a publick trust, as much so as the office of governor, or of judge of this court."[666]

No provision in the State or National Constitution prevents the control of the College by the Legislature. The Constitutional provisions cited by counsel for the College[667] "were, most manifestly, intended to protect private rights only."[668] No court has ever yet decided that such a charter as that of Dartmouth College is in violation of the contract clause of the National Constitution, which "was obviously intended to protect private rights of property, and embraces all contracts relating to private property." This clause "was not intended to limit the power of the states" over their officers or "their own civil institutions";[669] otherwise divorce laws would be void. So would acts repealing or modifying laws under which the judges, sheriffs, and other officers were appointed.

Even if the royal charter is a contract, it does not, cannot forever, prevent the Legislature from modifying it for the general good (as, for instance, by increasing the number of trustees) "however strongly the publick interest might require" this to be done. "Such a contract, in relation to a publick institution,[Pg 236] would ... be absurd and repugnant to the principles of all government. The king had no power to make such a contract," and neither has the Legislature. If the act of June 27 had provided that "the twenty-one trustees should forever have the exclusive controul of this institution, and that no future legislature should add to their number," it would be as invalid as an act that the "number of judges of this court should never be augmented."[670]

It is against "sound policy," Richardson affirmed, to place the great institutions of learning "within the absolute controul of a few individuals, and out of the controul of the sovereign power.... It is a matter of too great moment, too intimately connected with the publick welfare and prosperity, to be thus entrusted in the hands of a few."[671] So the New Hampshire court adjudged that the College Acts were valid and binding upon the old Trustees "without acceptance thereof, or assent thereto by them." And the court specifically declared that such legislation was "not repugnant to the constitution of the United States."[672]

Immediately the case was taken to the Supreme Court by writ of error, which assigned the violation of the National Constitution by the College Acts as the ground of appeal.[673] On March 10, 1818, Webster opened the argument before a full bench.[674] Only a few auditors were present, and these were lawyers[675][Pg 237] who were in Washington to argue other cases.[676] Stirred as New Hampshire and the New England States were by the College controversy, the remainder of the country appears to have taken no interest in it. Indeed, west and south of the Hudson, the people seem to have known nothing of the quarrel. The Capital was either ignorant or indifferent. Moreover, Webster had not, as yet, made that great reputation, in Washington, as a lawyer as well as an orator which, later, became his peculiar crown of glory. At any rate, the public was not drawn to the court-room on that occasion.[677]

The argument was one of the shortest ever made in a notable case before the Supreme Court during the twenty-eight years of its existence up to this time. Not three full days were consumed by counsel on both sides—a space of time frequently occupied by a single speaker in hearings of important causes.[678]

In talents, bearing, and preparation the attorneys[Pg 238] for the College were as much superior to those for the University as, in the Chase impeachment trial, the counsel for the defense were stronger than the House managers.[679] Indeed, the similarity of the arguments in the Chase trial and in the Dartmouth case, in respect to the strength and preparation of opposing counsel, is notable; and in both cases the victory came to the side having the abler and better-prepared advocates. With Webster for the College was Joseph Hopkinson of Philadelphia, who had so distinguished himself in the Chase trial exactly thirteen years earlier. Hopkinson was now in his forty-ninth year, the unrivaled leader of the Philadelphia bar and one of the most accomplished of American lawyers.[680]

It would seem incredible that sensible men could have selected such counsel to argue serious questions before any court as those who represented the University in this vitally important controversy. The obvious explanation is that the State officials and the University Trustees were so certain of winning that they did not consider the employment of powerful and expensive attorneys to be necessary.[681] In fact, the belief was general that the contest was practi[Pg 239]cally over and that the appeal of the College to the Supreme Court was the pursuit of a feeble and forlorn hope.

Even after his powerful and impressive argument in the Supreme Court, Webster declared that he had never allowed himself "to indulge any great hopes of success."[682] It was not unnatural, then, that the State and the University should neglect to employ adequate counsel.

John Holmes, a Representative in Congress from that part of Massachusetts which afterward became the State of Maine, appeared for the University. He was notoriously unfitted to argue a legal question of any weight in any court. He was a busy, agile, talkative politician of the roustabout, hail-fellow-well-met variety, "a power-on-the-stump" orator, gifted with cheap wit and tawdry eloquence.[683]

Associated with Holmes was William Wirt, recently appointed Attorney-General. At that particular time Wirt was all but crushed by overwork, and without either leisure or strength to master the case and prepare an argument.[684] Never in Wirt's life did[Pg 240] he appear in any case so poorly equipped as he was in the Dartmouth controversy.[685]

Webster's address was a combination of the arguments made by Mason and Smith in the New Hampshire court. Although the only question before the Supreme Court was whether the College Acts violated the contract clause of the Constitution, Webster gave comparatively scant attention to it; or, perhaps it might be said that most of his argument was devoted to laying the foundation for his brief reasoning on the main question. In laying this foundation, Webster cleverly brought before the court his version of the history of the College, the situation in New Hampshire, the plight of institutions like Dartmouth, if the College Acts were permitted to stand.

The facts were, said Webster, that Wheelock had founded a private charity; that, to perpetuate this, the charter created a corporation by the name of "The Trustees of Dartmouth College," with the powers, privileges, immunities, and limitations set forth in the charter. That instrument provided for no public funds, but only for the perpetuation and[Pg 241] convenient management of the private charity. For nearly half a century the College "thus created had existed, uninterruptedly, and usefully." Then its happy and prosperous career was broken by the rude and despoiling hands of the Legislature of the State which the College had so blessed by the education of New Hampshire youth.

What has the Legislature done to the College? It has created a new corporation and transferred to it "all the property, rights, powers, liberties and privileges of the old corporation." The spirit and the letter of the charter were wholly changed by the College Acts.[686] Moreover, the old Trustees "are to be punished" for not accepting these revolutionary laws. A single fact reveals the confiscatory nature of these statutes: Under the charter the president, professors, and tutors of the College had a right to their places and salaries, "subject to the twelve trustees alone"; the College Acts change all this and make the faculty "accountable to new masters."

If the Legislature can make such alterations, it can abolish the charter "rights and privileges altogether." In short, if this legislation is sustained, the old Trustees "have no rights, liberties, franchises, property or privileges, which the legislature may not revoke, annul, alienate or transfer to others whenever it sees fit." Such acts are against "common right" as well as violations of the State and National Constitutions.[687]

Although, says Webster, nothing is before the court[Pg 242] but the single question of the violation of the National Constitution, he will compare the New Hampshire laws with "fundamental principles" in order that the court may see "their true nature and character." Regardless of written constitutions, "these acts are not the exercise of a power properly legislative." They take away "vested rights"; but this involves a "forfeiture ... to ... declare which is the proper province of the judiciary."[688] Dartmouth College is not a civil but "an eleemosynary corporation," a "private charity"; and, as such, not subject to the control of public authorities.[689] Does Dartmouth College stand alone in this respect? No! Practically all American institutions of learning have been "established ... by incorporating governours, or trustees.... All such corporations are ... in the strictest legal sense a private charity." Even Harvard has not "any surer title than Dartmouth College. It may, to-day, have more friends; but to-morrow it may have more enemies. Its legal rights are the same. So also of Yale College; and indeed of all others."[690]

From the time of Magna Charta the privilege of being a member of such eleemosynary corporations "has been the object of legal protection." To contend that this privilege may be "taken away," because the Trustees derive no "pecuniary benefit" from it, is "an extremely narrow view." As well say that if the charter had provided that each Trustee should be given a "commission on the disbursement of the funds," his status and the nature of the cor[Pg 243]poration would have been changed from public to private. Are the rights of the Trustees any the less sacred "because they have undertaken to administer it [the trust] gratuitously?... As if the law regarded no rights but the rights of money, and of visible tangible property!"[691]

The doctrine that all property "of which the use may be beneficial to the publick, belongs therefore to the publick," is without principle or precedent. In this very matter of Dartmouth College, Wheelock might well have "conveyed his property to trustees, for precisely such uses as are described in this charter"—yet nobody would contend that any Legislature could overthrow such a private act. "Who ever appointed a legislature to administer his charity? Or who ever heard, before, that a gift to a college, or hospital, or an asylum, was, in reality, nothing but a gift to the state?"[692]

Vermont has given lands to the College; was this a gift to New Hampshire? "What hinders Vermont ... from resuming her grants," upon the ground that she, equally with New Hampshire, is "the representative of the publick?" In 1794, Vermont had "granted to the respective towns in that state, certain glebe lands lying within those towns for the sole use and support of religious worship." Five years later, the Legislature of that State repealed this grant; "but this court declared[693] that the act of[Pg 244] 1794, 'so far as it granted the glebes to the towns, could not afterwards be repealed by the legislature, so as to divest the rights of the towns under the grant.'"[694]

So with the Trustees of Dartmouth College. The property entrusted to them was "private property"; and the right to "administer the funds, and ... govern the college was a franchise and privilege, solemnly granted to them," which no Legislature can annul. "The use being publick in no way diminishes their legal estate in the property, or their title to the franchise." Since "the acts in question violate property, ... take away privileges, immunities, and franchises, ... deny to the trustees the protection of the law," and "are retrospective in their operation," they are, in all respects, "against the constitution of New Hampshire."[695]

It will be perceived by now that Webster relied chiefly on abstract justice. His main point was that, if chartered rights could be interfered with at all, such action was inherently beyond the power of the Legislature, and belonged exclusively to the Judiciary. In this Webster was rigidly following Smith and Mason, neither of whom depended on the violation of the contract clause of the National Constitution any more than did Webster.

Well did Webster know that the Supreme Court of the United States could not consider the violation of a State constitution by a State law. He merely[Pg 245] indulged in a device of argument to bring before Marshall and the Associate Justices those "fundamental principles," old as Magna Charta, and embalmed in the State Constitution, which protect private property from confiscation.[696] Toward the close of his argument, Webster discusses the infraction of the National Constitution by the New Hampshire College Acts, a violation the charge of which alone gave the Supreme Court jurisdiction over the case.

What, asks Webster, is the meaning of the words, "no state shall pass any ... law impairing the obligation of contracts"? Madison, in the Federalist, clearly states that such laws "'are contrary to the first principles of the social compact, and to every principle of sound legislation.'" But this is not enough. "Our own experience," continues Madison, "has taught us ... that additional fences" should be erected against spoliations of "personal security and private rights." This was the reason for inserting the contract clause in the National Constitution—a provision much desired by the "sober people of America," who had grown "weary of the fluctuating policy" of the State Governments and beheld with anger "that sudden changes, and legislative interferences in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators." These, said Webster, were the words of James Madison in Number 44 of the Federalist.

High as such authority is, one still more exalted and final has spoken, and upon the precise point[Pg 246] now in controversy. That authority is the Supreme Court itself. In Fletcher vs. Peck[697] this very tribunal declared specifically that "a grant is a contract, within the meaning of this provision; and that a grant by a state is also a contract, as much as the grant of an individual."[698] This court went even further when, in New Jersey vs. Wilson,[699] it decided that "a grant by a state before the revolution is as much to be protected as a grant since."[700] The principle announced in these decisions was not new, even in America. Even before Fletcher vs. Peck and New Jersey vs. Wilson, this court denied[701] that a Legislature "can repeal statutes creating private corporations, or confirming to them property already acquired under the faith of previous laws, and by such repeal can vest the property of such corporations exclusively in the state, or dispose of the same to such purposes as they please, without the consent or default of the corporators ...; and we think ourselves standing upon the principles of natural justice, upon the fundamental laws of every free government, upon the spirit and letter of the constitution of the United States, and upon the decisions of the most respectable judicial tribunals, in resisting such a doctrine."[702]

From the beginning of our Government until this[Pg 247] very hour, continues Webster, such has been the uniform language of this honorable court. The principle that a Legislature cannot "repeal statutes creating private corporations" must be considered as settled. It follows, then, that if a Legislature cannot repeal such laws entirely, it cannot repeal them in part—cannot "impair them, or essentially alter them without the consent of the corporators."[703] In the case last cited[704] the property granted was land; but the Dartmouth charter "is embraced within the very terms of that decision," since "a grant of corporate powers and privileges is as much a contract as a grant of land."[705]

Even the State court concedes that if Dartmouth College is a private corporation, "its rights stand on the same ground as those of an individual"; and that tribunal rests its judgment against the College on the sole ground that it is a public corporation.[706]

Dartmouth College is not the only institution affected by this invasion of chartered rights. "Every college, and all the literary institutions of the country" are imperiled. All of them exist because of "the inviolability of their charters." Shall their fate depend upon "the rise and fall of popular parties, and the fluctuations of political opinions"? If so, "colleges and halls will ... become a theatre for the contention of politicks. Party and faction will be cherished in the places consecrated to piety and learning."[Pg 248]

"We had hoped, earnestly hoped," exclaimed Webster, "that the State court would protect Dartmouth College. That hope has failed. It is here, that those rights are now to be maintained, or they are prostrated forever." He closed with a long Latin quotation, not a word of which Marshall understood, but which, delivered in Webster's sonorous tones and with Webster's histrionic power, must have been prodigiously impressive.[707]

Undoubtedly it was at this point that the incomparable actor, lawyer, and orator added to his prepared peroration that dramatic passage which has found a permanent place in the literature of emotional eloquence. Although given to the world a quarter of a century after Webster's speech was delivered, and transmitted through two men of vivid and creative imaginations, there certainly is some foundation for the story. Rufus Choate in his "Eulogy of Webster," delivered at Dartmouth College in 1853, told, for the first time, of the incident as narrated to him by Professor Chauncey A. Goodrich, who heard Webster's argument. When Webster had apparently finished, says Goodrich, he "stood for some moments silent before the Court, while every eye was fixed intently upon him." At length, addressing the Chief Justice, Webster delivered that famous peroration ending: "'Sir, you may destroy this little Institution; it is weak; it is in your hands! I know it is one of the lesser lights in the literary horizon of our country. You may put it out. But if you do so, you must carry through your work![Pg 249] You must extinguish, one after another, all those great lights of science which, for more than a century, have thrown their radiance over our land!

"'It is, Sir, as I have said, a small College. And yet, there are those who love it——'"[708]

Then, testifies Goodrich, Webster broke down with emotion, his lips quivered, his cheeks trembled, his eyes filled with tears, his voice choked. In a "few broken words of tenderness" he spoke of his love for Dartmouth in such fashion that the listeners were impressed with "the recollections of father, mother, brother, and all the trials and privations through which he had made his way into life."[709]

Goodrich describes the scene in the court-room, "during these two or three minutes," thus: "Chief Justice Marshall, with his tall and gaunt figure bent over as if to catch the slightest whisper, the deep furrows of his cheek expanded with emotion, and eyes suffused with tears; Mr. Justice Washington at his side,—with his small and emaciated frame, and countenance more like marble than I ever saw on any other human being,—leaning forward with an eager, troubled look; and the remainder of the Court, at the two extremities, pressing, as it were, toward a single point, while the audience below were wrapping themselves round in closer folds beneath the bench to catch each look, and every movement of the speaker's face." Recovering "his[Pg 250] composure, and fixing his keen eye on the Chief Justice," Webster, "in that deep tone with which he sometimes thrilled the heart of an audience," exclaimed:

"'Sir, I know not how others may feel,' (glancing at the opponents of the College before him,) 'but, for myself, when I see my Alma Mater surrounded, like Cæsar in the senate-house, by those who are reiterating stab upon stab, I would not, for this right hand, have her turn to me, and say, Et tu quoque, mi fili!'"[710]

Exclusive of his emotional finish, Webster's whole address was made up from the arguments of Jeremiah Mason and Jeremiah Smith in the State court.[711] This fact Webster privately admitted, although he never publicly gave his associates the credit.[712][Pg 251]

When Farrar's "Report," containing Mason's argument, was published, Story wrote Mason that he was "exceedingly pleased" with it. "I always had a desire that the question should be put upon the broad basis you have stated; and it was a matter of regret that we were so stinted in jurisdiction in the Supreme Court, that half the argument could not be met and enforced. You need not fear a comparison of your argument with any in our annals."[713] Thus Story makes plain, what is apparent on the face of his own and Marshall's opinion, that he considered the master question involved to be that the College Acts were violative of fundamental principles of government. Could the Supreme Court have passed upon the case without regard to the Constitution, there can be no doubt that the decision would have been against the validity of the New Hampshire laws upon the ground on which Mason, Smith, and Webster chiefly relied.

Webster, as we have seen, had little faith in winning on the contract clause and was nervously anxious that the controversy should be presented to the Supreme Court by means of a case which would give that tribunal greater latitude than was afforded by the "stinted jurisdiction" of which Story complained. Indeed, Story openly expressed impatience that the court was restricted to a consideration of the contract clause. Upon his return to Massa[Pg 252]chusetts after the argument, Story as much as told Webster that another suit should be brought which could be taken to the Supreme Court, and which would permit the court to deal with all the questions raised by the New Hampshire College Acts. Webster's report of this conversation is vital to an understanding of the views of the Chief Justice, as well as of those of Story, since the latter undoubtedly stated Marshall's views as well as his own. "I saw Judge Story as I came along," Webster reported to Mason. "He is evidently expecting a case which shall present all the questions. It is not of great consequence whether the actions or action, go up at this term, except that it would give it an earlier standing on the docket next winter.

"The question which we must raise in one of these actions, is, 'whether, by the general principles of our governments, the State Legislatures be not restrained from divesting vested rights?' This, of course, independent of the constitutional provision respecting contracts. On this question [the maintenance of vested rights by "general principles"] I have great confidence in a decision on the right side. This is the proposition with which you began your argument at Exeter, and which I endeavored to state from your minutes at Washington.... On general principles, I am very confident the court at Washington would be with us."[714][Pg 253]

Holmes followed Webster. "The God-like Daniel" could not have wished for a more striking contrast to himself. In figure, bearing, voice, eye, intellect, and personality, the Maine Congressman, politician, and stump-speaker, was the antithesis of Webster. For three hours Holmes declaimed "the merest stuff that was ever uttered in a county court."[715] His "argument" was a diffuse and florid repetition of the opinion of Chief Justice Richardson, and was one of those empty and long-winded speeches which Marshall particularly disliked.

Wirt did his best to repair the damage done by Holmes; but he was so indifferently prepared,[716] and[Pg 254] so physically exhausted, that, breaking down in the midst of his address, he asked the court to adjourn that he might finish next day;[717] and this the bored and weary Justices were only too willing to do. Wirt added nothing to the reasoning and facts of Richardson's opinion which was in the hands of Marshall and his associates.

The argument was closed by Joseph Hopkinson; and here again Fate acted as stage manager for Dartmouth, since the author of "Hail Columbia"[718] was as handsome and impressive a man as Webster, though of an exactly opposite type. His face was that of the lifelong student, thoughtful and refined. His voice, though light, had a golden tone. His manner was quiet, yet distinguished.


Joseph Hopkinson showed breeding in every look, movement, word, and intonation.[719] He had a beautiful and highly trained mind, equipped with immense and accurate knowledge systematically arranged.[720] It is unfortunate that space does not permit even a brief précis of Hopkinson's admirable argument.[721] He quite justified Webster's assurance [Pg 255] to Brown that "Mr. Hopkinson ... will do all that man can do."[722]

At eleven o'clock of March 13, 1818, the morning after the argument was concluded, Marshall announced that some judges were of "different opinions, and that some judges had not formed opinions; consequently, the cause must be continued."[723] On the following day the court adjourned.

Marshall, Washington, and Story[724] were for the College, Duval and Todd were against it, and Livingston and Johnson had not made up their minds.[725] During the year that intervened before the court again met in February, 1819, hope sprang up in the hearts of Dartmouth's friends, and they became incessantly active in every legitimate way. Webster's[Pg 256] argument was printed and placed in the hands of all influential lawyers in New England.

Chancellor James Kent of New York was looked upon by the bench and bar of the whole country as the most learned of American jurists and, next to Marshall, the ablest.[726] The views of no other judge were so sought after by his fellow occupants of the bench. Charles Marsh of New Hampshire, one of the Trustees of the College and a warm friend of Kent, sent him Webster's argument. While on a vacation in Vermont Kent had read the opinion of Chief Justice Richardson and, "on a hasty perusal of it," was at first inclined to think the College Acts valid, because he was "led by the opinion to assume the fact that Dartmouth College was a public establishment for purposes of a general nature."[727] Webster's argument changed Kent's views.

During the summer of 1818, Justice Johnson, of the National Supreme Court, was in Albany, where Kent lived, and conferred with the Chancellor about the Dartmouth case. Kent told Johnson that he thought the New Hampshire College Acts to be[Pg 257] against natural right and in violation of the contract clause of the National Constitution.[728] It seems fairly certain also that Livingston asked for the Chancellor's opinion, and was influenced by it.

Webster sent Story, with whom he was on terms of cordial intimacy, "five copies of our argument." Evidently Webster now knew that Story was unalterably for the College, for he adds these otherwise startling sentences: "If you send one of them to each of such of the judges as you think proper, you will of course do it in the manner least likely to lead to a feeling that any indecorum has been committed by the plaintiffs."[729]

In some way, probably from the fact that Story was an intimate friend of Plumer, a rumor had spread, before the case was argued, that he was against the College Trustees. Doubtless this impression was strengthened by the fact that Governor Plumer had appointed Story one of the Board of Overseers of the new University. No shrewder politician than Plumer ever was produced by New England. But Story declined the appointment.[730] He had been compromised, however, in the eyes of both sides. The friends of the College were discouraged, angered, frightened.[731] In great apprehension,[Pg 258] Charles Marsh, one of the College Trustees, wrote Hopkinson of Story's appointment as Overseer of the University and of the rumor in circulation. Hopkinson answered heatedly that he would object to Story's sitting in the case if the reports could be confirmed.[732]

Although the efforts of the College to get its case before Kent were praiseworthy rather than reprehensible, and although no smallest item of testimony had been adduced by eager searchers for something unethical, nevertheless out of the circumstances just related has been woven, from the materials of eager imaginations, a network of suspicion involving the integrity of the Supreme Court in the Dartmouth decision.[733][Pg 259]

Meanwhile the news had spread of the humiliating failure before the Supreme Court of the flamboyant Holmes and the tired and exhausted Wirt as contrasted with the splendid efforts of Webster and Hopkinson. The New Hampshire officials and the University at last realized the mistake they had made in not employing able counsel, and resolved to remedy their blunder by securing the acknowledged leader of the American bar whose primacy no judge or lawyer in the country denied. They did what they should have done at the beginning—they retained William Pinkney of Maryland.

Traveling with him in the stage during the autumn of 1818, Hopkinson learned that the great lawyer had been engaged by the University. Moreover, with characteristic indiscretion, Pinkney told Hopkinson that he intended to request a reargument at the approaching session of the Supreme[Pg 260] Court. In alarm, Hopkinson instantly wrote Webster,[734] who was dismayed by the news. Of all men the one Webster did not want to meet in forensic combat was the legal Colossus from Baltimore.[735]

Pinkney applied himself to the preparation of the case with a diligence and energy uncommon even for that most laborious and painstaking of lawyers. Apparently he had no doubt that the Supreme Court would grant his motion for a reargument. It was generally believed that some of the Justices had not made up their minds; rearguments, under such circumstances, were usually granted and sometimes required by the court; and William Pinkney was the most highly regarded by that tribunal of all practitioners before it. So, on February 1, 1819, he took the Washington stage at Baltimore, prepared at every point for the supreme effort of his brilliant career.[736]

Pinkney's purpose was, of course, well advertised by this time. By nobody was it better understood than by Marshall and, indeed, by every Justice of[Pg 261] the Supreme Court. All of them, except Duval and Todd, had come to an agreement and consented to the opinion which Marshall had prepared since the adjournment the previous year.[737] None of them were minded to permit the case to be reopened. Most emphatically John Marshall was not.

When, at eleven o'clock, February 2, 1819, the marshal of the court announced "The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States," Marshall, at the head of his robed associates, walked to his place, he beheld Pinkney rise, as did all others in the room, to greet the court. Well did Marshall know that, at the first opportunity, Pinkney would ask for a reargument.

From all accounts it would appear that Pinkney was in the act of addressing the court when the Chief Justice, seemingly unaware of his presence, placidly announced that the court had come to a decision and began reading his momentous opinion.[738] After a few introductory sentences the Chief Justice came abruptly to the main point of the dispute:

"This court can be insensible neither to the magnitude nor delicacy of this question. The validity of a legislative act is to be examined; and the opinion[Pg 262] of the highest law tribunal of a state is to be revised: an opinion which carries with it intrinsic evidence of the diligence, of the ability, and the integrity, with which it was formed. On more than one occasion this court has expressed the cautious circumspection with which it approaches the consideration of such questions; and has declared that, in no doubtful case would it pronounce a legislative act to be contrary to the constitution.

"But the American people have said, in the constitution of the United States, that 'no state shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts.' In the same instrument they have also said, 'that the judicial power shall extend to all cases in law and equity arising under the constitution.' On the judges of this court, then, is imposed the high and solemn duty of protecting, from even legislative violation, those contracts which the constitution of our country has placed beyond legislative control; and, however irksome the task may be, this is a duty from which we dare not shrink."[739]

Then Marshall, with, for him, amazing brevity, states the essential provisions of the charter and of the State law that modified it;[740] and continues, almost curtly: "It can require no argument to prove that the circumstances of this case constitute a contract." On the faith of the charter "large contributions" to "a religious and literary institution" are conveyed to a corporation created by that charter. Indeed, in the very application it is stated[Pg 263] that these funds will be so applied. "Surely in this transaction every ingredient of a complete and legitimate contract is to be found."[741]

This being so, is such a contract "protected" by the Constitution, and do the New Hampshire College Acts impair that contract? Marshall states clearly and fairly Chief Justice Richardson's argument that to construe the contract clause so broadly as to cover the Dartmouth charter would prevent legislative control of public offices, and even make divorce laws invalid; and that the intention of the framers of the Constitution was to confine the operation of the contract clause to the protection of property rights, as the history of the times plainly shows.[742]

All this, says Marshall, "may be admitted." The contract clause "never has been understood to embrace other contracts than those which respect property, or some object of value, and confer rights which may be asserted in a court of justice." Divorce laws are not included, of course—they merely enable a court, "not to impair a marriage contract, but to liberate one of the parties because it has been broken by the other."

The "point on which the cause essentially depends" is "the true construction" of the Dartmouth charter. If that instrument grants "political power," creates a "civil institution" as an instrument of government; "if the funds of the college be public property," or if the State Government "be alone interested in its transactions," the Legislature may do[Pg 264] what it likes "unrestrained" by the National Constitution.[743]

If, on the other hand, Dartmouth "be a private eleemosynary institution," empowered to receive property "for objects unconnected with government," and "whose funds are bestowed by individuals on the faith of the charter; if the donors have stipulated for the future disposition and management of those funds in the manner prescribed by themselves," the case becomes more difficult.[744] Marshall then sets out compactly and clearly the facts relating to the establishment of Wheelock's school; the granting and acceptance of the charter; the nature of the College funds which "consisted entirely of private donations." These facts unquestionably show, he avows, that Dartmouth College is "an eleemosynary, and, as far as respects its funds, a private corporation."[745]

Does the fact that the purpose of the College is the education of youth make it a public corporation? It is true that the Government may found and control an institution of learning. "But is Dartmouth College such an institution? Is education altogether in the hands of government?" Are all teachers public officers? Do gifts for the advancement of learning "necessarily become public property, so far that the will of the legislature, not the will of the donor, becomes the law of donation?"[746][Pg 265]

Certainly Eleazar Wheelock, teaching and supporting Indians "at his own expense, and on the voluntary contributions of the charitable," was not a public officer. The Legislature could not control his money and that given by others, merely because Wheelock was using it in an educational charity. Whence, then, comes "the idea that Dartmouth College has become a public institution?... Not from the source" or application of its funds. "Is it from the act of incorporation?"[747]

Such is the process by which Marshall reaches his famous definition of the word "corporation": "A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law.... It possesses only those properties which the charter of its creation confers upon it.... Among the most important are immortality, and ... individuality.... By these means, a perpetual succession of individuals are capable of acting for the promotion of the particular object, like one immortal being.... But ... it is no more a state instrument than a natural person exercising the same powers would be."[748]

This, says Marshall, is obviously true of all private corporations. "The objects for which a corporation is created are universally such as the government wishes to promote." Why should a private charity, incorporated for the purpose of education, be excluded from the rules that apply to other corporations? An individual who volunteers to teach is not a public officer because of his personal devotion to[Pg 266] education; how, then, is it that a corporation formed for precisely the same service "should become a part of the civil government of the country?" Because the Government has authorized the corporation "to take and to hold property in a particular form, and for particular purposes, has the Government a consequent right substantially to change that form, or to vary the purposes to which the property is to be applied?" Such an idea is without precedent. Can it be supported by reason?[749]

Any corporation for any purpose is created only because it is "deemed beneficial to the country; and this benefit constitutes the consideration, and, in most cases, the sole consideration for the grant." This is as true of incorporated charities as of any other form of incorporation. Of consequence, the Government cannot, subsequently, assume a power over such a corporation which is "in direct contradiction to its [the corporate charter's] express stipulations." So the mere fact "that a charter of incorporation has been granted" does not justify a Legislature in changing "the character of the institution," or in transferring "to the Government any new power over it."

"The character of civil institutions does not grow out of their incorporation, but out of the manner in which they are formed, and the objects for which they are created. The right to change them is not founded on their being incorporated, but on their being the instruments of government, created for its purposes. The same institutions, created for the same objects,[Pg 267] though not incorporated, would be public institutions, and, of course, be controllable by the legislature. The incorporating act neither gives nor prevents this control. Neither, in reason, can the incorporating act change the character of a private eleemosynary institution."[750]

For whose benefit was the property of Dartmouth College given to that institution? For the people at large, as counsel insist? Read the charter. Does it give the State "any exclusive right to the property of the college, any exclusive interest in the labors of the professors?" Does it not rather "merely indicate a willingness that New Hampshire should enjoy those advantages which result to all from the establishment of a seminary of learning in the neighborhood? On this point we think it impossible to entertain a serious doubt." For the charter shows that, while the spread of education and religion was the object of the founders of the College, the "particular interests" of the State "never entered into the minds of the donors, never constituted a motive for their donation."[751]

It is plain, therefore, that every element of the problem shows "that Dartmouth College is an eleemosynary institution, incorporated for the purpose of perpetuating ... the bounty of the donors, to the specified objects of that bounty"; that the Trustees are legally authorized to perpetuate themselves and that they are "not public officers"; that, in fine, Dartmouth College is a "seminary of education, incorporated for the preservation of its[Pg 268] property, and the perpetual application of that property to the objects of its creation."[752]

There remains a question most doubtful of "all that have been discussed." Neither those who have given money or land to the College, nor students who have profited by those benefactions, "complain of the alteration made in its charter, or think themselves injured by it. The trustees alone complain, and the trustees have no beneficial interest to be protected." Can the charter "be such a contract as the constitution intended to withdraw from the power of state legislation?"[753]

Wheelock and the other philanthropists who had endowed the College, both before and after the charter was granted, made their gifts "for something ... of inestimable value—... the perpetual application of the fund to its object, in the mode prescribed by themselves.... The corporation ... stands in their place, and distributes their bounty, as they would themselves have distributed it, had they been immortal." Also the rights of the students "collectively" are "to be exercised ... by the corporation."[754]

The British Parliament is omnipotent. Yet had it annulled the charter, even immediately after it had been granted and conveyances made to the corporation upon the faith of that charter, "so that the living donors would have witnessed the disappointment of their hopes, the perfidy of the transaction would have been universally acknowledged." Nevertheless, Parliament would have had the power to[Pg 269] perpetrate such an outrage. "Then, as now, the donors would have had no interest in the property; ... the students ... no rights to be violated; ... the trustees ... no private, individual, beneficial interest in the property confided to their protection." But, despite the legal power of Parliament to destroy it, "the contract would at that time have been deemed sacred by all."

"What has since occurred to strip it of its inviolability? Circumstances have not changed it. In reason, in justice, and in law, it is now what it was in 1769." The donors and Trustees, on the one hand, and the Crown on the other, were the original parties to the arrangement stated in the charter, which was "plainly a contract" between those parties. To the "rights and obligations" of the Crown under that contract, "New Hampshire succeeds."[755] Can such a contract be impaired by a State Legislature?

"It is a contract made on a valuable consideration.

"It is a contract for the security and disposition of property.

"It is a contract, on the faith of which real and personal estate has been conveyed to the corporation.

"It is then a contract within the letter of the constitution, and within its spirit also, unless" the nature of the trust creates "a particular exception, taking this case out of the prohibition contained in the constitution."

It is doubtless true that the "preservation of rights of this description was not particularly in the view of the framers of the constitution when the[Pg 270] clause under consideration was introduced into that instrument," and that legislative interferences with contractual obligations "of more frequent recurrence, to which the temptation was stronger, and of which the mischief was more extensive, constituted the great motive for imposing this restriction on the state legislatures.

"But although a particular and a rare case may not ... induce a rule, yet it must be governed by the rule, when established, unless some plain and strong reason for excluding it can be given. It is not enough to say that this particular case was not in the mind of the convention when the article was framed, nor of the American people when it was adopted. It is necessary to go farther, and to say that, had this particular case been suggested, the language [of the contract clause] would have been so varied as to exclude it, or it would have been made a special exception."[756]

Can the courts now make such an exception? "On what safe and intelligible ground can this exception stand?" Nothing in the language of the Constitution; no "sentiment delivered by its contemporaneous expounders ... justify us in making it."

Does "the nature and reason of the case itself ... sustain a construction of the constitution, not warranted by its words?" The contract clause was made a part of the Nation's fundamental law "to give stability to contracts." That clause in its "plain import" comprehends Dartmouth's charter. Does public policy demand a construction which[Pg 271] will exclude it? The fate of all similar corporations is involved. "The law of this case is the law of all."[757] Is it so necessary that Legislatures shall "new-model" such charters "that the ordinary rules of construction must be disregarded in order to leave them exposed to legislative alteration?"

The importance attached by the American people to corporate charters like that of Dartmouth College is proved by "the interest which this case has excited." If the framers of the Constitution respected science and literature so highly as to give the National Government exclusive power to protect inventors and writers by patents and copyrights, were those statesman "so regardless of contracts made for the advancement of literature as to intend to exclude them from provisions made for the security of ordinary contracts between man and man?"[758]

No man ever did or will found a college, "believing at the time that an act of incorporation constitutes no security for the institution; believing that it is immediately to be deemed a public institution, whose funds are to be governed and applied, not by the will of the donor, but by the will of the legislature. All such gifts are made in the pleasing, perhaps delusive hope, that the charity will flow forever in the channel which the givers have marked out for it."

Since every man finds evidence of this truth "in his own bosom," can it be imagined that "the framers of our constitution were strangers" to the same universal sentiment? Although "feeling[Pg 272] the necessity ... of giving permanence and security to contracts," because of the "fluctuating" course and "repeated interferences" of Legislatures which resulted in the "most perplexing and injurious embarrassments," did the framers of the Constitution nevertheless deem it "necessary to leave these contracts subject to those interferences?" Strong, indeed, must be the motives for making such exceptions.[759]

Finally, Marshall declares that the "opinion of the court, after mature deliberation, is, that this is a contract, the obligation of which cannot be impaired without violating the Constitution of the United States."[760]

Do the New Hampshire College Acts impair the obligations of Dartmouth's charter? That instrument gave the Trustees "the whole power of governing the college"; stipulated that the corporation "should continue forever"; and "that the number of trustees should forever consist of twelve, and no more." This contract was made by the Crown, a power which could have made "no violent alteration in its essential terms, without impairing its obligation."

The powers and duties of the Crown were, by the Revolution, "devolved on the people of New Hampshire." It follows that, since the Crown could not change the charter of Dartmouth without impairing the contract, neither can New Hampshire. "All contracts, and rights, respecting property, remained unchanged by the revolution."[761][Pg 273]

As to whether the New Hampshire College Acts radically alter the charter of Dartmouth College, "two opinions cannot be entertained." The State takes over the government of the institution. "The will of the state is substituted for the will of the donors, in every essential operation of the college.... The charter of 1769 exists no longer"—the College has been converted into "a machine entirely subservient to the will of government," instead of the "will of its founders."[762] Therefore, the New Hampshire College laws "are repugnant to the constitution of the United States."[763]

On account of the death of Woodward, who had been Secretary and Treasurer of the University, and formerly held the same offices in the College against whom the College Trustees had brought suit, Webster moved for judgment nunc pro tunc; and judgment was immediately entered accordingly.

Not for an instant could Webster restrain the expression of his joy. Before leaving the court-room he wrote his brother: "All is safe.... The opinion was delivered by the Chief Justice. It was very able and very elaborate; it goes the whole length, and leaves not an inch of ground for the University to stand on."[764] He informed President Brown that "all is safe and certain.... I feel a load removed from my shoulders much heavier than they have been accustomed to bear."[765] To Mason, Webster describes Marshall's manner: "The Chief[Pg 274] Justice's opinion was in his own peculiar way. He reasoned along from step to step; and, not referring to the cases [cited], adopted the principles of them, and worked the whole into a close, connected, and very able argument."[766]

At the same time Hopkinson wrote Brown in a vein equally exuberant: "Our triumph ... has been complete. Five judges, only six attending, concur not only in a decision in our favor, but in placing it upon principles broad and deep, and which secure corporations of this description from legislative despotism and party violence for the future.... I would have an inscription over the door of your building, 'Founded by Eleazar Wheelock, Refounded by Daniel Webster.'"[767] The high-tempered Pinkney was vocally indignant. "He talked ... and blustered" ungenerously, wrote Webster, "because ... the party was in a fever and he must do something for his fees. As he could not talk in court, he therefore talked out of court."[768]

As we have seen, Marshall had prepared his opinion under his trees at Richmond and in the mountains during the vacation of 1818; and he had barely time to read it to his associates before the opening of court at the session when it was delivered. But he afterward submitted the manuscript to Story, who made certain changes, although enthusiastically praising it. "I am much obliged," writes Marshall,[Pg 275] "by the alterations you have made in the Dartmouth College case & am highly gratified by what you say respecting it."[769]

Story also delivered an opinion upholding the charter[770]—one of his ablest papers. It fairly bristles with citations of precedents and historical examples. The whole philosophy of corporations is expounded with clearness, power, and learning. Apparently Justice Livingston liked Story's opinion even more than that of Marshall. Story had sent it to Livingston, who, when returning the manuscript, wrote: It "has afforded me more pleasure than can easily be expressed. It was exactly what I had expected from you, and hope it will be adopted without alteration."[771]

At the time of the Dartmouth decision little attention was paid to it outside of New Hampshire and[Pg 276] Massachusetts.[772] The people, and even the bar, were too much occupied with bank troubles, insolvency, and the swiftly approaching slavery question, to bother about a small New Hampshire college. The profound effect of Marshall's opinion was first noted in the North American Review a year after the Chief Justice delivered it. "Perhaps no judicial proceedings in this country ever involved more important consequences, ... than the case of Dartmouth College."[773]

Important, indeed, were the "consequences" of the Dartmouth decision. Everywhere corporations were springing up in response to the necessity for larger and more constant business units and because of the convenience and profit of such organizations. Marshall's opinion was a tremendous stimulant to this natural economic tendency. It reassured investors in corporate securities and gave confidence and steadiness to the business world. It is undeniable and undenied that America could not have been developed so rapidly and solidly without the power which the law as announced by Marshall gave to industrial organization.

One result of his opinion was, for the period, of even higher value than the encouragement it gave to private enterprise and the steadiness it brought to business generally; it aligned on the side of Nationalism all powerful economic forces operating through corporate organization. A generation passed before railway development began in Amer[Pg 277]ica; but Marshall lived to see the first stage of the evolution of that mighty element in American commercial, industrial, and social life; and all of that force, except the part of it which was directly connected with and under the immediate influence of the slave power, was aggressively and most effectively Nationalist.

That this came to be the fact was due to Marshall's Dartmouth opinion more than to any other single cause. The same was true of other industrial corporate organizations. John Fiske does not greatly exaggerate in his assertion that the law as to corporate franchises declared by Marshall, in subjecting to the National Constitution every charter granted by a State "went farther, perhaps, than any other in our history toward limiting State sovereignty and extending the Federal jurisdiction."[774]

Sir Henry Sumner Maine has some ground for his rather dogmatic statement that the principle of Marshall's opinion "is the basis of credit of many of the great American Railway Incorporations," and "has ... secured full play to the economical forces by which the achievement of cultivating the soil of the North American Continent has been performed." Marshall's statesmanship is, asserts Maine, "the bulwark of American individualism against democratic impatience and Socialistic fantasy."[775] Such views of the Dartmouth decision are remarkably similar to those which Story himself expressed soon after it was rendered. Writing to Chancellor Kent[Pg 278] Story says: "Unless I am very much mistaken the principles on which that decision rests will be found to apply with an extensive reach to all the great concerns of the people, and will check any undue encroachments upon civil rights, which the passions or the popular doctrines of the day may stimulate our State Legislatures to adopt."[776]

The court's decision, however, made corporate franchises infinitely more valuable and strengthened the motives for procuring them, even by corruption. In this wise tremendous frauds have been perpetrated upon negligent, careless, and indifferent publics; and "enormous and threatening powers," selfish and non-public in their purposes and methods, have been created.[777] But Marshall's opinion put the public on its guard. Almost immediately the States enacted laws reserving to the Legislature the right to alter or repeal corporate charters; and the constitutions of several States now include this limitation on corporate franchises. Yet these reservations did not, as a practical matter, nullify or overthrow Marshall's philosophy of the sacredness of contracts.

Within the last half-century the tendency has been strongly away from the doctrine of the Dartmouth decision, and this tendency has steadily become more powerful. The necessity of modifying and even abrogating legislative grants, more freely than is secured by the reservation to do so contained in State constitutions and corporate charters, has further restricted the Dartmouth decision. It is this necessity that has[Pg 279] produced the rapid development of "that well-known but undefined power called the police power,"[778] under which laws may be passed and executed, in disregard of what Marshall would have called contracts, provided such laws are necessary for the protection or preservation of life, health, property, morals, or order. The modern doctrine is that "the Legislature cannot, by any contract, divest itself of the power to provide for these objects.... They are to be attained and provided for by such appropriate means as the legislative discretion may devise. That discretion can no more be bargained away than the power itself."[779]

Aside from the stability which this pronouncement of the Chief Justice gave to commercial transactions in general, and the confidence it inspired throughout the business world, the largest permanent benefit of it to the American people was to teach them that faith once plighted, whether in private contracts or public grants, must not and cannot be broken by State legislation; that, by the fundamental law which they themselves established for their own government, they as political entities are forbidden to break their contracts by enacting statutes, just as, by the very spirit of the law, private persons are forbidden to break their contracts. If it be said that their representatives may betray the people, the plain answer is that the people must learn to elect honest agents.

For exactly a century Marshall's Dartmouth opin[Pg 280]ion has been assailed and the Supreme Court itself has often found ways to avoid its conclusions. But the theory of the Chief Justice has shown amazing vitality. Sixty years after Marshall delivered it, Chief Justice Waite declared that the principles it announced are so "imbedded in the jurisprudence of the United States as to make them to all intents and purposes a part of the Constitution itself."[780] Thirty-one years after Marshall died, Justice Davis avowed that "a departure from it [Marshall's doctrine] now would involve dangers to society that cannot be foreseen, would shock the sense of justice of the country, unhinge its business interests, and weaken, if not destroy, that respect which has always been felt for the judicial department of the Government."[781] As late as 1895, Justice Brown asserted that it has "become firmly established as a canon of American jurisprudence."[782]

It was a principle which Marshall introduced into American Constitutional law, and, fortunately for the country, that principle still stands; but to-day the courts, when construing a law said to impair the obligation of contracts, most properly require that it be established that the unmistakable purpose of the Legislature is to make an actual contract for a sufficient consideration.[783]

[Pg 281]

It is highly probable that in the present state of the country's development, the Supreme Court would not decide that the contract clause so broadly protects corporate franchises as Marshall held a century ago. In considering the Dartmouth decision, however, the state of things existing when it was rendered must be taken into account. It is certain that Marshall was right in his interpretation of corporation law as it existed in 1819; right in the practical result of his opinion in that particular case; and, above all, right in the purpose and effect of that opinion on the condition and tendency of the country at the perilous time it was delivered.


[615] See vol. i, 147, 231, of this work.

[616] See vol. iii, chap. x, of this work.

[617] 7 Cranch, 164.

[618] Ib. 165.

[619] 7 Cranch, 166-67.

[620] This was true also of the entire court, since all the Justices concurred in Marshall's opinions in both cases as far as the legislative violations of the contract clause were concerned.

[621] He was not at all related to the Chief Justice. See vol. i, footnote to 15-16, of this work.

[622] Chase: History of Dartmouth College and the Town of Hanover, New Hampshire, i, 49.

[623] Chase, 45-48.

[624] Ib. 59.

[625] Ib. 54-55.

[626] Dartmouth and the English Trustees opposed incorporation and the Bishops of the Church of England violently resisted Wheelock's whole project. (Ib. 90.)

[627] Farrar: Report of the Case of the Trustees of Dartmouth College against William H. Woodward, 11, 16; also see Charter of Dartmouth College, Chase, 639-49. (Although the official copy of the charter appears in Chase's history, the author cites Farrar in the report of the case; the charter also is cited from his book.)

[628] Chase, 556.

[629] See Wheelock's will, ib. 562.

[630] Young Wheelock was very active in the Revolution. He was a member of the New Hampshire Assembly in 1775, a Captain in the army in 1776, a Major the following year, and then Lieutenant-Colonel, serving on the staff of General Horatio Gates until called from military service by the death of his father in 1779. (See Smith: History of Dartmouth College, 76.)

[631] Chase, 564.

[632] Rachel Murch "To ye Session of ye Church of Christ in Hanover," April 26, 1783, Shirley: Dartmouth College Causes and the Supreme Court of the Untied States, 67.

[633] Shirley, 66-70.

[634] Ib. 70-75. Only three of the scores of Congregationalist ministers in New Hampshire were Republicans. (Ib. 70.)

[635] Ib. 82.

[636] Shirley, 81, 84-85.

[637] Sketches of the History of Dartmouth College and Moors' Charity School.

[638] A Candid, Analytical Review of the Sketches of the History of Dartmouth College.

[639] Vindication of the Official Conduct of the Trustees, etc., and A True and Concise Narrative of the Origin and Progress of the Church Difficulties, by Benoni Dewey, James Wheelock, and Benjamin J. Gilbert.

[640] Answer to the "Vindication," etc., by Josiah Dunham.

[641] Lord: History of Dartmouth College, 73-77.

[642] Lord, 78.

[643] In 1811 the salary of Chief Justices of the Court of Common Pleas for four of the counties was fixed at $200 a year; and that of the other Justices of those courts at $180. "The Chief Justice of said court in Grafton County, $180, and the other Justices in that court $160." (Act of June 21, Laws of New Hampshire, 1811, 33.)

[644] Acts of June 24 and Nov. 5, Laws of New Hampshire, 1813, 6-19; Barstow: History of New Hampshire, 363-64; Morison: Life of Jeremiah Smith, 265-67. This law was, however, most excellent. It established a Supreme Court and systematized the entire judicial system.

[645] This was the second time Plumer had been elected Governor. He was first chosen to that office in 1812. Plumer had abandoned the failing and unpatriotic cause of Federalism in 1808 (Plumer, 365), and had since become an ardent follower of Jefferson.

[646] The number of votes cast at this election was the largest ever polled in the history of the State up to that time. (Ib. 432.)

[647] See Act of June 27, Laws of New Hampshire, 1816, 45-48. This repealed the Federalist Judiciary Acts of 1813 and revived laws repealed by those acts. (See Barstow, 383, and Plumer, 437-38.)

The burning question of equality of religious taxation was not taken up by this Legislature. The bill was introduced in the State Senate by the Reverend Daniel Young, a Methodist preacher, but it received only three votes. Apparently the reform energy of the Republicans was, for that session, exhausted by the Judiciary and College Acts. The "Toleration Act" was not passed until three years later. (McClintock: History of New Hampshire, 507-29; also Barstow, 422.) This law is omitted from the published acts, although it is indexed.

[648] In his Message to the Legislature recommending reform laws for Dartmouth College, Governor Plumer denounced the provision of the charter relating to the Trustees as "hostile to the spirit and genius of a free government." (Barstow, 396.) This message Plumer sent to Jefferson, who replied that the idea "that institutions, established for the use of the nation, cannot be touched nor modified, even to make them answer their end ... is most absurd.... Yet our lawyers and priests generally inculcate this doctrine; and suppose that preceding generations ... had a right to impose laws on us, unalterable by ourselves; ... in fine, that the earth belongs to the dead, and not to the living." (Jefferson to Plumer, July 21, 1816, Plumer, 440-41.)

[649] Act of June 27, Laws of New Hampshire, 1816, 48-51; and see Lord, 687-90.

The temper of the Republicans is illustrated by a joint resolution adopted June 29, 1816, denouncing the increase of salaries of Senators and Representatives in Congress, which "presents the most inviting inducements to avarice and ambition," "will introduce a monopolizing power," and "contaminate our elections." (Act of June 27, Laws of New Hampshire, 1816, 65-66.)

[650] Journal, House of Representatives (N.H.), June 28, 1816, 238-41.

[651] Resolutions of the Trustees, Lord, 690-94.

[652] Lord, 96.

[653] "It is an important question and merits your serious consideration whether a law passed and approved by all the constituted authorities of the State shall be carried into effect, or whether a few individuals not vested with any judicial authority shall be permitted to declare your statutes dangerous and arbitrary, unconstitutional and void: whether a minority of the trustees of a literary institution formed for the education of your children shall be encouraged to inculcate the doctrine of resistance to the law and their example tolerated in disseminating principles of insubordination and rebellion against government." (Plumer's Message, Nov. 20, 1816, Lord, 103.)

[654] Acts of Dec. 18 and 26, 1816, (Laws of New Hampshire, 1816, 74-75; see also Lord, 104.)

[655] Lord, 111-12.

[656] Ib. 112-15.

[657] Ib. 115.

[658] Lord, 121. So few students went with the University that it dared not publish a catalogue. (Ib. 129.)

[659] Ib. 92.

[660] One of the many stories that sprang up in after years about Webster's management of the case is that, since the College was founded for the education of Indians and none of them had attended for a long time, Webster advised President Brown to procure two or three. Brown got a number from Canada and brought them to the river beyond which were the College buildings. While the party were rowing across, the young Indians, seeing the walls and fearing that they were to be put in prison, gave war whoops, sprang into the stream, swam to shore and fled. So Webster had to go on without them. (Harvey: Reminiscences and Anecdotes of Daniel Webster, 111-12.) There is not the slightest evidence to support this absurd tale. (Letters to the author from Eugene F. Clark, Secretary of Dartmouth College, and from Professor John K. Lord, author of History of Dartmouth College.)

[661] Lord, 99.

[662] Farrar, 1.

[663] These arguments are well worth perusal. (See Farrar, 28-206; also 65 N.H. Reports, 473-624.)

[664] For instance, Mason's argument, which is very compact, consists of forty-two pages of which only four are devoted to "the contract clause" of the National Constitution and the violation of it by the New Hampshire College Act. (Farrar, 28-70; 65 N.H. 473-502.)

[665] Farrar, 212-13; 65 N.H. 628-29.

[666] Farrar, 214-15; 65 N.H. 630.

[667] The contract clause.

[668] Farrar, 216; 65 N.H. 631.

[669] Farrar, 228-29; 65 N.H. 639.

[670] Farrar, 231; 65 N.H. 641.

[671] Farrar, 232; 65 N.H. 642.

[672] Farrar, 235.

[673] Ib.

[674] Webster was then thirty-six years of age.

[675] Goodrich's statement in Brown: Works of Rufus Choate: With a Memoir of his Life, i, 515.

[676] They were Rufus Greene Amory and George Black of Boston, David B. Ogden and "a Mr. Baldwin from New York," Thomas Sergeant and Charles J. Ingersoll of Philadelphia, John Wickham, Philip Norborne, Nicholas and Benjamin Watkins Leigh of Virginia, and John McPherson Berrien of Georgia. (Webster to Sullivan, Feb. 27, 1818, Priv. Corres.: Webster, i, 273.)

[677] Brown, i, 515. Story makes no comment on the argument of the Dartmouth case—a pretty sure sign that it attracted little attention in Washington. Contrast Story's silence as to this argument with his vivid description of that of M'Culloch vs. Maryland (infra, chap. vi). Goodrich attributes the scant attendance to the fact that the court sat "in a mean apartment of moderate size"; but that circumstance did not keep women as well as men from thronging the room when a notable case was to be heard or a celebrated lawyer was to speak. (See description of the argument of the case of the Nereid, supra, 133-34.)

[678] For example, in M'Culloch vs. Maryland, Luther Martin spoke for three days. (Webster to Smith, Feb. 28, 1819, Van Tyne, 80; and see infra, chap, vi.)

[679] See vol. iii, chap, iv, of this work.

[680] The College Trustees at first thought of employing Luther Martin to assist Webster in the Supreme Court (Brown to Kirkland, Nov. 15, 1817, as quoted by Warren in American Law Review, xlvi, 665). It is possible that Hopkinson was chosen instead, upon the advice of Webster, who kept himself well informed of the estimate placed by Marshall and the Associate Justices on lawyers who appeared before them. Marshall liked and admired Hopkinson, had been his personal friend for years, and often wrote him. When Peters died in 1828, Marshall secured the appointment of Hopkinson in his place. (Marshall to Hopkinson, March 16, 1827, and same to same [no date, but during 1828], Hopkinson MSS.)

[681] It was considered to be a "needless expense" to send the original counsel, Sullivan and Bartlett, to Washington. (Lord, 140.)

[682] Webster to McGaw, July 27, 1818, Van Tyne, 77.

[683] Shirley, 229-32. The fact that Holmes was employed plainly shows the influence of "practical politics" on the State officials and the Trustees of the University. The Board voted December 31, 1817, "to take charge of the case." Benjamin Hale, one of the new Trustees, was commissioned to secure other counsel if Holmes did not accept. Apparently Woodward was Holmes's champion: "I have thought him extremely ready ... [a] good lawyer, inferior to D. W. only in point of oratory." (Woodward to Hall, Jan. 18, 1818, Lord, 139-40.) Hardly had Hale reached Washington than he wrote Woodward: "Were you sensible of the low ebb of Mr. Holmes' reputation here, you would ... be unwilling to trust the cause with him." (Hale to Woodward, Feb. 15, 1818, ib. 139.)

[684] "It is late at night—the fag-end of a hard day's work. My eyes, hand and mind all tired.... I have been up till midnight, at work, every night, and still have my hands full.... I am now worn out ... extremely fatigued.... The Supreme Court is approaching. It will half kill you to hear that it will find me unprepared." (Wirt to Carr, Jan. 21, 1818, Kennedy, ii, 73-74.) Wirt had just become Attorney-General. Apparently he found the office in very bad condition. The task of putting it in order burdened him. He was compelled to do much that was not "properly [his] duty." (Ib. 73.) His fee in the Dartmouth College case did not exceed $500. (Hale to Plumer, Jan. 1818, Lord, 140.)

[685] "He seemed to treat this case as if his side could furnish nothing but declamation." (Webster to Mason, March 13, 1818, Priv. Corres.: Webster, i, 275.)

[686] Farrar, 241; 65 N.H. 596; 4 Wheaton, 534; and see Curtis, i, 163-66.

[687] Farrar, 242-44; 65 N.H. 597-98; 4 Wheaton, 556-57.

[688] Farrar, 244; 65 N.H. 598-99; 4 Wheaton, 558-59.

[689] Farrar, 248; 65 N.H. 600-01; 4 Wheaton, 563-64.

[690] Farrar, 255-56; 65 N.H. 605-06; 4 Wheaton, 567-68.

[691] Farrar, 258-59; 65 N.H. 607-08; 4 Wheaton, 571-72.

[692] Farrar, 260-61; 65 N.H. 609; 4 Wheaton, 571.

[693] In Terrett vs. Taylor, 9 Cranch, 45 et seq. Story delivered the unanimous opinion of the Supreme Court in this case. This fact was well known at the time of the passage of the College Acts; and, in view of it, there is difficulty in understanding how Story could have been expected to support the New Hampshire legislation. (See infra, 257.)

[694] Farrar, 262; 65 N.H. 609-10; 4 Wheaton, 574-75.

[695] Farrar, 273; 65 N.H. 617; 4 Wheaton, 588.

[696] Farrar, 246-47; 65 N.H. 598-600; 4 Wheaton, 557-59.

[697] See vol. iii, chap, x, of this work.

[698] Farrar, 273-74; 65 N.H. 618-19; 4 Wheaton, 591-92.

[699] Supra, 223.

[700] Farrar, 275; 65 N.H. 619; 4 Wheaton, 591.

[701] In Terrett vs. Taylor, see supra, footnote to 243.

[702] Farrar, 275; 65 N.H. 619; 4 Wheaton, 591. (Italics the author's.) It will be observed that Webster puts the emphasis upon "natural justice" and "fundamental laws" rather than upon the Constitutional point.

[703] Farrar, 276; 65 N.H. 619-20; 4 Wheaton, 592.

[704] Terrett vs. Taylor.

[705] Farrar, 277; 65 N.H. 620; 4 Wheaton, 592.

[706] Farrar, 280; 65 N.H. 622. The two paragraphs containing these statements of Webster are omitted in Wheaton's Reports.

[707] Farrar, 282-83; 65 N.H. 624; 4 Wheaton, 599.

[708] Brown, i, 516.

[709] Ib. 516-17. This scene, the movement and color of which grew in dignity and vividness through the innumerable repetitions of it, caught the popular fancy. Speeches, poems, articles, were written about the incident. It became one of the chief sources from which the idolaters of Webster drew endless adulation of that great man.

[710] See Brown, i, 517; Curtis, i, 169-71.

Chauncey Allen Goodrich was in his twenty-eighth year when he heard Webster's argument. He was sixty-three when he gave Choate the description which the latter made famous in his "Eulogy of Webster."

[711] Compare their arguments with Webster's. See Farrar 28-70; 104-61; 238-84.

[712] "Your notes I found to contain the whole matter. They saved me great labor; but that was not the best part of their service; they put me in the right path.... The only new aspect of the argument was produced by going into cases to prove these ideas, which indeed lie at the very bottom of your argument." (Webster to Smith, March 14, 1818, Priv. Corres.: Webster, i, 276-77; and see Webster to Mason, March 22, 1818, ib. 278.)

A year later, after the case had been decided, when the question of publishing Farrar's Report of all the arguments and opinions in the Dartmouth College case was under consideration, Webster wrote Mason: "My own interest would be promoted by preventing the Book. I shall strut well enough in the Washington Report, & if the 'Book' should not be published, the world would not know where I borrowed my plumes—But I am still inclined to have the Book—One reason is, that you & Judge Smith may have the credit which belongs to you." (Webster to Mason, April 10, 1819, Van Tyne, 80.)

Farrar's Report was published in August, 1819. It contains the pleadings and special verdict, the arguments of counsel, opinions, and the judgments in the State and National courts, together with valuable appendices. The Farrar Report is indispensable to those who wish to understand this celebrated case from the purely legal point of view.

[713] Story to Mason, Oct. 6, 1819, Story, i, 323.

[714] Webster to Mason, April 28, 1818, Priv. Corres.: Webster, I, 282-83. (Italics the author's.) In fact three such suits were brought early in 1818 on the ground of diverse citizenship. (Shirley, 2-3.) Any one of them would have enabled the Supreme Court to have passed on the "general principles" of contract and government. These cases, had they arrived on time, would have afforded Story his almost frantically desired opportunity to declare that legislation violative of contracts was against "natural right"—an opinion he fervently desired to give. But the wiser Marshall saw in the case, as presented to the Supreme Court on the contract guarantee of the Constitution, the occasion to declare, in effect, that these same fundamental principles are embraced in the contract clause of the written Constitution of the American Nation.

[715] Webster to Mason, March 13, 1818, Priv. Corres.: Webster, i, 275.

"Every body was grinning at the folly he uttered. Bell could not stand it. He seized his hat and went off." (Webster to Smith, March 14, 1818, ib. 277; and see Webster to Brown, March 11, 1818, Van Tyne, 75-76.)

Holmes "has attempted as a politician ... such a desire to be admired by everybody, that he has ceased for weeks to be regarded by anybody.... In the Dartmouth College Cause, he sunk lower at the bar than he had in the Hall of Legislature." (Daggett to Mason, March 18, 1818, Hillard: Memoir and Correspondence of Jeremiah Mason, 199.)

The contempt of the legal profession for Holmes is shown by the fact that in Farrar's Report but four and one half pages are given to his argument, while those of all other counsel for Woodward (Sullivan and Bartlett in the State court and Wirt in the Supreme Court) are published in full.

[716] "He made an apology for himself, that he had not had time to study the case, and had hardly thought of it, till it was called on." (Webster to Mason, March 13, 1818, Priv. Corres.: Webster, i, 275-76.)

[717] "Before he concluded he became so exhausted ... that he was obliged to request the Court to indulge him until the next day." (Boston Daily Advertiser, March 23, 1818.)

"Wirt ... argues a good cause well. In this case he said more nonsensical things than became him." (Webster to Smith, March 14, 1818, Priv. Corres.: Webster, i, 277.)

[718] Hopkinson wrote this anthem when Marshall returned from France. (See vol. ii, 343, of this work.)

[719] This description of Hopkinson is from Philadelphia according to traditions gathered by the author.

[720] Choate says that Webster called to his aid "the ripe and beautiful culture of Hopkinson." (Brown, i, 514.)

[721] The same was true of Hopkinson's argument for Chase. (See vol. iii, chap. iv, of this work.)

[722] Webster to Brown, March 11, 1818, Van Tyne, 75-76.

After Hopkinson's argument Webster wrote Brown: "Mr. Hopkinson understood every part of the cause, and in his argument did it great justice." (Webster to Brown, March 13, 1818, Priv. Corres.: Webster, I, 274; and see Webster to Mason, March 13, 1818, ib. 275-76.)

"Mr. Hopkinson closed the cause for the College with great ability, and in a manner which gave perfect satisfaction and delight to all who heard him." (Boston Daily Advertiser, March 23, 1818.)

It was expected that the combined fees of Webster and Hopkinson would be $1000, "not an unreasonable compensation." (Marsh to Brown, Nov. 22, 1817, Lord, 139.) Hopkinson was paid $500. (Brown to Hopkinson, May 4, 1819, Hopkinson MSS.)

At their first meeting after the decision, the Trustees, "feeling the inadequacy" of the fees of all the lawyers for the College, asked Mason, Smith, Webster, and Hopkinson to sit for their portraits by Gilbert Stuart, the artist to be paid by the Trustees. (Shattuck to Hopkinson, Jan. 4, 1835, enclosing resolution of the Trustees, April 4, 1819, attested by Miles Olcott, secretary, Hopkinson MSS.; also, Webster to Hopkinson, May 9, 1819, ib.)

[723] Webster to Smith, March 14, 1818, Priv. Corres.: Webster, i, 577.

[724] Many supposed that Story was undecided, perhaps opposed to the College. In fact, he was as decided as Marshall. (See infra, 257-58, 275 and footnote.)

[725] Webster to Smith, March 14, 1818, Priv. Corres.: Webster, i, 577.

[726] For example, William Wirt, Monroe's Attorney-General, in urging the appointment of Kent, partisan Federalist though he was, to the Supreme Bench to succeed Justice Livingston, who died March 19, 1823, wrote that "Kent holds so lofty a stand everywhere for almost matchless intellect and learning, as well as for spotless purity and high-minded honor and patriotism, that I firmly believe the nation at large would approve and applaud the appointment." (Wirt to Monroe, May 5, 1823, Kennedy, ii, 153.)

[727] Kent to Marsh, Aug. 26, 1818, Shirley, 263. Moreover, in 1804, Kent, as a member of the New York Council of Revision, had held that "charters of incorporation containing grants of personal and municipal privileges were not to be essentially affected without the consent of the parties concerned." (Record of Board, as quoted in ib. 254.)

[728] Shirley, 253. Shirley says that Kent "agreed to draw up an opinion for Johnson in this case."

[729] Webster to Story, Sept. 9, 1818, Priv. Corres.: Webster, i, 287.

[730] Lord, 143.

[731] "The folks in this region are frightened.... It is ascertained that Judge Story ... is the original framer of the law.... They suppose that on this account the cause is hopeless before the Sup. Ct. of U.S. This is, however, report." (Murdock to Brown, Dec. 27, 1817, ib. 142.)

Murdock mentions Pickering as one of those who believed the rumors about Story. This explains much. The soured old Federalist was an incessant gossip and an indefatigable purveyor of rumors concerning any one he did not like, provided the reports were bad enough for him to repeat. He himself would, with great facility, apply the black, if the canvas were capable of receiving it; and he could not forget that Story, when a young man, had been a Republican.

[732] Hopkinson to Marsh, Dec. 31, 1817, Shirley, 274-75.

[733] This is principally the work of John M. Shirley in his book Dartmouth College Causes and the Supreme Court of the United States. The volume is crammed with the results of extensive research, strange conglomeration of facts, suppositions, inferences, and insinuations, so inextricably mingled that it is with the utmost difficulty that the painstaking student can find his way.

Shirley leaves the impression that Justices Johnson and Livingston were improperly worked upon because they consulted Chancellor Kent. Yet the only ground for this is that Judge Marsh sent Webster's argument to Kent, who was Marsh's intimate friend; and that the Reverend Francis Brown, President of Dartmouth, went to see Kent, reported that his opinion was favorable to the College, and that the effect of this would be good upon Johnson and Livingston.

From the mere rumor, wholly without justification, that Story was at first against the College—indeed, had drawn the College Acts (for so the rumor grew, as rumors always grow)—Shirley would have us believe, without any evidence whatever, that some improper influence was exerted over Story.

Because Webster said that there was something "left out" of the report of his argument, Shirley declares that for a whole hour Webster spoke as a Federalist partisan in order to influence Marshall. (Shirley, 237.) But such an attempt would have been resented by every Republican member of the court and, most of all, by Marshall himself. Moreover, Marshall needed no such persuasion, nor, indeed, persuasion of any kind. His former opinions showed where he stood; so did the views which he had openly and constantly avowed since he was a member of the Virginia House of Burgesses in 1783. The something "left out" of Webster's reported argument was, of course, his extemporaneous and emotional peroration described by Goodrich.

These are only a very few instances of Shirley's assumptions. Yet, because of the mass of data his book contains, and because of the impossibility of getting out of them a connected narrative without the most laborious and time-consuming examination, together with the atmosphere of wrongdoing with which Shirley manages to surround the harried reader, his volume has had a strong and erroneous effect upon general opinion.

[734] Hopkinson to Webster, Nov. 17, 1818, Priv. Corres.: Webster, i, 288-89. "I suppose he expects to do something very extraordinary in it, as he says Mr. Wirt 'was not strong enough for it, has not back enough.'" (Ib. 289.)

[735] Both Hopkinson and Webster resolved to prevent Pinkney from making his anticipated argument. (Ib.)

[736] Not only did Pinkney master the law of the case, but, in order to have at his command every practical detail of the controversy, he kept Cyrus Perkins, who succeeded Woodward, deceased, as Secretary of the University Trustees, under continuous examination for an entire week. Perkins knew every possible fact about the College controversy and submitted to Pinkney the whole history of the dispute and also all documents that could illuminate the subject. "Dr. Perkins had been a week at Baltimore, conferring with Mr. Pinkney." (Webster to Mason, Feb. 4, 1819, Hillard, 213; and see Shirley, 203.)

[737] This fact was unknown to anybody but the Justices themselves. "No public or general opinion seems to be formed of the opinion of any particular judge." (Webster to Brown, Jan. 10, 1819, Priv. Corres.: Webster, i, 299.)

[738] "On Tuesday morning, he [Pinkney] being in court, as soon as the judges had taken their seats, the Chief Justice said that in vacation the judges had formed opinions in the College case. He then immediately began reading his opinion, and, of course, nothing was said of a second argument." (Webster to Mason, Feb. 4, 1819, Hillard, 213.)

[739] 4 Wheaton, 625.

[740] Ib. 626-27.

[741] 4 Wheaton, 627.

[742] Ib. 627-28.

[743] 4 Wheaton, 629-30.

[744] Ib. 630.

[745] Ib. 631-34. The statement of facts and of the questions growing out of them was by far the best work Marshall did. In these statements he is as brief, clear, and pointed as, in his arguments, he is prolix, diffuse, and repetitious.

[746] Ib. 634.

[747] 4 Wheaton, 635-36.

[748] Ib. 636.

[749] 4 Wheaton, 637.

[750] 4 Wheaton, 638-39.

[751] Ib. 639-40.

[752] 4 Wheaton, 640-41.

[753] Ib. 641.

[754] Ib. 642-43.

[755] 4 Wheaton, 643.

[756] 4 Wheaton, 644.

[757] 4 Wheaton. 645.

[758] Ib. 646-47.

[759] 4 Wheaton, 647-48.

[760] Ib. 650.

[761] Ib. 651.

[762] 4 Wheaton, 652-53.

[763] Ib. 654.

[764] Webster "in court" to his brother, Feb. 2, 1819, Priv. Corres. Webster, i, 300.

[765] Webster to Brown, Feb. 2, 1819, ib.

[766] Webster to Mason, Feb. 4, 1819, Hillard, 213-14. Webster adds: "Some of the other judges, I am told, have drawn opinions with more reference to authorities." (Ib. 214.)

[767] Hopkinson to Brown, Feb. 2, 1819, Priv. Corres.: Webster, i, 301.

[768] Webster to Mason, April 13, 1819, Hillard, 223.

[769] Marshall to Story, May 27, 1819, Proceedings, Mass. Hist. Soc. 2d Series, xiv, 324-25.

[770] 4 Wheaton, 666-713.

[771] Livingston to Story, Jan. 24, 1819, Story, i, 323. This important letter discredits the rumor that Story at first thought the College Acts valid.

Story sent copies of his opinion to eminent men other than his associates on the Supreme Bench, among them William Prescott, father of the historian, a Boston lawyer highly esteemed by the leaders of the American bar. "I have read your opinion with care and great pleasure," writes Prescott. "In my judgment it is supported by the principles of our constitutions, and of all free governments, as well as by the authority of adjudged cases. As one of the public, I thank you for establishing a doctrine affecting so many valuable rights and interests, with such clearness and cogency of argument, and weight of authority as must in all probability prevent its ever being again disturbed, I see nothing I should wish altered in it. I hope it will be adopted without diminution or subtraction. You have placed the subject in some strong, and to me, new lights, although I had settled my opinion on the general question years ago." (Prescott to Story, Jan. 9, 1819, ib. 324.)

[772] For instance, the watchful Niles does not even mention it in his all-seeing and all-recording Register. Also see Warren, 377.

[773] North American Review (1820), x, 83.

[774] Fiske: Essays, Historical and Literary, i, 379.

[775] Maine: Popular Government, 248.

[776] Story to Kent, Aug. 21, 1819, Story, i, 331.

[777] See Cooley: Constitutional Limitations (6th ed.), footnote to 335.

[778] Butchers' Union, etc. vs. Crescent City, etc. 111 U.S. 750.

[779] Beer Company vs. Massachusetts, 97 U.S. 25; and see Fertilizing Co. vs. Hyde Park, ib. 659.

[780] Stone vs. Mississippi, October, 1879, 11 Otto (101 U.S.) 816.

[781] The Binghamton Bridge, December, 1865, 3 Wallace, 73.

[782] Pearsall vs. Great Northern Railway, 161 U.S. 660.

[783] More has been written of Marshall's opinion in this case than of any other delivered by him except that in Marbury vs. Madison.

For recent discussions of the subject see Russell: "Status and Tendencies of the Dartmouth College Case," Am. Law Rev. xxx, 322-56, an able, scholarly, and moderate paper; Doe: "A New View of the Dartmouth College Case," Harvard Law Review, vi, 161-81, a novel and well-reasoned article; Trickett: "The Dartmouth College Paralogism," North American Review, xl, 175-87, a vigorous radical essay; Hall: "The Dartmouth College Case," Green Bag, xx, 244-47, a short but brilliant attack upon the assailants of Marshall's opinion; Jenkins: "Should the Dartmouth College Decision be Recalled," Am. Law Rev. li, 711-51, a bright, informed, and thorough treatment from the extremely liberal point of view. A calm, balanced, and convincing review of the effect of the Dartmouth decision on American economic and social life is that of Professor Edward S. Corwin in his Marshall and the Constitution, 167-72. When reading these comments, however, the student should, at the same time, carefully reëxamine Marshall's opinion.

[Pg 282]



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

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

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

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

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

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

Associate Justices sitting with Marshall in the case of M'Culloch versus Maryland Associate Justices sitting with Marshall in the case of M'Culloch versus Maryland: STORY, JOHNSON, WASHINGTON, DUVAL, LIVINGSTON, TODD

Like most of the controversies in which Marshall's Constitutional opinions were pronounced, M'Culloch [Pg 283] vs. Maryland came before the Supreme Court on an agreed case. The facts were that Congress had authorized the incorporation of the second Bank of the United States; that this institution had instituted a branch at Baltimore; that the Legislature of Maryland had passed an act requiring all banks, established "without authority from the state," to issue notes only on stamped paper and only of certain denominations, or, in lieu of these requirements, only upon the payment of an annual tax of fifteen thousand dollars; that, in violation of this law, the Baltimore branch of the National Bank continued to issue its notes on unstamped paper without paying the tax; and that on May 8, 1818, John James, "Treasurer of the Western Shore," had sued James William M'Culloch, the cashier of the Baltimore branch, for the recovery of the penalties prescribed by the Maryland statute.[784]

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

At no time in this notable session of the Supreme Court was the basement room, where its sittings[Pg 284] were now again held, so thronged with auditors as it was when the argument in M'Culloch vs. Maryland took place. "We have had a crowded audience of ladies and gentlemen," writes Story toward the close of the nine days of discussion. "The hall was full almost to suffocation, and many went away for want of room."[785]

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

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

Maryland was represented by Luther Martin, still Attorney-General for that State, then seventy-five years old, but a strong lawyer despite his half-[Pg 285]century, at least, of excessive drinking. By his side was Joseph Hopkinson of Philadelphia, now fifty years of age, one of the most learned men at the American bar. With Martin and Hopkinson was Walter Jones of Washington, who appears to have been a legal genius, his fame obliterated by devotion to his profession and unaided by any public service, which so greatly helps to give permanency to the lawyer's reputation. All told, the counsel for both sides in M'Culloch vs. Maryland were the most eminent and distinguished in the Republic.

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

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

Joseph Hopkinson, as usual, made a superb argu[Pg 286]ment—a performance all the more admirable as an intellectual feat in that, as an advocate for Maryland, his convictions were opposed to his reasoning.[791] Walter Jones was as thorough as he was lively, but he did little more than to reinforce the well-nigh perfect argument of Hopkinson.[792] On the same side the address of Luther Martin deserves notice as the last worthy of remark which that great lawyer ever made. Old as he was, and wasted as were his astonishing powers, his argument was not much inferior to those of Webster, Hopkinson, and Pinkney. Martin showed by historical evidence that the power now claimed for Congress was suspected by the opponents of the Constitution, but denied by its supporters and called "a dream of distempered jealousy." So came the Tenth Amendment; yet, said Martin, now, "we are asked to engraft upon it [the Constitution] powers ... which were disclaimed by them [the advocates of the Constitution], and which, if they had been fairly avowed at the time, would have prevented its adoption."[793]

Could powers of Congress be inferred as a necessary means to the desired end? Why, then, did the Constitution expressly confer powers which, of necessity, must be implied? For instance, the power to declare war surely implied the power to raise armies; and yet that very power was granted in specific terms. But the power to create corporations "is not expressly delegated, either as an end or a means of national government."[794][Pg 287]

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

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

Indeed, all the lawyers in this memorable contest appear to have surpassed their previous efforts at[Pg 288] the bar. Marshall, in his opinion, pays this tribute to all their addresses: "Both in maintaining the affirmative and the negative, a splendor of eloquence, and strength of argument seldom, if ever, surpassed, have been displayed."[798]

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

Four days before the Bank argument opened in the Supreme Court, the House took up the resolution offered by James Johnson of Virginia to repeal the Bank's charter.[803] The debate over this proposal continued until February 25, the third day of the argument in M'Culloch vs. Maryland. How, asked Johnson, had the Bank fulfilled expectations and promises? "What ... is our condition? Surrounded by one universal gloom. We are met by the tears of the widow and the orphan."[804] Madison has "cast a shade" on his reputation by signing the Bank Bill[Pg 289]—that "act of usurpation." Under the common law the charter "is forfeited."[805]

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

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

On March 6, 1819, before a few spectators, mostly lawyers with business before the court, Marshall read his opinion. It is the misfortune of the biographer that only an abstract can be given of this epochal state paper—among the very first of the greatest judicial utterances of all time.[810] It was de[Pg 290]livered only three days after Pinkney concluded his superb address.

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

The opening words of Marshall are majestic: "A sovereign state denies the obligation of a law ... of the Union.... The constitution of our country, in its most ... vital parts, is to be considered; the conflicting powers of the government of the Union and of its[Pg 291] members, ... are to be discussed; and an opinion given, which may essentially influence the great operations of the government."[812] He cannot "approach such a question without a deep sense of ... the awful responsibility involved in its decision. But it must be decided peacefully, or remain a source of hostile legislation, perhaps of hostility of a still more serious nature."[813] In these solemn words the Chief Justice reveals the fateful issue which M'Culloch vs. Maryland foreboded.

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

The first Congress passed the act to incorporate a National bank. The whole subject was at the time debated exhaustively. "The bill for incorporating the bank of the United States did not steal upon an unsuspecting legislature, & pass unobserved," says Marshall. Moreover, it had been carefully examined with "persevering talent" in Washington's Cabinet. When that act expired, "a short experience of the embarrassments" suffered by the country "induced the passage of the present law." He must be intrepid, indeed, who asserts that "a measure adopted under[Pg 292] these circumstances was a bold and plain usurpation, to which the constitution gave no countenance."[814]

But Marshall examines the question as though it were "entirely new"; and gives an historical account of the Constitution which, for clearness and brevity, never has been surpassed.[815] Thus he proves that "the government proceeds directly from the people; ... their act was final. It required not the affirmance, and could not be negatived, by the state governments. The constitution when thus adopted ... bound the state sovereignties." The States could and did establish "a league, such as was the confed[Pg 293]eration.... But when, 'in order to form a more perfect union,' it was deemed necessary to change this alliance into an effective government, ... acting directly on the people," it was the people themselves who acted and established a fundamental law for their government.[816]

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

To be sure, the States, as well as the Nation, have certain powers, and therefore "the supremacy of their respective laws, when they are in opposition, must be settled." Marshall proceeds to settle that basic question. The National Government, he begins, "is supreme within its sphere of action. This would[Pg 294] seem to result necessarily from its nature." For "it is the government of all; its powers are delegated by all; it represents all, and acts for all. Though any one state may be willing to control its operations, no state is willing to allow others to control them. The nation, on those subjects on which it can act, must necessarily bind its component parts." Plain as this truth is, the people have not left the demonstration of it to "mere reason"—for they have, "in express terms, decided it by saying" that the Constitution, and the laws of the United States which shall be made in pursuance thereof, "shall be the supreme law of the land," and by requiring all State officers and legislators to "take the oath of fidelity to it."[819]

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

The very "nature" of a constitution, "therefore[Pg 295] requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves." In deciding such questions "we must never forget," reiterates Marshall, "that it is a constitution we are expounding."[820]

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

At this point Marshall's language becomes as exalted as that of the prophets: "Throughout this vast republic, from the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be[Pg 296] marched and supported. The exigencies of the nation may require that the treasure raised in the north should be transported to the south, that raised in the east conveyed to the west, or that this order should be reversed." Here Marshall the soldier is speaking. There is in his words the blast of the bugle of Valley Forge. Indeed, the pen with which Marshall wrote M'Culloch vs. Maryland was fashioned in the army of the Revolution.[822]

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

Resorting to his favorite method in argument, that of repetition, Marshall again asserts that the fact that "the power of creating a corporation is one appertaining to sovereignty and is not expressly conferred on Congress," does not take that power from Congress. If it does, Congress, by the same reasoning, would be denied the power to pass most laws; since "all legislative powers appertain to sovereignty." They who say that Congress may not select "any appropriate means" to carry out its[Pg 297] admitted powers, "take upon themselves the burden of establishing that exception."[824]

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

In answering the old Jeffersonian argument that,[829] under the "necessary and proper" clause, Congress can adopt only those means absolutely "necessary"[Pg 298] to the execution of express powers, Marshall devotes an amount of space which now seems extravagant. But in 1819 the question was unsettled and acute; indeed, the Republicans had again made it a political issue. The Chief Justice repeats the arguments made by Hamilton in his opinion to Washington on the first Bank Bill.[830]

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

Did the framers of the Constitution intend to forbid Congress to employ "any" means "which might be appropriate, and which were conducive to the end"? Most assuredly not! "The subject is the execution of those great powers on which the welfare of a nation essentially depends." The "necessary and proper" clause is found "in a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.... To have declared that the best means shall not be used, but those alone without which[Pg 299] the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances."[832]

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

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

"Take, for example, the power 'to establish post-offices and post-roads.' This power is executed by the single act of making the establishment. But, from this has been inferred the power and duty of carrying the mail along the post-road, from one post-office to another. And, from this implied power, has again been inferred the right to punish those who steal letters from the post-office, or rob the mail. It may be said, with some plausibility, that the right to carry the mail, and to punish those who rob it, is not indispensably necessary to the establishment of a post-office and post-road. This right is indeed essential to the beneficial exercise of the power, but not indispensably necessary to its[Pg 300] existence. So, of the punishment of the crimes of stealing or falsifying a record or process of a court of the United States, or of perjury in such court. To punish these offenses is certainly conducive to the due administration of justice. But courts may exist, and may decide the causes brought before them, though such crimes escape punishment.

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

To attempt to prove that Congress might execute its powers without the use of other means than those absolutely necessary would be "to waste time and argument," and "not much less idle than to hold a lighted taper to the sun." It is futile to speculate upon imaginary reasons for the "necessary and proper" clause, since its purpose is obvious. It "is placed among the powers of Congress, not among the limitations on those powers. Its terms purport[Pg 301] to enlarge, not to diminish the powers vested in the government.... If no other motive for its insertion can be suggested, a sufficient one is found in the desire to remove all doubts respecting the right to legislate on the vast mass of incidental powers which must be involved in the constitution, if that instrument be not a splendid bauble."[835]

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

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

The fact that there were State banks with whose business the National Bank might interfere, had nothing to do with the question of the power of Congress to establish the latter. The National[Pg 302] Government does not depend on State Governments "for the execution of the great powers assigned to it. Its means are adequate to its ends." It can choose a National bank rather than State banks as an agency for the transaction of its business; "and Congress alone can make the election."

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

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

"The States," argues Marshall, "are expressly forbidden" to tax imports and exports. This being so, "the same paramount character would seem to restrain, as it certainly may restrain, a state from such other exercise of this [taxing] power, as is in[Pg 303] its nature incompatible with, and repugnant to, the constitutional laws of the Union. A law, absolutely repugnant to another, as entirely repeals that other as if express terms of repeal were used."

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

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

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

"This great principle is that the constitution and the laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective states, and cannot be controlled by them. From this, which may be almost termed an axiom,[Pg 304] other propositions are deduced as corollaries, on the truth or error of which ... the cause is supposed to depend."[840]

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

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

It is "too obvious to be denied," continues Marshall that, if permitted to exercise the power, the States can tax the Bank "so as to destroy it." The power of taxation is admittedly "sovereign"; but the taxing power of the States "is subordinate to, and may be controlled by the constitution of the United States. How far it has been controlled by that instrument must be a question of construction. In[Pg 305] making this construction, no principle not declared can be admissible, which would defeat the legitimate operations of a supreme government. It is of the very essence of supremacy to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments as to exempt its own operations from their own influence. This effect need not be stated in terms. It is so involved in the declaration of supremacy, so necessarily implied in it, that the expression of it could not make it more certain. We must, therefore, keep it [the principle of National supremacy] in view while construing the constitution."[843]

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

Regardless of this fact, however, can States tax instrumentalities of the National Government? It cannot be denied, says Marshall, that "the power to tax involves the power to destroy; that the power to destroy may defeat ... the power to create; that there is a plain repugnance, in conferring on one government a power to control the constitutional measures of another, which other, with respect to[Pg 306] those very measures, is declared to be supreme over that which exerts the control."[845]

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

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

The State Rights theory is "capable of arresting all the measures of the government, and of prostrating it at the foot of the states." Instead of the National Government being "supreme," as the Constitution declares it to be, "supremacy" would be transferred "in fact, to the states"; for, "if the[Pg 307] states may tax one instrument, employed by the government in the execution of its powers, they may tax any and every other instrument. They may tax the mail; they may tax the mint; they may tax patent-rights; they may tax the papers of the custom-house; they may tax judicial process; they may tax all the means employed by the government, to an excess which would defeat all the ends of government. This was not intended by the American people. They did not design to make their government dependent on the states."

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

Maryland had argued that, since the taxing power is, at least, "concurrent" in the State and National Governments, the States can tax a National bank as fully as the Nation can tax State banks. But, remarks Marshall, "the two cases are not on the same reason." The whole American people and all the States are represented in Congress; when they tax State banks, "they tax their constituents; and these taxes must be uniform. But, when a state taxes the operations of the government of the United States, it acts upon institutions created, not by their own constituents, but by people over whom they claim no control. It acts upon the measures of a[Pg 308] government created by others as well as themselves, for the benefit of others in common with themselves.

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

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

In effect John Marshall thus rewrote the fundamental law of the Nation; or, perhaps it may be more accurate to say that he made a written instrument a living thing, capable of growth, capable of keeping pace with the advancement of the American people and ministering to their changing necessities. This greatest of Marshall's treatises on government may well be entitled the "Vitality of the Constitution." Story records that Marshall's opinion aroused great[Pg 309] political excitement;[850] and no wonder, since the Chief Justice announced, in principle, that Congress had sufficient power to "emancipate every slave in the United States" as John Randolph declared five years later.[851]

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

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

In the first issue of the Register, after Marshall's opinion was delivered, Niles began an attack upon it that was to spread all over the land. "A deadly blow has been struck at the sovereignty of the states, and from a quarter so far removed from the people as to be hardly accessible to public opinion," he[Pg 310] wrote. "The welfare of the union has received a more dangerous wound than fifty Hartford conventions ... could inflict." Parts of Marshall's opinion are "incomprehensible. But perhaps, as some people tell us of what they call the mysteries of religion, the common people are not to understand them, such things being reserved only for the priests!!"[852]

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

It is "more important than any ever before pronounced by that exalted tribunal—a tribunal so far removed from the people, that some seem to regard it with a species of that awful reverence in which the inhabitants of Asia look up to their princes."[855] This exasperated sentence shows the change that Marshall, during his eighteen years on the bench, had wrought in the standing and repute of the Supreme Court.[856] The doctrines of the Chief Justice amount to this, said Niles—"congress may grant monopolies" at will, "if the price is paid for them, or without any pecuniary consideration at all." As for[Pg 311] the Chief Justice personally, he "has not added ... to his stock of reputation by writing it—it is excessively labored."[857]

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

In number after number of his Register Niles, pours his wrath on Marshall's matchless interpretation. It is "far more dangerous to the union and happiness of the people of the United States than ... foreign invasion.[859] ... Certain nabobs in Boston, New York, Philadelphia and Baltimore, ... to secure the passage of an act of incorporation, ... fairly purchase the souls of some members of the national legislature with money, as happened in Georgia, or secure the votes of others by making them stockholders, as occurred in New York, and the act is passed.[860]... We call upon the people, the honest people, who hate monopolies and privileged orders, to arise in their strength and purge our political temple of the money-changers and those who sell doves—causing a reversion to the original purity of our system of government,[Pg 312] that the faithful centinel may again say, 'All's Well!'"[861]

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

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

No sooner had Marshall returned to Richmond than he got wind of the coming assault upon him. On March 23, 1819, the Enquirer published his opinion in full. The next day the Chief Justice wrote Story: "Our opinion in the Bank case has aroused the sleeping spirit of Virginia, if indeed it ever sleeps.[Pg 313] It will, I understand, be attacked in the papers with some asperity, and as those who favor it never write for the publick it will remain undefended & of course be considered as damnably heretical."[864] He had been correctly informed. The attack came quickly.

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

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

Niles had spoken to "the plain people"; Roane is now addressing the lawyers and judges of the country. His essay is almost wholly a legal argument.[Pg 314] It is based on the Virginia Resolutions of 1799 and gives the familiar State Rights arguments, applying them to Marshall's opinion.[867] In his second article Roane grows vehement, even fiery, and finally exclaims that Virginia "never will employ force to support her doctrines till other measures have entirely failed."[868]

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


Even Marshall, a political and judicial veteran in his sixty-fifth year, was perturbed. "The opinion in the Bank case continues to be denounced by the democracy in Virginia," he writes Story, after the second of Roane's articles appeared. "An effort is certainly making to induce the legislature which will meet in December to take up the subject & to pass resolutions not very unlike those which were called forth by the alien & sedition laws in[Pg 315] 1799. Whether the effort will be successful or not may perhaps depend in some measure on the sentiments of our sister states. To excite this ferment the opinion has been grossly misrepresented; and where its argument has been truly stated it has been met by principles one would think too palpably absurd for intelligent men.

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

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

Are the people prepared "to give carte blanche to our federal rulers"? asked Hampden. Amendment of the Constitution by judicial interpretation is taking the place of amendment by the people. Infamous as the methods of National judges had been during the administration of Adams, "the most abandoned of our rulers," Marshall and his associates have done worse. They have given "a[Pg 316] general letter of attorney to the future legislators of the Union.... That man must be a deplorable idiot who does not see that there is no ... difference" between an "unlimited grant of power and a grant limited in its terms, but accompanied with unlimited means of carrying it into execution.... The crisis is one which portends destruction to the liberties of the American people." Hampden scoldingly adds: "If Mason or Henry could lift their patriot heads from the grave, ... they would almost exclaim, with Jugurtha, 'Venal people! you will soon perish if you can find a purchaser.'"[872]

For three more numbers Hampden pressed the Republican assault on Marshall's opinion. The Constitution is a "compact, to which the States are the parties." Marshall's argument in the Virginia Convention of 1788 is quoted,[873] and his use of certain terms in his "Life of Washington" is cited.[874] If the powers of the National Government ought to be enlarged, "let this be the act of the people, and not that of subordinate agents."[875] The opinion of the Chief Justice repeatedly declares "that the general government, though limited in its powers, is supreme." Hampden avows that he does "not understand this jargon.... The people only are supreme.[876]... Our general government ... is as much a ... 'league' as was the former confederation." Therefore, the[Pg 317] Virginia Court of Appeals, in Hunter vs. Fairfax, declared an act of Congress "unconstitutional, although it had been sanctioned by the opinion of the Supreme Court of the United States." Pennsylvania, too, had maintained its "sovereignty."[877]

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

That he had no faith in his own theory is proved by the rather dismal fact that, more than two months before Marshall "violated the Constitution" and "endangered the liberties" of the people by his Bank decision, Roane actually arranged for the purchase, as an investment for his son, of $4900 worth of the shares of the Bank of the United States, and actually made the investment.[880] This transaction, consummated even before the argument[Pg 318] in M'Culloch vs. Maryland, shows that Roane, the able lawyer, was sure that Marshall would and ought to sustain the Bank in its controversy with the States that were trying to destroy it. Moreover, Dr. John Brockenbrough, President of the Bank of Virginia, actually advised the investment.[881]

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

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

On June 28, 1819, the Chief Justice writes Washington: "I expected three numbers would have concluded my answer to Hampden but I must write two others which will follow in a few days. If the publication has not commenced I could rather wish[Pg 319] the signature to be changed to 'A Constitutionalist.' A Friend of the Constitution is so much like a Friend of the Union that it may lead to some suspicion of identity.... I hope the publication has commenced unless the Editor should be unwilling to devote so much of his paper to this discussion. The letters of Amphyction & of Hampden have made no great impression in Richmond but they were designed for the country [Virginia] & have had considerable influence there. I wish the refutation to be in the hands of some respectable members of the legislature as it may prevent some act of the assembly [torn—probably "both"] silly & wicked. If the publication be made I should [like] to have two or three sets of the papers to hand if necessary. I will settle with you for the printer."[883]

The reading of Marshall's newspaper effort is exhausting; a summary of the least uninteresting passages will give an idea of the whole paper. The articles published in the Enquirer were intended, so he wrote, to inflict "deep wounds on the constitution," are full of "mischievous errours," and are merely new expressions of the old Virginia spirit of hostility to the Nation. The case of M'Culloch vs. Maryland serves only as an excuse "for once more agitating the publick mind, and reviving those unfounded jealousies by whose blind aid ambition climbs the ladder of power."[884][Pg 320]

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

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

When the biographer searches the daily life of a[Pg 321] man so surpassingly great and good as Marshall, he hopes in no ungenerous spirit to find some human frailty that identifies his hero with mankind. The Greeks did not fail to connect their deities with humanity. The leading men of American history have been ill-treated in this respect—for a century they have been held up to our vision as superhuman creatures to admire whom was a duty, to criticize whom was a blasphemy, and to love or understand whom was an impossibility.

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

When Marshall saw, in print, this controversial product of his pen, he was disappointed and depressed. The editor had, he avowed, so confused the manuscript that it was scarcely intelligible. At[Pg 322] any rate, Marshall did not want his defense reproduced in New England. Story had heard of the article in the Union, and wrote Marshall that he wished to secure the publication of it. The Chief Justice replied:

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

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

It appears that Story insisted on having at least Marshall's rejoinder to Roane's first article reproduced in the Boston press. Again the Chief Justice evades the request of his associate and confidant:[Pg 323] "I do not think a republication of the piece you mention in the Boston papers to be desired, as the antifederalism of Virginia will not, I trust, find its way to New England. I should also be sorry to see it in Mr. Wheaton's[889] appendix because that circumstance might lead to suspicions regarding the author & because I should regret to see it republished in its present deranged form with the two centres transposed."[890]

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

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

Promptly a resolution against Marshall's opinion[Pg 324] was offered in the House of Delegates.[893] This noteworthy paper was presented by Andrew Stevenson, a member of the "committee for Courts of Justice."[894] The resolutions declared that the doctrines of M'Culloch vs. Maryland would "undermine the pillars of the Constitution itself." The provision giving to the judicial power "all cases arising under the Constitution" did not "extend to questions which would amount to a subversion of the constitution itself, by the usurpation of one contracting party on another." But Marshall's opinion was calculated to "change the whole character of the government."[895]

Sentences from the opinion of the Chief Justice are quoted, including the famous one: "Let the end be legitimate, ... and all the means which are appropriate, ... which are not prohibited, ... are constitutional." Did not such expressions import that Congress could "conform the constitution to their own designs" by the exercise of "unlimited and uncontrouled" power? The ratifying resolution of the Constitution by the Virginia Convention of 1788 is quoted.[896] Virginia's voice had been heard to the same effect in the immortal Resolutions of 1799. Her views had been endorsed by the country[Pg 325] in the Presidential election of 1800—that "great revolution of principle." Her Legislature, therefore, "enter their most solemn protest, against the decision of the supreme court, and of the principles contained in it."

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

At this point Slavery and Secession enter upon the scene. Almost simultaneously with the introduction of the resolutions denouncing Marshall and the Supreme Court for the judgment and opinion in M'Culloch vs. Maryland, other resolutions were offered by a member of the House named Baldwin denouncing the imposition of restrictions on Missouri (the prohibition of slavery) as a condition of admitting that Territory to the Union. Such action by Congress would "excite feelings eminently hostile to the fraternal affection and prudent forbearance which ought ever to pervade the confederated union."[898] Two days later, December 30, the same[Pg 326] delegate introduced resolutions to the effect that only the maintenance of the State Rights principle could "preserve the confederated union," since "no government can long exist which lies at the mercy of another"; and, inferentially, that Marshall's opinion in M'Culloch vs. Maryland had violated that principle.[899]

A yet sterner declaration on the Missouri question quickly followed, declaring that Congress had no power to prohibit slavery in that State, and that "Virginia will support the good people of Missouri in their just rights ... and will co-operate with them in resisting with manly fortitude any attempt which Congress may make to impose restraints or restrictions as the price of their admission" to the Union.[900] The next day these resolutions, strengthened by amendment, were adopted.[901] On February 12, 1820, the resolutions condemning the Nationalist doctrine expounded by the Chief Justice in the Bank case also came to a vote and passed, 117 ayes to 38 nays.[902] They had been amended and reamended,[903] but, as adopted, they were in substance the same as those originally offered by Stevenson. Through both these sets of resolutions—that on the Missouri question and that on the Bank decision—ran the intimation of forcible resistance to National authority. Introduced at practically the same time, drawn and advocated by the same men, passed by votes of the same members, these important declarations of the Virginia Legislature were[Pg 327] meant to be and must be considered as a single expression of the views of Virginia upon National policy.

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

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

Since the establishment at Cincinnati, early in 1817, of a branch of the Bank of the United States,[Pg 328] Ohio had threatened to drive it from the State by a prohibitive tax. Not long before the argument of M'Culloch vs. Maryland in the Supreme Court, the Ohio Legislature laid an annual tax of $50,000 on each of the two branches which, by that time, had been established in that State.[905] On February 8, 1819, only four days previous to the hearing of the Maryland case at Washington, and less than a month before Marshall delivered his opinion, the Ohio lawmakers passed an act directing the State Auditor, Ralph Osborn, to charge this tax of $50,000 against each of the branches, and to issue a warrant for the immediate collection of $100,000, the total amount of the first year's tax.

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

Immediately the branch at Chillicothe obtained from the United States District Court, then in[Pg 329] session at that place, an injunction forbidding Osborn from collecting the tax;[907] but the bank's counsel forgot to have a writ issued to stay the proceedings. Therefore, no order of the court was served; instead a copy of the bill praying that the Auditor be restrained, together with a subpœna to answer, was sent to Osborn. These papers were not, of course, an injunction, but merely notice that one had been applied for. Thinking to collect the tax before the injunction could be issued, Osborn forthwith issued his Auditor's warrant to one John L. Harper to collect the tax immediately. Assisted by a man named Thomas Orr, Harper entered the Chillicothe branch of the Bank of the United States, opened the vaults, seized all the money to be found, and deposited it for the night in the local State bank. Next morning Harper and Orr loaded the specie, bank notes, and other securities in a wagon and started for Columbus.[908]

The branch bank tardily obtained an order from the United States Court restraining Osborn, the State Auditor, and Harper, the State agent, from delivering the money to the State Treasurer and from making any report to the Legislature of the collection of the tax. This writ was served on Harper as he and Orr were on the road to the State Capital with the money. Harper simply ignored the writ, drove[Pg 330] on to Columbus, and handed over to the State Treasurer the funds which he had seized at Chillicothe.

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

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

The Ohio declaration is drawn with notable ability. A State cannot be sued—the true meaning of the Constitution forbids, and the Eleventh Amendment specifically prohibits, such procedure.[Pg 331]

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

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

Luckily for Ohio and all the States, this report[Pg 332] goes on to say, some of Marshall's opinions have been "totally impotent and unavailing," as, for instance, in the case of Marbury vs. Madison. Marbury did not get his commission; "the person appointed in his place continued to act; his acts were admitted to be valid; and President Jefferson retained his standing in the estimation of the American people." It was the same in the case of Fletcher vs. Peck. Marshall held that "the Yazoo purchasers ... were entitled to their lands. But the decision availed them nothing, unless as a make-weight in effecting a compromise." Since, in neither of these cases, had the National Government paid the slightest attention to the decision of the Supreme Court, how could Ohio "be condemned because she did not abandon her solemn legislative acts as a dead letter upon the promulgation of an opinion of that tribunal"?[913]

The Ohio Legislature then proceeds to analyze Marshall's opinion in M'Culloch vs. Maryland. All the arguments made against the principle of implied powers since Hamilton first announced that principle,[914] and all the reasons advanced against the doctrine that the National Government is supreme, in the sense employed by Marshall, are restated with clearness and power. However, since the object of the tax was to drive the branches of the Bank out of Ohio, the Legislature suggests a compromise. If the National institution will cease business within the State and "give assurance" that the branches[Pg 333] be withdrawn, the State will refund the tax money it has seized.[915]

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

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

Pennsylvania had already taken stronger measures; had anticipated even Virginia. Within seven weeks[Pg 334] from the delivery of Marshall's opinion in M'Culloch vs. Maryland, the Legislature of Pennsylvania proposed an amendment to the National Constitution prohibiting Congress from authorizing "any bank or other monied institution" outside of the District of Columbia.[919] The action of Ohio was an endorsement of that of Virginia and Pennsylvania. Indiana had already swung into line.[920] So had Illinois and Tennessee.[921] For some reason, Kentucky, soon to become one of the most belligerent and persevering of all the States in her resistance to the "encroachments" of Nationalism as expounded by the Supreme Court, withheld her hand for the moment.

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

Notwithstanding the eccentric attitude of various members of the Union, it was only too plain that[Pg 335] a powerful group of States were acting in concert and that others ardently sympathized with them.

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

Taylor gave to his volume the title "Construction Construed, and Constitutions Vindicated." The phrases "exclusive interests" and "exclusive privileges" abound throughout the volume. Sixteen chapters compose this classic of State Rights philosophy. Five of them are devoted to Marshall's opinion in M'Culloch vs. Maryland; the others to theories of government, the state of the country, the protective tariff, and the Missouri question. The principles of the Revolution, avows Taylor, "are the keys of construction" and "the locks of liberty.[929]... No[Pg 336] form of government can foster a fanaticism for wealth, without being corrupted." Yet Marshall's ideas establish "the despotick principle of a gratuitous distribution of wealth and poverty by law."[930]

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

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


Whence this effort to endow the National Government with powers comparable to those of a monarchy? Plainly it is a reaction—"many wise and good men, ... alarmed by the illusions of Rousseau[Pg 337] and Godwin, and the atrocities of the French revolution, honestly believe that these [democratic] principles have teeth and claws, which it is expedient to draw and pare, however constitutional they may be; without considering that such an operation will subject the generous lion to the wily fox; ... subject liberty and property to tyranny and fraud."[936]

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

Marshall had said that "'the creation of a corporation appertains to sovereignty.'" This is the language of tyranny. The corporate idea crept into British law "wherein it hides the heart of a prostitute under the habiliments of a virgin."[939] But since, in America, only the people are "sovereign," and, to use Marshall's own words, the power to create[Pg 338] corporations "appertains to sovereignty," it follows that neither State nor National Governments can create corporations.[940]

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

Where does Marshall's "artifice of verbalizing" lead?[941] To an "artificially reared, a monied interest ... which is gradually obtaining an influence over the federal government," and "craftily works upon the passions of the states it has been able to delude" [on the slavery question], "to coerce the defrauded and discontented states into submission." For this reason talk of civil war abounds. "For what are the states talking about disunion, and for what are they going to war among themselves? To create or establish a monied sect, composed of privileged combinations, as an aristocratical oppressor of them all."[942] Marshall's doctrine that Congress may bestow "exclusive privileges" is at the bottom of the Missouri controversy. "Had the motive ... never existed, the discussion itself would never have existed; but if the same cause continues, more fatal controversies may be expected."[943][Pg 339]

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

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


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

[785] Story to White, March 3, 1819, Story, i, 325.

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

[787] 4 Wheaton, 323.

[788] Ib. 324.

[789] Ib. 327.

[790] Ib. 328.

[791] 4 Wheaton, 330 et seq.

[792] Ib. 362 et seq.

[793] Ib. 272-73.

[794] Ib. 374.

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

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

[797] Story to White, March 3, 1819, Story, i, 324-25.

[798] 4 Wheaton, 426.

[799] See supra, chap. v.

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

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

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

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

[804] Ib. 1242.

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

[806] Ib. 1254.

[807] Ib. 1286.

[808] Ib. 1311.

[809] Ib. 1404-06.

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

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

[812] 4 Wheaton, 400.

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

[814] 4 Wheaton, 400-02.

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

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

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

[816] 4 Wheaton, 403-04.

[817] Ib. 405.

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

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

[819] 4 Wheaton, 405-06.

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

[821] Ib., 407-08.

[822] See vol. i, 72, of this work.

[823] 4 Wheaton, 408-09.

[824] 4 Wheaton, 409-10.

[825] Ib. 411.

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

[827] 4 Wheaton, 412.

[828] Ib. 413.

[829] See vol. ii, 71, of this work.

[830] Vol. ii, 72-74, of this work.

[831] 4 Wheaton, 414.

[832] 4 Wheaton, 415.

[833] Ib. 416-17.

[834] 4 Wheaton, 417-18.

[835] 4 Wheaton, 419-21.

[836] Ib. 421.

[837] Ib. 423.

[838] 4 Wheaton, 424-25.

[839] 4 Wheaton, 425-26.

[840] 4 Wheaton, 426.

[841] See supra, 158 et seq.

[842] 4 Wheaton, 426.

[843] 4 Wheaton, 427.

[844] Ib. 429-30.

[845] 4 Wheaton, 431.

[846] Ib.

[847] 4 Wheaton, 432-33.

[848] 4 Wheaton, 435-36.

[849] Ib. 437.

[850] Story to his mother, March 7, 1819, Story, i, 325-26.

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

[852] Niles, xvi, 41-44.

[853] Ib. 68-76.

[854] See infra, chap. viii.

[855] Niles, xvi, 65.

[856] See vol. iii, 130-31, of this work.

[857] Niles, xvi, 65.

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

[859] Ib. 103.

[860] Ib. 104.

[861] Niles, xvi, 105.

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

[863] See supra, 161-67.

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

[865] See supra, 146.

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

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

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

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

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

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

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

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

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

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

[876] Ib. 98.

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

[878] Ib. 118.

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

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

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

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

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

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

[884] Union, April 24, 1819.

[885] Union, April 24, 1819.

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

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

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

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

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

[891] Enquirer, Jan. 30, 1821.

[892] Ib. Feb. 1, 1821.

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

[894] Ib. 9.

[895] Ib. 57.

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

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

[898] Ib. 76.

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

[900] Ib. 105.

[901] Ib. 108-09.

[902] Ib. 179.

[903] Ib. 175-78.

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

[905] The second branch was established at Chillicothe.

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

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

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

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

[909] Niles, xvii, 147.

[910] Ib. 338.

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

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

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

[914] See vol. ii, 72-74, of this work.

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

[916] Ib. 1713.

[917] Ib. 1714.

[918] See infra, chap. vii of this work.

[919] State Doc. Fed. Rel.: Ames, 90; and see Niles, xvi, 97, 132.

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

[921] Ib.

[922] Ib. 91.

[923] See infra, chap. x.

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

[925] Ib. 92, 101-03.

[926] Ib. 91.

[927] See infra, chap. x.

[928] See vol. ii, 397, of this work.

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

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

[931] Ib. 15.

[932] Ib. 16.

[933] Ib. 18.

[934] Ib. 25-26.

[935] Ib. 28.

[936] Taylor: Construction Construed, 77.

[937] Ib. 79.

[938] Ib. 84.

[939] Ib. 87.

[940] Taylor: Construction Construed, 89.

[941] Ib. 161.

[942] Ib. 233.

[943] Ib. 237.

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

[944] See infra, 340-42; and see infra, chap. x.

[945] Taylor: Construction Construed, 314.

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

[Pg 340]



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

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

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

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

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

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

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

In the House and Senate, civil war was threatened. "I fear this subject will be an ignited spark, which, communicated to an immense mass of combustion, will produce an explosion that will shake this Union to its centre.... The crisis has arrived, contemplated[Pg 341] by the framers of the Constitution.... This portentous subject, twelve months ago, was a little speck scarcely visible above the horizon; it has already overcast the heavens, obscuring every other object; materials are everywhere accumulating with which to render it darker."[947] In these bombastic, yet serious words Senator James Barbour of Virginia, when speaking on the Missouri question on January 14, 1820, accurately described the situation.

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

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

'Shall grow to clubs and naked swords,
To murder and to death.'...
[Pg 342]

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

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

Such was the situation concerning which John Marshall addressed the American people in his epochal opinion in the case of Cohens vs. Virginia. The noble passages of that remarkable state paper were inspired by, and can be understood only in the light of, the crisis that produced them. Not in the mere facts of that insignificant case, not in the precise legal points involved, is to be found the [Pg 343]inspiration of Marshall's transcendent effort on this occasion. Indeed, it is possible, as the Ohio Legislature and the Virginia Republican organization soon thereafter charged, that Cohens vs. Virginia was "feigned" for the purpose of enabling Marshall to assert once more the supremacy of the Nation.

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

Fortunate, indeed, for the Republic that Marshall's fateful pronouncement came forth at such a critical hour, even if technicalities were waived in bringing before him a case in which he could deliver that opinion. For, in conjunction with his exposition in M'Culloch vs. Maryland, it was the most powerful answer that could be given, and from the source of greatest authority, to that defiance of the National Government and to the threats of disunion then growing ever bolder and more vociferous. Marshall's utterances did not still those hostile voices, it is true, but they gave strength and courage to Nationalists[Pg 344] and furnished to the champions of the Union arguments of peculiar force as coming from the supreme tribunal of the Nation.

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

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

By an act of the Virginia Legislature[957] the purchase or sale within the State of lottery tickets, except those of lotteries authorized by the laws of Virginia, was forbidden under penalty of a fine of one hundred dollars for each offense.[Pg 345]

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

At the quarterly session of the Court of Norfolk, held September 2, 1820, the case came on for hearing before the Mayor, Recorder, and Aldermen of said borough and was decided upon an agreed case "in lieu of a special verdict," which set forth the sale of the lottery tickets, the Virginia statute, the act of Congress incorporating the City of Washington, and the fact that the National Lottery had been established under that act.[959] The Norfolk Court found the defendants guilty and fined them in the sum of one hundred dollars. This paltry amount could not have paid one twentieth part of the fees which the eminent counsel who appeared for the Cohens would, ordinarily, have charged.[960] The case was carried to the Supreme Court on a writ of error.[Pg 346]

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

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

Upon the supremacy of the Supreme Court over State tribunals depended the very life of the Nation, declared William Pinkney, who appeared as the principal counsel for the Cohens. Give up the appellate jurisdiction of National courts "from the decisions of the state tribunals" and "every other branch of federal authority might as well be surrendered. To part with this, leaves the Union a mere league or confederacy."[964] Long, brilliantly, convincingly, did[Pg 347] Pinkney speak. The extreme State Rights arguments were, he asserted, "too wild and extravagant"[965] to deserve consideration.

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

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

Why was the Constitution established? Because the "American States, as well as the American people, have believed a close and firm Union to be essential to their liberty and to their happiness. They[Pg 348] have been taught by experience, that this Union cannot exist without a government for the whole; and they have been taught by the same experience that this government would be a mere shadow, that must disappoint all their hopes, unless invested with large portions of that sovereignty which belongs to independent states."[969]

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

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

The "limitations on the sovereignty of the states" were made for the same reason that the "supreme government" of the Nation was endowed with its broad powers. In addition to express limitations on State "sovereignty" were many instances "where, perhaps, no other power is conferred on Congress than a conservative power to maintain the principles established in the constitution. The maintenance of these[Pg 349] principles in their purity, is certainly among the great duties of the government."[971]

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

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

"Principles" drawn from the very "nature of government" require that "the judicial power ...[Pg 350] must be co-extensive with the legislative, and must be capable of deciding every judicial question which grows out of the constitution and laws"—not that "it is fit that it should be so; but ... that this fitness" is an aid to the right interpretation of the Constitution.[973]

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

The Constitution attaches first importance to the "independence" of the Judiciary; can it have been intended to leave to State "tribunals, where this independence may not exist," cases in which "a state shall prosecute an individual who claims the protection of an act of Congress?" Marshall gives[Pg 351] examples of possible collisions between National and State authority, in ordinary times, as well as in exceptional periods.[978] Even to-day it is obvious that the Chief Justice was denouncing the threatened resistance by State officials to the tariff laws, a fact of commanding importance at the time when Marshall's opinion in Cohens vs. Virginia was delivered.

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

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

He recalls the state of the country under the Confederation when requisitions on the States were[Pg 352] "habitually disregarded," although they were "as constitutionally obligatory as the laws enacted by the present Congress." In view of this fact is it improbable that the framers of the Constitution meant to give the Nation's courts the power of preserving that Constitution, and laws made in pursuance of it, "from all violation from every quarter, so far as judicial decisions can preserve them"?[981]

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

To this Marshall makes answer: "Whenever hostility to the existing system shall become universal, it will be also irresistible. The people made the constitution, and the people can unmake it. It is the creature of their own will, and lives only by their will. But this supreme and irresistible power to make or to unmake, resides only in the whole body of the people; not in any sub-division of them. The attempt of any of the parts to exercise it is usurpation, and ought to be repelled by those to whom the people have delegated their power of repelling it. The acknowledged inability of the government, then, to sustain itself against the public will, and, by force or otherwise, to control the whole nation, is no sound argument in support of its constitutional[Pg 353] inability to preserve itself against a section of the nation acting in opposition to the general will."[982]

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

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

Marshall dwells on "the subordination of the parts to the whole." The one great motive for establishing the National Judiciary "was the pres[Pg 354]ervation of the constitution and laws of the United States, so far as they can be preserved by judicial authority."[983]

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

Marshall examines the Eleventh Amendment and becomes, for a moment, the historian, a rôle in which he delighted. "The states were greatly indebted" at the close of the Revolution; the Constitution was opposed because it was feared that their obligations would be collected in the National courts. This very thing happened. "The alarm was general; and, to quiet the apprehensions that were so extensively entertained, this amendment[Pg 355] was ... adopted." But "its motive was not to maintain the sovereignty of a state from the degradation supposed to attend a compulsory appearance before the tribunal of the nation." It was to prevent creditors from suing a State—"no interest could be felt in so changing the relations between the whole and its parts, as to strip the government of the means of protecting, by the instrumentality of its courts, the constitution and laws from active violation."[988]

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

"It is their government, and in that character they have no other. America has chosen to be, in many respects, and to many purposes, a nation; and for all these purposes, her government is complete; to all these objects, it is competent. The people have declared, that in the exercise of all powers[Pg 356] given for these objects it is supreme. It can, then, in effecting these objects, legitimately control all individuals or governments within the American territory. The Constitution and laws of a state, so far as they are repugnant to the Constitution and laws of the United States, are absolutely void.

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

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

The Chief Justice gives examples of the exclusive powers of Congress, all of which are binding through[Pg 357]out the Republic. "Congress is not a local legislature, but exercises this particular power [to legislate for the District of Columbia], like all its other powers, in its high character, as the legislature of the Union."[995] The punishment of the Cohens for selling tickets of the National Lottery, created by the City of Washington under authority of an act of Congress, involves the construction of the Constitution and of a National law. The Supreme Court, therefore, has jurisdiction of the case, and the motion to dismiss the writ of error is denied.

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

So ended, as far as the formal record goes, the famous case of Cohens vs. Virginia. On its merits it amounted to nothing; the practical result of the appeal was nothing; but it afforded John Marshall the opportunity to tell the Nation its duty in a crowning National emergency.[Pg 358]

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

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

National judges have "no interest in the government or laws of any state but that of which they are citizens," asserts Sidney. "As to every other state but that, they are, completely, aliens and foreigners."[1000] Virginia is as much a foreign nation as Russia[1001] so far as jurisdiction of the Supreme Court over[Pg 359] the judgments of State courts is concerned. Marshall's doctrine "is the blind and absolute despotism which exists in an army, or is exercised by a tyrant over his slaves."[1002]

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

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

If the anger of John Marshall ever was more aroused than it was by Roane's assaults upon him, no evidence of the fact exists. Before the last number[Pg 360] of the Algernon Sidney essays appeared, the Chief Justice confides his wrathful feelings to the devoted and sympathetic Story: "The opinion of the Supreme Court in the Lottery case has been assaulted with a degree of virulence transcending what has appeared on any former occasion. Algernon Sidney is written by the gentleman who is so much distinguished for his feelings towards the Supreme Court, & if you have not an opportunity of seeing the Enquirer I will send it to you.

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

When Roane's articles were finished, Marshall wrote Story: "I send you the papers containing the essays of Algernon Sidney. Their coarseness & malignity would designate the author if he was not avowed. The argument, if it may be called one, is, I think, as weak as its language is violent & prolix. Two other gentlemen[1007] have appeared in the papers on this sub[Pg 361]ject, one of them is deeply concerned in pillaging the purchasers of the Fairfax estate in which goodly work he fears no other obstruction than what arises[Pg 362] from the appellate power of the Supreme Court, & the other is a hunter after office who hopes by his violent hostility to the Union, which in Virginia assumes the name of regard for state rights, & by his devotion to Algernon Sidney, to obtain one. In support of the sound principles of the constitution & of the Union of the States, not a pen is drawn. In Virginia the tendency of things verges rapidly to the destruction of the government & the re-establishment of a league of sovereign states. I look elsewhere for safety."[1008]

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

It was "a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy," wrote the "Sage of Monticello." "The constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots.... If the legislature fails to pass" necessary laws—such as those for taking of the census, or the payment of judges; or even if "they[Pg 363] fail to meet in congress, the judges cannot issue their mandamus to them."

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

This letter by Jefferson had just been made public, and Story, who appears to have read everything from the Greek classics to the current newspaper gossip, at once wrote Marshall. The Chief Justice replied that Jefferson's view "rather grieves than surprizes" him. But he could not "describe the surprize & mortification" he felt when he learned that Madison agreed with Jefferson "with respect to the judicial department. For Mr Jefferson's opinion as respects this department it is not difficult to assign the cause. He is among the most ambitious, & I suspect among the most unforgiving of men. His great power is over the mass of the people, & this power is chiefly acquired by professions of democracy. Every check on the wild impulse of the moment is a check on his own power, & he is unfriendly to the source from which it flows. He looks of course with ill will at an independent judiciary.[Pg 364]

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

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

John E. Hall was at that time the publisher at Philadelphia of The Journal of American Jurisprudence. Jefferson had asked Hall to reprint Roane's articles, and Hall had told Story, who faithfully reported to Marshall. "I am a little surprized at the request which you say has been made to Mr Hall, although there is no reason for my being so. The settled hostility of the gentleman who has made that request to the judicial department will show itself in that & in every other form which he believes will conduce to its object. For this he has several motives, & it is not among the weakest that the department would never lend itself as a tool to work for his political power....[Pg 365]

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

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

Quitting such small, unworthy, and prideful considerations, Marshall rises for a moment to the great issue which he met so nobly in his opinions in M'Culloch vs. Maryland and in Cohens vs. Virginia. "A deep design," he writes Story, "to convert our government into a mere league of states has taken strong hold of a powerful & violent party in Virginia. The attack upon the judiciary is in fact an attack upon the union. The judicial department is well understood to be that through which the govern[Pg 366]ment may be attacked most successfully, because it is without patronage, & of course without power. And it is equally well understood that every subtraction from its jurisdiction is a vital wound to the government itself. The attack upon it therefore is a masked battery aimed at the government itself.

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

No sooner had Roane's artillery ceased to play upon Marshall and the Supreme Court than the roar of Taylor's heavy guns was again heard. In a powerful and brilliant book, called "Tyranny Unmasked," he directed his fire upon the newly proposed protective tariff, "this sport for capitalists and death for the rest of the nation."[1014] The theory of the Chief Justice that there is a "supreme federal power" over the States is proved false by the proceedings of the Constitutional Convention at Phila[Pg 367]delphia in 1787. Certain members then proposed to give the National Government a veto over the acts of State Governments.[1015] This proposal was immediately rejected. Yet to-day Marshall proclaims a National power, "infinitely more objectionable," which asserts that the Supreme Court has "a negative or restraining power over the State governments."[1016]

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

For one hundred and twenty-one scintillant and learned pages Taylor attacks this latest creation of National "tyranny." The whole Nationalist system[Pg 368] is "tyranny," which it is his privilege to "unmask," and the duty of all true Americans to destroy.[1021] Marshall's Constitutional doctrine "amounts to the insertion of the following article in the constitution: 'Congress shall have power, with the assent of the Supreme Court, to exercise or usurp, and to prohibit the States from exercising, any or all of the powers reserved to the States, whenever they [Congress] shall deem it convenient, or for the general welfare.'"[1022] Such doctrines invite "civil war."[1023]

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

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

At this point Jefferson declares for armed resistance to the Nation in even stronger terms than those used by Roane or Taylor: "If Congress fails to shield the States from dangers so palpable and so im[Pg 369]minent, the States must shield themselves, and meet the invader foot to foot.... This is already half done by Colonel Taylor's book" which "is the most effectual retraction of our government to its original principles which has ever yet been sent by heaven to our aid. Every State in the Union should give a copy to every member they elect, as a standing instruction, and ours should set the example."[1026]

Until his death the aged politician raged continuously, except in one instance,[1027] at Marshall and the Supreme Court because of such opinions and decisions as those in the Bank and Lottery cases. He writes Justice Johnson that he "considered ... maturely" Roane's attacks on the doctrines of Cohens vs. Virginia and they appeared to him "to pulverize every word which had been delivered by Judge Marshall, of the extra-judicial part of his opinion." If Roane "can be answered, I surrender human reason as a vain and useless faculty, given to bewilder, and not to guide us.... This practice of Judge Marshall, of travelling out of his case to prescribe what the law[Pg 370] would be in a moot case not before the court, is very irregular and censurable."[1028]

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

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

The Republican protagonists of Localism did not content themselves with the writing of enraged letters or the publication of flaming articles and books.[Pg 371] They were too angry thus to limit their attacks, and they were politicians of too much experience not to crystallize an aroused public sentiment. On December 12, 1821, Senator Richard M. Johnson of Kentucky, who later was honored by his party with the Vice-Presidency, offered an amendment to the Constitution that the Senate be given appellate jurisdiction in all cases where the Constitution or laws of a State were questioned and the State desired to defend them; and in all cases "where the judicial power of the United States shall be so construed as to extend to any case ... arising under" the National Constitution, laws, or treaties.[1030]

Coöperating with Johnson in the National Senate, Roane in Virginia, when the Legislature of that State met, prepared amendments to the National Constitution which, had they been adopted by the States, would have destroyed the Supreme Court. He declares that he takes this step "with a view to aid" the Congressional antagonists of Nationalism and the Supreme Court, "or rather to lead, on this important subject." The amendments "will be copied by another hand & circulated among the members. I would not wish to injure the great Cause, by being known as the author. My name would damn them, as I believe, nay hope, with the Tories." Roane asks his correspondent to "jog your Chesterfield Delegates ... and other good republicans," and complains that "Jefferson & Madison hang back too much, in this great Crisis."[1031][Pg 372]

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

Why should not the National Judiciary be made answerable to the people? No fair-minded man can deny that the judges exercise legislative power. "If a judge can repeal a law of Congress, by declaring it unconstitutional, is not this the exercise of political power? If he can declare the laws of a State[Pg 373] unconstitutional and void, and, in one moment, subvert the deliberate policy of that State for twenty-four years, as in Kentucky, affecting its whole landed property, ... is not this the exercise of political power? All this they have done, and no earthly power can investigate or revoke their decisions."[1034] The Constitution gives the National Judiciary no such power—that instrument "is as silent as death upon the subject."[1035]

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

The Supreme Court, too, has gently exercised the principle of judicial supervision over acts of Congress; has adjudged that Congress has a free hand in choosing means to carry out powers expressly granted to that body. But consider the conduct of the Supreme Court toward the States: "An irresponsible judiciary" has ruthlessly struck down State[Pg 374] law after State law; has repeatedly destroyed the decisions of State courts. Look at Marshall's opinions in M'Culloch vs. Maryland, in the Dartmouth College case, in United States vs. Peters, in Sturges vs. Crowninshield, in Cohens vs. Virginia—smallest, but perhaps worst of all, in Wilson vs. New Jersey. The same principle runs through all these pronouncements;—the States are nothing, the Nation everything.[1037]

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

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

When the Kentucky Senator resumed his speech the following day, he drove home his strongest weapon—an instance of judicial interference with[Pg 375] State laws which, indeed, at first glance appeared to have been arbitrary, autocratic, and unjust. The agreement between Virginia and Kentucky by which the latter was separated from the parent Commonwealth provided that "all private rights and interests of lands" in Kentucky "derived from the laws of Virginia, shall remain valid ... and shall be determined by the laws now existing" in Virginia.[1039]

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

Against one such occupant, Richard Biddle, the heirs of a certain John Green brought suit in the[Pg 376] United States Court for the District of Kentucky, and the case was certified to the Supreme Court on a division of opinion of the judges. The case was argued and decided at the same term at which Marshall delivered his opinion in Cohens vs. Virginia. Story delivered the unanimous opinion of the court: that the Kentucky "occupying claimant" laws violated the separation "compact" between Virginia and Kentucky, because, "by the general principles of law, and from the necessity of the case, titles to real estate can be determined only by the laws of the state under which they were acquired."[1041] Unfortunately Story did not specifically base the court's decision on the contract clause of the Constitution, but left this vital point to inference.

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

Johnson minutely examined the historical reasons for including the contract clause in the National Constitution, "in order to understand perfectly well the mystical influence" of that provision.[1043] It never[Pg 377] was intended to affect such legislation as the Kentucky land system. The intent and meaning of the contract clause is, that "you shall not declare to-day that contract void, ... which was made yesterday under the sanction of law."[1044] Does this simple rule of morality justify the National courts in annulling measures of public policy "which the people have solemnly declared to be expedient"?[1045] The decision of the Supreme Court in Green vs. Biddle, said Johnson, "prostrates the deliberate" course which Kentucky has pursued for almost a quarter of a century, "and affects its whole landed interest. The effect is to legislate for the people; to regulate the interior policy of that community, and to establish their municipal code as to real estate."[1046]

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

The time is overripe, asserts Johnson, to check judicial usurpation—already the National Judiciary has struck down laws of eight States.[1048] The career of this judicial oligarchy must be ended. "The[Pg 378] security of our liberties demands it." Let the jurisdiction of National courts be specifically limited; or let National judges be subject to removal upon address of both Houses of Congress; or let their commissions be vacated "after a limited term of service"; or, finally, "vest a controlling power in the Senate ... or some other body who shall be responsible to the elective franchise."[1049]

The Kentucky Legislature backed its fearless Senator;[1050] but the Virginia Assembly weakened at the end. Most of the Kentucky land titles, which the Supreme Court's decision had protected as against the "occupying claimants," were, of course, held by Virginians or their assignees. Virginia conservatives, too, were beginning to realize the wisdom of Marshall's Nationalist policy as it affected all their interests, except slavery and tariff taxation; and these men were becoming hesitant about further attacks on the Supreme Court. Doubtless, also, Marshall's friends were active among the members of the Legislature. Roane understood the situation when he begged friends to "jog up" the apathetic, and bemoaned the quiescence of Jefferson and Madison. His proposed amendments were lost, though by a very close vote.[1051][Pg 379]

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

As soon as Congress convened in the winter of 1823, Senator Johnson renewed the combat; but he had become feeble, even apologetic. He did not mean to reflect "upon the conduct of the judges, for he believed them to be highly enlightened and intelligent." Nevertheless, their life tenure and irresponsibility required that some limit should be fixed to their powers. So he proposed that the membership of the Supreme Court be increased to ten, and that at least seven Justices should concur in any opinion involving the validity of National or State laws.[1053][Pg 380]

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

After a reargument of Green vs. Biddle, lasting an entire week,[1058] the Supreme Court stood to its guns and again held the Kentucky land laws unconstitutional. Yet so grave was the crisis that the decision was not handed down for a whole year. This time the opinion of the court was delivered on February 27, 1823, by Bushrod Washington, who held that the contract clause of the National Constitution was violated, but plainly considered that "the principles of law and reason"[1059] were of more importance in this case than the Constitutional pro[Pg 381]vision. Washington's opinion displays the alarm of the Supreme Court at the assaults upon it: "We hold ourselves answerable to God, our consciences and our country, to decide this question according to the dictates of our best judgment, be the consequences of the decision what they may."[1060]

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

One of Marshall's numerous Kentucky kinsmen, who was an active member of the Legislature, stoutly protested against any attack on the Supreme Court; nevertheless he offered a resolution reciting the grievances of the State and proposing an address "to the supreme court of the United States, in full session," against the decision and praying for "its total and definitive reversal."[1062] What! exclaimed John Rowan, another member of the Legislature, shall Kentucky again petition "like a degraded prov[Pg 382]ince of Rome"?[1063] He proposed counter-resolutions that the Legislature "do ... most solemnly PROTEST ... against the erroneous, injurious, and degrading doctrines of the opinion ... in ... Green and Biddle."[1064] When modified, Rowan's resolutions, one of which hinted at forcible resistance to the mandate of the Supreme Court, passed by heavy majorities.[1065] Later resolutions openly threatened to "call forth the physical power of the state, to resist the execution of the decisions of the court," which were "considered erroneous and unconstitutional."[1066]

In the same year that the Supreme Court decided the Kentucky land case, Justice Johnson aroused South Carolina by a decision rendered in the United States District Court of that State. One Henry Elkison, a negro sailor and a British subject, was taken by the sheriff of the Charleston district, from the British ship Homer; and imprisoned under a South Carolina law which directed the arrest and confinement of any free negro on board any ship entering the ports of that State, the negro to be released only when the vessel departed.[1067] Johnson wrathfully declared that the "unconstitutionality of the law ... will not bear argument"—nobody denied that it could not be executed "without clashing with the general powers of the United States, to regulate commerce." Thereupon, one of the counsel for the State said that the statute must and would be enforced; and "that if a dissolution [sic] of the union must be the alternative he was ready[Pg 383] to meet it"—an assertion which angered Johnson who delivered an opinion almost as strong in its Nationalism as those of Marshall.[1068]

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

The Governor and Legislature of South Carolina fiercely maintained the law of the State—it was to them a matter of "self-preservation." Niles was distressingly alarmed. He thought that the collision of South Carolina with the National Judiciary threatened to disturb the harmony of the Republic as much as the Missouri question had done.[1071][Pg 384]

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

Thus again stands out the alliance of the various forces of Localism—slavery, State banking, debtors' relief laws, opposition to protective tariffs—which confronted the Supreme Court with threats of physical resistance to its decrees and with the ability to carry out those threats.[Pg 385]

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

On March 19, 1824, Marshall delivered the opinion of the court. All well-organized governments, he begins, "must possess, within themselves, the means of expounding, as well as enforcing, their own laws." The makers of the Constitution kept constantly in view this great political principle. The Judiciary Article "enables the judicial department to receive jurisdiction to the full extent of the constitution, laws, and treaties of the United States.... That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. It then becomes a case" over which the Constitution gives jurisdiction to the National courts. "The suit of The Bank of the United States v. Osborn et al., is a[Pg 386] case, and the question is, whether it arises under a law of the United States."[1076]

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

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

At this particular period of our history this was, indeed, a tremendous expansion of the power of Congress and the National Judiciary. Marshall flatly declares that Congress can invest the inferior National courts with any jurisdiction whatsoever which the Constitution does not prohibit. It marks another stage in the development of his Constitutional principle that the National Government not only has all powers expressly granted, but also all powers not expressly prohibited. For that is just what Marshall's reasoning amounts to during these crucial years.[Pg 387]

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

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

Marshall concedes that the State is directly interested in the suit and that, if the Bank could have done so, it ought to have made the State a party. "But this was not in the power of the bank," because the Eleventh Amendment exempts a State from being sued in such a case. So the "very diffi[Pg 388]cult question" arises, "whether, in such a case, the court may act upon the agents employed by the state, and on the property in their hands."[1081]

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

In this fashion Marshall leads up to the serious National problem of the hour—the disposition of some States, revealed by threats and sometimes carried into execution, to interfere with the officers of the National Government in the execution of the Nation's laws. According to the Ohio-Virginia-Kentucky idea, those officers "can obtain no protection from the judicial department of the government. The carrier of the mail, the collector of the revenue,[1083] the marshal of a district, the recruiting officer, may all be inhibited, under ruinous penalties, from the performance of their respective duties"; and not one of them can "avail himself of the preventive justice of the nation to protect him in the performance of his duties."[1084][Pg 389]

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

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

Here, in judicial language, was that rebuke of the spirit of Nullification which Andrew Jackson was soon to repeat in words that rang throughout the land and which still quicken the pulses of Americans. What is the great question before the court in the case of Osborn[Pg 390] vs. The Bank of the United States; what, indeed, the great question before the country in the controversy between recalcitrant States and the imperiled Nation? It is, says Marshall, "whether the constitution of the United States has provided a tribunal which can peacefully and rightfully protect those who are employed in carrying into execution the laws of the Union, from the attempts of a particular state to resist the execution of those laws."

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

If the mere fact that the State is "interested" in, or affected by, a suit makes the State a party, "what rule has the constitution given, by which this interest is to be measured?" No rule, of course! Is then the court to decide the degree of "interest" necessary to make a State a party? Absurd! since the court would have to examine the "whole testimony of a cause, inquiring into, and deciding on, the extent of a State's interest, without having a right to exercise any jurisdiction in the case."[1087][Pg 391]

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

Maryland and Ohio claim the right to tax the National Bank as an "individual concern ... having private trade and private profit for its great end and principal object." But this is not true; the Bank is a "public corporation, created for public and national purposes"; the fact that it transacts "private as well as public business" does not destroy its character as the "great instrument by which the fiscal operations of the government are effected."[1092] Obviously the Bank cannot live unless it can do a general business as authorized by its charter. This being so, the right to transact such business "is necessary[Pg 392] to the legitimate operations of the government, and was constitutionally and rightfully engrafted on the institution." Indeed, the power of the Bank to engage in general banking is "the vital part of the corporation; it is its soul." As well say that, while the human body must not be touched, the "vivifying principle" which "animates" it may be destroyed, as to say that the Bank shall not be annihilated, but that the faculty by which it exists may be extinguished.

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

The Judiciary "has no will, in any case"—no option but to execute the law as it stands. "Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing." They can exercise no "discretion," except that of "discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to follow it.[Pg 393] Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature."[1095] This passage, so wholly unnecessary to the decision of the case or reasoning of the opinion, was inserted as an answer to the charges of judicial "arrogance" and "usurpation."

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

So everybody having an immediate personal and practical interest in that particular case was made happy, and only the State Rights theorists were discomfited. It was an exceedingly human situation, such as Marshall, the politician, managed to create in his disposition of those cases that called for his highest judicial statesmanship. No matter how acutely he irritated party leaders and forced upon them unwelcome issues, Marshall contrived to sat[Pg 394]isfy the persons immediately interested in most of the cases he decided.

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

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

Immediately the fight upon the Supreme Court was renewed in Congress. On May 3, 1824, Representative Robert P. Letcher of Kentucky rose in the House and proposed that the Supreme Court should be forbidden by law to hold invalid any provision[Pg 395] of a State constitution or statute unless five out of the seven Justices concurred, each to give his opinion "separately and distinctly," if the court held against the State.[1100] Kentucky, said Letcher, had been deprived of "equal rights and privileges." How? By "construction.... Yes, construction! Its mighty powers are irresistible; ... it creates new principles; ... it destroys laws long since established; and it is daily acquiring new strength."[1101] John Forsyth of Georgia proposed as a substitute to Letcher's resolutions that, for the transaction of business, "a majority of the quorum" of the Supreme Court "shall be a majority of the whole court, including the Chief Justice." A long and animated debate[1102] ensued in which Clay, Webster, Randolph, and Philip P. Barbour, among others, took part.

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

So strong had been the sentiment for placing some restraint on the National Judiciary that Webster,[Pg 396] astute politician and most resourceful friend of the Supreme Court, immediately offered a resolution that, in any cause before the Supreme Court where the validity of a State law or Constitution is drawn in question "on the ground of repugnancy to the Constitution, treaties, or laws, of the United States, no judgment shall be pronounced or rendered until a majority of all the justices ... legally competent to sit, ... shall concur in the opinion."[1105]

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


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

[948] Ib. 175.

[949] Ib. 275.

[950] Ib. 359.

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

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

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

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

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

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

[957] Effective January 21, 1820.

[958] 6 Wheaton, 266-67.

[959] Ib. 268-90.

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

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

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

[962] 6 Wheaton, 344.

[963] Ib. 347.

[964] Ib. 354.

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

[966] Ib. 376.

[967] See supra, 157-58.

[968] 6 Wheaton, 377.

[969] 6 Wheaton, 380.

[970] Ib. 381.

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

[972] Ib. 382.

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

[974] See vol. ii, 66, of this work.

[975] 6 Wheaton, 87.

[976] Ib. 385-86.

[977] Ib. 387.

[978] 6 Wheaton, 386-87.

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

[980] 6 Wheaton, 387-88.

[981] 6 Wheaton, 388.

[982] 6 Wheaton, 389-90.

[983] 6 Wheaton, 390-91.

[984] Ib. 393.

[985] Ib. 394-404.

[986] Ib. 405.

[987] See vol. iii, 127-28, of this work.

[988] 6 Wheaton, 406-07.

[989] Ib. 413.

[990] 6 Wheaton, 413-14.

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

[992] 6 Wheaton, 420.

[993] Ib. 424.

[994] Ib. 425-26.

[995] 6 Wheaton, 429.

[996] Ib. 445-47.

[997] Ambler: Ritchie, 81.

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

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

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

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

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

[1003] Ib. 123-24.