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diff --git a/40533-0.txt b/40533-0.txt new file mode 100644 index 0000000..381e41a --- /dev/null +++ b/40533-0.txt @@ -0,0 +1,29307 @@ +*** START OF THE PROJECT GUTENBERG EBOOK 40533 *** + + THE LIFE OF JOHN MARSHALL + + Standard Library Edition + + + IN FOUR VOLUMES + + VOLUME IV + + + + + [Illustration: JOHN MARSHALL + From the portrait by Henry Inman] + + + + + THE LIFE + OF + JOHN MARSHALL + + BY + ALBERT J. BEVERIDGE + + VOLUME IV + + THE BUILDING OF THE NATION + + 1815-1835 + + [Illustration] + + BOSTON AND NEW YORK + HOUGHTON MIFFLIN COMPANY + The Riverside Press Cambridge + + + + + COPYRIGHT, 1919, BY ALBERT J. BEVERIDGE + + ALL RIGHTS RESERVED + + + + +CONTENTS + + + I. THE PERIOD OF AMERICANIZATION 1 + + 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. + + II. MARSHALL AND STORY 59 + + 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 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. + + III. INTERNATIONAL LAW 117 + + 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--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. + + IV. FINANCIAL AND MORAL CHAOS 168 + + 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. + + V. THE DARTMOUTH COLLEGE CASE 220 + + 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 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. + + VI. VITALIZING THE CONSTITUTION 282 + + 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 confederation"--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." + + VII. THREATS OF WAR 340 + + 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 amendment 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. + + VIII. COMMERCE MADE FREE 397 + + 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 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. + + IX. THE SUPREME CONSERVATIVE 461 + + 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 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. + + X. THE FINAL CONFLICT 518 + + 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--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. + + WORKS CITED IN THIS VOLUME 595 + + INDEX 613 + + + + +ILLUSTRATIONS + + + JOHN MARSHALL _Colored 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. + + TIMOTHY PICKERING 50 + + From a painting by Stuart, owned by Mr. Robert M. Pratt, Boston. + + JOSEPH STORY 96 + + From a crayon drawing by his son, William Wetmore Story, in the + possession of the family. + + WILLIAM PINKNEY 132 + + From the original painting by Charles Wilson Peale, in the + possession of Pinkney's grandson, William Pinkney Whyte, Esq., + Baltimore, Maryland. + + JOHN MARSHALL 210 + + From the bust in the Court Room of the United States Supreme + Court. + + JOSEPH HOPKINSON 254 + + From a portrait owned by Dartmouth College. + + ASSOCIATE JUSTICES SITTING WITH MARSHALL IN THE CASE OF M'CULLOCH + VERSUS MARYLAND: BUSHROD WASHINGTON, WILLIAM JOHNSON, BROCKHOLST + LIVINGSTON, THOMAS TODD, JOSEPH STORY, GABRIEL DUVAL 282 + + 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. + + SPENCER ROANE 314 + + From a painting in the Court of Appeals at Richmond, Virginia. + + JOHN TAYLOR OF CAROLINE 336 + + From a painting in the possession of the Virginia State Library, + Richmond. + + JOHN MARSHALL 412 + + 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. + + SILHOUETTE OF JOHN MARSHALL 462 + + From the original found in the desk of Mr. Justice Story. + + LEEDS MANOR 528 + + 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. + + ASSOCIATE JUSTICES AT THE LAST SESSION OF THE SUPREME COURT OVER + WHICH JOHN MARSHALL PRESIDED: JOSEPH STORY, SMITH THOMPSON, JOHN + McLEAN, HENRY BALDWIN, JAMES M. WAYNE 584 + + 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. + + THE GRAVE OF JOHN MARSHALL 592 + + From a photograph of the graves of Marshall and his Wife in the + Shockoe Hill Cemetery, Richmond, Virginia. + + + + +LIST OF ABBREVIATED TITLES MOST FREQUENTLY CITED + + _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. + +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. + + + + +THE LIFE OF JOHN MARSHALL + + + + +THE LIFE OF JOHN MARSHALL + + + + +CHAPTER I + +THE PERIOD OF AMERICANIZATION + + 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 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 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. + +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 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 +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, prohibited 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 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. + +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] 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 England' 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] + +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 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 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 +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 conquer 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 +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 +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 +Treasurer, 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 "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. + +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] + +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 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] + +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 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 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 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--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] 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 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 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 command 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 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] + +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 +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; 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, 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 28^{th.} 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 regardless of the assertion made by the President +in his Proclamation of the 2^{d.} of Nov^{r.} 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 28^{th.} of April 1811 as to one dated +the 1^{st} 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^{r.} 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 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] + +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, 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 1^{st} 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-Intercourse +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 variety 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 +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 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, 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 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. + +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 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 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 1^{st} of Nov^r--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] + +[Illustration: Tim Pickering] + +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 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 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 receiving your letter of the 8th accompanying M^r 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 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. + +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 +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 +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. + + +FOOTNOTES: + +[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. + + + + +CHAPTER II + +MARSHALL AND STORY + + 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] + +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" +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 purchases, 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 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 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] + +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-bottom 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 possible. 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 +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 12^{th} 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] ... 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 "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 religion." 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 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 M^{rs} 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 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 M^{rs} 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 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 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. 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 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 (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. + +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 +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: "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 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 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," 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 M^r 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 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 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 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 "consultations" 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 M^r +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 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 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 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. + +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 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. + +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. + +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. Handsome, 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] + +[Illustration] + +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 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] + +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 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. 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, 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 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 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." + +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 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. 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 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, 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 declined 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 "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 outcome 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 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 +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] + +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 +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. + + +FOOTNOTES: + +[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. + + + + +CHAPTER III + +INTERNATIONAL LAW + + 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 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 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 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] + +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 +distinguishing 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." + +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 sovereign, +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 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 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 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 +countries 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 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, 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 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 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] + +[Illustration] + +Aloof, affected, overbearing[338] as he was, Pinkney 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] 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] + +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 +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 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 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 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." + +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 +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] + +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 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 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 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. + +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 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 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 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 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] + +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. + +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] + +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 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 accepted 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] + +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 improvidently +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 "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 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 interpretation;[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 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 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 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 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] + +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] +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 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. + + +FOOTNOTES: + +[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. + + + + +CHAPTER IV + +FINANCIAL AND MORAL CHAOS + + 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 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 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. + +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 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 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] + +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] + +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 defeated 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 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 "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 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," testifies 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] + +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 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 conspicuously 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 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 certain 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 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] + +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] 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] 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, 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 little 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 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 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 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 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] 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 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 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 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 bankruptcy 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] + +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 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] + +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] + +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 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 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. National 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 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 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 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] + +[Illustration: _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 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 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 Constitution 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] + +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 +forbids 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. +"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--"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 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] + +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. + + +FOOTNOTES: + +[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. + + + + +CHAPTER V + +THE DARTMOUTH COLLEGE CASE + + 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 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 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 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 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." + +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 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 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 fellow 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 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 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 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] + +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 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 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 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, 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] 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 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 practically 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 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 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 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 corporation 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 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 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 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 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." + +"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! 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 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] + +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 Massachusetts 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] + +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 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. + +[Illustration: JOSEPH HOPKINSON] + +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 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 +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 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, 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] + +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 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 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 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 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 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] + +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 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, 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 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 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 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 +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 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] + +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 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, "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 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 America; 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 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 +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 opinion 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] + +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. + + +FOOTNOTES: + +[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 y^e Session of y^e 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. + + + + +CHAPTER VI + +VITALIZING THE CONSTITUTION + + The crisis is one which portends destruction to the liberties of + the American people. (Spencer Roane.) + + The constitutional government of this republican empire cannot + be practically enforced but by a fair and liberal interpretation + of its powers. (William Pinkney.) + + The Judiciary of the United States is the subtle corps of + sappers and miners constantly working under ground to undermine + the foundations of our confederated fabric. (Jefferson.) + + The government of the Union is emphatically and truly a + government of the people. In form and substance it emanates from + them. Its powers are granted by them, and are to be exercised + directly on them and for their benefit. (Marshall.) + + +Although it was the third of the great causes to be decided by the +Supreme Court in the memorable year, 1819, M'Culloch _vs._ Maryland was +the first in importance and in the place it holds in the development of +the American Constitution. Furthermore, in his opinion in this case John +Marshall rose to the loftiest heights of judicial statesmanship. If his +fame rested solely on this one effort, it would be secure. + +To comprehend the full import of Marshall's opinion in this case, the +reader must consider the state of the country as described in the fourth +chapter of this volume. While none of his expositions of our fundamental +law, delivered in the critical epoch from 1819 to 1824, can be entirely +understood without knowledge of the National conditions that produced +them, this fact must be especially borne in mind when reviewing the case +of M'Culloch _vs._ Maryland. + +[Illustration: 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 _vs._ Maryland came before the +Supreme Court on an agreed case. The facts were that Congress had +authorized the incorporation of the second Bank of the United States; +that this institution had instituted a branch at Baltimore; that the +Legislature of Maryland had passed an act requiring all banks, +established "without authority from the state," to issue notes only on +stamped paper and only of certain denominations, or, in lieu of these +requirements, only upon the payment of an annual tax of fifteen thousand +dollars; that, in violation of this law, the Baltimore branch of the +National Bank continued to issue its notes on unstamped paper without +paying the tax; and that on May 8, 1818, John James, "Treasurer of the +Western Shore," had sued James William M'Culloch, the cashier of the +Baltimore branch, for the recovery of the penalties prescribed by the +Maryland statute.[784] + +The immediate question was whether the Maryland law was Constitutional; +but the basic issue was the supremacy of the National Government as +against the dominance of State Governments. Indeed, the decision of this +case involved the very existence of the Constitution as an "ordinance of +Nationality," as Marshall so accurately termed it. + +At no time in this notable session of the Supreme Court was the +basement room, where its sittings were now again held, so thronged with +auditors as it was when the argument in M'Culloch _vs._ Maryland took +place. "We have had a crowded audience of ladies and gentlemen," writes +Story toward the close of the nine days of discussion. "The hall was +full almost to suffocation, and many went away for want of room."[785] + +Webster opened the case for the Bank. His masterful argument in the +Dartmouth College case the year before had established his reputation as +a great Constitutional lawyer as well as an orator of the first class. +He was attired in the height of fashion, tight breeches, blue cloth +coat, cut away squarely at the waist, and adorned with large brass +buttons, waist-coat exposing a broad expanse of ruffled shirt with high +soft collar surrounded by an elaborate black stock.[786] + +The senior counsel for the Bank was William Pinkney. He was dressed with +his accustomed foppish elegance, and, as usual, was nervous and +impatient. Notwithstanding his eccentricities, he was Webster's equal, +if not his superior, except in physical presence and the gift of +political management. With Webster and Pinkney was William Wirt, then +Attorney-General of the United States, who had arrived at the fullness +of his powers. + +Maryland was represented by Luther Martin, still Attorney-General for +that State, then seventy-five years old, but a strong lawyer despite +his half-century, at least, of excessive drinking. By his side was +Joseph Hopkinson of Philadelphia, now fifty years of age, one of the +most learned men at the American bar. With Martin and Hopkinson was +Walter Jones of Washington, who appears to have been a legal genius, his +fame obliterated by devotion to his profession and unaided by any public +service, which so greatly helps to give permanency to the lawyer's +reputation. All told, the counsel for both sides in M'Culloch _vs._ +Maryland were the most eminent and distinguished in the Republic. + +Webster said in opening that Hamilton had "exhausted" the arguments for +the power of Congress to charter a bank and that Hamilton's principles +had long been acted upon. After thirty years of acquiescence it was too +late to deny that the National Legislature could establish a bank.[787] +With meticulous care Webster went over Hamilton's reasoning to prove +that Congress can "pass all laws 'necessary and proper' to carry into +execution powers conferred on it."[788] + +Assuming the law which established the Bank to be Constitutional, +could Maryland tax a branch of that Bank? If the State could tax the +Bank at all, she could put it out of existence, since a "power to tax +involves ... a power to destroy"[789]--words that Marshall, in +delivering his opinion, repeated as his own. The truth was, said +Webster, that, in taxing the Baltimore branch of the National Bank, +Maryland taxed the National Government itself.[790] + +Joseph Hopkinson, as usual, made a superb argument--a performance all +the more admirable as an intellectual feat in that, as an advocate for +Maryland, his convictions were opposed to his reasoning.[791] Walter +Jones was as thorough as he was lively, but he did little more than to +reinforce the well-nigh perfect argument of Hopkinson.[792] On the same +side the address of Luther Martin deserves notice as the last worthy of +remark which that great lawyer ever made. Old as he was, and wasted as +were his astonishing powers, his argument was not much inferior to those +of Webster, Hopkinson, and Pinkney. Martin showed by historical evidence +that the power now claimed for Congress was suspected by the opponents +of the Constitution, but denied by its supporters and called "a dream of +distempered jealousy." So came the Tenth Amendment; yet, said Martin, +now, "we are asked to engraft upon it [the Constitution] powers ... +which were disclaimed by them [the advocates of the Constitution], and +which, if they had been fairly avowed at the time, would have prevented +its adoption."[793] + +Could powers of Congress be inferred as a necessary means to the desired +end? Why, then, did the Constitution _expressly_ confer powers which, of +necessity, must be implied? For instance, the power to declare war +surely implied the power to raise armies; and yet that very power was +granted in specific terms. But the power to create corporations "is not +expressly delegated, either as an end or a means of national +government."[794] + +When Martin finished, William Pinkney, whom Marshall declared to be "the +greatest man he had ever seen in a Court of justice,"[795] rose to make +what proved to be the last but one of the great arguments of that +unrivaled leader of the American bar of his period. To reproduce his +address is to set out in advance the opinion of John Marshall stripped +of Pinkney's rhetoric which, in that day, was deemed to be the +perfection of eloquence.[796] + +For three days Pinkney spoke. Few arguments ever made in the Supreme +Court affected so profoundly the members of that tribunal. Story +describes the argument thus: "Mr. Pinkney rose on Monday to conclude the +argument; he spoke all that day and yesterday, and will probably +conclude to-day. I never, in my whole life, heard a greater speech; it +was worth a journey from Salem to hear it; his elocution was excessively +vehement, but his eloquence was overwhelming. His language, his style, +his figures, his arguments, were most brilliant and sparkling. He spoke +like a great statesman and patriot, and a sound constitutional lawyer. +All the cobwebs of sophistry and metaphysics about State rights and +State sovereignty he brushed away with a mighty besom."[797] + +Indeed, all the lawyers in this memorable contest appear to have +surpassed their previous efforts at the bar. Marshall, in his opinion, +pays this tribute to all their addresses: "Both in maintaining the +affirmative and the negative, a splendor of eloquence, and strength of +argument seldom, if ever, surpassed, have been displayed."[798] + +After he had spoken, Webster, who at that moment was intent on the +decision of the Dartmouth College case,[799] became impatient. "Our Bank +argument goes on--& threatens to be long," he writes Jeremiah +Mason.[800] Four days later, while Martin was still talking, Webster +informs Jeremiah Smith: "We are not yet thro. the Bank question. Martin +has been _talking 3 ds_. Pinkney replies tomorrow & that finishes--I set +out for home next day."[801] The arguments in M'Culloch _vs._ Maryland +occupied nine days.[802] + +Four days before the Bank argument opened in the Supreme Court, the +House took up the resolution offered by James Johnson of Virginia to +repeal the Bank's charter.[803] The debate over this proposal continued +until February 25, the third day of the argument in M'Culloch _vs._ +Maryland. How, asked Johnson, had the Bank fulfilled expectations and +promises? "What ... is our condition? Surrounded by one universal gloom. +We are met by the tears of the widow and the orphan."[804] Madison has +"cast a shade" on his reputation by signing the Bank Bill--that "act of +usurpation." Under the common law the charter "is forfeited."[805] + +The Bank is a "mighty corporation," created "to overawe ... the local +institutions, that had dealt themselves almost out of breath in +supporting the Government in times of peril and adversity." The +financial part of the Virginia Republican Party organization thus spoke +through James Pindall of that State.[806] + +William Lowndes of South Carolina brilliantly defended the Bank, but +admitted that its "early operation" had been "injudicious."[807] John +Tyler of Virginia assailed the Bank with notable force. "This charter +has been violated," he said; "if subjected to investigation before a +court of justice, it will be declared null and void."[808] David Walker +of Kentucky declared that the Bank "is an engine of favoritism--of stock +jobbing"--a machine for "binding in adamantine chains the blessed, +innocent lambs of America to accursed, corrupt European tigers."[809] In +spite of all this eloquence, Johnson's resolution was defeated, and the +fate of the Bank left in the hands of the Supreme Court. + +On March 6, 1819, before a few spectators, mostly lawyers with business +before the court, Marshall read his opinion. It is the misfortune of the +biographer that only an abstract can be given of this epochal state +paper--among the very first of the greatest judicial utterances of all +time.[810] It was delivered only three days after Pinkney concluded his +superb address. + +Since it is one of the longest of Marshall's opinions and, by general +agreement, is considered to be his ablest and most carefully prepared +exposition of the Constitution, it seems not unlikely that much of it +had been written before the argument. The court was very busy every day +of the session and there was little, if any, time for Marshall to write +this elaborate document. The suit against M'Culloch had been brought +nearly a year before the Supreme Court convened; Marshall undoubtedly +learned of it through the newspapers; he was intimately familiar with +the basic issue presented by the litigation; and he had ample time to +formulate and even to write out his views before the ensuing session of +the court. He had, in the opinions of Hamilton and Jefferson,[811] the +reasoning on both sides of this fundamental controversy. It appears to +be reasonably probable that at least the framework of the opinion in +M'Culloch _vs._ Maryland was prepared by Marshall when in Richmond +during the summer, autumn, and winter of 1818-19. + +The opening words of Marshall are majestic: "A sovereign state denies +the obligation of a law ... of the Union.... The constitution of our +country, in its most ... vital parts, is to be considered; the +conflicting powers of the government of the Union and of its +members, ... are to be discussed; and an opinion given, which may +essentially influence the great operations of the government."[812] He +cannot "approach such a question without a deep sense of ... the awful +responsibility involved in its decision. But it must be decided +peacefully, or remain a source of hostile legislation, perhaps of +_hostility of a still more serious nature_."[813] In these solemn words +the Chief Justice reveals the fateful issue which M'Culloch _vs._ +Maryland foreboded. + +That Congress has power to charter a bank is not "an open question.... +The principle ... was introduced at a very early period of our history, +has been recognized by many successive legislatures, and has been acted +upon by the judicial department ... as a law of undoubted obligation.... +An exposition of the constitution, deliberately established by +legislative acts, on the faith of which an immense property has been +advanced, ought not to be lightly disregarded." + +The first Congress passed the act to incorporate a National bank. The +whole subject was at the time debated exhaustively. "The bill for +incorporating the bank of the United States did not steal upon an +unsuspecting legislature, & pass unobserved," says Marshall. Moreover, +it had been carefully examined with "persevering talent" in Washington's +Cabinet. When that act expired, "a short experience of the +embarrassments" suffered by the country "induced the passage of the +present law." He must be intrepid, indeed, who asserts that "a measure +adopted under these circumstances was a bold and plain usurpation, to +which the constitution gave no countenance."[814] + +But Marshall examines the question as though it were "entirely new"; and +gives an historical account of the Constitution which, for clearness and +brevity, never has been surpassed.[815] Thus he proves that "the +government proceeds directly from the people; ... their act was final. +It required not the affirmance, and could not be negatived, by the state +governments. The constitution when thus adopted ... bound the state +sovereignties." The States could and did establish "a league, such as +was the confederation.... But when, 'in order to form a more perfect +union,' it was deemed necessary to change this alliance into an +effective government, ... acting directly on the people," it was the +people themselves who acted and established a fundamental law for their +government.[816] + +The Government of the American Nation is, then, "emphatically, and +truly, a government of the people. In form and in substance it emanates +from them. Its powers are granted by them, and are to be exercised +directly on them, and for their benefit"[817]--a statement, the grandeur +of which was to be enhanced forty-four years later, when, standing on +the battle-field of Gettysburg, Abraham Lincoln said that "a government +of the people, by the people, for the people, shall not perish from the +earth."[818] + +To be sure, the States, as well as the Nation, have certain powers, and +therefore "the supremacy of their respective laws, when they are in +opposition, must be settled." Marshall proceeds to settle that basic +question. The National Government, he begins, "is supreme within its +sphere of action. This would seem to result necessarily from its +nature." For "it is the government of all; its powers are delegated by +all; it represents all, and acts for all. Though any one state may be +willing to control its operations, no state is willing to allow others +to control them. The nation, on those subjects on which it can act, must +necessarily bind its component parts." Plain as this truth is, the +people have not left the demonstration of it to "mere reason"--for they +have, "in express terms, decided it by saying" that the Constitution, +and the laws of the United States which shall be made in pursuance +thereof, "shall be the supreme law of the land," and by requiring all +State officers and legislators to "take the oath of fidelity to +it."[819] + +The fact that the powers of the National Government enumerated in the +Constitution do not include that of creating corporations does not +prevent Congress from doing so. "There is no phrase in the instrument +which, like the articles of confederation, _excludes_ incidental or +implied powers; and which requires that everything granted shall be +expressly and minutely described.... A constitution, to contain an +accurate detail of all the subdivisions of which its great powers will +admit, and of all the means by which they may be carried into execution, +would partake of a prolixity of a legal code, and could scarcely be +embraced by the human mind. It would probably never be understood by the +public." + +The very "nature" of a constitution, "therefore requires, that only its +great outlines should be marked, its important objects designated, and +the minor ingredients which compose those _objects be deduced from the +nature of the objects themselves_." In deciding such questions "we must +never forget," reiterates Marshall, "that it is a _constitution_ we are +expounding."[820] + +This being true, the power of Congress to establish a bank is +undeniable--it flows from "the great powers to lay and collect taxes; to +borrow money; to regulate commerce; to declare and conduct a war; and to +raise and support armies and navies." Consider, he continues, the scope +of the duties of the National Government: "The sword and the purse, all +the external relations, and no inconsiderable portion of the industry of +the nation, are entrusted to its government.... A government, entrusted +with such ample powers, on the due execution of which the happiness and +prosperity of the nation so vitally depends, must also be entrusted with +ample means for their execution. The power being given, it is the +interest of the nation to facilitate its execution. It can never be +their interest, and cannot be presumed to have been their intention, to +clog and embarrass its execution by withholding the most appropriate +means."[821] + +At this point Marshall's language becomes as exalted as that of the +prophets: "Throughout this vast republic, from the St. Croix to the Gulf +of Mexico, from the Atlantic to the Pacific, revenue is to be collected +and expended, armies are to be marched and supported. The exigencies of +the nation may require that the treasure raised in the north should be +transported to the south, that raised in the east conveyed to the west, +or that this order should be reversed." Here Marshall the soldier is +speaking. There is in his words the blast of the bugle of Valley Forge. +Indeed, the pen with which Marshall wrote M'Culloch _vs._ Maryland was +fashioned in the army of the Revolution.[822] + +The Chief Justice continues: "Is that construction of the constitution +to be preferred which would render these operations difficult, +hazardous, and expensive?" Did the framers of the Constitution "when +granting these powers for the public good" intend to impede "their +exercise by withholding a choice of means?" No! The Constitution "does +not profess to enumerate the means by which the powers it confers may be +executed; nor does it prohibit the creation of a corporation, if the +existence of such a being be essential to the beneficial exercise of +those powers."[823] + +Resorting to his favorite method in argument, that of repetition, +Marshall again asserts that the fact that "the power of creating a +corporation is one appertaining to sovereignty and is not expressly +conferred on Congress," does not take that power from Congress. If it +does, Congress, by the same reasoning, would be denied the power to pass +most laws; since "all legislative powers appertain to sovereignty." They +who say that Congress may not select "any appropriate means" to carry +out its admitted powers, "take upon themselves the burden of +establishing that exception."[824] + +The establishment of the National Bank was a means to an end; the power +to incorporate it is "as incidental" to the great, substantive, and +independent powers expressly conferred on Congress as that of making +war, levying taxes, or regulating commerce.[825] This is not only the +plain conclusion of reason, but the clear language of the Constitution +itself as expressed in the "necessary and proper" clause[826] of that +instrument. Marshall treats with something like contempt the argument +that this clause does not mean what it says, but is "really restrictive +of the general right, which might otherwise be implied, of selecting +means for executing the enumerated powers"--a denial, in short, that, +without this clause, Congress is authorized to make laws.[827] After +conferring on Congress all legislative power, "after allowing each house +to prescribe its own course of proceeding, after describing the manner +in which a bill should become a law, would it have entered into the +mind ... of the convention that an express power to make laws was +necessary to enable the legislature to make them?"[828] + +In answering the old Jeffersonian argument that,[829] under the +"necessary and proper" clause, Congress can adopt only those means +absolutely "necessary" to the execution of express powers, Marshall +devotes an amount of space which now seems extravagant. But in 1819 the +question was unsettled and acute; indeed, the Republicans had again made +it a political issue. The Chief Justice repeats the arguments made by +Hamilton in his opinion to Washington on the first Bank Bill.[830] + +Some words have various shades of meaning, of which courts must select +that justified by "common usage." "The word 'necessary' is of this +description.... It admits of all degrees of comparison.... A thing may +be necessary, very necessary, absolutely or indispensably necessary." +For instance, the Constitution itself prohibits a State from "laying +'imposts or duties on imports or exports, except what may be +_absolutely_ necessary for executing its inspection laws'"; whereas it +authorizes Congress to "'make all laws which shall be necessary and +proper'" for the execution of powers expressly conferred.[831] + +Did the framers of the Constitution intend to forbid Congress to employ +"_any_" means "which might be appropriate, and which were conducive to +the end"? Most assuredly not! "The subject is the execution of those +great powers on which the welfare of a nation essentially depends." The +"necessary and proper" clause is found "in a constitution intended to +endure for ages to come, and, consequently, to be adapted to the various +crises of human affairs.... To have declared that the best means shall +not be used, but those alone without which the power given would be +nugatory, would have been to deprive the legislature of the capacity to +avail itself of experience, to exercise its reason, and to accommodate +its legislation to circumstances."[832] + +The contrary conclusion is tinged with "insanity." Whence comes the +power of Congress to prescribe punishment for violations of National +laws? No such general power is expressly given by the Constitution. Yet +nobody denies that Congress has this general power, although "it is +expressly given in some cases," such as counterfeiting, piracy, and +"offenses against the law of nations." Nevertheless, the specific +authorization to provide for the punishment of these crimes does not +prevent Congress from doing the same as to crimes not specified.[833] + +Now comes an example of Marshall's reasoning when at his best--and +briefest. + +"Take, for example, the power 'to establish post-offices and +post-roads.' This power is executed by the single act of making the +establishment. But, from this has been inferred the power and duty of +carrying the mail along the post-road, from one post-office to another. +And, from this implied power, has again been inferred the right to +punish those who steal letters from the post-office, or rob the mail. It +may be said, with some plausibility, that the right to carry the mail, +and to punish those who rob it, is not indispensably necessary to the +establishment of a post-office and post-road. This right is indeed +essential to the beneficial exercise of the power, but not +indispensably necessary to its existence. So, of the punishment of the +crimes of stealing or falsifying a record or process of a court of the +United States, or of perjury in such court. To punish these offenses is +certainly conducive to the due administration of justice. But courts may +exist, and may decide the causes brought before them, though such crimes +escape punishment. + +"The baneful influence of this narrow construction on all the operations +of the government, and the absolute impracticability of maintaining it +without rendering the government incompetent to its great objects, might +be illustrated by numerous examples drawn from the constitution, and +from our laws. The good sense of the public has pronounced, without +hesitation, that the power of punishment appertains to sovereignty, and +may be exercised whenever the sovereign has a right to act, as +incidental to his constitutional powers. It is a means for carrying into +execution all sovereign powers, and may be used, although not +indispensably necessary. It is a right incidental to the power, and +conducive to its beneficial exercise."[834] + +To attempt to prove that Congress _might_ execute its powers without the +use of other means than those absolutely necessary would be "to waste +time and argument," and "not much less idle than to hold a lighted taper +to the sun." It is futile to speculate upon imaginary reasons for the +"necessary and proper" clause, since its purpose is obvious. It "is +placed among the powers of Congress, not among the limitations on those +powers. Its terms purport to enlarge, not to diminish the powers vested +in the government.... If no other motive for its insertion can be +suggested, a sufficient one is found in the desire to remove all doubts +respecting the right to legislate on the vast mass of incidental powers +which must be involved in the constitution, if that instrument be not a +splendid bauble."[835] + +Marshall thus reaches the conclusion that Congress may "perform the high +duties assigned to it, in the manner most beneficial to the people." +Then comes that celebrated passage--one of the most famous ever +delivered by a jurist: "Let the end be legitimate, let it be within +the scope of the constitution, and all means which are appropriate, +which are plainly adapted to that end, which are not prohibited, +but consist with the letter and spirit of the constitution, are +constitutional."[836] + +Further on the Chief Justice restates this fundamental principle, +without which the Constitution would be a lifeless thing: "Where the law +is not prohibited, and is really calculated to effect any of the objects +entrusted to the government, to undertake here to inquire into the +degree of its necessity, would be to pass the line which circumscribes +the judicial department, and to tread on legislative ground. The court +disclaims all pretensions to such a power."[837] + +The fact that there were State banks with whose business the National +Bank might interfere, had nothing to do with the question of the power +of Congress to establish the latter. The National Government does not +depend on State Governments "for the execution of the great powers +assigned to it. Its means are adequate to its ends." It can choose a +National bank rather than State banks as an agency for the transaction +of its business; "and Congress alone can make the election." + +It is, then, "the unanimous and decided opinion" of the court that the +Bank Act is Constitutional. So is the establishment of the branches of +the parent bank. Can States tax these branches, as Maryland has tried to +do? Of course the power of taxation "is retained by the states," and "is +not abridged by the grant of a similar power to the government of the +Union." These are "truths which have never been denied." + +With sublime audacity Marshall then declares that "such is the paramount +character of the constitution that its capacity to withdraw any subject +from the action of even this power, is admitted."[838] This assertion +fairly overwhelms the student, since the States then attempting to tax +out of existence the branches of the National Bank did not admit, but +emphatically denied, that the National Government could withdraw from +State taxation any taxable subject whatever, except that which the +Constitution itself specifically withdraws. + +"The States," argues Marshall, "are expressly forbidden" to tax imports +and exports. This being so, "the same paramount character would seem to +restrain, as it certainly may restrain, a state from such other +exercise of this [taxing] power, as is in its nature incompatible with, +and repugnant to, the constitutional laws of the Union. A law, +absolutely repugnant to another, as entirely repeals that other as if +express terms of repeal were used." + +In this fashion Marshall holds, in effect, that Congress can restrain +the States from taxing certain subjects not mentioned in the +Constitution as fully as though those subjects were expressly named. + +It is on this ground that the National Bank claims exemption "from the +power of a state to tax its operations." Marshall concedes that "there +is no express provision [in the Constitution] for the case, but the +claim has been sustained on a principle which so entirely pervades the +constitution, is so intermixed with the materials which compose it, so +interwoven with its web, so blended with its texture, as to be incapable +of being separated from it without rendering it into shreds."[839] + +This was, indeed, going far--the powers of Congress placed on "a +principle" rather than on the language of the Constitution. When we +consider the period in which this opinion was given to the country, we +can understand--though only vaguely at this distance of time--the daring +of John Marshall. Yet he realizes the extreme radicalism of the theory +of Constitutional interpretation he is thus advancing, and explains it +with scrupulous care. + +"This great principle is that the constitution and the laws made in +pursuance thereof are supreme; that they control the constitution and +laws of the respective states, and cannot be controlled by them. From +this, which may be almost termed an axiom, other propositions are +deduced as corollaries, on the truth or error of which ... the cause is +supposed to depend."[840] + +That "cause" was not so much the one on the docket of the Supreme Court, +entitled M'Culloch _vs._ Maryland, as it was that standing on the docket +of fate entitled Nationalism _vs._ Localism. And, although Marshall did +not actually address them, everybody knew that he was speaking to the +disunionists who were increasing in numbers and boldness. Everybody +knew, also, that the Chief Justice was, in particular, replying to the +challenge of the Virginia Republican organization as given through the +Court of Appeals of that State.[841] + +The corollaries which Marshall deduced from the principle of National +supremacy were: "1st. That a power to create implies a power to +preserve. 2d. That a power to destroy, if wielded by a different hand, +is hostile to, and incompatible with these powers to create and to +preserve. 3d. That where this repugnancy exists, that authority which is +supreme must control, not yield to that over which it is supreme."[842] + +It is "too obvious to be denied," continues Marshall that, if permitted +to exercise the power, the States can tax the Bank "so as to destroy +it." The power of taxation is admittedly "sovereign"; but the taxing +power of the States "is subordinate to, and may be controlled by the +constitution of the United States. How far it has been controlled by +that instrument must be a question of construction. In making this +construction, no principle not declared can be admissible, which would +defeat the legitimate operations of a supreme government. It is of the +very essence of supremacy to remove all obstacles to its action within +its own sphere, and so to modify every power vested in subordinate +governments as to exempt its own operations from their own influence. +This effect need not be stated in terms. It is so involved in the +declaration of supremacy, so necessarily implied in it, that the +expression of it could not make it more certain. We must, therefore, +keep it [the principle of National supremacy] in view while construing +the constitution."[843] + +Unlimited as is the power of a State to tax objects within its +jurisdiction, that State power does not "extend to those means which are +employed by Congress to carry into execution powers conferred on that +body by the people of the United States ... powers ... given ... to a +government whose laws ... are declared to be supreme.... The right never +existed [in the States] ... to tax the means employed by the government +of the Union, for the execution of its powers."[844] + +Regardless of this fact, however, can States tax instrumentalities of +the National Government? It cannot be denied, says Marshall, that "the +power to tax involves the power to destroy; that the power to destroy +may defeat ... the power to create; that there is a plain repugnance, in +conferring on one government a power to control the constitutional +measures of another, which other, with respect to those very measures, +is declared to be supreme over that which exerts the control."[845] + +Here Marshall permits himself the use of sarcasm, which he dearly loved +but seldom employed. The State Rights advocates insisted that the States +can be trusted not to abuse their powers--confidence must be reposed in +State Legislatures and officials; they would not destroy needlessly, +recklessly. "All inconsistencies are to be reconciled by the magic of +the word CONFIDENCE," says Marshall. "But," he continues, "is this a +case of 'confidence'? Would the people of any one state trust those of +another with a power to control the most insignificant operations of +their state government? We know they would not." + +By the same token the people of one State would never consent that the +Government of another State should control the National Government "to +which they have confided the most important and most valuable interests. +In the legislature of the Union alone, are all represented. The +legislature of the Union alone, therefore, can be trusted by the people +with the power of controlling measures which concern all, in the +confidence that it will not be abused. This, then, is not a case of +confidence."[846] + +The State Rights theory is "capable of arresting all the measures of the +government, and of prostrating it at the foot of the states." Instead of +the National Government being "supreme," as the Constitution declares it +to be, "supremacy" would be transferred "in fact, to the states"; for, +"if the states may tax one instrument, employed by the government in the +execution of its powers, they may tax any and every other instrument. +They may tax the mail; they may tax the mint; they may tax +patent-rights; they may tax the papers of the custom-house; they may tax +judicial process; they may tax all the means employed by the government, +to an excess which would defeat all the ends of government. This was not +intended by the American people. They did not design to make their +government dependent on the states." + +The whole question is, avows Marshall, "in truth, a question of +supremacy." If the anti-National principle that the States can tax the +instrumentalities of the National Government is to be sustained, then +the declaration in the Constitution that it and laws made under it +"shall be the supreme law of the land, is empty and unmeaning +declamation."[847] + +Maryland had argued that, since the taxing power is, at least, +"concurrent" in the State and National Governments, the States can tax a +National bank as fully as the Nation can tax State banks. But, remarks +Marshall, "the two cases are not on the same reason." The whole American +people and all the States are represented in Congress; when they tax +State banks, "they tax their constituents; and these taxes must be +uniform. But, when a state taxes the operations of the government of the +United States, it acts upon institutions created, not by their own +constituents, but by people over whom they claim no control. It acts +upon the measures of a government created by others as well as +themselves, for the benefit of others in common with themselves. + +"The difference is that which always exists, and always must exist, +between the action of the whole on a part, and the action of a part on +the whole--between the laws of a government declared to be supreme, and +those of a government which, when in opposition to those laws, is not +supreme.... The states have no power, by taxation or otherwise, to +retard, impede, burden, or in any manner control the operations of the +constitutional laws enacted by Congress to carry into execution the +powers vested in the general government."[848] + +For these reasons, therefore, the judgment of the Supreme Court was that +the Maryland law taxing the Baltimore branch of the National Bank was +"contrary to the constitution ... and void"; that the judgment of the +Baltimore County Court against the branch bank "be reversed and +annulled," and that the judgment of the Maryland Court of Appeals +affirming the judgment of the County Court also "be reversed and +annulled."[849] + +In effect John Marshall thus rewrote the fundamental law of the Nation; +or, perhaps it may be more accurate to say that he made a written +instrument a living thing, capable of growth, capable of keeping pace +with the advancement of the American people and ministering to their +changing necessities. This greatest of Marshall's treatises on +government may well be entitled the "Vitality of the Constitution." +Story records that Marshall's opinion aroused great political +excitement;[850] and no wonder, since the Chief Justice announced, in +principle, that Congress had sufficient power to "emancipate every slave +in the United States" as John Randolph declared five years later.[851] + +Roane, Ritchie, Taylor, and the Republican organization of Virginia had +anticipated that the Chief Justice would render a Nationalist opinion; +but they were not prepared for the bold and crushing blows which he +rained upon their fanatically cherished theory of Localism. As soon as +they recovered from their surprise and dismay, they opened fire from +their heaviest batteries upon Marshall and the National Judiciary. The +way was prepared for them by a preliminary bombardment in the _Weekly +Register_ of Hezekiah Niles. + +This periodical had now become the most widely read and influential +publication in the country; it had subscribers from Portland to New +Orleans, from Savannah to Fort Dearborn. Niles had won the confidence of +his far-flung constituency by his honesty, courage, and ability. He was +the prototype of Horace Greeley, and the _Register_ had much the same +hold on its readers that the _Tribune_ came to have thirty years later. + +In the first issue of the _Register_, after Marshall's opinion was +delivered, Niles began an attack upon it that was to spread all over the +land. "A deadly blow has been struck at the _sovereignty of the states_, +and from a quarter so far removed from the people as to be hardly +accessible to public opinion," he wrote. "The welfare of the union has +received a more dangerous wound than fifty _Hartford_ conventions ... +could inflict." Parts of Marshall's opinion are "_incomprehensible_. But +perhaps, as some people tell us of what _they_ call the _mysteries_ of +religion, the _common people_ are not to understand them, such things +being reserved only for the _priests_!!"[852] + +The opinion of the Chief Justice was published in full in Niles's +_Register_ two weeks after he delivered it,[853] and was thus given +wider publicity than any judicial utterance previously rendered in +America. Indeed, no pronouncement of any court, except, perhaps, that in +Gibbons _vs._ Ogden,[854] was read so generally as Marshall's opinion in +M'Culloch _vs._ Maryland, until the publication of the Dred Scott +decision thirty-eight years later. Niles continues his attack in the +number of the _Register_ containing the Bank opinion: + +It is "more important than any ever before pronounced by that exalted +tribunal--a tribunal so far removed from the people, that some seem to +regard it with a species of that awful reverence in which the +inhabitants of Asia look up to their princes."[855] This exasperated +sentence shows the change that Marshall, during his eighteen years on +the bench, had wrought in the standing and repute of the Supreme +Court.[856] The doctrines of the Chief Justice amount to this, said +Niles--"congress may grant _monopolies_" at will, "if the _price_ is +paid for them, or without any pecuniary consideration at all." As for +the Chief Justice personally, he "has not added ... to his stock of +reputation by writing it--_it is excessively labored_."[857] + +Papers throughout the country copied Niles's bitter criticisms,[858] and +public opinion rapidly crystallized against Marshall's Nationalist +doctrine. Every where the principle asserted by the Chief Justice became +a political issue; or, rather, his declaration, that that principle was +law, made sharper the controversy that had divided the people since the +framing of the Constitution. + +In number after number of his _Register_ Niles, pours his wrath on +Marshall's matchless interpretation. It is "far more dangerous to the +union and happiness of the people of the United States than ... _foreign +invasion_.[859] ... Certain nabobs in Boston, New York, Philadelphia and +Baltimore, ... to secure the passage of an act of _incorporation_, ... +fairly purchase the souls of some members of the national legislature +with _money_, as happened in Georgia, or secure the votes of others by +making them _stockholders_, as occurred in New York, and the act is +passed.[860]... We call upon the people, the honest people, who hate +_monopolies_ and _privileged orders_, to arise in their strength and +purge our political temple of the _money-changers_ and those who sell +_doves_--causing a reversion to the original purity of our system of +government, that the faithful centinel may again say, 'ALL'S +WELL!'"[861] + +Extravagant and demagogical as this language of Niles's now seems, he +was sincere and earnest in the use of it. Copious quotations from the +_Register_ have been here made because it had the strongest influence on +American public opinion of any publication of its time. Niles's +_Register_ was, emphatically, the mentor of the country editor.[862] + +At last the hour had come when the Virginia Republican triumvirate could +strike with an effect impossible of achievement in 1816 when the Supreme +Court rebuked and overpowered the State appellate tribunal in Martin +_vs._ Hunter's Lessee.[863] Nobody outside of Virginia then paid any +attention to that decision, so obsessed was the country by speculation +and seeming prosperity. But in 1819 the collapse had come; poverty and +discontent were universal; rebellion against Nationalism was under way; +and the vast majority blamed the Bank of the United States for all their +woes. Yet Marshall had upheld "the monster." The Virginia Junto's +opportunity had arrived. + +No sooner had Marshall returned to Richmond than he got wind of the +coming assault upon him. On March 23, 1819, the _Enquirer_ published his +opinion in full. The next day the Chief Justice wrote Story: "Our +opinion in the Bank case has aroused the sleeping spirit of Virginia, +if indeed it ever sleeps. It will, I understand, be attacked in the +papers with some asperity, and as those who favor it never write for the +publick it will remain undefended & of course be considered as _damnably +heretical_."[864] He had been correctly informed. The attack came +quickly. + +On March 30, Spencer Roane opened fire in the paper of his cousin Thomas +Ritchie, the _Enquirer_,[865] under the _nom de guerre_ of "Amphictyon." +His first article is able, calm, and, considering his intense feelings, +fair and moderate. Roane even extols his enemy: + +"That this opinion is very able every one must admit. This was to have +been expected, proceeding as it does from a man of the most profound +legal attainments, and upon a subject which has employed his thoughts, +his tongue, and his pen, as a politician, and an historian for more than +thirty years. The subject, too, is one which has, perhaps more than any +other, heretofore drawn a broad line of distinction between the two +great parties in this country, on which line no one has taken a more +distinguished and decided rank than the judge who has thus expounded the +supreme law of the land. It is not in my power to carry on a contest +upon such a subject with a man of his gigantic powers."[866] + +Niles had spoken to "the plain people"; Roane is now addressing the +lawyers and judges of the country. His essay is almost wholly a legal +argument. It is based on the Virginia Resolutions of 1799 and gives the +familiar State Rights arguments, applying them to Marshall's +opinion.[867] In his second article Roane grows vehement, even fiery, +and finally exclaims that Virginia "never will _employ force to support +her doctrines till other measures have entirely failed_."[868] + +His attacks had great and immediate response. No sooner had copies of +the _Enquirer_ containing the first letters of Amphictyon reached +Kentucky than the Republicans of that State declared war on Marshall. On +April 20, the _Enquirer_ printed the first Western response to Roane's +call to arms. Marshall's principles, said the Kentucky correspondent, +"must raise an alarm throughout our widely extended empire.... The +people must rouse from the lap of Delilah and prepare to meet the +Philistines.... No mind can compass the extent of the encroachments upon +State and individual rights which may take place under the principles of +this decision."[869] + +[Illustration: SPENCER ROANE] + +Even Marshall, a political and judicial veteran in his sixty-fifth +year, was perturbed. "The opinion in the Bank case continues to be +denounced by the democracy in Virginia," he writes Story, after the +second of Roane's articles appeared. "An effort is certainly making to +induce the legislature which will meet in December to take up the +subject & to pass resolutions not very unlike those which were called +forth by the alien & sedition laws in 1799. Whether the effort will be +successful or not may perhaps depend in some measure on the sentiments +of our sister states. To excite this ferment the opinion has been +grossly misrepresented; and where its argument has been truly stated it +has been met by principles one would think too palpably absurd for +intelligent men. + +"But," he gloomily continues, "prejudice will swallow anything. If the +principles which have been advanced on this occasion were to prevail the +constitution would be converted into the old confederation."[870] + +As yet Roane had struck but lightly. He now renewed the Republican +offensive with greater spirit. During June, 1819, the _Enquirer_ +published four articles signed "Hampden," from Roane's pen. Ritchie +introduced the "Hampden" essays in an editorial in which he urged the +careful reading of the exposure "of the alarming errors of the Supreme +Court.... Whenever State rights are threatened or invaded, Virginia will +not be the last to sound the tocsin."[871] + +Are the people prepared "to give _carte blanche_ to our federal rulers"? +asked Hampden. Amendment of the Constitution by judicial interpretation +is taking the place of amendment by the people. Infamous as the methods +of National judges had been during the administration of Adams, "the +most abandoned of our rulers," Marshall and his associates have done +worse. They have given "a _general_ letter of attorney to the future +legislators of the Union.... That man must be a deplorable idiot who +does not see that there is no ... difference" between an "_unlimited_ +grant of power and a grant limited in its terms, but accompanied with +_unlimited_ means of carrying it into execution.... The crisis is one +which portends destruction to the liberties of the American people." +Hampden scoldingly adds: "If Mason or Henry could lift their patriot +heads from the grave, ... they would almost exclaim, with Jugurtha, +'Venal people! you will soon perish if you can find a purchaser.'"[872] + +For three more numbers Hampden pressed the Republican assault on +Marshall's opinion. The Constitution is a "_compact_, to which the +_States_ are the parties." Marshall's argument in the Virginia +Convention of 1788 is quoted,[873] and his use of certain terms in his +"Life of Washington" is cited.[874] If the powers of the National +Government ought to be enlarged, "let this be the act of the _people_, +and not that of subordinate agents."[875] The opinion of the Chief +Justice repeatedly declares "that the general government, though limited +in its powers, is supreme." Hampden avows that he does "not understand +this jargon.... The _people_ only are supreme.[876]... Our general +government ... is as much a ... 'league' as was the former +confederation." Therefore, the Virginia Court of Appeals, in Hunter +_vs._ Fairfax, declared an act of Congress "unconstitutional, although +it had been sanctioned by the opinion of the Supreme Court of the United +States." Pennsylvania, too, had maintained its "sovereignty."[877] + +Hampden has only scorn for "_some_ of the judges" who concurred in the +opinion of the Chief Justice. They "had before been accounted +republicans.... Few men come out from high places, as pure as they went +in."[878] If Marshall's doctrine stands, "the triumph over our liberties +will be ... easy and complete." What, then, could "arrest this +calamity"? Nothing but an "appeal" to the people. Let this majestic and +irresistible power be invoked.[879] + +That he had no faith in his own theory is proved by the rather dismal +fact that, more than two months before Marshall "violated the +Constitution" and "endangered the liberties" of the people by his Bank +decision, Roane actually arranged for the purchase, as an investment for +his son, of $4900 worth of the shares of the Bank of the United States, +and actually made the investment.[880] This transaction, consummated +even before the argument in M'Culloch _vs._ Maryland, shows that Roane, +the able lawyer, was sure that Marshall would and ought to sustain the +Bank in its controversy with the States that were trying to destroy it. +Moreover, Dr. John Brockenbrough, President of the Bank of Virginia, +actually advised the investment.[881] + +It is of moment, too, to note at this point the course taken by +Marshall, who had long owned stock in the Bank of the United States. As +soon as he learned that the suit had been brought which, of a certainty, +must come before him, the Chief Justice disposed of his holdings.[882] + +So disturbed was Marshall by Roane's attacks that he did a thoroughly +uncharacteristic thing. By way of reply to Roane he wrote, under the +_nom de guerre_ of "A Friend of the Union," an elaborate defense of his +opinion and, through Bushrod Washington, procured the publication of it +in the _Union_ of Philadelphia, the successor of the _Gazette of the +United States_, and the strongest Federalist newspaper then surviving. + +On June 28, 1819, the Chief Justice writes Washington: "I expected three +numbers would have concluded my answer to Hampden but I must write two +others which will follow in a few days. If the publication has not +commenced I could rather wish the signature to be changed to 'A +Constitutionalist.' A Friend of the Constitution is so much like a +Friend of the Union that it may lead to some suspicion of identity.... I +hope the publication has commenced unless the Editor should be unwilling +to devote so much of his paper to this discussion. The letters of +Amphyction & of Hampden have made no great impression in Richmond but +they were designed for the country [Virginia] & have had considerable +influence there. I wish the refutation to be in the hands of some +respectable members of the legislature as it may prevent some act of the +assembly [torn--probably "both"] silly & wicked. If the publication be +made I should [like] to have two or three sets of the papers to hand if +necessary. I will settle with you for the printer."[883] + +The reading of Marshall's newspaper effort is exhausting; a summary of +the least uninteresting passages will give an idea of the whole paper. +The articles published in the _Enquirer_ were intended, so he wrote, to +inflict "deep wounds on the constitution," are full of "mischievous +errours," and are merely new expressions of the old Virginia spirit of +hostility to the Nation. The case of M'Culloch _vs._ Maryland serves +only as an excuse "for once more agitating the publick mind, and +reviving those unfounded jealousies by whose blind aid ambition climbs +the ladder of power."[884] + +After a long introduction, Marshall enters upon his defense which is as +wordy as his answer to the Virginia Resolutions. He is sensitive over +the charge, by now popularly made, that he controls the Supreme Court, +and cites the case of the Nereid to prove that the Justices give +dissenting opinions whenever they choose. "The course of every tribunal +must necessarily be, that the opinion which is to be delivered as the +opinion of the court, is previously submitted to the consideration of +all the judges; and, if any part of the reasoning be disapproved, it +must be so modified as to receive the approbation of all, before it can +be delivered as the opinion of all." + +Roane's personal charges amount to this: "The chief justice ... is a +federalist; who was a politician of some note before he was judge; and +who with his tongue and his pen supported the opinions he avowed." With +the politician's skill Marshall uses the fact that the majority of the +court, which gave the Nationalist judgment in M'Culloch _vs._ Maryland, +were Republicans--"four of whom [Story, Johnson, Duval, and Livingston] +have no political sin upon their heads;--who in addition to being +eminent lawyers, have the still greater advantage of being sound +republicans; of having been selected certainly not for their federalism, +by Mr Jefferson, and Mr Madison, for the high stations they so properly +fill." For eight tedious columns of diffuse repetition Marshall goes on +in defense of his opinion.[885] + +When the biographer searches the daily life of a man so surpassingly +great and good as Marshall, he hopes in no ungenerous spirit to find +some human frailty that identifies his hero with mankind. The Greeks did +not fail to connect their deities with humanity. The leading men of +American history have been ill-treated in this respect--for a century +they have been held up to our vision as superhuman creatures to admire +whom was a duty, to criticize whom was a blasphemy, and to love or +understand whom was an impossibility. + +All but Marshall have been rescued from this frigid isolation. Any +discovery of human frailty in the great Chief Justice is, therefore, +most welcome. Some small and gracious defects in Marshall's character +have appeared in the course of these volumes; and this additional +evidence of his susceptibility to ordinary emotion is very pleasing. +With all his stern repression of that element of his character, we find +that he was sensitive in the extreme; in reality, thirsting for +approval, hurt by criticism. In spite of this desire for applause and +horror of rebuke, however, he did his duty, knowing beforehand that his +finest services would surely bring upon him the denunciation and abuse +he so disliked. By such peevishness as his anonymous reply in the +_Union_ to Roane's irritating attacks, we are able to get some measure +of the true proportions of this august yet very human character. + +When Marshall saw, in print, this controversial product of his pen, he +was disappointed and depressed. The editor had, he avowed, so confused +the manuscript that it was scarcely intelligible. At any rate, Marshall +did not want his defense reproduced in New England. Story had heard of +the article in the _Union_, and wrote Marshall that he wished to secure +the publication of it. The Chief Justice replied: + +"The piece to which you allude was not published in Virginia. Our +patriotic papers admit no such political heresies. It contained, I +think, a complete demonstration of the fallacies & errors contained in +those attacks on the opinion of the Court which have most credit here & +are supposed to proceed from a high source,[886] but was so mangled in +the publication that those only who had bestowed close attention to the +subject could understand it. + +"There were two numbers[887] & the editor of the Union in Philadelphia, +the paper in which it was published, had mixed the different numbers +together so as in several instances to place the reasoning intended to +demonstrate one proposition under another. The points & the arguments +were so separated from each other, & so strangely mixed as to constitute +a labyrinth to which those only who understood the whole subject +perfectly could find a clue."[888] + +It appears that Story insisted on having at least Marshall's rejoinder +to Roane's first article reproduced in the Boston press. Again the Chief +Justice evades the request of his associate and confidant: "I do not +think a republication of the piece you mention in the Boston papers to +be desired, as the antifederalism of Virginia will not, I trust, find +its way to New England. I should also be sorry to see it in Mr. +Wheaton's[889] appendix because that circumstance might lead to +suspicions regarding the author & because I should regret to see it +republished in its present deranged form with the two centres +transposed."[890] + +For a brief space, then, the combatants rested on their arms, but each +was only gathering strength for the inevitable renewal of the engagement +which was to be sterner than any previous phases of the contest. + +Soon after the convening of the first session of the Virginia +Legislature held subsequent to the decision of M'Culloch _vs._ Maryland, +Roane addressed the lawmakers through the _Enquirer_, now signing +himself "Publicola." He pointed out the "absolute disqualification of +the supreme court of the U. S. to decide with impartiality upon +controversies between the General and State Governments";[891] and, to +"ensure _unbiassed_" decisions, insisted upon a Constitutional amendment +to establish a tribunal "(as occasion may require)" appointed partly by +the States and partly by the National Government, "with _appellate_ +jurisdiction from the present supreme court."[892] + +Promptly a resolution against Marshall's opinion was offered in the +House of Delegates.[893] This noteworthy paper was presented by Andrew +Stevenson, a member of the "committee for Courts of Justice."[894] The +resolutions declared that the doctrines of M'Culloch _vs._ Maryland +would "undermine the pillars of the Constitution itself." The provision +giving to the judicial power "_all cases_ arising _under the +Constitution_" did not "extend to questions which would amount to a +subversion of the constitution itself, by the usurpation of one +contracting party on another." But Marshall's opinion was calculated to +"change the whole character of the government."[895] + +Sentences from the opinion of the Chief Justice are quoted, including +the famous one: "Let the end be legitimate, ... and all the means which +are appropriate, ... which are not prohibited, ... are constitutional." +Did not such expressions import that Congress could "conform the +constitution to their own designs" by the exercise of "unlimited and +uncontrouled" power? The ratifying resolution of the Constitution by the +Virginia Convention of 1788 is quoted.[896] Virginia's voice had been +heard to the same effect in the immortal Resolutions of 1799. Her views +had been endorsed by the country in the Presidential election of +1800--that "great revolution of principle." Her Legislature, therefore, +"enter their most solemn protest, against the decision of the supreme +court, and of the principles contained in it." + +In this fashion the General Assembly insisted on an amendment to the +National Constitution "creating a _tribunal_" authorized to decide +questions relative to the "powers of the general and state governments, +under the compact." The Virginia Senators are, therefore, instructed to +do their best to secure such an amendment and "to resist on every +occasion" attempted legislation by Congress in conflict with the views +set forth in this resolution or those of 1799 "which have been +re-considered, and are fully and entirely approved of by this Assembly." +The Governor is directed to transmit the resolutions to the other +States.[897] + +At this point Slavery and Secession enter upon the scene. Almost +simultaneously with the introduction of the resolutions denouncing +Marshall and the Supreme Court for the judgment and opinion in M'Culloch +_vs._ Maryland, other resolutions were offered by a member of the House +named Baldwin denouncing the imposition of restrictions on Missouri (the +prohibition of slavery) as a condition of admitting that Territory to +the Union. Such action by Congress would "excite feelings eminently +hostile to the fraternal affection and prudent forbearance which ought +ever to pervade the confederated union."[898] Two days later, December +30, the same delegate introduced resolutions to the effect that only the +maintenance of the State Rights principle could "preserve the +confederated union," since "no government can long exist which lies at +the mercy of another"; and, inferentially, that Marshall's opinion in +M'Culloch _vs._ Maryland had violated that principle.[899] + +A yet sterner declaration on the Missouri question quickly followed, +declaring that Congress had no power to prohibit slavery in that State, +and that "Virginia will support the good people of Missouri in their +just rights ... and will co-operate with them in resisting with manly +fortitude any attempt which Congress may make to impose restraints or +restrictions as the price of their admission" to the Union.[900] The +next day these resolutions, strengthened by amendment, were +adopted.[901] On February 12, 1820, the resolutions condemning the +Nationalist doctrine expounded by the Chief Justice in the Bank case +also came to a vote and passed, 117 ayes to 38 nays.[902] They had been +amended and reamended,[903] but, as adopted, they were in substance the +same as those originally offered by Stevenson. Through both these sets +of resolutions--that on the Missouri question and that on the Bank +decision--ran the intimation of forcible resistance to National +authority. Introduced at practically the same time, drawn and advocated +by the same men, passed by votes of the same members, these important +declarations of the Virginia Legislature were meant to be and must be +considered as a single expression of the views of Virginia upon National +policy. + +In this wise did the Legislature of his own State repudiate and defy +that opinion of John Marshall which has done more for the American +Nation than any single utterance of any other one man, excepting only +the Farewell Address of Washington. In such manner, too, was the slavery +question brought face to face with Marshall's lasting exposition of the +National Constitution. For, it should be repeated, in announcing the +principles by virtue of which Congress could establish the Bank of the +United States, the Chief Justice had also asserted, by necessary +inference, the power of the National Legislature to exact the exclusion +of slavery as a condition upon which a State could be admitted to the +Union. At least this was the interpretation of Virginia and the South. + +The slavery question did not, to be sure, closely touch Northern States, +but their local interests did. Thus it was that Ohio aligned herself +with Virginia in opposition to Marshall's Nationalist statesmanship, and +in support of the Jeffersonian doctrine of Localism. In such fashion did +the Ohio Bank question become so intermingled with the conflict over +Slavery and Secession that, in the consideration of Marshall's opinions +at this time, these controversies cannot be separated. The facts of the +Ohio Bank case must, therefore, be given at this point.[904] + +Since the establishment at Cincinnati, early in 1817, of a branch of +the Bank of the United States, Ohio had threatened to drive it from the +State by a prohibitive tax. Not long before the argument of M'Culloch +_vs._ Maryland in the Supreme Court, the Ohio Legislature laid an annual +tax of $50,000 on each of the two branches which, by that time, had been +established in that State.[905] On February 8, 1819, only four days +previous to the hearing of the Maryland case at Washington, and less +than a month before Marshall delivered his opinion, the Ohio lawmakers +passed an act directing the State Auditor, Ralph Osborn, to charge this +tax of $50,000 against each of the branches, and to issue a warrant for +the immediate collection of $100,000, the total amount of the first +year's tax. + +This law is almost without parallel in severity, peremptoriness, and +defiant contempt for National authority. If the branches refused to pay +the tax, the Ohio law enjoined the person serving the State Auditor's +warrant to seize all money or property belonging to the Bank, found on +its premises or elsewhere. The agent of the Auditor was directed to open +the vaults, search the offices, and take everything of value.[906] + +Immediately the branch at Chillicothe obtained from the United States +District Court, then in session at that place, an injunction forbidding +Osborn from collecting the tax;[907] but the bank's counsel forgot to +have a writ issued to stay the proceedings. Therefore, no order of the +court was served; instead a copy of the bill praying that the Auditor be +restrained, together with a subpoena to answer, was sent to Osborn. +These papers were not, of course, an injunction, but merely notice that +one had been applied for. Thinking to collect the tax before the +injunction could be issued, Osborn forthwith issued his Auditor's +warrant to one John L. Harper to collect the tax immediately. Assisted +by a man named Thomas Orr, Harper entered the Chillicothe branch of the +Bank of the United States, opened the vaults, seized all the money to be +found, and deposited it for the night in the local State bank. Next +morning Harper and Orr loaded the specie, bank notes, and other +securities in a wagon and started for Columbus.[908] + +The branch bank tardily obtained an order from the United States Court +restraining Osborn, the State Auditor, and Harper, the State agent, from +delivering the money to the State Treasurer and from making any report +to the Legislature of the collection of the tax. This writ was served on +Harper as he and Orr were on the road to the State Capital with the +money. Harper simply ignored the writ, drove on to Columbus, and handed +over to the State Treasurer the funds which he had seized at +Chillicothe. + +Harper and Orr were promptly arrested and imprisoned in the jail at +Chillicothe.[909] Because of technical defects in serving the warrant +for their arrest and in the return of the marshal, the prisoners were +set free.[910] An order was secured from the United States Court +directing Osborn and Harper to show cause why an attachment should not +be issued against them for having disobeyed the court's injunction not +to deliver the bank's money to the State Treasurer. After extended +argument, the court issued the attachment, which, however, was not made +returnable until the January term, 1821. + +Meanwhile the Virginia Legislature passed its resolutions denouncing +Marshall's opinion in M'Culloch _vs._ Maryland, and throughout the +country the warfare upon the Supreme Court began. The Legislature of +Ohio acted with a celerity and boldness that made the procedure of the +Virginia Legislature seem hesitant and timid. A joint committee was +speedily appointed and as promptly made its report. This report and the +resolutions recommended by it were adopted without delay and transmitted +to the Senate of the United States.[911] + +The Ohio declaration is drawn with notable ability. A State cannot be +sued--the true meaning of the Constitution forbids, and the Eleventh +Amendment specifically prohibits, such procedure. + +Yet the action against Osborn, State Auditor, and Samuel Sullivan, State +Treasurer, is, "to every substantial purpose, a process against the +State." The decision of the National Supreme Court that the States have +no power to tax branches of the Bank of the United States does not bind +Ohio or render her tax law "a dead letter."[912] + +The Ohio Legislature challenges the _bona fides_ of M'Culloch _vs._ +Maryland: "If, by the management of a party, and through the +inadvertence or connivance of a State, a case be made, presenting to the +Supreme Court of the United States for decision important ... questions +of State power and State authority, upon no just principle ought the +States to be concluded by any decision had upon such a case.... Such is +the true character of the case passed upon the world by the title of +McCulloch _vs._ Maryland," which, "when looked into, is found to be ... +throughout, an agreed case, made expressly for the purpose of obtaining +the opinion of the Supreme Court of the United States.... This agreed +case was manufactured in the summer of the year 1818" and rushed through +two Maryland courts, "so as to be got upon the docket of the Supreme +Court of the United States for adjudication at their February term, +1819.... It is truly an alarming circumstance if it be in the power of +an aspiring corporation and an unknown and obscure individual thus to +elicit opinions compromitting the vital interests of the States that +compose the American Union." + +Luckily for Ohio and all the States, this report goes on to say, some +of Marshall's opinions have been "totally impotent and unavailing," as, +for instance, in the case of Marbury _vs._ Madison. Marbury did not get +his commission; "the person appointed in his place continued to act; his +acts were admitted to be valid; and President Jefferson retained his +standing in the estimation of the American people." It was the same in +the case of Fletcher _vs._ Peck. Marshall held that "the Yazoo +purchasers ... were entitled to their lands. But the decision availed +them nothing, unless as a make-weight in effecting a compromise." Since, +in neither of these cases, had the National Government paid the +slightest attention to the decision of the Supreme Court, how could Ohio +"be condemned because she did not abandon her solemn legislative acts as +a dead letter upon the promulgation of an opinion of that +tribunal"?[913] + +The Ohio Legislature then proceeds to analyze Marshall's opinion in +M'Culloch _vs._ Maryland. All the arguments made against the principle +of implied powers since Hamilton first announced that principle,[914] +and all the reasons advanced against the doctrine that the National +Government is supreme, in the sense employed by Marshall, are restated +with clearness and power. However, since the object of the tax was to +drive the branches of the Bank out of Ohio, the Legislature suggests a +compromise. If the National institution will cease business within the +State and "give assurance" that the branches be withdrawn, the State +will refund the tax money it has seized.[915] + +Instantly turning from conciliation to defiance, "because the reputation +of the State has been assailed," the Legislature challenges the National +Government to make good Marshall's assertion that the power which +created the Bank "must have the power to preserve it." Ohio should pass +laws "forbidding the keepers of our jails from receiving into their +custody any person committed at the suit of the Bank of the United +States," and prohibiting Ohio judges, recorders, notaries public, from +recognizing that institution in any way.[916] Congress will then have to +provide a criminal code, a system of conveyances, and other extensive +measures. Ohio and the country will then learn whether the power that +created the Bank can preserve it. + +The Ohio memorial concludes with a denial that the "political rights" +and "sovereign powers" of a State can be settled by the Supreme Court of +the Nation "in cases contrived between individuals, and where they [the +States] are, no one of them, parties direct." The resolutions further +declare that the opinion of the other States should be secured.[917] +This alarming manifesto was presented to the National Senate on February +1, 1821, just six weeks before Marshall delivered the opinion of the +Supreme Court in Cohens _vs._ Virginia.[918] + +Pennsylvania had already taken stronger measures; had anticipated even +Virginia. Within seven weeks from the delivery of Marshall's opinion in +M'Culloch _vs._ Maryland, the Legislature of Pennsylvania proposed an +amendment to the National Constitution prohibiting Congress from +authorizing "any bank or other monied institution" outside of the +District of Columbia.[919] The action of Ohio was an endorsement of that +of Virginia and Pennsylvania. Indiana had already swung into line.[920] +So had Illinois and Tennessee.[921] For some reason, Kentucky, soon to +become one of the most belligerent and persevering of all the States in +her resistance to the "encroachments" of Nationalism as expounded by the +Supreme Court, withheld her hand for the moment. + +Most unaccountably, South Carolina actually upheld Marshall's +opinion,[922] which that State, within a decade, was to repudiate, +denounce, and defy in terms of armed resistance.[923] New York and +Massachusetts,[924] consulting their immediate interests, were very +stern against the Localism of Ohio, Virginia, and Pennsylvania.[925] +Georgia expressed her sympathy with the Localist movement, but, for the +time being, was complaisant[926]--a fact the more astonishing that she +had already proved, and was soon to prove again, that Nationalism is a +fantasy unless it is backed by force.[927] + +Notwithstanding the eccentric attitude of various members of the Union, +it was only too plain that a powerful group of States were acting in +concert and that others ardently sympathized with them. + +At this point, in different fashion, Virginia spoke again, this time by +the voice of that great protagonist of Localism, John Taylor of +Caroline, the originator of the Kentucky Resolutions,[928] and the most +brilliant mind in the Republican organization of the Old Dominion. +Immediately after Marshall's opinion in M'Culloch _vs._ Maryland, and +while the Ohio conflict was in progress, he wrote a book in denunciation +and refutation of Marshall's Nationalist principles. The editorial by +Thomas Ritchie, commending Taylor's book, declares that "the crisis has +come"; the Missouri question, the Tariff question, the Bank question, +have brought the country to the point where a decision must be made as +to whether the National Government shall be permitted to go on with its +usurpations. "If there is any book capable of arousing the people, it is +the one before us." + +Taylor gave to his volume the title "Construction Construed, and +Constitutions Vindicated." The phrases "exclusive interests" and +"exclusive privileges" abound throughout the volume. Sixteen chapters +compose this classic of State Rights philosophy. Five of them are +devoted to Marshall's opinion in M'Culloch _vs._ Maryland; the others to +theories of government, the state of the country, the protective tariff, +and the Missouri question. The principles of the Revolution, avows +Taylor, "are the keys of construction" and "the locks of +liberty.[929]... No form of government can foster a fanaticism for +wealth, without being corrupted." Yet Marshall's ideas establish "the +despotick principle of a gratuitous distribution of wealth and poverty +by law."[930] + +If the theory that Congress can create corporations should prevail, +"legislatures will become colleges for teaching the science of getting +money by monopolies or favours."[931] To pretend faith in Christianity, +and yet foster monopoly, is "like placing Christ on the car of +Juggernaut."[932] The framers of the National Constitution tried to +prevent the evils of monopoly and avarice by "restricting the powers +given to Congress" and safeguarding those of the States; "in fact, by +securing the freedom of property."[933] + +Marshall is enamored of the word "sovereignty," an "equivocal and +illimitable word," not found in "the declaration of independence, nor +the federal constitution, nor the constitution of any single state"; all +of them repudiated it "as a traitor of civil rights."[934] Well that +they had so rejected this term of despotism! No wonder Jugurtha +exclaimed, "Rome was for sale," when "the government exercised an +absolute power over the national property." Of course it would "find +purchasers."[935] To this condition Marshall's theories will bring +America. + +[Illustration: JOHN TAYLOR] + +Whence this effort to endow the National Government with powers +comparable to those of a monarchy? Plainly it is a reaction--"many wise +and good men, ... alarmed by the illusions of Rousseau and Godwin, and +the atrocities of the French revolution, honestly believe that these +[democratic] principles have teeth and claws, which it is expedient to +draw and pare, however constitutional they may be; without considering +that such an operation will subject the generous lion to the wily +fox; ... subject liberty and property to tyranny and fraud."[936] + +In chapter after chapter of clever arguments, illumined by the sparkle +of such false gems as these quotations, Taylor prepares the public mind +for his direct attack on John Marshall. He is at a sad disadvantage; he, +"an unknown writer," can offer only "an artless course of reasoning" +against the "acute argument" of Marshall's opinion, concurred in by the +members of the Supreme Court whose "talents," "integrity," +"uprightness," and "erudition" are universally admitted.[937] The +essence of Marshall's doctrine is that, although the powers of the +National Government are limited, the means by which they may be executed +are unlimited. But, "as ends may be made to beget means, so means may be +made to beget ends, until the co-habitation shall rear a progeny of +unconstitutional bastards, which were not begotten by the people."[938] + +Marshall had said that "'the creation of a corporation appertains to +sovereignty.'" This is the language of tyranny. The corporate idea crept +into British law "wherein it hides the heart of a prostitute under the +habiliments of a virgin."[939] But since, in America, only the people +are "sovereign," and, to use Marshall's own words, the power to create +corporations "appertains to sovereignty," it follows that neither State +nor National Governments can create corporations.[940] + +The Chief Justice is a master of the "science of verbality" by which the +Constitution may be rendered "as unintelligible, as a single word would +be made by a syllabick dislocation, or a jumble of its letters; and turn +it into a reservoir of every meaning for which its expounder may have +occasion." + +Where does Marshall's "artifice of verbalizing" lead?[941] To an +"artificially reared, a monied interest ... which is gradually obtaining +an influence over the federal government," and "craftily works upon the +passions of the states it has been able to delude" [on the slavery +question], "to coerce the defrauded and discontented states into +submission." For this reason talk of civil war abounds. "For what are +the states talking about disunion, and for what are they going to war +among themselves? To create or establish a monied sect, composed of +privileged combinations, as an aristocratical oppressor of them +all."[942] Marshall's doctrine that Congress may bestow "exclusive +privileges" is at the bottom of the Missouri controversy. "Had the +motive ... never existed, the discussion itself would never have +existed; but if the same cause continues, more fatal controversies may +be expected."[943] + +Finally Taylor hurls at the Nation the challenge of the South, which the +representatives of that section, from the floor of Congress, quickly +repeated in threatenings of civil war.[944] "There remains a right, +anterior to every political power whatsoever, ... the natural right of +self-defence.... It is allowed, on all hands, that danger to the +slave-holding states lurks in their existing situation, ... and it must +be admitted that the right of self-defence applies to that situation.... +I leave to the reader the application of these observations."[945] + +Immediately upon its publication, Ritchie sent a copy of Taylor's book +to Jefferson, who answered that he knew "before reading it" that it +would prove "orthodox." The attack upon the National courts could not be +pressed too energetically: "The judiciary of the United States is the +subtle corps of sappers and miners constantly working under ground to +undermine the foundations of our confederated fabric.... An opinion is +huddled up in conclave, perhaps by a majority of one, delivered as if +unanimous, and with the silent acquiescence of lazy and timid +associates, by a crafty chief judge, who sophisticates the law to his +mind, by the turn of his own reasoning."[946] + + +FOOTNOTES: + +[784] These penalties were forfeits of $500 for every offense--a sum +that would have aggregated hundreds of thousands, perhaps millions of +dollars, in the case of the Baltimore branch, which did an enormous +business. The Maryland law also provided that "every person having any +agency in circulating" any such unauthorized note of the Bank should be +fined one hundred dollars. (Act of Feb. 11, 1818, _Laws of Maryland_, +174.) + +[785] Story to White, March 3, 1819, Story, I, 325. + +[786] Webster always dressed with extreme care when he expected to make +a notable speech or argument. For a description of his appearance on +such an occasion see Sargent: _Public Men and Events_, I, 172. + +[787] 4 Wheaton, 323. + +[788] _Ib._ 324. + +[789] _Ib._ 327. + +[790] _Ib._ 328. + +[791] 4 Wheaton, 330 _et seq._ + +[792] _Ib._ 362 _et seq._ + +[793] _Ib._ 272-73. + +[794] _Ib._ 374. + +[795] Tyler: _Memoir of Roger Brooke Taney_, 141. + +[796] The student should carefully examine Pinkney's argument. Although +the abstract of it given in Wheaton's report is very long, a painstaking +study of it will be helpful to a better understanding of the development +of American Constitutional law. (4 Wheaton, 377-400.) + +[797] Story to White, March 3, 1819, Story, I, 324-25. + +[798] 4 Wheaton, 426. + +[799] See _supra_, chap. V. + +[800] Webster to Mason, Feb. 24, 1819, Van Tyne, 78-79. + +[801] Webster to Smith, Feb. 28, 1819, _ib._ 79-80. + +[802] From February 22 to February 27 and from March 1 to March 3, 1819. + +[803] February 18, 1819. See _Annals_, 15th Cong. 2d Sess. 1240. + +[804] _Ib._ 1242. + +[805] _Annals_, 15th Cong. 2d Sess. 1249-50. + +[806] _Ib._ 1254. + +[807] _Ib._ 1286. + +[808] _Ib._ 1311. + +[809] _Ib._ 1404-06. + +[810] "Marshall's opinion in M'Culloch _vs._ Maryland, is perhaps the +most celebrated Judicial utterance in the annals of the English speaking +world." (_Great American Lawyers_: Lewis, II, 363.) + +[811] As the biographer of Washington, Marshall had carefully read both +Hamilton's and Jefferson's Cabinet opinions on the constitutionality of +a National bank. Compare Hamilton's argument (vol. II, 72-74, of this +work) with Marshall's opinion in M'Culloch _vs._ Maryland. + +[812] 4 Wheaton, 400. + +[813] _Ib._ (Italics the author's.) + +[814] 4 Wheaton, 400-02. + +[815] "In discussing this question, the counsel for the state of +Maryland have deemed it of some importance, in the construction of the +constitution, to consider that instrument not as emanating from the +people, but as the act of sovereign and independent states. The powers +of the general government, it has been said, are delegated by the +states, who alone are truly sovereign; and must be exercised in +subordination to the states, who alone possess supreme dominion. + +"It would be difficult to sustain this proposition. The convention which +framed the constitution was indeed elected by the state legislatures. +But the instrument, when it came from their hands, was a mere proposal, +without obligation, or pretensions to it. It was reported to the then +existing Congress of the United States, with a request that it might 'be +submitted to a convention of delegates, chosen in each state, by the +people thereof, under the recommendation of its legislature, for their +assent and ratification.' This mode of proceeding was adopted; and by +the convention, by Congress, and by the state legislatures, the +instrument was submitted to the people. + +"They acted upon it in the only manner in which they can act safely, +effectively, and wisely, on such a subject, by assembling in convention. +It is true, they assembled in their several states--and where else +should they have assembled? No political dreamer was ever wild enough to +think of breaking down the lines which separate the states, and of +compounding the American people into one common mass. Of consequence, +when they act, they act in their states. But the measures they adopt do +not, on that account, cease to be the measures of the people themselves, +or become the measures of the state governments. From these conventions +the constitution derives its whole authority." (4 Wheaton, 402-03.) + +[816] 4 Wheaton, 403-04. + +[817] _Ib._ 405. + +[818] The Nationalist ideas of Marshall and Lincoln are identical; and +their language is so similar that it seems not unlikely that Lincoln +paraphrased this noble passage of Marshall and thus made it immortal. +This probability is increased by the fact that Lincoln was a profound +student of Marshall's Constitutional opinions and committed a great many +of them to memory. + +The famous sentence of Lincoln's Gettysburg Address was, however, almost +exactly given by Webster in his Reply to Hayne: "It is ... the people's +Government; made for the people; made by the people; and answerable to +the people." (_Debates_, 21st Cong. 1st Sess. 74; also Curtis, I, +355-61.) But both Lincoln and Webster merely stated in condensed and +simpler form Marshall's immortal utterance in M'Culloch _vs._ Maryland. +(See also _infra_, chap. X.) + +[819] 4 Wheaton, 405-06. + +[820] 4 Wheaton, 406-07. (Italics the author's.) + +[821] _Ib._, 407-08. + +[822] See vol. I, 72, of this work. + +[823] 4 Wheaton, 408-09. + +[824] 4 Wheaton, 409-10. + +[825] _Ib._ 411. + +[826] "The Congress shall have Power ... to make all Laws which shall be +necessary and proper for carrying into Execution the foregoing Powers, +and all other Powers vested by this Constitution in the Government of +the United States, or in any Department or Officer thereof." +(Constitution of the United States, Article I, Section 8.) + +[827] 4 Wheaton, 412. + +[828] _Ib._ 413. + +[829] See vol. II, 71, of this work. + +[830] Vol. II, 72-74, of this work. + +[831] 4 Wheaton, 414. + +[832] 4 Wheaton, 415. + +[833] _Ib._ 416-17. + +[834] 4 Wheaton, 417-18. + +[835] 4 Wheaton, 419-21. + +[836] _Ib._ 421. + +[837] _Ib._ 423. + +[838] 4 Wheaton, 424-25. + +[839] 4 Wheaton, 425-26. + +[840] 4 Wheaton, 426. + +[841] See _supra_, 158 _et seq._ + +[842] 4 Wheaton, 426. + +[843] 4 Wheaton, 427. + +[844] _Ib._ 429-30. + +[845] 4 Wheaton, 431. + +[846] _Ib._ + +[847] 4 Wheaton, 432-33. + +[848] 4 Wheaton, 435-36. + +[849] _Ib._ 437. + +[850] Story to his mother, March 7, 1819, Story, I, 325-26. + +[851] See _infra_, 420; also 325-27; 338-39, 534-37. + +[852] Niles, XVI, 41-44. + +[853] _Ib._ 68-76. + +[854] See _infra_, chap. VIII. + +[855] Niles, XVI, 65. + +[856] See vol. III, 130-31, of this work. + +[857] Niles, XVI, 65. + +[858] _Ib._ 97. For instance, the _Natchez Press_, in announcing its +intention to print Marshall's whole opinion, says that, if his doctrine +prevails, "the independence of the individual states ... is obliterated +at one fell sweep." No country can remain free "that tolerates +incorporated banks, in any guise." (_Ib._ 210.) + +[859] _Ib._ 103. + +[860] _Ib._ 104. + +[861] Niles, XVI, 105. + +[862] Niles's attack on Marshall's opinion in M'Culloch _vs._ Maryland +ran through three numbers. (See _ib._ 41-44; 103-05; 145-47.) + +[863] See _supra_, 161-67. + +[864] Marshall to Story, March 24, 1819, _Proceedings, Mass, Hist. Soc._ +2d Series, XIV, 324. + +[865] See _supra_, 146. + +[866] Enquirer, March 30, 1819, as quoted in _Branch Hist. Papers_, +June, 1905, 52-53. + +[867] _Branch Hist. Papers_, June, 1905, 51-63. + +[868] _Enquirer_, April 2, 1819, as quoted in _Branch Hist. Papers_, +June, 1905, 76. (Italics the author's.) + +[869] _Enquirer_, April 20, 1819, as quoted in _ib._ 76. + +[870] Marshall to Story, May 27, 1819, _Proceedings, Mass. Hist. Soc._ +2d Series, XIV, 325. + +[871] _Enquirer_, June 11, 1819, as quoted in _Branch Hist. Papers_, +June, 1905, footnote to 77. + +[872] _Enquirer_, June 11, 1819, as quoted in _Branch Hist. Papers_, +June, 1905, 77-82. + +[873] _Enquirer_, June 15, 1819, as quoted in _ib._ 85; also _Enquirer_, +June 18, 1819, as quoted in _ib._ 95. + +[874] _Enquirer_, June 15, 1819, as quoted in _ib._ 91. + +[875] _Ib._ 87; also _Enquirer_, June 18, 1819, as quoted in _ib._ +96-97. + +[876] _Ib._ 98. + +[877] _Enquirer_, June 22, 1819, as quoted in _Branch Hist. Papers_, +June, 1905, 116. + +[878] _Ib._ 118. + +[879] _Ib._ 121. Madison endorsed Roane's attacks on Marshall. (See +Madison to Roane, Sept. 2, 1819, _Writings of James Madison_: Hunt, +VIII, 447-53.) + +[880] See Roane to his son, Jan. 4, 1819, _Branch Hist. Papers_, June, +1905, 134; and same to same, Feb. 4, 1819, _ib._ 135. + +Eighteen days before Marshall delivered his opinion Roane again writes +his son: "I have to-day deposited in the vaults of the Virga. bank a +certificate in your name for 50 shares U. S. bank stock, as per memo., +by Mr. Dandridge Enclosed. The shares cost, as you will see, $98 each." +(Roane to his son, Feb. 16, 1810, _ib._ 136.) + +[881] Roane to his son, note 4, p. 317. + +[882] The entire transaction is set out in letters of Benjamin Watkins +Leigh to Nicholas Biddle, Aug. 21, Aug. 28, Sept. 4, and Sept. 13, 1837; +and Biddle to Leigh, Aug. 24 and 25, Sept. 7 and Sept. 15, 1837. (Biddle +MSS. in possession of Professor R. C. McGrane of the University of Ohio, +to whose courtesy the author is indebted for the use of this material. +These letters appear in full in the _Correspondence of Nicholas Biddle_: +McGrane, 283-89, 291-92, published in September, 1919, by Houghton +Mifflin Company, Boston.) + +[883] Marshall to Bushrod Washington, June 28, 1819. This letter is +unsigned, but is in Marshall's unmistakable handwriting and is endorsed +by Bushrod Washington, "C. Just. Marshall." (Marshall MSS. Lib. Cong.) + +[884] UNION, April 24, 1819. + +[885] _Union_, April 24, 1819. + +[886] Marshall means that Jefferson inspired Roane's attacks. + +[887] Marshall had written five essays, but the editor condensed them +into two numbers. + +[888] Marshall to Story, May 27, 1819, _Proceedings, Mass. Hist. Soc._ +2d Series, XIV, 325. + +[889] Henry Wheaton, Reporter of the Supreme Court. + +[890] Marshall to Story, July 13, 1819, _Proceedings, Mass. Hist. Soc._ +2d Series, XIV, 326. + +[891] _Enquirer_, Jan. 30, 1821. + +[892] _Ib._ Feb. 1, 1821. + +[893] _Journal_, House of Delegates, Virginia, 1819-20, 56-59. + +[894] _Ib._ 9. + +[895] _Ib._ 57. + +[896] This resolution declared that Virginia assented to the +Constitution only on condition that "Every power _not granted_, remains +with the people, and at their will; that _therefore no right of any +denomination can be cancelled, abridged, restrained, or modified_, by +the congress, by the senate, or house of representatives acting in any +capacity; by the President or any department, or officer of the United +States, except in those instances in which power is given by the +constitution for those purposes." (_Journal_, House of Delegates, +Virginia, 1819-20, 58.) + +[897] _Journal_, House of Delegates, Virginia, 1819-20, 59. + +[898] _Ib._ 76. + +[899] _Journal_, House of Delegates, Virginia, 1819-20, 85. + +[900] _Ib._ 105. + +[901] _Ib._ 108-09. + +[902] _Ib._ 179. + +[903] _Ib._ 175-78. + +[904] For Marshall's opinion in this controversy see _infra_, 347 _et +seq._ + +[905] The second branch was established at Chillicothe. + +[906] Chap. 83, _Laws of Ohio, 1818-19_, 1st Sess. 190-99. + +Section 5 of this act will give the student the spirit of this +autocratic law. This section made it the "duty" of the State agent +collecting the tax, after demand on and refusal of the bank officers to +pay the tax, if he cannot readily find in the bank offices the necessary +amount of money, "to go into each and any other room or vault ... and to +every closet, chest, box or drawer in such banking house, to open and +search," and to levy on everything found. (_Ib._ 193.) + +[907] A private letter to Niles says that when it was found that an +injunction had been granted, the friends of the bank rejoiced, "wine was +drank freely and mirth abounded." (Niles, XVII, 85.) This explains the +otherwise incredible negligence of the bank's attorneys in the +proceedings next day. + +[908] Niles, XVII, 85-87, reprinting account as published in the +_Chillicothe Supporter_, Sept. 22, 1819, and the _Ohio Monitor_, Sept. +25, 1819. + +[909] Niles, XVII, 147. + +[910] _Ib._ 338. + +[911] Report of Committee made to the Ohio Legislature and transmitted +to Congress. (_Annals_, 16th Cong. 2d Sess. 1685 _et seq._) + +[912] _Annals_, 16th Cong. 2d Sess. 1691. + +[913] _Annals_, 16th Cong. 2d Sess. 1696-97. + +[914] See vol. II, 72-74, of this work. + +[915] _Annals_, 16th Cong. 2d Sess. 1712. + +[916] _Ib._ 1713. + +[917] _Ib._ 1714. + +[918] See _infra_, chap. VII of this work. + +[919] _State Doc. Fed. Rel._: Ames, 90; and see Niles, XVI, 97, 132. + +[920] Pennsylvania House of Representatives, _Journal, 1819-20_, 537; +_State Doc. Fed. Rel._: Ames, footnote to 90-91. + +[921] _Ib._ + +[922] _Ib._ 91. + +[923] See _infra_, chap. X. + +[924] _State Doc. Fed. Rel._: Ames, 92-103. + +[925] _Ib._ 92, 101-03. + +[926] _Ib._ 91. + +[927] See _infra_, chap. X. + +[928] See vol. II, 397, of this work. + +[929] Taylor: _Construction Construed, and Constitutions Vindicated_, 9. + +[930] Taylor: _Construction Construed_, 11-12. Taylor does not, of +course, call Marshall by name, either in this book or in his other +attacks on the Chief Justice. + +[931] _Ib._ 15. + +[932] _Ib._ 16. + +[933] _Ib._ 18. + +[934] _Ib._ 25-26. + +[935] _Ib._ 28. + +[936] Taylor: _Construction Construed_, 77. + +[937] _Ib._ 79. + +[938] _Ib._ 84. + +[939] _Ib._ 87. + +[940] Taylor: _Construction Construed_, 89. + +[941] _Ib._ 161. + +[942] _Ib._ 233. + +[943] _Ib._ 237. + +It is interesting to observe that Taylor brands the protective tariff as +one of the evils of Marshall's Nationalist philosophy. "It destroys the +division of powers between federal and state governments, ... it +violates the principles of representation, ... it recognizes a sovereign +power over property, ... it destroys the freedom of labour, ... it +taxes the great mass of capital and labour, to enrich the few; ... it +increases the burden upon the people ... increases the mass of +poverty; ... it impoverishes workmen and enriches employers; ... it +increases the expenses of government, ... it deprives commerce of the +freedom of exchanges, ... it corrupts congress ... generates the +extremes of luxury and poverty." (Taylor: _Construction Construed_, +252-53.) + +[944] See _infra_, 340-42; and see _infra_, chap. X. + +[945] Taylor: _Construction Construed_, 314. + +[946] Jefferson to Ritchie, Dec. 25, 1820, _Works_: Ford, XII, 176-78. +He declined, however, to permit publication of his endorsement of +Taylor's book. (_Ib._) + + + + +CHAPTER VII + +THREATS OF WAR + + Cannot the Union exist unless Congress and the Supreme Court + shall make banks and lotteries? (John Taylor "of Caroline.") + + If a judge can repeal a law of Congress, by declaring it + unconstitutional, is not this the exercise of political power? + (Senator Richard M. Johnson.) + + The States must shield themselves and meet the invader foot to + foot. (Jefferson.) + + The United States ... form a single nation. In war we are one + people. In making peace we are one people. In all commercial + regulations we are one and the same people. (Marshall.) + + The crisis has arrived contemplated by the framers of the + Constitution. (Senator James Barbour.) + + +The appeals of Niles, Roane, and Taylor, and the defiant attitude toward +Nationalism of Virginia, Ohio, Pennsylvania, and other States, expressed +a widespread and militant Localism which now manifested itself in +another and still more threatening form. The momentous and dramatic +struggle in Congress over the admission of Missouri quickly followed +these attacks on Marshall and the Supreme Court. + +Should that Territory come into the Union only on condition that slavery +be prohibited within the new State, or should the slave system be +retained? The clamorous and prophetic debate upon that question stirred +the land from Maine to Louisiana. A division of the Union was everywhere +discussed, and the right of a State to secede was boldly proclaimed. + +In the House and Senate, civil war was threatened. "I fear this subject +will be an ignited spark, which, communicated to an immense mass of +combustion, will produce an explosion that will shake this Union to its +centre.... The crisis has arrived, contemplated by the framers of the +Constitution.... This portentous subject, twelve months ago, was a +little speck scarcely visible above the horizon; it has already overcast +the heavens, obscuring every other object; materials are everywhere +accumulating with which to render it darker."[947] In these bombastic, +yet serious words Senator James Barbour of Virginia, when speaking on +the Missouri question on January 14, 1820, accurately described the +situation. + +"I behold the father armed against the son, ... a brother's sword +crimsoned with a brother's blood, ... our houses wrapt in flames," +exclaimed Senator Freeman Walker of Georgia. "If Congress ... impose the +restriction contemplated [exclusion of slavery from Missouri], ... +consequences fatal to the peace and harmony of this Union will ... +result."[948] Senator William Smith of South Carolina asked "if, under +the misguided influence of fanaticism and humanity, the impetuous +torrent is once put in motion, what hand short of Omnipotence can stay +it?"[949] In picturing the coming horrors Senator Richard Mentor Johnson +of Kentucky declared that "the heart sickens, the tongue falters."[950] + +In the House was heard language even more sanguinary. "Let gentlemen +beware!" exclaimed Robert Raymond Reid of Georgia; for to put limits on +slavery was to implant "envy, hatred, and bitter reproaches, which + + 'Shall grow to clubs and naked swords, + To murder and to death.'... + +Sir, the firebrand, which is even now cast into your society, will +require blood ... for its quenching."[951] + +Only a few Northern members answered with spirit. Senator Walter Lowrie +of Pennsylvania preferred "a dissolution of this Union" rather than "the +extension of slavery."[952] Daniel Pope Cook of Illinois avowed that +"the sound of disunion ... has been uttered so often in this debate, ... +that it is high time ... to adopt measures to prevent it.... Such +declarations ... will have no ... effect upon me.... Is it ... the +intention of gentlemen to arouse ... the South to rebellion?"[953] For +the most part, however, Northern Representatives were mild and even +hopeful.[954] + +Such was the situation concerning which John Marshall addressed the +American people in his epochal opinion in the case of Cohens _vs._ +Virginia. The noble passages of that remarkable state paper were +inspired by, and can be understood only in the light of, the crisis that +produced them. Not in the mere facts of that insignificant case, not in +the precise legal points involved, is to be found the inspiration of +Marshall's transcendent effort on this occasion. Indeed, it is possible, +as the Ohio Legislature and the Virginia Republican organization soon +thereafter charged, that Cohens _vs._ Virginia was "feigned" for the +purpose of enabling Marshall to assert once more the supremacy of the +Nation. + +If the case came before Marshall normally, without design and in the +regular course of business, it was an event nothing short of +providential. If, on the contrary, it was "arranged" so that Marshall +could deliver his immortal Nationalist address, never was such +contrivance so thoroughly justified. While the legal profession has +always considered this case to be identical, judicially, with that of +Martin _vs._ Hunter's Lessee, it is, historically, a part of M'Culloch +_vs._ Maryland and of Osborn _vs._ The Bank. The opinion of John +Marshall in the Cohens case is one of the strongest and most enduring +strands of that mighty cable woven by him to hold the American people +together as a united and imperishable nation. + +Fortunate, indeed, for the Republic that Marshall's fateful +pronouncement came forth at such a critical hour, even if technicalities +were waived in bringing before him a case in which he could deliver that +opinion. For, in conjunction with his exposition in M'Culloch _vs._ +Maryland, it was the most powerful answer that could be given, and from +the source of greatest authority, to that defiance of the National +Government and to the threats of disunion then growing ever bolder and +more vociferous. Marshall's utterances did not still those hostile +voices, it is true, but they gave strength and courage to Nationalists +and furnished to the champions of the Union arguments of peculiar force +as coming from the supreme tribunal of the Nation. + +Could John Marshall have seen into the future he would have beheld +Abraham Lincoln expounding from the stump to the farmers of Illinois, in +1858, the doctrines laid down by himself in 1819 and 1821. + +Briefly stated, the facts in the case of Cohens _vs._ Virginia were as +follows: The City of Washington was incorporated under an act of +Congress[955] which, among other things, empowered the corporation to +"authorize the drawing of lotteries for effecting any important +improvements in the city which the ordinary funds or revenue thereof +will not accomplish," to an amount not to exceed ten thousand dollars, +the object first to be approved by the President.[956] Accordingly a +city ordinance was passed, creating "The National Lottery" and +authorizing it to sell tickets and conduct drawings. + +By an act of the Virginia Legislature[957] the purchase or sale within +the State of lottery tickets, except those of lotteries authorized by +the laws of Virginia, was forbidden under penalty of a fine of one +hundred dollars for each offense. + +On June 1, 1820, "P. J. & M. J. Cohen, ... being evil-disposed persons," +violated the Virginia statute by selling to one William H. Jennings in +the Borough of Norfolk two half and four quarter lottery tickets "of the +National Lottery, to be drawn in the city of Washington, that being a +lottery not authorized by the laws of this commonwealth," as the +information of James Nimmo, the prosecuting attorney, declared.[958] + +At the quarterly session of the Court of Norfolk, held September 2, +1820, the case came on for hearing before the Mayor, Recorder, and +Aldermen of said borough and was decided upon an agreed case "in lieu of +a special verdict," which set forth the sale of the lottery tickets, the +Virginia statute, the act of Congress incorporating the City of +Washington, and the fact that the National Lottery had been established +under that act.[959] The Norfolk Court found the defendants guilty and +fined them in the sum of one hundred dollars. This paltry amount could +not have paid one twentieth part of the fees which the eminent counsel +who appeared for the Cohens would, ordinarily, have charged.[960] The +case was carried to the Supreme Court on a writ of error. + +On behalf of Virginia, Senator James Barbour of that State[961] moved +that the writ of error be dismissed, and upon this motion the main +arguments were made and Marshall's principal opinion delivered. In +concluding his argument, Senator Barbour came near threatening +secession, as he had done in the Senate: "Nothing can so much endanger +it [the National Government] as exciting the hostility of the state +governments. With them it is to determine how long this government shall +endure."[962] + +In opening for the Cohens, David B. Ogden of New York denied that "there +is any such thing as a sovereign state, independent of the Union." The +authority of the Supreme Court "extends ... to all cases arising under +the constitution, laws, and treaties of the United States."[963] Cohens +_vs._ Virginia was such a case. + +Upon the supremacy of the Supreme Court over State tribunals depended +the very life of the Nation, declared William Pinkney, who appeared as +the principal counsel for the Cohens. Give up the appellate jurisdiction +of National courts "from the decisions of the state tribunals" and +"every other branch of federal authority might as well be surrendered. +To part with this, leaves the Union a mere league or confederacy."[964] +Long, brilliantly, convincingly, did Pinkney speak. The extreme State +Rights arguments were, he asserted, "too wild and extravagant"[965] to +deserve consideration. + +Promptly Marshall delivered the opinion of the court on Barbour's motion +to dismiss the writ of error. The points made against the jurisdiction +of the Supreme Court were, he said: "1st. That a state is a defendant. +2d. That no writ of error lies from this court to a state court. 3d. ... +that this court ... has no right to review the judgment of the state +court, because neither the constitution nor any law of the United States +has been violated by that judgment."[966] + +The first two points "vitally ... affect the Union," declared the Chief +Justice, who proceeds to answer the reasoning of the State judges when, +in Hunter _vs._ Fairfax's Devisee, they hurled at the Supreme Court +Virginia's defiance of National authority.[967] Marshall thus states the +Virginia contentions: That the Constitution has "provided no tribunal +for the final construction of itself, or of the laws or treaties of the +nation; but that this power may be exercised ... by the courts of every +state of the Union. That the constitution, laws, and treaties, may +receive as many constructions as there are states; and that this is not +a mischief, or, if a mischief, is irremediable."[968] + +Why was the Constitution established? Because the "American States, as +well as the American people, have believed a close and firm Union to be +essential to their liberty and to their happiness. They have been +taught by experience, that this Union cannot exist without a government +for the whole; and they have been taught by the same experience that +this government would be a mere shadow, that must disappoint all their +hopes, unless invested with large portions of that sovereignty which +belongs to independent states."[969] + +The very nature of the National Government leaves no doubt of its +supremacy "in all cases where it is empowered to act"; that supremacy +was also expressly declared in the Constitution itself, which plainly +states that it, and laws and treaties made under it, "'shall be the +supreme law of the land; and the judges in every state shall be bound +thereby; anything in the constitution or laws of any state to the +contrary notwithstanding.'" + +This supremacy of the National Government is a Constitutional +"principle." And why were "ample powers" given to that Government? The +Constitution answers: "In order to form a more perfect union, establish +justice, ensure domestic tranquillity, provide for the common defense, +promote the general welfare."[970] + +The "limitations on the sovereignty of the states" were made for the +same reason that the "supreme government" of the Nation was endowed with +its broad powers. In addition to express limitations on State +"sovereignty" were many instances "where, perhaps, _no other power is +conferred on Congress than a conservative power to maintain the +principles_ established in the constitution. The maintenance of these +principles in their purity, is certainly among the great duties of the +government."[971] + +Marshall had been Chief Justice of the United States for twenty years, +and these were the boldest and most extreme words that he had spoken +during that period. Like all men of the first rank, Marshall met in a +great way, and without attempt at compromise, a great issue that could +not be compromised--an issue which, everywhere, at that moment, was +challenging the existence of the Nation. There must be no dodging, no +hedging, no equivocation. Instead, there must be the broadest, frankest, +bravest declaration of National powers that words could express. For +this reason Marshall said that these powers might be exercised even as a +result of "a conservative power" in Congress "to maintain the principles +established in the constitution." + +The Judicial Department is an agency essential to the performance of the +"great duty" to preserve those "principles." "It is authorized to decide +all cases of every description, arising under the constitution or laws +of the United States." Those cases in which a State is a party are not +excepted. There are cases where the National courts are given +jurisdiction solely because a State is a party, and regardless of the +subject of the controversy; but in all cases involving the Constitution, +laws, or treaties of the Nation, the National tribunals have +jurisdiction, regardless of parties.[972] + +"Principles" drawn from the very "_nature of government_" require that +"the judicial power ... must be co-extensive with the legislative, and +must be capable of deciding every judicial question which grows out of +the constitution and laws"--not that "it is fit that it should be so; +but ... that this fitness" is an aid to the right interpretation of the +Constitution.[973] + +What will be the result if Virginia's attitude is confirmed? Nothing +less than the prostration of the National Government "at the feet of +every state in the Union.... Each member will possess a veto on the will +of the whole." Consider the country's experience. Assumption[974] had +been deemed unconstitutional by some States; opposition to excise taxes +had produced the Whiskey Rebellion;[975] other National statutes "have +been questioned partially, while they were supported by the great +majority of the American people."[976] There can be no assurance that +such divergent and antagonistic actions may not again be taken. State +laws in conflict with National laws probably will be enforced by State +judges, since they are subject to the same prejudices as are the State +Legislatures--indeed, "in many states the judges are dependent for +office and for salary on the will of the legislature."[977] + +The Constitution attaches first importance to the "independence" of the +Judiciary; can it have been intended to leave to State "tribunals, where +this independence may not exist," cases in which "a state shall +prosecute an individual who claims the protection of an act of +Congress?" Marshall gives examples of possible collisions between +National and State authority, in ordinary times, as well as in +exceptional periods.[978] Even to-day it is obvious that the Chief +Justice was denouncing the threatened resistance by State officials to +the tariff laws, a fact of commanding importance at the time when +Marshall's opinion in Cohens _vs._ Virginia was delivered. + +At this point he rises to the heights of august eloquence: "A +constitution is framed for ages to come, and is designed to approach +immortality as nearly as human institutions can approach it. Its course +cannot always be tranquil. It is exposed to storms and tempests, and its +framers must be unwise statesmen indeed, if they have not provided +it ... with the means of self-preservation from the perils it may be +destined to encounter. No government ought to be so defective in its +organization as not to contain within itself the means of securing the +execution of its own laws against other dangers than those which occur +every day." + +Marshall is here replying to the Southern threats of secession, just as +he rebuked the same spirit when displayed by his New England friends ten +years earlier.[979] Then turning to the conflict of courts, he remarks, +as though the judicial collision is all that he has in mind: "A +government should repose on its own courts, rather than on others."[980] + +He recalls the state of the country under the Confederation when +requisitions on the States were "habitually disregarded," although they +were "as constitutionally obligatory as the laws enacted by the present +Congress." In view of this fact is it improbable that the framers of the +Constitution meant to give the Nation's courts the power of preserving +that Constitution, and laws made in pursuance of it, "from all violation +from every quarter, so far as judicial decisions can preserve +them"?[981] + +Virginia contends that if States wish to destroy the National Government +they can do so much more simply and easily than by judicial +decision--"they have only not to elect senators, and it expires without +a struggle"; and that therefore the destructive effect on the Nation of +decisions of State courts cannot be taken into account when construing +the Constitution. + +To this Marshall makes answer: "Whenever hostility to the existing +system shall become universal, it will be also irresistible. The people +made the constitution, and the people can unmake it. It is the creature +of their own will, and lives only by their will. But this supreme and +irresistible power to make or to unmake, resides only in the whole body +of the people; not in any sub-division of them. The attempt of any of +the parts to exercise it is usurpation, and ought to be repelled by +those to whom the people have delegated their power of repelling it. The +acknowledged inability of the government, then, to sustain itself +against the public will, and, by force or otherwise, to control the +whole nation, is no sound argument in support of its constitutional +inability to preserve itself against a section of the nation acting in +opposition to the general will."[982] + +This is a direct reply to the Southern arguments in the Missouri debate +which secessionists were now using wherever those who opposed National +laws and authority raised their voices. John Marshall is blazing the way +for Abraham Lincoln. He speaks of a "section" instead of a State. The +Nation, he says, may constitutionally preserve itself "against a +section." And this right of the Nation rests on "principles" inherent in +the Constitution. But in Cohens _vs._ Virginia no "section" was arrayed +against the Nation--on the record there was nothing but a conflict of +jurisdiction of courts, and this only by a strained construction of a +municipal lottery ordinance into a National law. + +The Chief Justice is exerting to the utmost his tremendous powers, not +to protect two furtive peddlers of lottery tickets, but to check a +powerful movement that, if not arrested, must destroy the Republic. +Should that movement go forward thereafter, it must do so over every +Constitutional obstacle which the Supreme Court of the Nation could +throw in its way. In Cohens _vs._ Virginia, John Marshall stamped upon +the brow of Localism the brand of illegality. If this is not the true +interpretation of his opinion in that case, all of the exalted language +he used is mere verbiage. + +Marshall dwells on "the subordination of the parts to the whole." The +one great motive for establishing the National Judiciary "was the +preservation of the constitution and laws of the United States, so far +as they can be preserved by judicial authority."[983] + +Returning to the technical aspects of the controversy, Marshall points +out that the Supreme Court plainly has appellate jurisdiction of the +Cohens case: "If a state be a party, the jurisdiction of this court is +original; if the case arise under a [National] constitution or a +[National] law, the jurisdiction is appellate. But a case to which a +state is a party may arise under the constitution or a law of the United +States."[984] That would mean a double jurisdiction. Marshall, +therefore, shows, at provoking length,[985] that the appellate +jurisdiction of the Supreme Court "in all cases arising under the +constitution, laws, or treaties of the United States, was not arrested +by the circumstance that a state was a party";[986] and in this way he +explains that part of his opinion in Marbury _vs._ Madison, in which he +reasoned that Section 13 of the Ellsworth Judiciary Act was +unconstitutional.[987] + +Marshall examines the Eleventh Amendment and becomes, for a moment, the +historian, a rôle in which he delighted. "The states were greatly +indebted" at the close of the Revolution; the Constitution was opposed +because it was feared that their obligations would be collected in the +National courts. This very thing happened. "The alarm was general; and, +to quiet the apprehensions that were so extensively entertained, this +amendment was ... adopted." But "its motive was not to maintain the +sovereignty of a state from the degradation supposed to attend a +compulsory appearance before the tribunal of the nation." It was to +prevent creditors from suing a State--"no interest could be felt in so +changing the relations between the whole and its parts, as to strip the +government of the means of protecting, by the instrumentality of its +courts, the constitution and laws from active violation."[988] + +With savage relish the Chief Justice attacks and demolishes the State +Rights theory that the Supreme Court cannot review the judgment of a +State court "in any case." That theory, he says, "considers the federal +judiciary as completely foreign to that of a state; and as being no more +connected with it, in any respect whatever, than the court of a foreign +state."[989] But "the United States form, for many, and for most +important purposes, a single nation.... In war, we are one people. In +making peace, we are one people. In all commercial regulations, we are +one and the same people. In many other respects, the American people are +one; and the government which is alone capable of controlling and +managing their interests in all these respects, is the government of the +Union. + +"It is their government, and in that character they have no other. +America has chosen to be, in many respects, and to many purposes, a +nation; and for all these purposes, her government is complete; to all +these objects, it is competent. The people have declared, that in the +exercise of all powers given for these objects it is supreme. It can, +then, in effecting these objects, legitimately control all individuals +or governments within the American territory. The Constitution and laws +of a state, so far as they are repugnant to the Constitution and laws of +the United States, are absolutely void. + +"These states are constituent parts of the United States. They are +members of one great empire."[990] The National Court alone can decide +all questions arising under the Constitution and laws of the Nation. +"The uniform decisions of this court on the point now under +consideration," he continues, "have been assented to, with a single +exception,[991] by the courts of every state in the Union whose +judgments have been revised."[992] + +As to the lottery ordinance of the City of Washington, Congress has +exclusive power to legislate for the District of Columbia and, in +exercising that power, acts "as the legislature of the Union." The +Constitution declares that it, and all laws made under it, constitute +"the supreme law of the land."[993] Laws for the government of +Washington are, therefore, parts of this "supreme law" and "bind the +nation.... Congress legislates, in the same forms, and in the same +character, in virtue of powers of equal obligation, conferred in the +same instrument, when exercising its exclusive powers of legislation, as +well as when exercising those which are limited."[994] + +The Chief Justice gives examples of the exclusive powers of Congress, +all of which are binding throughout the Republic. "Congress is not a +local legislature, but exercises this particular power [to legislate for +the District of Columbia], like all its other powers, in its high +character, as the legislature of the Union."[995] The punishment of the +Cohens for selling tickets of the National Lottery, created by the City +of Washington under authority of an act of Congress, involves the +construction of the Constitution and of a National law. The Supreme +Court, therefore, has jurisdiction of the case, and the motion to +dismiss the writ of error is denied. + +Marshall having thus established the jurisdiction of the Supreme Court +to hear and decide the case, it was argued "on the merits." Again David +B. Ogden appeared for the Cohens and was joined by William Wirt as +Attorney-General. For Virginia Webster took the place of Senator +Barbour. The argument was upon the true construction of the act of +Congress authorizing the City of Washington to establish a lottery; and +upon this Marshall delivered a second opinion, to the effect that the +lottery ordinance was "only co-extensive with the city" and a purely +local affair; that the court at Norfolk had a right to fine the Cohens +for violating a law of Virginia; and that its judgment must be +affirmed.[996] + +So ended, as far as the formal record goes, the famous case of Cohens +_vs._ Virginia. On its merits it amounted to nothing; the practical +result of the appeal was nothing; but it afforded John Marshall the +opportunity to tell the Nation its duty in a crowning National +emergency. + +Intense was the excitement and violent the rage in the anti-Nationalist +camp when Marshall's opinion was published. Ritchie, in his paper, +demanded that the Supreme Court should be abolished.[997] The Virginia +Republican organization struck instantly, Spencer Roane wielding its +sword. The _Enquirer_ published a series of five articles between May 25 +and June 8, 1821, inclusive, signed "Algernon Sidney," Roane's latest +_nom de plume_. + +"The liberties and constitution of our country are ... deeply and +vitally endangered by the fatal effects" of Marshall's opinion. +"Appointed in one generation it [the Supreme Court] claims to make laws +and constitutions for another."[998] The unanimity of the court can be +explained only on the ground of "a culpable apathy in the other judges, +or a confidence not to be excused, in the principles and talents of +their chief." Sidney literally wastes reams of paper in restating the +State Rights arguments. He finds a malign satisfaction in calling the +Constitution a "compact," a "league," a "treaty" between "sovereign +governments."[999] + +National judges have "_no_ interest in the government or laws of +any state but that of which they are citizens," asserts Sidney. +"As to every other state but that, they are, completely, aliens and +foreigners."[1000] Virginia is as much a foreign nation as Russia[1001] +so far as jurisdiction of the Supreme Court over the judgments of State +courts is concerned. Marshall's doctrine "is the blind and absolute +despotism which exists in an army, or is exercised by a tyrant over his +slaves."[1002] + +The apostate Republican Justices who concurred with Marshall are +denounced, and with greater force, by reason of a tribute paid to the +hated Chief Justice: "How else is it that they also go to all lengths +with the ultra-federal leader who is at the head of their court? That +leader is honorably distinguished from you messieurs judges. He is true +to his former politics. He has even pushed them to an extreme never +until now anticipated. He must be equally delighted and _surprised_ to +find his _Republican_ brothers going with him"--a remark as true as it +was obvious. "How is it ... that they go with him, not only as to the +results of his opinions, but as to all the points and positions +contained in the most lengthy, artful and alarming opinions?" Because, +answers Sidney, they are on the side of power and of "the government +that feeds them."[1003] + +What Marshall had said in the Virginia Constitutional Convention of 1788 +refutes his opinions now. "Great principles then operated on his +luminous mind, not hair-splitting quibbles and verbal criticisms."[1004] +The "artifices" of the Chief Justice render his opinions the more +dangerous.[1005] + +If the anger of John Marshall ever was more aroused than it was by +Roane's assaults upon him, no evidence of the fact exists. Before the +last number of the Algernon Sidney essays appeared, the Chief Justice +confides his wrathful feelings to the devoted and sympathetic Story: +"The opinion of the Supreme Court in the Lottery case has been assaulted +with a degree of virulence transcending what has appeared on any former +occasion. Algernon Sidney is written by the gentleman who is so much +distinguished for his feelings towards the Supreme Court, & if you have +not an opportunity of seeing the Enquirer I will send it to you. + +"There are other minor gentry who seek to curry favor & get into office +by adding their mite of abuse, but I think for coarseness & malignity of +invention Algernon Sidney surpasses all party writers who have ever made +pretensions to any decency of character. There is on this subject no +such thing as a free press in Virginia, and of consequence the calumnies +and misrepresentations of this gentleman will remain uncontradicted & +will by many be believed to be true. He will be supposed to be the +champion of state rights, instead of being what he really is, the +champion of dismemberment."[1006] + +When Roane's articles were finished, Marshall wrote Story: "I send you +the papers containing the essays of Algernon Sidney. Their coarseness & +malignity would designate the author if he was not avowed. The argument, +if it may be called one, is, I think, as weak as its language is violent +& prolix. Two other gentlemen[1007] have appeared in the papers on this +subject, one of them is deeply concerned in pillaging the purchasers of +the Fairfax estate in which goodly work he fears no other obstruction +than what arises from the appellate power of the Supreme Court, & the +other is a hunter after office who hopes by his violent hostility to the +Union, which in Virginia assumes the name of regard for state rights, & +by his devotion to Algernon Sidney, to obtain one. In support of the +sound principles of the constitution & of the Union of the States, not a +pen is drawn. In Virginia the tendency of things verges rapidly to the +destruction of the government & the re-establishment of a league of +sovereign states. I look elsewhere for safety."[1008] + +Another of the "minor gentry" of whom Marshall complained was William C. +Jarvis, who in 1820 had written a book entitled "The Republicans," in +which he joined in the hue and cry against Marshall because of his +opinion in M'Culloch _vs._ Maryland. Jarvis sent a copy of his book to +Jefferson who, in acknowledging the receipt of it, once more spoke his +mind upon the National Judiciary. To Jarvis's statement that the courts +are "the ultimate arbiters of all constitutional questions," Jefferson +objected. + +It was "a very dangerous doctrine indeed, and one which would place us +under the despotism of an oligarchy," wrote the "Sage of Monticello." +"The constitution has erected no such single tribunal, knowing that to +whatever hands confided, with the corruptions of time and party, its +members would become despots.... If the legislature fails to pass" +necessary laws--such as those for taking of the census, or the payment +of judges; or even if "they fail to meet in congress, the judges cannot +issue their mandamus to them." + +So, concludes Jefferson, if the President does not appoint officers to +fill vacancies, "the judges cannot force him." In fact, the judges "can +issue their mandamus ... to no executive or legislative officer to +enforce the fulfilment of their official duties, any more than the +president or legislature may issue orders to the judges.... When the +legislature or executive functionaries act unconstitutionally, they are +responsible to the people in their elective capacity. The exemption of +the judges from that is quite dangerous enough."[1009] + +This letter by Jefferson had just been made public, and Story, who +appears to have read everything from the Greek classics to the current +newspaper gossip, at once wrote Marshall. The Chief Justice replied that +Jefferson's view "rather grieves than surprizes" him. But he could not +"describe the surprize & mortification" he felt when he learned that +Madison agreed with Jefferson "with respect to the judicial department. +For M^r Jefferson's opinion as respects this department it is not +difficult to assign the cause. He is among the most ambitious, & I +suspect among the most unforgiving of men. His great power is over the +mass of the people, & this power is chiefly acquired by professions of +democracy. Every check on the wild impulse of the moment is a check on +his own power, & he is unfriendly to the source from which it flows. He +looks of course with ill will at an independent judiciary. + +"That in a free country with a written constitution any intelligent man +should wish a dependent judiciary, or should think that the constitution +is not a law for the court as well as for the legislature would astonish +me, if I had not learnt from observation that with many men the +judgement is completely controuled by the passions."[1010] + +To Jefferson, Marshall ascribes Roane's attacks upon the Supreme +Court: "There is some reason to believe that the essays written +against the Supreme Court were, in a degree at least, stimulated by +this gentleman, and that although the coarseness of the language +belongs exclusively to the author, its acerbity has been increased +by his communications with the great Lama of the mountains. He may +therefore feel himself ... required to obtain its republication in +some place of distinction."[1011] + +John E. Hall was at that time the publisher at Philadelphia of _The +Journal of American Jurisprudence_. Jefferson had asked Hall to reprint +Roane's articles, and Hall had told Story, who faithfully reported to +Marshall. "I am a little surprized at the request which you say has been +made to M^r Hall, although there is no reason for my being so. The +settled hostility of the gentleman who has made that request to the +judicial department will show itself in that & in every other form which +he believes will conduce to its object. For this he has several motives, +& it is not among the weakest that the department would never lend +itself as a tool to work for his political power.... + +"What does M^r Hall purpose to do?" asks Marshall. "I do not suppose you +would willingly interfere so as to prevent his making the publication, +although I really think it is in form & substance totally unfit to be +placed in his law journal. I really think a proper reply to the request +would be to say that no objection existed to the publication of any law +argument against the opinion of the Supreme Court, but that the +coarseness of its language, its personal & official abuse & its tedious +prolixity constituted objections to the insertion of Algernon Sidney +which were insuperable. If, however, M^r Hall determines to comply with +this request, I think he ought, unless he means to make himself a party +militant, to say that he published that piece by particular request, & +ought to subjoin the masterly answer of M^r Wheaton. I shall wish to +know what course M^r Hall will pursue."[1012] + +Roane's attacks on Marshall did not appear in Hall's law magazine! + +Quitting such small, unworthy, and prideful considerations, Marshall +rises for a moment to the great issue which he met so nobly in his +opinions in M'Culloch _vs._ Maryland and in Cohens _vs._ Virginia. "A +deep design," he writes Story, "to convert our government into a mere +league of states has taken strong hold of a powerful & violent party in +Virginia. The attack upon the judiciary is in fact an attack upon the +union. The judicial department is well understood to be that through +which the government may be attacked most successfully, because it is +without patronage, & of course without power. And it is equally well +understood that every subtraction from its jurisdiction is a vital wound +to the government itself. The attack upon it therefore is a masked +battery aimed at the government itself. + +"The whole attack, if not originating with M^r Jefferson, is obviously +approved & guided by him. It is therefore formidable in other states as +well as in this, & it behoves the friends of the union to be more on the +alert than they have been. An effort will certainly be made to repeal +the 25^{th} sec. of the judicial act."[1013] Marshall's indignation at +Roane exhausted his limited vocabulary of resentment. Had he possessed +Jefferson's resources of vituperation, the literature of animosity would +have been enriched by the language Marshall would have indulged in when +the next Republican battery poured its volleys upon him. + +No sooner had Roane's artillery ceased to play upon Marshall and the +Supreme Court than the roar of Taylor's heavy guns was again heard. In a +powerful and brilliant book, called "Tyranny Unmasked," he directed his +fire upon the newly proposed protective tariff, "this sport for +capitalists and death for the rest of the nation."[1014] The theory of +the Chief Justice that there is a "supreme federal power" over the +States is proved false by the proceedings of the Constitutional +Convention at Philadelphia in 1787. Certain members then proposed to +give the National Government a veto over the acts of State +Governments.[1015] This proposal was immediately rejected. Yet to-day +Marshall proclaims a National power, "infinitely more objectionable," +which asserts that the Supreme Court has "a negative or restraining +power over the State governments."[1016] + +A protective tariff is only another monstrous child of Marshall's +accursed Nationalism, that prolific mother of special favors for the +few. By what reasoning is a protective tariff made Constitutional? By +the casuistry of John Marshall, that "present fashionable mode of +construction, which considers the constitution as a lump of fine gold, a +small portion of which is so malleable as to cover the whole mass. By +this golden rule for manufacturing the constitution, a particular power +given to the Federal Government may be made to cover all the rights +reserved to the people and the States;[1017] a limited jurisdiction +given to the Federal Courts is made to cover all the State Courts;[1018] +and a legislative power over ten miles square is malleated over the +whole of the United States,[1019] as a single guinea may be beaten out +so as to cover a whole house."[1020] Such is the method by which a +protective tariff is made Constitutional. + +For one hundred and twenty-one scintillant and learned pages Taylor +attacks this latest creation of National "tyranny." The whole +Nationalist system is "tyranny," which it is his privilege to "unmask," +and the duty of all true Americans to destroy.[1021] Marshall's +Constitutional doctrine "amounts to the insertion of the following +article in the constitution: 'Congress shall have power, with the assent +of the Supreme Court, to exercise or usurp, and to prohibit the States +from exercising, any or all of the powers reserved to the States, +whenever they [Congress] shall deem it convenient, or for the general +welfare.'"[1022] Such doctrines invite "civil war."[1023] + +By Marshall's philosophy "the people are made the prey of exclusive +privileges." In short, under him the Supreme Court has become the agent +of special interests.[1024] "Cannot the Union subsist unless Congress +and the Supreme Court shall make banks and lotteries?"[1025] + +Jefferson eagerly read Roane's essays and Taylor's book and wrote +concerning them: "The judiciary branch is the instrument which, working +like gravity, without intermission, is to press us at last into one +consolidated mass. Against this I know no one who, equally with Judge +Roane himself, possesses the power and the courage to make resistance; +and to him I look, and have long looked, as our strongest bulwark." + +At this point Jefferson declares for armed resistance to the Nation in +even stronger terms than those used by Roane or Taylor: "If Congress +fails to shield the States from dangers so palpable and so imminent, +the States must shield themselves, and meet the invader foot to foot.... +This is already half done by Colonel Taylor's book" which "is the most +effectual retraction of our government to its original principles which +has ever yet been sent by heaven to our aid. Every State in the Union +should give a copy to every member they elect, as a standing +instruction, and ours should set the example."[1026] + +Until his death the aged politician raged continuously, except in one +instance,[1027] at Marshall and the Supreme Court because of such +opinions and decisions as those in the Bank and Lottery cases. He writes +Justice Johnson that he "considered ... maturely" Roane's attacks on the +doctrines of Cohens _vs._ Virginia and they appeared to him "to +pulverize every word which had been delivered by Judge Marshall, of the +extra-judicial part of his opinion." If Roane "can be answered, I +surrender human reason as a vain and useless faculty, given to bewilder, +and not to guide us.... This practice of Judge Marshall, of travelling +out of his case to prescribe what the law would be in a moot case not +before the court, is very irregular and censurable."[1028] + +Again Jefferson writes that, above all other officials, those who most +need restraint from usurping legislative powers are "the judges of what +is commonly called our General Government, but what I call our Foreign +department.... A few such doctrinal decisions, as barefaced as that of +the Cohens," may so arouse certain powerful States as to check the march +of Nationalism. The Supreme Court "has proved that the power of +declaring what the law is, _ad libitum_, by sapping and mining, slily +and without alarm, the foundations of the Constitution, can do what open +force would not dare to attempt."[1029] + +So it came to pass that John Marshall and the Supreme Court became a +center about which swirled the forces of a fast-gathering storm that +raged with increasing fury until its thunders were the roar of cannon, +its lightning the flashes of battle. Broadly speaking, slavery and free +trade, State banking and debtors' relief laws were arraigned on the side +of Localism; while slavery restriction, national banking, a protective +tariff, and security of contract were marshaled beneath the banner of +Nationalism. It was an assemblage of forces as incongruous as human +nature itself. + +The Republican protagonists of Localism did not content themselves with +the writing of enraged letters or the publication of flaming articles +and books. They were too angry thus to limit their attacks, and they +were politicians of too much experience not to crystallize an aroused +public sentiment. On December 12, 1821, Senator Richard M. Johnson of +Kentucky, who later was honored by his party with the Vice-Presidency, +offered an amendment to the Constitution that the Senate be given +appellate jurisdiction in all cases where the Constitution or laws of a +State were questioned and the State desired to defend them; and in all +cases "where the judicial power of the United States shall be so +construed as to extend to any case ... arising under" the National +Constitution, laws, or treaties.[1030] + +Coöperating with Johnson in the National Senate, Roane in Virginia, when +the Legislature of that State met, prepared amendments to the National +Constitution which, had they been adopted by the States, would have +destroyed the Supreme Court. He declares that he takes this step "with a +view to aid" the Congressional antagonists of Nationalism and the +Supreme Court, "or rather to lead, on this important subject." The +amendments "will be copied by another hand & circulated among the +members. I would not wish to injure the great Cause, by being known as +the author. My name would damn them, as I believe, nay hope, with the +_Tories_." Roane asks his correspondent to "jog your Chesterfield +Delegates ... and other good republicans," and complains that "Jefferson +& Madison hang back too much, in this great Crisis."[1031] + +On Monday, January 14, 1822, Senator Johnson took the floor in support +of his proposition to reduce the power of the Supreme Court. "The +conflicts between the Federal judiciary and the sovereignty of the +States," he said, "are become so frequent and alarming, that the public +safety" demands a remedy. "The Federal judiciary has assumed a +guardianship over the States, even to the controlling of their peculiar +municipal regulations."[1032] The "basis of encroachment" is Marshall's +"doctrine of Federal supremacy ... established by a judicial tribunal +which knows no change. Its decisions are predicated upon the principle +of perfection, and assume the character of immutability. Like the laws +of the Medes and Persians, they live forever, and operate through all +time." What shall be done? An appeal to the Senate "will be not only +harmless, but beneficial." It will quiet "needless alarms ... +restore ... confidence ... preserve ... harmony." There is pressing need +to tranquillize the public mind concerning the National Judiciary,[1033] +a department of the government which is a denial of our whole democratic +theory. "Some tribunal should be established, responsible to the people, +to correct their [the Judges'] aberrations." + +Why should not the National Judiciary be made answerable to the people? +No fair-minded man can deny that the judges exercise legislative power. +"If a judge can repeal a law of Congress, by declaring it +unconstitutional, is not this the exercise of political power? If he +can declare the laws of a State unconstitutional and void, and, in one +moment, subvert the deliberate policy of that State for twenty-four +years, as in Kentucky, affecting its whole landed property, ... is not +this the exercise of political power? All this they have done, and no +earthly power can investigate or revoke their decisions."[1034] The +Constitution gives the National Judiciary no such power--that instrument +"is as silent as death upon the subject."[1035] + +How absurd is the entire theory of judicial independence! Why should not +Congress as properly declare the decisions of the National courts +unconstitutional as that the courts should do the same thing to acts of +Congress or laws of States? Think of it as a matter of plain common +sense--"forty-eight Senators, one hundred and eighty-eight +Representatives, and the President of the United States, all sworn to +maintain the Constitution, have concurred in the sentiment that the +measure is strictly conformable to it. Seven judges, irresponsible to +any earthly tribunal for their decisions, revise the measure, declare it +unconstitutional, and effectually destroy its operation. Whose opinion +shall prevail? that of the legislators and President, or that of the +Court?"[1036] + +The Supreme Court, too, has gently exercised the principle of judicial +supervision over acts of Congress; has adjudged that Congress has a free +hand in choosing means to carry out powers expressly granted to that +body. But consider the conduct of the Supreme Court toward the States: +"An irresponsible judiciary" has ruthlessly struck down State law after +State law; has repeatedly destroyed the decisions of State courts. Look +at Marshall's opinions in M'Culloch _vs._ Maryland, in the Dartmouth +College case, in United States _vs._ Peters, in Sturges _vs._ +Crowninshield, in Cohens _vs._ Virginia--smallest, but perhaps worst of +all, in Wilson _vs._ New Jersey. The same principle runs through all +these pronouncements;--the States are nothing, the Nation +everything.[1037] + +Webster, in the House, heard of Johnson's speech and promptly wrote +Story: "Mr. Johnson of Kentucky ... has dealt, they say, pretty freely +with the supreme court. Dartmouth College, Sturges and Crowninshield, +_et cetera_, have all been demolished. To-morrow he is to pull to pieces +the case of the Kentucky betterment law. Then Governor [Senator] Barber +[Barbour] is to annihilate Cohens _v._ Virginia. So things go; but I see +less reality in all this smoke than I thought I should, before I came +here."[1038] + +It would have been wiser for Webster to have listened carefully to +Johnson's powerful address than to have sneered at it on hearsay, for it +was as able as it was brave; and, erroneous though it was, it stated +most of the arguments advanced before or since against the supervisory +power of the National Judiciary over the enactments of State +Legislatures and the decisions of State courts. + +When the Kentucky Senator resumed his speech the following day, he drove +home his strongest weapon--an instance of judicial interference with +State laws which, indeed, at first glance appeared to have been +arbitrary, autocratic, and unjust. The agreement between Virginia and +Kentucky by which the latter was separated from the parent Commonwealth +provided that "all private rights and interests of lands" in Kentucky +"derived from the laws of Virginia, shall remain valid ... and shall be +determined by the laws now existing" in Virginia.[1039] + +In 1797 the Kentucky Legislature enacted that persons occupying lands in +that State who could show a clear and connected title could not, without +notice of any adverse title, upon eviction by the possessor of a +superior title, be held liable for rents and profits during such +occupancy.[1040] Moreover, all permanent improvements made on the land +must, in case of eviction, be deducted from the value of the land and +judgment therefor rendered in favor of the innocent occupant and against +the successful claimant. On January 31, 1812, this "occupying claimant" +law, as it was called, was further strengthened by a statute providing +that any person "seating and improving" lands in Kentucky, believing +them "to be his own" because of a claim founded on public record, should +be paid for such seating and improvements by any person who thereafter +was adjudged to be the lawful owner of the lands. + +Against one such occupant, Richard Biddle, the heirs of a certain John +Green brought suit in the United States Court for the District of +Kentucky, and the case was certified to the Supreme Court on a division +of opinion of the judges. The case was argued and decided at the same +term at which Marshall delivered his opinion in Cohens _vs._ Virginia. +Story delivered the unanimous opinion of the court: that the Kentucky +"occupying claimant" laws violated the separation "compact" between +Virginia and Kentucky, because, "by the _general principles of law_, and +from the necessity of the case, titles to real estate can be determined +only by the laws of the state under which they were acquired."[1041] +Unfortunately Story did not specifically base the court's decision on +the contract clause of the Constitution, but left this vital point to +inference. + +Henry Clay, "as _amicus curiæ_," moved for a rehearing because the +rights of numerous occupants of Kentucky lands "would be irrevocably +determined by this decision," and because Biddle had permitted the case +"to be brought to a hearing without appearing by his counsel, and +without any argument on that side of the question."[1042] In effect, +Clay thus intimated that the case was feigned. The motion was granted +and Green _vs._ Biddle was awaiting reargument when Senator Johnson made +his attack on the National Judiciary. + +Johnson minutely examined the historical reasons for including the +contract clause in the National Constitution, "in order to understand +perfectly well the mystical influence" of that provision.[1043] It +never was intended to affect such legislation as the Kentucky land +system. The intent and meaning of the contract clause is, that "you +shall not declare to-day that contract void, ... which was made +yesterday under the sanction of law."[1044] Does this simple rule of +morality justify the National courts in annulling measures of public +policy "which the people have solemnly declared to be expedient"?[1045] +The decision of the Supreme Court in Green _vs._ Biddle, said Johnson, +"prostrates the deliberate" course which Kentucky has pursued for almost +a quarter of a century, "and affects its whole landed interest. The +effect is to legislate for the people; to regulate the interior policy +of that community, and to establish their municipal code as to real +estate."[1046] + +If such judicial supremacy prevails, the courts can "establish systems +of policy by judicial decision." What is this but despotism? "I see no +difference, whether you take this power from the people and give it to +your judges, who are in office for life, or grant it to a King for +life."[1047] + +The time is overripe, asserts Johnson, to check judicial +usurpation--already the National Judiciary has struck down laws of eight +States.[1048] The career of this judicial oligarchy must be ended. "The +security of our liberties demands it." Let the jurisdiction of National +courts be specifically limited; or let National judges be subject to +removal upon address of both Houses of Congress; or let their +commissions be vacated "after a limited term of service"; or, finally, +"vest a controlling power in the Senate ... or some other body who shall +be responsible to the elective franchise."[1049] + +The Kentucky Legislature backed its fearless Senator;[1050] but the +Virginia Assembly weakened at the end. Most of the Kentucky land titles, +which the Supreme Court's decision had protected as against the +"occupying claimants," were, of course, held by Virginians or their +assignees. Virginia conservatives, too, were beginning to realize the +wisdom of Marshall's Nationalist policy as it affected all their +interests, except slavery and tariff taxation; and these men were +becoming hesitant about further attacks on the Supreme Court. Doubtless, +also, Marshall's friends were active among the members of the +Legislature. Roane understood the situation when he begged friends to +"jog up" the apathetic, and bemoaned the quiescence of Jefferson and +Madison. His proposed amendments were lost, though by a very close +vote.[1051] + +Nevertheless, the Virginia Localists carried the fight to the floors of +Congress. On April 26, 1822, Andrew Stevenson, one of Roane's +lieutenants and now a member of the National House, demanded the repeal +of Section 25 of the Ellsworth Judiciary Act which gave the Supreme +Court appellate jurisdiction over the State courts. But Stevenson was +unwontedly mild. He offered his resolution "in a spirit of peace and +forbearance.... It was ... due to those States, in which the subject has +been lately so much agitated, as well as to the nation, to have it ... +decided."[1052] + +As soon as Congress convened in the winter of 1823, Senator Johnson +renewed the combat; but he had become feeble, even apologetic. He did +not mean to reflect "upon the conduct of the judges, for he believed +them to be highly enlightened and intelligent." Nevertheless, their life +tenure and irresponsibility required that some limit should be fixed to +their powers. So he proposed that the membership of the Supreme Court be +increased to ten, and that at least seven Justices should concur in any +opinion involving the validity of National or State laws.[1053] + +Four months later, Senator Martin Van Buren reported from the Judiciary +Committee, a bill "that no law of any of the States shall be rendered +invalid, without the concurrence of at least five Judges of the Supreme +Court; their opinions to be separately expressed."[1054] But the friends +of the Judiciary easily overcame the innovators; the bill was laid on +the table;[1055] and for that session the assault on the Supreme Court +was checked. At the next session, however, Kentucky again brought the +matter before Congress. Charles A. Wickliffe, a Representative from that +State, proposed that writs of error from the Supreme Court be "awarded +to either party," regardless of the decision of the Supreme Court of any +State.[1056] Webster, on the Judiciary Committee, killed Wickliffe's +resolution with hardly a wave of his hand.[1057] + +After a reargument of Green _vs._ Biddle, lasting an entire week,[1058] +the Supreme Court stood to its guns and again held the Kentucky land +laws unconstitutional. Yet so grave was the crisis that the decision was +not handed down for a whole year. This time the opinion of the court was +delivered on February 27, 1823, by Bushrod Washington, who held that the +contract clause of the National Constitution was violated, but plainly +considered that "the principles of law and reason"[1059] were of more +importance in this case than the Constitutional provision. Washington's +opinion displays the alarm of the Supreme Court at the assaults upon it: +"We hold ourselves answerable to God, our consciences and our country, +to decide this question according to the dictates of our best judgment, +be the consequences of the decision what they may."[1060] + +Kentucky promptly replied. In his Message to the Legislature, Governor +John Adair declared that the Kentucky decisions of the Supreme Court +struck at "the right of the people to govern themselves." The National +authority can undoubtedly employ force to "put down insurrection," but +"that ... day, when the government shall be compelled to resort to the +bayonet to compel a state to submit to its laws, will not long precede +an event of all others to be deprecated."[1061] + +One of Marshall's numerous Kentucky kinsmen, who was an active member of +the Legislature, stoutly protested against any attack on the Supreme +Court; nevertheless he offered a resolution reciting the grievances of +the State and proposing an address "to the supreme court of the United +States, in full session," against the decision and praying for "its +total and definitive reversal."[1062] What! exclaimed John Rowan, +another member of the Legislature, shall Kentucky again petition "like +a degraded province of Rome"?[1063] He proposed counter-resolutions that +the Legislature "do ... most solemnly PROTEST ... against the erroneous, +injurious, and degrading doctrines of the opinion ... in ... Green and +Biddle."[1064] When modified, Rowan's resolutions, one of which hinted +at forcible resistance to the mandate of the Supreme Court, passed by +heavy majorities.[1065] Later resolutions openly threatened to "call +forth the physical power of the state, to resist the execution of the +decisions of the court," which were "considered erroneous and +unconstitutional."[1066] + +In the same year that the Supreme Court decided the Kentucky land case, +Justice Johnson aroused South Carolina by a decision rendered in the +United States District Court of that State. One Henry Elkison, a negro +sailor and a British subject, was taken by the sheriff of the Charleston +district, from the British ship Homer; and imprisoned under a South +Carolina law which directed the arrest and confinement of any free negro +on board any ship entering the ports of that State, the negro to be +released only when the vessel departed.[1067] Johnson wrathfully +declared that the "unconstitutionality of the law ... will not bear +argument"--nobody denied that it could not be executed "without clashing +with the general powers of the United States, to regulate commerce." +Thereupon, one of the counsel for the State said that the statute must +and would be enforced; and "that if a dissolution [_sic_] of the union +must be the alternative he was ready to meet it"--an assertion which +angered Johnson who delivered an opinion almost as strong in its +Nationalism as those of Marshall.[1068] + +Throughout South Carolina and other slaveholding States, the action of +Justice Johnson inflamed the passions of the white population. "A high +state of excitement exists," chronicles Niles.[1069] Marshall, of +course, heard of the outcry against his associate and promptly wrote +Story: "Our brother Johnson, I perceive, has hung himself on a +democratic snag in a hedge composed entirely of thorny state rights in +South Carolina.... You ... could scarcely have supposed that it +[Johnson's opinion] would have excited so much irritation as it seems to +have produced. The subject is one of much feeling in the South.... The +decision has been considered as another act of judicial usurpation; but +the sentiment has been avowed that if this be the constitution, it is +better to break that instrument than submit to the principle.... Fuel is +continually adding to the fire at which _exaltées_ are about to roast +the judicial department."[1070] + +The Governor and Legislature of South Carolina fiercely maintained the +law of the State--it was to them a matter of "self-preservation." Niles +was distressingly alarmed. He thought that the collision of South +Carolina with the National Judiciary threatened to disturb the harmony +of the Republic as much as the Missouri question had done.[1071] + +This, then, was the situation when the Ohio Bank case reached the +Supreme Court.[1072] Seven States were formally in revolt against the +National Judiciary, and others were hostile. Moreover, the protective +Tariff of 1824 was under debate in Congress; its passage was certain, +while in the South ever-growing bitterness was manifesting itself toward +this plundering device of Nationalism as John Taylor branded it. In the +House Southern members gave warning that the law might be forcibly +resisted.[1073] The first hints of Nullification were heard. Time and +again Marshall's Nationalist construction of the Constitution was +condemned. To the application of his theory of government was laid most +of the abuses of which the South complained; most of the dangers the +South apprehended. + +Thus again stands out the alliance of the various forces of +Localism--slavery, State banking, debtors' relief laws, opposition to +protective tariffs--which confronted the Supreme Court with threats of +physical resistance to its decrees and with the ability to carry out +those threats. + +Two arguments were had in Osborn _vs._ The Bank of the United States, +the first by Charles Hammond and by Henry Clay for the Bank;[1074] the +second by John C. Wright, Governor Ethan Allen Brown, and Robert Goodloe +Harper, for Ohio, and by Clay, Webster, and John Sergeant for the Bank. +Arguments on both sides were notable, but little was presented that was +new. Counsel for Ohio insisted that the court had no jurisdiction, since +the State was the real party against which the proceedings in the United +States Court in Ohio were had. Clay made the point that the Ohio tax, +unlike that of Maryland, "was a confiscation, and not a tax.... Is it +possible," he asked, "that ... the law of the whole may be defeated ... +by a single part?"[1075] + +On March 19, 1824, Marshall delivered the opinion of the court. All +well-organized governments, he begins, "must possess, within themselves, +the means of expounding, as well as enforcing, their own laws." The +makers of the Constitution kept constantly in view this great political +principle. The Judiciary Article "enables the judicial department to +receive jurisdiction to the full extent of the constitution, laws, and +treaties of the United States.... That power is capable of acting only +when the subject is submitted to it by a party who asserts his rights in +the form prescribed by law. It then becomes a case" over which the +Constitution gives jurisdiction to the National courts. "The suit of +The Bank of the United States _v._ Osborn _et al._, is a case, and the +question is, whether it arises under a law of the United States."[1076] + +The fact that other questions are involved does not "withdraw a case" +from the jurisdiction of the National courts; otherwise, "almost every +case, although involving the construction of a [National] law, would be +withdrawn; and a clause in the constitution, relating to a subject of +vital importance to the government and expressed in the most +comprehensive terms, would be construed to mean almost nothing." + +It is true that the Constitution specifies the cases in which the +Supreme Court shall have original jurisdiction, but nowhere in the +Constitution is there any "prohibition" against Congress giving the +inferior National courts original jurisdiction; such a restriction is +not "insinuated." Congress, then, can give the National Circuit Courts +"original jurisdiction, in any case to which the appellate jurisdiction +[of the Supreme Court] extends."[1077] + +At this particular period of our history this was, indeed, a tremendous +expansion of the power of Congress and the National Judiciary. Marshall +flatly declares that Congress can invest the inferior National courts +with any jurisdiction whatsoever which the Constitution does not +prohibit. It marks another stage in the development of his +Constitutional principle that the National Government not only has all +powers expressly granted, but also all powers not expressly prohibited. +For that is just what Marshall's reasoning amounts to during these +crucial years. + +No matter, continues the Chief Justice, how many questions, other than +that affecting the Constitution or laws, are involved in a case; if any +National question "forms an ingredient of the original cause," Congress +can "give the circuit courts jurisdiction of that cause." The Ohio Bank +case "is of this description." All the Bank's powers, functions, and +duties are conferred or imposed by its charter, and "that charter is a +law of the United States.... Can a being, thus constituted, have a case +which does not arise literally, as well as substantially, under the +law?"[1078] + +If the Bank brings suits on a contract, the very first, the "foundation" +question is, "has this legal entity a right to sue?... This depends on a +law of the United States"--a fact that can never be waived. "Whether it +be in fact relied on or not, in the defense, it is still a part of the +cause, and may be relied on."[1079] Assume, as counsel for Ohio assert, +that "the case arises on the contract"; still, "the validity of the +contract depends on a law of the United States.... The case arises +emphatically under the law. The act of Congress is its foundation.... +The act itself is the first ingredient in the case; is its origin; is +that from which every other part arises."[1080] + +Marshall concedes that the State is directly interested in the suit and +that, if the Bank could have done so, it ought to have made the State a +party. "But this was not in the power of the bank," because the Eleventh +Amendment exempts a State from being sued in such a case. So the "very +difficult question" arises, "whether, in such a case, the court may act +upon the agents employed by the state, and on the property in their +hands."[1081] + +Just what will be the result if the National courts have not this power? +"A denial of jurisdiction forbids all inquiry into the nature of the +case," even of "cases perfectly clear in themselves; ... where the +government is in the exercise of its best-established and most essential +powers." If the National courts have no jurisdiction over the agents of +a State, then those agents, under the "authority of a [State] law void +in itself, because repugnant to the constitution, may arrest the +execution of any law in the United States"--this they may do without any +to say them nay.[1082] + +In this fashion Marshall leads up to the serious National problem of the +hour--the disposition of some States, revealed by threats and sometimes +carried into execution, to interfere with the officers of the National +Government in the execution of the Nation's laws. According to the +Ohio-Virginia-Kentucky idea, those officers "can obtain no protection +from the judicial department of the government. The carrier of the mail, +the collector of the revenue,[1083] the marshal of a district, the +recruiting officer, may all be inhibited, under ruinous penalties, from +the performance of their respective duties"; and not one of them can +"avail himself of the preventive justice of the nation to protect him in +the performance of his duties."[1084] + +Addressing himself still more directly to those who were flouting the +authority of the Nation and preaching resistance to it, Marshall uses +stern language. What is the real meaning of the anti-National crusade; +what the certain outcome of it? "Each member of the Union is capable, at +its will, of attacking the nation, of arresting its progress at every +step, of acting vigorously and effectually in the execution of its +designs, while the nation stands naked, stripped of its defensive armor, +and incapable of shielding its agent or executing its laws, otherwise +than by proceedings which are to take place after the mischief is +perpetrated, and which must often be ineffectual, from the inability of +the agents to make compensation." + +Once more Marshall cites the case of a State "penalty on a revenue +officer, for performing his duty," and in this way warns those who are +demanding forcible obstruction of National law or authority, that they +are striking at the Nation and that the tribunals of the Nation will +shield the agents and officers of the Nation: "If the courts of the +United States cannot rightfully protect the agents who execute every law +authorized by the constitution, from the direct action of state agents +in the collecting of penalties, they cannot rightfully protect those who +execute any law."[1085] + +Here, in judicial language, was that rebuke of the spirit of +Nullification which Andrew Jackson was soon to repeat in words that rang +throughout the land and which still quicken the pulses of Americans. +What is the great question before the court in the case of Osborn _vs._ +The Bank of the United States; what, indeed, the great question before +the country in the controversy between recalcitrant States and the +imperiled Nation? It is, says Marshall, "whether the constitution of the +United States has provided a tribunal which can peacefully and +rightfully protect those who are employed in carrying into execution the +laws of the Union, from the attempts of a particular state to resist the +execution of those laws." + +Ohio asserts that "no preventive proceedings whatever," no action even +to stay the hand of a State agent from seizing property, no suit to +recover it from that agent, can be maintained because it is brought +"substantially against the State itself, in violation of the 11th +amendment of the constitution." Is this true? "Is a suit, brought +against an individual, for any cause whatever, a suit against a state, +in the sense of the constitution?"[1086] There are many cases in which a +State may be vitally interested, as, for example, those involving grants +of land by different States. + +If the mere fact that the State is "interested" in, or affected by, a +suit makes the State a party, "what rule has the constitution given, by +which this interest is to be measured?" No rule, of course! Is then the +court to decide the _degree_ of "interest" necessary to make a State a +party? Absurd! since the court would have to examine the "whole +testimony of a cause, inquiring into, and deciding on, the extent of a +State's interest, without having a right to exercise any jurisdiction +in the case."[1087] + +At last he affirms that it may be "laid down as a rule which admits of +no exception, that, in all cases where jurisdiction depends on the +party, it is the party _named in the record_." Therefore, the Eleventh +Amendment is, "of necessity, limited to those suits in which a state is +a party _on the record_."[1088] In the Ohio Bank case, it follows that, +"the state not being a party on the record, and the court having +jurisdiction over those who are parties on the record, the true question +is, not one of jurisdiction, but whether" the officers and agents of +Ohio are "only nominal parties" or whether "the court ought to make a +decree" against them.[1089] The answer to this question depends on the +constitutionality of the Ohio tax law. Although that exact point was +decided in M'Culloch _vs._ Maryland,[1090] "a revision of that opinion +has been requested; and many considerations combine to induce a review +of it."[1091] + +Maryland and Ohio claim the right to tax the National Bank as an +"individual concern ... having private trade and private profit for its +great end and principal object." But this is not true; the Bank is a +"public corporation, created for public and national purposes"; the fact +that it transacts "private as well as public business" does not destroy +its character as the "great instrument by which the fiscal operations of +the government are effected."[1092] Obviously the Bank cannot live +unless it can do a general business as authorized by its charter. This +being so, the right to transact such business "is necessary to the +legitimate operations of the government, and was constitutionally and +rightfully engrafted on the institution." Indeed, the power of the Bank +to engage in general banking is "the vital part of the corporation; it +is its soul." As well say that, while the human body must not be +touched, the "vivifying principle" which "animates" it may be destroyed, +as to say that the Bank shall not be annihilated, but that the faculty +by which it exists may be extinguished. + +For a State, then, to tax the Bank's "faculties, its trade and +occupation, is to tax the Bank itself. To destroy or preserve the one, +is to destroy or preserve the other."[1093] The mere fact that the +National Government created this corporation does not relieve it from +"state authority"; but the "operations" of the Bank "give its value to +the currency in which all the transactions of the government are +conducted." In short, the Bank's business is "inseparably connected" +with the "transactions" of the Government. "Its corporate character is +merely an incident, which enables it to transact that business more +beneficially."[1094] + +The Judiciary "has no will, in any case"--no option but to execute the +law as it stands. "Judicial power, as contradistinguished from the power +of the laws, has no existence. Courts are the mere instruments of the +law, and can will nothing." They can exercise no "discretion," except +that of "discerning the course prescribed by law; and, when that is +discerned, it is the duty of the court to follow it. Judicial power is +never exercised for the purpose of giving effect to the will of the +judge; always for the purpose of giving effect to the will of the +legislature."[1095] This passage, so wholly unnecessary to the decision +of the case or reasoning of the opinion, was inserted as an answer to +the charges of judicial "arrogance" and "usurpation." + +In conclusion, Marshall holds that the Ohio law taxing the National +Bank's branches is unconstitutional and void; that the State is not a +"party on the record"; that Osborn, Harper, Currie, and Sullivan are +"incontestably liable for the full amount of the money taken out of the +Bank"; that this money may be pursued, since it "remained a distinct +deposit"--in fact, was "kept untouched, in a trunk, by itself, ... to +await the event of the pending suit respecting it."[1096] The judgment +of the lower court that the money must be restored to the Bank was +right; but the judgment was wrong in charging interest against the State +officers, since they "were restrained by the authority of the Circuit +Court from using "the money, taken and held by them.[1097] + +So everybody having an immediate personal and practical interest in that +particular case was made happy, and only the State Rights theorists were +discomfited. It was an exceedingly human situation, such as Marshall, +the politician, managed to create in his disposition of those cases that +called for his highest judicial statesmanship. No matter how acutely he +irritated party leaders and forced upon them unwelcome issues, Marshall +contrived to satisfy the persons immediately interested in most of the +cases he decided. + +The Chief Justice himself was a theorist--one of the greatest theorists +America has produced; but he also had an intimate acquaintance with +human nature, and this knowledge he rightly used, in the desperate +conflicts waged by him, to leave his antagonists disarmed of those +weapons with which they were wont to fight. + +Seemingly Justice Johnson dissented; but, burning with anger at South +Carolina's defiance of his action in the negro sailor case, he +strengthened Marshall's opinion in his very "dissent." This is so +conspicuously true that it may well be thought that Marshall inspired +Johnson's "disagreement" with his six brethren of the Supreme Court. +Whether the decision was "necessary or unnecessary originally," begins +Johnson, "a _state of things has now grown up, in some of the states_, +which renders all the protection necessary, that the general government +can give to this bank."[1098] He makes a powerful and really stirring +appeal for the Bank, but finally concludes, on technical grounds, that +the Supreme Court has no jurisdiction.[1099] + +Immediately the fight upon the Supreme Court was renewed in Congress. On +May 3, 1824, Representative Robert P. Letcher of Kentucky rose in the +House and proposed that the Supreme Court should be forbidden by law to +hold invalid any provision of a State constitution or statute unless +five out of the seven Justices concurred, each to give his opinion +"separately and distinctly," if the court held against the State.[1100] +Kentucky, said Letcher, had been deprived of "equal rights and +privileges." How? By "_construction_.... Yes, construction! Its mighty +powers are irresistible; ... it creates new principles; ... it destroys +laws long since established; and it is daily acquiring new +strength."[1101] John Forsyth of Georgia proposed as a substitute to +Letcher's resolutions that, for the transaction of business, "a majority +of the quorum" of the Supreme Court "shall be a majority of the whole +court, including the Chief Justice." A long and animated debate[1102] +ensued in which Clay, Webster, Randolph, and Philip P. Barbour, among +others, took part. + +David Trimble of Kentucky declared that "no nation ought to submit, to +an umpire of minorities.[1103]... If less than three-fourths of the +States cannot amend the Constitution, less than three-fourths of the +judges ought not to construe it"--for judicial constructions are +"explanatory amendments" by which "the person and property of every +citizen must stand or fall."[1104] + +So strong had been the sentiment for placing some restraint on the +National Judiciary that Webster, astute politician and most resourceful +friend of the Supreme Court, immediately offered a resolution that, in +any cause before the Supreme Court where the validity of a State law or +Constitution is drawn in question "on the ground of repugnancy to the +Constitution, treaties, or laws, of the United States, no judgment shall +be pronounced or rendered until a majority of all the justices ... +legally competent to sit, ... shall concur in the opinion."[1105] + +But Marshall's opinion in Gibbons _vs._ Ogden[1106] had now reached the +whole country and, for the time being, changed popular hostility to the +Supreme Court into public favor toward it. The assault in Congress died +away and Webster allowed his soothing resolution to be forgotten. When +the attack on the National Judiciary was again renewed, the language of +its adversaries was almost apologetic. + + +FOOTNOTES: + +[947] _Annals_, 16th Cong. 1st Sess. 107-08. + +[948] _Ib._ 175. + +[949] _Ib._ 275. + +[950] _Ib._ 359. + +[951] _Annals_, 16th Cong. 1st Sess. 1033. + +[952] _Ib._ 209. The Justices of the Supreme Court followed the +proceedings in Congress with the interest and accuracy of politicians. +(See, for example, Story's comments on the Missouri controversy, Story +to White, Feb. 27, 1820, Story, I, 362.) + +[953] _Annals_, 16th Cong. 1st Sess. 1106-07. + +[954] For instance, Joshua Cushman of Massachusetts was sure that, +instead of disunion, "the Canadas, with New Brunswick and Nova Scotia, +allured by the wisdom and beneficence of our institutions, will stretch +out their hands for an admission into this Union. The Floridas will +become a willing victim. Mexico will mingle her lustre with the federal +constellation. South America ... will burn incense on our ... altar. The +Republic of the United States shall have dominion from sea to sea, ... +from the river Columbia to the ends of the earth. The American Eagle ... +will soar aloft to the stars of Heaven." (_Ib._ 1309.) + +[955] May 3, 1802, _U.S. Statutes at Large_. This act, together with a +supplementary act (May 4, 1812, _ib._), is a vivid portrayal of a phase +of the life of the National Capital at that period. See especially +Section VI. + +[956] Lotteries had long been a favorite method of raising funds for +public purposes. As a member of the Virginia House of Delegates, +Marshall had voted for many lottery bills. (See vol. II, footnote 1, to +56, of this work.) For decades after the Constitution was adopted, +lotteries were considered to be both moral and useful. + +[957] Effective January 21, 1820. + +[958] 6 Wheaton, 266-67. + +[959] _Ib._ 268-90. + +[960] William Pinkney was at this time probably the highest paid lawyer +in America. Five years before he argued the case of Cohens _vs._ +Virginia, his professional income was $21,000 annually (Story to White, +Feb. 26, 1816, Story, I, 278), more than four times as much as Marshall +ever received when leader of the Richmond bar (see vol. II, 201, of this +work). David B. Ogden, the other counsel for the Cohens, was one of the +most prominent and successful lawyers of New York. See Warren, 303-04. + +Another interesting fact in this celebrated case is that the Norfolk +Court fined the Cohens the minimum allowed by the Virginia statute. They +could have been fined at least $800, $100 for each offense--perhaps +should have been fined that amount had the law been strictly observed. +Indeed, the Virginia Act permitted a fine to the extent of "the whole +sum of money proposed to be raised by such lottery." (6 Wheaton, 268.) + +[961] Barbour declined a large fee offered him by the State. (Grigsby: +_Virginia Convention of 1829-30_.) + +[962] 6 Wheaton, 344. + +[963] _Ib._ 347. + +[964] _Ib._ 354. + +[965] 6 Wheaton, 375. For a better report of Pinkney's speech see +Wheaton: _Pinkney_, 612-16. + +[966] _Ib._ 376. + +[967] See _supra_, 157-58. + +[968] 6 Wheaton, 377. + +[969] 6 Wheaton, 380. + +[970] _Ib._ 381. + +[971] 6 Wheaton, 382. (Italics the author's.) + +[972] _Ib._ 382. + +[973] 6 Wheaton, 384-85. (Italics the author's.) + +[974] See vol. II, 66, of this work. + +[975] 6 Wheaton, 87. + +[976] _Ib._ 385-86. + +[977] _Ib._ 387. + +[978] 6 Wheaton, 386-87. + +[979] See U.S. _vs._ Peters, _supra_, 18 _et seq._ + +[980] 6 Wheaton, 387-88. + +[981] 6 Wheaton, 388. + +[982] 6 Wheaton, 389-90. + +[983] 6 Wheaton, 390-91. + +[984] _Ib._ 393. + +[985] _Ib._ 394-404. + +[986] _Ib._ 405. + +[987] See vol. III, 127-28, of this work. + +[988] 6 Wheaton, 406-07. + +[989] _Ib._ 413. + +[990] 6 Wheaton, 413-14. + +[991] Fairfax's Devisee _vs._ Hunter, _supra_, 157-60. + +[992] 6 Wheaton, 420. + +[993] _Ib._ 424. + +[994] _Ib._ 425-26. + +[995] 6 Wheaton, 429. + +[996] _Ib._ 445-47. + +[997] Ambler: _Ritchie_, 81. + +[998] _Enquirer_, May 25, 1821, as quoted in _Branch Hist. Papers_, +June, 1906, 78, 85. + +[999] _Enquirer_, May 25 and May 29, 1821, as quoted in _ib._ 89, 100. + +[1000] _Enquirer_, May 29, 1821, as quoted in _ib._ 101. + +[1001] _Enquirer_, June 21, 1821, as quoted in _ib._ 110. + +[1002] _Branch Hist. Papers_, June, 1906, 119. + +[1003] _Ib._ 123-24. + +[1004] _Enquirer_, June 5, 1821, as quoted in _Branch Hist. Papers_, +June, 1906, 146-47. + +[1005] _Ib._ 182-83. + +[1006] Marshall to Story, June 15, 1821, _Proceedings, Mass. Hist. Soc._ +2d Series, XIV, 327-28. + +[1007] Marshall refers to three papers published in the _Enquirer_ of +May 15 and 22, and June 22, the first two signed "Somers" and the third +signed "Fletcher of Saltoun." It is impossible to discover who these +writers were. Their essays, although vicious, are so dull as not to be +worth the reading, though Jefferson thought them "luminous and +striking." (Jefferson to Johnson, June 12, 1823, _Works_: Ford, XII, +252, footnote.) + +"Somers," however, is compelled to admit the irresistible appeal of +Marshall's personality. "Superior talents and address will forever +attract the homage of inferior minds." (_Enquirer_, May 15, 1821.) + +"The Supreme court ... have rendered the constitution the sport of legal +ingenuity.... Its meaning is locked up from the profane vulgar, and +distributed only by the high priests of the temple." (_Ib._ May 22, +1821.) + +"Fletcher of Saltoun" is intolerably verbose: "The victories ... of +courts ... though bloodless, are generally decisive.... The progress of +the judiciary, though slow, is steady and untiring as the foot of time." + +The people act as though hypnotized, he laments--"the powerful mind of +the chief justice has put forth its strength, and we are quiet as if +touched by the wand of enchantment;--we fall prostrate before his genius +as though we had looked upon the dazzling brightness of the shield of +Astolfo.--Triumphant indeed has been this most powerful effort of his +extraordinary mind. His followers exult--those who doubted, have +yielded; even the faithful are found wavering, and the unconvinced can +find no opening in his armor of defense." + +This writer points out Marshall's "abominable inconsistencies," but +seems to be himself under the spell of the Chief Justice: "I mention not +this to the disadvantage of the distinguished individual who has +pronounced these conflicting opinions. No man can have a higher respect +for the virtues of his character, or greater admiration of the powers of +his mind." + +Alas for the change that time works upon the human intellect! Consider +Marshall, the young man, and Marshall, the Chief Justice! "How little +did he, at that early day, contemplate the possibility of his carrying +the construction of the constitution to an extent so far beyond even +what he then renounced!" [_sic._] + +Thereupon "Fletcher of Saltoun" plunges into an ocean of words +concerning Hamilton's theories of government and Marshall's application +of them. He announces this essay to be the first of a series; but, +luckily for everybody, this first effort exhausted him. Apparently he, +too, fell asleep under Marshall's "wand," for nothing more came from his +drowsy pen. (_Ib._ June 22, 1821.) + +[1008] Marshall to Story, July 13, 1821, _Proceedings, Mass. Hist. Soc._ +2d Series, XIV, 329. + +[1009] Jefferson to Jarvis, Sept. 28, 1820, _Works_: Ford, XII, 162-63. + +[1010] Marshall to Story, July 13, 1821, _Proceedings, Mass. Hist. Soc._ +2d Series, XIV, 328-29. + +[1011] Same to same, Sept. 18, 1821, _ib._ 330. + +[1012] Marshall to Story, July 13, 1821, _Proceedings, Mass. Hist. Soc._ +2d Series, XIV, 329-30. + +[1013] Marshall to Story, July 13, 1821, _Proceedings, Mass. Hist. Soc._ +2d Series, XIV, 330-31. + +[1014] Taylor: _Tyranny Unmasked_, 89. + +[1015] This was Madison's idea. See vol. I, 312, of this work. + +[1016] Taylor: _Tyranny Unmasked_, 33. + +[1017] M'Culloch _vs._ Maryland. + +[1018] Martin _vs._ Hunter's Lessee and Cohens _vs._ Virginia. + +[1019] Cohens _vs._ Virginia. + +[1020] Taylor: _Tyranny Unmasked_, 132-33. + +[1021] Taylor: _Tyranny Unmasked_, 133-254. Taylor was the first to +state fully most of the arguments since used by the opponents of +protective tariffs. + +[1022] _Ib._ 260. + +[1023] _Ib._ 285. + +[1024] _Ib._ 305. + +[1025] _Ib._ 341. + +[1026] Jefferson to Thweat, Jan. 19, 1821, _Works_: Ford, XII, 196-97. + +Wirt, though a Republican, asserted that "the functions to be performed +by the Supreme Court ... are among the most difficult and perilous which +are to be performed under the Constitution. They demand the loftiest +range of talents and learning and a soul of Roman purity and firmness. +The questions which come before them frequently involve the fate of the +Constitution, the happiness of the whole nation." (Wirt to Monroe, May +5, 1823, Kennedy, II, 153.) + +Wirt, in this letter, was urging the appointment of Kent to the Supreme +Bench, notwithstanding the Federalism of the New York Chancellor. +"Federal politics are no way dangerous on the bench of the Supreme +Court," adds Wirt. (_Ib._ 155.) + +[1027] His strange failure to come to Roane's support in the fight, over +the Judiciary amendments to the Constitution, in the Virginia +Legislature during the session of 1821-22. (See _infra_, 371.) + +[1028] Jefferson to Johnson, June 12,1823, _Works_: Ford, XII, footnote +to 255-56. + +[1029] Jefferson to Livingston, March 25, 1825, Hunt: _Livingston_, +295-97. + +[1030] _Annals_, 17th Cong. 1st Sess. 68. + +[1031] Roane to Thweat, Dec. 24, 1821, Jefferson MSS. Lib. Cong. + +[1032] _Annals_, 17th Cong. 1st Sess. 69-70. + +[1033] _Ib._ 71-72. + +[1034] _Annals_, 17th Cong. 1st Sess. 74-75. + +[1035] _Ib._ 79. + +[1036] _Ib._ 79-80. + +[1037] _Annals_, 17th Cong. 1st Sess. 84-90. + +[1038] Webster to Story, Jan. 14, 1822, _Priv. Corres._: Webster, I, +320. + +[1039] Ordinance of Separation, 1789. + +[1040] Act of Feb. 27, _Laws of Kentucky_, 1797: Littell, 641-45. See +also Act of Feb. 28 (_ib._ 652-71), apparently on a different subject; +and, especially, Act of March 1 (_ib._ 682-87). Compare Act of 1796 +(_ib._ 392-420); and Act of Dec. 19, 1796 (_ib._ 554-57). See also in +_ib._ general land laws. + +[1041] 8 Wheaton, 11-12. (Italics the author's.) + +[1042] _Ib._ 18. + +[1043] _Annals_, 17th Cong. 1st Sess. 96-98. + +[1044] _Annals_, 17th Cong. 1st Sess. 102. + +[1045] _Ib._ 103. + +[1046] _Ib._ 104. + +[1047] _Ib._ 108. + +[1048] Georgia, Fletcher _vs._ Peck (see vol. III, chap, X, of this +work); Pennsylvania, U.S. _vs._ Peters (_supra_, chap. I); New Jersey, +New Jersey _vs._ Wilson (_supra_, chap. V); New Hampshire, Dartmouth +College _vs._ Woodward (_supra_, chap. V); New York, Sturges _vs._ +Crowninshield (_supra_, chap. IV); Maryland, M'Culloch _vs._ Maryland +(_supra_, chap. VI); Virginia, Cohens _vs._ Virginia (_supra_, chap. +VII); Kentucky, Green _vs._ Biddle (_supra_, this chapter). + +[1049] _Annals_, 17th Cong. 1st Sess. 113. + +[1050] Niles, XXI, 404. + +[1051] _Ib._ The resolutions, offered by John Wayles Eppes, Jefferson's +son-in-law, "_instructed_" Virginia's Senators and requested her +Representatives in Congress to "procure" these amendments to the +Constitution: + +1. The judicial power shall not extend to any power "not expressly +granted ... or _absolutely_ necessary for carrying the same into +execution." + +2. Neither the National Government nor any department thereof shall have +power to bind "_conclusively_" the States in conflicts between Nation +and State. + +3. The judicial power of the Nation shall never include "_any_ case in +which a State shall be a party," except controversies between States; +nor cases involving the rights of a State "to which such a state shall +ask to become a party." + +4. No appeal to any National court shall be had from the decisions of +any State court. + +5. Laws applying to the District of Columbia or the Territories, which +conflict with State laws, shall not be enforceable within State +jurisdiction. (Niles, XXI, 404.) + +[1052] _Annals_, 17th Cong. 1st Sess. 1682. + +[1053] _Ib._, 18th Cong. 1st Sess. 28. + +[1054] _Annals_, 18th Cong. 1st Sess. 336. + +[1055] _Ib._ 419. + +[1056] _Ib._ 915. + +[1057] Webster, from the Judiciary Committee, which he seems to have +dominated, merely reported that Wickliffe's proposed reform was "not +expedient." (_Annals_, 18th Cong. 1st Sess. 1291.) + +[1058] March 7 to 13, 1822, inclusive. + +[1059] 8 Wheaton, 75. + +[1060] 8 Wheaton, 93. Johnson dissented. (_Ib._ 94-107.) Todd of +Kentucky was absent because of illness, a circumstance that greatly +worried Story, who wrote the sick Justice: "We have missed you +exceedingly during the term and particularly in the Kentucky causes.... +We have had ... tough business" and "wanted your firm vote on many +occasions." (Story to Todd, March 24, 1823, Story, I, 422-23.) + +[1061] Niles, XXV, 203-05. + +[1062] _Ib._ 206. + +[1063] Niles, XXV, 205. + +[1064] _Ib._ 261. + +[1065] _Ib._ 275-76. + +[1066] _Ib._ XXIX, 228-29. + +[1067] _Ib._ XXV, 12; and see Elkison _vs._ Deliesseline, 8 _Federal +Cases_, 493. + +[1068] Niles, XXV, 13-16. + +[1069] _Ib._ 12; and see especially _ib._ XXVII, 242-43. + +[1070] Marshall to Story, Sept. 26, 1823, Story MSS. Mass. Hist. Soc. + +[1071] Niles, XXVII, 242. The Senate of South Carolina resolved by a +vote of six to one that the duty of the State to "guard against +insubordination or insurrection among our colored population ... is +paramount to all _laws_, all _treaties_, all _constitutions_ ... and +will never, by this state, be renounced, compromised, controlled or +participated with any power whatever." + +Johnson's decision is viewed as "an unconstitutional interference" with +South Carolina's slave system, and the State "will, on this subject, ... +make common cause with ... other southern states similarly circumstanced +in this respect." (Niles, XXVII, 264.) The House rejected the savage +language of the Senate and adopted resolutions moderately worded, but +expressing the same determination. (_Ib._ 292.) + +[1072] For the facts in Osborn _vs._ The Bank of the United States, see +_supra_, 328-329. + +[1073] See, for instance, speech of John Carter of South Carolina. +(_Annals_, 18th Cong. 1st Sess. 2097; and upon this subject, generally, +see _infra_, chap. X.) + +[1074] Who appeared for Ohio on the first argument is not disclosed by +the records. + +[1075] 9 Wheaton, 795-96. + +[1076] 9 Wheaton, 818-19. + +[1077] _Ib._ 819-21. + +[1078] 9 Wheaton, 823. + +[1079] _Ib._ 823-24. + +[1080] _Ib._ 824-25. + +[1081] 9 Wheaton, 846-47. + +[1082] _Ib._ 847. + +[1083] Marshall here refers to threats to resist forcibly the execution +of the Tariff of 1824. See _infra_, 535-36. + +[1084] 9 Wheaton, 847-48. + +[1085] 9 Wheaton, 848-49. + +[1086] 9 Wheaton, 849. + +[1087] _Ib._ 852-53. + +[1088] 9 Wheaton, 857. (Italics the author's.) + +[1089] _Ib._ 858. + +[1090] See _supra_, chap, VI. + +[1091] 9 Wheaton, 859. + +[1092] _Ib._ 859-60. + +[1093] 9 Wheaton, 861-62. + +[1094] _Ib._ 862-63. + +[1095] 9 Wheaton, 866. + +[1096] _Ib._ 868-69. + +[1097] _Ib._ 871. + +[1098] 9 Wheaton, 871-72. (Italics the author's.) In reality Johnson is +here referring to the threats of physical resistance to the proposed +tariff law of 1824. (See _infra_, chap. X.) + +[1099] _Ib._ 875-903. + +[1100] _Annals_, 18th Cong. 1st Sess. 2514. + +[1101] _Ib._ 2519-20. + +[1102] _Ib._ 2527. This debate was most scantily reported. Webster wrote +of it: "We had the Supreme Court before us yesterday.... A debate arose +which lasted all day. Cohens _v._ Virginia, Green and Biddle, &c. were +all discussed.... The proposition for the concurrence of five judges +will not prevail." (Webster to Story, May 4, 1824, _Priv. Corres._: +Webster, I, 350.) + +[1103] _Annals_, 18th Cong. 1st Sess. 2538. + +[1104] _Ib._ 2539. + +[1105] _Annals_, 18th Cong. 1st Sess. 2541. + +Throughout this session Webster appears to have been much disturbed. For +example, as early as April 10, 1824, he writes Story: "I am exhausted. +When I look in the glass, I think of our old New England saying, 'As +thin as a shad.' I have not vigor enough left, either mental or +physical, to try an action for assault and battery.... I shall call up +some bills reported by our [Judiciary] committee.... The gentlemen of +the West will propose a clause, requiring the assent of a majority of +all the judges to a judgment, which pronounces a state law void, as +being in violation of the constitution or laws of the United States. Do +you see any great evil in such a provision? Judge Todd told me he +thought it would give great satisfaction in the West. In what +phraseology would you make such a provision?" (Webster to Story, April +10, 1824, _Priv. Corres._: Webster, I, 348-49.) + +[1106] See next chapter. + + + + +CHAPTER VIII + +COMMERCE MADE FREE + + Marshall's decision involved in its consequences the existence + of the Union. (John F. Dillon.) + + Opposing rights to the same thing cannot exist under the + Constitution of our country. (Chancellor Nathan Sanford.) + + Sir, we shall keep on the windward side of treason, but we must + combine to resist these encroachments,--and that effectually. + (John Randolph.) + + That uncommon man who presides over the Supreme Court is, in all + human probability, the ablest Judge now sitting on any judicial + bench in the world. (Martin Van Buren.) + + +At six o'clock in the evening of August 9, 1803, a curious assembly of +curious people was gathered at a certain spot on the banks of the Seine +in Paris. They were gazing at a strange object on the river--the model +of an invention which was to affect the destinies of the world more +powerfully and permanently than the victories and defeats of all the +armies that, for a dozen years thereafter, fought over the ancient +battle-fields of Europe from Moscow to Madrid. The occasion was the +first public exhibition of Robert Fulton's steamboat. + +France was once more gathering her strength for the war which, in May, +Great Britain had declared upon her; and Bonaparte, as First Consul, was +in camp at Boulogne. Fulton had been experimenting for a long time, and +the public exhibition now in progress would have been made months +earlier had not an accident delayed it. His activities had been reported +to Bonaparte, who promptly ordered members of the Institute[1107] to +attend the exhibition and report to him on the practicability of the +invention, which, he wrote, and in italics, "_may change the face of the +world_."[1108] Prominent, therefore, among the throng were these learned +men, doubting and skeptical as mere learning usually is. + +More conspicuous than Bonaparte's scientific agents, and as interested +and confident as they were indifferent or scornful, was a tall man of +distinguished bearing, whose powerful features, bold eyes, aggressive +chin, and acquisitive nose indicated a character of unyielding +determination, persistence, and hopefulness. This was the American +Minister to France, Robert R. Livingston of New York, who, three months +before, had conducted the Louisiana Purchase. By his side was Fulton +himself, a man of medium height, slender and erect, whose intellectual +brow and large, speculative eyes indicated the dreamer and contriver. + +The French scientists were not impressed, and the French Government +dropped consideration of the subject. But Fulton and Livingston were +greatly encouraged. An engine designed by Fulton was ordered from a +Birmingham manufacturer and, when constructed, was shipped to America. + +For many years inventive minds had been at work on the problem of steam +navigation. Because of the cost and difficulties of transportation, and +the ever-growing demand for means of cheap and easy water carriage, the +most active and fruitful efforts to solve the problem had been made in +America.[1109] Livingston, then Chancellor of New York, had taken a deep +and practical interest in the subject.[1110] He had constructed a boat +on the Hudson, and was so confident of success that, five years before +the Paris experiments of Fulton, he had procured from the New York +Legislature an act giving him the exclusive right for twenty years to +navigate by steamboats the streams and other waters of the State, +provided that, within a year, he should build a boat making four miles +an hour against the current of the Hudson.[1111] The only difficulty +Livingston encountered in securing the passage of this act was the +amused incredulity of the legislators. The bill "was a standing subject +of ridicule" and had to run the gamut of jokes, jeers, and +raillery.[1112] The legislators did not object to granting a monopoly on +New York waters for a century or for a thousand years,[1113] provided +the navigation was by steam; but they required, in payment to +themselves, the price of derision and laughter. + +Livingston failed to meet in time the conditions of the steamboat act, +but, with Livingston tenacity,[1114] persevered in his efforts to build +a practicable vessel. When, in 1801, he arrived in Paris as American +Minister, his mind was almost as full of the project as of his delicate +and serious official tasks. + +Robert Fulton was then living in the French Capital, working on his +models of steamboats, submarines, and torpedoes, and striving to +interest Napoleon in his inventions.[1115] Livingston and Fulton soon +met; a mutual admiration, trust, and friendship followed and a +partnership was formed.[1116] Livingston had left his interests in the +hands of an alert and capable agent, Nicholas J. Roosevelt, who, in +1803, had no difficulty in securing from the now hilarious New York +Legislature an extension of Livingston's monopoly for twenty years upon +the same terms as the first.[1117] Livingston resigned his office and +returned home. Within a year Fulton joined his partner. + +The grant of 1803 was forfeited like the preceding one, because its +conditions had not been complied with in time, and another act was +passed by the Legislature reviving the grant and extending it for two +years.[1118] Thus encouraged and secured, Fulton and Livingston put +forth every effort, and on Monday, August 17, 1807, four years and eight +days after the dramatic exhibition on the river Seine in Paris, the +North River,[1119] the first successful steamboat, made her voyage up +the Hudson from New York to Albany[1120] and the success of the great +enterprise was assured. + +On April 11, 1808, a final law was enacted by the New York Legislature. +The period of ridicule had passed; the members of that body now voted +with serious knowledge of the possibilities of steam navigation. The new +act provided that, for each new boat "established" on New York waters by +Livingston and Fulton and their associates, they should be "entitled to +five years prolongation of their grant _or contract_ with this state," +the "whole term" of their monopoly not to exceed thirty years. All other +persons were forbidden to navigate New York waters by steam craft +without a license from Livingston and Fulton; and any unlicensed vessel, +"together with the engine, tackle and apparel thereof," should be +forfeited to them.[1121] + +Obedient to "the great god, Success," the public became as enthusiastic +and friendly as it had been frigid and hostile and eagerly patronized +this pleasant, cheap, and expeditious method of travel. The profits +quickly justified the faith and perseverance of Livingston and Fulton. +Soon three boats were running between New York and Albany. The fare each +way was seven dollars and proportionate charges were made for +intermediate landings, of which there were eleven.[1122] Immediately the +monopoly began operating steam ferryboats between New York City and New +Jersey.[1123] Having such solid reason for optimism, Livingston and +Fulton, with prudent foresight, leaped half a continent and placed +steamboats on the Mississippi, the traffic of which they planned to +control by securing from the Legislature of Orleans Territory the same +exclusive privileges for steam navigation upon Louisiana waters, which +included the mouth of the Mississippi,[1124] that New York had granted +upon the waters of that State. Nicholas J. Roosevelt was put in charge +of this enterprise, and in an incredibly short time the steamboat New +Orleans was ploughing the turgid and treacherous currents of the great +river.[1125] + +It was not long, however, before troubles came--the first from New +Jersey. Enterprising citizens of that State also built steamboats; but +the owners of any vessel entering New York waters, even though acting +merely as a ferry between Hoboken and New York City, must procure a +license from Livingston and Fulton or forfeit their boats. From +discontent at this condition the feelings of the people rose to +resentment and then to anger. At last they determined to retaliate, and +early in 1811 the New Jersey Legislature passed an act authorizing the +owner of any boat seized under the New York law, in turn to capture and +hold any steam-propelled craft belonging "in part or in whole" to any +citizen of New York; "which boat ... shall be forfeited ... to the ... +owner ... of such ... boats which may have been seized" under the New +York law.[1126] + +New York was not slow to reply. Her Legislature was in session when that +of New Jersey thus declared commercial war. An act was speedily passed +providing that Livingston and Fulton might enforce at law or in equity +the forfeiture of boats unlicensed by them, "as if the same had been +tortiously and wrongfully taken out of their possession"; and that when +such a suit was brought the defendants should be enjoined from running +the boat or "removing the same or any part thereof out of the +jurisdiction of the court."[1127] + +Connecticut forbade any vessel licensed by Livingston and Fulton from +entering Connecticut waters.[1128] The opposition to the New York +steamboat monopoly was not, however, confined to other States. Citizens +of New York defied it and began to run steam vessels on the +Hudson.[1129] James Van Ingen and associates were the first thus to +challenge the exclusive "contract," as the New York law termed the +franchise which the State had granted to Livingston and Fulton. Suit was +brought against Van Ingen in the United States Circuit Court in New +York, praying that Livingston and Fulton be "quieted in the possession," +or in the exclusive right, to navigate the Hudson secured to them by two +patents.[1130] The bill was dismissed for want of jurisdiction. Thus far +the litigation was exclusively a State controversy. Upon the face of the +record the National element did not appear; yet it was the governing +issue raised by the dispute. + +Immediately Livingston and Fulton sued Van Ingen and associates in the +New York Court of Chancery, praying that they be enjoined from operating +their boats. In an opinion of great ability and almost meticulous +learning, Chancellor John Lansing denied the injunction; he was careful, +however, not to base his decision on a violation of the commerce clause +of the National Constitution by the New York steamboat monopoly act. He +merely held that act to be invalid because it was a denial of a natural +right of all citizens alike to the free navigation of the waters of the +State. In such fashion the National question was still evaded. + +The Court of Errors[1131] reversed the decree of Chancellor Lansing. +Justice Yates and Justice Thompson delivered State Rights opinions that +would have done credit to Roane.[1132] At this point the National +consideration develops. The opinion of James Kent, then Chief Justice, +was more moderate in its denial of National power over the subject. +Indeed, Kent appears to have anticipated that the Supreme Court would +reverse him. Nevertheless, his opinion was the source of all the +arguments thereafter used in defense of the steamboat monopoly. Because +of this fact; because of Kent's eminence as a jurist; and because +Marshall so crushingly answered his arguments, a _précis_ of them must +be given. It should be borne in mind that Kent was defending a law +which, in a sense, was his own child; as a member of the New York +Council of Revision, he had passed upon and approved it before its +passage. + +There could have been "no very obvious constitutional objection" to the +steamboat monopoly act, began Kent, "or it would not so repeatedly have +escaped the notice of the several branches of the government[1133] when +these acts were under consideration."[1134] There had been five acts all +told;[1135] that of 1798 would surely have attracted attention since it +was the first to be passed on the subject after the National +Constitution was adopted. It amounted to "a legislative exposition" of +State powers under the new National Government. + +Members of the New York Legislature of 1798 had also been members of the +State Convention that ratified the Constitution, and "were masters of +all the critical discussions" attending the adoption of that instrument. +This was peculiarly true of that "exalted character," John Jay, who was +Governor at that time; and "who was distinguished, as well in the +_council of revision_, as elsewhere, for the scrupulous care and +profound attention with which he examined every question of a +constitutional nature."[1136] The Act of 1811 was passed after the +validity of the previous ones had been challenged and "was, therefore, +equivalent to a declaratory opinion of high authority, that the former +laws were valid and constitutional."[1137] + +The people of New York had not "alienated" to the National Government +the power to grant exclusive privileges. This was proved by the charters +granted by the State to banks, ferries, markets, canal and bridge +companies. "The legislative power in a _single, independent government_, +extends to every proper object of power, and is limited only by its own +constitutional provisions, or by the fundamental principles of all +government, and the unalienable rights of mankind."[1138] In what +respect did the steamboat monopoly violate any of these restrictions? +In no respect. "It interfered with no man's property." Everybody could +freely use the waters of New York in the same manner that he had done +before. So there was "no violation of first principles."[1139] + +Neither did the New York steamboat acts violate the National +Constitution. State and Nation are "supreme within their respective +constitutional spheres." It is true that when National and State laws +"come directly in contact, as when they are aimed at each other," those +of the State "must yield"; but State Legislatures cannot all the time be +on the watch for some possible future collision. The only "safe rule of +construction" is this: "If any given power was originally vested in this +State, if it has not been exclusively ceded to Congress, or if the +exercise of it has not been prohibited to the States, we may then go on +in the exercise of the power until it comes practically in collision +with the actual exercise of some congressional power."[1140] + +The power given Congress to regulate commerce is not, "in express terms, +exclusive, and the only prohibition upon the States" in this regard +concerns the making of treaties and the laying of tonnage import or +export duties. All commerce within a State is "exclusively" within the +power of that State.[1141] Therefore, New York's steamboat grant to +Livingston and Fulton is valid. It conflicts with no act of Congress, +according to Kent, who cannot "perceive any power which ... can lawfully +carry to that extent." If Congress has any control whatever over New +York waters, it is concurrent with that of the State, and even then, "no +further than may be incidental and requisite to the due regulation of +commerce between the States, and with foreign nations."[1142] + +Kent then plunges into an appalling mass of authorities, in dealing with +which he delighted as much as Marshall recoiled from the thought of +them.[1143] So Livingston and Fulton's steamboat monopoly was +upheld.[1144] + +But what were New York waters and what were New Jersey waters? Confusion +upon this question threatened to prevent the monopoly from gathering fat +profits from New Jersey traffic. Aaron Ogden,[1145] who had purchased +the privilege of running ferryboats from New York to certain points on +the New Jersey shore, combined with one Thomas Gibbons, who operated a +boat between New Jersey landings, to exchange passengers at +Elizabethtown Point in the latter State. Gibbons had not secured the +permission of the New York steamboat monopoly to navigate New York +waters. By his partnership with Ogden he, in reality, carried passengers +from New York to various points in New Jersey. In fact, Ogden and +Gibbons had a common traffic agent in New York who booked passengers for +routes, to travel which required the service of the boats of both Ogden +and Gibbons. + +So ran the allegations of the bill for an injunction against the +offending carriers filed in the New York Court of Chancery by the +steamboat monopoly in the spring of 1819. Ogden answered that his +license applied only to waters "_exclusively_ within the state of +New-York," and that the waters lying between the New Jersey ports "are +within the jurisdiction of _New Jersey_." Gibbons admitted that he ran a +boat between New Jersey ports under "a coasting _license_" from the +National Government. He denied, however, that the monopoly had "any +exclusive right" to run steamboats from New York to New Jersey. Both +Ogden and Gibbons disclaimed that they ran boats in combination, or by +agreement with each other.[1146] + +Kent, now Chancellor, declared that a New York statute[1147] asserted +jurisdiction of the State over "the whole of the river Hudson, southward +of the northern boundary of the city of New-York, and the whole of the +bay between Staten Island and Long or Nassau Island." He refused to +enjoin Ogden because he operated his boat under license of the steamboat +monopoly; but did enjoin Gibbons "from navigating the waters in the bay +of New-York, or Hudson river, between Staten Island and Powles +Hook."[1148] + +Ogden was content, but Gibbons, thoroughly angered by the harshness of +the steamboat monopoly and by the decree of Chancellor Kent, began to +run boats regularly between New York and New Jersey in direct +competition with Ogden.[1149] To stop his former associate, now his +rival, Ogden applied to Chancellor Kent for an injunction. As in the +preceding case, Gibbons again set up his license from the National +Government, asserting that by virtue of this license he was entitled to +run his boats "in the coasting trade between ports of the same state, or +of different states," and could not be excluded from such traffic "by +any law or grant of any particular state, on any pretence to an +exclusive right to navigate the waters of any particular state by +steam-boats." Moreover, pleaded Gibbons, the representatives of +Livingston and Fulton had issued to Messrs. D. D. Tompkins, Adam Brown, +and Noah Brown a license to navigate New York Bay; and this license had +been assigned to Gibbons.[1150] + +Kent held that the act of Congress,[1151] concerning the enrollment and +licensing of vessels for the coasting trade, conferred no right +"incompatible with an exclusive right in Livingston and Fulton" to +navigate New York waters.[1152] The validity of the steamboat monopoly +laws had been settled by the decision of the Court of Errors in +Livingston _vs._ Van Ingen.[1153] If a National law gave to all vessels, +"duly licensed" by the National Government, the right to navigate all +waters "within the several states," despite State laws to the contrary, +the National statute would "overrule and set aside" the incompatible +legislation of the States. "The only question that could arise in such a +case, would be, whether the [National] law was constitutional." But that +was not the situation; "there is no collision between the act of +Congress and the acts of this State, creating the steam-boat monopoly." +At least "some judicial decision of the supreme power of the Union, +acting upon those laws, in direct collision and conflict" with them, is +necessary before the courts of New York "can retire from the support and +defence of them."[1154] + +Undismayed, Gibbons lost no time in appealing to the New York Court of +Errors, and in January, 1820, Justice Jonas Platt delivered the opinion +of that tribunal. Immediately after the decision in Livingston _vs._ Van +Ingen, he said, many, who formerly had resisted the steamboat monopoly +law, acquiesced in the judgment of the State's highest court and secured +licenses from Livingston and Fulton. Ogden was one of these. The Court +of Errors rejected Gibbons's defense, followed Chancellor Kent's +opinion, and affirmed his decree.[1155] + +[Illustration: _John Marshall_ +_From a painting by J. B. Martin, in the University of Virginia_] + +Thus did the famous case of Gibbons _vs._ Ogden reach the Supreme Court +of the United States; thus was John Marshall given the opportunity to +deliver the last but one of his greatest nation-making opinions--an +opinion which, in the judgment of most lawyers and jurists, is second +only to that in M'Culloch _vs._ Maryland in ability and statesmanship. +By some, indeed, it is thought to be superior even to that state paper. + +The Supreme Court, the bar, and the public anticipated an Homeric combat +of legal warriors when the case was argued, since, for the first time, +the hitherto unrivaled Pinkney was to meet the new legal champion, +Daniel Webster, who had won his right to that title by his efforts in +the Dartmouth College case and in M'Culloch _vs._ Maryland.[1156] It was +expected that the steamboat monopoly argument would be made at the +February session of 1821, and Story wrote to a friend that "the +arguments will be very splendid."[1157] + +But, on March 16, 1821, the case was dismissed because the record did +not show that there was a final decree in the court "from which said +appeal was made."[1158] On January 10, 1822, the case was again +docketed, but was continued at each term of the Supreme Court thereafter +until February, 1824. Thus, nearly four years elapsed from the time the +appeal was first taken until argument was heard.[1159] + +By the time the question was at last submitted to Marshall, +transportation had become the most pressing and important of all +economic and social problems confronting the Nation, excepting only that +of slavery; nor was any so unsettled, so confused. + +Localism had joined hands with monopoly--at the most widely separated +points in the Republic, States had granted "exclusive privileges" to the +navigation of "State waters." At the time that the last steamboat grant +was made by New York to Livingston and Fulton, in 1811, the Legislature +of the Territory of Orleans passed, and Governor Claiborne approved, an +act bestowing upon the New York monopoly the same exclusive privileges +conferred by the New York statute. This had been done soon after +Nicholas J. Roosevelt had appeared in New Orleans on the bridge of the +first steamboat to navigate the Mississippi. Whoever operated any steam +vessel upon Louisiana waters without license from Livingston and Fulton +must pay them $5000 for each offense, and also forfeit the boat and +equipment.[1160] + +The expectations of Livingston and Fulton of a monopoly of the traffic +of that master waterway were thus fulfilled. When, a few months later, +Louisiana was admitted to the Union, the new State found herself bound +by this monopoly from which, however, it does not appear that she wished +to be released. Thus Livingston and Fulton held the keys to the two +American ports into which poured the greatest volume of domestic +products for export, and from which the largest quantity of foreign +trade found its way into the interior. + +Three years later Georgia granted to Samuel Howard of Savannah a rigid +monopoly to transport merchandise upon Georgia waters in all vessels "or +rafts" towed by steam craft.[1161] Anybody who infringed Howard's +monopoly was to forfeit $500 for each offense, as well as the boat and +its machinery. The following year Massachusetts granted to John Langdon +Sullivan the "exclusive rights to the Connecticut river within this +Commonwealth for the use of his patent steam towboats for ... +twenty-eight years."[1162] A few months afterwards New Hampshire made a +like grant to Sullivan.[1163] About the same time Vermont granted a +monopoly of navigation in the part of Lake Champlain under her +jurisdiction.[1164] These are some examples of the general tendency of +States and the promoters of steam navigation to make commerce pay +tribute to monopoly by the exercise of the sovereignty of States over +waters within their jurisdiction. Retaliation of State upon State again +appeared--and in the same fashion that wrecked the States under the +Confederation.[1165] + +But this ancient monopolistic process could not keep pace with the +prodigious development of water travel and transportation by steamboat. +On every river, on every lake, glided these steam-driven vessels. Their +hoarse whistles startled the thinly settled wilderness; or, at the +landings on big rivers flowing through more thickly peopled regions, +brought groups of onlookers to witness what then were considered to be +marvels of progress.[1166] + +By 1820 seventy-nine steamboats were running on the Ohio between +Pittsburgh and St. Louis, most of them from 150 to 650 tons burden. +Pittsburgh, Cincinnati, and Louisville were the chief places where these +boats were built, though many were constructed at smaller towns along +the shore.[1167] They carried throngs of passengers and an ever-swelling +volume of freight. Tobacco, pork, beef, flour, corn-meal, whiskey--all +the products of the West[1168] were borne to market on the decks of +steamboats which, on the return voyage, were piled high with +manufactured goods. + +River navigation was impeded, however, by snags, sandbars, and shallows, +while the traffic overland was made difficult, dangerous, and expensive +by atrocious roads. Next to the frantic desire to unburden themselves +of debt by "relief laws" and other forms of legislative +contract-breaking, the thought uppermost in the minds of the people was +the improvement of means of communication and transportation. This +popular demand was voiced in the second session of the Fourteenth +Congress. On December 16, 1816, John C. Calhoun brought the subject +before the House.[1169] Four days later he reported a bill to devote to +internal improvements "the bonus of the National bank and the United +States's share of its dividends."[1170] It met strenuous opposition, +chiefly on the ground that Congress had no Constitutional power to +expend money for such purposes.[1171] An able report was made to the +House based on the report of Secretary Gallatin in 1808. The vital +importance of "internal navigation" was pointed out,[1172] and the bill +finally passed.[1173] + +The last official act of President James Madison was the veto of this +first bill for internal improvements passed by Congress. The day before +his second term as President expired, he returned the bill with the +reasons for his disapproval of it. He did this, he explained, because of +the "insuperable difficulty ... in reconciling the bill with the +Constitution." The power "proposed to be exercised by the bill" was not +"enumerated," nor could it be deduced "by any just interpretation" from +the power of Congress "to make laws necessary and proper" for the +execution of powers expressly conferred on Congress. "The power to +regulate commerce among the several States can not include a power to +construct roads and canals, and to improve the navigation of water +courses." Nor did the "'common defense and general welfare'" clause +justify Congress in passing such a measure.[1174] + +But not thus was the popular demand to be silenced. Hardly had the next +session convened when the subject was again taken up.[1175] On December +15, 1817, Henry St. George Tucker of Virginia, chairman of the Select +Committee appointed to investigate the subject, submitted an uncommonly +able report ending with a resolution that the Bank bonus and dividends +be expended on internal improvements "with the assent of the +States."[1176] For two weeks this resolution was debated.[1177] Every +phase of the power of Congress to regulate commerce was examined. And so +the controversy went on year after year. + +Three weeks before the argument of Gibbons _vs._ Ogden came on in the +Supreme Court, a debate began in Congress over a bill to appropriate +funds for surveying roads and canals, and continued during all the time +that the court was considering the case. It was going on, indeed, when +Marshall delivered his opinion and lasted for several weeks. Once more +the respective powers of State and Nation over internal improvements, +over commerce, over almost everything, were threshed out. As was usual +with him, John Randolph supplied the climax of the debate. + +Three days previous to the argument of Gibbons _vs._ Ogden before +Marshall and his associates, Randolph arose in the House and delivered a +speech which, even for him, was unusually brilliant. In it he revealed +the intimate connection between the slave power and opposition to the +National control of commerce. Randolph conceded the progress made by +Nationalism through the extension of the doctrine of implied powers. The +prophecy of Patrick Henry as to the extinction of the sovereignty, +rights, and powers of the State had been largely realized, he said. The +promises of the Nationalists, made in order to secure the ratification +of the Constitution, and without which pledges it never would have been +adopted, had been contemptuously broken, he intimated. He might well +have made the charge outright, for it was entirely true. + +Randolph laid upon Madison much of the blame for the advancement of +implied powers; and he arraigned that always weak and now ageing man in +an effective passage of contemptuous eloquence.[1178] When, in the +election of 1800, continued Randolph, the Federalists were overthrown, +and "the construction of the Constitution according to the Hamiltonian +version" was repudiated, "did we at that day dream, ... that a new sect +would arise after them, which would so far transcend Alexander Hamilton +and his disciples, as they outwent Thomas Jefferson, James Madison, and +John Taylor of Caroline? This is the deplorable fact: such is now the +actual state of things in this land; ... it speaks to the senses, so +that every one may understand it."[1179] And to what will all this +lead? To this, at last: "If Congress possesses the power to do +what is proposed by this bill [appropriate money to survey roads +and canals], ... they may _emancipate every slave in the United +States_[1180]--and with stronger color of reason than they can exercise +the power now contended for." + +Let Southern men beware! If "a coalition of knavery and fanaticism ... +be got up on this floor, I ask gentlemen, who stand in the same +predicament as I do, to look well to what they are now doing--to the +colossal power with which they are now arming this Government."[1181] +And why, at the present moment, insist on this "new construction of the +Constitution?... Are there not already causes enough of jealousy and +discord existing among us?... Is this a time to increase those +jealousies between different quarters of the country already +sufficiently apparent?" + +In closing, Randolph all but threatened armed rebellion: "Should this +bill pass, one more measure only requires to be consummated; and then +we, who belong to that unfortunate portion of this Confederacy which +is south of Mason and Dixon's line, ... have to make up our mind to +perish ... or we must resort to the measures which we first opposed to +British aggressions and usurpations--to maintain that independence which +the valor of our fathers acquired, but which is every day sliding from +under our feet.... Sir, this is a state of things that cannot last.... +We shall keep on the windward side of treason--but we must combine to +resist, and that effectually, these encroachments."[1182] + +Moreover, Congress and the country, particularly the South, were deeply +stirred by the tariff question; in the debate then impending over the +Tariff of 1824, Nationalism and Marshall's theory of Constitutional +construction were to be denounced in language almost as strong as that +of Randolph on internal improvements.[1183] The Chief Justice and his +associates were keenly alive to this agitation; they well knew that the +principles to be upheld in Gibbons _vs._ Ogden would affect other +interests and concern other issues than those directly involved in that +case. + +So it was, then, when the steamboat monopoly case came on for hearing, +that two groups of interests were in conflict. State Sovereignty +standing for exclusive privileges as chief combatant, with Free Trade +and Slavery as brothers in arms, confronted Nationalism, standing at +that moment for the power of the Nation over all commerce as the +principal combatant, with a Protective Tariff and Emancipation as its +most effective allies. Fate had interwoven subjects that neither +logically nor naturally had any kinship.[1184] + +The specific question to be decided was whether the New York steamboat +monopoly laws violated that provision of the National Constitution which +bestows on Congress the "power to regulate commerce among the several +States." + +The absolute necessity of a general supervision of commerce was the sole +cause of the Convention at Annapolis, Maryland, in 1786, which resulted +in the Constitutional Convention in Philadelphia the following +year.[1185] Since the adoption of uniform commercial regulations was the +prime object of the Convention, there was no disagreement as to, or +discussion of, the propriety of giving Congress full power over that +subject. Every draft except one[1186] of the Committee of Detail, the +Committee of Style, and the notes taken by members contained some +reference to a clause to that effect.[1187] + +The earliest exposition of the commerce clause of the Constitution by +any eminent National authority, therefore, came from John Marshall. In +his opinion in Gibbons _vs._ Ogden he spoke the first and last +authoritative word on that crucial subject. + +Pinkney was fatally ill when the Supreme Court convened in 1822 and died +during that session. His death was a heavy blow to the steamboat +monopoly, and his loss was not easily made good. It was finally decided +to employ Thomas J. Oakley, Attorney-General of New York, a cold, clear +reasoner, and carefully trained lawyer, but lacking imagination, +warmth, or breadth of vision.[1188] He was not an adequate substitute +for the masterful and glowing Pinkney. + +When on February 4, 1824, the argument at last was begun, the interest +in the case was so great that, although the incomparable Pinkney was +gone, the court-room could hold but a small part of those who wished to +hear that brilliant legal debate. Thomas Addis Emmet, whose "whole soul" +was in the case, appeared for the steamboat monopoly and made in its +behalf his last great argument. With him came Oakley, who was expected +to perform some marvelous intellectual feat, his want of attractive +qualities of speech having enhanced his reputation as a thinker. Wirt +reported that he was "said to be one of the first logicians of the +age."[1189] + +Gibbons was represented by Webster who, says Wirt, "is as ambitious as +Cæsar," and "will not be outdone by any man, if it is within the compass +of his power to avoid it."[1190] Wirt appeared with Webster against the +New York monopoly. The argument was opened by Webster; and never in +Congress or court had that surprising man prepared so carefully--and +never so successfully.[1191] Of all his legal arguments, that in the +steamboat case is incontestably supreme. And, as far as the assistance +of associate counsel was concerned, Webster's address, unlike that in +the Dartmouth College case, was all his own. It is true that every point +he made had been repeated many times in the Congressional debates over +internal improvements, or before the New York courts in the steamboat +litigation. But these facts do not detract from the credit that is +rightfully Webster's for his tremendous argument in Gibbons _vs._ Ogden. + +He began by admissions--a dangerous method and one which only a man of +highest power can safely employ. The steamboat monopoly law had been +"deliberately re-enacted," he said, and afterwards had the "sanction" of +various New York courts," than which there were few, if any, in the +country, more justly entitled to respect and deference." Therefore he +must, acknowledged Webster, "make out a clear case" if he hoped to +win.[1192] + +What was the state of the country with respect to transportation? +Everybody knew that the use of steamboats had become general; everywhere +they plied over rivers and bays which often formed the divisions between +States. It was inevitable that the regulations of such States should be +"hostile" to one another. Witness the antagonistic laws of New York, New +Jersey, and Connecticut. Surely all these warring statutes were not +"consistent with the laws and constitution of the United States." If any +one of them were valid, would anybody "point out where the state right +stopped?"[1193] + +Webster carefully described the New York steamboat monopoly laws, the +rights they conferred, and the prohibitions they inflicted.[1194] He +contended, among other things, that these statutes violated the National +Constitution. "The power of Congress to regulate commerce was complete +and entire," said Webster, "and to a certain extent necessarily +exclusive."[1195] It was well known that the "immediate" reason and +"prevailing motive" for adopting the Constitution was to "rescue" +commerce "from the embarrassing and destructive consequences resulting +from the legislation of so many different states, and to place it under +the protection of a uniform law."[1196] The paramount object of +establishing the present Government was "to benefit and improve" trade. +This, said Webster, was proved by the undisputed history of the period +preceding the Constitution.[1197] + +What commerce is to be regulated by Congress? Not that of the several +States, but that of the Nation as a "unit." Therefore, the regulation of +it "must necessarily be complete, entire and uniform. Its character was +to be described in the flag which waved over it, _E Pluribus Unum_." Of +consequence, Congressional regulation of commerce must be "exclusive." +Individual States cannot "assert a right of concurrent legislation, ... +without manifest encroachment and confusion."[1198] + +If New York can grant a monopoly over New York Bay, so can Virginia over +the entrance of the Chesapeake, so can Massachusetts over the bay +bearing the name and under the jurisdiction of that State. Worse still, +every State may grant "an exclusive right of entry of vessels into her +ports."[1199] + +Oakley, Emmet, and Wirt exhausted the learning then extant on every +point involved in the controversy. Not even Pinkney at his best ever was +more thorough than was Emmet in his superb argument in Gibbons _vs._ +Ogden.[1200] + +The small information possessed by the most careful and thorough lawyers +at that time concerning important decisions in the Circuit Courts of the +United States, even when rendered by the Chief Justice himself, is +startlingly revealed in all these arguments. Only four years previously, +Marshall, at Richmond, had rendered an opinion in which he asserted the +power of Congress over commerce as emphatically as Webster or Wirt now +insisted upon it. This opinion would have greatly strengthened their +arguments, and undoubtedly they would have cited it had they known of +it. But neither Wirt nor Webster made the slightest reference to the +case of the Brig Wilson _vs._ The United States, decided during the May +term, 1820. + +One offense charged in the libel of that vessel by the National +Government was, that she had brought into Virginia certain negroes in +violation of the laws of that State and in contravention of the act of +Congress forbidding the importation of negroes into States whose laws +prohibited their admission. Was this act of Congress Constitutional? The +power to pass such a law is, says Marshall, "derived entirely" from that +clause of the Constitution which "enables Congress, 'to regulate +commerce with foreign nations, and among the several States.'"[1201] +This power includes navigation. The authority to forbid foreign ships to +enter our ports comes exclusively from the commerce clause. "If this +power over vessels is not in Congress, where does it reside? Does it +reside in the States? + +"No American politician has ever been so extravagant as to contend for +this. No man has been wild enough to maintain, that, although the power +to regulate commerce, gives Congress an unlimited power over the +cargoes, it does not enable that body to control the vehicle in which +they are imported: that, while the whole power of commerce is vested in +Congress, the state legislatures may confiscate every vessel which +enters their ports, and Congress is unable to prevent their entry." + +The truth, continues Marshall, is that "even an empty vessel, or a +packet, employed solely in the conveyance of passengers and letters, may +be regulated and forfeited" under a National law. "There is not, in the +Constitution, one syllable on the subject of navigation. And yet, every +power that pertains to navigation has been ... rightfully exercised by +Congress. From the adoption of the Constitution, till this time, the +universal sense of America has been, that the word commerce, as used in +that instrument, is to be considered a generic term, comprehending +navigation, or, that a control over navigation is necessarily incidental +to the power to regulate commerce."[1202] + +Here was a weapon which Webster could have wielded with effect, but he +was unaware that it existed--a fact the more remarkable in that both +Webster and Emmet commented, in their arguments, upon State laws that +prohibited the admission of negroes. + +But Webster never doubted that the court's decision would be against the +New York steamboat monopoly laws. "Our Steam Boat case is not yet +decided, but it _can go but one way_," he wrote his brother a week after +the argument.[1203] + +On March 2, 1824, Marshall delivered that opinion which has done more to +knit the American people into an indivisible Nation than any other one +force in our history, excepting only war. In Marbury _vs._ Madison he +established that fundamental principle of liberty that a permanent +written constitution controls a temporary Congress; in Fletcher _vs._ +Peck, in Sturges _vs._ Crowninshield, and in the Dartmouth College case +he asserted the sanctity of good faith; in M'Culloch _vs._ Maryland and +Cohens _vs._ Virginia he made the Government of the American people a +living thing; but in Gibbons _vs._ Ogden he welded that people into a +unit by the force of their mutual interests. + +The validity of the steamboat monopoly laws of New York, declares +Marshall, has been repeatedly upheld by the Legislature, the Council of +Revision, and the various courts of that State, and is "supported by +great names--by names which have all the titles to consideration that +virtue, intelligence, and office, can bestow."[1204] Having paid this +tribute to Chancellor Kent--for every word of it was meant for that +great jurist--Marshall takes up the capital question of construction. + +It is urged, he says, that, before the adoption of the Constitution, the +States "were sovereign, were completely independent, and were connected +with each other only by a league. This is true. But when these allied +sovereigns converted their league into a government, when they converted +their Congress of Ambassadors, deputed to deliberate on their common +concerns, and to recommend measures of general utility, into a +legislature, empowered to enact laws ... the whole character" of the +States "underwent a change, the extent of which must be determined by a +fair consideration" of the Constitution. + +Why ought the powers "expressly granted" to the National Government to +be "construed strictly," as many insist that they should be? "Is there +one sentence in the constitution which gives countenance to this rule?" +None has been pointed out; none exists. What is meant by "a strict +construction"? Is it "that narrow construction, which would cripple the +government and render it unequal to the objects for which it is declared +to be instituted,[1205] and to which the powers given, as fairly +understood, render it competent"? The court cannot adopt such a rule for +expounding the Constitution.[1206] + +Just as men, "whose intentions require no concealment," use plain words +to express their meaning, so did "the enlightened patriots who framed +our constitution," and so did "the people who adopted it." Surely they +"intended what they have said." If any serious doubt of their meaning +arises, concerning the extent of any power, "the objects for which it +was given ... should have great influence in the construction."[1207] + +Apply this common-sense rule to the commerce clause of the +Constitution.[1208] What does the word "commerce" mean? Strict +constructionists, like the advocates of the New York steamboat monopoly, +"limit it to ... buying and selling ... and do not admit that it +comprehends navigation." But why not navigation? "Commerce ... is +traffic, but it is something more; it is intercourse." If this is not +true, then the National Government can make no law concerning American +vessels--"yet this power has been exercised from the commencement of +the government, has been exercised with the consent of all, and has +been understood by all to be a commercial regulation. All America +understands ... the word 'commerce' to comprehend navigation.... The +power over commerce, including navigation, was one of the primary +objects for which the people of America adopted their government.... The +attempt to restrict it [the meaning of the word "commerce"] comes too +late." + +Was not the object of the Embargo, which "engaged the attention of every +man in the United States," avowedly "the protection of commerce?... By +its friends and its enemies that law was treated as a commercial, not as +a war measure." Indeed, its very object was "the avoiding of war." +Resistance to it was based, not on the denial that Congress can regulate +commerce, but on the ground that "a perpetual embargo was the +annihilation, and not the regulation of commerce." This illustration +proves that "the universal understanding of the American people" was, +and is, that "a power to regulate navigation is as expressly granted as +if that term had been added to the word 'commerce.'"[1209] + +Nobody denies that the National Government has unlimited power over +foreign commerce--"no sort of trade can be carried on between this +country and any other, to which this power does not extend." The same is +true of commerce among the States. The power of the National Government +over trade with foreign nations, and "among" the several States, is +conferred in the same sentence of the Constitution, and "must carry the +same meaning throughout the sentence.... The word 'among' means +intermingled with." So "commerce among the states cannot stop at the +external boundary line of each state, but may be introduced into the +interior." This does not, of course, include the "completely interior +traffic of a state."[1210] + +Everybody knows that foreign commerce is that of the whole Nation and +not of its parts. "Every district has a right to participate in it. The +deep streams which penetrate our country in every direction, pass +through the interior of almost every state in the Union." The power to +regulate this commerce "must be exercised whenever the subject exists. +If it exists within a state, if a foreign voyage may commence or +terminate within a state, then the power of Congress may be exercised +within a state."[1211] + +If possible, "this principle ... is still more clear, when applied to +commerce 'among the several states.' They either join each other, in +which case they are separated by a mathematical line, or they are remote +from each other, in which case other states lie between them.... Can a +trading expedition between two adjoining states commence and terminate +outside of each?" The very idea is absurd. And must not commerce between +States "remote" from one another, pass through States lying between +them? The power to regulate this commerce is in the National +Government.[1212] + +What is this power to "regulate commerce"? It is the power "to prescribe +the rule by which commerce is to be governed. This power ... is complete +in itself, may be exercised to its utmost extent, and acknowledges no +limitations, other than are prescribed in the constitution;" and these +do not affect the present case. Power over interstate commerce "is +vested in Congress as absolutely as it would be in a single government" +under a Constitution like ours. There is no danger that Congress will +abuse this power, because "the wisdom and the discretion of Congress, +their identity with the people, and the influence which their +constituents possess at election, are, in this, as in many other +instances, as that, for example, of declaring war, the sole restraints +on which they [the people] have relied, to secure them from its abuse. +They are restraints on which the people must often rely solely, in all +representative governments." The upshot of the whole dispute is, +declares Marshall, that Congress has power over navigation "within the +limits of every state ... so far as that navigation may be, in any +manner, connected" with foreign or interstate trade.[1213] + +Marshall tries to answer the assertion that the power to regulate +commerce is concurrent in Congress and the State Legislatures; but, in +doing so, he is diffuse, prolix, and indirect. There is, he insists, no +analogy between the taxing power of Congress and its power to regulate +commerce; the former "does not interfere with the power of the states to +tax for the support of their own governments." In levying such taxes, +the States "are not doing what Congress is empowered to do." But when a +State regulates foreign or interstate commerce, "it is exercising the +very power ... and doing the very thing which Congress is authorized to +do." However, says Marshall evasively, in the case before the court the +question whether Congress has exclusive power over commerce, or whether +the States can exercise it until Congress acts, may be dismissed, since +Congress has legislated on the subject. So the only practical question +is: "Can a state regulate commerce with foreign nations and among the +states while Congress is regulating it?"[1214] + +The argument is not sound that, since the States are expressly forbidden +to levy duties on tonnage, exports, and imports which they might +otherwise have levied, they may exercise other commercial regulations, +not in like manner expressly prohibited. For the taxation of exports, +imports, and tonnage is a part of the general taxing power and is not +connected with the power to regulate commerce. It is true that duties on +tonnage often are laid "with a view to the regulation of commerce; but +they may be also imposed with a view to revenue," and, therefore, the +States are prohibited from laying such taxes. There is a vast difference +between taxation for the regulation of commerce and taxation for raising +revenue. "Those illustrious statesmen and patriots" who launched the +Revolution and framed the Constitution understood and acted upon this +distinction: "The right to regulate commerce, even by the imposition of +duties, was not controverted; but the right to impose a duty for the +purpose of revenue, produced a war as important, perhaps, in its +consequences to the human race, as any the world has ever +witnessed."[1215] + +In the same way, State inspection laws, while influencing commerce, do +not flow from a power to regulate commerce. The purpose of inspection +laws is "to improve the quality of the articles produced by the labor of +the country.... They act upon the subject before it becomes an article" +of foreign or interstate commerce. Such laws "form a portion of that +immense mass of legislation which embraces everything within the +territory of a state," and "which can be most advantageously exercised +by the states themselves." Of this description are "inspection laws, +quarantine laws, health laws ... as well as laws for regulating the +internal commerce of a state, and those which respect turnpike-roads, +ferries, etc."[1216] + +Legislation upon all these subjects is a matter of State +concern--Congress can act upon them only "for national purposes ... +where the power is expressly given for a special purpose, or is clearly +incidental to some power which is expressly given." Obviously, however, +the National Government "in the exercise of its express powers, that, +for example, of regulating [foreign and interstate] commerce ... may use +means that may also be employed by a state, ... that, for example, of +regulating commerce within the state." The National coasting laws, +though operating upon ports within the same State, imply "no claim of a +direct power to regulate the purely internal commerce of a state, or to +act directly on its system of police." State laws on these subjects, +although of the "same character" as those of Congress, do not flow from +the same source whence the National laws flow, "but from some other, +which remains with the state, and may be executed by the same means." +Although identical measures may proceed from different powers, "this +does not prove that the powers themselves are identical."[1217] + +It is inevitable in a "complex system" of government like ours that +"contests respecting power must arise" between State and Nation. But +this "does not prove that one is exercising, or has a right to exercise, +the powers of the other."[1218] It cannot be inferred from National +statutes requiring National officials to "conform to, and assist in the +execution of the quarantine and health laws of a state ... that a state +may rightfully regulate commerce"; such laws flow from "the acknowledged +power of a state, to provide for the health of its citizens." +Nevertheless, "Congress may control the state [quarantine and health] +laws, so far as it may be necessary to control them, for the regulation +of commerce."[1219] + +Marshall analyzes, at excessive length, National and State laws on the +importation of slaves, on pilots, on lighthouses,[1220] to show that +such legislation does not justify the inference that "the states +possess, concurrently" with Congress, "the power to regulate commerce +with foreign nations and among the states." + +In the regulation of "their own purely internal affairs," States may +pass laws which, although in themselves proper, become invalid when they +interfere with a National law. Is this the case with the New York +steamboat monopoly acts? Have they "come into collision with an act of +Congress, and deprived a citizen of a right to which that act entitles +him"? If so, it matters not whether the State laws are the exercise of a +concurrent power to regulate commerce, or of a power to "regulate their +domestic trade and police." In either case, "the acts of New York must +yield to the law of Congress."[1221] + +This truth is "founded as well on the nature of the government as on the +words of the constitution." The theory that if State and Nation each +rightfully pass conflicting laws on the same subject, "they affect the +subject, and each other, like equal opposing powers," is demolished by +the "supremacy" of the Constitution and "of the laws made in pursuance +of it. The nullity of _any act_, inconsistent with the constitution, is +produced by the declaration that the constitution is the supreme law." +So when a State statute, enacted under uncontrovertible State powers, +conflicts with a law, treaty, or the Constitution of the Nation, the +State enactment "must yield to it."[1222] + +It is not the Constitution, but "those laws whose authority is +acknowledged by civilized man throughout the world" that "confer the +right of intercourse between state and state.... The constitution found +it an existing right, and gave to Congress the power to regulate it. In +the exercise of this power, Congress has passed an act" regulating the +coasting trade. Any law "must imply a power to exercise the right" it +confers. How absurd, then, the contention that, while the State of New +York cannot prevent a vessel licensed under the National coasting law, +when proceeding from a port in New Jersey to one in New York, "from +enjoying ... all the privileges conferred by the act of Congress," +nevertheless, the State of New York "can shut her up in her own port, +and prohibit altogether her entering the waters and ports of another +state"![1223] + +A National license to engage in the coasting trade gives the right to +navigate between ports of different States.[1224] The fact that +Gibbons's boats carried passengers only did not make those vessels any +the less engaged in the coasting trade than if they carried nothing but +merchandise--"no clear distinction is perceived between the power to +regulate vessels employed in transporting men for hire, and property +for hire.... A coasting vessel employed in the transportation of +passengers, is as much a portion of the American marine as one +employed in the transportation of a cargo."[1225] Falling into his +characteristic over-explanation, Marshall proves the obvious by many +illustrations.[1226] + +However the question as to the nature of the business is beside the +point, since the steamboat monopoly laws are based solely on the method +of propelling boats--"whether they are moved by steam or wind. If by the +former, the waters of New York are closed against them, though their +cargoes be dutiable goods, which the laws of the United States permit +them to enter and deliver in New York. If by the latter, those waters +are free to them, though they should carry passengers only." What is the +injury which Ogden complains that Gibbons has done him? Not that +Gibbons's boats carry passengers, but only that those vessels "are moved +by steam." + +"The writ of injunction and decree" of the State court "restrain these +[Gibbons's] licensed vessels, not from carrying passengers, but from +being moved through the waters of New York by steam, for any purpose +whatever." Therefore, "the real and sole question seems to be, whether a +steam machine, in actual use, deprives a vessel of the privileges +conferred by a [National] license." The answer is easy--indeed, there is +hardly any question to answer: "The laws of Congress, for the regulation +of commerce, do not look to the principle by which vessels are +moved."[1227] + +Steamboats may be admitted to the coasting trade "in common with +vessels using sails. They are ... entitled to the same privileges, and +can no more be restrained from navigating waters, and entering ports +which are free to such vessels, than if they were wafted on their voyage +by the winds, instead of being propelled by the agency of fire. The one +element may be as legitimately used as the other, for every commercial +purpose authorized by the laws of the Union; and the act of a state +inhibiting the use of either to any vessel having a license under the +act of Congress comes ... in direct collision with that act."[1228] + +Marshall refuses to discuss the question of Fulton's patents since, +regardless of that question, the cause must be decided by the supremacy +of National over State laws that regulate commerce between the States. + +The Chief Justice apologizes, and very properly, for taking so "much +time ... to demonstrate propositions which may have been thought axioms. +It is felt that the tediousness inseparable from the endeavor to prove +that which is already clear, is imputable to a considerable part of this +opinion. But it was unavoidable." The question is so great, the judges, +from whose conclusions "we dissent," are so eminent,[1229] the arguments +at the bar so earnest, an "unbroken" statement of principles upon which +the court's judgment rests so indispensable, that Marshall feels that +nothing should be omitted, nothing taken for granted, nothing +assumed.[1230] + +Having thus placated Kent, Marshall turns upon his Virginia +antagonists: "Powerful and ingenious minds, taking, as postulates, that +the powers expressly granted to the government of the Union, are to be +contracted, by construction, into the narrowest possible compass, and +that the original powers of the States are retained, if any possible +construction will retain them, may, by a course of well digested, but +refined and metaphysical reasoning, founded on these premises, _explain +away the constitution of our country, and leave it a magnificent +structure indeed, to look at, but totally unfit for use_. + +"They may so entangle and perplex the understanding, as to obscure +principles which were before thought quite plain, and induce doubts +where, if the mind were to pursue its own course, none would be +perceived. + +"In such a case, it is peculiarly necessary to recur to safe and +fundamental principles to sustain those principles, and, when sustained, +to make them the tests of the arguments to be examined."[1231] + +So spoke John Marshall, in his seventieth year, when closing the last +but one of those decisive opinions which vitalized the American +Constitution, and assured for himself the grateful and reverent homage +of the great body of the American people as long as the American Nation +shall endure. It is pleasant to reflect that the occasion for this +ultimate effort of Marshall's genius was the extinction of a monopoly. + +Marshall, the statesman, rather than the judge, appears in his opinion. +While avowing the most determined Nationalism in the body of his +opinion, he is cautious, nevertheless, when coming to close grips with +the specific question of the respective rights of Gibbons and Ogden. He +is vague on the question of concurrent powers of the States over +commerce, and rests the concrete result of his opinion on the National +coasting laws and the National coasting license to Gibbons. + +William Johnson, a Republican, appointed by Jefferson, had, however, no +such scruples. In view of the strong influence Marshall had, by now, +acquired over Johnson, it appears to be not improbable that the Chief +Justice availed himself of the political status of the South Carolinian, +as well as of his remarkable talents, to have Johnson state the real +views of the master of the Supreme Court. + +At any rate, Johnson delivered a separate opinion so uncompromisingly +Nationalist that Marshall's Nationalism seems hesitant in comparison. In +it Johnson gives one of the best statements ever made, before or since, +of the regulation of commerce as the moving purpose that brought about +the American Constitution. That instrument did not originate liberty of +trade: "The law of nations ... pronounces all commerce legitimate in a +state of peace, until prohibited by positive law." So the power of +Congress over that vital matter "must be exclusive; it can reside but in +one potentate; and hence, the grant of this power carries with it the +whole subject, leaving nothing for the state to act upon."[1232] + +Commercial laws! Were the whole of them "repealed to-morrow, all +commerce would be lawful." The authority of Congress to control foreign +commerce is precisely the same as that over interstate commerce. The +National power over navigation is not "incidental to that of regulating +commerce; ... it is as the thing itself; inseparable from it as vital +motion is from vital existence.... Shipbuilding, the carrying trade, and +the propagation of seamen, are such vital agents of commercial +prosperity, that the nation which could not legislate over these +subjects would not possess power to regulate commerce."[1233] + +Johnson therefore finds it "impossible" to agree with Marshall that +freedom of interstate commerce rests on any such narrow basis as +National coasting law or license: "I do not regard it as the foundation +of the right set up in behalf of the appellant [Gibbons]. If there was +any one object riding over every other in the adoption of the +constitution, it was to keep the commercial intercourse among the states +free from all invidious and partial restraints.... If the [National] +licensing act was repealed to-morrow," Gibbons's right to the free +navigation of New York waters "would be as strong as it is under this +license."[1234] + +So it turned out that the first man appointed for the purpose of +thwarting Marshall's Nationalism, expressed, twenty years after his +appointment, stronger Nationalist sentiments than Marshall himself was, +as yet, willing to avow openly. Johnson's astonishing opinion in Gibbons +_vs._ Ogden is conclusive proof of the mastery the Chief Justice had +acquired over his Republican associate, or else of the conquest by +Nationalism of the mind of the South Carolina Republican. + +For the one and only time in his career on the Supreme Bench, Marshall +had pronounced a "popular" opinion. The press acclaimed him as the +deliverer of the Nation from thralldom to monopoly. His opinion, records +the _New York Evening Post_, delivered amidst "the most unbroken +silence" of a "courtroom ... crowded with people," was a wonderful +exhibition of intellect--"one of the most powerful efforts of the human +mind that has ever been displayed from the bench of any court. Many +passages indicated a profoundness and a forecast in relation to the +destinies of our confederacy peculiar to the great man who acted as the +organ of the court. The steamboat grant is at an end."[1235] + +Niles published Marshall's opinion in full,[1236] and in this way it +reached, directly or indirectly, every paper, big and little, in the +whole country, and was reproduced by most of them. Many journals +contained long articles or editorials upon it, most of them highly +laudatory. _The New York Evening Post_ of March 8 declared that it would +"command the assent of every impartial mind competent to embrace the +subject." Thus, for the moment, Marshall was considered the benefactor +of the people and the defender of the Nation against the dragon of +monopoly. His opinion in Gibbons _vs._ Ogden changed into applause that +disfavor which his opinion in M'Culloch _vs._ Maryland had evoked. Only +the Southern political leaders saw the "danger"; but so general was the +satisfaction of the public that they were, for the most part, quiescent +as to Marshall's assertion of Nationalism in this particular case. + +But few events in our history have had a larger and more substantial +effect on the well-being of the American people than this decision, and +Marshall's opinion in the announcement of it. New York instantly became +a free port for all America. Steamboat navigation of American rivers, +relieved from the terror of possible and actual State-created +monopolies, increased at an incredible rate; and, because of two decades +of restraint and fear, at abnormal speed.[1237] + +New England manufacturers were given a new life, since the +transportation of anthracite coal--the fuel recently discovered and +aggravatingly needed--was made cheap and easy. The owners of factories, +the promoters of steamboat traffic, the innumerable builders of river +craft on every navigable stream in the country, the farmer who wished to +send his products to market, the manufacturer who sought quick and +inexpensive transportation of his wares--all acclaimed Marshall's +decision because all found in it a means to their own interests. + +The possibilities of transportation by steam railways soon became a +subject of discussion by enterprising men, and Marshall's opinion gave +them tremendous encouragement. It was a guarantee that they might build +railroads across State lines and be safe from local interference with +interstate traffic. Could the Chief Justice have foreseen the +development of the railway as an agency of Nationalism, he would have +realized, in part, the permanent and ever-growing importance of his +opinion--in part, but not wholly; for the telegraph, the telephone, the +oil and gas pipe line were also to be affected for the general good by +Marshall's statesmanship as set forth in his outgiving in Gibbons _vs._ +Ogden. + +It is not immoderate to say that no other judicial pronouncement in +history was so wedded to the inventive genius of man and so interwoven +with the economic and social evolution of a nation and a people. After +almost a century, Marshall's Nationalist theory of commerce is more +potent than ever; and nothing human is more certain than that it will +gather new strength as far into the future as forecast can penetrate. + +At the time of its delivery, nobody complained of Marshall's opinion +except the agents of the steamboat monopoly, the theorists of Localism, +and the slave autocracy. All these influences beheld, in Marshall's +statesmanship, their inevitable extinction. All correctly understood +that the Nationalism expounded by Marshall, if truly carried out, +sounded their doom. + +Immediately after the decision was published, a suit was brought in the +New York Court of Equity, apparently for the purpose of having that +tribunal define the extent of the Supreme Court's holding. John R. +Livingston secured a coasting license for the Olive Branch, and sent the +boat from New York to Albany, touching at Jersey and unloading there two +boxes of freight. The North River Steamboat Company, assignee of the +Livingston-Fulton monopoly, at once applied for an injunction.[1238] The +matter excited intense interest, and Nathan Sanford, who had succeeded +Kent as Chancellor, took several weeks to "consider the question."[1239] + +He delivered two opinions, the second almost as Nationalist as that of +Marshall. "The law of the United States is supreme.... The state law is +annihilated, so far as the ground is occupied by the law of the union; +and the supreme law prevails, as if the state law had never been made. +The supremacy of constitutional laws of the union, and the nullity of +state laws inconsistent with such laws of the union, are principles of +the constitution of the United States.... So far as the law of the union +acts upon the case, the state law is extinguished.... Opposing rights to +the same thing, can not co-exist under the constitution of our +country."[1240] But Chancellor Sanford held that, over commerce +exclusively within the State, the Nation had no control. + +Livingston appealed to the Court of Errors, and in February, 1825, the +case was heard. The year intervening since Marshall delivered his +opinion had witnessed the rise of an irresistible tide of public +sentiment in its favor; and this, more influential than all arguments +of counsel even upon an "independent judiciary," was reflected in the +opinion delivered by John Woodworth, one of the judges of the Supreme +Court of that State. He quotes Marshall liberally, and painstakingly +analyzes his opinion, which, says Woodworth, is confined to commerce +among the States to the exclusion of that wholly within a single State. +Over this latter trade Congress has no power, except for "national +purposes," and then only where such power is "'expressly given ... or is +clearly incidental to some power expressly given.'"[1241] + +Chief Justice John Savage adopted the same reasoning as did Justice +Woodworth, and examined Marshall's opinion with even greater +particularity, but arrived at the same conclusion. Savage adds, however, +"a few general remarks," and in these he almost outruns the Nationalism +of Marshall. "The constitution ... should be so construed as best to +promote the great objects for which it was made"; among them a principal +one was "'to form a more perfect union,'" etc.[1242] The regulation of +commerce among the States "was one great and leading inducement to the +adoption" of the Nation's fundamental law.[1243] "We are the citizens of +two distinct, yet connected governments.... The powers given to the +general government are to be first satisfied." + +To the warning that the State Governments "will be swallowed up" by the +National Government, Savage declares, "my answer is, if such danger +exists, the states should not provoke a termination of their existence, +by encroachments on their part."[1244] In such ringing terms did Savage +endorse Marshall's opinion in Gibbons _vs._ Ogden. + +The State Senators "concurred" automatically in the opinion of Chief +Justice Savage, and the decree of Chancellor Sanford, refusing an +injunction on straight trips of the Olive Branch between New York +landings, but granting one against commerce of any kind with other +States, was affirmed. + +So the infinitely important controversy reached a settlement that, to +this day, has not been disturbed. Commerce among the States is within +the exclusive control of the National Government, including that which, +though apparently confined to State traffic, affects the business +transactions of the Nation at large. The only supervision that may be +exercised by a State over trade must be wholly confined to that State, +absolutely without any connection whatever with intercourse with other +States. + + +One year after the decision of Gibbons _vs._ Ogden, the subject of the +powers and duties of the Supreme Court was again considered by Congress. +During February, 1825, an extended debate was held in the Senate over a +bill which, among other things, provided for three additional members of +that tribunal.[1245] But the tone of its assailants had mellowed. The +voice of denunciation now uttered words of deference, even praise. +Senator Johnson, while still complaining of the evils of an +"irresponsible" Judiciary, softened his attack with encomium: +"Our nation has ever been blessed with a most distinguished Supreme +Court, ... eminent for moral worth, intellectual vigor, extensive +acquirements, and profound judicial experience and knowledge.... Against +the Federal Judiciary, I have not the least malignant emotion."[1246] +Senator John H. Eaton of Tennessee said that Virginia's two members of +the Supreme Court (Marshall and Bushrod Washington) were "men of +distinction, ... whose decisions carried satisfaction and +confidence."[1247] + +Senator Isham Talbot of Kentucky paid tribute to the "wise, mild, and +guiding influence of this solemn tribunal."[1248] In examining the +Nationalist decisions of the Supreme Court he went out of his way to +declare that he did not mean "to cast the slightest shade of imputation +on the purity of intention or the correctness of judgment with which +justice is impartially dispensed from this exalted bench."[1249] + +This remarkable change in the language of Congressional attack upon the +National Judiciary became still more conspicuous at the next session in +the debate upon practically the same bill and various amendments +proposed to it. Promptly after Congress convened in December, 1825, +Webster himself reported from the Judiciary Committee of the House a +bill increasing to ten the membership of the Supreme Court and +rearranging the circuits.[1250] This measure passed substantially as +reported.[1251] + +When the subject was taken up in the Senate, Senator Martin Van Buren in +an elaborate speech pointed out the vast powers of that tribunal, +unequaled and without precedent in the history of the world--powers +which, if now "presented for the first time," would undoubtedly be +denied by the people.[1252] Yet, strange as it may seem, opposition has +subsided in an astonishing manner, he said; even those States whose laws +have been nullified, "after struggling with the giant strength of the +Court, have submitted to their fate."[1253] + +Indeed, says Van Buren, there has grown up "a sentiment ... of idolatry +for the Supreme Court ... which claims for its members an almost entire +exemption from the fallibilities of our nature." The press, especially, +is influenced by this feeling of worship. Van Buren himself concedes +that the Justices have "talents of the highest order and spotless +integrity." Marshall, in particular, deserves unbounded praise and +admiration: "That ... uncommon man who now presides over the Court ... +is, in all human probability, the ablest Judge now sitting upon any +judicial bench in the world."[1254] + +The fiery John Rowan of Kentucky, now Senator from that State, and one +of the boldest opponents of the National Judiciary, offered an amendment +requiring that "seven of the ten Justices of the Supreme Court shall +concur in any judgement or decree, which denies the validity, or +restrains the operation, of the Constitution, or law of any of the +States, or any provision or enaction in either."[1255] In advocating his +amendment, however, Rowan, while still earnestly attacking the +"encroachments" of the Supreme Court, admitted the "unsuspected +integrity" of the Justices upon which "suspicion has never scowled.... +The present incumbents are above all suspicion; obliquity of motive has +never been ascribed to any of them."[1256] Nevertheless, he complains of +"a judicial superstition--which encircles the Judges with +infallibility."[1257] + +This seemingly miraculous alteration of public opinion, manifesting +itself within one year from the violent outbursts of popular wrath +against Marshall and the National Judiciary, was the result of the +steady influence of the conservatives, unwearyingly active for a quarter +of a century; of the natural reaction against extravagance of language +and conduct shown by the radicals during that time; of the realization +that the Supreme Court could be resisted only by force continuously +exercised; and, above all, of the fundamental soundness and essential +justness of Marshall's opinions, which, in spite of the local and +transient hardship they inflicted, in the end appealed to the good sense +and conscience of the average man. Undoubtedly, too, the character of +the Chief Justice, which the Nation had come to appreciate, was a +powerful element in bringing about the alteration in the popular concept +of the Supreme Court. + +But, notwithstanding the apparent diminution of animosity toward the +Chief Justice and the National Judiciary, hatred of both continued, and +within a few years showed itself with greater violence than ever. How +Marshall met this recrudescence of Localism is the story of his closing +years. + +When, in Gibbons _vs._ Ogden, Marshall established the supremacy of +Congress over commerce among the States, he also announced the absolute +power of the National Legislature to control trade with foreign nations. +It was not long before an opportunity was afforded him to apply this +principle, and to supplement his first great opinion on the meaning of +the commerce clause, by another pronouncement of equal power and +dignity. By acts of the Maryland Legislature importers or wholesalers of +imported goods were required to take out licenses, costing fifty dollars +each, before they could sell "by wholesale, bale or package, hogshead, +barrel, or tierce." Non-observance of this requirement subjected the +offender to a fine of one hundred dollars and forfeiture of the amount +of the tax.[1258] + +Under this law Alexander Brown and his partners, George, John, and +James Brown, were indicted in the City Court of Baltimore for having +sold a package of foreign dry goods without a license. Judgment against +the merchants was rendered; and this was affirmed by the Court of +Appeals. The case was then taken to the Supreme Court on a writ of error +and argued for Brown & Co. by William Wirt and Jonathan Meredith, and +for Maryland by Roger Brooke Taney[1259] and Reverdy Johnson.[1260] + +On March 12, 1827, the Chief Justice delivered the opinion of the +majority of the court, Justice Thompson dissenting. The only question, +says Marshall, is whether a State can constitutionally require an +importer to take out a license "before he shall be permitted to sell a +bale or package" of imported goods.[1261] The Constitution prohibits any +State from laying imposts or duties on imports or exports, except what +may be "absolutely necessary for executing its inspection laws." +The Maryland act clearly falls within this prohibition: "A duty on +imports ... is not merely a duty on the act of importation, but is a +duty on the thing imported.... + +"There is no difference," continues Marshall, "between a power to +prohibit the sale of an article and a power to prohibit its introduction +into the country.... No goods would be imported if none could be sold." +The power which can levy a small tax can impose a great one--can, in +fact, prohibit the thing taxed: "Questions of power do not depend on the +degree to which it may be exercised."[1262] He admits that "there must +be a point of time when the prohibition [of States to tax imports] +ceases and the power of the State to tax commences"; but "this point of +time is [not] the instant that the articles enter the country."[1263] + +Here Marshall becomes wisely cautious. The power of the States to tax +and the "restriction" on that power, "though quite distinguishable when +they do not approach each other, may yet, like the intervening colors +between white and black, approach so nearly as to perplex the +understanding, as colors perplex the vision in marking the distinction +between them. Yet the distinction exists, and must be marked as cases +arise. Till they do arise, it might be premature to state any rule as +being universal in its application. It is sufficient for the present, to +say, generally, that, when the importer has so acted upon the thing +imported that it has become incorporated and mixed up with the mass of +property in the country, it has, perhaps, lost its distinctive character +as an import, and has become subject to the taxing power of the State; +but while remaining the property of the importer, in his warehouse, in +the original form or package in which it was imported, a tax upon it is +too plainly a duty on imports to escape the prohibition in the +constitution."[1264] + +It is not true that under the rule just stated, the State is precluded +from regulating its internal trade and from protecting the health or +morals of its citizens. The Constitutional inhibition against State +taxation of imports applies only to "the form in which it was imported." +When the importer sells his goods "the [State] law may treat them as it +finds them." Measures may also be taken by the State concerning +dangerous substances like gunpowder or "infectious or unsound +articles"--such measures are within the "police power, which +unquestionably remains, and ought to remain, with the States." But State +taxation of imported articles in their original form is a violation of +the clause of the Constitution forbidding States to lay any imposts or +duties on imports and exports.[1265] + +Such taxation also violates the commerce clause. Marshall once more +outlines the reasons for inserting that provision into the Constitution, +cites his opinion in Gibbons _vs._ Ogden, and again declares that the +power of Congress to regulate commerce "is co-extensive with the subject +on which it acts and cannot be stopped at the external boundary of a +State, but must enter its interior." This power, therefore, "must be +capable of authorizing the sale of those articles which it introduces." +In almost the same words already used, the Chief Justice reiterates that +goods would not be imported if they could not be sold. "Congress has a +right, not only to authorize importation, but to authorize the importer +to sell." A tariff law "offers the privilege [of importation] for sale +at a fixed price to every person who chooses to become a purchaser." By +paying the duty the importer makes a contract with the National +Government--"he ... purchase[s] the privilege to sell." + +"The conclusion, that the right to sell is connected with the law +permitting importation, as an inseparable incident, is inevitable." To +deny that right "would break up commerce." The power of a State "to tax +its own citizens, or their property within its territory," is +"acknowledged" and is "sacred"; but it cannot be exercised "so as to +obstruct or defeat the power [of Congress] to regulate commerce." When +State laws conflict with National statutes, "that which is not supreme +must yield to that which is supreme"--a "great and universal truth ... +inseparable from the nature of things," which "the constitution has +applied ... to the often interfering powers of the general and State +governments, as a vital principle of perpetual operation." + +The States, through the taxing power, "cannot reach and restrain the +action of the national government ...--cannot reach the administration +of justice in the Courts of the Union, or the collection of the taxes of +the United States, or restrain the operation of any law which Congress +may constitutionally pass--... cannot interfere with any regulation of +commerce." Otherwise a State might tax "goods in their transit through +the State from one port to another for the purpose of re-exportation"; +or tax articles "passing through it from one State to another, for the +purpose of traffic"; or tax "the transportation of articles passing from +the State itself to another State for commercial purposes." Of what +avail the power given Congress by the Constitution if the States may +thus "derange the measures of Congress to regulate commerce"? + +Marshall is here addressing South Carolina and other States which, at +that time, were threatening retaliation against the manufacturers of +articles protected by the tariff.[1266] He pointedly observes that the +decision in M'Culloch _vs._ Maryland is "entirely applicable" to the +present controversy, and adds that "we suppose the principle laid down +in this case to apply equally to importations from a sister +State."[1267] + +The principles announced by Marshall in Brown _vs._ Maryland have been +upheld by nearly all courts that have since dealt with the subject of +commerce. But there has been much "distinguishing" of various cases from +that decision; and, in this process, the application of his great +opinion has often been modified, sometimes evaded. In some cases in +which Marshall's statesmanship has thus been weakened and narrowed, +local public sentiment as to questions that have come to be considered +moral, has been influential. It is fortunate for the Republic that +considerations of this kind did not, in such fashion, impair the liberty +of commerce among the States before the American Nation was firmly +established. When estimating our indebtedness to John Marshall, we must +have in mind the state of the country at the time his Constitutional +expositions were pronounced and the inevitable and ruinous effect that +feebler and more restricted assertions of Nationalism would then have +had. + +Seldom has a triumph of sound principles and of sound reasoning in the +assertion of those principles been more frankly acknowledged than in the +tribute which Roger Brooke Taney inferentially paid to John Marshall, +whom he succeeded as Chief Justice. Twenty years after the decision of +Brown _vs._ Maryland, Taney declared: "I at that time persuaded myself +that I was right.... But further and more mature reflection has +convinced me that the rule laid down by the Supreme Court is a just and +safe one, and perhaps the best that could have been adopted for +preserving the right of the United States on the one hand, and of the +States on the other, and preventing collision between them."[1268] + +Chief Justice Taney's experience has been that of many thoughtful men +who, for a season and when agitated by intense concern for a particular +cause or policy, have felt Marshall to have been wrong in this, that, or +the other of his opinions. Frequently, such men have, in the end, come +to the steadfast conclusion that they were wrong and that Marshall was +right. + + +FOOTNOTES: + +[1107] Institut national des sciences et des arts. + +[1108] Dickinson: _Robert Fulton, Engineer and Artist_, 156-57; also see +Thurston: _Robert Fulton_, 113. + +[1109] See Dickinson, 126-32; also Knox: _Life of Robert Fulton_, 72-86; +and Fletcher: _Steam-Ships_, 19-24. + +[1110] Dickinson, 134-35; Knox, 90-93. + +[1111] Act of March 27, 1798, _Laws of New York, 1798_, 382-83. + +This act, however, was merely the transfer of similar privileges granted +to John Fitch on March 19, 1787, to whom, rather than to Robert Fulton, +belongs the honor of having invented the steamboat. It was printed in +the _Laws of New York_ edited by Thomas Greenleaf, published in 1792, I, +411; and also appears as Appendix A to "A Letter, addressed to +Cadwallader D. Colden, Esquire," by William Alexander Duer, the first +biographer of Fulton. (Albany, 1817.) Duer's pamphlet is uncommonly +valuable because it contains all the petitions to, and the acts of, the +New York Legislature concerning the steamboat monopoly. + +[1112] Reigart: _Life of Robert Fulton_, 163. Nobody but Livingston was +willing to invest in what all bankers and business men considered a +crazy enterprise. (_Ib._ 100-01.) + +[1113] Knox, 93. It should be remembered, however, that the granting of +monopolies was a very common practice everywhere during this period. +(See Prentice: _Federal Power over Carriers and Corporations_, 60-65.) + +[1114] Compare with his brother's persistence in the Batture +controversy, _supra_, 100-15. + +[1115] Dickinson, 64-123; Knox, 35-44. + +[1116] Knox, 93; see also Dickinson, 136. + +[1117] Act of April 5, 1803, _Laws of New York, 1802-04_, 323-24. + +[1118] Act of April 6, 1807, _Laws of New York, 1807-09_, 213-14. + +[1119] The North River was afterward named the Clermont, which was the +name of Livingston's county seat. (Dickinson, 230.) + +[1120] The country people along the Hudson thought the steamboat a sea +monster or else a sign of the end of the world. (Knox, 110-11.) + +[1121] Act of April 11, 1808, _Laws of New York, 1807-09_, 407-08. +(Italics the author's.) + +[1122] Dickinson, 233-34. + +[1123] _Ib._ 234-36. The thoroughfare in New York, at the foot of which +these boats landed, was thereafter named Fulton Street. (_Ib._ 236.) + +[1124] See _infra_, 414. + +[1125] Dickinson, 230. From the first Roosevelt had been associated with +Livingston in steamboat experiments. He had constructed the engine for +the craft with which Livingston tried to fulfill the conditions of the +first New York grant to him in 1798. Roosevelt was himself an inventor, +and to him belongs the idea of the vertical wheel for propelling +steamboats which Fulton afterward adopted with success. (See J. H. B. +Latrobe, in _Maryland Historical Society Fund-Publication_, No. 5, +13-14.) + +Roosevelt was also a manufacturer and made contracts with the Government +for rolled and drawn copper to be used in war-vessels. The Government +failed to carry out its agreement, and Roosevelt became badly +embarrassed financially. In this situation he entered into an +arrangement with Livingston and Fulton that if the report he was to make +to them should be favorable, he was to have one third interest in the +steamboat enterprise on the Western waters, while Livingston and Fulton +were to supply the funds. + +The story of his investigations and experiments on the Ohio and +Mississippi glows with romance. Although forty-six years old, he had but +recently married and took his bride with him on this memorable journey. +At Pittsburgh he built a flatboat and on this the newly wedded couple +floated to New Orleans; the trip, with the long and numerous stops to +gather information concerning trade, transportation, the volume and +velocity of various streams, requiring six months' time. + +Before proceeding far Roosevelt became certain of success. Discovering +coal on the banks of the Ohio, he bought mines, set men at work in them, +and stored coal for the steamer he felt sure would be built. His +expectation was justified and, returning to New York from New Orleans, +he readily convinced Livingston and Fulton of the practicability of the +enterprise and was authorized to go back to Pittsburgh to construct a +steamboat, the design of which was made by Fulton. By the summer of 1811 +the vessel was finished. It cost $38,000 and was named the New Orleans. + +Late in September, 1811, the long voyage to New Orleans was begun, the +only passengers being Roosevelt and his wife. A great crowd cheered them +as the boat set out from Pittsburgh. At Cincinnati the whole population +greeted the arrival of this extraordinary craft. Mr. and Mrs. Roosevelt +were given a dinner at Louisville, where, however, all declared that +while the boat could go down the river, it never could ascend. Roosevelt +invited the banqueters to dine with him on the New Orleans the next +night and while toasts were being drunk and hilarity prevailed, the +vessel was got under way and swiftly proceeded upstream, thus convincing +the doubters of the power of the steamboat. + +From Louisville onward the voyage was thrilling. The earthquake of 1811 +came just after the New Orleans passed Louisville and this changed the +river channels. At another time the boat took fire and was saved with +difficulty. Along the shore the inhabitants were torn between terror of +the earthquake and fright at this monster of the waters. The crew had to +contend with snags, shoals, sandbars, and other obstructions. Finally +Natchez was reached and here thousands of people gathered on the bluffs +to witness this triumph of science. + +At last the vessel arrived at New Orleans and the first steamboat voyage +on the Ohio and Mississippi was an accomplished fact. The experiment, +which began two years before with the flatboat voyage of a bride and +groom, ended at the metropolis of the Southwest in the marriage of the +steamboat captain to Mrs. Roosevelt's maid, with whom he had fallen in +love during this thrilling and historic voyage. (See Latrobe, in _Md. +Hist. Soc. Fund-Pub_. No. 6. A good summary of Latrobe's narrative is +given in Preble: _Chronological History of the Origin and Development of +Steam Navigation_, 77-81.) + +[1126] Act of Jan. 25, 1811, _Acts of New Jersey, 1811_, 298-99. + +[1127] Act of April 9, 1811, _Laws of New York, 1811_, 368-70. + +[1128] _Laws of Connecticut_, May Sess. 1822, chap. XXVIII. + +[1129] Dickinson, 244. + +[1130] Livingston _et al._ _vs._ Van Ingen _et al._, 1 Paine, 45-46. +Brockholst Livingston, Associate Justice of the Supreme Court, sat in +this case with William P. Van Ness (the friend and partisan of Burr), +and delivered the opinion. + +[1131] The full title of this tribunal was the "Court for the Trial of +Impeachments and the Correction of Errors." It was the court of last +resort, appeals lying to it from the Supreme Court of Judicature and +from the Court of Chancery. It consisted of the Justices of the Supreme +Court of Judicature and a number of State Senators. A more absurdly +constituted court cannot well be imagined. + +[1132] 9 Johnson, 558, 563. + +[1133] The State Senate, House, Council of Revision, and Governor. + +[1134] 9 Johnson, 572. + +[1135] Those enacted in 1798, 1803, 1807, 1808, and 1811. + +[1136] 9 Johnson, 573. Jay as Governor was Chairman of the Council of +Revision, of which Kent was a member. + +[1137] _lb._ 572. + +[1138] _Ib._ 573. (Italics the author's.) + +[1139] 9 Johnson, 574. + +[1140] _Ib._ 575-76. + +[1141] _Ib._ 577-78. + +[1142] 9 Johnson, 578, 580. + +[1143] _Ib._ 582-88. + +[1144] All the Senators concurred except two, Lewis and Townsend, who +declined giving opinions because of relationship with the parties to the +action. (_Ib._ 589.) + +[1145] Ogden protested against the Livingston-Fulton steamboat monopoly +in a Memorial to the New York Legislature. (See Duer, 94-97.) A +committee was appointed and reported the facts as Ogden stated them; but +concluded that, since New York had granted exclusive steamboat +privileges to Livingston, "the honor of the State requires that its +faith should be preserved." However, said the committee, the +Livingston-Fulton boats "are in substance the invention of John Fitch," +to whom the original monopoly was granted, after the expiration of which +"the right to use" steamboats "became common to all the citizens of the +United States." Moreover, the statements upon which rested the +Livingston monopoly of 1798 "were not true in fact," Fitch having +forestalled the claims of the Livingston pretensions. (_Ib._ 103-04.) + +[1146] 4 Johnson's _Chancery Reports_, 50-51. The reader must not +confuse the two series of Reports by Johnson; one contains the decisions +of the Court of Errors; the other, those of the Court of Chancery. + +[1147] Act of April 6, 1808, _Laws of New York, 1807-09_, 313-15. + +[1148] 4 Johnson's _Chancery Reports_, 51, 53. + +[1149] _Ib._ 152. + +[1150] _Ib._ 154. + +[1151] Act of Feb. 18, 1793, _U.S. Statutes at Large_, I, 305-18. + +[1152] 4 Johnson's _Chancery Reports_, 156. + +[1153] 9 Johnson, 507 _et seq._ + +[1154] 4 Johnson's _Chancery Reports_, 158-59. + +[1155] 17 Johnson, 488 _et seq._ + +[1156] See _supra_, 240-50, 284-86. + +[1157] Story to Fettyplace, Feb. 28, 1821, Story, I, 397. + +[1158] Records Supreme Court, MS. + +[1159] The case was first docketed, June 7, 1820, as Aaron Ogden _vs._ +Thomas _Gibbins_, and the defective transcript was filed October 17, of +the same year. When next docketed, the title was correctly given, Thomas +Gibbons _vs._ Aaron Ogden. (_Ib._) + +[1160] Act of April 19, 1811, _Acts of Territory of Orleans, 1811_, +112-18. + +[1161] Act of Nov. 18, 1814, _Laws of Georgia, 1814_, October Sess. +28-30. + +[1162] Act of Feb. 7, 1815, _Laws of Massachusetts, 1812-15_, 595. + +[1163] Act of June 15, 1815, _Laws of New Hampshire, 1815_, II, 5. + +[1164] Act of Nov. 10, 1815, _Laws of Vermont, 1815_, 20. + +[1165] Ohio, for example, passed two laws for the "protection" of its +citizens owning steamboats. This act provided that no craft propelled by +steam, operated under a license from the New York monopoly, should land +or receive passengers at any point on the Ohio shores of Lake Erie +unless Ohio boats were permitted to navigate the waters of that lake +within the jurisdiction of New York. For every passenger landed in +violation of these acts the offender was made subject to a fine of $100. +(Chap, XXV, Act of Feb. 18, 1822, and chap. II, Act of May 23, 1822, +_Laws of Ohio, 1822_.) + +[1166] Niles's _Register_ for these years is full of accounts of the +building, launching, and departures and arrivals of steam craft +throughout the whole interior of the country. + +[1167] See Blane: _An Excursion Through the United States and Canada_, +by "An English Gentleman," 119-21. For an accurate account of the +commercial development of the West see also Johnson: _History of +Domestic and Foreign Commerce_, I, 213-15. + +On March 1, 1819, Flint saw a boat on the stocks at Jeffersonville, +Indiana, 180 feet long, 40 feet broad, and of 700 tons burden. (Flint's +Letters, in _E. W. T._: Thwaites, IX, 164.) + +[1168] Blane, 118. + +[1169] _Annals_, 14th Cong. 2d Sess. 296. + +[1170] _Ib._ 361. + +[1171] See debate in the House, _ib._ 851-923; and in the Senate, _ib._ +166-70. + +[1172] _Ib._ 924-33. + +[1173] March 1, 1817, _ib._ 1052. + +[1174] Veto Message of March 3, 1817, Richardson, I, 584-85. + +[1175] Monroe gingerly referred to it in his First Inaugural Address. +(Richardson, II, 8.) But in his First Annual Message he dutifully +followed Madison and declared that "Congress do not possess the right" +to appropriate National funds for internal improvements. So this third +Republican President recommended an amendment to the Constitution "which +shall give to Congress the right in question." (_Ib._ 18.) + +[1176] _Annals_, 15th Cong. 1st Sess. 451-60. + +[1177] _Ib._ 1114-1250, 1268-1400. + +[1178] "All the difficulties under which we have labored and now labor +on this subject have grown out of a fatal admission" by Madison "which +runs counter to the tenor of his whole political life, and is expressly +contradicted by one of the most luminous and able State papers that ever +was written [the Virginia Resolutions]--an admission which gave a +sanction to the principle that this Government had the power to charter +the present colossal Bank of the United States. Sir, ... that act, and +one other which I will not name [Madison's War Message in 1812], bring +forcibly home to my mind a train of melancholy reflections on the +miserable state of our mortal being: + + 'In life's last scenes, what prodigies surprise! + Fears of the brave, and follies of the wise. + From Marlborough's eyes the streams of dotage flow, + And Swift expires a driv'ler and a show.' + +"Such is the state of the case, Sir. It is miserable to think of it--and +we have nothing left to us but to weep over it." (_Annals_, 18th Cong. +1st Sess. 1301.) + +Randolph was as violently against the War of 1812 as was Marshall, but +he openly proclaimed his opposition. + +[1179] _Ib._ + +[1180] Italics the author's. + +[1181] _Annals_, 18th Cong. 1st Sess. 1308. + +[1182] _Ib._ 1310-11. The bill passed, 115 yeas to 86 nays. (_Ib._ +1468-69.) + +[1183] See _infra_, 535-36. + +[1184] See _infra_, chap. X. + +[1185] See vol. I, 310-12, of this work; also Marshall: _Life of George +Washington_, 2d ed. II, 105-06, 109-10, 125. And see Madison's "Preface +to Debates in the Convention of 1787." (_Records of the Federal +Convention_: Farrand, III, 547.) "The want of authy. in Congs. to +regulate Commerce had produced in Foreign nations particularly G. B. a +monopolizing policy injurious to the trade of the U. S. and destructive +to their navigation.... The same want of a general power over Commerce +led to an exercise of this power separately, by the States, w^{ch} not +only proved abortive, but engendered rival, conflicting and angry +regulations." + +[1186] _Records, Fed. Conv_.: Farrand, II, 143. The provision in this +draft is very curious. It declares that "a navigation act shall not be +passed, but with the consent of (eleven states in) <2/3d. of the Members +present of> the senate and (10 in) <the like No. of> the house of +representatives." + +[1187] _Ib._ 135, 157, 569, 595, 655. Roger Sherman mentioned interstate +trade only incidentally. Speaking of exports and imports, he said that +"the oppression of the uncommercial States was guarded agst. by the +power to regulate trade between the States." (_Ib._ 308.) + +Writing in 1829, Madison said that the commerce clause "being in the +same terms with the power over foreign commerce, the same extent, if +taken literally, would belong to it. Yet it ... grew out of the abuse of +the power by the importing States in taxing the non-importing, and was +intended as a negative and preventive provision against injustice among +the States themselves, rather than as a power to be used for the +positive purposes of the General Government, in which alone, however, +the remedial power could be lodged." (Madison to Cabell, Feb. 13, 1829, +_ib._ III, 478.) + +[1188] See _Monthly Law Reporter_, New Series, X, 177. + +[1189] Wirt to Carr, Feb. 1, 1824, Kennedy, II, 164. + +[1190] _Ib._ + +[1191] "Reminiscence," that betrayer of history, is responsible for the +fanciful story, hitherto accepted, that Webster was speaking on the +tariff in the House when he was suddenly notified that Gibbons _vs._ +Ogden would be called for argument the next morning; and that, swiftly +concluding his great tariff argument, he went home, took medicine, slept +until ten o'clock that night, then rose, and in a strenuous effort +worked until 9 A.M. on his argument in the steamboat case; and that this +was all the preparation he had for that glorious address. (Ticknor's +reminiscences of Webster, as quoted by Curtis, I, 216-17.) + +On its face, Webster's argument shows that this could not have been +true. The fact was that Webster had had charge of the case in the +Supreme Court for three years; and that, since the argument was twice +before expected, he had twice before prepared for it. + +The legend about his being stopped in his tariff speech is utterly +without foundation. The debate on that subject did not even begin in the +House until February 11, 1824 (_Annals_, 18th Cong. 1st Sess. 1470), +three days after the argument of Gibbons _vs._ Ogden was concluded; and +Webster did not make his famous speech on the Tariff Bill of 1824 until +April 1-2, one month after the steamboat case had been decided. (_Ib._ +2026-68.) + +Moreover, as has been stated in the text, the debate on the survey of +roads and canals was on in the House when the argument in Gibbons _vs._ +Ogden was heard; had been in progress for three weeks previously and +continued for some time afterward; and in this debate Webster did not +participate. Indeed, the record shows that for more than a week before +the steamboat argument Webster took almost no part in the House +proceedings. (_Ib._ 1214-1318.) + +[1192] 9 Wheaton, 3. + +[1193] 9 Wheaton, 4-5. + +[1194] _Ib._ 6-9. + +[1195] _Ib._ 9. + +[1196] _Ib._ 11. + +[1197] _Ib._ 11-12. + +[1198] 9 Wheaton, 14. + +[1199] _Ib._ 24. + +[1200] The student should carefully read these three admirable +arguments, particularly that of Emmet. All of them deal with patent law +as well as with the commerce clause of the Constitution. (See 9 Wheaton, +33-135.) The argument lasted from February 4 to February 9 inclusive. + +[1201] 1 Brockenbrough, 430-31. + +[1202] 1 Brockenbrough, 431-32. + +[1203] Webster to his brother, Feb. 15, 1824, Van Tyne, 102. + +[1204] 9 Wheaton, 186. + +[1205] "WE THE PEOPLE of the United States, in Order to form a more +perfect Union, establish Justice, insure domestic Tranquility, provide +for the common defence, promote the general Welfare, and secure the +Blessings of Liberty to ourselves and our Posterity, do ordain and +establish this CONSTITUTION for the United States of America." (Preamble +to the Constitution of the United States.) + +[1206] 9 Wheaton, 187-88. + +[1207] _Ib._ 188-89. + +[1208] "The Congress shall have Power ... to regulate Commerce with +foreign Nations, and among the Several States, and with the Indian +Tribes." (Constitution of the United States, Article I, Section 8.) + +[1209] 9 Wheaton, 192-93. + +[1210] 9 Wheaton, 193-94. + +[1211] _Ib._ 195. + +[1212] 9 Wheaton, 195-96. + +[1213] _Ib._ 196-97. + +[1214] 9 Wheaton, 199-200. + +[1215] 9 Wheaton, 202-03. + +[1216] _Ib._ 203. + +[1217] 9 Wheaton, 203-04. + +[1218] _Ib._ 204-05. + +[1219] _Ib._ 205-06. + +[1220] 9 Wheaton, 206-09. + +[1221] _Ib._ 209-10. + +[1222] 9 Wheaton, 210-11. (Italics the author's.) + +[1223] _Ib._ 211-12. + +[1224] _Ib._ 214. + +[1225] 9 Wheaton, 215-16. + +[1226] _Ib._ 216-18. + +[1227] _Ib._ 218-20. + +[1228] 9 Wheaton, 221. + +[1229] Marshall is here referring particularly to Chancellor Kent. + +[1230] 9 Wheaton, 221-22. + +[1231] 9 Wheaton, 222. (Italics the author's.) + +[1232] 9 Wheaton, 227. + +[1233] 9 Wheaton, 228-30. + +[1234] _Ib._ 231-32. + +[1235] _New York Evening Post_, March 5, 1824, as quoted in Warren, 395. + +[1236] Niles, XXVI, 54-62. + +[1237] For example, steamboat construction on the Ohio alone almost +doubled in a single year, and quadrupled within two years. (See table in +Meyer-MacGill: _History of Transportation in the United States_, etc., +108.) + +[1238] 1 Hopkins's _Chancery Reports_, 151. + +[1239] _Ib._ 198. + +[1240] 3 Cowen, 716-17. + +[1241] 3 Cowen, 731-34. + +[1242] _Ib._ 750. + +[1243] _Ib._ + +[1244] 3 Cowen, 753-54. + +[1245] This bill had been proposed by Senator Richard M. Johnson of +Kentucky at the previous session (_Annals_, 18th Cong. 1st Sess, 575) as +an amendment to a bill reported from the Judiciary Committee by Senator +Martin Van Buren (_ib._ 336). + +[1246] _Debates_, 18th Cong. 2d Sess. 527-33. + +[1247] _Ib._ 588. + +[1248] _Ib._ 609. + +[1249] _Ib._ 614. + +After considerable wrangling, the bill was reported favorably from the +Judiciary Committee (_ib._ 630), but too late for further action at that +session. + +[1250] _Debates_, 19th Cong. 1st Sess. 845. + +[1251] Four days after the House adopted Webster's bill (_ib._ 1149), he +wrote his brother: "The judiciary bill will probably pass the Senate, as +it left our House. There will be no difficulty in finding perfectly safe +men for the new appointments. The contests on those constitutional +questions in the West have made men fit to be judges." (Webster to his +brother, Jan. 29, 1826, _Priv. Corres_.: Webster, I, 401.) + +[1252] _Debates_, 19th Cong. 1st Sess. 417-18. + +[1253] _Ib._ 419. + +[1254] _Ib._ 420-21. + +[1255] _Debates_, 19th Cong. 1st Sess. 423-24. + +[1256] _Ib._ 436. + +[1257] _Ib._ 442. Rowan's amendment was defeated (_ib._ 463). Upon +disagreements between the Senate and House as to the number and +arrangement of districts and circuits, the entire measure was lost. In +the House it was "indefinitely postponed" by a vote of 99 to 89 (_ib._ +2648); and in the Senate the bill was finally laid on the table (_ib._ +784). + +[1258] 12 Wheaton, 420. + +[1259] Taney, leading counsel for Maryland, had just been appointed +Attorney-General of that State, and soon afterwards was made +Attorney-General of the United States. He succeeded Marshall as Chief +Justice. (See _infra_, 460.) + +[1260] Johnson was only thirty-one years old at this time, but already a +leader of the Baltimore bar and giving sure promise of the distinguished +career he afterward achieved. + +[1261] 12 Wheaton, 436. + +[1262] 12 Wheaton, 437-39. + +[1263] _Ib._ 441. + +[1264] _Ib._ 441-42. + +[1265] 12 Wheaton, 443-44. + +[1266] See _infra_, 536-38. + +[1267] 12 Wheaton, 448-49. + +[1268] 5 Howard, 575. + + + + +CHAPTER IX + +THE SUPREME CONSERVATIVE + + If a judge becomes odious to the people, let him be removed. + (William Branch Giles.) + + Our wisest friends look with gloom to the future. (Joseph + Story.) + + I have always thought, from my earliest youth till now, that the + greatest scourge an angry Heaven ever inflicted upon an + ungrateful and a sinning people, was an ignorant, a corrupt, or + a dependent judiciary. (Marshall.) + + +"I was in a very great crowd the other evening at M^{rs} Adams' drawing +room, but I see very few persons there whom I know & fewer still in whom +I take any interest. A person as old as I am feels that his home is his +place of most comfort, and his old wife the companion in the world in +whose society he is most happy. + +"I dined yesterday with Mr. Randolph. He is absorbed in the party +politics of the day & seems as much engaged in them as he was twenty +five years past. It is very different with me. I long to leave this busy +bustling scene & to return to the tranquility of my family & farm. +Farewell my dearest Polly. That Heaven may bless you is the unceasing +prayer of your ever affectionate + + "J. MARSHALL."[1269] + +This letter to his ageing and afflicted wife, written in his +seventy-second year, reveals Marshall's state of mind as he entered the +final decade of his life. While the last of his history-making and +nation-building opinions had been delivered, the years still before him +were to be crowded with labor as arduous and scenes as picturesque as +any during his career on the Bench. It was to be a period of +disappointment and grief, but also of that supreme reward for sound and +enduring work which comes from recognition of the general and lasting +benefit of that work and of the greatness of mind and nobility of +character of him who performed it. + +For twenty years the Chief Justice had not voted. The last ballot he had +cast was against the reëlection of Jefferson in 1804. From that time +forward until 1828, he had kept away from the polls. In the latter year +he probably voted for John Quincy Adams, or rather against Andrew +Jackson, who, as Marshall thought, typified the recrudescence of that +unbridled democratic spirit which he so increasingly feared and +distrusted.[1270] + +[Illustration: JOHN MARSHALL] + +Yet, even in so grave a crisis as Marshall believed the Presidential +election of 1828 to be, he shrank from the appearance of partisanship. +The _Marylander_, a Baltimore Democratic paper, published an item +quoting Marshall as having said: "I have not voted for twenty years; but +I shall consider it a solemn duty I owe my country to go to the polls +and vote at the next presidential election--for should Jackson be +elected, I shall look upon the government as virtually dissolved."[1271] + +This item was widely published in the Administration newspapers, +including the Richmond _Whig and Advertiser_. To this paper Marshall +wrote, denying the statement of the Baltimore publication: "Holding the +situation I do ... I have thought it right to abstain from any public +declarations on the election; ... I admit having said in private that +though I had not voted since the establishment of the general ticket +system, and had believed that I never should vote during its +continuance, I might probably depart from my resolution in this +instance, from the strong sense I felt of the injustice of the charge +of corruption against the President & Secretary of State: I never did +use the other expressions ascribed to me."[1272] This "card" the +_Enquirer_ reproduced, together with the item from the _Marylander_, +commenting scathingly upon the methods of Adams's supporters. + +Clay, deeply touched, wrote the Chief Justice of his appreciation and +gratitude; but he is sorry that Marshall paid any attention to the +matter "because it will subject you to a part of that abuse which is so +indiscriminately applied to ... everything standing in the way of the +election of a certain individual."[1273] + +Marshall was sorely worried. He writes Story that the incident +"provoked" him, "not because I have any objection to its being known +that my private judgement is in favor of the re-election of M^r Adams, +but because I have great objections to being represented in the +character of a furious partisan. Intemperate language does not become my +age or office, and is foreign from my disposition and habits. I was +therefore not a little vexed at a publication which represented me as +using language which could be uttered only by an angry party man." + +He explains that the item got into the _Marylander_ through a remark of +one of his nephews "who was on the Adams convention" at Baltimore, to +the effect that he had heard Marshall say that, although he had "not +voted for upwards of twenty years" he "should probably vote at the +ensuing election." His nephew wrote a denial, but it was not published. +So, concludes Marshall, "I must bear the newspaper scurrility which I +had hoped to escape, and which is generally reserved for more important +personages than myself. It is some consolation that it does not wound me +very deeply."[1274] + +It would seem that Marshall had early resolved to go to any length to +deprive the enemies of the National Judiciary of any pretext for +attacking him or the Supreme Court because of any trace of partisan +activity on his part. One of the largest tasks he had set for himself +was to create public confidence in that tribunal, and to raise it above +the suspicion that party considerations swayed its decisions. He had +seen how nearly the arrogance and political activity of the first +Federalist judges had wrecked the Supreme Court and the whole Judicial +establishment, and had resolved, therefore, to lessen popular hostility +to courts, as far as his neutral attitude to party controversies could +accomplish that purpose. + +It thus came about that Marshall refrained even from exercising his +right of suffrage from 1804 to 1828--perhaps, indeed, to the end of his +life, since it is not certain that he voted even at the election of +1828. Considering the intensity of his partisan feelings, his refusal to +vote, during nearly all the long period when he was Chief Justice, was a +real sacrifice, the extent of which may be measured by the fact that, +according to his letter to Story, he did not even vote against Madison +in 1812, notwithstanding the violence of his emotions aroused by the +war.[1275] + +On March 4, 1829, Marshall administered the oath of office to the newly +elected President, Andrew Jackson. No two men ever faced one another +more unlike in personality and character. The mild, gentle, benignant +features of the Chief Justice contrasted strongly with the stern, rigid, +and aggressive countenance of "Old Hickory." The one stood for the reign +of law; the other for autocratic administration. In Jackson, whim, +prejudice, hatred, and fierce affections were dominant; in Marshall, +steady, level views of life and government, devotion to order and +regularity, abhorrence of quarrel and feud, constancy and evenness in +friendship or conviction, were the chief elements of character. +Moreover, the Chief Justice personified the static forces of society; +the new President was the product of a fresh upheaval of democracy, not +unlike that which had placed Jefferson in power. + +Marshall had administered the Presidential oath seven times +before--twice each to Jefferson, Madison, and Monroe, and once to John +Quincy Adams. And now he was reading the solemn words to the passionate +frontier soldier from whose wild, undisciplined character he feared so +much. Marshall briefly writes his wife about the inauguration: "We had +yesterday a most busy and crowded day. People have flocked to Washington +from every quarter of the United States. When the oath was administered +to the President the computation is that 12 or 15000 people were +present--a great number of them ladies. A great ball was given at night +to celebrate the election. I of course did not attend it. The +affliction of our son[1276] would have been sufficient to restrain me +had I even felt a desire to go."[1277] In a previous letter to his wife +he forecast the crowds and commotion: "The whole world it is said will +be here.... I wish I could leave it all and come to you. How much more +delightful would it be to me to sit by your side than to witness all the +pomp and parade of the inauguration."[1278] + +Much as he had come to dislike taking part in politics or in public +affairs, except in the discharge of his judicial duties, Marshall was +prevailed upon to be a delegate to the Virginia Constitutional +Convention of 1829-30. He refused, at first, to stand for the place and +hastened to reassure his "dearest Polly." "I am told," he continues in +his letter describing Jackson's induction into office, "by several that +I am held up as a candidate for the convention. I have no desire to be +in the convention and do not mean to be a candidate. I should not +trouble you with this did I not apprehend that the idea of my wishing to +be in the convention might prevent some of my friends who are themselves +desirous of being in it from becoming candidates. I therefore wish you +to give this information to Mr. Harvie.[1279]... Farewell my dearest +Polly. Your happiness is always nearest the heart of your J. +Marshall."[1280] + +He yielded, however, and wrote Story of his disgust at having done so: +"I am almost ashamed of my weakness and irresolution when I tell you +that I am a member of our convention. I was in earnest when I told you +that I would not come into that body, and really believed that I should +adhere to that determination; but I have acted like a girl addressed by +a gentleman she does not positively dislike, but is unwilling to marry. +She is sure to yield to the advice and persuasion of her friends.... The +body will contain a great deal of eloquence as well as talent, and yet +will do, I fear, much harm with some good. Our freehold suffrage is, I +believe, gone past redemption. It is impossible to resist the influence, +I had almost said contagion of universal example."[1281] + +For fifty-three years Virginia had been governed under the constitution +adopted at the beginning of the Revolution. As early as the close of +this war the injustice and inadequacy of the Constitution of 1776 had +become evident, and, as a member of the House of Delegates, Marshall +apparently had favored the adoption of a new fundamental law for the +State.[1282] Almost continuously thereafter the subject had been brought +forward, but the conservatives always had been strong enough to defeat +constitutional reform. + +On July 12, 1816, in a letter to Samuel Kercheval, one of the ablest +documents he ever produced, Jefferson had exposed the defects of +Virginia's constitution which, he truly said, was without "leading +principles." It denied equality of representation; the Governor was +neither elected nor controlled by the people; the higher judges were +"dependent on none but themselves." With unsparing severity Jefferson +denounces the County Court system. + +Clearly and simply he enumerates the constructive reforms imperatively +demanded, beginning with "General Suffrage" and "Equal representation," +on which, however, he says that he wishes "to take no public share" +because that question "has become a party one." Indeed, at the very +beginning of this brilliant and well-reasoned letter, Jefferson tells +Kercheval that it is "for your satisfaction only, and not to be quoted +before the public."[1283] + +But Kercheval handed the letter around freely and proposed to print it +for general circulation. On hearing of this, Jefferson was "alarmed" and +wrote Kercheval harshly, repeating that the letter was not to be given +out and demanding that the original and copies be recalled.[1284] This +uncharacteristic perturbation of the former President reveals in +startling fashion the bitterness of the strife over the calling of the +convention, and over the issues confronting that body in making a new +constitution for Virginia. + +Of the serious problems to be solved by the Convention of 1829-30, that +of suffrage was the most important. Up to that time nobody could vote in +Virginia except white owners of freehold estates. Counties, regardless +of size, had equal representation in the House of Delegates. This gave +to the eastern and southern slaveholding sections of the State, with +small counties having few voters, an immense preponderance over the +western and northwestern sections, with large counties having many +voters. On the other hand, the rich slavery districts paid much heavier +taxes than the poorer free counties.[1285] + +Marshall was distressed by every issue, to settle which the convention +had been called. The question of the qualification for suffrage +especially agitated him. Immediately after his election to the +convention, he wrote Story of his troubles and misgivings: "We shall +have a good deal of division and a good deal of heat, I fear, in our +convention. The freehold principle will, I believe, be lost. It will, +however, be supported with zeal. If that zeal should be successful I +should not regret it. If we find that a decided majority is against +retaining it I should prefer making a compromise by which a substantial +property qualification may be preserved in exchange for it. + +"I fear the excessive [torn--probably, democratic spirit, coin]cident to +victory after a hard fought battle continued to the last extremity may +lead to universal suffrage or something very near it. What is the +prop[erty] qualification for your Senate? How are your Senators +apportioned on the State? And how does your system work? The question +whether white population alone, or white population compounded with +taxation, shall form the basis of representation will excite perhaps +more interest than even the freehold suffrage. I wish we were well +through the difficulty."[1286] + +The Massachusetts Constitutional Convention had been held nearly a +decade before that of Virginia. The problem of suffrage had troubled the +delegates almost as much as it now perplexed Marshall. The reminiscent +Pickering writes the Chief Justice of the fight made in 1820 by the +Massachusetts conservatives against "the conceited innovators." Story +had been a delegate, and so had John Adams, fainting with extreme age, +but rich with the wisdom of his eighty-five years: "He made a short, but +very good speech," begging the convention to retain the State Senate as +"the representative of _property_; ... the number of Senators in each +district was proportioned to its direct taxes to the State revenue--and +not to its population. Some democrats desired that the number of +Senators should be apportioned not according to the taxation, but +exclusively to the population. This, Mr. Adams and all the most +intelligent and considerate members opposed."[1287] + +Ultra-conservative as Marshall was, strongly as he felt the great body +of the people incapable of self-government, he was deeply concerned for +the well-being of what he called "the mass of the people." The best +that can be done for them, he says in a letter to Charles F. Mercer, is +to educate them. "In governments entirely popular" general education "is +more indispensable ... than in an other." The labor problem troubles him +sorely. When population becomes so great that "the surplus hands" must +turn to other employment, a grave situation will arise. + +"As the supply exceeds the demand the price of labour will cheapen until +it affords a bare subsistence to the labourer. The superadded demands of +a family can scarcely be satisfied and a slight indisposition, one which +suspends labour and compensation for a few days produces famine and +pauperism. How is this to be prevented?" Education may be relied on "in +the present state of our population, and for a long time to come.... But +as our country fills up how shall we escape the evils which have +followed a dense population?"[1288] + +The Chief Justice went to the Virginia Convention a firm supporter of +the strongest possible property qualification for suffrage. On the +question of slavery, which arose in various forms, he had not made his +position clear. The slavery question, as a National matter, perplexed +and disturbed Marshall. There was nothing in him of the humanitarian +reformer, but there was everything of the statesman. He never had but +one, and that a splendid, vision. + +The American Nation was his dream; and to the realization of it he +consecrated his life. A full generation after Marshall wrote his last +despairing word on slavery, Abraham Lincoln expressed the conviction +which the great Chief Justice had entertained: "I would save the Union. +I would save it the shortest way under the Constitution.... If I could +save the Union without freeing any slave, I would do it; and if I could +save it by freeing some and leaving others alone, I would also do that. +What I do about slavery and the colored race, I do because I believe it +helps to save the Union."[1289] + +Pickering, the incessant, in one of his many and voluminous letters to +Marshall which the ancient New Englander continued to write as long as +he lived, had bemoaned the existence of slavery--one of the rare +exhibitions of Liberalism displayed by that adamantine Federalist +conservative. Marshall answered: "I concur with you in thinking that +nothing portends more calamity & mischief to the Southern States than +their slave population. Yet they seem to cherish the evil and to view +with immovable prejudice & dislike every thing which may tend to +diminish it. I do not wonder that they should resist any attempt, should +one be made, to interfere with the rights of property, but they have a +feverish jealousy of measures which may do good without the hazard of +harm that is, I think, very unwise."[1290] + +Marshall heartily approved the plan of the American Colonization Society +to send free negroes back to Africa. The Virginia branch of that +organization was formed in 1829, the year of the State Constitutional +Convention, and Marshall became a member. Two years later he became +President of the Virginia branch, with James Madison, John Tyler, Abel +P. Upshur, and other prominent Virginians as Vice-Presidents.[1291] In +1831, Marshall was elected one of twenty-four Vice-Presidents of the +National society, among whom were Webster, Clay, Crawford, and +Lafayette.[1292] + +The Reverend R. R. Gurley, Secretary of this organization, wrote to the +more eminent members asking for their views. Among those who replied +were Lafayette, Madison, and Marshall. The Chief Justice says that he +feels a "deep interest in the ... society," but refuses to "prepare any +thing for publication." The cause of this refusal is "the present state +of [his] family"[1293] and a determination "long since formed ... +against appearing in print on any occasion." Nevertheless, he writes +Gurley a letter nearly seven hundred words in length. + +Marshall thinks it "extremely desirable" that the States shall pass +"permanent laws" affording financial aid to the colonization project. It +will be "also desirable" if this legislation can be secured "to incline +the people of color to migrate." He had thought for a long time that it +was just possible that more negroes might like to go to Liberia than +"can be provided for with the funds [of] the Society"; therefore he had +"suggested, some years past," to the managers, "to allow a small +additional bounty in lands to those who would pay their passage in whole +or in part." + +To Marshall it appears to be of "great importance to retain the +countenance and protection of the General Government. Some of our +cruizers stationed on the coast of Africa would, at the same time, +interrupt the slave trade--a horrid traffic detested by all good +men--and would protect the vessels and commerce of the Colony from +pirates who infest those seas. The power of the government to afford +this aid is not, I believe, contested." He thinks the plan of Rufus King +to devote part of the proceeds from the sale of public lands to a fund +for the colonization scheme, "the most effective that can be devised," +Marshall makes a brief but dreary argument for this method of raising +funds for the exportation of the freed blacks. + +He thus closes this eminently practical letter: "The removal of our +colored population is, I think, a common object, by no means confined to +the slave States, although they are more immediately interested in it. +The whole Union would be strengthened by it, and relieved from a danger, +whose extent can scarcely be estimated." Furthermore, says the Chief +Justice, "it lessens very much ... the objection in a political view to +the application of this ample fund [from the sale of the public domain], +that our lands are becoming an object for which the States are to +scramble, and which threatens to sow the seeds of discord among us +instead of being what they might be--a source of national wealth."[1294] + +Marshall delivered two opinions in which the question of slavery was +involved, but they throw little light on his sentiments. In the case of +the Antelope he held that the slave trade was not prohibited by +international law as it then existed; but since the court, including +Story and Thompson, both bitter antagonists of slavery, was unanimous, +the views of Marshall cannot be differentiated from those of his +associates. Spain and Portugal claimed certain negroes forcibly taken +from Spanish and Portuguese slavers by an American slaver off the coast +of Africa. After picturesque vicissitudes the vessel containing the +blacks was captured by an American revenue cutter and taken to Savannah +for adjudication. + +In due course the case reached the Supreme Court and was elaborately +argued. The Government insisted that the captured negroes should be +given their liberty, since they had been brought into the country in +violation of the statutes against the importation of slaves. Spain and +Portugal demanded them as slaves "acquired as property ... in the +regular course of legitimate commerce."[1295] It was not surprising that +opinion on the slave trade was "unsettled," said Marshall in delivering +the opinion of the court. + +All "Christian and civilized nations ... have been engaged in it.... +Long usage, and general acquiescence" have sanctioned it.[1296] America +had been the first to "check" the monstrous traffic. But, whatever its +feelings or the state of public opinion, the court "must obey the +mandate of the law."[1297] He cites four English decisions, especially a +recent one by Sir William Scott, the effect of all being that the slave +trade "could not be pronounced contrary to the law of nations."[1298] + +Every nation, therefore, has a right to engage in it. Some nations may +renounce that right sanctioned by "universal assent." But other nations +cannot be bound by such "renunciation." For all nations, large and +small, are equal--"Russia and Geneva have equal rights." No one nation +"can rightfully impose a rule on another ... none can make a law of +nations; and this traffic remains lawful to those whose governments have +not forbidden it.... It follows, that a foreign vessel engaged in the +African slave trade, captured on the high seas in time of peace, by an +American cruiser, and brought in for adjudication, would be +restored."[1299] + +Four months before Marshall was elected a member of the Virginia +Constitutional Convention, he delivered another opinion involving the +legal status of slaves. Several negroes, the property of one Robert +Boyce, were on a steamboat, the Teche, which was descending the +Mississippi. The vessel took fire and those on board, including the +negroes, escaped to the shore. Another steamboat, the Washington, was +coming up the river at the time, and her captain, in response to appeals +from the stranded passengers of the burning vessel, sent a yawl to bring +them to the Washington. The yawl was upset and the slaves drowned. The +owner of them sued the owner of the Washington for their value. The +District Court held that the doctrine of common carriers did not apply +to human beings; and this was the only question before the Supreme +Court, to which Boyce appealed. + +"A slave ... cannot be stowed away as a common package," said Marshall +in his brief opinion. "The responsibility of the carrier should be +measured by the law which is applicable to passengers, rather than by +that which is applicable to the carriage of common goods.... The law +applicable to common carriers is one of great rigor.... It has not been +applied to living men, and ... ought not to be applied to them." +Nevertheless, "the ancient rule 'that the carrier is liable only for +ordinary neglect,' still applies" to slaves. Therefore the District +Court was right in its instructions to the jury.[1300] + +The two letters quoted and the opinions expressing the unanimous +judgment of the Supreme Court are all the data we have as to Marshall's +views on slavery. It appears that he regretted the existence of slavery, +feared the results of it, saw no way of getting rid of it, but hoped to +lessen the evil by colonizing in Africa such free black people as were +willing to go there. In short, Marshall held the opinion on slavery +generally prevailing at that time. He was far more concerned that the +Union should be strengthened, and dissension in Virginia quieted, than +he was over the problem of human bondage, of which he saw no solution. + +When he took his seat as a delegate to the Virginia Constitutional +Convention of 1829-30, a more determined conservative than Marshall did +not live. Apparently he did not want anything changed--especially if the +change involved conflict--except, of course, the relation of the States +to the Nation. He was against a new constitution for Virginia; against +any extension of suffrage; against any modification of the County Court +system except to strengthen it; against a free white basis of +representation; against legislative interference with business. His +attitude was not new, nor had he ever concealed his views. + +His opinions of legislation and corporate property, for instance, are +revealed in a letter written twenty years before the Convention of +1829-30. In withdrawing from some Virginia corporation because the +General Assembly of the State had passed a law for the control of it, +Marshall wrote: "I consider the interference of the legislature in the +management of our private affairs, whether those affairs are committed +to a company or remain under individual direction, as equally dangerous +and unwise. I have always thought so and I still think so. I may be +compelled to subject my property to these interferences, and when +compelled I shall submit; but I will not voluntarily expose myself to +the exercise of a power which I think so improperly usurped."[1301] + +Two years before the convention was called, Marshall's unyielding +conservatism was displayed in a most conspicuous manner. In Sturges +_vs._ Crowninshield,[1302] a State law had been held invalid which +relieved creditors from contracts made before the passage of that law. +But, in his opinion in that case, Marshall used language that also +applied to contracts made after the enactment of insolvency statutes; +and the bench and bar generally had accepted his statement as the +settled opinion of the Supreme Court. But so acute had public discontent +become over this rigid doctrine, so strident the demand for bankrupt +laws relieving insolvents, at least from contracts made after such +statutes were enacted, that the majority of the Supreme Court yielded to +popular insistence and, in Ogden _vs._ Saunders,[1303] held that "an +insolvent law of a State does not impair the obligation of future +contracts between its citizens."[1304] + +For the first time in twenty-seven years the majority of the court +opposed Marshall on a question of Constitutional law. The Chief Justice +dissented and delivered one of the most powerful opinions he ever wrote. +The very "nature of our Union," he says, makes us "one people, as to +commercial objects."[1305] The prohibition in the contract clause "is +complete and total. There is no exception from it.[1306]... Insolvent +laws are to operate on a future, contingent unforseen event."[1307] Yet +the majority of the court hold that such legislation enters into +subsequent contracts "so completely as to become a ... part" of them. If +this is true of one law, it is true of "every other law which relates to +the subject." + +But this would mean, contends Marshall, that a vital provision of the +Constitution, "one on which the good and the wise reposed confidently +for securing the prosperity and harmony of our citizens, would lie +prostrate, and be construed into an inanimate, inoperative, unmeaning +clause." The construction of the majority of the court would "convert an +inhibition to pass laws impairing the obligation of contracts into an +inhibition to pass retrospective laws."[1308] If the Constitution means +this, why is it not so expressed? The mischievous laws which caused the +insertion of the contract clause "embraced future contracts, as well as +those previously formed."[1309] + +The gist of Marshall's voluminous opinion in Ogden _vs._ Saunders is +that the Constitution protects all contracts, past or future, from State +legislation which in any manner impairs their obligation.[1310] +Considering that even the rigidly conservative Bushrod Washington, +Marshall's stanch supporter, refused to follow his stern philosophy, in +this case, the measure and character of Marshall's conservatism are seen +when, in his seventy-fifth year, he helped to frame a new constitution +for Virginia. + +Still another example of Marshall's rock-like conservatism and of the +persistence with which he held fast to his views is afforded by a second +dissent from the majority of the court at the same session. This time +every one of the Associate Justices was against him, and Story delivered +their unanimous opinion. The Bank of the United States had sued Julius +B. Dandridge, cashier of the Richmond branch, and his sureties, on his +official bond. Marshall, sitting as Circuit Judge, had held that only +the written record of the bank's board of directors, that they approved +and accepted the bond, could be received to prove that Dandridge had +been legally authorized to act as cashier. + +The Supreme Court reversed Marshall's judgment, holding that the +authorization of an agent by a corporation can be established by +presumptive evidence,[1311] an opinion that was plainly sound and which +stated the law as it has continued to be ever since. But despite the +unanimity of his brethren, the clear and convincing opinion of Story, +the disapproval of his own views by the bench, bar, and business men of +the whole country, Marshall would not yield. "The Ch: Jus: I fear will +_die hard_," wrote Webster, who was of counsel for the bank.[1312] + +In a very long opinion Marshall insists that his decision in the Circuit +Court was right, fortifying his argument by more than thirty citations. +He begins by frank acknowledgment of the discontent his decision in the +Circuit Court has aroused: "I should now, as is my custom, when I have +the misfortune to differ with this court, acquiesce silently in its +opinion, did I not believe that the judgment of the circuit court of +Virginia gave general surprise to the profession, and was generally +condemned." Corporations, "being destitute of human organs," can express +themselves only by writing. They must act through agents; but the agency +can be created and proved only by writing. + +Marshall points out the serious possibilities to those with whom +corporations deal, as well as to the corporations themselves, of the +acts of persons serving as agents without authority of record.[1313] +Powerful as his reasoning is, it is based on mistaken premises +inapplicable to modern corporate transactions; but his position, his +method, his very style, reveal the stubborn conservative at bay, bravely +defending himself and his views. + +This, then, was the John Marshall, who, in his old age, accepted the +call of men as conservative as himself to help frame a new constitution +for Virginia, On Monday, October 5, 1829, the convention met in the +House of Delegates at Richmond. James Madison, then in his seventy-ninth +year, feeble and wizened, called the members to order and nominated +James Monroe for President of the convention. This nomination was +seconded by Marshall. These three men, whose careers since before the +Revolution and throughout our formative period, had been more +distinguished, up to that time, than had that of any American then +living, were the most conspicuous persons in that notable Assembly. +Giles, now Governor of the State, was also a member; so were Randolph, +Tyler, Philip P. Barbour, Upshur, and Tazewell. Indeed, the very ablest +men in Virginia had been chosen to make a new constitution for the +State. In the people's anxiety to select the best men to do that +important work, delegates were chosen regardless of the districts in +which they lived.[1314] + +To Marshall, who naturally was appointed to the Judiciary +Committee,[1315] fell the task of presenting to the convention the first +petition of non-freeholders for suffrage.[1316] No more impressive +document was read before that body. It stated the whole democratic +argument clearly and boldly.[1317] The first report received from any +committee was made by Marshall and also was written by him.[1318] It +provided for the organization of the State Judiciary, but did not seek +materially to change the system of appointments of judges. + +Two sentences of this report are important: "No modification or +abolition of any Court, shall be construed to deprive any Judge thereof +of his office"; and, "Judges may be removed from office by a vote of the +General Assembly: but two-thirds of the whole number of each House must +concur in such vote."[1319] Marshall promptly moved that this report be +made the order of the day and this was done. + +Ranking next to the question of the basis of suffrage and of +representation was that of judiciary reform. To accomplish this reform +was one of the objects for which the convention had been called. At that +time the Judiciary of Virginia was not merely a matter of courts and +judges; it involved the entire social and political organization of that +State. No more essentially aristocratic scheme of government ever +existed in America. Coming down from Colonial times, it had been +perpetuated by the Revolutionary Constitution of 1776. It had, in +practical results, some good qualities and others that were evil, among +the latter a well-nigh faultless political mechanism.[1320] + +The heart of this system was the County Courts. Too much emphasis cannot +be placed on this fact. These local tribunals consisted of justices of +the peace who sat together as County Courts for the hearing and decision +of the more important cases. They were almost always the first men of +their counties, appointed by the Governor for life; vacancies were, in +practice, filled only on the recommendation of the remaining justices. +While the Constitution of 1776 did not require the Governor to accept +the nominations of the County Courts for vacancies in these offices, to +do so had been a custom long established.[1321] + +For this acquiescence of the Governor in the recommendation of the +County Courts, there was a very human reason of even weightier influence +than that of immemorial practice. The Legislature chose the Governor; +and the justices of the peace selected, in most cases, the candidates +for the Legislature--seldom was any man elected by the people to the +State Senate or House of Delegates who was not approved by the County +Courts. Moreover, the other county offices, such as county clerks and +sheriffs, were appointed by the Governor only on the suggestion of the +justices of the peace; and these officials worked in absolute agreement +with the local judicial oligarchy. In this wise members of Congress +were, in effect, named by the County Courts, and the Legislature dared +not and did not elect United States Senators of whom the justices of the +peace disapproved. + +The members of the Court of Appeals, appointed by the Governor, were +never offensive to these minor county magistrates, although the judges +of this highest tribunal in Virginia, always able and learned men +holding their places for life, had great influence over the County +Courts, and, therefore, over the Governor and General Assembly also. Nor +was this the limit of the powers of the County Courts. They fixed the +county rate of taxation and exercised all local legislative and +executive as well as judicial power.[1322] + +In theory, a more oligarchic system never was devised for the government +of a free state; but in practice, it responded to the variations of +public opinion with almost the precision of a thermometer. For example, +nearly all the justices of the peace were Federalists during the first +two years of Washington's Administration; yet the State supported Henry +against Assumption, and, later, went over to Jefferson as against +Washington and Henry combined.[1323] + +Rigid and self-perpetuating as was the official aristocracy which the +Virginia judicial system had created, its members generally attended to +their duties and did well their public work.[1324] They lived among the +people, looked after the common good, composed disputes between +individuals; soothed local animosities, prevented litigation; and +administered justice satisfactorily when, despite their preventive +efforts, men would bring suits. But the whole scheme was the very +negation of democracy.[1325] + +While, therefore, this judicial-social-political plan worked well for +the most part, the idea of it was offensive to liberal-minded men who +believed in democracy as a principle. Moreover, the official oligarchy +was more powerful in the heavy slaveholding, than in the comparatively +"free labor," sections; it had been longer established, and it better +fitted conditions, east of the mountains. + +So it came about that there was, at last, a demand for judicial reform. +Seemingly this demand was not radical--it was only that the +self-perpetuating County Court system should be changed to appointments +by the Governor without regard to recommendations of the local justices; +but, in reality, this change would have destroyed the traditional +aristocratic organization of the political, social, and to a great +extent the economic, life of Virginia. + +On every issue over which the factions of this convention fought, +Marshall was reactionary and employed all his skill to defeat, whenever +possible, the plans and purposes of the radicals. In pursuing this +course he brought to bear the power of his now immense reputation for +wisdom and justice. Perhaps no other phase of his life displays more +strikingly his intense conservatism. + +The conclusion of his early manhood--reluctantly avowed after +Washington, following the Revolution, had bitterly expressed the same +opinion,[1326] that the people, left to themselves, are not capable of +self-government--had now become a profound moral belief. It should again +be stated that most of Marshall's views, formed as a young lawyer during +the riotous years between the achievement of Independence and the +adoption of the Constitution, had hardened, as life advanced, into +something like religious convictions. It is noteworthy, too, that, in +general, Madison, Giles, and even Monroe, now stood with Marshall. + +The most conspicuous feature of those fourteen weeks of tumultuous +contest, as far as it reveals Marshall's personal standing in Virginia, +was the trust, reverence, and affection in which he was held by all +members, young and old, radical and conservative, from every part of the +State. Speaker after speaker, even in the fiercest debates, went out of +his way to pay tribute to Marshall's uprightness and wisdom.[1327] + +Marshall spoke frequently on the Judiciary; and, at one point in a +debate on the removal of judges, disclosed opinions of historical +importance. Although twenty-seven years had passed since the repeal of +the Federalist Judiciary Act of 1801,[1328] Marshall would not, even +now, admit that repeal to be Constitutional. Littleton W. Tazewell, +also a member of the Judiciary Committee, asserted that, under the +proposed new State Constitution, the Legislature could remove judges +from office by abolishing the courts. John Scott of Fauquier County +asked Marshall what he thought of the ousting of Federalist judges by +the Republicans in 1802. + +The Chief Justice answered, "with great, very great repugnance," that +throughout the debate he had "most carefully avoided" expressing any +opinion on that subject. He would say, however, that "he did not +conceive the Constitution to have been at all definitely expounded by a +single act of Congress." Especially when "there was no union of +Departments, but the Legislative Department alone had acted, and acted +but once," ignoring the Judicial Department, such an act, "even +admitting that act not to have passed in times of high political +and party excitement, could never be admitted as final and +conclusive."[1329] + +Tazewell was of "an exactly opposite opinion"--the Repeal Act of 1802 +"was perfectly constitutional and proper." Giles also disagreed with +Marshall. Should "a public officer ... receive the public money any +longer than he renders service to the public"?[1330] Marshall replied +with spirit. No serious question can be settled, he declared, by mere +"confidence of conviction, but on the reason of the case." All that he +asked was that the Judiciary Article of the proposed State Constitution +should go forth, "uninfluenced by the opinion of any individual: let +those, whose duty it was to settle the interpretation of the +Constitution, decide on the Constitution itself."[1331] After extended +debate[1332] and some wrangling, Marshall's idea on this particular +phase of the subject prevailed.[1333] + +The debate over the preservation of the County Court system, for which +Marshall's report provided, was long and acrimonious, and a résumé of it +is impossible here. Marshall stoutly supported these local tribunals; +their "abolition will affect our whole internal police.... No State in +the Union, has hitherto enjoyed more complete internal quiet than +Virginia. There is no part of America, where ... less of ill-feeling +between man and man is to be found than in this Commonwealth, and I +believe most firmly that this state of things is mainly to be ascribed +to the practical operation of our County Courts." The county judges +"consist in general of the best men in their respective counties. They +act in the spirit of peace-makers, and allay, rather than excite the +small disputes ... which will sometimes arise among neighbours."[1334] + +Giles now aligned himself with Marshall as a champion of the County +Court system. In an earnest defense of it he went so far as to reflect +on the good sense of Jefferson. Everybody, said Giles, knew that that +"highly respectable man ... dealt very much in theories."[1335] + +During the remainder of the discussion on this subject, Marshall rose +frequently, chiefly, however, to guide the debate.[1336] He insisted +that the custom of appointing justices of the peace only on nomination +of the County Courts should be written into the constitution. The +Executive ought to appoint _all_ persons recommended by "a County Court, +taken as a whole." Marshall then moved an amendment to that +effect.[1337] + +This was a far more conservative idea than was contained in the old +constitution itself. "Let the County Court who now recommended, have +power also to appoint: for there it ended at last," said William +Campbell of Bedford County. Giles was for Marshall's plan: "The existing +County Court system" threw "power into the hands of the middle class of +the community," he said; and it ought to be fortified rather than +weakened. + +Marshall then withdrew his astonishing amendment and proposed, instead, +that the advice and "consent of the Senate" should not be required for +appointments of county justices, thus utterly eliminating all +legislative control over these important appointments; and this extreme +conservative proposition was actually adopted without dissent.[1338] +Thus the very foundation of Virginia's aristocratic political +organization was greatly strengthened. + +Concerning the retention of his office by a judge after the court had +been abolished, Marshall made an earnest and impressive speech. What +were the duties of a judge? "He has to pass between the Government and +the man whom that Government is prosecuting: between the most powerful +individual in the community, and the poorest and most unpopular. It is +of the last importance, that in the exercise of these duties, he should +observe the utmost fairness. Need I press the necessity of this? Does +not every man feel that his own personal security and the security of +his property depends on that fairness? + +"The Judicial Department comes home in its effects to every man's +fireside: it passes on his property, his reputation, his life, his all. +Is it not, to the last degree important, that he should be rendered +perfectly and completely independent, with nothing to influence or +control him but God and his conscience? + +"You do not allow a man to perform the duties of a juryman or a Judge, +if he has one dollar of interest in the matter to be decided: and will +you allow a Judge to give a decision when his office may depend upon it? +when his decision may offend a powerful and influential man? + +"Your salaries do not allow any of your Judges to lay up for his old +age: the longer he remains in office, the more dependant he becomes upon +his office. He wishes to retain it; if he did not wish to retain it, he +would not have accepted it. And will you make me believe that if the +manner of his decision may affect the tenure of that office, the man +himself will not be affected by that consideration?... The whole good +which may grow out of this Convention, be it what it may, will never +compensate for the evil of changing the tenure of the Judicial office." + +Barbour had said that to presume that the Legislature would oust judges +because of unpopular decisions, was to make an unthinkable imputation. +But "for what do you make a Constitution?" countered Marshall. Why +provide that "no bill of attainder, or an _ex post facto_ law, shall be +passed? What a calumny is here upon the Legislature," he sarcastically +exclaimed. "Do you believe, that the Legislature will pass a bill of +attainder, or an _ex post facto_ law? Do you believe, that they will +pass a law impairing the obligation of contracts? If not, why provide +against it?... + +"You declare, that the Legislature shall not take private property for +the public use, without just compensation. Do you believe, that the +Legislature will put forth their grasp upon private property, without +compensation? Certainly I do not. There is as little reason to believe +they will do such an act as this, as there is to believe, that a +Legislature will offend against a Judge who has given a decision against +some favourite opinion and favourite measure of theirs, or against a +popular individual who has almost led the Legislature by his talents and +influence. + +"I am persuaded, there is at least as much danger that they will lay +hold on such an individual, as that they will condemn a man to death for +doing that which, when he committed it, was no crime. The gentleman +says, it is impossible the Legislature should ever think of doing such a +thing. Why then expunge the prohibition?... This Convention can do +nothing that would entail a more serious evil upon Virginia, than to +destroy the tenure by which her Judges hold their offices."[1339] + +An hour later, the Chief Justice again addressed the convention on the +independence of the Judiciary. Tazewell had spoken much in the vein of +the Republicans of 1802.[1340] "The independence of all those who try +causes between man and man, and between a man and his Government," +answered Marshall, "can be maintained only by the tenure of their +office. Is not their independence preserved under the present system? +None can doubt it. Such an idea was never heard of in Virginia, as to +remove a Judge from office." Suppose the courts at the mercy of the +Legislature? "What would then be the condition of the court, should the +Legislature prosecute a man, with an earnest wish to convict him?... If +they may be removed at pleasure, will any lawyer of distinction come +upon your bench? + +"No, Sir. I have always thought, from my earliest youth till now, that +the greatest scourge an angry Heaven ever inflicted upon an ungrateful +and a sinning people, was an ignorant, a corrupt, or a dependent +Judiciary. Will you draw down this curse upon Virginia? Our ancestors +thought so: we thought so till very lately; and I trust the vote of this +day will shew that we think so still."[1341] + +Seldom in any parliamentary body has an appeal been so fruitful of +votes. Marshall's idea of the inviolability of judicial tenure was +sustained by a vote of 56 to 29, Madison voting with him.[1342] + +Lucas P. Thompson of Amherst County moved to strike out the provision in +Marshall's Judiciary Article that the abolition of a court should not +"deprive any Judge thereof of his office."[1343] Thus the direct +question, so fiercely debated in Congress twenty-seven years +earlier,[1344] was brought before the convention. It was promptly +decided, and against the views and action of Jefferson and the +Republicans of 1802. By a majority of 8 out of a total of 96,[1345] the +convention sustained the old Federalist idea that judges should continue +to hold their positions and receive their salaries, even though their +offices were abolished. + +Before the vote was taken, however, a sharp debate occurred between +Marshall and Giles. To keep judges in office, although that office be +destroyed, "was nothing less than to establish a privileged corps in a +free community," said Giles. Marshall had said "that a Judge ought to be +responsible only to God and to his own conscience." Although "one of the +first objects in view, in calling this Convention, was to make the +Judges responsible--not nominally, but really responsible," Marshall +actually proposed to establish "a _privileged order_ of men." Another +part of Marshall's plan, said Giles, required the concurrent vote of +both Houses of the Legislature to remove a judge from the bench. "This +was inserted, for what?" To prevent the Legislature from removing a +judge "whenever his conduct had been such, that he became unpopular and +odious to the people"--the very power the Legislature ought to +have.[1346] + +In reply, Marshall said that he would not, at that time, discuss the +removal of judges by the Legislature, but would confine himself +"directly to the object before him," as to whether the abolition of a +court should not deprive the judge of his office. Giles had fallen into +a strange confusion--he had treated "the office of a Judge, and the +Court in which he sat, as being ... indissolubly united." But, asked +Marshall, were the words "office and Court synonymes"? By no means. The +proposed Judiciary Article makes the distinction when it declares that +though the _court_ be abolished, the judge still holds his _office_. "In +what does the office of a Judge consist? ... in his constitutional +capacity to receive Judicial power, and to perform Judicial Duties.... + +"If the Constitution shall declare that when the court is abolished, he +shall still hold" his office, "there is no inconsistency in the +declaration.... What creates the office?" An election to it by the +Legislature and a commission by the Governor. "When these acts have been +performed, the Judges are in office. Now, if the Constitution shall say +that his office shall continue, and he shall perform Judicial duties, +though his court may be abolished, does he, because of any modification +that may be made in that court, cease to be a Judge?... + +"The question constantly recurs--do you mean that the Judges shall be +removable at the will of the Legislature? The gentleman talks of +responsibility. Responsibility to what? to the will of the Legislature? +can there be no responsibility, unless your Judges shall be removable at +pleasure? will nothing short of this satisfy gentlemen? Then, indeed, +there is an end to independence. The tenure during good behaviour, is a +mere imposition on the public belief--a sound that is kept to the +ear--and nothing else. The consequences must present themselves to every +mind. There can be no member of this body who does not feel them. + +"If your Judges are to be removable at the will of the Legislature, all +that you look for from fidelity, from knowledge, from capacity, is gone +and gone forever." Seldom did Marshall show more feeling than when +pressing this point; he could not "sit down," he said, without "noticing +the morality" of giving the Legislature power to remove judges from +office. "Gentlemen talk of sinecures, and privileged orders--with a +view, as it would seem, to cast odium on those who are in office. + +"You seduce a lawyer from his practice, by which he is earning a +comfortable independence, by promising him a certain support for life, +unless he shall be guilty of misconduct in his office. And after thus +seducing him, when his independence is gone, and the means of +supporting his family relinquished, you will suffer him to be +displaced and turned loose on the world with the odious brand of +sinecure-pensioner--privileged order--put upon him, as a lazy drone who +seeks to live upon the labour of others. This is the course you are +asked to pursue." + +The provisions of the Judiciary Article before the convention secure +ample responsibility. "If not, they can be made [to do] so. But is it +not new doctrine to declare, that the Legislature by merely changing the +name of a court or the place of its meeting, may remove any Judge from +his office? The question to be decided is, and it is one to which we +must come, whether the Judges shall be permanent in their office, or +shall be dependent altogether upon the breath of the Legislature."[1347] + +Giles answered on the instant. In doing so, he began by a tribute to +Marshall's "standing and personal excellence" which were so great "that +he was willing to throw himself into the background, as to any weight to +be attached to his [Giles's] own opinion." Therefore, he would "rely +exclusively on the merits" of the controversy. Marshall had not shown +"that it was not an anomaly to have the court out of being, and an +office pertain[ing] to the court in being.... It was an anomaly in +terms." + +Giles "had, however, such high respect" for Marshall's standing, "that +he always doubted his own opinion when put in opposition" to that of the +Chief Justice. He had not intended, he avowed, "to throw reproach upon +the Judges in office." Far be it from him to reflect "in the least +degree on their honour and integrity." His point was that, by Marshall's +plan, "responsibility was rather avoided than sought to be secured." +Giles was willing to risk his liberty thus far--"if a Judge became +odious to the people, let him be removed from office."[1348] + +The debate continued upon another amendment by Thompson. Viewing the +contest as a sheer struggle of minds, the conservatives were superior to +the reformers,[1349] and steadily they gained votes.[1350] + +Again Marshall spoke, this time crossing swords with Benjamin W. S. +Cabell and James Madison, over a motion of the former that judges whose +courts were abolished, and to whom the Legislature assigned no new +duties, should not receive salaries: "There were upwards of one hundred +Inferior Courts in Virginia.... No gentleman could look at the dockets +of these courts, and possibly think" that the judges would ever have no +business to transact. + +Cabell's amendment "stated an impossible case," said Marshall,--a "case +where there should be no controversies between man and man, and no +crimes committed against society. It stated a case that could not +happen--and would the convention encounter the real hazard of putting +almost every Judge in the Commonwealth in the power of the Legislature, +for the sake of providing for an impossible case?"[1351] But in spite of +Marshall's opposition, Cabell's amendment was adopted by a vote of 59 +to 36.[1352] Two weeks later, however, the convention reversed itself by +two curious and contradictory votes.[1353] So in the end Marshall won. + +The subject of the Judiciary did not seriously arise again until the +vote on the adoption of the entire constitution was imminent. As it +turned out, the constitution, when adopted, contained, in substance, the +Judiciary provisions which Marshall had written and reported at the +beginning of that body's deliberations.[1354] + +The other and the commanding problem, for the solution of which the +contention had been called, was made up of the associated questions of +suffrage, taxation, and representation. Broadly speaking, the issue was +that of white manhood suffrage and representation based upon the +enumeration of whites, as against suffrage determined by property and +taxation, representation to be based on an enumeration which included +three fifths of the slave population.[1355] + +In these complex and tangled questions the State and the convention were +divided; so fierce were the contending factions, and so diverse were +opinions on various elements of the confused problem, especially among +those demanding reform, that at times no solution seemed possible. The +friends of reform were fairly well organized and coöperated in a spirit +of unity uncommon to liberals. But, as generally happens, the +conservatives had much better discipline, far more harmony of opinion +and conduct. The debate on both sides was able and brilliant.[1356] + +Finally the convention seemingly became deadlocked. Each side declared +it would not yield.[1357] Then came the inevitable reaction--a spirit of +conciliation mellowed everybody. Sheer human nature, wearied of strife, +sought the escape that mutual accommodation alone afforded. The moment +came for which Marshall had been patiently waiting. Rising slowly, as +was his wont, until his great height seemed to the convention to be +increased, his soothing voice, in the very gentleness of its timbre, +gave a sense of restfulness and agreement so grateful to, and so desired +by, even the sternest of the combatants. + +"No person in the House," began the Chief Justice, "can be more truly +gratified than I am, at seeing the spirit that has been manifested here +to-day; and it is my earnest wish that this spirit of conciliation may +be acted upon in a fair, equal and honest manner, adapted to the +situation of the different parts of the Commonwealth, which are to be +affected." + +The warring factions, said Marshall, were at last in substantial +accord. "That the Federal numbers [the enumeration of slaves as fixed in +the National Constitution] and the plan of the white basis shall be +blended together so as to allow each an equal portion of power, seems to +be very generally agreed to." The only difference now was that one +faction insisted on applying this plan to both Houses of the +Legislature, while the other faction would restrict the white basis to +the popular branch, leaving the Senate to be chosen on the combined free +white and black slave enumeration. + +This involves the whole theory of property. One gentleman, in +particular, "seems to imagine that we claim nothing of republican +principles, when we claim a representation for property." But +"republican principles" do not depend on "the naked principle of +numbers." On the contrary, "the soundest principles of republicanism do +sanction some relation between representation and taxation.... The two +ought to be connected.... This was the principle of the revolution.... +This basis of Representation is ... so important to Virginia" that +everybody had thought about it before this convention was called. + +"Several different plans were contemplated. The basis of white +population alone; the basis of free population alone; a basis of +population alone; a basis compounded of taxation and white population, +(or which is the same thing, a basis of Federal numbers:).... Now, of +these various propositions, the basis of white population, and the basis +of taxation alone are the two extremes." But, "between the free +population, and the white population, there is almost no difference: +Between the basis of total population and the basis of taxation, there +is but little difference." + +Frankly and without the least disguise of his opinions, Marshall +admitted that he was a conservative of conservatives: "The people of the +East," of whom he avowed himself to be one, "thought that they offered a +fair compromise, when they proposed the compound basis of population and +taxation, or the basis of the Federal numbers. We thought that we had +republican precedent for this--a precedent given us by the wisest and +truest patriots that ever were assembled: but that is now past. + +"We are now willing to meet on a new middle ground." Between the two +extremes "the majority is too small to calculate upon.... We are all +uncertain as to the issue. But all know this, that if either extreme is +carried, it must leave a wound in the breast of the opposite party which +will fester and rankle, and produce I know not what mischief." The +conservatives were now the majority of the convention, yet they were +again willing to make concessions. Avoiding both extremes, Marshall +proposed, "as a compromise," that the basis of representation "shall be +made according to an exact compound of the two principles, of the white +basis and of the Federal numbers, according to the Census of +1820."[1358] + +Further debate ensued, during which animosity seemed about to come to +life again, when the Chief Justice once more exerted his mollifying +influence. "Two propositions respecting the basis of Representation +have divided this Convention almost equally," he said. "The question +has been discussed, until discussion has become useless. It has been +argued, until argument is exhausted. We have now met on the ground of +compromise." It is no longer a matter of the triumph of either side. The +only consideration now is whether the convention can agree on some plan +to lay before the people "with a reasonable hope that it may be adopted. +Some concession must be made on both sides.... What is the real +situation of the parties?" Unquestionably both are sincere. "To attempt +now to throw considerations of principle into either scale, is to add +fuel to a flame which it is our purpose to extinguish. We must lose +sight of the situation of parties and state of opinion, if we make this +attempt." + +The convention is nearly evenly balanced. At this moment those favoring +a white basis only have a trembling majority of two. This may +change--the reversal of a single vote would leave the House "equally +divided." + +The question must be decided "one way or the other"; but, if either +faction prevails by a bare majority, the proposed constitution will go +to the people from an almost equally divided convention. That means a +tremendous struggle, a riven State. Interests in certain parts of the +Commonwealth will surely resist "with great force" a purely white basis +of representation, especially if no effective property qualification for +suffrage is provided. This opposition is absolutely certain "unless +human nature shall cease to be what it has been in all time." + +No human power can forecast the result of further contest. But one +thing is certain: "To obtain a just compromise, concession must not only +be mutual--it must be equal also.... Each ought to concede to the other +as much as he demands from that other.... There can be no hope that +either will yield more than it gets in return." + +The proposal that white population and taxation "mixed" with Federal +numbers in "equal proportions" shall "form the basis of Representation +in both Houses," is equal and just. "All feel it to be equal." Yet the +conservatives now go still further--they are willing to place the House +on the white basis and apply the mixed basis to the Senate only. Why +refuse this adjustment? Plainly it will work well for everybody: "If the +Senate would protect the East, will it not protect the West also?" + +Marshall's satisfaction was "inexpressible" when he heard from both +sides the language of conciliation. "I hailed these auspicious +appearances with as much joy, as the inhabitant of the polar regions +hails the re-appearance of the sun after his long absence of six tedious +months. Can these appearances prove fallacious? Is it a meteor we have +seen and mistaken for that splendid luminary which dispenses light and +gladness throughout creation? It must be so, if we cannot meet on equal +ground. If we cannot meet on the line that divides us equally, then take +the hand of friendship, and make an equal compromise; it is vain to hope +that any compromise can be made."[1359] + +The basis of representation does not appear in the constitution, the +number of Senators and Representatives being arbitrarily fixed by +districts and counties; but this plan, in reality, gave the slaveholding +sections almost the same preponderance over the comparatively +non-slaveholding sections as would have resulted from the enumeration of +three fifths of all slaves in addition to all whites.[1360] + +While the freehold principle was abandoned, as Marshall foresaw that it +would be, the principle of property qualification as against manhood +suffrage was triumphant.[1361] With a majority against them, the +conservatives won by better management, assisted by the personal +influence of the Chief Justice, to which, on most phases of the +struggle, was added that of Madison and Giles. + +Nearly a century has passed since these happenings, and Marshall's +attitude now appears to have been that of cold reaction; but he was as +honest as he was outspoken in his resistance to democratic reforms. He +wanted good government, safe government. He was not in the least +concerned in the rule of the people as such. Indeed, he believed that +the more they directly controlled public affairs the worse the business +of government would be conducted. + +He feared that sheer majorities would be unjust, intolerant, tyrannical; +and he was certain that they would be untrustworthy and freakishly +changeable. These convictions would surely have dictated his course in +the Virginia Constitutional Convention of 1829-30, had no other +considerations influenced him. + +But, in addition to his long settled and ever-petrifying conservative +views, we must also take into account the conditions and public temper +existing in Virginia ninety years ago. Had the convention reached any +other conclusion than that to which Marshall gently guided it, it is +certain that the State would have been torn by dissension, and it is not +improbable that there would have been bloodshed. All things considered, +it seems unsafe to affirm that Marshall's course was not the wisest for +that immediate period and for that particular State. + +Displaying no vision, no aspiration, no devotion to human rights, he +merely acted the uninspiring but necessary part of the practical +statesman dealing with an existing and a very grave situation. If +Jefferson could be so frightened in 1816 that he forbade the public +circulation of his perfectly sound views on the wretched Virginia +Constitution of 1776,[1362] can it be wondered at that the conservative +Marshall in 1830 wished to compose the antagonisms of the warring +factions? + +The fact that the Nation was then facing the possibility of +dissolution[1363] must also be taken into account. That circumstance, +indeed, influenced Marshall even more than did his profound +conservatism. There can be little doubt that, had either the radicals or +the conservatives achieved an outright victory, one part of Virginia +would have separated from the other and the growing sentiment for +disunion would have received a powerful impulse. + +Hurrying from Richmond to Washington when the convention adjourned, +Marshall listened to the argument of Craig _vs._ Missouri; and then +delivered one of the strongest opinions he ever wrote--the only one of +his Constitutional expositions to be entirely repudiated by the Supreme +Court after his death. The case grew out of the financial conditions +described in the fourth chapter of this volume. + +When Missouri became a State in 1821, her people found themselves in +desperate case. There was no money. Banks had suspended, and specie had +been drained to the Eastern commercial centers. The simplest business +transactions were difficult, almost impossible. Even taxes could not be +paid. The Legislature, therefore, established loan offices where +citizens, by giving promissory notes, secured by mortgage or pledge of +personal property, could purchase loan certificates issued by the State. +These certificates were receivable for taxes and other public debts and +for salt from the State salt mines. The faith and resources of Missouri +were pledged for the redemption of the certificates which were +negotiable and issued in denominations not exceeding ten dollars or less +than fifty cents. In effect and in intention, the State thus created a +local circulating medium of exchange. + +On August 1, 1822, Hiram Craig and two others gave their promissory +notes for $199.99 in payment for loan certificates. On maturity of these +notes the borrowers refused to pay, and the State sued them; judgment +against them was rendered in the trial court and this judgment was +affirmed by the Supreme Court of Missouri. The case was taken, by writ +of error, to the Supreme Court of the United States, where the sole +question to be decided was the constitutionality of the Missouri loan +office statutes. + +Marshall's associates were now Johnson, Duval, Story, Thompson, McLean, +and Baldwin; the last two recently appointed by Jackson. It was becoming +apparent that the court was growing restive under the rigid practice of +the austere theory of government and business which the Chief Justice +had maintained for nearly a generation. This tendency was shown in this +case by the stand taken by three of the Associate Justices. Marshall was +in his seventy-sixth year, but never did his genius shine more +resplendently than in his announcement of the opinion of the Supreme +Court in Craig _vs._ Missouri.[1364] + +He held that the Missouri loan certificates were bills of credit, which +the National Constitution prohibited any State to issue. "What is a bill +of credit?" It is "any instrument by which a state engages to pay money +at a future day; thus including a certificate given for money +borrowed.... To 'emit bills of credit' conveys to the mind the idea of +issuing paper intended to circulate through the community, for its +ordinary purposes, as money, which paper is redeemable at a future +day."[1365] The Chief Justice goes into the history of the paper money +evil that caused the framers of the Constitution to forbid the States +to "emit bills of credit." + +Such currency always fluctuates. "Its value is continually changing; and +these changes, often great and sudden, expose individuals to immense +loss, are the sources of ruinous speculations, and destroy all +confidence between man and man." To "cut up this mischief by the +roots ... the people declared, in their Constitution, that no state +should emit bills of credit. If the prohibition means anything, if the +words are not empty sounds, it must comprehend the emission of any paper +medium by a state government, for the purpose of common +circulation."[1366] + +Incontestably the Missouri loan certificates are just such bills of +credit. Indeed, the State law itself "speaks of them in this character." +That the statute calls them certificates instead of bills of credit does +not change the fact. How absurd to claim that the Constitution "meant to +prohibit names and not things! That a very important act, big with great +and ruinous mischief, which is expressly forbidden ... may be performed +by the substitution of a name." The Constitution is not to be evaded "by +giving a new name to an old thing."[1367] + +It is nonsense to say that these particular bills of credit are lawful +because they are not made legal tender, since a separate provision +applies to legal tender. The issue of legal tender currency, and also +bills of credit, is equally and separately forbidden: "To sustain the +one because it is not also the other; to say that bills of credit may be +emitted if they be not made a tender in payment of debts; is ... to +expunge that distinct, independent prohibition."[1368] + +In a well-nigh perfect historical summary, Marshall reviews experiments +before and during the Revolution in bills of credit that were made legal +tender, and in others that were not--all "productive of the same +effects," all equally ruinous in results.[1369] The Missouri law +authorizing the loan certificates, for which Craig gave his promissory +note, is "against the highest law of the land, and ... the note itself +is utterly void."[1370] + +The Chief Justice closes with a brief paragraph splendid in its simple +dignity and power. In his argument for Missouri, Senator Thomas H. +Benton had used violent language of the kind frequently employed by the +champions of State Rights: "If ... the character of a sovereign State +shall be impugned," he cried, "contests about civil rights would be +settled amid the din of arms, rather than in these halls of national +justice."[1371] + +To this outburst Marshall replies: The court has been told of "the +dangers which may result from" offending a sovereign State. If obedience +to the Constitution and laws of the Nation "shall be calculated to bring +on those dangers ... or if it shall be indispensable to the preservation +of the union, and consequently of the independence and liberty of these +states; these are considerations which address themselves to those +departments which may with perfect propriety be influenced by them. This +department can listen only to the mandates of law; and can tread only +that path which is marked out by duty."[1372] + +In this noble passage Marshall is not only rebuking Benton; he is also +speaking to the advocates of Nullification, then becoming clamorous and +threatening; he is pointing out to Andrew Jackson the path of +duty.[1373] + +Justices Johnson, Thompson, and McLean afterwards filed dissenting +opinions, thus beginning the departure, within the Supreme Court, from +the stern Constitutional Nationalism of Marshall. This breach in the +court deeply troubled the Chief Justice during the remaining four years +of his life. + +Johnson thought "that these certificates are of a truly amphibious +character." The Missouri law "does indeed approach as near to a +violation of the Constitution as it can well go without violating its +prohibition, but it is in the exercise of an unquestionable right, +although in rather a questionable form." So, on the whole, Johnson +concluded that the Supreme Court had better hold the statute +valid.[1374] + +"The right of a State to borrow money cannot be questioned," said +Thompson; that is all the Missouri scheme amounts to. If these loan +certificates are bills of credit, so are "all bank notes, issued either +by the States, or under their authority."[1375] Justice McLean pointed +out that Craig's case was only one of many of the same kind. "The solemn +act of a State ... cannot be set aside ... under a doubtful construction +of the Constitution.[1376]... It would be as gross usurpation on the +part of the federal government to interfere with State rights by an +exercise of powers not delegated, as it would be for a State to +interpose its authority against a law of the Union."[1377] + +In Congress attacks upon Marshall and the Supreme Court now were +renewed--but they grew continuously feebler. At the first session after +the decision of the Missouri loan certificate case, a bill was +introduced to repeal the provision of the Judiciary Act upon which the +National powers of the Supreme Court so largely depended. "If the +twenty-fifth section is repealed, the Constitution is practically gone," +declared Story. "Our wisest friends look with great gloom to the +future."[1378] + +Marshall was equally despondent, but his political vision was clearer. +When he read the dissenting opinions of Johnson, Thompson, and McLean, +he wrote Story: "It requires no prophet to predict that the 25th section +[of the Judiciary Act] is to be repealed, or to use a more fashionable +phrase to be nullified by the Supreme Court of the United States."[1379] +He realized clearly that the great tribunal, the power and dignity of +which he had done so much to create, would soon be brought under the +control of those who, for some years at least, would reject that broad +and vigorous Nationalism which he had steadily and effectively asserted +during almost a third of a century. One more vacancy on the Supreme +Bench and a single new appointment by Jackson would give the court to +the opponents of Marshall's views. Before he died, the Chief Justice was +to behold two such vacancies.[1380] + +On January 24, 1831, William R. Davis of South Carolina presented the +majority report of the Judiciary Committee favoring the repeal of that +section of the Judiciary Act under which the Supreme Court had +demolished State laws and annihilated the decisions of State +courts.[1381] James Buchanan presented the minority report.[1382] A few +minutes' preliminary discussion revealed the deep feeling on both sides. +Philip Doddridge of Virginia declared that the bill was of "as much +importance as if it were a proposition to repeal the Union of these +States." William W. Ellsworth of Connecticut avowed that it was of +"overwhelming magnitude."[1383] + +Thereupon the subject was furiously debated. Thomas H. Crawford of +Pennsylvania considered Section 25 of the Judiciary Act, to be as +"sacred" as the Constitution itself.[1384] Henry Daniel of Kentucky +asserted that the Supreme Court "stops at nothing to obtain power." Let +the "States ... prepare for the worst, and protect themselves against +the assaults of this gigantic tribunal."[1385] + +William Fitzhugh Gordon of Virginia, recently elected, but already a +member of the Judiciary Committee, stoutly defended the report of the +majority: "When a committee of the House had given to a subject the +calmest and maturest investigation, and a motion is made to print their +report, a gentleman gets up, and, in a tone of alarm, denounces the +proposition as tantamount to a motion to repeal the Union." Gordon +repudiated the very thought of dismemberment of the Republic--that +"palladium of our hopes, and of the liberties of mankind." + +As to the constitutionality of Section 25 of the Judiciary Act--"could +it be new, especially to a Virginia lawyer"? when the Virginia +Judiciary, with Roane at its head, had solemnly proclaimed the +illegality of that section. And had not Georgia ordered her Governor to +resist the enforcement of that provision of that ancient act of +Congress? "I declare to God ... that I believe nothing would tend so +much to compose the present agitation of the country ... as the repeal +of that portion of the judiciary act." Gordon was about to discuss the +nefarious case of Cohens _vs._ Virginia when his emotions overcame +him--"he did not wish ... to go into the merits of the question."[1386] + +Thomas F. Foster of Georgia said that the Judiciary Committee had +reported under a "galling fire from the press"; quoted Marshall's +unfortunate language in the Convention of 1788;[1387] and insisted that +the "vast and alarming" powers of the Supreme Court must be +bridled.[1388] + +But the friends of the court overwhelmed the supporters of the bill, +which was rejected by a vote of 138 to 51.[1389] It was ominous, +however, that the South stood almost solid against the court and +Nationalism. + + +FOOTNOTES: + +[1269] Marshall to his wife, March 12, 1826, MS. + +[1270] Nevertheless he watched the course of politics closely. For +instance: immediately after the House had elected John Quincy Adams to +the Presidency, Marshall writes his brother a letter full of political +gossip. He is surprised that Adams was chosen on the first ballot; many +think Kremer's letter attacking Clay caused this unexpectedly quick +decision, since it "was & is thought a sheer calumny; & the resentment +of Clay's friends probably determined some of the western members who +were hesitating. It is supposed to have had some influence elsewhere. +The vote of New York was not decided five minutes before the ballots +were taken." + +Marshall tells his brother about Cabinet rumors--Crawford has refused +the Treasury and Clay has been offered the office of Secretary of State. +"It is meer [_sic_] common rumor" that Clay will accept. "Mr. Adams will +undoubtedly wish to strengthen himself in the west," and Clay is strong +in that section unless Kremer's letter has weakened him. The Chief +Justice at first thought it had, but "on reflection" doubts whether it +will "make any difference." (Marshall to his brother, Feb. 14, 1825, +MS.) Marshall here refers to the letter of George Kremer, a +Representative in Congress from Pennsylvania. Kremer wrote an anonymous +letter to the _Columbian Observer_ in which he asserted that Clay had +agreed to deliver votes to Adams as the price of Clay's appointment to +the office of Secretary of State. After much bluster, Kremer admitted +that he had no evidence whatever to support his charge; yet his +accusation permanently besmirched Clay's reputation. (For an account of +the Kremer incident see Sargent, I, 67-74, 123-24.) + +Out of the Kremer letter grew a distrust of Clay which he never really +lived down. Some time later, John Randolph seized an opportunity to call +the relation between President Adams and his Secretary of State "the +coalition of Blifil and Black George--the combination, unheard of till +then, of the Puritan with the blackleg." The bloodless, but not the less +real duel, that followed, ended this quarrel, though the unjust charges +never quite died out. (Schurz: _Henry Clay_, I, 273-74.) + +[1271] Baltimore _Marylander_, March 22, 1828. + +[1272] _Enquirer_, April 4, 1828. + +[1273] Meaning Jackson. Clay to Marshall, April 8, 1828, MS. + +[1274] Marshall to Story, May 1, 1828, _Proceedings, Mass. Hist. Soc._ +2d Series, XIV, 336-37. + +[1275] See chap. I of this volume. + +[1276] Thomas, whose wife died Feb. 2, 1829. (Paxton, 92.) + +[1277] Marshall to his wife, March 5 [1829], MS. + +[1278] Same to same, Feb. 1, 1829, MS. + +[1279] Jacquelin B. Harvie, who married Marshall's daughter, Mary. + +[1280] Marshall to his wife, March 5 [1829], MS. + +[1281] Marshall to Story, June 11, 1829, _Proceedings, Mass. Hist. Soc._ +2d Series, XIV, 338-39. + +[1282] See vol. I, 216-17, of this work. + +[1283] Jefferson to Kercheval, July 12, 1816, _Works_: Ford, XII, 3-15. + +[1284] Same to same, Oct. 8, 1816, _ib._ footnote to 17. + +[1285] At the time of the convention the eastern part of the State paid, +on the average, more than three times as much in taxes per acre as the +west. The extremes were startling--the trans-Alleghany section (West +Virginia) paid only 92 cents for every $8.43 paid by the Tidewater. +(_Proceedings and Debates of the Virginia State Convention of 1829-30_, +214, 258, 660-61.) + +[1286] Marshall to Story, July 3, 1829, _Proceedings, Mass. Hist. Soc._ +2d Series, XIV, 340-41. + +[1287] Pickering to Marshall, Dec. 26, 1828, Pickering MSS. Mass. Hist. +Soc.; see also Story, I, 386-96. + +[1288] Marshall to Mercer, April 7, 1827, Chamberlain MSS. Boston Pub. +Lib. + +[1289] Lincoln to Greeley, Aug. 22, 1862, _Complete Works of Abraham +Lincoln_: Nicolay and Hay, II, 227-28. + +[1290] Marshall to Pickering, March 20, 1826, _Proceedings, Mass. Hist. +Soc._ 2d Series, XIV, 321. + +[1291] _Fifteenth Annual Report, Proceedings, American Colonization +Society._ The abolitionists, later, mercilessly attacked the +Colonization Society. (See Wilson: _Rise of the Slave Power_, I, 208 _et +seq._) + +[1292] _Fourteenth Annual Report, Proceedings, American Colonization +Society._ + +[1293] His wife's illness. She died soon afterwards. See _infra_, +524-25. + +[1294] Marshall to Gurley, Dec. 14, 1831, _Fifteenth Annual Report, +Proceedings, American Colonization Society_, pp. vi-viii. + +In a letter even less emotional than Marshall's, Madison favored the +same plan. (_Ib._ pp. v, vi.) Lafayette, with his unfailing floridity, +says that he is "proud ... of the honor of being one of the Vice +Presidents of the Society," and that "the progressing state of our +Liberia establishment is ... a source of enjoyment, and the most lively +interest" to him. (_Ib._ p. v.) + +At the time of his death, Marshall was President of the Virginia branch +of the Society, and his ancient enemy, John Tyler, who succeeded him in +that office, paid a remarkable tribute to the goodness and greatness of +the man he had so long opposed. (Tyler: _Tyler_, I, 567-68.) + +[1295] 10 Wheaton, 114. + +[1296] _Ib._ 115. Marshall delivered this opinion March 15, 1825. + +[1297] _Ib._ 114. + +[1298] _Ib._ 118-19. + +[1299] _Ib._ 122-23. + +[1300] 2 Peters, 150-56. + +[1301] Marshall to Greenhow, Oct. 17, 1809, MSS. "Judges and Eminent +Lawyers," Mass. Hist. Soc. + +[1302] See _supra_, 209-18, of this volume. + +[1303] 12 Wheaton, 214 _et seq._ John Saunders, a citizen of Kentucky, +sued George M. Ogden, a citizen of Louisiana, on bills of exchange which +Ogden, then a citizen of New York, had accepted in 1806, but which were +protested for non-payment. The defendant pleaded a discharge granted by +a New York court under the insolvent law of that State enacted in 1801. +(_Ib._) On the manuscript records of the Supreme Court, Saunders is +spelled _Sanders_. After the case was filed, the death of Ogden was +suggested, and his executors, Charles Harrod and Francis B. Ogden, were +substituted. + +[1304] Washington, Johnson, Thompson, and Trimble each delivered long +opinions supporting this view. (12 Wheaton, 254-331, 358-369.) + +[1305] _Ib._ 334. + +[1306] _Ib._ 335. + +[1307] _Ib._ 337. + +[1308] _Ib._ 356. + +[1309] _Ib._ 357. + +[1310] Story and Duval concurred with Marshall. + +[1311] 12 Wheaton, 65-90. + +[1312] Webster to Biddle, Feb. 20, 1827, _Writings and Speeches of +Webster_: (Nat. ed.) XVI, 140. + +[1313] 12 Wheaton, 90-116. + +[1314] Grigsby: _Virginia Convention of 1829-30_; and see Ambler: +_Sectionalism in Virginia_, 145. Chapter V of Professor Ambler's book is +devoted exclusively to the convention. Also see preface to _Debates Va. +Conv._ iii; and see Dodd, in _American Journal of Sociology_, XXVI, no. +6, 735 _et seq._; and Anderson, 229-36. + +[1315] _Debates, Va. Conv._ 23. + +[1316] _Ib._ 25. + +[1317] _Ib._ 25-31. + +[1318] Statement of Marshall. (_Ib._ 872.) + +[1319] _Debates, Va. Conv._ 33. + +[1320] See _supra_, 146, 147. + +[1321] See Giles's speech, _Debates, Va. Conv._ 604-05. + +[1322] See Ambler: _Sectionalism in Virginia_, 139. + +[1323] See vol. II, 62-69, of this work. + +[1324] Serious abuses sprang up, however. In the convention, William +Naylor of Hampshire County charged that the office of sheriff was sold +to the highest bidder, sometimes at public auction. (_Debates, Va. +Conv._ 486; and see Anderson, 229.) + +[1325] See Marshall's defense of the County Court system, _infra_, 491. + +[1326] See vol. I, 302, of this work. + +[1327] For example, Thomas R. Joynes of Accomack County, who earnestly +opposed Marshall in the Judiciary debate, said that no man felt "more +respect" than he for Marshall's opinions which are justly esteemed "not +only in this Convention, but throughout the United States." (_Debates, +Va. Conv._ 505.) Randolph spoke of "the very great weight" which +Marshall had in the convention, in Virginia, and throughout the Nation. +(_Ib._ 500.) Thomas M. Bayly of Accomack County, while utterly +disagreeing with the Chief Justice on the County Court system, declared +that Marshall, "as a lawyer and Judge, is without a rival." (_Ib._ 510.) +Richard H. Henderson of Loudoun County called the Chief Justice his +"political father" whose lessons he delighted to follow, and upon whose +"wisdom, ... virtue, ... prudence" he implicitly relied. (Henderson's +statement as repeated by Benjamin W. Leigh, _ib._ 544.) Charles F. +Mercer of the same county "expressed toward Judge Marshall a filial +respect and veneration not surpassed by the ties which had bound him to +a natural parent." (_Ib._ 563.) Such are examples of the expressions +toward Marshall throughout the prolonged sessions of the convention. + +[1328] See vol. III, chap, II, of this work. + +[1329] _Debates, Va. Conv._ 871-72. + +[1330] _Ib._ 872-74. + +[1331] _Debates, Va. Conv._ 873. + +[1332] See _infra_, 493-501. + +[1333] Accordingly the following provision was inserted into the +Constitution: "No law abolishing any court shall be construed to deprive +a Judge thereof of his office, unless two-thirds of the members of each +House present concur in the passing thereof; but the Legislature may +assign other Judicial duties to the Judges of courts abolished by any +law enacted by less than two-thirds of the members of each House +present." (Article V, Section 2, Constitution of Virginia, 1830.) + +[1334] _Debates, Va. Conv._ 505. + +[1335] _Debates, Va. Conv._ 509. + +[1336] _Ib._ 524, 530, 531, 533, 534. + +[1337] _Ib._ 604-05. + +[1338] _Ib._ 605. The provision as it finally appeared in the +constitution was that these "appointments shall be made by the Governor, +on the recommendation of the respective County Courts." (Article V, +Section 7, Constitution of Virginia, 1830.) + +[1339] _Debates, Va. Conv._ 615-17. + +[1340] See vol. III, chap. II, of this work. + +[1341] _Debates, Va. Conv._ 619. + +[1342] _Ib._ 618-19. + +[1343] _Ib._ 726. + +[1344] See vol. III, chap. II, of this work. + +[1345] _Debates, Va. Conv._ 731. + +[1346] _Debates, Va. Conv._ 726-27. + +[1347] _Debates, Va. Conv._ 727-29. + +[1348] _Debates, Va. Conv._ 729-30. + +[1349] See especially the speech of Benjamin Watkins Leigh, _ib._ +733-37. + +[1350] See _ib._ for ayes and noes, 740, 741, 742, 744, 748. + +[1351] _Ib._ 764. + +[1352] _Debates, Va. Conv._ 767. + +[1353] _Ib._ 880. + +[1354] Compare Marshall's report (_ib._ 33) with Article V of the +constitution (_ib._ 901-02; and see _supra_, 491, note 2.) + +[1355] Contrast Marshall's resolutions (_Debates, Va. Conv._ 39-40), +which expressed the conservative stand, with those of William H. +Fitzhugh of Fairfax County (_ib._ 41-42), of Samuel Clayton of Campbell +County (_ib._ 42), of Charles S. Morgan of Monongalia (_ib._ 43-44), and +of Alexander Campbell of Brooke County (_ib._ 45-46), which state the +views of the radicals. + +[1356] See, for instance, the speech of John R. Cooke of Frederick +County for the radicals (_Debates, Va. Conv._ 54-65), of Abel P. Upshur +of Northampton for the conservatives (_ib._ 65-79), of Philip Doddridge +of Brooke County for the radicals (_ib._ 79-89), of Philip P. Barbour of +Orange County for the conservatives (_ib._ 90-98), and especially the +speeches of Benjamin Watkins Leigh for the conservatives (_ib._ 151-74, +544-48). Indeed, the student cannot well afford to omit any one of the +addresses in this remarkable contest. + +[1357] It is at this point that we see the reason for Jefferson's alarm +thirteen years before the convention was called. (_See supra_, 469.) + +[1358] _Debates, Va. Conv._ 497-500. + +[1359] _Debates, Va. Conv._ 561-62. + +[1360] Constitution of Virginia, 1830, Article III, Sections 1 and 2. + +[1361] _Ib._ Article III, Section 14. + +[1362] See _supra_, 469. + +[1363] See next chapter. + +[1364] March 12, 1830. + +[1365] 4 Peters, 432. + +[1366] 4 Peters, 432. + +[1367] _Ib._ 433. + +[1368] _Ib._ 434. + +[1369] 4 Peters, 434-36. + +[1370] _Ib._ 437. + +[1371] _Ib._ 420. + +[1372] _Ib._ 438. + +[1373] See 552-58. + +[1374] 4 Peters, 438-44. + +[1375] _Ib._ 445-50. + +[1376] _Ib._ 458. + +[1377] 4 Peters, 464. + +[1378] Story to Ticknor, Jan. 22, 1831, Story, II, 49. Nevertheless +Story did not despair. "It is now whispered, that the demonstrations of +public opinion are so strong, that the majority [of the Judiciary +Committee] will conclude not to present their report." (_Ib._) + +[1379] Marshall to Story, Oct. 15, 1830, _Proceedings, Mass. Hist. Soc._ +2d Series, XIV, 342. + +[1380] See _infra_, 584. + +[1381] _Debates_, 21st Cong. 2d Sess. 532. + +[1382] _Ib._ 535. + +[1383] _Ib._ 534. + +[1384] _Ib._ 659. + +[1385] _Ib._ 665. + +[1386] _Debates_, 21st Cong. 2d Sess. 620-21. + +[1387] _Ib._ 731, 748; and see vol. I, 454-55, of this work. + +[1388] _Debates_, 21st Cong. 2d Sess. 739. + +[1389] _Debates_, 21st Cong. 2d Sess. 542. + +This was the last formal attempt, but one, made in Congress during +Marshall's lifetime, to impair the efficiency of National courts. The +final attack was made by Joseph Lecompte, a Representative from +Kentucky, who on January 27, 1832, offered a resolution instructing the +Judiciary Committee to "inquire into the expediency of amending the +constitution ... so that the judges of the Supreme Court, and of the +inferior courts, shall hold their offices for a limited term of years." +On February 24, the House, by a vote of 141 to 27, refused to consider +Lecompte's resolution, ignoring his plea to be allowed to explain it. +(_Debates_, 22d Cong. 1st Sess. 1856-57.) So summary and brusque--almost +contemptuous--was the rejection of Lecompte's proposal, as almost to +suggest that personal feeling was an element in the action taken by the +House. + + + + +CHAPTER X + +THE FINAL CONFLICT + + Liberty and Union, now and forever, one and inseparable. (Daniel + Webster.) + + Fellow citizens, the die is now cast. Prepare for the crisis and + meet it as becomes men and freemen. (South Carolina Ordinance of + Nullification.) + + The Union has been prolonged thus far by miracles. I fear they + cannot continue. (Marshall.) + + It is time to be old, + To take in sail. (Emerson.) + + +The last years of Marshall's life were clouded with sadness, almost +despair. His health failed; his wife died; the Supreme Court was +successfully defied; his greatest opinion was repudiated and denounced +by a strong and popular President; his associates on the Bench were +departing from some of his most cherished views; and the trend of public +events convinced him that his labor to construct an enduring nation, to +create institutions of orderly freedom, to introduce stability and +system into democracy, had been in vain. + +Yet, even in this unhappy period, there were hours of triumph for John +Marshall. He heard his doctrine of Nationalism championed by Daniel +Webster, who, in one of the greatest debates of history, used Marshall's +arguments and almost his very words; he beheld the militant assertion of +the same principle by Andrew Jackson, who, in this instance, also +employed Marshall's reasoning and method of statement; and he witnessed +the sudden flowering of public appreciation of his character and +services. + +During the spring of 1831, Marshall found himself, for the first time +in his life, suffering from acute pain. His Richmond physician could +give him no relief; and he became so despondent that he determined to +resign immediately after the ensuing Presidential election, in case +Jackson should be defeated, an event which many then thought probable. +In a letter about the house at which the members of the Supreme Court +were to board during the next term, Marshall tells Story of his purpose: +"Being ... a bird of passage, whose continuance with you cannot be long, +I did not chuse to permit my convenience or my wishes to weigh a feather +in the permanent arrangements.... But in addition, I felt serious +doubts, although I did not mention them, whether I should be with you at +the next term. + +"What I am about to say is, of course, in perfect confidence which I +would not breathe to any other person whatever. I had unaccountably +calculated on the election of P[residen]t taking place next fall, and +had determined to make my continuance in office another year dependent +on that event. + +"You know how much importance I attach to the character of the person +who is to succeed me, and calculate the influence which probabilities on +that subject would have on my continuance in office. This, however, is a +matter of great delicacy on which I cannot and do not speak. + +"My erroneous calculation of the time of the election was corrected as +soon as the pressure of official duty was removed from my mind, and I +had nearly decided on my course, but recent events produce such real +uncertainty respecting the future as to create doubts whether I ought +not to await the same chances in the fall of 32 which I had intended to +await in the fall of 31."[1390] + +Marshall steadily became worse, and in September he went to Philadelphia +to consult the celebrated physician and surgeon, Dr. Philip Syng +Physick, who at once perceived that the Chief Justice was suffering from +stone in the bladder. His affliction could be relieved only by the +painful and delicate operation of lithotomy, which Dr. Physick had +introduced in America. From his sick-room Marshall writes Story of his +condition during the previous five months, and adds that he looks "with +impatience for the operation."[1391] He is still concerned about the +court's boarding-place and again refers to his intention of leaving the +Bench: "In the course of the summer ... I found myself unequal to the +effective consideration of any subject, and had determined to resign at +the close of the year. This determination, however, I kept to myself, +being determined to remain master of my own conduct." Story had answered +Marshall's letter of June 26, evidently protesting against the thought +of the Chief Justice giving up his office. + +Marshall replies: "On the most interesting part of your letter I have +felt, and still feel, great difficulty. You understand my general +sentiments on that subject as well as I do myself. I am most earnestly +attached to the character of the department, and to the wishes and +convenience of those with whom it has been my pride and my happiness to +be associated for so many years. I cannot be insensible to the gloom +which lours over us. I have a repugnance to abandoning you under such +circumstances which is almost invincible. But the solemn convictions of +my judgement sustained by some pride of character admonish me not to +hazard the disgrace of continuing in office a mere inefficient +pageant."[1392] + +Had Adams been reëlected in 1828, there can be no doubt that Marshall +would have resigned during that Administration; and it is equally +certain that, if Jackson had been defeated in 1832, the Chief Justice +would have retired immediately. The Democratic success in the election +of that year determined him to hold on in an effort to keep the Supreme +Court, as long as possible, unsubmerged by the rising tide of radical +Localism. Perhaps he also clung to a desperate hope that, during his +lifetime, a political reaction would occur and a conservative President +be chosen who could appoint his successor. + +When Marshall arrived at Philadelphia, the bar of that city wished to +give him a dinner, and, by way of invitation, adopted remarkable +resolutions expressing their grateful praise and affectionate +admiration. The afflicted Chief Justice, deeply touched, declined in a +letter of singular grace and dignity: "It is impossible for me ... to do +justice to the feelings with which I receive your very flattering +address; ... to have performed the official duties assigned to me by my +country in such a manner as to acquire the approbation of" the +Philadelphia bar, "affords me the highest gratification of which I am +capable, and is more than an ample reward for the labor which those +duties impose." Marshall's greatest satisfaction, he says, is that he +and his associates on the Supreme Bench "have never sought to enlarge +the judicial power beyond its proper bounds, nor feared to carry it to +the fullest extent that duty required."[1393] The members of the bar +then begged the Chief Justice to receive them "in a body" at "the United +States Courtroom"; and also to "permit his portrait to be taken" by "an +eminent artist of this city."[1394] + +With anxiety, but calmness and even good humor, Marshall awaited the +operation. Just before he went to the surgeon's table, Dr. Jacob +Randolph, who assisted Dr. Physick, found Marshall eating a hearty +breakfast. Notwithstanding the pain he suffered, the Chief Justice +laughingly explained that, since it might be the last meal he ever would +enjoy, he had determined to make the most of it. He understood that the +chances of surviving the operation were against him, but he was eager to +take them, since he would rather die than continue to suffer the agony +he had been enduring. + +While the long and excruciating operation went on, by which more than a +thousand calculi were removed, Marshall was placid, "scarcely uttering +a murmur throughout the whole procedure." The physicians ascribed his +recovery "in a great degree ... to his extraordinary self possession, +and to the calm and philosophical views which he took of his +case."[1395] + +Marshall writes Story about his experience and the results of the +treatment, saying that he must take medicine "continually to prevent new +formations," and adding, with humorous melancholy, that he "must submit +too to a severe and most unsociable regimen." He cautions Story to care +for his own health, which Judge Peters had told him was bad. "Without +your vigorous and powerful co-operation I should be in despair, and +think the 'ship must be given up.'"[1396] + +On learning of his improved condition, Story writes Peters from +Cambridge: "This seems to me a special interposition of Providence in +favor of the Constitution.... He is beloved and reverenced here beyond +all measure, though not beyond his merits. Next to Washington he stands +the idol of all good men."[1397] + +While on this distressing visit to Philadelphia, Marshall writes his +wife two letters--the last letters to her of which any originals or +copies can be found. "I anticipate with a pleasure which I know you will +share the time when I may sit by your side by our tranquil fire side & +enjoy the happiness of your society without inflicting on you the pain +of witnessing my suffering.... I am treated with the most flattering +attentions in Philadelphia. They give me pain, the more pain as the +necessity of declining many of them may be ascribed to a want of +sensibility."[1398] + +His recovery assured, Marshall again writes his wife: "I have at length +risen from my bed and am able to hold a pen. The most delightful use I +can make of it is to tell you that I am getting well ... from the +painful disease with which I have been so long affected.... Nothing +delights me so much as to hear from my friends and especially from you. +How much was I gratified at the line from your own hand in Mary's +letter.[1399]... I am much obliged by your offer to lend me money.[1400] +I hope I shall not need it but can not as yet speak positively as my +stay has been longer and my expenses greater than I had anticipated on +leaving home. Should I use any part of it, you may be assured it will be +replaced on my return. But this is a subject on which I know you feel no +solicitude.... God bless you my dearest Polly love to all our friends. +Ever your most affectionate J. Marshall."[1401] + +On December 25, 1831, his "dearest Polly" died. The previous day, she +hung about his neck a locket containing a wisp of her hair. For the +remainder of his life he wore this memento, never parting with it night +or day.[1402] Her weakness, physical and mental, which prevailed +throughout practically the whole of their married life, inspired in +Marshall a chivalric adoration. On the morning of the first anniversary +of her death, Story chanced to go into Marshall's room and "found him in +tears. He had just finished writing out for me some lines of General +Burgoyne, of which he spoke to me last evening as eminently beautiful +and affecting.... I saw at once that he had been shedding tears over the +memory of his own wife, and he has said to me several times during the +term, that the moment he relaxes from business he feels exceedingly +depressed, and rarely goes through a night without weeping over his +departed wife.... I think he is the most extraordinary man I ever saw, +for the depth and tenderness of his feelings."[1403] + +But Marshall had also written something which he did not show even to +Story--a tribute to his wife: + +"This day of joy and festivity to the whole Christian world is, to my +sad heart, the anniversary of the keenest affliction which humanity can +sustain. While all around is gladness, my mind dwells on the silent +tomb, and cherishes the remembrance of the beloved object which it +contains. + +"On the 25th of December, 1831, it was the will of Heaven to take to +itself the companion who had sweetened the choicest part of my life, had +rendered toil a pleasure, had partaken of all my feelings, and was +enthroned in the inmost recess of my heart. Never can I cease to feel +the loss and to deplore it. Grief for her is too sacred ever to be +profaned on this day, which shall be, during my existence, marked by a +recollection of her virtues. + +"On the 3d of January, 1783, I was united by the holiest bonds to the +woman I adored. From the moment of our union to that of our separation, +I never ceased to thank Heaven for this its best gift. Not a moment +passed in which I did not consider her as a blessing from which the +chief happiness of my life was derived. This never-dying sentiment, +originating in love, was cherished by a long and close observation of +as amiable and estimable qualities as ever adorned the female bosom. To +a person which in youth was very attractive, to manners uncommonly +pleasing, she added a fine understanding, and the sweetest temper which +can accompany a just and modest sense of what was due to herself. + +"She was educated with a profound reverence for religion, which she +preserved to her last moments. This sentiment, among her earliest and +deepest impressions, gave a colouring to her whole life. Hers was the +religion taught by the Saviour of man. She was a firm believer in the +faith inculcated by the Church (Episcopal) in which she was bred. + +"I have lost her, and with her have lost the solace of my life! Yet she +remains still the companion of my retired hours, still occupies my +inmost bosom. When alone and unemployed, my mind still recurs to her. +More than a thousand times since the 25th of December, 1831, have I +repeated to myself the beautiful lines written by General Burgoyne, +under a similar affliction, substituting 'Mary' for 'Anna': + + "'Encompass'd in an angel's frame, + An angel's virtues lay: + Too soon did Heaven assert its claim + And take its own away! + My Mary's worth, my Mary's charms, + Can never more return! + What now shall fill these widow'd arms? + Ah, me! my Mary's urn! + Ah, me! ah, me! my Mary's urn!'"[1404] + +After his wife's death, Marshall arranged to live at "Leeds Manor," +Fauquier County, a large house on part of the Fairfax estate which he +had given to his son, James Keith Marshall. A room, with very thick +walls to keep out the noise of his son's many children, was built for +him, adjoining the main dwelling. Here he brought his library, papers, +and many personal belongings. His other sons and their families lived +not far away; "Leeds Manor" was in the heart of the country where he had +grown to early manhood; and there he expected to spend his few remaining +years.[1405] He could not, however, tear himself from his Richmond home, +where he continued to live most of the time until his death.[1406] + +When fully recovered from his operation, Marshall seemed to acquire +fresh strength. He "is in excellent health, never better, and as firm +and robust in mind as in body," Story informs Charles Sumner.[1407] + +The Chief Justice was, however, profoundly depressed. The course that +President Jackson was then pursuing--his attitude toward the Supreme +Court in the Georgia controversy,[1408] his arbitrary and violent rule, +his hostility to the second Bank of the United States--alarmed and +distressed Marshall. + +[Illustration: "_Leeds Manor_" +_The principal house in the Fairfax purchase and the home of Marshall's +son, James Keith Marshall, where he expected to spend his declining +years._] + +The Bank had finally justified the brightest predictions of its friends. +Everywhere in the country its notes were as good as gold, while abroad +they were often above par.[1409] Its stock was owned in every nation and +widely distributed in America.[1410] Up to the time when Jackson began +his warfare upon the Bank, the financial management of Nicholas Biddle +had been as brilliant as it was sound.[1411] + +But popular hostility to the Bank had never ceased. In addition to the +old animosity toward any central institution of finance, charges were +made that directors of certain branches of the Bank had used their power +to interfere in politics. As implacable as they were unjust were the +assaults made by Democratic politicians upon Jeremiah Mason, director of +the branch at Portsmouth, New Hampshire. Had the Bank consented to +Mason's removal, it is possible that Jackson's warfare on it would not +have been prosecuted.[1412] + +The Bank's charter was to expire in 1836. In his first annual Message to +Congress the President briefly called attention to the question of +rechartering the institution. The constitutionality of the Bank Act was +doubtful at best, he intimated, and the Bank certainly had not +established a sound and uniform currency.[1413] In his next Message, a +year later, Jackson repeated more strongly his attack upon the +Bank.[1414] + +Two years afterwards, on the eve of the Presidential campaign of 1832, +the friends of the Bank in Congress passed, by heavy majorities, a bill +extending the charter for fifteen years after March 3, 1836, the date of +its expiration.[1415] The principal supporters of this measure were Clay +and Webster and, indeed, most of the weighty men in the National +Legislature. But they were enemies of Jackson, and he looked upon the +rechartering of the Bank as a personal affront. + +On July 4, 1832, the bill was sent to the President. Six days later he +returned it with his veto. Jackson's veto message was as able as it was +cunning. Parts of it were demagogic appeals to popular passion; but the +heart of it was an attack upon Marshall's opinions in M'Culloch _vs._ +Maryland and Osborn _vs._ The Bank. + +The Bank is a monopoly, its stockholders and directors a "privileged +order"; worse still, the institution is rapidly passing into the hands +of aliens--"already is almost a third of the stock in foreign hands." If +we must have a bank, let it be "_purely American_." This aristocratic, +monopolistic, un-American concern exists by the authority of an +unconstitutional act of Congress. Even worse is the rechartering act +which he now vetoed. + +The decision of the Supreme Court in the Bank cases, settled nothing, +said Jackson. Marshall's opinions were, for the most part, erroneous and +"ought not to control the co-ordinate authorities of this Government. +The Congress, the Executive, and the Court must each for itself be +guided by its own opinion of the Constitution.... It is as much the +duty of the House of Representatives, of the Senate, and of the +President to decide upon the constitutionality of any bill or resolution +which may be presented to them for passage or approval as it is of the +supreme judges when it may be brought before them for judicial decision. + +"The opinion of the judges has no more authority over Congress than the +opinion of Congress has over the judges, and on that point the President +is independent of both. The authority of the Supreme Court must not, +therefore, be permitted to control the Congress or the Executive when +acting in their legislative capacities, but to have only such influence +as the force of their reasoning may deserve."[1416] + +But, says Jackson, the court did not decide that "all features of this +corporation are compatible with the Constitution." He quotes--and puts +in italics--Marshall's statement that "_where the law is not prohibited +and is really calculated to effect any of the objects intrusted to the +Government, to undertake here to inquire into the degree of its +necessity would be to pass the line which circumscribes the judicial +department and to tread on legislative ground_." This language, insists +Jackson, means that "it is the exclusive province of Congress and the +President to decide whether the particular features of this act are +_necessary_ and _proper_ ... and therefore constitutional, or +_unnecessary_ and _improper_, and therefore unconstitutional."[1417] +Thereupon Jackson points out what he considers to be the defects of the +bill. + +Congress has no power to "grant exclusive privileges or monopolies," +except in the District of Columbia and in the matter of patents and +copyrights. "Every act of Congress, therefore, which attempts, by grants +of monopolies or sale of exclusive privileges for a limited time, or a +time without limit, to restrict or extinguish its own discretion in the +choice of means to execute its delegated powers, is equivalent to a +legislative amendment of the Constitution, and palpably +unconstitutional."[1418] Jackson fiercely attacks Marshall's opinion +that the States cannot tax the National Bank and its branches. + +The whole message is able, adroit, and, on its face, plainly intended as +a campaign document.[1419] A shrewd appeal is made to the State banks. +Popular jealousy and suspicion of wealth and power are skillfully played +upon: "The rich and powerful" always use governments for "their selfish +purposes." When laws are passed "to grant titles, gratuities, and +exclusive privileges, to make the rich richer and the potent more +powerful, the humble members of society--the farmers, mechanics, and +laborers--who have neither the time nor the means of securing like +favors to themselves, have a right to complain of the injustice of their +Government. + +"There are no necessary evils in government," says Jackson. "Its evils +exist only in its abuses. If it would confine itself to equal +protection, and, as Heaven does its rains, shower its favors alike on +the high and the low, the rich and the poor, it would be an unqualified +blessing"--thus he runs on to his conclusion.[1420] + +The masses of the people, particularly those of the South, responded +with wild fervor to the President's assault upon the citadel of the +"money power." John Marshall, the defender of special privilege, had +said that the Bank law was protected by the Constitution; but Andrew +Jackson, the champion of the common people, declared that it was +prohibited by the Constitution. Hats in the air, then, and loud cheers +for the hero who had dared to attack and to overcome this financial +monster as he had fought and beaten the invading British! + +Marshall was infinitely disgusted. He informs Story of Virginia's +applause of Jackson's veto: "We are up to the chin in politics. Virginia +was always insane enough to be opposed to the Bank of The United States, +and therefore hurras for the veto. But we are a little doubtful how it +may work in Pennsylvania. It is not difficult to account for the part +New York may take. She has sagacity enough to see her interest in +putting down the present bank. Her mercantile position gives her a +controul, a commanding controul, over the currency and the exchanges of +the country, if there be no Bank of The United States. Going for herself +she may approve this policy; but Virginia ought not to drudge for her +benefit."[1421] + +Jackson did not sign the bill for the improvement of rivers and harbors, +passed at the previous session of Congress, because, as he said, he had +not "sufficient time ... to examine it before the adjournment."[1422] +Everybody took the withholding of his signature as a veto.[1423] This +bill included a feasible project for making the Virginia Capital +accessible to seagoing vessels. Even this action of the President was +applauded by Virginians: + +"We show our wisdom most strikingly in approving the veto on the harbor +bill also," Marshall writes Story. "That bill contained an appropriation +intended to make Richmond a seaport, which she is not at present, for +large vessels fit to cross the Atlantic. The appropriation was whittled +down in the House of Representatives to almost nothing.... Yet we wished +the appropriation because we were confident that Congress when correctly +informed, would add the necessary sum. This too is vetoed; and for this +too our sagacious politicians are thankful. We seem to think it the +summit of human wisdom, or rather of American patriotism, to preserve +our poverty."[1424] + +During the Presidential campaign of 1832, Marshall all but despaired of +the future of the Republic. The autocracy of Jackson's reign; the +popular enthusiasm which greeted his wildest departures from established +usage and orderly government; the state of the public mind, indicated +everywhere by the encouragement of those whom Marshall believed to be +theatrical and adventurous demagogues--all these circumstances perturbed +and saddened him. + +And for the time being, his fears were wholly justified. Triumphantly +reëlected, Jackson pursued the Bank relentlessly. Finally he ordered +that the Government funds should no longer be deposited in that hated +institution. Although that desperate act brought disaster on business +throughout the land, it was acclaimed by the multitude. In alarm and +despair, Marshall writes Story: "We [Virginians] are insane on the +subject of the Bank. Its friends, who are not numerous, dare not, a few +excepted, to avow themselves."[1425] + +But the sudden increase and aggressiveness of disunion sentiment +oppressed Marshall more heavily than any other public circumstance of +his last years. The immediate occasion for the recrudescence of +Localism was the Tariff. Since the Tariff of 1816 the South had been +discontented with the protection afforded the manufacturers of the North +and East; and had made loud outcry against the protective Tariff of +1824. The Southern people felt that their interests were sacrificed for +the benefit of the manufacturing sections; they believed that all that +they produced had to be sold in a cheap, unprotected market, and all +that they purchased had to be bought in a dear, protected market; they +were convinced that the protective tariff system, and, indeed, the whole +Nationalist policy, meant the ruin of the South. + +Moreover, they began to see that the power that could enact a protective +tariff, control commerce, make internal improvements, could also control +slavery--perhaps abolish it.[1426] Certainly that was "the spirit" of +Marshall's construction of the Constitution, they said. "Sir," exclaimed +Robert S. Garnett of Virginia during the debate in the House on the +Tariff of 1824, "we must look very little to consequences if we do not +perceive in the spirit of this construction, combined with the political +fanaticism of the period, reason to anticipate, at no distant day, the +usurpation, on the part of Congress, of the right to legislate upon a +subject which, if you once touch, will inevitably throw this country +into revolution--I mean that of slavery.... Can whole nations be +mistaken? When I speak of nations, I mean Virginia, the Carolinas, and +other great Southern commonwealths."[1427] + +John Carter of South Carolina warned the House not to pass a law "which +would, as to this portion of the Union, be registered on our statute +books as a dead letter."[1428] James Hamilton, Jr., of the same State, +afterwards a Nullification Governor, asked: "Is it nothing to weaken the +attachment of one section of this confederacy to the bond of Union?... +Is it nothing to sow the seeds of incurable alienation?"[1429] + +The Tariff of 1828 alarmed and angered the Southern people to the point +of frenzy. "The interests of the South have been ... shamefully +sacrificed!" cried Hayne in the Senate. "Her feelings have been +disregarded; her wishes slighted; her honest pride insulted!"[1430] So +enraged were Southern Representatives that, for the most part, they +declined to speak. Hamilton expressed their sentiments. He disdained to +enter into the "chaffering" about the details of the bill.[1431] "You +are coercing us to inquire, whether we can afford to belong to a +confederacy in which severe restrictions, tending to an ultimate +prohibition of foreign commerce, is its established policy.[1432]... Is +it ... treason, sir, to tell you that there is a condition of public +feeling throughout the southern part of this confederacy, which no +prudent man will treat with contempt, and no man who loves his country +will not desire to see allayed?[1433]... I trust, sir, that this cup may +pass from us.... But, if an adverse destiny should be ours--if we are +doomed to drink 'the waters of bitterness,' in their utmost woe, ... +South Carolina will be found on the side of those principles, standing +firmly, on the very ground which is canonized by that revolution which +has made us what we are, and imbued us with the spirit of a free and +sovereign people."[1434] + +Retaliation, even forcible resistance, was talked throughout the South +when this "Tariff of Abominations," as the Act of 1828 was called, +became a law. The feeling in South Carolina especially ran high. Some of +her ablest men proposed that the State should tax all articles[1435] +protected by the tariff. Pledges were made at public meetings not to buy +protected goods manufactured in the North. At the largest gathering in +the history of the State, resolutions were passed demanding that all +trade with tariff States be stopped.[1436] Nullification was +proposed.[1437] The people wildly acclaimed such a method of righting +their wrongs, and Calhoun gave to the world his famous "Exposition," a +treatise based on the Jeffersonian doctrine of thirty years +previous.[1438] + +A little more than a year after the passage of the Tariff of 1824, and +the publication of Marshall's opinions in Osborn _vs._ The Bank and +Gibbons _vs._ Ogden, Jefferson had written Giles of the "encroachments" +by the National Government, particularly by the Supreme Court and by +Congress. How should these invasions of the rights of the States be +checked? "Reason and argument? You might as well reason and argue with +the marble columns encircling them [Congress and the Supreme Court].... +Are we then _to stand to our arms_?... No. That must be the last +resource." But the States should denounce the acts of usurpation "until +their accumulation shall overweigh that of separation."[1439] +Jefferson's letter, written only six months before his death, was made +public just as the tide of belligerent Nullification was beginning to +rise throughout the South.[1440] + +At the same time defiance of National authority came also from Georgia, +the cause being as distinct from the tariff as the principle of +resistance was identical. This cause was the forcible seizure, by +Georgia, of the lands of the Cherokee Indians and the action of the +Supreme Court in cases growing out of Georgia's policy and the execution +of it. + +By numerous treaties between the National Government and the Cherokee +Nation, the Indians were guaranteed protection in the enjoyment of their +lands. When Georgia, in 1802, ceded her claim to that vast territory +stretching westward to the Mississippi, it had been carefully provided +that the lands of the Indians should be preserved from seizure or entry +without their consent, and that their rights should be defended from +invasion or disturbance. The Indian titles were to be extinguished, +however, as soon as this could be done peaceably, and without inordinate +expense. + +In 1827, these Georgia Cherokees, who were highly civilized, adopted a +constitution, set up a government of their own modeled upon that of the +United States, and declared themselves a sovereign independent +nation.[1441] Immediately thereafter the Legislature of Georgia passed +resolutions declaring that the Cherokee lands belonged to the State +"absolutely"--that the Indians were only "tenants at her will"; that +Georgia had the right to, and would, extend her laws throughout her +"conventional limits," and "coerce obedience to them from all +descriptions of people, be they white, red, or black."[1442] + +Deliberately, but without delay, the State enacted laws taking over the +Cherokee lands, dividing them into counties, and annulling "all laws, +usages and customs" of the Indians.[1443] The Cherokees appealed to +President Jackson, who rebuffed them and upheld Georgia.[1444] Gold was +discovered in the Indian country, and white adventurers swarmed to the +mines.[1445] Georgia passed acts forbidding the Indians to hold courts, +or to make laws or regulations for the tribe. White persons found in the +Cherokee country without a license from the Governor were, upon +conviction, to be imprisoned at hard labor for four years. A State guard +was established to "protect" the mines and arrest any one "detected in a +violation of the laws of this State."[1446] Still other acts equally +oppressive were passed.[1447] + +On the advice of William Wirt, then Attorney-General of the United +States, and of John Sergeant of Philadelphia, the Indians applied to the +Supreme Court for an injunction to stop Georgia from executing these +tyrannical statutes. The whole country was swept by a tempest of popular +excitement. South and North took opposite sides. The doctrine of State +Rights, in whose name internal improvements, the Tariff, the Bank, and +other Nationalist measures had been opposed, was invoked in behalf of +Georgia. + +The Administration tried to induce the Cherokees to exchange their +farms, mills, and stores in Georgia for untamed lands in the Indian +Territory. The Indians sent a commission to investigate that far-off +region, which reported that it was unfit for agriculture and that, once +there, the Cherokees would have to fight savage tribes.[1448] Again they +appealed to the President; again Jackson told them that Georgia had +absolute authority over them. Angry debates arose in Congress over a +bill to send the reluctant natives to the wilds of the then remote +West.[1449] + +Such was the origin of the case of The Cherokee Nation _vs._ The State +of Georgia.[1450] At Wirt's request, Judge Dabney Carr laid the whole +matter before Marshall, Wirt having determined to proceed with it or to +drop it as the Chief Justice should advise. Marshall, of course, +declined to express any opinion on the legal questions involved: "I have +followed the debate in both houses of Congress, with profound attention +and with deep interest, and have wished, most sincerely, that both the +executive and legislative departments had thought differently on the +subject. Humanity must bewail the course which is pursued, whatever may +be the decision of policy."[1451] + +Before the case could be heard by the Supreme Court, Georgia availed +herself of an opportunity to show her contempt for the National +Judiciary and to assert her "sovereign rights." A Cherokee named George +Tassels was convicted of murder in the Superior Court of Hall County, +Georgia, and lay in jail until the sentence of death should be executed. +A writ of error from the Supreme Court was obtained, and Georgia was +ordered to appear before that tribunal and defend the judgment of the +State Court. + +The order was signed by Marshall. Georgia's reply was as insulting and +belligerent as it was prompt and spirited. The Legislature resolved that +"the interference by the chief justice of the supreme court of the U. +States, in the administration of the criminal laws of this state, ... is +a flagrant violation of her rights"; that the Governor "and every other +officer of this state" be directed to "disregard any and every mandate +and process ... purporting to proceed from the chief justice or any +associate justice of the supreme court of the United States"; that the +Governor be "authorised and required, with all the force and means ... +at his command ... to resist and repel any and every invasion from +whatever quarter, upon the administration of the criminal laws of this +state"; that Georgia refuses to become a party to "the case sought to be +made before the supreme court"; and that the Governor, "by express," +direct the sheriff of Hall County to execute the law in the case of +George Tassels.[1452] + +Five days later, Tassels was hanged,[1453] and the Supreme Court of the +United States, powerless to vindicate its authority, defied and insulted +by a "sovereign" State, abandoned by the Administration, was humiliated +and helpless. + +When he went home on the evening of January 4, 1831, John Quincy Adams, +now a member of Congress, wrote in his diary that "the resolutions of +the legislature of Georgia setting at defiance the Supreme Court of the +United States are published and approved in the Telegraph, the +Administration newspaper at this place.... The Constitution, the laws +and treaties of the United States are prostrate in the State of Georgia. +Is there any remedy for this state of things? None. Because the +Executive of the United States is in League with the State of +Georgia.... This example ... will be imitated by other States, and with +regard to other national interests--perhaps the tariff.... The Union is +in the most imminent danger of dissolution.... The ship is about to +founder."[1454] + +Meanwhile the Cherokee Nation brought its suit in the Supreme Court to +enjoin the State from executing its laws, and at the February term of +1831 it was argued for the Indians by Wirt and Sergeant. Georgia +disdained to appear--not for a moment would that proud State admit that +the Supreme Court of the Nation could exercise any authority whatever +over her.[1455] + +On March 18, 1831, Marshall delivered the opinion of the majority of the +court, and in it he laid down the broad policy which the Government has +unwaveringly pursued ever since. At the outset the Chief Justice plainly +stated that his sympathies were with the Indians,[1456] but that the +court could not examine the merits or go into the moralities of the +controversy, because it had no jurisdiction. The Cherokees sued as a +foreign nation, but, while they did indeed constitute a separate state, +they were not a foreign nation. The relation of the Indians to the +United States is "unlike that of any other two people in existence." The +territory comprises a "part of the United States."[1457] + +In our foreign affairs and commercial regulations, the Indians are +subject to the control of the National Government. "They acknowledge +themselves in their treaties to be under the protection of the United +States." They are not, then, foreign nations, but rather "domestic +dependent nations.... They are in a state of pupilage." Foreign +governments consider them so completely under our "sovereignty and +dominion" that it is universally conceded that the acquisition of their +lands or the making of treaties with them would be "an invasion of our +territory, and an act of hostility." By the Constitution power is given +Congress to regulate commerce among the States, with foreign nations, +and with Indian tribes, these terms being "entirely distinct."[1458] + +The Cherokees not being a foreign nation, the Supreme Court has no +jurisdiction in a suit brought by them in that capacity, said Marshall. +Furthermore, the court was asked "to control the Legislature of Georgia, +and to restrain the exertion of its physical force"--a very questionable +"interposition," which "savors too much of the exercise of political +power to be within the proper province of the judicial department." In +"a proper case with proper parties," the court might, perhaps, decide +"the mere question of right" to the Indian lands. But the suit of the +Cherokee Nation against Georgia is not such a case. + +Marshall closes with a reflection upon Jackson in terms much like those +with which, many years earlier, he had so often rebuked Jefferson: "If +it be true that the Cherokee Nation have rights, this is not the +tribunal in which those rights are to be asserted. If it be true that +wrongs have been inflicted, and that still greater are to be +apprehended, this is not the tribunal which can redress the past or +prevent the future."[1459] + +In this opinion the moral force of Marshall was displayed almost as much +as in the case of the Schooner Exchange.[1460] He was friendly to the +whole Indian race; he particularly detested Georgia's treatment of the +Cherokees; he utterly rejected the State Rights theory on which the +State had acted; and he could easily have decided in favor of the +wronged and harried Indians, as the dissent of Thompson and Story +proves. But the statesman and jurist again rose above the man of +sentiment, law above emotion, the enduring above the transient. + +As a "foreign state" the Indians had lost, but the constitutionality of +Georgia's Cherokee statutes had not been affirmed. Wirt and Sergeant had +erred as to the method of attacking that legislation. Another proceeding +by Georgia, however, soon brought the validity of her expansion laws +before the Supreme Court. Among the missionaries who for years had +labored in the Cherokee Nation was one Samuel A. Worcester, a citizen of +Vermont. This brave minister, licensed by the National Government, +employed by the American Board of Commissioners for Foreign Missions, +appointed by President John Quincy Adams to be postmaster at New Echota, +a Cherokee town, refused, in company with several other missionaries, to +leave the Indian country. + +Worcester and a Reverend Mr. Thompson were arrested by the Georgia +guard. The Superior Court of Gwinnett County released them, however, on +a writ of habeas corpus, because, both being licensed missionaries +expending National funds appropriated for civilizing Indians, they must +be considered as agents of the National Government. Moreover, Worcester +was postmaster at New Echota. Georgia demanded his removal and inquired +of Jackson whether the missionaries were Government agents. The +President assured the State that they were not, and removed Worcester +from office.[1461] + +Thereupon both Worcester and Thompson were promptly ordered to leave the +State. But they and some other missionaries remained, and were +arrested; dragged to prison--some of them with chains around their +necks;[1462] tried and convicted. Nine were pardoned upon their promise +to depart forthwith from Georgia. But Worcester and one Elizur Butler +sternly rejected the offer of clemency on such a condition and were put +to hard labor in the penitentiary. + +From the judgment of the Georgia court, Worcester and Butler appealed to +the Supreme Court of the United States. Once more Marshall and Georgia +confronted each other; again the Chief Justice faced a hostile President +far more direct and forcible than Jefferson, but totally lacking in the +subtlety and skill of that incomparable politician. Thrilling and highly +colored accounts of the treatment of the missionaries had been published +in every Northern newspaper; religious journals made conspicuous display +of soul-stirring narratives of the whole subject; feeling in the North +ran high; resentment in the South rose to an equal degree. + +This time Georgia did more than ignore the Supreme Court as in the case +of George Tassels and in the suit of the Cherokee Nation; she formally +refused to appear; formally denied the right of that tribunal to pass +upon the decisions of her courts.[1463] Never would Georgia so +"compromit her dignity as a sovereign State," never so "yield her rights +as a member of the Confederacy." The new Governor, Wilson Lumpkin, +avowed that he would defend those rights by every means in his +power.[1464] When the case of Worcester _vs._ Georgia came on for +hearing before the Supreme Court, no one answered for the State. Wirt, +Sergeant, and Elisha W. Chester appeared for the missionaries as they +had for the Indians.[1465] Wirt and Sergeant made extended and powerful +arguments.[1466] + +Marshall's opinion, delivered March 3, 1832, is one of the noblest he +ever wrote. "The legislative power of a State, the controlling power of +the Constitution and laws of the United States, the rights, if they have +any, the political existence of a once numerous and powerful people, the +personal liberty of a citizen, are all involved," begins the aged Chief +Justice.[1467] Does the act of the Legislature of Georgia, under which +Worcester was convicted, violate the Constitution, laws, and treaties of +the United States?[1468] That act is "an assertion of jurisdiction over +the Cherokee Nation."[1469] + +He then goes into a long historical review of the relative titles of the +natives and of the white discoverers of America; of the effect upon +these titles of the numerous treaties with the Indians; of the acts of +Congress relating to the red men and their lands; and of previous laws +of Georgia on these subjects.[1470] This part of his opinion is the most +extended and exhaustive historical analysis Marshall ever made in any +judicial utterance, except that on the law of treason during the trial +of Aaron Burr.[1471] + +Then comes his condensed, unanswerable, brilliant conclusion: "A weaker +power does not surrender its independence, its rights to +self-government, by associating with a stronger, and taking its +protection. A weak state, in order to provide for its safety, may place +itself under the protection of one more powerful, without stripping +itself of the right of self-government, and ceasing to be a state.... +The Cherokee Nation ... is a distinct community, occupying its own +territory ... in which the laws of Georgia can have no force, and which +the citizens of Georgia have no right to enter but with the assent of +the Cherokees themselves, or in conformity with treaties, and with the +acts of Congress. The whole intercourse between the United States and +this nation is by our Constitution and laws vested in the government of +the United States." + +The Cherokee Acts of the Georgia Legislature "are repugnant to the +constitution, laws and treaties of the United States. They interfere +forcibly with the relations established between the United States and +the Cherokee Nation." This controlling fact the laws of Georgia ignore. +They violently disrupt the relations between the Indians and the United +States; they are equally antagonistic to acts of Congress based upon +these treaties. Moreover, "the forcible seizure and abduction" of +Worcester, "who was residing in the nation with its permission and by +authority of the President of the United States, is also a violation of +the acts which authorize the chief magistrate to exercise this +authority." + +Marshall closes with a passage of eloquence almost equal to, and of +higher moral grandeur than, the finest passages in M'Culloch _vs._ +Maryland and in Cohens _vs._ Virginia. So the decision of the court was +that the judgment of the Georgia court be "reversed and annulled."[1472] + +Congress was intensely excited by Marshall's opinion; Georgia was +enraged; the President agitated and belligerent. In a letter to Ticknor, +written five days after the judgment of the court was announced, Story +accurately portrays the situation: "The decision produced a very strong +sensation in both houses; Georgia is full of anger and violence.... +Probably she will resist the execution of our judgement, & if she does I +do not believe the President will interfere.... The Court has done its +duty. Let the nation do theirs. If we have a government let its commands +be obeyed; if we have not it is as well to know it at once, & to look to +consequences."[1473] + +Story's forecast was justified. Georgia scoffed at Marshall's opinion, +flouted the mandate of the Supreme Court. "Usurpation!" cried Governor +Lumpkin. He would meet it "with the spirit of determined +resistance."[1474] Jackson defied the Chief Justice. "John Marshall has +made his decision:--_now let him enforce it_!" the President is reported +to have said.[1475] Again the Supreme Court found itself powerless; the +judgment in Worcester _vs._ Georgia came to nothing; the mandate was +never obeyed, never heeded.[1476] + +For the time being, Marshall was defeated; Nationalism was prostrate; +Localism erect, strong, aggressive. Soon, however, Marshall and +Nationalism were to be sustained, for the moment, by the man most +dreaded by the Chief Justice, most trusted by Marshall's foes. Andrew +Jackson was to astound the country by the greatest and most illogical +act of his strange career--the issuance of his immortal Proclamation +against Nullification. + +Georgia's very first assertion of her "sovereignty" in the Indian +controversy had strengthened South Carolina's fast growing determination +to resist the execution of the Tariff Law. On January 25, 1830, Senator +Robert Young Hayne of South Carolina, in his brilliant challenge to +Webster, set forth the philosophy of Nullification: "Sir, if, the +measures of the Federal Government were less oppressive, we should +still strive against this usurpation. The South is acting on a principle +she has always held sacred--resistance to unauthorized taxation."[1477] + +Webster's immortal reply, so far as his Constitutional argument is +concerned, is little more than a condensation of the Nationalist +opinions of John Marshall stated in popular and dramatic language. +Indeed, some of Webster's sentences are practically mere repetitions of +Marshall's, and his reasoning is wholly that of the Chief Justice. + +"We look upon the States, not as separated, but as united under the same +General Government, having interests, common, associated, intermingled. +In war and peace, we are one; in commerce, one; because the authority of +the General Government reaches to war and peace, and to the regulation +of commerce."[1478] + +What is the capital question in dispute? It is this: "Whose prerogative +is it to decide on the constitutionality or unconstitutionality of the +laws?"[1479] Can States decide? Can States "annul the law of Congress"? +Hayne, expressing the view of South Carolina, had declared that they +could. He had based his argument upon the Kentucky and Virginia +Resolutions--upon the theory that the States, and not the people, had +created the Constitution; that the States, and not the people, had +established the General Government. + +But is this true? asked Webster. He answered by paraphrasing Marshall's +words in M'Culloch _vs._ Maryland: "It is, sir, the people's +constitution, the people's Government; made for the people; made by the +people; and answerable to the people.[1480] The people ... have declared +that this Constitution shall be the supreme law....[1481] Who is to +judge between the people and the Government?"[1482] + +The Constitution settles that question by declaring that "the judicial +power shall extend to all cases arising under the Constitution and +laws."[1483] Because of this the Union is secure and strong. "Instead of +one tribunal, established by all, responsible to all, with power to +decide for all, shall constitutional questions be left to four and +twenty popular bodies, each at liberty to decide for itself, and none +bound to respect the decisions of others?"[1484] + +Then Webster swept grandly forward to that famous peroration ending +with the words which in time became the inspiring motto of the whole +American people: "Liberty _and_ Union, now and forever, one and +inseparable!"[1485] + +Immediately after the debate between Hayne and Webster, Nullification +gathered force in South Carolina. Early in the autumn of 1830, Governor +Stephen Decatur Miller spoke at a meeting of the Sumter district of that +State. He urged that a State convention be called for the purpose of +declaring null and void the Tariff of 1828. Probably the National courts +would try to enforce that law, he said, but South Carolina would "refuse +to sustain" it. Nullification involved no danger, and if it did, what +matter!--"those who fear to defend their rights, have none. Their +property belongs to the banditti: they are only tenants at will of their +own firesides."[1486] + +Public excitement steadily increased; at largely attended meetings +ominous resolutions were adopted. "The attitude which the federal +government continues to assume towards the southern states, calls for +decisive and unequivocal resistance." So ran a typical declaration of a +gathering of citizens of Georgetown, South Carolina, in December, +1830.[1487] + +In the Senate, Josiah Stoddard Johnston of Louisiana, but +Connecticut-born, made a speech denouncing the doctrine of +Nullification, asserting the supremacy of the National Government, and +declaring that the Supreme Court was the final judge of the +constitutionality of legislation. "It has fulfilled the design of its +institution; ... it has given form and consistency to the constitution, +and uniformity to the laws."[1488] Nullification, said Johnston, means +"either disunion, or civil war; or, in the language of the times, +disunion and blood."[1489] + +The Louisiana Senator sent his speech to Marshall, who answered that "it +certainly is not among the least extraordinary of the doctrines of the +present day that such a question [Nullification] should be seriously +debated."[1490] + +All Nullification arguments were based on the Kentucky and Virginia +Resolutions. Madison was still living, and Edward Everett asked him for +his views. In a letter almost as Nationalist as Marshall's opinions, the +venerable statesman replied at great length and with all the ability and +clearness of his best years. + +The decision by States of the constitutionality of acts of Congress +would destroy the Nation, he wrote. Such decision was the province of +the National Judiciary. While the Supreme Court had been criticized, +perhaps justly in some cases, "still it would seem that, with but few +exceptions, the course of the judiciary has been hitherto sustained by +the predominant sense of the nation." It was absurd to deny the +"supremacy of the judicial power of the U. S. & denounce at the same +time nullifying power in a State.... A law of the land" cannot be +supreme "without a supremacy in the exposition & execution of the law." +Nullification was utterly destructive of the Constitution and the +Union.[1491] + +This letter, printed in the _North American Review_,[1492] made a +strong impression on the North, but it only irritated the South. +Marshall read it "with peculiar pleasure," he wrote Story: "M^r +Madison ... is himself again. He avows the opinions of his best days, +and must be pardoned for his oblique insinuations that some of the +opinions of our Court are not approved. Contrast this delicate hint +with the language M^r Jefferson has applied to us. He [Madison] is +attacked ... by our Enquirer, who has arrayed his report of 1799 against +his letter. I never thought that report could be completely defended; +but M^r Madison has placed it upon its best ground, that the language is +incautious, but is intended to be confined to a mere declaration of +opinion, or is intended to refer to that ultimate right which all admit, +to resist despotism, a right not exercised under a constitution, but in +opposition to it."[1493] + +At a banquet on April 15, 1830, in celebration of Jefferson's birthday, +Jackson had given a warning not to be misunderstood except by Nullifiers +who had been blinded and deafened by their new political religion. "The +Federal Union;--it must be preserved," was the solemn and inspiring +toast proposed by the President. Southern leaders gave no heed. They +apparently thought that Jackson meant to endorse Nullification, which, +most illogically, they always declared to be the only method of +preserving the Union peaceably. + +Their denunciation of the Tariff grew ever louder; their insistence on +Nullification ever fiercer, ever more determined. To a committee of +South Carolina Union men who invited him to their Fourth of July +celebration at Charleston in 1831, Jackson sent a letter which plainly +informed the Nullifiers that if they attempted to carry out their +threats, the National Government would forcibly suppress them.[1494] + +At last the eyes of the South were opened. At last the South understood +the immediate purpose of that enigmatic and self-contradictory man who +ruled America, at times, in the spirit of the Czars of Russia; at times, +in the spirit of the most compromising of opportunists. + +Jackson's outgiving served only to enrage the South and especially South +Carolina. The Legislature of that State replied to the President's +letter thus: "Is this Legislature to be schooled and rated by the +President of the United States? Is it to legislate under the sword of +the Commander-in-Chief?... This is a confederacy of sovereign States, +and each may withdraw from the confederacy when it chooses."[1495] + +Marshall saw clearly what the outcome was likely to be, but yielded +slowly to the despair so soon to master him. "Things to the South wear a +very serious aspect," he tells Story. "If we can trust appearances the +leaders are determined to risk all the consequences of dismemberment. I +cannot entirely dismiss the hope that they may be deserted by their +followers--at least to such an extent as to produce a pause at the +Rubicon. They undoubtedly believe that Virginia will support them. I +think they are mistaken both with respect to Virginia and North +Carolina. I do not think either State will embrace this mad and wicked +measure. New Hampshire and Maine seem to belong to the tropics. It is +time for New Hampshire to part with Webster and Mason. She has no longer +any use for such men."[1496] + +As the troubled weeks passed, Marshall's apprehension increased. Story, +profoundly concerned, wrote the Chief Justice that he could see no light +in the increasing darkness. "If the prospects of our country inspire you +with gloom," answered Marshall, "how do you think a man must be affected +who partakes of all your opinions and whose geographical position +enables him to see a great deal that is concealed from you? I yield +slowly and reluctantly to the conviction that our constitution cannot +last. I had supposed that north of the Potowmack a firm and solid +government competent to the security of rational liberty might be +preserved. Even that now seems doubtful. The case of the south seems to +me to be desperate. Our opinions are incompatible with a united +government even among ourselves. The union has been prolonged thus far +by miracles. I fear they cannot continue."[1497] + +Congress heeded the violent protest of South Carolina--perhaps it would +be more accurate to say that Congress obeyed Andrew Jackson. In 1832 it +reduced tariff duties; but the protective policy was retained. The South +was infuriated--if the principle were recognized, said Southern men, +what could they expect at a later day when this capitalistic, +manufacturing North would be still stronger and the unmoneyed and +agricultural South still weaker? + +South Carolina especially was frantic. The spirit of the State was +accurately expressed by R. Barnwell Smith at a Fourth of July +celebration: "If the fire and the sword of war are to be brought to our +dwellings, ... let them come! Whilst a bush grows which may be dabbled +with blood, or a pine tree stands to support a rifle, let them +come!"[1498] At meetings all over the State treasonable words were +spoken. Governor James Hamilton, Jr., convened the Legislature in +special session and the election of a State convention was ordered. + +"Let us act, next October, at the ballot box--next November, in the +state house--and afterwards, should any further action be necessary, let +it be where our ancestors acted, _in the field of battle_";[1499] such +were the toasts proposed at banquets, such the sentiments adopted at +meetings. + +On November 24, 1832, the State Convention, elected[1500] to consider +the new Tariff Law, adopted the famous Nullification Ordinance which +declared that the Tariff Acts of 1828 and 1832 were "null, void, and no +law"; directed the Legislature to take measures to prevent the +enforcement of those acts within South Carolina; forbade appeal to the +Supreme Court of the United States from South Carolina courts in any +case where the Tariff Law was involved; and required all State +officers, civil and military, to take oath to "obey, execute and enforce +this Ordinance, and such act or acts of the Legislature as may be passed +in pursuance thereof." + +The Ordinance set forth that "we, the People of South Carolina, ... _Do +further Declare_, that we will not submit to the application of force, +on the part of the Federal Government, to reduce this State to +obedience; but that we will consider" any act of the National Government +to enforce the Tariff Laws "as inconsistent with the longer continuance +of South Carolina in the Union: and that the People of this State ... +will forthwith proceed to organize a separate Government, and to do all +other acts and things which sovereign and independent States may of +right do."[1501] + +Thereupon the Convention issued an address to the people.[1502] It was +long and, from the Nullification point of view, very able; it ended in +an exalted, passionate appeal: "Fellow citizens, the die is now cast. NO +MORE TAXES SHALL BE PAID HERE.... Prepare for the crisis, and ... meet +it as becomes men and freemen.... Fellow citizens, DO YOUR DUTY TO YOUR +COUNTRY, AND LEAVE THE CONSEQUENCES TO GOD."[1503] + +Excepting only at the outbreak of war could a people be more deeply +stirred than were all Americans by the desperate action of South +Carolina. In the North great Union meetings were held, fervid speeches +made, warlike resolutions adopted. The South, at first, seemed dazed. +Was war at hand? This was the question every man asked of his neighbor. +A pamphlet on the situation, written by some one in a state of great +emotion, had been sent to Marshall, and Judge Peters had inquired about +it, giving at the same time the name of the author. + +"I am not surprised," answered Marshall, "that he [the author] is +excited by the doctrine of nullification. It is well calculated to +produce excitement in all.... Leaving it to the courts and the custom +house will be leaving it to triumphant victory, and to victory which +must be attended with more pernicious consequences to our country and +with more fatal consequences to its reputation than victory achieved in +any other mode which rational men can devise."[1504] If Nullification +must prevail, John Marshall preferred that it should win by the sword +rather than through the intimidation of courts. + +Jackson rightly felt that his reëlection meant that the country in +general approved of his attitude toward Nullification as well as that +toward the Bank. He promptly answered the defiance of South Carolina. On +December 10, 1832, he issued his historic Proclamation. Written by +Edward Livingston,[1505] Secretary of State, it is one of the ablest of +American state papers. Moderate in expression, simple in style, solid in +logic, it might have been composed by Marshall himself. It is, indeed, a +restatement of Marshall's Nationalist reasoning and conclusions. Like +the argument in Webster's Reply to Hayne, Jackson's Nullification +Proclamation was a repetition of those views of the Constitution and of +the nature of the American Government for which Marshall had been +fighting since Washington was made President. + +As in Webster's great speech, sentences and paragraphs are in almost the +very words used by Marshall in his Constitutional opinions, so in +Jackson's Proclamation the same parallelism exists. Gently, but firmly, +and with tremendous force, in the style and spirit of Abraham Lincoln +rather than of Andrew Jackson, the Proclamation makes clear that the +National laws will be executed and resistance to them will be put down +by force of arms.[1506] + +The Proclamation was a triumph for Marshall. That the man whom he +distrusted and of whom he so disapproved, whose election he had thought +to be equivalent to a dissolution of the Union, should turn out to be +the stern defender of National solidarity, was, to Marshall, another of +those miracles which so often had saved the Republic. His disapproval of +Jackson's rampant democracy, and whimsical yet arbitrary executive +conduct, turned at once to hearty commendation. + +"Since his last proclamation and message," testifies Story, "the Chief +Justice and myself have become his warmest supporters, and shall +continue so just as long as he maintains the principles contained in +them. Who would have dreamed of such an occurrence?"[1507] Marshall +realized, nevertheless, that even the bold course pursued by the +President could not permanently overcome the secession convictions of +the Southern people. + +The Union men of South Carolina who, from the beginning of the +Nullification movement, had striven earnestly to stay its progress, +rallied manfully.[1508] Their efforts were futile--disunion sentiment +swept the State. "With ... indignation and contempt," with "defiance and +scorn," most South Carolinians greeted the Proclamation[1509] of the man +who, only three years before, had been their idol. To South Carolinians +Jackson was now "a tyrant," a would-be "Cæsar," a "Cromwell," a +"Bonaparte."[1510] + +The Legislature formally requested Hayne, now Governor, to issue a +counter-proclamation,[1511] and adopted spirited resolutions declaring +the right of any State "to secede peaceably from the Union." One count +in South Carolina's indictment of the President was thoroughly +justified--his approval of Georgia's defiance of Marshall and the +Supreme Court. Jackson's action, declared the resolutions, was the more +"extraordinary, that he has silently, and ... with entire approbation, +witnessed our sister state of Georgia avow, act upon, and carry into +effect, even to the taking of life, principles identical with those now +denounced by him in South Carolina." The Legislature finally resolved +that the State would "repel force by force, and, relying upon the +blessing of God, will maintain its liberty at all hazards."[1512] + +Swiftly Hayne published his reply to the President's Proclamation. It +summed up all the arguments for the right of a State to decide the +constitutionality of acts of Congress, that had been made since the +Kentucky Resolutions were written by Jefferson--that "great Apostle of +American liberty ... who has consecrated these principles, and left them +as a legacy to the American people, recorded by his own hand." It was +Jefferson, said Hayne, who had first penned the immortal truth that +"NULLIFICATION" of unconstitutional acts of Congress was the "RIGHTFUL +REMEDY" of the States.[1513] + +In his Proclamation Jackson had referred to the National Judiciary as +the ultimate arbiter of the constitutionality of National laws. How +absurd such a claim by such a man, since that doctrine "has been denied +by none more strongly than the President himself" in the Bank +controversy and in the case of the Cherokees! "And yet when it serves +the purpose of bringing odium on South Carolina, 'his native State,' the +President has no hesitation in regarding the attempt of a State to +release herself from the control of the Federal Judiciary, in a +matter affecting her sovereign rights, as a violation of the +Constitution."[1514] + +In closing, Governor Hayne declares that "the time has come when it must +be seen, whether the people of the several States have indeed lost the +spirit of the revolution, and whether they are to become the willing +instruments of an unhallowed despotism. In such a sacred cause, South +Carolina will feel that she is not striking for her own, but the +liberties of the Union and the RIGHTS OF MAN."[1515] + +Instantly[1516] the Legislature enacted one law to prevent the +collection of tariff duties in South Carolina;[1517] another authorizing +the Governor to "order into service the whole military force of this +State" to resist any attempt of the National Government to enforce the +Tariff Acts.[1518] Even before Hayne's Proclamation was published, +extensive laws had been passed for the reorganization of the militia, +and the Legislature now continued to enact similar legislation. In four +days fourteen such acts were passed.[1519] + +The spirit and consistency of South Carolina were as admirable as her +theory was erroneous and narrow. If she meant what she had said, the +State could have taken no other course. If, moreover, she really +intended to resist the National Government, Jackson had given cause for +South Carolina's militant action. As soon as the Legislature ordered the +calling of the State Convention to consider the tariff, the President +directed the Collector at Charleston to use every resource at the +command of the Government to collect tariff duties. The commanders of +the forts at Charleston were ordered to be in readiness to repel any +attack. General Scott was sent to the scene of the disturbance. Military +and naval dispositions were made so as to enable the National Government +to strike quickly and effectively.[1520] + +Throughout South Carolina the rolling of drums and blare of bugles were +heard. Everywhere was seen the blue cockade with palmetto button.[1521] +Volunteers were called for,[1522] and offered themselves by thousands; +in certain districts "almost the entire population" enlisted.[1523] Some +regiments adopted a new flag, a banner of red with a single black star +in the center.[1524] + +Jackson attempted to placate the enraged and determined State. In his +fourth annual Message to Congress he barely mentioned South Carolina's +defiance, but, for the second time, urgently recommended a reduction of +tariff duties. Protection, he said, "must be ultimately limited to those +articles of domestic manufacture which are indispensable to our safety +in time of war.... Beyond this object we have already seen the operation +of the system productive of discontent."[1525] + +Other Southern States, although firmly believing in South Carolina's +principles and sympathetic with her cause, were alarmed by her bold +course. Virginia essayed the rôle of mediator between her warlike sister +and the "usurping" National Government. In his Message to the +Legislature, Governor John Floyd stoutly defended South Carolina--"the +land of Sumpter [_sic_] and of Marion." "Should force be resorted to by +the federal government, the horror of the scenes hereafter to be +witnessed cannot now be pictured.... What surety has any state for her +existence as a sovereign, if a difference of opinion should be punished +by the sword as treason?" The situation calls for a reference of the +whole question to "the PEOPLE of the states. On you depends in a high +degree the future destiny of this republic. It is for you now to say +whether the brand of civil war shall be thrown into the midst of these +states."[1526] + +Mediative resolutions were instantly offered for the appointment of a +committee "to take into consideration the relations existing between the +state of South Carolina and the government of the United States," and +the results to each and to Virginia flowing from the Ordinance of +Nullification and Jackson's Proclamation. The committee was to report +"such measures as ... it may be expedient for Virginia to adopt--the +propriety of recommending a general convention to the states--and such a +declaration of our views and opinions as it may be proper for her to +express in the present fearful impending crisis, for the protection of +the right of the states, the restoration of harmony, and the +preservation of the union."[1527] + +Only five members voted against the resolution.[1528] + +The committee was appointed and, on December 20, 1832, reported a set of +resolutions--"worlds of words," as Niles aptly called them--disapproving +Jackson's Proclamation; applauding his recommendation to Congress that +the tariff be reduced; regretting South Carolina's hasty action; +deprecating "the intervention of arms on either side"; entreating "our +brethren in S. Carolina to pause in their career"; appealing to Jackson +"to withstay the arm of force"; instructing Virginia Senators and +requesting Virginia Representatives in Congress to do their best to +"procure an immediate reduction of the tariff"; and appointing two +commissioners to visit South Carolina with a view to securing an +adjustment of the dispute.[1529] + +With painful anxiety and grave alarm, Marshall, then in Richmond, +watched the tragic yet absurd procession of events. Much as the doings +and sayings of the mediators and sympathizers with Nullification +irritated him, serious as were his forebodings, the situation appealed +to his sense of humor. He wrote Story an account of what was going on in +Virginia. No abler or more accurate statement of the conditions and +tendencies of the period exists. Marshall's letter is a document of +historical importance. It reveals, too, the character of the man. + +It was written in acknowledgment of the receipt of "a proof sheet" of a +page of Story's "Commentaries on the Constitution of the United States," +dedicating that work to Marshall. "I am ... deeply penetrated," says +Marshall, "by the evidence it affords of the continuance of that partial +esteem and friendship which I have cherished for so many years, and +still cherish as one of the choicest treasures of my life. The only +return I can make is locked up in my own bosom, or communicated in +occasional conversation with my friends." He congratulates Story on +having finished his "Herculean task." He is sure that Story has +accomplished it with ability and "correctness," and is "certain in +advance" that he will read "every sentence with entire approbation. It +is a subject on which we concur exactly. Our opinions on it are, I +believe, identical. Not so with Virginia or the South generally." + +Marshall then relates what has happened in Richmond: "Our legislature is +now in session, and the dominant party receives the message of the +President to Congress with enthusiastic applause. Quite different was +the effect of his proclamation. That paper astonished, confounded, and +for a moment silenced them. In a short time, however, the power of +speech was recovered, and was employed in bestowing on its author the +only epithet which could possibly weigh in the scales against the name +of 'Andrew Jackson,' and countervail its popularity. + +"Imitating the Quaker who said the dog he wished to destroy was mad, +they said Andrew Jackson had become a Federalist, even an ultra +Federalist. To have said he was ready to break down and trample on every +other department of the government would not have injured him, but to +say that he was a Federalist--a convert to the opinions of Washington, +was a mortal blow under which he is yet staggering. + +"The party seems to be divided. Those who are still true to their +President pass by his denunciation of all their former theories; and +though they will not approve the sound opinions avowed in his +proclamation are ready to denounce nullification and to support him in +maintaining the union. This is going a great way for them--much farther +than their former declarations would justify the expectation of, and +much farther than mere love of union would carry them. + +"You have undoubtedly seen the message of our Governor and the +resolutions reported by the committee to whom it was referred--a message +and resolutions which you will think skillfully framed had the object +been a civil war. They undoubtedly hold out to South Carolina the +expectation of support from Virginia; and that hope must be the +foundation on which they have constructed their plan for a southern +confederacy or league. + +"A want of confidence in the present support of the people will prevent +any direct avowal in favor of this scheme by those whose theories and +whose secret wishes may lead to it; but the people may be so entangled +by the insane dogmas which have become axioms in the political creed of +Virginia, and involved so inextricably in the labyrinth into which those +dogmas conduct them, as to do what their sober judgement disapproves. + +"On Thursday these resolutions are to be taken up, and the debate will, +I doubt not, be ardent and tempestuous enough. I pretend not to +anticipate the result. Should it countenance the obvious design of South +Carolina to form a southern confederacy, it may conduce to a southern +league--never to a southern government. Our theories are incompatible +with a government for more than a single State. We can form no union +which shall be closer than an alliance between sovereigns. + +"In this event there is some reason to apprehend internal convulsion. +The northern and western section of our State, should a union be +maintained north of the Potowmack, will not readily connect itself with +the South. At least such is the present belief of their most intelligent +men. Any effort on their part to separate from Southern Virginia and +unite with a northern confederacy may probably be punished as treason. +'We have fallen on evil times.'" + +Story had sent Marshall, Webster's speech at Faneuil Hall, December 17, +1832, in which he declared that he approved the "general principles" of +Jackson's Proclamation, and that "nullification ... is but another name +for civil war." "I am," said Webster, "for the Union as it is; ... for +the Constitution as it is." He pledged his support to the President in +"maintaining this Union."[1530] + +Marshall was delighted: "I thank you for M^r Webster's speech. +Entertaining the opinion he has expressed respecting the general course +of the administration, his patriotism is entitled to the more credit for +the determination he expressed at Faneuil Hall to support it in the +great effort it promises to make for the preservation of the union. No +member of the then opposition avowed a similar determination during the +Western Insurrection, which would have been equally fatal had it not +been quelled by the well timed vigor of General Washington. + +"We are now gathering the bitter fruits of the tree even before that +time planted by M^r Jefferson, and so industriously and perseveringly +cultivated by Virginia."[1531] + +Marshall's predictions of a tempestuous debate over the Virginia +resolutions were fulfilled. They were, in fact, "debated to death," +records Niles. "It would seem that the genuine spirit of 'ancient +_dominionism_' would lead to a making of speeches, even in 'the cave of +the Cyclops when forging thunderbolts,' instead of striking the hammers +from the hands of the workers of iniquity. Well--the matter was debated, +and debated and debated.... The proceedings ... were measured by the +_square yard_." At last, however, resolutions were adopted. + +These resolutions "respectfully requested and entreated" South Carolina +to rescind her Ordinance of Nullification; "respectfully requested and +entreated" Congress to "modify" the tariff; reaffirmed Virginia's faith +in the principles of 1798-99, but held that these principles did not +justify South Carolina's Ordinance or Jackson's Proclamation; and +finally, authorized the appointment of one commissioner to South +Carolina to communicate Virginia's resolutions, expressing at the same +time, however, "our sincere good will to our sister state, and our +anxious solicitude that the kind and respectful recommendations we have +addressed to her, may lead to an accommodation of all the difficulties +between that state and the general government."[1532] Benjamin +Watkins Leigh was unanimously elected to be the ambassador of +accommodation.[1533] + +So it came about that South Carolina, anxious to extricate herself from +a perilous situation, yet ready to fight if she could not disentangle +herself with honor, took informal steps toward a peaceful adjustment of +the dispute; and that Jackson and Congress, equally wishing to avoid +armed conflict, were eager to have a tariff enacted that would work a +"reconciliation." On January 26, 1833, at a meeting in Charleston, +attended by the first men of the State of all parties, resolutions, +offered by Hamilton himself, were adopted which, as a practical matter, +suspended the Ordinance of Nullification that was to have gone into +effect on February 1. Vehement, spirited, defiant speeches were made, +all ending, however, in expressions of hope that war might be avoided. +The resolutions were as ferocious as the most bloodthirsty Secessionist +could desire; but they accepted the proposed "beneficial modification of +the tariff," and declared that, "pending the process" of reducing the +tariff, "all ... collision between the federal and state authorities +should be sedulously avoided on both sides."[1534] + +The Tariff Bill of 1833--Clay's compromise--resulted. Jackson signed it; +South Carolina was mollified. For the time the storm subsided; but the +net result was that Nullification triumphed[1535]--a National law had +been modified at the threat of a State which was preparing to back up +that threat by force. + +Marshall was not deceived. "Have you ever seen anything to equal the +exhibition in Charleston and in the far South generally?" he writes +Story. "Those people pursue a southern league steadily or they are +insane. They have caught at Clay's bill, if their conduct is at all +intelligible, not as a real accommodation, a real adjustment, a real +relief from actual or supposed oppression, but as an apology for +avoiding the crisis and deferring the decisive moment till the other +States of the South will unite with them."[1536] Marshall himself was +for the compromise Tariff of 1833, but not because it afforded a means +of preventing armed collision: "Since I have breathed the air of James +River I think favorably of Clay's bill. I hope, if it can be maintained, +that our manufactures will still be protected by it."[1537] + +The "settlement" of the controversy, of course, satisfied nobody, +changed no conviction, allayed no hostility, stabilized no condition. +The South, though victorious, was nevertheless morose, indignant--after +all, the principle of protection had been retained. "The political +world, at least our part of it, is surely moved _topsy turvy_," Marshall +writes Story in the autumn of 1833. "What is to become of us and of our +constitution? Can the wise men of the East answer that question? Those +of the South perceive no difficulty. Allow a full range to state rights +and state sovereignty, and, in their opinion, all will go well."[1538] + +Placid as was his nature, perfect as was the co-ordination of his +powers, truly balanced as were his intellect and emotions, Marshall +could not free his mind of the despondency that had now settled upon +him. Whatever the subject upon which he wrote to friends, he was sure to +refer to the woeful state of the country, and the black future it +portended. + +Story informed him that an abridged edition of his own two volumes on +the Constitution would soon be published. "I rejoice to hear that the +abridgement of your Commentaries is coming before the public," wrote +Marshall in reply, "and should be still more rejoiced to learn that it +was used in all our colleges and universities. The first impressions +made on the youthful mind are of vast importance; and, most +unfortunately, they are in the South all erroneous. Our young men, +generally speaking, grow up in the firm belief that liberty depends on +construing our Constitution into a league instead of a government; that +it has nothing to fear from breaking these United States into numerous +petty republics. Nothing in their view is to be feared but that bugbear, +consolidation; and every exercise of legitimate power is construed into +a breach of the Constitution. Your book, if read, will tend to remove +these prejudices."[1539] + +A month later he again writes Story: "I have finished reading your great +work, and wish it could be read by every statesman, and every would-be +statesman in the United States. It is a comprehensive and an accurate +commentary on our Constitution, formed in the spirit of the original +text. In the South, we are so far gone in political metaphysics, that I +fear no demonstration can restore us to common sense. The word 'State +Rights,' as expounded by the resolutions of '98 and the report of '99, +construed by our legislature, has a charm against which all reasoning +is vain. + +"Those resolutions and that report constitute the creed of every +politician, who hopes to rise in Virginia; and to question them, or even +to adopt the construction given by their author [Jefferson] is deemed +political sacrilege. The solemn ... admonitions of your concluding +remarks[1540] will not, I fear, avail as they ought to avail against +this popular frenzy."[1541] + +He once more confides to his beloved Story his innermost thoughts and +feelings. Story had sent the Chief Justice a copy of the _New England +Magazine_ containing an article by Story entitled "Statesmen: their +Rareness and Importance," in which Marshall was held up as the true +statesman and the poor quality of the generality of American public men +was set forth in scathing terms. + +Marshall briefly thanks Story for the compliment paid him, and +continues: "It is in vain to lament, that the portrait which the author +has drawn of our political and party men, is, in general, true. Lament +it as we may, much as it may wound our vanity or our pride, it is still, +in the main, true; and will, I fear, so remain.... In the South, +political prejudice is too strong to yield to any degree of merit; and +the great body of the nation contains, at least appears to me to +contain, too much of the same ingredient. + +"To men who think as you and I do, the present is gloomy enough; and the +future presents no cheering prospect. The struggle now maintained in +every State in the Union seems to me to be of doubtful issue; but should +it terminate contrary to the wishes of those who support the enormous +pretensions of the Executive, should victory crown the exertions of the +champions of constitutional law, what serious and lasting advantage is +to be expected from this result? + +"In the South (things may be less gloomy with you) those who support the +Executive do not support the Government. They sustain the personal power +of the President, but labor incessantly to impair the legitimate powers +of the Government. Those who oppose the violent and rash measures of the +Executive (many of them nullifiers, many of them seceders) are generally +the bitter enemies of a constitutional government. Many of them are the +avowed advocates of a league; and those who do not go the whole length, +go great part of the way. What can we hope for in such circumstances? As +far as I can judge, the Government is weakened, whatever party may +prevail. Such is the impression I receive from the language of those +around me."[1542] + +During the last years of Marshall's life, the country's esteem for him, +slowly forming through more than a generation, manifested itself by +expressions of reverence and affection. When he and Story attended the +theater, the audience cheered him.[1543] His sentiment still youthful +and tender, he wept over Fanny Kemble's affecting portrayal of Mrs. +Haller in "The Stranger."[1544] To the very last Marshall performed his +judicial duties thoroughly, albeit with a heavy heart. He "looked more +vigorous than usual," and "seemed to revive and enjoy anew his green old +age," testifies Story.[1545] + +It is at this period of his career that we get Marshall's account of the +course he pursued toward his malignant personal and political enemy, +Thomas Jefferson. Six years after Jefferson's death,[1546] Major Henry +Lee, who hated that great reformer even more than Jefferson hated +Marshall, wrote the Chief Justice for certain facts, and also for his +opinion of the former President. In his reply Marshall said: + +"I have never allowed myself to be irritated by M^r Jeffersons +unprovoked and unjustifiable aspersions on my conduct and principles, +nor have I ever noticed them except on one occasion[1547] when I thought +myself called on to do so, and when I thought that declining to enter +upon my justification might have the appearance of crouching under the +lash, and admitting the justice of its infliction."[1548] + +Intensely as he hated Jefferson, attributing to him, as Marshall did, +most of the country's woes, the Chief Justice never spoke a personally +offensive word concerning his radical cousin.[1549] On the other hand, +he never uttered a syllable of praise or appreciation of Jefferson. +Even when his great antagonist died, no expression of sorrow or esteem +or regret or admiration came from the Chief Justice. Marshall could not +be either hypocritical or vindictive; but he could be silent. + +Holding to the old-time Federalist opinion that Jefferson's principles +were antagonistic to orderly government; convinced that, if they +prevailed, they would be destructive of the Nation; believing the man +himself to be a demagogue and an unscrupulous if astute and able +politician--Marshall, nevertheless, said nothing about Jefferson to +anybody except to Story, Lee, and Pickering; and, even to these close +friends, he gave only an occasional condemnation of Jefferson's +policies. + +The general feeling toward Marshall, especially that of the bench and +bar, during his last two years is not too strongly expressed in Story's +dedication to the Chief Justice of his "Commentaries on the Constitution +of the United States." Marshall had taken keen interest in the +preparation of Story's masterpiece and warned him against haste. +"Precipitation ought carefully to be avoided. This is a subject on which +I am not without experience."[1550] + +Story begins by a tribute "to one whose youth was engaged in the arduous +enterprises of the Revolution; whose manhood assisted in framing and +supporting the national Constitution; and whose maturer years have been +devoted to the task of unfolding its powers, and illustrating its +principles." As the expounder of the Constitution, "the common consent +of your countrymen has admitted you to stand without a rival. Posterity +will assuredly confirm, by its deliberate award, what the present age +has approved, as an act of undisputed justice. + +"But," continues Story, "I confess that I dwell with even more pleasure +upon the entirety of a life adorned by consistent principles, and filled +up in the discharge of virtuous duty; where there is nothing to regret, +and nothing to conceal; no friendships broken; no confidence betrayed; +no timid surrenders to popular clamor; no eager reaches for popular +favor. Who does not listen with conscious pride to the truth, that the +disciple, the friend, the biographer of Washington, still lives, the +uncompromising advocate of his principles?"[1551] + +Excepting only the time of his wife's death, the saddest hours of his +life were, perhaps, those when he opened the last two sessions of the +Supreme Court over which he presided. When, on January 13, 1834, the +venerable Chief Justice, leading his associate justices to their places, +gravely returned the accustomed bow of the bar and spectators, he also, +perforce, bowed to temporary events and to the iron, if erratic, rule of +Andrew Jackson. He bowed, too, to time and death. Justice Washington +was dead, Johnson was fatally ill, and Duval, sinking under age and +infirmity, was about to resign. + +Republicans as Johnson and Duval were, they had, generally, upheld +Marshall's Nationalism. Their places must soon be filled, he knew, by +men of Jackson's choosing--men who would yield to the transient public +pressure then so fiercely brought to bear on the Supreme Court. Only +Joseph Story could be relied upon to maintain Marshall's principles. The +increasing tendency of Justices Thompson, McLean, and Baldwin was known +to be against his unyielding Constitutional philosophy. It was more than +probable that, before another year, Jackson would have the opportunity +to appoint two new Justices--and two cases were pending that involved +some of Marshall's dearest Constitutional principles. + +The first of these was a Kentucky case[1552] in which almost precisely +the same question, in principle, arose that Marshall had decided in +Craig _vs._ Missouri.[1553] The Kentucky Bank, owned by the State, was +authorized to issue, and did issue, bills which were made receivable for +taxes and other public dues. The Kentucky law furthermore directed that +an endorsement and tender of these State bank notes should, with certain +immaterial modifications, satisfy any judgment against a debtor.[1554] +In short, the Legislature had authorized a State currency--had emitted +those bills of credit, expressly forbidden by the National Constitution. + +Another case, almost equally important, came from New York.[1555] To +prevent the influx of impoverished foreigners, who would be a charge +upon the City of New York, the Legislature had enacted that the masters +of ships arriving at that port should report to the Mayor all facts +concerning passengers. The ship captain must remove those whom the Mayor +decided to be undesirable.[1556] It was earnestly contended that this +statute violated the commerce clause of the Constitution. + +Both cases were elaborately argued; both, it was said, had been settled +by former decisions--the Kentucky case by Craig _vs._ Missouri, the New +York case by Gibbons _vs._ Ogden and Brown _vs._ Maryland. The court was +almost equally divided. Thompson, McLean, and Baldwin thought the +Kentucky and New York laws Constitutional; Marshall, Story, Duval, and +Johnson believed them invalid. But Johnson was absent because of his +serious illness. No decision, therefore, was possible. + +Marshall then announced a rule of the court, hitherto unknown by the +public: "The practice of this court is not (except in cases of absolute +necessity) to deliver any judgment in cases where constitutional +questions are involved, unless four judges concur in opinion, thus +making the decision that of a majority of the whole court. In the +present cases four judges do not concur in opinion as to the +constitutional questions which have been argued. The court therefore +direct these cases to be re-argued at the next term, under the +expectation that a larger number of the judges may then be +present."[1557] + +The next term! When, on January 12, 1835, John Marshall for the last +time presided over the Supreme Court of the United States, the +situation, from his point of view, was still worse. Johnson had died and +Jackson had appointed James M. Wayne of Georgia in his place. Duval had +resigned not long before the court convened, and his successor had not +been named. Again the New York and Kentucky cases were continued, but +Marshall fully realized that the decision of them must be in opposition +to his firm and pronounced views.[1558] + +[Illustration: Associate Justices at the last session of the Supreme +Court over which John Marshall presided: McLEAN, THOMPSON, STORY, WAYNE, +BALDWIN] + +It is doubtful whether history shows more than a few examples of an aged +man, ill, disheartened, and knowing that he soon must die, who +nevertheless continued his work to the very last with such scrupulous +care as did Marshall. He took active part in all cases argued and +decided and actually delivered the opinion of the court in eleven of the +most important.[1559] None of these are of any historical interest; but +in all of them Marshall was as clear and vigorous in reasoning and style +as he had been in the immortal Constitutional opinions delivered at the +height of his power. The last words Marshall ever uttered as Chief +Justice sparkle with vitality and high ideals. In Mitchel _et al. vs._ +The United States,[1560] a case involving land titles in Florida, he +said, in ruling on a motion to continue the case: "Though the hope of +deciding causes to the mutual satisfaction of parties would be +chimerical, that of convincing them that the case has been fully and +fairly considered ... may be sometimes indulged. Even this is not +always attainable. In the excitement produced by ardent controversy, +gentlemen view the same object through such different media that minds, +not infrequently receive therefrom precisely opposite impressions. The +Court, however, must see with its own eyes, and exercise its own +judgment, guided by its own reason."[1561] + +At last Marshall had grave intimations that his life could not be +prolonged. Quite suddenly his health declined, although his mind was as +strong and clear as ever. "Chief Justice Marshall still possesses his +intellectual powers in very high vigor," writes Story during the last +session of the Supreme Court over which his friend and leader presided. +"But his physical strength is manifestly on the decline; and it is now +obvious, that after a year or two, he will resign, from the pressing +infirmities of age.... What a gloom will spread over the nation when he +is gone! His place will not, nay, it cannot be supplied."[1562] + +As the spring of 1835 ripened into summer, Marshall grew weaker. "I pray +God," wrote Story in agonies of apprehension, "that he may long live to +bless his country; but I confess that I have many fears whether he can +be long with us. His complaints are, I am sure, incurable, but I suppose +that they may be alleviated, unless he should meet with some accidental +cold or injury to aggravate them. Of these, he is in perpetual danger, +from his imprudence as well as from the natural effects of age."[1563] + +In May, 1835, Kent went to Richmond in order to see Marshall, whom "he +found very emaciated, feeble & dangerously low. He injured his Spine by +a Post Coach fall & oversetting.... He ... made me _Promise to see him +at Washington next Winter_."[1564] + +Kent wrote Jeremiah Smith of New Hampshire that Marshall must soon die. +Smith was overwhelmed with grief "because his life, at this time +especially, is of incalculable value." Marshall's "views ... of our +national affairs" were those of Smith also. "Perfectly just in +themselves they now come to us confirmed by the dying attestation of one +of the greatest and best of men."[1565] + +Marshall's "incurable complaint," which so distressed Story, was a +disease of the liver.[1566] Finding his health failing, he again +repaired to Philadelphia for treatment by Dr. Physick. When informed +that the prospects for his friend's recovery were desperate, Story was +inconsolable. "Great, good and excellent man!" he wrote. "I shall never +see his like again! His gentleness, his affectionateness, his glorious +virtues, his unblemished life, his exalted talents, leave him without a +rival or a peer."[1567] + +At six o'clock in the evening of Monday, July 6, 1835, John Marshall +died, in his eightieth year, in the city where American Independence was +proclaimed and the American Constitution was born--the city which, a +patriotic soldier, he had striven to protect and where he had received +his earliest national recognition. Without pain, his mind as clear and +strong as ever, he "met his fate with the fortitude of a Philosopher, +and the resignation of a Christian," testifies Dr. Nathaniel Chapman, +who was present.[1568] By Marshall's direction, the last thing taken +from his body after he expired was the locket which his wife had hung +about his neck just before she died.[1569] The morning after his death, +the bar of Philadelphia met to pay tribute to Marshall, and at half-past +five of the same day a town meeting was held for the same purpose.[1570] + +Immediately afterward, his body was sent by boat to Richmond. The bench, +bar, and hundreds of citizens of Philadelphia accompanied the funeral +party to the vessel. During the voyage a transfer was made to another +craft.[1571] A committee, consisting of Major-General Winfield Scott, of +the United States Army, Henry Baldwin, Associate Justice of the Supreme +Court, Richard Peters, formerly Judge for the District of Pennsylvania, +John Sergeant, Edward D. Ingraham, and William Rawle, of the +Philadelphia bar, went to Richmond. + +In the late afternoon of July 9, 1835, the steamboat Kentucky, bearing +Marshall's body, drew up at the Richmond wharf. Throughout the day the +bells had been tolling, the stores were closed, and, as the vessel came +within sight, a salute of three guns was fired. All Richmond assembled +at the landing. An immense procession marched to Marshall's house,[1572] +where he had requested that his body be first taken, and then to the +"New Burying Ground," on Shockoe Hill. There Bishop Richard Channing +Moore of the Episcopal Church read the funeral service, and John +Marshall was buried by the side of his wife. + +When his ancient enemy and antagonist, the Richmond _Enquirer_, +published the news of Marshall's death, it expressed briefly its true +estimate of the man. It would be impossible, said the _Enquirer_, to +over-praise Marshall's "brilliant talents." It would be "a more grateful +incense" to his memory to say "that he was as much beloved as he was +respected.... There was about him so little of 'the insolence of +office,' and so much of the benignity of the man, that his presence +always produced ... the most delightful impressions. There was something +irresistibly winning about him." Strangers could hardly be persuaded +that "in the plain, unpretending ... man who told his anecdote and +enjoyed the jest--they had been introduced to the Chief Justice of the +United States, whose splendid powers had filled such a large space in +the eye of mankind."[1573] + +The Richmond _Whig and Public Advertiser_ said that "no man has lived or +died in this country, save its father George Washington alone, who +united such a warmth of affection for his person, with so deep and +unaffected a respect for his character, and admiration for his great +abilities. No man ever bore public honors with so meek a dignity ... It +is hard ... to conceive of a more perfect character than his, for who +can point to a vice, scarcely to a defect--or who can name a virtue that +did not shine conspicuously in his life and conduct?"[1574] + +The day after the funeral the citizens of Richmond gathered at and about +the Capitol, again to honor the memory of their beloved neighbor and +friend. The resolutions, offered by Benjamin Watkins Leigh, declared +that the people of Richmond knew "better than any other community can +know" Marshall's private and public "virtues," his "wisdom," +"simplicity," "self-denial," "unbounded charity," and "warm benevolence +towards all men." Since nothing they can say can do justice to "such a +man," the people of Richmond "most confidently trust, to History alone, +to render due honors to his memory, by a faithful and immortal record of +his wisdom, his virtues and his services."[1575] + +All over the country similar meetings were held, similar resolutions +adopted. Since the death of Washington no such universal public +expressions of appreciation and sorrow had been witnessed.[1576] The +press of the country bore laudatory editorials and articles. Even +Hezekiah Niles, than whom no man had attacked Marshall's Nationalist +opinions more savagely, lamented his death, and avowed himself unequal +to the task of writing a tribute to Marshall that would be worthy of the +subject. "'A great man has fallen in Israel,'" said Niles's _Register_. +"Next to WASHINGTON, only, did he possess the reverence and homage of +the heart of the American people."[1577] + +One of the few hostile criticisms of Marshall's services appeared in the +_New York Evening Post_ over the name of "Atlantic."[1578] This paper +had, by now, departed from the policy of its Hamiltonian founder. +"Atlantic" said that Marshall's "political doctrines ... were of the +ultra federal or aristocratic kind.... With Hamilton" he "distrusted the +virtue and intelligence of the people, and was in favor of a strong and +vigorous General Government, at the expense of the rights of the States +and of the people." While he was "sincere" in his beliefs and "a good +and exemplary man" who "truly loved his country ... he has been, all his +life long, a stumbling block ... in the way of democratic principles.... +His situation ... at the head of an important tribunal, constituted in +utter defiance of the very first principles of democracy, has always +been ... an occasion of lively regret. That he is at length removed from +that station is a source of satisfaction."[1579] + +The most intimate and impressive tributes came, of course, from +Virginia. Scarcely a town in the State that did not hold meetings, hear +orations, adopt resolutions. For thirty days the people of Lynchburg +wore crape on the arm.[1580] Petersburg honored "the Soldier, the +Orator, the Patriot, the Statesman, the Jurist, and above all, the good +and virtuous man."[1581] Norfolk testified to his "transcendent ability, +perfect integrity and pure patriotism."[1582] For weeks the Virginia +demonstrations continued. That at Alexandria was held five weeks after +his death. "The flags at the public square and on the shipping were +displayed at half mast; the bells were tolled ... during the day, and +minute guns fired by the Artillery"; there was a parade of military +companies, societies and citizens, and an oration by Edgar +Snowden.[1583] + +The keenest grief of all, however, was felt by Marshall's intimates of +the Quoit Club of Richmond. Benjamin Watkins Leigh proposed, and the +club resolved, that, as to the vacancy caused by Marshall's death, +"there should be no attempt to fill it ever; but that the number of the +club should remain one less than it was before his death."[1584] + +[Illustration: _The Grave of John Marshall_] + +Story composed this "inscription for a cenotaph": + + "To Marshall reared--the great, the good, the wise; + Born for all ages, honored in all skies; + His was the fame to mortals rarely given, + Begun on earth, but fixed in aim on heaven. + Genius, and learning, and consummate skill, + Moulding each thought, obedient to the will; + Affections pure, as e'er warmed human breast, + And love, in blessing others, doubly blest; + Virtue unspotted, uncorrupted truth, + Gentle in age, and beautiful in youth;-- + These were his bright possessions. These had power + To charm through life and cheer his dying hour. + Are these all perished? No! but snatched from time, + To bloom afresh in yonder sphere sublime. + Kind was the doom (the fruit was ripe) to die, + Mortal is clothed with immortality."[1585] + +Upon his tomb, however, were carved only the words he himself wrote for +that purpose two days before he died, leaving nothing but the final date +to be supplied: + + JOHN MARSHALL + + The son of Thomas and Mary Marshall + Was born on the 24th of + September, 1755; intermarried + with Mary Willis Ambler + the 3d of January, 1783; + departed this life the 6th day + of July, 1835. + + +FOOTNOTES: + +[1390] Marshall to Story, June 26, 1831, _Proceedings, Mass. Hist. Soc. +2d_ Series, XIV, 344-45. + +[1391] Same to same, Oct. 12, 1831, _ib._ 346-48. + +[1392] Marshall to Story, Oct. 12, 1831, _Proceedings, Mass. Hist. Soc._ +2d Series, XIV, 347. A rumor finally got about that Marshall +contemplated resigning. (See Niles, XL, 90.) + +[1393] The resolutions of the bar had included the same idea, and +Marshall emphasized it by reiterating it in his response. + +[1394] Hazard's _Pennsylvania Register_, as quoted in Dillon, III, +430-33. The artist referred to was either Thomas Sully, or Henry Inman, +who had studied under Sully. During the following year, Inman painted +the portrait and it was so excellent that it brought the artist his +first general recognition. The original now hangs in the rooms of the +Philadelphia Law Association. A reproduction of it appears as the +frontispiece of this volume. + +[1395] Randolph: _A Memoir on the Life and Character of Philip Syng +Physick, M.D._ 97-99. + +[1396] Marshall to Story, Nov. 10, 1831, _Proceedings, Mass. Hist. Soc._ +2d Series, XIV, 348-49. + +[1397] Story to Peters, Oct. 29, 1831, Story, II, 70. + +[1398] Marshall to his wife, Oct. 6, 1831, MS. + +[1399] This is the only indication in any of Marshall's letters that his +wife had written him. + +[1400] Mrs. Marshall had a modest fortune of her own, bequeathed to her +by her uncle. She invested this quite independently of her husband. +(Leigh to Biddle, Sept. 7, 1837, McGrane, 289.) + +[1401] Marshall to his wife, Nov. 8, 1831, MS. + +[1402] Terhune, 98. This locket is now in the possession of Marshall's +granddaughter, Miss Emily Harvie of Richmond. + +[1403] Story to his wife, March 4, 1832, Story, II, 86-87. + +Soon after the death of his wife, Marshall made his will "entirely in +[his] ... own handwriting." A more informal document of the kind seldom +has been written. It is more like a familiar letter than a legal paper; +yet it is meticulously specific. "I owe nothing on my own account," he +begins. (He specifies one or two small obligations as trustee for women +relatives and as surety for "considerable sums" for his son-in-law, +Jacquelin B. Harvie.) The will shows that he owns bank and railroad +stock and immense quantities of land. He equally divides his property +among his children, making special provision that the portion of his +daughter Mary shall be particularly safeguarded. + +One item of the will is curious: "I give to each of my grandsons named +John one thousand acres, part of my tract of land called Canaan lying in +Randolph county. If at the time of my death either of my sons should +have no son living named John, then I give the thousand acres to any son +he may have named Thomas, in token for my love for my father and +veneration for his memory. If there should be no son named John or +Thomas, then I give the land to the eldest son and if no sons to the +daughters." + +He makes five additions to his will, three of which he specifically +calls "codicils." One of these is principally "to emancipate my faithful +servant Robin and I direct his emancipation if he _chuses_ to conform to +the laws on that subject, requiring that he should leave the state or if +permission can be obtained for his continuing to reside in it." If Robin +elects to go to Liberia, Marshall gives him one hundred dollars. "If he +does not go there I give him fifty dollars." In case it should be found +"impracticable to liberate" Robin, "I desire that he may choose his +master among my sons, or if he prefer my daughter that he may be held in +trust for her and her family as is the other property bequeathed in +trust for her, and that he may always be treated as a faithful and +meritorious servant." (Will and Codicils of John Marshall, Records of +Henrico County, Richmond, and Fauquier County, Warrenton, Virginia.) + +[1404] Meade, II, footnote to 222. It would seem that Marshall showed +this tribute to no one during his lifetime except, perhaps, to his +children. At any rate, it was first made public in Bishop Meade's book +in 1857. + +[1405] Statements to the author by Miss Elizabeth Marshall of "Leeds +Manor," and by Judge J. K. N. Norton of Alexandria, Va. + +[1406] Statement to the author by Miss Emily Harvie. Most of Marshall's +letters to Story during these years were written from Richmond. + +[1407] Story to Sumner, Feb. 6, 1833, Story, II, 120. + +[1408] See _infra_, 540-51. + +[1409] See Catterall, 407, 421-22, 467; and see especially Parton: +_Jackson_, III, 257-58. + +[1410] Catterall, Appendix IX, 508. + +[1411] _Ib._ chaps. V and VII. Biddle was appointed director of the Bank +by President Monroe in 1819, and displayed such ability that, in 1823, +he was elected president of the institution. Not until he received +information that Jackson was hostile to the Bank did Biddle begin the +morally wrong and practically unwise policy of loaning money without +proper security to editors and members of Congress. + +[1412] Parton: _Jackson_, III, 260. + +[1413] Richardson, II, 462. + +[1414] _Ib._ 528-29 + +[1415] See Catterall, 235. For account of the fight for the Bank Bill +see _ib._ chap. X. + +[1416] Richardson, II, 580-82. + +[1417] _Ib._ 582-83. + +[1418] Richardson, II, 584. + +[1419] Jackson's veto message was used with tremendous effect in the +Presidential campaign of 1832. There cannot be the least doubt that the +able politicians who managed Jackson's campaign and, indeed, shaped his +Administration, designed that the message should be put to this use. +These politicians were William B. Lewis, Amos Kendall, Martin Van Buren, +and Samuel Swartwout. + +[1420] Richardson, II, 590-91. + +[1421] Marshall to Story, Aug. 2, 1832, _Proceedings, Mass. Hist. Soc._ +2d Series, XIV, 349-51. + +[1422] Richardson, II, 638. There was a spirited contest in the House +over this bill. (See _Debates_, 22d Cong. 1st Sess. 2438-44, 3248-57, +3286.) It reached the President at the end of the session, so that he +had only to refuse to sign it, in order to kill the measure. + +[1423] In fact Jackson did send a message to Congress on December 6, +1832, explaining his reasons for having let the bill die. (Richardson, +II, 638-39.) + +[1424] Marshall to Story, Aug. 2, 1832, _Proceedings, Mass. Hist. Soc._ +2d Series, XIV, 350. + +[1425] Marshall to Story, Dec. 3, 1834, _Proceedings, Mass. Hist. Soc._ +2d Series, XIV, 359. + +The outspoken and irritable Kent expressed the conservatives' opinion of +Jackson almost as forcibly as Ames stated their views of Jefferson: "I +look upon Jackson as a detestable, ignorant, reckless, vain and +malignant Tyrant.... This American Elective Monarchy frightens me. The +Experiment, with its foundations laid on universal Suffrage and an +unfettered and licentious Press is of too violent a nature for our +excitable People. We have not in our large cities, if we have in our +country, moral firmness enough to bear it. _It racks the machine too +much._" (Kent to Story, April 11, 1834, Story MSS. Mass. Hist. Soc.) In +this letter Kent perfectly states Marshall's convictions, which were +shared by nearly every judge and lawyer in America who was not "in +politics." + +[1426] See _supra_, 420. + +[1427] _Annals_, 18th Cong. 1st Sess. 2097. + +[1428] _Annals_, 18th Cong. 1st Sess. 2163. + +[1429] _Ib._ 2208. + +[1430] _Debates_, 20th Cong. 1st Sess. 746. + +[1431] _Ib._ 2431. + +[1432] _Ib._ 2434. + +[1433] _Ib._ 2435. + +[1434] _Debates_, 20th Cong. 1st Sess. 2437. + +[1435] This was the plan of George McDuffie. Calhoun approved it. +(Houston: _A Critical Study of Nullification in South Carolina_, 70-71.) + +[1436] _Ib._ + +[1437] _Ib._ 75. + +[1438] Calhoun's "Exposition" was reported by a special committee of the +South Carolina House of Representatives on December 19, 1828. It was not +adopted, however, but was printed, and is included in _Statutes at Large +of South Carolina_, edited by Thomas Cooper, I, 247-73. + +[1439] Jefferson to Giles, Dec. 26, 1825, _Works_: Ford, XII, 425-26. + +[1440] Niles, XXV, 48. + +[1441] See Phillips: _Georgia and State Rights_, in _Annual Report, Am. +Hist. Ass'n_ (1901), II, 71. + +[1442] Resolution of Dec. 27, 1827, _Laws of Georgia, 1827_, 249; and +see Phillips, 72. + +[1443] Act of Dec. 20, _Laws of Georgia, 1828_, 88-89. + +[1444] Parton: _Jackson_, III, 272. + +[1445] Phillips, 72. + +[1446] Act of Dec. 22, _Laws of Georgia, 1830_, 114-17. + +[1447] Act of Dec. 23, _ib._ 118; Dec. 21, _ib._ 127-43; Dec. 22, _ib._ +145-46 + +[1448] Wirt to Carr, June 21, 1830, Kennedy, II, 292-93. + +[1449] See _Debates_, 21st Cong. 1st Sess. 309-57, 359-67, 374-77, +994-1133. For the text of this bill as it passed the House see _ib._ +1135-36. It became a law May 28, 1830. (_U.S. Statutes at Large_, IV, +411.) For an excellent account of the execution of this measure see +Abel: _The History of the Events Resulting in Indian Consolidation West +of the Mississippi River, Annual Report, Am. Hist. Ass'n_, 1906, I, +381-407. This essay, by Dr. Anne Héloise Abel, is an exhaustive and +accurate treatment of the origin, development, and execution of the +policy pursued by the National and State Governments toward the Indians. +Dr. Abel attaches a complete bibliography and index to her brochure. + +[1450] 5 Peters, 1. + +[1451] Marshall to Carr, 1830, Kennedy, II, 296-97. + +As a young man Marshall had thought so highly of Indians that he +supported Patrick Henry's plan for white amalgamation with them. (See +vol. I, 241, of this work.) Yet he did not think our general policy +toward the Indians had been unwise. They were, he wrote Story, "a fierce +and dangerous enemy whose love of war made them sometimes the +aggressors, whose numbers and habits made them formidable, and whose +cruel system of warfare seemed to justify every endeavour to remove them +to a distance from civilized settlements. It was not until after the +adoption of our present government that respect for our own safety +permitted us to give full indulgence to those principles of humanity and +justice which ought always to govern our conduct towards the aborigines +when this course can be pursued without exposing ourselves to the most +afflicting calamities. That time, however, is unquestionably arrived, +and every oppression now exercised on a helpless people depending on our +magnanimity and justice for the preservation of their existence +impresses a deep stain on the American character. I often think with +indignation on our disreputable conduct (as I think) in the affair of +the Creeks of Georgia." (Marshall to Story, Oct. 29, 1829, _Proceedings, +Mass. Hist. Soc._ 2d Series, XIV, 337-38.) + +[1452] Niles, XXXIX, 338. + +[1453] _Ib._ 353. + +[1454] _Memoirs, J. Q. A._: Adams, VIII, 262-63. + +[1455] The argument for the Cherokee Nation was made March 12 and 14, +1831. + +[1456] 5 Peters, 15. + +[1457] 5 Peters, 16-17. + +[1458] _Ib._ 17-18. + +[1459] 5 Peters, 20. Justice Smith Thompson dissented in an opinion of +immense power in which Story concurred. These two Justices maintained +that in legal controversies, such as that between the Cherokees and +Georgia, the Indian tribe must be treated as a foreign nation. (_Ib._ +50-80.) + +Thompson's opinion was as Nationalist as any ever delivered by Marshall. +It well expressed the general opinion of the North, which was vigorously +condemnatory of Georgia as the ruthless despoiler of the rights of the +Indians and the robber of their lands. + +[1460] See _supra_, 121-25. + +[1461] Phillips, 79. + +[1462] See McMaster, VI, 47-50. + +[1463] Phillips, 81. + +[1464] _Ib._ 80-81. + +[1465] 6 Peters, 534-35. + +[1466] Story to his wife, Feb. 26, 1832, Story, II, 84. + +[1467] 6 Peters, 536. + +[1468] _Ib._ 537-42. + +[1469] _Ib._ 542. + +[1470] _Ib._ 542-61 + +[1471] See vol. III, 504-13, of this work. + +[1472] 6 Peters, 561-63. + +[1473] Story to Ticknor, March 8, 1832, Story, II, 83. + +[1474] Lumpkin's Message to the Legislature, Nov. 6, 1832, as quoted in +Phillips, 82. + +[1475] Greeley: _The American Conflict_, I, 106; and see Phillips, 80. + +[1476] When the Georgia Legislature first met after the decision of the +Worcester case, acts were passed to strengthen the lottery and +distribution of Cherokee lands (Acts of Nov. 14, 22, and Dec. 24, 1832, +_Laws of Georgia, 1832_, 122-25, 126, 127) and to organize further the +Cherokee territory under the guise of protecting the Indians. (Act of +Dec. 24, 1832, _ib_. 102-05.) Having demonstrated the power of the State +and the impotence of the highest court of the Nation, the Governor of +Georgia, one year after Marshall delivered his opinion, pardoned +Worcester and Butler, but not without protests from the people. + +Two years later, Georgia's victory was sealed by a final successful +defiance of the Supreme Court. One James Graves was convicted of murder; +a writ of error was procured from the Supreme Court; and a citation +issued to Georgia as in the case of George Tassels. The high spirit of +the State, lifted still higher by three successive triumphs over the +Supreme Court, received the order with mingled anger and derision. +Governor Lumpkin threatened secession: "Such attempts, if persevered in, +will eventuate in the dismemberment and overthrow of our great +confederacy," he told the Legislature. (Governor Lumpkin's Special +Message to the Georgia Legislature, Nov. 7, 1834, as quoted in Phillips, +84.) + +The Indians finally were forced to remove to the Indian Territory. (See +Phillips, 83.) Worcester went to his Vermont home. + +[1477] _Debates_, 21st Cong. 1st Sess. 58. The debate between Webster +and Hayne occurred on a resolution offered by Senator Samuel Augustus +Foot of Connecticut, "that the Committee on Public Lands be instructed +to inquire into the expediency of limiting for a certain period the +sales of public lands," etc. (_Ib._ 11.) The discussion of this +resolution, which lasted more than three months (see _ib._ 11-302), +quickly turned to the one great subject of the times, the power of the +National Government and the rights of the States. It was on this +question that the debate between Webster and Hayne took place. + +[1478] _Ib._ 64. Compare with Marshall's language in Cohens _vs._ +Virginia, _supra_, 355. + +[1479] _Debates_, 21st Cong. 1st Sess. 73. + +[1480] See Marshall's statement of this principle, _supra_, 293, 355. + +[1481] _Debates_, 21st Cong. 1st Sess. 74. + +This was the Constitutional theory of the Nationalists. As a matter of +fact, it was not, perhaps, strictly true. There can be little doubt that +a majority of the people did not favor the Constitution when adopted by +the Convention and ratified by the States. Had manhood suffrage existed +at that time, and had the Constitution been submitted directly to the +people, it is highly probable that it would have been rejected. (See +vol. I, chaps, IX-XII, of this work.) + +[1482] _Debates_, 21st Cong. 1st Sess. 76. See chap, III, vol. III, of +this work. + +[1483] _Debates_, 21st Cong. 1st Sess. 78. + +[1484] _Ib._ See Marshall's opinion in Cohens _vs._ Virginia, _supra_, +347-57. + +[1485] _Debates_, 21st Cong. 1st Sess. 80. + +[1486] Niles, XXXIX, 118. + +[1487] _Ib._ 330. + +[1488] _Debates_, 21st Cong. 1st Sess. 287. + +[1489] _Ib._ 285. + +[1490] Marshall to Johnston, May 22, 1830, MSS. "Society Collection," +Pa. Hist. Soc. + +[1491] Madison to Everett, Aug. 28, 1830, _Writings_: Hunt, IX, 383-403. + +[1492] _North American Review_ (1830), XXXI, 537-46. + +[1493] Marshall to Story, Oct. 15, 1830, _Proceedings, Mass. Hist. Soc._ +2d Series, XIV, 342-43. + +[1494] Jackson to the Committee, June 14, 1831, Niles, XL, 351. + +[1495] _State Doc. Fed. Rel._: Ames, 167-68. + +[1496] Marshall to Story, Aug. 2, 1832, _Proceedings, Mass. Hist. Soc._ +2d Series, XIV, 350. + +[1497] Same to same, Sept. 22, 1832, _ib._ 351-52. + +[1498] Niles, XLII, 387. + +[1499] _Ib._ 388. + +[1500] Under Act of Oct. 26, 1832, _Statutes at Large of South +Carolina_: Cooper, I, 309-10. + +[1501] _Statutes at Large of South Carolina_: Cooper, I, 329-31. + +[1502] _Ib._ 434-45. + +[1503] _Ib._ 444-45; also Niles, XLIII, 219-20. + +[1504] Marshall to Peters, Dec. 3, 1832, Peters MSS. Pa. Hist. Soc. + +[1505] See _supra_, footnote to 115. + +[1506] Richardson, II, 640-56; Niles, XLIII, 260-64. + +[1507] Story to his wife, Jan. 27, 1838, Story, II, 119. + +[1508] Niles, XLIII, 266-67. + +[1509] _Ib._ 287. + +[1510] _Ib._ + +[1511] _Statutes at Large of South Carolina_: Cooper, I, 355. + +[1512] _Ib._ 356-57. + +[1513] _Statutes at Large of South Carolina_: Cooper, I, 362. + +[1514] _Ib._ 360. + +[1515] _Ib._ 370. + +[1516] December 20, the same day that Hayne's Proclamation appeared. + +[1517] _Statutes at Large of South Carolina_: Cooper, I, 271-74. + +[1518] _Ib._ VIII, 562-64. + +[1519] _Ib._ 562-98. + +[1520] Parton: _Jackson_, III, 460-61, 472; Bassett: _Life of Andrew +Jackson_, 564; MacDonald: _Jacksonian Democracy_, 156. + +[1521] Parton: _Jackson_, III, 459. + +[1522] Niles, XLIII, 312. + +[1523] _Ib._ 332. + +[1524] Parton: _Jackson_, III, 472. + +[1525] Richardson, II, 598-99. + +[1526] Niles, XLIII, 275. + +[1527] _Ib._ + +[1528] _Ib._ 276. + +[1529] Niles, XLIII, 394-96. The resolutions, as adopted, provided for +only one commissioner. (See _infra_, 573.) + +[1530] _Writings and Speeches of Daniel Webster_ (Nat. ed.) XIII, 40-42. + +[1531] Marshall to Story, Dec. 25, 1832, _Proceedings_, _Mass. Hist. +Soc._ 2d Series, XIV, 352-54. + +[1532] Niles, XLIII, 396-97; also _Statutes at Large of South Carolina_: +Cooper, I, 381-83. + +[1533] Niles, XLIII, 397. For the details of Leigh's mission see _ib._ +377-93; also _Statutes at Large of South Carolina_: Cooper, I, 384-94. + +[1534] Niles, XLIII, 380-82. + +[1535] See Parton: _Jackson_, III, 475-82. + +[1536] Marshall to Story, April 24, 1833, _Proceedings, Mass. Hist. +Soc._ 2d Series, XIV, 356-57. + +[1537] _Ib._ + +[1538] Same to same, Nov. 16, 1833, _ib._ 358. + +[1539] Marshall to Story, June 3, 1833, _Proceedings, Mass. Hist. Soc._ +2d Series, XIV, 358. + +[1540] Story ends his _Commentaries on the Constitution of the United +States_ by a fervent, passionate, and eloquent appeal for the +preservation, at all hazards, of the Constitution and the Union. + +[1541] Marshall to Story, July 31, 1833, Story, II, 135-36. + +[1542] Marshall to Story, Oct. 6, 1834, Story, II, 172-73. + +[1543] Story to his wife, Jan. 20, 1833, _ib._ 116. + +[1544] _Ib._ 117. + +[1545] Story to his wife, Jan. 20, 1833, Story, II, 116. + +[1546] July 4, 1826. + +[1547] Jefferson's attacks on Marshall in the X. Y. Z. affair. (See vol. +II, 359-63, 368-69, of this work.) + +[1548] Marshall to Major Henry Lee, Jan. 20, 1832, MSS. Lib. Cong. In no +collection, but, with a few unimportant letters, in a portfolio marked +"M," sometimes referred to as "Marshall Papers." + +[1549] _Green Bag_, VIII, 463. + +[1550] Marshall to Story, July 3, 1829, _Proceedings, Mass. Hist Soc._ +2d Series, XIV, 340. + +[1551] Story to Marshall, January, 1833, Story, II, 132-33. This letter +appears in Story's _Commentaries on the Constitution_, immediately after +the title-page of volume I. + +Story's perfervid eulogium did not overstate the feeling--the +instinct--of the public. Nathan Sargent, that trustworthy writer of +reminiscences, testifies that, toward the end of Marshall's life, his +name had "become a household word with the American people implying +greatness, purity, honesty, and all the Christian virtues." (Sargent, I, +299.) + +[1552] Briscoe _vs._ The Commonwealth's Bank of the State of Kentucky, 8 +Peters, 118 _et seq._ + +[1553] See _supra_, 509-13. + +[1554] Act of Dec. 25, _Laws of Kentucky, 1820_, 183-88. + +[1555] The Mayor, Aldermen and Commonalty of the City of New York _vs._ +Miln, 8 Peters, 121 _et seq._ + +[1556] 11 Peters, 104. This was the first law against unrestricted +immigration. + +[1557] 8 Peters, 122. + +[1558] These cases were not decided until 1837, when Roger Brooke Taney +of Maryland took his seat on the bench as Marshall's successor. Philip +Pendleton Barbour of Virginia succeeded Duval. Of the seven Justices, +only one disciple of Marshall remained, Joseph Story. + +In the New York case the court held that the State law was a local +police regulation. (11 Peters, 130-43; 144-53.) Story dissented in a +signally able opinion of almost passionate fervor. + +"I have the consolation to know," he concludes, "that I had the entire +concurrence ... of that great constitutional jurist, the late Mr. Chief +Justice Marshall. Having heard the former arguments, his deliberate +opinion was that the act of New York was unconstitutional, and that the +present case fell directly within the principles established in the case +of Gibbons v. Ogden." (_Ib._ 153-61.) + +In the Kentucky Bank case, decided immediately after the New York +immigrant case, Marshall's opinion in Craig _vs._ Missouri was +completely repudiated, although Justice McLean, who delivered the +opinion of the court (_ib._ 311-28), strove to show that the judgment +was within Marshall's reasoning. + +Story, of course, dissented, and never did that extraordinary man write +with greater power and brilliancy. When the case was first argued in +1834, he said, a majority of the court "were decidedly of the opinion" +that the Kentucky Bank Law was unconstitutional. "In principle it was +thought to be decided by the case of Craig v. The State of Missouri." +Among that majority was Marshall--"a name never to be pronounced without +reverence." (_Ib._ 328.) + +In closing his great argument, Story says that the frankness and fervor +of his language are due to his "reverence and affection" for Marshall. +"I have felt an earnest desire to vindicate his memory.... I am sensible +that I have not done that justice to his opinion which his own great +mind and exalted talents would have done. But ... I hope that I have +shown that there were solid grounds on which to rest his exposition of +the Constitution. _His saltem accumulem donis, et fungar inani munere._" +(11 Peters, 350.) + +[1559] Lessee of Samuel Smith _vs._ Robert Trabue's Heirs, 9 Peters, +4-6; U.S. _vs._ Nourse, _ib._ 11-32; Caldwell _et al. vs._ Carrington's +Heirs, _ib._ 87-105; Bradley _vs._ The Washington, etc. Steam Packet Co. +_ib._ 107-16; Delassus _vs._ U.S. _ib._ 118-36; Chouteau's Heirs _vs._ +U.S. _ib._ 137-46; U.S. _vs._ Clarke, _ib._ 168-70; U.S. _vs._. Huertas, +_ib._ 171-74; Field et _al. vs._ U.S. _ib._ 182-203; Mayor, etc. of New +Orleans _vs._ De Armas and Cucullo, _ib._. 224-37; Life and Fire Ins. +Co. of New York _vs._ Adams, _ib._ 571-605. + +[1560] _Ib._ 711-63. + +[1561] 9 Peters, 723. + +[1562] Story to Fay, March 2, 1835, Story, II, 193. + +[1563] Story to Peters, May 20, 1835, _ib._ 194. + +[1564] Kent's Journal, May 16, 1835, Kent MSS. Lib. Cong. + +[1565] Smith to Kent, June 13, 1835, Kent MSS. Lib. Cong. + +[1566] Randolph: _Physick_, 100-01. + +[1567] Story to Peters, June 19, 1835, Story, II, 199-200. + +[1568] Chapman to Brockenbrough, July 6, 1835, quoted in the Richmond +_Enquirer_, July 10, 1835. Marshall died "at the Boarding House of Mrs. +Crim, Walnut street below Fourth." (Philadelphia _Inquirer_, July 7, +1835.) Three of Marshall's sons were with him when he died. His eldest +son, Thomas, when hastening to his father's bedside, had been killed in +Baltimore by the fall upon his head of bricks from a chimney blown down +by a sudden and violent storm. Marshall was not informed of his son's +death. + +[1569] Terhune, 98. + +[1570] Philadelphia _Inquirer_, July 7, 1835. + +[1571] Niles, XLVIII, 322. + +[1572] Richmond _Enquirer_ July 10, 1835. + +[1573] _Ib._ + +[1574] Richmond _Whig and Public Advertiser_, July 10, 1835. + +[1575] Richmond _Enquirer_, July 14, 1835. + +[1576] See Sargent, I, 299. If the statements in the newspapers and +magazines of the time are to be trusted, even the death of Jefferson +called forth no such public demonstrations as were accorded Marshall. + +[1577] Niles, XLVIII, 321. + +[1578] Undoubtedly William Leggett, one of the editors. See Leggett: _A +Collection of Political Writings_, II, 3-7. + +[1579] As reprinted in _Richmond Whig and Public Advertiser_, July 14, +1835. + +[1580] Richmond _Enquirer_, July 21, 1835. + +[1581] _Ib._ + +[1582] _Ib._ July 17, 1835. + +[1583] Alexandria _Gazette_, Aug. 13, 1835, reprinted in the Richmond +_Enquirer_, Aug. 21, 1835. + +[1584] Magruder: _John Marshall_, 282. + +[1585] Story, II, 206. + + +THE END + + + + +WORKS CITED IN THIS VOLUME + + + + +WORKS CITED IN THIS VOLUME + +_The material given in parentheses and following certain titles +indicates the form in which those titles have been cited in the +footnotes._ + + +ABEL, ANNIE HÉLOISE. The History of Events resulting in Indian +Consolidation west of the Mississippi. [Volume 1 of _Annual Report of +the American Historical Association_ for 1906.] + +ADAMS, HENRY. History of the United States of America from 1801 to 1817. +9 vols. New York. 1889-93. (Adams: _U.S._) + +---- Life of Albert Gallatin. Philadelphia. 1879. (Adams: _Gallatin_.) + +ADAMS, HENRY, _editor_. Documents relating to New England Federalism, +1800-15. Boston. 1877. (_N.E. Federalism_: Adams.) + +---- _See also_ Gallatin, Albert. Writings. + +ADAMS, JOHN. _See_ Old Family Letters. + +ADAMS, JOHN QUINCY. Memoirs. Edited by Charles Francis Adams. 12 vols. +Philadelphia. 1874-77. (_Memoirs, J. Q. A._: Adams.) + +AMBLER, CHARLES HENRY. Sectionalism in Virginia, from 1776 to 1861. +Chicago. 1910. + +---- Thomas Ritchie: A Study in Virginia Politics. Richmond. 1913. +(Ambler: _Ritchie_.) + +AMBLER, CHARLES HENRY, _editor_. _See_ John P. Branch Historical Papers. + +_American Colonization Society._ Annual Reports, 1-72. 1818-89. + +_American Historical Review._ Managing Editor, J. Franklin Jameson. +Vols. 1-24. New York. 1896-1919. (_Am. Hist. Rev._) + +_American Jurist and Law Magazine._ 28 vols. Boston. 1829-43. + +_American Law Journal._ Edited by John E. Hall. 6 vols. Baltimore. +1808-17. + +_American State Papers._ Documents, Legislative and Executive, of the +Congress of the United States. Selected and edited under the Authority +of Congress. 38 vols. Washington. 1832-61. [Citations in this work are +from "Foreign Relations" (_Am. State Papers, For. Rel._); and "Finance" +(_Am. State Papers, Finance_).] + +_American Turf Register and Sporting Magazine._ Edited by J. S. Skinner. +7 vols. Baltimore. 1830-40. + +AMES, FISHER. Works. Edited by Seth Ames. 2 vols. Boston. 1854. (_Ames_: +Ames.) + +AMES, HERMAN VANDENBURG, _editor_. State Documents on Federal Relations: +The States and the United States. Philadelphia. 1906. (_State Doc. Fed. +Rel._: Ames.) + +ANDERSON, DICE ROBINS. William Branch Giles: A Study in the Politics of +Virginia and the Nation, from 1790-1830. Menasha, Wis. 1914. (Anderson.) + + +BABCOCK, KENDRIC CHARLES. Rise of American Nationality, 1811-1819. New +York. 1906. [Volume 13 of _The American Nation: A History_.] (Babcock.) + +BANCROFT, GEORGE. _See_ Howe, M. A. De Wolfe. + +BARSTOW, GEORGE. History of New Hampshire. Concord, 1842. (Barstow.) + +BASSETT, JOHN SPENCER. Life of Andrew Jackson. 2 vols. New York. 1911. + +BAYARD, JAMES ASHETON. Papers from 1796 to 1815. Edited by Elizabeth +Donnan. [Volume 2 of _Annual Report of the American Historical +Association_ for 1913.] (_Bayard Papers_: Donnan.) + +BIDDLE, ALEXANDER. _See_ Old Family Letters. + +BIDDLE, NICHOLAS. Correspondence. Edited by Reginald C. McGrane. Boston. +1919. + +BLANE, WILLIAM NEWNHAM. An Excursion through the United States and +Canada during the Years 1822-23. By an English Gentleman. London. 1824. + +_Branch Historical Papers._ _See_ Dodd, W. E. + +BROCKENBROUGH, JOHN W., _reporter_. Reports of Cases decided by the +Honourable John Marshall, in the Circuit Court of the United States, for +the District of Virginia and North Carolina, from 1802 to 1833 +inclusive. 2 vols. Philadelphia. 1837. (Brockenbrough.) + +BROWN, SAMUEL GILMAN. Life of Rufus Choate. Boston. 1870. (Brown.) + +BRYAN, WILHELMUS BOGART. A History of the National Capital 2 vols. New +York. 1914-16. (Bryan.) + + +CABOT, GEORGE. _See_ Lodge, Henry Cabot. + +CALL, DANIEL. Reports of the Court of Appeals, Virginia [1779-1818]. 6 +vols. Richmond. 1801-33. + +CARTWRIGHT, PETER. Autobiography of Peter Cartwright, the Backwoods +Preacher. Edited by W. P. Strickland. New York. 1856. + +CATTERALL, RALPH CHARLES HENRY. Second Bank of the United States. +Chicago. 1903. [Decennial Publications of the University of Chicago.] +(Catterall.) + +CHANNING, EDWARD. A History of the United States. Vols. 1-4. New York. +1905-17. (Channing: _U.S._) + +---- Jeffersonian System, 1801-1811. New York. 1906. [Volume 12 of _The +American Nation: A History_.] (Channing: _Jeff. System_.) + +CHASE, FREDERICK. A History of Dartmouth College, and the Town of +Hanover, New Hampshire. Edited by John King Lord. 2 vols. [Vol. 2: A +History of Dartmouth College, 1815-1909. By John King Lord.] Cambridge. +1891. 1913. + +CHOATE, RUFUS. _See_ Brown, Samuel Gilman. + +CLAY, HENRY. _See_ Schurz, Carl. + +CLEVELAND, CATHERINE CAROLINE. Great Revival in the West, 1797-1805. +Chicago. 1916. + +COLLINS, LEWIS. Historical Sketches of Kentucky. Cincinnati. 1847. +(Collins.) + +CONNECTICUT. Public Statute Laws of the State of Connecticut. May +Sessions 1822, 1823, 1825, 1826. Hartford, n. d. + +COOLEY, THOMAS MCINTYRE. A Treatise on the Constitutional Limitations +which rest upon the Legislative Power of the States of the American +Union. Boston. 1868. + +COOPER, THOMAS, _editor_. Statutes at Large of South Carolina. Vols. +1-5. Columbia, S.C. 1836. + +CORWIN, EDWARD SAMUEL. John Marshall and the Constitution. New Haven. +1919. + +COTTON, JOSEPH P., JR., _editor_. Constitutional Decisions of John +Marshall. 2 vols. New York. 1905. + +COWEN, EZEKIEL, _reporter_. Reports of Cases argued and determined in +the Supreme Court ... of the State of New York. 9 vols. Albany. 1824-30. +(Cowen.) + +CRANCH, WILLIAM, _reporter_. Reports of Cases argued and adjudged in the +Supreme Court of the United States. 9 vols. New York. 1812-17. (Cranch.) + + +CURTIS, GEORGE TICKNOR. Life of Daniel Webster. 2 vols. New York. 1870. +(Curtis.) + + +DEWEY, DAVIS RICH. Financial History of the United States. New York. +1903. [American Citizen Series.] (Dewey.) + +DICKINSON, H. W. Robert Fulton, Engineer and Artist: His Life and Works. +London. 1913. (Dickinson.) + +DILLON, JOHN FORREST, _compiler and editor_. John Marshall: Life, +Character and Judicial Services, as portrayed in the Centenary +Proceedings throughout the United States on Marshall Day. 1901. 3 vols. +Chicago. 1903. (Dillon.) + +DODD, WILLIAM EDWARD, _editor_. _See_ John P. Branch Historical Papers. + +---- Statesmen of the Old South. New York. 1911. + +DONNAN, ELIZABETH, _editor_. _See_ Bayard, James A. Papers. + +DUER, WILLIAM ALEXANDER. A Letter addressed to Cadwallader D. Colden, +Esquire. In Answer to the Strictures contained in his "Life of Robert +Fulton," etc. Albany 1817. + + +_Edinburgh Review._ + +EMBARGO LAWS, with the Message from the President, upon which they were +founded. Boston. 1809. + + +FARMER, JOHN. Sketches of the Graduates of Dartmouth College. Concord. +1832. 1834. [In _New Hampshire Historical Society_. Collections. Volumes +3 and 4.] + +FARRAND, MAX, _editor_. _See_ Records of the Federal Convention of 1787. + +FARRAR, TIMOTHY, _reporter_. Report of the Case of the Trustees of +Dartmouth College against William H. Woodward. Portsmouth, N.H. 1819. +(Farrar.) + +_Federal Cases_: Cases, Circuit and District Courts, United States +[1789-1880]. St. Paul. 1894-97. + +_First Forty Years of Washington Society._ _See_ Hunt, Gaillard. + +_Fiske, John._ Essays Historical and Literary. 2 vols. New York. 1902. + +FLANDERS, HENRY. Lives and Times of the Chief Justices of the Supreme +Court of the United States. 2 vols. Philadelphia. 1881. + +FLETCHER, R. A. Steam-Ships. The Story of Their Development to the +Present Day. Philadelphia. 1910. + +FORD, PAUL LEICESTER, _editor_. _See_ Jefferson, Thomas. Works. + +FULTON, ROBERT. _See_ Dickinson, H. W.; Knox, Thomas W.; Reigart, J. +Franklin; Thurston, Robert H. + + +GALLATIN, ALBERT. Writings. Edited by Henry Adams. 3 vols. Philadelphia. +1879. (_Writings_: Adams.) + + _See also_ Adams, Henry. + +GEORGIA. Acts of the General Assembly of the State of Georgia, at an +Annual Session, in October and November, 1814. Milledgeville, Ga. 1814. + +GILES, WILLIAM BRANCH. _See_ Anderson, Dice Robins. + +_Great American Lawyers_. _See_ Lewis, William Draper. + +GREELEY, HORACE. The American Conflict. 2 vols. Hartford. 1864. 1867. + +_Green Bag, The: An Entertaining Magazine for Lawyers._ Edited by Horace +W. Fuller. Boston. 1889-1914. (_Green Bag._) + +GRIGSBY, HUGH BLAIR. The Virginia Convention of 1829-1830. Richmond. +1854. + + +HARDING, CHESTER. A Sketch of Chester Harding, Artist. Drawn by his own +Hand. Edited by Margaret Eliot White. Boston. 1890. + +_Harper's Magazine._ + +HART, ALBERT BUSHNELL, _editor_. American History told by +Contemporaries. 4 vols. New York. 1897-1901. + +---- The American Nation: A History. 27 volumes. New York. 1904-1908. + +_Harvard Law Review._ + +HARVEY, PETER. Reminiscences and Anecdotes of Webster. Boston. 1877. + +HAY, GEORGE. A Treatise on Expatriation. Washington. 1814. + +HILDRETH, RICHARD. History of the United States of America. 6 vols. New +York. 1854-55. (Hildreth.) + +HILLARD, GEORGE STILLMAN. Memoir and Correspondence of Jeremiah Mason. +Cambridge. 1873. (Hillard.) + +HOPKINS, SAMUEL M., _reporter_. Reports of Cases argued and determined +in the Court of Chancery of the State of New York. Albany. 1839. + +HOUSTON, DAVID FRANKLIN. A Critical Study of Nullification in South +Carolina. New York. 1896. [Harvard Historical Studies.] (Houston.) + +HOWARD, BENJAMIN CHEW. Reports of Cases argued and adjudged in the +Supreme Court of the United States, 1843-60. 24 vols. Philadelphia. +1852-[61]. + +HOWE, HENRY. Historical Collections of Virginia. Charleston, S.C. 1845. +(Howe.) + +HOWE, MARK ANTONY DEWOLFE, JR. Life and Letters of George Bancroft. 2 +vols. New York. 1908. + +HUNT, CHARLES HAVENS. Life of Edward Livingston. New York. 1864. (Hunt: +_Livingston_.) + +HUNT, GAILLARD, _editor_. First Forty Years of Washington Society, +portrayed by the Family Letters of Mrs. Samuel Harrison Smith. New York. +1906. + +---- _See_ Madison, James. Writings. + + +INDIANA. Revised Laws of Indiana, adopted and enacted by the General +Assembly at their Eighth Session. Corydon. 1824. + +INGERSOLL, CHARLES JARED. History of the Second War between the United +States of America and Great Britain. (Second Series.) 2 vols. +Philadelphia. 1853. + + +JACKSON, ANDREW. _See_ Bassett, John Spencer; Parton, James; Sumner, +William Graham. + +JEFFERSON, THOMAS. Works. Edited by Paul Leicester Ford. 12 vols. New +York. 1904-05. [Federal Edition.] (_Works_: Ford.) + + _See_ Randall, Henry Stephens. + +_John P. Branch Historical Papers_, issued by the Randolph-Macon +College. Vols. 1-5. [Edited by W. E. Dodd and C. H. Ambler.] Ashland, +Va. 1901-18. (Branch Historical Papers.) + +JOHNSON, EMORY RICHARD, _and others_. History of Domestic and Foreign +Commerce of the United States. 2 vols. Washington. 1915. [Carnegie +Institution of Washington. Publications.] + +JOHNSON, WILLIAM, _reporter_. Reports of Cases adjudged in the Court of +Chancery of New-York, 1814-23. 7 vols. Albany. 1816-24. (Johnson's +_Chancery Reports_.) + +---- Reports of Cases argued and determined in the Supreme Court ... in +the State of New-York (1806-22). 20 vols. New York and Albany. 1808-23. +(Johnson.) + + + +KENNEDY, JOHN PENDLETON. Memoirs of the Life of William Wirt. 2 vols. +Philadelphia. 1849. (Kennedy.) + +KING, RUFUS. Life and Correspondence. Edited by Charles R. King. 6 vols. +New York. 1894-1900. (King.) + +KNOX, THOMAS W. Life of Robert Fulton and a History of Steam Navigation. +New York. 1896. + + +LANMAN, CHARLES. Private Life of Daniel Webster. New York. 1852. + +LEGGETT, WILLIAM. A Collection of Political Writings. 2 vols. New York. +1840. + +LEWIS, WILLIAM DRAPER, _editor_. Great American Lawyers: A History of +the Legal Profession in America. 8 vols. Philadelphia. 1907-09. + +LINCOLN, ABRAHAM. Complete Works. Edited by John G. Nicolay and John +Hay. 12 vols. New York. 1894-1905. + +_Lippincott's Magazine of Literature, Science and Education._ + +LITTELL, WILLIAM. The Statute Law of Kentucky: with Notes, Prælections, +and Observations on the Public Acts. 3 vols. Frankfort (Ky.), 1809. + +LIVINGSTON, EDWARD. _See_ Hunt, Charles Havens. + +LODGE, HENRY CABOT. Daniel Webster. Boston. 1883. [American Statesmen.] + +---- Life and Letters of George Cabot. Boston. 1877. (Lodge: _Cabot_.) + +LORD, JOHN KING. A History of Dartmouth College, 1815-1909. Being the +second volume of History of Dartmouth College and the Town of Hanover, +New Hampshire, begun by Frederick Chase. Concord, N.H. 1913. (Lord.) + +LOSHE, LILLIE DEMING. The Early American Novel. New York. 1907. +[Columbia University. Studies in English.] + +_Louisiana Law Journal._ Edited by Gustavus Schmidt. Volume 1, nos. 1-4. +New Orleans. 1841. + +LOWELL, JOHN. Mr. Madison's War. By a New England Farmer (_pseud._). +Boston. 1812. + +---- Peace Without Dishonour--War Without Hope. By a Yankee Farmer +(_pseud._). Boston. 1807. + +---- Review of a Treatise on Expatriation by George Hay, Esquire. By a +Massachusetts Lawyer (_pseud._). Boston. 1814. + + +MCCLINTOCK, JOHN NORRIS. History of New Hampshire. Boston. 1888. + +MCCORD, DAVID JAMES, _editor_. Statutes at Large of South Carolina. Vols +6 to 10. Columbia, S.C. 1839-41. + +MACDONALD, WILLIAM. Jacksonian Democracy, 1829-1837. New York. 1906. +[Volume 15 of _The American Nation: A History_.] + +MCGRANE, REGINALD C., _editor_. _See_ Biddle, Nicholas. Correspondence. + +MCHENRY, JAMES. _See_ Steiner, Bernard Christian. + +MCMASTER, JOHN BACH. A History of the People of the United States from +the Revolution to the Civil War. 8 vols. New York. 1883-1913. +(McMaster.) + +MADISON, JAMES. Writings. Edited by Gaillard Hunt. 9 vols. New York. +1900-1910. (_Writings_: Hunt.) + +_Magazine of American History._ + +MAGRUDER, ALLAN BOWIE. John Marshall. Boston. 1885. [American +Statesmen.] + +MAINE, _Sir_ HENRY. Popular Government. London. 1885. + +MANUSCRIPTS: + + Chamberlain MSS. Boston Public Library. + Dreer MSS. Pennsylvania Historical Society. + Frederick Co., Va., Deed Book; Order Book. + Jefferson MSS. Library of Congress. + "Judges and Eminent Lawyers" Collection. Massachusetts Historical + Society. + Kent MSS. Library of Congress. + Marshall MSS. Library of Congress. + Monroe MSS. Library of Congress. + Peters MSS. Pennsylvania Historical Society. + Pickering MSS. Massachusetts Historical Society. + Plumer MSS. Library of Congress. + "Society Collection." Pennsylvania Historical Society. + Story MSS. Massachusetts Historical Society. + Supreme Court Records. + +MARRYAT, FREDERICK. A Diary in America, with Remarks on its +Institutions. 2 vols. Philadelphia. 1839. + +---- Second Series of A Diary in America, with Remarks on its +Institutions. Philadelphia. 1840. + +MARSHALL, JOHN. Letters of Chief Justice Marshall to Timothy +Pickering and Joseph Story. [From Pickering Papers and Story Papers. +_Massachusetts Historical Society._ Proceedings. Second Series. Vol. +XIV, pp. 321-360.] (_Proceedings, Mass. Hist. Soc._). + + _See_ Corwin, Edward Samuel; Cotton, Joseph P., Jr.; + Dillon, John Forrest; Magruder, Allan Bowie. + +MARTINEAU, HARRIET. Retrospect of Western Travel. 2 vols. London. 1838. + +MARYLAND. Laws made and passed by the General Assembly of the State of +Maryland. Annapolis, Md. 1818. + +_Maryland Historical Society Fund-Publications._ Baltimore. (_Md. Hist. +Soc. Fund-Pub._) + +MASON, JEREMIAH. _See_ Hillard, George S. + +MASSACHUSETTS. Laws of the Commonwealth of Massachusetts, passed at the +several Sessions of the General Court, beginning 26th May, 1812, and +ending on the 2d March, 1815. Boston. 1812-15. + +_Massachusetts Historical Society._ Proceedings. _See_ Marshall, John. +Letters. + +MEADE, _Bishop_ WILLIAM. Old Churches, Ministers, and Families of +Virginia. 2 vols. Richmond. 1910. (Meade.) + +_Monthly Law Reporter._ Edited by John Lowell. Vol. XX. New Series, vol. +X. Boston. 1858. + +MOORE, JOHN BASSETT. Digest of International Law. 8 vols. Washington. +1906. + +MORDECAI, SAMUEL. Richmond in By-Gone Days, being the Reminiscences of +an old Citizen. Richmond. 1856. (Mordecai.) + +MORISON, JOHN HOPKINS. Life of the Hon. Jeremiah Smith. Boston. 1845. + +MORISON, SAMUEL ELIOT. Life and Letters of Harrison Gray Otis, +Federalist, 1765-1848. 2 vols. Boston. 1913. (Morison: _Otis_.) + +MORRIS, GOUVERNEUR. Diary and Letters. Edited by Anne Cary Morris. 2 +vols. London. 1888. (Morris.) + +MORSE, JOHN TORREY, JR., _editor_. American Statesmen. 40 vols. Boston. +1882-1917. + +MUNFORD, WILLIAM, _reporter_. Report of Cases argued and determined in +the Supreme Court of Appeals of Virginia [1810-1820]. 6 vols. New York. +1812-21. (Munford.) + + +NELSON, JAMES POYNTZ. Address: The Chesapeake and Ohio Railway. [Before +the Railway Men's Improvement Society, New York City, January 27, 1916.] +n. p., n. d. + +NEW HAMPSHIRE. Journal of the House of Representatives of the State of +New-Hampshire, at their session begun and holden at Concord, on the +first Wednesday of June, A.D. 1816. Concord. 1816. + +---- Laws of the State of New Hampshire. Exeter. 1815-16. + +---- Public Laws of the State of New-Hampshire passed at a session of +the General Court begun and holden at Concord on the fifth day of June, +1811. Concord. 1811. + +---- Public Laws of the State of New-Hampshire passed at a session of +the General Court begun and holden at Concord on the first Wednesday of +June, 1813. Concord. 1813. + +---- Public Laws of the State of New-Hampshire passed at a session of +the General Court begun and holden at Concord on Wednesday the 27th day +of October, 1813. Concord. 1813. + +NEW JERSEY. Acts of the Thirty-fifth General Assembly of the State of +New-Jersey. Trenton. 1811. + +NEWSPAPERS: + + Baltimore, Md. _Marylander_, March 22, 1828. + + Boston, Mass. _Columbian Centinel_, January 11, 1809. + _Daily Advertiser_, March 23, 1818. + _Spirit of Seventy-Six_, July 17, 1812. + + Philadelphia, Pa. _Inquirer_, July 7, 1835. + _The Union: The United States Gazette and + True American_, April 24, 1819. + + Richmond, Va. _Enquirer_, January 16, 1816; January 30, + February 1, May 15, 22, June 22, 1821; + April 4, 1828; July 10, 14, 17, 21, + August 21, 1835. + _Whig and Public Advertiser_, July 10, 14, 1835. + +NEW YORK. Laws of the State of New-York, passed at the Twenty-first and +Twenty-second Sessions of the Legislature. Albany. 1798. + +---- Laws of the State of New-York, passed at the Twenty-fifth, +Twenty-sixth, and Twenty-seventh Sessions of the Legislature. Albany. +1804. + +---- Laws of the State of New-York passed at the Thirtieth, +Thirty-first, and Thirty-second Sessions of the Legislature. Albany. +1809. + +---- Laws of the State of New-York, passed at the Thirty-fourth Session +of the Legislature. Albany. 1811. + +NICOLAY, JOHN GEORGE _and_ HAY, JOHN, _editors_. _See_ Lincoln, Abraham. +Works. + +_Niles's Weekly Register._ Baltimore. 1811-1849. + +_North American Review._ + + +OHIO. Acts of the State of Ohio, passed at the First Session of the +Seventeenth General Assembly. Chillicothe. 1819. + +---- Acts passed at the First Session of the Twentieth General Assembly +of the State of Ohio. Columbus. 1822. + +---- Acts passed at the Second Session of the Twentieth General Assembly +of the State of Ohio; and ... at the First Session of the Twenty-first +General Assembly. Columbus. 1822-1823. + +_Old Family Letters._ Copied from the Originals for Alexander Biddle. +Philadelphia. 1892. + +ORLEANS TERRITORY. Acts passed at the Second Session of the Third +Legislature of the Territory of Orleans. New Orleans, La. 1811. + +OTIS, HARRISON GRAY. _See_ Morison, Samuel Eliot. + + +PARTON, JAMES. Life of Andrew Jackson. 3 vols. Boston 1861. (Parton: +_Jackson_.) + +PAXTON, WILLIAM MCCLUNG. Marshall Family. Cincinnati. 1885. + +PEASE, THEODORE CALVIN. The Frontier State, 1818-1848. Springfield. +1918. [Volume 2 of _Centennial History of Illinois_.] + +PECQUET DU BELLET, KATE LOUISE NOÉMIE. Some Prominent Virginia Families. +4 vols. Lynchburg, Va. 1907. (Pecquet du Bellet.) + +PETERS, RICHARD, JR., _reporter_. Reports of Cases argued and adjudged +in the Supreme Court of the United States, 1828-43. 17 vols. +Philadelphia. 1828-43. (Peters.) + +PHILLIPS, ULRICH BONNELL. Georgia and State Rights. Washington. 1902. +[Volume 2 of _Annual Report of the American Historical Association_ for +1901.] + +PHYSICK, PHILIP SYNG. _See_ Randolph, Jacob. + +PICKERING, OCTAVIUS, _and_ UPHAM, CHARLES WENTWORTH. Life of Timothy +Pickering. 4 vols. Boston. 1867-73. + +PICKERING, TIMOTHY. A Letter ... to James Sullivan, Governor of +Massachusetts. Boston. 1808. + +---- Life. _See_ Pickering, Octavius, and Upham, Charles W. + +PINKNEY, WILLIAM. _See_ Pinkney, William; Wheaton, Henry. + +PINKNEY, WILLIAM. Life of William Pinkney. New York. 1853. + +PITKIN, TIMOTHY. A Statistical View of the Commerce of the United States +of America. New Haven. 1835. (Pitkin.) + +PLUMER, WILLIAM, _Governor_. _See_ Plumer, William, Jr. + +PLUMER, WILLIAM, JR. Life of William Plumer, edited, with a Sketch of +the Author's Life, by A. P. Peabody. Boston. 1857. (Plumer.) + +PREBLE, GEORGE HENRY. A Chronological History of the Origin and +Development of Steam Navigation. Philadelphia. 1895. + +PRENTICE, EZRA PARMALEE. Federal Power over Carriers and Corporations. +New York. 1907 + + +_Quarterly Review._ London. + +QUINCY, EDMUND. Life of Josiah Quincy of Massachusetts, Boston. 1867. +(Quincy: _Quincy_.) + +QUINCY, JOSIAH, _d._ 1864. _See_ Quincy, Edmund. + +QUINCY, JOSIAH, _d._ 1882. Figures of the Past, from the Leaves of Old +Journals. Boston. 1883. + + +RANDALL, HENRY STEPHENS. Life of Thomas Jefferson. 3 vols. New York. +1858. (Randall.) + +RANDOLPH, JACOB. A Memoir on the Life and Character of Philip Syng +Physick, M.D. Philadelphia. 1839. (Randolph: _Physick_.) + +_Records of the Federal Convention of 1787._ Edited by Max Farrand. 3 +vols. New Haven. 1911. (_Records Fed. Conv._: Farrand.) + +REIGART, J. FRANKLIN. Life of Robert Fulton. Philadelphia. 1856. + +RICHARDSON, JAMES DANIEL, _compiler_. A Compilation of the Messages and +Papers of the Presidents, 1789-1897. 10 vols. Washington. 1900. +(Richardson.) + +RITCHIE, THOMAS. _See_ Ambler, Charles Henry. + +ROOSEVELT, THEODORE. Naval War of 1812. New York. 1882. (Roosevelt.) + + +SARGENT, NATHAN. Public Men and Events, from 1817 to 1853. 2 vols. +Philadelphia. 1875. (Sargent.) + +SCHERMERHORN, JOHN F., _and_ MILLS, SAMUEL J. A Correct View of that +Part of the United States which lies west of the Allegany Mountains, +with regard to Religion and Morals. Hartford. 1814. + +SCHURZ, CARL. Henry Clay. 2 vols. Boston. 1887. [American Statesmen.] + +SHIRLEY, JOHN M. The Dartmouth College Causes and the Supreme Court of +the United States. St. Louis. 1879. (Shirley.) + +SMITH, BAXTER PERRY. The History of Dartmouth College. Boston. 1878. + +SMITH, ROBERT. An Address to the People of the United States. London. +1811. + +SMITH, _Mrs._ SAMUEL HARRISON. _See_ Hunt, Gaillard. + +SOUTH CAROLINA. Statutes at Large. _See_ McCord, David James. + +_Southern Literary Messenger._ Richmond, Va. 1834-64. + +STEINER, BERNARD CHRISTIAN. Life and Correspondence of James McHenry. +Cleveland. 1907. (Steiner.) + +STORY, JOSEPH. Life and Letters. Edited by William Wetmore Story. 2 +vols. Boston. 1851. (Story.) + +STRICKLAND, WILLIAM PETER, _editor_. _See_ Cartwright, Peter. +Autobiography. (Strickland.) + +SUMNER, WILLIAM GRAHAM. Andrew Jackson. As a Public Man. Boston. 1882. +[American Statesmen.] (Sumner: _Jackson_.) + +---- A History of American Currency. New York. 1875. (Sumner: _Hist. Am. +Currency_.) + + +TANEY, ROGER BROOKE. _See_ Tyler, Samuel. + +TAYLOR, JOHN. Construction Construed and Constitutions Vindicated. +Richmond. 1820. (Taylor: _Construction Construed_.) + +---- New Views of the Constitution of the United States. Washington. +1823. + +---- Tyranny Unmasked. Washington. 1822. (Taylor: _Tyranny Unmasked_.) + +TERHUNE, MARY VIRGINIA HAWES. Some Colonial Homesteads and their +Stories. By Marion Harland (_pseud._). 2 vols. New York. 1912. +(Terhune.) + +THOMAS, DAVID. Travels through the Western Country in 1816. Auburn, N.Y. +1819. + +THURSTON, ROBERT HENRY. Robert Fulton: His Life and its Results. New +York. 1891. + +THWAITES, REUBEN GOLD, _editor_. Early Western Travels. 32 vols. +Cleveland, 1904-07. (_E. W. T._: Thwaites.) + +TICKNOR, GEORGE. Life, Letters, and Journals. Edited by Anna Ticknor and +George S. Hillard. 2 vols. Boston. 1876. (Ticknor.) + +TURNER, FREDERICK JACKSON. Rise of the New West, 1819-1829. New York. +1906. [Volume 14 of _The American Nation: A History_.] + +TYLER, LYON GARDINER. Letters and Times of the Tylers. 2 vols. Richmond. +1884. (_Tyler_: Tyler.) + +TYLER, SAMUEL. Memoir of Roger Brooke Taney, Chief Justice of the +Supreme Court of the United States. Baltimore. 1872. + + +UNITED STATES CONGRESS. Debates and Proceedings in the Congress of the +United States. First Congress, First Session, to eighteenth Congress, +First Session; Mar. 3, 1789 to May 27, 1824. [Known as the Annals of +Congress.] 42 vols. Washington. 1834-56. (_Annals._) + +---- Register of Debates. Eighteenth Congress, Second +Session--Twenty-fifth Congress, First Session. 29 vols. Washington. +1825-37. (_Debates._) + +---- Laws of the United States of America. 5 vols. Washington. 1816. + +---- Statutes at Large. + +UNITED STATES SUPREME COURT. Reports of Cases adjudged. _University of +Pennsylvania Law Review and American Law Register._ + + +VAN SANTVOORD, GEORGE. Sketches of the Lives and Judicial Services of +the Chief-Justices of the Supreme Court of the United States. New York. +1854. + +VAN TYNE, CLAUDE HALSTEAD, _editor_. _See_ Webster, Daniel. Letters. + +VERMONT. Laws passed by the Legislature of the State of Vermont at their +Session at Montpelier on the second Thursday of October, 1815. Windsor, +n. d. + +VIRGINIA. Journals of the House of Delegates. Richmond. 1819. + +---- Proceedings and Debates of the Virginia State Convention of +1829-30. Richmond. 1830. (_Debates, Va. Conv._) + +---- Report of the Commissioners appointed to view certain Rivers +within the Commonwealth of Virginia, John Marshall, Chairman. Printed, +1816. + +---- Reports of Cases argued and decided in the Court of Appeals. +Richmond. 1833. + +_Virginia Branch Colonization Society._ Report. 1832. + +_Virginia Magazine of History and Biography._ 25 vols. Richmond. +1893-1917. + + +WALLACE, JOHN WILLIAM. Cases argued and adjudged in the Supreme Court of +the United States, 1863-74. 23 vols. Washington, 1870-76. + +WARREN, CHARLES. History of the American Bar. Boston. 1911. (Warren.) + +WEBSTER, DANIEL. Letters of Daniel Webster, from Documents owned +principally by the New Hampshire Historical Society. Edited by Claude H. +Van Tyne. New York. 1902. (Van Tyne.) + +---- Private Correspondence. Edited by Fletcher Webster. 2 vols. Boston. +1857. (_Priv. Corres._: Webster.) + +---- _See_ Curtis, George Ticknor; Harvey, Peter; Lanman, Charles; +Lodge, Henry Cabot; Wilkinson, William Cleaver. + +WENDELL, JOHN LANSING, _reporter_. Reports of Cases argued and +determined in the Supreme Court of Judicature ... of the State of New +York. 26 vols. Albany. 1829-42. + +WHEATON, HENRY. A Digest of the Decisions of the Supreme Court of the +United States from 1789 to February Term, 1820. New York. 1821. + +---- Elements of International Law, with a Sketch of the History of the +Science. Philadelphia. 1836. + +---- Some Account of the Life, Writings, and Speeches of William +Pinkney. Philadelphia. 1826. (Wheaton: _Pinkney_.) + +WHEATON, HENRY, _reporter_. Reports of Cases argued and adjudged in the +Supreme Court of the United States, 1816-27. 12 vols. Philadelphia. +1816-27. (Wheaton.) + +WILKINSON, WILLIAM CLEAVER. Daniel Webster: A Vindication. New York. +1911. + +WILSON, HENRY. Rise and Fall of the Slave Power in America. 3 vols. +Boston. 1872. + +WIRT, WILLIAM. _See_ Kennedy, John Pendleton. + +_World's Work._ + + + + +GENERAL INDEX + + + + +GENERAL INDEX + + + Abel, Anne H., monograph on Indian consolidation, =4=, 541 _n._ + + Adair, John, and Burr Conspiracy, =3=, 291, 292, 314; + career, 292 _n._, 336 _n._; + Wilkinson's letter to, 314, 336; + arrested by Wilkinson, 335, 336, 337 _n._; + suit against Wilkinson, 336 _n._; + brought to Baltimore, released, 344; + statement, 488 _n._; + and Green _vs._ Biddle, =4=, 381. + + Adams, Abijah, trial, =3=, 44-46. + + Adams, Henry, on M. in Jonathan Robins case, =2=, 458; + on Pickering impeachment, =3=, 143; + on isolation of Burr, 280; + on Burr and Merry, 289; + on American law of treason, 401 _n._; + on impressment, =4=, 8 _n._; + on causes of War of 1812, 29 _n._ + + Adams, John, on drinking, =1=, 23 _n._; + library, 25; + on Philadelphia campaign, 102; + belittles Washington (1778), 123 _n._; + story of expected kingship, 291; + on American and French revolutions, =2=, 2 _n._; + and title for President, 36; + on Hamilton's financial genius, 61 _n._; + and policy of neutrality, 92; + M. on, 214; + on M., 218; + address to Congress on French affairs (1797), French demand of + withdrawal of it, 225, 226, 316; + appointment of X. Y. Z. Mission, 226-29; + and X. Y. Z. dispatches, 336, 338; + offers M. Associate Justiceship, 347, 378, 379; + Federalist toast to, 349 _n._; + statement of French policy (1798), 351; + and M.'s journal of mission, 366; + M. on foreign policy, 403; + and prosecutions under Sedition Law, 421; + reopening of French negotiations, political result, 422-28; + pardons Fries insurrectionists, political effect, 429-31, =3=, 36; + absence from Capital, =2=, 431, 493; + address to Congress (1799), 433; + M.'s reply of House, 433-36; + Jonathan Robins case, 458-75; + disruption of Cabinet, 485-88; + temperament contrasted with Washington's, 486, 488; + appointment of M. as Secretary of State, 486, 489-93; + Republican comment on reorganized Cabinet, 491, 494; + pardon of Williams, 495; + and Bowles in Florida, 497; + and British debts dispute, 503, 505; + and possible failure of new French negotiations, 522; + M. writes address to Congress (1800), 530, 531; + eulogy by _Washington Federalist_, 532 _n._; + and enlargement of Federal Judiciary, 547; + and Chief Justiceship, appointment of M., 552-54, 558; + continues M. as Secretary of State, 558; + midnight appointments, 559-62, =3=, 57, 110; + magnanimous appointment of Wolcott, =2=, 559, 560; + Jefferson and midnight appointments, =3=, 21; + Republican seditious utterances, 30, 33, 37, 42 _n._; + and subpoena, 33, 86; + and partisan appointments, 81; + on Bayard's Judiciary speech (1802), 82; + on John Randolph, 171; + and Chase, 211 _n._; + and M's biography of Washington, 257; + on his situation as President, 258 _n._; + biography of Washington on, 263 _n._; + on Embargo controversy, =4=, 15; + on banking mania, 176, 178; + in Massachusetts Constitutional Convention (1820), 471. + _See also_ Elections (1800). + + Adams, John Q., Publicola papers, =2=, 15-19; + on vandalism of French Revolution, 32 _n._; + on American support of French Revolution, 39; + on economic division on policy of neutrality, 97 _n._; + on dangers of war with England (1795), 110 _n._, 112 _n._; + on necessity of neutrality, 119 _n._; + Minister to Prussia, 229 _n._; + on France and American politics, 279 _n._; + on Washington streets (1818), =3=, 5; + on Federalist defeat, 12; + on impeachment plans (1804), 157-60, 173; + on impeachment of Pickering, 166, 167; + on articles of impeachment against Chase, 172; + on Chase trial, 190 _n._, 191 _n._; + on Randolph's speech at trial, 216 _n._; + votes to acquit Chase, 218; + on Burr's farewell address, 274 _n._; + on Wilkinson, 341 _n._; + on Eaton's story on Burr, 345; + on Swartwout and Bollmann trial, 346; + report on Burr conspiracy and trial, 541-44; + report and courtship of administration, 541 _n._; + later support of M., 542 _n._; + on Giles's speech on report, 544; + and Yazoo claims, attorney in Fletcher _vs._ Peck, 582, 585, 586; + and Justiceship, =4=, 110; + on crisis of 1819, 205; + M. and election of 1828, 462-65; + on Georgia-Cherokee controversy, 543. + + Adams, Mrs. John Q., drawing room, =4=, 461. + + Adams, Samuel, and Ratification, =1=, 348. + + Adams, Thomas, sedition, =3=, 44. + + Addison, Alexander, charge on Sedition Act, =2=, 385 _n._; + and British precedents, =3=, 28 _n._; + as judge, denounces Republicans, 46; + on the stump, 47; + on declaring acts void, 117; + impeachment, 164. + + Admiralty, M. on unfairness of British courts, =2=, 511, 512; + Story as authority, =4=, 119; + jurisdiction in Territories, 142-44. + _See also_ International law; Prize. + + _Adventure_ and Her Cargo case, =4=, 119. + + Agriculture, M. on French (1797), =2=, 267; + M.'s interest, =4=, 63. + + Albany Plan, =1=, 9 _n._ + + Alexander, James, and Burr conspiracy, arrested, =3=, 334; + freed, 343. + + Alexandria, Va., tribute to M., =4=, 592. + + + _Alexandria Advertiser_, campaign virulence (1800), =2=, 529 _n._ + + Alien and Sedition Acts, fatality, =2=, 361; + provisions, 381; + Hamilton on danger in, 382; + Federalist attempts to defend, 382; + Republican assaults, unconstitutionality, 383; + Washington's defense, 384, 385; + Addison's charge, 385; + M.'s views of expediency, 386, 388, 389, 577; + Federalists and M.'s views, 389-94, 406; + M. on motives of Virginia Republicans, 394, 407; + Jefferson's plan of attack, 397, 399; + Kentucky Resolutions, 397-99; + Virginia Resolutions, 399, 400; + Madison's address of Virginia Legislature, 400, 401; + M.'s address of the minority of the Legislature, 402-06; + M. on constitutionality, 404; + Virginia military measures, 406, 408; + prosecutions, conduct of Federalist judges, 420, 421, =3=, 29-43, + 86, 189-96, 202-05, 214; + repeal of section, M.'s vote, =2=, 451; + as issue (1800), 520, 521; + State trials, =3=, 43-47; + resulting issues, 47-49; + M.'s position quoted by Republicans, 106. + + Allbright, Jacob, testimony in Burr trial, =3=, 425-27, 465, 488. + + Allegiance. _See_ Expatriation; Naturalization. + + Allen, Nathaniel, Granville heirs case, =4=, 154. + + Alston, Aaron Burr, death, =3=, 538 _n._ + + Alston, Joseph, at trial of Burr, =3=, 479, 481. + + Alston, Theodosia (Burr), and trial of father, =3=, 381, 479; + death, 538 _n._ + + Ambler, Edward, courtship, =1=, 150 _n._; + country place, 164 _n._ + + Ambler, Eliza, on Arnold's invasion, =1=, 144 _n._ + _See also_ Carrington, Eliza. + + Ambler, Jacquelin, career, =1=, 149, 160; + and M., 170; + and M.'s election to Council of State, 209 _n._; + M.'s neighbor, =2=, 172. + + Ambler, John, wealth, =1=, 166; + marries M.'s sister, 166 _n._; + grand juror on Burr, =3=, 413 _n._ + + Ambler, Mary Willis, family, =1=, 148-50; + meeting with M., 151, 152; + courtship, 153, 159, 160, 163; + marriage, 165, 166. + _See also_ Marshall, Mary W. + + Ambler, Richard, immigrant, =1=, 165. + + _Amelia_ case, =3=, 16, 17. + + Amendment of constitutions, M.'s idea, =1=, 216. + + Amendment of Federal Constitution, + demand for previous, =1=, 245, 405, 412, 418, 423, 428; + expected, 251; + proposed by Massachusetts, 348; + Randolph's support of recommendatory, 377, 378; + method, in Ratification debate, 389; + Virginia contest over recommendatory, 468-75; + character of Virginia recommendations, 477; + history of first ten amendments, =2=, 57-59; + Eleventh, 84 _n._, =3=, 554, =4=, 354, 385, 387-91; + proposals caused by Jay Treaty, =2=, 141-43; + Twelfth, 533 _n._; + proposed, on removal of judges, =3=, 167, 221, 389; + proposed, for recall of Senators, =3=, 221; + proposed, to restrict appellate jurisdiction of Supreme Court, + =4=, 323, 325, 371, 378; + proposed, to limit judicial tenure, 517 _n._ + + American Academy of Arts and Sciences, M.'s membership, =4=, 89. + + American Colonization Society, M. and, =4=, 473-76. + + American Insurance Co. _vs._ Canter, right of annexation, territorial + government, =3=, 148 _n._, =4=, 142-44. + + American Philosophical Society, M.'s membership, =4=, 89. + + American Revolution, + influence of Bacon's Rebellion and Braddock's defeat, =1=, 6, 9; + Virginia and Stamp Act, 61-65; + Virginia Resolutions for Arming and Defense (1775), 65, 66; + preparation in back-country Virginia, 69-74; + Dunmore's Norfolk raid, battle of Great Bridge, 74-79; + condition of the army, militia, 80-88, 92; + effect of State sovereignty, 82, 88-90, 100, 146; + Brandywine campaign, 92-98; + campaign before Philadelphia, 98-102; + Germantown, 102-04; + desperate state, 104, 105; + final movements before Philadelphia, 105-07; + efforts to get Washington to abandon cause, 105, 130, 131; + Philadelphia during British occupation, 108-10; + Valley Forge, 110-20, 131; + treatment of prisoners, 115; + Washington as sole dependence, 121, 124; + Conway Cabal, 121-23; + Washington and weakness of Congress, 124-26, 131; + Jefferson accused of shirking, 126-30; + French alliance, relaxing effect, 133, 138, 143; + Monmouth campaign, 134-38; + Stony Point, 138-42; + Pawles Hook, 142; + Arnold in Virginia, Jefferson's conduct, 143; + depreciated currency and prices, 167-69; + influence on France, =2=, 1; + M.'s biography of Washington on, =3=, 244, 245, 253-56. + _See also_ Continental Congress. + + Ames, Fisher, on democratic societies, =2=, 40; + on contest over funding, 61 _n._; + on contest over National Capital, 63 _n._; + on lack of national feeling, 67, 74; + on Republican discipline, 81; + on British-debts cases, 83 _n._; + on crisis with England (1794), 109; + on Giles, 129; + and M. (1796), 198, 199; + on effect of X. Y. Z. dispatches, 341; + attack on M.'s views of Alien and Sedition Acts, 390; + on reopening of French negotiations, 423, 426-28; + on Adams's temperament, 489 _n._; + on Adams's advances to Republicans (1800), 519; + on advance of Republicans, 519; + on attack on standing army, 520 _n._; + on character of parties, 521 _n._; + opposition to Adams, 527; + on campaign virulence of newspapers, 530; + on resumption of European war, =3=, 14; + on Jefferson and Judiciary, 53; + and secession, 53 _n._, 97, 98 _n._; + on repeal of Judiciary Act, 94; + on Louisiana Purchase, 150; + on Chase impeachment, 174; + on Yazoo lands, 568; + as British partisan, =4=, 5; + and M.'s logic, 85. + + Ames, Nathaniel, attack on Washington, =2=, 117 _n._ + + Amory, Rufus G., practitioner before M., =4=, 237 _n._ + + Amsterdam, decline of trade (1797), =2=, 233. + + Amusements, in colonial Virginia, =1=, 22; + of period of Confederation, 283; + M.'s diversions, =2=, 182-85, =4=, 66, 76-80. + + Anarchy, spirit, =1=, 275, 284, 285, 289; + as spirit of Shays's Rebellion, 299, 300; + Jefferson's defense, 302-04. + _See also_ Government. + + Ancestry, M.'s, =1=, 9-18. + + Anderson, John E., pamphlet on Yazoo lands, =3=, 573 _n._ + + Anderson, Joseph, of Smith committee, =3=, 541 _n._ + + Anderson, Richard, and Mary Ambler, =1=, 164. + + André, John, in Philadelphia society, =1=, 110. + + Andrews, ----, and Jay Treaty, =2=, 132. + + Andrews, Robert, professor at William and Mary, =1=, 155 _n._ + + Annapolis Convention, and commercial regulation, =4=, 422. + + Annexation, constitutionality, =3=, 147, =4=, 143. + + _Antelope_ case, =4=, 476. + + Antwerp, trade (1797), =2=, 233; + M. on conditions, 246, 247. + + Appellate jurisdiction of Supreme Court over State acts, =4=, 156-67, + 347-57; + proposed measures to restrict or repeal, 323, 325, 371, 379, 380, + 514-17. + _See also_ Declaring acts void; Supreme Court. + + Aristocracy, of colonial Virginia, =1=, 25-27; + after the Revolution, 277. + + Armed Neutrality, M.'s biography of Washington on, =3=, 255. + + Armstrong, John, and Pickering impeachment, =3=, 168 _n._; + and St. Cloud Decree, =4=, 37. + + Army, condition of Revolutionary, =1=, 80-86, 92; + sickness, 86, 116; + discipline, 87, 120; + lack of training, 88 _n._; + lack of equipment, 97, 99; + at Valley Forge, 110-20, 131, 132; + improved commissary, 133; + Steuben's instruction, 133; + size (1778), 138 _n._; + light infantry, 139 _n._; + arguments during Ratification on standing, 334, 342, 346, 389, + 435, 477; + Washington commands (1798), =2=, 357, =3=, 258 _n._; + M. and officers for, =2=, 420; + debate on reduction (1800), 436, 439, 476-81; + as issue (1800), 520. + _See also_ Preparedness. + + Arnold, Benedict, invasion of Virginia, =1=, 143; + M.'s biography of Washington on, =3=, 255. + + Assumption of State debts, contest, =2=, 61-64; + opposition in Virginia, 62, 65-69; + question of constitutionality, 66; + political results, 82. + + _Atalanta_ case, =4=, 142 _n._ + + Athletics, M.'s prowess, =1=, 73, 118, 132. + + Attainder, Philips case, =1=, 393, 398, 411. + + Attorney-General, M. declines office, =2=, 122, 123; + Henry declines, 125; + Breckenridge as, =3=, 58 _n._; + Wirt as, =4=, 239. + + Augereau, Pierre F. C., and 18th Fructidor, =2=, 246 _n._ + + _Augusta Chronicle_, on Yazoo frauds, =3=, 561. + + _Aurora_, abuse of Washington, =2=, 162, 163; + on M.'s appointment to X. Y. Z. Mission, 218, 219; + and X. Y. Z. dispatches, 337, 338; + on M.'s reception, 345, 351; + on Addison's charge on Sedition Act, 385 _n._; + Curtius letters on M., 395, 396; + on pardon of Fries, 430 _n._; + on M. and powers of territorial Governor, 446 _n._; + and Disputed Elections Bill, 454; + on Jonathan Robins case, 460, 471-73; + on M.'s appointment as Secretary of State, 489-91; + on the reorganized Cabinet, 491; + attack on Pickering, 491 _n._; + on new French negotiations, 522 _n._; + campaign virulence (1800), 529 _n._; + on Mazzei letter, 538 _n._; + on Judiciary Bill, 549 _n._, 555, 561 _n._; + on M.'s appointment as Chief Justice, 556; + on Judiciary, =3=, 159 _n._; + attack on M. during Burr trial, 532-35. + + Austen, Jane, M. as reader, =4=, 79. + + + Babcock, Kendric C., on Federalists and War of 1812, =4=, 48 _n._ + + Bache, Benjamin F., attacks on Washington, =2=, 93 _n._ + _See also_ _Aurora_. + + Bacon, John, and Kentucky and Virginia Resolutions, =3=, 43; + in Judiciary debate (1802), 91. + + Bacon's Rebellion, influence, =1=, 6. + + Bailey, Theodorus, resigns from Senate, =3=, 121 _n._ + + Baily, Francis, on hardships of travel, =1=, 264 _n._. + + Baker, John, Hite _vs._ Fairfax, =1=, 191, 193; + Ware _vs._ Hylton, =2=, 188; + counsel for Burr, =3=, 407. + + _Balaou._ _See_ _Exchange_. + + Baldwin, ----, sedition trial, =3=, 42 _n._ + + Baldwin, ----, and Missouri question, =4=, 325. + + Baldwin, Abraham, and Judiciary Act of 1789, =3=, 129. + + Baldwin, Henry, practitioner before M., =4=, 237 _n._; + appointment to the Supreme Court, 510; + and M., 582; + and Briscoe _vs._ Bank and New York _vs._ Miln, 583; + escort to M.'s body, 588. + + Ball, Burgess, on M. at Valley Forge, =1=, 120. + + Baltimore, in 1794, =1=, 263; + and policy of neutrality, =2=, 94 _n._; + proposed removal of Federal Capital to, =3=, 8; + public tumult over Burr trial, 529, 535-40. + + Baltimore _Marylander_, on M. and election of 1828, =4=, 463. + + Bancroft, George, on M.'s biography of Washington, =3=, 270; + on M., =4=, 90. + + Bangs, Edward, on Ratification contest, =1=, 341. + + Bank of the United States, + first, Jefferson and Hamilton on constitutionality, =2=, 71-74; + hostility in Virginia, 84; + Virginia branch, 141; + M.'s investment, 199, 200; + as monopoly, =3=, 336, 338; + success, =4=, 171; + continued opposition, 171-73; + failure of recharter, machinations of State banks, 173-76. + + Bank of the United States, second, charter, =4=, 179, 180; + and Localism, 191; + early mismanagement, 196; + its demands on State banks and reforms force crisis, 197-99; + early popular hostility, blamed for economic conditions, 198, 199, + 206, 312; + movement to destroy through State taxation, 206-08; + attempt to repeal charter (1819), 288, 289; + Bonus Bill, 417, 418; + success and continued hostility to, 528, 529; + Mason affair, 529; + Jackson's war on, veto of recharter, 529-33; + Biddle's conduct, 529 _n._; + as monopoly, 531; + as issue in 1832, 532 _n._, 533; + M. on Jackson's war, 533, 535; + Jackson's withdrawal of deposits, 535. + _See also_ next title, and M'Culloch _vs._ Maryland; Osborn _vs._ + Bank. + + Bank of the United States _vs._ Dandridge, =4=, 482, 483. + + Bank of Virginia, M. and, =2=, 174; + political power, =4=, 174; + refuses to redeem notes, 194. + + Banking, effects of chaos (1818), =4=, 170, 171; + mania for State banks, their character and issues, 176-79, 181, 188; + and war finances, 177, 179; + and speculation, 181-84; + frauds, 184, 185; + resulting suits, 185, 198; + lack of regulation, 186; + private, 192; + depreciation of notes, no specie redemption, 192-95; + counterfeits, 195; + Bank of the United States forces crisis, 197-99; + distress, 204-06. + _See also_ preceding titles. + + Bankruptcy, M. and National act, =2=, 481, 482; + lax State laws and fraud, =4=, 200-03. + _See also_ Ogden _vs._ Saunders; Sturges _vs._ Crowninshield. + + Bannister, John, resigns from Council of State, =1=, 209. + + Barbary Powers, M. and protection from, =2=, 499; + general tribute to, 499 _n._; + Eaton and war, =3=, 302 _n._, 303 _n._ + + Barbecue Club. _See_ Quoit Club. + + Barbour, James, grand juror on Burr, =3=, 413 _n._; + counsel in Cohens _vs._ Virginia, =4=, 346; + on Missouri question, 341. + + Barbour, Philip P., in debate on Supreme Court, =4=, 395; + in Virginia Constitutional Convention, 484; + in debate on State Judiciary, 494; + in debate on suffrage, 502 _n._; + appointment to Supreme Court, 584 _n._ + + Barlow, Joel, seditious utterances, =3=, 30; + to write Republican history of the United States, 228, 229, 265, + 266; + and Decree of St. Cloud, =4=, 36, 50. + + Barrett, Nathaniel, and Ratification, =1=, 342, 349. + + Barron, James, _Chesapeake-Leopard_ affair, =3=, 475. + + Bartlett, Ichabod, counsel in Dartmouth College case, =4=, 234. + + Bassett, Richard, and Judiciary Act of 1789, =3=, 129. + + Bastrop lands. _See_ Washita. + + Batture litigation, =4=, 100-16. + + Bayard, James A., on hardships of travel, =1=, 260; + on French Revolution, =2=, 32 _n._; + and Jonathan Robins case, 460; + on Adams's temperament, 488 _n._; + opposition to Adams, 517 _n._; + on Jefferson-Burr contest, 536, 545 _n._, 546 _n._; + on Washington (1804), =3=, 5 _n._; + on Federalists and Judiciary debate (1802), 71; + in debate, 72, 79-83; + appearance, 78; + on bill on sessions of Supreme Court, 95, 96; + on test of repeal of Judiciary Act, 123 _n._; + on Jefferson and impeachment plan, 160; + on Chase impeachment, 173; + and Chase trial, 185 _n._; + and attempt to suspend habeas corpus (1807), 347; + on J. Q. Adams's Burr Conspiracy report, 544. + + Bayard _vs._ Singleton, =3=, 611. + + Bayly, Thomas M., on M., =4=, 489 _n._ + + Beard, Charles A., on character of Framers, =1=, 255 _n._ + + Beaumarchais, Pierre A. Caron de, mortgage on M.'s land, =2=, 173; + American debt to, and X. Y. Z. Mission, 292-94, 310, 314 _n._, + 317-20, 332, 366 _n._; + history of debt, 292 _n._ + + Bedford, Gunning, Jr., + in Federal Convention, on declaring acts void, =3=, 115 _n._ + + Bee, Thomas, Jonathan Robins case, =2=, 458. + + Beer Co. _vs._ Massachusetts, =4=, 279 _n._ + + Begon, Dennis M., _Exchange_ case, =4=, 122. + + Belknap, Morris P., testimony in Burr trial, =3=, 490. + + Bell, Samuel, and Dartmouth College case, =4=, 234, 253 _n._ + + Bellamy, ----, + as agent in X. Y. Z. Mission, =2=, 261-67, 272, 278, 293, 294. + + Bellamy, Joseph, and Wheelock, =4=, 227. + + Belligerency, of revolting provinces, =4=, 126-28. + + Bellini, Charles, professor at William and Mary, =1=, 155 _n._ + + Bentham, Jeremy, and Burr, =3=, 537 _n._ + + Benton, Thomas H., duelist, =3=, 278 _n._; + counsel in Craig _vs._ Missouri, =4=, 512. + + Berkeley, Sir William, M. on, =3=, 242 _n._ + + Berlin Decree, =4=, 6 _n._ + + Berrien, John M., practitioner before M., =4=, 237 _n._ + + Beverly, Munford, grand juror on Burr, =3=, 413 _n._ + + Biddeford, Me., and Ratification, =1=, 340. + + Biddle, Nicholas, management of the Bank, =4=, 529; + conduct, 529 _n._ + + Biddle, Richard. _See_ Green _vs._ Biddle. + + Bill of Rights, and Virginia's extradition act (1784), =1=, 238-41; + and National Government, 239; + contest over lack of Federal, 334, 439; + first ten Federal amendments, =2=, 57-59. + _See also_ Government. + + Bingham, William, wealth, =2=, 202 _n._ + + Binghamton Bridge case, =4=, 280 _n._ + + Biography of Washington, + M. undertakes, financial motive, =2=, 211 _n._, =3=, 223, 224; + importance in life of M., 223; + estimate of financial return, negotiations with publishers, 224-27; + agreement, 227, 228; + delay in beginning, 227, 235; + M.'s desire for anonymity, 228, 236, 237; + Jefferson's plan to offset, 228, 229, 265, 266; + solicitation of subscriptions, postmasters as agents, 230, 234; + Weems as agent, popular distrust, 230-34, 252; + small subscription, 235; + list of subscribers, 235 _n._; + financial problem, change in contract, 236, 250, 251; + problems of composition, delay and prolixity, 236-39, 241, 246-49, + 251; + publication of first two volumes, 239; + M. and praise and criticism, 240, 241, 245-47, 271; + revised edition, 241, 247, 247 _n._, 272; + character of first volumes, 242-45, 249; + royalty, 247, 251; + mistake in plan, compression of vital formative years, 249, + 250, 258; + volumes on American Revolution, 253-56; + without political effect, 256, 257; + character of final volume (1783-99), 257-65; + Federalists on last volume, 265; + Jefferson on biography, 265-69; + other criticism, 269-71; + edition for school-children, 273 _n._ + + Bishop, Abraham, pamphlet on Yazoo lands, =3=, 570. + + Bissel, Daniel, and Burr conspiracy, =3=, 361, 462. + + Black, George, practitioner before M., =4=, 237 _n._ + + Blackstone, Sir William, M. and Commentaries, =1=, 56. + + _Blackwood's Magazine_, on M.'s biography of Washington, =3=, 271. + + Blain, ----, and Attorney-Generalship, =2=, 132. + + Blair, John, Commonwealth _vs._ Caton, =3=, 611. + + Blair, John D., at Barbecue Club, =2=, 183. + + Bland, Theodoric, on Randolph's apostasy (1788), =1=, 378. + + Blennerhassett, Harman, beginning of Burr's connection, =3=, 291; + joins enterprise, 301, 310, 313; + newspaper letters, 311; + island as center, gathering there, 324, 425-27, 484, 488-91; + attack by militia, flight, 325; + joins Burr, 361; + indicted for treason, 465; + on Martin's intemperance, 501 _n._; + attempt to seduce, 514; + _nolle prosequi_, 515, 524; + on Wilkinson at trial, 523 _n._; + on Jefferson's hatred of M., 525; + commitment for trial in Ohio, 527; + on M., 528, 531; + and Baltimore mob, 538; + Wirt's speech on, 616-18. + _See also_ Burr Conspiracy. + + Blennerhassett, Mrs. Harman, warns Burr, =3=, 316. + + Blockade, M.'s protest on paper, =2=, 511. + + Blomfield, Samuel, =1=, 23 _n._ + + Bloomington, Ohio, bank (1820), =4=, 192 _n._ + + Boarding-houses at Washington (1801), =3=, 2, 7. + + Bollmann, Justus E., takes Burr's letter to Wilkinson, =3=, 307; + career, 307 _n._ + arrested, 332, 334; + brought to Washington, 343; + held for trial, 344-46; + discharged by Supreme Court, 346-57; + interview with Jefferson, Jefferson's violation of faith, 391, 392; + question of evidence and pardon, 392, 430, 431, 450-54; + not indicted, 466 _n._ + + Bonus Bill, Madison's veto, =4=, 418; + further attempt, 419. + + Boone, Daniel, and British debts, =1=, 229 _n._ + + Boston, Jacobin enthusiasm, =2=, 35, 36; + protest on Jay Treaty, 115, 116; + Yazoo land speculation, =3=, 567. + + Boston _Columbian Centinel_. _See_ _Columbian Centinel_. + + _Boston Commercial Gazette_, on obligation of contracts, =3=, 558. + + _Boston Daily Advertiser_, + on Dartmouth College case, =4=, 254 _n._, 255 _n._ + + _Boston Gazette_, on bribery in Ratification, =1=, 353 _n._; + on French Revolution, =2=, 5. + + _Boston Gazette-Commercial and Political_, + on Republican Party (1799), =3=, 12. + + _Boston Independent Chronicle_, on the Cincinnati, =1=, 293; + on Publicola papers, =2=, 19; + seditious utterances, =3=, 43-46; + on repeal of Judiciary Act, 94, 99; + on Marbury _vs._ Madison and impeachment, 112 _n._, 113 _n._ + + _Boston Palladium_, on repeal of Judiciary Act, =3=, 93; + threatens secession, 97. + + Botetourt, Lord, fate of Virginia statue, =2=, 35. + + Botta, Carlo G. G., Jefferson on history, =3=, 266. + + Botts, Benjamin, counsel for Burr, =3=, 407; + and motion to commit Burr for treason, 415, 424; + on subpoena to Jefferson, 438; + on overt act, 497-500; + on popular hatred, 516. + + Boudinot, Elias, on Adams for Chief Justice, =2=, 554. + + Bowles, William A., M. and activity, =2=, 497-99. + + Bowman _vs._ Middleton, =3=, 612. + + Boyce, Robert, suit, =4=, 478. + + Boyce _vs._ Anderson, =4=, 478. + + Brackenridge, Hugh H., and Addison, =3=, 47 _n._ + + Braddock, Edward, defeat, =1=, 2-5; + reputation, 2 _n._; + effect of defeat on colonists, 5, 6, 9. + + Bradford, William, Attorney-General, death, =2=, 122, 123. + + Bradley, Stephen R., and Pickering impeachment, =3=, 168 _n._ + at Chase trial, 183 _n._; + votes to acquit Chase, 218, 219. + + Braintree, Mass., denounces lawyers, =3=, 23 _n._ + + Brandywine campaign, =1=, 93-98. + + Brearly, David, Holmes _vs._ Walton, =3=, 611. + + Breckenridge, John, + and Kentucky Resolutions, =2=, 398, 398 _n._, =3=, 58 _n._; + in debate on repeal of Judiciary Act of 1801, 58, 59, 66, 68-70; + Attorney-General, 58 _n._ + + Brig Wilson _vs._ United States, =4=, 428, 429. + + Bright, Michael, and Olmstead case, =4=, 21. + + Brightwell, Theodore, and Burr conspiracy, =3=, 367. + + Brigstock, William, case, =2=, 464. + + Briscoe _vs._ Bank of Kentucky, + facts, currency of State-owned bank, =4=, 582; + equal division of Supreme Court, 583, 584; + State upheld, Story voices M.'s dissent, 584 _n._ + + British debts, + conditions and controversy in Virginia, =1=, 215, 223-31; + amount in Virginia, 295 _n._; + in Ratification debate, 441, 444, 464; + before Federal courts, Ware _vs._ Hylton, =2=, 83, 186-92; + in Jay Treaty, 114, 121 _n._; + disruption of commission on, 500-02; + M. on disruption and compromise, 502-05; + settlement, =3=, 103. + + Brockenbrough, John, grand juror on Burr, =3=, 413 _n._; + political control, =4=, 174; + and redemption of his bank's notes, 194; + and stock of Bank of the United States, 318. + + Brooks, John, and Ratification, =1=, 347 _n._ + + Broom, James M., and Burr conspiracy, =3=, 358. + + Brown, Adam, and Livingston steamboat monopoly, =4=, 411. + + Brown, Alexander. _See_ Brown _vs._ Maryland. + + Brown, Ethan A., counsel in Osborn _vs._ Bank, =4=, 385. + + Brown, Francis, elected President of Dartmouth, =4=, 229; + and Kent, 258 _n._ + + Brown, Henry B., on Dartmouth College case, =4=, 280. + + Brown, John, of R.I., and slave trade (1800), =2=, 449. + + Brown, John, of Va. and Ky., on lack of patriotism (1780), =1=, 157; + on Wythe as professor, 158; + dinner to, =2=, 131 _n._; + and Pickering impeachment, =3=, 168 _n._; + Indiana Canal Company, 291 _n._; + and Burr conspiracy, 292. + + Brown, Noah, and Livingston steamboat monopoly, =4=, 411. + + Brown _vs._ Maryland, facts, =4=, 454; + counsel, 455; + M.'s opinion, 455-59; + State license on importers an import duty, 455-57; + and a regulation of foreign commerce, 457-59; + as precedent, 459, 460. + + Bruff, James, testimony in Burr trial, =3=, 523 _n._ + + Bryan, George, and Centinel letters, =1=, 335 _n._ + + Bryan, Joseph, and Randolph, =3=, 566. + + Buchanan, J., Barbecue Club, =2=, 183. + + Buchanan, James, and attack on Supreme Court, =4=, 515. + + Bullitt, William M., book of M.'s possessed by, =1=, 186 _n._ + + Burford, _ex parte_, =3=, 154 _n._ + + Burgess, John W., on revolutionary action of Framers, =1=, 323 _n._ + + Burke, Ædanus, and the Cincinnati, =1=, 293; + shipwrecked, =3=, 55 _n._ + + Burke, Edmund, on French Revolution, =2=, 10-12. + + Burling, Walter, and Burr conspiracy, =3=, 329. + + Burnaby, Andrew, plea for reunion with England, =1=, 130, 131. + + Burr, Aaron, and X. Y. Z. Mission, =2=, 281; + suppresses Wood's book, 380 _n._; + and Hamilton's attack on Adams, 528; + character, and appearance, 535, =3=, 371, 372; + presides over Senate, 67; + and repeal of Judiciary Act, personal effect, 67, 68 _n._, 279; + and Pickering impeachment, 168 _n._; + arranges Senate for Chase trial, 179 _n._; + as presiding officer of trial, 180, 183, 218, 219; + effort of Administration to conciliate, 181; + farewell address to Senate, 274; + plight on retirement from Vice-Presidency, 276-78, 285; + Hamilton's pursuit, 277 _n._; + the duel, 278 _n._; + Jefferson's hostility, isolation, 279, 280; + toast on Washington's birthday, 280; + candidacy for Governor, 281; + and Federalist secession plots, 281; + and Manhattan Company charter, 287 _n._; + gratitude to Jackson, 405; + later career, 537 _n._, 538 _n._; + and Martin, 538 _n._; + death, monument, 538 _n._; + report on Yazoo lands, 570. + _See also_ Burr Conspiracy; Elections (_1800_). + + Burr, Levi, _ex parte_, =3=, 537 _n._ + + Burr conspiracy, and life of M., =3=, 275; + Burr's plight on retirement from Vice-Presidency, 276-78; + Jefferson's hostility and isolation of Burr, 279-81; + Burr and Federalist Secessionists, 281; + West and Union, 282-84; + popular desire to free Spanish America, 284, 286; + expected war with Spain, 285; + West as field for rehabilitation of Burr, 286; + his earlier proposal to invade Spanish America, 286; + Burr's intrigue with Merry, real purpose, 287-90, 299; + first western trip, 290; + conference with Dayton, 290; + Wilkinson's connection, he proposes Mexican invasion, 290, 294, + 297, 460; + and Blennerhassett, 291; + conference at Cincinnati, 291; + in Kentucky, 291, 296; + plan for Ohio River canal, 291 _n._; + in Tennessee, Jackson's relationship, 292-96; + Burr and Tennessee seat in House, 292; + no proposals for disunion, 292, 297, 303, 312; + invasion of Mexico, contingent on war, 292 _n._, 294-96, 298, + 301-03, 306-09, 312, 313, 319, 460-62, 523, 527; + settlement of Washita lands, 292 _n._, 303, 310, 312, 313, 314 _n._, + 319, 324 _n._, 361 _n._, 362, 461, 462, 523, 527; + Burr at New Orleans, 294, 295; + disunion rumors, Spanish source, 296, 298, 299; + Wilkinson plans to abandon Burr, 298, 300 _n._, 320; + Casa Yrujo intrigue, purpose, 300, 300 _n._; + and Miranda's plans, 300, 301, 306, 308; + hopes, 301, 302; + Wilkinson on frontier, expected to precipitate war, 302, 307, + 308, 314; + Burr requests diplomatic position, 302; + Burr's conferences with Truxton and Decatur, 302, 303; + and with Eaton, Eaton's report of it, 303-05, 307, 345; + Jefferson and reports of plans, 305, 310, 315, 317, 323, 338 _n._; + Burr's letter to Jackson for military preparation, 306; + Burr begins second journey, 307, 309; + cipher letter to Wilkinson by Swartwout and Bollmann, 307-09, + 614, 615; + Morgan visit, report of it to Jefferson, 309, 310; + Blennerhassett's enthusiasm, his newspaper letters mentioning + disunion, 310, 311; + gathering at his island, 311, 324, 325, 425-27, 484, 488-91; + recruits, 311, 313, 324, 326, 360; + Wilkinson's letters to Adair and Smith, 314; + renewal of disunion reports, 315, 316; + Burr denies disunion plans, 316, 318 _n._, 319, 326; + arrest and release of Burr in Kentucky, 317-19; + Administration's knowledge of Burr's plans, 318 _n._; + Wilkinson and Swartwout, 320, 465; + Wilkinson's revelations to Jefferson, 321-23, 334, 341, 352-56; + Jefferson's action on revelations, proclamation against expedition, + 324, 327; + seizure of supplies, 324; + militia attack on Blennerhassett's island, flight of gathering + there, 325; + Burr afloat, 326, 360-62; + popular belief in disunion plan, 327; + Wilkinson's pretended terror, 328; + his appeal for funds to Viceroy, 329; + and to Jefferson, 330; + his reign of terror at New Orleans, 330-37; + Jefferson's Annual Message on, 337; + mystery and surmises at Washington, 338; + House demand for information, 339; + Special Message declaring Burr guilty, 339-41; + effect of message on public opinion, 341; + Wilkinson's prisoners brought to Washington, 343, 344; + Swartwout and Bollmann held for trial, 344-46; + payment of Eaton's claim, 345 _n._; + Supreme Court writ of habeas corpus for Swartwout and Bollmann, 346; + attempt of Congress to suspend privilege of writ, 346-48; + discharge of Swartwout and Bollmann, M.'s opinion, 348-57; + constitutional limitation of treason, 349-51; + necessity of overt act, 351, 442; + presence at overt act, effect of misunderstanding of M.'s opinion, + 350, 414 _n._, 484, 493, 496, 502, 504-13, 540, 619-26; + lack of evidence of treasonable design, 353-56, 377-79, 388; + Judiciary and Administration and public opinion, 357, 376, 388; + House debate on Wilkinson's conduct, 358-60; + Burr's assembly on island at mouth of Cumberland, 361; + boats, 361 _n._; + Burr in Mississippi, grand jury refuses to indict him, 363-65; + release refused, flight and military arrest, 365-68, 374; + taken to Richmond, 368-70; + M.'s warrant for civil arrest, 370; + preliminary hearing before M., 370, 372, 379; + Burr and M. contrasted, 371, 372; + bail question, 372, 379, 380, 423, 424, 429, 516; + Burr's statement at hearing, 374; + M.'s opinion, commits for high misdemeanor only, 375-79; + M.'s conduct and position at trials, 375, 397, 404, 407, 408, + 413 _n._, 421, 423, 480, 494, 517, 526; + public opinion, appeal to it, Jefferson as prosecutor, 374, 379-91, + 395-97, 401, 406, 411, 413, 414, 416-22, 430-32, 435, 437, + 439, 441, 471, 476, 477, 479, 480, 497 _n._, 499, 499 _n._, + 503, 516 _n._; + M.'s reflection on Jefferson's conduct, 376; + collection of evidence, time question, 378, 385-90, 415, 417, 418, + 425, 473; + Wilkinson's attendance awaited, 383, 393, 415, 416, 429, 431, 432, + 440; + supposed overt acts, 386 _n._; + money spent by Administration, 391, 423; + Jefferson's violation of faith with Bollmann, 391, 392; + pardons for informers, 392, 393; + Dunbaugh's evidence, 393, 427, 462, 463; + development of Burr support at Richmond, 393, 415, 470, 478, 479; + M. and Burr at Wickham's dinner, 394-97; + appearance of court, crowd, 398-400; + M. on difficulty of fair trial, 401; + Jackson's denunciation of Jefferson and Wilkinson, 404, 405, 457; + Burr's conduct and appearance in court, 406, 408, 456, 457, 479, + 481, 499, 518; + Burr's counsel, 407, 428; + prosecuting attorneys, 407; + M. and counsel, 408; + selection of grand jury, 408-13, 422; + Burr's demand for equal rights, 413, 414, 418; + instruction of grand jury, 413-15, 442, 451; + Hay's reports to Jefferson, 415, 431; + new motion to commit for treason, 415-29; + Jefferson and publication of evidence, 422, 515; + legal order of proof, 424, 484-87; + conduct of Eaton at Richmond, 429; + Bollmann and pardon, 430, 431, 450-54; + demand for Wilkinson's letter to Jefferson, subpoena _duces tecum_, + 433-47, 450, 454-56, 518-22; + M.'s admonition to counsel, 439; + M.'s statement on prosecution's expectation of conviction, 447-49; + Wilkinson's arrival, conduct and testimony, just escapes indictment, + 456, 457, 463, 464; + testimony before grand jury, 458-65; + indictment of Burr and Blennerhassett for treason and misdemeanor, + 465, 466; + other indictments, 466 _n._; + attacks on Wilkinson, 471-75, 477; + confinement of Burr, 474, 478, 479; + selection of petit jury, 475, 481-83; + M. seeks advice of Justices on treason, 480; + Hay's opening statement, 484; + testimony on Burr's expressions, 487, 488; + on overt act, 488-91; + argument of proof of overt act, 491-504; + unprecedented postponement, 494; + Wirt's famous passage, 497, 616-18; + poison hoax, 499 _n._; + irrelevant testimony, 512, 515, 542; + attacks on M., threats of impeachment, Jefferson's Message, 500, + 501, 503, 516, 525, 530-35, 540; + judgment of law and fact, 500, 531; + irregular verdict of not guilty, 513, 514; + prosecution's advances to Blennerhassett and others, 514 _n._; + _nolle prosequi_, 515, 524; + reception of verdict in Richmond, 517; + trial for misdemeanor, 522-24; + commitment for trial in Ohio, 524, 527, 528, 531 _n._; + Burr's anger at M., 524, 528; + and Daveiss's pamphlet, 525; + Burr on drawn battle, 527; + prosecution dropped, 528; + M. on trial, 530; + Baltimore mob, 535-40; + bibliography, 538 _n._; + attempt to amend law of treason, 540; + attempt to expel Senator Smith, Adams's report, 540-44. + + Burrill, James, Jr., on bankruptcy frauds, =4=, 202. + + Burwell, Rebecca, and Jefferson, =1=, 149. + + Burwell, William A., + and attempt to suspend habeas corpus (1807), =3=, 348. + + Butchers' Union _vs._ Crescent City, =4=, 279 _n._ + + Butler, Elizur, arrest by Georgia, =4=, 548; + pardoned, 552 _n._ + _See also_ Worcester _vs._ Georgia. + + Byrd, William, library, =1=, 25. + + + Cabell, Benjamin W. S., + in Virginia Constitutional Convention, =4=, 500. + + Cabell, Joseph, at William and Mary, =1=, 159. + + Cabell, Joseph C., grand juror on Burr, =3=, 413 _n._; + on Swartwout, 465. + + Cabell, William, at William and Mary, =1=, 159; + in the Legislature, 203; + and Henry-Randolph quarrel, 407 _n._ + + Cabell, William H., + opinion in Martin _vs._ Hunter's Lessee, =4=, 158-60. + + Cabinet, dissensions in Washington's, =2=, 82; + changes in Washington's, his offers to M., 122-25, 147; + disruption of Adams's, 485-88; + M.'s appointment as Secretary of State, 486, 489-91, 493; + Republican comment on Adams's reorganized, 491; + salaries (1800), 539 _n._ + + Cabot, George, on democratic clubs, =2=, 38; + on policy of neutrality, 94 _n._; + and M. (1796), 198; + on Gerry, 364, 366; + on M.'s views on Alien and Sedition Acts, 391-93; + on reopening of French negotiations, 424, 426; + on M. in Congress, 432; + on Adams and Hamiltonians, 488; + on M. as Secretary of State, 492; + opposition to Adams, 517 _n._; + in defeat, =3=, 11; + on Republican success, 11; + political character, 11 _n._; + on attack on Judiciary, 98; + on protest on repeal of Judiciary Act, 123 _n._; + on Louisiana Purchase, 150; + and secession, 152; + and Hartford Convention, =4=, 52; + and Story, 98. + + Calder _vs._ Bull, =3=, 612. + + Caldwell, Elisha B., Supreme Court sessions in house, =4=, 130. + + Calhoun, John C., and War of 1812, =4=, 29; + Bonus Bill, 417; + Exposition, 538; + and non-intercourse with tariff States, 538 _n._ + + Call, Daniel, as lawyer, =1=, 173; + M.'s neighbor, =2=, 171; + counsel in Hunter _vs._ Fairfax's Devisee, =4=, 151. + + Callender, James T., on M.'s address (1798), =2=, 405; + on M.'s campaign, 409; + later attacks on M., 541 _n._, 556, 560 _n._; + trial for sedition, =3=, 36-41, 189-96, 202-05, 214; + proposed public appropriation for, 38 _n._; + popular subscription, 38 _n._; + pardoned, 40 _n._ + + Camillus letters, =2=, 120. + + Campbell, Alexander, as lawyer, =1=, 173; + and Richmond meeting on Jay Treaty, =2=, 151, 152; + Ware _vs._ Hylton, 188, 189, 192; + Hunter _vs._ Fairfax's Devisee, 207; + in Virginia Constitutional Convention, =4=, 501 _n._ + + Campbell, Archibald, as M.'s instructor, =1=, 57; + as Mason, =2=, 176. + + Campbell, Charles, on frontier (1756), =1=, 7 _n._ + + Campbell, George W., argument in Chase trial, =3=, 198; + on Burr conspiracy, 339. + + Campbell, William, in Virginia Constitutional Convention, =4=, 492. + + Campo Formio, Treaty of, M. on, =2=, 271; + and X. Y. Z. Mission, 272, 273. + + Canal, Burr's plan for, on Ohio River, =3=, 291 _n._ + _See also_ Internal Improvements. + + Canning, George, letter to Pinkney, =4=, 23. + + Capital, Federal, deal on assumption and location, =2=, 63, 64; + proposed removal to Baltimore, =3=, 8. + _See also_ District of Columbia; Washington, D.C. + + Capitol, of Virginia (1783), =1=, 200; + Federal, in 1801, =3=, 1, 2; + religious services there, 7 _n._; + quarters for Supreme Court, 121 _n._ + + Card playing in Virginia, =1=, 177 _n._ + + Carlisle, Pa., Ratification riot, =1=, 334. + + Carr, Dabney, and Cherokee Indians controversy, =4=, 542. + + Carrington, Edward, supports Jay Treaty, =2=, 121; + and M.'s advice on Cabinet positions, 124-26, 132; + on Virginia and Jay Treaty, 131, 132, 134, 137, 138 _n._, 142, 143; + inaccuracy of reports to Washington, 131 _n._; + and Richmond meeting on Jay Treaty, 149, 154; + M.'s neighbor, 171; + verdict in Burr trial, =3=, 513, 514. + + Carrington, Eliza (Ambler), on Arnold's invasion, =1=, 144 _n._; + on first and later impressions of M., 150-54; + on Richmond in, 1780, 165; + M.'s sympathy, 188; + on prevalence of irreligion, 221; + on attacks on M.'s character, =2=, 101, 102; + on Mrs. Marshall's invalidism, 371 _n._; + M.'s sister-in-law, =4=, 67 _n._ + + Carrington, Paul, as Judge, =1=, 173, =4=, 148; + candidacy for Ratification Convention, =1=, 359. + + Carroll, Charles, opposition to Adams, =2=, 517 _n._; + on Hamilton's attack on Adams, 528 _n._ + + Carter, John, and tariff, =4=, 384 _n._, 536. + + Carter, Robert, landed estate, =1=, 20 _n._; + character, 21 _n._; + library, 25. + + Cary, Mary, courtship, =1=, 150 _n._ + + Cary, Wilson M., on M.'s ancestry, =1=, 15. + + Casa Yrujo, Marqués de, and Burr, =3=, 289, 296 _n._, 300; + on Wilkinson, 320 _n._ + + Cecil County, Md., and Burr trial, =3=, 479 _n._ + + Centinel letters in opposition to Federal Constitution, =1=, 335-37; + probable authors, 335 _n._ + + Centralization. _See_ Nationalism. + + Chancery. _See_ Equity. + + Chandler, John, case, =3=, 130 _n._ + + Channing, Edward, on Washington, =1=, 121; + on origin of Kentucky Resolutions, =2=, 398 _n._; + on attacks on neutral trade, =4=, 7 _n._; + on purpose of Orders in Council, 12 _n._; + on Minister Jackson, 23 _n._; + on causes of War of 1812, 29 _n._ + + Chapman, H., on opposition to Ratification, =1=, 338. + + Chapman, Nathaniel, on death of M., =4=, 588. + + Charleston, S.C., Jacobin enthusiasm, =2=, 35. + + Charters. _See_ Dartmouth College _vs._ Woodward. + + Chase, Samuel, and Adams, =2=, 495 _n._; + and common-law jurisdiction, =3=, 28 _n._; + conduct in sedition trials, 33, 36, 41; + Fries trial, 35; + on the stump, 47; + on declaring acts void, 117, 612; + House impeaches, 169; + anti-Republican charge to grand jury, 169, 170; + arousing of public opinion against, 171; + articles of impeachment, 171, 172; + despair of Federalists, 173; + effect of Yazoo frauds on trial, 174; + opening of trial, 175; + arrangement of Senate, 179, 180; + Burr as presiding officer, efforts of Administration to win him, + 180-83; + seat for Chase, 183; + appearance, 184; + career, 184 _n._, 185 _n._; + counsel, 185; + Randolph's opening speech, 187-89; + testimony, 189-92; + M. as witness, 192-96; + Giles-Randolph conferences, 197; + argument of Manager Early, 197; + of Manager Campbell, 198; + of Hopkinson, 198-200; + indictable or political offense, 199, 200, 202, 207-13; + arguments of Key and Lee, 201; + of Martin, 201-06; + trial as precedent, 201; + trial as political affair, 206; + argument of Manager Nicholson, 207-10; + of Manager Rodney, 210-12; + and Chief Justiceship, 211 _n._; + argument of Manager Randolph, 212; + Randolph's praise of M., 214-16; + trial and secession, 217; + vote and acquittal, 217-20; + trial as crisis, 220; + effect on Republicans, 220-22; + on M., 222; + Chase and Swartwout and Bollmann case, 349 _n._; + and Fletcher _vs._ Peck, 585 _n._; + death, =4=, 60. + + Chastellux, Marquis de, on William and Mary, =1=, 156 _n._; + on hardships of travel, 262; + on drinking, =2=, 102 _n._ + + Chatham, Earl of, fate of Charleston statue, =2=, 35. + + Checks and balances of Federal Constitution, + Ratification debate on, =1=, 389, 417; + and repeal of Judiciary Act of 1801, =3=, 60, 61, 65. + _See also_ Division of powers; Government; Separation of powers; + Union. + + Cherokee Indians, power, =3=, 553; + origin of Georgia contest, =4=, 539, 540; + Jackson's attitude, 540, 541, 547, 548, 551; + first appeal to Supreme Court, 541; + popular interest and political involution, 541, 548; + and removal, 541; + monograph on contest, 541 _n._; + Tassels incident, Georgia's defiance of Supreme Court, 542-44; + Cherokee Nation _vs._ Georgia, Georgia ignores, 544; + M.'s opinion, Cherokees not a foreign nation, 544-46; + M.'s rebuke of Jackson, 546; + dissent from opinion, 546 _n._; + origin of Worcester _vs._ Georgia, arrest of missionaries, 547, 548; + Georgia refuses to appear before Court, 548; + counsel, 549; + M.'s opinion, no State control over Indians, 549-51; + mandate of Court ignored, 551; + final defiance of Court, Graves case, 552 _n._; + removal of Indians, 552 _n._ + + Cherokee Nation _vs._ Georgia. _See_ Cherokee Indians. + + _Chesapeake-Leopard_ affair, Jefferson and, =3=, 475-77, =4=, 9. + + Chester, Elisha W., counsel in Worcester _vs._ Georgia, =4=, 549. + + Cheves, Langdon, and War of 1812, =4=, 29. + + Children, M.'s fondness for, =4=, 63. + + Chisholm _vs._ Georgia, =2=, 83 _n._, =3=, 554 _n._ + + Choate, Rufus, on Marbury _vs._ Madison, =3=, 101; + on Webster's tribute to Dartmouth, =4=, 248. + + Choctaw Indians, power, =3=, 553. + + Christie, Gabriel, and slavery, =2=, 450. + + Church ----, and X. Y. Z. Mission, =2=, 254. + + _Cincinnati_, first steamboat, =4=, 403 _n._ + + Cincinnati, Order of the, popular prejudice against, =1=, 292-94. + + Cipher, necessity of use, =1=, 266 _n._ + + Circuit Courts, Supreme Court Justices in, =3=, 55, 56; + rights of original jurisdiction, =4=, 386. + _See also_ Judiciary; Judiciary Act of 1801. + + Circuit riders, work, =4=, 189 _n._ + + Citizenship, Virginia bill (1783), =1=, 208. + _See also_ Naturalization. + + Civil rights, lack, =3=, 13 _n._ + _See also_ Bill of Rights. + + Civil service, M. and office-seekers, =2=, 494; + Adams and partisan appointments, =3=, 81; + Jefferson's use of patronage, 81 _n._, 208. + _See also_ Religious tests. + + Claiborne, William C. C., + and election of Jefferson, reward, =3=, 81 _n._; + and Wilkinson and Burr conspiracy, 326, 331, 363, 366; + and Livingston, =4=, 102; + and steamboat monopoly, 414. + + Clark, Daniel, and Burr, =3=, 294, 295; + and disunion rumors, 296. + + Clark, Eugene F., acknowledgment to, =4=, 233 _n._ + + Clark, George Rogers, surveyor, =1=, 210 _n._; + Indiana Canal Company, =3=, 291 _n._ + + Classes, in colonial Virginia, =1=, 25-28; + after the Revolution, 277, 278. + + Clay, Charles, in Virginia Ratification Convention, =1=, 472. + + Clay, Henry, duelist, =3=, 278 _n._; + and Burr conspiracy, 296, 318, 319 _n._; + on Daveiss and Burr, 317 _n._; + as exponent of Nationalism, =4=, 28, 29; + as practitioner before M., 95, 135; + and Green _vs._ Biddle, 376; + counsel in Osborn _vs._ Bank, 385; + in debate on Supreme Court, 395; + Kremer's attack, 462 _n._; + Randolph duel, 463 _n._; + and report on M. and election of 1828, 464; + and American Colonization Society, 474; + and recharter of Bank of the United States, 530; + Compromise Tariff, 574. + + Clayton, Philip, and Yazoo lands act, =3=, 547, 548. + + Clayton, Samuel, in Virginia Constitutional Convention, =4=, 501 _n._ + + _Clermont_, Fulton's steamboat, =4=, 401 _n._ + + Clinton, De Witt, presidential candidacy (1812), =4=, 47. + + Clinton, George, letter for second Federal convention, =1=, 379-81, + 477, =2=, 49, 57 _n._; + elected Vice-President, =3=, 197; + defeats recharter of Bank of the United States, =4=, 176. + + Clopton, John, deserts Congress (1798), =2=, 340 _n._; + candidacy (1798), 414. + + Clothing. _See_ Dress. + + Cobbett, William, + on American enthusiasm over French Revolution, =2=, 5 _n._; + as conservative editor, 30 _n._ + + Cockade, black, =2=, 343. + + Cocke, William, on Judiciary Act of 1801, =3=, 57 _n._; + at Chase trial, 194. + + Cohens _vs._ Virginia, + conditions causing opinion, its purpose, =4=, 342-44, 353; + facts, 344, 345; + as moot case, 343; + counsel, argument, 346; + M.'s opinion on appellate power, 347-57; + statement of State Rights position, 347; + supremacy of National Government, 347-49; + Federal Judiciary as essential agency in this supremacy, 349-52; + resistance of disunion, 352, 353; + State as party, Eleventh Amendment, 354-56; + hearing on merits, 357; + Roane's attack on, 358, 359; + rebuke of concurring Republican Justices, 358, 359; + M. on attacks, 359-62; + other Virginia attacks, 361 _n._; + Jefferson's attack on principles, M. on it, 362-66, 368-70; + attack as one on Union, 365; + Taylor's attack on principles, 366-68. + + Coleman, _vs._ Dick and Pat, =2=, 180 _n._ + + Colhoun, John E., and repeal of Judiciary Act, =3=, 62 _n._, 72 _n._ + + College charters as contracts. _See_ Dartmouth College _vs._ Woodward. + + Collins, Josiah, Granville heirs case, =4=, 154. + + Collins, Minton, on economic division on Ratification, =1=, 313; + on opposition to Ratification, 322. + + Colston, Rawleigh, + purchase of Fairfax estate, =2=, 203 _n._, 204, =4=, 149, 150 _n._; + M.'s debt, =3=, 224. + + _Columbian Centinel_, on Republicans (1799), =3=, 43; + on Judiciary debate (1802), 65 _n._, 72 _n._, 99. + + Commerce, effects of lack of transportation, =1=, 262; + Madison on need of uniform regulation, 312; + Jefferson's dislike, 316; + Federal powers in Ratification debate, 427, 477; + foreign, and South Carolina negro seamen act, Elkison case, + =4=, 382, 383; + power to regulate, and internal improvements, 417; + power over navigation, Brig Wilson _vs._ United States, 428, 429; + doctrine of common carrier and transportation of slaves, 478. + _See also_ Bankruptcy; Brown _vs._ Maryland; Communication; Economic + conditions; Gibbons _vs._ Ogden; Internal improvements; + Navigation acts; Neutral trade, New York _vs._ Miln; + Slave trade; Tariff. + + Common carrier, doctrine, and transportation of slaves, =4=, 478. + + Common law, Federal jurisdiction, =2=, 549 _n._, =3=, 23-29, 30 _n._, + 78, 84, 89. + + Commonwealth _vs._ Caton, =3=, 611. + + Communication, roads of colonial Virginia, =1=, 36 _n._; + at period of Confederation and later, hardships of travel, 250, + 255-64, =3=, 5 _n._, 55 _n._; + lack as index of political conditions, =1=, 251, 255; + sparseness of population, 264; + mails, 264-67; + character of newspapers, 267-70; + conditions breed demagogism, 290-92; + local isolation, =4=, 191. + _See also_ Commerce. + + Commutable Act of Virginia, =1=, 207. + + Concurrent jurisdiction of Federal and State courts, =1=, 452. + _See also_ Appellate jurisdiction. + + Concurrent powers, M.'s exposition in Ratification debate, =1=, 436; + and State bankruptcy laws, =4=, 208-12; + commercial, 409. + + Confederation, Washington on State antagonism, =1=, 206 _n._; + effect of British-debts controversy, 228, 228 _n._; + financial powerlessness, 232, 295-97, 304, 387, 388, 415-17; + effort for power to levy impost, 233; + debt problem, 233-35, 254; + proposed power to pass navigation acts, 234, 235; + social conditions during, 250-87; + popular spirit, 253, 254; + opportunity for demagogism, 288-92, 297, 309; + Shays's Rebellion, 298-304; + impotence of Congress, 305; + prosperity during, 306; + responsibility of masses for failure, 307; + responsibility of States for failure, 308-10; + antagonistic State tariff acts, 310, 311; + economic basis of failure, 310-13; + Jefferson on, 315; + Randolph on, 377; + Henry's defense, 388, 389, 399; + M.'s biography of Washington on, =3=, 259-61. + + Congress, + Ratification debate on character, =1=, 344, 416, 419, 422, 423; + M. on discretionary powers (1788), 454; + _First_: titles, =2=, 36; + election in Virginia, 49, 50; + amendments, 58, 59; + funding, assumption, and National Capital, 59-64; + Judiciary, =3=, 53-56; + _Third_: Yazoo lands, 560, 569, 570; + _Fourth_: Jay Treaty, =3=, 148, 155; + Yazoo lands, =3=, 570; + _Fifth_: Adams's address on French depredations, =2=, 225, 226; + X. Y. Z. dispatches, 336, 338, 339; + war preparations, 355; + Alien and Sedition Acts, 381; + Georgia's Western claims, =3=, 573; + _Sixth_: M.'s campaign for, =2=, 374-80, 401, 409-16; + M.'s importance to Federalists, 432, 436, 437; + Adams's address at first session, 433; + reply of House, 433-36; + and presidential campaign, 438; + and death of Washington, 440-45; + M.'s activity, 445; + cession of Western Reserve, 446; + powers of territorial Governor, 446; + insult to Randolph, 446; + Marine Corps, 446-48; + land grants for veterans, 448; + and slavery, 449; + Sedition Law, 451; + M.'s independence, 451, 452; + Disputed Election Bill, 452-58; + Jonathan Robins case, 460-75; + reduction of army, 476-81; + Bankruptcy Bill, 481, 482; + results of first session, 482; + French treaty, 525; + M. and Adams's address at second session, 530, 531; + Jefferson-Burr contest, 532-47; + Judiciary Bill, 548-52, =3=, 53, 56; + reduction of navy, 458 _n._; + Georgia cession, 574; + _Seventh_: Judiciary in Jefferson's Message, 51-53; + repeal of Judiciary Act of 1801, 58-92; + Supreme Court, 94-97; + _Eighth_: impeachment of Pickering, 164-68; + Chase impeachment, 169-222; + electoral vote counting, 197; + Burr's farewell address, 274; + Yazoo claims, 575-82; + _Ninth_: Jefferson's Annual Message on Burr conspiracy, 337; + demand for information and Special Message, 339; + payment of Eaton's claim, 345 _n._; + attempt to suspend habeas corpus, 346-48; + Burr conspiracy debate, 357-60; + non-importation, =4=, 9; + _Tenth_: _Chesapeake-Leopard_ affair, =3=, 477; + attempt to amend law of treason, 540; + attempt to expel Senator Smith, 540-44; + Embargo, =4=, 11, 13, 14, 22; + Force Act, 16; + non-intercourse, 22; + _Eleventh_: Yazoo claims, =3=, 595-97; + Jackson resolution, =4=, 24; + Louisiana, 27; + bank, 173-76; + _Twelfth_: Yazoo claims, =3=, 597-600; + war, =4=, 29; + _Thirteenth_: Yazoo claims, =3=, 600; + St. Cloud Decree resolution, =4=, 48; + bank, 179; + _Fourteenth_: bank, 180; + salaries, 231 _n._; + Bonus Bill, 417; + _Fifteenth_: bank, 196 _n._, 288, 289; + internal improvements, 418; + _Sixteenth_: bankruptcy, 201, 302; + Missouri, 340-42; + _Seventeenth_: Judiciary, 371-79; + _Eighteenth_: Judiciary, 379, 380, 394, 450, 451; + internal improvements, 418-21; + presidential election, 462 _n._; + tariff, 536; + _Nineteenth_: Supreme Court, 451-53; + _Twentieth_: tariff, 537; + _Twenty-first_: Supreme Court, 514-17; + Cherokee Indians, 541; + Hayne-Webster debate, 552-55; + _Twenty-second_: Judiciary, 517 _n._; + recharter of Bank, 529-33; + river and harbor improvement, 534; + tariff, 559, 567, 574. + + Conkling, Roscoe, resemblance to Pinkney, =4=, 133 _n._ + + Connecticut, Ratification, =1=, 325; + cession of Western Reserve, =2=, 446, =3=, 578; + and Kentucky and Virginia Resolutions, 105 _n._; + and Embargo, =4=, 17; + and War of 1812, 48 _n._; + and Livingston steamboat monopoly, 404. + + Connecticut Reserve, cession, =2=, 446; + Granger's connection, =3=, 578. + + Conrad and McMunn's boarding-house, =3=, 7. + + Conscription, for War of 1812, =4=, 51. + + Conservatism, growth, =1=, 252, 253; + M.'s extreme, =3=, 109, 265, =4=, 4, 55, 93, 479-83, 488. + _See also_ Democracy; Nationalism; People. + + Consolidation. _See_ Nationalism. + + Constitution, question of amending Virginia's (1784), =1=, 216; + attack on Virginia's (1789), =2=, 56 _n._; + Massachusetts Convention (1820), =4=, 471. + _See also_ Federal Constitution; Virginia Constitutional Convention. + + Continental Congress, denunciation by army officers, =1=, 90; + flight, 102; + and intrigue against Washington, 122, 123; + decline, 124; + Washington's plea for abler men and harmony, 124-26, 131. + _See also_ Confederation. + + Contraband, in Jay Treaty and X. Y. Z. Mission, =2=, 306; + M. on British unwarranted increase of list, 509-11. + + Contracts, obligation of, + M.'s first connection with legislative franchise, =1=, 218; + and with ideas of contract, 223, 224; + in debate on Ratification, 428; + M. on, as political factor under Confederation, =3=, 259-61; + M. on (1806), and new National Government, 263; + importance of M.'s expositions, 556, 593-95, =4=, 213, 219, 276-81; + legal-tender violation, =3=, 557; + origin of clause in Federal Constitution, 557 _n._, 558 _n._; + effect of constitutional clause on public mind, 558; + and repeal of Yazoo land act, 562, 563, 586; + discussions of repeal, 571, 572; + congressional debate on Yazoo claims, 575, 579, 580; + M.'s interest in stability, 582; + M.'s opinion in Fletcher _vs._ Peck, repeal of Yazoo act as + impairment, 586-91; + and corrupt legislation, 587; + involved in Sturges _vs._ Crowninshield, =4=, 209, 212; + meaning in Constitution, 213; + contract of future acquisitions and insolvency laws, 214; + not limited to paper money obligations, 214; + not necessary to enumerate particular subjects, 215; + humanitarian limitations, 215, 216; + broad field without historical limitations, 216-18, 269, 271; + New Jersey _vs._ Wilson, exemption of lands from taxation, 221-23; + Dartmouth College case, right to change charter of public + institution, 230 _n._, 235, 243; + limitation to private rights, 234, 263; + colleges as eleemosynary not civil corporations, 241-44, 247, + 263, 264; + Terrett _vs._ Taylor, private rights under grants to towns, + 243 _n._, 246; + precedents in Dartmouth College case, 245-47; + college charters as contracts, 262; + purpose of college does not make it public institution, 264; + nor does act of incorporation, 265-68; + rights of non-profiting trustees, 268, 269; + and public policy, 270-72; + as element in strife of political theories, 370; + and Kentucky occupying claimant law, 375-77, 380-82; + Ogden _vs._ Saunders, future, not violated by insolvency laws, 480; + M.'s dissent, 481. + + Conway Cabal, =1=, 121-23. + + Cook, Daniel P., on Missouri question, =4=, 342. + + Cooke, ----, tavern at Raleigh, =4=, 65. + + Cooke, John R., in Virginia Constitutional Convention, =4=, 502 _n._ + + Cooper, Thomas, sedition trial, =3=, 33, 34, 86. + + Cooper, William, on Jefferson-Burr contest, =2=, 546 _n._ + + Cooper _vs._ Telfair, =3=, 612. + + Corbin, Francis, + and calling of Virginia Ratification Convention, =1=, 245; + in Ratification Convention; characterized, 396; + in the debate, 396, 435; + on detailed debate, 432; + on badges of aristocracy, =2=, 78. + + Cornwallis, Earl of, Brandywine, =1=, 95. + + Corporations, M.'s definition, =4=, 265; + M.'s opposition to State regulation, 479; + presumptive authorization of agency, M.'s dissent, 482, 483. + _See also_ Contracts. + + Correspondence, M.'s negligence, =1=, 183 _n._, =4=, 203 _n._ + + Cotton, effect of invention of gin, =3=, 555. + + Council of State of Virginia, M.'s election to, =1=, 209; + as a political machine, 210, 217 _n._; + M. forced out, 211, 212. + + Counterfeiting, of paper money, =1=, 297, =4=, 195. + + County court system of Virginia, + political machine, =4=, 146, 147, 485-88; + debate in Constitutional Convention on (1830), 491-93. + + Court days, as social event, =1=, 284. + _See also_ Judiciary. + + Court martial, M. on jurisdiction, =2=, 447, 448. + + Coxe, Tench, on British depredations on neutral trade, =2=, 506 _n._ + + Craig, Hiram. See Craig _vs._ Missouri. + + Craig _vs._ Missouri, facts, State loan certificates, =4=, 509; + M.'s opinion, certificates as bills of credit, 510-12; + his reply to threat of disunion, 512; + dissenting opinions, 513; + and renewal of attack on Supreme Court, 514-17; + repudiated, 584 _n._ + + Cranch, William, and trial of Swartwout and Bollmann, =3=, 344, 346. + + Crawford, Thomas H., and attack on Supreme Court, =4=, 515. + + Crawford, William H., and Yazoo frauds, =3=, 552; + and recharter of first Bank of the United States, =4=, 174, 175; + and Treasury portfolio (1825), 462 _n._; + and American Colonization Society, 474. + + Creek Indians, power, =3=, 553. + + Crèvecoeur, Hector St. John de, on frontier farmers, =1=, 30 _n._ + + Crime, M. on jurisdiction over cases on high seas, =2=, 465-67; + Federal punishment of common-law offenses, =3=, 23-29. + _See also_ Alien and Sedition Acts; Extradition. + + Crisis of 1819, banking and speculation, =4=, 176-85; + bank suits to recover loans, 185, 198; + popular demand for more money, 186; + character of State bank notes, 191-96; + early mismanagement of second Bank of the United States, 196; + its reforms and demands on State banks force crisis, 197-99; + popular hostility to it, 198, 199, 206; + lax bankrupt laws and frauds, 200-03; + influence on M., 205; + distress and demagoguery, 206; + movement to destroy Bank of United States through State taxation, + 206-08; + M.'s decisions as remedies, 208, 220. + _See also_ Dartmouth College _vs._ Woodward; M'Culloch _vs._ + Maryland; Sturges _vs._ Crowninshield. + + Crissy, James, publishes biography of Washington, =3=, 273 _n._ + + Crouch, Richard, on M., =4=, 67 _n._ + + Crowninshield, Richard. See Sturges _vs._ Crowninshield. + + Culpeper County, Va., minute men, =1=, 69. + + Curtius letters on M.'s candidacy (1798), =2=, 395, 396; + recalled, =3=, 534. + + Cushing, William, and Chief Justiceship, =3=, 121 _n._; + Fletcher _vs._ Peck, 584, 585 _n._; + death, =4=, 60, 106. + + Cushman, Joshua, on expansion, =4=, 342 _n._ + + Cutler, Manasseh, + on Chase trial, =3=, 183 _n._, 212 _n._, 217 _n._, 221. + + + Daggett, David, counsel in Sturges _vs._ Crowninshield, =4=, 209; + on Holmes in Dartmouth College case, 253 _n._ + + Dallas, Alexander J., in Fries trial, =3=, 36; + and Burr, 68 _n._; + counsel in _Nereid_ case, =4=, 131. + + Dana, Edmund P., testimony in Burr trial, =3=, 491. + + Dana, Francis, and X. Y. Z. Mission, =2=, 227; + sedition trial, =3=, 44-46; + on declaring acts void, 117. + + Dana, Samuel W., Jonathan Robins case, =2=, 472, 475; + in Judiciary debate (1802), =3=, 90, 91; + on Chandler case, 130 _n._; + and Eaton's report on Burr's plans, 305 _n._ + + Dandridge, Julius B., case, =4=, 482. + + Daniel, Henry, attack on Supreme Court, =4=, 515. + + Daniel, William, grand juror on Burr, =3=, 413 _n._ + + Dartmouth, Earl of, and Dartmouth College, =4=, 224. + + Dartmouth College _vs._ Woodward, + origin of college, charter, =4=, 223-26; + troubles, 226-29; + political involution, 229; + State reorganization and annulment of charter, 230, 231; + rival administrations, 231-33; + Story's relationship, 232, 243 _n._, 251, 252, 257, 259 _n._, + 274, 275; + counsel, 233, 234, 237-40, 259; + case, 233; + story of recruiting Indian students, 233 _n._; + State trial and decision, 234-36; + appeal to Supreme Court, lack of public interest there, 236; + argument, 240-55; + effort to place case on broader basis, 244, 251, 252; + Webster's tribute to Dartmouth, 248-50; + continued, 255; + influences on Justices, Kent, 255-58, 258 _n._, 259 _n._; + fees and portraits, 255 _n._; + value of Shirley's book on, 258 _n._, 259 _n._; + Pinkney's attempt to reopen, frustrated by M., 259-61, 274; + M.'s opinion, 261-73; + judgment _nunc pro tunc_, 273; + later public attention, 275; + far-reaching consequences, modern attitude, 276-81; + recent discussions, 280 _n._ + _See also_ Contracts. + + Daveiss, Joseph Hamilton, Federal appointment, =2=, 560 _n._; + and Burr conspiracy, =3=, 315-19; + middle name, 317 _n._; + pamphlet, 525. + + Davis, ----, on "Hail, Columbia!" =2=, 343 _n._ + + Davis, David, on Dartmouth College case, =4=, 280. + + Davis, John, and M.'s candidacy for President, =4=, 33; + identity, 34 _n._ + + Davis, Judge John, United States _vs._ Palmer, =4=, 126. + + Davis, Sussex D., anecdote of M., =4=, 83 _n._ + + Davis, Thomas T., in debate on repeal of Judiciary Act, =3=, 74. + + Davis, William R., on Judiciary Act of 1789, =3=, 54; + Granville heirs case, =4=, 154; + report on Supreme Court, 515. + + Dawson, Henry B., + on bribery in Massachusetts Ratification, =1=, 354 _n._ + + Dawson, John, in Virginia Ratification Convention, =1=, 470. + + Dawson's Lessee _vs._ Godfrey, =4=, 54 _n._ + + Dayson, Aquella, sells land to M., =1=, 196. + + Dayson, Lucy, sells land to M., =1=, 196. + + Dayton, Jonathan, support of Adams (1800), =2=, 518; + in debate on repeal of Judiciary Act, =3=, 67; + and Pickering impeachment, 167, 168 _n._; + and Burr conspiracy, 290, 291, 300, 308; + career, 290 _n._; + Indiana Canal Company, 291 _n._; + _nolle prosequi_, 515; + security for Burr, 517. + + Deane, Silas, and Beaumarchais, =2=, 292 _n._ + + Dearborn, Henry, and Ogden-Smith trial, =3=, 436 _n._ + + Debating at William and Mary, =1=, 158. + + Debts, spirit of repudiation of private, =1=, 294, 298; + imprisonment for, =3=, 13 _n._, 15 _n._, =4=, 215, 216; + and hostility to lawyers, =3=, 23 _n._; + M. on political factor under Confederation, 259-61. + _See also_ British debts; + Contracts; Crisis of 1819; Finances; Public debts. + + Decatur, Stephen, and Burr conspiracy, =3=, 302, 303; + at trial of Burr, testimony, 452, 458, 488 _n._; + career and grievance, 458 _n._ + + Declaration of Independence, anticipated, =3=, 118; + M.'s biography of Washington on, 244. + + Declaring acts void, Henry on, =1=, 429; + M. on, in Ratification debate, 452, 453, =2=, 18; + Jefferson's suppressed paragraph on (1801), =3=, 52; + congressional debate on judicial right (1802), 60, 62, 64, 67-71, + 73, 74, 82, 85, 87, 91; + M.'s preparation for assertion of power, 104, 109; + Kentucky and Virginia Resolutions and State Rights doctrine, 105-08; + effect of this, 108; + necessity of decision on power, 109, 131; + problem of vehicle for assertion, 111, 121-24; + dangers involved in M.'s course, 111-14; + question in Federal Convention, 114-16; + importance of Marbury _vs._ Madison, unique opportunity, 116, 118, + 127, 131, 142; + no new argument in it, M.'s knowledge of previous opinions, 116-20, + 611-13; + condition of Supreme Court as obstacle to M.'s determination, 120; + dilemma of Marbury _vs._ Madison as vehicle, solution, 126-33; + opinion on power in Marbury _vs._ Madison, 138-42; + effect of decision on attacks on Judiciary, 143, 153, 155; + Jefferson and opinion, 143, 144, 153; + lack of public notice of opinion, 153-55; + M. suggests legislative reversal of judicial opinions, 177, 178; + bibliography, 613; + M.'s avoidance in Federal laws, =4=, 117, 118; + his caution in State laws, 261; + Supreme Court action on State laws, 373, 377; + proposed measures to restrict it, 378-80. + _See also_ Judiciary; and, respecting State laws, Appellate + jurisdiction; Contracts; Eleventh Amendment, and the + following cases: Brown _vs._ Maryland; Cohens _vs._ Virginia; + Craig _vs._ Missouri; Dartmouth College _vs._ Woodward; + Fletcher _vs._ Peck; Gibbons _vs._ Ogden; Green _vs._ Biddle; + M'Culloch _vs._ Maryland; Martin _vs._ Hunter's Lessee; + New Jersey _vs._ Wilson; Osgood _vs._ Bank; + Sturges _vs._ Crowninshield; Terrett _vs._ Taylor; + Worcester _vs._ Georgia. + + Dedham, Mass., denounces lawyers, =3=, 23 _n._ + + Delaware, Ratification, =1=, 325. + + Delaware Indians, New Jersey land case, =4=, 221-23. + + Demagogism, + opportunity and tales under Confederation, =1=, 290-92, 297, 309; + J. Q. Adams on opportunity, =2=, 17; + and crisis of, 1819, =4=, 206. + _See also_ Government. + + Democracy, + growth of belief in restriction, =1=, 252, 253, 300-02, 308; + union with State Rights, =3=, 48; + M.'s extreme lack of faith in, 109, 265, =4=, 4, 55, 93, 479-83, + 488; + chaotic condition after War of 1812, =4=, 170. + _See also_ Government; People; Social conditions. + + Democratic Party, as term of contempt, =2=, 439 _n._, =3=, 234 _n._ + _See also_ Republican Party. + + Democratic societies, development, =2=, 38; + opposition and support, 38-41; + decline, 41; + and Whiskey Insurrection, 88; + and Jay's negotiations, 113. + + Denmark, and Barbary Powers, =2=, 499. + + Dennison, ----, and Yazoo lands act, =3=, 547. + + De Pestre, Colonel, attempt to seduce, =3=, 515 _n._ + + Despotism, demagogic fear, =1=, 291; + feared under Federal Constitution, 333; + in Ratification debate, 352, 398, 400, 404, 406, 409-11, 417, 427, + 428. + + Dexter, Samuel, and M. (1796), =2=, 198; + Secretary of War, 485, 493, 494; + _Aurora_ on, 492; + seals M.'s commission, 557; + and M.'s logic, =4=, 85; + as practitioner before M., 95; + counsel in Martin _vs._ Hunter's Lessee, 161; + as court orator, 133. + + Dickinson, John, + in Federal Convention, on declaring acts void, =3=, 115 _n._ + + Dickinson, Philemon, and intrigue against Adams, =2=, 529 _n._ + + _Diligente, Amelia_ case, =3=, 16. + + Dinners, as form of social life in Richmond, =3=, 394; + of Quoit Club, =4=, 77; + M.'s lawyer, 78, 79. + + Direct tax, + Fries's Insurrection and pardon, =2=, 429-31, 435, =3=, 34-36. + _See also_ Taxation. + + Directory, M. declines mission to, =2=, 144-46; + 18th Fructidor, 230, 245 _n._, 246 _n._; + M. on it, 232, 236-44; + M.'s analysis of economic conditions, 267-70; + English negotiations (1797), 295; + preparations against England (1798), 321, 322; + need of funds, 322, 323. + _See also_ Franco-American War; + French Revolution; X. Y. Z. Mission. + + Discipline, in Revolutionary army, =1=, 87, 120. + + Disestablishment, Virginia controversy, =1=, 221, 222; + in New Hampshire, =4=, 227, 230 _n._ + + Disputed Elections Bill (1800), =2=, 452-58. + + District-attorneys, United States, plan to remove Federalist, =3=, 21. + + District of Columbia, popular fear of, =1=, 291, 438, 439, 456, 477. + _See also_ Capital; Washington, D.C. + + _Divina Pastora_ case, =4=, 128. + + Division of powers, arguments on, during Ratification, =1=, 320, 334, + 375, 382, 388, 405, 438; + supremacy of National powers, =4=, 293, 302-08, 347-49, 438. + _See also_ Nationalism. + + Divorce, by legislation, =2=, 55 _n._ + + Doddridge, Philip, + in Virginia Constitutional Convention, =4=, 502 _n._; + on attack on Supreme Court, 515. + + Domicil in enemy country, enemy character of property, =4=, 128, 129. + + Dorchester, Lord, Indian speech, =2=, 111. + + Drake, James, and sedition trial, =3=, 32. + + Dred Scott case, and declaring Federal acts void, =3=, 132 _n._ + + Dress, frontier, =1=, 40; + of Virginia legislators, 59, 200; + contrast of elegance and squalor, 280; + of early National period, =3=, 396, 397. + + Drinking, in colonial and later Virginia, =1=, 23; + rules of William and Mary College on, 156 _n._; + extent (c. 1800), 186 _n._, 281-83, =2=, 102 _n._, =3=, 400, + 501 _n._; + M.'s wine bills, =1=, 186; + distilleries, =2=, 86 _n._; + at Washington, =3=, 9; + frontier, =4=, 189 _n._ + + Duane, William, prosecution by Senate, =2=, 454 _n._; + trial for sedition, =3=, 46 _n._; + advances to Blennerhassett, 514. + _See also_ _Aurora_. + + Duché, Jacob, beseeches Washington to apostatize, =1=, 105. + + Duckett, Allen B., and Swartwout and Bollmann, =3=, 346. + + Dueling, prevalence, =3=, 278 _n._ + + Dunbar, Thomas, in Braddock's defeat, =1=, 5. + + Dunbaugh, Jacob, and trial of Burr, evidence, =3=, 393, 459, 462, 463; + credibility destroyed, 523. + + Dunmore, Lord, Norfolk raid, =1=, 74-79. + + Dutrimond, ----, and X. Y. Z. Mission, =2=, 326. + + Duval, Gabriel, appointed Justice, =4=, 60; + and Dartmouth College case, 255; + dissent in Ogden _vs._ Saunders, 482 _n._; + resigns, 582, 584; + and Briscoe _vs._ Bank and New York _vs._ Miln, 583. + + Dwight, Theodore, on Republican rule (1801), =3=, 12. + + + Early, Peter, argument in Chase trial, =3=, 197. + + Eaton, John H., on Supreme Court, =4=, 451. + + Eaton, William, on Jefferson, =3=, 149 _n._; + antagonism to Jefferson, 302; + career in Africa, 302 _n._, 303 _n._; + conference with Burr, report of it, 303-05, 307; + affidavit on Burr's statement, 345, 352; + claim paid, 345 _n._; + at trial of Burr, testimony, 429, 452, 459, 487; + loses public esteem, 523. + + Economic conditions, influence on Federal Convention and Ratification, + =1=, 241, 242, 310, 312, 429 _n._, 441 _n._; + prosperity during Confederation, 306; + influence on attitude towards French Revolution, =2=, 42; + and first parties, 75, 96 _n._, 125 _n._ + _See also_ Banking; Commerce; + Contracts; Crisis of 1819; Land; Prices; Social conditions. + + _Edinburgh Review_, on M.'s biography of Washington, =3=, 271; + on United States (1820), =4=, 190 _n._ + + Education, of colonial Virginia women, =1=, 18 _n._, 24 _n._; + in colonial Virginia, 24; + M.'s, 42, 53, 57; + condition under Confederation, 271-73; + M. on general, =4=, 472. + _See also_ Dartmouth College _vs._ Woodward; Social conditions. + + Eggleston, Joseph, grand juror on Burr, =3=, 412. + + Egotism, as National characteristic, =3=, 13. + + Eighteenth Fructidor _coup d'état_, =2=, 230, 245 _n._, 246 _n._; + M. on, 232, 236-44; + Pinckney and, 246 _n._ + + Elections, Federal, in Virginia (1789), =2=, 49, 50; + (1794), 106; + State, in Virginia (1795), 129-30; + Henry and presidential candidacy (1796), 156-58; + M.'s campaign for Congress (1798), 374-80, 401, 409-16; + issues in 1798, 410; + methods and scenes in Virginia, 413. + + _1800_: + Federalist dissensions, Hamiltonian plots, =2=, 438, 488, 515-18, + 521, 526; + issues, 439, 520; + influence of campaign on Congress, 438; + Federalist bill to control, M.'s defeat of it, 452-58; + effect of defeat of bill, 456; + effect of Federalist dissensions, 488; + Adams's attack on Hamiltonians, 518, 525; + Adams's advances to Jefferson, 519; + Republican ascendancy, 519, 521; + and new French negotiations, 522, 524; + M.'s efforts for Federalist harmony, 526; + Hamilton's attack on Adams, 527-29; + campaign virulence, 529; + size of Republican success, 531; + Federalist press on result, 532 _n._; + Jefferson-Burr contest in Congress, 532-47; + Jefferson's fear of Federalist intentions, 533; + reasons for Federalist support of Burr, 534-36; + Burr and Republican success, 535 _n._; + M.'s neutrality, 536-38; + his personal interest in contest, 538, 539; + influence of his neutrality, 539; + Burr's refusal to favor Federalist plan, 539 _n._; + _Washington Federalist's_ contrast of Jefferson and Burr, + 541 _n._; + question of deadlock and appointment of a Federalist, 541-43; + Jefferson's threat of armed resistance, 543; + Federalists ignore threat, 544, 545 _n._; + effect of Burr's attitude and Jefferson's promises, 545-47, + =3=, 18; + election of Jefferson, =2=, 547; + rewards to Republican workers, =3=, 81 _n._ + + _1804_: + Campaign and attacks on Judiciary, =3=, 184. + + _1812_: + M.'s candidacy, =4=, 31-34; + Clinton as candidate, 47; + possible victory if M. had been nominated, 47. + + _1828_: + M. and, 462-65. + + _1832_: + Bank as issue, 532 _n._, 533; + M.'s attitude, 534. + + Electoral vote, counting in open session, =3=, 197. + + Eleventh Amendment, origin, =2=, 84 _n._, =3=, 554; + purpose and limitation, =4=, 354; + and suits against State officers, 385, 387-91. + + Elkison, Henry, case, =4=, 382. + + Elliot, James, on Wilkinson's conduct, =3=, 358. + + Elliot, Jonathan, inaccuracy of _Debates_, =1=, 388 _n._ + + Ellsworth, Oliver, and presidential candidacy (1800), =2=, 438; + on Sedition Law, 451; + resigns Chief Justiceship, 552; + and common-law jurisdiction on expatriation, =3=, 27, =4=, 53; + and Judiciary Act of 1789, =3=, 53, 128; + on obligation of contracts, 558 _n._ + + Ellsworth, William W., and attack on Supreme Court, =4=, 515. + + Emancipation, + as involved in Nationalist development, =4=, 370, 420, 536. + + Embargo Act, =4=, 11; + effect, opposition, 12-16; + M.'s opinion, 14, 118; + Force Act, 16; + repeal, 22. + _See also_ Neutral trade. + + Emmet, Thomas A., as practitioner before M., =4=, 95, 135 _n._; + counsel in _Nereid_ case, 131; + appearance, 133; + counsel in Gibbons _vs._ Ogden, 424, 427. + + Eppes, John W., and attempt to suspend habeas corpus (1807), =3=, 348; + and amendment on Judiciary, =4=, 378 _n._ + + Eppes, Tabby, M.'s gossip on, =1=, 182. + + Equality, demand for division of property, =1=, 294, 298; + lack of social (1803), =3=, 13. + + Equity, M. and Virginia act on proceedings (1787), =1=, 218-20. + _See also_ Judiciary. + + Erskine, David M., non-intercourse controversy, =4=, 22. + + Everett, Edward, and Madison's views on Nullification, =4=, 556. + + _Exchange case_, =4=, 121-25. + + Excise, unpopularity of Federal, =2=, 86; + New England and, 86 _n._ + _See also_ Taxation; Whiskey Insurrection. + + Exclusive powers, and State bankruptcy laws, =4=, 208-12. + _See also_ Gibbons _vs._ Ogden. + + Expatriation, Ellsworth's denial of right, =3=, 27; + and impressment, 27 _n._ + _See also_ Impressment. + + Exterritoriality of foreign man-of-war, =4=, 122-25. + + Extradition, foreign, Virginia act (1784), =1=, 235-41; + Jonathan Robins case, =2=, 458-75. + + + "Faction," as a term of political reproach, =2=, 410 _n._ + + Fairfax, Baron, career and character, =1=, 47-50; + influence on Washington and M.'s father, 50. + _See also_ Fairfax estate. + + Fairfax, Denny M., M.'s debt, =3=, 223; + and Hunter's grant, =4=, 147; + sale of land to M.'s brother, 150 _n._ + + Fairfax estate, M.'s argument on right, =1=, 191-96; + M.'s purchase and title, 196, =2=, 100, 101, 203-11, 371, 373, + =3=, 582; + in Reconstruction debate, =1=, 447-49, 458; + Jay Treaty and, =2=, 129; + controversy over title, Virginia Legislature and compromise, 206, + 209, =4=, 148-50; + and Judiciary Bill (1801), =2=, 551; + M.'s children at, =4=, 74; + M.'s life at, 74. + See also Martin _vs._ Hunter's Lessee. + + Fairfax's Devisee _vs._ Hunter's Lessee. + _See_ Martin _vs._ Hunter's Lessee. + + Falls of the Ohio, Burr's plan to canalize, =3=, 291 _n._ + + Farmicola, ----, tavern in Richmond, =1=, 172. + + Farrar, Timothy, Report of Dartmouth College case, =4=, 250 _n._ + + Fauchet, Jean A. J., and Randolph, =2=, 146. + + Fauquier County, Va., minute men, =1=, 69. + + Faux, William, + on frontier inhabitants, =4=, 188, 189 _n._, 190, 190 _n._ + + Federal Constitution, constitutionality of assumption, =2=, 66; + Bank, 71-74; + and party politics, 75; + excise, 87; + neutrality proclamation, 95; + treaty-making power, 119, 128, 133, 134-36, 141; + Alien and Sedition Acts, 383, 404. + _See also_ Amendment; + Federal Convention; Government; + Marshall, John (_Chief Justice_); + Nationalism; Ratification; State Rights. + + Federal Convention, economic mainspring, =1=, 241, 242, 310, 312; + demand for a second convention, 242, 248, 355, 362, 379-81, 477, + =2=, 49, 57 _n._; + class of Framers, =1=, 255 _n._; + secrecy, 323, 335, 405; + revolutionary results, 323-25, 373, 375, 425; + and declaring acts void, =3=, 114-16; + M.'s biography of Washington on, 262; + and treason, 402; + on obligation of contracts, 557 _n._, 558 _n._; + commerce clause, =4=, 423. + _See also_ Ratification. + + Federal District. See District of Columbia. + + _Federalist_, influence on Marbury decision, =3=, 119, 120. + + Federalist Party, use, =2=, 74-76; + economic basis, 125 _n._; + leaders impressed by M. (1796), 198; + effect of X. Y. Z. Mission, 355, 358; + fatality of Alien and Sedition Acts, 361, 381; + issues in 1798, 410; + French hostility as party asset, 422, 424, 427; + and Adams's renewal of negotiations, 422-28; + and pardon of Fries, 429-31; + M.'s importance to, in Congress, 432, 436; + M. and breaking-up, 514, 515, 526; + hopes in control of enlarged Judiciary, 547, 548; + in defeat, on Republican rule, =3=, 11-15; + Jefferson on forebodings, 14; + Judiciary as stronghold, Republican fear, 20, 21, 77; + and plans against Judiciary, 22; + and perpetual allegiance, 27 _n._; + and Louisiana Purchase, 148-53; + and impeachment of Chase, 173; + moribund, 256, 257; + M. on origin, 259-61; + secession plots and Burr, 281, 298; + intrigue with Merry, 281, 288; + as British partisans, =4=, 1, 2, 9, 10; + and _Chesapeake-Leopard_ affair, 9; + and Embargo, 12-17; + and Erskine, 22; + and War of, 1812, 30, 45, 46, 48. + _See also_ Congress; Elections; Politics; Secession. + + Fenno, John, on troubles of conservative editor, =2=, 30. + + Fertilizing Co. _vs._ Hyde Park, =4=, 279 _n._ + + Few, William, and Judiciary Act of 1789, =3=, 129. + + Fiction, M.'s fondness, =1=, 41, =4=, 79. + + Field, Peter, =1=, 11 _n._ + + Filibustering, first act against, =1=, 237. + + Finances, powerlessness of Confederation, =1=, 232, 295-97, 304, 387, + 388, 415-17. + _See also_ Banking; Bankruptcy; Debts; Economic conditions; Money; + Taxation. + + Finch, Francis M., on treason, =3=, 401. + + Findley, John, on Yazoo claims, =3=, 579. + + Finnie, William, relief bill, =1=, 215. + + Fisher, George, M.'s neighbor, =2=, 172; + and Bank of Virginia, =4=, 194. + + Fiske, John, on Dartmouth College case, =4=, 277. + + Fitch, Jabez G., and Lyon, =3=, 31, 32. + + Fitch, John, steamboat invention, =4=, 399 _n._, 409 _n._ + + Fitzhugh,----, at William and Mary, =1=, 159. + + Fitzhugh, Nicholas, and Swartwout and Bollmann, =3=, 346. + + Fitzhugh, William H., + in Virginia Constitutional Convention, =4=, 501 _n._ + + Fitzpatrick, Richard, in Philadelphia society, =1=, 110. + + Fleming, William, of Virginia Court of Appeals, =4=, 148. + + "Fletcher of Saltoun," attack on M., =4=, 361 _n._ + + Fletcher, Robert. _See_ Fletcher _vs._ Peck. + + Fletcher _vs._ Peck, decision anticipated, =3=, 88; + importance and results, 556, 593-95, 602; + origin, 583; + before Circuit Court, 584; + before Supreme Court, first hearing, 585; + collusion, Johnson's separate opinion, 585, 592, 601; + second hearing, 585; + M.'s opinion, 586-91; + congressional denunciation of decision, 595-601. + + Fleury, Louis, Stony Point, =1=, 140. + + Flint, James, on newspaper abuse, =4=, 175 _n._; + on bank mania, 187, 188, 192 _n._, 193; + on bankruptcy frauds, 202. + + Flint, Timothy, on M.'s biography of Washington, =3=, 270. + + Florida, Bowles's activity, =2=, 497-99; + M. on annexation and territorial government, =4=, 142-44. + _See also_ West Florida. + + Floyd, Davis, Indiana Canal Company, =3=, 291 _n._; + Burr conspiracy, 361. + + Floyd, John, and Nullification, =4=, 567. + + Folch, Visente, on Wilkinson, =3=, 284 _n._, 337 _n._ + + Food, frontier, =1=, 39; + of period of the Confederation, 280-82. + + Foot, Samuel A., resolution and Hayne-Webster debate, =4=, 553 _n._ + + Force Act (1809), =4=, 16. + + Fordyce, Captain, battle of Great Bridge, =1=, 77. + + Foreign relations, policy of isolation, =2=, 235, 388, =3=, 14. + _See also_ Neutrality. + + Forsyth, John, attack on Supreme Court, =4=, 395. + + Foster, Thomas F., attack on Supreme Court, =4=, 516. + + Foushee, William, Richmond physician, =1=, 189 _n._; + candidacy for Ratification Convention, 364; + and Richmond meeting on Jay Treaty, =2=, 152; + grand juror on Burr, =3=, 413. + + Fowler, John, on Judiciary Act of 1801, =2=, 561 _n._ + + France, American alliance, =1=, 133, 138; + hatred of Federalists, =4=, 2-5, 15. + _See also_ Directory; Franco-American War; French and Indian War; + French Revolution; Napoleonic Wars; Neutral trade; X. Y. Z. + Mission. + + Franco-American War, preparations, =2=, 355, 357, 403; + Washington on, 357; + Jefferson and prospect, 358; + French hostility as Federalist asset, 422, 424, 427; + political result of reopening negotiations, 422-28, 433, 436; + naval exploits, 427; + M. and renewal of negotiations, 428; + M. on need of continued preparedness, debate on reducing + army (1800), 436, 439, 476-81; + army as political issue, 439; + _Sandwich_ incident, 496; + England and renewal of negotiations, 501; + negotiations and presidential campaign, 522, 524; + M. and prospects of negotiations, 522, 523; + treaty, 524; + treaty in Senate, 525; + _Amelia_ case, =3=, 16, 17. + _See also_ X. Y. Z. Mission. + + Franklin, Benjamin, Albany Plan, =1=, 9 _n._; + on newspaper abuse, 268, 269, =3=, 204; + in Federal Convention, on declaring acts void, 115 _n._ + + Franklin, Jesse, and Pickering impeachment, =3=, 168 _n._; + of Smith committee, 541 _n._ + + Franks, Rebecca, on British occupation of Philadelphia, =1=, 109. + + Fraud, and obligation of contracts, =3=, 587, 598, 599. + + Frederick County, Va., Indian raids, =1=, 1 _n._ + + Fredericksburg, Va., as Republican stronghold (1798), =2=, 354. + + Free ships, free goods, Jay Treaty and, =2=, 114, 128; + and X. Y. Z. Mission, 303-05; + and neutral goods in enemy ships, =4=, 137-41. + + "Freeholder," queries to M. (1898), M.'s reply, =2=, 386-89, 574-77. + + Freeman, Constant, and Burr conspiracy, =3=, 330. + + French and Indian War, raids, =1=, 1, 30 _n._; + Braddock's march and defeat, 2-5; + effect of defeat on colonists, 5, 6, 9. + + French decrees on Neutral trade, =4=, 6, 7, 26, 36-39. + + French Revolution, influence of American Revolution, =2=, 1; + influence on United States, 2-4, 42-44; + universality of early American approval, 4, 9; + Morris's unfavorable reports, 6-9, 248; + first division of American opinion, 10, 15, 22; + Burke's warning, 10-12; + influence of Paine's _Rights of Man_, 12-15; + Adams's Publicola papers, 15-18; + replies to them, 18, 19; + American enthusiasm and popular support, 19, 22, 23, 27-31; + influence on politicians, 20; + influence of St. Domingo rising, 20-22; + conservative American opinion, 23, 32, 40; + Jefferson on influence, 24, 39; + Jefferson's support of excesses, 24-26; + Short's reports, 24 _n._, 25 _n._; + popular reception of Genêt, his conduct, 28, 29, 301; + humors of popular enthusiasm, 34-36; + and hostility to titles, 36-38; + American democratic clubs, 38-40, 88, 89; + economic division of opinion, 42; + policy of American neutrality, 92-107; + British depredations on neutral trade, question of war, 108-12; + Jay Treaty, 112-15; + support of Republican Party, 131 _n._, 223; + Monroe as Minister, 222, 224; + Henry's later view, 411. + _See also_ Directory. + + Freneau, Philip, on country editor, =1=, 270 _n._; + on frontiersman, 275; + defends French Revolution, =2=, 30 _n._; + on Lafayette, 33; + as Jefferson's mouthpiece, 81; + attacks on Washington, 93 _n._; + on Jay Treaty, 118. + + Fries's Insurrection, pardons, =2=, 429-31, =3=, 36 _n._; + M. on, =2=, 435; + trial, 8, 34-36. + + Frontier, advance after French and Indian War, =1=, 38; + qualities of frontiersmen, 28-31, 235, 274-77, =4=, 188-90; + conditions of life, =1=, 39-41, 53, 54 _n._; + and Virginia foreign extradition act (1784), 236-41. + _See also_ West. + + Frontier posts, retention and non-payment of British debts, =1=, 225, + 227, 230, =2=, 108, 111; + surrender, 114. + + Fulton, Robert, + steamboat experiments, Livingston's interest, =4=, 397-99; + partnership and success, grant of New York monopoly, 400; + and steamboats on the Mississippi, monopoly in Louisiana, 402, 414. + _See also_ Gibbons _vs._ Ogden. + + Fulton Street, New York, origin of name, =4=, 402 _n._ + + Funding. _See_ Public debt. + + Fur-trade, and retention of frontier posts, =2=, 108. + + + Gaillard, John, votes to acquit Chase, =3=, 218. + + Gaines, Edward P., and Burr conspiracy, =3=, 367, 456 _n._ + + Gallatin, Albert, and M. in Richmond (1784), =1=, 183; + on Murray and French negotiations, =2=, 423 _n._; + and cession of Western Reserve, 446; + and Jonathan Robins case, 464, 474; + on Jefferson-Burr contest, 547; + on Washington (1802), =3=, 4; + commission on Georgia's cession, 574 _n._ + + Gamble, John G., Burr's security, =3=, 429 _n._ + + Garnett, James M., grand juror on Burr, =3=, 413 _n._ + + Garnett, Robert S., on Nationalism and overthrow of slavery, =4=, 536. + + Gaston, William, and Granville heirs case, =4=, 156 _n._ + + Gates, Horatio, Conway Cabal, =1=, 121-23. + + _Gazette of the United States_, lack of public support, =2=, 30; + on M.'s reception (1798), 344; + on Republican success (1800), 532 _n._ + + Gazor, Madame de, actress, =2=, 232. + + General welfare, clause feared, =1=, 333; + M. on protection (1788), 414; + and internal improvements, =4=, 418. + _See also_ Implied powers. + + Georgetown in 1801, =3=, 3. + + Genêt, Edmond C., popular and official reception, =2=, 28, 29; + M.'s review of conduct, 301. + + Georgia, Ratification, =1=, 325; + conditions (1795), =3=, 552; + western claim and cession, 553, 569, 570, 573; + tax on Bank of the United States, =4=, 207; + and M'Culloch _vs._ Maryland, 334; + steamboat monopoly, 415. + _See also_ Cherokee Indians; Yazoo. + + Georgia Company, Yazoo land purchase, =3=, 550. + _See also_ Yazoo. + + Georgia Mississippi Company, Yazoo land purchase, =3=, 550. + _See also_ Yazoo. + + Germantown, Pa., battle, =1=, 102. + + Germantown, Va., on frontier, =1=, 7. + + Gerry, Elbridge, on revolutionary action of Framers, =1=, 324; + and Ratification, 352, 353; + on Judiciary Act of 1789, =3=, 54; + accident (1790), 55 _n._; + in Federal Convention, on declaring acts void, 115 _n._; + and on obligation of contracts, 558 _n._ + _See also_ X. Y. Z. Mission. + + Gettysburg Address, M. and, =4=, 293 _n._ + + Gibbons, Thomas, and Livingston steamboat monopoly, =4=, 409-11. + _See also_ Gibbons _vs._ Ogden. + + Gibbons _vs._ Ogden, steamship monopoly in New York, =4=, 401; + claim to monopoly in interstate voyages, opposition, retaliatory + acts, 403, 404, 415; + early suits on monopoly, avoidance of Federal Constitution, 405; + Kent's opinion on monopoly and power over interstate commerce, + 406-12; + concurrent or exclusive power, 409, 426, 427, 434-38, 443-45; + early history of final case, 409-12; + importance and effect of decision, 413, 423, 429, 446, 447, 450; + counsel before Supreme Court, 413, 423, 424; + continuance, 413; + increase of State monopoly grants, 414, 415; + great development of steamboat transportation, 415, 416; + suit and internal improvements controversy, 416-21; + and tariff controversy, 421; + political importance, 422; + specific question, 422; + origin of commerce clause in Constitution, 422; + argument, 424-37; + confusion in State regulation, 426; + M.'s earlier decision on subject, 427-29; + M.'s opinion, 429-33; + field of term commerce, navigation, 431, 432; + power oversteps State boundaries, 433; + supremacy of National coasting license over State regulations, + 438-41; + effect of strict construction, 442; + Johnson's opinion, 443; + popularity of decision, 445; + later New York decision upholding, 447-51. + + Gibson, John B., and M., =4=, 82. + + Gilchrist _vs._ Collector, =3=, 154 _n._ + + Giles, William B., attack on Hamilton, =2=, 84 _n._; + on Jay Treaty and Fairfax estate, 129; + accuses M. of hypocrisy, 140; + on Washington, 165 _n._; + deserts Congress (1798), 340 _n._; + and Judiciary Bill (1801), 551; + and assault on Judiciary, repeal of Act of 1801, =3=, 22, 76-78, + =4=, 490, 491; + as House leader, =3=, 75; + appearance, 76; + and M., 76 _n._; + accident (1805), 55 _n._; + on spoils, 157; + leader in Senate, 157 _n._, 159 _n._; + on right of impeachment, 158, 173; + attempt to win Burr, 182; + and Chase trial, 197; + vote on Chase, 218, 219; + and bill to suspend habeas corpus (1807), 346; + and Judiciary and Burr trial, 357, 382, 507; + and grand jury on Burr, 410, 422; + and attempted expulsion of Senator Smith, 544; + on Yazoo claims, 581; + on Federalists as Anglicans, =4=, 10; + and recharter of first Bank of the United States, 174; + in Virginia Constitutional Convention, 484; + conservatism there, 489, 507; + in debate on State Judiciary, 490-492, 496, 499; + reflects on Jefferson, 491. + + Gilmer, Francis W., on M. as a lawyer, =2=, 178, 193-95; + character, 396 _n._ + + Gindrat, Henry, and Yazoo lands act, =3=, 546, 547. + + Goddard, Calvin, in Judiciary debate (1802), =3=, 74 _n._, 87. + + Goode, Samuel, and slavery, =2=, 450. + + Goodrich, Chauncey, on Federalist confusion (1800), =2=, 516; + and new French negotiations, 522; + on Dartmouth College case, =4=, 237 _n._, 248. + + Goodrich, Samuel G., on state of education (c. 1790), =1=, 271. + + Gordon, William F., and bill on Supreme Court, =4=, 515, 516. + + Gore, Christopher, argument for Ratification, =1=, 343. + + Gorham, Nathaniel, + on Constitutionalist leaders in Massachusetts, =1=, 347 _n._ + + Government, + general dislike after Revolution, =1=, 232, 275, 284, 285, 289; + effect of Paine's _Common Sense_, 288. + _See also_ Anarchy; Bill of Rights; Confederation; Congress; + Continental Congress; Crime; Demagogism; Democracy; Despotism; + Division of powers; Federal Constitution; Judiciary; Law and + order; Legislature; Liberty; License; Majority; Marshall, + John (_Chief Justice_); Monarchy; Nationalism; Nobility; + Nullification; People; Police powers; Politics; President; + Religious tests; State Rights; Secession; Separation of + powers; Treason; Suffrage. + + Governor, powers of territorial, =2=, 446. + + _Grace_, brig, =2=, 219. + + Graham, Catharine M., on American and French revolutions, =2=, 2 _n._ + + Graham, John, and Burr conspiracy, =3=, 323, 324, 326, 456 _n._ + + Grand jury, character of early Federal charges, =3=, 30 _n._; + in Burr trial, 408-15, 422, 442, 451. + + Granger, Gideon, and drinking, =3=, 9 _n._; + and Yazoo claims, Randolph's denunciation, 576 _n._, 577, 578, 581; + and Connecticut Reserve, 578; + and Justiceship, =4=, 109, 110. + + Granville heirs case, =4=, 154, 155, 155 _n._, 156 _n._ + + Graves, James, case, =4=, 552 _n._ + + Gravier, John, New Orleans batture controversy, =4=, 102. + + Gray, William F., on M., =4=, 67 _n._ + + Graydon, Alexander, on Ratification in Pennsylvania, =1=, 327 _n._; + on military titles, 328 _n._; + on reception of Genêt, =2=, 29. + + Grayson, William, in the Legislature, =1=, 203; + on Ratification in Virginia, 402, 403 _n._; + characterized, 423; + in debate in Ratification Convention, 424-27, 431, 435, 436, 438, + 461, 470; + appeal to fear, 439 _n._; + on prospect of Ratification, 442, 444; + on Washington's influence on it, 475; + chosen Senator, =2=, 50; + on Judiciary Act of 1789, =3=, 54. + + Great Bridge, battle of, =1=, 76-78. + + Great Britain, + Anti-Constitutionalist praise of government, =1=, 391, 405, 426; + M.'s reply, 418; + depredations on neutral trade (1793-94), =2=, 107, 108; + retention of frontier posts, 108; + unpreparedness for war with, 108-10; + courts war, 110-12; + Jay Treaty, 112-15; + American and French relations and X. Y. Z. Mission, 271, 283, 312, + 321, 322; + French negotiations (1797), 295; + French preparations to invade (1798), 321, 322; + and Bowles in Florida, 498; + disruption of commission on British debts, compromise, 500-05; + and renewal of American negotiations with France, 501; + M.'s protest on depredations on neutral trade, 506-14; + Federalists as partisans, =4=, 2-5, 9, 10; + Jefferson's hatred, 8, 11 _n._, 26 _n._ + _See also_ American Revolution; British debts; Jay Treaty; + Napoleonic Wars; Neutral trade; War of 1812. + + Green, John. _See_ Green _vs._ Biddle. + + Green _vs._ Biddle, =4=, 375, 376, 380. + + Greene, Nathanael, on state of the army (1776), =1=, 81; + intrigue against, 122; + as Quartermaster-General, 133; + Johnson's biography, =3=, 267 _n._ + + Greene, Mrs. Nathanael, and Eli Whitney, =3=, 555. + + Gregg, Andrew, and reply to President's address (1799), =2=, 436. + + Grenville, Lord, and British debts, =2=, 502. + + Grey, Sir Charles, in Philadelphia campaign, =1=, 100. + + Greybell, ----, evidence in Burr trial, =3=, 451. + + Griffin, Cyrus, Ware _vs._ Hylton, =2=, 188; + and trial of Burr, =3=, 398; + Jefferson's attempt to influence, 520; + question of successor, =4=, 100, 103-06; + career, 105 _n._ + + Grigsby, Hugh B., on hardships of travel, =1=, 260; + on prosperity of Virginia, 306 _n._; + on importance of Virginia in Ratification, 359; + value of work on Virginia Ratification Convention, 369 _n._; + on Giles, =3=, 75 _n._ + + Griswold, Roger, Judiciary Bill (1801), =2=, 548; + in Judiciary debate (1802), =3=, 74 _n._, 89; + on bill on sessions of Supreme Court, 96; + on secession, 152; + and Burr and secession, 281, 289. + + Grundy, Felix, and War of 1812, =4=, 29. + + Gunn, James, on enlargement of Federal Judiciary, =2=, 548; + on Chief Justiceship, 553; + and Yazoo lands, =3=, 549, 550, 555; + character, 550 _n._; + burned in effigy, 559. + + Gurley, R. R., and M. and American Colonization Society, =4=, 474. + + + Habeas corpus, attempt of Congress to suspend privileges of + writ (1807), =3=, 346-48. + + Hague, The, M. on, =2=, 231. + + "Hail, Columbia!" origin, historic importance, =2=, 343. + + Hale, Benjamin, and Dartmouth College case, =4=, 239 _n._ + + Hale, Joseph, on Republican rule (1801), =3=, 12; + on plans against Judiciary, 22. + + Hall, John E., and Jefferson's attack on Judiciary, =4=, 364. + + Hamilton, Alexander, in Philadelphia campaign, =1=, 101; + army intrigue against, 122; + on revolutionary action of Framers, 323 _n._; + and organization of Constitutionalists, 357, 358; + on importance of Ratification by Virginia, 358; + compared with Madison, 397 _n._; + financial aid to Lee, 435 _n._; + and aid for Fenno, =2=, 30 _n._; + financial measures, 60; + deal on Assumption and Capital, 63, 64; + on Virginia's protest on Assumption, 68; + on constitutionality of Bank, 72-74; + and antagonism in Cabinet, 82; + congressional inquiry, 84; + and Whiskey Insurrection, 87; + on constitutionality of Neutrality Proclamation, 95; + on mercantile support of Jay Treaty, 116, 148; + mobbed, 116; + defense of Jay Treaty, Camillus letters, 120; + and Henry's presidential candidacy (1796), 157 _n._; + and appointment to X. Y. Z. Mission, 227; + on Alien and Sedition Acts, 382; + on Kentucky and Virginia Resolutions, 408; + control over Adams's Cabinet, 486-88; + attack on Adams, 516, 517 _n._, 527-29; + on new French treaty, 524; + and Jefferson-Burr contest, 533, 536; + statement in _Federalist_ on judicial supremacy, =3=, 119, 120; + Adams on, and French War, 258 _n._; + M.'s biography of Washington on, 263; + pursuit of Burr, 277 _n._, 281; + duel, 278 _n._; + and army in French War, 277 _n._; + and Spanish America, 286 _n._; + opinion on Yazoo lands, 568, 569; + and Harper's opinion, 572 _n._ + + Hamilton, James, Jr., on Tariff of 1824, =4=, 537; + and of 1828, 537; + and Nullification, 560, 574. + + Hammond, Charles, counsel in Osborn _vs._ Bank, =4=, 385. + + Hampton, Wade, and Yazoo lands, =3=, 548, 566 _n._ + + Hancock, John, and Ratification, =1=, 339, 344, 347; + Madison on, 339 _n._ + + Handwriting, M.'s, =1=, 211. + + Hanson, A. C, on Embargo and secession, =4=, 17. + + Harding, Chester, portraits of M., on M., =4=, 76, 85. + + Harding, Samuel B., + on bribery in Massachusetts Ratification, =1=, 354 _n._ + + Hare, Charles W., on Embargo, =4=, 17 _n._ + + Harper, John L., Osborn _vs._ Bank, =4=, 329, 330. + + Harper, Robert G., on French and Jefferson (1797), =2=, 279 _n._; + mob threat against, 355; + cites Marbury _vs._ Madison, =3=, 154 _n._; + counsel for Chase, 185; + argument, 206; + counsel for Swartwout and Bollmann, 345; + and Yazoo lands, pamphlet and debate, 555, 571, 572, 573 _n._; + counsel in Fletcher _vs._ Peck, 585; + and Story, =4=, 98; + on Pinkney, 131 _n._; + counsel in Fairfax's Devisee _vs._ Hunter's Lessee, 156; + counsel in Osborn _vs._ Bank, 385. + + Harper, William, Marbury _vs._ Madison, =3=, 110. + + Harrison, Benjamin, and British debts, =1=, 231; + in the Legislature, 203; + in Ratification Convention: and delay, 372; + characterized, 420; + in the debate, 421; + and amendments, 473. + + Harrison, Thomas, grand juror on Burr, =3=, 413 _n._ + + Harrison, William Henry, + Wilkinson's letter introducing Burr, =3=, 298. + + Hartford Convention, =4=, 51. + + Harvard University, M.'s sons attend, =4=, 73; + honorary degree to M., 89. + + Harvey, ----, and Jay Treaty, =2=, 121. + + Harvie, Emily, acknowledgment to, =4=, 528 _n._ + + Harvie, Jacquelin B., and Callender trial, =3=, 192; + M.'s son-in-law, 192 _n._, =4=, 73. + + Harvie, Mary (Marshall), =3=, 192 _n._, =4=, 73. + + Haskell, Anthony, trial, =3=, 31, 32. + + Hauteval, ----, as agent in X. Y. Z. Mission, =2=, 276. + + Hay, George, attack on M. in Jefferson-Burr contest, =2=, 542; + career, 542 _n._; + in Callender trial, =3=, 38, 40; + as witness in Chase trial, 189; + and preliminary hearing on Burr, 370, 372, 373, 379, 380; + and pardon for Bollmann, 392, 450, 452, 453; + prosecutes Burr, 407; + and M., 408, =4=, 78; + and instruction of grand jury, =3=, 413; + and new commitment for treason, 415-17, 423-25; + on incitation of public opinion at trial, 420 _n._; + and subpoena to Jefferson, 434, 435, 440, 518, 520; + reports to Jefferson, instructions from him, 430-32, 434, 448-51, + 483, 484; + on M.'s statement of prosecution's expectation of conviction, 448, + 449; + on Jackson at trial, 457 _n._; + and confinement of Burr, 477; + on M. and Burr, 483, 484; + opening statement, 484; + on overt act, 500; + threat against M., 500, 501; + and further trials, 515, 521, 523, 524, 527; + on conduct of trial, 526; + fee, 530 _n._; + pamphlet on impressment, =4=, 52. + + Hayburn case, =3=, 612. + + Hayne, Robert Y., on Tariff of 1828, =4=, 537; + Webster debate, 552; + counter on Jackson's Nullification Proclamation, 564, 565. + + Haywood, John, on M., =4=, 66. + + Haywood, M. D., anecdote on M., =4=, 64 _n._ + + Hazard, ----, and Henry Lee, =1=, 435 _n._ + + Haze, Samuel, and Dartmouth College troubles, =4=, 226. + + Health, conditions in Washington, =3=, 6. + + Heath, John, on Jay Treaty and Fairfax grant, =2=, 129; + as witness in Chase trial, =3=, 191, 192. + + Heath, William, and Ratification, =1=, 347. + + Henderson, Archibald, in Judiciary debate (1802), =3=, 73. + + Henderson, Archibald, + acknowledgments to, =4=, 63 _n._, 64 _n._, 66 _n._ + + Henderson, Richard H., on M., =4=, 489 _n._ + + Henfield, Gideon, trial, =3=, 25, 26. + + Henry, Patrick, as statesman, =1=, 32; + and Robinson's loan-office bill, 60; + Stamp-Act Resolutions, 62-65; + Resolutions for Arming and Defense, 66; + and Conway Cabal, 121; + in the Legislature, 203, 208; + and Council of State as a machine, 210; + and amendment of Virginia Constitution, 217; + and chancery bill (1787), 219; + and British debts, 226, 229 _n._, 230, 441; + and Confederate navigation act, 235; + and extradition bill (1784), 239; + plan for intermarriage of Indians and whites, 240 _n._; + and calling of Ratification Convention, 245; + fear of the Federal District, 291, 439 _n._; + on popular majority against Ratification, 321; + feared by Constitutionalists, 358; + in campaign for Ratification delegates, 365; + in Ratification Convention: on revolutionary action of Framers, 373, + 375; + and Nicholas, 374; + characterized, 375; + in the debate, 375, 388-91, 397-400, 403-06, 428-30, 433, 435, 438, + 440, 441, 449, 464; + on consolidated government, 375, 388, 389, 433; + on power of the President, 390; + effect of speeches, 392, 403; + and Philips case, 393 _n._, 398; + on Randolph's change of front, 398, 406; + defense of the Confederation, 388, 389, 399; + on Federal Government as alien, 389, 399, 428, 439 _n._; + on free navigation of the Mississippi, 403, 430, 431; + on obligation of contracts, 428; + on payment of paper money, 429; + on declaring acts void, 429; + on danger to the South, 430; + on standing army, 435; + and M., 438, 464; + on need of a Bill of Rights, 440; + on Federal Judiciary, 449, 464; + on Indian lands, 464; + assault on, speculation, 465-67, =2=, 203 _n._; + in contest over recommendatory amendments, =1=, 469-71, 474; + threat to secede from Convention, 472; + submits, 474, 478; + effect of French Revolution on, =2=, 41, 411; + and opposition after Ratification, 48-50, 57 _n._; + and Federal Convention, 60 _n._; + and assumption of State debts, 65; + on Jefferson and Madison, 79; + and offer of Attorney-Generalship, 124-26; + Federalist, 124 _n._; + and presidential candidacy (1796), 156-58; + on abuse of Washington, 164; + Ware _vs._ Hylton, 188; + champions M.'s candidacy for Congress (1798), 411-13; + on Virginia Resolutions, 411; + Jefferson on support of M., 419, 420; + and Chief Justiceship, =3=, 121 _n._; + in M.'s biography of Washington, 244; + and Yazoo lands, 554. + + Herbert, George, on War of 1812, =4=, 51 _n._ + + Heyward, Mrs. ----, M. and, =2=, 217. + + Higginson, Stephen, on Gerry, =2=, 364. + + High seas, M. on jurisdiction over crimes on, =2=, 465-67; + as common possession, =4=, 119. + + Hill, Aaron, and Kentucky and Virginia Resolutions, =3=, 43. + + Hill, Jeremiah, on Ratification contest, =1=, 341; + on importance of Virginia in Ratification, 358. + + Hillard, George S., on M., =4=, 61 _n._ + + Hillhouse, James, and Burr, =3=, 281; + and secession, 281, 289; + on Adams's report on Burr conspiracy, 544; + and Embargo, =4=, 13. + + Hinson, ----, and Burr, =3=, 367. + + Hitchcock, Samuel, Lyon trial, =3=, 31 _n._ + + Hite _vs._ Fairfax, =1=, 191-96. + + Hobby, William J., pamphlet on Yazoo lands, =3=, 573 _n._ + + Hoffman, J. Ogden, counsel in _Nereid_ case, =4=, 131. + + Hollow, The, M.'s early home, =1=, 36-38. + + Holmes, John, in Ratification Convention, =1=, 346. + + Holmes, John, counsel in Dartmouth College case, =4=, 239, 253. + + Holmes _vs._ Walton, =3=, 611. + + Holt, Charles, trial, =3=, 41. + + Hooe, Robert T., Marbury _vs._ Madison, =3=, 110. + + Hopkinson, Joseph, "Hail, Columbia!" =2=, 343; + counsel for Chase, =3=, 185; + argument, 198; + on Embargo, =4=, 12 _n._; + as practitioner before M., 95; + counsel in Sturges _vs._ Crowninshield, 209; + counsel in Dartmouth College case, 238, 254, 258, 259; + and M., 238 _n._; + appointment as District Judge, 238 _n._; + appearance, 254; + fee and portrait in Dartmouth case, 255 _n._; + and success in case, 274; + counsel in M'Culloch _vs._ Maryland, 285. + + Horatius articles, =2=, 541 _n._, 542 _n._ + + Horses, scarcity, =1=, 162 _n._ + + Hortensius letter, =2=, 542. + + Hottenguer, ----, and M.'s purchase of Fairfax estate, =2=, 205; + as agent in X. Y. Z. Mission, 259-65, 272-78, 281. + + House of Burgesses, M.'s father as member, =1=, 58; + control by tide-water aristocracy, 59; + Robinson case, 60; + Henry's Stamp-Act Resolutions, sectional divergence, 61-65. + _See also_ Legislature of Virginia. + + Houses, M.'s boyhood homes, =1=, 37, 55; + of period of Confederation, 280, 281. + + Hovey, Benjamin, Indiana Canal Company, =3=, 291 _n._ + + Howard, Samuel, steamboat monopoly, =4=, 415. + + Howe, Henry, on frontier illiteracy, =1=, 272 _n._ + + Howe, Sir William, Pennsylvania campaign, =1=, 92-106. + + Hudson River. _See_ Gibbons _vs._ Ogden. + + Hulme, Thomas, on frontiersmen, =4=, 189 _n._ + + Humor, M.'s quality, =1=, 73, =4=, 62, 78, 83. + + Humphries, David, on Shays's Rebellion, =1=, 299. + + Hunter, David. _See_ Martin _vs._ Hunter's Lessee. + + Hunter, William, counsel in Sturges _vs._ Crowninshield, =4=, 209. + + Hunter _vs._ Fairfax's Devisee, =2=, 206-08. + _See also_ Martin _vs._ Hunter's Lessee. + + Huntingdon, Countess of, on M. as orator, =2=, 188. + + Huntington, Ebenezer, on Republican ascendancy (1800), =2=, 521. + + Hutchinson, Thomas, and declaring acts void, =3=, 612. + + + Illinois, prohibits external banks, =4=, 207; + and M'Culloch _vs._ Maryland, 334. + + Illiteracy, at period of Confederation, =1=, 272; + later prevalence, =3=, 13 _n._ + _See also_ Education. + + Immigration. _See_ New York _vs._ Miln. + + Immunity of foreign man-of-war, =4=, 122-25. + + Impeachment, proposed amendment on, =2=, 141; + as weapon against Federalist judges, =3=, 21; + Monroe's suggestion for Justices (1802), 59; + in debate on repeal of Judiciary Act, 73, 80, 81; + expected excuse in Marbury _vs._ Madison opinion, 62 _n._, 112, 113; + as second phase of attack on Judiciary, 111; + Pickering case, 111, 164-68; + State case of Judge Addison, 112, 163, 164; + and opinion in Marbury _vs._ Madison, 143, 153, 155; + M.'s fear, 155, 176-79, 192, 196; + for political or indictable offense, 158, 164, 165, 168 _n._, 173, + 198-200, 202, 207, 206-12; + of all Justices planned, 159, 160, 173, 176, 178; + Marshall as particular object, 161-63; + of Chase voted, 169; + Jefferson and attitude of Northern Republicans, 170, 221; + House manager, 170; + public opinion prepared for trial of Chase, 171; + articles against Chase, 171, 172; + despair of Federalists, 173; + and Yazoo frauds, 174; + arrangement of Senate, 179, 180; + Burr as presiding officer, 180, 183; + efforts of Administration to placate Burr, 181-83; + seat for Chase, 183; + his appearance, 184; + his counsel, 185; + Randolph's opening speech, 187-89; + testimony, 189-92; + M. as witness, 192-96; + conferences of Giles and Randolph, 197; + argument by Manager Early, 197; + by Manager Campbell, 198; + by Hopkinson, 198-201; + Chase trial as precedent, 201; + argument by Key, 201; + by Lee, 201; + by Martin, 201-06; + by Manager Nicholson, 207-10; + by Manager Rodney, 210-12; + by Manager Randolph, 212; + Randolph's praise of M., its political importance, 214-16; + Chase trial and secession, 217; + vote, acquittal, 217-20; + importance of acquittal, 220; + programme abandoned, 222, 389; + M. and acquittal, 222; + threat against M. during Burr trial, 500, 501, 503, 512, 516; + Jefferson urges it, 530-32; + foreign affairs prevent, 545. + + Implied powers, in contest over Assumption, =2=, 66, 67; + in Bank controversy, 71-74; + M. upholds (1804), =3=, 162; + interpretation of "necessary and proper laws," =4=, 285, 286, + 294-301, 316, 337. + _See also_ Nationalism. + + Import duties, + unconstitutionality of State license on importers, =4=, 455-57. + _See also_ Tariff. + + Impressment, by British, =2=, 107, =4=, 8; + M.'s protest, =2=, 513; + and perpetual allegiance, =3=, 27 _n._; + _Chesapeake-Leopard_ affair, 475-77, =4=, 9; + discussion of right, 52, 53; + M.'s later opinion, 53-55. + _See also_ Neutral trade. + + Imprisonment for debt, =3=, 13 _n._, 15 _n._; + M. on, and obligation of contracts, =4=, 215, 216. + + Independence, germ in Henry's Stamp-Act Resolutions, =1=, 63; + anticipation of Declaration, =3=, 118; + M.'s biography of Washington on Declaration, 244. + + Indian Queen, boarding-house, =3=, 7. + + Indiana, prohibition on external banks, =4=, 207; + and M'Culloch _vs._ Maryland, 334. + + Indiana Canal Company, =3=, 291 _n._ + + Indians, frontier raid, =1=, 1, 30 _n._; + Virginia's attempt to protect (1784), 236-41; + Henry's plan for intermarriage with whites, 240 _n._, 241; + in Ratification debate, 465; + fear of, and Ratification, 476; + and British relations (1794), =2=, 110, 111; + Bowlee's intrigue, 497-99; + and Yazoo lands, =3=, 552, 553, 569, 570; + M. and policy toward, =4=, 542 _n._ + _See also_ Cherokee Indians. + + Individualism, as frontier trait, =1=, 29, 275; + rampant, 285. + + Ingersoll, Charles J., practitioner before M., =4=, 237 _n._ + + Ingersoll, Jared, Hunter, _vs._ Fairfax, =2=, 207. + + Ingraham, Edward D., escort for M.'s body, =4=, 588. + + Inman, Henry, portrait of M., =4=, 522 _n._ + + Innes, Harry, and Burr, =3=, 318. + + Innes, James, as lawyer, =1=, 173; + characterized, 473; + in Ratification Convention, 474; + and Cabinet office, =2=, 124; + Ware _vs._ Hylton, 188. + + Insolvency. _See_ Ogden _vs._ Saunders; Sturges _vs._ Crowninshield. + + Inspection laws, State, and commerce clause, =4=, 436. + _See also_ Police powers. + + Internal improvements, Potomac River (1784), =1=, 217; + Burr's plan for Ohio River canal, =3=, 291 _n._; + M. and Virginia survey, =4=, 42-45; + demand, 416; + Bonus Bill, Madison's veto, 417; + later debate, Randolph's speech on Nationalism, 418-21; + Jackson's pocket veto of River and Harbor Bill, 534. + + International law, Jonathan Robins case, =2=, 465-71; + _Amelia_ case and law of prize, =3=, 16, 17; + _Adventure_ case, ocean as common property, =4=, 119; + M.'s contribution, 121; + _Exchange_ case, immunity of foreign man-of-war, 121-25; + United States _vs._ Palmer, _Divina Pastora_, belligerency of + revolted province, 126-28; + _Venus_ case, domicil and enemy character, 128, 129; + _Nereid_ case, neutral property in enemy ship, 130, 135-42; + recognition of slave trade, 476, 477. + + Iredell, James, Ware _vs._ Hylton, =2=, 188; + on Virginia Resolutions, 399; + on Fries's Insurrection, 429, =3=, 35; + and common-law jurisdiction, 25; + and declaring acts void, 117; + and constructive treason, 403. + + Iron Hill engagement, =1=, 93, 94. + + Irving, Washington, on trial of Burr, =3=, 400, 416, 432, 435, 456, + 457 _n._, 464 _n._, 477, 478 _n._ + + Irwin, Jared, and Yazoo frauds, =3=, 562. + + Isham, Mary, descendants, =1=, 10. + + Isham family, lineage, =1=, 10. + + Isolation, M. and policy, =2=, 235, 388, =3=, 14 _n._; + need in early Federal history, =4=, 6; + local, 191. + _See also_ Neutrality. + + Iturrigaray, José de, and Wilkinson, =3=, 329. + + + Jackson, Andrew, and Washington, =2=, 165 _n._; + duelist, =3=, 278 _n._; + and Burr conspiracy, 292, 295, 296, 305, 326, 361; + prepares for war with Spain, 313; + and rumors of disunion, 326; + at trial of Burr, denounce Jefferson and Wilkinson, 404, 429, 457, + 471; + appearance, 404; + Burr's gratitude, 405; + battle of New Orleans, =4=, 57; + M. and candidacy (1828), 462-65; + contrasted with M., 466; + M. on inauguration, 466; + appointments to Supreme Court, 510, 581, 582, 584, 584 _n._; + war on the Bank, veto of recharter, 529-33; + pocket veto of River and Harbor Bill, 534; + place in M.'s inclination to resign, 519, 521; + M. and election of 1832, 534; + withdraws deposits from the Bank, 535; + Kent's opinion, 535 _n._; + and Georgia-Cherokee controversy, 540, 541, 547, 548, 551; + M. rebukes on Cherokee question, 546; + Union toast, 557; + warning to Nullifiers, 558; + Nullification Proclamation, its debt to M., 562, 563; + M.'s commendation, 563; + reply of South Carolina, his inconsistency with attitude on Cherokee + question, 564, 565; + recommends tariff reduction, 567; + Virginia and attitude on Nullification, 570; + character of Southern support, 578. + + Jackson, Francis James, as Minister, =4=, 23-26. + + Jackson, James, on Judiciary Act of 1789, =3=, 54; + journey (1790), 55 _n._; + in debate on repeal of Judiciary Act, 61; + and Chase trial, 220, 221; + and Yazoo frauds, 560-62, 565; + resigns from Senate, 561. + + Jackson _vs._ Clarke, =4=, 165 _n._ + + James River Company, =2=, 56. + + Jameson, J. Franklin, acknowledgments to, =4=, 63 _n._, 68 _n._ + + Jarvis, Charles, in Ratification Convention, =1=, 348. + + Jarvis, William C, attack on M., =4=, 362. + + Jay, John, on frontiersmen and Indians, =1=, 236, 237; + on demand for equality in all things, 295; + distrust of democracy, 300, 308; + on failure of requisitions, 305; + on decline of Continental Congress, 305 _n._; + on ability to pay public debt, 306, 306 _n._; + on extravagance, 306 _n._; + Jay Treaty, =2=, 113-15; + Ware _vs._ Hylton, 188; + refuses reappointment as Chief Justice, 552, =3=, 120 _n._; + and common-law jurisdiction, 24, 25; + on defective Federal Judiciary, 55; + and declaring acts void, 117; + and Manhattan Company, 287 _n._; + and Livingston steamboat monopoly, =4=, 407. + + Jay Treaty, cause of negotiations, =2=, 108-13; + unpopularity of negotiation, 113; + humiliating terms, 114; + popular demonstrations against, 115-18, 120; + commercial and financial support, 116, 148; + Jefferson on, 118, 121; + question of constitutionality, 119, 128, 133-36; + Hamilton's defense, Camillus letters, 120; + attitude of Virginia, 120; + protests, 126; + typical address against, 126-29; + M.'s defense, 126, 129 _n._; + and free ships, free goods, 128, 303-05; + resolutions of Virginia Legislature, 131-37; + indirect legislative censure of Washington, 137-40; + proposed constitutional amendments caused by, 141-13; + contest in Congress, petitions, 148, 149, 155; + Richmond meeting and petition favoring, 149-55; + M. and commissionship under, 200-02; + France and, 223; + and X. Y. Z. Mission, 303-08; + submitted to French Minister, 305; + and contraband, 306; + Jonathan Robins case under, 458-75; + disruption of commission on British debts, 500-02; + M. and disruption and compromise, 502-05; + Federal common-law trials for violating, =3=, 24-29; + divulged, 63 _n._; + settlement of British debts, 103; + and land grants, =4=, 148, 153, 157 + + Jefferson, Jane (Randolph), =1=, 10, 11. + + Jefferson, Peter, similarity to M.'s father, =1=, 11; + ancestry, 11 _n._ + + Jefferson, Thomas, + _pre-presidential years_: + relations with M., =1=, 9, 10; + similarity in conditions of M.'s birth, 11 _n._; + Randolph and Isham ancestry, 10, 11; + Jefferson ancestry, 11, 12; + landed estate, 20 _n._; + on Virginia society, 21, 22; + as statesman, 32; + accused of shirking duty during Revolution, 126-30; + in service of State, 128; + as Governor, 143; + and Arnold's invasion, 143-45; + and Rebecca Burwell, 149; + on William and Mary, 156; + licenses M. to practice law, 161; + as letter writer, 183 _n._; + in Legislature, 203; + use of Council of State as a machine, 210; + chancery act (1777), 219; + on British debts, 223 _n._, 228 _n._, 295 _n._; + debts for slaves, 224 _n._; + cause of retained faith in democracy, 253; + on hardships of travel, 259; + use of cipher, 266 _n._; + on license of the press, 270; + on sectional characteristics, 278-80; + inappreciative of conditions under Confederation, 286, 314-16; + on the Cincinnati, 292; + defense of Shays's Rebellion, preparation to lead radicalism, + 302-04, =2=, 52; + dislike of commerce, =1=, 316; + on Randolph and Ratification, 378; + favors amendment before Ratification, 478; + influence of French Revolution on, =2=, 4, 44; + on first movements of it, 5; + approbation of _Rights of Man_, 14, 15, 16 _n._; + on Publicola papers, 19 _n._; + on St. Domingo negro insurrection, 21; + on influence of French Revolution on American government, 24, 39; + upholds excesses of French Revolution, 25, 26; + on reception of Genêt, 29; + development of Republican Party, 46, 81-83, 91, 96; + political fortunes broken (1785), 46 _n._; + first attitude toward Federal Constitution, 47; + cold reception (1789), 57; + deal on Assumption and Capital, 63, 64, 82 _n._; + tardy views on unconstitutionality of Assumption, 70; + opinion on Bank of United States, 71; + converts Madison, 79; + attempt to sidetrack M. (1792), 79-81; + and antagonism in Cabinet, 82; + on results of funding, 85; + and Whiskey Insurrection, 90, 91; + opposition to Neutrality, 94; + resignation from Cabinet, 96; + and drinking, 102 _n._; + attacks Jay Treaty, 118, 121; + accuses M. of hypocrisy (1795), 139, 140; + and abuse of Washington, 164; + growth of feud with M., 165; + on M.'s reason for accepting French mission, 211; + and Monroe's attack on Washington, 222 _n._; + and appointment to X. Y. Z. Mission, 227; + and Gerry's appointment, 227; + experience in France contrasted with M.'s, 289; + and news of X. Y. Z. Mission, 335; + and X. Y. Z. dispatches, 336, 339-41; + and M.'s return and reception, 345, 346; + call on M., 346, 347; + and expected French War, 358; + open warfare on M., 358; + attempt to undo effect of X. Y. Z. Mission, 359-63, 368; + and Langhorne letter, 375 _n._; + and Alien and Sedition Acts, hysteria, method of attack, 382, + 384, 397, 399; + Kentucky Resolutions, 397; + expects M.'s defeat (1798), 411; + and M.'s election, 419; + on Henry's support of M., 419, 420; + on general election results (1798), 420; + and M.'s visit to Kentucky, 421; + on renewal of French negotiations, 428; + on M. and Disputed Elections Bill, 456; + and Jonathan Robins case, 459, 475; + blindness to M.'s merit, 475; + on Burr and Republican success (1800), 535 _n._; + M.'s opinion (1800), 537; + Mazzei letter, 537 _n._, 538 _n._; + and Judiciary Bill, 549, 550; + on Chief Justiceship (1801), 553 _n._; + on midnight appointments, 561 _n._, 562; + inappreciative of importance of M.'s Chief Justiceship, 562; + in Washington boarding-house, =3=, 7; + on common-law jurisdiction of National Judiciary, 29; + on Lyon trial, 31; + on right of judges to declare acts void (1786), 117; + merits of Declaration of Independence, 118. + _See also_ Elections (_1800_). + + _As President and after_: + Wines, =3=, 9; + M. on, as terrorist, 11; + on Federalist forebodings, 14; + on renewal of European War, 14; + policy of isolation, 14 _n._; + and bargain of election, 18; + M. on inaugural, 18; + programme of demolition, caution, 18-20; + and popularity, 19 _n._; + plans against National Judiciary, suppressed paragraph of + message (1801), 20-22, 51-53, 57, 605, 606; + on Judiciary as Federalist stronghold, 21; + and repeal of Judiciary Act of 1801, 21 _n._; + and subpoena in Burr trial, 33, 86 _n._, 323, 433-47, 450, 454-56, + 518-22; + and Callender, 36, 38; + on Giles, 75 _n._; + partisan rewards by, 81 _n._, 208; + Morris on, 90 _n._; + as following Washington's footsteps, 100 _n._; + and settlement of British debt controversy, 103; + and Adams's justices of the peace, 110; + desires to appoint Roane Chief Justice, 113; + and opinion in Marbury _vs._ Madison, 143-45, 154 _n._, 431, 432; + branches of the Bank and practical politics, 145; + and New Orleans problem, 145, 146; + dilemma of Louisiana Purchase, 147-49; + secretiveness, 149; + scents Republican misgivings of assault on Judiciary, 155; + and _Aurora's_ condemnation of Judiciary, 159 _n._; + head of impeachment programme, 160; + and impeachment of Pickering, 164 _n._, 165, 166; + and impeachment of Chase, 170; + break with Randolph, 174; + advances to Burr during Chase trial, 181, 182; + reward of Pickering trial witnesses, 181; + reëlected, 197; + Rodney's flattery, 212; + abandons impeachment programme, 221, 389; + plan to counteract M.'s biography of Washington, 228, 229; + preparation of Anas, 229; + M. on, in the biography, 244, 259, 263, 263 _n._; + on the biography, 265-69; + on Botta's History, 266; + hostility to Burr, 279, 280; + and secession of New England, 283, =4=, 15 _n._, 30 _n._; + and war with Spain, =3=, 285, 301, 313, 383 _n._; + and Miranda, 300, 301; + receives Burr (1806), 301; + hostility of naval officers, 302, 458 _n._, 459 _n._; + and Eaton, 302; + Eaton's report to, of Burr's plans, 304; + and other reports, 305, 310, 315, 317, 323, 338 _n._; + Wilkinson's revelation of Burr's plans, 321, 322; + action on Wilkinson's revelation, proclamation, 324, 327; + Annual Message on Conspiracy, 337; + Special Message declaring Burr guilty, 339-41; + its effect, 341; + and Swartwout and Bollmann, 344, 391, 392, 430; + on arrest of Burr, 368 _n._; + M.'s reflection on conduct in conspiracy, 376; + as prosecutor, prestige involved, on the trial, 383-91, 406, 417, + 419, 422, 430-432, 437, 451, 476, 477, 499; + continued hostility to Judiciary, 384, 388, =4=, 339, 362, 363, + 368-70, 538; + on making stifled evidence at Burr trial public, =3=, 422, 515; + pardons to obtain evidence, 392, 393; + M.'s defiance at trial of Burr, 404; + Jackson's denunciation, 404, 457 _n._; + Hay's reports on Burr trial, 415; + on Martin, 450, 451; + bolsters Wilkinson, 472; + and _Chesapeake-Leopard_ affair, 475-77, =4=, 9; + orders further trials of Burr, =3=, 515, 522; + and Daveiss's pamphlet, 525; + and attacks on M. during trial, 526, 535; + Message on trial, hints at impeachment of M., 530-32; + on Georgia's western claim, 553; + and Yazoo claims, 592; + prejudice-holding, =4=, 2; + love of France, 3; + and attacks on neutral trade, 7 _n._, 8, 9, 11; + hostility to England, 8, 11 _n._, 26 _n._; + on Federalist defense of British, 10; + toast on freedom of the seas, 23; + and Hay's pamphlet on impressment, 53; + on M.'s control over Supreme Court, 59; + and M.'s integrity, 90 _n._; + enmity to Story, 98-100; + Livingston case and Madison's judicial appointments, 100-16; + control of Virginia politics, 146; + and Martin _vs._ Hunter's Lessee, 160; + and first Bank of the United States, 172; + and second Bank, 180 _n._; + on _Niles' Register_, 183 _n._; + on financial madness (1816), 186; + on crisis of 1819, 204; + on Nathaniel Niles, 227; + on charters and obligation of contracts, 230 _n._; + and Taylor's exposition of State Rights, 339; + M. on Jefferson's later attacks, 363-66; + advocates resistance by States, 368; + and amendment on Judiciary (1821), 371, 378; + and demand for revision of Virginia Constitution, 468, 469, + 502 _n._, 508; + called theoretical by Giles, 491; + M.'s attitude toward, 579, 580. + + Jenkinson, Isaac, account of Burr episode, =3=, 538 _n._ + + Jennings, William H., Cohens _vs._ Virginia, =4=, 345. + + Johnson, James, + and second Bank of the United States, =4=, 196 _n._, 288. + + Johnson, Reverdy, counsel in Brown _vs._ Maryland, =4=, 455 _n._ + + Johnson, Richard M., on Missouri question, =4=, 341; + proposed amendment and attack on Judiciary, 371-79, 450. + + Johnson, William, opinion on common-law jurisdiction, =3=, 28 _n._; + appointed Justice, 109 _n._, 159 _n._; + and mandamus, 154 _n._; + biography of Greene, 266; + and release of Swartwout and Bollmann, 349; + opinion in Fletcher _vs._ Peck, 592; + character, =4=, 60; + appearance, 132; + dissent in Martin _vs._ Hunter's Lessee, 157, 165, 166; + and Dartmouth College case, 255, 256, 258 _n._; + dissent in Green _vs._ Biddle, 381 _n._; + Nationalist opinion in Elkison case, 382, 383; + opinion in Osborn _vs._ Bank, 394; + opinion in Gibbons _vs._ Ogden, 443-45; + opinion in Ogden _vs._ Saunders, 481 _n._; + dissent in Craig _vs._ Missouri, 513; + ill, 582; + and Briscoe _vs._ Bank and New York _vs._ Miln, 583; + death, 584. + + Johnson, William S., and Judiciary Act of 1789, =3=, 129. + + Johnson, Zachariah, in Virginia Ratification Convention, =1=, 474. + + Johnson _vs._ Bourn, =2=, 181 _n._ + + Johnston, Josiah S., on Nullification, =4=, 555. + + Johnston, Samuel, on hardships of travel, =1=, 255. + + Jonathan Robins case, facts, =2=, 458; + Republican attacks, 459; + before Congress, proof that Nash was not American, 460; + basis of debate in House, 460, 461; + Republican attempts at delay, 461-64; + M.'s speech, 464-71; + exclusive British jurisdiction, 465, 466; + not piracy, 467; + duty to deliver Nash, 467; + not within Federal judicial powers, 468-70; + incidental judicial powers of Executive, 470; + President as sole organ of external relations, 470; + comments on M.'s speech, its effect, 471-75. + + Jones, James, and slavery, =2=, 450. + + Jones, Walter, + counsel in Fairfax's Devisee _vs._ Hunter's Lessee, =4=, 156; + counsel in M'Culloch _vs._ Maryland, 285, 286. + + Joynes, Thomas R., on M., =4=, 489 _n._ + + Judge-made law, + and Federal assumption of common-law jurisdiction, =3=, 23; + Johnson on, =4=, 372. + _See also_ Declaring acts void. + + Judiciary, Federal, arguments on, during Ratification debate, + =1=, 334, 426, 444, 461, 464; + expected independence and fairness, 430, 451, 459; + and gradual consolidation, 446; + jury trial, 447, 449, 456, 457; + M. on, in Convention, 450-61; + inferior courts, 451; + extent of jurisdiction, 452, 454-56, =2=, 468-70; + concurrent jurisdiction, =1=, 452; + as a relief to State courts, 453; + proposed amendment on, 477; + British-debts cases, =2=, 83; + suits against States, Eleventh Amendment, 83 _n._, 84 _n._, + =3=, 554, =4=, 354, 385, 387-91; + proposed amendment against pluralism, =2=, 141; + incidental exercise of powers by Executive, 470; + M. favors extension (1800), 531; + Federalist plans to retain control, 547, 548; + Republican plans against, =3=, 19-22; + as Federalist stronghold, 21, 77; + Federalist expectation of assault, 22; + assumption of common-law jurisdiction, 23-29, 78, 84, =4=, 30 _n._; + conduct of sedition trials, =3=, 29-43; + lectures from the bench, 30 _n._; + results on public opinion of conduct, 47, 48; + defects in act of 1789, 53-56, 81, 117; + effect of Marbury _vs._ Madison on Republican attack, 143, 153, 155; + and campaign of 1804, 145; + assault and Federalist threats of secession, 151, 152; + Republican misgivings on assault, 155; + _Aurora_ on, 159 _n._; + removal on address of Congress, 167, 221, 389; + political speeches from bench, 169, 206; + M. suggests legislative reversal of judicial decisions, 177, 178; + stabilizing function in a republic, 200; + necessity of independence, 200, 204, 373; + Jefferson's continued hatred, 384, 388, =4=, 339, 362-66, 368-70; + Federalist attacks, 30 _n._; + effort for court of appeals above Supreme Court, 323, 325; + right of original jurisdiction, 385-87; + proposed amendment for limited tenure, 517 _n._; + as interpreter of Constitution, 554. + _See also_ Contracts; Declaring acts void; Impeachment; Judiciary + Act of 1801; Marshall, John (_Chief Justice_); Supreme Court. + + Judiciary, State, equity, =1=, 218-20; + popular antagonism during Confederation, 297-99, =3=, 23 _n._; + conduct of sedition trials, 43-47; + conduct of Republican judges, 48 _n._; + Virginia, as political machine, =4=, 146, 485-88; + controversy over, in New Hampshire, 229, 230; + M.'s report on, in Virginia Constitutional Convention, 485; + tenure of judges and discontinued offices, 485, 490, 493-501; + removal of judges, 485; + extent of reform demanded in Virginia, 488; + debate in her Convention, 489-501. + + Judiciary Act of 1801, bill, =2=, 548; + character of first Republican opposition to it, 549, 550, 555 _n._; + Federalist toast, 548 _n._; + debate and passage of bill, 550-52; + Fairfax estate in debate, 551; + midnight appointments, 559-62; + importance of repeal debate, =3=, 50, 75; + Jefferson and attack, last hour changes in Message, 51-53, 605; + character of act, 53, 56; + extravagance as excuse for repeal, 57, 58, 64; + repeal debate in Senate, 58-72; + tenure of judge and abolition of office, 59, 63, 607-10; + and declaring acts void, 60, 62, 64, 67-71, 73, 74, 82, 85, 87, 91; + independence _versus_ responsibility of Judiciary, 60, 61, 65, 68, + 74, 88; + fear of Judiciary, 61; + Marbury _vs._ Madison in debate, 61 _n._, 63, 78, 80, 86, 90; + select committee and discharge of it, 67, 68, 279; + indifference of mass of Federalists, 71; + vote in Senate, 72; + attempt to postpone in House, 72; + Federalist threats of secession, 72, 73, 82, 89, 93, 97, 98; + debate in House, 73-91; + and impeachment of Justices, 73, 80, 81; + Republican concern, 76 _n._; + Republicans on origin of act, 76-78; + Supreme Court and annulment of repeal, 85, 91, 92, 95-97, 122, 123, + =4=, 489, 490; + predictions of effect of repeal, =3=, 88; + Federal common-law jurisdiction, 78, 84, 89; + vote in House, 91; + reception of repeal, 92-94, 97-100; + act on disability of judges, 165 _n._ + + Jury trial, + Reconstruction debate on Federal, =1=, 447, 449, 456, 457, 464; + juries in sedition cases, =3=, 42. + + + Kamper _vs._ Hawkins, =3=, 612. + + Keith, James, M.'s grandfather, career, =1=, 17, 18. + + Keith, James, on M., =4=, 67 _n._ + + Keith, Mary Isham (Randolph), M.'s grandmother, =1=, 10, 17. + + Keith, Mary Randolph, M.'s mother, =1=, 10. + _See also_ Marshall, Mary Randolph (Keith). + + Kendall, Amos, as Jackson's adviser, =4=, 532 _n._ + + Kent, James, on M.'s biography of Washington, =3=, 265; + on Livingston _vs._ Jefferson, =4=, 114; + standing as judge, 256; + and Dartmouth College case, 256, 258 _n._; + and Supreme Bench, 256 _n._, 369 _n._; + on Livingston's steamboat monopoly and interstate commerce, 406-12, + 430, 441; + on Jackson, 535 _n._; + on M.'s decline, 586. + + Kent, Joseph, votes for war, =4=, 29 _n._ + + Kent, Moses, letters, =4=, 84 _n._ + + Kenton, Simon, birth and birthplace, =1=, 9 _n._ + + Kentucky, delegates in Ratification Convention, influences on, + =1=, 384, 399, 403, 411, 420, 430-32, 434, 443; + Virginia act for statehood, =2=, 55; + land case, =3=, 17; + and repeal of Judiciary Act of 1801, 58 _n._; + Burr in, 291, 296, 313-19; + bank mania and distress, =4=, 187, 204, 205; + and M'Culloch _vs._ Maryland, 314, 334; + Green _vs._ Biddle, occupying claimant law, 375-77, 380-82. + _See also_ next title. + + Kentucky Resolutions, purpose, =2=, 397; + Taylor's suggestion of nullification doctrine, 397; + production, 397; + importance, 398; + Hamilton on, 408; + consideration in Massachusetts, =3=, 43; + Dana on, 45; + as Republican gospel, 105-08; + resolutions in Federalist States on, 105 _n._, 106 _n._ + _See also_ State Rights. + + Kercheval, Samuel, + and Jefferson's letter on Virginia Constitution, =4=, 468, 469. + + Key, Francis S., counsel for Swartwout and Bollmann, =3=, 345. + + Key, Philip B., counsel for Chase, =3=, 185; + argument, 201. + + King, Rufus, + on Ratification in Massachusetts, =1=, 340, 347, 348 _n._, 351; + and organization of Constitutionalists, 357; + and Henry's presidential candidacy (1796), =2=, 156; + on M. as lawyer, 191; + and M. (1796), 198; + conciliatory letter to Talleyrand (1797), 252, 253; + and X. Y. Z. Mission, 286, 295, 364; + and presidential candidacy (1800), 438; + and British-debts dispute, 502-05, =3=, 103; + on fever in Washington, 6; + in Federal Convention, on declaring acts void, 115 _n._; + and on obligation of contracts, 557 _n._; + on Adams's Burr conspiracy report, 543 _n._; + and Yazoo lands, 570; + on bank mania and crisis of 1819, =4=, 181, 206 _n._; + and American Colonization Society, 475. + + Knox, Henry, army intrigue against, =1=, 122; + on spirit of anarchy, 275; + on demand for division of property, 298; + on Shays's Rebellion, 300; + on Henry as Anti-Constitutionalist, 358; + support of Adams (1800), =2=, 518; + enmity toward Hamilton, 518 _n._ + + Knox, James, and Burr conspiracy, =3=, 473. + + Kremer, George, attack on Clay, =4=, 462 _n._ + + + Labor, attitude toward, in colonial Virginia, =1=, 21; + price (c. 1784), 181; + M. and problem, =4=, 472. + + Lafayette, Marquis de, on Washington at Monmouth, =1=, 136; + on French indifference to reforms (1788), =2=, 6; + value of letters on French Revolution, 7 _n._; + and key of the Bastille, 9; + M. and imprisonment, 32-34; + and American Colonization Society, =4=, 474, 476 _n._ + + Lamb, John, on Washington and Federal Constitution, =1=, 331 _n._ + + Lamballe, Madame de, executed, =2=, 27 _n._ + + Land, M. on colonial grants, =1=, 191-96; + Virginia grants and Ratification, 445, 447-49, 458; + Indian purchases, 464, 465; + speculation, =2=, 202; + M. on tenure in France (1797), 268-70; + Kentucky case, =3=, 17; + importance in early National history, 556; + Kentucky occupying claimant law, =4=, 375-77, 380-82. + _See also_ Fairfax estate; Public lands; Yazoo. + + Langbourne, William, Burr's security, =3=, 429 _n._, 517. + + Langdon, John, on Ratification in New Hampshire, =1=, 354. + + Langhorne letter to Washington, =2=, 375 _n._ + + Lanier, Clem, and Yazoo lands act, =3=, 546, 547. + + Lansing, John, decision on Livingston steamboat monopoly, =4=, 405. + + La Rochefoucauld Liancourt, Duc de, + on Virginia social conditions, =1=, 20 _n._; + on frontiersmen, 275 _n._, 276 _n._, 281 _n._; + on social contrasts, 280 _n._; + on drinking, 282; + on court days, 284 _n._; + on speculation and luxury in Philadelphia, =2=, 85 _n._; + on M. as a lawyer, 171; + on M.'s character, 196, 197. + + Latrobe, B. H., and Burr, =3=, 311 _n._ + + Law and lawyers, Virginia bar (1780), =1=, 173; + extent of M.'s studies, 174-76; + M.'s argument in Hite _vs._ Fairfax, colonial land grants, 191-96; + M. as pleader, =2=, 177-82, 192-96; + M.'s argument in Ware _vs._ Hylton, 186-92; + practice and evidence, =3=, 18; + popular hostility, 23 _n._; + M.'s popularity with, =4=, 94; + character of practitioners before him, 94, 95, 132-35; + oratory and woman auditors, 133, 134; + as publicists, 135; + fees, 345 _n._ + _See also_ Judiciary. + + Law and order, frontier license, =1=, 29, 235, 239, 274; + M. on, =3=, 402. + _See also_ Government. + + Lear, Tobias, on Ratification in New Hampshire, =1=, 354, 354 _n._; + and Eaton, =3=, 303 _n._ + + Lecompte, Joseph, and Supreme Court, =4=, 517 _n._ + + Lee, Arthur, and Beaumarchais, =2=, 292 _n._ + + Lee, Gen. Charles, on militia, =1=, 86; + Monmouth, 135-37. + + Lee, Charles, of Va., and Jay Treaty, =2=, 132, 133; + and legislative implied censure of Washington, 138; + and Federal office for M., 201; + Hunter _vs._ Fairfax, 207, =4=, 156; + on M. and new French negotiations, =2=, 428; + _Aurora_ on, 492; + counsel in Marbury _vs._ Madison, =3=, 126, 130 _n._; + counsel for Chase, 185; + counsel for Swartwout and Bollmann, 345; + counsel for Burr, on overt act, 500; + report on Yazoo lands, 570. + + Lee, Henry, Randolph ancestry, =1=, 10; + in charge of light infantry, 142; + Pawles Hook, 142; + in the Legislature, 208; + in Ratification Convention: and haste, 372; + characterised, 387; + in the debate, 387, 423, 430, 467; + taunts Henry, 406; + on prospects, 434; + Hamilton's financial aid, 435 _n._; + on threat of forcible resistance, 467; + and Whiskey Insurrection, =2=, 87; + and Fairfax estate, 100, 204; + and enforcement of neutrality, 104, 106; + and Jay Treaty, 132; + and Henry's presidential candidacy, 157; + candidacy (1798), 416; + and "first in war" description, 443-45; + and powers of territorial Governor, 446 _n._; + and slavery, 449; + and Adams's advances to Jefferson, 519 _n._; + and Jefferson, =4=, 579. + + Lee, Richard Henry, lease to M.'s father, =1=, 51; + in the Legislature, 203, 208; + on distance as obstacle to Federal Government, 256; + on revolutionary action of Framers, 324; + in campaign for Ratification delegates, arguments, 366; + and title for President, =2=, 36; + chosen Senator, 50. + + Lee, Robert E., Randolph ancestry, =1=, 10. + + Lee, S., on Ratification contest, =1=, 341. + + Lee, Thomas Ludwell, lease to M.'s father, =1=, 51. + + Leggett, William, hostile criticism of M.'s career, =4=, 591. + + Legislature of Virginia, M.'s elections to, =1=, 164, 202, 211, 212, + 228, 242, =2=, 54, 130, 159; + aspect and character after the Revolution, =1=, 200-02, 205-08; + M.'s colleagues (1782), 203; + organisation (1782), 203; + M.'s committee appointments, 204, 213; + regulation of elections, 207; + commutable act, 207; + citizenship bill, 208; + relief bill for Thomas Paine, 213; + loyalists, 214; + insulted, 215; + avoids just debt, 215; + and amendment of State Constitution, 216; + Potomac River improvement, 217, 218; + chancery act, 218-20; + religious freedom, 221, 222; + British debts, 224-31; + and Confederate impost, 233; + and Continental debt, 234, 235; + and Confederate navigation acts, 234, 235; + foreign extradition act, 235-41; + calling of Ratification Convention, 244-48; + hope of Anti-Constitutionalists in, 462, 463, 468; + and Clinton's letter for second Federal Convention, 477; + attempt to undo Ratification, =2=, 48-51, 57 _n._; + measures (1789), 55-57; + ratifies first ten Federal amendments, 57, 58; + on assumption of State debts, 65-69; + and Federal suits on British debts, 83; + and suits against States, 83; + hostility to Bank of United States, 84; + and investigation of Hamilton, 84; + resolutions on Jay Treaty, 131-37; + virtual censure of Washington, 137-40; + Federal constitutional amendments proposed by, 141-43; + cold address to Washington (1796), 149-52; + and compromise on Fairfax estate, 208; + M. foretells Virginia Resolutions, 395; + passage of the Resolutions, 399; + Madison's address of the majority, 400, 401; + M.'s address of the minority, 402-06; + military measures, 406, 408; + proposed appropriation to defend Callender, =3=, 38 _n._; + Olmstead case and Nationalism, =4=, 21 _n._; + censure of M'Culloch _vs._ Maryland and restrictions on Missouri, + 324-27; + proposed amendment on Federal Judiciary, 371, 378; + and Nullification, 558, 567-73. + _See also_ House of Burgesses. + + Leigh, Benjamin Watkins, practitioner before M., =4=, 237 _n._; + in Virginia Constitutional Convention, 502 _n._; + Virginia commission to South Carolina, 573; + tribute to M., 590; + and Quoit Club memorial to M., 592. + + Leigh, Nicholas, practitioner before M., =4=, 237 _n._ + + Leipzig, battle of, =4=, 51. + + _Leopard-Chesapeake_ affair, =3=, 475-77, =4=, 9. + + Letcher, Robert P., attack on Supreme Court, =4=, 394. + + Lewis, B., sells house to M., =1=, 189. + + Lewis, Morgan, and Livingston steamboat monopoly, =4=, 409 _n._ + + Lewis, William, in Fries trial, =3=, 35. + + Lewis, William B., as Jackson's adviser, =4=, 532 _n._ + + Lewis, William D., + on opinion in M'Culloch _vs._ Maryland, =4=, 289 _n._ + + _Lex Mercatoria_, as a vade mecum, =1=, 186 _n._ + + Lexington, Ky., and Jay Treaty, =2=, 118. + + Liberty, J. Q. Adams on genuine, =2=, 17, 18. + _See also_ Government. + + Libraries, in colonial Virginia, =1=, 25. + + License, unconstitutionally of State, of importers, =4=, 454-59. + + Lincoln, Abraham, resemblance to M., =4=, 92, 93; + M.'s M'Culloch _vs._ Maryland opinion and Gettysburg Address, + 293 _n._; + as expounding M.'s doctrines, 344; + and Union and slavery, 473. + + Lincoln, Benjamin, and the militia, =1=, 86; + on Shays's Rebellion and Ratification, 343, 347 _n._; + and Embargo, =4=, 16. + + Lincoln, Levi, midnight-appointments myth, =2=, 561, 562; + and Marbury _vs._ Madison, =3=, 126; + commission on Georgia cession, 574 _n._; + and Justiceship, =4=, 108, 109. + + Lindsay _vs._ Commissioners, =3=, 613. + + Linn, James, and election of Jefferson, reward, =3=, 81 _n._ + + Liston, Robert, and Bowles, =2=, 498. + + Literature, in colonial Virginia, =1=, 24, 25, 43; + M.'s taste and reading, 41, 44-46, =4=, 79, 80; + M.'s book-buying, =1=, 184-86, =2=, 170; + Weems's orders for books (c. 1806), =3=, 252 _n._, 253 _n._ + + Little _vs._ Barreme, =3=, 273 _n._ + + Livermore, Samuel, on Judiciary Act of 1789, =3=, 54. + + Livingston, Brockholst, on Fletcher _vs._ Peck, =3=, 585; + appearance, =4=, 132; + and Dartmouth College case, 255-57, 258 _n._, 275; + death, 256 _n._ + + Livingston, Edward, and Jonathan Robins case, =2=, 461, 474; + and Wilkinson's reign of terror, =3=, 335; + Jefferson's hatred, 335 _n._; + Batture litigation, Jefferson case, =4=, 100-16; + later career, 115 _n._; + Jackson's Nullification Proclamation, 562. + + Livingston, John R. _See_ North River Steamboat Co. _vs._ Livingston. + + Livingston, Robert R., and steamboat experiments, =4=, 398, 399; + grants of steamboat monopoly in New York, 399; + and steamboats on the Mississippi, monopoly in Louisiana, 402, 414; + monopoly and interstate voyages, 403, 404; + suits, 405-09. + _See also_ Gibbons _vs._ Ogden. + + Livingston, William, on militia, =1=, 86; + on evils of paper money, 296. + + Livingston _vs._ Jefferson, =4=, 100-16. + + Livingston _vs._ Van Ingen, =4=, 405-09. + + Loan certificates. _See_ Craig _vs._ Missouri. + + Localism, and isolation, =4=, 191. + _See also_ Nationalism; State Rights. + + Logan, ----, on Ratification in Virginia, =1=, 445. + + London, John, and Granville heirs case, =4=, 155 _n._, 156 _n._ + + Longstreet, William, and Yazoo lands act, =3=, 546-48. + + Lord, John K., acknowledgment to, =4=, 233 _n._ + + Lotteries, popularity, =2=, 56 _n._; + for public funds, =4=, 344 _n._ + _See also_ Cohens _vs._ Virginia. + + Louis XVI and early French Revolution, =2=, 31 _n._ + + Louisiana, admission as reason for secession, =4=, 27; + grant of steamship monopoly, 402, 414. + + Louisiana Purchase, retrocession to France, =3=, 146; + Jefferson and problem of New Orleans, 146; + treaty, 147; + Jefferson's dilemma, 147-49; + attitude of Federalists, 148-53. + + Louisville, first steamboat, =4=, 403 _n._ + + Love, William, testimony in Burr trial, =3=, 488. + + Lovejoy, King, and Ratification, =1=, 341. + + Lovell, Sarah (Marshall), =1=, 485. + + Lowell, John, on Adams's Burr conspiracy report, =3=, 543 _n._; + as British partisan, =4=, 9; + opposition to War of 1812, 45, 46; + on impressment, 53. + + Lowdermilk, Will H., on Braddock's defeat, =1=, 2 _n._-6 _n._ + + Lowndes, William, and War of 1812, =4=, 29; + on Bank of the United States, 289. + + Lowrie, Walter, on Missouri question, =4=, 342. + + Loyalists, Virginia post-Revolutionary legislation, =1=, 214; + support Ratification, 423 _n._; + attitude (1794), =2=, 110; + Federalists accused of favoring, =3=, 32; + in M.'s biography of Washington, 245. + + Lucas, John C. B., and Addison, =3=, 47 _n._ + + Lucius letters, =2=, 543 _n._ + + Luckett, John R. N., and Adair, =3=, 336. + + Lumpkin, Wilson, + defies Supreme Court in Cherokee question, =4=, 548, 551, 552 _n._ + + Lusk, Thomas, in Ratification Convention, =1=, 346. + + Lynch, Charles, and Burr, =3=, 313. + + Lynchburg, Va., tribute to M., =4=, 591. + + Lyon, Matthew, conviction for sedition, =3=, 30, 31; + lottery to aid, 32; + Jefferson's favor, 81 _n._; + and Burr, 292. + + Lyons, Peter of Virginia Court of Appeals, =4=, 148. + + + McAlister, Matthew, and Yazoo lands, =3=, 555. + + McCaleb, Walter F., on isolation of Burr, =3=, 280 _n._; + on Burr-Merry intrigue, 289 _n._; + on Burr-Casa Yrujo intrigue, 290 _n._, 300 _n._; + on Morgans, 309 _n._; + study of Burr conspiracy, 538 _n._ + + M'Castle, Doctor, in Burr conspiracy, =3=, 491. + + Maclay, Samuel, on Judiciary Act of 1789, =3=, 54; + of Smith committee, 541 _n._ + + McCleary, Michael, witness against Pickering, reward, =3=, 181 _n._ + + McClung, James, professor at William and Mary, =1=, 155 _n._ + + McClurg, James, Richmond physician, =1=, 189 _n._ + + M'Culloch, James W. _See_ M'Culloch _vs._ Maryland. + + M'Culloch _vs._ Maryland, + importance and underlying conditions, =4=, 282, 290, 304, 308; + agreed case, facts, 283, 331; + public interest, 283; + counsel, 284; + argument, 285-88; + acquiescence in power to establish bank, 285, 291; + scope of implied powers, 285, 286, 294-301, 316, 337; + M.'s opinion, 289-308; + preparation of opinion, 290; + Federal government established by the people, 292; + supremacy of National laws, 293; + sources of power to establish bank, 295; + Federal freedom of choice of instruments, 301; + Federal instruments exempt from State taxation, 304-07; + and National taxation of State banks, 307, 308; + National powers paramount over State power of taxation, 302-04; + attack on opinion in _Niles' Register_, 309-12; + bank as monopoly, 310, 311, 338; + opinion as political issue, union of attack with slavery and + secession questions, 311, 314, 325-27, 338, 339; + opinion as opportunity for Virginia attack on M., 312; + Roane's attack, 312-17; + M. and attacks, his reply, 314, 315, 318-23; + attack on concurring Republican Justices, 317; + Roane buys and M. sells bank stock, 317, 318; + demand for another court, 323, 325; + censure by Virginia Legislature, 324-27; + denunciation by Ohio Legislature, 330-33; + action by other States, 333-35; + denial of power to erect bank, 334, 336, 337; + Taylor's attack, 335-39; + Jefferson's comment, 339; + Jackson denies authority of decision, 530-32. + + McDonald, Anthony, as teaching hatter, =1=, 272. + + McDonald, Joseph E., on M. as a lover, =1=, 163 _n._ + + McDuffie, George, and non-intercourse with tariff States, =4=, 538. + + McGrane, R. C., acknowledgment to, =4=, 318 _n._ + + McHenry, James, forced resignation, =2=, 485; + on M. and State portfolio, 489; + on Adams's temperament, 489 _n._; + on Federalist dissensions, 521; + and sedition trial, =3=, 32. + + M'Ilvaine _vs._ Coxe's Lessee, =4=, 54 _n._ + + M'Intosh, Lachlan, and Yazoo lands act, =3=, 547. + + McKean, Thomas, in Ratification Convention, =1=, 330, 332; + and pardon of Fries, =2=, 429. + + Mackie, ----, Richmond physician, =1=, 189 _n._ + + M'Lean, John, relief bill, =1=, 204. + + McLean, Justice John, appointment, =4=, 510; + dissent in Craig _vs._ Missouri, 513; + and M., 582; + and Briscoe _vs._ Bank and New York _vs._ Miln, 583, 584 _n._ + + Macon, Nathaniel, and Chase impeachment, =3=, 170. + + MacRae, Alexander, prosecutes Burr, =3=, 407; + on subpoena to Jefferson, 437; + on M.'s statement of prosecution's expectation of conviction, 448; + on overt act, 494; + in trial for misdemeanor, 522. + + Madison, Bishop James, as professor at William and Mary, =1=, 155. + + Madison, James, as statesman, =1=, 32; + in the Legislature, 203; + on post-Revolutionary Legislature, 205, 206; + on amendment of constitutions, 216; + and British debts, 226, 228; + and payment of Continental debt, 235, 440; + and extradition bill, 236, 239; + loses faith in democracy, 252, 300; + on state of trade (1785), 262; + use of cipher, 266 _n._; + on community isolation, 285; + on demand for division of property, 294; + on spirit of repudiation, 295, 306; + fear of paper money, 297 _n._; + on failure of requisitions, 305 _n._; + on economic basis of evils under Confederation, 310, 311; + on need of uniform control of commerce, 312; + on need of negative on State acts, 312; + on opposition in Pennsylvania to Ratification, 338; + change of views, 338, 401, =2=, 46, 50, 79; + on Ratification contest in Massachusetts, =1=, 339; + on Hancock, 339 _n._; + on Massachusetts amendments, 349; + on contest in New Hampshire, 355; + and Randolph's attitude on Ratification, 362, 363, 377; + on delegates to the Virginia Convention, 367; + in Ratification Convention: and detailed debate, 370; + and offer of conciliation, 384; + on prospects of Convention, 384, 434, 462; + participation in debate deferred, 384; + characterized, 394; + in the debate in Convention, 394, 395, 397, 421, 428, 430-32, + 440, 442, 449, 470; + compared with Hamilton, 397 _n._; + on Oswald at Richmond, 402; + on opposition's policy of delay, 434; + on treaty-making power, 442; + and gradual consolidation, 446; + on Judiciary, 449; + on Judiciary debate, 461, 462; + in contest over recommendatory amendments, 473; + on personal influence in Ratification, 476; + on Publicola papers, =2=, 15 _n._, 19; + influence on, of popularity of French Revolution, 20, 27; + on opposition after Ratification, 45; + defeated for Senate, 49, 50; + elected to the House, 50 _n._; + attacks M. (1793), 99, 100; + and M.'s integrity, 140; + and appointment to X. Y. Z. Mission, 227, 281; + on X. Y. Z. dispatches, 340; + on Alien Act, 382; + Virginia Resolutions, 399; + address of the Legislature, 400, 401; + and Adams's Cabinet, 487; + on Washington's and Adams's temperaments, 487 _n._; + on champagne, =3=, 10 _n._; + and Marbury _vs._ Madison, 110, 111, 126; + on declaring acts void, 115 _n._, 120 _n._; + and Judiciary Act of 1789, 129; + and M.'s biography of Washington, 228, 229; + and Miranda, 300, 301; + and trial of Burr, 390-92; + and Andrew Jackson, 405; + and Ogden-Smith trial, 436 _n._; + and J. Q. Adams, 541 _n._; + on obligation of contracts, 558 _n._, =4=, 245; + commission on Georgia cession, =3=, 574 _n._; + inauguration, 585; + and Fletcher _vs._ Peck, 593; + and Olmstead case, =4=, 21; + Erskine incident, 22; + and Minister Jackson, 23; + and Napoleon's pretended revocation of decrees, 26, 36-39, 48-50; + War Message, 29; + M. proposed as opponent for Presidency (1812), 31-34; + dismisses Smith, 34; + and Hay's pamphlet on impressment, 53; + Jefferson and appointment of Tyler as District Judge, 103-06; + and successor to Justice Cushing, 106-10; + and first Bank of the United States, 172; + and second Bank, 180; + and attack on Judiciary, 371, 378; + veto of Bonus Bill, 417; + Randolph's arraignment, 419; + on commerce clause, 423 _n._; + and American Colonization Society, 474, 476 _n._; + in Virginia Constitutional Convention, 484; + conservatism there, 489, 507; + and tenure of judges of abolished court, 496, 500; + on Nullification, 556; + M. on it, 557; + later explanation of Virginia Resolves, 557. + + Mail, conditions (c. 1790), =1=, 264-66; + secrecy violated, 266. + + Maine, Sir Henry S., on Dartmouth College case, =4=, 277. + + Maine, and Nullification, =4=, 559. + + Majority, decrease in faith of rule by, =1=, 252, 253; + rights, =2=, 17; + M. on rule, 402. + _See also_ Democracy; Government. + + Malaria, in Washington, =3=, 6. + + Mandamus jurisdiction of Supreme Court in Judiciary Act of 1789, + M.'s opinion of unconstitutionality, =3=, 127, 128, 132, 133; + general acceptance of jurisdiction, 128-30. + + Manhattan Company, Burr and charter, =3=, 287 _n._ + + Manufactures, M. on conditions in France (1797), =2=, 267, 268; + effect of War of 1812, =4=, 57. + + Marbury, William, Marbury _vs._ Madison, =3=, 110. + + Marbury _vs._ Madison, underlying question, =3=, 49, 50, 75, 104-09, + 116, 118, 127, 131, 142; + references to, in Judiciary debate (1802), 61 _n._, 63, 78, 80, 86; + expected granting of mandamus, 62 _n._, 90 _n._, 112; + arguments anticipated, M.'s knowledge of earlier statements, 75, + 116-20, 611-13; + facts of case, 110, 111; + as vehicle for assertion of constitutional authority of Judiciary, + dilemma and its solution, 111, 126-33; + dangers in M.'s course, 111-14; + M.'s personal interest, 124, 125; + practical unimportance of case, 125; + hearing, 125, 126; + M.'s opinion, 133-42; + right to commission, 133-35; + mandamus as remedy, 135; + unconstitutionality of Court's mandamus jurisdiction, 136-38; + declaring acts void, 138-42; + opinion and assault on Judiciary, 143, 153, 155; + Jefferson and opinion, 143, 144, 153, 431, 432, =4=, 363; + little notice of decision, =3=, 153-55; + first citation, 154 _n._ + + Marietta, Ohio, and Burr conspiracy, =3=, 312, 324. + + Marine Corps, debate in Congress (1800), =2=, 446-48. + + Markham, Elizabeth, =1=, 14, 16. + + Markham, Lewis, =1=, 16. + + Marriage, Henry's plan for intermarriage of whites and Indians, + =1=, 240 _n._, 241. + + Marryat, Frederick, on newspaper abuse, =4=, 175 _n._; + on Localism, 191. + + Marsh, Charles, and Dartmouth College case, =4=, 256, 258. + + Marshall, Abraham, M.'s uncle, =1=, 485. + + Marshall, Alexander, M.'s brother, birth, =1=, 38 _n._ + + Marshall, Ann, Mrs. Smith, =1=, 485. + + Marshall, Charles, M.'s brother, birth, =1=, 38 _n._ + + Marshall, Charlotte, M.'s sister, birth, =1=, 56 _n._ + + Marshall, Edward C, M.'s son, birth, =4=, 73 _n._; + education, 73. + + Marshall, Elizabeth (Markham), M.'s grandmother, =1=, 14, 16; + bequest in husband's will, 485, 486. + + Marshall, Elizabeth, M.'s sister, birth, =1=, 34 _n._ + + Marshall, Elizabeth, acknowledgment to, =4=, 528 _n._ + + Marshall, Hester (Morris), =2=, 203. + + Marshall, Humphrey, as delegate to Ratification Convention, =1=, 320; + on popular fear of Constitution, 321 _n._; + votes for ratification, 411 _n._; + and Jay Treaty, =2=, 118; + and Burr conspiracy, =3=, 315, 317; + on Embargo and secession, =4=, 17. + + Marshall, Jacquelin A., M.'s son, birth, =1=, 190 _n._, =4=, 73 _n._; + education, 73. + + Marshall, James K., M.'s son, birth, =2=, 453, =4=, 73 _n._; + education, 73; + M.'s home with, 528. + + Marshall, James M., M.'s brother, birth, =1=, 38 _n._; + M. helps, 197; + and imprisonment of Lafayette, =2=, 33; + and Fairfax estate, 100, 203-11; + and M.'s business affairs, 173 _n._; + marriage to Morris's daughter, 203; + and M. in Europe, 232 _n._; + staff office in French War, 357; + Federal appointment as nepotism, 560 _n._; + witness in Marbury _vs._ Madison, =3=, 126. + _See also_ Martin _vs._ Hunter's Lessee. + + Marshall, Jane, M.'s sister, birth, =1=, 56 _n._; + M. and love affair, =2=, 174, 175; + marriage, 175 _n._ + + Marshall, John, M.'s grandfather, career, =1=, 12, 13; + will, 485; + deed from William Marshall, 487, 488. + + Marshall, John, M.'s uncle, =1=, 485. + + Marshall, John, + _early years and private life_: + birth, =1=, 6; + Randolph and Isham ancestry, 10; + similarity in conditions of Jefferson's birth, 11 _n._; + Marshall ancestry, real and traditional, 12-16; + Keith ancestry, 16; + boyhood homes and migrations, 33-37, 55; + boyhood life, 38-41; + education, 42, 53, 57; + and his father, 42; + reading, Pope's poems, 44-46; + training in order, 45; + influence of Lord Fairfax on training, 49 _n._; + influence of James Thompson, 54; + reads Blackstone, 56; + to be a lawyer, 56; + military training, 56; + training from father's service as burgess, 65, 66; + drilling master for other youths, 70; + patriotic speeches (1775), 72; + at battle of Great Bridge, 76, 78; + lieutenant in the line, 79, 91; + on militia during the Revolution, 85, 100; + military promotions, 91, 138; + spirit as army officer, 91; + in Brandywine campaign, 93-97; + in the retreat, 99; + in battle of Germantown, 102; + cheerful influence at Valley Forge, 117-19, 132; + Deputy Judge Advocate, 119; + judicial training in army, 119; + in Monmouth campaign, 135, 137; + on Lee at Monmouth, 137; + Stony Point, 139, 140; + Pawles Hook, 142; + inaction, awaiting a command, 143, 161; + and Arnold's invasion, 144; + meeting with future wife, courting, relations with Ambler family, + 152-54, 159-61, 163; + at William and Mary, extent of law studies, 154, 155, 160, 161, + 174-76; + in Phi Beta Kappa, 158; + in debating society, 159; + licensed to practice law, 161; + resigns commission, 162; + walks to Philadelphia to be inoculated, 162; + marriage, 165, 166; + financial circumstances at time of marriage, 166-69; + slaves, 167, 180; + social effect of marriage, 170; + first Richmond home, 170; + lack of legal equipment, 173, 176; + early account books, 176-81, 184-90, 197; + early fees and practice, 177, 181, 184, 187, 190, 196; + children, 179, 190, =2=, 370 _n._, 453, =4=, 72-74; + and Gallatin (1784), =1=, 183; + buys military certificates, 184; + Fauquier land from father, 186; + as a Mason, 187, =2=, 176; + City Recorder, =1=, 188; + later Richmond home and neighbors, 189, =2=, 171; + first prominent case, Hite _vs._ Fairfax, =1=, 191-96; + employed by Washington, 196; + buys Fauquier land, 196; + Robert Morris's lawyer, 401 _n._; + list of cases, 567-70; + and James River Company, =2=, 56; + profits from legal practice, 169-71, 201; + and new enterprises, 174; + method as pleader, 177-82, 192-96; + extent of legal knowledge, 178; + neglect of precedents, 179; + statement of cases, 180, 181; + character of cases, 181; + in Ware _vs._ Hylton, on British debts, 186-92; + and Robert Morris, investments, 199, 200; + Fairfax estate, 203-11, 371, 372, =3=, 223, 224, =4=, 148-50, + 150 _n._, 152, 157; + financial reasons for accepting X. Y. Z. Mission, =2=, 211-13; + biography of Washington (_see_ Biography); + as Beaumarchais's attorney, 292; + interest in stability of contracts, =3=, 582; + life in Washington, =4=, 80, 81; + illness, operation for stone, 518, 520-24, 528; + will, 525 _n._; + later residence, 527; + decline, 586, 587; + death, 587; + escort of body to Richmond, 588; + funeral, 588; + inscription on tomb, 593. + + _Virginia Legislature, Ratification, and later State affairs_: + elections to Legislature, =1=, 164, 202, 211, 212, 228, 242, + =2=, 54, 130, 159; + character as legislator, =1=, 202; + committee appointments and routine work, 204, 213, 218, 368, + =2=, 54-56, 141; + first votes, =1=, 204; + on character of Legislature, 206-08; + elected to Council of State, 209; + election resented, forced out, 209, 211, 212; + political importance of membership in Council, 209 _n._, 210; + and Revolutionary veterans, 213; + and relief for Thomas Paine, 213; + and loyalists, 214; + on amendment of Constitution, 216; + and Potomac Company, 218; + and chancery bill (1787), 218-20; + indifference to religious freedom question, 220, 222; + and British debts, 222, 225-31; + and Continental debt and navigation acts, 234, 235; + and extradition bill, 240; + and intermarriage of whites and Indians, 240 _n._, 241; + and calling of Ratification Convention, 242, 246, 247; + on Shays's Rebellion, 298, 299, 300 _n._, 302; + practical influences on stand for Ratification, 313, 314; + on opposition to Ratification, 356; + candidacy for Ratification Convention, 364; + importance in the Convention, 367; + in the Convention: study, 391; + on Philips attainder case, 393 _n._, 411; + social influence in Convention, 409; + in the debate, 409-20, 436-38, 450-61; + on necessity of well-ordered government, 409-11; + on navigation of the Mississippi, 411; + on necessity of delegated powers, 412, 413; + on Federal taxation, 413-16, 419; + on amendments, 412, 418; + on control of militia and preparedness, 436-38; + on concurrent powers, 436; + and Henry, 438, 464; + on Federal Judiciary, 450-61; + on independence of Judiciary, 451, 459; + on declaring acts void, 452, 453, =2=, 18; + on suits against States, =1=, 454; + on discretion in Congress, 454; + on other jurisdiction, 455; + on jury trial, 456, 457; + of committee on amendments, 477; + on opposition after Ratification, =2=, 45 _n._; + survey and report on Virginia internal improvements, =4=, 42-45; + and Bank of Virginia incident, 194; + election to Constitutional Convention, 467; + attitude on issues there, 468, 470, 471, 488, 507, 508; + standing there, 489; + in debate on Judiciary, 489-501; + and on suffrage, 502; + anticipates split of Virginia, 571. + + _Federal affairs_: + relationship with Jefferson, =1=, 9; + on early approbation of French Revolution, =2=, 4; + on St. Domingo negro insurrection, 20, 21; + on popular enthusiasm for French Revolution, 22, 23; + on conservative American opinion, 23; + and imprisonment of Lafayette, 32-34; + and democratic societies, 41; + on origin of State Rights contest, 48; + and Madison's candidacy for Senate, 50; + declines Federal appointments, 53; + and first amendments, 58; + and attack on assumption, 65, 66; + continued popularity, 78; + Jefferson's attempt to sidetrack him (1792), 79-81; + refuses to stand for Congress (1792), 81; + on opposition to Federal excise, 87; + and Whiskey Insurrection, 89, 90; + Brigadier-General of Militia, 90; + on assault on Neutrality Proclamation, 93, 94, 96; + support of policy of neutrality, 97-99, 235, 387, 402, 403, + 507-09; + first Republican attacks on, 98-103; + and post at New Orleans (1793), 99; + attacks on character, 101-03, 409, 410; + military enforcement of neutrality, 103-06; + on British depredations on neutral trade (1794), 108; + on retention of frontier posts, 111; + leader of Virginia Federalists, 122; + refuses Cabinet offers, 122, 123, 147; + advises on Cabinet appointments, 124-26, 132; + defense of Jay Treaty, 126, 129 _n._; + and Jay Treaty resolutions of Legislature, 133-37; + on treaty-making power (1795), 134-36; + and Legislature's indirect censure of Washington, 138, 140; + Jefferson's accusation of hypocrisy (1795), 139, 140; + and proposed amendments, 141; + declines French mission (1796), 144-46; + and Richmond meeting on Jay Treaty, 149-55; + sounds Henry on presidential candidacy (1796), 156-58; + and Virginia address to Washington (1796), 159-62; + growth of the Jefferson feud, 165; + and Federalist leaders (1796), 198; + declines Jay Treaty commissionship, 200-02; + X. Y. Z. Mission [_see_ this title]; + on John Adams (1797), 214; + Adams on, 218; + on The Hague, 231; + on 18th Fructidor, 232, 236-44; + on conditions in Holland (1797), 233-35; + on conditions at Antwerp, 246, 247; + on French economic conditions, 267-70; + on Treaty of Campo Formio, 271; + on French military and financial conditions, 321-23; + on liberty and excess of press, 331; + refuses Associate Justiceship, 347, 378, 379; + beginning of Jefferson's open warfare, 358; + Washington persuades him to run for Congress (1798), 374-78; + Republican attacks on candidacy, M. on attacks, 379, 395, 396, + 407, 409, 410; + on expediency of Alien and Sedition Acts, 386, 388, 389, =3=, 106; + answers to queries on principles, =2=, 386-89, 574-77; + Federalists on views on Alien and Sedition Acts, 389-94, 406; + on motives of Virginia Republicans, 394, 407; + address of minority of Virginia Legislature, 402-06; + on rule of the majority, 402; + on preparedness, 403, 476-80, 531; + attack on Virginia Resolutions, 404; + on constitutionality of Alien and Sedition Acts, 404; + electioneering, 409; + defeat expected, 410; + effect of Henry's support, 410-13; + at the polls, 413-16; + elected, 416; + Washington's congratulations, 416; + apology to Washington for statements of supporters, 416, 417; + Federalists on election, their misgivings, 417-19; + Jefferson on election, 419; + and officers for army (1799), 420; + visit to father in Kentucky, Jefferson's fear of political + mission, 421, 422; + and French hostility as Federalist asset, 422; + approves reopening of French negotiations, 428, 433, 436; + importance to Federalists in Congress, 432, 436, 437; + of committee to notify President, 432; + reply of House to Adams's address, 433-36; + on question of reducing army (1800), 436, 439, 476-81; + on campaign plots and issues, 438-40; + addresses on death of Washington, 440-43; + and phrase "first in war," 443-45; + use of term "American Nation," 441; + activity in Congress, 445; + and cession of Western Reserve, 446; + and powers of territorial Governor, 446; + and army officers' insult of Randolph, 446; + and Marine Corps Bill, debate with Randolph, 446-48; + and land grants for veterans, 448; + attitude towards slavery (1800), 449, 450; + votes to repeal Sedition Act, 451; + political independence, 451, 452; + kills Disputed Elections Bill, 455-58; + and delay in Jonathan Robins case, 462, 463; + importance and oratory of speech on case, 464, 473; + arguments in speech, 465-71; + on jurisdiction on high seas, 465-67; + on basis of piracy, 467; + on limitation to jurisdiction of Federal Courts, 468-70; + on incidental judicial powers of Executive, 470; + on President as sole organ in external relations, 470; + comments and effect of speech, 471-75; + Jefferson's blindness to merit, 475; + and Bankruptcy Bill, 481, 482; + refuses War portfolio, 485; + appointment as Secretary of State, 486, 489, 491; + Republican comment on appointment, 490, 492; + Federalist comment, 492; + as Secretary, incidents of service, 493, 494, 499; + and office-seekers, 494; + and pardon of Williams, 495; + and continued depredations on neutral trade, 496; + and _Sandwich_ incident, 496; + and Bowles's activity in Florida, 497-99; + and Barbary Powers, 499; + and disruption of British-debts commission and proposed + compromise, 502-05; + instructions to King on British depredations, 506-14; + on unwarranted increase of contraband list, 509-11; + on paper blockade, 511; + on unfairness of British admiralty courts, 511, 512; + on impressment, 513; + and breaking-up of Federalist Party, 514, 515, 526; + loses control of district, 515; + and prospects of new French negotiations, 522, 523; + and French treaty, 525; + writes Adams's address to Congress, 530, 531; + on need of navy, 531; + and extension of Federal Judiciary, 531, 548; + and _Washington Federalist_, 532 _n._, 541, 547 _n._; + neutrality in Jefferson-Burr contest, 536-38; + personal interest in it, 538, 539; + effect of his neutrality, 539; + opinion of Jefferson (1800), 537; + and threatened deadlock, 541-43; + Fairfax estate and Judiciary Bill (1801), 551; + continues as Secretary of State, 558; + and judgeship for Wolcott, 559, 560; + and midnight appointments, myth concerning, 559, 561, 562; + and accusation of nepotism, 560 _n._; + in defeat of party, =3=, 11; + and Republican success, 15; + on Jefferson's inaugural, 18; + and Callender trial, 39; + on trials for violating Neutrality Proclamation, 26; + on settlement of British debts controversy, 103; + on political conditions (1802), 104; + opposition to War of 1812 and hatred of France, =4=, 1-3, 15, + 35-41, 49, 50, 55, 125; + opposition to Embargo, 14, 15; + on Jackson incident and Federalist defeat (1809), 24, 25; + proposed for President (1812), 31-34, 46, 47; + and Richmond Vigilance Committee, 41 _n._; + refrains from voting, 462, 465; + incident of election of 1828, 462-65; + on House election of Adams, 462 _n._; + on Jackson's inauguration, 466; + and American Colonization Society, 473-76; + and Jackson's war on the Bank, 528, 533, 535; + on Virginia and Jackson's veto of Harbor Bill, 534; + and election of 1832, 534; + and Indian policy, 542 _n._ + + _Chief Justice_: + Appointment, =2=, 553; + Adams on qualifications, 554: + reception of appointment, 555-57; + acceptance, 557, 558; + Jefferson and appointment, 652, =3=, 20; + general inappreciation of appointment, =2=, 563; + change in delivery of opinions, =3=, 16; + _Amelia case_, law of prize, 16, 17; + Wilson _vs._ Mason, Kentucky land case, 17; + United States _vs._ Peggy, treaty as supreme law, 17; + Turner _vs._ Fendall, practice and evidence, 18; + influence of Alien and Sedition Acts on career, 49; + and assault on the Judiciary (1802), 50, 75; + Judiciary Act of 1801 and acceptance of Chief Justiceship, 58; + and Giles, 76 _n._; + Giles's sneer at and Bayard's reply, 77; + and annulment of repeal of Judiciary Act, 85, 91, 92, 93 _n._, + 95-97, 122, 123, =4=, 489, 490; + on circuit, =3=, 101-03, =4=, 63-66; + preparation for assertion of constitutional authority of + Judiciary, 104, 109; + Marbury _vs._ Madison [_see_ this title]; + American Insurance Co. _vs._ Canter, annexation and territorial + government, =3=, 148, =4=, 143, 144; + removal by impeachment planned, his fear of it, =3=, 155, 161-63, + 176-79, 192, 196; + United States _vs._ Fisher, implied powers, 162; + importance of Chase trial to, 175-79, 191, 192, 196, 220, 222; + suggests legislative reversal of judicial opinions, 177, 178; + Randolph's tribute to, in Chase trial, its political importance, + 188, 214-16; + as witness in trial, 192-96; + early opinions, 273; + and rumors on Burr Conspiracy, 338; + and habeas corpus for Swartwout and Bollmann, 346; + opinion on their discharge, effect of misunderstanding of + statement on presence at overt act, 349-57, 414 _n._, 484, + 493, 496, 502, 506-09; + rebukes of Jefferson's conduct, 351, 376; + warrant for Burr's arrest, 370; + preliminary hearing and opinion, 370, 372-79; + conduct and position during Burr trial, 375, 397, 404, 407, 408, + 413 _n._, 421, 423, 480, 483, 484, 494, 517, 526; + Jefferson's criticism of preliminary hearing, 386-89; + at dinner with Burr, 394-97; + on difficulty of fair trial, 401; + and counsel at trial, 408; + and selection of grand Jury 409, 410, 413; + instructions to grand jury, 413-15, 442, 451; + and new motion to commit for treason, 415, 416, 421, 422, 424, + 425, 428; + and subpoena to Jefferson, 434, 443-17, 455, 518-22; + admonition to counsel, 439; + opinion on overt act, 442, 504-13, 619-26; + on prosecution's expectation of conviction, 447-49; + and pardon for Bollmann, 452, 453; + and attachment against Wilkinson, 473, 475; + and confinement of Burr, 474, 478; + and selection of petit jury, 475, 482; + seeks advice of associates, 480; + on preliminary proof of overt act, 485-87; + and threat of impeachment, 500, 501, 503, 512, 516; + on testimony not on specified overt act, 512, 542; + and irregular verdict, 514; + denies further trial for treason, 515; + and bail after treason verdict, 516; + and commitment for trial in Ohio, 524, 527, 528, 531 _n._; + Burr's anger at, 524, 528; + and Daveiss's pamphlet, 525; + attacks on for trial, 526, 532-35, 540; + on trial and Baltimore tumult, 529; + Jefferson urges impeachment, 530-32; + Baltimore mob burns him in effigy, 535-40; + J. Q. Adams's report on Burr trial, 542, 543; + later relations with Adams, 542 _n._; + foreign affairs prevent efforts to impeach, 545; + importance of Fletcher _vs._ Peck opinion, 556, 593, 602; + knowledge of Granger's memorial on Yazoo claims, 576 _n._; + and of congressional debate on it, 582; + administers oath to Madison, 585; + hearings and opinion in Fletcher _vs._ Peck, Yazoo claims and + obligation of contract, 585-91; + congressional denunciation of opinion, 595-601; + rebukes resistance of National authority by State, opinion in + Olmstead case, =4=, 18-20; + checks reaction against Nationalism, 58; + period of creative labor, 59; + influence over associates, causes, 59-61, 444; + conduct on the bench, 82; + life and consultation of Justices, 86-89; + character of control over Supreme Court, 89, 90; + popularity with the bar, 94; + encourages argument, 94 _n._, 95; + Story as supplementing, 96, 119, 120, 523; + Story's devotion, 99, 523; + Livingston _vs._ Jefferson, Jefferson's manipulation of colleague, + 104-16; + Nationalism and upholding of doubtful acts of Congress, + suppression of personal feelings, 117, 546; + _Adventure_ case, interpretation of Embargo, 118; + _obiter dicta_, 121, 369; + and international law, 121; + _Exchange_ case, immunity of foreign man-of-war, 121-25; + United States _vs._ Palmer, _Divina Pastora_, international status + of revolted province, belligerency, 126-28; + dissent in _Venus_ case, domicil during war and enemy character, + 128, 129; + _Nereid_ case, neutral property in enemy ship, 136-42; + and Martin _vs._ Hunter's Lessee, 145, 148-50, 150 _n._, 152-155, + 157, 161, 164; + Granville heirs case, 154, 155; + private letter on Hunter decision, 164 _n._, 165 _n._; + decisions of 1819 as remedies for National ills, 168, 169, 203, + 208, 220; + Sturges _vs._ Crowninshield, State insolvency laws and obligation + of contracts, 209-19; + New Jersey _vs._ Wilson, exemption from taxation and obligation + of contracts, 221-23; + and Dartmouth College case, 251, 252, 255, 259 _n._, 261, 273, + 274; + opinion in case, charters and obligation of contracts, 261-73; + consequences of opinion, 276-81; + importance and aim of M'Culloch _vs._ Maryland opinion, 282, 308; + on Pinkney, 287; + tribute to argument of case, 288; + opinion in case, 289-308; + debt of Webster and Lincoln to, 293 _n._, 553, 554; + attacks on opinion, 309-17, 323-27, 330-39; + and change in reputation of Supreme Court, 310; + on attacks reply to them, 312, 314, 315, 318-23; + sells bank stock, 318; + importance and purpose of Cohens _vs._ Virginia, 342; + opinion in case, 347-57; + on attacks on opinion, 359-62; + Jefferson's attack (1821), 363-66; + Taylor's attack on Nationalist doctrine, 367; + as center of strife over political theories, 370; + on Johnson's Elkison opinion, 383; + opinion in Osborn _vs._ Bank, 385-94; + satisfying disposition of cases, 393, 394; + importance and effect of Gibbons _vs._ Ogden, 413, 423, 429, 446, + 447, 450; + opinion in Brig Wilson _vs._ United States, navigation, 428, 429; + opinion in Gibbons _vs._ Ogden, control over commerce, 429-43; + tribute to Kent, 430, 441; + reception of opinion, 445; + change in congressional attitude toward, 452, 454; + opinion in Brown _vs._ Maryland, foreign commerce, 455-59; + warning to Nullifiers, 459; + survival of opinions, 460; + character of last decade, 461, 518, 581, 582; + _Antelope_ case, slave trade and international law, 476, 477; + Boyce _vs._ Anderson, common carriers and transportation of + slaves, 478; + dissent in Ogden _vs._ Saunders, insolvency laws and future + contracts, 481; + opinion in Craig _vs._ Missouri, State bills of credit, 510; + on Supreme Court and threats of disunion, 512, 513; + anticipates reaction in Supreme Court, 513, 514, 582, 584; + on proposed repeal of appellate jurisdiction, 514; + question of resignation, 519-21; + and homage of Philadelphia bar, 521; + Jackson's denial of authority of opinions, 530-32; + and Georgia-Cherokee contest, 542; + opinion in Cherokee Nation _vs._ Georgia, Indians not foreign + nation, 544-46; + rebukes Jackson's attitude toward contest, 546; + opinion in Worcester _vs._ Georgia, control over Indians, 549-51; + mandate ignored, 551; + opinions and Jackson's Nullification Proclamation, 562, 563; + on Story's article on statesmen, 577; + and Briscoe _vs._ Bank and New York _vs._ Miln, 583, 584 _n._, + 585 _n._; + in last term, 585; + last opinion, 585. + + _Characteristics, opinions and their development_: + idea of Union in early training, =1=, 9; + motto, 17; + filial and brotherly affection and care, 39, 196, =2=, 174, 175; + influence of early environment, =1=, 33, 41, 42; + poetry and novels, 41, =4=, 79, 80; + appearance at nineteen, =1=, 71; + at twenty-six, 151; + in middle age, =2=, 166-69; + fighter, =1=, 73; + humor, 73, =2=, 111, 146, 181, 182, =4=, 61, 62, 78, 82; + athletic ability, =1=, 73, 118, 132; + nickname, 74, 132; + first lessons on need of organization, 78; + influence of army experience, 89, 90, 100, 126, 145-47, 244, 420; + sociability, generosity, conviviality, 152, 180, 187, 188, + =2=, 102, 483, =4=, 78, 79; + as reader, =1=, 153; + book-buying, 184-86, =2=, 170; + negligent dress, =1=, 163, =4=, 61; + gossip, =1=, 182, 183; + as letter-writer, negligent of correspondence, 183 _n._, + =4=, 203 _n._; + and drinking, =1=, 186, =2=, 102 _n._, 332 _n._, =4=, 79; + sympathy, =1=, 188; + and wife's invalidism, 198, =4=, 66-71; + reverence for woman, =1=, 198, =4=, 71, 72; + handwriting, =1=, 211; + early self-confidence, 211; + influence of service in Legislature, 216, 223, 231, 232, 244; + growth of Nationalism, 223, 231, 240, 242-44, 286, 287, =2=, 77, + 91, =4=, 1, 55; + loses faith in democracy, =1=, 252, 254, 294, 302, =3=, 109, 265, + =4=, 4, 55, 93, 479-83, 488, 507; + characterized at Ratification Convention, =1=, 408, 409; + as speaker, 409 _n._, 420, =2=, 188, 464; + argument by questions, =1=, 457 _n._; + influence of Ratification, 479; + influence of French Revolution, =2=, 3, 4, 7-9, 20, 32, 34, 44; + preparation for Nationalistic leadership, 52; + integrity, 140, 563, =4=, 90; + effect on, of abuse of Washington, =2=, 163; + appreciation of own powers, 168; + and French language, 170 _n._, 219; + trust, 173; + diversions, 182-85, =4=, 66, 76-78; + La Rochefoucauld's analysis of character, =2=, 196, 197; + ambitiousness, 197; + indolence, 197, 483; + domesticity, 214, 215, 217, 219, 220, 231, 284-86, 369-71, + =4=, 461, 532; + love of theater, =2=, 217, 231; + influence of experiences in France, 287-89, =4=, 2, 3, 15, 125; + peacefulness, =2=, 369; + Sedgwick on character, 483, 484; + and popularity, 483; + good nature, 483, 484; + charm, 483, 484, 563, =4=, 81, 90; + independence, =2=, 484; + fearlessness, 484; + unappreciated masterfulness, 563; + and policy of isolation, =3=, 14 _n._; + light-heartedness, 102; + and honors, 271, =4=, 89; + appearance in maturity, =3=, 371; + and Burr contrasted, 371, 372; + on right of secession, 430; + impressiveness, 447; + prejudice-holding, =4=, 2; + denies right of expatriation, 53-55; + not learned, 60; + simplicity of daily life, 61-63; + marketing, 61; + deliberateness, 62; + fondness for children, 63; + interest in agriculture, 63; + habits of thought and writing, 64, 67, 169, 220, 290; + abstraction, 64, 85; + religion, 69-71; + life at Fairfax estate, 74; + kindness, 75; + conscientiousness, 76; + lack of personal enemies, 78; + dislike of Washington formal society, 83-85; + as conversationalist, 85; + portraits, 85 _n._, 522 _n._; + dislike of publicity, 89; + character in general, 90; + resemblance to Lincoln, 92, 93; + and imprisonment for debt, 215, 216; + Roane's tribute, 313; + and criticism, 321; + humanness, 321; + contrasted with Jackson, 466; + on uplift and labor problem, 471; + and slavery, 472-79; + and death of wife, tribute to her memory, 524-27; + country's esteem, 578, 581 _n._; + Story on green old age, 579; + on attitude toward Jefferson, 579, 580; + and Story's Commentaries and dedication to himself, 569, 576, + 580, 581; + on Nullification, 556-59, 562, 569-72, 574, 575; + despondent over state of country, 575-78; + tributes at death, 589-92; + hostile criticism, 591; + Story's verses on, 592, 593. + + Marshall, John, M.'s son, M. on, as baby, =2=, 370; + birth, 370 _n._, =4=, 73 _n._; + education, 73. + + Marshall, John, New England skipper, =4=, 223. + + Marshall, Judith, M.'s sister, birth, =1=, 38 _n._ + + Marshall, Louis, M.'s brother, birth, =1=, 56 _n._ + + Marshall, Lucy, M.'s sister, birth, =1=, 38 _n._; + marriage, 166 _n._; + M. helps, 197. + + Marshall, Martha, M.'s putative great-grandmother, =1=, 483. + + Marshall, Mary, M.'s aunt, =1=, 486. + + Marshall, Mary, M.'s sister, birth, =1=, 34 _n._ + + Marshall, Mary, M.'s daughter, Mrs. Jacquelin B. Harvie, + =3=, 192 _n._, =4=, 73; + birth, 73 _n._ + + Marshall, Mary Randolph (Keith), M.'s mother, + ancestry and parents, =1=, 10, 16-18; + education and character, 18, 19; + children, 19, 34, 38 _n._, 56 _n._ + + Marshall, Mary W. (Ambler), courtship, =1=, 148-54, 159, 160, 163; + marriage to M., 165, 166; + children, 179, 190, =2=, 370 _n._, 453, =4=, 73 _n._; + religion, =1=, 189 _n._, =4=, 69; + items in M.'s account book, =1=, 197; + invalid, M.'s devotion, 198, =2=, 371 _n._, =4=, 66-69; + independent means, 524 _n._; + death, M.'s tribute, 524-27. + + Marshall, Nancy, M.'s sister, birth, =1=, 56 _n._ + + Marshall, Peggy, M.'s aunt, =1=, 486. + + Marshall, Sarah, Mrs. Lovell, =1=, 485. + + Marshall, Susan, M.'s sister, birth, =1=, 56 _n._ + + Marshall, Thomas, M.'s putative great grandfather, =1=, 14; + will, 483, 484. + + Marshall, Thomas, father of M., and Washington, =1=, 7, 46; + and Braddock's expedition, 8; + similarity to Jefferson's father, 11; + birth, 13; + character, 19; + children, 19, 34, 38 _n._, 56 _n._; + as a frontiersman, 31; + settlement in Fauquier County, 33, 34; + migration to "The Hollow," 34-37; + appearance, 35; + slaves, 37 _n._; + education, 42; + and M., 42; + influence of Lord Fairfax, 47, 50; + offices, 51, 58 _n._, 170 _n._; + leases land, 51; + vestryman, 52; + acquires Oak Hill, 55; + in House of Burgesses, 58, 61, 64; + in Virginia Convention (1775), 65, 66; + prepares for war, 67; + major of minute-men, 69; + at battle of Great Bridge, 76, 77; + enters Continental service, 79; + in crossing of the Delaware, 91; + promotions, 95; + in Brandywine campaign, 95; + colonel of State Artillery, 96 _n._, 117 _n._; + source on military services, 148 _n._, 489; + not at surrender of Charleston, 148 _n._; + property, 166; + financial stress, moves to Kentucky, 167-69; + gives M. land, 186; + and M.'s election to Legislature, 202; + and M.'s election to Council of State, 209 _n._; + and British debts, 229, 231; + in Virginia Legislature from Kentucky, 229; + bequest from father, 485; + on Kentucky and National Government (1791), =2=, 68 _n._; + resignation as Supervisor of Revenue, on trials of office, 212 _n._, + 213 _n._; + M.'s visit to (1799), 421, 422. + + Marshall, Thomas, M.'s brother, birth, =1=, 34 _n._; + in Revolutionary army, 117 _n._ + + Marshall, Thomas, M.'s son, birth, =1=, 179 _n._, =4=, 73 _n._; + education, 73; + home, 74; + killed, 588. + + Marshall, William, putative great uncle of M., =1=, 12, 14, 483; + deed to M.'s grandfather, 487, 488. + + Marshall, William, M.'s uncle, =1=, 485. + + Marshall, William, M.'s brother, birth, =1=, 38 _n._; + and Chase impeachment, =3=, 176, 191, 192. + + Marshals, United States, plan to remove Federalist, =3=, 21; + conduct in sedition trials, 42. + + Martin, Luther, and Callender trial, =3=, 37; + in Federal Convention, on declaring acts void, 115 _n._; + counsel for Chase, 186; + career and character, 186 _n._, 187 _n._, 538 _n._; + argument, 201-06; + counsel for Swartwout and Bollmann, 348; + counsel for Burr, 407, 428; + security for Burr, 429 _n._; + on subpoena to Jefferson, 436, 437, 441, 451; + Jefferson's threat to arrest, 451; + on pardon for Bollmann, 452-54; + and confining of Burr, 474; + public hostility, 480 _n._; + on preliminary proof of overt act, 485; + intemperance, 501 _n._, 586 _n._; + on overt act, 501-04; + on the verdict, 513; + and Baltimore mob, 535-40; + Burr's friendship, 538 _n._; + counsel in Fletcher _vs._ Peck, 585, 586; + as practitioner before M., =4=, 95; + and Dartmouth College case, 238 _n._; + counsel in M'Culloch _vs._ Maryland, 284, 286. + + Martin, Philip, + sale of Fairfax estate, =2=, 203 _n._, =4=, 149, 150 _n._ + _See also_ Martin _vs._ Hunter's Lessee. + + Martin _vs._ Hunter's Lessee, early case, =2=, 206-08; + importance, =4=, 144, 166, 167; + M.'s connection with decision, 145, 153, 161, 164; + interest of M.'s brother in case, 145, 150, 153 _n._, 160; + Virginia's political organization, 146; + Hunter's grant, Fairfax's State case against it, 147; + Marshall syndicate compromise on Fairfax lands, 148; + compromise and Hunter's claim, 149, 150 _n._, 152, 157, 163; + decision for Hunter in State court, 151, 152; + Hunter's social position, 151 _n._; + appeal to Supreme Court involving treaties, 153; + Federal statute covering appeal, 153 _n._; + M. and similar North Carolina case, 154, 155; + Story's opinion, treaty protects Fairfax rights, 156; + Johnson's dissent, 157; + Virginia court denies right of Supreme Court to hear appeal, 157-60; + second appeal to Supreme Court, 160; + Story's opinion on right of appeal, 161-63; + M.'s private letter on appellate power, 164 _n._, 165 _n._; + Johnson's dissent on control over State courts, 165, 166. + + Martineau, Harriet, on M.'s attitude toward women, =4=, 72. + + Maryland, and Kentucky and Virginia Resolutions, =3=, 105 _n._; + tax on Bank of the United States, =4=, 207. + _See also_ Brown _vs._ Maryland; M'Culloch _vs._ Maryland. + + Mason, George, as statesman, =1=, 32; + in the Legislature, 203; + on character of post-Revolutionary Legislature, 205 _n._; + and amendment of Virginia Constitution (1784), 217; + and chancery bill (1787), 219; + on loose morals, 220; + and British debts, 229 _n._, 230 _n._, 231; + and Confederate navigation acts, 235; + and calling of Ratification Convention, 245; + in Ratification Convention: characterized, 369; + motion for detailed debate, 369; + and delay, 372; + on consolidated government, 382; + on conciliation, 383; + in the debate, 421-23, 435, 438-40, 445, 448, 467; + appeal to class hatred, 422, 439 _n._, 467; + denounces Randolph, 423; + fear of the Federal District, 438, 439; + on payment of public debt, 440, 441; + on Judiciary, 445-47; + on suppression of Clinton's letter, 478; + and M., =2=, 78; + in Federal Convention, on declaring acts void, =3=, 115 _n._; + and on obligation of contracts, 558 _n._ + + Mason, Jeremiah, as practitioner before M., =4=, 95; + counsel in Dartmouth College case, 233, 234, 250, 251; + fee and portrait, 255 _n._; + Bank controversy, 529. + + Mason, Jonathan, on X. Y. Z. dispatches, =2=, 338, 342; + in debate on repeal of Judiciary Act, =3=, 60. + + Mason, Stevens T., divulges Jay Treaty, =2=, 115, =3=, 63 _n._; + on Virginia and Jay Treaty, =2=, 151 _n._; + appearance, =3=, 62; + in debate on repeal of the Judiciary Act, 63-65. + + Masonry, M.'s interest, =1=, 187, =2=, 176; + first hall at Richmond, =1=, 188. + + Massac, Fort, Burr at, =3=, 294. + + Massachusetts, drinking in colonial, =1=, 23 _n._; + Shays's Rebellion, 298-303; + policy of Constitutionalists, 339; + character of opposition to Ratification, 339, 340, 344-47; + strength and standpoint of opposition, 344; + influence of Hancock, 347; + recommendatory amendments and Ratification, 348, 349; + soothing the opposition, 350-53; + question of bribery, 353 _n._, 354 _n._; + and Kentucky and Virginia Resolutions, =3=, 43, 105 _n._; + and Embargo, =4=, 12, 15, 17; + and War of 1812, 48 _n._; + and M'Culloch _vs._ Maryland, 334; + steamboat monopoly, 415; + Constitutional Convention (1820), 471. + + Massachusetts Historical Society, + makes M. a corresponding member, =3=, 271. + + Massie, Thomas, buys land from M.'s father, =1=, 168. + + Mattauer divorce case in Virginia, =2=, 55 _n._ + + Matthews, George, journey (1790), =3=, 55 _n._; + and Yazoo lands bill, 549-51. + + Matthews, Thomas, and chancery bill (1787), =1=, 219; + presides in Ratification Convention, 468. + + Maxwell, William, Brandywine campaign, =1=, 93. + + Mayo, John, defeat and duel, =2=, 515. + + Mazzei letter, =2=, 537 _n._, 538 _n._ + + Mead, Cowles, and Burr conspiracy, =3=, 362, 363. + + Meade, William, on drinking, =1=, 23; + on irreligion, 221 _n._; + on M.'s daily life, =4=, 63, 63 _n._, 69. + + Mellen, Prentice, on bankruptcy frauds, =4=, 202. + + Mercer, Charles F., on M., =4=, 489 _n._ + + Mercer, John, grand juror on Burr, =3=, 413 _n._ + + Mercer, John Francis, + in Federal Convention, on declaring acts void, =3=, 115 _n._ + + Meredith, Jonathan, counsel in Brown _vs._ + + Maryland, =4=, 455. + + Merlin de Douai, Philippe A., election to Directory, =2=, 243. + + Merry, Anthony, intrigue with Federalist Secessionists, =3=, 281; + and Burr, 287-90, 299. + + Mexican Association, =3=, 295. + + Mexico. _See_ Burr Conspiracy. + + Midnight appointments, =2=, 559-62; + ousted, =3=, 95. + + Milan Decree, =4=, 7. + + Military certificates, M. purchases, =1=, 184. + + Military titles, passion for, =1=, 327 _n._, 328 _n._ + + Militia, in the Revolution, =1=, 83-86, 100; + debate in Ratification Convention on efficiency, 393, 406 _n._; + on control, 435-38; + uniform in Virginia (1794), =2=, 104 _n._; + M. on unreliability, 404. + + Milledge, John, on Yazoo lands, =3=, 573 _n._ + + Miller, James, and Yazoo lands, =3=, 566 _n._ + + Miller, Stephen D., and Nullification, =4=, 555. + + "Millions for defense," origin of slogan, =2=, 348. + + Minor, Stephen, Spanish agent, and Burr conspiracy, =3=, 256, 329 _n._ + + Mirabeau, Comte de, on the Cincinnati, =1=, 293. + + Miranda, Francisco de, + plans, knowledge of Administration, =3=, 286, 300, 301, 306; + and Burr conspiracy, 306, 308; + Ogden-Smith trial, 436 _n._ + + Mississippi River, free navigation in Virginia debate on Ratification, + =1=, 399, 403, 411, 420, 430-32; + first steamboat =4=, 402, 402 _n._, 403 _n._; + steamboat monopoly, 402, 414. + + Mississippi Territory, powers of Governor, =2=, 446; + Burr, =3=, 362-68. + + Missouri. _See_ next title, and Craig _vs._ Missouri. + + Missouri Compromise, + Virginia resolutions against restriction, =4=, 325-29; + struggle and secession, 340-42. + + Mitchel _vs._ United States, M.'s last opinion, =4=, 585. + + Mitchell, Samuel L., votes to acquit Chase, =3=, 219, 220. + + Monarchy, fear, =1=, 290 _n._, 291, 334, 391, =2=, 383. + _See also_ Government. + + Money, varieties in circulation (1784), =1=, 218 _n._; + debased, 297; + scarcity (c. 1788), =2=, 60 _n._ + _See also_ Finances; Paper money. + + Monmouth campaign, =1=, 134-38. + + Monopoly, Bank of the United States as, =4=, 310, 311, 336, 338, 531. + + Monroe, James, Stirling's aide, =1=, 119; + and selling of land rights, 168; + and realizing on warrants, 181, 212; + and chancery bill (1787), 219; + and British debts, 229 _n._, 231; + use of cipher, 266 _n._; + in debate in Ratification Convention, 407, 408, 431; + candidacy for House (1789), =2=, 50 _n._; + on service in Legislature, 81 _n._; + on M.'s support of policy of neutrality, 98; + and M.'s integrity, 140; + as Minister to France, 144, 222, 224; + attack on Washington, 222; + and movement to impeach Justices, =3=, 59; + and J. Q. Adams, 541 _n._; + and M., =4=, 40; + report on St. Cloud Decree, 48; + M.'s review of it, 49, 50; + and Hay's pamphlet on impressment, 53; + and Martin _vs._ Hunter's Lessee, 160; + and second Bank of the United States, 180 _n._; + and internal improvements, 418 _n._; + in Virginia Constitutional Convention, 484; + conservatism there, 489. + + Montgomery, John, and Chase, =3=, 170; + as witness in Chase trial, 189 _n._ + + Moore, Albert, resigns Justiceship, =3=, 109 _n._ + + Moore, John B., on M. and international law, =4=, 117, 121 _n._ + + Moore, Richard C., at M.'s funeral, =4=, 589. + + Moore, Thomas, on Washington, =3=, 9. + + Moore, William, on election of Ratification delegates, =1=, 360. + + Moravians, during American Revolution, =1=, 110 _n._, 116. + + Morgan, Charles S., + in Virginia Constitutional Convention, =4=, 501 _n._ + + Morgan, George, and Burr conspiracy, =3=, 309, 465, 488. + + Morgan, James, votes for war, =4=, 29 _n._ + + Morrill, David L., resolution against dueling, =3=, 278 _n._ + + Morris, Gouverneur, and Ratification in Virginia, =1=, 401, 433; + on American and French revolutions, =2=, 2 _n._; + unfavorable reports of French Revolution, 6-9, 26 _n._, 248; + recall from French Mission, 221; + in debate on repeal of Judiciary Act, =3=, 60, 61, 65, 66, 70, 71; + Mason's sarcasm, 64; + on reporting debates, 67 _n._; + on Jefferson's pruriency, 90 _n._; + in Federal Convention, on declaring acts void, 115 _n._; + and on obligation of contracts, 557 _n._; + and Judiciary Act of 1789, 128; + on Napoleon, =4=, 2. + + Morris, Hester, marries J. M. Marshall, =2=, 203. + + Morris, Robert, as financial boss, =1=, 335; + as a peculator, 336; + and Ratification in Virginia, 401, 402 _n._; + and M., 401 _n._; + and Cabinet position, =2=, 63; + and M.'s purchase of Fairfax estate, 101, 203, 206, 209, 211; + and M.'s investments, 199, 200; + land speculation, 202, 205 _n._; + connection with M.'s family, 203; + and Judiciary Act of 1789, =3=, 129; + and Yazoo lands, 555. + + Morris, Thomas, in Judiciary debate (1802), =3=, 74 _n._ + + Morse, Jedediah, on secession, =3=, 152. + + Morton, Perez, and Yazoo claims, =3=, 576 _n._ + + Motto, M.'s, =1=, 17. + + Mumkins, Betsy, M.'s domestic, =1=, 190. + + Murch, Rachel, and Dartmouth College troubles, =4=, 226. + + Murdock, T. J., on Story and Dartmouth College case, =4=, 257 _n._ + + Murphey, Archibald D., on M.'s biography of Washington, =3=, 272. + + Murray, William Vans, + on Gerry in X. Y. Z. Mission, =2=, 258 _n._, 363; + on memorial of X. Y. Z. envoys, 309; + on M.'s views on Alien and Sedition Acts, 394, 406; + on M.'s election (1799), 419; + and reopening of French negotiations, 423; + on repeal of Judiciary Act, =3=, 94. + + Murrell, John, and Burr conspiracy, =3=, 362. + + Mutual Assurance Society of Virginia, M. and origin, =2=, 174. + + + Napoleon I., and 18th Fructidor, =2=, 230, 246; + Treaty of Campo Formio, 271; + and Talleyrand, 272; + reception in Paris (1797), 287, 288; + and American negotiations, 524; + and Burr, =3=, 537 _n._; + Morris on, =4=, 2; + decrees on neutral trade, 6; + and Embargo Act, 12 _n._; + pretended revocation of decrees, 26, 36-39, 48-50; + battle of Leipzig, 51; + and Fulton's steamboat experiments, 397. + + Napoleonic Wars, peace and resumption, =3=, 14; + and American politics, =4=, 2-5. + _See also_ Neutral trade. + + Nash, Thomas. _See_ Jonathan Robins case. + + Nashville, Burr at, =3=, 292, 296, 313. + + Nason, Samuel, and Ratification, =1=, 342, 345. + + Natchez, first steamboat, =4=, 403 _n._ + + _Natchez Press_, on M'Culloch _vs._ Maryland, =4=, 311 _n._ + + _National Gazette_, as Jefferson's organ, =2=, 81. + _See also_ Freneau. + + National Government, M. on start, =3=, 263. + + Nationalism, growth of M.'s idea, =1=, 223, 231, 232, 240, 242-44, + 286, 287, =2=, 77; + lack of popular conception under Confederation, =1=, 232, 285; + Washington's spirit during Confederation, 243; + fear of consolidation, 320, 375, 382, 388-390, 405, 433, =2=, 69; + fear of gradual consolidation, =1=, 446; + lesson of Ratification contest, 479; + influence of French Revolution on views, =2=, 42-44; + M. on origin of contest, 48; + made responsible for all discontents, 51-53; + M.'s use of "Nation," 441; + centralization as issue (1800), 520; + union with reaction, =3=, 48; + importance of M.'s Chief Justiceship to, 113; + M. on, as factor under Confederation, 259-61; + M. on Washington's, 259 _n._; + influence of Fletcher _vs._ Peck, 594, 602; + as M.'s purpose in life, =4=, 1, 55; + assertion in Embargo controversy, 12, 16; + Olmstead case, M.'s opinion, 18-21; + moves westward, 28; + M. on internal improvements and, 45; + M. as check to reaction against, 58; + and M.'s upholding of doubtful acts of Congress, 117-19; + of Story, 145; + in M'Culloch _vs._ Maryland, 292; + forces (c. 1821), 370; + original jurisdiction of National Courts, 386; + Randolph's denunciation in internal improvements contest, 419-21; + importance of Gibbons _vs._ Ogden, 429; + and tariff and overthrow of slavery, 536; + M.'s opinions and Webster's reply to Hayne, 552-55; + M. anticipates reaction in Supreme Court, 582, 584. + _See also_ Declaring acts void; Division of powers; Federalist + Party; Government; Implied powers; Kentucky Resolutions; + Marshall, John (_Chief Justice_); Nullification; Secession; + State Rights; Virginia Resolutions. + + Naturalization, Madison on uniform regulation, =1=, 312. + _See also_ Impressment. + + Navigation, power over, under commerce clause, =4=, 428, 432, 433. + + Navigation acts, proposed power for Confederation, =1=, 234, 235. + _See also_ Commerce. + + Navy, M. on need (1788), =1=, 419; + French War, =2=, 427; + M.'s support (1800), 531; + reduction, =3=, 458 _n._; + in War of 1812, =4=, 56; + immunity in foreign ports, 122-25. + + Naylor, William, on Virginia County Courts, =4=, 487. + + Necessary and proper powers. _See_ Implied powers. + + Negro seamen law of South Carolina, Johnson's opinion, =4=, 382, 383. + + Nelson, William, Jr., decision in Hunter _vs._ Fairfax, =4=, 148 _n._ + + Nereid case, neutral goods in enemy ship, =4=, 135-42. + + Netherlands, M. on political conditions (1797), =2=, 223-26. + + Neufchatel, François de, election to Directory, =2=, 243. + + Neutral trade, British seizures in 1793-94, =2=, 107; + question of war over, 108-12; + French depredations, 223, 224, 229, 257, 270, 271, 277, 283, 284, + 403, 496; + French rôle d'équipage, 294 _n._; + free ships, free goods, 303-05; + Spanish depredations, 496; + British depredations after Jay Treaty, 506; + Tench Coxe on them, 506 _n._; + M.'s protest on contraband, 509-11; + on paper blockade, 511; + on unfair judicial proceedings, 511, 512; + on impressment, 513; + moderation of French depredations, 523; + and new French treaty, 524 _n._; + renewal of British and French violations, =4=, 6-8, 122; + Non-Importation Act (1806), 9; + partisan attitude, 9-11; + Embargo, 11; + its effect, opposition, 12-16; + M.'s opinion, 14; + non-intercourse, 22; + Erskine incident, 22; + Jackson incident, 23-26; + Napoleon's pretended revocation of decrees, 26, 36-39, 48-50; + M.'s interpretation of Jefferson's acts, 118, 125; + _Nereid_ case, neutral property in enemy ship, 135-42. + _See also_ Jay Treaty; Neutrality. + + Neutrality, as Washington's great conception, =2=, 92; + proclamation, 93; + unpopularity, 93; + opposition of Jefferson and Republicans, 94, 95; + mercantile support, 94 _n._, 96; + constitutionality of proclamation, 95; + M.'s support, 97-99, 298-301, 387, 388, 402, 403, 507-09; + M.'s military enforcement, 103-06; + as issue in Virginia, 106; + J. Q. Adams on necessity, 119 _n._; + Federal common-law trials for violating, =3=, 24-29; + M.'s biography of Washington on policy, 264. + _See also_ Isolation; Neutral trade. + + New England, hardships of travel, =1=, 256; + type of pioneers (c. 1790), 276; + and excise on distilleries, =2=, 86 _n._; + and secession, =3=, 97; + escapes crisis of 1819, =4=, 170. + _See also_ States by name. + + New England Mississippi Company, Yazoo claims, =3=, 576-83, 595-602. + _See also_ Fletcher _vs._ Peck. + + New Hampshire, Ratification contest, =1=, 354, 355, 478; + and disestablishment, =4=, 227, 230 _n._; + denounces congressional salary advance (1816), 231 _n._; + Judiciary controversy, 229, 230; + steamboat monopoly, 415; + branch bank controversy, 529; + and Nullification, 559. + _See also_ Dartmouth College _vs._ Woodward. + + New Jersey, hardships of travel, =1=, 259; + and State tariff laws, 311; + Ratification, 325; + and Livingston steamboat monopoly, =4=, 403, 404. + _See also_ next title. + + New Jersey _vs._ Wilson, exemption of land from taxation and + obligation of contracts, =4=, 221-23. + + New Orleans, reception of Burr, =3=, 294, 295; + Wilkinson's reign of terror, 330-37; + battle, =4=, 56; + first steamboat, 403 _n._ + + New York, hardships of travel, =1=, 257; + Jefferson on social characteristics, 279; + and Kentucky and Virginia Resolutions, =3=, 105 _n._, 106; + bank investigation (1818), =4=, 184; + and M'Culloch _vs._ Maryland, 334. + _See also_ Gibbons _vs._ Ogden; Sturges _vs._ Crowninshield. + + New York City, Jacobin enthusiasm, =2=, 35. + _See also_ New York _vs._ Miln. + + _New York Evening Post_, on M.'s biography of Washington, =3=, 270; + on Adams's report on Burr Conspiracy, 544; + on Gibbons _vs._ Ogden, =4=, 445; + hostile criticism on M., 591. + + New York _vs._ Miln, facts, State regulation of immigration, =4=, 583; + division of Supreme Court on, 583, 584; + decision, proper police regulation, 584 _n._; + Story voices M.'s dissent, 584 _n._ + + Newspapers, character at period of Confederation, =1=, 267-70; + virulence, =2=, 529, =4=, 175 _n._; + development of influence, =3=, 10; + and first Bank of the United States, =4=, 175. + _See also_ Press. + + Nicholas, George, in the Legislature, =1=, 203; + citizen bill, 208; + and chancery bill (1787), 219; + and calling of Ratification Convention, 245; + on popular ignorance of draft Constitution, 320; + in Ratification Convention: characterized, 374; + in debate, 395, 421, 432, 440, 465, 471, 472; + assault on Henry, 466; + in contest over recommendatory amendments, 472. + + Nicholas, John, deserts Congress (1798), =2=, 340 _n._; + on the crisis (1799), 434; + in Jonathan Robins case, 475; + and reduction of army, 476; + and Judiciary Bill, 551. + + Nicholas, Wilson C., and M., =2=, 100; + sells land to Morris, 202 _n._; + and Kentucky Resolutions, 398, 398 _n._; + and Pickering impeachment, =3=, 167; + and Burr conspiracy, 381; + and grand jury on Burr, 410-12, 422. + + Nicholson, Joseph H., in Judiciary debate (1802), =3=, 89; + on bill on sessions of Supreme Court, 95; + and Chase impeachment, 170; + argument in Chase trial, 207-10; + and acquittal of Chase, 221; + releases Alexander, 343; + on Jefferson's popularity, 404. + + Nickname, M.'s, =1=, 74, 132. + + Nightingale, John C., and Yazoo lands, =3=, 566 _n._ + + Niles, Hezekiah, on banking chaos after War of 1812, =4=, 181 _n._, + 182, 183, 186 _n._, 192, 194, 196; + on bankruptcy frauds, 201; + on Sturges _vs._ Crowninshield, 218; + and Dartmouth College case, 276 _n._; + value of his _Register_, 309; + attack on M'Culloch _vs._ Maryland opinion, 309-12; + on Elkison case, 383, 384 _n._; + and Gibbons _vs._ Ogden, 445; + on Virginia and Nullification, 568, 572; + tribute to M., 590. + + Niles, Nathaniel, and Burr, =3=, 68 _n._; + and Dartmouth College troubles, =4=, 227; + Jefferson on, 227. + + _Niles' Register_, value, =4=, 309. + _See also_ Niles, Hezekiah. + + Nimmo, James, Cohens _vs._ Virginia, =4=, 345. + + Nobility, fear from Order of the Cincinnati, =1=, 292. + _See also_ Government. + + Non-Importation Act (1806), =4=, 9; + M. and constitutionality, 118. + _See also_ Neutral trade. + + Non-intercourse, act of 1809, =4=, 22; + Erskine incident, 22; + M. and constitutionality, 118; + South Carolina's proposed, with tariff States, 459, 538. + _See also_ Neutral trade. + + Norbonne, Philip, practitioner before M., =4=, 237 _n._ + + Norfolk, Va., Dunmore's burning, =1=, 78; + tribute to M., =4=, 592. + + North Carolina, hardships of travel, =1=, 263; + and State tariff acts, 311; + Granville heirs case, =4=, 154, 155; + tax on Bank of the United States, 207. + + North River Steamboat Co. _vs._ Livingston, =4=, 448-51. + + Norton, George F., and British debts, =1=, 226. + + Norton, J. K. N., M.'s books possessed by, =1=, 186 _n._; + acknowledgment to, =4=, 528 _n._ + + Nullification, first hints, =4=, 384; + M.'s rebukes, 389, 459, 513; + movement, 555; + M. on movement, 556, 557; + Madison on, 556; + Jackson's Union toast, 557; + and warning, 558; + M. on doctrine and progress, 558, 559, 562; + and Tariff of 1832, 559, 560; + Convention and Ordinance, 560, 561; + popular excitement, 561; + Jackson's Proclamation, its debt to M.'s opinions, 562, 563; + M. on it, 563; + South Carolina and the proclamation, Jackson's inconsistencies, + 564, 565; + military preparations, 566; + Jackson's recommendation of reduction of tariff, 567; + Virginia and mediation, M. on it, 567-73; + M. on Webster's speech against, 572; + suspension of ordinance, 573; + compromise Tariff, 574; + M. on virtual victory for, 574, 575; + M.'s resulting despondency on state of the country, 575-78. + _See also_ State Rights. + + + Oak Hill, acquired by M.'s father, =1=, 55; + as home for M.'s son, =4=, 74. + + Oakley, Thomas J., counsel in Gibbons _vs._ Ogden, =4=, 423, 424, 427. + + _Obiter dicta_, M.'s use, =4=, 121, 369. + + Obligation of contracts. _See_ Contracts. + + Occom, Samson, visit to England, =4=, 223. + + Office. _See_ Civil service. + + Ogden, Aaron, and Livingston steamboat monopoly, =4=, 409-411. + _See also_ Gibbons _vs._ Ogden. + + Ogden, David B., counsel in Sturges _vs._ Crowninshield, =4=, 209; + practitioner before M., 237 _n._; + fees, 345 _n._; + counsel in Cohens _vs._ Virginia, 346, 376. + + Ogden, George M. _See_ Ogden _vs._ Saunders. + + Ogden, Peter V., and Burr conspiracy, arrested, =3=, 333, 334. + + Ogden, Samuel G., trial, =3=, 436 _n._ + + Ogden _vs._ Saunders, obligation of future contracts not impaired by + insolvency laws, =4=, 480; + M.'s dissent, 481. + + Ohio, cession of Western Reserve, =2=, 446; + tax on Bank of the United States, =4=, 207, 328; + legislative denunciation of M'Culloch _vs._ Maryland, 330-33; + and New York steamboat monopoly, 415 _n._ + _See also_ Osborn _vs._ Bank. + + Ohio River, Burr and plan for canal, =3=, 291 _n._; + first steamboat, =4=, 403 _n._; + development of steam transportation, 416. + + Old Field Schools, =1=, 24. + + Olmstead case, State defiance of Federal mandate, =4=, 18-21. + + Opinions, M.'s rule on delivering, =3=, 16. + + Orange County, Va., minute men, =1=, 69. + + Oratory, court, and woman auditors, =4=, 133, 134. + + Orders in Council on neutral trade, =4=, 6, 7. + _See also_ Neutral trade. + + Orr, Thomas, Osborn _vs._ Bank, =4=, 329, 330. + + Orr _vs._ Hodgson, =4=, 165 _n._ + + Osborn, Ralph. _See_ Osborn _vs._ Bank. + + Osborn _vs._ Bank of the United States, facts, =4=, 327-30; + compromise proposed by Ohio, 332; + defiance of Ohio, 333; + argument, 385; + M.'s opinion, 385-94; + original jurisdiction of National Courts, 385-87; + and Eleventh Amendment, protection of Federal agents from State + agents, 387-91; + tax on business of bank void, 391, 392; + courts and execution of law, 392; + general satisfaction of parties on the record, 393; + Johnson's opinion, 394; + resulting attack on Supreme Court, 394-96; + Jackson denies authority, 530-32. + + Osmun, Benijah, and Burr, =3=, 365, 366. + + Oswald, Eleazer, and _Centinel_ letters, =1=, 335 _n._, 338; + and Ratification in Virginia, 402, 434, 435. + + Otis, Harrison Gray, and slavery (1800), =2=, 449; + on Washington streets (1815), =3=, 4; + on traveling conditions, 5 _n._; + on speculation, 557 _n._; + and Story, =4=, 98; + and bankruptcy laws, 201. + + Otsego, N.Y., conditions of travel (1790), =1=, 257. + + + Paine, Robert Treat, on X. Y. Z. Mission, =2=, 356. + + Paine, Thomas, on militia, =1=, 84; + relief bill, 213; + on government as an evil, 288; + popularity of _Common Sense_, 288 _n._; + on American and French revolutions, =2=, 2 _n._; + and key of the Bastille, 10; + _Rights of Man_, influence in United States, 12-14; + Jefferson's approbation, 14, 15, 16 _n._; + J. Q. Adams's reply, 15-19; + disapproves of excesses, 25 _n._, 27; + on the King and early revolution, 31 _n._; + on Republican Party and France, 223; + and X. Y. Z. Mission, 254. + + Palmer, William P., anecdote on M., =4=, 63 _n._ + + Paper money, depreciation and confusion during Revolution and + Confederation, =1=, 167, 168, 295-97; + counterfeiting, 297, =4=, 195; + post-bellum demand, =1=, 297, 299; + Continental, in debate on Ratification, 429, 440, 441; + and impairment of obligation of contracts, =3=, 557, 558 _n._, + =4=, 214; + flood and character of State bank bills, 176-79, 181, 184, 187, 192; + popular demand for more, 186, 199; + local issues, 187; + depreciation, 192; + endless chain of redemption with other paper, 193; + reforms by second Bank of the United States, 197-99. + _See also_ Briscoe _vs._ Bank; Craig _vs._ Missouri money. + + Paris, in 1797, =2=, 247. + + Parker, Richard E., verdict in Burr trial, =3=, 514. + + Parsons, Theophilus, Ratification amendments, =1=, 348. + + Parton, James, + on Administration's knowledge of Burr's plans, =3=, 318 _n._; + on Jefferson and trial of Burr, 390 _n._; + biography of Burr, 538 _n._ + + Partridge, George, accident, =3=, 55 _n._ + + "Party," as term of political reproach, =2=, 410 _n._ + + Paterson, William, and Chief Justiceship, =2=, 553; + charge to grand jury, =3=, 30 _n._; + sedition trials, 31, 32; + and declaring acts void, 117, 611, 612; + and Judiciary Act of, 1789, 128; + Ogden-Smith trial, 436 _n._ + + Paulding, James K., on M., =4=, 77. + + Pawles Hook, Lee's surprise, =1=, 142. + + Peace of 1783, and land titles, =4=, 147, 148, 153. + _See also_ British debts; Frontier posts; Slaves. + + Pearsall _vs._ Great Northern Railway, =4=, 279 _n._ + + Peck, Jedediah, trial, =3=, 42 _n._ + + Peck, John. _See_ Fletcher _vs._ Peck. + + Peele, W. J., on M., =4=, 66 _n._ + + Pegram, Edward, grand juror on Burr, =3=, 413 _n._ + + Pendleton, Edmund, as judge, =1=, 173; + on M.'s election to Council of State, 209; + candidacy for Ratification Convention, 359; + in the Convention: President, 368; + and impeachment of authority of Framers, 373; + characterized, 385; + on failure of Confederation, 386; + in debate, 427, 428, 445; + on Judiciary, 445. + + Pendleton, Nathaniel, and Yazoo lands, =3=, 549, 555. + + Pennsylvania, during the Revolution, =1=, 85; + hardships of travel, 258, 259; + Jefferson on social characteristics, 279; + tariff, 310 _n._, 311 _n._; + calling of Ratification Convention, 326; + election of delegates, 327-29; + precipitancy in Ratification Convention, 329-32; + address of minority, 333, 334, 342; + continued opposition after Ratification, 334-38; + and Kentucky and Virginia Resolutions, =3=, 105 _n._; + Olmstead case, =4=, 18-21; + legislative censure of M'Culloch _vs._ Maryland, 333. + + Pennsylvania, University of, honorary degree to M., =4=, 89. + + People, character of masses under Confederation, =1=, 253, 254; + community isolation, 264, =4=, 191; + responsible for failure of Confederation, =1=, 307; + basis of Federal Government, =4=, 292, 352. + _See also_ Democracy; Government; Nationalism. + + Perkins, Cyrus, and Dartmouth College case, =4=, 260 _n._ + + Perkins, Nicholas, and Burr conspiracy, =3=, 367-69, 372. + + Peters, Richard [1], and common-law jurisdiction, =3=, 25, 28 _n._; + sedition trial, 33; + impeachment contemplated, 172 _n._; + on United States and Napoleonic War, =4=, 6 _n._; + Olmstead case, 18-21; + death, 238 _n._ + + Peters, Richard [2], escort for M.'s body, =4=, 588. + + Phi Beta Kappa, M. as member, =1=, 158; + Jacobin opposition, =2=, 37. + + Philadelphia, march of Continental army through (1777), =1=, 92; + capture by British, 98-102; + during British occupation, 108-10; + Jacobin enthusiasm, =2=, 31; + luxury, 85 _n._; + and M.'s return from X. Y. Z. Mission, 344-51; + tributes to M. as Chief Justice, =4=, 521, 588. + + Philadelphia _Aurora_. _See_ _Aurora_. + + Philadelphia _Federal Gazette_, on Publicola papers, =2=, 19. + + Philadelphia _Gazette of the United States_. _See_ _Gazette_. + + Philadelphia _General Advertiser_, on French Revolution, =2=, 28 _n._; + on Neutrality Proclamation, 94 _n._ + + Philadelphia _Independent Gazette_, and Ratification, =1=, 328. + _Sec also_ Oswald. + + Philadelphia _National Gazette_. _See_ _National Gazette_. + + Philips, Josiah, attainder case, =1=, 393, 398, 411. + + Phillips, Isaac N., on treason, =3=, 403 _n._ + + Physick, Philip S., operates on M., =4=, 520; + and M.'s final illness, 587. + + Pichegru, Charles, and 18th Fructidor, =2=, 240, 241, 245 _n._ + + Pickering, John, impeachment, =3=, 111, 143, 164-68; + witnesses against, rewarded, 181. + + Pickering, Timothy, on hardships of travel, =1=, 257 _n._; + on Jefferson and Madison, =2=, 79; + and Gerry at Paris, 366, 369; + on M.'s views on Alien and Sedition Acts, 394; + on M.'s election (1799), 417; + on M. in Jonathan Robins case, 471; + dismissed by Adams, 486, 487; + _Aurora's_ attack, 489 _n._, 491 _n._; + on M. as his successor, 492; + on M. and Jefferson-Burr contest, 539; + and secession, =3=, 98, 151, 281, 289, =4=, 13 _n._, 30, 49; + on Giles, =3=, 159 _n._; + on impeachment programme, 160; + on Pickering impeachment, 168 _n._; + on Chase impeachment, 173; + at trial of Chase, 183 _n._; + on M.'s biography of Washington, 233; + on Adams's Burr Conspiracy report, 543 _n._; + as British partisan, =4=, 2 _n._; + on Embargo, 13, 14; + and M., 27, 473; + on election of 1812, 47; + and Story, 98; + and Story and Dartmouth College case, 257 _n._; + on Massachusetts Constitutional Convention (1820), 471; + on slavery, 473. + + Pickett, George, bank stock, =2=, 200. + + Pinckney, Charles, on campaign virulence (1800), =2=, 530; + reward for election services, =3=, 81 _n._; + in Federal Convention, on declaring acts void, 116 _n._ + + Pinckney, Charles C., + appointment to French mission, =2=, 145, 146, 223; + not received, 224; + at The Hague, 231; + accused of assisting Royalist conspiracy, 246 _n._; + and "millions for defense" slogan, 348; + toast to, 349 _n._; + candidacy (1800), 438; + Hamiltonian intrigue for, 517, 528 _n._, 529 _n._; + and Chief Justiceship, 553. + _See also_ Elections (1800); X. Y. Z. Mission. + + Pinckney, Thomas, on Gerry, =2=, 364. + + Pindall, James, on Bank of the United States, =4=, 289. + + Pinkney, William, Canning's letter, =4=, 23; + as practitioner before M., 95; + counsel in _Nereid_ case, 131, 140; + character, 131-33; + influence of woman auditors on oratory, 133, 134, 140 _n._; + Conkling's resemblance, 133 _n._; + M. on, 141, 287; + Story on _Nereid_ argument, 142 _n._; + counsel in Dartmouth College case, 259-61, 274; + counsel in M'Culloch _vs._ Maryland, 284; + argument, 287; + fees, 345 _n._; + argument in Cohens _vs._ Virginia, 346; + counsel in Gibbons _vs._ Ogden, 413; + death, 423. + + Pinto, Manuel, _Nereid_ case, =4=, 135. + + Piracy, M. on basis, =2=, 467. + + Pitt, William, and Burr, =3=, 289. + + Pittsburgh, first steamboat, =4=, 403 _n._ + + Platt, Jonas, opinion in Gibbons _vs._ Ogden, =4=, 412. + + Pleasants, James, grand juror on Burr, =2=, 413 _n._ + + Plumer, William, on Washington (1805), =3=, 6; + on drinking there, 9; + on Jefferson and popularity, 19 _n._; + on Bayard, 79 _n._; + on Randolph, 83 _n._; + on repeal of Judiciary Act, 93; + on Louisiana Purchase, 148 _n._, 150; + on Giles, 159 _n._; + on impeachment plan, 160; + on Pickering impeachment, 167 _n._, 168 _n._; + on Chase impeachment and trial, 171 _n._, 173, 179 _n._, 181 _n._, + 192 _n._, 205 _n._, 217 _n._, 220; + on Burr, 180, 182 _n._, 183 _n._, 219 _n._, 274 _n._, 279 _n._, 470; + on M. as witness, 196; + on not celebrating Washington's birthday, 210 _n._; + joins Republican Party, 222 _n._; + on M.'s biography of Washington, 269; + on Swartwout, 321 _n._, 333 _n._; + on Burr conspiracy, 338 _n._, 341; + on arrest of Bollmann, 343 _n._; + on Jefferson's personal rancor, 384 _n._; + on trial of Burr, 526; + on Adams's Burr conspiracy report, 543 _n._; + on Embargo and secession threats, =4=, 24 _n._; + on Federalists as aristocracy, 55; + Governor of New Hampshire, and Dartmouth College affairs, 230, 232. + + Pocket veto, Randolph on, as impeachable offense, =3=, 213. + + Poetry, M. and, =1=, 41, =4=, 79, 80. + + Police power, as offset to obligation of contracts, =4=, 279; + and commerce clause, 436, 437, 457, 459. + _See also_ New York _vs._ Miln. + + Politics, + machine in Virginia, =1=, 210, 217 _n._, =2=, 56 _n._, =4=, 146, + 147, 485-88; + share in Ratification in Virginia, =1=, 252, 356, 357, 381, 402; + Federal Constitution and parties, =2=, 75; + abuse, 396; + influence of newspapers, =3=, 10; + period of National egotism, 13; + effect of Republican rule, 15 _n._; + Randolph on government by, 464 _n._ + _See also_ Elections, Federalist Party; Republican Party. + + Poole, Simeon, testimony in Burr trial, =3=, 490. + + Poor whites of colonial Virginia, =1=, 27. + + Pope, John, M. and his poems, =1=, 44, 45. + + Pope, John, of Smith committee, =3=, 541 _n._ + + Popularity, Jefferson's desire, =3=, 19 _n._ + + Population, density (c. 1787), =1=, 264; + character of Washington, =3=, 8. + + Portraits of M., =4=, 85 _n._, 522 _n._ + + Posey, Thomas, and Ratification, =1=, 392 _n._ + + Potomac River, company for improvement, =1=, 217, 218. + + Potter, Henry, Granville heirs case, =4=, 154. + + Powell, Levin, slandered, =1=, 290 _n._; + on House's reply to Adams's address (1799), =2=, 434; + on M. in Jonathan Robins case, 475 _n._ + + Practice and evidence, M.'s opinion on, =3=, 18. + + Precedents, M.'s neglect of legal, =2=, 179, =4=, 409. + + Preparedness, M. on need, =1=, 414, 415, 437, =2=, 403, 476-80, 531; + ridiculed, =1=, 425; + utter lack (1794), =2=, 109. + _See also_ Army. + + Prescott, William, on Dartmouth College case, =4=, 275 _n._ + + President, Ratification debate on office and powers, =1=, 390, 442; + question of title, =2=, 36; + M. on, as sole organ of external relations, 470. + _See also_ Elections; Subpoena; and Presidents by name. + + Press, freedom of, Franklin on license, =1=, 268-70; + M. on liberty and excess, =2=, 329-31; + Martin on license, =3=, 204, 205. + _See also_ Alien and Sedition Acts; Newspapers. + + Prices, at Richmond (c. 1783), =1=, 177-81; + board in Washington (1801), =3=, 7. + + Priest, William, on speculation, =3=, 557. + + Princeton University, honorary degree to M., =4=, 89. + + Prisoners of war, treatment, =1=, 115. + + Privateering, Genêt's commissions, =2=, 28; + _Unicorn_ incident in Virginia, 103-06. + + Prize law, Amelia case, =3=, 16, 17. + _See also_ Admiralty; International law. + + Property, demand for equal division, =1=, 294, 298; + M.'s conservatism on rights, =4=, 479, 503. + + Prosperity, degree, at period of Confederation, =1=, 273, 274, 306. + + Public debt, problem under Confederation, =1=, 233-35; + unpopularity, 254; + spirit of repudiation, 295, 298, 299; + resources under Confederation, 306; + in Ratification debate, 396, 416, 425, 440; + funding and assumption of State debts, =2=, 59-64; + financial and political effects of funding, 64-68, 82, 85, 127. + _See also_ Debts; Finances; Paper money. + + Public lands, Jefferson on public virtue and, =1=, 316; + State claims, =3=, 553; + Foot resolution, =4=, 553 _n._ + _See also_ Yazoo; Land. + + Publicists, lawyers as, =4=, 135. + + Publicola papers, =2=, 15-18; + replies, 18, 19. + + Punch, recipe, =4=, 77. + + Punishments, cruel, =3=, 13 _n._ + + Putnam, ----, arrest in France, =2=, 283. + + + _Quarterly Review_, on insolvency frauds, =4=, 203 _n._ + + Quincy, Josiah, on Jefferson and popularity, =3=, 19 _n._; + on resolution against Minister Jackson, =4=, 24; + on admission of Louisiana and secession, =4=, 27; + and Localism, 28. + + Quoit (Barbecue) Club, M. as member, =2=, 182-85, =4=, 76-78; + memorial to M., 592. + + + Railroads, influence of Dartmouth College case and Gibbons _vs._ Ogden + on development, =4=, 276, 277, 446. + + Raleigh, M. on circuit at, =3=, 101, 102, =4=, 65, 66. + + Rambouillet Decree, =4=, 122. + + Ramsay, David, biography of Washington, =3=, 225 _n._ + + Ramsay, Dennis, Marbury _vs._ Madison, =3=, 110. + + Randall, Benjamin, in Ratification Convention, =1=, 340. + + Randall, Henry S., on M. as Secretary of State, =2=, 494; + on M., =4=, 154. + + Randolph, David M., as witness in Chase trial, =3=, 191, 192. + + Randolph, Edmund, ancestry, =1=, 10; + as lawyer, 173; + transfers practice to M., 190; + Hite _vs._ Fairfax, 191, 192; + in the Legislature, 203; + importance of attitude on Ratification, 360-63, 378-82; + secret intention to support it, 363; + in the Convention: characterized, 376; + disclosure of support of Ratification, 376-79; + suppresses Clinton's letter, 379-81, 477; + effect on reputation, 382; + ascription of motives, in Washington's Cabinet, 382 _n._; + in Convention debate, 392, 393, 397, 406, 461, 470; + and Philips case, 393 _n._; + personal explanations, 393 _n._, 476; + Henry on change of front, 398; + answers Henry's taunt, 406; + Mason's denunciation, 423; + on Fairfax grants, 458 _n._; + on opposition after Ratification, =2=, 46 _n._; + and first amendments, 59; + Fauchet incident, resignation from Cabinet, 146, 147; + on Richmond meeting on Jay Treaty, 151, 152; + as orator, 195; + on weakness of Supreme Court, =3=, 121 _n._; + counsel for Burr, 407; + on motion to commit Burr for treason, 417; + on subpoena to Jefferson, 440, 441; + on overt act, 494. + + Randolph, George, ancestry, =1=, 10. + + Randolph, Isham, =1=, 10. + + Randolph, Jacob, operates on M., =4=, 522. + + Randolph, Jane, =1=, 10, 11. + + Randolph, John, of Roanoke, ancestry, =1=, 10; + insult by army officers, =2=, 446; + debate with M. on Marine Corps, 447, 448; + in Jonathan Robins case, 474; + appearance, =3=, 83; + as House leader, 83 _n._; + in Judiciary debate (1802), 84-87; + manager of Chase impeachment, 171; + and articles of impeachment, 172; + break with Jefferson over Yazoo frauds, 174; + opening speech at Chase trial, 187-89; + references to M., political significance, 187, 188, 214-16; + examination of M. at trial, 194; + conferences with Giles, 197; + argument, 212-16; + and acquittal, 220; + duelist, 278 _n._; + and Burr conspiracy, 339; + and Eaton's claim, 345 _n._; + on Wilkinson's conduct, 359, 464; + on Burr as military captive, 369; + and removal of judges on address, 389 _n._; + grand juror on Burr, 413; + on government by politics, 464 _n._; + and _Chesapeake-Leopard_ affair, 476; + and Yazoo frauds, 566, 575, 577-79, 581, 595, 596, 600; + on Localism, =4=, 191; + on dangers in M.'s Nationalist opinions, 309, 420; + in debate on Supreme Court (1824), 395; + on internal improvements and Nationalism, 419-21; + absorption in politics, 461; + Clay duel, 463 _n._; + in Virginia Constitutional Convention, 484; + on M. in convention, 489 _n._ + + Randolph, Mary (Isham), descendants, =1=, 10. + + Randolph, Mary Isham, =1=, 10. + + Randolph, Peyton, and Henry's Stamp-Act Resolutions, =1=, 64. + + Randolph, Richard, of Curels, estate, =1=, 20 _n._ + + Randolph, Susan, on Jefferson and Rebecca Burwell, =1=, 150 _n._ + + Randolph, Thomas, =1=, 10. + + Randolph, Thomas M., on Jay Treaty resolutions in Virginia + Legislature, =2=, 134, 135, 137. + + Randolph, William, descendants, =1=, 10. + + Randolph, William, and Peter Jefferson, =1=, 12 _n._ + + Randolph family, origin and characteristics, =1=, 10, 11. + + Rappahannock County, Va., loyal celebration, =1=, 23 _n._ + + Ratification, opposition in Virginia, =1=, 242; + contest over call of Virginia Convention, previous amendment + question, 245-48; + effort for second framing convention, 248, 317, 355, 362, 379-81; + practical politics in, 252, 356, 357, 381, 402; + economic division, 312; + division in Virginia, 317; + importance of Virginia's action, 318, 358, 359; + gathering of Virginia delegates, 319; + popular ignorance of draft Constitution, 320, 345, 354; + popular idea of consolidated government, 320; + popular majority against, 321, 322, 356, 391, 469, =4=, 554 _n._; + Virginia Convention as first real debate, =1=, 322, 323, 329, 355; + influence of revolutionary action of Framers, 323-25, 373, 425; + unimportance of action of four early States, 325; + calling of Pennsylvania Convention, 326; + election there, 327-29; + Pennsylvania Convention, precipitancy, 329-32; + address of Pennsylvania minority, 333, 334, 342; + post-convention opposition in Pennsylvania, 334-38; + policy of Constitutionalists in Massachusetts, 339; + character of opposition there, 339, 340, 344-47; + election there, 340; + general distrust as basis of opposition, 340, 347, 356, 371, 372, + 422, 428, 429 _n._, 439 _n._, 467; + condensed argument for, 343; + and Shays's Rebellion, 343; + strength and standpoint of Massachusetts opposition, 344; + influence of Hancock, 347; + Massachusetts recommendatory amendments and ratification, 348, 349; + soothing the opposition there, 350-53; + question of bribery in Massachusetts, 353 _n._, 354 _n._; + contest in New Hampshire, adjournment, 354, 355; + character of Virginia Convention, 356, 367; + effect of previous, on Virginia, 356, 399; + election of delegates in Virginia, 359-67; + importance and uncertainty of Randolph's attitude, 360-64, 378-82; + M.'s candidacy, 364; + campaign for opposition delegates, 365-67; + opposition of leaders in State politics, 366 _n._; + maneuvers of Constitutionalists, 367, 374, 384, 385, 392; + officers, 368, 432; + tactical mistakes of opposition, 368, 383; + detailed debate as a Constitutionalist victory, 369-72, 432; + characterizations, 369, 373-76, 385, 387, 394, 396, 408, 420, 423, + 465, 473; + attempts at delay, 372, 434, 461, 462; + authority of Framers, 373, 375; + Nicholas's opening for Constitutionalists, 374; + Henry's opening for opposition, 375; + disclosure of Randolph's support, 376-79; + organization of Anti-Constitutionalists, 379, 434; + Clinton's letter for a second Federal Convention, Randolph's + suppression of it, 379, 477, =2=, 49 _n._; + Mason's speeches, =1=, 382, 383, 421-23, 438, 439, 446-48, 467; + untactful offer on "conciliation," 383; + prospects, ascendancy of opposition, 384, 433-35, 442; + influences on Kentucky delegates, navigation of Mississippi River, + 384, 403, 411, 420, 430-32, 434, 443; + Pendleton's speeches, 385-87, 427, 428; + Lee's speeches, 387, 406, 423, 467; + Henry's speeches, 388-92, 397-400, 403-06, 428, 433, 435, 440, 441, + 449, 464, 469-71; + Federal Government as alien, 389, 399, 428, 439 _n._; + Randolph's later speeches, 392, 393, 397, 406; + Madison's speeches, 394, 395, 397, 421, 428, 430, 440, 442, 449; + Nicholas's later speeches, 395, 421, 432; + Corbin's speech, 396; + political managers from other States, 401, 402, 435; + question of use of money in Virginia, 402 _n._; + demand for previous amendment, 405, 412, 418, 423, 428; + Monroe's speech, 407, 408; + inattention to debate, 408; + M.'s social influence, 409; + M.'s speeches, 409-20, 436-38, 450-61; + Harrison's speech, 421; + Grayson's speech, 424-27; + slight attention to economic questions, 429 _n._, 441 _n._; + and Bill of Rights, 439; + slavery question, 440; + payment of public debt, 440; + British debts, 441; + executive powers, 442; + Judiciary debate, 449-61, 464; + Anti-Constitutionalists and appeal to Legislature, 462, 463, 468; + assault on Henry's land speculations, 465-67; + threats of forcible resistance, 467, 478; + contest over recommendatory amendments, 475; + vote, 475; + Washington's influence, 476; + other personal influences, 476 _n._; + and fear of Indians, 476; + character of Virginia amendments, 477; + influence of success in New Hampshire, 478; + Jefferson's stand on amendments, 478; + influence on M., 479; + as a preliminary contest, 479, =2=, 45, 46; + attempt of Virginia Legislature to undo, 48-51; + Virginia reservations, =4=, 324 _n._ + + Rattlesnakes, as medicine, =1=, 172. + + Ravara, Joseph, trial, =3=, 24. + + Rawle, William, escort for M.'s body, =4=, 588. + + Read, George, and Judiciary Act of 1789, =3=, 129. + + _Rebecca Henry_ incident, =2=, 496. + + Reed, George, as witness in Chase trial, =3=, 189 _n._ + + Reeves, John, and Burr, =3=, 537 _n._ + + Reeves, Tapping, on Louisiana Purchase, =3=, 150. + + Reid, Robert R., on Missouri question, =4=, 341. + + Religion, state in Virginia (1783), =1=, 220, 221; + conditions in Washington, =3=, 6; + revival, 7 _n._; + M.'s attitude, =4=, 69-71; + frontier, 189 _n._; + troubles and disestablishment in New Hampshire, 226, 227. + _See also_ next titles. + + Religious freedom, controversy in Virginia, =1=, 221, 222. + + Religious tests, debate during Ratification, =1=, 346. + + Representation, basis in Virginia, =1=, 217 _n._; + debate on slave, in Virginia Constitutional Convention (1830), + =4=, 501-07. + + Republican Party, + Jefferson's development, =2=, 46, 74-76, 81-83, 91, 96; + as defender of the Constitution, 88 _n._; + assaults on Neutrality Proclamation, 95; + economic basis, 125 _n._; + and French Revolution, 131 _n._, 223; + and X. Y. Z. dispatches, 336-42, 355, 358-63; + M. on motives in attack on Alien and Sedition Acts, 394, 407; + issues in 1798, 410; + and name "Democratic," 439 _n._, =3=, 234 _n._; + Federalist forebodings (1801), 11-15; + social effects of rule, 15 _n._; + plans against Judiciary, cause, 19-22, 48; + union of democracy and State Rights, 48; + Chase's denunciations, 169, 170, 206; + and M.'s biography of Washington, 228-30; + treatment in biography, 256, 259-61; + Justices as apostates, 317, 358, 359, 444. + _See also_ Congress; Elections; Jefferson, Thomas; State Rights. + + Republicans, name for Anti-Constitutionalists (1788), =1=, 379. + + Repudiation, spirit, =1=, 294, 295, 298, 299. + _See also_ Debts. + + Requisitions, failure, =1=, 232, 304, 305, 413; + proposed new basis of apportionment, 234, 235. + + Rhoad, John, Juror, =3=, 35. + + Rhode Island, declaration of independence, =3=, 118 _n._ + + Richardson, William M., votes for war, =4=, 29 _n._; + opinion in Dartmouth College case, 234-36. + + Richmond, Va., social and economic life (1780-86), =1=, 176-90; + in 1780, 165, 171-73; + hospitality, 183; + M. City Recorder, 188; + fire (1787), 190, =2=, 172; + meeting on Jay Treaty, 149-55; + growth, 172; + Quoit Club, 182-85, =4=, 76-78, 592; + reception of M. on return from France, =2=, 352-54; + M.'s reply to address, 571-73; + later social life, =3=, 394; + Vigilance Committee, =4=, 41 _n._; + M.'s lawyer dinners, 78, 79; + city currency, 187; + and Jackson's veto of River and Harbor Bill (1832), 534; + M.'s funeral, 588; + tributes to him, 589. + + _Richmond Enquirer_, on M. and Burr at Wickham's dinner, =3=, 396; + and subpoena to Jefferson, 450; + attack on M. during Burr trial, 532-35; + on Yazoo claims, 581; + attack on M'Culloch _vs._ Maryland, =4=, 312-17, 323; + tribute to M., 589. + _See also_ Ritchie, Thomas. + + _Richmond Examiner_, attacks on M. (1801), =2=, 542, 543 _n._ + + Richmond Light Infantry Blues, punch, =4=, 78 _n._ + + Richmond Society for Promotion of Agriculture, M.'s interest, =4=, 63. + + _Richmond Whig and Advertiser_, on M. and election of 1828, =4=, 463; + tribute to M., 589. + + Ritchie, Thomas, Council of State as his machine, =1=, 210; + and trial of Burr, =3=, 450; + on Federalists as traitors, =4=, 10 _n._; + control over Virginia politics, 146; + and first Bank of the United States, 174; + attack on M'Culloch _vs._ Maryland, 309; + and Taylor's attack on M.'s opinions, 335, 339; + attack on Cohens _vs._ Virginia, 358. + _See also_ _Richmond Enquirer_. + + Rittenhouse, David, Olmstead case, =4=, 19. + + River and Harbor Bill, Jackson's pocket veto, =4=, 534. + + River navigation, steamboat and internal improvements, =4=, 415-17. + + Roads. _See_ Communication. + + Roane, Spencer, as judge, =1=, 173; + Council of State as his machine, 210; + Anti-Constitutionalist attack on Randolph (1787), 361 _n._; + accuses M. of hypocrisy, =2=, 140; + and Chief Justiceship, =3=, 20, 113, 178; + and Nationalism, 114; + M.'s enemy, =4=, 78; + and M.'s integrity, 90 _n._; + and Livingston _vs._ Jefferson, 111; + control of Virginia politics, 146; + decision in Hunter _vs._ Fairfax's Devises, 148, 152; + denies right of Supreme Court to hear case, 157, 160; + and first Bank of the United States, 174; + attack on M'Culloch _vs._ Maryland, 309, 313-17, 323; + inconsistent purchase of Bank stock, 317; + tribute to M., 313; + M.'s reply to attack, 318-23; + attack on Cohens _vs._ Virginia, 358, 359; + M. on it, 359, 360; + and amendment on Judiciary, 371, 378. + + Robertson, David, report of Virginia Ratification debates, =1=, 368; + stenographer and linguist, =3=, 408. + + Robin, M.'s servant, =4=, 525 _n._ + + Robins, Jonathan. _See_ Jonathan Robins case. + + Robinson, John, loan-office bill and defalcations, =1=, 60. + + Rodney, Cæsar A., and Marbury _vs._ Madison, =3=, 154 _n._; + argument in Chase trial, 210-12; + and holding of Swartwout and Bollmann, 345, 349 _n._; + and trial of Burr, 390. + + Rodney, Thomas, and Burr, =3=, 365. + + Rôle d'équipage, + and French depredations on neutral trade, =2=, 294 _n._ + + Ronald, William, as lawyer, =1=, 173; + in Virginia Ratification Convention, 472; + Ware _vs._ Hylton, =2=, 188. + + Roosevelt, Nicholas J., and steamboat experiments, =4=, 400; + and steamboat navigation of the Mississippi, 402, 402 _n._, 403 _n._ + + Roosevelt, Theodore, on British naval power, =4=, 7 _n._; + on impressment, 8 _n._ + + Ross, James, and Disputed Elections Bill, =2=, 453. + + Rowan, John, on Green _vs._ Biddle, =4=, 381; + on Supreme Court, 453. + + Rush, Benjamin, Conway Cabal, =1=, 121-23. + + Rutgers _vs._ Waddington, =3=, 612. + + Rutledge, Edward, on spirit of repudiation, =1=, 307. + + Rutledge, John [1], and Supreme Court, =3=, 121 _n._; + in Federal Convention, on obligation of contracts, 558 _n._ + + Rutledge, John [2], and slavery, =2=, 449: + on Judiciary Bill (1801), 550; + on French treaty, 525 _n._; + in Judiciary debate (1802), =3=, 87-89; + as British partisan, =4=, 5. + + + S. (? Samuel Nason), and Ratification, =1=, 342. + + St. Cloud Decree, =4=, 36-39, 48-50. + + St. Tammany's feast at Richmond, =1=, 189. + + Salaries, Federal (1800), =2=, 539 _n._ + + _Sandwich_ incident, =2=, 496. + + Sanford, Nathan, + opinion on steamboat monopoly and interstate commerce, =4=, 448. + + Sanford, Me., and Ratification, =1=, 342. + + Santo Domingo, + influence in United States of negro insurrection, =2=, 20-22. + + Sargent, Nathan, on esteem of M., =4=, 581 _n._ + + Saunders, John. _See_ Ogden _vs._ Saunders. + + Savage, John, opinion on steamboat monopoly, =4=, 449. + + _Savannah Gazette_, on Yazoo frauds, =3=, 561. + + Schmidt, Gustavus, on M. as a lawyer, =2=, 178. + + Schoepf, Johann D., on Virginia social conditions, =1=, 21 _n._; + on irreligion in Virginia, 221 _n._; + on shiftlessness, 278. + + Schuyler, Philip, dissatisfaction, =1=, 86; + and Burr, =3=, 277 _n._ + + Scott, John, in Virginia Constitutional Convention, =4=, 490. + + Scott, John B., and Yazoo lands, =3=, 566 _n._ + + Scott, Joseph, and Burr conspiracy, =3=, 370. + + Scott, Sir Walter, and Burr, =3=, 537 _n._ + + Scott, Sir William, on slave trade and law of nations, =4=, 477. + + Scott, Winfield, on irreligion in Washington, =3=, 7; + on Jefferson and trial of Burr, 406; + and Nullification, =4=, 566; + escort for M.'s body, 588. + + Secession, Federalist threats over assault on Judiciary (1802), + =3=, 73, 82, 89, 93, 97, 98, 151; + Louisiana Purchase and threats, 150; + and Chase trial, 217; + New England Federalist plots and Burr, 281, 298; + Merry's intrigue, 281, 288; + sentiment in West, 282, 297, 299; + of New England thought possible, 283; + Burr and Merry, 288-90; + no proposals in Burr's conferences, 292, 297, 303, 312; + rumors of Burr's purpose, Spanish source, 296, 299, 315; + Burr denies such plans, 316, 318 _n._, 319, 326; + M. and Tucker on right, 430; + threats over neutral trade controversy, =4=, 13 _n._, 15, 17, 25; + M.'s rebuke, 17; + and admission of Louisiana, 27; + War of 1812 and threats, 30; + Hartford Convention, 51; + threats in attacks on M.'s Nationalist opinions, 314, 326, 338, 339, + 381; + and Missouri struggle, 340-42; + M. on resistance to, 352, 353; + Jefferson's later threats, 368, 539; + South Carolina threat over Elkison case, 382; + threat on internal improvement policy, 421; + M. on Supreme Court and threats, 512, 513. + _See also_ Nationalism; Nullification; State Rights. + + Secretary of State, M. and (1795), =2=, 147; + M.'s appointment, 486, 489-93; + M. remains after Chief Justiceship, 558. + + Secretary of War, M. declines, =2=, 485. + + Sedgwick, Theodore, and M. (1796), =2=, 198; + on effect of X. Y. Z. dispatches, 341; + on Gerry, 364; + on M.'s views on Alien and Sedition Acts, 391, 394, 406; + on M.'s election (1799), 417; + on M.'s importance to Federalists in Congress, 432; + on M. and Disputed Elections Bill, 457, 458; + on results of session (1800), 482; + on M. as man and legislator, 483, 484; + on M.'s efforts for harmony, 527; + on Republican rule, =3=, 12; + on plans against Judiciary, 22; + on repeal of Judiciary Act, 94; + and secession, 97; + on Burr, 279 _n._ + + Sedition Act. _See_ Alien and Sedition Acts. + + Senate, arguments on, during Ratification, =1=, 345; + opposition to secrecy, =2=, 57. + _See also_ Congress. + + Separation of powers, + M. on limitation to judicial powers, =2=, 468-70; + incidental executive exercise of judicial powers, 470; + M. on legislative reversal of judicial decisions, =3=, 177, 178. + _See also_ Declaring acts void. + + Sergeant, John, counsel in Osborn _vs._ Bank, =4=, 385; + and in Cherokee Nation _vs._ Georgia, 541, 544, 547; + and in Worcester _vs._ Georgia, 549; + escort for M.'s body, 588. + + Sergeant, Thomas, practitioner before M., =4=, 237 _n._ + + Sewall, David, on demagoguery, =1=, 290 _n._; + on Ratification contest, 341. + + Seward, Anna, as Philadelphia belle, =1=, 100. + + Sewell, T., and French War, =2=, 424. + + Shannon, Richard C., witness against Pickering, reward, =3=, 181 _n._ + + Shays's Rebellion, M. on causes, =1=, 298, 299, =3=, 262 _n._; + taxation not the cause, =1=, 299, 300; + effect on statesmen, 300-02; + Jefferson's defense, 302-04; + as phase of a general movement, 300 _n._; + and Ratification, 343. + + Shephard, Alexander, grand juror on Burr, =3=, 413 _n._ + + Shepperd, John, and Yazoo lands act, =3=, 547. + + Sherburne, John S., witness against Pickering, reward, =3=, 181 _n._ + + Sherman, Roger, and Judiciary Act of 1789, =3=, 129; + on obligation of contracts, 558 _n._ + + Shippen, Margaret, as Philadelphia belle, =1=, 109. + + Shirley, John M., work on Dartmouth College case, =4=, 258 _n._ + + Short, Payton, at William and Mary, =1=, 159. + + Short, William, at William and Mary, =1=, 159; + on French Revolution, =2=, 24; + Jefferson's admonitions, 25, 26; + on Lafayette, 34 _n._ + + "Silver Heels," M.'s nickname, =1=, 74, 132. + + Simcoe, John G., and frontier posts, =2=, 111. + + Sims, Thomas, on slander on Powell, =1=, 290 _n._ + + Singletary, Amos, in Ratification Convention, =1=, 344, 346. + + Skipwith, Fulwar, on X. Y. Z. Mission, =2=, 336; + on probable war, 358. + + Slaughter, Philip, on M. at Valley Forge, =1=, 117, 118. + + Slave representation, + debate in Virginia Constitutional Convention (1830), =4=, 501-07. + + Slave trade, Northern defense (1800), =2=, 449; + act against engaging in, 482; + M. on international recognition, =4=, 476, 477. + + Slavery, effect in colonial Virginia, =1=, 20-22; + in debate on Ratification, 440; + attitude of Congress (1800), =2=, 449; + acquiescence in, =3=, 13 _n._; + Nationalism and overthrow, =4=, 370, 420, 536; + M.'s attitude, 472-79. + _See also_ adjoining titles; and Missouri Compromise. + + Slaves, of M.'s father, =1=, 37 _n._; + owned by M., 167, 180; + Jefferson's debts for, 224 _n._; + provision in Peace of 1783, controversy, 230, =2=, 108, 114, + 121 _n._; + in Washington (1801), =3=, 8; + common carriers and transportation, =4=, 478. + + Sloan, James, and attempt to suspend habeas corpus (1807), =3=, 348. + + Smallpox, in Revolutionary army, =1=, 87; + inoculation against, 162. + + Smallwood, William, in Philadelphia campaign, =1=, 100. + + Smilie, John, in Ratification Convention, =1=, 330. + + Smith, Ann (Marshall), =1=, 485. + + Smith, Augustine, M.'s uncle, =1=, 485. + + Smith, Israel, of New York, in Burr conspiracy, =3=, 466 _n._, 491. + + Smith, Senator Israel, of Vermont, + and impeachment of Chase, =3=, 158, 159; + votes to acquit, 219, 220. + + Smith, Jeremiah, on Republican hate of M., =3=, 161; + counsel in Dartmouth College case, =4=, 233, 234, 250; + fee and portrait, 255 _n._; + on M.'s decline, 586. + + Smith, John, M.'s uncle, =1=, 485. + + Smith, John, of New York, votes to acquit Chase, =3=, 219, 220. + + Smith, John, of Ohio, votes to acquit Chase, =3=, 219; + and Burr conspiracy, 291, 312; + Wilkinson's letter to, 314; + and rumor of disunion plan, 316, 319; + indicted for treason, 466 _n._; + _nolle prosequi_, 524, 541 _n._; + attempt to expel from Senate, 540-44. + + Smith, John Blair, + on Henry in campaign for Ratification delegates, =1=, 365. + + Smith, John Cotton, and Eaton's report on Burr's plans, =3=, 305 _n._ + + Smith, Jonathan, in Ratification Convention, =1=, 347. + + Smith, Lize (Marshall), =1=, 485. + + Smith, Melancthon, on prosperity during Confederation, =1=, 306; + on revolutionary action of Framers, 324. + + Smith, R. Barnwell, on Nullification, =4=, 560. + + Smith, Robert, dismissal, =4=, 34; + vindication, and M., 35. + + Smith, Sam, on English interest in Ratification, =1=, 313. + + Smith, Samuel, on Pickering impeachment, =3=, 167; + votes to acquit Chase, 220; + and attempt to suspend habeas corpus (1807), 347; + and Ogden-Smith trial, 436 _n._; + of committee on expulsion of Smith of Ohio, 541 _n._ + + Smith, Samuel H., on drinking at Washington, =3=, 10 _n._ + + Smith, Mrs. Samuel H., on Washington social life (1805), =3=, 8 _n._; + on Pinkney in court, =4=, 134. + + Smith, Thomas M., anecdote of M., =4=, 83 _n._ + + Smith, Judge William, of Georgia, and Yazoo lands, =3=, 549. + + Smith, Representative William, of South Carolina, + on French agents in United States (1797), =2=, 281; + on travel (1790), =3=, 55 _n._ + + Smith, Senator William, of South Carolina, on Missouri question, + =4=, 341. + + Smith, William S., trial, =3=, 436 _n._ + + Smith _vs._ Maryland, =4=, 165 _n._ + + Sneyd, Honora, as Philadelphia belle, =1=, 109. + + Snowden, Edgar, oration on M., =4=, 592. + + Soane, Henry, =1=, 11 _n._ + + Social conditions, in later colonial Virginia, =1=, 19-28; + drinking, 23, 156 _n._, 186 _n._, 281-83, =2=, 86, 102 _n._, =3=, 9, + 400, 501 _n._, =4=, 189 _n._; + qualities and influence of backwoodsmen, =1=, 28-31, 235, 236, + 274-77; + frontier life, 39-41, 53, 54 _n._, =4=, 188-90; + dress, =1=, 59, 200, 208, =3=, 396, 397; + Richmond in 1780, =1=, 165; + degree of prosperity at period of Confederation, 273, 274; + classes in Virginia, 277, 278; + Jefferson on sectional characteristics, 278-80; + contrasts of elegance, 280; + food and houses, 280, 281; + amusements, 283; + Washington boarding-houses, =3=, 7; + lack of equality (1803), 13; + state then, 13 _n._; + advance under Republican rule, 15 _n._; + later social life at Richmond, 394. + _See also_ Bill of Rights; Communication; Economic conditions; + Education; Government; Law and order; Literature; Marriage; + Religion; Slavery. + + Society, M.'s dislike of official, at Washington, =4=, 83-85. + + "Somers," attack on M., =4=, 360 _n._, 361 _n._ + + South Carolina, and M'Culloch _vs._ Maryland, =4=, 334; + Elkison negro seaman case, attack on Johnson's decision, 382, 383; + and Tariff of 1828, 537; + effect of Georgia-Cherokee contest on, 552. + _See also_ Nullification. + + South Carolina Yazoo Company, =3=, 553 _n._ + _See also_ Yazoo. + + Spain, attitude toward United States (1794), =2=, 109; + depredations on American commerce, 496; + intrigue in West, Wilkinson as agent, =3=, 283, 284; + resentment of West, expectation of war over West Florida, 284, 285, + 295, 301, 306, 312, 383 _n._; + treaty of 1795, 550 _n._; + intrigue and Yazoo grant, 554. + + Spanish America, desire to free, =3=, 284, 286; + Miranda's plans, 286, 300, 301, 306; + revolt and M.'s contribution to international law, =4=, 126-28. + _See also_ Burr Conspiracy. + + Speculation, after funding, =2=, 82, 85; + in land, 202; + as National trait, =3=, 557; + after War of 1812, =4=, 169, 181-84. + _See also_ Crisis of, 1819. + + Speech, freedom, and sedition trials, =3=, 42. + _See also_ Press. + + Stamp Act, opposition in Virginia, =1=, 61-65. + + Standing army. _See_ Army. + + Stanley, John, in Judiciary debate (1802), =3=, 74 _n._, 75. + + Stark, John, Ware _vs._ Hylton, =2=, 188. + + State Rights and Sovereignty, + effect on Revolutionary army, =1=, 82, 88-90, 100; + in American Revolution, 146; + and failure of the Confederation, 308-10; + union with democracy, =3=, 48; + and declaring Federal acts void, 105; + M. on, as factor under Confederation, 259-62; + compact, =4=, 316; + strict construction and reserved rights, 324 _n._; + Taylor's exposition, 335-39; + forces (c. 1821), 370; + M. on effect of strict construction, 442; + and Georgia-Cherokee contest, 541; + incompatible with federation, 571. + _See also_ Contracts; Eleventh Amendment; Implied powers; + Government; Kentucky Resolutions; Nationalism; + Nullification; Secession; Virginia Resolutions. + + States, Madison on necessity of Federal veto of acts, =1=, 312; + suits against, in Federal courts, 454, =2=, 83. + _See also_ Government. + + Stay and tender act in Virginia, =1=, 207 _n._ + _See also_ Debts. + + Steamboats, Fulton's experiments, Livingston's interest, =4=, 397-99; + Livingston's grants of monopoly in New York, 399; + first on the Mississippi, grant of monopoly in Louisiana, 402, + 402 _n._, 403 _n._, 414; + other grants of monopoly, 415; + interstate retaliation, 415; + great development, 415, 416. + _See also_ Gibbons _vs._ Ogden. + + Steele, Jonathan, witness against Pickering, reward, =3=, 181 _n._ + + Stephen, Adam, in Ratification Convention, characterized, =1=, 465; + on Indians, 465. + + Steuben, Baron von, on Revolutionary army, =1=, 84; + training of the army, 88 _n._, 133. + + Stevens, Edward, officer of minute men, =1=, 69. + + Stevens, Thaddeus, as House leader, =3=, 84 _n._ + + Stevens _vs._ Taliaferro, =2=, 180 _n._ + + Stevenson, Andrew, + resolution against M'Culloch _vs._ Maryland, =4=, 324; + and repeal of appellate jurisdiction of Supreme Court, 379. + + Stewart, Dr. ----, and Jay Treaty, =2=, 121. + + Stirling, William, Lord, intrigue against, =1=, 122. + + Stith, Judge, and Yazoo lands, =3=, 555. + + Stoddert, Benjamin, _Aurora_ on, =2=, 492; + at Burr trial, =3=, 458; + as Secretary of the Navy, 458 _n._; + proposes M. for President, =4=, 31-34. + + Stone, David, and Granville heirs case, =4=, 155 _n._ + + Stone _vs._ Mississippi, =4=, 279 _n._ + + Stony Point, assault, =1=, 138-42. + + Story, ----, on Ratification in Virginia, =1=, 445. + + Story, Elisha, Republican, =4=, 96; + children, 97; + in Revolution, 97 _n._ + + Story, Joseph, on M. and his father, =1=, 43; + on M. in Jonathan Robins case, =2=, 473; + on Washington (1808), =3=, 6; + and common-law jurisdiction, 28 _n._, =4=, 30 _n._; + on Chase, =3=, 184 _n._; + on Jefferson's Anas, 230 _n._; + and Yazoo claims, 583, 586; + on conduct of Minister Jackson, =4=, 23; + on conduct of Federalists (1809), 23 _n._; + on Federalists and War of 1812, 30, 40; + on Chief Justiceship, 59 _n._; + appointed Justice, history of appointment, 60, 106-10; + compared and contrasted with M., 60; + on M.'s attitude toward women, 71; + and poetry, 80; + on M.'s charm, 81; + on life of Justices, 86, 87; + on M.'s desire for argument of cases, 94 _n._, 95 _n._; + character, 95; + as supplement to M., 96, 120, 523; + Republican, 96; + birth, education, 97; + antipathy of Federalists, 97; + in Congress, Jefferson's enmity, 97, 99; + cultivated by Federalists, 98; + devotion to M., 99, 523; + authority on law of real estate, 100; + and Nationalism, 116, 145; + on constitutionality of Embargo, 118 _n._; + authority on admiralty, 119; + United States _vs._ Palmer, 126; + appearance, 132; + on oratory before Supreme Court, 133, 135 _n._; + dissent in _Nereid_ case, 142; + opinions in Martin _vs._ Hunter's Lessee, 144, 145, 156, 161-64; + assailed for opinion, contemplates resignation, 166; + and Dartmouth College case, 232, 243 _n._, 251, 255, 257, 259 _n._, + 274, 275; + opinion in Terrett _vs._ Taylor, 243; + on Dartmouth decision, 277; + on M'Culloch _vs._ Maryland, 284, 287; + and M.'s reply to Roane, 322; + omnivorous reader, 363; + and Jefferson's attack on Judiciary, 363, 364; + opinion in Green _vs._ Biddle, 376; + on Todd's absence, 381 _n._; + in Massachusetts Constitutional Convention, 471; + on slave trade and law of nations, 476; + opinion in Bank _vs._ Dandridge, 482; + dissent in Ogden _vs._ Saunders, 482 _n._; + on proposed repeal of appellate jurisdiction, 514; + and M.'s suggested resignation, 520; + on M.'s recovery, 528; + dissent in Cherokee Nation _vs._ Georgia, 546 _n._; + on Worcester _vs._ Georgia, 551; + on Nullification movement, 559; + on Jackson's Proclamation, 563; + M. and Commentaries and its dedication, 569, 576, 580, 581; + on Webster's speech against Nullification, 572; + article on statesmen, 577; + on M.'s green old age, 579; + and Briscoe _vs._ Bank and New York _vs._ Miln, 583, 584 _n._; + and M.'s decline, 586, 587; + epitaph for M., 592, 593. + + Strict construction. _See_ Nationalism; State Rights. + + Strong, Caleb, and Judiciary Act of 1789, =3=, 129. + + Stuart, David, and chancery bill (1787), =1=, 219; + on title for President, =2=, 36; + on Virginia's hostility to National Government (1790), 68 _n._ + + Stuart, Gilbert, and engraving for M.'s _Washington_, =3=, 236 _n._; + portraits of Dartmouth College case counsel, =4=, 255 _n._ + + Stuart _vs._ Laird, =3=, 130. + + Sturges _vs._ Crowninshield, case, =4=, 209; + M.'s opinion, 209-18; + right of State to enact bankruptcy laws, 208-12; + New York insolvency law as impairing the obligation of contracts, + 212-18; + reception of opinion, 218, 219. + + Sturgis, Josiah. _See_ Sturges _vs._ Crowninshield. + + Subpoena _duces tecum_, to President Adams, =3=, 33, 86; + to Jefferson in Burr trial, 433-47, 450, 518-22; + Jefferson's reply, 454-56; + of Cabinet officers in Ogden-Smith case, 436 _n._ + + Suffrage, limitation, =1=, 217 _n._, 284, =3=, 13 _n._, 15 _n._; + problem in Virginia, M.'s conservatism on it, =4=, 468-71; + in Massachusetts Constitutional Convention (1820), 471; + debate in Virginia Constitutional Convention (1830), 501-07. + + Sullivan, George, counsel in Dartmouth College case, =4=, 234. + + Sullivan, John, dissatisfaction, =1=, 86; + Brandywine campaign, 95; + Germantown, 102; + intrigue against, 122. + + Sullivan, John L., steamboat monopoly, =4=, 415. + + Sullivan, Samuel, Osborn _vs._ Bank, =4=, 331. + + Sumter, Thomas, on Judiciary Act of 1789, =3=, 54; + and Yazoo claims, 583. + + Supreme Court, Ware _vs._ Hylton, M.'s argument, =2=, 189-92; + Hunter _vs._ Fairfax, 206-08; + M. declines Associate Justiceship, 347, 378, 379; + salaries (1800), 539 _n._; + question of Chief Justice (1801), 552; + Jefferson's attitude and plans against, =3=, 20-22; + United States _vs._ Hudson, no Federal common-law jurisdiction, + 28 _n._; + influence of Alien and Sedition Acts on position, 49; + Justices on circuit, 55; + act abolishing June session, purpose, 94-97; + low place in public esteem, 120; + first room in Capitol, 121 _n._; + mandamus jurisdiction, 127-32; + plan to impeach all Federal Justices, 159-63, 173, 176, 178; + release of Swartwout and Bollmann on habeas corpus, 346, 348-57; + renewal of attack on, during Burr trial, 357; + becomes Republican, =4=, 60; + under M. life and consultations of Justices, 86-89; + character on M.'s control, 89; + practitioners in M.'s time, 94, 95, 131-35; + appointment of successor to Cushing, Story, 106-10; + quarters after burning of Capitol, 130; + appearance in _Nereid_ case, 131; + Martin _vs._ Hunter's Lessee, right of appeal from State courts, + 156-67; + salary question (1816), 166; + change in repute, 310; + apostacy of Republican Justices, 317, 358, 359, 444; + Wirt on, 369 _n._; + attack in Congress, movement to restrict power over State + laws (1821-25), 371-80, 394-96, 450; + renewal of attempt (1830), 514-17; + proposed Virginia amendment, 371, 378; + Green _vs._ Biddle, protest of Kentucky, 375-77, 380-82; + alarm in, over attacks, 381; + reversal of attitude toward, causes, 450-54; + personnel (1830), 510; + becomes restive under M.'s rule, 510, 513; + M. anticipates reaction in, against Nationalism, 513, 514, 582, 584; + Jefferson's later denunciation, 538; + Jackson's denial of authority of opinions, 530-32; + rule of majority on constitutional questions, 583. + _See also_ Commerce; Contracts; Declaring acts void; Implied powers; + International law; Judiciary; Marshall, John (_Chief + Justice_); Nationalism; Story, Joseph; cases by title. + + Swartwout, Samuel, takes Burr's letter to Wilkinson, =3=, 307; + and Wilkinson, 320, 332 _n._, 354 _n._; + denial of Wilkinson's statement, 320 _n._; + character then, later fall, 321 _n._, 465; + arrested, mistreatment, 332, 334; + brought to Washington, 343; + held for trial, 344-46; + discharged by Supreme Court, 346-57; + testifies at Burr trial, 465; + not indicted, 466 _n._; + insults and challenges Wilkinson, 471; + as Jackson's adviser, =4=, 532 _n._ + + Sweden, and Barbary Powers, =2=, 499. + + + Talbot, Isham, on Supreme Court, =4=, 451. + + Talbot, Silas, _Sandwich_ affair, =2=, 496; + _Amelia_ case, =3=, 16. + + Talbot _vs._ Seeman, =3=, 16, 17, 273 _n._ + + Taliaferro, Lawrence, colonel of minute men, =1=, 69. + + Talleyrand Périgord, Charles M. de, + on narrow belt of settlement, =1=, 258; + on Baltimore, 264; + on food and drink, 282; + rise, =2=, 249, 250; + opinion of United States, 250, 251; + and Bonaparte, 272, 288; + and reopening of American negotiations, 423. + _See also_ X. Y. Z. Mission. + + Tallmadge, Benjamin, on War of 1812, =4=, 40 _n._ + + Talmadge, Matthias B., Ogden-Smith trial, =3=, 436 _n._ + + Taney, Roger B., as practitioner before M., =4=, 135 _n._; + counsel in Brown _vs._ Maryland, 455; + career, 455 _n._; + later opinion on Brown _vs._ Maryland, 460; + Chief Justice, 584 _n._ + + Tariff, antagonistic State laws during Confederation, =1=, 310, 311; + Taylor's attack on protection, =4=, 338 _n._, 366-68; + as element in strife of political theories, 370, 536; + threatened resistance, reference to by M. and Johnson, 384, + 388 _n._, 394 _n._, 459, 536, 537, 555; + debate (1824) and Gibbons _vs._ Ogden, 421; + Compromise, 574. + _See also_ Import duties; Nullification; Taxation. + + Tarleton, Banastre, in Philadelphia society, =1=, 109; + in Virginia, 144 _n._ + + Tarring and feathering, practice, =1=, 214 _n._ + + Tassels, George, trial and execution, =4=, 542, 543. + + Tavern, Richmond (1780), =1=, 172; + at Raleigh, =4=, 65. + + Taxation, Virginia commutable act, =1=, 207 _n._; + not cause of Shays's Rebellion, 299, 300; + opposition to power in Federal Constitution, 334; + Ratification debate, 342, 366, 390, 404, 413, 416, 419, 421; + proposed amendment on power, 477; + Federal, as issue (1800), =2=, 520, 530 _n._; + exemption of lands as contract, =4=, 221-23; + M'Culloch _vs._ Maryland, Osborn _vs._ Bank, State taxation of + Federal instruments, 302-08; + State power and commerce clause, 435, 454-59. + _See also_ Directory; Excise; Finances; + Requisitions; Tariff. + + Taylor, George Keith, and privateer incident, =2=, 106; + courtship and marriage, M.'s interest, 174, 175; + Federal appointment as nepotism, 560 _n._ + + Taylor, John, of Caroline, Hite _vs._ Fairfax, =1=, 191, 192; + attack on Hamilton's financial system, =2=, 69; + suggests idea of Kentucky Resolutions, 397; + and Callender trial, =3=, 38 _n._, 39, 176, 177, 190, 214; + and repeal of Judiciary Act, 58 _n._, 607-10; + control of Virginia politics, =4=, 146; + attack on M.'s Nationalist opinions, 309, 335-39; + attack on protective tariff, 338 _n._, 366-68. + + Taylor, John, of Mass., on travel, =1=, 257; + in Ratification Convention, 345. + + Taylor, Peter, testimony in Burr trial, =3=, 425, 426, 465, 488. + + Taylor, Robert, grand juror on Burr, =3=, 413 _n._ + + Taylor, Thomas, security for Burr, =3=, 429 _n._ + + Tazewell, Littleton W., grand juror on Burr, =3=, 413 _n._; + on Swartwout, 465 _n._; + M. soothes, =4=, 88; + in Virginia Constitutional Convention, 484; + in debate on State Judiciary, 489, 490. + + Tennessee, + Burr in, his plan to represent in Congress, =3=, 292-96, 312, 313; + tax on external banks, =4=, 207; + and M'Culloch _vs._ Maryland, 334. + + Tennessee Company, =3=, 550, 553 _n._ + _See also_ Yazoo. + + Terence, on law and injustice, =3=, 1. + + Terrett _vs._ Taylor, =4=, 243 _n._, 246 _n._ + + Territory, powers of Governor, =2=, 446; + M. on government, =4=, 142-44. + + Thacher, George, and slavery, =2=, 450. + + Thatcher, Samuel C., on M.'s biography of Washington, =3=, 269, 270. + + Thayer, James B., on M. at Wickham's dinner, =3=, 396 _n._ + + Theater, M. and, =2=, 217, 231. + + Thibaudeau, Antoine C. de, and 18th Fructidor, =2=, 240. + + Thomas, Robert, and Yazoo lands act, =3=, 547. + + Thompson, James, as M.'s instructor, =1=, 53; + parish, 54; + political opinions, 54; + and military preparation, 70. + + Thompson, John, address on Jay Treaty, =2=, 126-29; + Curtius letters on M., 395, 396, =3=, 354; + character, =2=, 396 _n._ + + Thompson, John A., arrest by Georgia, =4=, 574. + + Thompson, Lucas P., + in Virginia Constitutional Convention, =4=, 496, 500. + + Thompson, Philip R., in debate on repeal of Judiciary Act, =3=, 74; + and attempt to suspend habeas corpus (1807), 347. + + Thompson, Samuel, in Ratification Convention, =1=, 345, 346, 348. + + Thompson, Smith, on Livingston steamboat monopoly, =4=, 406; + dissents from Brown _vs._ Maryland, 455; + on slave trade and law of nations, 476; + opinion in Ogden _vs._ Saunders, 481 _n._; + dissent in Craig _vs._ Missouri, 513; + dissent in Cherokee Nation _vs._ Georgia, 546 _n._; + and M., 582; + and Briscoe _vs._ Bank and New York _vs._ Miln, 583. + + Thompson, William, attack on M., =3=, 525, 533-35. + + Thruston, Buckner, of Smith committee, =3=, 541 _n._ + + Ticknor, George, on M., =4=, 91 _n._; + on Supreme Court in _Nereid_ case, 131. + + Tiffin, Edward, and Burr conspiracy, =3=, 324. + + Tilghman, Tench, on luxury in Philadelphia, =1=, 108 _n._ + + Titles, influence of French Revolutions, =2=, 36-38. + + Toasts, typical Federalist (1798), =2=, 349 _n._; + Federalist, to the Judiciary, 548 _n._; + Burr's, on Washington's birthday, =3=, 280; + Jefferson's, on freedom of the seas, =4=, 23; + Jackson's "Union," 557. + + Tobacco, characteristics of culture, =1=, 19; + universal use, =3=, 399. + + Todd, Thomas, and Martin _vs._ Hunter's Lessee, =4=, 153; + and Dartmouth College case, 255; + and Green _vs._ Biddle, 381 _n._; + on regulating power to declare State acts void, 396 _n._ + + Tompkins, Daniel D., and Livingston steamboat monopoly, =4=, 411. + + Tories. _See_ Loyalists. + + Townsend, Henry A., and Livingston steamboat monopoly, =4=, 409 _n._ + + Tracy, Uriah, and reopening of French negotiations, =2=, 425; + on pardon of Fries, 430 _n._; + on Republican ascendancy (1800), 521 _n._; + in debate on repeal of Judiciary Act, =3=, 61; + on Louisiana Purchase, 150; + at Chase trial, 217; + and Burr, 281. + + Transportation. _See_ Commerce; Communication; Internal improvements. + + Travel, hardships, =1=, 250, 255-64; + conditions as an index of community isolation, 251, 255; + conditions (c. 1815), =3=, 4 _n._, 5 _n._; + stage time between Richmond and Raleigh (c. 1810), =4=, 63 _n._ + + Treason, Jefferson's views in 1794 and 1807, =2=, 91; + Fries trial, =3=, 34-36; + basis of constitutional limitation, 349-51, 402-04; + necessity of actual levy of war, what constitutes, 350, 351, 377-79, + 388, 442, 491, 505-09, 619; + presence of accused at assembly, 350, 484, 493-97, 502, 509-12, 540, + 620-26; + legal order of proof, 424, 425, 484-87; + attempt to amend law, 540. + + Treaties, M. on constitutional power of execution, Jonathan Robins + case, =2=, 461-71; + supreme law, =3=, 17, =4=, 156. + _See also_ next title. + + Treaty-making power, in Ratification debate, =1=, 442, 444; + in contest over Jay Treaty, =2=, 119, 128, 133-36, 141-43. + + Trevett _vs._ Weeden, =3=, 611. + + Trimble, David, attack on Supreme Court, =4=, 395. + + Trimble, Robert, opinion in Ogden _vs._ Saunders, =4=, 481 _n._ + + Triplett, James, and Callender trial, =3=, 37. + + Tronçon, -----, and 18th Fructidor, =2=, 240. + + Troup, George M., and Yazoo claims, denunciation of M., =3=, 596-601. + + Troup, Robert on Republicans and X. Y. Z. dispatches, =2=, 339, 342; + on M.'s return, 344; + on war preparations, 357, 363; + on Adams's absence, 431; + on disruption of British-debts commission, 501; + on Federalist dissensions, 526; + on Hamilton's attack on Adams, 528 _n._; + on Morris in Judiciary debate (1802), =3=, 71; + on isolation of Burr, 279 _n._, 280 _n._ + + Trumbull, Jonathan, and pardon of Williams, =2=, 496 _n._ + + Truxtun, Thomas, and Burr Conspiracy, =3=, 302, 303, 614; + at trial, testimony, 451, 458-62, 488; + career and grievance, 458 _n._, 462. + + Tucker, George, + on social conditions in Virginia, =1=, 23 _n._, 24 _n._ + + Tucker, Henry St. George, and internal improvements, =4=, 418; + counsel in Martin _vs._ Hunter's Lessee, 161. + + Tucker, St. George, on British debts, =1=, 441 _n._; + and right of secession, =3=, 430; + and Martin _vs._ Hunter's Lessee, =4=, 148 _n._, 151 _n._ + + Tucker, Thomas T., journey (1790), =3=, 55 _n._ + + Tunno, Adam, and Yazoo lands, =3=, 566 _n._ + + Tupper, Edward W., and Burr conspiracy, =3=, 427. + + Turner, Thomas, sale to M.'s father, =1=, 55. + + Turner _vs._ Fendall, =3=, 18. + + Turreau, Louis M., on secession threats, =4=, 25 _n._ + + Twelfth Amendment, origin, =2=, 533 _n._ + + Tyler, Comfort, in Burr conspiracy, =3=, 324, 361, 489, 491; + indicted for treason, 466 _n._ + + Tyler, John [1], in Ratification Convention: Vice-President, =1=, 432; + in the debate, 440; + and amendments, 473, 474; + on Judiciary, =3=, 28; + on speculation, 557 _n._; + on M. and neutral trade controversy, =4=, 25; + appointment as District Judge, Jefferson's activity, 103-06; + Livingston _vs._ Jefferson, 111-13. + + Tyler, John [2], on Bank of the United States, =4=, 289; + and American Colonization Society, 474, 476 _n._; + tribute to M., 476 _n._; + in Virginia Constitutional Convention, 484. + + + _Unicorn_ incident, =2=, 103-06. + + Union, M.'s early training in idea, =1=, 9; + lack of popular appreciation, 285. + _See also_ Confederation; Continental Congress; Federal + Constitution; Government; Nationalism; Nullification; + State Rights; Secession. + + _United States Oracle of the Day_, on Paterson's charge, =3=, 30 _n._ + + United States _vs._ Fisher, =3=, 162. + + United States _vs._ Hopkins, =3=, 130 _n._ + + United States _vs._ Hudson, =3=, 28 _n._ + + United States _vs._ Lawrence, =3=, 129 _n._ + + United States _vs._ Palmer, =4=, 126, 127. + + United States _vs._ Peters, =3=, 129 _n._, =4=, 18-21. + + United States _vs._ Ravara, =3=, 129 _n._ + + United States _vs._ Schooner Peggy, =3=, 17, 273 _n._ + + United States _vs._ Worral, =3=, 28 _n._ + + Upper Mississippi Company, Yazoo land purchase, =3=, 550. + _See also_ Yazoo. + + Upshur, Abel P., and American Colonization Society, =4=, 474; + in Virginia Constitutional Convention, 484, 502 _n._ + + + Valentine, Edward V., on M., =4=, 67 _n._ + + Valley Forge, army at, =1=, 110-17, 131, 132; + M.'s cheerful influence, 117-20, 132; + discipline, 120. + + Van Buren, Martin, on revolutionary action of Framers, =1=, 323 _n._; + on Supreme Court, =4=, 380, 452; + as Jackson's adviser, 532 _n._ + + Van Horne's Lessee _vs._ Dorrance, =3=, 612. + + Van Ingen, James, and Livingston steamboat monopoly, suits, + =4=, 405-09. + + Varnum, James M., on army at Valley Forge, =1=, 115. + + Varnum, Joseph B., and attempt to suspend habeas corpus (1807), + =3=, 348. + + Vassalborough, Me., and Ratification, =1=, 341. + + _Venus_ case, M.'s dissent, =4=, 128, 129. + + Vermont, and Kentucky and Virginia Resolutions, =3=, 105 _n._, 106; + steamboat monopoly, =4=, 415. + + Vestries in colonial Virginia, =1=, 52. + + Veto of State laws, Madison on necessity of Federal, =1=, 312. + _See also_ Declaring acts void. + + Villette, Madame de, as agent in X. Y. Z. Mission, =2=, 290; + M.'s farewell to, 333. + + Virginia, state of colonial society, =1=, 19-28; + character and influence of frontiersmen, 28-31; + as birthplace of statesmen, 32; + colonial roads, 36 _n._; + vestries, 52; + Convention (1775), 65, 66; + preparation for the Revolution, 69-74; + battle of Great Bridge, 74-78; + Norfolk, 78; + Jefferson's services during the Revolution, 128; + M. in Council of State, 209-12; + political machine, 210, =2=, 56 _n._, =4=, 146, 174, 485-88; + suffrage and representation under first Constitution, =1=, 217 _n._; + religious state and controversy, 220-22; + and British debts, 223-31; + hardships of travel, 259-62; + classes, 277, 278; + houses and food, 280, 281; + drinking, 281-83; + paper money, 296; + prosperity during Confederation, 306; + tariff, 310; + attack on Constitution of 1776 (1789), =2=, 56 _n._; + and assumption of State debts, 62-69; + hostility to new government (1790), 68 _n._; + and Whiskey Insurrection, 88-90; + _Unicorn_ privateer incident, 103-06; + election on neutrality issue (1794), 106; + and Jay Treaty, 120, 126, 129; + Richmond meeting on Jay Treaty, 149-55; + Marshall's campaign for Congress (1798), 374-80, 401, 409-16; + election methods and scenes, 413-15; + survey for internal improvements (1812), =4=, 42-45; + M. anticipates split, 571. + _See also_ following titles; and Bank of Virginia; + Cohens _vs._ Virginia; House of Burgesses; + Legislature; Martin _vs._ Hunter's Lessee; + Ratification. + + Virginia Constitutional Convention (1829-30), + M. and election to, =4=, 467; + need, Jefferson and demand, 468, 469; + suffrage problem, M.'s conservatism on in, 469-71; + prominent members, 484; + petition on suffrage, 484; + M.'s report on Judiciary, 484, 485; + existing oligarchic system, 485-88; + extent of demand for judicial reform, 488; + M. as reactionary in, 488, 507, 508; + M.'s standing, 489; + debate on Judiciary, 489-501; + debate on suffrage, 501-07; + justification of conservatism, 508. + + Virginia Resolutions, M. foretells, =2=, 394; + framing and adoption, 399; + Madison's address of the majority, 400, 411; + M.'s address of the minority, 402-06; + military measure to uphold, 406, 408; + Henry on, 411; + consideration in Massachusetts, =3=, 43; + Dana on, 45; + as Republican gospel, 105-08; + resolutions of Federalist States on, 105 _n._, 106 _n._; + Madison's later explanation, 557; + as continued creed of Virginia, 576, 577. + _See also_ State Rights. + + Virginia Yazoo Company, =3=, 553 _n._ + _See also_ Yazoo. + + Visit and search, by British vessels, =2=, 229. + _See also_ Impressment; Neutral trade. + + + Wadsworth, Peleg, and M. (1796), =2=, 198. + + Wait, Thomas B., on Ratification in Pennsylvania, =1=, 331 _n._, 342. + + Waite, Morrison R., on Dartmouth College case, =4=, 280. + + Waldo, Albigence, on army at Valley Forge, =1=, 112-14, 124; + on prisoners of war, 115. + + Walker, David, on Bank of the United States, =4=, 289. + + Walker, Freeman, on Missouri question, =4=, 341. + + War. _See_ Army; Militia; Navy; Preparedness; and wars by name. + + War of 1812, M.'s opposition, =4=, 1, 35-41; + bibliography, 8 _n._; + demanded by second generation of statesmen, 28, 29; + declaration, 29; + causes, 29 _n._, 52-55; + opposition of Federalists, 30, 45, 46, 48; + and M.'s candidacy for President, 31-34; + dependence on European war, 50, 51; + Hartford Convention, 51; + direct and indirect results, 56-58; + finances, 177, 179. + + Warden, John, offends Virginia House, =1=, 215. + + Ware _vs._ Hylton, M.'s connection and arguments, =2=, 186-92. + + Warrington, James, and Yazoo lands, =3=, 566 _n._ + + Warville, Jean P. Brissot de, on tobacco culture, =1=, 20 _n._; + on drinking, 282 _n._ + + Washington, Bushrod, on Madison in Ratification Convention, =1=, 395; + and Jay Treaty, =2=, 121; + and M. (1798), 375; + appointment to Supreme Court, 378, 379; + appearance, =4=, 131, 249; + and Martin _vs._ Hunter's Lessee, 156; + and Dartmouth College case, 255; + and M.'s reply to attack on M'Culloch _vs._ Maryland, 318; + opinion in Green _vs._ Biddle, 380; + opinion in Ogden _vs._ Saunders, 481 _n._; + death, 581. + _See also_ Biography. + + Washington, George, + _pre-presidential years_: + in Braddock's march and defeat, =1=, 2-5; + reported slain, 5; + and M.'s father, 7, 46; + landed estate, 20 _n._; + as statesman, 32; + early reading, 46 _n._; + influence of Lord Fairfax, 50; + on frontier discomforts, 53 _n._, 54 _n._; + in Virginia Convention (1775), 66; + on military preparedness, 69; + on state of the army, 80-83, 86, 92, 131, 132; + on militia, 83-86, 100; + smallpox, 87 _n._; + Brandywine campaign, 92-98; + campaign before Philadelphia, 98-102; + as sole dependence of the Revolution (1778), 101, 121, 124; + Germantown, 102-04; + besought to apostatize, 105, 130, 131; + final movements before Philadelphia, 105-07; + fears at Valley Forge, 114; + discipline, 120; + intrigue against, 121-23; + plea for a better Continental Congress, 124-26, 131; + distrust of effect of French alliance, 134; + Monmouth, 134-38; + and Stony Point, 139; + and light infantry, 139 _n._; + and military smartness, 140 _n._; + and Mary Cary, 150 _n._; + and purchase of land from M.'s father, 167; + employs M.'s legal services, 196; + on post-Revolutionary Assembly, 206; + and relief for Thomas Paine, 213; + and internal improvements, 217; + hot-tempered Nationalism during Confederation, 342; + loses faith in democracy, 252; + on unreliability of newspapers, 268; + on drinking, 282 _n._, 283; + on chimney-corner patriots, 286; + on debased specie, 297; + despair (1786), 301, 307; + on requisitions, 305; + on responsibility of States for failure of Confederation, 308, + 309; + on influence in Virginia of previous ratifications, 356; + and Randolph's attitude on Ratification, 362, 377 _n._, 382 _n._; + on campaign for Anti-Constitutionalist delegates, 366, 367; + on opposition of leaders in State politics, 366 _n._; + on detailed debate in Virginia Convention, 370 _n._; + influence on Ratification Convention, 476; + on the contest in Virginia, 478; + and opposition after Ratification, 248; + as distiller, =2=, 86 _n._; + on West and Union, =3=, 282 _n._ + + _As President and after_: + hardships of travel, =1=, 255, 259; + influence of French Revolution, =2=, 3; + and beginning of French Revolution, 10; + and Genêt, 28; + and imprisonment of Lafayette, 33; + on democratic clubs, 38, 88, 89; + Virginia address (1789), 57; + on Virginia's opposition (1790), 68 _n._; + opposes partisanship, 76; + and antagonism in Cabinet, 82; + and Whiskey Insurrection, 87, 89; + and neutrality, 92; + on attacks, 93 _n._, 164; + and attacks on M.'s character, 102, 103; + and British crisis (1794), 112; + attacks on, over Jay Treaty, 116-18; + J. Q. Adams on policy, 119 _n._; + on attacks on treaty, 120; + M. refuses Cabinet offices, 122, 123, 147; + M. advises on Cabinet positions, 124-26, 132; + virtual censure by Virginia Legislature, 137-40; + offers French mission to M., 144-46; + and support of Jay Treaty, 149, 150; + final Republican abuse, 158, 162-64; + address of Virginia Legislature (1796), 159-62; + and M.'s appointment to X. Y. Z. Mission, 216; + Monroe's attack, 222; + M.'s letters during X. Y. Z. mission, 229, 233-44, 267-72, 320-23; + on hopes for X. Y. Z. Mission, 244; + on X. Y. Z. dispatches and French partisans, 340, 359, 360; + Federalist toast to (1798), 349 _n._; + accepts command of army, 357; + does not anticipate land war, 357; + on Gerry, 365; + persuades M. to run for Congress (1798), 374-78; + Langhorne letter, 375 _n._; + and M.'s election, 416; + and M.'s apology for statement by supporters, 416, 417; + death, M.'s announcement in Congress, 440-43; + House resolutions, authorship of "first in war" designation, + 443-45; + and slavery petitions, 450 _n._; + temperament contrasted with Adams's, 487 _n._; + Jefferson's Mazzei letter on, 537 _n._; + Weems's biography, =3=, 231 _n._; + and French War, 258 _n._; + M.'s biography on Administration, 263-65; + and Yazoo lands, 569. + _See also_ Biography. + + Washington, D.C., Morris's land speculation, =2=, 205 _n._; + condition when first occupied, 494 _n._; + aspect (1801), =3=, 1-4; + lack of progress, 4-6; + malaria, 6; + absence of churches, 6; + boarding-houses, 7; + population, 9; + drinking, 9; + factions, 10; + Webster on, =4=, 86. + _See also_ District of Columbia. + + _Washington Federalist_, on Hamilton's attack on Adams, =2=, 528; + campaign virulence, 530 _n._; + eulogism of Adams, 532 _n._; + M.'s reputed influence over, 532 _n._, 541, 547 _n._; + and Jefferson-Burr contest, 534 _n._, 540; + on Hay's attack on M., 543 _n._; + on Republican armed threat, 544 _n._, 545 _n._; + sentiment after Jefferson's election, 547 _n._; + on Judiciary debate (1802), and secession, =3=, 72; + on Bayard's speech on Judiciary, 82; + on Randolph's speech, 87 _n._; + on repeal of Judiciary Act, 92, 93; + on Burr's farewell address, 274 _n._ + + Washington's birthday, celebration abandoned (1804), =3=, 210 _n._; + Burr's toast, 280. + + Washita lands, Burr's plan to settle, =3=, 292 _n._, 303, 310, 312, + 313, 314 _n._, 319, 324 _n._, 361 _n._, 362, 461, 462, 523, + 527; + + Water travel, hardships, =1=, 259, =3=, 55 _n._ + _See also_ Steamboat. + + Watkins, John, and Burr, =3=, 295; + and Wilkinson and Adair, 337 _n._ + + Watson, Elkanah, on army at Valley Forge, =1=, 111 _n._; + on hardships of travel, 263 _n._; + on Virginia social conditions, 277 _n._; + on dissipation, 283 _n._ + + Wayne, Anthony, discipline, =1=, 88; + in Brandywine campaign, 93, 95, 96; + in Philadelphia campaign, 100; + Germantown, 102; + Monmouth campaign, 135; + Stony Point, 139-41; + and supplies, 139 _n._; + on military smartness, 139 _n._ + + Wayne, C. P., negotiations to publish M.'s biography, =3=, 225-27; + agreement, 227, 228; + and political situation, 230; + solicitation of subscriptions, 230, 235; + and M.'s delays and prolixity, 235, 236, 239, 241; + and financial problem, 236, 250; + payment of royalty, 247, 248, 251; + and revised edition, 272. + + Wayne, James M., appointment to Supreme Court, =4=, 584. + + Webb, Foster, and Tabby Eppes, =1=, 182. + + Webster, Daniel, on Yazoo claims, =3=, 602; + opposes new Western States, =4=, 28 _n._; + and War of 1812, 48; + opposes conscription, 51 _n._, 52 _n._; + on M., 59 _n._; + on Washington, 86; + as practitioner before M., 95, 135; + on bank debate, 180; + counsel in Dartmouth College case, 233, 234, 260, 273; + and story of Indian students, 233 _n._; + on the trial, 237, 240 _n._, 250 _n._, 253 _n._, 254 _n._, 261 _n._, + 273, 274; + argument in case, 240-52; + tribute to Dartmouth, 248-50; + fee and portrait, 255 _n._; + and success in case, 273; + counsel in M'Culloch _vs._ Maryland, appearance, 284; + argument, 285; + on the case, 288; + debt to M. in reply to Hayne, 293 _n._, 552-55; + counsel in Cohens _vs._ Virginia, 357; + in and on debate on Supreme Court, 379, 380, 395, 395 _n._, + 452 _n._; + counsel in Osborn _vs._ Bank, 385; + resolution on regulating power to declare State acts void, 396, 451; + counsel in Gibbons _vs._ Ogden, 413, 424; + argument, 424-27; + fanciful story on it, 424 _n._; + overlooks M.'s earlier decision on question, 427-29; + and American Colonization Society, 474; + and recharter of the Bank, 530; + on Nullification, M.'s commendation, 572. + + Webster, Ezekiel, on War of 1812, =4=, 46 _n._ + + Webster, Noah, on Jacobin enthusiasm, =2=, 35 _n._; + on license of the press, 530; + and biography of Washington, =3=, 225 _n._ + + Weems, Mason L., biography of Washington, =3=, 225 _n._, 231 _n._; + character, 231; + career, 231 _n._; + soliciting agent for M.'s biography of Washington, 231-34, 252; + his orders for books, 252 _n._, 253 _n._ + + Weld, Isaac, on hardships of travel, =1=, 250; + on William and Mary, 272; + on lack of comforts, 274; + on drinking, 281; + on passion for military titles, 328 _n._; + on attacks on Washington, =2=, 117 _n._ + + Wentworth, John, charter for Dartmouth College, =4=, 224. + + West, and attitude toward Union, Spanish intrigue, =3=, 282-85, 297, + 299, 554; + Burr turns to, 286; + M. on internal improvements and (1812), =4=, 43-45; + War of 1812 and migration, 57; + _See also_ Burr conspiracy; Frontier; Yazoo lands. + + West Florida, expected war with Spain over, =3=, 284, 285, 295, 301, + 306, 312, 383 _n._ + + West Virginia, M. anticipates formation, =4=, 571. + + Western claims, Georgia claim and cession, =3=, 553, 569, 570, 573. + + Western Reserve, cession, =2=, 446; + Granger's connection, =3=, 578. + + Westmoreland County, Vs., slave population (1790), =1=, 21 _n._ + + Wharton, Colonel, and Swartwout and Bollmann, =3=, 344. + + Wheaton, Joseph, and Burr, =3=, 304 _n._ + + Wheelock, Eleazer, and origin of Dartmouth College, =4=, 223-26; + and Bellamy, 227. + + Wheelock, John, President of Dartmouth College, =4=, 226; + in Revolution, 226 _n._; + troubles and removal, 227, 228; + reëlected under State reorganization, 232. + + Whiskey Insurrection, opposition to Federal excise, =2=, 86, 87; + outbreak, 87; + democratic societies and, 88, 89; + M. and, 89, 90; + Jefferson's support, 90; + political effect, 91. + + Whitaker, Nathaniel, and Dartmouth College, =4=, 223. + + White, Abraham, in Ratification Convention, =1=, 345. + + White, Samuel, and Pickering impeachment, =3=, 167, 168 _n._ + + White House, in 1801, =3=, 2. + + Whitehill, Robert, in Ratification Convention, =1=, 329. + + Whitney, Eli, cotton gin, =3=, 555. + + Whittington _vs._ Polk, =3=, 612. + + Wickham, John, as lawyer, =1=, 173; + mock argument with M., =2=, 184; + Ware _vs._ Hylton, 188; + and Chase impeachment, =3=, 176; + Burr's counsel, at preliminary hearing, 373, 379, 407; + Burr and M. at dinner with, 394-97; + on motion to commit Burr for treason, 416, 418, 424; + and subpoena to Jefferson, 435; + on preliminary proof of overt act, 485; + on overt act, 491-94; + counsel in Hunter _vs._ Fairfax's Devisee, =4=, 151; + practitioner before M., 237 _n._ + + Wickliffe, Charles A., bill on Supreme Court, =4=, 380. + + Widgery, William, in Ratification Convention, =1=, 344, 345, 350. + + Wilkins, William, and Burr, =3=, 311 _n._ + + Wilkinson, James, Conway Cabal, =1=, 121-23; + as Spanish agent, =3=, 283, 284, 316, 320 _n._, 337 _n._; + and Burr's plans, proposes Mexican invasion, 290, 294, 297, 460; + and rumors of disunion plans, 297; + plans to abandon Burr, 298, 300 _n._, 320; + at Louisiana frontier, expected to bring on war, 302, 308, 314; + Burr's cipher letter, 307-09, 614, 615; + letters to Adair and Smith, 314; + and Swartwout, 320, 354 _n._, 465; + revelation to Jefferson, 321-23, 433, 518-22; + ordered to New Orleans, 324; + pretended terror, 328; + appeal for money to Viceroy, 329; + and to Jefferson, 330; + reign of terror in New Orleans, 330-37; + sends Jefferson a version of Burr's letter, 334; + Jefferson's message on it, 339, 341; + affidavit and version of Burr's letter in Swartwout case, 341, + 352-56; + House debate on conduct, 358-60; + and Burr in Mississippi, denounced there, 364, 365; + attendance awaited at trial of Burr, 383, 393, 415, 416, 429, 431, + 432, 440; + arrival and conduct, 456, 457; + Jackson denounces, 457; + before grand jury, barely escapes indictment, 463, 464; + swallows Swartwout's insult, 471; + fear, Jefferson bolsters, 472, 477; + attachment against, 473-75; + and _Chesapeake-Leopard_ affair, 476; + personal effect of testimony, 523; + Daveiss's pamphlet on, 525. + + William and Mary College, M. at, =1=, 154; + conditions during period of M.'s attendance, 155-58, 272; + Phi Beta Kappa, 158; + debating, 159; + fees from surveys, 179 _n._ + + Williams, ----, counsel for Bollmann, =3=, 453. + + Williams, Isaac, trial and pardon, =2=, 495, =3=, 26. + + Williams, Robert, in debate on repeal of Judiciary Act, =3=, 73. + + Williamsburg, and frontier minute men, =1=, 75; + "Palace," 163 _n._ + + Williamson, ----, loyalist, mobbed, =1=, 214. + + Williamson, Charles, and Burr, =3=, 288, 289. + + Wills, of M.'s putative great-grandfather, =1=, 483, 484; + of M.'s grandfather, 485; + M.'s, =4=, 525 _n._ + + Wilson, James, and Ratification in Pennsylvania, =1=, 329, 332; + and in Virginia, 401; + and common-law jurisdiction, =3=, 24-26; + and British precedents, 28 _n._; + on declaring acts void, 115 _n._, 117; + and Yazoo lands, 548, 555; + in Federal Convention, on obligation of contracts, 558 _n._ + + Wilson _vs._ Mason, =3=, 17 _n._ + + Wine, M. as judge, =4=, 79. + _See also_ Drinking. + + Wirt, William, on William and Mary, =1=, 156 _n._; + on frontiersmen, 236 _n._; + on M.'s appearance, =2=, 168, 169; + on M. as lawyer, 192, 193, 195, 196; + on social contrasts (1803), =3=, 13; + _Letters of a British Spy_, 13 _n._; + in Callender trial, 38-40, 190, 203; + prosecutes Burr, 407; + dissipation, 407 _n._; + on motion to commit Burr for treason, 417; + on subpoena to Jefferson, 438, 439; + on preliminary proof of overt act, 485; + on overt act, 495-97, 616-18; + on M. at trial, 517, 521; + in trial for misdemeanor, 522; + on M.'s personality, =4=, 91 _n._; + as practitioner before M., 95, 135 _n._; + on long arguments, 95 _n._; + on Pinkney, 131 _n._, 134 _n._; + counsel in Dartmouth College case, 239, 253; + and Kent, 256 _n._; + counsel in M'Culloch _vs._ Maryland, 284; + and in Cohens _vs._ Virginia, 357; + on importance of Supreme Court, 369 _n._; + on Oakley, 424; + counsel in Gibbons _vs._ Ogden, 424, 427; + and in Brown _vs._ Maryland, 455; + and in Cherokee Nation _vs._ Georgia, 541, 544, 547; + and in Worcester _vs._ Georgia, 549. + + Wolcott, Alexander, and Justiceship, =4=, 110. + + Wolcott, Oliver [1], on Giles, =2=, 84 _n._ + + Wolcott, Oliver [2], + on support of new government (1791), =2=, 61 _n._, 148; + on French Revolution, 92; + on M. and new French mission, 433; + on M.'s reply to Adams's address (1799), 434; + on M.'s position in Congress, 436, 437; + underhand opposition to Adams, 488 _n._, 493, 517 _n._; + _Aurora_ on, 491; + on M. as Secretary of State, 492, 493; + on Federalist defeat in M.'s district, 515; + on Republican influence over Adams, 518; + and Hamilton's attack on Adams, 527 _n._; + and M. and Jefferson-Burr contest, 536; + banquet to, 548; + on enlargement of Federal Judiciary, 548; + appointment as Circuit Judge, 559, 560; + on Washington (1800), =3=, 4, 8, 8 _n._; + on Jefferson and popularity, 19 _n._; + on M.'s biography of Washington, 233. + + Women, education in colonial Virginia, =1=, 18 _n._, 24 _n._; + M.'s attitude, 198, =4=, 71, 72. + + Wood, John, attacks on Federalists, =2=, 379, 409; + book suppressed by Burr, 380 _n._; + character, =3=, 316 _n._ + + Woodbridge, Dudley, testimony in Burr trial, =3=, 489. + + Woodbury, Levi, hears Dartmouth College case, =4=, 234. + + Woodford, William, battle of Great Bridge, =1=, 76; + in battle of Germantown, 103. + + Woodward, William H., and Dartmouth College case, =4=, 233, 239 _n._, + 273. + + Woodworth, John, opinion on Livingston steamboat monopoly, =4=, 449. + + Worcester, Samuel A., arrest by Georgia, =4=, 547; + pardoned, 552 _n._ + _See also_ Cherokee Indians. + + Worcester, Mass., and Ratification, =1=, 341. + + Worcester _vs._ Georgia. _See_ Cherokee Indians. + + Workman, James, and Burr, =3=, 295; + and Wilkinson's reign of terror, 335. + + Wright, John C., counsel in Osborn _vs._ Bank, =4=, 385. + + Wright, Robert, at Chase trial, =3=, 183 _n._; + on Yazoo claims, 600. + + Wylly, Thomas, and Yazoo lands act, =3=, 546, 547. + + Wythe, George, M. attends law lectures, =1=, 154; + as professor, 157; + as judge, 173; + candidacy for Ratification Convention, 359; + in the Convention: Chairman, 368; + appearance, 373; + and recommendatory amendments, 469; + and Judiciary Act of, 1789, =3=, 129; + Commonwealth _vs._ Caton, 611. + + + X. Y. Z. Mission, + M.'s financial reason for accepting, =2=, 211-13, 371-73; + _Aurora_ on M.'s appointment, 218, 219; + M. in Philadelphia awaiting voyage, 214-18; + Adams on M.'s fitness, 218; + M.'s outward voyage, 219-21, 229; + as turning point in M.'s career, 221; + task, 221; + French depredations on neutral trade, 223-25; + Pinckney not received as Minister, 224; + Adams's address to Congress, French demand for withdrawal, 225, 226, + 255, 262, 316; + wisdom of appointment, 226; + selection of envoys, Gerry, 226-29; + envoys at The Hague, Gerry's delay, 230, 231; + influence of 18th Fructidor, 244; + Washington on expectations, 244; + journey to Paris, 245; + M.'s pessimistic view of prospects, 246; + venality of French Government, 247-49; + and victims of French depredations, 249; + Talleyrand's opinion of United States, 250; + Talleyrand's position and need of money, 251; + Gerry's arrival, 251; + Talleyrand's informal reception, meeting visualized, 251, 253; + Talleyrand's measure of the envoys, 252; + Talleyrand and King's conciliatory letter, 252, 253; + Church's hint, 254; + Paine's interference, 254; + American instructions, 255; + origin of name, 256, 339; + depredations continue, protests of envoys, 257, 258, 270, 271-277, + 283, 284, 310, 313, 331; + Gerry's opposition to action, 258; + Federalist opinions of Gerry, 258 _n._, 295, 296, 363-65; + first unofficial agent's proposal of loan and bribe, 259-61; + division of envoys on unofficial negotiations and bribe, 260, 261, + 264, 314-17; + second unofficial agent, 261; + other French demands, 262; + further urging of loan and bribe, 263, 265-67, 273-76, 291, 313, + 314, 315, 317, 318; + proposed return for instructions, 265; + and British-American and British-French relations, 271, 283, 295, + 312, 321, 322; + and treaty of Campo Formio, 271-73; + third unofficial agent, 276; + intrigue and private conferences with Gerry, 276-78, 287, 294, 295, + 310, 311, 313, 333; + intimidation, 278, 311; + threat of overthrowing Federalists, 278-81, 283, 286, 311; + decision against further unofficial negotiations, 281; + threat to asperse envoys in United States, 281, 312, 318-20, 327; + division on addressing Talleyrand directly, 282; + newspaper calumny, 282, 331; + Talleyrand's refusal to receive envoys, 284; + female agent to work on Pinckney, 290; + attempt to use debt to Beaumarchais, 292-94; + desire of M. and Pinckney to terminate, demand for passports, 296, + 309, 310, 314, 326, 327, 331, 332; + preparation of American memorial, 296, 297; + its importance, 297; + its contents, 297-309; + necessity of American neutrality, 298-301; + review of Genêt's conduct, 301-03; + free ships, free goods, and Jay Treaty, 303-05; + defense of Jay Treaty, 305-08; + memorial ignored, 310; + French plan to retain Gerry, 312, 315, 317, 320, 323, 324, 326, 331; + meetings with Talleyrand, 315, 317; + dissension, 316, 328; + M.'s assertion of purely American attitude, 319; + M. on loan as ultimatum, 321; + Talleyrand's reply to memorial, 323-26; + complaint against American newspaper attacks, 324; + insult to M. and Pinckney, 325, 332; + American rejoinder, 326, 328-31; + Gerry stays, 327, 328, 333, 363; + reply on complaint about newspapers, 329-31; + departure of M. and Pinckney, 332; + M.'s farewell to friends, 333; + Pinckney on Gerry and M., 333, 365; + conditions in United States during, 335; + French reports in United States, 335; + arrival of first dispatches, Adams's warning to Congress, 336; + Republican demand for dispatches, 336-38; + effect of publication, war spirit, Republican about face, 338-43, + 363; + M.'s return and reception, 343-55; + Jefferson's call on M., 346, 347; + origin of "millions for defense" slogan, 348; + M.'s addresses on, 350, 352, 353, 571-73; + Adams's statement of policy, 351; + effect on Federalist Party, 355-57, 361; + Jefferson's attempt to undo effect, 359-61, 368; + effect of dispatches in Europe, 363; + Talleyrand's demand on Gerry for the X. Y. Z. names, 364, 366; + M.'s fear of Gerry's stay, 365; + Adams and M.'s journal, 366; + Gerry's defense, M. and question of rejoinder, 367-69; + Giles's sneer and Bayard's answer (1802), =3=, 77, 80. + + + Yates, Joseph C., on Livingston steamboat monopoly, =4=, 406. + + Yazoo lands, + Rutledge on (1802), =3=, 88; + and Chase impeachment, 174; + sale act (1795), graft, 546-50; + provisions, 550, 551; + popular denunciation of act, 551, 559-62; + and Indian titles, 552, 569, 570, 592; + earlier grant, 554; + character of second companies, 554; + and invention of cotton gin, 555, 556; + matter before first congresses, 560, 569, 570; + repeal of grant, theatricalism, 562-66; + Hamilton's opinion on validity of titles, 562, 563; + resale, "innocent purchasers" and property rights, 566, 578-80, 586, + 588-90, 598; + National interest, pamphlets, 570-72; + and cession of Georgia's Western claim, 574; + report of Federal Commission, 574; + claim before Congress, Randolph's opposition, 574-83, 595-602; + memorial of New England Mississippi Company, 576; + popular support of Randolph, 581; + obstacles to judicial inquiry, 583; + friendly suit, Fletcher _vs._ Peck before Circuit Court, 583, 584; + case before Supreme Court, first hearing, 585; + question of collusion, Johnson's separate opinion, 585, 592, 601; + second hearing, 585; + M.'s opinion, 586-91; + legality of grant, effect of corruption, 587, 598, 599; + unconstitutionality of repeal, impairment of obligation of + contracts, 590, 591; + attitude of Administration, 592; + importance of opinion, 593-95, 602; + congressional denunciation of opinion, 595-601; + popular support of denunciation, 599; + local influences on settlement, 601; + settlement, 602. + + York, Me., and Ratification, =1=, 341. + + Young, Daniel, and disestablishment in New Hampshire, =4=, 230 _n._ + + + Zubly, John J., denounced by Chase, =3=, 185 _n._ + + + * * * * * + + +Transcriber's Notes: + +1. Passages in italics are surrounded by _underscores_. + +2. Within index the bold numbers from original are enclosed within +=equals= sign indicating the volume for that particular index entry. + +3. Obvious errors in spelling and punctuation have been corrected. + +4. Footnotes have been renumbered and moved from the page end to the +end of their respective chapters. + +5. Images have been moved from the middle of a paragraph to the closest +paragraph break. + +6. Certain words use an oe ligature in the original. + +7. Carat character (^) followed by a single letter or a set of letters +in curly brackets is indicative of subscript in the original book. + + + + + + +End of the Project Gutenberg EBook of The Life of John Marshall Volume 4 of 4, by +Albert J. Beveridge + +*** END OF THE PROJECT GUTENBERG EBOOK 40533 *** |