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diff --git a/40533-8.txt b/40533-8.txt deleted file mode 100644 index ff17fa0..0000000 --- a/40533-8.txt +++ /dev/null @@ -1,29704 +0,0 @@ -The Project Gutenberg EBook of The Life of John Marshall Volume 4 of 4, by -Albert J. Beveridge - -This eBook is for the use of anyone anywhere at no cost and with -almost no restrictions whatsoever. You may copy it, give it away or -re-use it under the terms of the Project Gutenberg License included -with this eBook or online at www.gutenberg.org/license - - -Title: The Life of John Marshall Volume 4 of 4 - -Author: Albert J. Beveridge - -Release Date: August 19, 2012 [EBook #40533] - -Language: English - -Character set encoding: ISO-8859-1 - -*** START OF THIS PROJECT GUTENBERG EBOOK THE LIFE OF JOHN MARSHALL *** - - - - -Produced by David Edwards and the Online Distributed -Proofreading Team at http://www.pgdp.net (This file was -produced from images generously made available by The -Internet Archive) - - - - - - - - - - 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. 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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. 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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. 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