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.