CHAPTER IX

THE SUPREME CONSERVATIVE

If a judge becomes odious to the people, let him be removed.

(William Branch Giles.)

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

Story.)

I have always thought, from my earliest youth till now, that the

greatest scourge an angry Heaven ever inflicted upon an

ungrateful and a sinning people, was an ignorant, a corrupt, or

a dependent judiciary. (Marshall.)

"I was in a very great crowd the other evening at M^{rs} Adams' drawing

room, but I see very few persons there whom I know & fewer still in whom

I take any interest. A person as old as I am feels that his home is his

place of most comfort, and his old wife the companion in the world in

whose society he is most happy.

"I dined yesterday with Mr. Randolph. He is absorbed in the party

politics of the day & seems as much engaged in them as he was twenty

five years past. It is very different with me. I long to leave this busy

bustling scene & to return to the tranquility of my family & farm.

Farewell my dearest Polly. That Heaven may bless you is the unceasing

prayer of your ever affectionate

"J. MARSHALL."[1269]

This letter to his ageing and afflicted wife, written in his

seventy-second year, reveals Marshall's state of mind as he entered the

final decade of his life. While the last of his history-making and

nation-building opinions had been delivered, the years still before him

were to be crowded with labor as arduous and scenes as picturesque as

any during his career on the Bench. It was to be a period of

disappointment and grief, but also of that supreme reward for sound and

enduring work which comes from recognition of the general and lasting

benefit of that work and of the greatness of mind and nobility of

character of him who performed it.

For twenty years the Chief Justice had not voted. The last ballot he had

cast was against the reëlection of Jefferson in 1804. From that time

forward until 1828, he had kept away from the polls. In the latter year

he probably voted for John Quincy Adams, or rather against Andrew

Jackson, who, as Marshall thought, typified the recrudescence of that

unbridled democratic spirit which he so increasingly feared and

distrusted.[1270]

[Illustration: JOHN MARSHALL]

Yet, even in so grave a crisis as Marshall believed the Presidential

election of 1828 to be, he shrank from the appearance of partisanship.

The _Marylander_, a Baltimore Democratic paper, published an item

quoting Marshall as having said: "I have not voted for twenty years; but

I shall consider it a solemn duty I owe my country to go to the polls

and vote at the next presidential election--for should Jackson be

elected, I shall look upon the government as virtually dissolved."[1271]

This item was widely published in the Administration newspapers,

including the Richmond _Whig and Advertiser_. To this paper Marshall

wrote, denying the statement of the Baltimore publication: "Holding the

situation I do ... I have thought it right to abstain from any public

declarations on the election; ... I admit having said in private that

though I had not voted since the establishment of the general ticket

system, and had believed that I never should vote during its

continuance, I might probably depart from my resolution in this

instance, from the strong sense I felt of the injustice of the charge

of corruption against the President & Secretary of State: I never did

use the other expressions ascribed to me."[1272] This "card" the

_Enquirer_ reproduced, together with the item from the _Marylander_,

commenting scathingly upon the methods of Adams's supporters.

Clay, deeply touched, wrote the Chief Justice of his appreciation and

gratitude; but he is sorry that Marshall paid any attention to the

matter "because it will subject you to a part of that abuse which is so

indiscriminately applied to ... everything standing in the way of the

election of a certain individual."[1273]

Marshall was sorely worried. He writes Story that the incident

"provoked" him, "not because I have any objection to its being known

that my private judgement is in favor of the re-election of M^r Adams,

but because I have great objections to being represented in the

character of a furious partisan. Intemperate language does not become my

age or office, and is foreign from my disposition and habits. I was

therefore not a little vexed at a publication which represented me as

using language which could be uttered only by an angry party man."

He explains that the item got into the _Marylander_ through a remark of

one of his nephews "who was on the Adams convention" at Baltimore, to

the effect that he had heard Marshall say that, although he had "not

voted for upwards of twenty years" he "should probably vote at the

ensuing election." His nephew wrote a denial, but it was not published.

So, concludes Marshall, "I must bear the newspaper scurrility which I

had hoped to escape, and which is generally reserved for more important

personages than myself. It is some consolation that it does not wound me

very deeply."[1274]

It would seem that Marshall had early resolved to go to any length to

deprive the enemies of the National Judiciary of any pretext for

attacking him or the Supreme Court because of any trace of partisan

activity on his part. One of the largest tasks he had set for himself

was to create public confidence in that tribunal, and to raise it above

the suspicion that party considerations swayed its decisions. He had

seen how nearly the arrogance and political activity of the first

Federalist judges had wrecked the Supreme Court and the whole Judicial

establishment, and had resolved, therefore, to lessen popular hostility

to courts, as far as his neutral attitude to party controversies could

accomplish that purpose.

It thus came about that Marshall refrained even from exercising his

right of suffrage from 1804 to 1828--perhaps, indeed, to the end of his

life, since it is not certain that he voted even at the election of

1828. Considering the intensity of his partisan feelings, his refusal to

vote, during nearly all the long period when he was Chief Justice, was a

real sacrifice, the extent of which may be measured by the fact that,

according to his letter to Story, he did not even vote against Madison

in 1812, notwithstanding the violence of his emotions aroused by the

war.[1275]

On March 4, 1829, Marshall administered the oath of office to the newly

elected President, Andrew Jackson. No two men ever faced one another

more unlike in personality and character. The mild, gentle, benignant

features of the Chief Justice contrasted strongly with the stern, rigid,

and aggressive countenance of "Old Hickory." The one stood for the reign

of law; the other for autocratic administration. In Jackson, whim,

prejudice, hatred, and fierce affections were dominant; in Marshall,

steady, level views of life and government, devotion to order and

regularity, abhorrence of quarrel and feud, constancy and evenness in

friendship or conviction, were the chief elements of character.

Moreover, the Chief Justice personified the static forces of society;

the new President was the product of a fresh upheaval of democracy, not

unlike that which had placed Jefferson in power.

Marshall had administered the Presidential oath seven times

before--twice each to Jefferson, Madison, and Monroe, and once to John

Quincy Adams. And now he was reading the solemn words to the passionate

frontier soldier from whose wild, undisciplined character he feared so

much. Marshall briefly writes his wife about the inauguration: "We had

yesterday a most busy and crowded day. People have flocked to Washington

from every quarter of the United States. When the oath was administered

to the President the computation is that 12 or 15000 people were

present--a great number of them ladies. A great ball was given at night

to celebrate the election. I of course did not attend it. The

affliction of our son[1276] would have been sufficient to restrain me

had I even felt a desire to go."[1277] In a previous letter to his wife

he forecast the crowds and commotion: "The whole world it is said will

be here.... I wish I could leave it all and come to you. How much more

delightful would it be to me to sit by your side than to witness all the

pomp and parade of the inauguration."[1278]

Much as he had come to dislike taking part in politics or in public

affairs, except in the discharge of his judicial duties, Marshall was

prevailed upon to be a delegate to the Virginia Constitutional

Convention of 1829-30. He refused, at first, to stand for the place and

hastened to reassure his "dearest Polly." "I am told," he continues in

his letter describing Jackson's induction into office, "by several that

I am held up as a candidate for the convention. I have no desire to be

in the convention and do not mean to be a candidate. I should not

trouble you with this did I not apprehend that the idea of my wishing to

be in the convention might prevent some of my friends who are themselves

desirous of being in it from becoming candidates. I therefore wish you

to give this information to Mr. Harvie.[1279]... Farewell my dearest

Polly. Your happiness is always nearest the heart of your J.

Marshall."[1280]

He yielded, however, and wrote Story of his disgust at having done so:

"I am almost ashamed of my weakness and irresolution when I tell you

that I am a member of our convention. I was in earnest when I told you

that I would not come into that body, and really believed that I should

adhere to that determination; but I have acted like a girl addressed by

a gentleman she does not positively dislike, but is unwilling to marry.

She is sure to yield to the advice and persuasion of her friends.... The

body will contain a great deal of eloquence as well as talent, and yet

will do, I fear, much harm with some good. Our freehold suffrage is, I

believe, gone past redemption. It is impossible to resist the influence,

I had almost said contagion of universal example."[1281]

For fifty-three years Virginia had been governed under the constitution

adopted at the beginning of the Revolution. As early as the close of

this war the injustice and inadequacy of the Constitution of 1776 had

become evident, and, as a member of the House of Delegates, Marshall

apparently had favored the adoption of a new fundamental law for the

State.[1282] Almost continuously thereafter the subject had been brought

forward, but the conservatives always had been strong enough to defeat

constitutional reform.

On July 12, 1816, in a letter to Samuel Kercheval, one of the ablest

documents he ever produced, Jefferson had exposed the defects of

Virginia's constitution which, he truly said, was without "leading

principles." It denied equality of representation; the Governor was

neither elected nor controlled by the people; the higher judges were

"dependent on none but themselves." With unsparing severity Jefferson

denounces the County Court system.

Clearly and simply he enumerates the constructive reforms imperatively

demanded, beginning with "General Suffrage" and "Equal representation,"

on which, however, he says that he wishes "to take no public share"

because that question "has become a party one." Indeed, at the very

beginning of this brilliant and well-reasoned letter, Jefferson tells

Kercheval that it is "for your satisfaction only, and not to be quoted

before the public."[1283]

But Kercheval handed the letter around freely and proposed to print it

for general circulation. On hearing of this, Jefferson was "alarmed" and

wrote Kercheval harshly, repeating that the letter was not to be given

out and demanding that the original and copies be recalled.[1284] This

uncharacteristic perturbation of the former President reveals in

startling fashion the bitterness of the strife over the calling of the

convention, and over the issues confronting that body in making a new

constitution for Virginia.

Of the serious problems to be solved by the Convention of 1829-30, that

of suffrage was the most important. Up to that time nobody could vote in

Virginia except white owners of freehold estates. Counties, regardless

of size, had equal representation in the House of Delegates. This gave

to the eastern and southern slaveholding sections of the State, with

small counties having few voters, an immense preponderance over the

western and northwestern sections, with large counties having many

voters. On the other hand, the rich slavery districts paid much heavier

taxes than the poorer free counties.[1285]

Marshall was distressed by every issue, to settle which the convention

had been called. The question of the qualification for suffrage

especially agitated him. Immediately after his election to the

convention, he wrote Story of his troubles and misgivings: "We shall

have a good deal of division and a good deal of heat, I fear, in our

convention. The freehold principle will, I believe, be lost. It will,

however, be supported with zeal. If that zeal should be successful I

should not regret it. If we find that a decided majority is against

retaining it I should prefer making a compromise by which a substantial

property qualification may be preserved in exchange for it.

"I fear the excessive [torn--probably, democratic spirit, coin]cident to

victory after a hard fought battle continued to the last extremity may

lead to universal suffrage or something very near it. What is the

prop[erty] qualification for your Senate? How are your Senators

apportioned on the State? And how does your system work? The question

whether white population alone, or white population compounded with

taxation, shall form the basis of representation will excite perhaps

more interest than even the freehold suffrage. I wish we were well

through the difficulty."[1286]

The Massachusetts Constitutional Convention had been held nearly a

decade before that of Virginia. The problem of suffrage had troubled the

delegates almost as much as it now perplexed Marshall. The reminiscent

Pickering writes the Chief Justice of the fight made in 1820 by the

Massachusetts conservatives against "the conceited innovators." Story

had been a delegate, and so had John Adams, fainting with extreme age,

but rich with the wisdom of his eighty-five years: "He made a short, but

very good speech," begging the convention to retain the State Senate as

"the representative of _property_; ... the number of Senators in each

district was proportioned to its direct taxes to the State revenue--and

not to its population. Some democrats desired that the number of

Senators should be apportioned not according to the taxation, but

exclusively to the population. This, Mr. Adams and all the most

intelligent and considerate members opposed."[1287]

Ultra-conservative as Marshall was, strongly as he felt the great body

of the people incapable of self-government, he was deeply concerned for

the well-being of what he called "the mass of the people." The best

that can be done for them, he says in a letter to Charles F. Mercer, is

to educate them. "In governments entirely popular" general education "is

more indispensable ... than in an other." The labor problem troubles him

sorely. When population becomes so great that "the surplus hands" must

turn to other employment, a grave situation will arise.

"As the supply exceeds the demand the price of labour will cheapen until

it affords a bare subsistence to the labourer. The superadded demands of

a family can scarcely be satisfied and a slight indisposition, one which

suspends labour and compensation for a few days produces famine and

pauperism. How is this to be prevented?" Education may be relied on "in

the present state of our population, and for a long time to come.... But

as our country fills up how shall we escape the evils which have

followed a dense population?"[1288]

The Chief Justice went to the Virginia Convention a firm supporter of

the strongest possible property qualification for suffrage. On the

question of slavery, which arose in various forms, he had not made his

position clear. The slavery question, as a National matter, perplexed

and disturbed Marshall. There was nothing in him of the humanitarian

reformer, but there was everything of the statesman. He never had but

one, and that a splendid, vision.

The American Nation was his dream; and to the realization of it he

consecrated his life. A full generation after Marshall wrote his last

despairing word on slavery, Abraham Lincoln expressed the conviction

which the great Chief Justice had entertained: "I would save the Union.

I would save it the shortest way under the Constitution.... If I could

save the Union without freeing any slave, I would do it; and if I could

save it by freeing some and leaving others alone, I would also do that.

What I do about slavery and the colored race, I do because I believe it

helps to save the Union."[1289]

Pickering, the incessant, in one of his many and voluminous letters to

Marshall which the ancient New Englander continued to write as long as

he lived, had bemoaned the existence of slavery--one of the rare

exhibitions of Liberalism displayed by that adamantine Federalist

conservative. Marshall answered: "I concur with you in thinking that

nothing portends more calamity & mischief to the Southern States than

their slave population. Yet they seem to cherish the evil and to view

with immovable prejudice & dislike every thing which may tend to

diminish it. I do not wonder that they should resist any attempt, should

one be made, to interfere with the rights of property, but they have a

feverish jealousy of measures which may do good without the hazard of

harm that is, I think, very unwise."[1290]

Marshall heartily approved the plan of the American Colonization Society

to send free negroes back to Africa. The Virginia branch of that

organization was formed in 1829, the year of the State Constitutional

Convention, and Marshall became a member. Two years later he became

President of the Virginia branch, with James Madison, John Tyler, Abel

P. Upshur, and other prominent Virginians as Vice-Presidents.[1291] In

1831, Marshall was elected one of twenty-four Vice-Presidents of the

National society, among whom were Webster, Clay, Crawford, and

Lafayette.[1292]

The Reverend R. R. Gurley, Secretary of this organization, wrote to the

more eminent members asking for their views. Among those who replied

were Lafayette, Madison, and Marshall. The Chief Justice says that he

feels a "deep interest in the ... society," but refuses to "prepare any

thing for publication." The cause of this refusal is "the present state

of [his] family"[1293] and a determination "long since formed ...

against appearing in print on any occasion." Nevertheless, he writes

Gurley a letter nearly seven hundred words in length.

Marshall thinks it "extremely desirable" that the States shall pass

"permanent laws" affording financial aid to the colonization project. It

will be "also desirable" if this legislation can be secured "to incline

the people of color to migrate." He had thought for a long time that it

was just possible that more negroes might like to go to Liberia than

"can be provided for with the funds [of] the Society"; therefore he had

"suggested, some years past," to the managers, "to allow a small

additional bounty in lands to those who would pay their passage in whole

or in part."

To Marshall it appears to be of "great importance to retain the

countenance and protection of the General Government. Some of our

cruizers stationed on the coast of Africa would, at the same time,

interrupt the slave trade--a horrid traffic detested by all good

men--and would protect the vessels and commerce of the Colony from

pirates who infest those seas. The power of the government to afford

this aid is not, I believe, contested." He thinks the plan of Rufus King

to devote part of the proceeds from the sale of public lands to a fund

for the colonization scheme, "the most effective that can be devised,"

Marshall makes a brief but dreary argument for this method of raising

funds for the exportation of the freed blacks.

He thus closes this eminently practical letter: "The removal of our

colored population is, I think, a common object, by no means confined to

the slave States, although they are more immediately interested in it.

The whole Union would be strengthened by it, and relieved from a danger,

whose extent can scarcely be estimated." Furthermore, says the Chief

Justice, "it lessens very much ... the objection in a political view to

the application of this ample fund [from the sale of the public domain],

that our lands are becoming an object for which the States are to

scramble, and which threatens to sow the seeds of discord among us

instead of being what they might be--a source of national wealth."[1294]

Marshall delivered two opinions in which the question of slavery was

involved, but they throw little light on his sentiments. In the case of

the Antelope he held that the slave trade was not prohibited by

international law as it then existed; but since the court, including

Story and Thompson, both bitter antagonists of slavery, was unanimous,

the views of Marshall cannot be differentiated from those of his

associates. Spain and Portugal claimed certain negroes forcibly taken

from Spanish and Portuguese slavers by an American slaver off the coast

of Africa. After picturesque vicissitudes the vessel containing the

blacks was captured by an American revenue cutter and taken to Savannah

for adjudication.

In due course the case reached the Supreme Court and was elaborately

argued. The Government insisted that the captured negroes should be

given their liberty, since they had been brought into the country in

violation of the statutes against the importation of slaves. Spain and

Portugal demanded them as slaves "acquired as property ... in the

regular course of legitimate commerce."[1295] It was not surprising that

opinion on the slave trade was "unsettled," said Marshall in delivering

the opinion of the court.

All "Christian and civilized nations ... have been engaged in it....

Long usage, and general acquiescence" have sanctioned it.[1296] America

had been the first to "check" the monstrous traffic. But, whatever its

feelings or the state of public opinion, the court "must obey the

mandate of the law."[1297] He cites four English decisions, especially a

recent one by Sir William Scott, the effect of all being that the slave

trade "could not be pronounced contrary to the law of nations."[1298]

Every nation, therefore, has a right to engage in it. Some nations may

renounce that right sanctioned by "universal assent." But other nations

cannot be bound by such "renunciation." For all nations, large and

small, are equal--"Russia and Geneva have equal rights." No one nation

"can rightfully impose a rule on another ... none can make a law of

nations; and this traffic remains lawful to those whose governments have

not forbidden it.... It follows, that a foreign vessel engaged in the

African slave trade, captured on the high seas in time of peace, by an

American cruiser, and brought in for adjudication, would be

restored."[1299]

Four months before Marshall was elected a member of the Virginia

Constitutional Convention, he delivered another opinion involving the

legal status of slaves. Several negroes, the property of one Robert

Boyce, were on a steamboat, the Teche, which was descending the

Mississippi. The vessel took fire and those on board, including the

negroes, escaped to the shore. Another steamboat, the Washington, was

coming up the river at the time, and her captain, in response to appeals

from the stranded passengers of the burning vessel, sent a yawl to bring

them to the Washington. The yawl was upset and the slaves drowned. The

owner of them sued the owner of the Washington for their value. The

District Court held that the doctrine of common carriers did not apply

to human beings; and this was the only question before the Supreme

Court, to which Boyce appealed.

"A slave ... cannot be stowed away as a common package," said Marshall

in his brief opinion. "The responsibility of the carrier should be

measured by the law which is applicable to passengers, rather than by

that which is applicable to the carriage of common goods.... The law

applicable to common carriers is one of great rigor.... It has not been

applied to living men, and ... ought not to be applied to them."

Nevertheless, "the ancient rule 'that the carrier is liable only for

ordinary neglect,' still applies" to slaves. Therefore the District

Court was right in its instructions to the jury.[1300]

The two letters quoted and the opinions expressing the unanimous

judgment of the Supreme Court are all the data we have as to Marshall's

views on slavery. It appears that he regretted the existence of slavery,

feared the results of it, saw no way of getting rid of it, but hoped to

lessen the evil by colonizing in Africa such free black people as were

willing to go there. In short, Marshall held the opinion on slavery

generally prevailing at that time. He was far more concerned that the

Union should be strengthened, and dissension in Virginia quieted, than

he was over the problem of human bondage, of which he saw no solution.

When he took his seat as a delegate to the Virginia Constitutional

Convention of 1829-30, a more determined conservative than Marshall did

not live. Apparently he did not want anything changed--especially if the

change involved conflict--except, of course, the relation of the States

to the Nation. He was against a new constitution for Virginia; against

any extension of suffrage; against any modification of the County Court

system except to strengthen it; against a free white basis of

representation; against legislative interference with business. His

attitude was not new, nor had he ever concealed his views.

His opinions of legislation and corporate property, for instance, are

revealed in a letter written twenty years before the Convention of

1829-30. In withdrawing from some Virginia corporation because the

General Assembly of the State had passed a law for the control of it,

Marshall wrote: "I consider the interference of the legislature in the

management of our private affairs, whether those affairs are committed

to a company or remain under individual direction, as equally dangerous

and unwise. I have always thought so and I still think so. I may be

compelled to subject my property to these interferences, and when

compelled I shall submit; but I will not voluntarily expose myself to

the exercise of a power which I think so improperly usurped."[1301]

Two years before the convention was called, Marshall's unyielding

conservatism was displayed in a most conspicuous manner. In Sturges

_vs._ Crowninshield,[1302] a State law had been held invalid which

relieved creditors from contracts made before the passage of that law.

But, in his opinion in that case, Marshall used language that also

applied to contracts made after the enactment of insolvency statutes;

and the bench and bar generally had accepted his statement as the

settled opinion of the Supreme Court. But so acute had public discontent

become over this rigid doctrine, so strident the demand for bankrupt

laws relieving insolvents, at least from contracts made after such

statutes were enacted, that the majority of the Supreme Court yielded to

popular insistence and, in Ogden _vs._ Saunders,[1303] held that "an

insolvent law of a State does not impair the obligation of future

contracts between its citizens."[1304]

For the first time in twenty-seven years the majority of the court

opposed Marshall on a question of Constitutional law. The Chief Justice

dissented and delivered one of the most powerful opinions he ever wrote.

The very "nature of our Union," he says, makes us "one people, as to

commercial objects."[1305] The prohibition in the contract clause "is

complete and total. There is no exception from it.[1306]... Insolvent

laws are to operate on a future, contingent unforseen event."[1307] Yet

the majority of the court hold that such legislation enters into

subsequent contracts "so completely as to become a ... part" of them. If

this is true of one law, it is true of "every other law which relates to

the subject."

But this would mean, contends Marshall, that a vital provision of the

Constitution, "one on which the good and the wise reposed confidently

for securing the prosperity and harmony of our citizens, would lie

prostrate, and be construed into an inanimate, inoperative, unmeaning

clause." The construction of the majority of the court would "convert an

inhibition to pass laws impairing the obligation of contracts into an

inhibition to pass retrospective laws."[1308] If the Constitution means

this, why is it not so expressed? The mischievous laws which caused the

insertion of the contract clause "embraced future contracts, as well as

those previously formed."[1309]

The gist of Marshall's voluminous opinion in Ogden _vs._ Saunders is

that the Constitution protects all contracts, past or future, from State

legislation which in any manner impairs their obligation.[1310]

Considering that even the rigidly conservative Bushrod Washington,

Marshall's stanch supporter, refused to follow his stern philosophy, in

this case, the measure and character of Marshall's conservatism are seen

when, in his seventy-fifth year, he helped to frame a new constitution

for Virginia.

Still another example of Marshall's rock-like conservatism and of the

persistence with which he held fast to his views is afforded by a second

dissent from the majority of the court at the same session. This time

every one of the Associate Justices was against him, and Story delivered

their unanimous opinion. The Bank of the United States had sued Julius

B. Dandridge, cashier of the Richmond branch, and his sureties, on his

official bond. Marshall, sitting as Circuit Judge, had held that only

the written record of the bank's board of directors, that they approved

and accepted the bond, could be received to prove that Dandridge had

been legally authorized to act as cashier.

The Supreme Court reversed Marshall's judgment, holding that the

authorization of an agent by a corporation can be established by

presumptive evidence,[1311] an opinion that was plainly sound and which

stated the law as it has continued to be ever since. But despite the

unanimity of his brethren, the clear and convincing opinion of Story,

the disapproval of his own views by the bench, bar, and business men of

the whole country, Marshall would not yield. "The Ch: Jus: I fear will

_die hard_," wrote Webster, who was of counsel for the bank.[1312]

In a very long opinion Marshall insists that his decision in the Circuit

Court was right, fortifying his argument by more than thirty citations.

He begins by frank acknowledgment of the discontent his decision in the

Circuit Court has aroused: "I should now, as is my custom, when I have

the misfortune to differ with this court, acquiesce silently in its

opinion, did I not believe that the judgment of the circuit court of

Virginia gave general surprise to the profession, and was generally

condemned." Corporations, "being destitute of human organs," can express

themselves only by writing. They must act through agents; but the agency

can be created and proved only by writing.

Marshall points out the serious possibilities to those with whom

corporations deal, as well as to the corporations themselves, of the

acts of persons serving as agents without authority of record.[1313]

Powerful as his reasoning is, it is based on mistaken premises

inapplicable to modern corporate transactions; but his position, his

method, his very style, reveal the stubborn conservative at bay, bravely

defending himself and his views.

This, then, was the John Marshall, who, in his old age, accepted the

call of men as conservative as himself to help frame a new constitution

for Virginia, On Monday, October 5, 1829, the convention met in the

House of Delegates at Richmond. James Madison, then in his seventy-ninth

year, feeble and wizened, called the members to order and nominated

James Monroe for President of the convention. This nomination was

seconded by Marshall. These three men, whose careers since before the

Revolution and throughout our formative period, had been more

distinguished, up to that time, than had that of any American then

living, were the most conspicuous persons in that notable Assembly.

Giles, now Governor of the State, was also a member; so were Randolph,

Tyler, Philip P. Barbour, Upshur, and Tazewell. Indeed, the very ablest

men in Virginia had been chosen to make a new constitution for the

State. In the people's anxiety to select the best men to do that

important work, delegates were chosen regardless of the districts in

which they lived.[1314]

To Marshall, who naturally was appointed to the Judiciary

Committee,[1315] fell the task of presenting to the convention the first

petition of non-freeholders for suffrage.[1316] No more impressive

document was read before that body. It stated the whole democratic

argument clearly and boldly.[1317] The first report received from any

committee was made by Marshall and also was written by him.[1318] It

provided for the organization of the State Judiciary, but did not seek

materially to change the system of appointments of judges.

Two sentences of this report are important: "No modification or

abolition of any Court, shall be construed to deprive any Judge thereof

of his office"; and, "Judges may be removed from office by a vote of the

General Assembly: but two-thirds of the whole number of each House must

concur in such vote."[1319] Marshall promptly moved that this report be

made the order of the day and this was done.

Ranking next to the question of the basis of suffrage and of

representation was that of judiciary reform. To accomplish this reform

was one of the objects for which the convention had been called. At that

time the Judiciary of Virginia was not merely a matter of courts and

judges; it involved the entire social and political organization of that

State. No more essentially aristocratic scheme of government ever

existed in America. Coming down from Colonial times, it had been

perpetuated by the Revolutionary Constitution of 1776. It had, in

practical results, some good qualities and others that were evil, among

the latter a well-nigh faultless political mechanism.[1320]

The heart of this system was the County Courts. Too much emphasis cannot

be placed on this fact. These local tribunals consisted of justices of

the peace who sat together as County Courts for the hearing and decision

of the more important cases. They were almost always the first men of

their counties, appointed by the Governor for life; vacancies were, in

practice, filled only on the recommendation of the remaining justices.

While the Constitution of 1776 did not require the Governor to accept

the nominations of the County Courts for vacancies in these offices, to

do so had been a custom long established.[1321]

For this acquiescence of the Governor in the recommendation of the

County Courts, there was a very human reason of even weightier influence

than that of immemorial practice. The Legislature chose the Governor;

and the justices of the peace selected, in most cases, the candidates

for the Legislature--seldom was any man elected by the people to the

State Senate or House of Delegates who was not approved by the County

Courts. Moreover, the other county offices, such as county clerks and

sheriffs, were appointed by the Governor only on the suggestion of the

justices of the peace; and these officials worked in absolute agreement

with the local judicial oligarchy. In this wise members of Congress

were, in effect, named by the County Courts, and the Legislature dared

not and did not elect United States Senators of whom the justices of the

peace disapproved.

The members of the Court of Appeals, appointed by the Governor, were

never offensive to these minor county magistrates, although the judges

of this highest tribunal in Virginia, always able and learned men

holding their places for life, had great influence over the County

Courts, and, therefore, over the Governor and General Assembly also. Nor

was this the limit of the powers of the County Courts. They fixed the

county rate of taxation and exercised all local legislative and

executive as well as judicial power.[1322]

In theory, a more oligarchic system never was devised for the government

of a free state; but in practice, it responded to the variations of

public opinion with almost the precision of a thermometer. For example,

nearly all the justices of the peace were Federalists during the first

two years of Washington's Administration; yet the State supported Henry

against Assumption, and, later, went over to Jefferson as against

Washington and Henry combined.[1323]

Rigid and self-perpetuating as was the official aristocracy which the

Virginia judicial system had created, its members generally attended to

their duties and did well their public work.[1324] They lived among the

people, looked after the common good, composed disputes between

individuals; soothed local animosities, prevented litigation; and

administered justice satisfactorily when, despite their preventive

efforts, men would bring suits. But the whole scheme was the very

negation of democracy.[1325]

While, therefore, this judicial-social-political plan worked well for

the most part, the idea of it was offensive to liberal-minded men who

believed in democracy as a principle. Moreover, the official oligarchy

was more powerful in the heavy slaveholding, than in the comparatively

"free labor," sections; it had been longer established, and it better

fitted conditions, east of the mountains.

So it came about that there was, at last, a demand for judicial reform.

Seemingly this demand was not radical--it was only that the

self-perpetuating County Court system should be changed to appointments

by the Governor without regard to recommendations of the local justices;

but, in reality, this change would have destroyed the traditional

aristocratic organization of the political, social, and to a great

extent the economic, life of Virginia.

On every issue over which the factions of this convention fought,

Marshall was reactionary and employed all his skill to defeat, whenever

possible, the plans and purposes of the radicals. In pursuing this

course he brought to bear the power of his now immense reputation for

wisdom and justice. Perhaps no other phase of his life displays more

strikingly his intense conservatism.

The conclusion of his early manhood--reluctantly avowed after

Washington, following the Revolution, had bitterly expressed the same

opinion,[1326] that the people, left to themselves, are not capable of

self-government--had now become a profound moral belief. It should again

be stated that most of Marshall's views, formed as a young lawyer during

the riotous years between the achievement of Independence and the

adoption of the Constitution, had hardened, as life advanced, into

something like religious convictions. It is noteworthy, too, that, in

general, Madison, Giles, and even Monroe, now stood with Marshall.

The most conspicuous feature of those fourteen weeks of tumultuous

contest, as far as it reveals Marshall's personal standing in Virginia,

was the trust, reverence, and affection in which he was held by all

members, young and old, radical and conservative, from every part of the

State. Speaker after speaker, even in the fiercest debates, went out of

his way to pay tribute to Marshall's uprightness and wisdom.[1327]

Marshall spoke frequently on the Judiciary; and, at one point in a

debate on the removal of judges, disclosed opinions of historical

importance. Although twenty-seven years had passed since the repeal of

the Federalist Judiciary Act of 1801,[1328] Marshall would not, even

now, admit that repeal to be Constitutional. Littleton W. Tazewell,

also a member of the Judiciary Committee, asserted that, under the

proposed new State Constitution, the Legislature could remove judges

from office by abolishing the courts. John Scott of Fauquier County

asked Marshall what he thought of the ousting of Federalist judges by

the Republicans in 1802.

The Chief Justice answered, "with great, very great repugnance," that

throughout the debate he had "most carefully avoided" expressing any

opinion on that subject. He would say, however, that "he did not

conceive the Constitution to have been at all definitely expounded by a

single act of Congress." Especially when "there was no union of

Departments, but the Legislative Department alone had acted, and acted

but once," ignoring the Judicial Department, such an act, "even

admitting that act not to have passed in times of high political

and party excitement, could never be admitted as final and

conclusive."[1329]

Tazewell was of "an exactly opposite opinion"--the Repeal Act of 1802

"was perfectly constitutional and proper." Giles also disagreed with

Marshall. Should "a public officer ... receive the public money any

longer than he renders service to the public"?[1330] Marshall replied

with spirit. No serious question can be settled, he declared, by mere

"confidence of conviction, but on the reason of the case." All that he

asked was that the Judiciary Article of the proposed State Constitution

should go forth, "uninfluenced by the opinion of any individual: let

those, whose duty it was to settle the interpretation of the

Constitution, decide on the Constitution itself."[1331] After extended

debate[1332] and some wrangling, Marshall's idea on this particular

phase of the subject prevailed.[1333]

The debate over the preservation of the County Court system, for which

Marshall's report provided, was long and acrimonious, and a résumé of it

is impossible here. Marshall stoutly supported these local tribunals;

their "abolition will affect our whole internal police.... No State in

the Union, has hitherto enjoyed more complete internal quiet than

Virginia. There is no part of America, where ... less of ill-feeling

between man and man is to be found than in this Commonwealth, and I

believe most firmly that this state of things is mainly to be ascribed

to the practical operation of our County Courts." The county judges

"consist in general of the best men in their respective counties. They

act in the spirit of peace-makers, and allay, rather than excite the

small disputes ... which will sometimes arise among neighbours."[1334]

Giles now aligned himself with Marshall as a champion of the County

Court system. In an earnest defense of it he went so far as to reflect

on the good sense of Jefferson. Everybody, said Giles, knew that that

"highly respectable man ... dealt very much in theories."[1335]

During the remainder of the discussion on this subject, Marshall rose

frequently, chiefly, however, to guide the debate.[1336] He insisted

that the custom of appointing justices of the peace only on nomination

of the County Courts should be written into the constitution. The

Executive ought to appoint _all_ persons recommended by "a County Court,

taken as a whole." Marshall then moved an amendment to that

effect.[1337]

This was a far more conservative idea than was contained in the old

constitution itself. "Let the County Court who now recommended, have

power also to appoint: for there it ended at last," said William

Campbell of Bedford County. Giles was for Marshall's plan: "The existing

County Court system" threw "power into the hands of the middle class of

the community," he said; and it ought to be fortified rather than

weakened.

Marshall then withdrew his astonishing amendment and proposed, instead,

that the advice and "consent of the Senate" should not be required for

appointments of county justices, thus utterly eliminating all

legislative control over these important appointments; and this extreme

conservative proposition was actually adopted without dissent.[1338]

Thus the very foundation of Virginia's aristocratic political

organization was greatly strengthened.

Concerning the retention of his office by a judge after the court had

been abolished, Marshall made an earnest and impressive speech. What

were the duties of a judge? "He has to pass between the Government and

the man whom that Government is prosecuting: between the most powerful

individual in the community, and the poorest and most unpopular. It is

of the last importance, that in the exercise of these duties, he should

observe the utmost fairness. Need I press the necessity of this? Does

not every man feel that his own personal security and the security of

his property depends on that fairness?

"The Judicial Department comes home in its effects to every man's

fireside: it passes on his property, his reputation, his life, his all.

Is it not, to the last degree important, that he should be rendered

perfectly and completely independent, with nothing to influence or

control him but God and his conscience?

"You do not allow a man to perform the duties of a juryman or a Judge,

if he has one dollar of interest in the matter to be decided: and will

you allow a Judge to give a decision when his office may depend upon it?

when his decision may offend a powerful and influential man?

"Your salaries do not allow any of your Judges to lay up for his old

age: the longer he remains in office, the more dependant he becomes upon

his office. He wishes to retain it; if he did not wish to retain it, he

would not have accepted it. And will you make me believe that if the

manner of his decision may affect the tenure of that office, the man

himself will not be affected by that consideration?... The whole good

which may grow out of this Convention, be it what it may, will never

compensate for the evil of changing the tenure of the Judicial office."

Barbour had said that to presume that the Legislature would oust judges

because of unpopular decisions, was to make an unthinkable imputation.

But "for what do you make a Constitution?" countered Marshall. Why

provide that "no bill of attainder, or an _ex post facto_ law, shall be

passed? What a calumny is here upon the Legislature," he sarcastically

exclaimed. "Do you believe, that the Legislature will pass a bill of

attainder, or an _ex post facto_ law? Do you believe, that they will

pass a law impairing the obligation of contracts? If not, why provide

against it?...

"You declare, that the Legislature shall not take private property for

the public use, without just compensation. Do you believe, that the

Legislature will put forth their grasp upon private property, without

compensation? Certainly I do not. There is as little reason to believe

they will do such an act as this, as there is to believe, that a

Legislature will offend against a Judge who has given a decision against

some favourite opinion and favourite measure of theirs, or against a

popular individual who has almost led the Legislature by his talents and

influence.

"I am persuaded, there is at least as much danger that they will lay

hold on such an individual, as that they will condemn a man to death for

doing that which, when he committed it, was no crime. The gentleman

says, it is impossible the Legislature should ever think of doing such a

thing. Why then expunge the prohibition?... This Convention can do

nothing that would entail a more serious evil upon Virginia, than to

destroy the tenure by which her Judges hold their offices."[1339]

An hour later, the Chief Justice again addressed the convention on the

independence of the Judiciary. Tazewell had spoken much in the vein of

the Republicans of 1802.[1340] "The independence of all those who try

causes between man and man, and between a man and his Government,"

answered Marshall, "can be maintained only by the tenure of their

office. Is not their independence preserved under the present system?

None can doubt it. Such an idea was never heard of in Virginia, as to

remove a Judge from office." Suppose the courts at the mercy of the

Legislature? "What would then be the condition of the court, should the

Legislature prosecute a man, with an earnest wish to convict him?... If

they may be removed at pleasure, will any lawyer of distinction come

upon your bench?

"No, Sir. I have always thought, from my earliest youth till now, that

the greatest scourge an angry Heaven ever inflicted upon an ungrateful

and a sinning people, was an ignorant, a corrupt, or a dependent

Judiciary. Will you draw down this curse upon Virginia? Our ancestors

thought so: we thought so till very lately; and I trust the vote of this

day will shew that we think so still."[1341]

Seldom in any parliamentary body has an appeal been so fruitful of

votes. Marshall's idea of the inviolability of judicial tenure was

sustained by a vote of 56 to 29, Madison voting with him.[1342]

Lucas P. Thompson of Amherst County moved to strike out the provision in

Marshall's Judiciary Article that the abolition of a court should not

"deprive any Judge thereof of his office."[1343] Thus the direct

question, so fiercely debated in Congress twenty-seven years

earlier,[1344] was brought before the convention. It was promptly

decided, and against the views and action of Jefferson and the

Republicans of 1802. By a majority of 8 out of a total of 96,[1345] the

convention sustained the old Federalist idea that judges should continue

to hold their positions and receive their salaries, even though their

offices were abolished.

Before the vote was taken, however, a sharp debate occurred between

Marshall and Giles. To keep judges in office, although that office be

destroyed, "was nothing less than to establish a privileged corps in a

free community," said Giles. Marshall had said "that a Judge ought to be

responsible only to God and to his own conscience." Although "one of the

first objects in view, in calling this Convention, was to make the

Judges responsible--not nominally, but really responsible," Marshall

actually proposed to establish "a _privileged order_ of men." Another

part of Marshall's plan, said Giles, required the concurrent vote of

both Houses of the Legislature to remove a judge from the bench. "This

was inserted, for what?" To prevent the Legislature from removing a

judge "whenever his conduct had been such, that he became unpopular and

odious to the people"--the very power the Legislature ought to

have.[1346]

In reply, Marshall said that he would not, at that time, discuss the

removal of judges by the Legislature, but would confine himself

"directly to the object before him," as to whether the abolition of a

court should not deprive the judge of his office. Giles had fallen into

a strange confusion--he had treated "the office of a Judge, and the

Court in which he sat, as being ... indissolubly united." But, asked

Marshall, were the words "office and Court synonymes"? By no means. The

proposed Judiciary Article makes the distinction when it declares that

though the _court_ be abolished, the judge still holds his _office_. "In

what does the office of a Judge consist? ... in his constitutional

capacity to receive Judicial power, and to perform Judicial Duties....

"If the Constitution shall declare that when the court is abolished, he

shall still hold" his office, "there is no inconsistency in the

declaration.... What creates the office?" An election to it by the

Legislature and a commission by the Governor. "When these acts have been

performed, the Judges are in office. Now, if the Constitution shall say

that his office shall continue, and he shall perform Judicial duties,

though his court may be abolished, does he, because of any modification

that may be made in that court, cease to be a Judge?...

"The question constantly recurs--do you mean that the Judges shall be

removable at the will of the Legislature? The gentleman talks of

responsibility. Responsibility to what? to the will of the Legislature?

can there be no responsibility, unless your Judges shall be removable at

pleasure? will nothing short of this satisfy gentlemen? Then, indeed,

there is an end to independence. The tenure during good behaviour, is a

mere imposition on the public belief--a sound that is kept to the

ear--and nothing else. The consequences must present themselves to every

mind. There can be no member of this body who does not feel them.

"If your Judges are to be removable at the will of the Legislature, all

that you look for from fidelity, from knowledge, from capacity, is gone

and gone forever." Seldom did Marshall show more feeling than when

pressing this point; he could not "sit down," he said, without "noticing

the morality" of giving the Legislature power to remove judges from

office. "Gentlemen talk of sinecures, and privileged orders--with a

view, as it would seem, to cast odium on those who are in office.

"You seduce a lawyer from his practice, by which he is earning a

comfortable independence, by promising him a certain support for life,

unless he shall be guilty of misconduct in his office. And after thus

seducing him, when his independence is gone, and the means of

supporting his family relinquished, you will suffer him to be

displaced and turned loose on the world with the odious brand of

sinecure-pensioner--privileged order--put upon him, as a lazy drone who

seeks to live upon the labour of others. This is the course you are

asked to pursue."

The provisions of the Judiciary Article before the convention secure

ample responsibility. "If not, they can be made [to do] so. But is it

not new doctrine to declare, that the Legislature by merely changing the

name of a court or the place of its meeting, may remove any Judge from

his office? The question to be decided is, and it is one to which we

must come, whether the Judges shall be permanent in their office, or

shall be dependent altogether upon the breath of the Legislature."[1347]

Giles answered on the instant. In doing so, he began by a tribute to

Marshall's "standing and personal excellence" which were so great "that

he was willing to throw himself into the background, as to any weight to

be attached to his [Giles's] own opinion." Therefore, he would "rely

exclusively on the merits" of the controversy. Marshall had not shown

"that it was not an anomaly to have the court out of being, and an

office pertain[ing] to the court in being.... It was an anomaly in

terms."

Giles "had, however, such high respect" for Marshall's standing, "that

he always doubted his own opinion when put in opposition" to that of the

Chief Justice. He had not intended, he avowed, "to throw reproach upon

the Judges in office." Far be it from him to reflect "in the least

degree on their honour and integrity." His point was that, by Marshall's

plan, "responsibility was rather avoided than sought to be secured."

Giles was willing to risk his liberty thus far--"if a Judge became

odious to the people, let him be removed from office."[1348]

The debate continued upon another amendment by Thompson. Viewing the

contest as a sheer struggle of minds, the conservatives were superior to

the reformers,[1349] and steadily they gained votes.[1350]

Again Marshall spoke, this time crossing swords with Benjamin W. S.

Cabell and James Madison, over a motion of the former that judges whose

courts were abolished, and to whom the Legislature assigned no new

duties, should not receive salaries: "There were upwards of one hundred

Inferior Courts in Virginia.... No gentleman could look at the dockets

of these courts, and possibly think" that the judges would ever have no

business to transact.

Cabell's amendment "stated an impossible case," said Marshall,--a "case

where there should be no controversies between man and man, and no

crimes committed against society. It stated a case that could not

happen--and would the convention encounter the real hazard of putting

almost every Judge in the Commonwealth in the power of the Legislature,

for the sake of providing for an impossible case?"[1351] But in spite of

Marshall's opposition, Cabell's amendment was adopted by a vote of 59

to 36.[1352] Two weeks later, however, the convention reversed itself by

two curious and contradictory votes.[1353] So in the end Marshall won.

The subject of the Judiciary did not seriously arise again until the

vote on the adoption of the entire constitution was imminent. As it

turned out, the constitution, when adopted, contained, in substance, the

Judiciary provisions which Marshall had written and reported at the

beginning of that body's deliberations.[1354]

The other and the commanding problem, for the solution of which the

contention had been called, was made up of the associated questions of

suffrage, taxation, and representation. Broadly speaking, the issue was

that of white manhood suffrage and representation based upon the

enumeration of whites, as against suffrage determined by property and

taxation, representation to be based on an enumeration which included

three fifths of the slave population.[1355]

In these complex and tangled questions the State and the convention were

divided; so fierce were the contending factions, and so diverse were

opinions on various elements of the confused problem, especially among

those demanding reform, that at times no solution seemed possible. The

friends of reform were fairly well organized and coöperated in a spirit

of unity uncommon to liberals. But, as generally happens, the

conservatives had much better discipline, far more harmony of opinion

and conduct. The debate on both sides was able and brilliant.[1356]

Finally the convention seemingly became deadlocked. Each side declared

it would not yield.[1357] Then came the inevitable reaction--a spirit of

conciliation mellowed everybody. Sheer human nature, wearied of strife,

sought the escape that mutual accommodation alone afforded. The moment

came for which Marshall had been patiently waiting. Rising slowly, as

was his wont, until his great height seemed to the convention to be

increased, his soothing voice, in the very gentleness of its timbre,

gave a sense of restfulness and agreement so grateful to, and so desired

by, even the sternest of the combatants.

"No person in the House," began the Chief Justice, "can be more truly

gratified than I am, at seeing the spirit that has been manifested here

to-day; and it is my earnest wish that this spirit of conciliation may

be acted upon in a fair, equal and honest manner, adapted to the

situation of the different parts of the Commonwealth, which are to be

affected."

The warring factions, said Marshall, were at last in substantial

accord. "That the Federal numbers [the enumeration of slaves as fixed in

the National Constitution] and the plan of the white basis shall be

blended together so as to allow each an equal portion of power, seems to

be very generally agreed to." The only difference now was that one

faction insisted on applying this plan to both Houses of the

Legislature, while the other faction would restrict the white basis to

the popular branch, leaving the Senate to be chosen on the combined free

white and black slave enumeration.

This involves the whole theory of property. One gentleman, in

particular, "seems to imagine that we claim nothing of republican

principles, when we claim a representation for property." But

"republican principles" do not depend on "the naked principle of

numbers." On the contrary, "the soundest principles of republicanism do

sanction some relation between representation and taxation.... The two

ought to be connected.... This was the principle of the revolution....

This basis of Representation is ... so important to Virginia" that

everybody had thought about it before this convention was called.

"Several different plans were contemplated. The basis of white

population alone; the basis of free population alone; a basis of

population alone; a basis compounded of taxation and white population,

(or which is the same thing, a basis of Federal numbers:).... Now, of

these various propositions, the basis of white population, and the basis

of taxation alone are the two extremes." But, "between the free

population, and the white population, there is almost no difference:

Between the basis of total population and the basis of taxation, there

is but little difference."

Frankly and without the least disguise of his opinions, Marshall

admitted that he was a conservative of conservatives: "The people of the

East," of whom he avowed himself to be one, "thought that they offered a

fair compromise, when they proposed the compound basis of population and

taxation, or the basis of the Federal numbers. We thought that we had

republican precedent for this--a precedent given us by the wisest and

truest patriots that ever were assembled: but that is now past.

"We are now willing to meet on a new middle ground." Between the two

extremes "the majority is too small to calculate upon.... We are all

uncertain as to the issue. But all know this, that if either extreme is

carried, it must leave a wound in the breast of the opposite party which

will fester and rankle, and produce I know not what mischief." The

conservatives were now the majority of the convention, yet they were

again willing to make concessions. Avoiding both extremes, Marshall

proposed, "as a compromise," that the basis of representation "shall be

made according to an exact compound of the two principles, of the white

basis and of the Federal numbers, according to the Census of

1820."[1358]

Further debate ensued, during which animosity seemed about to come to

life again, when the Chief Justice once more exerted his mollifying

influence. "Two propositions respecting the basis of Representation

have divided this Convention almost equally," he said. "The question

has been discussed, until discussion has become useless. It has been

argued, until argument is exhausted. We have now met on the ground of

compromise." It is no longer a matter of the triumph of either side. The

only consideration now is whether the convention can agree on some plan

to lay before the people "with a reasonable hope that it may be adopted.

Some concession must be made on both sides.... What is the real

situation of the parties?" Unquestionably both are sincere. "To attempt

now to throw considerations of principle into either scale, is to add

fuel to a flame which it is our purpose to extinguish. We must lose

sight of the situation of parties and state of opinion, if we make this

attempt."

The convention is nearly evenly balanced. At this moment those favoring

a white basis only have a trembling majority of two. This may

change--the reversal of a single vote would leave the House "equally

divided."

The question must be decided "one way or the other"; but, if either

faction prevails by a bare majority, the proposed constitution will go

to the people from an almost equally divided convention. That means a

tremendous struggle, a riven State. Interests in certain parts of the

Commonwealth will surely resist "with great force" a purely white basis

of representation, especially if no effective property qualification for

suffrage is provided. This opposition is absolutely certain "unless

human nature shall cease to be what it has been in all time."

No human power can forecast the result of further contest. But one

thing is certain: "To obtain a just compromise, concession must not only

be mutual--it must be equal also.... Each ought to concede to the other

as much as he demands from that other.... There can be no hope that

either will yield more than it gets in return."

The proposal that white population and taxation "mixed" with Federal

numbers in "equal proportions" shall "form the basis of Representation

in both Houses," is equal and just. "All feel it to be equal." Yet the

conservatives now go still further--they are willing to place the House

on the white basis and apply the mixed basis to the Senate only. Why

refuse this adjustment? Plainly it will work well for everybody: "If the

Senate would protect the East, will it not protect the West also?"

Marshall's satisfaction was "inexpressible" when he heard from both

sides the language of conciliation. "I hailed these auspicious

appearances with as much joy, as the inhabitant of the polar regions

hails the re-appearance of the sun after his long absence of six tedious

months. Can these appearances prove fallacious? Is it a meteor we have

seen and mistaken for that splendid luminary which dispenses light and

gladness throughout creation? It must be so, if we cannot meet on equal

ground. If we cannot meet on the line that divides us equally, then take

the hand of friendship, and make an equal compromise; it is vain to hope

that any compromise can be made."[1359]

The basis of representation does not appear in the constitution, the

number of Senators and Representatives being arbitrarily fixed by

districts and counties; but this plan, in reality, gave the slaveholding

sections almost the same preponderance over the comparatively

non-slaveholding sections as would have resulted from the enumeration of

three fifths of all slaves in addition to all whites.[1360]

While the freehold principle was abandoned, as Marshall foresaw that it

would be, the principle of property qualification as against manhood

suffrage was triumphant.[1361] With a majority against them, the

conservatives won by better management, assisted by the personal

influence of the Chief Justice, to which, on most phases of the

struggle, was added that of Madison and Giles.

Nearly a century has passed since these happenings, and Marshall's

attitude now appears to have been that of cold reaction; but he was as

honest as he was outspoken in his resistance to democratic reforms. He

wanted good government, safe government. He was not in the least

concerned in the rule of the people as such. Indeed, he believed that

the more they directly controlled public affairs the worse the business

of government would be conducted.

He feared that sheer majorities would be unjust, intolerant, tyrannical;

and he was certain that they would be untrustworthy and freakishly

changeable. These convictions would surely have dictated his course in

the Virginia Constitutional Convention of 1829-30, had no other

considerations influenced him.

But, in addition to his long settled and ever-petrifying conservative

views, we must also take into account the conditions and public temper

existing in Virginia ninety years ago. Had the convention reached any

other conclusion than that to which Marshall gently guided it, it is

certain that the State would have been torn by dissension, and it is not

improbable that there would have been bloodshed. All things considered,

it seems unsafe to affirm that Marshall's course was not the wisest for

that immediate period and for that particular State.

Displaying no vision, no aspiration, no devotion to human rights, he

merely acted the uninspiring but necessary part of the practical

statesman dealing with an existing and a very grave situation. If

Jefferson could be so frightened in 1816 that he forbade the public

circulation of his perfectly sound views on the wretched Virginia

Constitution of 1776,[1362] can it be wondered at that the conservative

Marshall in 1830 wished to compose the antagonisms of the warring

factions?

The fact that the Nation was then facing the possibility of

dissolution[1363] must also be taken into account. That circumstance,

indeed, influenced Marshall even more than did his profound

conservatism. There can be little doubt that, had either the radicals or

the conservatives achieved an outright victory, one part of Virginia

would have separated from the other and the growing sentiment for

disunion would have received a powerful impulse.

Hurrying from Richmond to Washington when the convention adjourned,

Marshall listened to the argument of Craig _vs._ Missouri; and then

delivered one of the strongest opinions he ever wrote--the only one of

his Constitutional expositions to be entirely repudiated by the Supreme

Court after his death. The case grew out of the financial conditions

described in the fourth chapter of this volume.

When Missouri became a State in 1821, her people found themselves in

desperate case. There was no money. Banks had suspended, and specie had

been drained to the Eastern commercial centers. The simplest business

transactions were difficult, almost impossible. Even taxes could not be

paid. The Legislature, therefore, established loan offices where

citizens, by giving promissory notes, secured by mortgage or pledge of

personal property, could purchase loan certificates issued by the State.

These certificates were receivable for taxes and other public debts and

for salt from the State salt mines. The faith and resources of Missouri

were pledged for the redemption of the certificates which were

negotiable and issued in denominations not exceeding ten dollars or less

than fifty cents. In effect and in intention, the State thus created a

local circulating medium of exchange.

On August 1, 1822, Hiram Craig and two others gave their promissory

notes for $199.99 in payment for loan certificates. On maturity of these

notes the borrowers refused to pay, and the State sued them; judgment

against them was rendered in the trial court and this judgment was

affirmed by the Supreme Court of Missouri. The case was taken, by writ

of error, to the Supreme Court of the United States, where the sole

question to be decided was the constitutionality of the Missouri loan

office statutes.

Marshall's associates were now Johnson, Duval, Story, Thompson, McLean,

and Baldwin; the last two recently appointed by Jackson. It was becoming

apparent that the court was growing restive under the rigid practice of

the austere theory of government and business which the Chief Justice

had maintained for nearly a generation. This tendency was shown in this

case by the stand taken by three of the Associate Justices. Marshall was

in his seventy-sixth year, but never did his genius shine more

resplendently than in his announcement of the opinion of the Supreme

Court in Craig _vs._ Missouri.[1364]

He held that the Missouri loan certificates were bills of credit, which

the National Constitution prohibited any State to issue. "What is a bill

of credit?" It is "any instrument by which a state engages to pay money

at a future day; thus including a certificate given for money

borrowed.... To 'emit bills of credit' conveys to the mind the idea of

issuing paper intended to circulate through the community, for its

ordinary purposes, as money, which paper is redeemable at a future

day."[1365] The Chief Justice goes into the history of the paper money

evil that caused the framers of the Constitution to forbid the States

to "emit bills of credit."

Such currency always fluctuates. "Its value is continually changing; and

these changes, often great and sudden, expose individuals to immense

loss, are the sources of ruinous speculations, and destroy all

confidence between man and man." To "cut up this mischief by the

roots ... the people declared, in their Constitution, that no state

should emit bills of credit. If the prohibition means anything, if the

words are not empty sounds, it must comprehend the emission of any paper

medium by a state government, for the purpose of common

circulation."[1366]

Incontestably the Missouri loan certificates are just such bills of

credit. Indeed, the State law itself "speaks of them in this character."

That the statute calls them certificates instead of bills of credit does

not change the fact. How absurd to claim that the Constitution "meant to

prohibit names and not things! That a very important act, big with great

and ruinous mischief, which is expressly forbidden ... may be performed

by the substitution of a name." The Constitution is not to be evaded "by

giving a new name to an old thing."[1367]

It is nonsense to say that these particular bills of credit are lawful

because they are not made legal tender, since a separate provision

applies to legal tender. The issue of legal tender currency, and also

bills of credit, is equally and separately forbidden: "To sustain the

one because it is not also the other; to say that bills of credit may be

emitted if they be not made a tender in payment of debts; is ... to

expunge that distinct, independent prohibition."[1368]

In a well-nigh perfect historical summary, Marshall reviews experiments

before and during the Revolution in bills of credit that were made legal

tender, and in others that were not--all "productive of the same

effects," all equally ruinous in results.[1369] The Missouri law

authorizing the loan certificates, for which Craig gave his promissory

note, is "against the highest law of the land, and ... the note itself

is utterly void."[1370]

The Chief Justice closes with a brief paragraph splendid in its simple

dignity and power. In his argument for Missouri, Senator Thomas H.

Benton had used violent language of the kind frequently employed by the

champions of State Rights: "If ... the character of a sovereign State

shall be impugned," he cried, "contests about civil rights would be

settled amid the din of arms, rather than in these halls of national

justice."[1371]

To this outburst Marshall replies: The court has been told of "the

dangers which may result from" offending a sovereign State. If obedience

to the Constitution and laws of the Nation "shall be calculated to bring

on those dangers ... or if it shall be indispensable to the preservation

of the union, and consequently of the independence and liberty of these

states; these are considerations which address themselves to those

departments which may with perfect propriety be influenced by them. This

department can listen only to the mandates of law; and can tread only

that path which is marked out by duty."[1372]

In this noble passage Marshall is not only rebuking Benton; he is also

speaking to the advocates of Nullification, then becoming clamorous and

threatening; he is pointing out to Andrew Jackson the path of

duty.[1373]

Justices Johnson, Thompson, and McLean afterwards filed dissenting

opinions, thus beginning the departure, within the Supreme Court, from

the stern Constitutional Nationalism of Marshall. This breach in the

court deeply troubled the Chief Justice during the remaining four years

of his life.

Johnson thought "that these certificates are of a truly amphibious

character." The Missouri law "does indeed approach as near to a

violation of the Constitution as it can well go without violating its

prohibition, but it is in the exercise of an unquestionable right,

although in rather a questionable form." So, on the whole, Johnson

concluded that the Supreme Court had better hold the statute

valid.[1374]

"The right of a State to borrow money cannot be questioned," said

Thompson; that is all the Missouri scheme amounts to. If these loan

certificates are bills of credit, so are "all bank notes, issued either

by the States, or under their authority."[1375] Justice McLean pointed

out that Craig's case was only one of many of the same kind. "The solemn

act of a State ... cannot be set aside ... under a doubtful construction

of the Constitution.[1376]... It would be as gross usurpation on the

part of the federal government to interfere with State rights by an

exercise of powers not delegated, as it would be for a State to

interpose its authority against a law of the Union."[1377]

In Congress attacks upon Marshall and the Supreme Court now were

renewed--but they grew continuously feebler. At the first session after

the decision of the Missouri loan certificate case, a bill was

introduced to repeal the provision of the Judiciary Act upon which the

National powers of the Supreme Court so largely depended. "If the

twenty-fifth section is repealed, the Constitution is practically gone,"

declared Story. "Our wisest friends look with great gloom to the

future."[1378]

Marshall was equally despondent, but his political vision was clearer.

When he read the dissenting opinions of Johnson, Thompson, and McLean,

he wrote Story: "It requires no prophet to predict that the 25th section

[of the Judiciary Act] is to be repealed, or to use a more fashionable

phrase to be nullified by the Supreme Court of the United States."[1379]

He realized clearly that the great tribunal, the power and dignity of

which he had done so much to create, would soon be brought under the

control of those who, for some years at least, would reject that broad

and vigorous Nationalism which he had steadily and effectively asserted

during almost a third of a century. One more vacancy on the Supreme

Bench and a single new appointment by Jackson would give the court to

the opponents of Marshall's views. Before he died, the Chief Justice was

to behold two such vacancies.[1380]

On January 24, 1831, William R. Davis of South Carolina presented the

majority report of the Judiciary Committee favoring the repeal of that

section of the Judiciary Act under which the Supreme Court had

demolished State laws and annihilated the decisions of State

courts.[1381] James Buchanan presented the minority report.[1382] A few

minutes' preliminary discussion revealed the deep feeling on both sides.

Philip Doddridge of Virginia declared that the bill was of "as much

importance as if it were a proposition to repeal the Union of these

States." William W. Ellsworth of Connecticut avowed that it was of

"overwhelming magnitude."[1383]

Thereupon the subject was furiously debated. Thomas H. Crawford of

Pennsylvania considered Section 25 of the Judiciary Act, to be as

"sacred" as the Constitution itself.[1384] Henry Daniel of Kentucky

asserted that the Supreme Court "stops at nothing to obtain power." Let

the "States ... prepare for the worst, and protect themselves against

the assaults of this gigantic tribunal."[1385]

William Fitzhugh Gordon of Virginia, recently elected, but already a

member of the Judiciary Committee, stoutly defended the report of the

majority: "When a committee of the House had given to a subject the

calmest and maturest investigation, and a motion is made to print their

report, a gentleman gets up, and, in a tone of alarm, denounces the

proposition as tantamount to a motion to repeal the Union." Gordon

repudiated the very thought of dismemberment of the Republic--that

"palladium of our hopes, and of the liberties of mankind."

As to the constitutionality of Section 25 of the Judiciary Act--"could

it be new, especially to a Virginia lawyer"? when the Virginia

Judiciary, with Roane at its head, had solemnly proclaimed the

illegality of that section. And had not Georgia ordered her Governor to

resist the enforcement of that provision of that ancient act of

Congress? "I declare to God ... that I believe nothing would tend so

much to compose the present agitation of the country ... as the repeal

of that portion of the judiciary act." Gordon was about to discuss the

nefarious case of Cohens _vs._ Virginia when his emotions overcame

him--"he did not wish ... to go into the merits of the question."[1386]

Thomas F. Foster of Georgia said that the Judiciary Committee had

reported under a "galling fire from the press"; quoted Marshall's

unfortunate language in the Convention of 1788;[1387] and insisted that

the "vast and alarming" powers of the Supreme Court must be

bridled.[1388]

But the friends of the court overwhelmed the supporters of the bill,

which was rejected by a vote of 138 to 51.[1389] It was ominous,

however, that the South stood almost solid against the court and

Nationalism.

FOOTNOTES:

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

[1270] Nevertheless he watched the course of politics closely. For

instance: immediately after the House had elected John Quincy Adams to

the Presidency, Marshall writes his brother a letter full of political

gossip. He is surprised that Adams was chosen on the first ballot; many

think Kremer's letter attacking Clay caused this unexpectedly quick

decision, since it "was & is thought a sheer calumny; & the resentment

of Clay's friends probably determined some of the western members who

were hesitating. It is supposed to have had some influence elsewhere.

The vote of New York was not decided five minutes before the ballots

were taken."

Marshall tells his brother about Cabinet rumors--Crawford has refused

the Treasury and Clay has been offered the office of Secretary of State.

"It is meer [_sic_] common rumor" that Clay will accept. "Mr. Adams will

undoubtedly wish to strengthen himself in the west," and Clay is strong

in that section unless Kremer's letter has weakened him. The Chief

Justice at first thought it had, but "on reflection" doubts whether it

will "make any difference." (Marshall to his brother, Feb. 14, 1825,

MS.) Marshall here refers to the letter of George Kremer, a

Representative in Congress from Pennsylvania. Kremer wrote an anonymous

letter to the _Columbian Observer_ in which he asserted that Clay had

agreed to deliver votes to Adams as the price of Clay's appointment to

the office of Secretary of State. After much bluster, Kremer admitted

that he had no evidence whatever to support his charge; yet his

accusation permanently besmirched Clay's reputation. (For an account of

the Kremer incident see Sargent, I, 67-74, 123-24.)

Out of the Kremer letter grew a distrust of Clay which he never really

lived down. Some time later, John Randolph seized an opportunity to call

the relation between President Adams and his Secretary of State "the

coalition of Blifil and Black George--the combination, unheard of till

then, of the Puritan with the blackleg." The bloodless, but not the less

real duel, that followed, ended this quarrel, though the unjust charges

never quite died out. (Schurz: _Henry Clay_, I, 273-74.)

[1271] Baltimore _Marylander_, March 22, 1828.

[1272] _Enquirer_, April 4, 1828.

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

[1274] Marshall to Story, May 1, 1828, _Proceedings, Mass. Hist. Soc._

2d Series, XIV, 336-37.

[1275] See chap. I of this volume.

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

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

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

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

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

[1281] Marshall to Story, June 11, 1829, _Proceedings, Mass. Hist. Soc._

2d Series, XIV, 338-39.

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

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

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

[1285] At the time of the convention the eastern part of the State paid,

on the average, more than three times as much in taxes per acre as the

west. The extremes were startling--the trans-Alleghany section (West

Virginia) paid only 92 cents for every $8.43 paid by the Tidewater.

(_Proceedings and Debates of the Virginia State Convention of 1829-30_,

214, 258, 660-61.)

[1286] Marshall to Story, July 3, 1829, _Proceedings, Mass. Hist. Soc._

2d Series, XIV, 340-41.

[1287] Pickering to Marshall, Dec. 26, 1828, Pickering MSS. Mass. Hist.

Soc.; see also Story, I, 386-96.

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

Lib.

[1289] Lincoln to Greeley, Aug. 22, 1862, _Complete Works of Abraham

Lincoln_: Nicolay and Hay, II, 227-28.

[1290] Marshall to Pickering, March 20, 1826, _Proceedings, Mass. Hist.

Soc._ 2d Series, XIV, 321.

[1291] _Fifteenth Annual Report, Proceedings, American Colonization

Society._ The abolitionists, later, mercilessly attacked the

Colonization Society. (See Wilson: _Rise of the Slave Power_, I, 208 _et

seq._)

[1292] _Fourteenth Annual Report, Proceedings, American Colonization

Society._

[1293] His wife's illness. She died soon afterwards. See _infra_,

524-25.

[1294] Marshall to Gurley, Dec. 14, 1831, _Fifteenth Annual Report,

Proceedings, American Colonization Society_, pp. vi-viii.

In a letter even less emotional than Marshall's, Madison favored the

same plan. (_Ib._ pp. v, vi.) Lafayette, with his unfailing floridity,

says that he is "proud ... of the honor of being one of the Vice

Presidents of the Society," and that "the progressing state of our

Liberia establishment is ... a source of enjoyment, and the most lively

interest" to him. (_Ib._ p. v.)

At the time of his death, Marshall was President of the Virginia branch

of the Society, and his ancient enemy, John Tyler, who succeeded him in

that office, paid a remarkable tribute to the goodness and greatness of

the man he had so long opposed. (Tyler: _Tyler_, I, 567-68.)

[1295] 10 Wheaton, 114.

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

[1297] _Ib._ 114.

[1298] _Ib._ 118-19.

[1299] _Ib._ 122-23.

[1300] 2 Peters, 150-56.

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

Lawyers," Mass. Hist. Soc.

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

[1303] 12 Wheaton, 214 _et seq._ John Saunders, a citizen of Kentucky,

sued George M. Ogden, a citizen of Louisiana, on bills of exchange which

Ogden, then a citizen of New York, had accepted in 1806, but which were

protested for non-payment. The defendant pleaded a discharge granted by

a New York court under the insolvent law of that State enacted in 1801.

(_Ib._) On the manuscript records of the Supreme Court, Saunders is

spelled _Sanders_. After the case was filed, the death of Ogden was

suggested, and his executors, Charles Harrod and Francis B. Ogden, were

substituted.

[1304] Washington, Johnson, Thompson, and Trimble each delivered long

opinions supporting this view. (12 Wheaton, 254-331, 358-369.)

[1305] _Ib._ 334.

[1306] _Ib._ 335.

[1307] _Ib._ 337.

[1308] _Ib._ 356.

[1309] _Ib._ 357.

[1310] Story and Duval concurred with Marshall.

[1311] 12 Wheaton, 65-90.

[1312] Webster to Biddle, Feb. 20, 1827, _Writings and Speeches of

Webster_: (Nat. ed.) XVI, 140.

[1313] 12 Wheaton, 90-116.

[1314] Grigsby: _Virginia Convention of 1829-30_; and see Ambler:

_Sectionalism in Virginia_, 145. Chapter V of Professor Ambler's book is

devoted exclusively to the convention. Also see preface to _Debates Va.

Conv._ iii; and see Dodd, in _American Journal of Sociology_, XXVI, no.

6, 735 _et seq._; and Anderson, 229-36.

[1315] _Debates, Va. Conv._ 23.

[1316] _Ib._ 25.

[1317] _Ib._ 25-31.

[1318] Statement of Marshall. (_Ib._ 872.)

[1319] _Debates, Va. Conv._ 33.

[1320] See _supra_, 146, 147.

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

[1322] See Ambler: _Sectionalism in Virginia_, 139.

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

[1324] Serious abuses sprang up, however. In the convention, William

Naylor of Hampshire County charged that the office of sheriff was sold

to the highest bidder, sometimes at public auction. (_Debates, Va.

Conv._ 486; and see Anderson, 229.)

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

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

[1327] For example, Thomas R. Joynes of Accomack County, who earnestly

opposed Marshall in the Judiciary debate, said that no man felt "more

respect" than he for Marshall's opinions which are justly esteemed "not

only in this Convention, but throughout the United States." (_Debates,

Va. Conv._ 505.) Randolph spoke of "the very great weight" which

Marshall had in the convention, in Virginia, and throughout the Nation.

(_Ib._ 500.) Thomas M. Bayly of Accomack County, while utterly

disagreeing with the Chief Justice on the County Court system, declared

that Marshall, "as a lawyer and Judge, is without a rival." (_Ib._ 510.)

Richard H. Henderson of Loudoun County called the Chief Justice his

"political father" whose lessons he delighted to follow, and upon whose

"wisdom, ... virtue, ... prudence" he implicitly relied. (Henderson's

statement as repeated by Benjamin W. Leigh, _ib._ 544.) Charles F.

Mercer of the same county "expressed toward Judge Marshall a filial

respect and veneration not surpassed by the ties which had bound him to

a natural parent." (_Ib._ 563.) Such are examples of the expressions

toward Marshall throughout the prolonged sessions of the convention.

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

[1329] _Debates, Va. Conv._ 871-72.

[1330] _Ib._ 872-74.

[1331] _Debates, Va. Conv._ 873.

[1332] See _infra_, 493-501.

[1333] Accordingly the following provision was inserted into the

Constitution: "No law abolishing any court shall be construed to deprive

a Judge thereof of his office, unless two-thirds of the members of each

House present concur in the passing thereof; but the Legislature may

assign other Judicial duties to the Judges of courts abolished by any

law enacted by less than two-thirds of the members of each House

present." (Article V, Section 2, Constitution of Virginia, 1830.)

[1334] _Debates, Va. Conv._ 505.

[1335] _Debates, Va. Conv._ 509.

[1336] _Ib._ 524, 530, 531, 533, 534.

[1337] _Ib._ 604-05.

[1338] _Ib._ 605. The provision as it finally appeared in the

constitution was that these "appointments shall be made by the Governor,

on the recommendation of the respective County Courts." (Article V,

Section 7, Constitution of Virginia, 1830.)

[1339] _Debates, Va. Conv._ 615-17.

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

[1341] _Debates, Va. Conv._ 619.

[1342] _Ib._ 618-19.

[1343] _Ib._ 726.

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

[1345] _Debates, Va. Conv._ 731.

[1346] _Debates, Va. Conv._ 726-27.

[1347] _Debates, Va. Conv._ 727-29.

[1348] _Debates, Va. Conv._ 729-30.

[1349] See especially the speech of Benjamin Watkins Leigh, _ib._

733-37.

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

[1351] _Ib._ 764.

[1352] _Debates, Va. Conv._ 767.

[1353] _Ib._ 880.

[1354] Compare Marshall's report (_ib._ 33) with Article V of the

constitution (_ib._ 901-02; and see _supra_, 491, note 2.)

[1355] Contrast Marshall's resolutions (_Debates, Va. Conv._ 39-40),

which expressed the conservative stand, with those of William H.

Fitzhugh of Fairfax County (_ib._ 41-42), of Samuel Clayton of Campbell

County (_ib._ 42), of Charles S. Morgan of Monongalia (_ib._ 43-44), and

of Alexander Campbell of Brooke County (_ib._ 45-46), which state the

views of the radicals.

[1356] See, for instance, the speech of John R. Cooke of Frederick

County for the radicals (_Debates, Va. Conv._ 54-65), of Abel P. Upshur

of Northampton for the conservatives (_ib._ 65-79), of Philip Doddridge

of Brooke County for the radicals (_ib._ 79-89), of Philip P. Barbour of

Orange County for the conservatives (_ib._ 90-98), and especially the

speeches of Benjamin Watkins Leigh for the conservatives (_ib._ 151-74,

544-48). Indeed, the student cannot well afford to omit any one of the

addresses in this remarkable contest.

[1357] It is at this point that we see the reason for Jefferson's alarm

thirteen years before the convention was called. (_See supra_, 469.)

[1358] _Debates, Va. Conv._ 497-500.

[1359] _Debates, Va. Conv._ 561-62.

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

[1361] _Ib._ Article III, Section 14.

[1362] See _supra_, 469.

[1363] See next chapter.

[1364] March 12, 1830.

[1365] 4 Peters, 432.

[1366] 4 Peters, 432.

[1367] _Ib._ 433.

[1368] _Ib._ 434.

[1369] 4 Peters, 434-36.

[1370] _Ib._ 437.

[1371] _Ib._ 420.

[1372] _Ib._ 438.

[1373] See 552-58.

[1374] 4 Peters, 438-44.

[1375] _Ib._ 445-50.

[1376] _Ib._ 458.

[1377] 4 Peters, 464.

[1378] Story to Ticknor, Jan. 22, 1831, Story, II, 49. Nevertheless

Story did not despair. "It is now whispered, that the demonstrations of

public opinion are so strong, that the majority [of the Judiciary

Committee] will conclude not to present their report." (_Ib._)

[1379] Marshall to Story, Oct. 15, 1830, _Proceedings, Mass. Hist. Soc._

2d Series, XIV, 342.

[1380] See _infra_, 584.

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

[1382] _Ib._ 535.

[1383] _Ib._ 534.

[1384] _Ib._ 659.

[1385] _Ib._ 665.

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

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

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

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

This was the last formal attempt, but one, made in Congress during

Marshall's lifetime, to impair the efficiency of National courts. The

final attack was made by Joseph Lecompte, a Representative from

Kentucky, who on January 27, 1832, offered a resolution instructing the

Judiciary Committee to "inquire into the expediency of amending the

constitution ... so that the judges of the Supreme Court, and of the

inferior courts, shall hold their offices for a limited term of years."

On February 24, the House, by a vote of 141 to 27, refused to consider

Lecompte's resolution, ignoring his plea to be allowed to explain it.

(_Debates_, 22d Cong. 1st Sess. 1856-57.) So summary and brusque--almost

contemptuous--was the rejection of Lecompte's proposal, as almost to

suggest that personal feeling was an element in the action taken by the

House.