CHAPTER VI

VITALIZING THE CONSTITUTION

The crisis is one which portends destruction to the liberties of

the American people. (Spencer Roane.)

The constitutional government of this republican empire cannot

be practically enforced but by a fair and liberal interpretation

of its powers. (William Pinkney.)

The Judiciary of the United States is the subtle corps of

sappers and miners constantly working under ground to undermine

the foundations of our confederated fabric. (Jefferson.)

The government of the Union is emphatically and truly a

government of the people. In form and substance it emanates from

them. Its powers are granted by them, and are to be exercised

directly on them and for their benefit. (Marshall.)

Although it was the third of the great causes to be decided by the

Supreme Court in the memorable year, 1819, M'Culloch _vs._ Maryland was

the first in importance and in the place it holds in the development of

the American Constitution. Furthermore, in his opinion in this case John

Marshall rose to the loftiest heights of judicial statesmanship. If his

fame rested solely on this one effort, it would be secure.

To comprehend the full import of Marshall's opinion in this case, the

reader must consider the state of the country as described in the fourth

chapter of this volume. While none of his expositions of our fundamental

law, delivered in the critical epoch from 1819 to 1824, can be entirely

understood without knowledge of the National conditions that produced

them, this fact must be especially borne in mind when reviewing the case

of M'Culloch _vs._ Maryland.

[Illustration: Associate Justices sitting with Marshall in the case of

M'Culloch _versus_ Maryland: STORY, JOHNSON, WASHINGTON, DUVAL,

LIVINGSTON, TODD]

Like most of the controversies in which Marshall's Constitutional

opinions were pronounced, M'Culloch _vs._ Maryland came before the

Supreme Court on an agreed case. The facts were that Congress had

authorized the incorporation of the second Bank of the United States;

that this institution had instituted a branch at Baltimore; that the

Legislature of Maryland had passed an act requiring all banks,

established "without authority from the state," to issue notes only on

stamped paper and only of certain denominations, or, in lieu of these

requirements, only upon the payment of an annual tax of fifteen thousand

dollars; that, in violation of this law, the Baltimore branch of the

National Bank continued to issue its notes on unstamped paper without

paying the tax; and that on May 8, 1818, John James, "Treasurer of the

Western Shore," had sued James William M'Culloch, the cashier of the

Baltimore branch, for the recovery of the penalties prescribed by the

Maryland statute.[784]

The immediate question was whether the Maryland law was Constitutional;

but the basic issue was the supremacy of the National Government as

against the dominance of State Governments. Indeed, the decision of this

case involved the very existence of the Constitution as an "ordinance of

Nationality," as Marshall so accurately termed it.

At no time in this notable session of the Supreme Court was the

basement room, where its sittings were now again held, so thronged with

auditors as it was when the argument in M'Culloch _vs._ Maryland took

place. "We have had a crowded audience of ladies and gentlemen," writes

Story toward the close of the nine days of discussion. "The hall was

full almost to suffocation, and many went away for want of room."[785]

Webster opened the case for the Bank. His masterful argument in the

Dartmouth College case the year before had established his reputation as

a great Constitutional lawyer as well as an orator of the first class.

He was attired in the height of fashion, tight breeches, blue cloth

coat, cut away squarely at the waist, and adorned with large brass

buttons, waist-coat exposing a broad expanse of ruffled shirt with high

soft collar surrounded by an elaborate black stock.[786]

The senior counsel for the Bank was William Pinkney. He was dressed with

his accustomed foppish elegance, and, as usual, was nervous and

impatient. Notwithstanding his eccentricities, he was Webster's equal,

if not his superior, except in physical presence and the gift of

political management. With Webster and Pinkney was William Wirt, then

Attorney-General of the United States, who had arrived at the fullness

of his powers.

Maryland was represented by Luther Martin, still Attorney-General for

that State, then seventy-five years old, but a strong lawyer despite

his half-century, at least, of excessive drinking. By his side was

Joseph Hopkinson of Philadelphia, now fifty years of age, one of the

most learned men at the American bar. With Martin and Hopkinson was

Walter Jones of Washington, who appears to have been a legal genius, his

fame obliterated by devotion to his profession and unaided by any public

service, which so greatly helps to give permanency to the lawyer's

reputation. All told, the counsel for both sides in M'Culloch _vs._

Maryland were the most eminent and distinguished in the Republic.

Webster said in opening that Hamilton had "exhausted" the arguments for

the power of Congress to charter a bank and that Hamilton's principles

had long been acted upon. After thirty years of acquiescence it was too

late to deny that the National Legislature could establish a bank.[787]

With meticulous care Webster went over Hamilton's reasoning to prove

that Congress can "pass all laws 'necessary and proper' to carry into

execution powers conferred on it."[788]

Assuming the law which established the Bank to be Constitutional,

could Maryland tax a branch of that Bank? If the State could tax the

Bank at all, she could put it out of existence, since a "power to tax

involves ... a power to destroy"[789]--words that Marshall, in

delivering his opinion, repeated as his own. The truth was, said

Webster, that, in taxing the Baltimore branch of the National Bank,

Maryland taxed the National Government itself.[790]

Joseph Hopkinson, as usual, made a superb argument--a performance all

the more admirable as an intellectual feat in that, as an advocate for

Maryland, his convictions were opposed to his reasoning.[791] Walter

Jones was as thorough as he was lively, but he did little more than to

reinforce the well-nigh perfect argument of Hopkinson.[792] On the same

side the address of Luther Martin deserves notice as the last worthy of

remark which that great lawyer ever made. Old as he was, and wasted as

were his astonishing powers, his argument was not much inferior to those

of Webster, Hopkinson, and Pinkney. Martin showed by historical evidence

that the power now claimed for Congress was suspected by the opponents

of the Constitution, but denied by its supporters and called "a dream of

distempered jealousy." So came the Tenth Amendment; yet, said Martin,

now, "we are asked to engraft upon it [the Constitution] powers ...

which were disclaimed by them [the advocates of the Constitution], and

which, if they had been fairly avowed at the time, would have prevented

its adoption."[793]

Could powers of Congress be inferred as a necessary means to the desired

end? Why, then, did the Constitution _expressly_ confer powers which, of

necessity, must be implied? For instance, the power to declare war

surely implied the power to raise armies; and yet that very power was

granted in specific terms. But the power to create corporations "is not

expressly delegated, either as an end or a means of national

government."[794]

When Martin finished, William Pinkney, whom Marshall declared to be "the

greatest man he had ever seen in a Court of justice,"[795] rose to make

what proved to be the last but one of the great arguments of that

unrivaled leader of the American bar of his period. To reproduce his

address is to set out in advance the opinion of John Marshall stripped

of Pinkney's rhetoric which, in that day, was deemed to be the

perfection of eloquence.[796]

For three days Pinkney spoke. Few arguments ever made in the Supreme

Court affected so profoundly the members of that tribunal. Story

describes the argument thus: "Mr. Pinkney rose on Monday to conclude the

argument; he spoke all that day and yesterday, and will probably

conclude to-day. I never, in my whole life, heard a greater speech; it

was worth a journey from Salem to hear it; his elocution was excessively

vehement, but his eloquence was overwhelming. His language, his style,

his figures, his arguments, were most brilliant and sparkling. He spoke

like a great statesman and patriot, and a sound constitutional lawyer.

All the cobwebs of sophistry and metaphysics about State rights and

State sovereignty he brushed away with a mighty besom."[797]

Indeed, all the lawyers in this memorable contest appear to have

surpassed their previous efforts at the bar. Marshall, in his opinion,

pays this tribute to all their addresses: "Both in maintaining the

affirmative and the negative, a splendor of eloquence, and strength of

argument seldom, if ever, surpassed, have been displayed."[798]

After he had spoken, Webster, who at that moment was intent on the

decision of the Dartmouth College case,[799] became impatient. "Our Bank

argument goes on--& threatens to be long," he writes Jeremiah

Mason.[800] Four days later, while Martin was still talking, Webster

informs Jeremiah Smith: "We are not yet thro. the Bank question. Martin

has been _talking 3 ds_. Pinkney replies tomorrow & that finishes--I set

out for home next day."[801] The arguments in M'Culloch _vs._ Maryland

occupied nine days.[802]

Four days before the Bank argument opened in the Supreme Court, the

House took up the resolution offered by James Johnson of Virginia to

repeal the Bank's charter.[803] The debate over this proposal continued

until February 25, the third day of the argument in M'Culloch _vs._

Maryland. How, asked Johnson, had the Bank fulfilled expectations and

promises? "What ... is our condition? Surrounded by one universal gloom.

We are met by the tears of the widow and the orphan."[804] Madison has

"cast a shade" on his reputation by signing the Bank Bill--that "act of

usurpation." Under the common law the charter "is forfeited."[805]

The Bank is a "mighty corporation," created "to overawe ... the local

institutions, that had dealt themselves almost out of breath in

supporting the Government in times of peril and adversity." The

financial part of the Virginia Republican Party organization thus spoke

through James Pindall of that State.[806]

William Lowndes of South Carolina brilliantly defended the Bank, but

admitted that its "early operation" had been "injudicious."[807] John

Tyler of Virginia assailed the Bank with notable force. "This charter

has been violated," he said; "if subjected to investigation before a

court of justice, it will be declared null and void."[808] David Walker

of Kentucky declared that the Bank "is an engine of favoritism--of stock

jobbing"--a machine for "binding in adamantine chains the blessed,

innocent lambs of America to accursed, corrupt European tigers."[809] In

spite of all this eloquence, Johnson's resolution was defeated, and the

fate of the Bank left in the hands of the Supreme Court.

On March 6, 1819, before a few spectators, mostly lawyers with business

before the court, Marshall read his opinion. It is the misfortune of the

biographer that only an abstract can be given of this epochal state

paper--among the very first of the greatest judicial utterances of all

time.[810] It was delivered only three days after Pinkney concluded his

superb address.

Since it is one of the longest of Marshall's opinions and, by general

agreement, is considered to be his ablest and most carefully prepared

exposition of the Constitution, it seems not unlikely that much of it

had been written before the argument. The court was very busy every day

of the session and there was little, if any, time for Marshall to write

this elaborate document. The suit against M'Culloch had been brought

nearly a year before the Supreme Court convened; Marshall undoubtedly

learned of it through the newspapers; he was intimately familiar with

the basic issue presented by the litigation; and he had ample time to

formulate and even to write out his views before the ensuing session of

the court. He had, in the opinions of Hamilton and Jefferson,[811] the

reasoning on both sides of this fundamental controversy. It appears to

be reasonably probable that at least the framework of the opinion in

M'Culloch _vs._ Maryland was prepared by Marshall when in Richmond

during the summer, autumn, and winter of 1818-19.

The opening words of Marshall are majestic: "A sovereign state denies

the obligation of a law ... of the Union.... The constitution of our

country, in its most ... vital parts, is to be considered; the

conflicting powers of the government of the Union and of its

members, ... are to be discussed; and an opinion given, which may

essentially influence the great operations of the government."[812] He

cannot "approach such a question without a deep sense of ... the awful

responsibility involved in its decision. But it must be decided

peacefully, or remain a source of hostile legislation, perhaps of

_hostility of a still more serious nature_."[813] In these solemn words

the Chief Justice reveals the fateful issue which M'Culloch _vs._

Maryland foreboded.

That Congress has power to charter a bank is not "an open question....

The principle ... was introduced at a very early period of our history,

has been recognized by many successive legislatures, and has been acted

upon by the judicial department ... as a law of undoubted obligation....

An exposition of the constitution, deliberately established by

legislative acts, on the faith of which an immense property has been

advanced, ought not to be lightly disregarded."

The first Congress passed the act to incorporate a National bank. The

whole subject was at the time debated exhaustively. "The bill for

incorporating the bank of the United States did not steal upon an

unsuspecting legislature, & pass unobserved," says Marshall. Moreover,

it had been carefully examined with "persevering talent" in Washington's

Cabinet. When that act expired, "a short experience of the

embarrassments" suffered by the country "induced the passage of the

present law." He must be intrepid, indeed, who asserts that "a measure

adopted under these circumstances was a bold and plain usurpation, to

which the constitution gave no countenance."[814]

But Marshall examines the question as though it were "entirely new"; and

gives an historical account of the Constitution which, for clearness and

brevity, never has been surpassed.[815] Thus he proves that "the

government proceeds directly from the people; ... their act was final.

It required not the affirmance, and could not be negatived, by the state

governments. The constitution when thus adopted ... bound the state

sovereignties." The States could and did establish "a league, such as

was the confederation.... But when, 'in order to form a more perfect

union,' it was deemed necessary to change this alliance into an

effective government, ... acting directly on the people," it was the

people themselves who acted and established a fundamental law for their

government.[816]

The Government of the American Nation is, then, "emphatically, and

truly, a government of the people. In form and in substance it emanates

from them. Its powers are granted by them, and are to be exercised

directly on them, and for their benefit"[817]--a statement, the grandeur

of which was to be enhanced forty-four years later, when, standing on

the battle-field of Gettysburg, Abraham Lincoln said that "a government

of the people, by the people, for the people, shall not perish from the

earth."[818]

To be sure, the States, as well as the Nation, have certain powers, and

therefore "the supremacy of their respective laws, when they are in

opposition, must be settled." Marshall proceeds to settle that basic

question. The National Government, he begins, "is supreme within its

sphere of action. This would seem to result necessarily from its

nature." For "it is the government of all; its powers are delegated by

all; it represents all, and acts for all. Though any one state may be

willing to control its operations, no state is willing to allow others

to control them. The nation, on those subjects on which it can act, must

necessarily bind its component parts." Plain as this truth is, the

people have not left the demonstration of it to "mere reason"--for they

have, "in express terms, decided it by saying" that the Constitution,

and the laws of the United States which shall be made in pursuance

thereof, "shall be the supreme law of the land," and by requiring all

State officers and legislators to "take the oath of fidelity to

it."[819]

The fact that the powers of the National Government enumerated in the

Constitution do not include that of creating corporations does not

prevent Congress from doing so. "There is no phrase in the instrument

which, like the articles of confederation, _excludes_ incidental or

implied powers; and which requires that everything granted shall be

expressly and minutely described.... A constitution, to contain an

accurate detail of all the subdivisions of which its great powers will

admit, and of all the means by which they may be carried into execution,

would partake of a prolixity of a legal code, and could scarcely be

embraced by the human mind. It would probably never be understood by the

public."

The very "nature" of a constitution, "therefore requires, that only its

great outlines should be marked, its important objects designated, and

the minor ingredients which compose those _objects be deduced from the

nature of the objects themselves_." In deciding such questions "we must

never forget," reiterates Marshall, "that it is a _constitution_ we are

expounding."[820]

This being true, the power of Congress to establish a bank is

undeniable--it flows from "the great powers to lay and collect taxes; to

borrow money; to regulate commerce; to declare and conduct a war; and to

raise and support armies and navies." Consider, he continues, the scope

of the duties of the National Government: "The sword and the purse, all

the external relations, and no inconsiderable portion of the industry of

the nation, are entrusted to its government.... A government, entrusted

with such ample powers, on the due execution of which the happiness and

prosperity of the nation so vitally depends, must also be entrusted with

ample means for their execution. The power being given, it is the

interest of the nation to facilitate its execution. It can never be

their interest, and cannot be presumed to have been their intention, to

clog and embarrass its execution by withholding the most appropriate

means."[821]

At this point Marshall's language becomes as exalted as that of the

prophets: "Throughout this vast republic, from the St. Croix to the Gulf

of Mexico, from the Atlantic to the Pacific, revenue is to be collected

and expended, armies are to be marched and supported. The exigencies of

the nation may require that the treasure raised in the north should be

transported to the south, that raised in the east conveyed to the west,

or that this order should be reversed." Here Marshall the soldier is

speaking. There is in his words the blast of the bugle of Valley Forge.

Indeed, the pen with which Marshall wrote M'Culloch _vs._ Maryland was

fashioned in the army of the Revolution.[822]

The Chief Justice continues: "Is that construction of the constitution

to be preferred which would render these operations difficult,

hazardous, and expensive?" Did the framers of the Constitution "when

granting these powers for the public good" intend to impede "their

exercise by withholding a choice of means?" No! The Constitution "does

not profess to enumerate the means by which the powers it confers may be

executed; nor does it prohibit the creation of a corporation, if the

existence of such a being be essential to the beneficial exercise of

those powers."[823]

Resorting to his favorite method in argument, that of repetition,

Marshall again asserts that the fact that "the power of creating a

corporation is one appertaining to sovereignty and is not expressly

conferred on Congress," does not take that power from Congress. If it

does, Congress, by the same reasoning, would be denied the power to pass

most laws; since "all legislative powers appertain to sovereignty." They

who say that Congress may not select "any appropriate means" to carry

out its admitted powers, "take upon themselves the burden of

establishing that exception."[824]

The establishment of the National Bank was a means to an end; the power

to incorporate it is "as incidental" to the great, substantive, and

independent powers expressly conferred on Congress as that of making

war, levying taxes, or regulating commerce.[825] This is not only the

plain conclusion of reason, but the clear language of the Constitution

itself as expressed in the "necessary and proper" clause[826] of that

instrument. Marshall treats with something like contempt the argument

that this clause does not mean what it says, but is "really restrictive

of the general right, which might otherwise be implied, of selecting

means for executing the enumerated powers"--a denial, in short, that,

without this clause, Congress is authorized to make laws.[827] After

conferring on Congress all legislative power, "after allowing each house

to prescribe its own course of proceeding, after describing the manner

in which a bill should become a law, would it have entered into the

mind ... of the convention that an express power to make laws was

necessary to enable the legislature to make them?"[828]

In answering the old Jeffersonian argument that,[829] under the

"necessary and proper" clause, Congress can adopt only those means

absolutely "necessary" to the execution of express powers, Marshall

devotes an amount of space which now seems extravagant. But in 1819 the

question was unsettled and acute; indeed, the Republicans had again made

it a political issue. The Chief Justice repeats the arguments made by

Hamilton in his opinion to Washington on the first Bank Bill.[830]

Some words have various shades of meaning, of which courts must select

that justified by "common usage." "The word 'necessary' is of this

description.... It admits of all degrees of comparison.... A thing may

be necessary, very necessary, absolutely or indispensably necessary."

For instance, the Constitution itself prohibits a State from "laying

'imposts or duties on imports or exports, except what may be

_absolutely_ necessary for executing its inspection laws'"; whereas it

authorizes Congress to "'make all laws which shall be necessary and

proper'" for the execution of powers expressly conferred.[831]

Did the framers of the Constitution intend to forbid Congress to employ

"_any_" means "which might be appropriate, and which were conducive to

the end"? Most assuredly not! "The subject is the execution of those

great powers on which the welfare of a nation essentially depends." The

"necessary and proper" clause is found "in a constitution intended to

endure for ages to come, and, consequently, to be adapted to the various

crises of human affairs.... To have declared that the best means shall

not be used, but those alone without which the power given would be

nugatory, would have been to deprive the legislature of the capacity to

avail itself of experience, to exercise its reason, and to accommodate

its legislation to circumstances."[832]

The contrary conclusion is tinged with "insanity." Whence comes the

power of Congress to prescribe punishment for violations of National

laws? No such general power is expressly given by the Constitution. Yet

nobody denies that Congress has this general power, although "it is

expressly given in some cases," such as counterfeiting, piracy, and

"offenses against the law of nations." Nevertheless, the specific

authorization to provide for the punishment of these crimes does not

prevent Congress from doing the same as to crimes not specified.[833]

Now comes an example of Marshall's reasoning when at his best--and

briefest.

"Take, for example, the power 'to establish post-offices and

post-roads.' This power is executed by the single act of making the

establishment. But, from this has been inferred the power and duty of

carrying the mail along the post-road, from one post-office to another.

And, from this implied power, has again been inferred the right to

punish those who steal letters from the post-office, or rob the mail. It

may be said, with some plausibility, that the right to carry the mail,

and to punish those who rob it, is not indispensably necessary to the

establishment of a post-office and post-road. This right is indeed

essential to the beneficial exercise of the power, but not

indispensably necessary to its existence. So, of the punishment of the

crimes of stealing or falsifying a record or process of a court of the

United States, or of perjury in such court. To punish these offenses is

certainly conducive to the due administration of justice. But courts may

exist, and may decide the causes brought before them, though such crimes

escape punishment.

"The baneful influence of this narrow construction on all the operations

of the government, and the absolute impracticability of maintaining it

without rendering the government incompetent to its great objects, might

be illustrated by numerous examples drawn from the constitution, and

from our laws. The good sense of the public has pronounced, without

hesitation, that the power of punishment appertains to sovereignty, and

may be exercised whenever the sovereign has a right to act, as

incidental to his constitutional powers. It is a means for carrying into

execution all sovereign powers, and may be used, although not

indispensably necessary. It is a right incidental to the power, and

conducive to its beneficial exercise."[834]

To attempt to prove that Congress _might_ execute its powers without the

use of other means than those absolutely necessary would be "to waste

time and argument," and "not much less idle than to hold a lighted taper

to the sun." It is futile to speculate upon imaginary reasons for the

"necessary and proper" clause, since its purpose is obvious. It "is

placed among the powers of Congress, not among the limitations on those

powers. Its terms purport to enlarge, not to diminish the powers vested

in the government.... If no other motive for its insertion can be

suggested, a sufficient one is found in the desire to remove all doubts

respecting the right to legislate on the vast mass of incidental powers

which must be involved in the constitution, if that instrument be not a

splendid bauble."[835]

Marshall thus reaches the conclusion that Congress may "perform the high

duties assigned to it, in the manner most beneficial to the people."

Then comes that celebrated passage--one of the most famous ever

delivered by a jurist: "Let the end be legitimate, let it be within

the scope of the constitution, and all means which are appropriate,

which are plainly adapted to that end, which are not prohibited,

but consist with the letter and spirit of the constitution, are

constitutional."[836]

Further on the Chief Justice restates this fundamental principle,

without which the Constitution would be a lifeless thing: "Where the law

is not prohibited, and is really calculated to effect any of the objects

entrusted to the government, to undertake here to inquire into the

degree of its necessity, would be to pass the line which circumscribes

the judicial department, and to tread on legislative ground. The court

disclaims all pretensions to such a power."[837]

The fact that there were State banks with whose business the National

Bank might interfere, had nothing to do with the question of the power

of Congress to establish the latter. The National Government does not

depend on State Governments "for the execution of the great powers

assigned to it. Its means are adequate to its ends." It can choose a

National bank rather than State banks as an agency for the transaction

of its business; "and Congress alone can make the election."

It is, then, "the unanimous and decided opinion" of the court that the

Bank Act is Constitutional. So is the establishment of the branches of

the parent bank. Can States tax these branches, as Maryland has tried to

do? Of course the power of taxation "is retained by the states," and "is

not abridged by the grant of a similar power to the government of the

Union." These are "truths which have never been denied."

With sublime audacity Marshall then declares that "such is the paramount

character of the constitution that its capacity to withdraw any subject

from the action of even this power, is admitted."[838] This assertion

fairly overwhelms the student, since the States then attempting to tax

out of existence the branches of the National Bank did not admit, but

emphatically denied, that the National Government could withdraw from

State taxation any taxable subject whatever, except that which the

Constitution itself specifically withdraws.

"The States," argues Marshall, "are expressly forbidden" to tax imports

and exports. This being so, "the same paramount character would seem to

restrain, as it certainly may restrain, a state from such other

exercise of this [taxing] power, as is in its nature incompatible with,

and repugnant to, the constitutional laws of the Union. A law,

absolutely repugnant to another, as entirely repeals that other as if

express terms of repeal were used."

In this fashion Marshall holds, in effect, that Congress can restrain

the States from taxing certain subjects not mentioned in the

Constitution as fully as though those subjects were expressly named.

It is on this ground that the National Bank claims exemption "from the

power of a state to tax its operations." Marshall concedes that "there

is no express provision [in the Constitution] for the case, but the

claim has been sustained on a principle which so entirely pervades the

constitution, is so intermixed with the materials which compose it, so

interwoven with its web, so blended with its texture, as to be incapable

of being separated from it without rendering it into shreds."[839]

This was, indeed, going far--the powers of Congress placed on "a

principle" rather than on the language of the Constitution. When we

consider the period in which this opinion was given to the country, we

can understand--though only vaguely at this distance of time--the daring

of John Marshall. Yet he realizes the extreme radicalism of the theory

of Constitutional interpretation he is thus advancing, and explains it

with scrupulous care.

"This great principle is that the constitution and the laws made in

pursuance thereof are supreme; that they control the constitution and

laws of the respective states, and cannot be controlled by them. From

this, which may be almost termed an axiom, other propositions are

deduced as corollaries, on the truth or error of which ... the cause is

supposed to depend."[840]

That "cause" was not so much the one on the docket of the Supreme Court,

entitled M'Culloch _vs._ Maryland, as it was that standing on the docket

of fate entitled Nationalism _vs._ Localism. And, although Marshall did

not actually address them, everybody knew that he was speaking to the

disunionists who were increasing in numbers and boldness. Everybody

knew, also, that the Chief Justice was, in particular, replying to the

challenge of the Virginia Republican organization as given through the

Court of Appeals of that State.[841]

The corollaries which Marshall deduced from the principle of National

supremacy were: "1st. That a power to create implies a power to

preserve. 2d. That a power to destroy, if wielded by a different hand,

is hostile to, and incompatible with these powers to create and to

preserve. 3d. That where this repugnancy exists, that authority which is

supreme must control, not yield to that over which it is supreme."[842]

It is "too obvious to be denied," continues Marshall that, if permitted

to exercise the power, the States can tax the Bank "so as to destroy

it." The power of taxation is admittedly "sovereign"; but the taxing

power of the States "is subordinate to, and may be controlled by the

constitution of the United States. How far it has been controlled by

that instrument must be a question of construction. In making this

construction, no principle not declared can be admissible, which would

defeat the legitimate operations of a supreme government. It is of the

very essence of supremacy to remove all obstacles to its action within

its own sphere, and so to modify every power vested in subordinate

governments as to exempt its own operations from their own influence.

This effect need not be stated in terms. It is so involved in the

declaration of supremacy, so necessarily implied in it, that the

expression of it could not make it more certain. We must, therefore,

keep it [the principle of National supremacy] in view while construing

the constitution."[843]

Unlimited as is the power of a State to tax objects within its

jurisdiction, that State power does not "extend to those means which are

employed by Congress to carry into execution powers conferred on that

body by the people of the United States ... powers ... given ... to a

government whose laws ... are declared to be supreme.... The right never

existed [in the States] ... to tax the means employed by the government

of the Union, for the execution of its powers."[844]

Regardless of this fact, however, can States tax instrumentalities of

the National Government? It cannot be denied, says Marshall, that "the

power to tax involves the power to destroy; that the power to destroy

may defeat ... the power to create; that there is a plain repugnance, in

conferring on one government a power to control the constitutional

measures of another, which other, with respect to those very measures,

is declared to be supreme over that which exerts the control."[845]

Here Marshall permits himself the use of sarcasm, which he dearly loved

but seldom employed. The State Rights advocates insisted that the States

can be trusted not to abuse their powers--confidence must be reposed in

State Legislatures and officials; they would not destroy needlessly,

recklessly. "All inconsistencies are to be reconciled by the magic of

the word CONFIDENCE," says Marshall. "But," he continues, "is this a

case of 'confidence'? Would the people of any one state trust those of

another with a power to control the most insignificant operations of

their state government? We know they would not."

By the same token the people of one State would never consent that the

Government of another State should control the National Government "to

which they have confided the most important and most valuable interests.

In the legislature of the Union alone, are all represented. The

legislature of the Union alone, therefore, can be trusted by the people

with the power of controlling measures which concern all, in the

confidence that it will not be abused. This, then, is not a case of

confidence."[846]

The State Rights theory is "capable of arresting all the measures of the

government, and of prostrating it at the foot of the states." Instead of

the National Government being "supreme," as the Constitution declares it

to be, "supremacy" would be transferred "in fact, to the states"; for,

"if the states may tax one instrument, employed by the government in the

execution of its powers, they may tax any and every other instrument.

They may tax the mail; they may tax the mint; they may tax

patent-rights; they may tax the papers of the custom-house; they may tax

judicial process; they may tax all the means employed by the government,

to an excess which would defeat all the ends of government. This was not

intended by the American people. They did not design to make their

government dependent on the states."

The whole question is, avows Marshall, "in truth, a question of

supremacy." If the anti-National principle that the States can tax the

instrumentalities of the National Government is to be sustained, then

the declaration in the Constitution that it and laws made under it

"shall be the supreme law of the land, is empty and unmeaning

declamation."[847]

Maryland had argued that, since the taxing power is, at least,

"concurrent" in the State and National Governments, the States can tax a

National bank as fully as the Nation can tax State banks. But, remarks

Marshall, "the two cases are not on the same reason." The whole American

people and all the States are represented in Congress; when they tax

State banks, "they tax their constituents; and these taxes must be

uniform. But, when a state taxes the operations of the government of the

United States, it acts upon institutions created, not by their own

constituents, but by people over whom they claim no control. It acts

upon the measures of a government created by others as well as

themselves, for the benefit of others in common with themselves.

"The difference is that which always exists, and always must exist,

between the action of the whole on a part, and the action of a part on

the whole--between the laws of a government declared to be supreme, and

those of a government which, when in opposition to those laws, is not

supreme.... The states have no power, by taxation or otherwise, to

retard, impede, burden, or in any manner control the operations of the

constitutional laws enacted by Congress to carry into execution the

powers vested in the general government."[848]

For these reasons, therefore, the judgment of the Supreme Court was that

the Maryland law taxing the Baltimore branch of the National Bank was

"contrary to the constitution ... and void"; that the judgment of the

Baltimore County Court against the branch bank "be reversed and

annulled," and that the judgment of the Maryland Court of Appeals

affirming the judgment of the County Court also "be reversed and

annulled."[849]

In effect John Marshall thus rewrote the fundamental law of the Nation;

or, perhaps it may be more accurate to say that he made a written

instrument a living thing, capable of growth, capable of keeping pace

with the advancement of the American people and ministering to their

changing necessities. This greatest of Marshall's treatises on

government may well be entitled the "Vitality of the Constitution."

Story records that Marshall's opinion aroused great political

excitement;[850] and no wonder, since the Chief Justice announced, in

principle, that Congress had sufficient power to "emancipate every slave

in the United States" as John Randolph declared five years later.[851]

Roane, Ritchie, Taylor, and the Republican organization of Virginia had

anticipated that the Chief Justice would render a Nationalist opinion;

but they were not prepared for the bold and crushing blows which he

rained upon their fanatically cherished theory of Localism. As soon as

they recovered from their surprise and dismay, they opened fire from

their heaviest batteries upon Marshall and the National Judiciary. The

way was prepared for them by a preliminary bombardment in the _Weekly

Register_ of Hezekiah Niles.

This periodical had now become the most widely read and influential

publication in the country; it had subscribers from Portland to New

Orleans, from Savannah to Fort Dearborn. Niles had won the confidence of

his far-flung constituency by his honesty, courage, and ability. He was

the prototype of Horace Greeley, and the _Register_ had much the same

hold on its readers that the _Tribune_ came to have thirty years later.

In the first issue of the _Register_, after Marshall's opinion was

delivered, Niles began an attack upon it that was to spread all over the

land. "A deadly blow has been struck at the _sovereignty of the states_,

and from a quarter so far removed from the people as to be hardly

accessible to public opinion," he wrote. "The welfare of the union has

received a more dangerous wound than fifty _Hartford_ conventions ...

could inflict." Parts of Marshall's opinion are "_incomprehensible_. But

perhaps, as some people tell us of what _they_ call the _mysteries_ of

religion, the _common people_ are not to understand them, such things

being reserved only for the _priests_!!"[852]

The opinion of the Chief Justice was published in full in Niles's

_Register_ two weeks after he delivered it,[853] and was thus given

wider publicity than any judicial utterance previously rendered in

America. Indeed, no pronouncement of any court, except, perhaps, that in

Gibbons _vs._ Ogden,[854] was read so generally as Marshall's opinion in

M'Culloch _vs._ Maryland, until the publication of the Dred Scott

decision thirty-eight years later. Niles continues his attack in the

number of the _Register_ containing the Bank opinion:

It is "more important than any ever before pronounced by that exalted

tribunal--a tribunal so far removed from the people, that some seem to

regard it with a species of that awful reverence in which the

inhabitants of Asia look up to their princes."[855] This exasperated

sentence shows the change that Marshall, during his eighteen years on

the bench, had wrought in the standing and repute of the Supreme

Court.[856] The doctrines of the Chief Justice amount to this, said

Niles--"congress may grant _monopolies_" at will, "if the _price_ is

paid for them, or without any pecuniary consideration at all." As for

the Chief Justice personally, he "has not added ... to his stock of

reputation by writing it--_it is excessively labored_."[857]

Papers throughout the country copied Niles's bitter criticisms,[858] and

public opinion rapidly crystallized against Marshall's Nationalist

doctrine. Every where the principle asserted by the Chief Justice became

a political issue; or, rather, his declaration, that that principle was

law, made sharper the controversy that had divided the people since the

framing of the Constitution.

In number after number of his _Register_ Niles, pours his wrath on

Marshall's matchless interpretation. It is "far more dangerous to the

union and happiness of the people of the United States than ... _foreign

invasion_.[859] ... Certain nabobs in Boston, New York, Philadelphia and

Baltimore, ... to secure the passage of an act of _incorporation_, ...

fairly purchase the souls of some members of the national legislature

with _money_, as happened in Georgia, or secure the votes of others by

making them _stockholders_, as occurred in New York, and the act is

passed.[860]... We call upon the people, the honest people, who hate

_monopolies_ and _privileged orders_, to arise in their strength and

purge our political temple of the _money-changers_ and those who sell

_doves_--causing a reversion to the original purity of our system of

government, that the faithful centinel may again say, 'ALL'S

WELL!'"[861]

Extravagant and demagogical as this language of Niles's now seems, he

was sincere and earnest in the use of it. Copious quotations from the

_Register_ have been here made because it had the strongest influence on

American public opinion of any publication of its time. Niles's

_Register_ was, emphatically, the mentor of the country editor.[862]

At last the hour had come when the Virginia Republican triumvirate could

strike with an effect impossible of achievement in 1816 when the Supreme

Court rebuked and overpowered the State appellate tribunal in Martin

_vs._ Hunter's Lessee.[863] Nobody outside of Virginia then paid any

attention to that decision, so obsessed was the country by speculation

and seeming prosperity. But in 1819 the collapse had come; poverty and

discontent were universal; rebellion against Nationalism was under way;

and the vast majority blamed the Bank of the United States for all their

woes. Yet Marshall had upheld "the monster." The Virginia Junto's

opportunity had arrived.

No sooner had Marshall returned to Richmond than he got wind of the

coming assault upon him. On March 23, 1819, the _Enquirer_ published his

opinion in full. The next day the Chief Justice wrote Story: "Our

opinion in the Bank case has aroused the sleeping spirit of Virginia,

if indeed it ever sleeps. It will, I understand, be attacked in the

papers with some asperity, and as those who favor it never write for the

publick it will remain undefended & of course be considered as _damnably

heretical_."[864] He had been correctly informed. The attack came

quickly.

On March 30, Spencer Roane opened fire in the paper of his cousin Thomas

Ritchie, the _Enquirer_,[865] under the _nom de guerre_ of "Amphictyon."

His first article is able, calm, and, considering his intense feelings,

fair and moderate. Roane even extols his enemy:

"That this opinion is very able every one must admit. This was to have

been expected, proceeding as it does from a man of the most profound

legal attainments, and upon a subject which has employed his thoughts,

his tongue, and his pen, as a politician, and an historian for more than

thirty years. The subject, too, is one which has, perhaps more than any

other, heretofore drawn a broad line of distinction between the two

great parties in this country, on which line no one has taken a more

distinguished and decided rank than the judge who has thus expounded the

supreme law of the land. It is not in my power to carry on a contest

upon such a subject with a man of his gigantic powers."[866]

Niles had spoken to "the plain people"; Roane is now addressing the

lawyers and judges of the country. His essay is almost wholly a legal

argument. It is based on the Virginia Resolutions of 1799 and gives the

familiar State Rights arguments, applying them to Marshall's

opinion.[867] In his second article Roane grows vehement, even fiery,

and finally exclaims that Virginia "never will _employ force to support

her doctrines till other measures have entirely failed_."[868]

His attacks had great and immediate response. No sooner had copies of

the _Enquirer_ containing the first letters of Amphictyon reached

Kentucky than the Republicans of that State declared war on Marshall. On

April 20, the _Enquirer_ printed the first Western response to Roane's

call to arms. Marshall's principles, said the Kentucky correspondent,

"must raise an alarm throughout our widely extended empire.... The

people must rouse from the lap of Delilah and prepare to meet the

Philistines.... No mind can compass the extent of the encroachments upon

State and individual rights which may take place under the principles of

this decision."[869]

[Illustration: SPENCER ROANE]

Even Marshall, a political and judicial veteran in his sixty-fifth

year, was perturbed. "The opinion in the Bank case continues to be

denounced by the democracy in Virginia," he writes Story, after the

second of Roane's articles appeared. "An effort is certainly making to

induce the legislature which will meet in December to take up the

subject & to pass resolutions not very unlike those which were called

forth by the alien & sedition laws in 1799. Whether the effort will be

successful or not may perhaps depend in some measure on the sentiments

of our sister states. To excite this ferment the opinion has been

grossly misrepresented; and where its argument has been truly stated it

has been met by principles one would think too palpably absurd for

intelligent men.

"But," he gloomily continues, "prejudice will swallow anything. If the

principles which have been advanced on this occasion were to prevail the

constitution would be converted into the old confederation."[870]

As yet Roane had struck but lightly. He now renewed the Republican

offensive with greater spirit. During June, 1819, the _Enquirer_

published four articles signed "Hampden," from Roane's pen. Ritchie

introduced the "Hampden" essays in an editorial in which he urged the

careful reading of the exposure "of the alarming errors of the Supreme

Court.... Whenever State rights are threatened or invaded, Virginia will

not be the last to sound the tocsin."[871]

Are the people prepared "to give _carte blanche_ to our federal rulers"?

asked Hampden. Amendment of the Constitution by judicial interpretation

is taking the place of amendment by the people. Infamous as the methods

of National judges had been during the administration of Adams, "the

most abandoned of our rulers," Marshall and his associates have done

worse. They have given "a _general_ letter of attorney to the future

legislators of the Union.... That man must be a deplorable idiot who

does not see that there is no ... difference" between an "_unlimited_

grant of power and a grant limited in its terms, but accompanied with

_unlimited_ means of carrying it into execution.... The crisis is one

which portends destruction to the liberties of the American people."

Hampden scoldingly adds: "If Mason or Henry could lift their patriot

heads from the grave, ... they would almost exclaim, with Jugurtha,

'Venal people! you will soon perish if you can find a purchaser.'"[872]

For three more numbers Hampden pressed the Republican assault on

Marshall's opinion. The Constitution is a "_compact_, to which the

_States_ are the parties." Marshall's argument in the Virginia

Convention of 1788 is quoted,[873] and his use of certain terms in his

"Life of Washington" is cited.[874] If the powers of the National

Government ought to be enlarged, "let this be the act of the _people_,

and not that of subordinate agents."[875] The opinion of the Chief

Justice repeatedly declares "that the general government, though limited

in its powers, is supreme." Hampden avows that he does "not understand

this jargon.... The _people_ only are supreme.[876]... Our general

government ... is as much a ... 'league' as was the former

confederation." Therefore, the Virginia Court of Appeals, in Hunter

_vs._ Fairfax, declared an act of Congress "unconstitutional, although

it had been sanctioned by the opinion of the Supreme Court of the United

States." Pennsylvania, too, had maintained its "sovereignty."[877]

Hampden has only scorn for "_some_ of the judges" who concurred in the

opinion of the Chief Justice. They "had before been accounted

republicans.... Few men come out from high places, as pure as they went

in."[878] If Marshall's doctrine stands, "the triumph over our liberties

will be ... easy and complete." What, then, could "arrest this

calamity"? Nothing but an "appeal" to the people. Let this majestic and

irresistible power be invoked.[879]

That he had no faith in his own theory is proved by the rather dismal

fact that, more than two months before Marshall "violated the

Constitution" and "endangered the liberties" of the people by his Bank

decision, Roane actually arranged for the purchase, as an investment for

his son, of $4900 worth of the shares of the Bank of the United States,

and actually made the investment.[880] This transaction, consummated

even before the argument in M'Culloch _vs._ Maryland, shows that Roane,

the able lawyer, was sure that Marshall would and ought to sustain the

Bank in its controversy with the States that were trying to destroy it.

Moreover, Dr. John Brockenbrough, President of the Bank of Virginia,

actually advised the investment.[881]

It is of moment, too, to note at this point the course taken by

Marshall, who had long owned stock in the Bank of the United States. As

soon as he learned that the suit had been brought which, of a certainty,

must come before him, the Chief Justice disposed of his holdings.[882]

So disturbed was Marshall by Roane's attacks that he did a thoroughly

uncharacteristic thing. By way of reply to Roane he wrote, under the

_nom de guerre_ of "A Friend of the Union," an elaborate defense of his

opinion and, through Bushrod Washington, procured the publication of it

in the _Union_ of Philadelphia, the successor of the _Gazette of the

United States_, and the strongest Federalist newspaper then surviving.

On June 28, 1819, the Chief Justice writes Washington: "I expected three

numbers would have concluded my answer to Hampden but I must write two

others which will follow in a few days. If the publication has not

commenced I could rather wish the signature to be changed to 'A

Constitutionalist.' A Friend of the Constitution is so much like a

Friend of the Union that it may lead to some suspicion of identity.... I

hope the publication has commenced unless the Editor should be unwilling

to devote so much of his paper to this discussion. The letters of

Amphyction & of Hampden have made no great impression in Richmond but

they were designed for the country [Virginia] & have had considerable

influence there. I wish the refutation to be in the hands of some

respectable members of the legislature as it may prevent some act of the

assembly [torn--probably "both"] silly & wicked. If the publication be

made I should [like] to have two or three sets of the papers to hand if

necessary. I will settle with you for the printer."[883]

The reading of Marshall's newspaper effort is exhausting; a summary of

the least uninteresting passages will give an idea of the whole paper.

The articles published in the _Enquirer_ were intended, so he wrote, to

inflict "deep wounds on the constitution," are full of "mischievous

errours," and are merely new expressions of the old Virginia spirit of

hostility to the Nation. The case of M'Culloch _vs._ Maryland serves

only as an excuse "for once more agitating the publick mind, and

reviving those unfounded jealousies by whose blind aid ambition climbs

the ladder of power."[884]

After a long introduction, Marshall enters upon his defense which is as

wordy as his answer to the Virginia Resolutions. He is sensitive over

the charge, by now popularly made, that he controls the Supreme Court,

and cites the case of the Nereid to prove that the Justices give

dissenting opinions whenever they choose. "The course of every tribunal

must necessarily be, that the opinion which is to be delivered as the

opinion of the court, is previously submitted to the consideration of

all the judges; and, if any part of the reasoning be disapproved, it

must be so modified as to receive the approbation of all, before it can

be delivered as the opinion of all."

Roane's personal charges amount to this: "The chief justice ... is a

federalist; who was a politician of some note before he was judge; and

who with his tongue and his pen supported the opinions he avowed." With

the politician's skill Marshall uses the fact that the majority of the

court, which gave the Nationalist judgment in M'Culloch _vs._ Maryland,

were Republicans--"four of whom [Story, Johnson, Duval, and Livingston]

have no political sin upon their heads;--who in addition to being

eminent lawyers, have the still greater advantage of being sound

republicans; of having been selected certainly not for their federalism,

by Mr Jefferson, and Mr Madison, for the high stations they so properly

fill." For eight tedious columns of diffuse repetition Marshall goes on

in defense of his opinion.[885]

When the biographer searches the daily life of a man so surpassingly

great and good as Marshall, he hopes in no ungenerous spirit to find

some human frailty that identifies his hero with mankind. The Greeks did

not fail to connect their deities with humanity. The leading men of

American history have been ill-treated in this respect--for a century

they have been held up to our vision as superhuman creatures to admire

whom was a duty, to criticize whom was a blasphemy, and to love or

understand whom was an impossibility.

All but Marshall have been rescued from this frigid isolation. Any

discovery of human frailty in the great Chief Justice is, therefore,

most welcome. Some small and gracious defects in Marshall's character

have appeared in the course of these volumes; and this additional

evidence of his susceptibility to ordinary emotion is very pleasing.

With all his stern repression of that element of his character, we find

that he was sensitive in the extreme; in reality, thirsting for

approval, hurt by criticism. In spite of this desire for applause and

horror of rebuke, however, he did his duty, knowing beforehand that his

finest services would surely bring upon him the denunciation and abuse

he so disliked. By such peevishness as his anonymous reply in the

_Union_ to Roane's irritating attacks, we are able to get some measure

of the true proportions of this august yet very human character.

When Marshall saw, in print, this controversial product of his pen, he

was disappointed and depressed. The editor had, he avowed, so confused

the manuscript that it was scarcely intelligible. At any rate, Marshall

did not want his defense reproduced in New England. Story had heard of

the article in the _Union_, and wrote Marshall that he wished to secure

the publication of it. The Chief Justice replied:

"The piece to which you allude was not published in Virginia. Our

patriotic papers admit no such political heresies. It contained, I

think, a complete demonstration of the fallacies & errors contained in

those attacks on the opinion of the Court which have most credit here &

are supposed to proceed from a high source,[886] but was so mangled in

the publication that those only who had bestowed close attention to the

subject could understand it.

"There were two numbers[887] & the editor of the Union in Philadelphia,

the paper in which it was published, had mixed the different numbers

together so as in several instances to place the reasoning intended to

demonstrate one proposition under another. The points & the arguments

were so separated from each other, & so strangely mixed as to constitute

a labyrinth to which those only who understood the whole subject

perfectly could find a clue."[888]

It appears that Story insisted on having at least Marshall's rejoinder

to Roane's first article reproduced in the Boston press. Again the Chief

Justice evades the request of his associate and confidant: "I do not

think a republication of the piece you mention in the Boston papers to

be desired, as the antifederalism of Virginia will not, I trust, find

its way to New England. I should also be sorry to see it in Mr.

Wheaton's[889] appendix because that circumstance might lead to

suspicions regarding the author & because I should regret to see it

republished in its present deranged form with the two centres

transposed."[890]

For a brief space, then, the combatants rested on their arms, but each

was only gathering strength for the inevitable renewal of the engagement

which was to be sterner than any previous phases of the contest.

Soon after the convening of the first session of the Virginia

Legislature held subsequent to the decision of M'Culloch _vs._ Maryland,

Roane addressed the lawmakers through the _Enquirer_, now signing

himself "Publicola." He pointed out the "absolute disqualification of

the supreme court of the U. S. to decide with impartiality upon

controversies between the General and State Governments";[891] and, to

"ensure _unbiassed_" decisions, insisted upon a Constitutional amendment

to establish a tribunal "(as occasion may require)" appointed partly by

the States and partly by the National Government, "with _appellate_

jurisdiction from the present supreme court."[892]

Promptly a resolution against Marshall's opinion was offered in the

House of Delegates.[893] This noteworthy paper was presented by Andrew

Stevenson, a member of the "committee for Courts of Justice."[894] The

resolutions declared that the doctrines of M'Culloch _vs._ Maryland

would "undermine the pillars of the Constitution itself." The provision

giving to the judicial power "_all cases_ arising _under the

Constitution_" did not "extend to questions which would amount to a

subversion of the constitution itself, by the usurpation of one

contracting party on another." But Marshall's opinion was calculated to

"change the whole character of the government."[895]

Sentences from the opinion of the Chief Justice are quoted, including

the famous one: "Let the end be legitimate, ... and all the means which

are appropriate, ... which are not prohibited, ... are constitutional."

Did not such expressions import that Congress could "conform the

constitution to their own designs" by the exercise of "unlimited and

uncontrouled" power? The ratifying resolution of the Constitution by the

Virginia Convention of 1788 is quoted.[896] Virginia's voice had been

heard to the same effect in the immortal Resolutions of 1799. Her views

had been endorsed by the country in the Presidential election of

1800--that "great revolution of principle." Her Legislature, therefore,

"enter their most solemn protest, against the decision of the supreme

court, and of the principles contained in it."

In this fashion the General Assembly insisted on an amendment to the

National Constitution "creating a _tribunal_" authorized to decide

questions relative to the "powers of the general and state governments,

under the compact." The Virginia Senators are, therefore, instructed to

do their best to secure such an amendment and "to resist on every

occasion" attempted legislation by Congress in conflict with the views

set forth in this resolution or those of 1799 "which have been

re-considered, and are fully and entirely approved of by this Assembly."

The Governor is directed to transmit the resolutions to the other

States.[897]

At this point Slavery and Secession enter upon the scene. Almost

simultaneously with the introduction of the resolutions denouncing

Marshall and the Supreme Court for the judgment and opinion in M'Culloch

_vs._ Maryland, other resolutions were offered by a member of the House

named Baldwin denouncing the imposition of restrictions on Missouri (the

prohibition of slavery) as a condition of admitting that Territory to

the Union. Such action by Congress would "excite feelings eminently

hostile to the fraternal affection and prudent forbearance which ought

ever to pervade the confederated union."[898] Two days later, December

30, the same delegate introduced resolutions to the effect that only the

maintenance of the State Rights principle could "preserve the

confederated union," since "no government can long exist which lies at

the mercy of another"; and, inferentially, that Marshall's opinion in

M'Culloch _vs._ Maryland had violated that principle.[899]

A yet sterner declaration on the Missouri question quickly followed,

declaring that Congress had no power to prohibit slavery in that State,

and that "Virginia will support the good people of Missouri in their

just rights ... and will co-operate with them in resisting with manly

fortitude any attempt which Congress may make to impose restraints or

restrictions as the price of their admission" to the Union.[900] The

next day these resolutions, strengthened by amendment, were

adopted.[901] On February 12, 1820, the resolutions condemning the

Nationalist doctrine expounded by the Chief Justice in the Bank case

also came to a vote and passed, 117 ayes to 38 nays.[902] They had been

amended and reamended,[903] but, as adopted, they were in substance the

same as those originally offered by Stevenson. Through both these sets

of resolutions--that on the Missouri question and that on the Bank

decision--ran the intimation of forcible resistance to National

authority. Introduced at practically the same time, drawn and advocated

by the same men, passed by votes of the same members, these important

declarations of the Virginia Legislature were meant to be and must be

considered as a single expression of the views of Virginia upon National

policy.

In this wise did the Legislature of his own State repudiate and defy

that opinion of John Marshall which has done more for the American

Nation than any single utterance of any other one man, excepting only

the Farewell Address of Washington. In such manner, too, was the slavery

question brought face to face with Marshall's lasting exposition of the

National Constitution. For, it should be repeated, in announcing the

principles by virtue of which Congress could establish the Bank of the

United States, the Chief Justice had also asserted, by necessary

inference, the power of the National Legislature to exact the exclusion

of slavery as a condition upon which a State could be admitted to the

Union. At least this was the interpretation of Virginia and the South.

The slavery question did not, to be sure, closely touch Northern States,

but their local interests did. Thus it was that Ohio aligned herself

with Virginia in opposition to Marshall's Nationalist statesmanship, and

in support of the Jeffersonian doctrine of Localism. In such fashion did

the Ohio Bank question become so intermingled with the conflict over

Slavery and Secession that, in the consideration of Marshall's opinions

at this time, these controversies cannot be separated. The facts of the

Ohio Bank case must, therefore, be given at this point.[904]

Since the establishment at Cincinnati, early in 1817, of a branch of

the Bank of the United States, Ohio had threatened to drive it from the

State by a prohibitive tax. Not long before the argument of M'Culloch

_vs._ Maryland in the Supreme Court, the Ohio Legislature laid an annual

tax of $50,000 on each of the two branches which, by that time, had been

established in that State.[905] On February 8, 1819, only four days

previous to the hearing of the Maryland case at Washington, and less

than a month before Marshall delivered his opinion, the Ohio lawmakers

passed an act directing the State Auditor, Ralph Osborn, to charge this

tax of $50,000 against each of the branches, and to issue a warrant for

the immediate collection of $100,000, the total amount of the first

year's tax.

This law is almost without parallel in severity, peremptoriness, and

defiant contempt for National authority. If the branches refused to pay

the tax, the Ohio law enjoined the person serving the State Auditor's

warrant to seize all money or property belonging to the Bank, found on

its premises or elsewhere. The agent of the Auditor was directed to open

the vaults, search the offices, and take everything of value.[906]

Immediately the branch at Chillicothe obtained from the United States

District Court, then in session at that place, an injunction forbidding

Osborn from collecting the tax;[907] but the bank's counsel forgot to

have a writ issued to stay the proceedings. Therefore, no order of the

court was served; instead a copy of the bill praying that the Auditor be

restrained, together with a subpoena to answer, was sent to Osborn.

These papers were not, of course, an injunction, but merely notice that

one had been applied for. Thinking to collect the tax before the

injunction could be issued, Osborn forthwith issued his Auditor's

warrant to one John L. Harper to collect the tax immediately. Assisted

by a man named Thomas Orr, Harper entered the Chillicothe branch of the

Bank of the United States, opened the vaults, seized all the money to be

found, and deposited it for the night in the local State bank. Next

morning Harper and Orr loaded the specie, bank notes, and other

securities in a wagon and started for Columbus.[908]

The branch bank tardily obtained an order from the United States Court

restraining Osborn, the State Auditor, and Harper, the State agent, from

delivering the money to the State Treasurer and from making any report

to the Legislature of the collection of the tax. This writ was served on

Harper as he and Orr were on the road to the State Capital with the

money. Harper simply ignored the writ, drove on to Columbus, and handed

over to the State Treasurer the funds which he had seized at

Chillicothe.

Harper and Orr were promptly arrested and imprisoned in the jail at

Chillicothe.[909] Because of technical defects in serving the warrant

for their arrest and in the return of the marshal, the prisoners were

set free.[910] An order was secured from the United States Court

directing Osborn and Harper to show cause why an attachment should not

be issued against them for having disobeyed the court's injunction not

to deliver the bank's money to the State Treasurer. After extended

argument, the court issued the attachment, which, however, was not made

returnable until the January term, 1821.

Meanwhile the Virginia Legislature passed its resolutions denouncing

Marshall's opinion in M'Culloch _vs._ Maryland, and throughout the

country the warfare upon the Supreme Court began. The Legislature of

Ohio acted with a celerity and boldness that made the procedure of the

Virginia Legislature seem hesitant and timid. A joint committee was

speedily appointed and as promptly made its report. This report and the

resolutions recommended by it were adopted without delay and transmitted

to the Senate of the United States.[911]

The Ohio declaration is drawn with notable ability. A State cannot be

sued--the true meaning of the Constitution forbids, and the Eleventh

Amendment specifically prohibits, such procedure.

Yet the action against Osborn, State Auditor, and Samuel Sullivan, State

Treasurer, is, "to every substantial purpose, a process against the

State." The decision of the National Supreme Court that the States have

no power to tax branches of the Bank of the United States does not bind

Ohio or render her tax law "a dead letter."[912]

The Ohio Legislature challenges the _bona fides_ of M'Culloch _vs._

Maryland: "If, by the management of a party, and through the

inadvertence or connivance of a State, a case be made, presenting to the

Supreme Court of the United States for decision important ... questions

of State power and State authority, upon no just principle ought the

States to be concluded by any decision had upon such a case.... Such is

the true character of the case passed upon the world by the title of

McCulloch _vs._ Maryland," which, "when looked into, is found to be ...

throughout, an agreed case, made expressly for the purpose of obtaining

the opinion of the Supreme Court of the United States.... This agreed

case was manufactured in the summer of the year 1818" and rushed through

two Maryland courts, "so as to be got upon the docket of the Supreme

Court of the United States for adjudication at their February term,

1819.... It is truly an alarming circumstance if it be in the power of

an aspiring corporation and an unknown and obscure individual thus to

elicit opinions compromitting the vital interests of the States that

compose the American Union."

Luckily for Ohio and all the States, this report goes on to say, some

of Marshall's opinions have been "totally impotent and unavailing," as,

for instance, in the case of Marbury _vs._ Madison. Marbury did not get

his commission; "the person appointed in his place continued to act; his

acts were admitted to be valid; and President Jefferson retained his

standing in the estimation of the American people." It was the same in

the case of Fletcher _vs._ Peck. Marshall held that "the Yazoo

purchasers ... were entitled to their lands. But the decision availed

them nothing, unless as a make-weight in effecting a compromise." Since,

in neither of these cases, had the National Government paid the

slightest attention to the decision of the Supreme Court, how could Ohio

"be condemned because she did not abandon her solemn legislative acts as

a dead letter upon the promulgation of an opinion of that

tribunal"?[913]

The Ohio Legislature then proceeds to analyze Marshall's opinion in

M'Culloch _vs._ Maryland. All the arguments made against the principle

of implied powers since Hamilton first announced that principle,[914]

and all the reasons advanced against the doctrine that the National

Government is supreme, in the sense employed by Marshall, are restated

with clearness and power. However, since the object of the tax was to

drive the branches of the Bank out of Ohio, the Legislature suggests a

compromise. If the National institution will cease business within the

State and "give assurance" that the branches be withdrawn, the State

will refund the tax money it has seized.[915]

Instantly turning from conciliation to defiance, "because the reputation

of the State has been assailed," the Legislature challenges the National

Government to make good Marshall's assertion that the power which

created the Bank "must have the power to preserve it." Ohio should pass

laws "forbidding the keepers of our jails from receiving into their

custody any person committed at the suit of the Bank of the United

States," and prohibiting Ohio judges, recorders, notaries public, from

recognizing that institution in any way.[916] Congress will then have to

provide a criminal code, a system of conveyances, and other extensive

measures. Ohio and the country will then learn whether the power that

created the Bank can preserve it.

The Ohio memorial concludes with a denial that the "political rights"

and "sovereign powers" of a State can be settled by the Supreme Court of

the Nation "in cases contrived between individuals, and where they [the

States] are, no one of them, parties direct." The resolutions further

declare that the opinion of the other States should be secured.[917]

This alarming manifesto was presented to the National Senate on February

1, 1821, just six weeks before Marshall delivered the opinion of the

Supreme Court in Cohens _vs._ Virginia.[918]

Pennsylvania had already taken stronger measures; had anticipated even

Virginia. Within seven weeks from the delivery of Marshall's opinion in

M'Culloch _vs._ Maryland, the Legislature of Pennsylvania proposed an

amendment to the National Constitution prohibiting Congress from

authorizing "any bank or other monied institution" outside of the

District of Columbia.[919] The action of Ohio was an endorsement of that

of Virginia and Pennsylvania. Indiana had already swung into line.[920]

So had Illinois and Tennessee.[921] For some reason, Kentucky, soon to

become one of the most belligerent and persevering of all the States in

her resistance to the "encroachments" of Nationalism as expounded by the

Supreme Court, withheld her hand for the moment.

Most unaccountably, South Carolina actually upheld Marshall's

opinion,[922] which that State, within a decade, was to repudiate,

denounce, and defy in terms of armed resistance.[923] New York and

Massachusetts,[924] consulting their immediate interests, were very

stern against the Localism of Ohio, Virginia, and Pennsylvania.[925]

Georgia expressed her sympathy with the Localist movement, but, for the

time being, was complaisant[926]--a fact the more astonishing that she

had already proved, and was soon to prove again, that Nationalism is a

fantasy unless it is backed by force.[927]

Notwithstanding the eccentric attitude of various members of the Union,

it was only too plain that a powerful group of States were acting in

concert and that others ardently sympathized with them.

At this point, in different fashion, Virginia spoke again, this time by

the voice of that great protagonist of Localism, John Taylor of

Caroline, the originator of the Kentucky Resolutions,[928] and the most

brilliant mind in the Republican organization of the Old Dominion.

Immediately after Marshall's opinion in M'Culloch _vs._ Maryland, and

while the Ohio conflict was in progress, he wrote a book in denunciation

and refutation of Marshall's Nationalist principles. The editorial by

Thomas Ritchie, commending Taylor's book, declares that "the crisis has

come"; the Missouri question, the Tariff question, the Bank question,

have brought the country to the point where a decision must be made as

to whether the National Government shall be permitted to go on with its

usurpations. "If there is any book capable of arousing the people, it is

the one before us."

Taylor gave to his volume the title "Construction Construed, and

Constitutions Vindicated." The phrases "exclusive interests" and

"exclusive privileges" abound throughout the volume. Sixteen chapters

compose this classic of State Rights philosophy. Five of them are

devoted to Marshall's opinion in M'Culloch _vs._ Maryland; the others to

theories of government, the state of the country, the protective tariff,

and the Missouri question. The principles of the Revolution, avows

Taylor, "are the keys of construction" and "the locks of

liberty.[929]... No form of government can foster a fanaticism for

wealth, without being corrupted." Yet Marshall's ideas establish "the

despotick principle of a gratuitous distribution of wealth and poverty

by law."[930]

If the theory that Congress can create corporations should prevail,

"legislatures will become colleges for teaching the science of getting

money by monopolies or favours."[931] To pretend faith in Christianity,

and yet foster monopoly, is "like placing Christ on the car of

Juggernaut."[932] The framers of the National Constitution tried to

prevent the evils of monopoly and avarice by "restricting the powers

given to Congress" and safeguarding those of the States; "in fact, by

securing the freedom of property."[933]

Marshall is enamored of the word "sovereignty," an "equivocal and

illimitable word," not found in "the declaration of independence, nor

the federal constitution, nor the constitution of any single state"; all

of them repudiated it "as a traitor of civil rights."[934] Well that

they had so rejected this term of despotism! No wonder Jugurtha

exclaimed, "Rome was for sale," when "the government exercised an

absolute power over the national property." Of course it would "find

purchasers."[935] To this condition Marshall's theories will bring

America.

[Illustration: JOHN TAYLOR]

Whence this effort to endow the National Government with powers

comparable to those of a monarchy? Plainly it is a reaction--"many wise

and good men, ... alarmed by the illusions of Rousseau and Godwin, and

the atrocities of the French revolution, honestly believe that these

[democratic] principles have teeth and claws, which it is expedient to

draw and pare, however constitutional they may be; without considering

that such an operation will subject the generous lion to the wily

fox; ... subject liberty and property to tyranny and fraud."[936]

In chapter after chapter of clever arguments, illumined by the sparkle

of such false gems as these quotations, Taylor prepares the public mind

for his direct attack on John Marshall. He is at a sad disadvantage; he,

"an unknown writer," can offer only "an artless course of reasoning"

against the "acute argument" of Marshall's opinion, concurred in by the

members of the Supreme Court whose "talents," "integrity,"

"uprightness," and "erudition" are universally admitted.[937] The

essence of Marshall's doctrine is that, although the powers of the

National Government are limited, the means by which they may be executed

are unlimited. But, "as ends may be made to beget means, so means may be

made to beget ends, until the co-habitation shall rear a progeny of

unconstitutional bastards, which were not begotten by the people."[938]

Marshall had said that "'the creation of a corporation appertains to

sovereignty.'" This is the language of tyranny. The corporate idea crept

into British law "wherein it hides the heart of a prostitute under the

habiliments of a virgin."[939] But since, in America, only the people

are "sovereign," and, to use Marshall's own words, the power to create

corporations "appertains to sovereignty," it follows that neither State

nor National Governments can create corporations.[940]

The Chief Justice is a master of the "science of verbality" by which the

Constitution may be rendered "as unintelligible, as a single word would

be made by a syllabick dislocation, or a jumble of its letters; and turn

it into a reservoir of every meaning for which its expounder may have

occasion."

Where does Marshall's "artifice of verbalizing" lead?[941] To an

"artificially reared, a monied interest ... which is gradually obtaining

an influence over the federal government," and "craftily works upon the

passions of the states it has been able to delude" [on the slavery

question], "to coerce the defrauded and discontented states into

submission." For this reason talk of civil war abounds. "For what are

the states talking about disunion, and for what are they going to war

among themselves? To create or establish a monied sect, composed of

privileged combinations, as an aristocratical oppressor of them

all."[942] Marshall's doctrine that Congress may bestow "exclusive

privileges" is at the bottom of the Missouri controversy. "Had the

motive ... never existed, the discussion itself would never have

existed; but if the same cause continues, more fatal controversies may

be expected."[943]

Finally Taylor hurls at the Nation the challenge of the South, which the

representatives of that section, from the floor of Congress, quickly

repeated in threatenings of civil war.[944] "There remains a right,

anterior to every political power whatsoever, ... the natural right of

self-defence.... It is allowed, on all hands, that danger to the

slave-holding states lurks in their existing situation, ... and it must

be admitted that the right of self-defence applies to that situation....

I leave to the reader the application of these observations."[945]

Immediately upon its publication, Ritchie sent a copy of Taylor's book

to Jefferson, who answered that he knew "before reading it" that it

would prove "orthodox." The attack upon the National courts could not be

pressed too energetically: "The judiciary of the United States is the

subtle corps of sappers and miners constantly working under ground to

undermine the foundations of our confederated fabric.... An opinion is

huddled up in conclave, perhaps by a majority of one, delivered as if

unanimous, and with the silent acquiescence of lazy and timid

associates, by a crafty chief judge, who sophisticates the law to his

mind, by the turn of his own reasoning."[946]

FOOTNOTES:

[784] These penalties were forfeits of $500 for every offense--a sum

that would have aggregated hundreds of thousands, perhaps millions of

dollars, in the case of the Baltimore branch, which did an enormous

business. The Maryland law also provided that "every person having any

agency in circulating" any such unauthorized note of the Bank should be

fined one hundred dollars. (Act of Feb. 11, 1818, _Laws of Maryland_,

174.)

[785] Story to White, March 3, 1819, Story, I, 325.

[786] Webster always dressed with extreme care when he expected to make

a notable speech or argument. For a description of his appearance on

such an occasion see Sargent: _Public Men and Events_, I, 172.

[787] 4 Wheaton, 323.

[788] _Ib._ 324.

[789] _Ib._ 327.

[790] _Ib._ 328.

[791] 4 Wheaton, 330 _et seq._

[792] _Ib._ 362 _et seq._

[793] _Ib._ 272-73.

[794] _Ib._ 374.

[795] Tyler: _Memoir of Roger Brooke Taney_, 141.

[796] The student should carefully examine Pinkney's argument. Although

the abstract of it given in Wheaton's report is very long, a painstaking

study of it will be helpful to a better understanding of the development

of American Constitutional law. (4 Wheaton, 377-400.)

[797] Story to White, March 3, 1819, Story, I, 324-25.

[798] 4 Wheaton, 426.

[799] See _supra_, chap. V.

[800] Webster to Mason, Feb. 24, 1819, Van Tyne, 78-79.

[801] Webster to Smith, Feb. 28, 1819, _ib._ 79-80.

[802] From February 22 to February 27 and from March 1 to March 3, 1819.

[803] February 18, 1819. See _Annals_, 15th Cong. 2d Sess. 1240.

[804] _Ib._ 1242.

[805] _Annals_, 15th Cong. 2d Sess. 1249-50.

[806] _Ib._ 1254.

[807] _Ib._ 1286.

[808] _Ib._ 1311.

[809] _Ib._ 1404-06.

[810] "Marshall's opinion in M'Culloch _vs._ Maryland, is perhaps the

most celebrated Judicial utterance in the annals of the English speaking

world." (_Great American Lawyers_: Lewis, II, 363.)

[811] As the biographer of Washington, Marshall had carefully read both

Hamilton's and Jefferson's Cabinet opinions on the constitutionality of

a National bank. Compare Hamilton's argument (vol. II, 72-74, of this

work) with Marshall's opinion in M'Culloch _vs._ Maryland.

[812] 4 Wheaton, 400.

[813] _Ib._ (Italics the author's.)

[814] 4 Wheaton, 400-02.

[815] "In discussing this question, the counsel for the state of

Maryland have deemed it of some importance, in the construction of the

constitution, to consider that instrument not as emanating from the

people, but as the act of sovereign and independent states. The powers

of the general government, it has been said, are delegated by the

states, who alone are truly sovereign; and must be exercised in

subordination to the states, who alone possess supreme dominion.

"It would be difficult to sustain this proposition. The convention which

framed the constitution was indeed elected by the state legislatures.

But the instrument, when it came from their hands, was a mere proposal,

without obligation, or pretensions to it. It was reported to the then

existing Congress of the United States, with a request that it might 'be

submitted to a convention of delegates, chosen in each state, by the

people thereof, under the recommendation of its legislature, for their

assent and ratification.' This mode of proceeding was adopted; and by

the convention, by Congress, and by the state legislatures, the

instrument was submitted to the people.

"They acted upon it in the only manner in which they can act safely,

effectively, and wisely, on such a subject, by assembling in convention.

It is true, they assembled in their several states--and where else

should they have assembled? No political dreamer was ever wild enough to

think of breaking down the lines which separate the states, and of

compounding the American people into one common mass. Of consequence,

when they act, they act in their states. But the measures they adopt do

not, on that account, cease to be the measures of the people themselves,

or become the measures of the state governments. From these conventions

the constitution derives its whole authority." (4 Wheaton, 402-03.)

[816] 4 Wheaton, 403-04.

[817] _Ib._ 405.

[818] The Nationalist ideas of Marshall and Lincoln are identical; and

their language is so similar that it seems not unlikely that Lincoln

paraphrased this noble passage of Marshall and thus made it immortal.

This probability is increased by the fact that Lincoln was a profound

student of Marshall's Constitutional opinions and committed a great many

of them to memory.

The famous sentence of Lincoln's Gettysburg Address was, however, almost

exactly given by Webster in his Reply to Hayne: "It is ... the people's

Government; made for the people; made by the people; and answerable to

the people." (_Debates_, 21st Cong. 1st Sess. 74; also Curtis, I,

355-61.) But both Lincoln and Webster merely stated in condensed and

simpler form Marshall's immortal utterance in M'Culloch _vs._ Maryland.

(See also _infra_, chap. X.)

[819] 4 Wheaton, 405-06.

[820] 4 Wheaton, 406-07. (Italics the author's.)

[821] _Ib._, 407-08.

[822] See vol. I, 72, of this work.

[823] 4 Wheaton, 408-09.

[824] 4 Wheaton, 409-10.

[825] _Ib._ 411.

[826] "The Congress shall have Power ... to make all Laws which shall be

necessary and proper for carrying into Execution the foregoing Powers,

and all other Powers vested by this Constitution in the Government of

the United States, or in any Department or Officer thereof."

(Constitution of the United States, Article I, Section 8.)

[827] 4 Wheaton, 412.

[828] _Ib._ 413.

[829] See vol. II, 71, of this work.

[830] Vol. II, 72-74, of this work.

[831] 4 Wheaton, 414.

[832] 4 Wheaton, 415.

[833] _Ib._ 416-17.

[834] 4 Wheaton, 417-18.

[835] 4 Wheaton, 419-21.

[836] _Ib._ 421.

[837] _Ib._ 423.

[838] 4 Wheaton, 424-25.

[839] 4 Wheaton, 425-26.

[840] 4 Wheaton, 426.

[841] See _supra_, 158 _et seq._

[842] 4 Wheaton, 426.

[843] 4 Wheaton, 427.

[844] _Ib._ 429-30.

[845] 4 Wheaton, 431.

[846] _Ib._

[847] 4 Wheaton, 432-33.

[848] 4 Wheaton, 435-36.

[849] _Ib._ 437.

[850] Story to his mother, March 7, 1819, Story, I, 325-26.

[851] See _infra_, 420; also 325-27; 338-39, 534-37.

[852] Niles, XVI, 41-44.

[853] _Ib._ 68-76.

[854] See _infra_, chap. VIII.

[855] Niles, XVI, 65.

[856] See vol. III, 130-31, of this work.

[857] Niles, XVI, 65.

[858] _Ib._ 97. For instance, the _Natchez Press_, in announcing its

intention to print Marshall's whole opinion, says that, if his doctrine

prevails, "the independence of the individual states ... is obliterated

at one fell sweep." No country can remain free "that tolerates

incorporated banks, in any guise." (_Ib._ 210.)

[859] _Ib._ 103.

[860] _Ib._ 104.

[861] Niles, XVI, 105.

[862] Niles's attack on Marshall's opinion in M'Culloch _vs._ Maryland

ran through three numbers. (See _ib._ 41-44; 103-05; 145-47.)

[863] See _supra_, 161-67.

[864] Marshall to Story, March 24, 1819, _Proceedings, Mass, Hist. Soc._

2d Series, XIV, 324.

[865] See _supra_, 146.

[866] Enquirer, March 30, 1819, as quoted in _Branch Hist. Papers_,

June, 1905, 52-53.

[867] _Branch Hist. Papers_, June, 1905, 51-63.

[868] _Enquirer_, April 2, 1819, as quoted in _Branch Hist. Papers_,

June, 1905, 76. (Italics the author's.)

[869] _Enquirer_, April 20, 1819, as quoted in _ib._ 76.

[870] Marshall to Story, May 27, 1819, _Proceedings, Mass. Hist. Soc._

2d Series, XIV, 325.

[871] _Enquirer_, June 11, 1819, as quoted in _Branch Hist. Papers_,

June, 1905, footnote to 77.

[872] _Enquirer_, June 11, 1819, as quoted in _Branch Hist. Papers_,

June, 1905, 77-82.

[873] _Enquirer_, June 15, 1819, as quoted in _ib._ 85; also _Enquirer_,

June 18, 1819, as quoted in _ib._ 95.

[874] _Enquirer_, June 15, 1819, as quoted in _ib._ 91.

[875] _Ib._ 87; also _Enquirer_, June 18, 1819, as quoted in _ib._

96-97.

[876] _Ib._ 98.

[877] _Enquirer_, June 22, 1819, as quoted in _Branch Hist. Papers_,

June, 1905, 116.

[878] _Ib._ 118.

[879] _Ib._ 121. Madison endorsed Roane's attacks on Marshall. (See

Madison to Roane, Sept. 2, 1819, _Writings of James Madison_: Hunt,

VIII, 447-53.)

[880] See Roane to his son, Jan. 4, 1819, _Branch Hist. Papers_, June,

1905, 134; and same to same, Feb. 4, 1819, _ib._ 135.

Eighteen days before Marshall delivered his opinion Roane again writes

his son: "I have to-day deposited in the vaults of the Virga. bank a

certificate in your name for 50 shares U. S. bank stock, as per memo.,

by Mr. Dandridge Enclosed. The shares cost, as you will see, $98 each."

(Roane to his son, Feb. 16, 1810, _ib._ 136.)

[881] Roane to his son, note 4, p. 317.

[882] The entire transaction is set out in letters of Benjamin Watkins

Leigh to Nicholas Biddle, Aug. 21, Aug. 28, Sept. 4, and Sept. 13, 1837;

and Biddle to Leigh, Aug. 24 and 25, Sept. 7 and Sept. 15, 1837. (Biddle

MSS. in possession of Professor R. C. McGrane of the University of Ohio,

to whose courtesy the author is indebted for the use of this material.

These letters appear in full in the _Correspondence of Nicholas Biddle_:

McGrane, 283-89, 291-92, published in September, 1919, by Houghton

Mifflin Company, Boston.)

[883] Marshall to Bushrod Washington, June 28, 1819. This letter is

unsigned, but is in Marshall's unmistakable handwriting and is endorsed

by Bushrod Washington, "C. Just. Marshall." (Marshall MSS. Lib. Cong.)

[884] UNION, April 24, 1819.

[885] _Union_, April 24, 1819.

[886] Marshall means that Jefferson inspired Roane's attacks.

[887] Marshall had written five essays, but the editor condensed them

into two numbers.

[888] Marshall to Story, May 27, 1819, _Proceedings, Mass. Hist. Soc._

2d Series, XIV, 325.

[889] Henry Wheaton, Reporter of the Supreme Court.

[890] Marshall to Story, July 13, 1819, _Proceedings, Mass. Hist. Soc._

2d Series, XIV, 326.

[891] _Enquirer_, Jan. 30, 1821.

[892] _Ib._ Feb. 1, 1821.

[893] _Journal_, House of Delegates, Virginia, 1819-20, 56-59.

[894] _Ib._ 9.

[895] _Ib._ 57.

[896] This resolution declared that Virginia assented to the

Constitution only on condition that "Every power _not granted_, remains

with the people, and at their will; that _therefore no right of any

denomination can be cancelled, abridged, restrained, or modified_, by

the congress, by the senate, or house of representatives acting in any

capacity; by the President or any department, or officer of the United

States, except in those instances in which power is given by the

constitution for those purposes." (_Journal_, House of Delegates,

Virginia, 1819-20, 58.)

[897] _Journal_, House of Delegates, Virginia, 1819-20, 59.

[898] _Ib._ 76.

[899] _Journal_, House of Delegates, Virginia, 1819-20, 85.

[900] _Ib._ 105.

[901] _Ib._ 108-09.

[902] _Ib._ 179.

[903] _Ib._ 175-78.

[904] For Marshall's opinion in this controversy see _infra_, 347 _et

seq._

[905] The second branch was established at Chillicothe.

[906] Chap. 83, _Laws of Ohio, 1818-19_, 1st Sess. 190-99.

Section 5 of this act will give the student the spirit of this

autocratic law. This section made it the "duty" of the State agent

collecting the tax, after demand on and refusal of the bank officers to

pay the tax, if he cannot readily find in the bank offices the necessary

amount of money, "to go into each and any other room or vault ... and to

every closet, chest, box or drawer in such banking house, to open and

search," and to levy on everything found. (_Ib._ 193.)

[907] A private letter to Niles says that when it was found that an

injunction had been granted, the friends of the bank rejoiced, "wine was

drank freely and mirth abounded." (Niles, XVII, 85.) This explains the

otherwise incredible negligence of the bank's attorneys in the

proceedings next day.

[908] Niles, XVII, 85-87, reprinting account as published in the

_Chillicothe Supporter_, Sept. 22, 1819, and the _Ohio Monitor_, Sept.

25, 1819.

[909] Niles, XVII, 147.

[910] _Ib._ 338.

[911] Report of Committee made to the Ohio Legislature and transmitted

to Congress. (_Annals_, 16th Cong. 2d Sess. 1685 _et seq._)

[912] _Annals_, 16th Cong. 2d Sess. 1691.

[913] _Annals_, 16th Cong. 2d Sess. 1696-97.

[914] See vol. II, 72-74, of this work.

[915] _Annals_, 16th Cong. 2d Sess. 1712.

[916] _Ib._ 1713.

[917] _Ib._ 1714.

[918] See _infra_, chap. VII of this work.

[919] _State Doc. Fed. Rel._: Ames, 90; and see Niles, XVI, 97, 132.

[920] Pennsylvania House of Representatives, _Journal, 1819-20_, 537;

_State Doc. Fed. Rel._: Ames, footnote to 90-91.

[921] _Ib._

[922] _Ib._ 91.

[923] See _infra_, chap. X.

[924] _State Doc. Fed. Rel._: Ames, 92-103.

[925] _Ib._ 92, 101-03.

[926] _Ib._ 91.

[927] See _infra_, chap. X.

[928] See vol. II, 397, of this work.

[929] Taylor: _Construction Construed, and Constitutions Vindicated_, 9.

[930] Taylor: _Construction Construed_, 11-12. Taylor does not, of

course, call Marshall by name, either in this book or in his other

attacks on the Chief Justice.

[931] _Ib._ 15.

[932] _Ib._ 16.

[933] _Ib._ 18.

[934] _Ib._ 25-26.

[935] _Ib._ 28.

[936] Taylor: _Construction Construed_, 77.

[937] _Ib._ 79.

[938] _Ib._ 84.

[939] _Ib._ 87.

[940] Taylor: _Construction Construed_, 89.

[941] _Ib._ 161.

[942] _Ib._ 233.

[943] _Ib._ 237.

It is interesting to observe that Taylor brands the protective tariff as

one of the evils of Marshall's Nationalist philosophy. "It destroys the

division of powers between federal and state governments, ... it

violates the principles of representation, ... it recognizes a sovereign

power over property, ... it destroys the freedom of labour, ... it

taxes the great mass of capital and labour, to enrich the few; ... it

increases the burden upon the people ... increases the mass of

poverty; ... it impoverishes workmen and enriches employers; ... it

increases the expenses of government, ... it deprives commerce of the

freedom of exchanges, ... it corrupts congress ... generates the

extremes of luxury and poverty." (Taylor: _Construction Construed_,

252-53.)

[944] See _infra_, 340-42; and see _infra_, chap. X.

[945] Taylor: _Construction Construed_, 314.

[946] Jefferson to Ritchie, Dec. 25, 1820, _Works_: Ford, XII, 176-78.

He declined, however, to permit publication of his endorsement of

Taylor's book. (_Ib._)