The Life of John Marshall
Chapter 267 : This item was widely published in the Administration newspapers, including the Richmon

This item was widely published in the Administration newspapers, including the Richmond _Whig and Advertiser_. To this paper Marshall wrote, denying the statement of the Baltimore publication: "Holding the situation I do ... I have thought it right to abstain from any public declarations on the election; ... I admit having said in private that though I had not voted since the establishment of the general ticket system, and had believed that I never should vote during its continuance, I might probably depart from my resolution in this instance, from the strong sense I felt of the injustice of the charge of corruption against the President & Secretary of State: I never did use the other expressions ascribed to me."[1272] This "card" the _Enquirer_ reproduced, together with the item from the _Marylander_, commenting scathingly upon the methods of Adams's supporters.

Clay, deeply touched, wrote the Chief Justice of his appreciation and grat.i.tude; but he is sorry that Marshall paid any attention to the matter "because it will subject you to a part of that abuse which is so indiscriminately applied to ... everything standing in the way of the election of a certain individual."[1273]

Marshall was sorely worried. He writes Story that the incident "provoked" him, "not because I have any objection to its being known that my private judgement is in favor of the re-election of M^r Adams, but because I have great objections to being represented in the character of a furious partisan. Intemperate language does not become my age or office, and is foreign from my disposition and habits. I was therefore not a little vexed at a publication which represented me as using language which could be uttered only by an angry party man."

He explains that the item got into the _Marylander_ through a remark of one of his nephews "who was on the Adams convention" at Baltimore, to the effect that he had heard Marshall say that, although he had "not voted for upwards of twenty years" he "should probably vote at the ensuing election." His nephew wrote a denial, but it was not published.

So, concludes Marshall, "I must bear the newspaper scurrility which I had hoped to escape, and which is generally reserved for more important personages than myself. It is some consolation that it does not wound me very deeply."[1274]

It would seem that Marshall had early resolved to go to any length to deprive the enemies of the National Judiciary of any pretext for attacking him or the Supreme Court because of any trace of partisan activity on his part. One of the largest tasks he had set for himself was to create public confidence in that tribunal, and to raise it above the suspicion that party considerations swayed its decisions. He had seen how nearly the arrogance and political activity of the first Federalist judges had wrecked the Supreme Court and the whole Judicial establishment, and had resolved, therefore, to lessen popular hostility to courts, as far as his neutral att.i.tude to party controversies could accomplish that purpose.

It thus came about that Marshall refrained even from exercising his right of suffrage from 1804 to 1828--perhaps, indeed, to the end of his life, since it is not certain that he voted even at the election of 1828. Considering the intensity of his partisan feelings, his refusal to vote, during nearly all the long period when he was Chief Justice, was a real sacrifice, the extent of which may be measured by the fact that, according to his letter to Story, he did not even vote against Madison in 1812, notwithstanding the violence of his emotions aroused by the war.[1275]

On March 4, 1829, Marshall administered the oath of office to the newly elected President, Andrew Jackson. No two men ever faced one another more unlike in personality and character. The mild, gentle, benignant features of the Chief Justice contrasted strongly with the stern, rigid, and aggressive countenance of "Old Hickory." The one stood for the reign of law; the other for autocratic administration. In Jackson, whim, prejudice, hatred, and fierce affections were dominant; in Marshall, steady, level views of life and government, devotion to order and regularity, abhorrence of quarrel and feud, constancy and evenness in friends.h.i.+p or conviction, were the chief elements of character.

Moreover, the Chief Justice personified the static forces of society; the new President was the product of a fresh upheaval of democracy, not unlike that which had placed Jefferson in power.

Marshall had administered the Presidential oath seven times before--twice each to Jefferson, Madison, and Monroe, and once to John Quincy Adams. And now he was reading the solemn words to the pa.s.sionate frontier soldier from whose wild, undisciplined character he feared so much. Marshall briefly writes his wife about the inauguration: "We had yesterday a most busy and crowded day. People have flocked to Was.h.i.+ngton from every quarter of the United States. When the oath was administered to the President the computation is that 12 or 15000 people were present--a great number of them ladies. A great ball was given at night to celebrate the election. I of course did not attend it. The affliction of our son[1276] would have been sufficient to restrain me had I even felt a desire to go."[1277] In a previous letter to his wife he forecast the crowds and commotion: "The whole world it is said will be here.... I wish I could leave it all and come to you. How much more delightful would it be to me to sit by your side than to witness all the pomp and parade of the inauguration."[1278]

Much as he had come to dislike taking part in politics or in public affairs, except in the discharge of his judicial duties, Marshall was prevailed upon to be a delegate to the Virginia Const.i.tutional Convention of 1829-30. He refused, at first, to stand for the place and hastened to rea.s.sure his "dearest Polly." "I am told," he continues in his letter describing Jackson's induction into office, "by several that I am held up as a candidate for the convention. I have no desire to be in the convention and do not mean to be a candidate. I should not trouble you with this did I not apprehend that the idea of my wis.h.i.+ng to be in the convention might prevent some of my friends who are themselves desirous of being in it from becoming candidates. I therefore wish you to give this information to Mr. Harvie.[1279]... Farewell my dearest Polly. Your happiness is always nearest the heart of your J.

Marshall."[1280]

He yielded, however, and wrote Story of his disgust at having done so: "I am almost ashamed of my weakness and irresolution when I tell you that I am a member of our convention. I was in earnest when I told you that I would not come into that body, and really believed that I should adhere to that determination; but I have acted like a girl addressed by a gentleman she does not positively dislike, but is unwilling to marry.

She is sure to yield to the advice and persuasion of her friends.... The body will contain a great deal of eloquence as well as talent, and yet will do, I fear, much harm with some good. Our freehold suffrage is, I believe, gone past redemption. It is impossible to resist the influence, I had almost said contagion of universal example."[1281]

For fifty-three years Virginia had been governed under the const.i.tution adopted at the beginning of the Revolution. As early as the close of this war the injustice and inadequacy of the Const.i.tution of 1776 had become evident, and, as a member of the House of Delegates, Marshall apparently had favored the adoption of a new fundamental law for the State.[1282] Almost continuously thereafter the subject had been brought forward, but the conservatives always had been strong enough to defeat const.i.tutional reform.

On July 12, 1816, in a letter to Samuel Kercheval, one of the ablest doc.u.ments he ever produced, Jefferson had exposed the defects of Virginia's const.i.tution which, he truly said, was without "leading principles." It denied equality of representation; the Governor was neither elected nor controlled by the people; the higher judges were "dependent on none but themselves." With unsparing severity Jefferson denounces the County Court system.

Clearly and simply he enumerates the constructive reforms imperatively demanded, beginning with "General Suffrage" and "Equal representation,"

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

because that question "has become a party one." Indeed, at the very beginning of this brilliant and well-reasoned letter, Jefferson tells Kercheval that it is "for your satisfaction only, and not to be quoted before the public."[1283]

But Kercheval handed the letter around freely and proposed to print it for general circulation. On hearing of this, Jefferson was "alarmed" and wrote Kercheval harshly, repeating that the letter was not to be given out and demanding that the original and copies be recalled.[1284] This uncharacteristic perturbation of the former President reveals in startling fas.h.i.+on the bitterness of the strife over the calling of the convention, and over the issues confronting that body in making a new const.i.tution for Virginia.

Of the serious problems to be solved by the Convention of 1829-30, that of suffrage was the most important. Up to that time n.o.body could vote in Virginia except white owners of freehold estates. Counties, regardless of size, had equal representation in the House of Delegates. This gave to the eastern and southern slaveholding sections of the State, with small counties having few voters, an immense preponderance over the western and northwestern sections, with large counties having many voters. On the other hand, the rich slavery districts paid much heavier taxes than the poorer free counties.[1285]

Marshall was distressed by every issue, to settle which the convention had been called. The question of the qualification for suffrage especially agitated him. Immediately after his election to the convention, he wrote Story of his troubles and misgivings: "We shall have a good deal of division and a good deal of heat, I fear, in our convention. The freehold principle will, I believe, be lost. It will, however, be supported with zeal. If that zeal should be successful I should not regret it. If we find that a decided majority is against retaining it I should prefer making a compromise by which a substantial property qualification may be preserved in exchange for it.

"I fear the excessive [torn--probably, democratic spirit, coin]cident to victory after a hard fought battle continued to the last extremity may lead to universal suffrage or something very near it. What is the prop[erty] qualification for your Senate? How are your Senators apportioned on the State? And how does your system work? The question whether white population alone, or white population compounded with taxation, shall form the basis of representation will excite perhaps more interest than even the freehold suffrage. I wish we were well through the difficulty."[1286]

The Ma.s.sachusetts Const.i.tutional Convention had been held nearly a decade before that of Virginia. The problem of suffrage had troubled the delegates almost as much as it now perplexed Marshall. The reminiscent Pickering writes the Chief Justice of the fight made in 1820 by the Ma.s.sachusetts conservatives against "the conceited innovators." Story had been a delegate, and so had John Adams, fainting with extreme age, but rich with the wisdom of his eighty-five years: "He made a short, but very good speech," begging the convention to retain the State Senate as "the representative of _property_; ... the number of Senators in each district was proportioned to its direct taxes to the State revenue--and not to its population. Some democrats desired that the number of Senators should be apportioned not according to the taxation, but exclusively to the population. This, Mr. Adams and all the most intelligent and considerate members opposed."[1287]

Ultra-conservative as Marshall was, strongly as he felt the great body of the people incapable of self-government, he was deeply concerned for the well-being of what he called "the ma.s.s of the people." The best that can be done for them, he says in a letter to Charles F. Mercer, is to educate them. "In governments entirely popular" general education "is more indispensable ... than in an other." The labor problem troubles him sorely. When population becomes so great that "the surplus hands" must turn to other employment, a grave situation will arise.

"As the supply exceeds the demand the price of labour will cheapen until it affords a bare subsistence to the labourer. The superadded demands of a family can scarcely be satisfied and a slight indisposition, one which suspends labour and compensation for a few days produces famine and pauperism. How is this to be prevented?" Education may be relied on "in the present state of our population, and for a long time to come.... But as our country fills up how shall we escape the evils which have followed a dense population?"[1288]

The Chief Justice went to the Virginia Convention a firm supporter of the strongest possible property qualification for suffrage. On the question of slavery, which arose in various forms, he had not made his position clear. The slavery question, as a National matter, perplexed and disturbed Marshall. There was nothing in him of the humanitarian reformer, but there was everything of the statesman. He never had but one, and that a splendid, vision.

The American Nation was his dream; and to the realization of it he consecrated his life. A full generation after Marshall wrote his last despairing word on slavery, Abraham Lincoln expressed the conviction which the great Chief Justice had entertained: "I would save the Union.

I would save it the shortest way under the Const.i.tution.... If I could save the Union without freeing any slave, I would do it; and if I could save it by freeing some and leaving others alone, I would also do that.

What I do about slavery and the colored race, I do because I believe it helps to save the Union."[1289]

Pickering, the incessant, in one of his many and voluminous letters to Marshall which the ancient New Englander continued to write as long as he lived, had bemoaned the existence of slavery--one of the rare exhibitions of Liberalism displayed by that adamantine Federalist conservative. Marshall answered: "I concur with you in thinking that nothing portends more calamity & mischief to the Southern States than their slave population. Yet they seem to cherish the evil and to view with immovable prejudice & dislike every thing which may tend to diminish it. I do not wonder that they should resist any attempt, should one be made, to interfere with the rights of property, but they have a feverish jealousy of measures which may do good without the hazard of harm that is, I think, very unwise."[1290]

Marshall heartily approved the plan of the American Colonization Society to send free negroes back to Africa. The Virginia branch of that organization was formed in 1829, the year of the State Const.i.tutional Convention, and Marshall became a member. Two years later he became President of the Virginia branch, with James Madison, John Tyler, Abel P. Upshur, and other prominent Virginians as Vice-Presidents.[1291] In 1831, Marshall was elected one of twenty-four Vice-Presidents of the National society, among whom were Webster, Clay, Crawford, and Lafayette.[1292]

The Reverend R. R. Gurley, Secretary of this organization, wrote to the more eminent members asking for their views. Among those who replied were Lafayette, Madison, and Marshall. The Chief Justice says that he feels a "deep interest in the ... society," but refuses to "prepare any thing for publication." The cause of this refusal is "the present state of [his] family"[1293] and a determination "long since formed ...

against appearing in print on any occasion." Nevertheless, he writes Gurley a letter nearly seven hundred words in length.

Marshall thinks it "extremely desirable" that the States shall pa.s.s "permanent laws" affording financial aid to the colonization project. It will be "also desirable" if this legislation can be secured "to incline the people of color to migrate." He had thought for a long time that it was just possible that more negroes might like to go to Liberia than "can be provided for with the funds [of] the Society"; therefore he had "suggested, some years past," to the managers, "to allow a small additional bounty in lands to those who would pay their pa.s.sage in whole or in part."

To Marshall it appears to be of "great importance to retain the countenance and protection of the General Government. Some of our cruizers stationed on the coast of Africa would, at the same time, interrupt the slave trade--a horrid traffic detested by all good men--and would protect the vessels and commerce of the Colony from pirates who infest those seas. The power of the government to afford this aid is not, I believe, contested." He thinks the plan of Rufus King to devote part of the proceeds from the sale of public lands to a fund for the colonization scheme, "the most effective that can be devised,"

Marshall makes a brief but dreary argument for this method of raising funds for the exportation of the freed blacks.

He thus closes this eminently practical letter: "The removal of our colored population is, I think, a common object, by no means confined to the slave States, although they are more immediately interested in it.

The whole Union would be strengthened by it, and relieved from a danger, whose extent can scarcely be estimated." Furthermore, says the Chief Justice, "it lessens very much ... the objection in a political view to the application of this ample fund [from the sale of the public domain], that our lands are becoming an object for which the States are to scramble, and which threatens to sow the seeds of discord among us instead of being what they might be--a source of national wealth."[1294]

Marshall delivered two opinions in which the question of slavery was involved, but they throw little light on his sentiments. In the case of the Antelope he held that the slave trade was not prohibited by international law as it then existed; but since the court, including Story and Thompson, both bitter antagonists of slavery, was unanimous, the views of Marshall cannot be differentiated from those of his a.s.sociates. Spain and Portugal claimed certain negroes forcibly taken from Spanish and Portuguese slavers by an American slaver off the coast of Africa. After picturesque vicissitudes the vessel containing the blacks was captured by an American revenue cutter and taken to Savannah for adjudication.

In due course the case reached the Supreme Court and was elaborately argued. The Government insisted that the captured negroes should be given their liberty, since they had been brought into the country in violation of the statutes against the importation of slaves. Spain and Portugal demanded them as slaves "acquired as property ... in the regular course of legitimate commerce."[1295] It was not surprising that opinion on the slave trade was "unsettled," said Marshall in delivering the opinion of the court.

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

Long usage, and general acquiescence" have sanctioned it.[1296] America had been the first to "check" the monstrous traffic. But, whatever its feelings or the state of public opinion, the court "must obey the mandate of the law."[1297] He cites four English decisions, especially a recent one by Sir William Scott, the effect of all being that the slave trade "could not be p.r.o.nounced contrary to the law of nations."[1298]

Every nation, therefore, has a right to engage in it. Some nations may renounce that right sanctioned by "universal a.s.sent." But other nations cannot be bound by such "renunciation." For all nations, large and small, are equal--"Russia and Geneva have equal rights." No one nation "can rightfully impose a rule on another ... none can make a law of nations; and this traffic remains lawful to those whose governments have not forbidden it.... It follows, that a foreign vessel engaged in the African slave trade, captured on the high seas in time of peace, by an American cruiser, and brought in for adjudication, would be restored."[1299]

Four months before Marshall was elected a member of the Virginia Const.i.tutional Convention, he delivered another opinion involving the legal status of slaves. Several negroes, the property of one Robert Boyce, were on a steamboat, the Teche, which was descending the Mississippi. The vessel took fire and those on board, including the negroes, escaped to the sh.o.r.e. Another steamboat, the Was.h.i.+ngton, was coming up the river at the time, and her captain, in response to appeals from the stranded pa.s.sengers of the burning vessel, sent a yawl to bring them to the Was.h.i.+ngton. The yawl was upset and the slaves drowned. The owner of them sued the owner of the Was.h.i.+ngton for their value. The District Court held that the doctrine of common carriers did not apply to human beings; and this was the only question before the Supreme Court, to which Boyce appealed.

"A slave ... cannot be stowed away as a common package," said Marshall in his brief opinion. "The responsibility of the carrier should be measured by the law which is applicable to pa.s.sengers, rather than by that which is applicable to the carriage of common goods.... The law applicable to common carriers is one of great rigor.... It has not been applied to living men, and ... ought not to be applied to them."

Nevertheless, "the ancient rule 'that the carrier is liable only for ordinary neglect,' still applies" to slaves. Therefore the District Court was right in its instructions to the jury.[1300]

The two letters quoted and the opinions expressing the unanimous judgment of the Supreme Court are all the data we have as to Marshall's views on slavery. It appears that he regretted the existence of slavery, feared the results of it, saw no way of getting rid of it, but hoped to lessen the evil by colonizing in Africa such free black people as were willing to go there. In short, Marshall held the opinion on slavery generally prevailing at that time. He was far more concerned that the Union should be strengthened, and dissension in Virginia quieted, than he was over the problem of human bondage, of which he saw no solution.

When he took his seat as a delegate to the Virginia Const.i.tutional Convention of 1829-30, a more determined conservative than Marshall did not live. Apparently he did not want anything changed--especially if the change involved conflict--except, of course, the relation of the States to the Nation. He was against a new const.i.tution for Virginia; against any extension of suffrage; against any modification of the County Court system except to strengthen it; against a free white basis of representation; against legislative interference with business. His att.i.tude was not new, nor had he ever concealed his views.

His opinions of legislation and corporate property, for instance, are revealed in a letter written twenty years before the Convention of 1829-30. In withdrawing from some Virginia corporation because the General a.s.sembly of the State had pa.s.sed a law for the control of it, Marshall wrote: "I consider the interference of the legislature in the management of our private affairs, whether those affairs are committed to a company or remain under individual direction, as equally dangerous and unwise. I have always thought so and I still think so. I may be compelled to subject my property to these interferences, and when compelled I shall submit; but I will not voluntarily expose myself to the exercise of a power which I think so improperly usurped."[1301]

Two years before the convention was called, Marshall's unyielding conservatism was displayed in a most conspicuous manner. In Sturges _vs._ Crownins.h.i.+eld,[1302] a State law had been held invalid which relieved creditors from contracts made before the pa.s.sage of that law.

But, in his opinion in that case, Marshall used language that also applied to contracts made after the enactment of insolvency statutes; and the bench and bar generally had accepted his statement as the settled opinion of the Supreme Court. But so acute had public discontent become over this rigid doctrine, so strident the demand for bankrupt laws relieving insolvents, at least from contracts made after such statutes were enacted, that the majority of the Supreme Court yielded to popular insistence and, in Ogden _vs._ Saunders,[1303] held that "an insolvent law of a State does not impair the obligation of future contracts between its citizens."[1304]

For the first time in twenty-seven years the majority of the court opposed Marshall on a question of Const.i.tutional law. The Chief Justice dissented and delivered one of the most powerful opinions he ever wrote.

The very "nature of our Union," he says, makes us "one people, as to commercial objects."[1305] The prohibition in the contract clause "is complete and total. There is no exception from it.[1306]... Insolvent laws are to operate on a future, contingent unforseen event."[1307] Yet the majority of the court hold that such legislation enters into subsequent contracts "so completely as to become a ... part" of them. If this is true of one law, it is true of "every other law which relates to the subject."

But this would mean, contends Marshall, that a vital provision of the Const.i.tution, "one on which the good and the wise reposed confidently for securing the prosperity and harmony of our citizens, would lie prostrate, and be construed into an inanimate, inoperative, unmeaning clause." The construction of the majority of the court would "convert an inhibition to pa.s.s laws impairing the obligation of contracts into an inhibition to pa.s.s retrospective laws."[1308] If the Const.i.tution means this, why is it not so expressed? The mischievous laws which caused the insertion of the contract clause "embraced future contracts, as well as those previously formed."[1309]

The gist of Marshall's voluminous opinion in Ogden _vs._ Saunders is that the Const.i.tution protects all contracts, past or future, from State legislation which in any manner impairs their obligation.[1310]

Considering that even the rigidly conservative Bushrod Was.h.i.+ngton, Marshall's stanch supporter, refused to follow his stern philosophy, in this case, the measure and character of Marshall's conservatism are seen when, in his seventy-fifth year, he helped to frame a new const.i.tution for Virginia.

Still another example of Marshall's rock-like conservatism and of the persistence with which he held fast to his views is afforded by a second dissent from the majority of the court at the same session. This time every one of the a.s.sociate Justices was against him, and Story delivered their unanimous opinion. The Bank of the United States had sued Julius B. Dandridge, cas.h.i.+er of the Richmond branch, and his sureties, on his official bond. Marshall, sitting as Circuit Judge, had held that only the written record of the bank's board of directors, that they approved and accepted the bond, could be received to prove that Dandridge had been legally authorized to act as cas.h.i.+er.