The Life of John Marshall
Chapter 248 : The reading of Marshall's newspaper effort is exhausting; a summary of the least

The reading of Marshall's newspaper effort is exhausting; a summary of the least uninteresting pa.s.sages 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 const.i.tution," 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 repet.i.tion Marshall goes on in defense of his opinion.[885]

When the biographer searches the daily life of a man so surpa.s.singly 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 ma.n.u.script 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 const.i.tute 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 a.s.sociate 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 circ.u.mstance 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 s.p.a.ce, 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 _unbia.s.sed_" decisions, insisted upon a Const.i.tutional 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 Const.i.tution itself." The provision giving to the judicial power "_all cases_ arising _under the Const.i.tution_" did not "extend to questions which would amount to a subversion of the const.i.tution 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 const.i.tutional."

Did not such expressions import that Congress could "conform the const.i.tution to their own designs" by the exercise of "unlimited and uncontrouled" power? The ratifying resolution of the Const.i.tution 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 fas.h.i.+on the General a.s.sembly insisted on an amendment to the National Const.i.tution "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 a.s.sembly."

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 fort.i.tude 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 pa.s.sed, 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, pa.s.sed 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 Was.h.i.+ngton. In such manner, too, was the slavery question brought face to face with Marshall's lasting exposition of the National Const.i.tution. 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 a.s.serted, 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 statesmans.h.i.+p, and in support of the Jeffersonian doctrine of Localism. In such fas.h.i.+on 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 Was.h.i.+ngton, and less than a month before Marshall delivered his opinion, the Ohio lawmakers pa.s.sed 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. a.s.sisted 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 pa.s.sed 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 Const.i.tution 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 pa.s.sed upon the world by the t.i.tle 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 circ.u.mstance 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 ent.i.tled 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 a.n.a.lyze 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 inst.i.tution will cease business within the State and "give a.s.surance" 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 a.s.sailed," the Legislature challenges the National Government to make good Marshall's a.s.sertion that the power which created the Bank "must have the power to preserve it." Ohio should pa.s.s 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 inst.i.tution 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 antic.i.p.ated 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 Const.i.tution prohibiting Congress from authorizing "any bank or other monied inst.i.tution" outside of the District of Columbia.[919] The action of Ohio was an endors.e.m.e.nt 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 Ma.s.sachusetts,[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 astonis.h.i.+ng 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 att.i.tude 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 fas.h.i.+on, 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 t.i.tle "Construction Construed, and Const.i.tutions Vindicated." The phrases "exclusive interests" and "exclusive privileges" abound throughout the volume. Sixteen chapters compose this cla.s.sic 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 Const.i.tution 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 const.i.tution, nor the const.i.tution 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.

[Ill.u.s.tration: 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 G.o.dwin, 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 const.i.tutional 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 unconst.i.tutional b.a.s.t.a.r.ds, 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 prost.i.tute 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]