Liberty and Union, now and forever, one and inseparable. (Daniel Webster.)Fellow citizens, the die is now cast. Prepare for the crisis and meet it as becomes men and freemen. (South Carolina Ordinance of Nullification.)The Union has been prolonged thus far by miracles. I fear they cannot continue. (Marshall.)It is time to be old,To take in sail. (Emerson.)
Liberty and Union, now and forever, one and inseparable. (Daniel Webster.)
Fellow citizens, the die is now cast. Prepare for the crisis and meet it as becomes men and freemen. (South Carolina Ordinance of Nullification.)
The Union has been prolonged thus far by miracles. I fear they cannot continue. (Marshall.)
It is time to be old,To take in sail. (Emerson.)
The last years of Marshall's life were clouded with sadness, almost despair. His health failed; his wife died; the Supreme Court was successfully defied; his greatest opinion was repudiated and denounced by a strong and popular President; his associates on the Bench were departing from some of his most cherished views; and the trend of public events convinced him that his labor to construct an enduring nation, to create institutions of orderly freedom, to introduce stability and system into democracy, had been in vain.
Yet, even in this unhappy period, there were hours of triumph for John Marshall. He heard his doctrine of Nationalism championed by Daniel Webster, who, in one of the greatest debates of history, used Marshall's arguments and almost his very words; he beheld the militant assertion of the same principle by Andrew Jackson, who, in this instance, also employed Marshall's reasoning and method of statement; and he witnessed the sudden flowering of public appreciation of his character and services.
During the spring of 1831, Marshall found himself, for the first time in his life, suffering from acutepain. His Richmond physician could give him no relief; and he became so despondent that he determined to resign immediately after the ensuing Presidential election, in case Jackson should be defeated, an event which many then thought probable. In a letter about the house at which the members of the Supreme Court were to board during the next term, Marshall tells Story of his purpose: "Being ... a bird of passage, whose continuance with you cannot be long, I did not chuse to permit my convenience or my wishes to weigh a feather in the permanent arrangements.... But in addition, I felt serious doubts, although I did not mention them, whether I should be with you at the next term.
"What I am about to say is, of course, in perfect confidence which I would not breathe to any other person whatever. I had unaccountably calculated on the election of P[residen]t taking place next fall, and had determined to make my continuance in office another year dependent on that event.
"You know how much importance I attach to the character of the person who is to succeed me, and calculate the influence which probabilities on that subject would have on my continuance in office. This, however, is a matter of great delicacy on which I cannot and do not speak.
"My erroneous calculation of the time of the election was corrected as soon as the pressure of official duty was removed from my mind, and I had nearly decided on my course, but recent events produce such real uncertainty respecting the future as to create doubts whether I ought not to await thesame chances in the fall of 32 which I had intended to await in the fall of 31."[1390]
Marshall steadily became worse, and in September he went to Philadelphia to consult the celebrated physician and surgeon, Dr. Philip Syng Physick, who at once perceived that the Chief Justice was suffering from stone in the bladder. His affliction could be relieved only by the painful and delicate operation of lithotomy, which Dr. Physick had introduced in America. From his sick-room Marshall writes Story of his condition during the previous five months, and adds that he looks "with impatience for the operation."[1391]He is still concerned about the court's boarding-place and again refers to his intention of leaving the Bench: "In the course of the summer ... I found myself unequal to the effective consideration of any subject, and had determined to resign at the close of the year. This determination, however, I kept to myself, being determined to remain master of my own conduct." Story had answered Marshall's letter of June 26, evidently protesting against the thought of the Chief Justice giving up his office.
Marshall replies: "On the most interesting part of your letter I have felt, and still feel, great difficulty. You understand my general sentiments on that subject as well as I do myself. I am most earnestly attached to the character of the department, and to the wishes and convenience of those with whom it has been my pride and my happiness to be associated for so many years. I cannot be insensible tothe gloom which lours over us. I have a repugnance to abandoning you under such circumstances which is almost invincible. But the solemn convictions of my judgement sustained by some pride of character admonish me not to hazard the disgrace of continuing in office a mere inefficient pageant."[1392]
Had Adams been reëlected in 1828, there can be no doubt that Marshall would have resigned during that Administration; and it is equally certain that, if Jackson had been defeated in 1832, the Chief Justice would have retired immediately. The Democratic success in the election of that year determined him to hold on in an effort to keep the Supreme Court, as long as possible, unsubmerged by the rising tide of radical Localism. Perhaps he also clung to a desperate hope that, during his lifetime, a political reaction would occur and a conservative President be chosen who could appoint his successor.
When Marshall arrived at Philadelphia, the bar of that city wished to give him a dinner, and, by way of invitation, adopted remarkable resolutions expressing their grateful praise and affectionate admiration. The afflicted Chief Justice, deeply touched, declined in a letter of singular grace and dignity: "It is impossible for me ... to do justice to the feelings with which I receive your very flattering address; ... to have performed the official duties assigned to me by my country in such a manner as to acquire the approbation of" the Philadelphia bar, "affords me the highest gratification of which I am capable, and ismore than an ample reward for the labor which those duties impose." Marshall's greatest satisfaction, he says, is that he and his associates on the Supreme Bench "have never sought to enlarge the judicial power beyond its proper bounds, nor feared to carry it to the fullest extent that duty required."[1393]The members of the bar then begged the Chief Justice to receive them "in a body" at "the United States Courtroom"; and also to "permit his portrait to be taken" by "an eminent artist of this city."[1394]
With anxiety, but calmness and even good humor, Marshall awaited the operation. Just before he went to the surgeon's table, Dr. Jacob Randolph, who assisted Dr. Physick, found Marshall eating a hearty breakfast. Notwithstanding the pain he suffered, the Chief Justice laughingly explained that, since it might be the last meal he ever would enjoy, he had determined to make the most of it. He understood that the chances of surviving the operation were against him, but he was eager to take them, since he would rather die than continue to suffer the agony he had been enduring.
While the long and excruciating operation went on, by which more than a thousand calculi were removed, Marshall was placid, "scarcely uttering a murmur throughout the whole procedure." Thephysicians ascribed his recovery "in a great degree ... to his extraordinary self possession, and to the calm and philosophical views which he took of his case."[1395]
Marshall writes Story about his experience and the results of the treatment, saying that he must take medicine "continually to prevent new formations," and adding, with humorous melancholy, that he "must submit too to a severe and most unsociable regimen." He cautions Story to care for his own health, which Judge Peters had told him was bad. "Without your vigorous and powerful co-operation I should be in despair, and think the 'ship must be given up.'"[1396]
On learning of his improved condition, Story writes Peters from Cambridge: "This seems to me a special interposition of Providence in favor of the Constitution.... He is beloved and reverenced here beyond all measure, though not beyond his merits. Next to Washington he stands the idol of all good men."[1397]
While on this distressing visit to Philadelphia, Marshall writes his wife two letters—the last letters to her of which any originals or copies can be found. "I anticipate with a pleasure which I know you will share the time when I may sit by your side by our tranquil fire side & enjoy the happiness of your society without inflicting on you the pain of witnessing my suffering.... I am treated with the most flattering attentions in Philadelphia. They give me pain,the more pain as the necessity of declining many of them may be ascribed to a want of sensibility."[1398]
His recovery assured, Marshall again writes his wife: "I have at length risen from my bed and am able to hold a pen. The most delightful use I can make of it is to tell you that I am getting well ... from the painful disease with which I have been so long affected.... Nothing delights me so much as to hear from my friends and especially from you. How much was I gratified at the line from your own hand in Mary's letter.[1399]... I am much obliged by your offer to lend me money.[1400]I hope I shall not need it but can not as yet speak positively as my stay has been longer and my expenses greater than I had anticipated on leaving home. Should I use any part of it, you may be assured it will be replaced on my return. But this is a subject on which I know you feel no solicitude.... God bless you my dearest Polly love to all our friends. Ever your most affectionate J. Marshall."[1401]
On December 25, 1831, his "dearest Polly" died. The previous day, she hung about his neck a locket containing a wisp of her hair. For the remainder of his life he wore this memento, never parting with it night or day.[1402]Her weakness, physical and mental, which prevailed throughout practically the whole oftheir married life, inspired in Marshall a chivalric adoration. On the morning of the first anniversary of her death, Story chanced to go into Marshall's room and "found him in tears. He had just finished writing out for me some lines of General Burgoyne, of which he spoke to me last evening as eminently beautiful and affecting.... I saw at once that he had been shedding tears over the memory of his own wife, and he has said to me several times during the term, that the moment he relaxes from business he feels exceedingly depressed, and rarely goes through a night without weeping over his departed wife.... I think he is the most extraordinary man I ever saw, for the depth and tenderness of his feelings."[1403]
But Marshall had also written something which he did not show even to Story—a tribute to his wife:
"This day of joy and festivity to the whole Christian world is, to my sad heart, the anniversary of the keenest affliction which humanity can sustain. While all around is gladness, my mind dwells on the silent tomb, and cherishes the remembrance of the beloved object which it contains.
"On the 25th of December, 1831, it was the will of Heaven to take to itself the companion who had sweetened the choicest part of my life, had rendered toil a pleasure, had partaken of all my feelings, and was enthroned in the inmost recess of my heart. Never can I cease to feel the loss and to deplore it. Grief for her is too sacred ever to be profaned on this day, which shall be, during my existence, marked by a recollection of her virtues.
"On the 3d of January, 1783, I was united by the holiest bonds to the woman I adored. From the moment of our union to that of our separation, I never ceased to thank Heaven for this its best gift. Not a moment passed in which I did not consider her as a blessing from which the chief happiness of my life was derived. This never-dying sentiment, originating in love, was cherished by a long and close observation of as amiable and estimable qualities as ever adornedthe female bosom. To a person which in youth was very attractive, to manners uncommonly pleasing, she added a fine understanding, and the sweetest temper which can accompany a just and modest sense of what was due to herself.
"She was educated with a profound reverence for religion, which she preserved to her last moments. This sentiment, among her earliest and deepest impressions, gave a colouring to her whole life. Hers was the religion taught by the Saviour of man. She was a firm believer in the faith inculcated by the Church (Episcopal) in which she was bred.
"I have lost her, and with her have lost the solace of my life! Yet she remains still the companion of my retired hours, still occupies my inmost bosom. When alone and unemployed, my mind still recurs to her. More than a thousand times since the 25th of December, 1831, have I repeated to myself the beautiful lines written by General Burgoyne, under a similar affliction, substituting 'Mary' for 'Anna':
"'Encompass'd in an angel's frame,An angel's virtues lay:Too soon did Heaven assert its claimAnd take its own away!My Mary's worth, my Mary's charms,Can never more return!What now shall fill these widow'd arms?Ah, me! my Mary's urn!Ah, me! ah, me! my Mary's urn!'"[1404]
After his wife's death, Marshall arranged to live at "Leeds Manor," Fauquier County, a large houseon part of the Fairfax estate which he had given to his son, James Keith Marshall. A room, with very thick walls to keep out the noise of his son's many children, was built for him, adjoining the main dwelling. Here he brought his library, papers, and many personal belongings. His other sons and their families lived not far away; "Leeds Manor" was in the heart of the country where he had grown to early manhood; and there he expected to spend his few remaining years.[1405]He could not, however, tear himself from his Richmond home, where he continued to live most of the time until his death.[1406]
When fully recovered from his operation, Marshall seemed to acquire fresh strength. He "is in excellent health, never better, and as firm and robust in mind as in body," Story informs Charles Sumner.[1407]
The Chief Justice was, however, profoundly depressed. The course that President Jackson was then pursuing—his attitude toward the Supreme Court in the Georgia controversy,[1408]his arbitrary and violent rule, his hostility to the second Bank of the United States—alarmed and distressed Marshall.
Leeds Manor"Leeds Manor"The principal house in the Fairfax purchase and the home of Marshall's son,James Keith Marshall, where he expected to spend his declining years.
The Bank had finally justified the brightest predictions of its friends. Everywhere in the country its notes were as good as gold, while abroad they were often above par.[1409]Its stock was owned in everynation and widely distributed in America.[1410]Up to the time when Jackson began his warfare upon the Bank, the financial management of Nicholas Biddle had been as brilliant as it was sound.[1411]
But popular hostility to the Bank had never ceased. In addition to the old animosity toward any central institution of finance, charges were made that directors of certain branches of the Bank had used their power to interfere in politics. As implacable as they were unjust were the assaults made by Democratic politicians upon Jeremiah Mason, director of the branch at Portsmouth, New Hampshire. Had the Bank consented to Mason's removal, it is possible that Jackson's warfare on it would not have been prosecuted.[1412]
The Bank's charter was to expire in 1836. In his first annual Message to Congress the President briefly called attention to the question of rechartering the institution. The constitutionality of the Bank Act was doubtful at best, he intimated, and the Bank certainly had not established a sound and uniform currency.[1413]In his next Message, a year later, Jackson repeated more strongly his attack upon the Bank.[1414]
Two years afterwards, on the eve of the Presidential campaign of 1832, the friends of the Bank in Congress passed, by heavy majorities, a bill extending the charter for fifteen years after March 3, 1836, the date of its expiration.[1415]The principal supporters of this measure were Clay and Webster and, indeed, most of the weighty men in the National Legislature. But they were enemies of Jackson, and he looked upon the rechartering of the Bank as a personal affront.
On July 4, 1832, the bill was sent to the President. Six days later he returned it with his veto. Jackson's veto message was as able as it was cunning. Parts of it were demagogic appeals to popular passion; but the heart of it was an attack upon Marshall's opinions in M'Cullochvs.Maryland and Osbornvs.The Bank.
The Bank is a monopoly, its stockholders and directors a "privileged order"; worse still, the institution is rapidly passing into the hands of aliens—"already is almost a third of the stock in foreign hands." If we must have a bank, let it be "purely American." This aristocratic, monopolistic, un-American concern exists by the authority of an unconstitutional act of Congress. Even worse is the rechartering act which he now vetoed.
The decision of the Supreme Court in the Bank cases, settled nothing, said Jackson. Marshall's opinions were, for the most part, erroneous and "ought not to control the co-ordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution.... It is as much theduty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision.
"The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve."[1416]
But, says Jackson, the court did not decide that "all features of this corporation are compatible with the Constitution." He quotes—and puts in italics—Marshall's statement that "where the law is not prohibited and is really calculated to effect any of the objects intrusted 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." This language, insists Jackson, means that "it is the exclusive province of Congress and the President to decide whether the particular features of this act arenecessaryandproper... and therefore constitutional, orunnecessaryandimproper, and therefore unconstitutional."[1417]Thereupon Jackson points out what he considers to be the defects of the bill.
Congress has no power to "grant exclusive privileges or monopolies," except in the District of Columbia and in the matter of patents and copyrights. "Every act of Congress, therefore, which attempts, by grants of monopolies or sale of exclusive privileges for a limited time, or a time without limit, to restrict or extinguish its own discretion in the choice of means to execute its delegated powers, is equivalent to a legislative amendment of the Constitution, and palpably unconstitutional."[1418]Jackson fiercely attacks Marshall's opinion that the States cannot tax the National Bank and its branches.
The whole message is able, adroit, and, on its face, plainly intended as a campaign document.[1419]A shrewd appeal is made to the State banks. Popular jealousy and suspicion of wealth and power are skillfully played upon: "The rich and powerful" always use governments for "their selfish purposes." When laws are passed "to grant titles, gratuities, and exclusive privileges, to make the rich richer and the potent more powerful, the humble members of society—the farmers, mechanics, and laborers—who have neither the time nor the means of securing like favors to themselves, have a right to complain of the injustice of their Government.
"There are no necessary evils in government," says Jackson. "Its evils exist only in its abuses. If it would confine itself to equal protection, and, asHeaven does its rains, shower its favors alike on the high and the low, the rich and the poor, it would be an unqualified blessing"—thus he runs on to his conclusion.[1420]
The masses of the people, particularly those of the South, responded with wild fervor to the President's assault upon the citadel of the "money power." John Marshall, the defender of special privilege, had said that the Bank law was protected by the Constitution; but Andrew Jackson, the champion of the common people, declared that it was prohibited by the Constitution. Hats in the air, then, and loud cheers for the hero who had dared to attack and to overcome this financial monster as he had fought and beaten the invading British!
Marshall was infinitely disgusted. He informs Story of Virginia's applause of Jackson's veto: "We are up to the chin in politics. Virginia was always insane enough to be opposed to the Bank of The United States, and therefore hurras for the veto. But we are a little doubtful how it may work in Pennsylvania. It is not difficult to account for the part New York may take. She has sagacity enough to see her interest in putting down the present bank. Her mercantile position gives her a controul, a commanding controul, over the currency and the exchanges of the country, if there be no Bank of The United States. Going for herself she may approve this policy; but Virginia ought not to drudge for her benefit."[1421]
Jackson did not sign the bill for the improvement of rivers and harbors, passed at the previous session of Congress, because, as he said, he had not "sufficient time ... to examine it before the adjournment."[1422]Everybody took the withholding of his signature as a veto.[1423]This bill included a feasible project for making the Virginia Capital accessible to seagoing vessels. Even this action of the President was applauded by Virginians:
"We show our wisdom most strikingly in approving the veto on the harbor bill also," Marshall writes Story. "That bill contained an appropriation intended to make Richmond a seaport, which she is not at present, for large vessels fit to cross the Atlantic. The appropriation was whittled down in the House of Representatives to almost nothing.... Yet we wished the appropriation because we were confident that Congress when correctly informed, would add the necessary sum. This too is vetoed; and for this too our sagacious politicians are thankful. We seem to think it the summit of human wisdom, or rather of American patriotism, to preserve our poverty."[1424]
During the Presidential campaign of 1832, Marshall all but despaired of the future of the Republic.The autocracy of Jackson's reign; the popular enthusiasm which greeted his wildest departures from established usage and orderly government; the state of the public mind, indicated everywhere by the encouragement of those whom Marshall believed to be theatrical and adventurous demagogues—all these circumstances perturbed and saddened him.
And for the time being, his fears were wholly justified. Triumphantly reëlected, Jackson pursued the Bank relentlessly. Finally he ordered that the Government funds should no longer be deposited in that hated institution. Although that desperate act brought disaster on business throughout the land, it was acclaimed by the multitude. In alarm and despair, Marshall writes Story: "We [Virginians] are insane on the subject of the Bank. Its friends, who are not numerous, dare not, a few excepted, to avow themselves."[1425]
But the sudden increase and aggressiveness of disunion sentiment oppressed Marshall more heavily than any other public circumstance of his last years. The immediate occasion for the recrudescence ofLocalism was the Tariff. Since the Tariff of 1816 the South had been discontented with the protection afforded the manufacturers of the North and East; and had made loud outcry against the protective Tariff of 1824. The Southern people felt that their interests were sacrificed for the benefit of the manufacturing sections; they believed that all that they produced had to be sold in a cheap, unprotected market, and all that they purchased had to be bought in a dear, protected market; they were convinced that the protective tariff system, and, indeed, the whole Nationalist policy, meant the ruin of the South.
Moreover, they began to see that the power that could enact a protective tariff, control commerce, make internal improvements, could also control slavery—perhaps abolish it.[1426]Certainly that was "the spirit" of Marshall's construction of the Constitution, they said. "Sir," exclaimed Robert S. Garnett of Virginia during the debate in the House on the Tariff of 1824, "we must look very little to consequences if we do not perceive in the spirit of this construction, combined with the political fanaticism of the period, reason to anticipate, at no distant day, the usurpation, on the part of Congress, of the right to legislate upon a subject which, if you once touch, will inevitably throw this country into revolution—I mean that of slavery.... Can whole nations be mistaken? When I speak of nations, I mean Virginia, the Carolinas, and other great Southern commonwealths."[1427]
John Carter of South Carolina warned the Housenot to pass a law "which would, as to this portion of the Union, be registered on our statute books as a dead letter."[1428]James Hamilton, Jr., of the same State, afterwards a Nullification Governor, asked: "Is it nothing to weaken the attachment of one section of this confederacy to the bond of Union?... Is it nothing to sow the seeds of incurable alienation?"[1429]
The Tariff of 1828 alarmed and angered the Southern people to the point of frenzy. "The interests of the South have been ... shamefully sacrificed!" cried Hayne in the Senate. "Her feelings have been disregarded; her wishes slighted; her honest pride insulted!"[1430]So enraged were Southern Representatives that, for the most part, they declined to speak. Hamilton expressed their sentiments. He disdained to enter into the "chaffering" about the details of the bill.[1431]"You are coercing us to inquire, whether we can afford to belong to a confederacy in which severe restrictions, tending to an ultimate prohibition of foreign commerce, is its established policy.[1432]... Is it ... treason, sir, to tell you that there is a condition of public feeling throughout the southern part of this confederacy, which no prudent man will treat with contempt, and no man who loves his country will not desire to see allayed?[1433]... I trust, sir, that this cup may pass from us.... But, if an adverse destiny should be ours—if we are doomed to drink 'the waters of bitterness,' in their utmost woe, ... South Carolina will be found on the side of those principles, standing firmly, on the very ground whichis canonized by that revolution which has made us what we are, and imbued us with the spirit of a free and sovereign people."[1434]
Retaliation, even forcible resistance, was talked throughout the South when this "Tariff of Abominations," as the Act of 1828 was called, became a law. The feeling in South Carolina especially ran high. Some of her ablest men proposed that the State should tax all articles[1435]protected by the tariff. Pledges were made at public meetings not to buy protected goods manufactured in the North. At the largest gathering in the history of the State, resolutions were passed demanding that all trade with tariff States be stopped.[1436]Nullification was proposed.[1437]The people wildly acclaimed such a method of righting their wrongs, and Calhoun gave to the world his famous "Exposition," a treatise based on the Jeffersonian doctrine of thirty years previous.[1438]
A little more than a year after the passage of the Tariff of 1824, and the publication of Marshall's opinions in Osbornvs.The Bank and Gibbonsvs.Ogden, Jefferson had written Giles of the "encroachments" by the National Government, particularly by the Supreme Court and by Congress. How should these invasions of the rights of the States be checked? "Reason and argument? You might as well reasonand argue with the marble columns encircling them [Congress and the Supreme Court].... Are we thento stand to our arms?... No. That must be the last resource." But the States should denounce the acts of usurpation "until their accumulation shall overweigh that of separation."[1439]Jefferson's letter, written only six months before his death, was made public just as the tide of belligerent Nullification was beginning to rise throughout the South.[1440]
At the same time defiance of National authority came also from Georgia, the cause being as distinct from the tariff as the principle of resistance was identical. This cause was the forcible seizure, by Georgia, of the lands of the Cherokee Indians and the action of the Supreme Court in cases growing out of Georgia's policy and the execution of it.
By numerous treaties between the National Government and the Cherokee Nation, the Indians were guaranteed protection in the enjoyment of their lands. When Georgia, in 1802, ceded her claim to that vast territory stretching westward to the Mississippi, it had been carefully provided that the lands of the Indians should be preserved from seizure or entry without their consent, and that their rights should be defended from invasion or disturbance. The Indian titles were to be extinguished, however, as soon as this could be done peaceably, and without inordinate expense.
In 1827, these Georgia Cherokees, who were highly civilized, adopted a constitution, set up agovernment of their own modeled upon that of the United States, and declared themselves a sovereign independent nation.[1441]Immediately thereafter the Legislature of Georgia passed resolutions declaring that the Cherokee lands belonged to the State "absolutely"—that the Indians were only "tenants at her will"; that Georgia had the right to, and would, extend her laws throughout her "conventional limits," and "coerce obedience to them from all descriptions of people, be they white, red, or black."[1442]
Deliberately, but without delay, the State enacted laws taking over the Cherokee lands, dividing them into counties, and annulling "all laws, usages and customs" of the Indians.[1443]The Cherokees appealed to President Jackson, who rebuffed them and upheld Georgia.[1444]Gold was discovered in the Indian country, and white adventurers swarmed to the mines.[1445]Georgia passed acts forbidding the Indians to hold courts, or to make laws or regulations for the tribe. White persons found in the Cherokee country without a license from the Governor were, upon conviction, to be imprisoned at hard labor for four years. A State guard was established to "protect" the mines and arrest any one "detected in a violation of the laws of this State."[1446]Still other acts equally oppressive were passed.[1447]
On the advice of William Wirt, then Attorney-General of the United States, and of John Sergeant of Philadelphia, the Indians applied to the Supreme Court for an injunction to stop Georgia from executing these tyrannical statutes. The whole country was swept by a tempest of popular excitement. South and North took opposite sides. The doctrine of State Rights, in whose name internal improvements, the Tariff, the Bank, and other Nationalist measures had been opposed, was invoked in behalf of Georgia.
The Administration tried to induce the Cherokees to exchange their farms, mills, and stores in Georgia for untamed lands in the Indian Territory. The Indians sent a commission to investigate that far-off region, which reported that it was unfit for agriculture and that, once there, the Cherokees would have to fight savage tribes.[1448]Again they appealed to the President; again Jackson told them that Georgia had absolute authority over them. Angry debates arose in Congress over a bill to send the reluctant natives to the wilds of the then remote West.[1449]
Such was the origin of the case of The Cherokee Nationvs. The State of Georgia.[1450]At Wirt's request,Judge Dabney Carr laid the whole matter before Marshall, Wirt having determined to proceed with it or to drop it as the Chief Justice should advise. Marshall, of course, declined to express any opinion on the legal questions involved: "I have followed the debate in both houses of Congress, with profound attention and with deep interest, and have wished, most sincerely, that both the executive and legislative departments had thought differently on the subject. Humanity must bewail the course which is pursued, whatever may be the decision of policy."[1451]
Before the case could be heard by the Supreme Court, Georgia availed herself of an opportunity to show her contempt for the National Judiciary and to assert her "sovereign rights." A Cherokee named George Tassels was convicted of murder in the Superior Court of Hall County, Georgia, and lay in jailuntil the sentence of death should be executed. A writ of error from the Supreme Court was obtained, and Georgia was ordered to appear before that tribunal and defend the judgment of the State Court.
The order was signed by Marshall. Georgia's reply was as insulting and belligerent as it was prompt and spirited. The Legislature resolved that "the interference by the chief justice of the supreme court of the U. States, in the administration of the criminal laws of this state, ... is a flagrant violation of her rights"; that the Governor "and every other officer of this state" be directed to "disregard any and every mandate and process ... purporting to proceed from the chief justice or any associate justice of the supreme court of the United States"; that the Governor be "authorised and required, with all the force and means ... at his command ... to resist and repel any and every invasion from whatever quarter, upon the administration of the criminal laws of this state"; that Georgia refuses to become a party to "the case sought to be made before the supreme court"; and that the Governor, "by express," direct the sheriff of Hall County to execute the law in the case of George Tassels.[1452]
Five days later, Tassels was hanged,[1453]and the Supreme Court of the United States, powerless to vindicate its authority, defied and insulted by a "sovereign" State, abandoned by the Administration, was humiliated and helpless.
When he went home on the evening of January 4, 1831, John Quincy Adams, now a member ofCongress, wrote in his diary that "the resolutions of the legislature of Georgia setting at defiance the Supreme Court of the United States are published and approved in the Telegraph, the Administration newspaper at this place.... The Constitution, the laws and treaties of the United States are prostrate in the State of Georgia. Is there any remedy for this state of things? None. Because the Executive of the United States is in League with the State of Georgia.... This example ... will be imitated by other States, and with regard to other national interests—perhaps the tariff.... The Union is in the most imminent danger of dissolution.... The ship is about to founder."[1454]
Meanwhile the Cherokee Nation brought its suit in the Supreme Court to enjoin the State from executing its laws, and at the February term of 1831 it was argued for the Indians by Wirt and Sergeant. Georgia disdained to appear—not for a moment would that proud State admit that the Supreme Court of the Nation could exercise any authority whatever over her.[1455]
On March 18, 1831, Marshall delivered the opinion of the majority of the court, and in it he laid down the broad policy which the Government has unwaveringly pursued ever since. At the outset the Chief Justice plainly stated that his sympathies were with the Indians,[1456]but that the court could not examine the merits or go into the moralities of the controversy, because it had no jurisdiction. The Cherokees sued as a foreign nation, but, while they did indeed constitute a separate state, they were not a foreign nation. The relation of the Indians to the United States is "unlike that of any other two people in existence." The territory comprises a "part of the United States."[1457]
In our foreign affairs and commercial regulations, the Indians are subject to the control of the National Government. "They acknowledge themselves in their treaties to be under the protection of the United States." They are not, then, foreign nations, but rather "domestic dependent nations.... They are in a state of pupilage." Foreign governments consider them so completely under our "sovereignty and dominion" that it is universally conceded that the acquisition of their lands or the making of treaties with them would be "an invasion of our territory, and an act of hostility." By the Constitution power is given Congress to regulate commerce among the States, with foreign nations, and with Indian tribes, these terms being "entirely distinct."[1458]
The Cherokees not being a foreign nation, the Supreme Court has no jurisdiction in a suit brought by them in that capacity, said Marshall. Furthermore, the court was asked "to control the Legislature of Georgia, and to restrain the exertion of its physical force"—a very questionable "interposition," which "savors too much of the exercise of political power to be within the proper provinceof the judicial department." In "a proper case with proper parties," the court might, perhaps, decide "the mere question of right" to the Indian lands. But the suit of the Cherokee Nation against Georgia is not such a case.
Marshall closes with a reflection upon Jackson in terms much like those with which, many years earlier, he had so often rebuked Jefferson: "If it be true that the Cherokee Nation have rights, this is not the tribunal in which those rights are to be asserted. If it be true that wrongs have been inflicted, and that still greater are to be apprehended, this is not the tribunal which can redress the past or prevent the future."[1459]
In this opinion the moral force of Marshall was displayed almost as much as in the case of the Schooner Exchange.[1460]He was friendly to the whole Indian race; he particularly detested Georgia's treatment of the Cherokees; he utterly rejected the State Rights theory on which the State had acted; and he could easily have decided in favor of the wronged and harried Indians, as the dissent of Thompson and Story proves. But the statesman and jurist again rose above the man of sentiment, law above emotion, the enduring above the transient.
As a "foreign state" the Indians had lost, but the constitutionality of Georgia's Cherokee statutes had not been affirmed. Wirt and Sergeant had erred as to the method of attacking that legislation. Another proceeding by Georgia, however, soon brought the validity of her expansion laws before the Supreme Court. Among the missionaries who for years had labored in the Cherokee Nation was one Samuel A. Worcester, a citizen of Vermont. This brave minister, licensed by the National Government, employed by the American Board of Commissioners for Foreign Missions, appointed by President John Quincy Adams to be postmaster at New Echota, a Cherokee town, refused, in company with several other missionaries, to leave the Indian country.
Worcester and a Reverend Mr. Thompson were arrested by the Georgia guard. The Superior Court of Gwinnett County released them, however, on a writ of habeas corpus, because, both being licensed missionaries expending National funds appropriated for civilizing Indians, they must be considered as agents of the National Government. Moreover, Worcester was postmaster at New Echota. Georgia demanded his removal and inquired of Jackson whether the missionaries were Government agents. The President assured the State that they were not, and removed Worcester from office.[1461]
Thereupon both Worcester and Thompson were promptly ordered to leave the State. But they and some other missionaries remained, and were arrested; dragged to prison—some of them withchains around their necks;[1462]tried and convicted. Nine were pardoned upon their promise to depart forthwith from Georgia. But Worcester and one Elizur Butler sternly rejected the offer of clemency on such a condition and were put to hard labor in the penitentiary.
From the judgment of the Georgia court, Worcester and Butler appealed to the Supreme Court of the United States. Once more Marshall and Georgia confronted each other; again the Chief Justice faced a hostile President far more direct and forcible than Jefferson, but totally lacking in the subtlety and skill of that incomparable politician. Thrilling and highly colored accounts of the treatment of the missionaries had been published in every Northern newspaper; religious journals made conspicuous display of soul-stirring narratives of the whole subject; feeling in the North ran high; resentment in the South rose to an equal degree.
This time Georgia did more than ignore the Supreme Court as in the case of George Tassels and in the suit of the Cherokee Nation; she formally refused to appear; formally denied the right of that tribunal to pass upon the decisions of her courts.[1463]Never would Georgia so "compromit her dignity as a sovereign State," never so "yield her rights as a member of the Confederacy." The new Governor, Wilson Lumpkin, avowed that he would defend those rights by every means in his power.[1464]When the case of Worcestervs.Georgia came on for hearing before the Supreme Court, no one answered forthe State. Wirt, Sergeant, and Elisha W. Chester appeared for the missionaries as they had for the Indians.[1465]Wirt and Sergeant made extended and powerful arguments.[1466]
Marshall's opinion, delivered March 3, 1832, is one of the noblest he ever wrote. "The legislative power of a State, the controlling power of the Constitution and laws of the United States, the rights, if they have any, the political existence of a once numerous and powerful people, the personal liberty of a citizen, are all involved," begins the aged Chief Justice.[1467]Does the act of the Legislature of Georgia, under which Worcester was convicted, violate the Constitution, laws, and treaties of the United States?[1468]That act is "an assertion of jurisdiction over the Cherokee Nation."[1469]
He then goes into a long historical review of the relative titles of the natives and of the white discoverers of America; of the effect upon these titles of the numerous treaties with the Indians; of the acts of Congress relating to the red men and their lands; and of previous laws of Georgia on these subjects.[1470]This part of his opinion is the most extended and exhaustive historical analysis Marshall ever made in any judicial utterance, except that on the law of treason during the trial of Aaron Burr.[1471]
Then comes his condensed, unanswerable, brilliant conclusion: "A weaker power does not surrender its independence, its rights to self-government, by associating with a stronger, and taking its protection. A weak state, in order to provide for its safety, may place itself under the protection of one more powerful, without stripping itself of the right of self-government, and ceasing to be a state.... The Cherokee Nation ... is a distinct community, occupying its own territory ... in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of Congress. The whole intercourse between the United States and this nation is by our Constitution and laws vested in the government of the United States."
The Cherokee Acts of the Georgia Legislature "are repugnant to the constitution, laws and treaties of the United States. They interfere forcibly with the relations established between the United States and the Cherokee Nation." This controlling fact the laws of Georgia ignore. They violently disrupt the relations between the Indians and the United States; they are equally antagonistic to acts of Congress based upon these treaties. Moreover, "the forcible seizure and abduction" of Worcester, "who was residing in the nation with its permission and by authority of the President of the United States, is also a violation of the acts which authorize the chief magistrate to exercise this authority."
Marshall closes with a passage of eloquence almost equal to, and of higher moral grandeur than, the finest passages in M'Cullochvs.Maryland and in Cohensvs.Virginia. So the decision of the courtwas that the judgment of the Georgia court be "reversed and annulled."[1472]
Congress was intensely excited by Marshall's opinion; Georgia was enraged; the President agitated and belligerent. In a letter to Ticknor, written five days after the judgment of the court was announced, Story accurately portrays the situation: "The decision produced a very strong sensation in both houses; Georgia is full of anger and violence.... Probably she will resist the execution of our judgement, & if she does I do not believe the President will interfere.... The Court has done its duty. Let the nation do theirs. If we have a government let its commands be obeyed; if we have not it is as well to know it at once, & to look to consequences."[1473]
Story's forecast was justified. Georgia scoffed at Marshall's opinion, flouted the mandate of the Supreme Court. "Usurpation!" cried Governor Lumpkin. He would meet it "with the spirit of determined resistance."[1474]Jackson defied the Chief Justice. "John Marshall has made his decision:—now let him enforce it!" the President is reported to have said.[1475]Again the Supreme Court found itself powerless; the judgment in Worcestervs.Georgia came to nothing; the mandate was never obeyed, never heeded.[1476]
For the time being, Marshall was defeated; Nationalism was prostrate; Localism erect, strong, aggressive. Soon, however, Marshall and Nationalism were to be sustained, for the moment, by the man most dreaded by the Chief Justice, most trusted by Marshall's foes. Andrew Jackson was to astound the country by the greatest and most illogical act of his strange career—the issuance of his immortal Proclamation against Nullification.
Georgia's very first assertion of her "sovereignty" in the Indian controversy had strengthened South Carolina's fast growing determination to resist the execution of the Tariff Law. On January 25, 1830, Senator Robert Young Hayne of South Carolina, in his brilliant challenge to Webster, set forth the philosophy of Nullification: "Sir, if, the measures of the Federal Government were less oppressive, we should still strive against this usurpation. TheSouth is acting on a principle she has always held sacred—resistance to unauthorized taxation."[1477]
Webster's immortal reply, so far as his Constitutional argument is concerned, is little more than a condensation of the Nationalist opinions of John Marshall stated in popular and dramatic language. Indeed, some of Webster's sentences are practically mere repetitions of Marshall's, and his reasoning is wholly that of the Chief Justice.
"We look upon the States, not as separated, but as united under the same General Government, having interests, common, associated, intermingled. In war and peace, we are one; in commerce, one; because the authority of the General Government reaches to war and peace, and to the regulation of commerce."[1478]
What is the capital question in dispute? It is this: "Whose prerogative is it to decide on the constitutionality or unconstitutionality of the laws?"[1479]Can States decide? Can States "annul the law of Congress"? Hayne, expressing the view of South Carolina, had declared that they could. He had based his argument upon the Kentucky and Virginia Resolutions—upon the theory that the States, and not the people, had created the Constitution; that the States, and not the people, had established the General Government.
But is this true? asked Webster. He answered by paraphrasing Marshall's words in M'Cullochvs.Maryland: "It is, sir, the people's constitution, the people's Government; made for the people; made by the people; and answerable to the people.[1480]The people ... have declared that this Constitution shall be the supreme law....[1481]Who is to judge between the people and the Government?"[1482]
The Constitution settles that question by declaring that "the judicial power shall extend to all cases arising under the Constitution and laws."[1483]Because of this the Union is secure and strong. "Instead of one tribunal, established by all, responsible to all, with power to decide for all, shall constitutional questions be left to four and twenty popular bodies, each at liberty to decide for itself, and none bound to respect the decisions of others?"[1484]
Then Webster swept grandly forward to that famous peroration ending with the words which intime became the inspiring motto of the whole American people: "LibertyandUnion, now and forever, one and inseparable!"[1485]
Immediately after the debate between Hayne and Webster, Nullification gathered force in South Carolina. Early in the autumn of 1830, Governor Stephen Decatur Miller spoke at a meeting of the Sumter district of that State. He urged that a State convention be called for the purpose of declaring null and void the Tariff of 1828. Probably the National courts would try to enforce that law, he said, but South Carolina would "refuse to sustain" it. Nullification involved no danger, and if it did, what matter!—"those who fear to defend their rights, have none. Their property belongs to the banditti: they are only tenants at will of their own firesides."[1486]
Public excitement steadily increased; at largely attended meetings ominous resolutions were adopted. "The attitude which the federal government continues to assume towards the southern states, calls for decisive and unequivocal resistance." So ran a typical declaration of a gathering of citizens of Georgetown, South Carolina, in December, 1830.[1487]
In the Senate, Josiah Stoddard Johnston of Louisiana, but Connecticut-born, made a speech denouncing the doctrine of Nullification, asserting the supremacy of the National Government, and declaring that the Supreme Court was the final judge of the constitutionality of legislation. "It has fulfilled the design of its institution; ... it has given form and consistency to the constitution, and uniformity tothe laws."[1488]Nullification, said Johnston, means "either disunion, or civil war; or, in the language of the times, disunion and blood."[1489]
The Louisiana Senator sent his speech to Marshall, who answered that "it certainly is not among the least extraordinary of the doctrines of the present day that such a question [Nullification] should be seriously debated."[1490]
All Nullification arguments were based on the Kentucky and Virginia Resolutions. Madison was still living, and Edward Everett asked him for his views. In a letter almost as Nationalist as Marshall's opinions, the venerable statesman replied at great length and with all the ability and clearness of his best years.
The decision by States of the constitutionality of acts of Congress would destroy the Nation, he wrote. Such decision was the province of the National Judiciary. While the Supreme Court had been criticized, perhaps justly in some cases, "still it would seem that, with but few exceptions, the course of the judiciary has been hitherto sustained by the predominant sense of the nation." It was absurd to deny the "supremacy of the judicial power of the U. S. & denounce at the same time nullifying power in a State.... A law of the land" cannot be supreme "without a supremacy in the exposition & execution of the law." Nullification was utterly destructive of the Constitution and the Union.[1491]
This letter, printed in theNorth American Review,[1492]made a strong impression on the North, but it only irritated the South. Marshall read it "with peculiar pleasure," he wrote Story: "MrMadison ... is himself again. He avows the opinions of his best days, and must be pardoned for his oblique insinuations that some of the opinions of our Court are not approved. Contrast this delicate hint with the language MrJefferson has applied to us. He [Madison] is attacked ... by our Enquirer, who has arrayed his report of 1799 against his letter. I never thought that report could be completely defended; but MrMadison has placed it upon its best ground, that the language is incautious, but is intended to be confined to a mere declaration of opinion, or is intended to refer to that ultimate right which all admit, to resist despotism, a right not exercised under a constitution, but in opposition to it."[1493]
At a banquet on April 15, 1830, in celebration of Jefferson's birthday, Jackson had given a warning not to be misunderstood except by Nullifiers who had been blinded and deafened by their new political religion. "The Federal Union;—it must be preserved," was the solemn and inspiring toast proposed by the President. Southern leaders gave no heed. They apparently thought that Jackson meant to endorse Nullification, which, most illogically, they always declared to be the only method of preserving the Union peaceably.
Their denunciation of the Tariff grew ever louder; their insistence on Nullification ever fiercer, evermore determined. To a committee of South Carolina Union men who invited him to their Fourth of July celebration at Charleston in 1831, Jackson sent a letter which plainly informed the Nullifiers that if they attempted to carry out their threats, the National Government would forcibly suppress them.[1494]
At last the eyes of the South were opened. At last the South understood the immediate purpose of that enigmatic and self-contradictory man who ruled America, at times, in the spirit of the Czars of Russia; at times, in the spirit of the most compromising of opportunists.
Jackson's outgiving served only to enrage the South and especially South Carolina. The Legislature of that State replied to the President's letter thus: "Is this Legislature to be schooled and rated by the President of the United States? Is it to legislate under the sword of the Commander-in-Chief?... This is a confederacy of sovereign States, and each may withdraw from the confederacy when it chooses."[1495]
Marshall saw clearly what the outcome was likely to be, but yielded slowly to the despair so soon to master him. "Things to the South wear a very serious aspect," he tells Story. "If we can trust appearances the leaders are determined to risk all the consequences of dismemberment. I cannot entirely dismiss the hope that they may be deserted by their followers—at least to such an extent as to produce a pause at the Rubicon. They undoubtedly believe that Virginia will support them. I think theyare mistaken both with respect to Virginia and North Carolina. I do not think either State will embrace this mad and wicked measure. New Hampshire and Maine seem to belong to the tropics. It is time for New Hampshire to part with Webster and Mason. She has no longer any use for such men."[1496]