As the troubled weeks passed, Marshall's apprehension increased. Story, profoundly concerned, wrote the Chief Justice that he could see no light in the increasing darkness. "If the prospects of our country inspire you with gloom," answered Marshall, "how do you think a man must be affected who partakes of all your opinions and whose geographical position enables him to see a great deal that is concealed from you? I yield slowly and reluctantly to the conviction that our constitution cannot last. I had supposed that north of the Potowmack a firm and solid government competent to the security of rational liberty might be preserved. Even that now seems doubtful. The case of the south seems to me to be desperate. Our opinions are incompatible with a united government even among ourselves. The union has been prolonged thus far by miracles. I fear they cannot continue."[1497]
Congress heeded the violent protest of South Carolina—perhaps it would be more accurate to say that Congress obeyed Andrew Jackson. In 1832 it reduced tariff duties; but the protective policy was retained. The South was infuriated—if the principle were recognized, said Southern men, what couldthey expect at a later day when this capitalistic, manufacturing North would be still stronger and the unmoneyed and agricultural South still weaker?
South Carolina especially was frantic. The spirit of the State was accurately expressed by R. Barnwell Smith at a Fourth of July celebration: "If the fire and the sword of war are to be brought to our dwellings, ... let them come! Whilst a bush grows which may be dabbled with blood, or a pine tree stands to support a rifle, let them come!"[1498]At meetings all over the State treasonable words were spoken. Governor James Hamilton, Jr., convened the Legislature in special session and the election of a State convention was ordered.
"Let us act, next October, at the ballot box—next November, in the state house—and afterwards, should any further action be necessary, let it be where our ancestors acted,in the field of battle";[1499]such were the toasts proposed at banquets, such the sentiments adopted at meetings.
On November 24, 1832, the State Convention, elected[1500]to consider the new Tariff Law, adopted the famous Nullification Ordinance which declared that the Tariff Acts of 1828 and 1832 were "null, void, and no law"; directed the Legislature to take measures to prevent the enforcement of those acts within South Carolina; forbade appeal to the Supreme Court of the United States from South Carolina courts in any case where the Tariff Law was involved; and required all State officers, civil and military, totake oath to "obey, execute and enforce this Ordinance, and such act or acts of the Legislature as may be passed in pursuance thereof."
The Ordinance set forth that "we, the People of South Carolina, ...Do further Declare, that we will not submit to the application of force, on the part of the Federal Government, to reduce this State to obedience; but that we will consider" any act of the National Government to enforce the Tariff Laws "as inconsistent with the longer continuance of South Carolina in the Union: and that the People of this State ... will forthwith proceed to organize a separate Government, and to do all other acts and things which sovereign and independent States may of right do."[1501]
Thereupon the Convention issued an address to the people.[1502]It was long and, from the Nullification point of view, very able; it ended in an exalted, passionate appeal: "Fellow citizens, the die is now cast.No more taxes shall be paid here.... Prepare for the crisis, and ... meet it as becomes men and freemen.... Fellow citizens,Do your duty to your country, and leave the consequences to God."[1503]
Excepting only at the outbreak of war could a people be more deeply stirred than were all Americans by the desperate action of South Carolina. In the North great Union meetings were held, fervid speeches made, warlike resolutions adopted. The South, at first, seemed dazed. Was war at hand? This was the question every man asked of his neighbor. A pamphlet on the situation, written bysome one in a state of great emotion, had been sent to Marshall, and Judge Peters had inquired about it, giving at the same time the name of the author.
"I am not surprised," answered Marshall, "that he [the author] is excited by the doctrine of nullification. It is well calculated to produce excitement in all.... Leaving it to the courts and the custom house will be leaving it to triumphant victory, and to victory which must be attended with more pernicious consequences to our country and with more fatal consequences to its reputation than victory achieved in any other mode which rational men can devise."[1504]If Nullification must prevail, John Marshall preferred that it should win by the sword rather than through the intimidation of courts.
Jackson rightly felt that his reëlection meant that the country in general approved of his attitude toward Nullification as well as that toward the Bank. He promptly answered the defiance of South Carolina. On December 10, 1832, he issued his historic Proclamation. Written by Edward Livingston,[1505]Secretary of State, it is one of the ablest of American state papers. Moderate in expression, simple in style, solid in logic, it might have been composed by Marshall himself. It is, indeed, a restatement of Marshall's Nationalist reasoning and conclusions. Like the argument in Webster's Reply to Hayne, Jackson's Nullification Proclamation was a repetition of those views of the Constitution and of the nature of the American Government for which Marshall had been fighting since Washington was made President.
As in Webster's great speech, sentences and paragraphs are in almost the very words used by Marshall in his Constitutional opinions, so in Jackson's Proclamation the same parallelism exists. Gently, but firmly, and with tremendous force, in the style and spirit of Abraham Lincoln rather than of Andrew Jackson, the Proclamation makes clear that the National laws will be executed and resistance to them will be put down by force of arms.[1506]
The Proclamation was a triumph for Marshall. That the man whom he distrusted and of whom he so disapproved, whose election he had thought to be equivalent to a dissolution of the Union, should turn out to be the stern defender of National solidarity, was, to Marshall, another of those miracles which so often had saved the Republic. His disapproval of Jackson's rampant democracy, and whimsical yet arbitrary executive conduct, turned at once to hearty commendation.
"Since his last proclamation and message," testifies Story, "the Chief Justice and myself have become his warmest supporters, and shall continue so just as long as he maintains the principles contained in them. Who would have dreamed of such an occurrence?"[1507]Marshall realized, nevertheless, that even the bold course pursued by the President could not permanently overcome the secession convictions of the Southern people.
The Union men of South Carolina who, from the beginning of the Nullification movement, had striven earnestly to stay its progress, rallied manfully.[1508]Their efforts were futile—disunion sentiment swept the State. "With ... indignation and contempt," with "defiance and scorn," most South Carolinians greeted the Proclamation[1509]of the man who, only three years before, had been their idol. To South Carolinians Jackson was now "a tyrant," a would-be "Cæsar," a "Cromwell," a "Bonaparte."[1510]
The Legislature formally requested Hayne, now Governor, to issue a counter-proclamation,[1511]and adopted spirited resolutions declaring the right of any State "to secede peaceably from the Union." One count in South Carolina's indictment of the President was thoroughly justified—his approval of Georgia's defiance of Marshall and the Supreme Court. Jackson's action, declared the resolutions, was the more "extraordinary, that he has silently, and ... with entire approbation, witnessed our sister state of Georgia avow, act upon, and carry into effect, even to the taking of life, principles identical with those now denounced by him in South Carolina." The Legislature finally resolved that the State would "repel force by force, and, relying upon the blessing of God, will maintain its liberty at all hazards."[1512]
Swiftly Hayne published his reply to the President's Proclamation. It summed up all the arguments for the right of a State to decide the constitutionality of acts of Congress, that had been made since the Kentucky Resolutions were written by Jefferson—that "great Apostle of American liberty ... who has consecrated these principles, and left them as a legacy to the American people, recorded by his own hand." It was Jefferson, said Hayne, who had first penned the immortal truth that "Nullification" of unconstitutional acts of Congress was the "rightful remedy" of the States.[1513]
In his Proclamation Jackson had referred to the National Judiciary as the ultimate arbiter of the constitutionality of National laws. How absurd such a claim by such a man, since that doctrine "has been denied by none more strongly than the President himself" in the Bank controversy and in the case of the Cherokees! "And yet when it serves the purpose of bringing odium on South Carolina, 'his native State,' the President has no hesitation in regarding the attempt of a State to release herself from the control of the Federal Judiciary, in a matter affecting her sovereign rights, as a violation of the Constitution."[1514]
In closing, Governor Hayne declares that "the time has come when it must be seen, whether the people of the several States have indeed lost the spirit of the revolution, and whether they are to become the willing instruments of an unhallowed despotism. In such a sacred cause, South Carolina will feel that she is not striking for her own, but the liberties of the Union and therights of man."[1515]
Instantly[1516]the Legislature enacted one law to prevent the collection of tariff duties in South Carolina;[1517]another authorizing the Governor to "order into service the whole military force of this State" to resist any attempt of the National Government to enforce the Tariff Acts.[1518]Even before Hayne's Proclamation was published, extensive laws had been passed for the reorganization of the militia, and the Legislature now continued to enact similar legislation. In four days fourteen such acts were passed.[1519]
The spirit and consistency of South Carolina were as admirable as her theory was erroneous and narrow. If she meant what she had said, the State could have taken no other course. If, moreover, she really intended to resist the National Government, Jackson had given cause for South Carolina's militant action. As soon as the Legislature ordered the calling of the State Convention to consider the tariff, the President directed the Collector at Charleston to use every resource at the command of the Government to collect tariff duties. The commanders of the forts at Charleston were ordered to be in readiness to repel any attack. General Scott was sent to the scene of the disturbance. Military and naval dispositions were made so as to enable the National Government to strike quickly and effectively.[1520]
Throughout South Carolina the rolling of drums and blare of bugles were heard. Everywhere wasseen the blue cockade with palmetto button.[1521]Volunteers were called for,[1522]and offered themselves by thousands; in certain districts "almost the entire population" enlisted.[1523]Some regiments adopted a new flag, a banner of red with a single black star in the center.[1524]
Jackson attempted to placate the enraged and determined State. In his fourth annual Message to Congress he barely mentioned South Carolina's defiance, but, for the second time, urgently recommended a reduction of tariff duties. Protection, he said, "must be ultimately limited to those articles of domestic manufacture which are indispensable to our safety in time of war.... Beyond this object we have already seen the operation of the system productive of discontent."[1525]
Other Southern States, although firmly believing in South Carolina's principles and sympathetic with her cause, were alarmed by her bold course. Virginia essayed the rôle of mediator between her warlike sister and the "usurping" National Government. In his Message to the Legislature, Governor John Floyd stoutly defended South Carolina—"the land of Sumpter [sic] and of Marion." "Should force be resorted to by the federal government, the horror of the scenes hereafter to be witnessed cannot now be pictured.... What surety has any state for her existence as a sovereign, if a difference of opinion should be punished by the sword as treason?" The situation calls for a reference of the whole question to "thePeopleof the states. On you depends in a high degree the future destiny of this republic. It is for you now to say whether the brand of civil war shall be thrown into the midst of these states."[1526]
Mediative resolutions were instantly offered for the appointment of a committee "to take into consideration the relations existing between the state of South Carolina and the government of the United States," and the results to each and to Virginia flowing from the Ordinance of Nullification and Jackson's Proclamation. The committee was to report "such measures as ... it may be expedient for Virginia to adopt—the propriety of recommending a general convention to the states—and such a declaration of our views and opinions as it may be proper for her to express in the present fearful impending crisis, for the protection of the right of the states, the restoration of harmony, and the preservation of the union."[1527]
Only five members voted against the resolution.[1528]
The committee was appointed and, on December 20, 1832, reported a set of resolutions—"worlds of words," as Niles aptly called them—disapproving Jackson's Proclamation; applauding his recommendation to Congress that the tariff be reduced; regretting South Carolina's hasty action; deprecating "the intervention of arms on either side"; entreating "our brethren in S. Carolina to pause in their career"; appealing to Jackson "to withstay the arm of force"; instructing Virginia Senators and requesting Virginia Representatives in Congress to do their best to "procure an immediate reduction of thetariff"; and appointing two commissioners to visit South Carolina with a view to securing an adjustment of the dispute.[1529]
With painful anxiety and grave alarm, Marshall, then in Richmond, watched the tragic yet absurd procession of events. Much as the doings and sayings of the mediators and sympathizers with Nullification irritated him, serious as were his forebodings, the situation appealed to his sense of humor. He wrote Story an account of what was going on in Virginia. No abler or more accurate statement of the conditions and tendencies of the period exists. Marshall's letter is a document of historical importance. It reveals, too, the character of the man.
It was written in acknowledgment of the receipt of "a proof sheet" of a page of Story's "Commentaries on the Constitution of the United States," dedicating that work to Marshall. "I am ... deeply penetrated," says Marshall, "by the evidence it affords of the continuance of that partial esteem and friendship which I have cherished for so many years, and still cherish as one of the choicest treasures of my life. The only return I can make is locked up in my own bosom, or communicated in occasional conversation with my friends." He congratulates Story on having finished his "Herculean task." He is sure that Story has accomplished it with ability and "correctness," and is "certain in advance" that he will read "every sentence with entire approbation. It is a subject on which we concur exactly. Our opinions on it are, I believe, identical. Not so with Virginia or the South generally."
Marshall then relates what has happened in Richmond: "Our legislature is now in session, and the dominant party receives the message of the President to Congress with enthusiastic applause. Quite different was the effect of his proclamation. That paper astonished, confounded, and for a moment silenced them. In a short time, however, the power of speech was recovered, and was employed in bestowing on its author the only epithet which could possibly weigh in the scales against the name of 'Andrew Jackson,' and countervail its popularity.
"Imitating the Quaker who said the dog he wished to destroy was mad, they said Andrew Jackson had become a Federalist, even an ultra Federalist. To have said he was ready to break down and trample on every other department of the government would not have injured him, but to say that he was a Federalist—a convert to the opinions of Washington, was a mortal blow under which he is yet staggering.
"The party seems to be divided. Those who are still true to their President pass by his denunciation of all their former theories; and though they will not approve the sound opinions avowed in his proclamation are ready to denounce nullification and to support him in maintaining the union. This is going a great way for them—much farther than their former declarations would justify the expectation of, and much farther than mere love of union would carry them.
"You have undoubtedly seen the message of ourGovernor and the resolutions reported by the committee to whom it was referred—a message and resolutions which you will think skillfully framed had the object been a civil war. They undoubtedly hold out to South Carolina the expectation of support from Virginia; and that hope must be the foundation on which they have constructed their plan for a southern confederacy or league.
"A want of confidence in the present support of the people will prevent any direct avowal in favor of this scheme by those whose theories and whose secret wishes may lead to it; but the people may be so entangled by the insane dogmas which have become axioms in the political creed of Virginia, and involved so inextricably in the labyrinth into which those dogmas conduct them, as to do what their sober judgement disapproves.
"On Thursday these resolutions are to be taken up, and the debate will, I doubt not, be ardent and tempestuous enough. I pretend not to anticipate the result. Should it countenance the obvious design of South Carolina to form a southern confederacy, it may conduce to a southern league—never to a southern government. Our theories are incompatible with a government for more than a single State. We can form no union which shall be closer than an alliance between sovereigns.
"In this event there is some reason to apprehend internal convulsion. The northern and western section of our State, should a union be maintained north of the Potowmack, will not readily connect itself with the South. At least such is the present belief of their most intelligent men. Any effort on their part to separate from Southern Virginia and unite with a northern confederacy may probably be punished as treason. 'We have fallen on evil times.'"
Story had sent Marshall, Webster's speech at Faneuil Hall, December 17, 1832, in which he declared that he approved the "general principles" of Jackson's Proclamation, and that "nullification ... is but another name for civil war." "I am," said Webster, "for the Union as it is; ... for the Constitution as it is." He pledged his support to the President in "maintaining this Union."[1530]
Marshall was delighted: "I thank you for MrWebster's speech. Entertaining the opinion he has expressed respecting the general course of the administration, his patriotism is entitled to the more credit for the determination he expressed at Faneuil Hall to support it in the great effort it promises to make for the preservation of the union. No member of the then opposition avowed a similar determination during the Western Insurrection, which would have been equally fatal had it not been quelled by the well timed vigor of General Washington.
"We are now gathering the bitter fruits of the tree even before that time planted by MrJefferson, and so industriously and perseveringly cultivated by Virginia."[1531]
Marshall's predictions of a tempestuous debate over the Virginia resolutions were fulfilled. They were, in fact, "debated to death," records Niles."It would seem that the genuine spirit of 'ancientdominionism' would lead to a making of speeches, even in 'the cave of the Cyclops when forging thunderbolts,' instead of striking the hammers from the hands of the workers of iniquity. Well—the matter was debated, and debated and debated.... The proceedings ... were measured by thesquare yard." At last, however, resolutions were adopted.
These resolutions "respectfully requested and entreated" South Carolina to rescind her Ordinance of Nullification; "respectfully requested and entreated" Congress to "modify" the tariff; reaffirmed Virginia's faith in the principles of 1798-99, but held that these principles did not justify South Carolina's Ordinance or Jackson's Proclamation; and finally, authorized the appointment of one commissioner to South Carolina to communicate Virginia's resolutions, expressing at the same time, however, "our sincere good will to our sister state, and our anxious solicitude that the kind and respectful recommendations we have addressed to her, may lead to an accommodation of all the difficulties between that state and the general government."[1532]Benjamin Watkins Leigh was unanimously elected to be the ambassador of accommodation.[1533]
So it came about that South Carolina, anxious to extricate herself from a perilous situation, yet ready to fight if she could not disentangle herself with honor, took informal steps toward a peaceful adjustment of the dispute; and that Jackson and Congress, equally wishing to avoid armed conflict, were eager to have a tariff enacted that would work a "reconciliation." On January 26, 1833, at a meeting in Charleston, attended by the first men of the State of all parties, resolutions, offered by Hamilton himself, were adopted which, as a practical matter, suspended the Ordinance of Nullification that was to have gone into effect on February 1. Vehement, spirited, defiant speeches were made, all ending, however, in expressions of hope that war might be avoided. The resolutions were as ferocious as the most bloodthirsty Secessionist could desire; but they accepted the proposed "beneficial modification of the tariff," and declared that, "pending the process" of reducing the tariff, "all ... collision between the federal and state authorities should be sedulously avoided on both sides."[1534]
The Tariff Bill of 1833—Clay's compromise—resulted. Jackson signed it; South Carolina was mollified. For the time the storm subsided; but the net result was that Nullification triumphed[1535]—a National law had been modified at the threat of a State which was preparing to back up that threat by force.
Marshall was not deceived. "Have you ever seen anything to equal the exhibition in Charleston and in the far South generally?" he writes Story. "Those people pursue a southern league steadily or they are insane. They have caught at Clay's bill, if their conduct is at all intelligible, not as a real accommodation, a real adjustment, a real relief from actual or supposed oppression, but as an apology for avoiding the crisis and deferring the decisive moment till the other States of the South will unite with them."[1536]Marshall himself was for the compromise Tariff of 1833, but not because it afforded a means of preventing armed collision: "Since I have breathed the air of James River I think favorably of Clay's bill. I hope, if it can be maintained, that our manufactures will still be protected by it."[1537]
The "settlement" of the controversy, of course, satisfied nobody, changed no conviction, allayed no hostility, stabilized no condition. The South, though victorious, was nevertheless morose, indignant—after all, the principle of protection had been retained. "The political world, at least our part of it, is surely movedtopsy turvy," Marshall writes Story in the autumn of 1833. "What is to become of us and of our constitution? Can the wise men of the East answer that question? Those of the South perceive no difficulty. Allow a full range to state rights and state sovereignty, and, in their opinion, all will go well."[1538]
Placid as was his nature, perfect as was the co-ordination of his powers, truly balanced as were his intellect and emotions, Marshall could not free his mind of the despondency that had now settled upon him. Whatever the subject upon which he wrote to friends, he was sure to refer to the woeful state of the country, and the black future it portended.
Story informed him that an abridged edition of his own two volumes on the Constitution would soon be published. "I rejoice to hear that the abridgement of your Commentaries is coming before the public," wrote Marshall in reply, "and should be still more rejoiced to learn that it was used in all our colleges and universities. The first impressions made on the youthful mind are of vast importance; and, most unfortunately, they are in the South all erroneous. Our young men, generally speaking, grow up in the firm belief that liberty depends on construing our Constitution into a league instead of a government; that it has nothing to fear from breaking these United States into numerous petty republics. Nothing in their view is to be feared but that bugbear, consolidation; and every exercise of legitimate power is construed into a breach of the Constitution. Your book, if read, will tend to remove these prejudices."[1539]
A month later he again writes Story: "I have finished reading your great work, and wish it could be read by every statesman, and every would-be statesman in the United States. It is a comprehensive and an accurate commentary on our Constitution, formed in the spirit of the original text. In the South, we are so far gone in political metaphysics, that I fear no demonstration can restore us to common sense. The word 'State Rights,' as expounded by the resolutions of '98 and the report of '99, construed by our legislature, has a charm against which all reasoning is vain.
"Those resolutions and that report constitute the creed of every politician, who hopes to rise in Virginia; and to question them, or even to adopt the construction given by their author [Jefferson] is deemed political sacrilege. The solemn ... admonitions of your concluding remarks[1540]will not, I fear, avail as they ought to avail against this popular frenzy."[1541]
He once more confides to his beloved Story his innermost thoughts and feelings. Story had sent the Chief Justice a copy of theNew England Magazinecontaining an article by Story entitled "Statesmen: their Rareness and Importance," in which Marshall was held up as the true statesman and the poor quality of the generality of American public men was set forth in scathing terms.
Marshall briefly thanks Story for the compliment paid him, and continues: "It is in vain to lament, that the portrait which the author has drawn of our political and party men, is, in general, true. Lament it as we may, much as it may wound our vanity or our pride, it is still, in the main, true; and will, I fear, so remain.... In the South, political prejudice is too strong to yield to any degree of merit; and the great body of the nation contains, at least appears to me to contain, too much of the same ingredient.
"To men who think as you and I do, the present is gloomy enough; and the future presents no cheering prospect. The struggle now maintained in everyState in the Union seems to me to be of doubtful issue; but should it terminate contrary to the wishes of those who support the enormous pretensions of the Executive, should victory crown the exertions of the champions of constitutional law, what serious and lasting advantage is to be expected from this result?
"In the South (things may be less gloomy with you) those who support the Executive do not support the Government. They sustain the personal power of the President, but labor incessantly to impair the legitimate powers of the Government. Those who oppose the violent and rash measures of the Executive (many of them nullifiers, many of them seceders) are generally the bitter enemies of a constitutional government. Many of them are the avowed advocates of a league; and those who do not go the whole length, go great part of the way. What can we hope for in such circumstances? As far as I can judge, the Government is weakened, whatever party may prevail. Such is the impression I receive from the language of those around me."[1542]
During the last years of Marshall's life, the country's esteem for him, slowly forming through more than a generation, manifested itself by expressions of reverence and affection. When he and Story attended the theater, the audience cheered him.[1543]His sentiment still youthful and tender, he wept over Fanny Kemble's affecting portrayal of Mrs. Haller in "The Stranger."[1544]To the very last Marshall performed his judicial duties thoroughly, albeit with a heavy heart. He "looked more vigorous than usual," and "seemed to revive and enjoy anew his green old age," testifies Story.[1545]
It is at this period of his career that we get Marshall's account of the course he pursued toward his malignant personal and political enemy, Thomas Jefferson. Six years after Jefferson's death,[1546]Major Henry Lee, who hated that great reformer even more than Jefferson hated Marshall, wrote the Chief Justice for certain facts, and also for his opinion of the former President. In his reply Marshall said:
"I have never allowed myself to be irritated by MrJeffersons unprovoked and unjustifiable aspersions on my conduct and principles, nor have I ever noticed them except on one occasion[1547]when I thought myself called on to do so, and when I thought that declining to enter upon my justification might have the appearance of crouching under the lash, and admitting the justice of its infliction."[1548]
Intensely as he hated Jefferson, attributing to him, as Marshall did, most of the country's woes, the Chief Justice never spoke a personally offensive word concerning his radical cousin.[1549]On the other hand, he never uttered a syllable of praise or appreciation of Jefferson. Even when his great antagonistdied, no expression of sorrow or esteem or regret or admiration came from the Chief Justice. Marshall could not be either hypocritical or vindictive; but he could be silent.
Holding to the old-time Federalist opinion that Jefferson's principles were antagonistic to orderly government; convinced that, if they prevailed, they would be destructive of the Nation; believing the man himself to be a demagogue and an unscrupulous if astute and able politician—Marshall, nevertheless, said nothing about Jefferson to anybody except to Story, Lee, and Pickering; and, even to these close friends, he gave only an occasional condemnation of Jefferson's policies.
The general feeling toward Marshall, especially that of the bench and bar, during his last two years is not too strongly expressed in Story's dedication to the Chief Justice of his "Commentaries on the Constitution of the United States." Marshall had taken keen interest in the preparation of Story's masterpiece and warned him against haste. "Precipitation ought carefully to be avoided. This is a subject on which I am not without experience."[1550]
Story begins by a tribute "to one whose youth was engaged in the arduous enterprises of the Revolution; whose manhood assisted in framing and supporting the national Constitution; and whose maturer years have been devoted to the task of unfolding its powers, and illustrating its principles." As the expounder of the Constitution, "the common consent of yourcountrymen has admitted you to stand without a rival. Posterity will assuredly confirm, by its deliberate award, what the present age has approved, as an act of undisputed justice.
"But," continues Story, "I confess that I dwell with even more pleasure upon the entirety of a life adorned by consistent principles, and filled up in the discharge of virtuous duty; where there is nothing to regret, and nothing to conceal; no friendships broken; no confidence betrayed; no timid surrenders to popular clamor; no eager reaches for popular favor. Who does not listen with conscious pride to the truth, that the disciple, the friend, the biographer of Washington, still lives, the uncompromising advocate of his principles?"[1551]
Excepting only the time of his wife's death, the saddest hours of his life were, perhaps, those when he opened the last two sessions of the Supreme Court over which he presided. When, on January 13, 1834, the venerable Chief Justice, leading his associate justices to their places, gravely returned the accustomed bow of the bar and spectators, he also, perforce, bowed to temporary events and to the iron, if erratic, rule of Andrew Jackson. He bowed, too, to time and death. Justice Washington was dead,Johnson was fatally ill, and Duval, sinking under age and infirmity, was about to resign.
Republicans as Johnson and Duval were, they had, generally, upheld Marshall's Nationalism. Their places must soon be filled, he knew, by men of Jackson's choosing—men who would yield to the transient public pressure then so fiercely brought to bear on the Supreme Court. Only Joseph Story could be relied upon to maintain Marshall's principles. The increasing tendency of Justices Thompson, McLean, and Baldwin was known to be against his unyielding Constitutional philosophy. It was more than probable that, before another year, Jackson would have the opportunity to appoint two new Justices—and two cases were pending that involved some of Marshall's dearest Constitutional principles.
The first of these was a Kentucky case[1552]in which almost precisely the same question, in principle, arose that Marshall had decided in Craigvs. Missouri.[1553]The Kentucky Bank, owned by the State, was authorized to issue, and did issue, bills which were made receivable for taxes and other public dues. The Kentucky law furthermore directed that an endorsement and tender of these State bank notes should, with certain immaterial modifications, satisfy any judgment against a debtor.[1554]In short, the Legislature had authorized a State currency—had emitted those bills of credit, expressly forbidden by the National Constitution.
Another case, almost equally important, camefrom New York.[1555]To prevent the influx of impoverished foreigners, who would be a charge upon the City of New York, the Legislature had enacted that the masters of ships arriving at that port should report to the Mayor all facts concerning passengers. The ship captain must remove those whom the Mayor decided to be undesirable.[1556]It was earnestly contended that this statute violated the commerce clause of the Constitution.
Both cases were elaborately argued; both, it was said, had been settled by former decisions—the Kentucky case by Craigvs.Missouri, the New York case by Gibbonsvs.Ogden and Brownvs.Maryland. The court was almost equally divided. Thompson, McLean, and Baldwin thought the Kentucky and New York laws Constitutional; Marshall, Story, Duval, and Johnson believed them invalid. But Johnson was absent because of his serious illness. No decision, therefore, was possible.
Marshall then announced a rule of the court, hitherto unknown by the public: "The practice of this court is not (except in cases of absolute necessity) to deliver any judgment in cases where constitutional questions are involved, unless four judges concur in opinion, thus making the decision that of a majority of the whole court. In the present cases four judges do not concur in opinion as to the constitutional questions which have been argued. The court therefore direct these cases to be re-argued atthe next term, under the expectation that a larger number of the judges may then be present."[1557]
The next term! When, on January 12, 1835, John Marshall for the last time presided over the Supreme Court of the United States, the situation, from his point of view, was still worse. Johnson had died and Jackson had appointed James M. Wayne of Georgia in his place. Duval had resigned not long before the court convened, and his successor had not been named. Again the New York and Kentucky cases were continued, but Marshall fully realized that the decision of them must be in opposition to his firm and pronounced views.[1558]