FOOTNOTES:

FOOTNOTES:[784]These penalties were forfeits of $500 for every offense—a sum that would have aggregated hundreds of thousands, perhaps millions of dollars, in the case of the Baltimore branch, which did an enormous business. The Maryland law also provided that "every person having any agency in circulating" any such unauthorized note of the Bank should be fined one hundred dollars. (Act of Feb. 11, 1818,Laws of Maryland, 174.)[785]Story to White, March 3, 1819, Story,i, 325.[786]Webster always dressed with extreme care when he expected to make a notable speech or argument. For a description of his appearance on such an occasion see Sargent:Public Men and Events,i, 172.[787]4 Wheaton, 323.[788]Ib.324.[789]Ib.327.[790]Ib.328.[791]4 Wheaton, 330et seq.[792]Ib.362et seq.[793]Ib.272-73.[794]Ib.374.[795]Tyler:Memoir of Roger Brooke Taney, 141.[796]The student should carefully examine Pinkney's argument. Although the abstract of it given in Wheaton's report is very long, a painstaking study of it will be helpful to a better understanding of the development of American Constitutional law. (4 Wheaton, 377-400.)[797]Story to White, March 3, 1819, Story,i, 324-25.[798]4 Wheaton, 426.[799]Seesupra, chap.v.[800]Webster to Mason, Feb. 24, 1819, Van Tyne, 78-79.[801]Webster to Smith, Feb. 28, 1819,ib.79-80.[802]From February 22 to February 27 and from March 1 to March 3, 1819.[803]February 18, 1819. SeeAnnals, 15th Cong. 2d Sess. 1240.[804]Ib.1242.[805]Annals, 15th Cong. 2d Sess. 1249-50.[806]Ib.1254.[807]Ib.1286.[808]Ib.1311.[809]Ib.1404-06.[810]"Marshall's opinion in M'Cullochvs.Maryland, is perhaps the most celebrated Judicial utterance in the annals of the English speaking world." (Great American Lawyers: Lewis,ii, 363.)[811]As the biographer of Washington, Marshall had carefully read both Hamilton's and Jefferson's Cabinet opinions on the constitutionality of a National bank. Compare Hamilton's argument (vol.ii, 72-74, of this work) with Marshall's opinion in M'Cullochvs.Maryland.[812]4 Wheaton, 400.[813]Ib.(Italics the author's.)[814]4 Wheaton, 400-02.[815]"In discussing this question, the counsel for the state of Maryland have deemed it of some importance, in the construction of the constitution, to consider that instrument not as emanating from the people, but as the act of sovereign and independent states. The powers of the general government, it has been said, are delegated by the states, who alone are truly sovereign; and must be exercised in subordination to the states, who alone possess supreme dominion."It would be difficult to sustain this proposition. The convention which framed the constitution was indeed elected by the state legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation, or pretensions to it. It was reported to the then existing Congress of the United States, with a request that it might 'be submitted to a convention of delegates, chosen in each state, by the people thereof, under the recommendation of its legislature, for their assent and ratification.' This mode of proceeding was adopted; and by the convention, by Congress, and by the state legislatures, the instrument was submitted to the people."They acted upon it in the only manner in which they can act safely, effectively, and wisely, on such a subject, by assembling in convention. It is true, they assembled in their several states—and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding the American people into one common mass. Of consequence, when they act, they act in their states. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the state governments. From these conventions the constitution derives its whole authority." (4 Wheaton, 402-03.)[816]4 Wheaton, 403-04.[817]Ib.405.[818]The Nationalist ideas of Marshall and Lincoln are identical; and their language is so similar that it seems not unlikely that Lincoln paraphrased this noble passage of Marshall and thus made it immortal. This probability is increased by the fact that Lincoln was a profound student of Marshall's Constitutional opinions and committed a great many of them to memory.The famous sentence of Lincoln's Gettysburg Address was, however, almost exactly given by Webster in his Reply to Hayne: "It is ... the people's Government; made for the people; made by the people; and answerable to the people." (Debates, 21st Cong. 1st Sess. 74; also Curtis, I, 355-61.) But both Lincoln and Webster merely stated in condensed and simpler form Marshall's immortal utterance in M'Cullochvs.Maryland. (See alsoinfra, chap.x.)[819]4 Wheaton, 405-06.[820]4 Wheaton, 406-07. (Italics the author's.)[821]Ib., 407-08.[822]See vol.i, 72, of this work.[823]4 Wheaton, 408-09.[824]4 Wheaton, 409-10.[825]Ib.411.[826]"The Congress shall have Power ... to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." (Constitution of the United States, Articlei, Section 8.)[827]4 Wheaton, 412.[828]Ib.413.[829]See vol.ii, 71, of this work.[830]Vol.ii, 72-74, of this work.[831]4 Wheaton, 414.[832]4 Wheaton, 415.[833]Ib.416-17.[834]4 Wheaton, 417-18.[835]4 Wheaton, 419-21.[836]Ib.421.[837]Ib.423.[838]4 Wheaton, 424-25.[839]4 Wheaton, 425-26.[840]4 Wheaton, 426.[841]Seesupra, 158et seq.[842]4 Wheaton, 426.[843]4 Wheaton, 427.[844]Ib.429-30.[845]4 Wheaton, 431.[846]Ib.[847]4 Wheaton, 432-33.[848]4 Wheaton, 435-36.[849]Ib.437.[850]Story to his mother, March 7, 1819, Story,i, 325-26.[851]Seeinfra, 420; also 325-27; 338-39, 534-37.[852]Niles,xvi, 41-44.[853]Ib.68-76.[854]Seeinfra, chap.viii.[855]Niles,xvi, 65.[856]See vol.iii, 130-31, of this work.[857]Niles,xvi, 65.[858]Ib.97. For instance, theNatchez Press, in announcing its intention to print Marshall's whole opinion, says that, if his doctrine prevails, "the independence of the individual states ... is obliterated at one fell sweep." No country can remain free "that tolerates incorporated banks, in any guise." (Ib.210.)[859]Ib.103.[860]Ib.104.[861]Niles,xvi, 105.[862]Niles's attack on Marshall's opinion in M'Cullochvs.Maryland ran through three numbers. (Seeib.41-44; 103-05; 145-47.)[863]Seesupra, 161-67.[864]Marshall to Story, March 24, 1819,Proceedings, Mass, Hist. Soc.2d Series,xiv, 324.[865]Seesupra, 146.[866]Enquirer, March 30, 1819, as quoted inBranch Hist. Papers, June, 1905, 52-53.[867]Branch Hist. Papers, June, 1905, 51-63.[868]Enquirer, April 2, 1819, as quoted inBranch Hist. Papers, June, 1905, 76. (Italics the author's.)[869]Enquirer, April 20, 1819, as quoted inib.76.[870]Marshall to Story, May 27, 1819,Proceedings, Mass. Hist. Soc.2d Series,xiv, 325.[871]Enquirer, June 11, 1819, as quoted inBranch Hist. Papers, June, 1905, footnote to 77.[872]Enquirer, June 11, 1819, as quoted inBranch Hist. Papers, June, 1905, 77-82.[873]Enquirer, June 15, 1819, as quoted inib.85; alsoEnquirer, June 18, 1819, as quoted inib.95.[874]Enquirer, June 15, 1819, as quoted inib.91.[875]Ib.87; alsoEnquirer, June 18, 1819, as quoted inib.96-97.[876]Ib.98.[877]Enquirer, June 22, 1819, as quoted inBranch Hist. Papers, June, 1905, 116.[878]Ib.118.[879]Ib.121. Madison endorsed Roane's attacks on Marshall. (See Madison to Roane, Sept. 2, 1819,Writings of James Madison: Hunt,viii, 447-53.)[880]See Roane to his son, Jan. 4, 1819,Branch Hist. Papers, June, 1905, 134; and same to same, Feb. 4, 1819,ib.135.Eighteen days before Marshall delivered his opinion Roane again writes his son: "I have to-day deposited in the vaults of the Virga. bank a certificate in your name for 50 shares U. S. bank stock, as per memo., by Mr. Dandridge Enclosed. The shares cost, as you will see, $98 each." (Roane to his son, Feb. 16, 1810,ib.136.)[881]Roane to his son, note 4, p. 317.[882]The entire transaction is set out in letters of Benjamin Watkins Leigh to Nicholas Biddle, Aug. 21, Aug. 28, Sept. 4, and Sept. 13, 1837; and Biddle to Leigh, Aug. 24 and 25, Sept. 7 and Sept. 15, 1837. (Biddle MSS. in possession of Professor R. C. McGrane of the University of Ohio, to whose courtesy the author is indebted for the use of this material. These letters appear in full in theCorrespondence of Nicholas Biddle: McGrane, 283-89, 291-92, published in September, 1919, by Houghton Mifflin Company, Boston.)[883]Marshall to Bushrod Washington, June 28, 1819. This letter is unsigned, but is in Marshall's unmistakable handwriting and is endorsed by Bushrod Washington, "C. Just. Marshall." (Marshall MSS. Lib. Cong.)[884]Union, April 24, 1819.[885]Union, April 24, 1819.[886]Marshall means that Jefferson inspired Roane's attacks.[887]Marshall had written five essays, but the editor condensed them into two numbers.[888]Marshall to Story, May 27, 1819,Proceedings, Mass. Hist. Soc.2d Series,xiv, 325.[889]Henry Wheaton, Reporter of the Supreme Court.[890]Marshall to Story, July 13, 1819,Proceedings, Mass. Hist. Soc.2d Series,xiv, 326.[891]Enquirer, Jan. 30, 1821.[892]Ib.Feb. 1, 1821.[893]Journal, House of Delegates, Virginia, 1819-20, 56-59.[894]Ib.9.[895]Ib.57.[896]This resolution declared that Virginia assented to the Constitution only on condition that "Every powernot granted, remains with the people, and at their will; thattherefore no right of any denomination can be cancelled, abridged, restrained, or modified, by the congress, by the senate, or house of representatives acting in any capacity; by the President or any department, or officer of the United States, except in those instances in which power is given by the constitution for those purposes." (Journal, House of Delegates, Virginia, 1819-20, 58.)[897]Journal, House of Delegates, Virginia, 1819-20, 59.[898]Ib.76.[899]Journal, House of Delegates, Virginia, 1819-20, 85.[900]Ib.105.[901]Ib.108-09.[902]Ib.179.[903]Ib.175-78.[904]For Marshall's opinion in this controversy seeinfra, 347et seq.[905]The second branch was established at Chillicothe.[906]Chap. 83,Laws of Ohio, 1818-19, 1st Sess. 190-99.Section 5 of this act will give the student the spirit of this autocratic law. This section made it the "duty" of the State agent collecting the tax, after demand on and refusal of the bank officers to pay the tax, if he cannot readily find in the bank offices the necessary amount of money, "to go into each and any other room or vault ... and to every closet, chest, box or drawer in such banking house, to open and search," and to levy on everything found. (Ib.193.)[907]A private letter to Niles says that when it was found that an injunction had been granted, the friends of the bank rejoiced, "wine was drank freely and mirth abounded." (Niles,xvii, 85.) This explains the otherwise incredible negligence of the bank's attorneys in the proceedings next day.[908]Niles,xvii, 85-87, reprinting account as published in theChillicothe Supporter, Sept. 22, 1819, and theOhio Monitor, Sept. 25, 1819.[909]Niles,xvii, 147.[910]Ib.338.[911]Report of Committee made to the Ohio Legislature and transmitted to Congress. (Annals, 16th Cong. 2d Sess. 1685et seq.)[912]Annals, 16th Cong. 2d Sess. 1691.[913]Annals, 16th Cong. 2d Sess. 1696-97.[914]See vol.ii, 72-74, of this work.[915]Annals, 16th Cong. 2d Sess. 1712.[916]Ib.1713.[917]Ib.1714.[918]Seeinfra, chap.viiof this work.[919]State Doc. Fed. Rel.: Ames, 90; and see Niles,xvi, 97, 132.[920]Pennsylvania House of Representatives,Journal, 1819-20, 537;State Doc. Fed. Rel.: Ames, footnote to 90-91.[921]Ib.[922]Ib.91.[923]Seeinfra, chap.x.[924]State Doc. Fed. Rel.: Ames, 92-103.[925]Ib.92, 101-03.[926]Ib.91.[927]Seeinfra, chap.x.[928]See vol.ii, 397, of this work.[929]Taylor:Construction Construed, and Constitutions Vindicated, 9.[930]Taylor:Construction Construed, 11-12. Taylor does not, of course, call Marshall by name, either in this book or in his other attacks on the Chief Justice.[931]Ib.15.[932]Ib.16.[933]Ib.18.[934]Ib.25-26.[935]Ib.28.[936]Taylor:Construction Construed, 77.[937]Ib.79.[938]Ib.84.[939]Ib.87.[940]Taylor:Construction Construed, 89.[941]Ib.161.[942]Ib.233.[943]Ib.237.It is interesting to observe that Taylor brands the protective tariff as one of the evils of Marshall's Nationalist philosophy. "It destroys the division of powers between federal and state governments, ... it violates the principles of representation, ... it recognizes a sovereign power over property, ... it destroys the freedom of labour, ... it taxes the great mass of capital and labour, to enrich the few; ... it increases the burden upon the people ... increases the mass of poverty; ... it impoverishes workmen and enriches employers; ... it increases the expenses of government, ... it deprives commerce of the freedom of exchanges, ... it corrupts congress ... generates the extremes of luxury and poverty." (Taylor:Construction Construed, 252-53.)[944]Seeinfra, 340-42; and seeinfra, chap.x.[945]Taylor:Construction Construed, 314.[946]Jefferson to Ritchie, Dec. 25, 1820,Works: Ford,xii, 176-78. He declined, however, to permit publication of his endorsement of Taylor's book. (Ib.)

[784]These penalties were forfeits of $500 for every offense—a sum that would have aggregated hundreds of thousands, perhaps millions of dollars, in the case of the Baltimore branch, which did an enormous business. The Maryland law also provided that "every person having any agency in circulating" any such unauthorized note of the Bank should be fined one hundred dollars. (Act of Feb. 11, 1818,Laws of Maryland, 174.)

[785]Story to White, March 3, 1819, Story,i, 325.

[786]Webster always dressed with extreme care when he expected to make a notable speech or argument. For a description of his appearance on such an occasion see Sargent:Public Men and Events,i, 172.

[787]4 Wheaton, 323.

[788]Ib.324.

[789]Ib.327.

[790]Ib.328.

[791]4 Wheaton, 330et seq.

[792]Ib.362et seq.

[793]Ib.272-73.

[794]Ib.374.

[795]Tyler:Memoir of Roger Brooke Taney, 141.

[796]The student should carefully examine Pinkney's argument. Although the abstract of it given in Wheaton's report is very long, a painstaking study of it will be helpful to a better understanding of the development of American Constitutional law. (4 Wheaton, 377-400.)

[797]Story to White, March 3, 1819, Story,i, 324-25.

[798]4 Wheaton, 426.

[799]Seesupra, chap.v.

[800]Webster to Mason, Feb. 24, 1819, Van Tyne, 78-79.

[801]Webster to Smith, Feb. 28, 1819,ib.79-80.

[802]From February 22 to February 27 and from March 1 to March 3, 1819.

[803]February 18, 1819. SeeAnnals, 15th Cong. 2d Sess. 1240.

[804]Ib.1242.

[805]Annals, 15th Cong. 2d Sess. 1249-50.

[806]Ib.1254.

[807]Ib.1286.

[808]Ib.1311.

[809]Ib.1404-06.

[810]"Marshall's opinion in M'Cullochvs.Maryland, is perhaps the most celebrated Judicial utterance in the annals of the English speaking world." (Great American Lawyers: Lewis,ii, 363.)

[811]As the biographer of Washington, Marshall had carefully read both Hamilton's and Jefferson's Cabinet opinions on the constitutionality of a National bank. Compare Hamilton's argument (vol.ii, 72-74, of this work) with Marshall's opinion in M'Cullochvs.Maryland.

[812]4 Wheaton, 400.

[813]Ib.(Italics the author's.)

[814]4 Wheaton, 400-02.

[815]"In discussing this question, the counsel for the state of Maryland have deemed it of some importance, in the construction of the constitution, to consider that instrument not as emanating from the people, but as the act of sovereign and independent states. The powers of the general government, it has been said, are delegated by the states, who alone are truly sovereign; and must be exercised in subordination to the states, who alone possess supreme dominion."It would be difficult to sustain this proposition. The convention which framed the constitution was indeed elected by the state legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation, or pretensions to it. It was reported to the then existing Congress of the United States, with a request that it might 'be submitted to a convention of delegates, chosen in each state, by the people thereof, under the recommendation of its legislature, for their assent and ratification.' This mode of proceeding was adopted; and by the convention, by Congress, and by the state legislatures, the instrument was submitted to the people."They acted upon it in the only manner in which they can act safely, effectively, and wisely, on such a subject, by assembling in convention. It is true, they assembled in their several states—and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding the American people into one common mass. Of consequence, when they act, they act in their states. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the state governments. From these conventions the constitution derives its whole authority." (4 Wheaton, 402-03.)

"It would be difficult to sustain this proposition. The convention which framed the constitution was indeed elected by the state legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation, or pretensions to it. It was reported to the then existing Congress of the United States, with a request that it might 'be submitted to a convention of delegates, chosen in each state, by the people thereof, under the recommendation of its legislature, for their assent and ratification.' This mode of proceeding was adopted; and by the convention, by Congress, and by the state legislatures, the instrument was submitted to the people.

"They acted upon it in the only manner in which they can act safely, effectively, and wisely, on such a subject, by assembling in convention. It is true, they assembled in their several states—and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding the American people into one common mass. Of consequence, when they act, they act in their states. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the state governments. From these conventions the constitution derives its whole authority." (4 Wheaton, 402-03.)

[816]4 Wheaton, 403-04.

[817]Ib.405.

[818]The Nationalist ideas of Marshall and Lincoln are identical; and their language is so similar that it seems not unlikely that Lincoln paraphrased this noble passage of Marshall and thus made it immortal. This probability is increased by the fact that Lincoln was a profound student of Marshall's Constitutional opinions and committed a great many of them to memory.The famous sentence of Lincoln's Gettysburg Address was, however, almost exactly given by Webster in his Reply to Hayne: "It is ... the people's Government; made for the people; made by the people; and answerable to the people." (Debates, 21st Cong. 1st Sess. 74; also Curtis, I, 355-61.) But both Lincoln and Webster merely stated in condensed and simpler form Marshall's immortal utterance in M'Cullochvs.Maryland. (See alsoinfra, chap.x.)

The famous sentence of Lincoln's Gettysburg Address was, however, almost exactly given by Webster in his Reply to Hayne: "It is ... the people's Government; made for the people; made by the people; and answerable to the people." (Debates, 21st Cong. 1st Sess. 74; also Curtis, I, 355-61.) But both Lincoln and Webster merely stated in condensed and simpler form Marshall's immortal utterance in M'Cullochvs.Maryland. (See alsoinfra, chap.x.)

[819]4 Wheaton, 405-06.

[820]4 Wheaton, 406-07. (Italics the author's.)

[821]Ib., 407-08.

[822]See vol.i, 72, of this work.

[823]4 Wheaton, 408-09.

[824]4 Wheaton, 409-10.

[825]Ib.411.

[826]"The Congress shall have Power ... to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." (Constitution of the United States, Articlei, Section 8.)

[827]4 Wheaton, 412.

[828]Ib.413.

[829]See vol.ii, 71, of this work.

[830]Vol.ii, 72-74, of this work.

[831]4 Wheaton, 414.

[832]4 Wheaton, 415.

[833]Ib.416-17.

[834]4 Wheaton, 417-18.

[835]4 Wheaton, 419-21.

[836]Ib.421.

[837]Ib.423.

[838]4 Wheaton, 424-25.

[839]4 Wheaton, 425-26.

[840]4 Wheaton, 426.

[841]Seesupra, 158et seq.

[842]4 Wheaton, 426.

[843]4 Wheaton, 427.

[844]Ib.429-30.

[845]4 Wheaton, 431.

[846]Ib.

[847]4 Wheaton, 432-33.

[848]4 Wheaton, 435-36.

[849]Ib.437.

[850]Story to his mother, March 7, 1819, Story,i, 325-26.

[851]Seeinfra, 420; also 325-27; 338-39, 534-37.

[852]Niles,xvi, 41-44.

[853]Ib.68-76.

[854]Seeinfra, chap.viii.

[855]Niles,xvi, 65.

[856]See vol.iii, 130-31, of this work.

[857]Niles,xvi, 65.

[858]Ib.97. For instance, theNatchez Press, in announcing its intention to print Marshall's whole opinion, says that, if his doctrine prevails, "the independence of the individual states ... is obliterated at one fell sweep." No country can remain free "that tolerates incorporated banks, in any guise." (Ib.210.)

[859]Ib.103.

[860]Ib.104.

[861]Niles,xvi, 105.

[862]Niles's attack on Marshall's opinion in M'Cullochvs.Maryland ran through three numbers. (Seeib.41-44; 103-05; 145-47.)

[863]Seesupra, 161-67.

[864]Marshall to Story, March 24, 1819,Proceedings, Mass, Hist. Soc.2d Series,xiv, 324.

[865]Seesupra, 146.

[866]Enquirer, March 30, 1819, as quoted inBranch Hist. Papers, June, 1905, 52-53.

[867]Branch Hist. Papers, June, 1905, 51-63.

[868]Enquirer, April 2, 1819, as quoted inBranch Hist. Papers, June, 1905, 76. (Italics the author's.)

[869]Enquirer, April 20, 1819, as quoted inib.76.

[870]Marshall to Story, May 27, 1819,Proceedings, Mass. Hist. Soc.2d Series,xiv, 325.

[871]Enquirer, June 11, 1819, as quoted inBranch Hist. Papers, June, 1905, footnote to 77.

[872]Enquirer, June 11, 1819, as quoted inBranch Hist. Papers, June, 1905, 77-82.

[873]Enquirer, June 15, 1819, as quoted inib.85; alsoEnquirer, June 18, 1819, as quoted inib.95.

[874]Enquirer, June 15, 1819, as quoted inib.91.

[875]Ib.87; alsoEnquirer, June 18, 1819, as quoted inib.96-97.

[876]Ib.98.

[877]Enquirer, June 22, 1819, as quoted inBranch Hist. Papers, June, 1905, 116.

[878]Ib.118.

[879]Ib.121. Madison endorsed Roane's attacks on Marshall. (See Madison to Roane, Sept. 2, 1819,Writings of James Madison: Hunt,viii, 447-53.)

[880]See Roane to his son, Jan. 4, 1819,Branch Hist. Papers, June, 1905, 134; and same to same, Feb. 4, 1819,ib.135.Eighteen days before Marshall delivered his opinion Roane again writes his son: "I have to-day deposited in the vaults of the Virga. bank a certificate in your name for 50 shares U. S. bank stock, as per memo., by Mr. Dandridge Enclosed. The shares cost, as you will see, $98 each." (Roane to his son, Feb. 16, 1810,ib.136.)

[880]See Roane to his son, Jan. 4, 1819,Branch Hist. Papers, June, 1905, 134; and same to same, Feb. 4, 1819,ib.135.

Eighteen days before Marshall delivered his opinion Roane again writes his son: "I have to-day deposited in the vaults of the Virga. bank a certificate in your name for 50 shares U. S. bank stock, as per memo., by Mr. Dandridge Enclosed. The shares cost, as you will see, $98 each." (Roane to his son, Feb. 16, 1810,ib.136.)

[881]Roane to his son, note 4, p. 317.

[882]The entire transaction is set out in letters of Benjamin Watkins Leigh to Nicholas Biddle, Aug. 21, Aug. 28, Sept. 4, and Sept. 13, 1837; and Biddle to Leigh, Aug. 24 and 25, Sept. 7 and Sept. 15, 1837. (Biddle MSS. in possession of Professor R. C. McGrane of the University of Ohio, to whose courtesy the author is indebted for the use of this material. These letters appear in full in theCorrespondence of Nicholas Biddle: McGrane, 283-89, 291-92, published in September, 1919, by Houghton Mifflin Company, Boston.)

[883]Marshall to Bushrod Washington, June 28, 1819. This letter is unsigned, but is in Marshall's unmistakable handwriting and is endorsed by Bushrod Washington, "C. Just. Marshall." (Marshall MSS. Lib. Cong.)

[884]Union, April 24, 1819.

[885]Union, April 24, 1819.

[886]Marshall means that Jefferson inspired Roane's attacks.

[887]Marshall had written five essays, but the editor condensed them into two numbers.

[888]Marshall to Story, May 27, 1819,Proceedings, Mass. Hist. Soc.2d Series,xiv, 325.

[889]Henry Wheaton, Reporter of the Supreme Court.

[890]Marshall to Story, July 13, 1819,Proceedings, Mass. Hist. Soc.2d Series,xiv, 326.

[891]Enquirer, Jan. 30, 1821.

[892]Ib.Feb. 1, 1821.

[893]Journal, House of Delegates, Virginia, 1819-20, 56-59.

[894]Ib.9.

[895]Ib.57.

[896]This resolution declared that Virginia assented to the Constitution only on condition that "Every powernot granted, remains with the people, and at their will; thattherefore no right of any denomination can be cancelled, abridged, restrained, or modified, by the congress, by the senate, or house of representatives acting in any capacity; by the President or any department, or officer of the United States, except in those instances in which power is given by the constitution for those purposes." (Journal, House of Delegates, Virginia, 1819-20, 58.)

[897]Journal, House of Delegates, Virginia, 1819-20, 59.

[898]Ib.76.

[899]Journal, House of Delegates, Virginia, 1819-20, 85.

[900]Ib.105.

[901]Ib.108-09.

[902]Ib.179.

[903]Ib.175-78.

[904]For Marshall's opinion in this controversy seeinfra, 347et seq.

[905]The second branch was established at Chillicothe.

[906]Chap. 83,Laws of Ohio, 1818-19, 1st Sess. 190-99.Section 5 of this act will give the student the spirit of this autocratic law. This section made it the "duty" of the State agent collecting the tax, after demand on and refusal of the bank officers to pay the tax, if he cannot readily find in the bank offices the necessary amount of money, "to go into each and any other room or vault ... and to every closet, chest, box or drawer in such banking house, to open and search," and to levy on everything found. (Ib.193.)

[906]Chap. 83,Laws of Ohio, 1818-19, 1st Sess. 190-99.

Section 5 of this act will give the student the spirit of this autocratic law. This section made it the "duty" of the State agent collecting the tax, after demand on and refusal of the bank officers to pay the tax, if he cannot readily find in the bank offices the necessary amount of money, "to go into each and any other room or vault ... and to every closet, chest, box or drawer in such banking house, to open and search," and to levy on everything found. (Ib.193.)

[907]A private letter to Niles says that when it was found that an injunction had been granted, the friends of the bank rejoiced, "wine was drank freely and mirth abounded." (Niles,xvii, 85.) This explains the otherwise incredible negligence of the bank's attorneys in the proceedings next day.

[908]Niles,xvii, 85-87, reprinting account as published in theChillicothe Supporter, Sept. 22, 1819, and theOhio Monitor, Sept. 25, 1819.

[909]Niles,xvii, 147.

[910]Ib.338.

[911]Report of Committee made to the Ohio Legislature and transmitted to Congress. (Annals, 16th Cong. 2d Sess. 1685et seq.)

[912]Annals, 16th Cong. 2d Sess. 1691.

[913]Annals, 16th Cong. 2d Sess. 1696-97.

[914]See vol.ii, 72-74, of this work.

[915]Annals, 16th Cong. 2d Sess. 1712.

[916]Ib.1713.

[917]Ib.1714.

[918]Seeinfra, chap.viiof this work.

[919]State Doc. Fed. Rel.: Ames, 90; and see Niles,xvi, 97, 132.

[920]Pennsylvania House of Representatives,Journal, 1819-20, 537;State Doc. Fed. Rel.: Ames, footnote to 90-91.

[921]Ib.

[922]Ib.91.

[923]Seeinfra, chap.x.

[924]State Doc. Fed. Rel.: Ames, 92-103.

[925]Ib.92, 101-03.

[926]Ib.91.

[927]Seeinfra, chap.x.

[928]See vol.ii, 397, of this work.

[929]Taylor:Construction Construed, and Constitutions Vindicated, 9.

[930]Taylor:Construction Construed, 11-12. Taylor does not, of course, call Marshall by name, either in this book or in his other attacks on the Chief Justice.

[931]Ib.15.

[932]Ib.16.

[933]Ib.18.

[934]Ib.25-26.

[935]Ib.28.

[936]Taylor:Construction Construed, 77.

[937]Ib.79.

[938]Ib.84.

[939]Ib.87.

[940]Taylor:Construction Construed, 89.

[941]Ib.161.

[942]Ib.233.

[943]Ib.237.It is interesting to observe that Taylor brands the protective tariff as one of the evils of Marshall's Nationalist philosophy. "It destroys the division of powers between federal and state governments, ... it violates the principles of representation, ... it recognizes a sovereign power over property, ... it destroys the freedom of labour, ... it taxes the great mass of capital and labour, to enrich the few; ... it increases the burden upon the people ... increases the mass of poverty; ... it impoverishes workmen and enriches employers; ... it increases the expenses of government, ... it deprives commerce of the freedom of exchanges, ... it corrupts congress ... generates the extremes of luxury and poverty." (Taylor:Construction Construed, 252-53.)

[943]Ib.237.

It is interesting to observe that Taylor brands the protective tariff as one of the evils of Marshall's Nationalist philosophy. "It destroys the division of powers between federal and state governments, ... it violates the principles of representation, ... it recognizes a sovereign power over property, ... it destroys the freedom of labour, ... it taxes the great mass of capital and labour, to enrich the few; ... it increases the burden upon the people ... increases the mass of poverty; ... it impoverishes workmen and enriches employers; ... it increases the expenses of government, ... it deprives commerce of the freedom of exchanges, ... it corrupts congress ... generates the extremes of luxury and poverty." (Taylor:Construction Construed, 252-53.)

[944]Seeinfra, 340-42; and seeinfra, chap.x.

[945]Taylor:Construction Construed, 314.

[946]Jefferson to Ritchie, Dec. 25, 1820,Works: Ford,xii, 176-78. He declined, however, to permit publication of his endorsement of Taylor's book. (Ib.)

Cannot the Union exist unless Congress and the Supreme Court shall make banks and lotteries? (John Taylor "of Caroline.")If a judge can repeal a law of Congress, by declaring it unconstitutional, is not this the exercise of political power? (Senator Richard M. Johnson.)The States must shield themselves and meet the invader foot to foot. (Jefferson.)The United States ... form a single nation. In war we are one people. In making peace we are one people. In all commercial regulations we are one and the same people. (Marshall.)The crisis has arrived contemplated by the framers of the Constitution. (Senator James Barbour.)

Cannot the Union exist unless Congress and the Supreme Court shall make banks and lotteries? (John Taylor "of Caroline.")

If a judge can repeal a law of Congress, by declaring it unconstitutional, is not this the exercise of political power? (Senator Richard M. Johnson.)

The States must shield themselves and meet the invader foot to foot. (Jefferson.)

The United States ... form a single nation. In war we are one people. In making peace we are one people. In all commercial regulations we are one and the same people. (Marshall.)

The crisis has arrived contemplated by the framers of the Constitution. (Senator James Barbour.)

The appeals of Niles, Roane, and Taylor, and the defiant attitude toward Nationalism of Virginia, Ohio, Pennsylvania, and other States, expressed a widespread and militant Localism which now manifested itself in another and still more threatening form. The momentous and dramatic struggle in Congress over the admission of Missouri quickly followed these attacks on Marshall and the Supreme Court.

Should that Territory come into the Union only on condition that slavery be prohibited within the new State, or should the slave system be retained? The clamorous and prophetic debate upon that question stirred the land from Maine to Louisiana. A division of the Union was everywhere discussed, and the right of a State to secede was boldly proclaimed.

In the House and Senate, civil war was threatened. "I fear this subject will be an ignited spark, which, communicated to an immense mass of combustion, will produce an explosion that will shake this Union to its centre.... The crisis has arrived, contemplatedby the framers of the Constitution.... This portentous subject, twelve months ago, was a little speck scarcely visible above the horizon; it has already overcast the heavens, obscuring every other object; materials are everywhere accumulating with which to render it darker."[947]In these bombastic, yet serious words Senator James Barbour of Virginia, when speaking on the Missouri question on January 14, 1820, accurately described the situation.

"I behold the father armed against the son, ... a brother's sword crimsoned with a brother's blood, ... our houses wrapt in flames," exclaimed Senator Freeman Walker of Georgia. "If Congress ... impose the restriction contemplated [exclusion of slavery from Missouri], ... consequences fatal to the peace and harmony of this Union will ... result."[948]Senator William Smith of South Carolina asked "if, under the misguided influence of fanaticism and humanity, the impetuous torrent is once put in motion, what hand short of Omnipotence can stay it?"[949]In picturing the coming horrors Senator Richard Mentor Johnson of Kentucky declared that "the heart sickens, the tongue falters."[950]

In the House was heard language even more sanguinary. "Let gentlemen beware!" exclaimed Robert Raymond Reid of Georgia; for to put limits on slavery was to implant "envy, hatred, and bitter reproaches, which

'Shall grow to clubs and naked swords,To murder and to death.'...

Sir, the firebrand, which is even now cast into your society, will require blood ... for its quenching."[951]

Only a few Northern members answered with spirit. Senator Walter Lowrie of Pennsylvania preferred "a dissolution of this Union" rather than "the extension of slavery."[952]Daniel Pope Cook of Illinois avowed that "the sound of disunion ... has been uttered so often in this debate, ... that it is high time ... to adopt measures to prevent it.... Such declarations ... will have no ... effect upon me.... Is it ... the intention of gentlemen to arouse ... the South to rebellion?"[953]For the most part, however, Northern Representatives were mild and even hopeful.[954]

Such was the situation concerning which John Marshall addressed the American people in his epochal opinion in the case of Cohensvs.Virginia. The noble passages of that remarkable state paper were inspired by, and can be understood only in the light of, the crisis that produced them. Not in the mere facts of that insignificant case, not in the precise legal points involved, is to be found theinspiration of Marshall's transcendent effort on this occasion. Indeed, it is possible, as the Ohio Legislature and the Virginia Republican organization soon thereafter charged, that Cohensvs.Virginia was "feigned" for the purpose of enabling Marshall to assert once more the supremacy of the Nation.

If the case came before Marshall normally, without design and in the regular course of business, it was an event nothing short of providential. If, on the contrary, it was "arranged" so that Marshall could deliver his immortal Nationalist address, never was such contrivance so thoroughly justified. While the legal profession has always considered this case to be identical, judicially, with that of Martinvs.Hunter's Lessee, it is, historically, a part of M'Cullochvs.Maryland and of Osbornvs.The Bank. The opinion of John Marshall in the Cohens case is one of the strongest and most enduring strands of that mighty cable woven by him to hold the American people together as a united and imperishable nation.

Fortunate, indeed, for the Republic that Marshall's fateful pronouncement came forth at such a critical hour, even if technicalities were waived in bringing before him a case in which he could deliver that opinion. For, in conjunction with his exposition in M'Cullochvs.Maryland, it was the most powerful answer that could be given, and from the source of greatest authority, to that defiance of the National Government and to the threats of disunion then growing ever bolder and more vociferous. Marshall's utterances did not still those hostile voices, it is true, but they gave strength and courage to Nationalistsand furnished to the champions of the Union arguments of peculiar force as coming from the supreme tribunal of the Nation.

Could John Marshall have seen into the future he would have beheld Abraham Lincoln expounding from the stump to the farmers of Illinois, in 1858, the doctrines laid down by himself in 1819 and 1821.

Briefly stated, the facts in the case of Cohensvs.Virginia were as follows: The City of Washington was incorporated under an act of Congress[955]which, among other things, empowered the corporation to "authorize the drawing of lotteries for effecting any important improvements in the city which the ordinary funds or revenue thereof will not accomplish," to an amount not to exceed ten thousand dollars, the object first to be approved by the President.[956]Accordingly a city ordinance was passed, creating "The National Lottery" and authorizing it to sell tickets and conduct drawings.

By an act of the Virginia Legislature[957]the purchase or sale within the State of lottery tickets, except those of lotteries authorized by the laws of Virginia, was forbidden under penalty of a fine of one hundred dollars for each offense.

On June 1, 1820, "P. J. & M. J. Cohen, ... being evil-disposed persons," violated the Virginia statute by selling to one William H. Jennings in the Borough of Norfolk two half and four quarter lottery tickets "of the National Lottery, to be drawn in the city of Washington, that being a lottery not authorized by the laws of this commonwealth," as the information of James Nimmo, the prosecuting attorney, declared.[958]

At the quarterly session of the Court of Norfolk, held September 2, 1820, the case came on for hearing before the Mayor, Recorder, and Aldermen of said borough and was decided upon an agreed case "in lieu of a special verdict," which set forth the sale of the lottery tickets, the Virginia statute, the act of Congress incorporating the City of Washington, and the fact that the National Lottery had been established under that act.[959]The Norfolk Court found the defendants guilty and fined them in the sum of one hundred dollars. This paltry amount could not have paid one twentieth part of the fees which the eminent counsel who appeared for the Cohens would, ordinarily, have charged.[960]The case was carried to the Supreme Court on a writ of error.

On behalf of Virginia, Senator James Barbour of that State[961]moved that the writ of error be dismissed, and upon this motion the main arguments were made and Marshall's principal opinion delivered. In concluding his argument, Senator Barbour came near threatening secession, as he had done in the Senate: "Nothing can so much endanger it [the National Government] as exciting the hostility of the state governments. With them it is to determine how long this government shall endure."[962]

In opening for the Cohens, David B. Ogden of New York denied that "there is any such thing as a sovereign state, independent of the Union." The authority of the Supreme Court "extends ... to all cases arising under the constitution, laws, and treaties of the United States."[963]Cohensvs.Virginia was such a case.

Upon the supremacy of the Supreme Court over State tribunals depended the very life of the Nation, declared William Pinkney, who appeared as the principal counsel for the Cohens. Give up the appellate jurisdiction of National courts "from the decisions of the state tribunals" and "every other branch of federal authority might as well be surrendered. To part with this, leaves the Union a mere league or confederacy."[964]Long, brilliantly, convincingly, didPinkney speak. The extreme State Rights arguments were, he asserted, "too wild and extravagant"[965]to deserve consideration.

Promptly Marshall delivered the opinion of the court on Barbour's motion to dismiss the writ of error. The points made against the jurisdiction of the Supreme Court were, he said: "1st. That a state is a defendant. 2d. That no writ of error lies from this court to a state court. 3d. ... that this court ... has no right to review the judgment of the state court, because neither the constitution nor any law of the United States has been violated by that judgment."[966]

The first two points "vitally ... affect the Union," declared the Chief Justice, who proceeds to answer the reasoning of the State judges when, in Huntervs.Fairfax's Devisee, they hurled at the Supreme Court Virginia's defiance of National authority.[967]Marshall thus states the Virginia contentions: That the Constitution has "provided no tribunal for the final construction of itself, or of the laws or treaties of the nation; but that this power may be exercised ... by the courts of every state of the Union. That the constitution, laws, and treaties, may receive as many constructions as there are states; and that this is not a mischief, or, if a mischief, is irremediable."[968]

Why was the Constitution established? Because the "American States, as well as the American people, have believed a close and firm Union to be essential to their liberty and to their happiness. Theyhave been taught by experience, that this Union cannot exist without a government for the whole; and they have been taught by the same experience that this government would be a mere shadow, that must disappoint all their hopes, unless invested with large portions of that sovereignty which belongs to independent states."[969]

The very nature of the National Government leaves no doubt of its supremacy "in all cases where it is empowered to act"; that supremacy was also expressly declared in the Constitution itself, which plainly states that it, and laws and treaties made under it, "'shall be the supreme law of the land; and the judges in every state shall be bound thereby; anything in the constitution or laws of any state to the contrary notwithstanding.'"

This supremacy of the National Government is a Constitutional "principle." And why were "ample powers" given to that Government? The Constitution answers: "In order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defense, promote the general welfare."[970]

The "limitations on the sovereignty of the states" were made for the same reason that the "supreme government" of the Nation was endowed with its broad powers. In addition to express limitations on State "sovereignty" were many instances "where, perhaps,no other power is conferred on Congress than a conservative power to maintain the principlesestablished in the constitution. The maintenance of theseprinciples in their purity, is certainly among the great duties of the government."[971]

Marshall had been Chief Justice of the United States for twenty years, and these were the boldest and most extreme words that he had spoken during that period. Like all men of the first rank, Marshall met in a great way, and without attempt at compromise, a great issue that could not be compromised—an issue which, everywhere, at that moment, was challenging the existence of the Nation. There must be no dodging, no hedging, no equivocation. Instead, there must be the broadest, frankest, bravest declaration of National powers that words could express. For this reason Marshall said that these powers might be exercised even as a result of "a conservative power" in Congress "to maintain the principles established in the constitution."

The Judicial Department is an agency essential to the performance of the "great duty" to preserve those "principles." "It is authorized to decide all cases of every description, arising under the constitution or laws of the United States." Those cases in which a State is a party are not excepted. There are cases where the National courts are given jurisdiction solely because a State is a party, and regardless of the subject of the controversy; but in all cases involving the Constitution, laws, or treaties of the Nation, the National tribunals have jurisdiction, regardless of parties.[972]

"Principles" drawn from the very "nature of government" require that "the judicial power ...must be co-extensive with the legislative, and must be capable of deciding every judicial question which grows out of the constitution and laws"—not that "it is fit that it should be so; but ... that this fitness" is an aid to the right interpretation of the Constitution.[973]

What will be the result if Virginia's attitude is confirmed? Nothing less than the prostration of the National Government "at the feet of every state in the Union.... Each member will possess a veto on the will of the whole." Consider the country's experience. Assumption[974]had been deemed unconstitutional by some States; opposition to excise taxes had produced the Whiskey Rebellion;[975]other National statutes "have been questioned partially, while they were supported by the great majority of the American people."[976]There can be no assurance that such divergent and antagonistic actions may not again be taken. State laws in conflict with National laws probably will be enforced by State judges, since they are subject to the same prejudices as are the State Legislatures—indeed, "in many states the judges are dependent for office and for salary on the will of the legislature."[977]

The Constitution attaches first importance to the "independence" of the Judiciary; can it have been intended to leave to State "tribunals, where this independence may not exist," cases in which "a state shall prosecute an individual who claims the protection of an act of Congress?" Marshall givesexamples of possible collisions between National and State authority, in ordinary times, as well as in exceptional periods.[978]Even to-day it is obvious that the Chief Justice was denouncing the threatened resistance by State officials to the tariff laws, a fact of commanding importance at the time when Marshall's opinion in Cohensvs.Virginia was delivered.

At this point he rises to the heights of august eloquence: "A constitution is framed for ages to come, and is designed to approach immortality as nearly as human institutions can approach it. Its course cannot always be tranquil. It is exposed to storms and tempests, and its framers must be unwise statesmen indeed, if they have not provided it ... with the means of self-preservation from the perils it may be destined to encounter. No government ought to be so defective in its organization as not to contain within itself the means of securing the execution of its own laws against other dangers than those which occur every day."

Marshall is here replying to the Southern threats of secession, just as he rebuked the same spirit when displayed by his New England friends ten years earlier.[979]Then turning to the conflict of courts, he remarks, as though the judicial collision is all that he has in mind: "A government should repose on its own courts, rather than on others."[980]

He recalls the state of the country under the Confederation when requisitions on the States were"habitually disregarded," although they were "as constitutionally obligatory as the laws enacted by the present Congress." In view of this fact is it improbable that the framers of the Constitution meant to give the Nation's courts the power of preserving that Constitution, and laws made in pursuance of it, "from all violation from every quarter, so far as judicial decisions can preserve them"?[981]

Virginia contends that if States wish to destroy the National Government they can do so much more simply and easily than by judicial decision—"they have only not to elect senators, and it expires without a struggle"; and that therefore the destructive effect on the Nation of decisions of State courts cannot be taken into account when construing the Constitution.

To this Marshall makes answer: "Whenever hostility to the existing system shall become universal, it will be also irresistible. The people made the constitution, and the people can unmake it. It is the creature of their own will, and lives only by their will. But this supreme and irresistible power to make or to unmake, resides only in the whole body of the people; not in any sub-division of them. The attempt of any of the parts to exercise it is usurpation, and ought to be repelled by those to whom the people have delegated their power of repelling it. The acknowledged inability of the government, then, to sustain itself against the public will, and, by force or otherwise, to control the whole nation, is no sound argument in support of its constitutionalinability to preserve itself against a section of the nation acting in opposition to the general will."[982]

This is a direct reply to the Southern arguments in the Missouri debate which secessionists were now using wherever those who opposed National laws and authority raised their voices. John Marshall is blazing the way for Abraham Lincoln. He speaks of a "section" instead of a State. The Nation, he says, may constitutionally preserve itself "against a section." And this right of the Nation rests on "principles" inherent in the Constitution. But in Cohensvs.Virginia no "section" was arrayed against the Nation—on the record there was nothing but a conflict of jurisdiction of courts, and this only by a strained construction of a municipal lottery ordinance into a National law.

The Chief Justice is exerting to the utmost his tremendous powers, not to protect two furtive peddlers of lottery tickets, but to check a powerful movement that, if not arrested, must destroy the Republic. Should that movement go forward thereafter, it must do so over every Constitutional obstacle which the Supreme Court of the Nation could throw in its way. In Cohensvs.Virginia, John Marshall stamped upon the brow of Localism the brand of illegality. If this is not the true interpretation of his opinion in that case, all of the exalted language he used is mere verbiage.

Marshall dwells on "the subordination of the parts to the whole." The one great motive for establishing the National Judiciary "was the preservation of the constitution and laws of the United States, so far as they can be preserved by judicial authority."[983]

Returning to the technical aspects of the controversy, Marshall points out that the Supreme Court plainly has appellate jurisdiction of the Cohens case: "If a state be a party, the jurisdiction of this court is original; if the case arise under a [National] constitution or a [National] law, the jurisdiction is appellate. But a case to which a state is a party may arise under the constitution or a law of the United States."[984]That would mean a double jurisdiction. Marshall, therefore, shows, at provoking length,[985]that the appellate jurisdiction of the Supreme Court "in all cases arising under the constitution, laws, or treaties of the United States, was not arrested by the circumstance that a state was a party";[986]and in this way he explains that part of his opinion in Marburyvs.Madison, in which he reasoned that Section 13 of the Ellsworth Judiciary Act was unconstitutional.[987]

Marshall examines the Eleventh Amendment and becomes, for a moment, the historian, a rôle in which he delighted. "The states were greatly indebted" at the close of the Revolution; the Constitution was opposed because it was feared that their obligations would be collected in the National courts. This very thing happened. "The alarm was general; and, to quiet the apprehensions that were so extensively entertained, this amendmentwas ... adopted." But "its motive was not to maintain the sovereignty of a state from the degradation supposed to attend a compulsory appearance before the tribunal of the nation." It was to prevent creditors from suing a State—"no interest could be felt in so changing the relations between the whole and its parts, as to strip the government of the means of protecting, by the instrumentality of its courts, the constitution and laws from active violation."[988]

Back to Index Next