David Trimble of Kentucky declared that "no nation ought to submit, to an umpire of minorities.[1103]... If less than three-fourths of the States cannot amend the Constitution, less than three-fourths of the judges ought not to construe it"—for judicial constructions are "explanatory amendments" by which "the person and property of every citizen must stand or fall."[1104]
So strong had been the sentiment for placing some restraint on the National Judiciary that Webster,astute politician and most resourceful friend of the Supreme Court, immediately offered a resolution that, in any cause before the Supreme Court where the validity of a State law or Constitution is drawn in question "on the ground of repugnancy to the Constitution, treaties, or laws, of the United States, no judgment shall be pronounced or rendered until a majority of all the justices ... legally competent to sit, ... shall concur in the opinion."[1105]
But Marshall's opinion in Gibbonsvs.Ogden[1106]had now reached the whole country and, for the time being, changed popular hostility to the Supreme Court into public favor toward it. The assault in Congress died away and Webster allowed his soothing resolution to be forgotten. When the attack on the National Judiciary was again renewed, the language of its adversaries was almost apologetic.
FOOTNOTES:[947]Annals, 16th Cong. 1st Sess. 107-08.[948]Ib.175.[949]Ib.275.[950]Ib.359.[951]Annals, 16th Cong. 1st Sess. 1033.[952]Ib.209. The Justices of the Supreme Court followed the proceedings in Congress with the interest and accuracy of politicians. (See, for example, Story's comments on the Missouri controversy, Story to White, Feb. 27, 1820, Story,i, 362.)[953]Annals, 16th Cong. 1st Sess. 1106-07.[954]For instance, Joshua Cushman of Massachusetts was sure that, instead of disunion, "the Canadas, with New Brunswick and Nova Scotia, allured by the wisdom and beneficence of our institutions, will stretch out their hands for an admission into this Union. The Floridas will become a willing victim. Mexico will mingle her lustre with the federal constellation. South America ... will burn incense on our ... altar. The Republic of the United States shall have dominion from sea to sea, ... from the river Columbia to the ends of the earth. The American Eagle ... will soar aloft to the stars of Heaven." (Ib.1309.)[955]May 3, 1802,U.S. Statutes at Large. This act, together with a supplementary act (May 4, 1812,ib.), is a vivid portrayal of a phase of the life of the National Capital at that period. See especially Sectionvi.[956]Lotteries had long been a favorite method of raising funds for public purposes. As a member of the Virginia House of Delegates, Marshall had voted for many lottery bills. (See vol.ii, footnote 1, to 56, of this work.) For decades after the Constitution was adopted, lotteries were considered to be both moral and useful.[957]Effective January 21, 1820.[958]6 Wheaton, 266-67.[959]Ib.268-90.[960]William Pinkney was at this time probably the highest paid lawyer in America. Five years before he argued the case of Cohensvs.Virginia, his professional income was $21,000 annually (Story to White, Feb. 26, 1816, Story,i, 278), more than four times as much as Marshall ever received when leader of the Richmond bar (see vol.ii, 201, of this work). David B. Ogden, the other counsel for the Cohens, was one of the most prominent and successful lawyers of New York. See Warren, 303-04.Another interesting fact in this celebrated case is that the Norfolk Court fined the Cohens the minimum allowed by the Virginia statute. They could have been fined at least $800, $100 for each offense—perhaps should have been fined that amount had the law been strictly observed. Indeed, the Virginia Act permitted a fine to the extent of "the whole sum of money proposed to be raised by such lottery." (6 Wheaton, 268.)[961]Barbour declined a large fee offered him by the State. (Grigsby:Virginia Convention of 1829-30.)[962]6 Wheaton, 344.[963]Ib.347.[964]Ib.354.[965]6 Wheaton, 375. For a better report of Pinkney's speech see Wheaton:Pinkney, 612-16.[966]Ib.376.[967]Seesupra, 157-58.[968]6 Wheaton, 377.[969]6 Wheaton, 380.[970]Ib.381.[971]6 Wheaton, 382. (Italics the author's.)[972]Ib.382.[973]6 Wheaton, 384-85. (Italics the author's.)[974]See vol.ii, 66, of this work.[975]6 Wheaton, 87.[976]Ib.385-86.[977]Ib.387.[978]6 Wheaton, 386-87.[979]See U.S.vs.Peters,supra, 18et seq.[980]6 Wheaton, 387-88.[981]6 Wheaton, 388.[982]6 Wheaton, 389-90.[983]6 Wheaton, 390-91.[984]Ib.393.[985]Ib.394-404.[986]Ib.405.[987]See vol.iii, 127-28, of this work.[988]6 Wheaton, 406-07.[989]Ib.413.[990]6 Wheaton, 413-14.[991]Fairfax's Deviseevs.Hunter,supra, 157-60.[992]6 Wheaton, 420.[993]Ib.424.[994]Ib.425-26.[995]6 Wheaton, 429.[996]Ib.445-47.[997]Ambler:Ritchie, 81.[998]Enquirer, May 25, 1821, as quoted inBranch Hist. Papers, June, 1906, 78, 85.[999]Enquirer, May 25 and May 29, 1821, as quoted inib.89, 100.[1000]Enquirer, May 29, 1821, as quoted inib.101.[1001]Enquirer, June 21, 1821, as quoted inib.110.[1002]Branch Hist. Papers, June, 1906, 119.[1003]Ib.123-24.[1004]Enquirer, June 5, 1821, as quoted inBranch Hist. Papers, June, 1906, 146-47.[1005]Ib.182-83.[1006]Marshall to Story, June 15, 1821,Proceedings, Mass. Hist. Soc.2d Series,xiv, 327-28.[1007]Marshall refers to three papers published in theEnquirerof May 15 and 22, and June 22, the first two signed "Somers" and the third signed "Fletcher of Saltoun." It is impossible to discover who these writers were. Their essays, although vicious, are so dull as not to be worth the reading, though Jefferson thought them "luminous and striking." (Jefferson to Johnson, June 12, 1823,Works: Ford,xii, 252, footnote.)"Somers," however, is compelled to admit the irresistible appeal of Marshall's personality. "Superior talents and address will forever attract the homage of inferior minds." (Enquirer, May 15, 1821.)"The Supreme court ... have rendered the constitution the sport of legal ingenuity.... Its meaning is locked up from the profane vulgar, and distributed only by the high priests of the temple." (Ib.May 22, 1821.)"Fletcher of Saltoun" is intolerably verbose: "The victories ... of courts ... though bloodless, are generally decisive.... The progress of the judiciary, though slow, is steady and untiring as the foot of time."The people act as though hypnotized, he laments—"the powerful mind of the chief justice has put forth its strength, and we are quiet as if touched by the wand of enchantment;—we fall prostrate before his genius as though we had looked upon the dazzling brightness of the shield of Astolfo.—Triumphant indeed has been this most powerful effort of his extraordinary mind. His followers exult—those who doubted, have yielded; even the faithful are found wavering, and the unconvinced can find no opening in his armor of defense."This writer points out Marshall's "abominable inconsistencies," but seems to be himself under the spell of the Chief Justice: "I mention not this to the disadvantage of the distinguished individual who has pronounced these conflicting opinions. No man can have a higher respect for the virtues of his character, or greater admiration of the powers of his mind."Alas for the change that time works upon the human intellect! Consider Marshall, the young man, and Marshall, the Chief Justice! "How little did he, at that early day, contemplate the possibility of his carrying the construction of the constitution to an extent so far beyond even what he then renounced!" [sic.]Thereupon "Fletcher of Saltoun" plunges into an ocean of words concerning Hamilton's theories of government and Marshall's application of them. He announces this essay to be the first of a series; but, luckily for everybody, this first effort exhausted him. Apparently he, too, fell asleep under Marshall's "wand," for nothing more came from his drowsy pen. (Ib.June 22, 1821.)[1008]Marshall to Story, July 13, 1821,Proceedings, Mass. Hist. Soc.2d Series,xiv, 329.[1009]Jefferson to Jarvis, Sept. 28, 1820,Works: Ford,xii, 162-63.[1010]Marshall to Story, July 13, 1821,Proceedings, Mass. Hist. Soc.2d Series,xiv, 328-29.[1011]Same to same, Sept. 18, 1821,ib.330.[1012]Marshall to Story, July 13, 1821,Proceedings, Mass. Hist. Soc.2d Series,xiv, 329-30.[1013]Marshall to Story, July 13, 1821,Proceedings, Mass. Hist. Soc.2d Series,xiv, 330-31.[1014]Taylor:Tyranny Unmasked, 89.[1015]This was Madison's idea. See vol.i, 312, of this work.[1016]Taylor:Tyranny Unmasked, 33.[1017]M'Cullochvs.Maryland.[1018]Martinvs.Hunter's Lessee and Cohensvs.Virginia.[1019]Cohensvs.Virginia.[1020]Taylor:Tyranny Unmasked, 132-33.[1021]Taylor:Tyranny Unmasked, 133-254. Taylor was the first to state fully most of the arguments since used by the opponents of protective tariffs.[1022]Ib.260.[1023]Ib.285.[1024]Ib.305.[1025]Ib.341.[1026]Jefferson to Thweat, Jan. 19, 1821,Works: Ford,xii, 196-97.Wirt, though a Republican, asserted that "the functions to be performed by the Supreme Court ... are among the most difficult and perilous which are to be performed under the Constitution. They demand the loftiest range of talents and learning and a soul of Roman purity and firmness. The questions which come before them frequently involve the fate of the Constitution, the happiness of the whole nation." (Wirt to Monroe, May 5, 1823, Kennedy,ii, 153.)Wirt, in this letter, was urging the appointment of Kent to the Supreme Bench, notwithstanding the Federalism of the New York Chancellor. "Federal politics are no way dangerous on the bench of the Supreme Court," adds Wirt. (Ib.155.)[1027]His strange failure to come to Roane's support in the fight, over the Judiciary amendments to the Constitution, in the Virginia Legislature during the session of 1821-22. (Seeinfra, 371.)[1028]Jefferson to Johnson, June 12,1823,Works: Ford,xii, footnote to 255-56.[1029]Jefferson to Livingston, March 25, 1825, Hunt:Livingston, 295-97.[1030]Annals, 17th Cong. 1st Sess. 68.[1031]Roane to Thweat, Dec. 24, 1821, Jefferson MSS. Lib. Cong.[1032]Annals, 17th Cong. 1st Sess. 69-70.[1033]Ib.71-72.[1034]Annals, 17th Cong. 1st Sess. 74-75.[1035]Ib.79.[1036]Ib.79-80.[1037]Annals, 17th Cong. 1st Sess. 84-90.[1038]Webster to Story, Jan. 14, 1822,Priv. Corres.: Webster,i, 320.[1039]Ordinance of Separation, 1789.[1040]Act of Feb. 27,Laws of Kentucky, 1797: Littell, 641-45. See also Act of Feb. 28 (ib.652-71), apparently on a different subject; and, especially, Act of March 1 (ib.682-87). Compare Act of 1796 (ib.392-420); and Act of Dec. 19, 1796 (ib.554-57). See also inib.general land laws.[1041]8 Wheaton, 11-12. (Italics the author's.)[1042]Ib.18.[1043]Annals, 17th Cong. 1st Sess. 96-98.[1044]Annals, 17th Cong. 1st Sess. 102.[1045]Ib.103.[1046]Ib.104.[1047]Ib.108.[1048]Georgia, Fletchervs.Peck (see vol.iii, chap,x, of this work); Pennsylvania, U.S.vs.Peters (supra, chap.i); New Jersey, New Jerseyvs.Wilson (supra, chap.v); New Hampshire, Dartmouth Collegevs.Woodward (supra, chap.v); New York, Sturgesvs.Crowninshield (supra, chap.iv); Maryland, M'Cullochvs.Maryland (supra, chap.vi); Virginia, Cohensvs.Virginia (supra, chap.vii); Kentucky, Greenvs.Biddle (supra, this chapter).[1049]Annals, 17th Cong. 1st Sess. 113.[1050]Niles,xxi, 404.[1051]Ib.The resolutions, offered by John Wayles Eppes, Jefferson's son-in-law, "instructed" Virginia's Senators and requested her Representatives in Congress to "procure" these amendments to the Constitution:1. The judicial power shall not extend to any power "not expressly granted ... orabsolutelynecessary for carrying the same into execution."2. Neither the National Government nor any department thereof shall have power to bind "conclusively" the States in conflicts between Nation and State.3. The judicial power of the Nation shall never include "anycase in which a State shall be a party," except controversies between States; nor cases involving the rights of a State "to which such a state shall ask to become a party."4. No appeal to any National court shall be had from the decisions of any State court.5. Laws applying to the District of Columbia or the Territories, which conflict with State laws, shall not be enforceable within State jurisdiction. (Niles,xxi, 404.)[1052]Annals, 17th Cong. 1st Sess. 1682.[1053]Ib., 18th Cong. 1st Sess. 28.[1054]Annals, 18th Cong. 1st Sess. 336.[1055]Ib.419.[1056]Ib.915.[1057]Webster, from the Judiciary Committee, which he seems to have dominated, merely reported that Wickliffe's proposed reform was "not expedient." (Annals, 18th Cong. 1st Sess. 1291.)[1058]March 7 to 13, 1822, inclusive.[1059]8 Wheaton, 75.[1060]8 Wheaton, 93. Johnson dissented. (Ib.94-107.) Todd of Kentucky was absent because of illness, a circumstance that greatly worried Story, who wrote the sick Justice: "We have missed you exceedingly during the term and particularly in the Kentucky causes.... We have had ... tough business" and "wanted your firm vote on many occasions." (Story to Todd, March 24, 1823, Story,i, 422-23.)[1061]Niles,xxv, 203-05.[1062]Ib.206.[1063]Niles,xxv, 205.[1064]Ib.261.[1065]Ib.275-76.[1066]Ib.xxix, 228-29.[1067]Ib.xxv, 12; and see Elkisonvs.Deliesseline, 8Federal Cases, 493.[1068]Niles,xxv, 13-16.[1069]Ib.12; and see especiallyib.xxvii, 242-43.[1070]Marshall to Story, Sept. 26, 1823, Story MSS. Mass. Hist. Soc.[1071]Niles,xxvii, 242. The Senate of South Carolina resolved by a vote of six to one that the duty of the State to "guard against insubordination or insurrection among our colored population ... is paramount to alllaws, alltreaties, allconstitutions... and will never, by this state, be renounced, compromised, controlled or participated with any power whatever."Johnson's decision is viewed as "an unconstitutional interference" with South Carolina's slave system, and the State "will, on this subject, ... make common cause with ... other southern states similarly circumstanced in this respect." (Niles,xxvii, 264.) The House rejected the savage language of the Senate and adopted resolutions moderately worded, but expressing the same determination. (Ib.292.)[1072]For the facts in Osbornvs. The Bank of the United States, seesupra, 328-329.[1073]See, for instance, speech of John Carter of South Carolina. (Annals, 18th Cong. 1st Sess. 2097; and upon this subject, generally, seeinfra, chap.x.)[1074]Who appeared for Ohio on the first argument is not disclosed by the records.[1075]9 Wheaton, 795-96.[1076]9 Wheaton, 818-19.[1077]Ib.819-21.[1078]9 Wheaton, 823.[1079]Ib.823-24.[1080]Ib.824-25.[1081]9 Wheaton, 846-47.[1082]Ib.847.[1083]Marshall here refers to threats to resist forcibly the execution of the Tariff of 1824. Seeinfra, 535-36.[1084]9 Wheaton, 847-48.[1085]9 Wheaton, 848-49.[1086]9 Wheaton, 849.[1087]Ib.852-53.[1088]9 Wheaton, 857. (Italics the author's.)[1089]Ib.858.[1090]Seesupra, chap, VI.[1091]9 Wheaton, 859.[1092]Ib.859-60.[1093]9 Wheaton, 861-62.[1094]Ib.862-63.[1095]9 Wheaton, 866.[1096]Ib.868-69.[1097]Ib.871.[1098]9 Wheaton, 871-72. (Italics the author's.) In reality Johnson is here referring to the threats of physical resistance to the proposed tariff law of 1824. (Seeinfra, chap.x.)[1099]Ib.875-903.[1100]Annals, 18th Cong. 1st Sess. 2514.[1101]Ib.2519-20.[1102]Ib.2527. This debate was most scantily reported. Webster wrote of it: "We had the Supreme Court before us yesterday.... A debate arose which lasted all day. Cohensv.Virginia, Green and Biddle, &c. were all discussed.... The proposition for the concurrence of five judges will not prevail." (Webster to Story, May 4, 1824,Priv. Corres.: Webster,i, 350.)[1103]Annals, 18th Cong. 1st Sess. 2538.[1104]Ib.2539.[1105]Annals, 18th Cong. 1st Sess. 2541.Throughout this session Webster appears to have been much disturbed. For example, as early as April 10, 1824, he writes Story: "I am exhausted. When I look in the glass, I think of our old New England saying, 'As thin as a shad.' I have not vigor enough left, either mental or physical, to try an action for assault and battery.... I shall call up some bills reported by our [Judiciary] committee.... The gentlemen of the West will propose a clause, requiring the assent of a majority of all the judges to a judgment, which pronounces a state law void, as being in violation of the constitution or laws of the United States. Do you see any great evil in such a provision? Judge Todd told me he thought it would give great satisfaction in the West. In what phraseology would you make such a provision?" (Webster to Story, April 10, 1824,Priv. Corres.: Webster,i, 348-49.)[1106]See next chapter.
[947]Annals, 16th Cong. 1st Sess. 107-08.
[947]Annals, 16th Cong. 1st Sess. 107-08.
[948]Ib.175.
[948]Ib.175.
[949]Ib.275.
[949]Ib.275.
[950]Ib.359.
[950]Ib.359.
[951]Annals, 16th Cong. 1st Sess. 1033.
[951]Annals, 16th Cong. 1st Sess. 1033.
[952]Ib.209. The Justices of the Supreme Court followed the proceedings in Congress with the interest and accuracy of politicians. (See, for example, Story's comments on the Missouri controversy, Story to White, Feb. 27, 1820, Story,i, 362.)
[952]Ib.209. The Justices of the Supreme Court followed the proceedings in Congress with the interest and accuracy of politicians. (See, for example, Story's comments on the Missouri controversy, Story to White, Feb. 27, 1820, Story,i, 362.)
[953]Annals, 16th Cong. 1st Sess. 1106-07.
[953]Annals, 16th Cong. 1st Sess. 1106-07.
[954]For instance, Joshua Cushman of Massachusetts was sure that, instead of disunion, "the Canadas, with New Brunswick and Nova Scotia, allured by the wisdom and beneficence of our institutions, will stretch out their hands for an admission into this Union. The Floridas will become a willing victim. Mexico will mingle her lustre with the federal constellation. South America ... will burn incense on our ... altar. The Republic of the United States shall have dominion from sea to sea, ... from the river Columbia to the ends of the earth. The American Eagle ... will soar aloft to the stars of Heaven." (Ib.1309.)
[954]For instance, Joshua Cushman of Massachusetts was sure that, instead of disunion, "the Canadas, with New Brunswick and Nova Scotia, allured by the wisdom and beneficence of our institutions, will stretch out their hands for an admission into this Union. The Floridas will become a willing victim. Mexico will mingle her lustre with the federal constellation. South America ... will burn incense on our ... altar. The Republic of the United States shall have dominion from sea to sea, ... from the river Columbia to the ends of the earth. The American Eagle ... will soar aloft to the stars of Heaven." (Ib.1309.)
[955]May 3, 1802,U.S. Statutes at Large. This act, together with a supplementary act (May 4, 1812,ib.), is a vivid portrayal of a phase of the life of the National Capital at that period. See especially Sectionvi.
[955]May 3, 1802,U.S. Statutes at Large. This act, together with a supplementary act (May 4, 1812,ib.), is a vivid portrayal of a phase of the life of the National Capital at that period. See especially Sectionvi.
[956]Lotteries had long been a favorite method of raising funds for public purposes. As a member of the Virginia House of Delegates, Marshall had voted for many lottery bills. (See vol.ii, footnote 1, to 56, of this work.) For decades after the Constitution was adopted, lotteries were considered to be both moral and useful.
[956]Lotteries had long been a favorite method of raising funds for public purposes. As a member of the Virginia House of Delegates, Marshall had voted for many lottery bills. (See vol.ii, footnote 1, to 56, of this work.) For decades after the Constitution was adopted, lotteries were considered to be both moral and useful.
[957]Effective January 21, 1820.
[957]Effective January 21, 1820.
[958]6 Wheaton, 266-67.
[958]6 Wheaton, 266-67.
[959]Ib.268-90.
[959]Ib.268-90.
[960]William Pinkney was at this time probably the highest paid lawyer in America. Five years before he argued the case of Cohensvs.Virginia, his professional income was $21,000 annually (Story to White, Feb. 26, 1816, Story,i, 278), more than four times as much as Marshall ever received when leader of the Richmond bar (see vol.ii, 201, of this work). David B. Ogden, the other counsel for the Cohens, was one of the most prominent and successful lawyers of New York. See Warren, 303-04.Another interesting fact in this celebrated case is that the Norfolk Court fined the Cohens the minimum allowed by the Virginia statute. They could have been fined at least $800, $100 for each offense—perhaps should have been fined that amount had the law been strictly observed. Indeed, the Virginia Act permitted a fine to the extent of "the whole sum of money proposed to be raised by such lottery." (6 Wheaton, 268.)
[960]William Pinkney was at this time probably the highest paid lawyer in America. Five years before he argued the case of Cohensvs.Virginia, his professional income was $21,000 annually (Story to White, Feb. 26, 1816, Story,i, 278), more than four times as much as Marshall ever received when leader of the Richmond bar (see vol.ii, 201, of this work). David B. Ogden, the other counsel for the Cohens, was one of the most prominent and successful lawyers of New York. See Warren, 303-04.
Another interesting fact in this celebrated case is that the Norfolk Court fined the Cohens the minimum allowed by the Virginia statute. They could have been fined at least $800, $100 for each offense—perhaps should have been fined that amount had the law been strictly observed. Indeed, the Virginia Act permitted a fine to the extent of "the whole sum of money proposed to be raised by such lottery." (6 Wheaton, 268.)
[961]Barbour declined a large fee offered him by the State. (Grigsby:Virginia Convention of 1829-30.)
[961]Barbour declined a large fee offered him by the State. (Grigsby:Virginia Convention of 1829-30.)
[962]6 Wheaton, 344.
[962]6 Wheaton, 344.
[963]Ib.347.
[963]Ib.347.
[964]Ib.354.
[964]Ib.354.
[965]6 Wheaton, 375. For a better report of Pinkney's speech see Wheaton:Pinkney, 612-16.
[965]6 Wheaton, 375. For a better report of Pinkney's speech see Wheaton:Pinkney, 612-16.
[966]Ib.376.
[966]Ib.376.
[967]Seesupra, 157-58.
[967]Seesupra, 157-58.
[968]6 Wheaton, 377.
[968]6 Wheaton, 377.
[969]6 Wheaton, 380.
[969]6 Wheaton, 380.
[970]Ib.381.
[970]Ib.381.
[971]6 Wheaton, 382. (Italics the author's.)
[971]6 Wheaton, 382. (Italics the author's.)
[972]Ib.382.
[972]Ib.382.
[973]6 Wheaton, 384-85. (Italics the author's.)
[973]6 Wheaton, 384-85. (Italics the author's.)
[974]See vol.ii, 66, of this work.
[974]See vol.ii, 66, of this work.
[975]6 Wheaton, 87.
[975]6 Wheaton, 87.
[976]Ib.385-86.
[976]Ib.385-86.
[977]Ib.387.
[977]Ib.387.
[978]6 Wheaton, 386-87.
[978]6 Wheaton, 386-87.
[979]See U.S.vs.Peters,supra, 18et seq.
[979]See U.S.vs.Peters,supra, 18et seq.
[980]6 Wheaton, 387-88.
[980]6 Wheaton, 387-88.
[981]6 Wheaton, 388.
[981]6 Wheaton, 388.
[982]6 Wheaton, 389-90.
[982]6 Wheaton, 389-90.
[983]6 Wheaton, 390-91.
[983]6 Wheaton, 390-91.
[984]Ib.393.
[984]Ib.393.
[985]Ib.394-404.
[985]Ib.394-404.
[986]Ib.405.
[986]Ib.405.
[987]See vol.iii, 127-28, of this work.
[987]See vol.iii, 127-28, of this work.
[988]6 Wheaton, 406-07.
[988]6 Wheaton, 406-07.
[989]Ib.413.
[989]Ib.413.
[990]6 Wheaton, 413-14.
[990]6 Wheaton, 413-14.
[991]Fairfax's Deviseevs.Hunter,supra, 157-60.
[991]Fairfax's Deviseevs.Hunter,supra, 157-60.
[992]6 Wheaton, 420.
[992]6 Wheaton, 420.
[993]Ib.424.
[993]Ib.424.
[994]Ib.425-26.
[994]Ib.425-26.
[995]6 Wheaton, 429.
[995]6 Wheaton, 429.
[996]Ib.445-47.
[996]Ib.445-47.
[997]Ambler:Ritchie, 81.
[997]Ambler:Ritchie, 81.
[998]Enquirer, May 25, 1821, as quoted inBranch Hist. Papers, June, 1906, 78, 85.
[998]Enquirer, May 25, 1821, as quoted inBranch Hist. Papers, June, 1906, 78, 85.
[999]Enquirer, May 25 and May 29, 1821, as quoted inib.89, 100.
[999]Enquirer, May 25 and May 29, 1821, as quoted inib.89, 100.
[1000]Enquirer, May 29, 1821, as quoted inib.101.
[1000]Enquirer, May 29, 1821, as quoted inib.101.
[1001]Enquirer, June 21, 1821, as quoted inib.110.
[1001]Enquirer, June 21, 1821, as quoted inib.110.
[1002]Branch Hist. Papers, June, 1906, 119.
[1002]Branch Hist. Papers, June, 1906, 119.
[1003]Ib.123-24.
[1003]Ib.123-24.
[1004]Enquirer, June 5, 1821, as quoted inBranch Hist. Papers, June, 1906, 146-47.
[1004]Enquirer, June 5, 1821, as quoted inBranch Hist. Papers, June, 1906, 146-47.
[1005]Ib.182-83.
[1005]Ib.182-83.
[1006]Marshall to Story, June 15, 1821,Proceedings, Mass. Hist. Soc.2d Series,xiv, 327-28.
[1006]Marshall to Story, June 15, 1821,Proceedings, Mass. Hist. Soc.2d Series,xiv, 327-28.
[1007]Marshall refers to three papers published in theEnquirerof May 15 and 22, and June 22, the first two signed "Somers" and the third signed "Fletcher of Saltoun." It is impossible to discover who these writers were. Their essays, although vicious, are so dull as not to be worth the reading, though Jefferson thought them "luminous and striking." (Jefferson to Johnson, June 12, 1823,Works: Ford,xii, 252, footnote.)"Somers," however, is compelled to admit the irresistible appeal of Marshall's personality. "Superior talents and address will forever attract the homage of inferior minds." (Enquirer, May 15, 1821.)"The Supreme court ... have rendered the constitution the sport of legal ingenuity.... Its meaning is locked up from the profane vulgar, and distributed only by the high priests of the temple." (Ib.May 22, 1821.)"Fletcher of Saltoun" is intolerably verbose: "The victories ... of courts ... though bloodless, are generally decisive.... The progress of the judiciary, though slow, is steady and untiring as the foot of time."The people act as though hypnotized, he laments—"the powerful mind of the chief justice has put forth its strength, and we are quiet as if touched by the wand of enchantment;—we fall prostrate before his genius as though we had looked upon the dazzling brightness of the shield of Astolfo.—Triumphant indeed has been this most powerful effort of his extraordinary mind. His followers exult—those who doubted, have yielded; even the faithful are found wavering, and the unconvinced can find no opening in his armor of defense."This writer points out Marshall's "abominable inconsistencies," but seems to be himself under the spell of the Chief Justice: "I mention not this to the disadvantage of the distinguished individual who has pronounced these conflicting opinions. No man can have a higher respect for the virtues of his character, or greater admiration of the powers of his mind."Alas for the change that time works upon the human intellect! Consider Marshall, the young man, and Marshall, the Chief Justice! "How little did he, at that early day, contemplate the possibility of his carrying the construction of the constitution to an extent so far beyond even what he then renounced!" [sic.]Thereupon "Fletcher of Saltoun" plunges into an ocean of words concerning Hamilton's theories of government and Marshall's application of them. He announces this essay to be the first of a series; but, luckily for everybody, this first effort exhausted him. Apparently he, too, fell asleep under Marshall's "wand," for nothing more came from his drowsy pen. (Ib.June 22, 1821.)
[1007]Marshall refers to three papers published in theEnquirerof May 15 and 22, and June 22, the first two signed "Somers" and the third signed "Fletcher of Saltoun." It is impossible to discover who these writers were. Their essays, although vicious, are so dull as not to be worth the reading, though Jefferson thought them "luminous and striking." (Jefferson to Johnson, June 12, 1823,Works: Ford,xii, 252, footnote.)
"Somers," however, is compelled to admit the irresistible appeal of Marshall's personality. "Superior talents and address will forever attract the homage of inferior minds." (Enquirer, May 15, 1821.)
"The Supreme court ... have rendered the constitution the sport of legal ingenuity.... Its meaning is locked up from the profane vulgar, and distributed only by the high priests of the temple." (Ib.May 22, 1821.)
"Fletcher of Saltoun" is intolerably verbose: "The victories ... of courts ... though bloodless, are generally decisive.... The progress of the judiciary, though slow, is steady and untiring as the foot of time."
The people act as though hypnotized, he laments—"the powerful mind of the chief justice has put forth its strength, and we are quiet as if touched by the wand of enchantment;—we fall prostrate before his genius as though we had looked upon the dazzling brightness of the shield of Astolfo.—Triumphant indeed has been this most powerful effort of his extraordinary mind. His followers exult—those who doubted, have yielded; even the faithful are found wavering, and the unconvinced can find no opening in his armor of defense."
This writer points out Marshall's "abominable inconsistencies," but seems to be himself under the spell of the Chief Justice: "I mention not this to the disadvantage of the distinguished individual who has pronounced these conflicting opinions. No man can have a higher respect for the virtues of his character, or greater admiration of the powers of his mind."
Alas for the change that time works upon the human intellect! Consider Marshall, the young man, and Marshall, the Chief Justice! "How little did he, at that early day, contemplate the possibility of his carrying the construction of the constitution to an extent so far beyond even what he then renounced!" [sic.]
Thereupon "Fletcher of Saltoun" plunges into an ocean of words concerning Hamilton's theories of government and Marshall's application of them. He announces this essay to be the first of a series; but, luckily for everybody, this first effort exhausted him. Apparently he, too, fell asleep under Marshall's "wand," for nothing more came from his drowsy pen. (Ib.June 22, 1821.)
[1008]Marshall to Story, July 13, 1821,Proceedings, Mass. Hist. Soc.2d Series,xiv, 329.
[1008]Marshall to Story, July 13, 1821,Proceedings, Mass. Hist. Soc.2d Series,xiv, 329.
[1009]Jefferson to Jarvis, Sept. 28, 1820,Works: Ford,xii, 162-63.
[1009]Jefferson to Jarvis, Sept. 28, 1820,Works: Ford,xii, 162-63.
[1010]Marshall to Story, July 13, 1821,Proceedings, Mass. Hist. Soc.2d Series,xiv, 328-29.
[1010]Marshall to Story, July 13, 1821,Proceedings, Mass. Hist. Soc.2d Series,xiv, 328-29.
[1011]Same to same, Sept. 18, 1821,ib.330.
[1011]Same to same, Sept. 18, 1821,ib.330.
[1012]Marshall to Story, July 13, 1821,Proceedings, Mass. Hist. Soc.2d Series,xiv, 329-30.
[1012]Marshall to Story, July 13, 1821,Proceedings, Mass. Hist. Soc.2d Series,xiv, 329-30.
[1013]Marshall to Story, July 13, 1821,Proceedings, Mass. Hist. Soc.2d Series,xiv, 330-31.
[1013]Marshall to Story, July 13, 1821,Proceedings, Mass. Hist. Soc.2d Series,xiv, 330-31.
[1014]Taylor:Tyranny Unmasked, 89.
[1014]Taylor:Tyranny Unmasked, 89.
[1015]This was Madison's idea. See vol.i, 312, of this work.
[1015]This was Madison's idea. See vol.i, 312, of this work.
[1016]Taylor:Tyranny Unmasked, 33.
[1016]Taylor:Tyranny Unmasked, 33.
[1017]M'Cullochvs.Maryland.
[1017]M'Cullochvs.Maryland.
[1018]Martinvs.Hunter's Lessee and Cohensvs.Virginia.
[1018]Martinvs.Hunter's Lessee and Cohensvs.Virginia.
[1019]Cohensvs.Virginia.
[1019]Cohensvs.Virginia.
[1020]Taylor:Tyranny Unmasked, 132-33.
[1020]Taylor:Tyranny Unmasked, 132-33.
[1021]Taylor:Tyranny Unmasked, 133-254. Taylor was the first to state fully most of the arguments since used by the opponents of protective tariffs.
[1021]Taylor:Tyranny Unmasked, 133-254. Taylor was the first to state fully most of the arguments since used by the opponents of protective tariffs.
[1022]Ib.260.
[1022]Ib.260.
[1023]Ib.285.
[1023]Ib.285.
[1024]Ib.305.
[1024]Ib.305.
[1025]Ib.341.
[1025]Ib.341.
[1026]Jefferson to Thweat, Jan. 19, 1821,Works: Ford,xii, 196-97.Wirt, though a Republican, asserted that "the functions to be performed by the Supreme Court ... are among the most difficult and perilous which are to be performed under the Constitution. They demand the loftiest range of talents and learning and a soul of Roman purity and firmness. The questions which come before them frequently involve the fate of the Constitution, the happiness of the whole nation." (Wirt to Monroe, May 5, 1823, Kennedy,ii, 153.)Wirt, in this letter, was urging the appointment of Kent to the Supreme Bench, notwithstanding the Federalism of the New York Chancellor. "Federal politics are no way dangerous on the bench of the Supreme Court," adds Wirt. (Ib.155.)
[1026]Jefferson to Thweat, Jan. 19, 1821,Works: Ford,xii, 196-97.
Wirt, though a Republican, asserted that "the functions to be performed by the Supreme Court ... are among the most difficult and perilous which are to be performed under the Constitution. They demand the loftiest range of talents and learning and a soul of Roman purity and firmness. The questions which come before them frequently involve the fate of the Constitution, the happiness of the whole nation." (Wirt to Monroe, May 5, 1823, Kennedy,ii, 153.)
Wirt, in this letter, was urging the appointment of Kent to the Supreme Bench, notwithstanding the Federalism of the New York Chancellor. "Federal politics are no way dangerous on the bench of the Supreme Court," adds Wirt. (Ib.155.)
[1027]His strange failure to come to Roane's support in the fight, over the Judiciary amendments to the Constitution, in the Virginia Legislature during the session of 1821-22. (Seeinfra, 371.)
[1027]His strange failure to come to Roane's support in the fight, over the Judiciary amendments to the Constitution, in the Virginia Legislature during the session of 1821-22. (Seeinfra, 371.)
[1028]Jefferson to Johnson, June 12,1823,Works: Ford,xii, footnote to 255-56.
[1028]Jefferson to Johnson, June 12,1823,Works: Ford,xii, footnote to 255-56.
[1029]Jefferson to Livingston, March 25, 1825, Hunt:Livingston, 295-97.
[1029]Jefferson to Livingston, March 25, 1825, Hunt:Livingston, 295-97.
[1030]Annals, 17th Cong. 1st Sess. 68.
[1030]Annals, 17th Cong. 1st Sess. 68.
[1031]Roane to Thweat, Dec. 24, 1821, Jefferson MSS. Lib. Cong.
[1031]Roane to Thweat, Dec. 24, 1821, Jefferson MSS. Lib. Cong.
[1032]Annals, 17th Cong. 1st Sess. 69-70.
[1032]Annals, 17th Cong. 1st Sess. 69-70.
[1033]Ib.71-72.
[1033]Ib.71-72.
[1034]Annals, 17th Cong. 1st Sess. 74-75.
[1034]Annals, 17th Cong. 1st Sess. 74-75.
[1035]Ib.79.
[1035]Ib.79.
[1036]Ib.79-80.
[1036]Ib.79-80.
[1037]Annals, 17th Cong. 1st Sess. 84-90.
[1037]Annals, 17th Cong. 1st Sess. 84-90.
[1038]Webster to Story, Jan. 14, 1822,Priv. Corres.: Webster,i, 320.
[1038]Webster to Story, Jan. 14, 1822,Priv. Corres.: Webster,i, 320.
[1039]Ordinance of Separation, 1789.
[1039]Ordinance of Separation, 1789.
[1040]Act of Feb. 27,Laws of Kentucky, 1797: Littell, 641-45. See also Act of Feb. 28 (ib.652-71), apparently on a different subject; and, especially, Act of March 1 (ib.682-87). Compare Act of 1796 (ib.392-420); and Act of Dec. 19, 1796 (ib.554-57). See also inib.general land laws.
[1040]Act of Feb. 27,Laws of Kentucky, 1797: Littell, 641-45. See also Act of Feb. 28 (ib.652-71), apparently on a different subject; and, especially, Act of March 1 (ib.682-87). Compare Act of 1796 (ib.392-420); and Act of Dec. 19, 1796 (ib.554-57). See also inib.general land laws.
[1041]8 Wheaton, 11-12. (Italics the author's.)
[1041]8 Wheaton, 11-12. (Italics the author's.)
[1042]Ib.18.
[1042]Ib.18.
[1043]Annals, 17th Cong. 1st Sess. 96-98.
[1043]Annals, 17th Cong. 1st Sess. 96-98.
[1044]Annals, 17th Cong. 1st Sess. 102.
[1044]Annals, 17th Cong. 1st Sess. 102.
[1045]Ib.103.
[1045]Ib.103.
[1046]Ib.104.
[1046]Ib.104.
[1047]Ib.108.
[1047]Ib.108.
[1048]Georgia, Fletchervs.Peck (see vol.iii, chap,x, of this work); Pennsylvania, U.S.vs.Peters (supra, chap.i); New Jersey, New Jerseyvs.Wilson (supra, chap.v); New Hampshire, Dartmouth Collegevs.Woodward (supra, chap.v); New York, Sturgesvs.Crowninshield (supra, chap.iv); Maryland, M'Cullochvs.Maryland (supra, chap.vi); Virginia, Cohensvs.Virginia (supra, chap.vii); Kentucky, Greenvs.Biddle (supra, this chapter).
[1048]Georgia, Fletchervs.Peck (see vol.iii, chap,x, of this work); Pennsylvania, U.S.vs.Peters (supra, chap.i); New Jersey, New Jerseyvs.Wilson (supra, chap.v); New Hampshire, Dartmouth Collegevs.Woodward (supra, chap.v); New York, Sturgesvs.Crowninshield (supra, chap.iv); Maryland, M'Cullochvs.Maryland (supra, chap.vi); Virginia, Cohensvs.Virginia (supra, chap.vii); Kentucky, Greenvs.Biddle (supra, this chapter).
[1049]Annals, 17th Cong. 1st Sess. 113.
[1049]Annals, 17th Cong. 1st Sess. 113.
[1050]Niles,xxi, 404.
[1050]Niles,xxi, 404.
[1051]Ib.The resolutions, offered by John Wayles Eppes, Jefferson's son-in-law, "instructed" Virginia's Senators and requested her Representatives in Congress to "procure" these amendments to the Constitution:1. The judicial power shall not extend to any power "not expressly granted ... orabsolutelynecessary for carrying the same into execution."2. Neither the National Government nor any department thereof shall have power to bind "conclusively" the States in conflicts between Nation and State.3. The judicial power of the Nation shall never include "anycase in which a State shall be a party," except controversies between States; nor cases involving the rights of a State "to which such a state shall ask to become a party."4. No appeal to any National court shall be had from the decisions of any State court.5. Laws applying to the District of Columbia or the Territories, which conflict with State laws, shall not be enforceable within State jurisdiction. (Niles,xxi, 404.)
[1051]Ib.The resolutions, offered by John Wayles Eppes, Jefferson's son-in-law, "instructed" Virginia's Senators and requested her Representatives in Congress to "procure" these amendments to the Constitution:
1. The judicial power shall not extend to any power "not expressly granted ... orabsolutelynecessary for carrying the same into execution."
2. Neither the National Government nor any department thereof shall have power to bind "conclusively" the States in conflicts between Nation and State.
3. The judicial power of the Nation shall never include "anycase in which a State shall be a party," except controversies between States; nor cases involving the rights of a State "to which such a state shall ask to become a party."
4. No appeal to any National court shall be had from the decisions of any State court.
5. Laws applying to the District of Columbia or the Territories, which conflict with State laws, shall not be enforceable within State jurisdiction. (Niles,xxi, 404.)
[1052]Annals, 17th Cong. 1st Sess. 1682.
[1052]Annals, 17th Cong. 1st Sess. 1682.
[1053]Ib., 18th Cong. 1st Sess. 28.
[1053]Ib., 18th Cong. 1st Sess. 28.
[1054]Annals, 18th Cong. 1st Sess. 336.
[1054]Annals, 18th Cong. 1st Sess. 336.
[1055]Ib.419.
[1055]Ib.419.
[1056]Ib.915.
[1056]Ib.915.
[1057]Webster, from the Judiciary Committee, which he seems to have dominated, merely reported that Wickliffe's proposed reform was "not expedient." (Annals, 18th Cong. 1st Sess. 1291.)
[1057]Webster, from the Judiciary Committee, which he seems to have dominated, merely reported that Wickliffe's proposed reform was "not expedient." (Annals, 18th Cong. 1st Sess. 1291.)
[1058]March 7 to 13, 1822, inclusive.
[1058]March 7 to 13, 1822, inclusive.
[1059]8 Wheaton, 75.
[1059]8 Wheaton, 75.
[1060]8 Wheaton, 93. Johnson dissented. (Ib.94-107.) Todd of Kentucky was absent because of illness, a circumstance that greatly worried Story, who wrote the sick Justice: "We have missed you exceedingly during the term and particularly in the Kentucky causes.... We have had ... tough business" and "wanted your firm vote on many occasions." (Story to Todd, March 24, 1823, Story,i, 422-23.)
[1060]8 Wheaton, 93. Johnson dissented. (Ib.94-107.) Todd of Kentucky was absent because of illness, a circumstance that greatly worried Story, who wrote the sick Justice: "We have missed you exceedingly during the term and particularly in the Kentucky causes.... We have had ... tough business" and "wanted your firm vote on many occasions." (Story to Todd, March 24, 1823, Story,i, 422-23.)
[1061]Niles,xxv, 203-05.
[1061]Niles,xxv, 203-05.
[1062]Ib.206.
[1062]Ib.206.
[1063]Niles,xxv, 205.
[1063]Niles,xxv, 205.
[1064]Ib.261.
[1064]Ib.261.
[1065]Ib.275-76.
[1065]Ib.275-76.
[1066]Ib.xxix, 228-29.
[1066]Ib.xxix, 228-29.
[1067]Ib.xxv, 12; and see Elkisonvs.Deliesseline, 8Federal Cases, 493.
[1067]Ib.xxv, 12; and see Elkisonvs.Deliesseline, 8Federal Cases, 493.
[1068]Niles,xxv, 13-16.
[1068]Niles,xxv, 13-16.
[1069]Ib.12; and see especiallyib.xxvii, 242-43.
[1069]Ib.12; and see especiallyib.xxvii, 242-43.
[1070]Marshall to Story, Sept. 26, 1823, Story MSS. Mass. Hist. Soc.
[1070]Marshall to Story, Sept. 26, 1823, Story MSS. Mass. Hist. Soc.
[1071]Niles,xxvii, 242. The Senate of South Carolina resolved by a vote of six to one that the duty of the State to "guard against insubordination or insurrection among our colored population ... is paramount to alllaws, alltreaties, allconstitutions... and will never, by this state, be renounced, compromised, controlled or participated with any power whatever."Johnson's decision is viewed as "an unconstitutional interference" with South Carolina's slave system, and the State "will, on this subject, ... make common cause with ... other southern states similarly circumstanced in this respect." (Niles,xxvii, 264.) The House rejected the savage language of the Senate and adopted resolutions moderately worded, but expressing the same determination. (Ib.292.)
[1071]Niles,xxvii, 242. The Senate of South Carolina resolved by a vote of six to one that the duty of the State to "guard against insubordination or insurrection among our colored population ... is paramount to alllaws, alltreaties, allconstitutions... and will never, by this state, be renounced, compromised, controlled or participated with any power whatever."
Johnson's decision is viewed as "an unconstitutional interference" with South Carolina's slave system, and the State "will, on this subject, ... make common cause with ... other southern states similarly circumstanced in this respect." (Niles,xxvii, 264.) The House rejected the savage language of the Senate and adopted resolutions moderately worded, but expressing the same determination. (Ib.292.)
[1072]For the facts in Osbornvs. The Bank of the United States, seesupra, 328-329.
[1072]For the facts in Osbornvs. The Bank of the United States, seesupra, 328-329.
[1073]See, for instance, speech of John Carter of South Carolina. (Annals, 18th Cong. 1st Sess. 2097; and upon this subject, generally, seeinfra, chap.x.)
[1073]See, for instance, speech of John Carter of South Carolina. (Annals, 18th Cong. 1st Sess. 2097; and upon this subject, generally, seeinfra, chap.x.)
[1074]Who appeared for Ohio on the first argument is not disclosed by the records.
[1074]Who appeared for Ohio on the first argument is not disclosed by the records.
[1075]9 Wheaton, 795-96.
[1075]9 Wheaton, 795-96.
[1076]9 Wheaton, 818-19.
[1076]9 Wheaton, 818-19.
[1077]Ib.819-21.
[1077]Ib.819-21.
[1078]9 Wheaton, 823.
[1078]9 Wheaton, 823.
[1079]Ib.823-24.
[1079]Ib.823-24.
[1080]Ib.824-25.
[1080]Ib.824-25.
[1081]9 Wheaton, 846-47.
[1081]9 Wheaton, 846-47.
[1082]Ib.847.
[1082]Ib.847.
[1083]Marshall here refers to threats to resist forcibly the execution of the Tariff of 1824. Seeinfra, 535-36.
[1083]Marshall here refers to threats to resist forcibly the execution of the Tariff of 1824. Seeinfra, 535-36.
[1084]9 Wheaton, 847-48.
[1084]9 Wheaton, 847-48.
[1085]9 Wheaton, 848-49.
[1085]9 Wheaton, 848-49.
[1086]9 Wheaton, 849.
[1086]9 Wheaton, 849.
[1087]Ib.852-53.
[1087]Ib.852-53.
[1088]9 Wheaton, 857. (Italics the author's.)
[1088]9 Wheaton, 857. (Italics the author's.)
[1089]Ib.858.
[1089]Ib.858.
[1090]Seesupra, chap, VI.
[1090]Seesupra, chap, VI.
[1091]9 Wheaton, 859.
[1091]9 Wheaton, 859.
[1092]Ib.859-60.
[1092]Ib.859-60.
[1093]9 Wheaton, 861-62.
[1093]9 Wheaton, 861-62.
[1094]Ib.862-63.
[1094]Ib.862-63.
[1095]9 Wheaton, 866.
[1095]9 Wheaton, 866.
[1096]Ib.868-69.
[1096]Ib.868-69.
[1097]Ib.871.
[1097]Ib.871.
[1098]9 Wheaton, 871-72. (Italics the author's.) In reality Johnson is here referring to the threats of physical resistance to the proposed tariff law of 1824. (Seeinfra, chap.x.)
[1098]9 Wheaton, 871-72. (Italics the author's.) In reality Johnson is here referring to the threats of physical resistance to the proposed tariff law of 1824. (Seeinfra, chap.x.)
[1099]Ib.875-903.
[1099]Ib.875-903.
[1100]Annals, 18th Cong. 1st Sess. 2514.
[1100]Annals, 18th Cong. 1st Sess. 2514.
[1101]Ib.2519-20.
[1101]Ib.2519-20.
[1102]Ib.2527. This debate was most scantily reported. Webster wrote of it: "We had the Supreme Court before us yesterday.... A debate arose which lasted all day. Cohensv.Virginia, Green and Biddle, &c. were all discussed.... The proposition for the concurrence of five judges will not prevail." (Webster to Story, May 4, 1824,Priv. Corres.: Webster,i, 350.)
[1102]Ib.2527. This debate was most scantily reported. Webster wrote of it: "We had the Supreme Court before us yesterday.... A debate arose which lasted all day. Cohensv.Virginia, Green and Biddle, &c. were all discussed.... The proposition for the concurrence of five judges will not prevail." (Webster to Story, May 4, 1824,Priv. Corres.: Webster,i, 350.)
[1103]Annals, 18th Cong. 1st Sess. 2538.
[1103]Annals, 18th Cong. 1st Sess. 2538.
[1104]Ib.2539.
[1104]Ib.2539.
[1105]Annals, 18th Cong. 1st Sess. 2541.Throughout this session Webster appears to have been much disturbed. For example, as early as April 10, 1824, he writes Story: "I am exhausted. When I look in the glass, I think of our old New England saying, 'As thin as a shad.' I have not vigor enough left, either mental or physical, to try an action for assault and battery.... I shall call up some bills reported by our [Judiciary] committee.... The gentlemen of the West will propose a clause, requiring the assent of a majority of all the judges to a judgment, which pronounces a state law void, as being in violation of the constitution or laws of the United States. Do you see any great evil in such a provision? Judge Todd told me he thought it would give great satisfaction in the West. In what phraseology would you make such a provision?" (Webster to Story, April 10, 1824,Priv. Corres.: Webster,i, 348-49.)
[1105]Annals, 18th Cong. 1st Sess. 2541.
Throughout this session Webster appears to have been much disturbed. For example, as early as April 10, 1824, he writes Story: "I am exhausted. When I look in the glass, I think of our old New England saying, 'As thin as a shad.' I have not vigor enough left, either mental or physical, to try an action for assault and battery.... I shall call up some bills reported by our [Judiciary] committee.... The gentlemen of the West will propose a clause, requiring the assent of a majority of all the judges to a judgment, which pronounces a state law void, as being in violation of the constitution or laws of the United States. Do you see any great evil in such a provision? Judge Todd told me he thought it would give great satisfaction in the West. In what phraseology would you make such a provision?" (Webster to Story, April 10, 1824,Priv. Corres.: Webster,i, 348-49.)
[1106]See next chapter.
[1106]See next chapter.