FOOTNOTES:

"No person in the House," began the Chief Justice, "can be more truly gratified than I am, at seeing the spirit that has been manifested here to-day; and it is my earnest wish that this spirit of conciliation may be acted upon in a fair, equal and honest manner, adapted to the situation of the different parts of the Commonwealth, which are to be affected."

The warring factions, said Marshall, were at lastin substantial accord. "That the Federal numbers [the enumeration of slaves as fixed in the National Constitution] and the plan of the white basis shall be blended together so as to allow each an equal portion of power, seems to be very generally agreed to." The only difference now was that one faction insisted on applying this plan to both Houses of the Legislature, while the other faction would restrict the white basis to the popular branch, leaving the Senate to be chosen on the combined free white and black slave enumeration.

This involves the whole theory of property. One gentleman, in particular, "seems to imagine that we claim nothing of republican principles, when we claim a representation for property." But "republican principles" do not depend on "the naked principle of numbers." On the contrary, "the soundest principles of republicanism do sanction some relation between representation and taxation.... The two ought to be connected.... This was the principle of the revolution.... This basis of Representation is ... so important to Virginia" that everybody had thought about it before this convention was called.

"Several different plans were contemplated. The basis of white population alone; the basis of free population alone; a basis of population alone; a basis compounded of taxation and white population, (or which is the same thing, a basis of Federal numbers:).... Now, of these various propositions, the basis of white population, and the basis of taxation alone are the two extremes." But, "between the free population, and the white population, there is almost nodifference: Between the basis of total population and the basis of taxation, there is but little difference."

Frankly and without the least disguise of his opinions, Marshall admitted that he was a conservative of conservatives: "The people of the East," of whom he avowed himself to be one, "thought that they offered a fair compromise, when they proposed the compound basis of population and taxation, or the basis of the Federal numbers. We thought that we had republican precedent for this—a precedent given us by the wisest and truest patriots that ever were assembled: but that is now past.

"We are now willing to meet on a new middle ground." Between the two extremes "the majority is too small to calculate upon.... We are all uncertain as to the issue. But all know this, that if either extreme is carried, it must leave a wound in the breast of the opposite party which will fester and rankle, and produce I know not what mischief." The conservatives were now the majority of the convention, yet they were again willing to make concessions. Avoiding both extremes, Marshall proposed, "as a compromise," that the basis of representation "shall be made according to an exact compound of the two principles, of the white basis and of the Federal numbers, according to the Census of 1820."[1358]

Further debate ensued, during which animosity seemed about to come to life again, when the Chief Justice once more exerted his mollifying influence. "Two propositions respecting the basis of Representation have divided this Convention almost equally,"he said. "The question has been discussed, until discussion has become useless. It has been argued, until argument is exhausted. We have now met on the ground of compromise." It is no longer a matter of the triumph of either side. The only consideration now is whether the convention can agree on some plan to lay before the people "with a reasonable hope that it may be adopted. Some concession must be made on both sides.... What is the real situation of the parties?" Unquestionably both are sincere. "To attempt now to throw considerations of principle into either scale, is to add fuel to a flame which it is our purpose to extinguish. We must lose sight of the situation of parties and state of opinion, if we make this attempt."

The convention is nearly evenly balanced. At this moment those favoring a white basis only have a trembling majority of two. This may change—the reversal of a single vote would leave the House "equally divided."

The question must be decided "one way or the other"; but, if either faction prevails by a bare majority, the proposed constitution will go to the people from an almost equally divided convention. That means a tremendous struggle, a riven State. Interests in certain parts of the Commonwealth will surely resist "with great force" a purely white basis of representation, especially if no effective property qualification for suffrage is provided. This opposition is absolutely certain "unless human nature shall cease to be what it has been in all time."

No human power can forecast the result of furthercontest. But one thing is certain: "To obtain a just compromise, concession must not only be mutual—it must be equal also.... Each ought to concede to the other as much as he demands from that other.... There can be no hope that either will yield more than it gets in return."

The proposal that white population and taxation "mixed" with Federal numbers in "equal proportions" shall "form the basis of Representation in both Houses," is equal and just. "All feel it to be equal." Yet the conservatives now go still further—they are willing to place the House on the white basis and apply the mixed basis to the Senate only. Why refuse this adjustment? Plainly it will work well for everybody: "If the Senate would protect the East, will it not protect the West also?"

Marshall's satisfaction was "inexpressible" when he heard from both sides the language of conciliation. "I hailed these auspicious appearances with as much joy, as the inhabitant of the polar regions hails the re-appearance of the sun after his long absence of six tedious months. Can these appearances prove fallacious? Is it a meteor we have seen and mistaken for that splendid luminary which dispenses light and gladness throughout creation? It must be so, if we cannot meet on equal ground. If we cannot meet on the line that divides us equally, then take the hand of friendship, and make an equal compromise; it is vain to hope that any compromise can be made."[1359]

The basis of representation does not appear in theconstitution, the number of Senators and Representatives being arbitrarily fixed by districts and counties; but this plan, in reality, gave the slaveholding sections almost the same preponderance over the comparatively non-slaveholding sections as would have resulted from the enumeration of three fifths of all slaves in addition to all whites.[1360]

While the freehold principle was abandoned, as Marshall foresaw that it would be, the principle of property qualification as against manhood suffrage was triumphant.[1361]With a majority against them, the conservatives won by better management, assisted by the personal influence of the Chief Justice, to which, on most phases of the struggle, was added that of Madison and Giles.

Nearly a century has passed since these happenings, and Marshall's attitude now appears to have been that of cold reaction; but he was as honest as he was outspoken in his resistance to democratic reforms. He wanted good government, safe government. He was not in the least concerned in the rule of the people as such. Indeed, he believed that the more they directly controlled public affairs the worse the business of government would be conducted.

He feared that sheer majorities would be unjust, intolerant, tyrannical; and he was certain that they would be untrustworthy and freakishly changeable. These convictions would surely have dictated his course in the Virginia Constitutional Convention of 1829-30, had no other considerations influenced him.

But, in addition to his long settled and ever-petrifying conservative views, we must also take into account the conditions and public temper existing in Virginia ninety years ago. Had the convention reached any other conclusion than that to which Marshall gently guided it, it is certain that the State would have been torn by dissension, and it is not improbable that there would have been bloodshed. All things considered, it seems unsafe to affirm that Marshall's course was not the wisest for that immediate period and for that particular State.

Displaying no vision, no aspiration, no devotion to human rights, he merely acted the uninspiring but necessary part of the practical statesman dealing with an existing and a very grave situation. If Jefferson could be so frightened in 1816 that he forbade the public circulation of his perfectly sound views on the wretched Virginia Constitution of 1776,[1362]can it be wondered at that the conservative Marshall in 1830 wished to compose the antagonisms of the warring factions?

The fact that the Nation was then facing the possibility of dissolution[1363]must also be taken into account. That circumstance, indeed, influenced Marshall even more than did his profound conservatism. There can be little doubt that, had either the radicals or the conservatives achieved an outright victory, one part of Virginia would have separated from the other and the growing sentiment for disunion would have received a powerful impulse.

Hurrying from Richmond to Washington when the convention adjourned, Marshall listened to the argument of Craigvs.Missouri; and then delivered one of the strongest opinions he ever wrote—the only one of his Constitutional expositions to be entirely repudiated by the Supreme Court after his death. The case grew out of the financial conditions described in the fourth chapter of this volume.

When Missouri became a State in 1821, her people found themselves in desperate case. There was no money. Banks had suspended, and specie had been drained to the Eastern commercial centers. The simplest business transactions were difficult, almost impossible. Even taxes could not be paid. The Legislature, therefore, established loan offices where citizens, by giving promissory notes, secured by mortgage or pledge of personal property, could purchase loan certificates issued by the State. These certificates were receivable for taxes and other public debts and for salt from the State salt mines. The faith and resources of Missouri were pledged for the redemption of the certificates which were negotiable and issued in denominations not exceeding ten dollars or less than fifty cents. In effect and in intention, the State thus created a local circulating medium of exchange.

On August 1, 1822, Hiram Craig and two others gave their promissory notes for $199.99 in payment for loan certificates. On maturity of these notes the borrowers refused to pay, and the State sued them; judgment against them was rendered in the trial court and this judgment was affirmed by the Supreme Court of Missouri. The case was taken, by writ of error, to the Supreme Court of the United States, where the sole question to be decided was the constitutionality of the Missouri loan office statutes.

Marshall's associates were now Johnson, Duval, Story, Thompson, McLean, and Baldwin; the last two recently appointed by Jackson. It was becoming apparent that the court was growing restive under the rigid practice of the austere theory of government and business which the Chief Justice had maintained for nearly a generation. This tendency was shown in this case by the stand taken by three of the Associate Justices. Marshall was in his seventy-sixth year, but never did his genius shine more resplendently than in his announcement of the opinion of the Supreme Court in Craigvs.Missouri.[1364]

He held that the Missouri loan certificates were bills of credit, which the National Constitution prohibited any State to issue. "What is a bill of credit?" It is "any instrument by which a state engages to pay money at a future day; thus including a certificate given for money borrowed.... To 'emit bills of credit' conveys to the mind the idea of issuing paper intended to circulate through the community, for its ordinary purposes, as money, which paper is redeemable at a future day."[1365]The Chief Justice goes into the history of the paper money evil that caused the framers of the Constitution to forbid the States to "emit bills of credit."

Such currency always fluctuates. "Its value is continually changing; and these changes, often great and sudden, expose individuals to immense loss, are the sources of ruinous speculations, and destroy all confidence between man and man." To "cut up this mischief by the roots ... the people declared, in their Constitution, that no state should emit bills of credit. If the prohibition means anything, if the words are not empty sounds, it must comprehend the emission of any paper medium by a state government, for the purpose of common circulation."[1366]

Incontestably the Missouri loan certificates are just such bills of credit. Indeed, the State law itself "speaks of them in this character." That the statute calls them certificates instead of bills of credit does not change the fact. How absurd to claim that the Constitution "meant to prohibit names and not things! That a very important act, big with great and ruinous mischief, which is expressly forbidden ... may be performed by the substitution of a name." The Constitution is not to be evaded "by giving a new name to an old thing."[1367]

It is nonsense to say that these particular bills of credit are lawful because they are not made legal tender, since a separate provision applies to legal tender. The issue of legal tender currency, and also bills of credit, is equally and separately forbidden: "To sustain the one because it is not also the other; to say that bills of credit may be emitted if they be not made a tender in payment of debts; is ... to expunge that distinct, independent prohibition."[1368]

In a well-nigh perfect historical summary, Marshall reviews experiments before and during the Revolution in bills of credit that were made legal tender, and in others that were not—all "productive of the same effects," all equally ruinous in results.[1369]The Missouri law authorizing the loan certificates, for which Craig gave his promissory note, is "against the highest law of the land, and ... the note itself is utterly void."[1370]

The Chief Justice closes with a brief paragraph splendid in its simple dignity and power. In his argument for Missouri, Senator Thomas H. Benton had used violent language of the kind frequently employed by the champions of State Rights: "If ... the character of a sovereign State shall be impugned," he cried, "contests about civil rights would be settled amid the din of arms, rather than in these halls of national justice."[1371]

To this outburst Marshall replies: The court has been told of "the dangers which may result from" offending a sovereign State. If obedience to the Constitution and laws of the Nation "shall be calculated to bring on those dangers ... or if it shall be indispensable to the preservation of the union, and consequently of the independence and liberty of these states; these are considerations which address themselves to those departments which may with perfect propriety be influenced by them. This department can listen only to the mandates of law; and can tread only that path which is marked out by duty."[1372]

In this noble passage Marshall is not only rebuking Benton; he is also speaking to the advocates of Nullification, then becoming clamorous and threatening; he is pointing out to Andrew Jackson the path of duty.[1373]

Justices Johnson, Thompson, and McLean afterwards filed dissenting opinions, thus beginning the departure, within the Supreme Court, from the stern Constitutional Nationalism of Marshall. This breach in the court deeply troubled the Chief Justice during the remaining four years of his life.

Johnson thought "that these certificates are of a truly amphibious character." The Missouri law "does indeed approach as near to a violation of the Constitution as it can well go without violating its prohibition, but it is in the exercise of an unquestionable right, although in rather a questionable form." So, on the whole, Johnson concluded that the Supreme Court had better hold the statute valid.[1374]

"The right of a State to borrow money cannot be questioned," said Thompson; that is all the Missouri scheme amounts to. If these loan certificates are bills of credit, so are "all bank notes, issued either by the States, or under their authority."[1375]Justice McLean pointed out that Craig's case was only one of many of the same kind. "The solemn act of a State ... cannot be set aside ... under a doubtful construction of the Constitution.[1376]... It would be as gross usurpation on the part of the federal government to interfere with State rights by an exercise of powers not delegated, as it would be for a State to interpose its authority against a law of the Union."[1377]

In Congress attacks upon Marshall and the Supreme Court now were renewed—but they grew continuously feebler. At the first session after the decision of the Missouri loan certificate case, a bill was introduced to repeal the provision of the Judiciary Act upon which the National powers of the Supreme Court so largely depended. "If the twenty-fifth section is repealed, the Constitution is practically gone," declared Story. "Our wisest friends look with great gloom to the future."[1378]

Marshall was equally despondent, but his political vision was clearer. When he read the dissenting opinions of Johnson, Thompson, and McLean, he wrote Story: "It requires no prophet to predict that the 25th section [of the Judiciary Act] is to be repealed, or to use a more fashionable phrase to be nullified by the Supreme Court of the United States."[1379]He realized clearly that the great tribunal, the power and dignity of which he had done so much to create, would soon be brought under the control of those who, for some years at least, would reject that broad and vigorous Nationalism which he had steadily and effectively assertedduring almost a third of a century. One more vacancy on the Supreme Bench and a single new appointment by Jackson would give the court to the opponents of Marshall's views. Before he died, the Chief Justice was to behold two such vacancies.[1380]

On January 24, 1831, William R. Davis of South Carolina presented the majority report of the Judiciary Committee favoring the repeal of that section of the Judiciary Act under which the Supreme Court had demolished State laws and annihilated the decisions of State courts.[1381]James Buchanan presented the minority report.[1382]A few minutes' preliminary discussion revealed the deep feeling on both sides. Philip Doddridge of Virginia declared that the bill was of "as much importance as if it were a proposition to repeal the Union of these States." William W. Ellsworth of Connecticut avowed that it was of "overwhelming magnitude."[1383]

Thereupon the subject was furiously debated. Thomas H. Crawford of Pennsylvania considered Section 25 of the Judiciary Act, to be as "sacred" as the Constitution itself.[1384]Henry Daniel of Kentucky asserted that the Supreme Court "stops at nothing to obtain power." Let the "States ... prepare for the worst, and protect themselves against the assaults of this gigantic tribunal."[1385]

William Fitzhugh Gordon of Virginia, recently elected, but already a member of the Judiciary Committee, stoutly defended the report of the majority: "When a committee of the House had given to a subject the calmest and maturest investigation, and a motion is made to print their report, a gentleman gets up, and, in a tone of alarm, denounces the proposition as tantamount to a motion to repeal the Union." Gordon repudiated the very thought of dismemberment of the Republic—that "palladium of our hopes, and of the liberties of mankind."

As to the constitutionality of Section 25 of the Judiciary Act—"could it be new, especially to a Virginia lawyer"? when the Virginia Judiciary, with Roane at its head, had solemnly proclaimed the illegality of that section. And had not Georgia ordered her Governor to resist the enforcement of that provision of that ancient act of Congress? "I declare to God ... that I believe nothing would tend so much to compose the present agitation of the country ... as the repeal of that portion of the judiciary act." Gordon was about to discuss the nefarious case of Cohensvs.Virginia when his emotions overcame him—"he did not wish ... to go into the merits of the question."[1386]

Thomas F. Foster of Georgia said that the Judiciary Committee had reported under a "galling fire from the press"; quoted Marshall's unfortunate language in the Convention of 1788;[1387]and insisted that the "vast and alarming" powers of the Supreme Court must be bridled.[1388]

But the friends of the court overwhelmed the supporters of the bill, which was rejected by a vote of 138 to 51.[1389]It was ominous, however, that the South stood almost solid against the court and Nationalism.

FOOTNOTES:[1269]Marshall to his wife, March 12, 1826, MS.[1270]Nevertheless he watched the course of politics closely. For instance: immediately after the House had elected John Quincy Adams to the Presidency, Marshall writes his brother a letter full of political gossip. He is surprised that Adams was chosen on the first ballot; many think Kremer's letter attacking Clay caused this unexpectedly quick decision, since it "was & is thought a sheer calumny; & the resentment of Clay's friends probably determined some of the western members who were hesitating. It is supposed to have had some influence elsewhere. The vote of New York was not decided five minutes before the ballots were taken."Marshall tells his brother about Cabinet rumors—Crawford has refused the Treasury and Clay has been offered the office of Secretary of State. "It is meer [sic] common rumor" that Clay will accept. "Mr. Adams will undoubtedly wish to strengthen himself in the west," and Clay is strong in that section unless Kremer's letter has weakened him. The Chief Justice at first thought it had, but "on reflection" doubts whether it will "make any difference." (Marshall to his brother, Feb. 14, 1825, MS.) Marshall here refers to the letter of George Kremer, a Representative in Congress from Pennsylvania. Kremer wrote an anonymous letter to theColumbian Observerin which he asserted that Clay had agreed to deliver votes to Adams as the price of Clay's appointment to the office of Secretary of State. After much bluster, Kremer admitted that he had no evidence whatever to support his charge; yet his accusation permanently besmirched Clay's reputation. (For an account of the Kremer incident see Sargent,i, 67-74, 123-24.)Out of the Kremer letter grew a distrust of Clay which he never really lived down. Some time later, John Randolph seized an opportunity to call the relation between President Adams and his Secretary of State "the coalition of Blifil and Black George—the combination, unheard of till then, of the Puritan with the blackleg." The bloodless, but not the less real duel, that followed, ended this quarrel, though the unjust charges never quite died out. (Schurz:Henry Clay,i, 273-74.)[1271]BaltimoreMarylander, March 22, 1828.[1272]Enquirer, April 4, 1828.[1273]Meaning Jackson. Clay to Marshall, April 8, 1828, MS.[1274]Marshall to Story, May 1, 1828,Proceedings, Mass. Hist. Soc.2d Series,xiv, 336-37.[1275]See chap.iof this volume.[1276]Thomas, whose wife died Feb. 2, 1829. (Paxton, 92.)[1277]Marshall to his wife, March 5 [1829], MS.[1278]Same to same, Feb. 1, 1829, MS.[1279]Jacquelin B. Harvie, who married Marshall's daughter, Mary.[1280]Marshall to his wife, March 5 [1829], MS.[1281]Marshall to Story, June 11, 1829,Proceedings, Mass. Hist. Soc.2d Series,xiv, 338-39.[1282]See vol.i, 216-17, of this work.[1283]Jefferson to Kercheval, July 12, 1816,Works: Ford,xii, 3-15.[1284]Same to same, Oct. 8, 1816,ib.footnote to 17.[1285]At the time of the convention the eastern part of the State paid, on the average, more than three times as much in taxes per acre as the west. The extremes were startling—the trans-Alleghany section (West Virginia) paid only 92 cents for every $8.43 paid by the Tidewater. (Proceedings and Debates of the Virginia State Convention of 1829-30, 214, 258, 660-61.)[1286]Marshall to Story, July 3, 1829,Proceedings, Mass. Hist. Soc.2d Series,xiv, 340-41.[1287]Pickering to Marshall, Dec. 26, 1828, Pickering MSS. Mass. Hist. Soc.; see also Story,i, 386-96.[1288]Marshall to Mercer, April 7, 1827, Chamberlain MSS. Boston Pub. Lib.[1289]Lincoln to Greeley, Aug. 22, 1862,Complete Works of Abraham Lincoln: Nicolay and Hay,ii, 227-28.[1290]Marshall to Pickering, March 20, 1826,Proceedings, Mass. Hist. Soc.2d Series,xiv, 321.[1291]Fifteenth Annual Report, Proceedings, American Colonization Society.The abolitionists, later, mercilessly attacked the Colonization Society. (See Wilson:Rise of the Slave Power,i, 208et seq.)[1292]Fourteenth Annual Report, Proceedings, American Colonization Society.[1293]His wife's illness. She died soon afterwards. Seeinfra, 524-25.[1294]Marshall to Gurley, Dec. 14, 1831,Fifteenth Annual Report, Proceedings, American Colonization Society, pp. vi-viii.In a letter even less emotional than Marshall's, Madison favored the same plan. (Ib.pp. v, vi.) Lafayette, with his unfailing floridity, says that he is "proud ... of the honor of being one of the Vice Presidents of the Society," and that "the progressing state of our Liberia establishment is ... a source of enjoyment, and the most lively interest" to him. (Ib.p. v.)At the time of his death, Marshall was President of the Virginia branch of the Society, and his ancient enemy, John Tyler, who succeeded him in that office, paid a remarkable tribute to the goodness and greatness of the man he had so long opposed. (Tyler:Tyler,i, 567-68.)[1295]10 Wheaton, 114.[1296]Ib.115. Marshall delivered this opinion March 15, 1825.[1297]Ib.114.[1298]Ib.118-19.[1299]Ib.122-23.[1300]2 Peters, 150-56.[1301]Marshall to Greenhow, Oct. 17, 1809, MSS. "Judges and Eminent Lawyers," Mass. Hist. Soc.[1302]Seesupra, 209-18, of this volume.[1303]12 Wheaton, 214et seq.John Saunders, a citizen of Kentucky, sued George M. Ogden, a citizen of Louisiana, on bills of exchange which Ogden, then a citizen of New York, had accepted in 1806, but which were protested for non-payment. The defendant pleaded a discharge granted by a New York court under the insolvent law of that State enacted in 1801. (Ib.) On the manuscript records of the Supreme Court, Saunders is spelledSanders. After the case was filed, the death of Ogden was suggested, and his executors, Charles Harrod and Francis B. Ogden, were substituted.[1304]Washington, Johnson, Thompson, and Trimble each delivered long opinions supporting this view. (12 Wheaton, 254-331, 358-369.)[1305]Ib.334.[1306]Ib.335.[1307]Ib.337.[1308]Ib.356.[1309]Ib.357.[1310]Story and Duval concurred with Marshall.[1311]12 Wheaton, 65-90.[1312]Webster to Biddle, Feb. 20, 1827,Writings and Speeches of Webster: (Nat. ed.)xvi, 140.[1313]12 Wheaton, 90-116.[1314]Grigsby:Virginia Convention of 1829-30; and see Ambler:Sectionalism in Virginia, 145. Chaptervof Professor Ambler's book is devoted exclusively to the convention. Also see preface toDebates Va. Conv.iii; and see Dodd, inAmerican Journal of Sociology,xxvi, no. 6, 735et seq.; and Anderson, 229-36.[1315]Debates, Va. Conv.23.[1316]Ib.25.[1317]Ib.25-31.[1318]Statement of Marshall. (Ib.872.)[1319]Debates, Va. Conv.33.[1320]Seesupra, 146, 147.[1321]See Giles's speech,Debates, Va. Conv.604-05.[1322]See Ambler:Sectionalism in Virginia, 139.[1323]See vol.ii, 62-69, of this work.[1324]Serious abuses sprang up, however. In the convention, William Naylor of Hampshire County charged that the office of sheriff was sold to the highest bidder, sometimes at public auction. (Debates, Va. Conv.486; and see Anderson, 229.)[1325]See Marshall's defense of the County Court system,infra, 491.[1326]See vol.i, 302, of this work.[1327]For example, Thomas R. Joynes of Accomack County, who earnestly opposed Marshall in the Judiciary debate, said that no man felt "more respect" than he for Marshall's opinions which are justly esteemed "not only in this Convention, but throughout the United States." (Debates, Va. Conv.505.) Randolph spoke of "the very great weight" which Marshall had in the convention, in Virginia, and throughout the Nation. (Ib.500.) Thomas M. Bayly of Accomack County, while utterly disagreeing with the Chief Justice on the County Court system, declared that Marshall, "as a lawyer and Judge, is without a rival." (Ib.510.) Richard H. Henderson of Loudoun County called the Chief Justice his "political father" whose lessons he delighted to follow, and upon whose "wisdom, ... virtue, ... prudence" he implicitly relied. (Henderson's statement as repeated by Benjamin W. Leigh,ib.544.) Charles F. Mercer of the same county "expressed toward Judge Marshall a filial respect and veneration not surpassed by the ties which had bound him to a natural parent." (Ib.563.) Such are examples of the expressions toward Marshall throughout the prolonged sessions of the convention.[1328]See vol.iii, chap,ii, of this work.[1329]Debates, Va. Conv.871-72.[1330]Ib.872-74.[1331]Debates, Va. Conv.873.[1332]Seeinfra, 493-501.[1333]Accordingly the following provision was inserted into the Constitution: "No law abolishing any court shall be construed to deprive a Judge thereof of his office, unless two-thirds of the members of each House present concur in the passing thereof; but the Legislature may assign other Judicial duties to the Judges of courts abolished by any law enacted by less than two-thirds of the members of each House present." (Articlev, Section 2, Constitution of Virginia, 1830.)[1334]Debates, Va. Conv.505.[1335]Debates, Va. Conv.509.[1336]Ib.524, 530, 531, 533, 534.[1337]Ib.604-05.[1338]Ib.605. The provision as it finally appeared in the constitution was that these "appointments shall be made by the Governor, on the recommendation of the respective County Courts." (Articlev, Section 7, Constitution of Virginia, 1830.)[1339]Debates, Va. Conv.615-17.[1340]See vol.iii, chap.ii, of this work.[1341]Debates, Va. Conv.619.[1342]Ib.618-19.[1343]Ib.726.[1344]See vol.iii, chap.ii, of this work.[1345]Debates, Va. Conv.731.[1346]Debates, Va. Conv.726-27.[1347]Debates, Va. Conv.727-29.[1348]Debates, Va. Conv.729-30.[1349]See especially the speech of Benjamin Watkins Leigh,ib.733-37.[1350]Seeib.for ayes and noes, 740, 741, 742, 744, 748.[1351]Ib.764.[1352]Debates, Va. Conv.767.[1353]Ib.880.[1354]Compare Marshall's report (ib.33) with Articlevof the constitution (ib.901-02; and seesupra, 491, note 2.)[1355]Contrast Marshall's resolutions (Debates, Va. Conv.39-40), which expressed the conservative stand, with those of William H. Fitzhugh of Fairfax County (ib.41-42), of Samuel Clayton of Campbell County (ib.42), of Charles S. Morgan of Monongalia (ib.43-44), and of Alexander Campbell of Brooke County (ib.45-46), which state the views of the radicals.[1356]See, for instance, the speech of John R. Cooke of Frederick County for the radicals (Debates, Va. Conv.54-65), of Abel P. Upshur of Northampton for the conservatives (ib.65-79), of Philip Doddridge of Brooke County for the radicals (ib.79-89), of Philip P. Barbour of Orange County for the conservatives (ib.90-98), and especially the speeches of Benjamin Watkins Leigh for the conservatives (ib.151-74, 544-48). Indeed, the student cannot well afford to omit any one of the addresses in this remarkable contest.[1357]It is at this point that we see the reason for Jefferson's alarm thirteen years before the convention was called. (See supra, 469.)[1358]Debates, Va. Conv.497-500.[1359]Debates, Va. Conv.561-62.[1360]Constitution of Virginia, 1830, Articleiii, Sections 1 and 2.[1361]Ib.Articleiii, Section 14.[1362]Seesupra, 469.[1363]See next chapter.[1364]March 12, 1830.[1365]4 Peters, 432.[1366]4 Peters, 432.[1367]Ib.433.[1368]Ib.434.[1369]4 Peters, 434-36.[1370]Ib.437.[1371]Ib.420.[1372]Ib.438.[1373]See 552-58.[1374]4 Peters, 438-44.[1375]Ib.445-50.[1376]Ib.458.[1377]4 Peters, 464.[1378]Story to Ticknor, Jan. 22, 1831, Story,ii, 49. Nevertheless Story did not despair. "It is now whispered, that the demonstrations of public opinion are so strong, that the majority [of the Judiciary Committee] will conclude not to present their report." (Ib.)[1379]Marshall to Story, Oct. 15, 1830,Proceedings, Mass. Hist. Soc.2d Series,xiv, 342.[1380]Seeinfra, 584.[1381]Debates, 21st Cong. 2d Sess. 532.[1382]Ib.535.[1383]Ib.534.[1384]Ib.659.[1385]Ib.665.[1386]Debates, 21st Cong. 2d Sess. 620-21.[1387]Ib.731, 748; and see vol.i, 454-55, of this work.[1388]Debates, 21st Cong. 2d Sess. 739.[1389]Debates, 21st Cong. 2d Sess. 542.This was the last formal attempt, but one, made in Congress during Marshall's lifetime, to impair the efficiency of National courts. The final attack was made by Joseph Lecompte, a Representative from Kentucky, who on January 27, 1832, offered a resolution instructing the Judiciary Committee to "inquire into the expediency of amending the constitution ... so that the judges of the Supreme Court, and of the inferior courts, shall hold their offices for a limited term of years." On February 24, the House, by a vote of 141 to 27, refused to consider Lecompte's resolution, ignoring his plea to be allowed to explain it. (Debates, 22d Cong. 1st Sess. 1856-57.) So summary and brusque—almost contemptuous—was the rejection of Lecompte's proposal, as almost to suggest that personal feeling was an element in the action taken by the House.

[1269]Marshall to his wife, March 12, 1826, MS.

[1270]Nevertheless he watched the course of politics closely. For instance: immediately after the House had elected John Quincy Adams to the Presidency, Marshall writes his brother a letter full of political gossip. He is surprised that Adams was chosen on the first ballot; many think Kremer's letter attacking Clay caused this unexpectedly quick decision, since it "was & is thought a sheer calumny; & the resentment of Clay's friends probably determined some of the western members who were hesitating. It is supposed to have had some influence elsewhere. The vote of New York was not decided five minutes before the ballots were taken."Marshall tells his brother about Cabinet rumors—Crawford has refused the Treasury and Clay has been offered the office of Secretary of State. "It is meer [sic] common rumor" that Clay will accept. "Mr. Adams will undoubtedly wish to strengthen himself in the west," and Clay is strong in that section unless Kremer's letter has weakened him. The Chief Justice at first thought it had, but "on reflection" doubts whether it will "make any difference." (Marshall to his brother, Feb. 14, 1825, MS.) Marshall here refers to the letter of George Kremer, a Representative in Congress from Pennsylvania. Kremer wrote an anonymous letter to theColumbian Observerin which he asserted that Clay had agreed to deliver votes to Adams as the price of Clay's appointment to the office of Secretary of State. After much bluster, Kremer admitted that he had no evidence whatever to support his charge; yet his accusation permanently besmirched Clay's reputation. (For an account of the Kremer incident see Sargent,i, 67-74, 123-24.)Out of the Kremer letter grew a distrust of Clay which he never really lived down. Some time later, John Randolph seized an opportunity to call the relation between President Adams and his Secretary of State "the coalition of Blifil and Black George—the combination, unheard of till then, of the Puritan with the blackleg." The bloodless, but not the less real duel, that followed, ended this quarrel, though the unjust charges never quite died out. (Schurz:Henry Clay,i, 273-74.)

Marshall tells his brother about Cabinet rumors—Crawford has refused the Treasury and Clay has been offered the office of Secretary of State. "It is meer [sic] common rumor" that Clay will accept. "Mr. Adams will undoubtedly wish to strengthen himself in the west," and Clay is strong in that section unless Kremer's letter has weakened him. The Chief Justice at first thought it had, but "on reflection" doubts whether it will "make any difference." (Marshall to his brother, Feb. 14, 1825, MS.) Marshall here refers to the letter of George Kremer, a Representative in Congress from Pennsylvania. Kremer wrote an anonymous letter to theColumbian Observerin which he asserted that Clay had agreed to deliver votes to Adams as the price of Clay's appointment to the office of Secretary of State. After much bluster, Kremer admitted that he had no evidence whatever to support his charge; yet his accusation permanently besmirched Clay's reputation. (For an account of the Kremer incident see Sargent,i, 67-74, 123-24.)

Out of the Kremer letter grew a distrust of Clay which he never really lived down. Some time later, John Randolph seized an opportunity to call the relation between President Adams and his Secretary of State "the coalition of Blifil and Black George—the combination, unheard of till then, of the Puritan with the blackleg." The bloodless, but not the less real duel, that followed, ended this quarrel, though the unjust charges never quite died out. (Schurz:Henry Clay,i, 273-74.)

[1271]BaltimoreMarylander, March 22, 1828.

[1272]Enquirer, April 4, 1828.

[1273]Meaning Jackson. Clay to Marshall, April 8, 1828, MS.

[1274]Marshall to Story, May 1, 1828,Proceedings, Mass. Hist. Soc.2d Series,xiv, 336-37.

[1275]See chap.iof this volume.

[1276]Thomas, whose wife died Feb. 2, 1829. (Paxton, 92.)

[1277]Marshall to his wife, March 5 [1829], MS.

[1278]Same to same, Feb. 1, 1829, MS.

[1279]Jacquelin B. Harvie, who married Marshall's daughter, Mary.

[1280]Marshall to his wife, March 5 [1829], MS.

[1281]Marshall to Story, June 11, 1829,Proceedings, Mass. Hist. Soc.2d Series,xiv, 338-39.

[1282]See vol.i, 216-17, of this work.

[1283]Jefferson to Kercheval, July 12, 1816,Works: Ford,xii, 3-15.

[1284]Same to same, Oct. 8, 1816,ib.footnote to 17.

[1285]At the time of the convention the eastern part of the State paid, on the average, more than three times as much in taxes per acre as the west. The extremes were startling—the trans-Alleghany section (West Virginia) paid only 92 cents for every $8.43 paid by the Tidewater. (Proceedings and Debates of the Virginia State Convention of 1829-30, 214, 258, 660-61.)

[1286]Marshall to Story, July 3, 1829,Proceedings, Mass. Hist. Soc.2d Series,xiv, 340-41.

[1287]Pickering to Marshall, Dec. 26, 1828, Pickering MSS. Mass. Hist. Soc.; see also Story,i, 386-96.

[1288]Marshall to Mercer, April 7, 1827, Chamberlain MSS. Boston Pub. Lib.

[1289]Lincoln to Greeley, Aug. 22, 1862,Complete Works of Abraham Lincoln: Nicolay and Hay,ii, 227-28.

[1290]Marshall to Pickering, March 20, 1826,Proceedings, Mass. Hist. Soc.2d Series,xiv, 321.

[1291]Fifteenth Annual Report, Proceedings, American Colonization Society.The abolitionists, later, mercilessly attacked the Colonization Society. (See Wilson:Rise of the Slave Power,i, 208et seq.)

[1292]Fourteenth Annual Report, Proceedings, American Colonization Society.

[1293]His wife's illness. She died soon afterwards. Seeinfra, 524-25.

[1294]Marshall to Gurley, Dec. 14, 1831,Fifteenth Annual Report, Proceedings, American Colonization Society, pp. vi-viii.In a letter even less emotional than Marshall's, Madison favored the same plan. (Ib.pp. v, vi.) Lafayette, with his unfailing floridity, says that he is "proud ... of the honor of being one of the Vice Presidents of the Society," and that "the progressing state of our Liberia establishment is ... a source of enjoyment, and the most lively interest" to him. (Ib.p. v.)At the time of his death, Marshall was President of the Virginia branch of the Society, and his ancient enemy, John Tyler, who succeeded him in that office, paid a remarkable tribute to the goodness and greatness of the man he had so long opposed. (Tyler:Tyler,i, 567-68.)

[1294]Marshall to Gurley, Dec. 14, 1831,Fifteenth Annual Report, Proceedings, American Colonization Society, pp. vi-viii.

In a letter even less emotional than Marshall's, Madison favored the same plan. (Ib.pp. v, vi.) Lafayette, with his unfailing floridity, says that he is "proud ... of the honor of being one of the Vice Presidents of the Society," and that "the progressing state of our Liberia establishment is ... a source of enjoyment, and the most lively interest" to him. (Ib.p. v.)

At the time of his death, Marshall was President of the Virginia branch of the Society, and his ancient enemy, John Tyler, who succeeded him in that office, paid a remarkable tribute to the goodness and greatness of the man he had so long opposed. (Tyler:Tyler,i, 567-68.)

[1295]10 Wheaton, 114.

[1296]Ib.115. Marshall delivered this opinion March 15, 1825.

[1297]Ib.114.

[1298]Ib.118-19.

[1299]Ib.122-23.

[1300]2 Peters, 150-56.

[1301]Marshall to Greenhow, Oct. 17, 1809, MSS. "Judges and Eminent Lawyers," Mass. Hist. Soc.

[1302]Seesupra, 209-18, of this volume.

[1303]12 Wheaton, 214et seq.John Saunders, a citizen of Kentucky, sued George M. Ogden, a citizen of Louisiana, on bills of exchange which Ogden, then a citizen of New York, had accepted in 1806, but which were protested for non-payment. The defendant pleaded a discharge granted by a New York court under the insolvent law of that State enacted in 1801. (Ib.) On the manuscript records of the Supreme Court, Saunders is spelledSanders. After the case was filed, the death of Ogden was suggested, and his executors, Charles Harrod and Francis B. Ogden, were substituted.

[1304]Washington, Johnson, Thompson, and Trimble each delivered long opinions supporting this view. (12 Wheaton, 254-331, 358-369.)

[1305]Ib.334.

[1306]Ib.335.

[1307]Ib.337.

[1308]Ib.356.

[1309]Ib.357.

[1310]Story and Duval concurred with Marshall.

[1311]12 Wheaton, 65-90.

[1312]Webster to Biddle, Feb. 20, 1827,Writings and Speeches of Webster: (Nat. ed.)xvi, 140.

[1313]12 Wheaton, 90-116.

[1314]Grigsby:Virginia Convention of 1829-30; and see Ambler:Sectionalism in Virginia, 145. Chaptervof Professor Ambler's book is devoted exclusively to the convention. Also see preface toDebates Va. Conv.iii; and see Dodd, inAmerican Journal of Sociology,xxvi, no. 6, 735et seq.; and Anderson, 229-36.

[1315]Debates, Va. Conv.23.

[1316]Ib.25.

[1317]Ib.25-31.

[1318]Statement of Marshall. (Ib.872.)

[1319]Debates, Va. Conv.33.

[1320]Seesupra, 146, 147.

[1321]See Giles's speech,Debates, Va. Conv.604-05.

[1322]See Ambler:Sectionalism in Virginia, 139.

[1323]See vol.ii, 62-69, of this work.

[1324]Serious abuses sprang up, however. In the convention, William Naylor of Hampshire County charged that the office of sheriff was sold to the highest bidder, sometimes at public auction. (Debates, Va. Conv.486; and see Anderson, 229.)

[1325]See Marshall's defense of the County Court system,infra, 491.

[1326]See vol.i, 302, of this work.

[1327]For example, Thomas R. Joynes of Accomack County, who earnestly opposed Marshall in the Judiciary debate, said that no man felt "more respect" than he for Marshall's opinions which are justly esteemed "not only in this Convention, but throughout the United States." (Debates, Va. Conv.505.) Randolph spoke of "the very great weight" which Marshall had in the convention, in Virginia, and throughout the Nation. (Ib.500.) Thomas M. Bayly of Accomack County, while utterly disagreeing with the Chief Justice on the County Court system, declared that Marshall, "as a lawyer and Judge, is without a rival." (Ib.510.) Richard H. Henderson of Loudoun County called the Chief Justice his "political father" whose lessons he delighted to follow, and upon whose "wisdom, ... virtue, ... prudence" he implicitly relied. (Henderson's statement as repeated by Benjamin W. Leigh,ib.544.) Charles F. Mercer of the same county "expressed toward Judge Marshall a filial respect and veneration not surpassed by the ties which had bound him to a natural parent." (Ib.563.) Such are examples of the expressions toward Marshall throughout the prolonged sessions of the convention.

[1328]See vol.iii, chap,ii, of this work.

[1329]Debates, Va. Conv.871-72.

[1330]Ib.872-74.

[1331]Debates, Va. Conv.873.

[1332]Seeinfra, 493-501.

[1333]Accordingly the following provision was inserted into the Constitution: "No law abolishing any court shall be construed to deprive a Judge thereof of his office, unless two-thirds of the members of each House present concur in the passing thereof; but the Legislature may assign other Judicial duties to the Judges of courts abolished by any law enacted by less than two-thirds of the members of each House present." (Articlev, Section 2, Constitution of Virginia, 1830.)

[1334]Debates, Va. Conv.505.

[1335]Debates, Va. Conv.509.

[1336]Ib.524, 530, 531, 533, 534.

[1337]Ib.604-05.

[1338]Ib.605. The provision as it finally appeared in the constitution was that these "appointments shall be made by the Governor, on the recommendation of the respective County Courts." (Articlev, Section 7, Constitution of Virginia, 1830.)

[1339]Debates, Va. Conv.615-17.

[1340]See vol.iii, chap.ii, of this work.

[1341]Debates, Va. Conv.619.

[1342]Ib.618-19.

[1343]Ib.726.

[1344]See vol.iii, chap.ii, of this work.

[1345]Debates, Va. Conv.731.

[1346]Debates, Va. Conv.726-27.

[1347]Debates, Va. Conv.727-29.

[1348]Debates, Va. Conv.729-30.

[1349]See especially the speech of Benjamin Watkins Leigh,ib.733-37.

[1350]Seeib.for ayes and noes, 740, 741, 742, 744, 748.

[1351]Ib.764.

[1352]Debates, Va. Conv.767.

[1353]Ib.880.

[1354]Compare Marshall's report (ib.33) with Articlevof the constitution (ib.901-02; and seesupra, 491, note 2.)

[1355]Contrast Marshall's resolutions (Debates, Va. Conv.39-40), which expressed the conservative stand, with those of William H. Fitzhugh of Fairfax County (ib.41-42), of Samuel Clayton of Campbell County (ib.42), of Charles S. Morgan of Monongalia (ib.43-44), and of Alexander Campbell of Brooke County (ib.45-46), which state the views of the radicals.

[1356]See, for instance, the speech of John R. Cooke of Frederick County for the radicals (Debates, Va. Conv.54-65), of Abel P. Upshur of Northampton for the conservatives (ib.65-79), of Philip Doddridge of Brooke County for the radicals (ib.79-89), of Philip P. Barbour of Orange County for the conservatives (ib.90-98), and especially the speeches of Benjamin Watkins Leigh for the conservatives (ib.151-74, 544-48). Indeed, the student cannot well afford to omit any one of the addresses in this remarkable contest.

[1357]It is at this point that we see the reason for Jefferson's alarm thirteen years before the convention was called. (See supra, 469.)

[1358]Debates, Va. Conv.497-500.

[1359]Debates, Va. Conv.561-62.

[1360]Constitution of Virginia, 1830, Articleiii, Sections 1 and 2.

[1361]Ib.Articleiii, Section 14.

[1362]Seesupra, 469.

[1363]See next chapter.

[1364]March 12, 1830.

[1365]4 Peters, 432.

[1366]4 Peters, 432.

[1367]Ib.433.

[1368]Ib.434.

[1369]4 Peters, 434-36.

[1370]Ib.437.

[1371]Ib.420.

[1372]Ib.438.

[1373]See 552-58.

[1374]4 Peters, 438-44.

[1375]Ib.445-50.

[1376]Ib.458.

[1377]4 Peters, 464.

[1378]Story to Ticknor, Jan. 22, 1831, Story,ii, 49. Nevertheless Story did not despair. "It is now whispered, that the demonstrations of public opinion are so strong, that the majority [of the Judiciary Committee] will conclude not to present their report." (Ib.)

[1379]Marshall to Story, Oct. 15, 1830,Proceedings, Mass. Hist. Soc.2d Series,xiv, 342.

[1380]Seeinfra, 584.

[1381]Debates, 21st Cong. 2d Sess. 532.

[1382]Ib.535.

[1383]Ib.534.

[1384]Ib.659.

[1385]Ib.665.

[1386]Debates, 21st Cong. 2d Sess. 620-21.

[1387]Ib.731, 748; and see vol.i, 454-55, of this work.

[1388]Debates, 21st Cong. 2d Sess. 739.

[1389]Debates, 21st Cong. 2d Sess. 542.This was the last formal attempt, but one, made in Congress during Marshall's lifetime, to impair the efficiency of National courts. The final attack was made by Joseph Lecompte, a Representative from Kentucky, who on January 27, 1832, offered a resolution instructing the Judiciary Committee to "inquire into the expediency of amending the constitution ... so that the judges of the Supreme Court, and of the inferior courts, shall hold their offices for a limited term of years." On February 24, the House, by a vote of 141 to 27, refused to consider Lecompte's resolution, ignoring his plea to be allowed to explain it. (Debates, 22d Cong. 1st Sess. 1856-57.) So summary and brusque—almost contemptuous—was the rejection of Lecompte's proposal, as almost to suggest that personal feeling was an element in the action taken by the House.

[1389]Debates, 21st Cong. 2d Sess. 542.

This was the last formal attempt, but one, made in Congress during Marshall's lifetime, to impair the efficiency of National courts. The final attack was made by Joseph Lecompte, a Representative from Kentucky, who on January 27, 1832, offered a resolution instructing the Judiciary Committee to "inquire into the expediency of amending the constitution ... so that the judges of the Supreme Court, and of the inferior courts, shall hold their offices for a limited term of years." On February 24, the House, by a vote of 141 to 27, refused to consider Lecompte's resolution, ignoring his plea to be allowed to explain it. (Debates, 22d Cong. 1st Sess. 1856-57.) So summary and brusque—almost contemptuous—was the rejection of Lecompte's proposal, as almost to suggest that personal feeling was an element in the action taken by the House.

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