FOOTNOTES:

Associate Justices at the last session of the Supreme Court over which John Marshall presidedAssociate Justices at the last session of the Supreme Court over which John Marshall presided:McLEAN, THOMPSON, STORY, WAYNE, BALDWIN

It is doubtful whether history shows more than a few examples of an aged man, ill, disheartened, and knowing that he soon must die, who nevertheless continued his work to the very last with such scrupulous care as did Marshall. He took active part in all cases argued and decided and actually delivered the opinion of the court in eleven of the most important.[1559]None of these are of any historical interest; but in all of them Marshall was as clear and vigorous in reasoning and style as he had been in the immortal Constitutional opinions delivered at the height of his power. The last words Marshall ever uttered as Chief Justice sparkle with vitality and high ideals. In Mitchelet al. vs.The United States,[1560]a case involving land titles in Florida, he said, in ruling on a motion to continue the case: "Though the hope of deciding causes to the mutual satisfaction of parties would be chimerical, that of convincing them that the case has been fully and fairly considered ... may be sometimes indulged. Even this is not always attainable. In the excitement produced by ardent controversy, gentlemen view the same object through such different media that minds, not infrequently receive therefrom precisely opposite impressions. The Court, however, must see with its own eyes, and exercise its own judgment, guided by its own reason."[1561]

At last Marshall had grave intimations that his life could not be prolonged. Quite suddenly his health declined, although his mind was as strong and clear as ever. "Chief Justice Marshall still possesses his intellectual powers in very high vigor," writes Story during the last session of the Supreme Court over which his friend and leader presided. "But his physical strength is manifestly on the decline; and it is now obvious, that after a year or two, he will resign, from the pressing infirmities of age.... What a gloom will spread over the nation when he is gone! His place will not, nay, it cannot be supplied."[1562]

As the spring of 1835 ripened into summer, Marshall grew weaker. "I pray God," wrote Story in agonies of apprehension, "that he may long live to bless his country; but I confess that I have many fears whether he can be long with us. His complaints are, I am sure, incurable, but I suppose that they may be alleviated, unless he should meet with some accidental cold or injury to aggravate them. Of these, he is in perpetual danger, from his imprudence as well as from the natural effects of age."[1563]

In May, 1835, Kent went to Richmond in order to see Marshall, whom "he found very emaciated,feeble & dangerously low. He injured his Spine by a Post Coach fall & oversetting.... He ... made mePromise to see him at Washington next Winter."[1564]

Kent wrote Jeremiah Smith of New Hampshire that Marshall must soon die. Smith was overwhelmed with grief "because his life, at this time especially, is of incalculable value." Marshall's "views ... of our national affairs" were those of Smith also. "Perfectly just in themselves they now come to us confirmed by the dying attestation of one of the greatest and best of men."[1565]

Marshall's "incurable complaint," which so distressed Story, was a disease of the liver.[1566]Finding his health failing, he again repaired to Philadelphia for treatment by Dr. Physick. When informed that the prospects for his friend's recovery were desperate, Story was inconsolable. "Great, good and excellent man!" he wrote. "I shall never see his like again! His gentleness, his affectionateness, his glorious virtues, his unblemished life, his exalted talents, leave him without a rival or a peer."[1567]

At six o'clock in the evening of Monday, July 6, 1835, John Marshall died, in his eightieth year, in the city where American Independence was proclaimed and the American Constitution was born—the city which, a patriotic soldier, he had striven to protect and where he had received his earliest national recognition. Without pain, his mind as clear and strong as ever, he "met his fate with the fortitude of a Philosopher, and the resignation of a Christian," testifies Dr. Nathaniel Chapman, who was present.[1568]By Marshall's direction, the last thing taken from his body after he expired was the locket which his wife had hung about his neck just before she died.[1569]The morning after his death, the bar of Philadelphia met to pay tribute to Marshall, and at half-past five of the same day a town meeting was held for the same purpose.[1570]

Immediately afterward, his body was sent by boat to Richmond. The bench, bar, and hundreds of citizens of Philadelphia accompanied the funeral party to the vessel. During the voyage a transfer was made to another craft.[1571]A committee, consisting of Major-General Winfield Scott, of the United States Army, Henry Baldwin, Associate Justice of the Supreme Court, Richard Peters, formerly Judge for the District of Pennsylvania, John Sergeant, Edward D. Ingraham, and William Rawle, of the Philadelphia bar, went to Richmond.

In the late afternoon of July 9, 1835, the steamboat Kentucky, bearing Marshall's body, drew up at the Richmond wharf. Throughout the day the bells had been tolling, the stores were closed, and, as the vessel came within sight, a salute of three guns was fired.All Richmond assembled at the landing. An immense procession marched to Marshall's house,[1572]where he had requested that his body be first taken, and then to the "New Burying Ground," on Shockoe Hill. There Bishop Richard Channing Moore of the Episcopal Church read the funeral service, and John Marshall was buried by the side of his wife.

When his ancient enemy and antagonist, the RichmondEnquirer, published the news of Marshall's death, it expressed briefly its true estimate of the man. It would be impossible, said theEnquirer, to over-praise Marshall's "brilliant talents." It would be "a more grateful incense" to his memory to say "that he was as much beloved as he was respected.... There was about him so little of 'the insolence of office,' and so much of the benignity of the man, that his presence always produced ... the most delightful impressions. There was something irresistibly winning about him." Strangers could hardly be persuaded that "in the plain, unpretending... man who told his anecdote and enjoyedthe jest—they had been introduced to the Chief Justice of the United States, whose splendid powers had filled such a large space in the eye of mankind."[1573]

The RichmondWhig and Public Advertisersaid that "no man has lived or died in this country, save its father George Washington alone, who united such a warmth of affection for his person, with so deep and unaffected a respect for his character, and admiration for his great abilities. No man ever borepublic honors with so meek a dignity ... It is hard... to conceive of a more perfect character than his,for who can point to a vice, scarcely to a defect—or who can name a virtue that did not shine conspicuously in his life and conduct?"[1574]

The day after the funeral the citizens of Richmond gathered at and about the Capitol, again to honor the memory of their beloved neighbor and friend. The resolutions, offered by Benjamin Watkins Leigh, declared that the people of Richmond knew "better than any other community can know" Marshall's private and public "virtues," his "wisdom," "simplicity," "self-denial," "unbounded charity," and "warm benevolence towards all men." Since nothing they can say can do justice to "such a man," the people of Richmond "most confidently trust, to History alone, to render due honors to his memory, by a faithful and immortal record of his wisdom, his virtues and his services."[1575]

All over the country similar meetings were held, similar resolutions adopted. Since the death of Washington no such universal public expressions of appreciation and sorrow had been witnessed.[1576]The press of the country bore laudatory editorials and articles. Even Hezekiah Niles, than whom no man had attacked Marshall's Nationalist opinions more savagely, lamented his death, and avowed himself unequal to the task of writing a tribute toMarshall that would be worthy of the subject. "'A great man has fallen in Israel,'" said Niles'sRegister. "Next toWashington, only, did he possess the reverence and homage of the heart of the American people."[1577]

One of the few hostile criticisms of Marshall's services appeared in theNew York Evening Postover the name of "Atlantic."[1578]This paper had, by now, departed from the policy of its Hamiltonian founder. "Atlantic" said that Marshall's "political doctrines ... were of the ultra federal or aristocratic kind.... With Hamilton" he "distrusted the virtue and intelligence of the people, and was in favor of a strong and vigorous General Government, at the expense of the rights of the States and of the people." While he was "sincere" in his beliefs and "a good and exemplary man" who "truly loved his country ... he has been, all his life long, a stumbling block ... in the way of democratic principles.... His situation ... at the head of an important tribunal, constituted in utter defiance of the very first principles of democracy, has always been ... an occasion of lively regret. That he is at length removed from that station is a source of satisfaction."[1579]

The most intimate and impressive tributes came, of course, from Virginia. Scarcely a town in the State that did not hold meetings, hear orations, adopt resolutions. For thirty days the people of Lynchburgwore crape on the arm.[1580]Petersburg honored "the Soldier, the Orator, the Patriot, the Statesman, the Jurist, and above all, the good and virtuous man."[1581]Norfolk testified to his "transcendent ability, perfect integrity and pure patriotism."[1582]For weeks the Virginia demonstrations continued. That at Alexandria was held five weeks after his death. "The flags at the public square and on the shipping were displayed at half mast; the bells were tolled ... during the day, and minute guns fired by the Artillery"; there was a parade of military companies, societies and citizens, and an oration by Edgar Snowden.[1583]

The keenest grief of all, however, was felt by Marshall's intimates of the Quoit Club of Richmond. Benjamin Watkins Leigh proposed, and the club resolved, that, as to the vacancy caused by Marshall's death, "there should be no attempt to fill it ever; but that the number of the club should remain one less than it was before his death."[1584]

The Grave of John MarshallThe Grave of John Marshall

Story composed this "inscription for a cenotaph":

"To Marshall reared—the great, the good, the wise;Born for all ages, honored in all skies;His was the fame to mortals rarely given,Begun on earth, but fixed in aim on heaven.Genius, and learning, and consummate skill,Moulding each thought, obedient to the will;Affections pure, as e'er warmed human breast,And love, in blessing others, doubly blest;Virtue unspotted, uncorrupted truth,Gentle in age, and beautiful in youth;—These were his bright possessions. These had powerTo charm through life and cheer his dying hour.Are these all perished? No! but snatched from time,To bloom afresh in yonder sphere sublime.Kind was the doom (the fruit was ripe) to die,Mortal is clothed with immortality."[1585]

Upon his tomb, however, were carved only the words he himself wrote for that purpose two days before he died, leaving nothing but the final date to be supplied:

JOHN MARSHALLThe son of Thomas and Mary MarshallWas born on the 24th ofSeptember, 1755; intermarriedwith Mary Willis Amblerthe 3d of January, 1783;departed this life the 6th dayof July, 1835.

FOOTNOTES:[1390]Marshall to Story, June 26, 1831,Proceedings, Mass. Hist. Soc. 2dSeries,xiv, 344-45.[1391]Same to same, Oct. 12, 1831,ib.346-48.[1392]Marshall to Story, Oct. 12, 1831,Proceedings, Mass. Hist. Soc.2d Series,xiv, 347. A rumor finally got about that Marshall contemplated resigning. (See Niles,xl, 90.)[1393]The resolutions of the bar had included the same idea, and Marshall emphasized it by reiterating it in his response.[1394]Hazard'sPennsylvania Register, as quoted in Dillon,iii, 430-33. The artist referred to was either Thomas Sully, or Henry Inman, who had studied under Sully. During the following year, Inman painted the portrait and it was so excellent that it brought the artist his first general recognition. The original now hangs in the rooms of the Philadelphia Law Association. A reproduction of it appears as the frontispiece of this volume.[1395]Randolph:A Memoir on the Life and Character of Philip Syng Physick, M.D.97-99.[1396]Marshall to Story, Nov. 10, 1831,Proceedings, Mass. Hist. Soc.2d Series,xiv, 348-49.[1397]Story to Peters, Oct. 29, 1831, Story,ii, 70.[1398]Marshall to his wife, Oct. 6, 1831, MS.[1399]This is the only indication in any of Marshall's letters that his wife had written him.[1400]Mrs. Marshall had a modest fortune of her own, bequeathed to her by her uncle. She invested this quite independently of her husband. (Leigh to Biddle, Sept. 7, 1837, McGrane, 289.)[1401]Marshall to his wife, Nov. 8, 1831, MS.[1402]Terhune, 98. This locket is now in the possession of Marshall's granddaughter, Miss Emily Harvie of Richmond.[1403]Story to his wife, March 4, 1832, Story,ii, 86-87.Soon after the death of his wife, Marshall made his will "entirely in [his] ... own handwriting." A more informal document of the kind seldom has been written. It is more like a familiar letter than a legal paper; yet it is meticulously specific. "I owe nothing on my own account," he begins. (He specifies one or two small obligations as trustee for women relatives and as surety for "considerable sums" for his son-in-law, Jacquelin B. Harvie.) The will shows that he owns bank and railroad stock and immense quantities of land. He equally divides his property among his children, making special provision that the portion of his daughter Mary shall be particularly safeguarded.One item of the will is curious: "I give to each of my grandsons named John one thousand acres, part of my tract of land called Canaan lying in Randolph county. If at the time of my death either of my sons should have no son living named John, then I give the thousand acres to any son he may have named Thomas, in token for my love for my father and veneration for his memory. If there should be no son named John or Thomas, then I give the land to the eldest son and if no sons to the daughters."He makes five additions to his will, three of which he specifically calls "codicils." One of these is principally "to emancipate my faithful servant Robin and I direct his emancipation if hechusesto conform to the laws on that subject, requiring that he should leave the state or if permission can be obtained for his continuing to reside in it." If Robin elects to go to Liberia, Marshall gives him one hundred dollars. "If he does not go there I give him fifty dollars." In case it should be found "impracticable to liberate" Robin, "I desire that he may choose his master among my sons, or if he prefer my daughter that he may be held in trust for her and her family as is the other property bequeathed in trust for her, and that he may always be treated as a faithful and meritorious servant." (Will and Codicils of John Marshall, Records of Henrico County, Richmond, and Fauquier County, Warrenton, Virginia.)[1404]Meade,ii, footnote to 222. It would seem that Marshall showed this tribute to no one during his lifetime except, perhaps, to his children. At any rate, it was first made public in Bishop Meade's book in 1857.[1405]Statements to the author by Miss Elizabeth Marshall of "Leeds Manor," and by Judge J. K. N. Norton of Alexandria, Va.[1406]Statement to the author by Miss Emily Harvie. Most of Marshall's letters to Story during these years were written from Richmond.[1407]Story to Sumner, Feb. 6, 1833, Story,ii, 120.[1408]Seeinfra, 540-51.[1409]See Catterall, 407, 421-22, 467; and see especially Parton:Jackson,iii, 257-58.[1410]Catterall, Appendixix, 508.[1411]Ib.chaps.vandvii. Biddle was appointed director of the Bank by President Monroe in 1819, and displayed such ability that, in 1823, he was elected president of the institution. Not until he received information that Jackson was hostile to the Bank did Biddle begin the morally wrong and practically unwise policy of loaning money without proper security to editors and members of Congress.[1412]Parton:Jackson,iii, 260.[1413]Richardson,ii, 462.[1414]Ib.528-29[1415]See Catterall, 235. For account of the fight for the Bank Bill seeib.chap.x.[1416]Richardson,ii, 580-82.[1417]Ib.582-83.[1418]Richardson,ii, 584.[1419]Jackson's veto message was used with tremendous effect in the Presidential campaign of 1832. There cannot be the least doubt that the able politicians who managed Jackson's campaign and, indeed, shaped his Administration, designed that the message should be put to this use. These politicians were William B. Lewis, Amos Kendall, Martin Van Buren, and Samuel Swartwout.[1420]Richardson,ii, 590-91.[1421]Marshall to Story, Aug. 2, 1832,Proceedings, Mass. Hist. Soc.2d Series,xiv, 349-51.[1422]Richardson,ii, 638. There was a spirited contest in the House over this bill. (SeeDebates, 22d Cong. 1st Sess. 2438-44, 3248-57, 3286.) It reached the President at the end of the session, so that he had only to refuse to sign it, in order to kill the measure.[1423]In fact Jackson did send a message to Congress on December 6, 1832, explaining his reasons for having let the bill die. (Richardson,ii, 638-39.)[1424]Marshall to Story, Aug. 2, 1832,Proceedings, Mass. Hist. Soc.2d Series,xiv, 350.[1425]Marshall to Story, Dec. 3, 1834,Proceedings, Mass. Hist. Soc.2d Series,xiv, 359.The outspoken and irritable Kent expressed the conservatives' opinion of Jackson almost as forcibly as Ames stated their views of Jefferson: "I look upon Jackson as a detestable, ignorant, reckless, vain and malignant Tyrant.... This American Elective Monarchy frightens me. The Experiment, with its foundations laid on universal Suffrage and an unfettered and licentious Press is of too violent a nature for our excitable People. We have not in our large cities, if we have in our country, moral firmness enough to bear it.It racks the machine too much." (Kent to Story, April 11, 1834, Story MSS. Mass. Hist. Soc.) In this letter Kent perfectly states Marshall's convictions, which were shared by nearly every judge and lawyer in America who was not "in politics."[1426]Seesupra, 420.[1427]Annals, 18th Cong. 1st Sess. 2097.[1428]Annals, 18th Cong. 1st Sess. 2163.[1429]Ib.2208.[1430]Debates, 20th Cong. 1st Sess. 746.[1431]Ib.2431.[1432]Ib.2434.[1433]Ib.2435.[1434]Debates, 20th Cong. 1st Sess. 2437.[1435]This was the plan of George McDuffie. Calhoun approved it. (Houston:A Critical Study of Nullification in South Carolina, 70-71.)[1436]Ib.[1437]Ib.75.[1438]Calhoun's "Exposition" was reported by a special committee of the South Carolina House of Representatives on December 19, 1828. It was not adopted, however, but was printed, and is included inStatutes at Large of South Carolina, edited by Thomas Cooper,i, 247-73.[1439]Jefferson to Giles, Dec. 26, 1825,Works: Ford,xii, 425-26.[1440]Niles,xxv, 48.[1441]See Phillips:Georgia and State Rights, inAnnual Report, Am. Hist. Ass'n(1901),ii, 71.[1442]Resolution of Dec. 27, 1827,Laws of Georgia, 1827, 249; and see Phillips, 72.[1443]Act of Dec. 20,Laws of Georgia, 1828, 88-89.[1444]Parton:Jackson,iii, 272.[1445]Phillips, 72.[1446]Act of Dec. 22,Laws of Georgia, 1830, 114-17.[1447]Act of Dec. 23,ib.118; Dec. 21,ib.127-43; Dec. 22,ib.145-46[1448]Wirt to Carr, June 21, 1830, Kennedy,ii, 292-93.[1449]SeeDebates, 21st Cong. 1st Sess. 309-57, 359-67, 374-77, 994-1133. For the text of this bill as it passed the House seeib.1135-36. It became a law May 28, 1830. (U.S. Statutes at Large,iv, 411.) For an excellent account of the execution of this measure see Abel:The History of the Events Resulting in Indian Consolidation West of the Mississippi River, Annual Report, Am. Hist. Ass'n, 1906,i, 381-407. This essay, by Dr. Anne Héloise Abel, is an exhaustive and accurate treatment of the origin, development, and execution of the policy pursued by the National and State Governments toward the Indians. Dr. Abel attaches a complete bibliography and index to her brochure.[1450]5 Peters, 1.[1451]Marshall to Carr, 1830, Kennedy,ii, 296-97.As a young man Marshall had thought so highly of Indians that he supported Patrick Henry's plan for white amalgamation with them. (See vol.i, 241, of this work.) Yet he did not think our general policy toward the Indians had been unwise. They were, he wrote Story, "a fierce and dangerous enemy whose love of war made them sometimes the aggressors, whose numbers and habits made them formidable, and whose cruel system of warfare seemed to justify every endeavour to remove them to a distance from civilized settlements. It was not until after the adoption of our present government that respect for our own safety permitted us to give full indulgence to those principles of humanity and justice which ought always to govern our conduct towards the aborigines when this course can be pursued without exposing ourselves to the most afflicting calamities. That time, however, is unquestionably arrived, and every oppression now exercised on a helpless people depending on our magnanimity and justice for the preservation of their existence impresses a deep stain on the American character. I often think with indignation on our disreputable conduct (as I think) in the affair of the Creeks of Georgia." (Marshall to Story, Oct. 29, 1829,Proceedings, Mass. Hist. Soc.2d Series,xiv, 337-38.)[1452]Niles,xxxix, 338.[1453]Ib.353.[1454]Memoirs, J. Q. A.: Adams,viii, 262-63.[1455]The argument for the Cherokee Nation was made March 12 and 14, 1831.[1456]5 Peters, 15.[1457]5 Peters, 16-17.[1458]Ib.17-18.[1459]5 Peters, 20. Justice Smith Thompson dissented in an opinion of immense power in which Story concurred. These two Justices maintained that in legal controversies, such as that between the Cherokees and Georgia, the Indian tribe must be treated as a foreign nation. (Ib.50-80.)Thompson's opinion was as Nationalist as any ever delivered by Marshall. It well expressed the general opinion of the North, which was vigorously condemnatory of Georgia as the ruthless despoiler of the rights of the Indians and the robber of their lands.[1460]Seesupra, 121-25.[1461]Phillips, 79.[1462]See McMaster,vi, 47-50.[1463]Phillips, 81.[1464]Ib.80-81.[1465]6 Peters, 534-35.[1466]Story to his wife, Feb. 26, 1832, Story,ii, 84.[1467]6 Peters, 536.[1468]Ib.537-42.[1469]Ib.542.[1470]Ib.542-61[1471]See vol.iii, 504-13, of this work.[1472]6 Peters, 561-63.[1473]Story to Ticknor, March 8, 1832, Story,ii, 83.[1474]Lumpkin's Message to the Legislature, Nov. 6, 1832, as quoted in Phillips, 82.[1475]Greeley:The American Conflict,i, 106; and see Phillips, 80.[1476]When the Georgia Legislature first met after the decision of the Worcester case, acts were passed to strengthen the lottery and distribution of Cherokee lands (Acts of Nov. 14, 22, and Dec. 24, 1832,Laws of Georgia, 1832, 122-25, 126, 127) and to organize further the Cherokee territory under the guise of protecting the Indians. (Act of Dec. 24, 1832,ib. 102-05.) Having demonstrated the power of the State and the impotence of the highest court of the Nation, the Governor of Georgia, one year after Marshall delivered his opinion, pardoned Worcester and Butler, but not without protests from the people.Two years later, Georgia's victory was sealed by a final successful defiance of the Supreme Court. One James Graves was convicted of murder; a writ of error was procured from the Supreme Court; and a citation issued to Georgia as in the case of George Tassels. The high spirit of the State, lifted still higher by three successive triumphs over the Supreme Court, received the order with mingled anger and derision. Governor Lumpkin threatened secession: "Such attempts, if persevered in, will eventuate in the dismemberment and overthrow of our great confederacy," he told the Legislature. (Governor Lumpkin's Special Message to the Georgia Legislature, Nov. 7, 1834, as quoted in Phillips, 84.)The Indians finally were forced to remove to the Indian Territory. (See Phillips, 83.) Worcester went to his Vermont home.[1477]Debates, 21st Cong. 1st Sess. 58. The debate between Webster and Hayne occurred on a resolution offered by Senator Samuel Augustus Foot of Connecticut, "that the Committee on Public Lands be instructed to inquire into the expediency of limiting for a certain period the sales of public lands," etc. (Ib.11.) The discussion of this resolution, which lasted more than three months (seeib.11-302), quickly turned to the one great subject of the times, the power of the National Government and the rights of the States. It was on this question that the debate between Webster and Hayne took place.[1478]Ib.64. Compare with Marshall's language in Cohensvs. Virginia,supra, 355.[1479]Debates, 21st Cong. 1st Sess. 73.[1480]See Marshall's statement of this principle,supra, 293, 355.[1481]Debates, 21st Cong. 1st Sess. 74.This was the Constitutional theory of the Nationalists. As a matter of fact, it was not, perhaps, strictly true. There can be little doubt that a majority of the people did not favor the Constitution when adopted by the Convention and ratified by the States. Had manhood suffrage existed at that time, and had the Constitution been submitted directly to the people, it is highly probable that it would have been rejected. (See vol.i, chaps,ix-xii, of this work.)[1482]Debates, 21st Cong. 1st Sess. 76. See chap,iii, vol.iii, of this work.[1483]Debates, 21st Cong. 1st Sess. 78.[1484]Ib.See Marshall's opinion in Cohensvs.Virginia,supra, 347-57.[1485]Debates, 21st Cong. 1st Sess. 80.[1486]Niles,xxxix, 118.[1487]Ib.330.[1488]Debates, 21st Cong. 1st Sess. 287.[1489]Ib.285.[1490]Marshall to Johnston, May 22, 1830, MSS. "Society Collection," Pa. Hist. Soc.[1491]Madison to Everett, Aug. 28, 1830,Writings: Hunt,ix, 383-403.[1492]North American Review(1830),xxxi, 537-46.[1493]Marshall to Story, Oct. 15, 1830,Proceedings, Mass. Hist. Soc.2d Series,xiv, 342-43.[1494]Jackson to the Committee, June 14, 1831, Niles,xl, 351.[1495]State Doc. Fed. Rel.: Ames, 167-68.[1496]Marshall to Story, Aug. 2, 1832,Proceedings, Mass. Hist. Soc.2d Series,xiv, 350.[1497]Same to same, Sept. 22, 1832,ib.351-52.[1498]Niles,xlii, 387.[1499]Ib.388.[1500]Under Act of Oct. 26, 1832,Statutes at Large of South Carolina: Cooper,i, 309-10.[1501]Statutes at Large of South Carolina: Cooper,i, 329-31.[1502]Ib.434-45.[1503]Ib.444-45; also Niles,xliii, 219-20.[1504]Marshall to Peters, Dec. 3, 1832, Peters MSS. Pa. Hist. Soc.[1505]Seesupra, footnote to 115.[1506]Richardson,ii, 640-56; Niles,xliii, 260-64.[1507]Story to his wife, Jan. 27, 1838, Story,ii, 119.[1508]Niles,xliii, 266-67.[1509]Ib.287.[1510]Ib.[1511]Statutes at Large of South Carolina: Cooper,i, 355.[1512]Ib.356-57.[1513]Statutes at Large of South Carolina: Cooper,i, 362.[1514]Ib.360.[1515]Ib.370.[1516]December 20, the same day that Hayne's Proclamation appeared.[1517]Statutes at Large of South Carolina: Cooper,i, 271-74.[1518]Ib.viii, 562-64.[1519]Ib.562-98.[1520]Parton:Jackson,iii, 460-61, 472; Bassett:Life of Andrew Jackson, 564; MacDonald:Jacksonian Democracy, 156.[1521]Parton:Jackson,iii, 459.[1522]Niles,xliii, 312.[1523]Ib.332.[1524]Parton:Jackson,iii, 472.[1525]Richardson,ii, 598-99.[1526]Niles,xliii, 275.[1527]Ib.[1528]Ib.276.[1529]Niles,xliii, 394-96. The resolutions, as adopted, provided for only one commissioner. (Seeinfra, 573.)[1530]Writings and Speeches of Daniel Webster(Nat. ed.)xiii, 40-42.[1531]Marshall to Story, Dec. 25, 1832,Proceedings,Mass. Hist. Soc.2d Series,xiv, 352-54.[1532]Niles,xliii, 396-97; alsoStatutes at Large of South Carolina: Cooper,i, 381-83.[1533]Niles,xliii, 397. For the details of Leigh's mission seeib.377-93; alsoStatutes at Large of South Carolina: Cooper,i, 384-94.[1534]Niles,xliii, 380-82.[1535]See Parton:Jackson,iii, 475-82.[1536]Marshall to Story, April 24, 1833,Proceedings, Mass. Hist. Soc.2d Series,xiv, 356-57.[1537]Ib.[1538]Same to same, Nov. 16, 1833,ib.358.[1539]Marshall to Story, June 3, 1833,Proceedings, Mass. Hist. Soc.2d Series,xiv, 358.[1540]Story ends hisCommentaries on the Constitution of the United Statesby a fervent, passionate, and eloquent appeal for the preservation, at all hazards, of the Constitution and the Union.[1541]Marshall to Story, July 31, 1833, Story,ii, 135-36.[1542]Marshall to Story, Oct. 6, 1834, Story,ii, 172-73.[1543]Story to his wife, Jan. 20, 1833,ib.116.[1544]Ib.117.[1545]Story to his wife, Jan. 20, 1833, Story,ii, 116.[1546]July 4, 1826.[1547]Jefferson's attacks on Marshall in the X. Y. Z. affair. (See vol.ii, 359-63, 368-69, of this work.)[1548]Marshall to Major Henry Lee, Jan. 20, 1832, MSS. Lib. Cong. In no collection, but, with a few unimportant letters, in a portfolio marked "M," sometimes referred to as "Marshall Papers."[1549]Green Bag,viii, 463.[1550]Marshall to Story, July 3, 1829,Proceedings, Mass. Hist Soc.2d Series,xiv, 340.[1551]Story to Marshall, January, 1833, Story,ii, 132-33. This letter appears in Story'sCommentaries on the Constitution, immediately after the title-page of volumei.Story's perfervid eulogium did not overstate the feeling—the instinct—of the public. Nathan Sargent, that trustworthy writer of reminiscences, testifies that, toward the end of Marshall's life, his name had "become a household word with the American people implying greatness, purity, honesty, and all the Christian virtues." (Sargent,i, 299.)[1552]Briscoevs.The Commonwealth's Bank of the State of Kentucky, 8 Peters, 118et seq.[1553]Seesupra, 509-13.[1554]Act of Dec. 25,Laws of Kentucky, 1820, 183-88.[1555]The Mayor, Aldermen and Commonalty of the City of New Yorkvs.Miln, 8 Peters, 121et seq.[1556]11 Peters, 104. This was the first law against unrestricted immigration.[1557]8 Peters, 122.[1558]These cases were not decided until 1837, when Roger Brooke Taney of Maryland took his seat on the bench as Marshall's successor. Philip Pendleton Barbour of Virginia succeeded Duval. Of the seven Justices, only one disciple of Marshall remained, Joseph Story.In the New York case the court held that the State law was a local police regulation. (11 Peters, 130-43; 144-53.) Story dissented in a signally able opinion of almost passionate fervor."I have the consolation to know," he concludes, "that I had the entire concurrence ... of that great constitutional jurist, the late Mr. Chief Justice Marshall. Having heard the former arguments, his deliberate opinion was that the act of New York was unconstitutional, and that the present case fell directly within the principles established in the case of Gibbons v. Ogden." (Ib.153-61.)In the Kentucky Bank case, decided immediately after the New York immigrant case, Marshall's opinion in Craigvs.Missouri was completely repudiated, although Justice McLean, who delivered the opinion of the court (ib.311-28), strove to show that the judgment was within Marshall's reasoning.Story, of course, dissented, and never did that extraordinary man write with greater power and brilliancy. When the case was first argued in 1834, he said, a majority of the court "were decidedly of the opinion" that the Kentucky Bank Law was unconstitutional. "In principle it was thought to be decided by the case of Craig v. The State of Missouri." Among that majority was Marshall—"a name never to be pronounced without reverence." (Ib.328.)In closing his great argument, Story says that the frankness and fervor of his language are due to his "reverence and affection" for Marshall. "I have felt an earnest desire to vindicate his memory.... I am sensible that I have not done that justice to his opinion which his own great mind and exalted talents would have done. But ... I hope that I have shown that there were solid grounds on which to rest his exposition of the Constitution.His saltem accumulem donis, et fungar inani munere." (11 Peters, 350.)[1559]Lessee of Samuel Smithvs.Robert Trabue's Heirs, 9 Peters, 4-6; U.S.vs.Nourse,ib.11-32; Caldwellet al. vs.Carrington's Heirs,ib.87-105; Bradleyvs.The Washington, etc. Steam Packet Co.ib.107-16; Delassusvs.U.S.ib.118-36; Chouteau's Heirsvs.U.S.ib.137-46; U.S.vs.Clarke,ib.168-70; U.S.vs.. Huertas,ib.171-74; Field etal. vs.U.S.ib.182-203; Mayor, etc. of New Orleansvs.De Armas and Cucullo,ib.. 224-37; Life and Fire Ins. Co. of New Yorkvs.Adams,ib.571-605.[1560]Ib.711-63.[1561]9 Peters, 723.[1562]Story to Fay, March 2, 1835, Story,ii, 193.[1563]Story to Peters, May 20, 1835,ib.194.[1564]Kent's Journal, May 16, 1835, Kent MSS. Lib. Cong.[1565]Smith to Kent, June 13, 1835, Kent MSS. Lib. Cong.[1566]Randolph:Physick, 100-01.[1567]Story to Peters, June 19, 1835, Story,ii, 199-200.[1568]Chapman to Brockenbrough, July 6, 1835, quoted in the RichmondEnquirer, July 10, 1835. Marshall died "at the Boarding House of Mrs. Crim, Walnut street below Fourth." (PhiladelphiaInquirer, July 7, 1835.) Three of Marshall's sons were with him when he died. His eldest son, Thomas, when hastening to his father's bedside, had been killed in Baltimore by the fall upon his head of bricks from a chimney blown down by a sudden and violent storm. Marshall was not informed of his son's death.[1569]Terhune, 98.[1570]PhiladelphiaInquirer, July 7, 1835.[1571]Niles,xlviii, 322.[1572]RichmondEnquirerJuly 10, 1835.[1573]Ib.[1574]RichmondWhig and Public Advertiser, July 10, 1835.[1575]RichmondEnquirer, July 14, 1835.[1576]See Sargent,i, 299. If the statements in the newspapers and magazines of the time are to be trusted, even the death of Jefferson called forth no such public demonstrations as were accorded Marshall.[1577]Niles,xlviii, 321.[1578]Undoubtedly William Leggett, one of the editors. See Leggett:A Collection of Political Writings,ii, 3-7.[1579]As reprinted inRichmond Whig and Public Advertiser, July 14, 1835.[1580]RichmondEnquirer, July 21, 1835.[1581]Ib.[1582]Ib.July 17, 1835.[1583]AlexandriaGazette, Aug. 13, 1835, reprinted in the RichmondEnquirer, Aug. 21, 1835.[1584]Magruder:John Marshall, 282.[1585]Story,ii, 206.

[1390]Marshall to Story, June 26, 1831,Proceedings, Mass. Hist. Soc. 2dSeries,xiv, 344-45.

[1391]Same to same, Oct. 12, 1831,ib.346-48.

[1392]Marshall to Story, Oct. 12, 1831,Proceedings, Mass. Hist. Soc.2d Series,xiv, 347. A rumor finally got about that Marshall contemplated resigning. (See Niles,xl, 90.)

[1393]The resolutions of the bar had included the same idea, and Marshall emphasized it by reiterating it in his response.

[1394]Hazard'sPennsylvania Register, as quoted in Dillon,iii, 430-33. The artist referred to was either Thomas Sully, or Henry Inman, who had studied under Sully. During the following year, Inman painted the portrait and it was so excellent that it brought the artist his first general recognition. The original now hangs in the rooms of the Philadelphia Law Association. A reproduction of it appears as the frontispiece of this volume.

[1395]Randolph:A Memoir on the Life and Character of Philip Syng Physick, M.D.97-99.

[1396]Marshall to Story, Nov. 10, 1831,Proceedings, Mass. Hist. Soc.2d Series,xiv, 348-49.

[1397]Story to Peters, Oct. 29, 1831, Story,ii, 70.

[1398]Marshall to his wife, Oct. 6, 1831, MS.

[1399]This is the only indication in any of Marshall's letters that his wife had written him.

[1400]Mrs. Marshall had a modest fortune of her own, bequeathed to her by her uncle. She invested this quite independently of her husband. (Leigh to Biddle, Sept. 7, 1837, McGrane, 289.)

[1401]Marshall to his wife, Nov. 8, 1831, MS.

[1402]Terhune, 98. This locket is now in the possession of Marshall's granddaughter, Miss Emily Harvie of Richmond.

[1403]Story to his wife, March 4, 1832, Story,ii, 86-87.Soon after the death of his wife, Marshall made his will "entirely in [his] ... own handwriting." A more informal document of the kind seldom has been written. It is more like a familiar letter than a legal paper; yet it is meticulously specific. "I owe nothing on my own account," he begins. (He specifies one or two small obligations as trustee for women relatives and as surety for "considerable sums" for his son-in-law, Jacquelin B. Harvie.) The will shows that he owns bank and railroad stock and immense quantities of land. He equally divides his property among his children, making special provision that the portion of his daughter Mary shall be particularly safeguarded.One item of the will is curious: "I give to each of my grandsons named John one thousand acres, part of my tract of land called Canaan lying in Randolph county. If at the time of my death either of my sons should have no son living named John, then I give the thousand acres to any son he may have named Thomas, in token for my love for my father and veneration for his memory. If there should be no son named John or Thomas, then I give the land to the eldest son and if no sons to the daughters."He makes five additions to his will, three of which he specifically calls "codicils." One of these is principally "to emancipate my faithful servant Robin and I direct his emancipation if hechusesto conform to the laws on that subject, requiring that he should leave the state or if permission can be obtained for his continuing to reside in it." If Robin elects to go to Liberia, Marshall gives him one hundred dollars. "If he does not go there I give him fifty dollars." In case it should be found "impracticable to liberate" Robin, "I desire that he may choose his master among my sons, or if he prefer my daughter that he may be held in trust for her and her family as is the other property bequeathed in trust for her, and that he may always be treated as a faithful and meritorious servant." (Will and Codicils of John Marshall, Records of Henrico County, Richmond, and Fauquier County, Warrenton, Virginia.)

[1403]Story to his wife, March 4, 1832, Story,ii, 86-87.

Soon after the death of his wife, Marshall made his will "entirely in [his] ... own handwriting." A more informal document of the kind seldom has been written. It is more like a familiar letter than a legal paper; yet it is meticulously specific. "I owe nothing on my own account," he begins. (He specifies one or two small obligations as trustee for women relatives and as surety for "considerable sums" for his son-in-law, Jacquelin B. Harvie.) The will shows that he owns bank and railroad stock and immense quantities of land. He equally divides his property among his children, making special provision that the portion of his daughter Mary shall be particularly safeguarded.

One item of the will is curious: "I give to each of my grandsons named John one thousand acres, part of my tract of land called Canaan lying in Randolph county. If at the time of my death either of my sons should have no son living named John, then I give the thousand acres to any son he may have named Thomas, in token for my love for my father and veneration for his memory. If there should be no son named John or Thomas, then I give the land to the eldest son and if no sons to the daughters."

He makes five additions to his will, three of which he specifically calls "codicils." One of these is principally "to emancipate my faithful servant Robin and I direct his emancipation if hechusesto conform to the laws on that subject, requiring that he should leave the state or if permission can be obtained for his continuing to reside in it." If Robin elects to go to Liberia, Marshall gives him one hundred dollars. "If he does not go there I give him fifty dollars." In case it should be found "impracticable to liberate" Robin, "I desire that he may choose his master among my sons, or if he prefer my daughter that he may be held in trust for her and her family as is the other property bequeathed in trust for her, and that he may always be treated as a faithful and meritorious servant." (Will and Codicils of John Marshall, Records of Henrico County, Richmond, and Fauquier County, Warrenton, Virginia.)

[1404]Meade,ii, footnote to 222. It would seem that Marshall showed this tribute to no one during his lifetime except, perhaps, to his children. At any rate, it was first made public in Bishop Meade's book in 1857.

[1405]Statements to the author by Miss Elizabeth Marshall of "Leeds Manor," and by Judge J. K. N. Norton of Alexandria, Va.

[1406]Statement to the author by Miss Emily Harvie. Most of Marshall's letters to Story during these years were written from Richmond.

[1407]Story to Sumner, Feb. 6, 1833, Story,ii, 120.

[1408]Seeinfra, 540-51.

[1409]See Catterall, 407, 421-22, 467; and see especially Parton:Jackson,iii, 257-58.

[1410]Catterall, Appendixix, 508.

[1411]Ib.chaps.vandvii. Biddle was appointed director of the Bank by President Monroe in 1819, and displayed such ability that, in 1823, he was elected president of the institution. Not until he received information that Jackson was hostile to the Bank did Biddle begin the morally wrong and practically unwise policy of loaning money without proper security to editors and members of Congress.

[1412]Parton:Jackson,iii, 260.

[1413]Richardson,ii, 462.

[1414]Ib.528-29

[1415]See Catterall, 235. For account of the fight for the Bank Bill seeib.chap.x.

[1416]Richardson,ii, 580-82.

[1417]Ib.582-83.

[1418]Richardson,ii, 584.

[1419]Jackson's veto message was used with tremendous effect in the Presidential campaign of 1832. There cannot be the least doubt that the able politicians who managed Jackson's campaign and, indeed, shaped his Administration, designed that the message should be put to this use. These politicians were William B. Lewis, Amos Kendall, Martin Van Buren, and Samuel Swartwout.

[1420]Richardson,ii, 590-91.

[1421]Marshall to Story, Aug. 2, 1832,Proceedings, Mass. Hist. Soc.2d Series,xiv, 349-51.

[1422]Richardson,ii, 638. There was a spirited contest in the House over this bill. (SeeDebates, 22d Cong. 1st Sess. 2438-44, 3248-57, 3286.) It reached the President at the end of the session, so that he had only to refuse to sign it, in order to kill the measure.

[1423]In fact Jackson did send a message to Congress on December 6, 1832, explaining his reasons for having let the bill die. (Richardson,ii, 638-39.)

[1424]Marshall to Story, Aug. 2, 1832,Proceedings, Mass. Hist. Soc.2d Series,xiv, 350.

[1425]Marshall to Story, Dec. 3, 1834,Proceedings, Mass. Hist. Soc.2d Series,xiv, 359.The outspoken and irritable Kent expressed the conservatives' opinion of Jackson almost as forcibly as Ames stated their views of Jefferson: "I look upon Jackson as a detestable, ignorant, reckless, vain and malignant Tyrant.... This American Elective Monarchy frightens me. The Experiment, with its foundations laid on universal Suffrage and an unfettered and licentious Press is of too violent a nature for our excitable People. We have not in our large cities, if we have in our country, moral firmness enough to bear it.It racks the machine too much." (Kent to Story, April 11, 1834, Story MSS. Mass. Hist. Soc.) In this letter Kent perfectly states Marshall's convictions, which were shared by nearly every judge and lawyer in America who was not "in politics."

[1425]Marshall to Story, Dec. 3, 1834,Proceedings, Mass. Hist. Soc.2d Series,xiv, 359.

The outspoken and irritable Kent expressed the conservatives' opinion of Jackson almost as forcibly as Ames stated their views of Jefferson: "I look upon Jackson as a detestable, ignorant, reckless, vain and malignant Tyrant.... This American Elective Monarchy frightens me. The Experiment, with its foundations laid on universal Suffrage and an unfettered and licentious Press is of too violent a nature for our excitable People. We have not in our large cities, if we have in our country, moral firmness enough to bear it.It racks the machine too much." (Kent to Story, April 11, 1834, Story MSS. Mass. Hist. Soc.) In this letter Kent perfectly states Marshall's convictions, which were shared by nearly every judge and lawyer in America who was not "in politics."

[1426]Seesupra, 420.

[1427]Annals, 18th Cong. 1st Sess. 2097.

[1428]Annals, 18th Cong. 1st Sess. 2163.

[1429]Ib.2208.

[1430]Debates, 20th Cong. 1st Sess. 746.

[1431]Ib.2431.

[1432]Ib.2434.

[1433]Ib.2435.

[1434]Debates, 20th Cong. 1st Sess. 2437.

[1435]This was the plan of George McDuffie. Calhoun approved it. (Houston:A Critical Study of Nullification in South Carolina, 70-71.)

[1436]Ib.

[1437]Ib.75.

[1438]Calhoun's "Exposition" was reported by a special committee of the South Carolina House of Representatives on December 19, 1828. It was not adopted, however, but was printed, and is included inStatutes at Large of South Carolina, edited by Thomas Cooper,i, 247-73.

[1439]Jefferson to Giles, Dec. 26, 1825,Works: Ford,xii, 425-26.

[1440]Niles,xxv, 48.

[1441]See Phillips:Georgia and State Rights, inAnnual Report, Am. Hist. Ass'n(1901),ii, 71.

[1442]Resolution of Dec. 27, 1827,Laws of Georgia, 1827, 249; and see Phillips, 72.

[1443]Act of Dec. 20,Laws of Georgia, 1828, 88-89.

[1444]Parton:Jackson,iii, 272.

[1445]Phillips, 72.

[1446]Act of Dec. 22,Laws of Georgia, 1830, 114-17.

[1447]Act of Dec. 23,ib.118; Dec. 21,ib.127-43; Dec. 22,ib.145-46

[1448]Wirt to Carr, June 21, 1830, Kennedy,ii, 292-93.

[1449]SeeDebates, 21st Cong. 1st Sess. 309-57, 359-67, 374-77, 994-1133. For the text of this bill as it passed the House seeib.1135-36. It became a law May 28, 1830. (U.S. Statutes at Large,iv, 411.) For an excellent account of the execution of this measure see Abel:The History of the Events Resulting in Indian Consolidation West of the Mississippi River, Annual Report, Am. Hist. Ass'n, 1906,i, 381-407. This essay, by Dr. Anne Héloise Abel, is an exhaustive and accurate treatment of the origin, development, and execution of the policy pursued by the National and State Governments toward the Indians. Dr. Abel attaches a complete bibliography and index to her brochure.

[1450]5 Peters, 1.

[1451]Marshall to Carr, 1830, Kennedy,ii, 296-97.As a young man Marshall had thought so highly of Indians that he supported Patrick Henry's plan for white amalgamation with them. (See vol.i, 241, of this work.) Yet he did not think our general policy toward the Indians had been unwise. They were, he wrote Story, "a fierce and dangerous enemy whose love of war made them sometimes the aggressors, whose numbers and habits made them formidable, and whose cruel system of warfare seemed to justify every endeavour to remove them to a distance from civilized settlements. It was not until after the adoption of our present government that respect for our own safety permitted us to give full indulgence to those principles of humanity and justice which ought always to govern our conduct towards the aborigines when this course can be pursued without exposing ourselves to the most afflicting calamities. That time, however, is unquestionably arrived, and every oppression now exercised on a helpless people depending on our magnanimity and justice for the preservation of their existence impresses a deep stain on the American character. I often think with indignation on our disreputable conduct (as I think) in the affair of the Creeks of Georgia." (Marshall to Story, Oct. 29, 1829,Proceedings, Mass. Hist. Soc.2d Series,xiv, 337-38.)

[1451]Marshall to Carr, 1830, Kennedy,ii, 296-97.

As a young man Marshall had thought so highly of Indians that he supported Patrick Henry's plan for white amalgamation with them. (See vol.i, 241, of this work.) Yet he did not think our general policy toward the Indians had been unwise. They were, he wrote Story, "a fierce and dangerous enemy whose love of war made them sometimes the aggressors, whose numbers and habits made them formidable, and whose cruel system of warfare seemed to justify every endeavour to remove them to a distance from civilized settlements. It was not until after the adoption of our present government that respect for our own safety permitted us to give full indulgence to those principles of humanity and justice which ought always to govern our conduct towards the aborigines when this course can be pursued without exposing ourselves to the most afflicting calamities. That time, however, is unquestionably arrived, and every oppression now exercised on a helpless people depending on our magnanimity and justice for the preservation of their existence impresses a deep stain on the American character. I often think with indignation on our disreputable conduct (as I think) in the affair of the Creeks of Georgia." (Marshall to Story, Oct. 29, 1829,Proceedings, Mass. Hist. Soc.2d Series,xiv, 337-38.)

[1452]Niles,xxxix, 338.

[1453]Ib.353.

[1454]Memoirs, J. Q. A.: Adams,viii, 262-63.

[1455]The argument for the Cherokee Nation was made March 12 and 14, 1831.

[1456]5 Peters, 15.

[1457]5 Peters, 16-17.

[1458]Ib.17-18.

[1459]5 Peters, 20. Justice Smith Thompson dissented in an opinion of immense power in which Story concurred. These two Justices maintained that in legal controversies, such as that between the Cherokees and Georgia, the Indian tribe must be treated as a foreign nation. (Ib.50-80.)Thompson's opinion was as Nationalist as any ever delivered by Marshall. It well expressed the general opinion of the North, which was vigorously condemnatory of Georgia as the ruthless despoiler of the rights of the Indians and the robber of their lands.

Thompson's opinion was as Nationalist as any ever delivered by Marshall. It well expressed the general opinion of the North, which was vigorously condemnatory of Georgia as the ruthless despoiler of the rights of the Indians and the robber of their lands.

[1460]Seesupra, 121-25.

[1461]Phillips, 79.

[1462]See McMaster,vi, 47-50.

[1463]Phillips, 81.

[1464]Ib.80-81.

[1465]6 Peters, 534-35.

[1466]Story to his wife, Feb. 26, 1832, Story,ii, 84.

[1467]6 Peters, 536.

[1468]Ib.537-42.

[1469]Ib.542.

[1470]Ib.542-61

[1471]See vol.iii, 504-13, of this work.

[1472]6 Peters, 561-63.

[1473]Story to Ticknor, March 8, 1832, Story,ii, 83.

[1474]Lumpkin's Message to the Legislature, Nov. 6, 1832, as quoted in Phillips, 82.

[1475]Greeley:The American Conflict,i, 106; and see Phillips, 80.

[1476]When the Georgia Legislature first met after the decision of the Worcester case, acts were passed to strengthen the lottery and distribution of Cherokee lands (Acts of Nov. 14, 22, and Dec. 24, 1832,Laws of Georgia, 1832, 122-25, 126, 127) and to organize further the Cherokee territory under the guise of protecting the Indians. (Act of Dec. 24, 1832,ib. 102-05.) Having demonstrated the power of the State and the impotence of the highest court of the Nation, the Governor of Georgia, one year after Marshall delivered his opinion, pardoned Worcester and Butler, but not without protests from the people.Two years later, Georgia's victory was sealed by a final successful defiance of the Supreme Court. One James Graves was convicted of murder; a writ of error was procured from the Supreme Court; and a citation issued to Georgia as in the case of George Tassels. The high spirit of the State, lifted still higher by three successive triumphs over the Supreme Court, received the order with mingled anger and derision. Governor Lumpkin threatened secession: "Such attempts, if persevered in, will eventuate in the dismemberment and overthrow of our great confederacy," he told the Legislature. (Governor Lumpkin's Special Message to the Georgia Legislature, Nov. 7, 1834, as quoted in Phillips, 84.)The Indians finally were forced to remove to the Indian Territory. (See Phillips, 83.) Worcester went to his Vermont home.

Two years later, Georgia's victory was sealed by a final successful defiance of the Supreme Court. One James Graves was convicted of murder; a writ of error was procured from the Supreme Court; and a citation issued to Georgia as in the case of George Tassels. The high spirit of the State, lifted still higher by three successive triumphs over the Supreme Court, received the order with mingled anger and derision. Governor Lumpkin threatened secession: "Such attempts, if persevered in, will eventuate in the dismemberment and overthrow of our great confederacy," he told the Legislature. (Governor Lumpkin's Special Message to the Georgia Legislature, Nov. 7, 1834, as quoted in Phillips, 84.)

The Indians finally were forced to remove to the Indian Territory. (See Phillips, 83.) Worcester went to his Vermont home.

[1477]Debates, 21st Cong. 1st Sess. 58. The debate between Webster and Hayne occurred on a resolution offered by Senator Samuel Augustus Foot of Connecticut, "that the Committee on Public Lands be instructed to inquire into the expediency of limiting for a certain period the sales of public lands," etc. (Ib.11.) The discussion of this resolution, which lasted more than three months (seeib.11-302), quickly turned to the one great subject of the times, the power of the National Government and the rights of the States. It was on this question that the debate between Webster and Hayne took place.

[1478]Ib.64. Compare with Marshall's language in Cohensvs. Virginia,supra, 355.

[1479]Debates, 21st Cong. 1st Sess. 73.

[1480]See Marshall's statement of this principle,supra, 293, 355.

[1481]Debates, 21st Cong. 1st Sess. 74.This was the Constitutional theory of the Nationalists. As a matter of fact, it was not, perhaps, strictly true. There can be little doubt that a majority of the people did not favor the Constitution when adopted by the Convention and ratified by the States. Had manhood suffrage existed at that time, and had the Constitution been submitted directly to the people, it is highly probable that it would have been rejected. (See vol.i, chaps,ix-xii, of this work.)

[1481]Debates, 21st Cong. 1st Sess. 74.

This was the Constitutional theory of the Nationalists. As a matter of fact, it was not, perhaps, strictly true. There can be little doubt that a majority of the people did not favor the Constitution when adopted by the Convention and ratified by the States. Had manhood suffrage existed at that time, and had the Constitution been submitted directly to the people, it is highly probable that it would have been rejected. (See vol.i, chaps,ix-xii, of this work.)

[1482]Debates, 21st Cong. 1st Sess. 76. See chap,iii, vol.iii, of this work.

[1483]Debates, 21st Cong. 1st Sess. 78.

[1484]Ib.See Marshall's opinion in Cohensvs.Virginia,supra, 347-57.

[1485]Debates, 21st Cong. 1st Sess. 80.

[1486]Niles,xxxix, 118.

[1487]Ib.330.

[1488]Debates, 21st Cong. 1st Sess. 287.

[1489]Ib.285.

[1490]Marshall to Johnston, May 22, 1830, MSS. "Society Collection," Pa. Hist. Soc.

[1491]Madison to Everett, Aug. 28, 1830,Writings: Hunt,ix, 383-403.

[1492]North American Review(1830),xxxi, 537-46.

[1493]Marshall to Story, Oct. 15, 1830,Proceedings, Mass. Hist. Soc.2d Series,xiv, 342-43.

[1494]Jackson to the Committee, June 14, 1831, Niles,xl, 351.

[1495]State Doc. Fed. Rel.: Ames, 167-68.

[1496]Marshall to Story, Aug. 2, 1832,Proceedings, Mass. Hist. Soc.2d Series,xiv, 350.

[1497]Same to same, Sept. 22, 1832,ib.351-52.

[1498]Niles,xlii, 387.

[1499]Ib.388.

[1500]Under Act of Oct. 26, 1832,Statutes at Large of South Carolina: Cooper,i, 309-10.

[1501]Statutes at Large of South Carolina: Cooper,i, 329-31.

[1502]Ib.434-45.

[1503]Ib.444-45; also Niles,xliii, 219-20.

[1504]Marshall to Peters, Dec. 3, 1832, Peters MSS. Pa. Hist. Soc.

[1505]Seesupra, footnote to 115.

[1506]Richardson,ii, 640-56; Niles,xliii, 260-64.

[1507]Story to his wife, Jan. 27, 1838, Story,ii, 119.

[1508]Niles,xliii, 266-67.

[1509]Ib.287.

[1510]Ib.

[1511]Statutes at Large of South Carolina: Cooper,i, 355.

[1512]Ib.356-57.

[1513]Statutes at Large of South Carolina: Cooper,i, 362.

[1514]Ib.360.

[1515]Ib.370.

[1516]December 20, the same day that Hayne's Proclamation appeared.

[1517]Statutes at Large of South Carolina: Cooper,i, 271-74.

[1518]Ib.viii, 562-64.

[1519]Ib.562-98.

[1520]Parton:Jackson,iii, 460-61, 472; Bassett:Life of Andrew Jackson, 564; MacDonald:Jacksonian Democracy, 156.

[1521]Parton:Jackson,iii, 459.

[1522]Niles,xliii, 312.

[1523]Ib.332.

[1524]Parton:Jackson,iii, 472.

[1525]Richardson,ii, 598-99.

[1526]Niles,xliii, 275.

[1527]Ib.

[1528]Ib.276.

[1529]Niles,xliii, 394-96. The resolutions, as adopted, provided for only one commissioner. (Seeinfra, 573.)

[1530]Writings and Speeches of Daniel Webster(Nat. ed.)xiii, 40-42.

[1531]Marshall to Story, Dec. 25, 1832,Proceedings,Mass. Hist. Soc.2d Series,xiv, 352-54.

[1532]Niles,xliii, 396-97; alsoStatutes at Large of South Carolina: Cooper,i, 381-83.

[1533]Niles,xliii, 397. For the details of Leigh's mission seeib.377-93; alsoStatutes at Large of South Carolina: Cooper,i, 384-94.

[1534]Niles,xliii, 380-82.

[1535]See Parton:Jackson,iii, 475-82.

[1536]Marshall to Story, April 24, 1833,Proceedings, Mass. Hist. Soc.2d Series,xiv, 356-57.

[1537]Ib.

[1538]Same to same, Nov. 16, 1833,ib.358.

[1539]Marshall to Story, June 3, 1833,Proceedings, Mass. Hist. Soc.2d Series,xiv, 358.

[1540]Story ends hisCommentaries on the Constitution of the United Statesby a fervent, passionate, and eloquent appeal for the preservation, at all hazards, of the Constitution and the Union.

[1541]Marshall to Story, July 31, 1833, Story,ii, 135-36.

[1542]Marshall to Story, Oct. 6, 1834, Story,ii, 172-73.

[1543]Story to his wife, Jan. 20, 1833,ib.116.

[1544]Ib.117.

[1545]Story to his wife, Jan. 20, 1833, Story,ii, 116.

[1546]July 4, 1826.

[1547]Jefferson's attacks on Marshall in the X. Y. Z. affair. (See vol.ii, 359-63, 368-69, of this work.)

[1548]Marshall to Major Henry Lee, Jan. 20, 1832, MSS. Lib. Cong. In no collection, but, with a few unimportant letters, in a portfolio marked "M," sometimes referred to as "Marshall Papers."

[1549]Green Bag,viii, 463.

[1550]Marshall to Story, July 3, 1829,Proceedings, Mass. Hist Soc.2d Series,xiv, 340.

[1551]Story to Marshall, January, 1833, Story,ii, 132-33. This letter appears in Story'sCommentaries on the Constitution, immediately after the title-page of volumei.Story's perfervid eulogium did not overstate the feeling—the instinct—of the public. Nathan Sargent, that trustworthy writer of reminiscences, testifies that, toward the end of Marshall's life, his name had "become a household word with the American people implying greatness, purity, honesty, and all the Christian virtues." (Sargent,i, 299.)

[1551]Story to Marshall, January, 1833, Story,ii, 132-33. This letter appears in Story'sCommentaries on the Constitution, immediately after the title-page of volumei.

Story's perfervid eulogium did not overstate the feeling—the instinct—of the public. Nathan Sargent, that trustworthy writer of reminiscences, testifies that, toward the end of Marshall's life, his name had "become a household word with the American people implying greatness, purity, honesty, and all the Christian virtues." (Sargent,i, 299.)

[1552]Briscoevs.The Commonwealth's Bank of the State of Kentucky, 8 Peters, 118et seq.

[1553]Seesupra, 509-13.

[1554]Act of Dec. 25,Laws of Kentucky, 1820, 183-88.

[1555]The Mayor, Aldermen and Commonalty of the City of New Yorkvs.Miln, 8 Peters, 121et seq.

[1556]11 Peters, 104. This was the first law against unrestricted immigration.

[1557]8 Peters, 122.

[1558]These cases were not decided until 1837, when Roger Brooke Taney of Maryland took his seat on the bench as Marshall's successor. Philip Pendleton Barbour of Virginia succeeded Duval. Of the seven Justices, only one disciple of Marshall remained, Joseph Story.In the New York case the court held that the State law was a local police regulation. (11 Peters, 130-43; 144-53.) Story dissented in a signally able opinion of almost passionate fervor."I have the consolation to know," he concludes, "that I had the entire concurrence ... of that great constitutional jurist, the late Mr. Chief Justice Marshall. Having heard the former arguments, his deliberate opinion was that the act of New York was unconstitutional, and that the present case fell directly within the principles established in the case of Gibbons v. Ogden." (Ib.153-61.)In the Kentucky Bank case, decided immediately after the New York immigrant case, Marshall's opinion in Craigvs.Missouri was completely repudiated, although Justice McLean, who delivered the opinion of the court (ib.311-28), strove to show that the judgment was within Marshall's reasoning.Story, of course, dissented, and never did that extraordinary man write with greater power and brilliancy. When the case was first argued in 1834, he said, a majority of the court "were decidedly of the opinion" that the Kentucky Bank Law was unconstitutional. "In principle it was thought to be decided by the case of Craig v. The State of Missouri." Among that majority was Marshall—"a name never to be pronounced without reverence." (Ib.328.)In closing his great argument, Story says that the frankness and fervor of his language are due to his "reverence and affection" for Marshall. "I have felt an earnest desire to vindicate his memory.... I am sensible that I have not done that justice to his opinion which his own great mind and exalted talents would have done. But ... I hope that I have shown that there were solid grounds on which to rest his exposition of the Constitution.His saltem accumulem donis, et fungar inani munere." (11 Peters, 350.)

In the New York case the court held that the State law was a local police regulation. (11 Peters, 130-43; 144-53.) Story dissented in a signally able opinion of almost passionate fervor.

"I have the consolation to know," he concludes, "that I had the entire concurrence ... of that great constitutional jurist, the late Mr. Chief Justice Marshall. Having heard the former arguments, his deliberate opinion was that the act of New York was unconstitutional, and that the present case fell directly within the principles established in the case of Gibbons v. Ogden." (Ib.153-61.)

In the Kentucky Bank case, decided immediately after the New York immigrant case, Marshall's opinion in Craigvs.Missouri was completely repudiated, although Justice McLean, who delivered the opinion of the court (ib.311-28), strove to show that the judgment was within Marshall's reasoning.

Story, of course, dissented, and never did that extraordinary man write with greater power and brilliancy. When the case was first argued in 1834, he said, a majority of the court "were decidedly of the opinion" that the Kentucky Bank Law was unconstitutional. "In principle it was thought to be decided by the case of Craig v. The State of Missouri." Among that majority was Marshall—"a name never to be pronounced without reverence." (Ib.328.)

In closing his great argument, Story says that the frankness and fervor of his language are due to his "reverence and affection" for Marshall. "I have felt an earnest desire to vindicate his memory.... I am sensible that I have not done that justice to his opinion which his own great mind and exalted talents would have done. But ... I hope that I have shown that there were solid grounds on which to rest his exposition of the Constitution.His saltem accumulem donis, et fungar inani munere." (11 Peters, 350.)

[1559]Lessee of Samuel Smithvs.Robert Trabue's Heirs, 9 Peters, 4-6; U.S.vs.Nourse,ib.11-32; Caldwellet al. vs.Carrington's Heirs,ib.87-105; Bradleyvs.The Washington, etc. Steam Packet Co.ib.107-16; Delassusvs.U.S.ib.118-36; Chouteau's Heirsvs.U.S.ib.137-46; U.S.vs.Clarke,ib.168-70; U.S.vs.. Huertas,ib.171-74; Field etal. vs.U.S.ib.182-203; Mayor, etc. of New Orleansvs.De Armas and Cucullo,ib.. 224-37; Life and Fire Ins. Co. of New Yorkvs.Adams,ib.571-605.

[1560]Ib.711-63.

[1561]9 Peters, 723.

[1562]Story to Fay, March 2, 1835, Story,ii, 193.

[1563]Story to Peters, May 20, 1835,ib.194.

[1564]Kent's Journal, May 16, 1835, Kent MSS. Lib. Cong.

[1565]Smith to Kent, June 13, 1835, Kent MSS. Lib. Cong.

[1566]Randolph:Physick, 100-01.

[1567]Story to Peters, June 19, 1835, Story,ii, 199-200.

[1568]Chapman to Brockenbrough, July 6, 1835, quoted in the RichmondEnquirer, July 10, 1835. Marshall died "at the Boarding House of Mrs. Crim, Walnut street below Fourth." (PhiladelphiaInquirer, July 7, 1835.) Three of Marshall's sons were with him when he died. His eldest son, Thomas, when hastening to his father's bedside, had been killed in Baltimore by the fall upon his head of bricks from a chimney blown down by a sudden and violent storm. Marshall was not informed of his son's death.

[1569]Terhune, 98.

[1570]PhiladelphiaInquirer, July 7, 1835.

[1571]Niles,xlviii, 322.

[1572]RichmondEnquirerJuly 10, 1835.

[1573]Ib.

[1574]RichmondWhig and Public Advertiser, July 10, 1835.

[1575]RichmondEnquirer, July 14, 1835.

[1576]See Sargent,i, 299. If the statements in the newspapers and magazines of the time are to be trusted, even the death of Jefferson called forth no such public demonstrations as were accorded Marshall.

[1577]Niles,xlviii, 321.

[1578]Undoubtedly William Leggett, one of the editors. See Leggett:A Collection of Political Writings,ii, 3-7.

[1579]As reprinted inRichmond Whig and Public Advertiser, July 14, 1835.

[1580]RichmondEnquirer, July 21, 1835.

[1581]Ib.

[1582]Ib.July 17, 1835.

[1583]AlexandriaGazette, Aug. 13, 1835, reprinted in the RichmondEnquirer, Aug. 21, 1835.

[1584]Magruder:John Marshall, 282.

[1585]Story,ii, 206.

Back to Index Next