House Vote on Tariff Bill, April 16, 1824
The tariff bill presented in 1824 was avowedly a protective measure. Among lesser changes, increased duties were proposed on iron, lead, wool, hemp, cotton bagging, and cotton and woolen goods. At oncethe clash of sectional interests began. New England shippers protested against the duty on hemp, which they needed for cordage; and Southern planters made common cause with them on this item, because the cheap bagging which they used for baling their cotton was made of coarse hemp. For the same reason the maritime sections of New England opposed the duty on iron. For precisely opposite reasons, Kentucky clamored for the protection of her hemp-growers, and Pennsylvania, for the protection of her iron-workers. It was well understood that the cotton industry was established and needed no protection; nevertheless, the minimum duty on cotton fabrics was raised. The increased duty on woolens, however, was offset by an increased duty on raw wool, so that the woolen manufacturers profited little by the change of rate. A proposal to apply to woolens the minimum principle which had been extended to cottons in 1816 was defeated by the opposition of the South. Any increase in the cost of cheap woolen goods was bound to enhance the cost of clothing the slaves. On the other hand, the representatives of the great grain-growing and farming States of New York, New Jersey, and Pennsylvania, together with the States of the Ohio Valley, were almost unanimously in favor of the proposed bill. When the bill came to a vote in the House on April 16, 1824, only nine of the combined ninety-five votes of these sections were cast in the negative. Equally emphatic was the protest of the South and Southwest: only six out of seventy-six Representatives favored the bill. New England by its divided vote revealed the internal conflictbetween the commercial and manufacturing interests. The bill passed both houses of Congress by small majorities and received the signature of the President.
Of the presidential candidates, only one spoke with uncertain sound on the tariff issue. Clay was the outspoken advocate of a far-reaching American system; Adams thought the tariff of 1824 a fair compromise; Jackson, properly coached by his intimates, put himself on record as a supporter of a protective policy to create a home market; only Crawford, representative of the peculiar interests of the South and candidate for Northern support, felt the impossibility of harmonizing the conflicting interests of his followers by a clear-cut and explicit utterance on the tariff.
With so many candidates in the field, it was difficult to forecast the outcome of the presidential campaign. Even if there had been a pronounced popular drift toward any candidate, the result would have remained in doubt until the six States which still gave the choice of electors to their legislatures had completed the complicated electoral process. There was a strong likelihood, however, that the election would go to the House of Representatives. As the choice would then be confined to the three candidates having the highest vote, there was not a little bargaining in the States where the legislatures chose the electors. The completed returns gave Jackson 99 electoral votes; Adams, 84; Crawford, 41; and Clay, 37. Calhoun was elected Vice-President by more than two thirds of the electoral vote. The House, therefore, as wiseacres had foretold, was called upon forthe second time to decide a contested presidential election.
The position of Clay was one of unenviable distinction and power. He could not be elected President, but he could, it was believed, determine which of his rivals should have the coveted office. His own State favored Jackson as a second choice; but Clay wrote to a friend that he could not consider the killing of twenty-five hundred Englishmen at New Orleans proved the fitness of Jackson for the chief civil magistracy. Crawford was personally less objectionable to Clay; but he had suffered a paralytic stroke and his health was precarious. Besides, Crawford had opposed some of the policies which Clay had most at heart. For years Clay had been a bitter opponent of Adams; yet after all was said, he was bound to admit that his interests would be best served by an alliance with this stiff-necked New Englander. At an early date, therefore, he determined to throw his support to Adams.
For weeks the capital was enveloped in an atmosphere of intrigue. Clay was courted by all factions. The possibility of securing his support was a standing temptation to wire-pullers. Even Adams wrote in his diary, "Incedo super ignes" (I walk over fires). When Clay announced positively, on January 24, that he and his friends would support Adams, a storm of passionate denunciation broke upon him. An anonymous letter appeared in a Philadelphia newspaper, charging that friends of Adams had offered Clay the Secretaryship of State in return for his support, and that friends of Clay had reported the offerto friends of Jackson, with the intimation that Clay would support the general on similar terms. When the friends of Jackson spurned these overtures, Clay sold out to Adams. With quite unnecessary heat Clay branded the author of this letter as "a base and infamous calumniator, a dastard, and a liar." His first instinct was to challenge the author whoever he might be; but when Representative George Kremer, an odd character who was chiefly conspicuous by reason of the leopard-skin coat which he wore avowed himself the writer of the offensive letter, Clay wisely concluded not to make himself ridiculous by an affair of honor with this Gil Blas. He demanded a congressional investigation instead.
While this investigation of the alleged bargain between Adams and Clay was pending, the House proceeded to the election of a President. On the first ballot, Adams received the votes of thirteen States, while Jackson was the choice of seven States, and Crawford of four. New England, New York, Louisiana, Maryland, and the States of the Northwest, except Indiana, supported Adams. Combined with these were now Missouri and Kentucky, which had voted for Clay. Jackson received the votes of the Southwest, together with those of Pennsylvania, New Jersey, Indiana, and South Carolina. Crawford was supported by Georgia, North Carolina, Virginia, and Delaware. Two days later the President-elect announced that he had invited Henry Clay to be his Secretary of State. After some hesitation, Clay accepted the post.
The Presidential Election of 1824
The cry of corruption is a recurrent note in thehistory of democracies. The American democracy is no exception. With most of the charges of corruption, the historian has little concern; but the bargain and corruption cry of 1825 has a historical significance. The falsity of the charge against Clay has been proved as nearly as a negative can be. Adams may not have been above the uncongenial task of soliciting votes, but he kept safely within the moral domain which his conscience marked out. The motive which governed his appointment of Clay as Secretary of State is stated frankly in a letter to Monroe, two days after the election by the House. He considered the appointment "due to his talents and services to the western section of the Union, whence he comes, and to the confidence in me manifested by their delegations." Upon one individual these considerations made no impression: Andrew Jackson left the capital with wrath in his soul. He felt that he had been defrauded by a corrupt bargain. From this time on his hand was against Clay,—that "Judas of the West," as he afterward called him,—who had conspired to "impair the pure principles of our republican institutions" and to "prostrate that fundamental maxim which maintains the supremacy of the people's will."
Years after the events of 1824-25, the belief of Jackson that the will of the people had been defeated found classic expression in Thomas H. Benton'sThirty Years' View of Congress. What Benton termed "the Demos Krateo principle" was thoroughly in accord with the spirit of the new democracy, but it rested upon an entire misunderstandingof the Constitution. A direct popular election of the President was never contemplated by the framers of the Constitution. It is impossible to find in either the letter or the spirit of the Constitution any justification for the view that the House of Representatives is bound to elect the candidate having the highest popular vote.
What the will of the people really was in the presidential election of 1824 is by no means clear. Even in those States where presidential electors were chosen by popular vote, Jackson received less than half of the popular vote; and in many of these States the actual vote fell far below the potential. In Massachusetts, where 66,000 votes had been cast for governor the year before, only 37,000 voters took the trouble to vote for President. In Pennsylvania, which boasted of a population of over a million, less than 48,000 voted in 1824. Moreover, the six States which chose the presidential electors through their legislatures, contained one fourth of the population of the country. One fact, however, stands out with unmistakable clearness,—and it did not escape politicians like Van Buren, of New York, who had their fingers on the pulse of the people,—this martial hero from out of the West had an unprecedented vote-getting capacity. It were well to observe the Western horizon more intently.
BIBLIOGRAPHICAL NOTE
The best description of the political characteristics of American society in this period is given by Alexis de Tocqueville,Democracy in America(2 vols., trans., 1862). F. J. Turner has pointed outthe importance of the West in the development of the nation in several studies, notably: "The Significance of the Frontier in American History" (American Historical Association,Report, 1893); "The Problem of the West" (Atlantic Monthly, vol. 78); "Contributions of the West to American Democracy" (Atlantic Monthly, vol. 91). The political development of the South is set forth with great thoroughness by U. B. Phillips,Georgia and State Rights(American Historical Association,Report, 1901); W. A. Schaper,Sectionalism and Representation in South Carolina(ibid., 1900); and C. H. Ambler,Sectionalism in Virginia from 1776 to 1861(1910). Important aspects of the tariff are discussed in Edward Stanwood'sAmerican Tariff Controversies in the Nineteenth Century(2 vols., 1903), and in C. W. Wright'sWool-Growing and the Tariff(1910).
The best description of the political characteristics of American society in this period is given by Alexis de Tocqueville,Democracy in America(2 vols., trans., 1862). F. J. Turner has pointed outthe importance of the West in the development of the nation in several studies, notably: "The Significance of the Frontier in American History" (American Historical Association,Report, 1893); "The Problem of the West" (Atlantic Monthly, vol. 78); "Contributions of the West to American Democracy" (Atlantic Monthly, vol. 91). The political development of the South is set forth with great thoroughness by U. B. Phillips,Georgia and State Rights(American Historical Association,Report, 1901); W. A. Schaper,Sectionalism and Representation in South Carolina(ibid., 1900); and C. H. Ambler,Sectionalism in Virginia from 1776 to 1861(1910). Important aspects of the tariff are discussed in Edward Stanwood'sAmerican Tariff Controversies in the Nineteenth Century(2 vols., 1903), and in C. W. Wright'sWool-Growing and the Tariff(1910).
CHAPTER XVIII
POLITICS AND STATE RIGHTS
The circumstances of his election made the position of President Adams one of very great difficulty. He alluded to his embarrassment in his first message to Congress. "Less possessed of your confidence in advance than any of my predecessors," said he, "I am deeply conscious of the prospect that I shall stand more and oftener in need of your indulgence." It is doubtful, however, if even he appreciated the momentum of the forces which were already combining to discredit his administration. In October, the legislature of Tennessee had again nominated Jackson for the Presidency, and he had accepted the nomination as a summons to wage war upon the forces of evil in high places. The campaign of 1828, indeed, had already begun: and it was to be a campaign of personal vindication as well as of popular rights.
Under similar circumstances most men would have made sure of the loyalty of their constitutional advisers, at least, but Adams flattered himself that he could carry on a non-partisan administration. The results were disastrous, for at least two of the Cabinet were not above using the patronage of office to further the cause of Jackson. In his laudable desire not to allow the Government to become "a perpetual and unintermitting scramble for office,"Adams refused to make removals in the civil service on partisan grounds, yet he retained in office underlings who labored incessantly in the cause of the opposition.
Equally impolitic was the attitude of the President toward questions of public policy in his first message to Congress. Just when the opposition was in a fluid state and the winds of conflicting doctrines were ruffling the surface of national politics, Adams gave utterance to opinions on the functions of government which were bound to alienate many of his followers. Entertaining no doubts as to constitutional limitations upon the powers of the National Government, he advocated not only the construction of roads and canals, but the establishment of observatories and a national university. His program included governmental aid to the arts, mechanical and literary, and to the sciences, "ornamental and profound." He was prepared to give encouragement not only to manufacturing but to agriculture and to commerce. Many of these were objects which President Jefferson had recommended to the consideration of Congress in 1806; but whereas he had urged the adoption of amendments to the Constitution which would authorize Congress to provide for roads and canals and education, Adams seemed oblivious to the limitations of the Constitution. In much alarm Jefferson suggested to Madison the desirability of having Virginia adopt a new set of resolutions, bottomed on those of 1798, and directed against the acts for internal improvements. In March, 1826, the general assembly declared that allthe principles of the earlier resolutions applied "with full force against the powers assumed by Congress" in passing acts to protect manufactures and to further internal improvements. That the Administration would meet with opposition in Congress, whatever its program might be, was a foregone conclusion. The only question was whether the diverse and mutually hostile factions which had followed the fortunes of Crawford, Calhoun, and Jackson could coalesce into a consistent opposition. The first test occurred when the Administration proposed the Panama mission.
The overthrow of the authority of Spain in South America had left the way clear for the long-projected union of the republics. Early in the year 1825, the ministers of Mexico, Guatemala, and Colombia waited on Clay to learn whether the United States would accept an invitation to a great council or congress which had been called by the revolutionist Bolívar, now President of Colombia. The project appealed strongly to Clay. A league of young republics in the New World to offset the Holy Alliance in Europe was, as his biographer remarks, "one of those large, generous conceptions well calculated to fascinate his ardent mind." The imagination of the President was not so easily touched: he instructed Clay to inquire more particularly into the purposes of the congress.
The condition of affairs in the countries bordering on the Caribbean Sea—the American Mediterranean—was such, indeed, as to justify extreme caution in dealing with the Latin-American republics.It was matter of common knowledge that Colombia and Mexico had designs upon Cuba, the last of the Spanish outposts in the New World. So long as Spain continued at war with her old colonies, the United States was bound to be uneasy about the fate of Cuba and Porto Rico. Even if the islands were liberated by the republican armies of Central and South America, they were likely to fall a prey to some European power. The appearance of a French fleet off the coast of Cuba during the summer of 1825 gave point to these not unwarranted apprehensions. It was rumored that Cuba was to be made the basis for an expedition against Mexico in behalf of Spain. This episode prompted Clay to make strong representations to France that the United States could not consent to the occupation of Cuba by any other European power.
When, then, a formal invitation came to participate in the Panama Congress, the Administration determined to seize the occasion to exercise a wholesome restraint by friendly advice upon the assembled delegates of the republics, and at the same time to ascertain their purposes. In asking the Senate to confirm the nomination of two delegates, however, the President voiced his own expectation of what the Congress would be and do, rather than the purposes of Bolívar and his associates. The occasion would be favorable, the President intimated, for the discussion of commercial reciprocity, of neutral rights, and of principles of religious liberty. An alliance with the Latin-American republics was not contemplated. On the contrary, the delegates fromthe United States would urge "an agreement between all of the parties represented at the meeting, that each will guard by its own means against the establishment of any future European colony within its borders." At this stage in its evolution the Monroe Doctrine was not understood to include any obligation on the part of the United States to police the territories of the lesser republics of the New World.
The instructions given to the envoys leave no doubt as to the intentions of the Administration. Every possible endeavor was to be made to dissuade Colombia and Mexico from their designs upon Cuba and Porto Rico. The recognition of Hayti as an independent state was to be deprecated. In short, thestatus quoin the Caribbean Sea was to be maintained; and throughout, the congress was to be regarded as a diplomatic conference and in no wise as a convention to constitute a permanent league of republics.
Nevertheless, the opposition in Congress persisted in misrepresenting the President's purposes. It was pointed out that the republics to the south very generally believed that the United States was pledged by Monroe's message to make common cause with them when their independence was threatened. "Are we prepared," asked Hayne, of South Carolina, "to send ministers to the Congress of Panama for the purpose of making effectual this pledge of President Monroe as construed by the present administration and understood by the Spanish-American states?" With greater sincerity Southern Representatives protested against participatingin a congress which proposed to discuss the suppression of the slave trade and the future of Hayti. "Slavery in all its bearings," said Hayne, "is a question of extreme delicacy, concerning which there is but one safe rule either for the States in which it exists or for the Union. It must ever be treated as a domestic question. To foreign governments the language of the United States must be that the question of slavery concerns the peace and safety of our political family, and that we cannot allow it to be discussed." Least of all, he continued, could the United States touch the question of the independence of Hayti in connection with revolutionary governments which had marched to victory under the banner of universal emancipation and which had permitted men of color to command their armies and enter their legislative halls.
In the end the Administration had its way and the nominations were confirmed; but the delay was most unfortunate. On their way to the Isthmus, one of the delegates died, and the other arrived too late to take part in the congress. From the viewpoint of domestic politics, the controversy over the mission was only an incident in the evolution of a party within the bosom of the Democratic party. The animus of the opposition is revealed in the often-quoted remark of Martin Van Buren, who was trying to drill the varied elements in the Senate into a coherent organization: "Yes, they have beaten us by a few votes, after a hard battle; but if they had only taken the other side and refused the mission, we should have had them."
Of far more serious import than this factional opposition in Congress was the resistance which the authorities of Georgia offered to the National Administration in the matter of Indian lands. On March 5, 1825, the Senate ratified the Treaty of Indian Springs with the Creek Indians, which provided for the cession of practically all the lands of the tribe between the Flint and Chattahoochee Rivers. For years the planters of Georgia had coveted these fertile tracts, awaiting with impatience the negotiations of the Federal Government with the reluctant Indians. Although the title to the lands was not to pass to Georgia until September 1, 1826, Governor Troup ordered them to be surveyed with a view to their immediate occupation. Meantime, well-founded charges were current that the treaty had been made by a faction among the Creeks, without the consent of the responsible chiefs. President Adams at once ordered the state authorities to desist from their survey; but the governor replied that Georgia was convinced of the validity of the treaty and fully determined to enter into possession of her own. The tone of the governor's letter was ominous. Nevertheless, the President instituted negotiations for a new treaty. The diplomatic shifts resorted to by the Indian agents in this instance were not above suspicion, but the President seemed to entertain no misgivings, for he assured the Senate that the new Treaty of Washington (January 24, 1826) was the will and deed of "the chiefs of the whole Creek Nation." The grant left the Indians still in possession of some lands west of the Chattahoochee.
The feelings of all loyal Georgians were outraged by the course of the Administration. The legislature protested against the Treaty of Washington as "illegal and unconstitutional," and denounced the President's action as "an instance of dictation and federal supremacy unwarranted by any grant of powers to the General Government." "Georgia owns exclusively the soil and jurisdiction of all the territory within her present chartered and conventional limits," read the resolutions of December 22, 1826. "She has never relinquished said right, either territorial or jurisdictional, to the General Government."
The ebullient governor hardly needed the indorsement of the legislature. He pushed on the surveys to the limits set by the original treaty. But the surveyors soon met with resistance from the Indians; and the Indians appealed to the President. The Secretary of War then notified Troup that the President felt himself compelled to employ all the means under his control to maintain the faith of the nation and to carry the treaty into effect. Governor Troup replied defiantly that the "military character of the menace" was well understood. "You will distinctly understand, therefore, that I feel it my duty to resist to the utmost any military attack.... From the first decisive act of hostility, you will be considered and treated as a public enemy, and with less repugnance because you, to whom we might constitutionally have appealed for our defense against invasion, are yourselves the invaders, and, what is more, the unblushing allies of the savages whose course youhave adopted." He at once issued orders to the state military officers to hold the militia in readiness to repel any invasion of the soil of Georgia.
The tension which had now become acute was relieved by the intelligence that the President had ordered the Indian agent to the Creeks to resume negotiations for the cession of the rest of their lands. The governor hastened to point out jubilantly that the President had beaten a retreat. Meantime, the President had laid the whole matter before Congress in a special message. A committee of the House advised the purchase of the rest of the Indian lands, but in the mean time the maintenance of the terms of the Treaty of Washington. A committee of the Senate, however, with Benton as chairman, took an opposite view of the situation, and deprecated any action looking toward the coercion of a sister State. A treaty concluded with the Creeks in November, 1827, fortunately satisfied all parties and put an end to this exciting controversy—a controversy in which the President had played a lone and not very successful hand.
In this same year (1827), another Indian problem of even greater perplexity arose. The Cherokees of northwestern Georgia, who were ruled by a group of intelligent half-breeds, declared themselves one of the sovereign and independent nations of the earth, and drafted a constitution which completely excluded the authority of the State of Georgia. Again, in no uncertain language, Georgia asserted her title to all the lands within her limits, regarding the Indians simply as "tenants at her will"; but before the controversyreached an acute stage Adams had surrendered the Presidency to General Andrew Jackson, who had only contempt for Indian rights when they fell athwart the purposes of honest white settlers.
In the midst of these protestations against federal intervention, the legislature of Georgia sounded a note of defiance also in the matter of the tariff. It was "their decided opinion an increase of Tariff duties will and ought to be RESISTED by all legal and constitutional means." Just what should be "the mode of opposition" they would not pretend to say, but for the present they would content themselves with "the peaceable course of remonstrating with Congress." This rather ominous protest was inspired by the demands of certain manufacturers and politicians who had assembled in convention at Harrisburg, Pennsylvania, in the summer of 1827.
The woolen industry had profited least of all those which had been protected by the Tariff of 1824. Not only had the slight advance in rates been offset by the increase of the duty on raw wool, but the effect of English competition in 1825 had been most depressing to the woolen trade. A tariff bill to meet the wishes of the wool-growers and woolen manufacturers had passed the House early in 1827, but had been defeated in the Senate by the casting vote of the Vice-President. The convention at Harrisburg was designed to create a public sentiment in favor of the protected interests and to bring pressure from various sources to bear upon Congress. The failure of the tariff bill in the spring session had impressed upon woolen manufacturers the necessity of securing allies.
The recommendations of the convention at Harrisburg were comprehensive. Higher duties all along the line, from wool to glass, were urged. But that which the promoters of the convention had most at heart was the extension to woolens of the minimum principle already applied to cotton fabrics. According to their demands, thead valoremduty on woolens should range from forty to fifty per cent, assessed on minimum valuations of fifty cents, two dollars and a half, four dollars, and six dollars a yard. That is to say, goods valued at less than fifty cents a yard were to be treated as though they had a value of fifty cents; and all between fifty cents and two dollars and a half, as though they were worth two dollars and a half; and so on—a system which offered a high degree of protection to the cheaper fabrics in each group.
House Vote on Tariff Bill, April 22, 1828
The high hopes of the protectionists were only partially realized. In the following session of Congress, economic interests became badly tangled with political. The President and the greater part of his supporters were protectionists. Indeed, it was openly charged by the opposition that the Harrisburg Convention was a device of the Adams men to promote his reëlection. The opposition, on the other hand, was far from united on the tariff question. The only affinity between Southern planters and their Northern allies in the Middle and Western States was hostility to the Administration. According to Calhoun, who in after years made a frank avowal of his part in the intrigue, the opposition determined to frame a tariff bill with a general high level of dutiesto satisfy the Middle and Western States, but to increase the duties on raw material which New England manufacturers needed. All the stanch Jackson men were to unite in forcing this bill to a passage without amendment. At the last moment, however, the Southern group were to part company with their allies and to vote against the bill. The Representatives from New England, and the supporters of the Administration generally, would of course vote against the bill also, and so compass its defeat. The odium would then fall upon the Adams men, while the Jackson men could pose as the only whole-hearted advocates of protection; and, finally, not the least factor in Calhoun's calculations, the South would escape the toils of high protection. There was only one hitch in this cleverly planned game. To the consternation of the plotters, enough New England Representatives swallowed the bitter dose to enact the bill.
The "tariff of abominations" deserves all the abuse which has been heaped upon it. Shapen in political iniquity, it bore upon its face the marks of its origin. High duties for which no one had asked were imposed on certain raw material like pig and bar iron, and hemp, the better quality of which was always in demand and never produced in the United States. Items like the increased duty on molasses and the heavy duty on sail-duck were added to make the bill distasteful to New England. But the woolen industry suffered the most grievous disappointment. Instead of the minimum principle advocated by the Harrisburg Convention, the Act of 1828 establisheda minimum of one dollar between the minimal points of fifty cents and two dollars and a half. Whereas the proposed rate would have fixed a prohibitory duty on woolens costing about a dollar a yard, the act allowed only a duty of forty-five per cent. "The dollar minimum," as one of the aggrieved manufacturers put it, "was planted in the very midst of the woolen trade."
Again the Middle States and the States of the Ohio Valley united in support of the protective principle. New England was divided against itself. Political considerations weighed heavily with those New Englanders who like Webster voted for the bill. John Randolph hardly exaggerated when he declared that "the bill referred to manufactures of no sort or kind, except the manufacture of a President of the United States."
BIBLIOGRAPHICAL NOTE
To the bibliography at the close of the preceding chapter only a few titles need be added. The foreign policy of the Adams Administration is well described in F. E. Chadwick'sThe Relations of the United States and Spain(1909). The stages in the Indian controversy may be traced in U. B. Phillips'sGeorgia and State Rights(American Historical Association,Report, 1901), and in E. J. Hardin'sLife of George M. Troup(1859). E. M. Shepard,Martin Van Buren(1888), and T. D. Jervey,Robert Y. Hayne and His Times(1909), are important biographies. Josiah Quincy'sFigures of the Past(1883) contains some interesting sketches of Washington society, while N. Sargent'sPublic Men and Events(2 vols., 1875) supplies an abundance of political gossip.
To the bibliography at the close of the preceding chapter only a few titles need be added. The foreign policy of the Adams Administration is well described in F. E. Chadwick'sThe Relations of the United States and Spain(1909). The stages in the Indian controversy may be traced in U. B. Phillips'sGeorgia and State Rights(American Historical Association,Report, 1901), and in E. J. Hardin'sLife of George M. Troup(1859). E. M. Shepard,Martin Van Buren(1888), and T. D. Jervey,Robert Y. Hayne and His Times(1909), are important biographies. Josiah Quincy'sFigures of the Past(1883) contains some interesting sketches of Washington society, while N. Sargent'sPublic Men and Events(2 vols., 1875) supplies an abundance of political gossip.
CHAPTER XIX
THE RISE OF NATIONAL SOVEREIGNTY
Shortly after the Federal Convention of 1787, a friend remarked to Gouverneur Morris, "You have made a good constitution." "That," replied Morris laconically, "depends on how it is construed!" From Washington to Jackson the process of construing the Constitution had gone on, intermittently by the executive and legislative, steadily by the judiciary. "The judiciary of the United States," wrote Jefferson in 1820, "is the subtle corps of sappers and miners constantly working underground to undermine the foundations of our confederate fabric. They are constantly construing our constitution from a coördination of a general and a special government, to a general and supreme one alone. They will lay all things at their feet, and they are too well versed in the English law to forget the maxim, 'boni judicis est ampliare jurisdictionem.'"
Yet as late as 1800 the federal judiciary had pronounced none of those decisions which were to make it so powerful a factor in the assertion and maintenance of national sovereignty. In declining an appointment as Chief Justice, John Jay wrote to President Adams that he had "left the bench perfectly convinced that under a system so defective, it would not obtain the energy, weight, and dignity, which were essential to its affording due support to theNational Government; nor acquire the public confidence and respect which, as the last resort of the justice of the Nation, it should possess."
The uncertainty of the law was in large part responsible for this lack of prestige. "Too great inattention," complained a Boston lawyer, in theColumbian Centinelin 1801, "has hitherto prevailed as to the preservation of the decisions of our courts of law. We have neither authorized nor voluntary reporters. Hence we are compelled to the loose and interested recollections of counsel, or to depend wholly on British decisions." The first systematic attempt to secure records of opinions was made by Connecticut in 1785. Four years later, Ephraim Kirby, a printer in Litchfield, issued "the first regular printed law reports in America." This example was followed in other States; and in 1798 the first volume of United States Supreme Court Reports was published by Dallas.
The great period in the history of the Supreme Court coincides with the thirty-four years during which John Marshall held the office of Chief Justice. President John Adams rendered no more lasting service to the Federalist cause than when he appointed this great Virginian to the bench, for Marshall, if not a Federalist of the strictest sect, was a thoroughgoing nationalist. Down to his appointment only six decisions involving constitutional questions of any moment had been handed down; between 1801 and 1835, sixty-two were rendered, of which Marshall wrote thirty-six. The decisions of the court during "the reign of Marshall" fill thirty volumes of the Reports.Seven hundred and fifty-three cases were taken on appeal to the Supreme Court from the lower federal courts, and in nearly one half of these cases the decisions were reversed.
An American constitutional law did not exist when Marshall took office. Few precedents were available. In some of his important cases Marshall did not cite a single judicial decision. He reached his conclusions by the light of reason. "There, Story," he would say to his associate, "is the law. Now you must find the authorities." In a peculiar sense it is true to say that Marshall both laid the foundations of constitutional law and reared the superstructure, as one of his biographers remarks. But Marshall was ably supported by his colleagues; and he owed much, as he freely admitted, to the arguments of a remarkable body of lawyers of the federal bar. Wirt, Pinkney, and Webster were as truly creators of American constitutional law as the learned justices.
The constitutional importance of the decision of the Supreme Court inMarburyv.Madisonhas already been pointed out. In the development of the idea of national sovereignty, the significance of the decision lies in the emphatic assertion that the Supreme Court is the tribunal of last resort in cases involving the constitutionality of acts of Congress.
The first open resistance of a State to federal authority, as asserted by the Supreme Court, occurred in 1809, when the legislature of Pennsylvania interposed its authority to prevent the payment of prize money which had been awarded by a federaldistrict court to Gideon Olmstead and others for their capture of the sloop Active during the Revolution. All efforts to secure a peaceful settlement of this controversy having failed, the Attorney-General, in behalf of Olmstead, applied to the Supreme Court for a writ ofmandamus, directing Judge Peters of the district court to enforce his judgment. In granting the writ, Chief Justice Marshall pointed out the gravity of the issue. "If the legislatures of the several States," said he, "may at will annul the judgment of the courts of the United States, and destroy the rights acquired under those judgments, the Constitution becomes a solemn mockery, and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals." Such a conclusion he emphatically repudiated. Reviewing the history of the case with all its details, he reached the uncompromising conclusion that "the State of Pennsylvania can possess no constitutional right to resist the legal process which may be directed in this cause.... A peremptorymandamusmust be awarded."
Judge Peters issued the writ, but all efforts of the marshal to serve the writ were thwarted by the state militia. The marshal then summoned aposse comitatusof two thousand men. Bloodshed seemed imminent; but after an ineffectual appeal to the President, the Pennsylvania authorities gave way and paid over the money. Subsequently the officer commanding the militia and others were indicted, tried, convicted, and sentenced to fine and imprisonment, for resisting the writ of a federal court; but they were pardonedby the President because "they had acted under a mistaken sense of duty."
In this conflict of authority the National Government won at every point. Even the resolution which the legislature adopted in the heat of the controversy, calling for an amendment to the Constitution which should establish "an impartial tribunal to determine disputes between the General and State Governments," met with no approval from other States. Virginia, soon to be of a very different mind, responded that "a tribunal is already provided ... to wit: the Supreme Court, more eminently qualified from their habits and duties, from the mode of their selection, and from the tenure of their offices, to decide the disputes aforesaid in an enlightened and impartial manner, than any other tribunal which could be erected."
In two notable cases, the Supreme Court affirmed the constitutionality of the Judiciary Act of 1789 and asserted its authority to review and reverse decisions of the state courts when those decisions were adverse to alleged federal rights. The opinion in the first case, that ofMartinv.Hunter's Lessee, in 1816, was written by Joseph Story, of Massachusetts, who had been appointed to a vacancy on the bench by President Madison. Story was reputed to be a Republican, but he disappointed all expectations by becoming a stanch supporter of nationalist doctrines and only second to Marshall in his influence upon the development of American constitutional law.
The case ofMartinv.Hunter's Lesseegrew out of the old Fairfax claims which Marshall had representedas counsel before his appointment to the bench. In 1815, the Supreme Court had reversed the decision of the Court of Appeals of Virginia, and ordered the state court to execute the judgment rendered in the lower state court. The judges of the Court of Appeals, headed by Judge Spencer Roane, a bitter opponent of Marshall, formally announced that they would not obey themandamus, holding that the twenty-fifth section of the Judiciary Act of 1789—that extending the appellate jurisdiction of the Supreme Court over state tribunals—was unconstitutional. The state-rights elements in Virginia quickly rallied to the support of the judges, and the Supreme Court found itself face to face with an incensed public opinion in the Old Dominion. In no wise daunted by this opposition, the Supreme Court reviewed its position in 1816 and again ordered the execution of its judgment.
Five years later, Chief Justice Marshall rendered a similar decision in the case ofCohensv.Virginia. The counsel for the Commonwealth had argued that the appellate jurisdiction conferred by the Constitution on the Supreme Court was merely authority to revise the decisions of the inferior courts of the United States. "Congress," it was contended, "is not authorized to make the supreme court or any other court of a State an inferior court.... The inferior courts spoken of in the Constitution are manifestly to be held by federal judges." "It is the case, not the court, that gives jurisdiction," replied Marshall. "The courts of the United States can, without question, revise the proceedings of the executiveand legislative authorities of the States, and if they are found to be contrary to the Constitution may declare them to be of no legal validity. Surely the exercise of the same right over judicial tribunals is not a higher or more dangerous act of sovereign power."
It was in the course of this decision that Marshall asserted in unmistakable language the sovereignty of the National Government. "The people made the Constitution and the people can unmake it.... But this supreme and irresistible power to make or to unmake resides only in the whole body of the people; not in any subdivision of them. The attempts of any of the parts to exercise it is usurpation, and ought to be repelled by those to whom the people have delegated the power of repelling it.... The framers of the Constitution were indeed unable to make any provisions which should protect that instrument against a general combination of the States, or of the people for its destruction; and conscious of this inability, they have not made the attempt. But they were able to provide against the operation of measures adopted in any one State, whose tendency might be to arrest the execution of the laws; and this it was the part of wisdom to attempt. We think they have attempted it."
Between these notable Virginia cases was decided, in 1819, the case ofM'Cullochv.Maryland, in which the Chief Justice sustained the constitutionality of the act establishing the National Bank, and declared a state law imposing a tax on a branch of the Bank unconstitutional and void. In the courseof his opinion, which followed much the same line of reasoning that Alexander Hamilton had employed, Marshall stated in classic phraseology the doctrine of liberal construction. Holding that the Constitution was not a code of law, but a document marking out in large characters the powers of government, he sought, among the enumerated powers, not the lesser, but the great substantive, powers necessary to the purposes of the Union. These substantive powers, however, carry with them many incidental (Hamilton saidresulting) powers, among which a choice may freely be made to achieve the desired and legitimate end. "Let the end be legitimate," said Marshall, "let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional." In an earlier decision (United Statesv.Fisher, 1804), indeed, Marshall had refused to concede the force of the argument that the Federal Government was clothed only with the powers indispensably necessary to exercise powers expressly granted to it. "Congress must possess the choice of means which are in fact conducive to the exercise of a power granted by the Constitution."
The cumulative effect of these decisions was to provoke a violent reaction in Virginia. Under the pen-name "Algernon Sidney," Judge Roane renewed his attacks upon the Chief Justice in violent and at times offensive language. "The judgment before us," he declared, referring to the case ofCohensv.Virginia, "will not be less disastrous in its consequences, than any of these memorable judgments [of the time of Charles I]. It completely negatives the idea, that the American States have a real existence, or are to be considered, in any sense, as sovereign and independent States." It seemed to Jefferson that the powerful arguments of Roane completely "pulverized" every word which had been uttered by John Marshall. John Taylor of Caroline, however, was the philosophical exponent of this reactionary movement. In hisConstruction Construed(1820),Tyranny Unmasked(1822), andNew Views of the Constitution(1823), he pointed out the manifest tendency of the decisions of the Supreme Court and suggested the "state veto" as the remedy against usurpation of power by the Supreme Court or by Congress. The legislature of Virginia indorsed an amendment to the Constitution drafted by Judge Roane which would have limited the jurisdiction of the federal courts, where the rights of the States were concerned, and which would have forbidden appeals from the courts of a State to any court of the United States. Beyond such remonstrances and protests, however, public opinion in Virginia was not prepared to go at this time.
The judges of the Supreme Court could not remain indifferent to these assaults. "If, indeed, the Judiciary is to be destroyed," wrote Story, "I should be glad to have the decisive blow now struck, while I am young, and can return to my profession and earn an honest livelihood." But he added, "For the Judges of the Supreme Court there is but onecourse to pursue. That is, to do their duty firmly and honestly, according to their best judgments."
It was in this spirit that the court rendered judgment in the case ofGreenv.Biddle(1823), which gave deep offense to the people of Kentucky by setting aside as unconstitutional the so-called "Occupying Claimant Laws." The remonstrance of the legislature was all the more bitter because the decision had been rendered by a bench of only four judges, one of whom dissented from the majority opinion. The resolutions of the legislature demanded a reorganization of the court in such wise that the concurrence of at least two thirds of the judges should be necessary in an opinion affecting the validity of state laws. And when Congress made no response, the lower House called upon the governor to express his opinion "whether it may be advisable to call forth the physical power of the State to resist the execution of the decisions of the court, or in what manner the mandates of said court should be met by disobedience." But Kentucky like Virginia kept well within the legal limits of petition and remonstrance.
In Ohio, also, there was an ominous spirit of resistance to the force of precedent. Notwithstanding the decision of the court in the case ofM'Cullochv.Maryland, the general assembly of that State not only enacted a law to tax the local branch of the National Bank, but actually seized the amount of the tax. Suit was thereupon brought against the state auditor; and in spite of the vigorous remonstrance of the legislature, the Supreme Court againsustained the constitutionality of the Bank and declared the state tax unconstitutional. The State was ultimately obliged to make restitution of the funds of the Bank.