| [I.] | THE PERIOD OF AMERICANIZATION | [1] |
| | War and Marshall's career—Federalists become British partisans—Theirhatred of France—Republicans are exactly the reverse—Thedeep and opposite prejudices of Marshall and Jefferson—Causeof their conflicting views—The people become Europeanized—Theylose sight of American considerations—Critical need ofa National American sentiment—Origin of the War of 1812—Americasuffers from both European belligerents—British depredations—Jeffersonretaliates by ineffective peaceful methods—TheEmbargo laws passed—The Federalists enraged—Pickeringmakes sensational speech in the Senate—Marshall endorses it—Congresspasses the "Force Act"—Jefferson practices an autocraticNationalism—New England Federalists propose armed resistanceand openly advocate secession—Marshall rebukes thosewho resist National authority—The case of Gideon Olmstead—Pennsylvaniaforcibly resists order of the United States Court—Marshall'sopinion in U.S. vs. Judge Peters—Its historical significance—TheBritish Minister repeats the tactics of Genêt—Federalistsuphold him—Republicans make great gains in New England—Marshall'sdespondent letter—Henry Clay's heroic speeches—Waris declared—Federalists violently oppose it: "The child of Prostitution"—JosephStory indignant and alarmed—Marshall proposedas Presidential candidate of the peace party—Writes longletter advocating coalition of "all who wish peace"—DenouncesNapoleon and the Decree of St. Cloud—He heads Virginia Commissionto select trade route to the West—Makes extended and difficultjourney through the mountains—Writes statesmanlike report—Peaceparty nominates Clinton—Marshall criticizes report of Secretaryof State on the causes of the war—New England Federalistsdetermine upon secession—The Administration pamphlet on expatriation—JohnLowell brilliantly attacks it—Marshall warmlyapproves Lowell's essay—His judicial opinions on expatriation—Thecoming of peace—Results of the war—The new America isborn. |
| [II.] | MARSHALL AND STORY | [59] |
| | Marshall's greatest Constitutional decisions given during the decadeafter peace is declared—Majority of Supreme Court becomesRepublican—Marshall's influence over the Associate Justices—Hislife in Richmond—His negligent attire—Personal anecdotes—Interestin farming—Simplicity of habits—Holds Circuit Courtat Raleigh—Marshall's devotion to his wife—His religious belief—Hischildren—Life at Oak Hill—Generosity—Member of QuoitClub—His "lawyer dinners"—Delights in the reading of poetryand fiction—Familiarity and friendliness—Joseph Story firstmeets the Chief Justice—Is captivated by his personality—Marshall'sdignity in presiding over Supreme Court—Quickness at repartee—Lifein Washington—Marshall and Associate Justices livetogether in same boarding-house—His dislike of publicity—Honorarydegrees conferred—Esteem of his contemporaries—His personality—Calmnessof manner—Strength of intellect—His irresistiblecharm—Likeness to Abraham Lincoln—The strong andbrilliant bar practicing before the Supreme Court—Legal oratory ofthe period—Length of arguments—Joseph Story—His characterand attainments—Birth and family—A Republican—Devotionto Marshall—Their friendship mutually helpful—Jefferson fearsMarshall's influence on Story—Edward Livingston sues Jeffersonfor one hundred thousand dollars—Circumstances leading toBatture litigation—Jefferson's desire to name District Judgein Virginia—Jefferson in letter attacks Marshall—He dictatesappointment of John Tyler to succeed Cyrus Griffin—Death of JusticeCushing of the Supreme Court—Jefferson tries to name Cushing'ssuccessor—He objects to Story—Madison wishes to complywith Jefferson's request—His consequent difficulty in filling place—Appointmentof Story—Jefferson prepares brief on Batture case—Publicinterest in case—Case is heard—Marshall's opinionreflects on Jefferson—Chancellor Kent's opinion—Jefferson andLivingston publish statements—Marshall ascribes Jefferson's animosityin subsequent years to the Batture litigation. |
| [III.] | INTERNATIONAL LAW | [117] |
| | Marshall uniformly upholds acts of Congress even when he thinksthem unwise and of doubtful constitutionality—The Embargo,Non-Importation, and Non-Intercourse laws—Marshall's slightknowledge of admiralty law—His dependence on Story—Marshallis supreme only in Constitutional law—High rank of his opinionson international law—Examples: The Schooner Exchange;U.S. vs. Palmer; The Divina Pastora; The Venus; The Nereid—Scenesin the court-room—Appearance of the Justices—WilliamPinkney the leader of the American bar—His learning and eloquence—Hisextravagant dress and arrogant manner—Story's admirationof him—Marshall's tribute—Character of the bar—Itsmembers statesmen as well as lawyers—The attendance of womenat arguments—Mrs. Smith's letter—American Insurance Co.et al. vs. David Canter—Story delivers the opinion in Martin vs.Hunter's Lessee—Reason for Marshall's declining to sit in thatcase—The Virginia Republican organization—The great politicaltriumvirate, Roane, Ritchie, and Taylor—The Fairfax litigation—TheMarshall purchase of a part of the Fairfax estate—Separatepurchases of James M. Marshall—The Marshall and Virginia "compromise"—VirginiaCourt of Appeals decides in favor of Hunter—National SupremeCourt reverses State court—The latter's bold defianceof the National tribunal—Marshall refuses to sit in the caseof the Granville heirs—History of the Granville litigation—Thesecond appeal from the Virginia Court in the Fairfax-Martin-Huntercase—Story's great opinion in Fairfax's Devisee vs. Hunter's Lessee—Hisfirst Constitutional pronouncement—Its resemblance toMarshall's opinions—The Chief Justice disapproves one ground ofStory's opinion—His letter to his brother—Anger of the Virginiajudges at reversal of their judgment—The Virginia Republicanorganization prepares to attack Marshall. |
| [IV.] | FINANCIAL AND MORAL CHAOS | [168] |
| | February and March, 1819, mark an epoch in American history—Marshall,at that time, delivers three of his greatest opinions—Hesurveys the state of the country—Beholds terrible conditions—Themoral, economic, and social breakdown—Bad banking the immediatecause of the catastrophe—Sound and brilliant career ofthe first Bank of the United States—Causes of popular antagonismto it—Jealousy of the State banks—Jefferson's hostility to a centralbank—John Adams's description of State banking methods—Oppositionto rechartering the National institution—Congress refusesto recharter it—Abnormal increase of State banks—Theirgreat and unjustifiable profits—Congress forced to charter secondBank of the United States—Immoral and uneconomic methodsof State banks—Growth of "private banks"—Few restrictionsplaced on State and private banks and none regarded by them—Popularcraze for more "money"—Character and habits of Westernsettlers—Local banks prey upon them—Marshall's personal experience—Statebanks control local press, bar, and courts—Ruthlessforeclosures of mortgages and incredible sacrifices of property—Counterfeitingand crime—People unjustly blame Bank of theUnited States for their financial misfortunes—It is, at first, bad, andcorruptly managed—Is subsequently well administered—Populardemand for bankruptcy laws—State "insolvency" statutes badlydrawn and ruinously executed—Speculators use them to escape thepayment of their liabilities while retaining their assets—Foreclosuresand sheriff's sales increase—Demand for "stay laws" inKentucky—Marshall's intimate personal knowledge of conditionsin that State—States begin to tax National Bank out of existence—Marshalldelivers one of his great trilogy of opinions of 1819on contract, fraud, and banking—Effect of the decision of theSupreme Court in Sturges vs. Crowninshield. |
| [V.] | THE DARTMOUTH COLLEGE CASE | [220] |
| | The Dartmouth College case affected by the state of the country—Marshallprepares his opinion while on his vacation—His viewswell known—His opinion in New Jersey vs. Wilson—EleazarWheelock's frontier Indian school—The voyage and mission ofWhitaker and Occom—Funds to aid the school raised in Englandand Scotland—The Earl of Dartmouth—Governor Wentworthgrants a royal charter—Provisions of this document—ColonelJohn Wheelock becomes President of the College—The beginningsof strife—Obscure and confused origins of the Dartmouthcontroversy, including the slander of a woman's reputation, sectarianwarfare, personal animosities, and partisan conflict—TheCollege Trustees and President Wheelock become enemies—Thehostile factions attack one another by means of pamphlets—TheTrustees remove Wheelock from the Presidency—The RepublicanLegislature passes laws violative of the College Charter and establishingDartmouth University—Violent political controversy—TheCollege Trustees and officers refuse to yield—The famous suit ofTrustees of Dartmouth College vs. Woodward is brought—The contractclause of the Constitution is but lightly considered by Webster,Mason, and Smith, attorneys for the College—Supreme Court ofNew Hampshire upholds the acts of the Legislature—Chief JusticeRichardson delivers able opinion—The case appealed to theSupreme Court of the United States—Webster makes his first greatargument before that tribunal—He rests his case largely on "naturalright" and "fundamental principles," and relies but little on thecontract clause—He has small hopes of success—The court cannotagree—Activity of College Trustees and officers during the summerand autumn of 1818—Chancellor James Kent advises JusticesJohnson and Livingston of the Supreme Court—William Pinkneyis retained by the opponents of the College—He plans to ask for areargument and makes careful preparation—Webster is alarmed—TheSupreme Court opens in February, 1819—Marshall ignoresPinkney and reads his opinion to which five Associate Justices assent—Thejoy of Webster and disgust of Pinkney—Hopkinson's comment—Theeffect of Marshall's opinion—The foundations of goodfaith—Comments upon Marshall's opinion—The persistent vitalityof his doctrine as announced in the Dartmouth College case—Departuresfrom it—Recent discussions of Marshall's theory. |
| [VI.] | VITALIZING THE CONSTITUTION | [282] |
| | The third of Marshall's opinions delivered in 1819—The facts inthe case of M'Culloch vs. Maryland—Pinkney makes the last butone of his great arguments—The final effort of Luther Martin—Marshalldelivers his historic opinion—He announces a radicalNationalism—"The power to tax involves the power to destroy"—Marshall'sopinion is violently attacked—Niles assails it in hisRegister—Declares it "more dangerous than foreign invasion"—Marshall'sopinion more widely published than any previous judicialpronouncement—The Virginia Republican organization perceivesits opportunity and strikes—Marshall tells Story of thecoming assault—Roane attacks in the Richmond Enquirer—"Thepeople must rouse from the lap of Delilah to meet thePhilistines"—The letters of "Amphyction" and "Hampden"—TheUnited States is "as much a league as was the former confederation"—Marshallis acutely alarmed by Roane's attacks—Hewrites a dull and petulant newspaper defense of his brilliant opinion—Regretshis controversial effort and refuses to permit its republication—TheVirginia Legislature passes resolutions denouncinghis opinion and proposing a new tribunal to decide controversies betweenStates and the Nation—The slave power joins the attackupon Marshall's doctrines—Ohio aligns herself with Virginia—Ohio'sdramatic resistance to the Bank of the United States—Passesextravagantly drastic laws—Adopts resolutions denouncingMarshall's opinions and defying the National Government—Pennsylvania,Tennessee, Indiana, Illinois also demand a newcourt—John Taylor "of Caroline" writes his notable book, ConstructionConstrued—Jefferson warmly approves it—Declares theNational Judiciary to be a "subtle corps of sappers and minersconstantly working underground to undermine the foundations ofour confederated fabric." |
| [VII.] | THREATS OF WAR | [340] |
| | Relation of slavery and Marshall's opinions—The South threatenswar: "I behold a brother's sword crimsoned with a brother'sblood"—Northern men quail—The source and purpose of Marshall'sopinion in Cohens vs. Virginia—The facts in that case—Atrivial police court controversy—The case probably "arranged"—WilliamPinkney and David B. Ogden appear forthe Cohens—Senator James Barbour, for Virginia, threatens secession:"With them [State Governments], it is to determine howlong their [National] government shall endure"—Marshall's opinionis an address to the American people—The grandeur of certainpassages: "A Constitution is framed for ages to come and isdesigned to approach immortality"—The Constitution is vitalizedby a "conservative power" within it—Independence of theJudiciary necessary to preservation of the Republic—Marshalldirectly replies to the assailants of Nationalism: "The States aremembers of one great empire"—Marshall originates the phraseology,"a government of, by, and for the people"—Publicationof the opinion in Cohens vs. Virginia arouses intense excitement—Roanesavagely attacks Marshall under the nom de guerre of"Algernon Sidney"—Marshall is deeply angered—He writesStory denouncing Roane's articles—Jefferson applauds and encouragesattacks on Marshall—Marshall attributes to Jeffersonthe assaults upon him and the Supreme Court—The incident ofJohn E. Hall and his Journal of American Jurisprudence—JohnTaylor again assails Marshall's opinions in his second book,Tyranny Unmasked—He connects monopoly, the protectivetariff, internal improvements, "exclusive privileges," and emancipationwith Marshall's Nationalist philosophy—Jeffersonpraises Taylor's essay and declares for armed resistance to National"usurpation": "The States must meet the invader foot tofoot"—Senator Richard M. Johnson of Kentucky, in Congress,attacks Marshall and the Supreme Court—Offers an amendmentto the Constitution giving the Senate appellate jurisdictionfrom that tribunal—Roane asks the Virginia Legislature to demandan amendment to the National Constitution limiting thepower of the Supreme Court—Senator Johnson makes bold andpowerful speech in the Senate—Declares the Supreme Court tobe a denial of the whole democratic theory—Webster sneers atJohnson's address—Kentucky and the Supreme Court—The"Occupying Claimant" laws—Decisions in Green vs. Biddle—TheKentucky Legislature passes condemnatory and defiant resolutions—JusticeWilliam Johnson infuriates the South by anopinion from the Circuit Bench—The connection of the foregoingevents with the Ohio Bank case—The alignment of economic,political, and social forces—Marshall delivers his opinionin Osborn vs. The Bank of the United States—The historicalsignificance of his declaration in that case. |
| [VIII.] | COMMERCE MADE FREE | [397] |
| | Fulton's experiments on the Seine in Paris—French scientists rejecthis invention—The Livingston-Fulton partnership—Livingston'sformer experiments in New York—Secures monopolygrants from the Legislature—These expire—The Clermontmakes the first successful steamboat voyage—Water transportationrevolutionized—New York grants monopoly of steamboatnavigation to Livingston and Fulton—They send Nicholas J.Roosevelt to inspect the Ohio and Mississippi Rivers—His romanticvoyage to New Orleans—Louisiana grants exclusivesteamboat privileges to Livingston and Fulton—New Jerseyretaliates on New York—Connecticut forbids Livingston andFulton boats to enter her waters—New York citizens defythe steamboat monopoly—Livingston and Fulton sue JamesVan Ingen—New York courts uphold the steamboat monopoly,and assert the right of the State to control navigation on its waters—Theopinion of Chief Justice Kent—The controversy betweenAaron Ogden and Thomas Gibbons—Ogden, operatingunder a license from Livingston and Fulton, sues Gibbons—Statecourts again sustain the monopoly acts—Gibbons appealsto the Supreme Court—Ogden retains William Pinkney—Thecase is dismissed, refiled, and continued—Pinkneydies—Argument not heard for three years—Several Statespass monopoly laws—Prodigious development of steamboatnavigation—The demand for internal improvements stimulated—Theslave interests deny power of Congress to build roads andcanals—The daring speech of John Randolph—Declaresslavery imperiled—Threatens armed resistance—Remarkablealignment of opposing forces when Gibbons vs. Ogden is heard inSupreme Court—Webster makes the greatest of his legal arguments—Marshall'sopinion one of his most masterful statepapers—His former opinion on the Circuit Bench in the case ofthe Brig Wilson anticipates that in Gibbons vs. Ogden—Thepower of Congress over interstate and foreign commerce absoluteand exclusive—Marshall attacks the enemies of Nationalism—Theimmediate effect of Marshall's opinion on steamboat transportation,manufacturing, and mining—Later effect still morepowerful—Railway development incalculably encouraged—Resultsto-day of Marshall's theory of commerce—Litigation inNew York following the Supreme Court's decision—The whole-heartedNationalism of Chief Justice Savage and ChancellorSanford—Popularity of Marshall's opinion—The attack in Congresson the Supreme Court weakens—Martin Van Buren, whiledenouncing the "idolatry" for the Supreme Court, pays an exaltedtribute to Marshall: "The ablest judge now sitting on any judicialbench in the world"—Senator John Rowan of Kentucky calls thenew popular attitude toward the Supreme Court "a judicialsuperstition"—The case of Brown vs. Maryland—Marshall'sopinion completes his Constitutional expositions of the commerceclause—Taney's remarkable acknowledgment. |
| [IX.] | THE SUPREME CONSERVATIVE | [461] |
| | Marshall's dislike for the formal society of Washington—Hischarming letters to his wife—He carefully avoids partisan politics—Refrainsfrom voting for twenty years—Is irritated bynewspaper report of partisanship—Writes denial to the RichmondWhig—Clay writes Marshall—The Chief Justice explains incidentto Story—Marshall's interest in politics—His letter to hisbrother—Permits himself to be elected to the Virginia ConstitutionalConvention of 1829-30—His disgust at his "weakness"—WritesStory amusing account—Issues before the conventiondeeply trouble him—He is frankly and unshakably conservative—Theantiquated and undemocratic State Constitution of 1776and the aristocratic system under it—Jefferson's brilliant indictmentof both in a private letter—His alarm and anger when hisletter is circulated—He tries to withdraw it—Marshall's interestin the well-being of the people—His prophetic letter to CharlesF. Mercer—Marshall's only public ideal that of Nationalism—Hisviews on slavery—Letters to Gurley and Pickering—Hisjudicial opinions involving slavery and the slave trade: The Antelope;Boyce vs. Anderson—Extreme conservatism of Marshall'sviews on legislation and private property—Letter to Greenhow—Opinionsin Ogden vs. Saunders and Bank vs. Dandridge—Marshall'swork in the Virginia convention—Is against any reform—WritesJudiciary report—The aristocratic County Courtsystem—Marshall defends it—Impressive tributes to Marshallfrom members of the convention—His animated and powerfulspeeches on the Judiciary—He answers Giles, Tazewell, and Cabell,and carries the convention by an astonishing majority—Isopposed to manhood suffrage and exclusive white basis of representation—Hepleads for compromise on the latter subject andprevails—Reasons for his course in the convention—He probablyprevents civil strife and bloodshed in Virginia—The conventionadjourns—History of Craig vs. Missouri—Marshall'sstern opinion—The splendid eloquence of his closing passage—Threemembers of the Supreme Court file dissenting opinions—Marshall'smelancholy comments on them—Congressional assaultson the Supreme Court renewed—They are astonishinglyweak, and are overwhelmingly defeated, but the vote is ominous. |
| [X.] | THE FINAL CONFLICT | [518] |
| | Sadness of Marshall's last years—His health fails—Contemplatesresigning—His letters to Story—Goes to Philadelphia forsurgical treatment—Remarkable resolutions by the bar of thatcity—Marshall's response—Is successfully operated upon byDr. Physick—His cheerfulness—Letters to his wife—Mrs. Marshalldies—Marshall's grief—His tribute to her—He is depressedby the course of President Jackson—The warfare on theBank of the United States—Congress recharters it—Jacksonvetoes the Bank Bill and assails Marshall's opinions in the Bankcases—The people acclaim Jackson's veto—Marshall is disgusted—Hisletters to Story—He is alarmed at the growth of disunionsentiment—Causes of the recrudescence of Localism—Marshall'stheory of Constitutional construction and its relation toslavery—The tariff—The South gives stern warnings—Dangerousagitation in South Carolina—Georgia asserts her "sovereignty"in the matter of the Cherokee Indians—The case ofGeorge Tassels—Georgia ignores the Supreme Court and rebukesMarshall—The Cherokee Nation vs. Georgia—The State againignores the Supreme Court—Marshall delivers his opinion in thatcase—Worcester vs. Georgia—The State defies the Supreme Court—Marshall'sopinion—Georgia flouts the Court and disregards itsjudgment—Jackson supports Georgia—Story's melancholy letter—Thecase of James Graves—Georgia once more defies the SupremeCourt and threatens secession—South Carolina encouragedby Georgia's attitude—Nullification sentiment grows rapidly—TheHayne-Webster debate—Webster's great speech a condensationof Marshall's Nationalist opinions—Similarity of Webster'slanguage to that of Marshall—The aged Madison repudiates Nullification—Marshall,pleased, writes Story: "Mr. Madison is himselfagain"—The Tariffs of 1828 and 1832 infuriate South Carolina—Scenesand opinion in that State—Marshall clearly statesthe situation—His letters to Story—South Carolina proclaimsNullification—Marshall's militant views—Jackson issues hisNullification Proclamation—It is based on Marshall's theory ofthe Constitution and is a triumph for Marshall—Story's letter—Haynereplies to Jackson—South Carolina flies to arms—Virginiaintercedes—Both parties back down: South Carolinasuspends Nullification and Congress passes Tariff of 1833—Marshalldescribes conditions in the South—His letters to Story—Healmost despairs of the Republic—Public appreciation of his character—Storydedicates his Commentaries to Marshall—Marshallpresides over the Supreme Court for the last time—His fatalillness—He dies at Philadelphia—The funeral at Richmond—Widespreadexpressions of sorrow—Only one of condemnation—Thelong-continued mourning in Virginia—Marshall's old club resolvesnever to fill his place or increase its membership—Story's"inscription for a cenotaph" and the words Marshall wrote forhis tomb. |
| [WORKS CITED IN THIS VOLUME] | [595] |
| [INDEX] | [613] |