FOOTNOTES:
[784] These penalties were forfeits of $500 for every offense—a sum that would have aggregated hundreds of thousands, perhaps millions of dollars, in the case of the Baltimore branch, which did an enormous business. The Maryland law also provided that "every person having any agency in circulating" any such unauthorized note of the Bank should be fined one hundred dollars. (Act of Feb. 11, 1818, Laws of Maryland, 174.)
[785] Story to White, March 3, 1819, Story, i, 325.
[786] Webster always dressed with extreme care when he expected to make a notable speech or argument. For a description of his appearance on such an occasion see Sargent: Public Men and Events, i, 172.
[787] 4 Wheaton, 323.
[788] Ib. 324.
[789] Ib. 327.
[790] Ib. 328.
[791] 4 Wheaton, 330 et seq.
[792] Ib. 362 et seq.
[793] Ib. 272-73.
[794] Ib. 374.
[795] Tyler: Memoir of Roger Brooke Taney, 141.
[796] The student should carefully examine Pinkney's argument. Although the abstract of it given in Wheaton's report is very long, a painstaking study of it will be helpful to a better understanding of the development of American Constitutional law. (4 Wheaton, 377-400.)
[797] Story to White, March 3, 1819, Story, i, 324-25.
[798] 4 Wheaton, 426.
[799] See supra, chap. v.
[800] Webster to Mason, Feb. 24, 1819, Van Tyne, 78-79.
[801] Webster to Smith, Feb. 28, 1819, ib. 79-80.
[802] From February 22 to February 27 and from March 1 to March 3, 1819.
[803] February 18, 1819. See Annals, 15th Cong. 2d Sess. 1240.
[804] Ib. 1242.
[805] Annals, 15th Cong. 2d Sess. 1249-50.
[806] Ib. 1254.
[807] Ib. 1286.
[808] Ib. 1311.
[809] Ib. 1404-06.
[810] "Marshall's opinion in M'Culloch vs. Maryland, is perhaps the most celebrated Judicial utterance in the annals of the English speaking world." (Great American Lawyers: Lewis, ii, 363.)
[811] As the biographer of Washington, Marshall had carefully read both Hamilton's and Jefferson's Cabinet opinions on the constitutionality of a National bank. Compare Hamilton's argument (vol. ii, 72-74, of this work) with Marshall's opinion in M'Culloch vs. Maryland.
[812] 4 Wheaton, 400.
[813] Ib. (Italics the author's.)
[814] 4 Wheaton, 400-02.
[815] "In discussing this question, the counsel for the state of Maryland have deemed it of some importance, in the construction of the constitution, to consider that instrument not as emanating from the people, but as the act of sovereign and independent states. The powers of the general government, it has been said, are delegated by the states, who alone are truly sovereign; and must be exercised in subordination to the states, who alone possess supreme dominion.
"It would be difficult to sustain this proposition. The convention which framed the constitution was indeed elected by the state legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation, or pretensions to it. It was reported to the then existing Congress of the United States, with a request that it might 'be submitted to a convention of delegates, chosen in each state, by the people thereof, under the recommendation of its legislature, for their assent and ratification.' This mode of proceeding was adopted; and by the convention, by Congress, and by the state legislatures, the instrument was submitted to the people.
"They acted upon it in the only manner in which they can act safely, effectively, and wisely, on such a subject, by assembling in convention. It is true, they assembled in their several states—and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding the American people into one common mass. Of consequence, when they act, they act in their states. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the state governments. From these conventions the constitution derives its whole authority." (4 Wheaton, 402-03.)
[816] 4 Wheaton, 403-04.
[817] Ib. 405.
[818] The Nationalist ideas of Marshall and Lincoln are identical; and their language is so similar that it seems not unlikely that Lincoln paraphrased this noble passage of Marshall and thus made it immortal. This probability is increased by the fact that Lincoln was a profound student of Marshall's Constitutional opinions and committed a great many of them to memory.
The famous sentence of Lincoln's Gettysburg Address was, however, almost exactly given by Webster in his Reply to Hayne: "It is ... the people's Government; made for the people; made by the people; and answerable to the people." (Debates, 21st Cong. 1st Sess. 74; also Curtis, I, 355-61.) But both Lincoln and Webster merely stated in condensed and simpler form Marshall's immortal utterance in M'Culloch vs. Maryland. (See also infra, chap. x.)
[819] 4 Wheaton, 405-06.
[820] 4 Wheaton, 406-07. (Italics the author's.)
[821] Ib., 407-08.
[822] See vol. i, 72, of this work.
[823] 4 Wheaton, 408-09.
[824] 4 Wheaton, 409-10.
[825] Ib. 411.
[826] "The Congress shall have Power ... to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." (Constitution of the United States, Article i, Section 8.)
[827] 4 Wheaton, 412.
[828] Ib. 413.
[829] See vol. ii, 71, of this work.
[830] Vol. ii, 72-74, of this work.
[831] 4 Wheaton, 414.
[832] 4 Wheaton, 415.
[833] Ib. 416-17.
[834] 4 Wheaton, 417-18.
[835] 4 Wheaton, 419-21.
[836] Ib. 421.
[837] Ib. 423.
[838] 4 Wheaton, 424-25.
[839] 4 Wheaton, 425-26.
[840] 4 Wheaton, 426.
[841] See supra, 158 et seq.
[842] 4 Wheaton, 426.
[843] 4 Wheaton, 427.
[844] Ib. 429-30.
[845] 4 Wheaton, 431.
[846] Ib.
[847] 4 Wheaton, 432-33.
[848] 4 Wheaton, 435-36.
[849] Ib. 437.
[850] Story to his mother, March 7, 1819, Story, i, 325-26.
[851] See infra, 420; also 325-27; 338-39, 534-37.
[852] Niles, xvi, 41-44.
[853] Ib. 68-76.
[854] See infra, chap. viii.
[855] Niles, xvi, 65.
[856] See vol. iii, 130-31, of this work.
[857] Niles, xvi, 65.
[858] Ib. 97. For instance, the Natchez Press, in announcing its intention to print Marshall's whole opinion, says that, if his doctrine prevails, "the independence of the individual states ... is obliterated at one fell sweep." No country can remain free "that tolerates incorporated banks, in any guise." (Ib. 210.)
[859] Ib. 103.
[860] Ib. 104.
[861] Niles, xvi, 105.
[862] Niles's attack on Marshall's opinion in M'Culloch vs. Maryland ran through three numbers. (See ib. 41-44; 103-05; 145-47.)
[863] See supra, 161-67.
[864] Marshall to Story, March 24, 1819, Proceedings, Mass, Hist. Soc. 2d Series, xiv, 324.
[865] See supra, 146.
[866] Enquirer, March 30, 1819, as quoted in Branch Hist. Papers, June, 1905, 52-53.
[867] Branch Hist. Papers, June, 1905, 51-63.
[868] Enquirer, April 2, 1819, as quoted in Branch Hist. Papers, June, 1905, 76. (Italics the author's.)
[869] Enquirer, April 20, 1819, as quoted in ib. 76.
[870] Marshall to Story, May 27, 1819, Proceedings, Mass. Hist. Soc. 2d Series, xiv, 325.
[871] Enquirer, June 11, 1819, as quoted in Branch Hist. Papers, June, 1905, footnote to 77.
[872] Enquirer, June 11, 1819, as quoted in Branch Hist. Papers, June, 1905, 77-82.
[873] Enquirer, June 15, 1819, as quoted in ib. 85; also Enquirer, June 18, 1819, as quoted in ib. 95.
[874] Enquirer, June 15, 1819, as quoted in ib. 91.
[875] Ib. 87; also Enquirer, June 18, 1819, as quoted in ib. 96-97.
[876] Ib. 98.
[877] Enquirer, June 22, 1819, as quoted in Branch Hist. Papers, June, 1905, 116.
[878] Ib. 118.
[879] Ib. 121. Madison endorsed Roane's attacks on Marshall. (See Madison to Roane, Sept. 2, 1819, Writings of James Madison: Hunt, viii, 447-53.)
[880] See Roane to his son, Jan. 4, 1819, Branch Hist. Papers, June, 1905, 134; and same to same, Feb. 4, 1819, ib. 135.
Eighteen days before Marshall delivered his opinion Roane again writes his son: "I have to-day deposited in the vaults of the Virga. bank a certificate in your name for 50 shares U. S. bank stock, as per memo., by Mr. Dandridge Enclosed. The shares cost, as you will see, $98 each." (Roane to his son, Feb. 16, 1810, ib. 136.)
[881] Roane to his son, note 4, p. 317.
[882] The entire transaction is set out in letters of Benjamin Watkins Leigh to Nicholas Biddle, Aug. 21, Aug. 28, Sept. 4, and Sept. 13, 1837; and Biddle to Leigh, Aug. 24 and 25, Sept. 7 and Sept. 15, 1837. (Biddle MSS. in possession of Professor R. C. McGrane of the University of Ohio, to whose courtesy the author is indebted for the use of this material. These letters appear in full in the Correspondence of Nicholas Biddle: McGrane, 283-89, 291-92, published in September, 1919, by Houghton Mifflin Company, Boston.)
[883] Marshall to Bushrod Washington, June 28, 1819. This letter is unsigned, but is in Marshall's unmistakable handwriting and is endorsed by Bushrod Washington, "C. Just. Marshall." (Marshall MSS. Lib. Cong.)
[884] Union, April 24, 1819.
[885] Union, April 24, 1819.
[886] Marshall means that Jefferson inspired Roane's attacks.
[887] Marshall had written five essays, but the editor condensed them into two numbers.
[888] Marshall to Story, May 27, 1819, Proceedings, Mass. Hist. Soc. 2d Series, xiv, 325.
[889] Henry Wheaton, Reporter of the Supreme Court.
[890] Marshall to Story, July 13, 1819, Proceedings, Mass. Hist. Soc. 2d Series, xiv, 326.
[891] Enquirer, Jan. 30, 1821.
[892] Ib. Feb. 1, 1821.
[893] Journal, House of Delegates, Virginia, 1819-20, 56-59.
[894] Ib. 9.
[895] Ib. 57.
[896] This resolution declared that Virginia assented to the Constitution only on condition that "Every power not granted, remains with the people, and at their will; that therefore no right of any denomination can be cancelled, abridged, restrained, or modified, by the congress, by the senate, or house of representatives acting in any capacity; by the President or any department, or officer of the United States, except in those instances in which power is given by the constitution for those purposes." (Journal, House of Delegates, Virginia, 1819-20, 58.)
[897] Journal, House of Delegates, Virginia, 1819-20, 59.
[898] Ib. 76.
[899] Journal, House of Delegates, Virginia, 1819-20, 85.
[900] Ib. 105.
[901] Ib. 108-09.
[902] Ib. 179.
[903] Ib. 175-78.
[904] For Marshall's opinion in this controversy see infra, 347 et seq.
[905] The second branch was established at Chillicothe.
[906] Chap. 83, Laws of Ohio, 1818-19, 1st Sess. 190-99.
Section 5 of this act will give the student the spirit of this autocratic law. This section made it the "duty" of the State agent collecting the tax, after demand on and refusal of the bank officers to pay the tax, if he cannot readily find in the bank offices the necessary amount of money, "to go into each and any other room or vault ... and to every closet, chest, box or drawer in such banking house, to open and search," and to levy on everything found. (Ib. 193.)
[907] A private letter to Niles says that when it was found that an injunction had been granted, the friends of the bank rejoiced, "wine was drank freely and mirth abounded." (Niles, xvii, 85.) This explains the otherwise incredible negligence of the bank's attorneys in the proceedings next day.
[908] Niles, xvii, 85-87, reprinting account as published in the Chillicothe Supporter, Sept. 22, 1819, and the Ohio Monitor, Sept. 25, 1819.
[909] Niles, xvii, 147.
[910] Ib. 338.
[911] Report of Committee made to the Ohio Legislature and transmitted to Congress. (Annals, 16th Cong. 2d Sess. 1685 et seq.)
[912] Annals, 16th Cong. 2d Sess. 1691.
[913] Annals, 16th Cong. 2d Sess. 1696-97.
[914] See vol. ii, 72-74, of this work.
[915] Annals, 16th Cong. 2d Sess. 1712.
[916] Ib. 1713.
[917] Ib. 1714.
[918] See infra, chap. vii of this work.
[919] State Doc. Fed. Rel.: Ames, 90; and see Niles, xvi, 97, 132.
[920] Pennsylvania House of Representatives, Journal, 1819-20, 537; State Doc. Fed. Rel.: Ames, footnote to 90-91.
[921] Ib.
[922] Ib. 91.
[923] See infra, chap. x.
[924] State Doc. Fed. Rel.: Ames, 92-103.
[925] Ib. 92, 101-03.
[926] Ib. 91.
[927] See infra, chap. x.
[928] See vol. ii, 397, of this work.
[929] Taylor: Construction Construed, and Constitutions Vindicated, 9.
[930] Taylor: Construction Construed, 11-12. Taylor does not, of course, call Marshall by name, either in this book or in his other attacks on the Chief Justice.
[931] Ib. 15.
[932] Ib. 16.
[933] Ib. 18.
[934] Ib. 25-26.
[935] Ib. 28.
[936] Taylor: Construction Construed, 77.
[937] Ib. 79.
[938] Ib. 84.
[939] Ib. 87.
[940] Taylor: Construction Construed, 89.
[941] Ib. 161.
[942] Ib. 233.
[943] Ib. 237.
It is interesting to observe that Taylor brands the protective tariff as one of the evils of Marshall's Nationalist philosophy. "It destroys the division of powers between federal and state governments, ... it violates the principles of representation, ... it recognizes a sovereign power over property, ... it destroys the freedom of labour, ... it taxes the great mass of capital and labour, to enrich the few; ... it increases the burden upon the people ... increases the mass of poverty; ... it impoverishes workmen and enriches employers; ... it increases the expenses of government, ... it deprives commerce of the freedom of exchanges, ... it corrupts congress ... generates the extremes of luxury and poverty." (Taylor: Construction Construed, 252-53.)
[944] See infra, 340-42; and see infra, chap. x.
[945] Taylor: Construction Construed, 314.
[946] Jefferson to Ritchie, Dec. 25, 1820, Works: Ford, xii, 176-78. He declined, however, to permit publication of his endorsement of Taylor's book. (Ib.)