FOOTNOTES:
[1390] Marshall to Story, June 26, 1831, Proceedings, Mass. Hist. Soc. 2d Series, 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's Pennsylvania 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 he chuses to 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] See infra, 540-51.
[1409] See Catterall, 407, 421-22, 467; and see especially Parton: Jackson, iii, 257-58.
[1410] Catterall, Appendix ix, 508.
[1411] Ib. chaps. v and vii. 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 see ib. 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. (See Debates, 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] See supra, 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 in Statutes 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, in Annual 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] See Debates, 21st Cong. 1st Sess. 309-57, 359-67, 374-77, 994-1133. For the text of this bill as it passed the House see ib. 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] See supra, 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 (see ib. 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 Cohens vs. 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 Cohens vs. 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] See supra, 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. (See infra, 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; also Statutes at Large of South Carolina: Cooper, i, 381-83.
[1533] Niles, xliii, 397. For the details of Leigh's mission see ib. 377-93; also Statutes 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 his Commentaries on the Constitution of the United States by 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's Commentaries on the Constitution, immediately after the title-page of volume i.
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] Briscoe vs. The Commonwealth's Bank of the State of Kentucky, 8 Peters, 118 et seq.
[1553] See supra, 509-13.
[1554] Act of Dec. 25, Laws of Kentucky, 1820, 183-88.
[1555] The Mayor, Aldermen and Commonalty of the City of New York vs. Miln, 8 Peters, 121 et 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 Craig vs. 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 Smith vs. Robert Trabue's Heirs, 9 Peters, 4-6; U.S. vs. Nourse, ib. 11-32; Caldwell et al. vs. Carrington's Heirs, ib. 87-105; Bradley vs. The Washington, etc. Steam Packet Co. ib. 107-16; Delassus vs. U.S. ib. 118-36; Chouteau's Heirs vs. U.S. ib. 137-46; U.S. vs. Clarke, ib. 168-70; U.S. vs.. Huertas, ib. 171-74; Field et al. vs. U.S. ib. 182-203; Mayor, etc. of New Orleans vs. De Armas and Cucullo, ib.. 224-37; Life and Fire Ins. Co. of New York vs. 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 Richmond Enquirer, July 10, 1835. Marshall died "at the Boarding House of Mrs. Crim, Walnut street below Fourth." (Philadelphia Inquirer, 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] Philadelphia Inquirer, July 7, 1835.
[1571] Niles, xlviii, 322.
[1572] Richmond Enquirer July 10, 1835.
[1573] Ib.
[1574] Richmond Whig and Public Advertiser, July 10, 1835.
[1575] Richmond Enquirer, 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 in Richmond Whig and Public Advertiser, July 14, 1835.
[1580] Richmond Enquirer, July 21, 1835.
[1581] Ib.
[1582] Ib. July 17, 1835.
[1583] Alexandria Gazette, Aug. 13, 1835, reprinted in the Richmond Enquirer, Aug. 21, 1835.
[1584] Magruder: John Marshall, 282.
[1585] Story, ii, 206.