For three more numbers Hampden pressed the Republican assault on Marshall's opinion. The Constitution is a "compact, to which the States are the parties." Marshall's argument in the Virginia Convention of 1788 is quoted,[873] and his use of certain terms in his "Life of Washington" is cited.[874] If the powers of the National Government ought to be enlarged, "let this be the act of the people, and not that of subordinate agents."[875] The opinion of the Chief Justice repeatedly declares "that the general government, though limited in its powers, is supreme." Hampden avows that he does "not understand this jargon.... The people only are supreme.[876]... Our general government ... is as much a ... 'league' as was the former confederation." Therefore, the Virginia Court of Appeals, in Hunter vs. Fairfax, declared an act of Congress "unconstitutional, although it had been sanctioned by the opinion of the Supreme Court of the United States." Pennsylvania, too, had maintained its "sovereignty."[877]
Hampden has only scorn for "some of the judges" who concurred in the opinion of the Chief Justice. They "had before been accounted republicans.... Few men come out from high places, as pure as they went in."[878] If Marshall's doctrine stands, "the triumph over our liberties will be ... easy and complete." What, then, could "arrest this calamity"? Nothing but an "appeal" to the people. Let this majestic and irresistible power be invoked.[879]
That he had no faith in his own theory is proved by the rather dismal fact that, more than two months before Marshall "violated the Constitution" and "endangered the liberties" of the people by his Bank decision, Roane actually arranged for the purchase, as an investment for his son, of $4900 worth of the shares of the Bank of the United States, and actually made the investment.[880] This transaction, consummated even before the argument in M'Culloch vs. Maryland, shows that Roane, the able lawyer, was sure that Marshall would and ought to sustain the Bank in its controversy with the States that were trying to destroy it. Moreover, Dr. John Brockenbrough, President of the Bank of Virginia, actually advised the investment.[881]
It is of moment, too, to note at this point the course taken by Marshall, who had long owned stock in the Bank of the United States. As soon as he learned that the suit had been brought which, of a certainty, must come before him, the Chief Justice disposed of his holdings.[882]
So disturbed was Marshall by Roane's attacks that he did a thoroughly uncharacteristic thing. By way of reply to Roane he wrote, under the nom de guerre of "A Friend of the Union," an elaborate defense of his opinion and, through Bushrod Washington, procured the publication of it in the Union of Philadelphia, the successor of the Gazette of the United States, and the strongest Federalist newspaper then surviving.
On June 28, 1819, the Chief Justice writes Washington: "I expected three numbers would have concluded my answer to Hampden but I must write two others which will follow in a few days. If the publication has not commenced I could rather wish the signature to be changed to 'A Constitutionalist.' A Friend of the Constitution is so much like a Friend of the Union that it may lead to some suspicion of identity.... I hope the publication has commenced unless the Editor should be unwilling to devote so much of his paper to this discussion. The letters of Amphyction & of Hampden have made no great impression in Richmond but they were designed for the country [Virginia] & have had considerable influence there. I wish the refutation to be in the hands of some respectable members of the legislature as it may prevent some act of the assembly [torn—probably "both">[ silly & wicked. If the publication be made I should [like] to have two or three sets of the papers to hand if necessary. I will settle with you for the printer."[883]
The reading of Marshall's newspaper effort is exhausting; a summary of the least uninteresting passages will give an idea of the whole paper. The articles published in the Enquirer were intended, so he wrote, to inflict "deep wounds on the constitution," are full of "mischievous errours," and are merely new expressions of the old Virginia spirit of hostility to the Nation. The case of M'Culloch vs. Maryland serves only as an excuse "for once more agitating the publick mind, and reviving those unfounded jealousies by whose blind aid ambition climbs the ladder of power."[884]
After a long introduction, Marshall enters upon his defense which is as wordy as his answer to the Virginia Resolutions. He is sensitive over the charge, by now popularly made, that he controls the Supreme Court, and cites the case of the Nereid to prove that the Justices give dissenting opinions whenever they choose. "The course of every tribunal must necessarily be, that the opinion which is to be delivered as the opinion of the court, is previously submitted to the consideration of all the judges; and, if any part of the reasoning be disapproved, it must be so modified as to receive the approbation of all, before it can be delivered as the opinion of all."
Roane's personal charges amount to this: "The chief justice ... is a federalist; who was a politician of some note before he was judge; and who with his tongue and his pen supported the opinions he avowed." With the politician's skill Marshall uses the fact that the majority of the court, which gave the Nationalist judgment in M'Culloch vs. Maryland, were Republicans—"four of whom [Story, Johnson, Duval, and Livingston] have no political sin upon their heads;—who in addition to being eminent lawyers, have the still greater advantage of being sound republicans; of having been selected certainly not for their federalism, by Mr Jefferson, and Mr Madison, for the high stations they so properly fill." For eight tedious columns of diffuse repetition Marshall goes on in defense of his opinion.[885]
When the biographer searches the daily life of a man so surpassingly great and good as Marshall, he hopes in no ungenerous spirit to find some human frailty that identifies his hero with mankind. The Greeks did not fail to connect their deities with humanity. The leading men of American history have been ill-treated in this respect—for a century they have been held up to our vision as superhuman creatures to admire whom was a duty, to criticize whom was a blasphemy, and to love or understand whom was an impossibility.