All but Marshall have been rescued from this frigid isolation. Any discovery of human frailty in the great Chief Justice is, therefore, most welcome. Some small and gracious defects in Marshall's character have appeared in the course of these volumes; and this additional evidence of his susceptibility to ordinary emotion is very pleasing. With all his stern repression of that element of his character, we find that he was sensitive in the extreme; in reality, thirsting for approval, hurt by criticism. In spite of this desire for applause and horror of rebuke, however, he did his duty, knowing beforehand that his finest services would surely bring upon him the denunciation and abuse he so disliked. By such peevishness as his anonymous reply in the Union to Roane's irritating attacks, we are able to get some measure of the true proportions of this august yet very human character.
When Marshall saw, in print, this controversial product of his pen, he was disappointed and depressed. The editor had, he avowed, so confused the manuscript that it was scarcely intelligible. At any rate, Marshall did not want his defense reproduced in New England. Story had heard of the article in the Union, and wrote Marshall that he wished to secure the publication of it. The Chief Justice replied:
"The piece to which you allude was not published in Virginia. Our patriotic papers admit no such political heresies. It contained, I think, a complete demonstration of the fallacies & errors contained in those attacks on the opinion of the Court which have most credit here & are supposed to proceed from a high source,[886] but was so mangled in the publication that those only who had bestowed close attention to the subject could understand it.
"There were two numbers[887] & the editor of the Union in Philadelphia, the paper in which it was published, had mixed the different numbers together so as in several instances to place the reasoning intended to demonstrate one proposition under another. The points & the arguments were so separated from each other, & so strangely mixed as to constitute a labyrinth to which those only who understood the whole subject perfectly could find a clue."[888]
It appears that Story insisted on having at least Marshall's rejoinder to Roane's first article reproduced in the Boston press. Again the Chief Justice evades the request of his associate and confidant: "I do not think a republication of the piece you mention in the Boston papers to be desired, as the antifederalism of Virginia will not, I trust, find its way to New England. I should also be sorry to see it in Mr. Wheaton's[889] appendix because that circumstance might lead to suspicions regarding the author & because I should regret to see it republished in its present deranged form with the two centres transposed."[890]
For a brief space, then, the combatants rested on their arms, but each was only gathering strength for the inevitable renewal of the engagement which was to be sterner than any previous phases of the contest.
Soon after the convening of the first session of the Virginia Legislature held subsequent to the decision of M'Culloch vs. Maryland, Roane addressed the lawmakers through the Enquirer, now signing himself "Publicola." He pointed out the "absolute disqualification of the supreme court of the U. S. to decide with impartiality upon controversies between the General and State Governments";[891] and, to "ensure unbiassed" decisions, insisted upon a Constitutional amendment to establish a tribunal "(as occasion may require)" appointed partly by the States and partly by the National Government, "with appellate jurisdiction from the present supreme court."[892]
Promptly a resolution against Marshall's opinion was offered in the House of Delegates.[893] This noteworthy paper was presented by Andrew Stevenson, a member of the "committee for Courts of Justice."[894] The resolutions declared that the doctrines of M'Culloch vs. Maryland would "undermine the pillars of the Constitution itself." The provision giving to the judicial power "all cases arising under the Constitution" did not "extend to questions which would amount to a subversion of the constitution itself, by the usurpation of one contracting party on another." But Marshall's opinion was calculated to "change the whole character of the government."[895]
Sentences from the opinion of the Chief Justice are quoted, including the famous one: "Let the end be legitimate, ... and all the means which are appropriate, ... which are not prohibited, ... are constitutional." Did not such expressions import that Congress could "conform the constitution to their own designs" by the exercise of "unlimited and uncontrouled" power? The ratifying resolution of the Constitution by the Virginia Convention of 1788 is quoted.[896] Virginia's voice had been heard to the same effect in the immortal Resolutions of 1799. Her views had been endorsed by the country in the Presidential election of 1800—that "great revolution of principle." Her Legislature, therefore, "enter their most solemn protest, against the decision of the supreme court, and of the principles contained in it."
In this fashion the General Assembly insisted on an amendment to the National Constitution "creating a tribunal" authorized to decide questions relative to the "powers of the general and state governments, under the compact." The Virginia Senators are, therefore, instructed to do their best to secure such an amendment and "to resist on every occasion" attempted legislation by Congress in conflict with the views set forth in this resolution or those of 1799 "which have been re-considered, and are fully and entirely approved of by this Assembly." The Governor is directed to transmit the resolutions to the other States.[897]