It is nonsense to say that these particular bills of credit are lawful because they are not made legal tender, since a separate provision applies to legal tender. The issue of legal tender currency, and also bills of credit, is equally and separately forbidden: "To sustain the one because it is not also the other; to say that bills of credit may be emitted if they be not made a tender in payment of debts; is ... to expunge that distinct, independent prohibition."[1368]
In a well-nigh perfect historical summary, Marshall reviews experiments before and during the Revolution in bills of credit that were made legal tender, and in others that were not—all "productive of the same effects," all equally ruinous in results.[1369] The Missouri law authorizing the loan certificates, for which Craig gave his promissory note, is "against the highest law of the land, and ... the note itself is utterly void."[1370]
The Chief Justice closes with a brief paragraph splendid in its simple dignity and power. In his argument for Missouri, Senator Thomas H. Benton had used violent language of the kind frequently employed by the champions of State Rights: "If ... the character of a sovereign State shall be impugned," he cried, "contests about civil rights would be settled amid the din of arms, rather than in these halls of national justice."[1371]
To this outburst Marshall replies: The court has been told of "the dangers which may result from" offending a sovereign State. If obedience to the Constitution and laws of the Nation "shall be calculated to bring on those dangers ... or if it shall be indispensable to the preservation of the union, and consequently of the independence and liberty of these states; these are considerations which address themselves to those departments which may with perfect propriety be influenced by them. This department can listen only to the mandates of law; and can tread only that path which is marked out by duty."[1372]
In this noble passage Marshall is not only rebuking Benton; he is also speaking to the advocates of Nullification, then becoming clamorous and threatening; he is pointing out to Andrew Jackson the path of duty.[1373]
Justices Johnson, Thompson, and McLean afterwards filed dissenting opinions, thus beginning the departure, within the Supreme Court, from the stern Constitutional Nationalism of Marshall. This breach in the court deeply troubled the Chief Justice during the remaining four years of his life.
Johnson thought "that these certificates are of a truly amphibious character." The Missouri law "does indeed approach as near to a violation of the Constitution as it can well go without violating its prohibition, but it is in the exercise of an unquestionable right, although in rather a questionable form." So, on the whole, Johnson concluded that the Supreme Court had better hold the statute valid.[1374]
"The right of a State to borrow money cannot be questioned," said Thompson; that is all the Missouri scheme amounts to. If these loan certificates are bills of credit, so are "all bank notes, issued either by the States, or under their authority."[1375] Justice McLean pointed out that Craig's case was only one of many of the same kind. "The solemn act of a State ... cannot be set aside ... under a doubtful construction of the Constitution.[1376]... It would be as gross usurpation on the part of the federal government to interfere with State rights by an exercise of powers not delegated, as it would be for a State to interpose its authority against a law of the Union."[1377]
In Congress attacks upon Marshall and the Supreme Court now were renewed—but they grew continuously feebler. At the first session after the decision of the Missouri loan certificate case, a bill was introduced to repeal the provision of the Judiciary Act upon which the National powers of the Supreme Court so largely depended. "If the twenty-fifth section is repealed, the Constitution is practically gone," declared Story. "Our wisest friends look with great gloom to the future."[1378]
Marshall was equally despondent, but his political vision was clearer. When he read the dissenting opinions of Johnson, Thompson, and McLean, he wrote Story: "It requires no prophet to predict that the 25th section [of the Judiciary Act] is to be repealed, or to use a more fashionable phrase to be nullified by the Supreme Court of the United States."[1379] He realized clearly that the great tribunal, the power and dignity of which he had done so much to create, would soon be brought under the control of those who, for some years at least, would reject that broad and vigorous Nationalism which he had steadily and effectively asserted during almost a third of a century. One more vacancy on the Supreme Bench and a single new appointment by Jackson would give the court to the opponents of Marshall's views. Before he died, the Chief Justice was to behold two such vacancies.[1380]