Chapter VI: Vitalizing the Constitution (2)

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.

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]

At this point Slavery and Secession enter upon the scene. Almost simultaneously with the introduction of the resolutions denouncing Marshall and the Supreme Court for the judgment and opinion in M'Culloch _vs._ Maryland, other resolutions were offered by a member of the House named Baldwin denouncing the imposition of restrictions on Missouri (the prohibition of slavery) as a condition of admitting that Territory to the Union. Such action by Congress would "excite feelings eminently hostile to the fraternal affection and prudent forbearance which ought ever to pervade the confederated union."[898] Two days later, December 30, the same delegate introduced resolutions to the effect that only the maintenance of the State Rights principle could "preserve the confederated union," since "no government can long exist which lies at the mercy of another"; and, inferentially, that Marshall's opinion in M'Culloch _vs._ Maryland had violated that principle.[899]

A yet sterner declaration on the Missouri question quickly followed, declaring that Congress had no power to prohibit slavery in that State, and that "Virginia will support the good people of Missouri in their just rights ... and will co-operate with them in resisting with manly fortitude any attempt which Congress may make to impose restraints or restrictions as the price of their admission" to the Union.[900] The next day these resolutions, strengthened by amendment, were adopted.[901] On February 12, 1820, the resolutions condemning the Nationalist doctrine expounded by the Chief Justice in the Bank case also came to a vote and passed, 117 ayes to 38 nays.[902] They had been amended and reamended,[903] but, as adopted, they were in substance the same as those originally offered by Stevenson. Through both these sets of resolutions--that on the Missouri question and that on the Bank decision--ran the intimation of forcible resistance to National authority. Introduced at practically the same time, drawn and advocated by the same men, passed by votes of the same members, these important declarations of the Virginia Legislature were meant to be and must be considered as a single expression of the views of Virginia upon National policy.

In this wise did the Legislature of his own State repudiate and defy that opinion of John Marshall which has done more for the American Nation than any single utterance of any other one man, excepting only the Farewell Address of Washington. In such manner, too, was the slavery question brought face to face with Marshall's lasting exposition of the National Constitution. For, it should be repeated, in announcing the principles by virtue of which Congress could establish the Bank of the United States, the Chief Justice had also asserted, by necessary inference, the power of the National Legislature to exact the exclusion of slavery as a condition upon which a State could be admitted to the Union. At least this was the interpretation of Virginia and the South.

The slavery question did not, to be sure, closely touch Northern States, but their local interests did. Thus it was that Ohio aligned herself with Virginia in opposition to Marshall's Nationalist statesmanship, and in support of the Jeffersonian doctrine of Localism. In such fashion did the Ohio Bank question become so intermingled with the conflict over Slavery and Secession that, in the consideration of Marshall's opinions at this time, these controversies cannot be separated. The facts of the Ohio Bank case must, therefore, be given at this point.[904]

Since the establishment at Cincinnati, early in 1817, of a branch of the Bank of the United States, Ohio had threatened to drive it from the State by a prohibitive tax. Not long before the argument of M'Culloch _vs._ Maryland in the Supreme Court, the Ohio Legislature laid an annual tax of $50,000 on each of the two branches which, by that time, had been established in that State.[905] On February 8, 1819, only four days previous to the hearing of the Maryland case at Washington, and less than a month before Marshall delivered his opinion, the Ohio lawmakers passed an act directing the State Auditor, Ralph Osborn, to charge this tax of $50,000 against each of the branches, and to issue a warrant for the immediate collection of $100,000, the total amount of the first year's tax.

This law is almost without parallel in severity, peremptoriness, and defiant contempt for National authority. If the branches refused to pay the tax, the Ohio law enjoined the person serving the State Auditor's warrant to seize all money or property belonging to the Bank, found on its premises or elsewhere. The agent of the Auditor was directed to open the vaults, search the offices, and take everything of value.[906]

Immediately the branch at Chillicothe obtained from the United States District Court, then in session at that place, an injunction forbidding Osborn from collecting the tax;[907] but the bank's counsel forgot to have a writ issued to stay the proceedings. Therefore, no order of the court was served; instead a copy of the bill praying that the Auditor be restrained, together with a subpoena to answer, was sent to Osborn. These papers were not, of course, an injunction, but merely notice that one had been applied for. Thinking to collect the tax before the injunction could be issued, Osborn forthwith issued his Auditor's warrant to one John L. Harper to collect the tax immediately. Assisted by a man named Thomas Orr, Harper entered the Chillicothe branch of the Bank of the United States, opened the vaults, seized all the money to be found, and deposited it for the night in the local State bank. Next morning Harper and Orr loaded the specie, bank notes, and other securities in a wagon and started for Columbus.[908]

The branch bank tardily obtained an order from the United States Court restraining Osborn, the State Auditor, and Harper, the State agent, from delivering the money to the State Treasurer and from making any report to the Legislature of the collection of the tax. This writ was served on Harper as he and Orr were on the road to the State Capital with the money. Harper simply ignored the writ, drove on to Columbus, and handed over to the State Treasurer the funds which he had seized at Chillicothe.

Harper and Orr were promptly arrested and imprisoned in the jail at Chillicothe.[909] Because of technical defects in serving the warrant for their arrest and in the return of the marshal, the prisoners were set free.[910] An order was secured from the United States Court directing Osborn and Harper to show cause why an attachment should not be issued against them for having disobeyed the court's injunction not to deliver the bank's money to the State Treasurer. After extended argument, the court issued the attachment, which, however, was not made returnable until the January term, 1821.

Meanwhile the Virginia Legislature passed its resolutions denouncing Marshall's opinion in M'Culloch _vs._ Maryland, and throughout the country the warfare upon the Supreme Court began. The Legislature of Ohio acted with a celerity and boldness that made the procedure of the Virginia Legislature seem hesitant and timid. A joint committee was speedily appointed and as promptly made its report. This report and the resolutions recommended by it were adopted without delay and transmitted to the Senate of the United States.[911]

The Ohio declaration is drawn with notable ability. A State cannot be sued--the true meaning of the Constitution forbids, and the Eleventh Amendment specifically prohibits, such procedure.

Yet the action against Osborn, State Auditor, and Samuel Sullivan, State Treasurer, is, "to every substantial purpose, a process against the State." The decision of the National Supreme Court that the States have no power to tax branches of the Bank of the United States does not bind Ohio or render her tax law "a dead letter."[912]

The Ohio Legislature challenges the _bona fides_ of M'Culloch _vs._ Maryland: "If, by the management of a party, and through the inadvertence or connivance of a State, a case be made, presenting to the Supreme Court of the United States for decision important ... questions of State power and State authority, upon no just principle ought the States to be concluded by any decision had upon such a case.... Such is the true character of the case passed upon the world by the title of McCulloch _vs._ Maryland," which, "when looked into, is found to be ... throughout, an agreed case, made expressly for the purpose of obtaining the opinion of the Supreme Court of the United States.... This agreed case was manufactured in the summer of the year 1818" and rushed through two Maryland courts, "so as to be got upon the docket of the Supreme Court of the United States for adjudication at their February term, 1819.... It is truly an alarming circumstance if it be in the power of an aspiring corporation and an unknown and obscure individual thus to elicit opinions compromitting the vital interests of the States that compose the American Union."

Luckily for Ohio and all the States, this report goes on to say, some of Marshall's opinions have been "totally impotent and unavailing," as, for instance, in the case of Marbury _vs._ Madison. Marbury did not get his commission; "the person appointed in his place continued to act; his acts were admitted to be valid; and President Jefferson retained his standing in the estimation of the American people." It was the same in the case of Fletcher _vs._ Peck. Marshall held that "the Yazoo purchasers ... were entitled to their lands. But the decision availed them nothing, unless as a make-weight in effecting a compromise." Since, in neither of these cases, had the National Government paid the slightest attention to the decision of the Supreme Court, how could Ohio "be condemned because she did not abandon her solemn legislative acts as a dead letter upon the promulgation of an opinion of that tribunal"?[913]

The Ohio Legislature then proceeds to analyze Marshall's opinion in M'Culloch _vs._ Maryland. All the arguments made against the principle of implied powers since Hamilton first announced that principle,[914] and all the reasons advanced against the doctrine that the National Government is supreme, in the sense employed by Marshall, are restated with clearness and power. However, since the object of the tax was to drive the branches of the Bank out of Ohio, the Legislature suggests a compromise. If the National institution will cease business within the State and "give assurance" that the branches be withdrawn, the State will refund the tax money it has seized.[915]

Instantly turning from conciliation to defiance, "because the reputation of the State has been assailed," the Legislature challenges the National Government to make good Marshall's assertion that the power which created the Bank "must have the power to preserve it." Ohio should pass laws "forbidding the keepers of our jails from receiving into their custody any person committed at the suit of the Bank of the United States," and prohibiting Ohio judges, recorders, notaries public, from recognizing that institution in any way.[916] Congress will then have to provide a criminal code, a system of conveyances, and other extensive measures. Ohio and the country will then learn whether the power that created the Bank can preserve it.

The Ohio memorial concludes with a denial that the "political rights" and "sovereign powers" of a State can be settled by the Supreme Court of the Nation "in cases contrived between individuals, and where they [the States] are, no one of them, parties direct." The resolutions further declare that the opinion of the other States should be secured.[917] This alarming manifesto was presented to the National Senate on February 1, 1821, just six weeks before Marshall delivered the opinion of the Supreme Court in Cohens _vs._ Virginia.[918]

Pennsylvania had already taken stronger measures; had anticipated even Virginia. Within seven weeks from the delivery of Marshall's opinion in M'Culloch _vs._ Maryland, the Legislature of Pennsylvania proposed an amendment to the National Constitution prohibiting Congress from authorizing "any bank or other monied institution" outside of the District of Columbia.[919] The action of Ohio was an endorsement of that of Virginia and Pennsylvania. Indiana had already swung into line.[920] So had Illinois and Tennessee.[921] For some reason, Kentucky, soon to become one of the most belligerent and persevering of all the States in her resistance to the "encroachments" of Nationalism as expounded by the Supreme Court, withheld her hand for the moment.

Most unaccountably, South Carolina actually upheld Marshall's opinion,[922] which that State, within a decade, was to repudiate, denounce, and defy in terms of armed resistance.[923] New York and Massachusetts,[924] consulting their immediate interests, were very stern against the Localism of Ohio, Virginia, and Pennsylvania.[925] Georgia expressed her sympathy with the Localist movement, but, for the time being, was complaisant[926]--a fact the more astonishing that she had already proved, and was soon to prove again, that Nationalism is a fantasy unless it is backed by force.[927]

Notwithstanding the eccentric attitude of various members of the Union, it was only too plain that a powerful group of States were acting in concert and that others ardently sympathized with them.

At this point, in different fashion, Virginia spoke again, this time by the voice of that great protagonist of Localism, John Taylor of Caroline, the originator of the Kentucky Resolutions,[928] and the most brilliant mind in the Republican organization of the Old Dominion. Immediately after Marshall's opinion in M'Culloch _vs._ Maryland, and while the Ohio conflict was in progress, he wrote a book in denunciation and refutation of Marshall's Nationalist principles. The editorial by Thomas Ritchie, commending Taylor's book, declares that "the crisis has come"; the Missouri question, the Tariff question, the Bank question, have brought the country to the point where a decision must be made as to whether the National Government shall be permitted to go on with its usurpations. "If there is any book capable of arousing the people, it is the one before us."

Taylor gave to his volume the title "Construction Construed, and Constitutions Vindicated." The phrases "exclusive interests" and "exclusive privileges" abound throughout the volume. Sixteen chapters compose this classic of State Rights philosophy. Five of them are devoted to Marshall's opinion in M'Culloch _vs._ Maryland; the others to theories of government, the state of the country, the protective tariff, and the Missouri question. The principles of the Revolution, avows Taylor, "are the keys of construction" and "the locks of liberty.[929]... No form of government can foster a fanaticism for wealth, without being corrupted." Yet Marshall's ideas establish "the despotick principle of a gratuitous distribution of wealth and poverty by law."[930]

If the theory that Congress can create corporations should prevail, "legislatures will become colleges for teaching the science of getting money by monopolies or favours."[931] To pretend faith in Christianity, and yet foster monopoly, is "like placing Christ on the car of Juggernaut."[932] The framers of the National Constitution tried to prevent the evils of monopoly and avarice by "restricting the powers given to Congress" and safeguarding those of the States; "in fact, by securing the freedom of property."[933]

Marshall is enamored of the word "sovereignty," an "equivocal and illimitable word," not found in "the declaration of independence, nor the federal constitution, nor the constitution of any single state"; all of them repudiated it "as a traitor of civil rights."[934] Well that they had so rejected this term of despotism! No wonder Jugurtha exclaimed, "Rome was for sale," when "the government exercised an absolute power over the national property." Of course it would "find purchasers."[935] To this condition Marshall's theories will bring America.

Whence this effort to endow the National Government with powers comparable to those of a monarchy? Plainly it is a reaction--"many wise and good men, ... alarmed by the illusions of Rousseau and Godwin, and the atrocities of the French revolution, honestly believe that these [democratic] principles have teeth and claws, which it is expedient to draw and pare, however constitutional they may be; without considering that such an operation will subject the generous lion to the wily fox; ... subject liberty and property to tyranny and fraud."[936]

In chapter after chapter of clever arguments, illumined by the sparkle of such false gems as these quotations, Taylor prepares the public mind for his direct attack on John Marshall. He is at a sad disadvantage; he, "an unknown writer," can offer only "an artless course of reasoning" against the "acute argument" of Marshall's opinion, concurred in by the members of the Supreme Court whose "talents," "integrity," "uprightness," and "erudition" are universally admitted.[937] The essence of Marshall's doctrine is that, although the powers of the National Government are limited, the means by which they may be executed are unlimited. But, "as ends may be made to beget means, so means may be made to beget ends, until the co-habitation shall rear a progeny of unconstitutional bastards, which were not begotten by the people."[938]

Marshall had said that "'the creation of a corporation appertains to sovereignty.'" This is the language of tyranny. The corporate idea crept into British law "wherein it hides the heart of a prostitute under the habiliments of a virgin."[939] But since, in America, only the people are "sovereign," and, to use Marshall's own words, the power to create corporations "appertains to sovereignty," it follows that neither State nor National Governments can create corporations.[940]

The Chief Justice is a master of the "science of verbality" by which the Constitution may be rendered "as unintelligible, as a single word would be made by a syllabick dislocation, or a jumble of its letters; and turn it into a reservoir of every meaning for which its expounder may have occasion."

Where does Marshall's "artifice of verbalizing" lead?[941] To an "artificially reared, a monied interest ... which is gradually obtaining an influence over the federal government," and "craftily works upon the passions of the states it has been able to delude" [on the slavery question], "to coerce the defrauded and discontented states into submission." For this reason talk of civil war abounds. "For what are the states talking about disunion, and for what are they going to war among themselves? To create or establish a monied sect, composed of privileged combinations, as an aristocratical oppressor of them all."[942] Marshall's doctrine that Congress may bestow "exclusive privileges" is at the bottom of the Missouri controversy. "Had the motive ... never existed, the discussion itself would never have existed; but if the same cause continues, more fatal controversies may be expected."[943]

Finally Taylor hurls at the Nation the challenge of the South, which the representatives of that section, from the floor of Congress, quickly repeated in threatenings of civil war.[944] "There remains a right, anterior to every political power whatsoever, ... the natural right of self-defence.... It is allowed, on all hands, that danger to the slave-holding states lurks in their existing situation, ... and it must be admitted that the right of self-defence applies to that situation.... I leave to the reader the application of these observations."[945]

Immediately upon its publication, Ritchie sent a copy of Taylor's book to Jefferson, who answered that he knew "before reading it" that it would prove "orthodox." The attack upon the National courts could not be pressed too energetically: "The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric.... An opinion is huddled up in conclave, perhaps by a majority of one, delivered as if unanimous, and with the silent acquiescence of lazy and timid associates, by a crafty chief judge, who sophisticates the law to his mind, by the turn of his own reasoning."[946]

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.