Chapter VII: Threats of War (1)

Cannot the Union exist unless Congress and the Supreme Court
shall make banks and lotteries? (John Taylor "of Caroline.")

If a judge can repeal a law of Congress, by declaring it
unconstitutional, is not this the exercise of political power?
(Senator Richard M. Johnson.)

The States must shield themselves and meet the invader foot to
foot. (Jefferson.)

The United States ... form a single nation. In war we are one
people. In making peace we are one people. In all commercial
regulations we are one and the same people. (Marshall.)

The crisis has arrived contemplated by the framers of the
Constitution. (Senator James Barbour.)

The appeals of Niles, Roane, and Taylor, and the defiant attitude toward Nationalism of Virginia, Ohio, Pennsylvania, and other States, expressed a widespread and militant Localism which now manifested itself in another and still more threatening form. The momentous and dramatic struggle in Congress over the admission of Missouri quickly followed these attacks on Marshall and the Supreme Court.

Should that Territory come into the Union only on condition that slavery be prohibited within the new State, or should the slave system be retained? The clamorous and prophetic debate upon that question stirred the land from Maine to Louisiana. A division of the Union was everywhere discussed, and the right of a State to secede was boldly proclaimed.

In the House and Senate, civil war was threatened. "I fear this subject will be an ignited spark, which, communicated to an immense mass of combustion, will produce an explosion that will shake this Union to its centre.... The crisis has arrived, contemplated by the framers of the Constitution.... This portentous subject, twelve months ago, was a little speck scarcely visible above the horizon; it has already overcast the heavens, obscuring every other object; materials are everywhere accumulating with which to render it darker."[947] In these bombastic, yet serious words Senator James Barbour of Virginia, when speaking on the Missouri question on January 14, 1820, accurately described the situation.

"I behold the father armed against the son, ... a brother's sword crimsoned with a brother's blood, ... our houses wrapt in flames," exclaimed Senator Freeman Walker of Georgia. "If Congress ... impose the restriction contemplated [exclusion of slavery from Missouri], ... consequences fatal to the peace and harmony of this Union will ... result."[948] Senator William Smith of South Carolina asked "if, under the misguided influence of fanaticism and humanity, the impetuous torrent is once put in motion, what hand short of Omnipotence can stay it?"[949] In picturing the coming horrors Senator Richard Mentor Johnson of Kentucky declared that "the heart sickens, the tongue falters."[950]

In the House was heard language even more sanguinary. "Let gentlemen beware!" exclaimed Robert Raymond Reid of Georgia; for to put limits on slavery was to implant "envy, hatred, and bitter reproaches, which

'Shall grow to clubs and naked swords,
To murder and to death.'...

Sir, the firebrand, which is even now cast into your society, will require blood ... for its quenching."[951]

Only a few Northern members answered with spirit. Senator Walter Lowrie of Pennsylvania preferred "a dissolution of this Union" rather than "the extension of slavery."[952] Daniel Pope Cook of Illinois avowed that "the sound of disunion ... has been uttered so often in this debate, ... that it is high time ... to adopt measures to prevent it.... Such declarations ... will have no ... effect upon me.... Is it ... the intention of gentlemen to arouse ... the South to rebellion?"[953] For the most part, however, Northern Representatives were mild and even hopeful.[954]

Such was the situation concerning which John Marshall addressed the American people in his epochal opinion in the case of Cohens _vs._ Virginia. The noble passages of that remarkable state paper were inspired by, and can be understood only in the light of, the crisis that produced them. Not in the mere facts of that insignificant case, not in the precise legal points involved, is to be found the inspiration of Marshall's transcendent effort on this occasion. Indeed, it is possible, as the Ohio Legislature and the Virginia Republican organization soon thereafter charged, that Cohens _vs._ Virginia was "feigned" for the purpose of enabling Marshall to assert once more the supremacy of the Nation.

If the case came before Marshall normally, without design and in the regular course of business, it was an event nothing short of providential. If, on the contrary, it was "arranged" so that Marshall could deliver his immortal Nationalist address, never was such contrivance so thoroughly justified. While the legal profession has always considered this case to be identical, judicially, with that of Martin _vs._ Hunter's Lessee, it is, historically, a part of M'Culloch _vs._ Maryland and of Osborn _vs._ The Bank. The opinion of John Marshall in the Cohens case is one of the strongest and most enduring strands of that mighty cable woven by him to hold the American people together as a united and imperishable nation.

Fortunate, indeed, for the Republic that Marshall's fateful pronouncement came forth at such a critical hour, even if technicalities were waived in bringing before him a case in which he could deliver that opinion. For, in conjunction with his exposition in M'Culloch _vs._ Maryland, it was the most powerful answer that could be given, and from the source of greatest authority, to that defiance of the National Government and to the threats of disunion then growing ever bolder and more vociferous. Marshall's utterances did not still those hostile voices, it is true, but they gave strength and courage to Nationalists and furnished to the champions of the Union arguments of peculiar force as coming from the supreme tribunal of the Nation.

Could John Marshall have seen into the future he would have beheld Abraham Lincoln expounding from the stump to the farmers of Illinois, in 1858, the doctrines laid down by himself in 1819 and 1821.

Briefly stated, the facts in the case of Cohens _vs._ Virginia were as follows: The City of Washington was incorporated under an act of Congress[955] which, among other things, empowered the corporation to "authorize the drawing of lotteries for effecting any important improvements in the city which the ordinary funds or revenue thereof will not accomplish," to an amount not to exceed ten thousand dollars, the object first to be approved by the President.[956] Accordingly a city ordinance was passed, creating "The National Lottery" and authorizing it to sell tickets and conduct drawings.

By an act of the Virginia Legislature[957] the purchase or sale within the State of lottery tickets, except those of lotteries authorized by the laws of Virginia, was forbidden under penalty of a fine of one hundred dollars for each offense.

On June 1, 1820, "P. J. & M. J. Cohen, ... being evil-disposed persons," violated the Virginia statute by selling to one William H. Jennings in the Borough of Norfolk two half and four quarter lottery tickets "of the National Lottery, to be drawn in the city of Washington, that being a lottery not authorized by the laws of this commonwealth," as the information of James Nimmo, the prosecuting attorney, declared.[958]

At the quarterly session of the Court of Norfolk, held September 2, 1820, the case came on for hearing before the Mayor, Recorder, and Aldermen of said borough and was decided upon an agreed case "in lieu of a special verdict," which set forth the sale of the lottery tickets, the Virginia statute, the act of Congress incorporating the City of Washington, and the fact that the National Lottery had been established under that act.[959] The Norfolk Court found the defendants guilty and fined them in the sum of one hundred dollars. This paltry amount could not have paid one twentieth part of the fees which the eminent counsel who appeared for the Cohens would, ordinarily, have charged.[960] The case was carried to the Supreme Court on a writ of error.

On behalf of Virginia, Senator James Barbour of that State[961] moved that the writ of error be dismissed, and upon this motion the main arguments were made and Marshall's principal opinion delivered. In concluding his argument, Senator Barbour came near threatening secession, as he had done in the Senate: "Nothing can so much endanger it [the National Government] as exciting the hostility of the state governments. With them it is to determine how long this government shall endure."[962]

In opening for the Cohens, David B. Ogden of New York denied that "there is any such thing as a sovereign state, independent of the Union." The authority of the Supreme Court "extends ... to all cases arising under the constitution, laws, and treaties of the United States."[963] Cohens _vs._ Virginia was such a case.

Upon the supremacy of the Supreme Court over State tribunals depended the very life of the Nation, declared William Pinkney, who appeared as the principal counsel for the Cohens. Give up the appellate jurisdiction of National courts "from the decisions of the state tribunals" and "every other branch of federal authority might as well be surrendered. To part with this, leaves the Union a mere league or confederacy."[964] Long, brilliantly, convincingly, did Pinkney speak. The extreme State Rights arguments were, he asserted, "too wild and extravagant"[965] to deserve consideration.

Promptly Marshall delivered the opinion of the court on Barbour's motion to dismiss the writ of error. The points made against the jurisdiction of the Supreme Court were, he said: "1st. That a state is a defendant. 2d. That no writ of error lies from this court to a state court. 3d. ... that this court ... has no right to review the judgment of the state court, because neither the constitution nor any law of the United States has been violated by that judgment."[966]

The first two points "vitally ... affect the Union," declared the Chief Justice, who proceeds to answer the reasoning of the State judges when, in Hunter _vs._ Fairfax's Devisee, they hurled at the Supreme Court Virginia's defiance of National authority.[967] Marshall thus states the Virginia contentions: That the Constitution has "provided no tribunal for the final construction of itself, or of the laws or treaties of the nation; but that this power may be exercised ... by the courts of every state of the Union. That the constitution, laws, and treaties, may receive as many constructions as there are states; and that this is not a mischief, or, if a mischief, is irremediable."[968]

Why was the Constitution established? Because the "American States, as well as the American people, have believed a close and firm Union to be essential to their liberty and to their happiness. They have been taught by experience, that this Union cannot exist without a government for the whole; and they have been taught by the same experience that this government would be a mere shadow, that must disappoint all their hopes, unless invested with large portions of that sovereignty which belongs to independent states."[969]

The very nature of the National Government leaves no doubt of its supremacy "in all cases where it is empowered to act"; that supremacy was also expressly declared in the Constitution itself, which plainly states that it, and laws and treaties made under it, "'shall be the supreme law of the land; and the judges in every state shall be bound thereby; anything in the constitution or laws of any state to the contrary notwithstanding.'"

This supremacy of the National Government is a Constitutional "principle." And why were "ample powers" given to that Government? The Constitution answers: "In order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defense, promote the general welfare."[970]

The "limitations on the sovereignty of the states" were made for the same reason that the "supreme government" of the Nation was endowed with its broad powers. In addition to express limitations on State "sovereignty" were many instances "where, perhaps, _no other power is conferred on Congress than a conservative power to maintain the principles_ established in the constitution. The maintenance of these principles in their purity, is certainly among the great duties of the government."[971]

Marshall had been Chief Justice of the United States for twenty years, and these were the boldest and most extreme words that he had spoken during that period. Like all men of the first rank, Marshall met in a great way, and without attempt at compromise, a great issue that could not be compromised--an issue which, everywhere, at that moment, was challenging the existence of the Nation. There must be no dodging, no hedging, no equivocation. Instead, there must be the broadest, frankest, bravest declaration of National powers that words could express. For this reason Marshall said that these powers might be exercised even as a result of "a conservative power" in Congress "to maintain the principles established in the constitution."

The Judicial Department is an agency essential to the performance of the "great duty" to preserve those "principles." "It is authorized to decide all cases of every description, arising under the constitution or laws of the United States." Those cases in which a State is a party are not excepted. There are cases where the National courts are given jurisdiction solely because a State is a party, and regardless of the subject of the controversy; but in all cases involving the Constitution, laws, or treaties of the Nation, the National tribunals have jurisdiction, regardless of parties.[972]

"Principles" drawn from the very "_nature of government_" require that "the judicial power ... must be co-extensive with the legislative, and must be capable of deciding every judicial question which grows out of the constitution and laws"--not that "it is fit that it should be so; but ... that this fitness" is an aid to the right interpretation of the Constitution.[973]

What will be the result if Virginia's attitude is confirmed? Nothing less than the prostration of the National Government "at the feet of every state in the Union.... Each member will possess a veto on the will of the whole." Consider the country's experience. Assumption[974] had been deemed unconstitutional by some States; opposition to excise taxes had produced the Whiskey Rebellion;[975] other National statutes "have been questioned partially, while they were supported by the great majority of the American people."[976] There can be no assurance that such divergent and antagonistic actions may not again be taken. State laws in conflict with National laws probably will be enforced by State judges, since they are subject to the same prejudices as are the State Legislatures--indeed, "in many states the judges are dependent for office and for salary on the will of the legislature."[977]

The Constitution attaches first importance to the "independence" of the Judiciary; can it have been intended to leave to State "tribunals, where this independence may not exist," cases in which "a state shall prosecute an individual who claims the protection of an act of Congress?" Marshall gives examples of possible collisions between National and State authority, in ordinary times, as well as in exceptional periods.[978] Even to-day it is obvious that the Chief Justice was denouncing the threatened resistance by State officials to the tariff laws, a fact of commanding importance at the time when Marshall's opinion in Cohens _vs._ Virginia was delivered.

At this point he rises to the heights of august eloquence: "A constitution is framed for ages to come, and is designed to approach immortality as nearly as human institutions can approach it. Its course cannot always be tranquil. It is exposed to storms and tempests, and its framers must be unwise statesmen indeed, if they have not provided it ... with the means of self-preservation from the perils it may be destined to encounter. No government ought to be so defective in its organization as not to contain within itself the means of securing the execution of its own laws against other dangers than those which occur every day."

Marshall is here replying to the Southern threats of secession, just as he rebuked the same spirit when displayed by his New England friends ten years earlier.[979] Then turning to the conflict of courts, he remarks, as though the judicial collision is all that he has in mind: "A government should repose on its own courts, rather than on others."[980]

He recalls the state of the country under the Confederation when requisitions on the States were "habitually disregarded," although they were "as constitutionally obligatory as the laws enacted by the present Congress." In view of this fact is it improbable that the framers of the Constitution meant to give the Nation's courts the power of preserving that Constitution, and laws made in pursuance of it, "from all violation from every quarter, so far as judicial decisions can preserve them"?[981]

Virginia contends that if States wish to destroy the National Government they can do so much more simply and easily than by judicial decision--"they have only not to elect senators, and it expires without a struggle"; and that therefore the destructive effect on the Nation of decisions of State courts cannot be taken into account when construing the Constitution.

To this Marshall makes answer: "Whenever hostility to the existing system shall become universal, it will be also irresistible. The people made the constitution, and the people can unmake it. It is the creature of their own will, and lives only by their will. But this supreme and irresistible power to make or to unmake, resides only in the whole body of the people; not in any sub-division of them. The attempt of any of the parts to exercise it is usurpation, and ought to be repelled by those to whom the people have delegated their power of repelling it. The acknowledged inability of the government, then, to sustain itself against the public will, and, by force or otherwise, to control the whole nation, is no sound argument in support of its constitutional inability to preserve itself against a section of the nation acting in opposition to the general will."[982]

This is a direct reply to the Southern arguments in the Missouri debate which secessionists were now using wherever those who opposed National laws and authority raised their voices. John Marshall is blazing the way for Abraham Lincoln. He speaks of a "section" instead of a State. The Nation, he says, may constitutionally preserve itself "against a section." And this right of the Nation rests on "principles" inherent in the Constitution. But in Cohens _vs._ Virginia no "section" was arrayed against the Nation--on the record there was nothing but a conflict of jurisdiction of courts, and this only by a strained construction of a municipal lottery ordinance into a National law.

The Chief Justice is exerting to the utmost his tremendous powers, not to protect two furtive peddlers of lottery tickets, but to check a powerful movement that, if not arrested, must destroy the Republic. Should that movement go forward thereafter, it must do so over every Constitutional obstacle which the Supreme Court of the Nation could throw in its way. In Cohens _vs._ Virginia, John Marshall stamped upon the brow of Localism the brand of illegality. If this is not the true interpretation of his opinion in that case, all of the exalted language he used is mere verbiage.

Marshall dwells on "the subordination of the parts to the whole." The one great motive for establishing the National Judiciary "was the preservation of the constitution and laws of the United States, so far as they can be preserved by judicial authority."[983]

Returning to the technical aspects of the controversy, Marshall points out that the Supreme Court plainly has appellate jurisdiction of the Cohens case: "If a state be a party, the jurisdiction of this court is original; if the case arise under a [National] constitution or a [National] law, the jurisdiction is appellate. But a case to which a state is a party may arise under the constitution or a law of the United States."[984] That would mean a double jurisdiction. Marshall, therefore, shows, at provoking length,[985] that the appellate jurisdiction of the Supreme Court "in all cases arising under the constitution, laws, or treaties of the United States, was not arrested by the circumstance that a state was a party";[986] and in this way he explains that part of his opinion in Marbury _vs._ Madison, in which he reasoned that Section 13 of the Ellsworth Judiciary Act was unconstitutional.[987]

Marshall examines the Eleventh Amendment and becomes, for a moment, the historian, a rôle in which he delighted. "The states were greatly indebted" at the close of the Revolution; the Constitution was opposed because it was feared that their obligations would be collected in the National courts. This very thing happened. "The alarm was general; and, to quiet the apprehensions that were so extensively entertained, this amendment was ... adopted." But "its motive was not to maintain the sovereignty of a state from the degradation supposed to attend a compulsory appearance before the tribunal of the nation." It was to prevent creditors from suing a State--"no interest could be felt in so changing the relations between the whole and its parts, as to strip the government of the means of protecting, by the instrumentality of its courts, the constitution and laws from active violation."[988]

With savage relish the Chief Justice attacks and demolishes the State Rights theory that the Supreme Court cannot review the judgment of a State court "in any case." That theory, he says, "considers the federal judiciary as completely foreign to that of a state; and as being no more connected with it, in any respect whatever, than the court of a foreign state."[989] But "the United States form, for many, and for most important purposes, a single nation.... In war, we are one people. In making peace, we are one people. In all commercial regulations, we are one and the same people. In many other respects, the American people are one; and the government which is alone capable of controlling and managing their interests in all these respects, is the government of the Union.

"It is their government, and in that character they have no other. America has chosen to be, in many respects, and to many purposes, a nation; and for all these purposes, her government is complete; to all these objects, it is competent. The people have declared, that in the exercise of all powers given for these objects it is supreme. It can, then, in effecting these objects, legitimately control all individuals or governments within the American territory. The Constitution and laws of a state, so far as they are repugnant to the Constitution and laws of the United States, are absolutely void.

"These states are constituent parts of the United States. They are members of one great empire."[990] The National Court alone can decide all questions arising under the Constitution and laws of the Nation. "The uniform decisions of this court on the point now under consideration," he continues, "have been assented to, with a single exception,[991] by the courts of every state in the Union whose judgments have been revised."[992]

As to the lottery ordinance of the City of Washington, Congress has exclusive power to legislate for the District of Columbia and, in exercising that power, acts "as the legislature of the Union." The Constitution declares that it, and all laws made under it, constitute "the supreme law of the land."[993] Laws for the government of Washington are, therefore, parts of this "supreme law" and "bind the nation.... Congress legislates, in the same forms, and in the same character, in virtue of powers of equal obligation, conferred in the same instrument, when exercising its exclusive powers of legislation, as well as when exercising those which are limited."[994]

The Chief Justice gives examples of the exclusive powers of Congress, all of which are binding throughout the Republic. "Congress is not a local legislature, but exercises this particular power [to legislate for the District of Columbia], like all its other powers, in its high character, as the legislature of the Union."[995] The punishment of the Cohens for selling tickets of the National Lottery, created by the City of Washington under authority of an act of Congress, involves the construction of the Constitution and of a National law. The Supreme Court, therefore, has jurisdiction of the case, and the motion to dismiss the writ of error is denied.

Marshall having thus established the jurisdiction of the Supreme Court to hear and decide the case, it was argued "on the merits." Again David B. Ogden appeared for the Cohens and was joined by William Wirt as Attorney-General. For Virginia Webster took the place of Senator Barbour. The argument was upon the true construction of the act of Congress authorizing the City of Washington to establish a lottery; and upon this Marshall delivered a second opinion, to the effect that the lottery ordinance was "only co-extensive with the city" and a purely local affair; that the court at Norfolk had a right to fine the Cohens for violating a law of Virginia; and that its judgment must be affirmed.[996]

So ended, as far as the formal record goes, the famous case of Cohens _vs._ Virginia. On its merits it amounted to nothing; the practical result of the appeal was nothing; but it afforded John Marshall the opportunity to tell the Nation its duty in a crowning National emergency.

Intense was the excitement and violent the rage in the anti-Nationalist camp when Marshall's opinion was published. Ritchie, in his paper, demanded that the Supreme Court should be abolished.[997] The Virginia Republican organization struck instantly, Spencer Roane wielding its sword. The _Enquirer_ published a series of five articles between May 25 and June 8, 1821, inclusive, signed "Algernon Sidney," Roane's latest _nom de plume_.

"The liberties and constitution of our country are ... deeply and vitally endangered by the fatal effects" of Marshall's opinion. "Appointed in one generation it [the Supreme Court] claims to make laws and constitutions for another."[998] The unanimity of the court can be explained only on the ground of "a culpable apathy in the other judges, or a confidence not to be excused, in the principles and talents of their chief." Sidney literally wastes reams of paper in restating the State Rights arguments. He finds a malign satisfaction in calling the Constitution a "compact," a "league," a "treaty" between "sovereign governments."[999]

National judges have "_no_ interest in the government or laws of any state but that of which they are citizens," asserts Sidney. "As to every other state but that, they are, completely, aliens and foreigners."[1000] Virginia is as much a foreign nation as Russia[1001] so far as jurisdiction of the Supreme Court over the judgments of State courts is concerned. Marshall's doctrine "is the blind and absolute despotism which exists in an army, or is exercised by a tyrant over his slaves."[1002]

The apostate Republican Justices who concurred with Marshall are denounced, and with greater force, by reason of a tribute paid to the hated Chief Justice: "How else is it that they also go to all lengths with the ultra-federal leader who is at the head of their court? That leader is honorably distinguished from you messieurs judges. He is true to his former politics. He has even pushed them to an extreme never until now anticipated. He must be equally delighted and _surprised_ to find his _Republican_ brothers going with him"--a remark as true as it was obvious. "How is it ... that they go with him, not only as to the results of his opinions, but as to all the points and positions contained in the most lengthy, artful and alarming opinions?" Because, answers Sidney, they are on the side of power and of "the government that feeds them."[1003]

What Marshall had said in the Virginia Constitutional Convention of 1788 refutes his opinions now. "Great principles then operated on his luminous mind, not hair-splitting quibbles and verbal criticisms."[1004] The "artifices" of the Chief Justice render his opinions the more dangerous.[1005]

If the anger of John Marshall ever was more aroused than it was by Roane's assaults upon him, no evidence of the fact exists. Before the last number of the Algernon Sidney essays appeared, the Chief Justice confides his wrathful feelings to the devoted and sympathetic Story: "The opinion of the Supreme Court in the Lottery case has been assaulted with a degree of virulence transcending what has appeared on any former occasion. Algernon Sidney is written by the gentleman who is so much distinguished for his feelings towards the Supreme Court, & if you have not an opportunity of seeing the Enquirer I will send it to you.

"There are other minor gentry who seek to curry favor & get into office by adding their mite of abuse, but I think for coarseness & malignity of invention Algernon Sidney surpasses all party writers who have ever made pretensions to any decency of character. There is on this subject no such thing as a free press in Virginia, and of consequence the calumnies and misrepresentations of this gentleman will remain uncontradicted & will by many be believed to be true. He will be supposed to be the champion of state rights, instead of being what he really is, the champion of dismemberment."[1006]

When Roane's articles were finished, Marshall wrote Story: "I send you the papers containing the essays of Algernon Sidney. Their coarseness & malignity would designate the author if he was not avowed. The argument, if it may be called one, is, I think, as weak as its language is violent & prolix. Two other gentlemen[1007] have appeared in the papers on this subject, one of them is deeply concerned in pillaging the purchasers of the Fairfax estate in which goodly work he fears no other obstruction than what arises from the appellate power of the Supreme Court, & the other is a hunter after office who hopes by his violent hostility to the Union, which in Virginia assumes the name of regard for state rights, & by his devotion to Algernon Sidney, to obtain one. In support of the sound principles of the constitution & of the Union of the States, not a pen is drawn. In Virginia the tendency of things verges rapidly to the destruction of the government & the re-establishment of a league of sovereign states. I look elsewhere for safety."[1008]

Another of the "minor gentry" of whom Marshall complained was William C. Jarvis, who in 1820 had written a book entitled "The Republicans," in which he joined in the hue and cry against Marshall because of his opinion in M'Culloch _vs._ Maryland. Jarvis sent a copy of his book to Jefferson who, in acknowledging the receipt of it, once more spoke his mind upon the National Judiciary. To Jarvis's statement that the courts are "the ultimate arbiters of all constitutional questions," Jefferson objected.

It was "a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy," wrote the "Sage of Monticello." "The constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots.... If the legislature fails to pass" necessary laws--such as those for taking of the census, or the payment of judges; or even if "they fail to meet in congress, the judges cannot issue their mandamus to them."

So, concludes Jefferson, if the President does not appoint officers to fill vacancies, "the judges cannot force him." In fact, the judges "can issue their mandamus ... to no executive or legislative officer to enforce the fulfilment of their official duties, any more than the president or legislature may issue orders to the judges.... When the legislature or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough."[1009]

This letter by Jefferson had just been made public, and Story, who appears to have read everything from the Greek classics to the current newspaper gossip, at once wrote Marshall. The Chief Justice replied that Jefferson's view "rather grieves than surprizes" him. But he could not "describe the surprize & mortification" he felt when he learned that Madison agreed with Jefferson "with respect to the judicial department. For M^r Jefferson's opinion as respects this department it is not difficult to assign the cause. He is among the most ambitious, & I suspect among the most unforgiving of men. His great power is over the mass of the people, & this power is chiefly acquired by professions of democracy. Every check on the wild impulse of the moment is a check on his own power, & he is unfriendly to the source from which it flows. He looks of course with ill will at an independent judiciary.

"That in a free country with a written constitution any intelligent man should wish a dependent judiciary, or should think that the constitution is not a law for the court as well as for the legislature would astonish me, if I had not learnt from observation that with many men the judgement is completely controuled by the passions."[1010]

To Jefferson, Marshall ascribes Roane's attacks upon the Supreme Court: "There is some reason to believe that the essays written against the Supreme Court were, in a degree at least, stimulated by this gentleman, and that although the coarseness of the language belongs exclusively to the author, its acerbity has been increased by his communications with the great Lama of the mountains. He may therefore feel himself ... required to obtain its republication in some place of distinction."[1011]

John E. Hall was at that time the publisher at Philadelphia of _The Journal of American Jurisprudence_. Jefferson had asked Hall to reprint Roane's articles, and Hall had told Story, who faithfully reported to Marshall. "I am a little surprized at the request which you say has been made to M^r Hall, although there is no reason for my being so. The settled hostility of the gentleman who has made that request to the judicial department will show itself in that & in every other form which he believes will conduce to its object. For this he has several motives, & it is not among the weakest that the department would never lend itself as a tool to work for his political power....

"What does M^r Hall purpose to do?" asks Marshall. "I do not suppose you would willingly interfere so as to prevent his making the publication, although I really think it is in form & substance totally unfit to be placed in his law journal. I really think a proper reply to the request would be to say that no objection existed to the publication of any law argument against the opinion of the Supreme Court, but that the coarseness of its language, its personal & official abuse & its tedious prolixity constituted objections to the insertion of Algernon Sidney which were insuperable. If, however, M^r Hall determines to comply with this request, I think he ought, unless he means to make himself a party militant, to say that he published that piece by particular request, & ought to subjoin the masterly answer of M^r Wheaton. I shall wish to know what course M^r Hall will pursue."[1012]

Roane's attacks on Marshall did not appear in Hall's law magazine!

Quitting such small, unworthy, and prideful considerations, Marshall rises for a moment to the great issue which he met so nobly in his opinions in M'Culloch _vs._ Maryland and in Cohens _vs._ Virginia. "A deep design," he writes Story, "to convert our government into a mere league of states has taken strong hold of a powerful & violent party in Virginia. The attack upon the judiciary is in fact an attack upon the union. The judicial department is well understood to be that through which the government may be attacked most successfully, because it is without patronage, & of course without power. And it is equally well understood that every subtraction from its jurisdiction is a vital wound to the government itself. The attack upon it therefore is a masked battery aimed at the government itself.

"The whole attack, if not originating with M^r Jefferson, is obviously approved & guided by him. It is therefore formidable in other states as well as in this, & it behoves the friends of the union to be more on the alert than they have been. An effort will certainly be made to repeal the 25^{th} sec. of the judicial act."[1013] Marshall's indignation at Roane exhausted his limited vocabulary of resentment. Had he possessed Jefferson's resources of vituperation, the literature of animosity would have been enriched by the language Marshall would have indulged in when the next Republican battery poured its volleys upon him.

No sooner had Roane's artillery ceased to play upon Marshall and the Supreme Court than the roar of Taylor's heavy guns was again heard. In a powerful and brilliant book, called "Tyranny Unmasked," he directed his fire upon the newly proposed protective tariff, "this sport for capitalists and death for the rest of the nation."[1014] The theory of the Chief Justice that there is a "supreme federal power" over the States is proved false by the proceedings of the Constitutional Convention at Philadelphia in 1787. Certain members then proposed to give the National Government a veto over the acts of State Governments.[1015] This proposal was immediately rejected. Yet to-day Marshall proclaims a National power, "infinitely more objectionable," which asserts that the Supreme Court has "a negative or restraining power over the State governments."[1016]

A protective tariff is only another monstrous child of Marshall's accursed Nationalism, that prolific mother of special favors for the few. By what reasoning is a protective tariff made Constitutional? By the casuistry of John Marshall, that "present fashionable mode of construction, which considers the constitution as a lump of fine gold, a small portion of which is so malleable as to cover the whole mass. By this golden rule for manufacturing the constitution, a particular power given to the Federal Government may be made to cover all the rights reserved to the people and the States;[1017] a limited jurisdiction given to the Federal Courts is made to cover all the State Courts;[1018] and a legislative power over ten miles square is malleated over the whole of the United States,[1019] as a single guinea may be beaten out so as to cover a whole house."[1020] Such is the method by which a protective tariff is made Constitutional.

For one hundred and twenty-one scintillant and learned pages Taylor attacks this latest creation of National "tyranny." The whole Nationalist system is "tyranny," which it is his privilege to "unmask," and the duty of all true Americans to destroy.[1021] Marshall's Constitutional doctrine "amounts to the insertion of the following article in the constitution: 'Congress shall have power, with the assent of the Supreme Court, to exercise or usurp, and to prohibit the States from exercising, any or all of the powers reserved to the States, whenever they [Congress] shall deem it convenient, or for the general welfare.'"[1022] Such doctrines invite "civil war."[1023]

By Marshall's philosophy "the people are made the prey of exclusive privileges." In short, under him the Supreme Court has become the agent of special interests.[1024] "Cannot the Union subsist unless Congress and the Supreme Court shall make banks and lotteries?"[1025]

Jefferson eagerly read Roane's essays and Taylor's book and wrote concerning them: "The judiciary branch is the instrument which, working like gravity, without intermission, is to press us at last into one consolidated mass. Against this I know no one who, equally with Judge Roane himself, possesses the power and the courage to make resistance; and to him I look, and have long looked, as our strongest bulwark."

At this point Jefferson declares for armed resistance to the Nation in even stronger terms than those used by Roane or Taylor: "If Congress fails to shield the States from dangers so palpable and so imminent, the States must shield themselves, and meet the invader foot to foot.... This is already half done by Colonel Taylor's book" which "is the most effectual retraction of our government to its original principles which has ever yet been sent by heaven to our aid. Every State in the Union should give a copy to every member they elect, as a standing instruction, and ours should set the example."[1026]

Until his death the aged politician raged continuously, except in one instance,[1027] at Marshall and the Supreme Court because of such opinions and decisions as those in the Bank and Lottery cases. He writes Justice Johnson that he "considered ... maturely" Roane's attacks on the doctrines of Cohens _vs._ Virginia and they appeared to him "to pulverize every word which had been delivered by Judge Marshall, of the extra-judicial part of his opinion." If Roane "can be answered, I surrender human reason as a vain and useless faculty, given to bewilder, and not to guide us.... This practice of Judge Marshall, of travelling out of his case to prescribe what the law would be in a moot case not before the court, is very irregular and censurable."[1028]

Again Jefferson writes that, above all other officials, those who most need restraint from usurping legislative powers are "the judges of what is commonly called our General Government, but what I call our Foreign department.... A few such doctrinal decisions, as barefaced as that of the Cohens," may so arouse certain powerful States as to check the march of Nationalism. The Supreme Court "has proved that the power of declaring what the law is, _ad libitum_, by sapping and mining, slily and without alarm, the foundations of the Constitution, can do what open force would not dare to attempt."[1029]

So it came to pass that John Marshall and the Supreme Court became a center about which swirled the forces of a fast-gathering storm that raged with increasing fury until its thunders were the roar of cannon, its lightning the flashes of battle. Broadly speaking, slavery and free trade, State banking and debtors' relief laws were arraigned on the side of Localism; while slavery restriction, national banking, a protective tariff, and security of contract were marshaled beneath the banner of Nationalism. It was an assemblage of forces as incongruous as human nature itself.

The Republican protagonists of Localism did not content themselves with the writing of enraged letters or the publication of flaming articles and books. They were too angry thus to limit their attacks, and they were politicians of too much experience not to crystallize an aroused public sentiment. On December 12, 1821, Senator Richard M. Johnson of Kentucky, who later was honored by his party with the Vice-Presidency, offered an amendment to the Constitution that the Senate be given appellate jurisdiction in all cases where the Constitution or laws of a State were questioned and the State desired to defend them; and in all cases "where the judicial power of the United States shall be so construed as to extend to any case ... arising under" the National Constitution, laws, or treaties.[1030]

Coöperating with Johnson in the National Senate, Roane in Virginia, when the Legislature of that State met, prepared amendments to the National Constitution which, had they been adopted by the States, would have destroyed the Supreme Court. He declares that he takes this step "with a view to aid" the Congressional antagonists of Nationalism and the Supreme Court, "or rather to lead, on this important subject." The amendments "will be copied by another hand & circulated among the members. I would not wish to injure the great Cause, by being known as the author. My name would damn them, as I believe, nay hope, with the _Tories_." Roane asks his correspondent to "jog your Chesterfield Delegates ... and other good republicans," and complains that "Jefferson & Madison hang back too much, in this great Crisis."[1031]

On Monday, January 14, 1822, Senator Johnson took the floor in support of his proposition to reduce the power of the Supreme Court. "The conflicts between the Federal judiciary and the sovereignty of the States," he said, "are become so frequent and alarming, that the public safety" demands a remedy. "The Federal judiciary has assumed a guardianship over the States, even to the controlling of their peculiar municipal regulations."[1032] The "basis of encroachment" is Marshall's "doctrine of Federal supremacy ... established by a judicial tribunal which knows no change. Its decisions are predicated upon the principle of perfection, and assume the character of immutability. Like the laws of the Medes and Persians, they live forever, and operate through all time." What shall be done? An appeal to the Senate "will be not only harmless, but beneficial." It will quiet "needless alarms ... restore ... confidence ... preserve ... harmony." There is pressing need to tranquillize the public mind concerning the National Judiciary,[1033] a department of the government which is a denial of our whole democratic theory. "Some tribunal should be established, responsible to the people, to correct their [the Judges'] aberrations."

Why should not the National Judiciary be made answerable to the people? No fair-minded man can deny that the judges exercise legislative power. "If a judge can repeal a law of Congress, by declaring it unconstitutional, is not this the exercise of political power? If he can declare the laws of a State unconstitutional and void, and, in one moment, subvert the deliberate policy of that State for twenty-four years, as in Kentucky, affecting its whole landed property, ... is not this the exercise of political power? All this they have done, and no earthly power can investigate or revoke their decisions."[1034] The Constitution gives the National Judiciary no such power--that instrument "is as silent as death upon the subject."[1035]

How absurd is the entire theory of judicial independence! Why should not Congress as properly declare the decisions of the National courts unconstitutional as that the courts should do the same thing to acts of Congress or laws of States? Think of it as a matter of plain common sense--"forty-eight Senators, one hundred and eighty-eight Representatives, and the President of the United States, all sworn to maintain the Constitution, have concurred in the sentiment that the measure is strictly conformable to it. Seven judges, irresponsible to any earthly tribunal for their decisions, revise the measure, declare it unconstitutional, and effectually destroy its operation. Whose opinion shall prevail? that of the legislators and President, or that of the Court?"[1036]

The Supreme Court, too, has gently exercised the principle of judicial supervision over acts of Congress; has adjudged that Congress has a free hand in choosing means to carry out powers expressly granted to that body. But consider the conduct of the Supreme Court toward the States: "An irresponsible judiciary" has ruthlessly struck down State law after State law; has repeatedly destroyed the decisions of State courts. Look at Marshall's opinions in M'Culloch _vs._ Maryland, in the Dartmouth College case, in United States _vs._ Peters, in Sturges _vs._ Crowninshield, in Cohens _vs._ Virginia--smallest, but perhaps worst of all, in Wilson _vs._ New Jersey. The same principle runs through all these pronouncements;--the States are nothing, the Nation everything.[1037]

Webster, in the House, heard of Johnson's speech and promptly wrote Story: "Mr. Johnson of Kentucky ... has dealt, they say, pretty freely with the supreme court. Dartmouth College, Sturges and Crowninshield, _et cetera_, have all been demolished. To-morrow he is to pull to pieces the case of the Kentucky betterment law. Then Governor [Senator] Barber [Barbour] is to annihilate Cohens _v._ Virginia. So things go; but I see less reality in all this smoke than I thought I should, before I came here."[1038]

It would have been wiser for Webster to have listened carefully to Johnson's powerful address than to have sneered at it on hearsay, for it was as able as it was brave; and, erroneous though it was, it stated most of the arguments advanced before or since against the supervisory power of the National Judiciary over the enactments of State Legislatures and the decisions of State courts.

When the Kentucky Senator resumed his speech the following day, he drove home his strongest weapon--an instance of judicial interference with State laws which, indeed, at first glance appeared to have been arbitrary, autocratic, and unjust. The agreement between Virginia and Kentucky by which the latter was separated from the parent Commonwealth provided that "all private rights and interests of lands" in Kentucky "derived from the laws of Virginia, shall remain valid ... and shall be determined by the laws now existing" in Virginia.[1039]

In 1797 the Kentucky Legislature enacted that persons occupying lands in that State who could show a clear and connected title could not, without notice of any adverse title, upon eviction by the possessor of a superior title, be held liable for rents and profits during such occupancy.[1040] Moreover, all permanent improvements made on the land must, in case of eviction, be deducted from the value of the land and judgment therefor rendered in favor of the innocent occupant and against the successful claimant. On January 31, 1812, this "occupying claimant" law, as it was called, was further strengthened by a statute providing that any person "seating and improving" lands in Kentucky, believing them "to be his own" because of a claim founded on public record, should be paid for such seating and improvements by any person who thereafter was adjudged to be the lawful owner of the lands.

Against one such occupant, Richard Biddle, the heirs of a certain John Green brought suit in the United States Court for the District of Kentucky, and the case was certified to the Supreme Court on a division of opinion of the judges. The case was argued and decided at the same term at which Marshall delivered his opinion in Cohens _vs._ Virginia. Story delivered the unanimous opinion of the court: that the Kentucky "occupying claimant" laws violated the separation "compact" between Virginia and Kentucky, because, "by the _general principles of law_, and from the necessity of the case, titles to real estate can be determined only by the laws of the state under which they were acquired."[1041] Unfortunately Story did not specifically base the court's decision on the contract clause of the Constitution, but left this vital point to inference.

Henry Clay, "as _amicus curiæ_," moved for a rehearing because the rights of numerous occupants of Kentucky lands "would be irrevocably determined by this decision," and because Biddle had permitted the case "to be brought to a hearing without appearing by his counsel, and without any argument on that side of the question."[1042] In effect, Clay thus intimated that the case was feigned. The motion was granted and Green _vs._ Biddle was awaiting reargument when Senator Johnson made his attack on the National Judiciary.

Johnson minutely examined the historical reasons for including the contract clause in the National Constitution, "in order to understand perfectly well the mystical influence" of that provision.[1043] It never was intended to affect such legislation as the Kentucky land system. The intent and meaning of the contract clause is, that "you shall not declare to-day that contract void, ... which was made yesterday under the sanction of law."[1044] Does this simple rule of morality justify the National courts in annulling measures of public policy "which the people have solemnly declared to be expedient"?[1045] The decision of the Supreme Court in Green _vs._ Biddle, said Johnson, "prostrates the deliberate" course which Kentucky has pursued for almost a quarter of a century, "and affects its whole landed interest. The effect is to legislate for the people; to regulate the interior policy of that community, and to establish their municipal code as to real estate."[1046]

If such judicial supremacy prevails, the courts can "establish systems of policy by judicial decision." What is this but despotism? "I see no difference, whether you take this power from the people and give it to your judges, who are in office for life, or grant it to a King for life."[1047]

The time is overripe, asserts Johnson, to check judicial usurpation--already the National Judiciary has struck down laws of eight States.[1048] The career of this judicial oligarchy must be ended. "The security of our liberties demands it." Let the jurisdiction of National courts be specifically limited; or let National judges be subject to removal upon address of both Houses of Congress; or let their commissions be vacated "after a limited term of service"; or, finally, "vest a controlling power in the Senate ... or some other body who shall be responsible to the elective franchise."[1049]

The Kentucky Legislature backed its fearless Senator;[1050] but the Virginia Assembly weakened at the end. Most of the Kentucky land titles, which the Supreme Court's decision had protected as against the "occupying claimants," were, of course, held by Virginians or their assignees. Virginia conservatives, too, were beginning to realize the wisdom of Marshall's Nationalist policy as it affected all their interests, except slavery and tariff taxation; and these men were becoming hesitant about further attacks on the Supreme Court. Doubtless, also, Marshall's friends were active among the members of the Legislature. Roane understood the situation when he begged friends to "jog up" the apathetic, and bemoaned the quiescence of Jefferson and Madison. His proposed amendments were lost, though by a very close vote.[1051]