Chapter X: The Final Conflict (2)

Jackson's outgiving served only to enrage the South and especially South Carolina. The Legislature of that State replied to the President's letter thus: "Is this Legislature to be schooled and rated by the President of the United States? Is it to legislate under the sword of the Commander-in-Chief?... This is a confederacy of sovereign States, and each may withdraw from the confederacy when it chooses."[1495]

Marshall saw clearly what the outcome was likely to be, but yielded slowly to the despair so soon to master him. "Things to the South wear a very serious aspect," he tells Story. "If we can trust appearances the leaders are determined to risk all the consequences of dismemberment. I cannot entirely dismiss the hope that they may be deserted by their followers--at least to such an extent as to produce a pause at the Rubicon. They undoubtedly believe that Virginia will support them. I think they are mistaken both with respect to Virginia and North Carolina. I do not think either State will embrace this mad and wicked measure. New Hampshire and Maine seem to belong to the tropics. It is time for New Hampshire to part with Webster and Mason. She has no longer any use for such men."[1496]

As the troubled weeks passed, Marshall's apprehension increased. Story, profoundly concerned, wrote the Chief Justice that he could see no light in the increasing darkness. "If the prospects of our country inspire you with gloom," answered Marshall, "how do you think a man must be affected who partakes of all your opinions and whose geographical position enables him to see a great deal that is concealed from you? I yield slowly and reluctantly to the conviction that our constitution cannot last. I had supposed that north of the Potowmack a firm and solid government competent to the security of rational liberty might be preserved. Even that now seems doubtful. The case of the south seems to me to be desperate. Our opinions are incompatible with a united government even among ourselves. The union has been prolonged thus far by miracles. I fear they cannot continue."[1497]

Congress heeded the violent protest of South Carolina--perhaps it would be more accurate to say that Congress obeyed Andrew Jackson. In 1832 it reduced tariff duties; but the protective policy was retained. The South was infuriated--if the principle were recognized, said Southern men, what could they expect at a later day when this capitalistic, manufacturing North would be still stronger and the unmoneyed and agricultural South still weaker?

South Carolina especially was frantic. The spirit of the State was accurately expressed by R. Barnwell Smith at a Fourth of July celebration: "If the fire and the sword of war are to be brought to our dwellings, ... let them come! Whilst a bush grows which may be dabbled with blood, or a pine tree stands to support a rifle, let them come!"[1498] At meetings all over the State treasonable words were spoken. Governor James Hamilton, Jr., convened the Legislature in special session and the election of a State convention was ordered.

"Let us act, next October, at the ballot box--next November, in the state house--and afterwards, should any further action be necessary, let it be where our ancestors acted, _in the field of battle_";[1499] such were the toasts proposed at banquets, such the sentiments adopted at meetings.

On November 24, 1832, the State Convention, elected[1500] to consider the new Tariff Law, adopted the famous Nullification Ordinance which declared that the Tariff Acts of 1828 and 1832 were "null, void, and no law"; directed the Legislature to take measures to prevent the enforcement of those acts within South Carolina; forbade appeal to the Supreme Court of the United States from South Carolina courts in any case where the Tariff Law was involved; and required all State officers, civil and military, to take oath to "obey, execute and enforce this Ordinance, and such act or acts of the Legislature as may be passed in pursuance thereof."

The Ordinance set forth that "we, the People of South Carolina, ... _Do further Declare_, that we will not submit to the application of force, on the part of the Federal Government, to reduce this State to obedience; but that we will consider" any act of the National Government to enforce the Tariff Laws "as inconsistent with the longer continuance of South Carolina in the Union: and that the People of this State ... will forthwith proceed to organize a separate Government, and to do all other acts and things which sovereign and independent States may of right do."[1501]

Thereupon the Convention issued an address to the people.[1502] It was long and, from the Nullification point of view, very able; it ended in an exalted, passionate appeal: "Fellow citizens, the die is now cast. NO MORE TAXES SHALL BE PAID HERE.... Prepare for the crisis, and ... meet it as becomes men and freemen.... Fellow citizens, DO YOUR DUTY TO YOUR COUNTRY, AND LEAVE THE CONSEQUENCES TO GOD."[1503]

Excepting only at the outbreak of war could a people be more deeply stirred than were all Americans by the desperate action of South Carolina. In the North great Union meetings were held, fervid speeches made, warlike resolutions adopted. The South, at first, seemed dazed. Was war at hand? This was the question every man asked of his neighbor. A pamphlet on the situation, written by some one in a state of great emotion, had been sent to Marshall, and Judge Peters had inquired about it, giving at the same time the name of the author.

"I am not surprised," answered Marshall, "that he [the author] is excited by the doctrine of nullification. It is well calculated to produce excitement in all.... Leaving it to the courts and the custom house will be leaving it to triumphant victory, and to victory which must be attended with more pernicious consequences to our country and with more fatal consequences to its reputation than victory achieved in any other mode which rational men can devise."[1504] If Nullification must prevail, John Marshall preferred that it should win by the sword rather than through the intimidation of courts.

Jackson rightly felt that his reëlection meant that the country in general approved of his attitude toward Nullification as well as that toward the Bank. He promptly answered the defiance of South Carolina. On December 10, 1832, he issued his historic Proclamation. Written by Edward Livingston,[1505] Secretary of State, it is one of the ablest of American state papers. Moderate in expression, simple in style, solid in logic, it might have been composed by Marshall himself. It is, indeed, a restatement of Marshall's Nationalist reasoning and conclusions. Like the argument in Webster's Reply to Hayne, Jackson's Nullification Proclamation was a repetition of those views of the Constitution and of the nature of the American Government for which Marshall had been fighting since Washington was made President.

As in Webster's great speech, sentences and paragraphs are in almost the very words used by Marshall in his Constitutional opinions, so in Jackson's Proclamation the same parallelism exists. Gently, but firmly, and with tremendous force, in the style and spirit of Abraham Lincoln rather than of Andrew Jackson, the Proclamation makes clear that the National laws will be executed and resistance to them will be put down by force of arms.[1506]

The Proclamation was a triumph for Marshall. That the man whom he distrusted and of whom he so disapproved, whose election he had thought to be equivalent to a dissolution of the Union, should turn out to be the stern defender of National solidarity, was, to Marshall, another of those miracles which so often had saved the Republic. His disapproval of Jackson's rampant democracy, and whimsical yet arbitrary executive conduct, turned at once to hearty commendation.

"Since his last proclamation and message," testifies Story, "the Chief Justice and myself have become his warmest supporters, and shall continue so just as long as he maintains the principles contained in them. Who would have dreamed of such an occurrence?"[1507] Marshall realized, nevertheless, that even the bold course pursued by the President could not permanently overcome the secession convictions of the Southern people.

The Union men of South Carolina who, from the beginning of the Nullification movement, had striven earnestly to stay its progress, rallied manfully.[1508] Their efforts were futile--disunion sentiment swept the State. "With ... indignation and contempt," with "defiance and scorn," most South Carolinians greeted the Proclamation[1509] of the man who, only three years before, had been their idol. To South Carolinians Jackson was now "a tyrant," a would-be "Cæsar," a "Cromwell," a "Bonaparte."[1510]

The Legislature formally requested Hayne, now Governor, to issue a counter-proclamation,[1511] and adopted spirited resolutions declaring the right of any State "to secede peaceably from the Union." One count in South Carolina's indictment of the President was thoroughly justified--his approval of Georgia's defiance of Marshall and the Supreme Court. Jackson's action, declared the resolutions, was the more "extraordinary, that he has silently, and ... with entire approbation, witnessed our sister state of Georgia avow, act upon, and carry into effect, even to the taking of life, principles identical with those now denounced by him in South Carolina." The Legislature finally resolved that the State would "repel force by force, and, relying upon the blessing of God, will maintain its liberty at all hazards."[1512]

Swiftly Hayne published his reply to the President's Proclamation. It summed up all the arguments for the right of a State to decide the constitutionality of acts of Congress, that had been made since the Kentucky Resolutions were written by Jefferson--that "great Apostle of American liberty ... who has consecrated these principles, and left them as a legacy to the American people, recorded by his own hand." It was Jefferson, said Hayne, who had first penned the immortal truth that "NULLIFICATION" of unconstitutional acts of Congress was the "RIGHTFUL REMEDY" of the States.[1513]

In his Proclamation Jackson had referred to the National Judiciary as the ultimate arbiter of the constitutionality of National laws. How absurd such a claim by such a man, since that doctrine "has been denied by none more strongly than the President himself" in the Bank controversy and in the case of the Cherokees! "And yet when it serves the purpose of bringing odium on South Carolina, 'his native State,' the President has no hesitation in regarding the attempt of a State to release herself from the control of the Federal Judiciary, in a matter affecting her sovereign rights, as a violation of the Constitution."[1514]

In closing, Governor Hayne declares that "the time has come when it must be seen, whether the people of the several States have indeed lost the spirit of the revolution, and whether they are to become the willing instruments of an unhallowed despotism. In such a sacred cause, South Carolina will feel that she is not striking for her own, but the liberties of the Union and the RIGHTS OF MAN."[1515]

Instantly[1516] the Legislature enacted one law to prevent the collection of tariff duties in South Carolina;[1517] another authorizing the Governor to "order into service the whole military force of this State" to resist any attempt of the National Government to enforce the Tariff Acts.[1518] Even before Hayne's Proclamation was published, extensive laws had been passed for the reorganization of the militia, and the Legislature now continued to enact similar legislation. In four days fourteen such acts were passed.[1519]

The spirit and consistency of South Carolina were as admirable as her theory was erroneous and narrow. If she meant what she had said, the State could have taken no other course. If, moreover, she really intended to resist the National Government, Jackson had given cause for South Carolina's militant action. As soon as the Legislature ordered the calling of the State Convention to consider the tariff, the President directed the Collector at Charleston to use every resource at the command of the Government to collect tariff duties. The commanders of the forts at Charleston were ordered to be in readiness to repel any attack. General Scott was sent to the scene of the disturbance. Military and naval dispositions were made so as to enable the National Government to strike quickly and effectively.[1520]

Throughout South Carolina the rolling of drums and blare of bugles were heard. Everywhere was seen the blue cockade with palmetto button.[1521] Volunteers were called for,[1522] and offered themselves by thousands; in certain districts "almost the entire population" enlisted.[1523] Some regiments adopted a new flag, a banner of red with a single black star in the center.[1524]

Jackson attempted to placate the enraged and determined State. In his fourth annual Message to Congress he barely mentioned South Carolina's defiance, but, for the second time, urgently recommended a reduction of tariff duties. Protection, he said, "must be ultimately limited to those articles of domestic manufacture which are indispensable to our safety in time of war.... Beyond this object we have already seen the operation of the system productive of discontent."[1525]

Other Southern States, although firmly believing in South Carolina's principles and sympathetic with her cause, were alarmed by her bold course. Virginia essayed the rôle of mediator between her warlike sister and the "usurping" National Government. In his Message to the Legislature, Governor John Floyd stoutly defended South Carolina--"the land of Sumpter [_sic_] and of Marion." "Should force be resorted to by the federal government, the horror of the scenes hereafter to be witnessed cannot now be pictured.... What surety has any state for her existence as a sovereign, if a difference of opinion should be punished by the sword as treason?" The situation calls for a reference of the whole question to "the PEOPLE of the states. On you depends in a high degree the future destiny of this republic. It is for you now to say whether the brand of civil war shall be thrown into the midst of these states."[1526]

Mediative resolutions were instantly offered for the appointment of a committee "to take into consideration the relations existing between the state of South Carolina and the government of the United States," and the results to each and to Virginia flowing from the Ordinance of Nullification and Jackson's Proclamation. The committee was to report "such measures as ... it may be expedient for Virginia to adopt--the propriety of recommending a general convention to the states--and such a declaration of our views and opinions as it may be proper for her to express in the present fearful impending crisis, for the protection of the right of the states, the restoration of harmony, and the preservation of the union."[1527]

Only five members voted against the resolution.[1528]

The committee was appointed and, on December 20, 1832, reported a set of resolutions--"worlds of words," as Niles aptly called them--disapproving Jackson's Proclamation; applauding his recommendation to Congress that the tariff be reduced; regretting South Carolina's hasty action; deprecating "the intervention of arms on either side"; entreating "our brethren in S. Carolina to pause in their career"; appealing to Jackson "to withstay the arm of force"; instructing Virginia Senators and requesting Virginia Representatives in Congress to do their best to "procure an immediate reduction of the tariff"; and appointing two commissioners to visit South Carolina with a view to securing an adjustment of the dispute.[1529]

With painful anxiety and grave alarm, Marshall, then in Richmond, watched the tragic yet absurd procession of events. Much as the doings and sayings of the mediators and sympathizers with Nullification irritated him, serious as were his forebodings, the situation appealed to his sense of humor. He wrote Story an account of what was going on in Virginia. No abler or more accurate statement of the conditions and tendencies of the period exists. Marshall's letter is a document of historical importance. It reveals, too, the character of the man.

It was written in acknowledgment of the receipt of "a proof sheet" of a page of Story's "Commentaries on the Constitution of the United States," dedicating that work to Marshall. "I am ... deeply penetrated," says Marshall, "by the evidence it affords of the continuance of that partial esteem and friendship which I have cherished for so many years, and still cherish as one of the choicest treasures of my life. The only return I can make is locked up in my own bosom, or communicated in occasional conversation with my friends." He congratulates Story on having finished his "Herculean task." He is sure that Story has accomplished it with ability and "correctness," and is "certain in advance" that he will read "every sentence with entire approbation. It is a subject on which we concur exactly. Our opinions on it are, I believe, identical. Not so with Virginia or the South generally."

Marshall then relates what has happened in Richmond: "Our legislature is now in session, and the dominant party receives the message of the President to Congress with enthusiastic applause. Quite different was the effect of his proclamation. That paper astonished, confounded, and for a moment silenced them. In a short time, however, the power of speech was recovered, and was employed in bestowing on its author the only epithet which could possibly weigh in the scales against the name of 'Andrew Jackson,' and countervail its popularity.

"Imitating the Quaker who said the dog he wished to destroy was mad, they said Andrew Jackson had become a Federalist, even an ultra Federalist. To have said he was ready to break down and trample on every other department of the government would not have injured him, but to say that he was a Federalist--a convert to the opinions of Washington, was a mortal blow under which he is yet staggering.

"The party seems to be divided. Those who are still true to their President pass by his denunciation of all their former theories; and though they will not approve the sound opinions avowed in his proclamation are ready to denounce nullification and to support him in maintaining the union. This is going a great way for them--much farther than their former declarations would justify the expectation of, and much farther than mere love of union would carry them.

"You have undoubtedly seen the message of our Governor and the resolutions reported by the committee to whom it was referred--a message and resolutions which you will think skillfully framed had the object been a civil war. They undoubtedly hold out to South Carolina the expectation of support from Virginia; and that hope must be the foundation on which they have constructed their plan for a southern confederacy or league.

"A want of confidence in the present support of the people will prevent any direct avowal in favor of this scheme by those whose theories and whose secret wishes may lead to it; but the people may be so entangled by the insane dogmas which have become axioms in the political creed of Virginia, and involved so inextricably in the labyrinth into which those dogmas conduct them, as to do what their sober judgement disapproves.

"On Thursday these resolutions are to be taken up, and the debate will, I doubt not, be ardent and tempestuous enough. I pretend not to anticipate the result. Should it countenance the obvious design of South Carolina to form a southern confederacy, it may conduce to a southern league--never to a southern government. Our theories are incompatible with a government for more than a single State. We can form no union which shall be closer than an alliance between sovereigns.

"In this event there is some reason to apprehend internal convulsion. The northern and western section of our State, should a union be maintained north of the Potowmack, will not readily connect itself with the South. At least such is the present belief of their most intelligent men. Any effort on their part to separate from Southern Virginia and unite with a northern confederacy may probably be punished as treason. 'We have fallen on evil times.'"

Story had sent Marshall, Webster's speech at Faneuil Hall, December 17, 1832, in which he declared that he approved the "general principles" of Jackson's Proclamation, and that "nullification ... is but another name for civil war." "I am," said Webster, "for the Union as it is; ... for the Constitution as it is." He pledged his support to the President in "maintaining this Union."[1530]

Marshall was delighted: "I thank you for M^r Webster's speech. Entertaining the opinion he has expressed respecting the general course of the administration, his patriotism is entitled to the more credit for the determination he expressed at Faneuil Hall to support it in the great effort it promises to make for the preservation of the union. No member of the then opposition avowed a similar determination during the Western Insurrection, which would have been equally fatal had it not been quelled by the well timed vigor of General Washington.

"We are now gathering the bitter fruits of the tree even before that time planted by M^r Jefferson, and so industriously and perseveringly cultivated by Virginia."[1531]

Marshall's predictions of a tempestuous debate over the Virginia resolutions were fulfilled. They were, in fact, "debated to death," records Niles. "It would seem that the genuine spirit of 'ancient _dominionism_' would lead to a making of speeches, even in 'the cave of the Cyclops when forging thunderbolts,' instead of striking the hammers from the hands of the workers of iniquity. Well--the matter was debated, and debated and debated.... The proceedings ... were measured by the _square yard_." At last, however, resolutions were adopted.

These resolutions "respectfully requested and entreated" South Carolina to rescind her Ordinance of Nullification; "respectfully requested and entreated" Congress to "modify" the tariff; reaffirmed Virginia's faith in the principles of 1798-99, but held that these principles did not justify South Carolina's Ordinance or Jackson's Proclamation; and finally, authorized the appointment of one commissioner to South Carolina to communicate Virginia's resolutions, expressing at the same time, however, "our sincere good will to our sister state, and our anxious solicitude that the kind and respectful recommendations we have addressed to her, may lead to an accommodation of all the difficulties between that state and the general government."[1532] Benjamin Watkins Leigh was unanimously elected to be the ambassador of accommodation.[1533]

So it came about that South Carolina, anxious to extricate herself from a perilous situation, yet ready to fight if she could not disentangle herself with honor, took informal steps toward a peaceful adjustment of the dispute; and that Jackson and Congress, equally wishing to avoid armed conflict, were eager to have a tariff enacted that would work a "reconciliation." On January 26, 1833, at a meeting in Charleston, attended by the first men of the State of all parties, resolutions, offered by Hamilton himself, were adopted which, as a practical matter, suspended the Ordinance of Nullification that was to have gone into effect on February 1. Vehement, spirited, defiant speeches were made, all ending, however, in expressions of hope that war might be avoided. The resolutions were as ferocious as the most bloodthirsty Secessionist could desire; but they accepted the proposed "beneficial modification of the tariff," and declared that, "pending the process" of reducing the tariff, "all ... collision between the federal and state authorities should be sedulously avoided on both sides."[1534]

The Tariff Bill of 1833--Clay's compromise--resulted. Jackson signed it; South Carolina was mollified. For the time the storm subsided; but the net result was that Nullification triumphed[1535]--a National law had been modified at the threat of a State which was preparing to back up that threat by force.

Marshall was not deceived. "Have you ever seen anything to equal the exhibition in Charleston and in the far South generally?" he writes Story. "Those people pursue a southern league steadily or they are insane. They have caught at Clay's bill, if their conduct is at all intelligible, not as a real accommodation, a real adjustment, a real relief from actual or supposed oppression, but as an apology for avoiding the crisis and deferring the decisive moment till the other States of the South will unite with them."[1536] Marshall himself was for the compromise Tariff of 1833, but not because it afforded a means of preventing armed collision: "Since I have breathed the air of James River I think favorably of Clay's bill. I hope, if it can be maintained, that our manufactures will still be protected by it."[1537]

The "settlement" of the controversy, of course, satisfied nobody, changed no conviction, allayed no hostility, stabilized no condition. The South, though victorious, was nevertheless morose, indignant--after all, the principle of protection had been retained. "The political world, at least our part of it, is surely moved _topsy turvy_," Marshall writes Story in the autumn of 1833. "What is to become of us and of our constitution? Can the wise men of the East answer that question? Those of the South perceive no difficulty. Allow a full range to state rights and state sovereignty, and, in their opinion, all will go well."[1538]

Placid as was his nature, perfect as was the co-ordination of his powers, truly balanced as were his intellect and emotions, Marshall could not free his mind of the despondency that had now settled upon him. Whatever the subject upon which he wrote to friends, he was sure to refer to the woeful state of the country, and the black future it portended.

Story informed him that an abridged edition of his own two volumes on the Constitution would soon be published. "I rejoice to hear that the abridgement of your Commentaries is coming before the public," wrote Marshall in reply, "and should be still more rejoiced to learn that it was used in all our colleges and universities. The first impressions made on the youthful mind are of vast importance; and, most unfortunately, they are in the South all erroneous. Our young men, generally speaking, grow up in the firm belief that liberty depends on construing our Constitution into a league instead of a government; that it has nothing to fear from breaking these United States into numerous petty republics. Nothing in their view is to be feared but that bugbear, consolidation; and every exercise of legitimate power is construed into a breach of the Constitution. Your book, if read, will tend to remove these prejudices."[1539]

A month later he again writes Story: "I have finished reading your great work, and wish it could be read by every statesman, and every would-be statesman in the United States. It is a comprehensive and an accurate commentary on our Constitution, formed in the spirit of the original text. In the South, we are so far gone in political metaphysics, that I fear no demonstration can restore us to common sense. The word 'State Rights,' as expounded by the resolutions of '98 and the report of '99, construed by our legislature, has a charm against which all reasoning is vain.

"Those resolutions and that report constitute the creed of every politician, who hopes to rise in Virginia; and to question them, or even to adopt the construction given by their author [Jefferson] is deemed political sacrilege. The solemn ... admonitions of your concluding remarks[1540] will not, I fear, avail as they ought to avail against this popular frenzy."[1541]

He once more confides to his beloved Story his innermost thoughts and feelings. Story had sent the Chief Justice a copy of the _New England Magazine_ containing an article by Story entitled "Statesmen: their Rareness and Importance," in which Marshall was held up as the true statesman and the poor quality of the generality of American public men was set forth in scathing terms.

Marshall briefly thanks Story for the compliment paid him, and continues: "It is in vain to lament, that the portrait which the author has drawn of our political and party men, is, in general, true. Lament it as we may, much as it may wound our vanity or our pride, it is still, in the main, true; and will, I fear, so remain.... In the South, political prejudice is too strong to yield to any degree of merit; and the great body of the nation contains, at least appears to me to contain, too much of the same ingredient.

"To men who think as you and I do, the present is gloomy enough; and the future presents no cheering prospect. The struggle now maintained in every State in the Union seems to me to be of doubtful issue; but should it terminate contrary to the wishes of those who support the enormous pretensions of the Executive, should victory crown the exertions of the champions of constitutional law, what serious and lasting advantage is to be expected from this result?

"In the South (things may be less gloomy with you) those who support the Executive do not support the Government. They sustain the personal power of the President, but labor incessantly to impair the legitimate powers of the Government. Those who oppose the violent and rash measures of the Executive (many of them nullifiers, many of them seceders) are generally the bitter enemies of a constitutional government. Many of them are the avowed advocates of a league; and those who do not go the whole length, go great part of the way. What can we hope for in such circumstances? As far as I can judge, the Government is weakened, whatever party may prevail. Such is the impression I receive from the language of those around me."[1542]

During the last years of Marshall's life, the country's esteem for him, slowly forming through more than a generation, manifested itself by expressions of reverence and affection. When he and Story attended the theater, the audience cheered him.[1543] His sentiment still youthful and tender, he wept over Fanny Kemble's affecting portrayal of Mrs. Haller in "The Stranger."[1544] To the very last Marshall performed his judicial duties thoroughly, albeit with a heavy heart. He "looked more vigorous than usual," and "seemed to revive and enjoy anew his green old age," testifies Story.[1545]

It is at this period of his career that we get Marshall's account of the course he pursued toward his malignant personal and political enemy, Thomas Jefferson. Six years after Jefferson's death,[1546] Major Henry Lee, who hated that great reformer even more than Jefferson hated Marshall, wrote the Chief Justice for certain facts, and also for his opinion of the former President. In his reply Marshall said:

"I have never allowed myself to be irritated by M^r Jeffersons unprovoked and unjustifiable aspersions on my conduct and principles, nor have I ever noticed them except on one occasion[1547] when I thought myself called on to do so, and when I thought that declining to enter upon my justification might have the appearance of crouching under the lash, and admitting the justice of its infliction."[1548]

Intensely as he hated Jefferson, attributing to him, as Marshall did, most of the country's woes, the Chief Justice never spoke a personally offensive word concerning his radical cousin.[1549] On the other hand, he never uttered a syllable of praise or appreciation of Jefferson. Even when his great antagonist died, no expression of sorrow or esteem or regret or admiration came from the Chief Justice. Marshall could not be either hypocritical or vindictive; but he could be silent.

Holding to the old-time Federalist opinion that Jefferson's principles were antagonistic to orderly government; convinced that, if they prevailed, they would be destructive of the Nation; believing the man himself to be a demagogue and an unscrupulous if astute and able politician--Marshall, nevertheless, said nothing about Jefferson to anybody except to Story, Lee, and Pickering; and, even to these close friends, he gave only an occasional condemnation of Jefferson's policies.

The general feeling toward Marshall, especially that of the bench and bar, during his last two years is not too strongly expressed in Story's dedication to the Chief Justice of his "Commentaries on the Constitution of the United States." Marshall had taken keen interest in the preparation of Story's masterpiece and warned him against haste. "Precipitation ought carefully to be avoided. This is a subject on which I am not without experience."[1550]

Story begins by a tribute "to one whose youth was engaged in the arduous enterprises of the Revolution; whose manhood assisted in framing and supporting the national Constitution; and whose maturer years have been devoted to the task of unfolding its powers, and illustrating its principles." As the expounder of the Constitution, "the common consent of your countrymen has admitted you to stand without a rival. Posterity will assuredly confirm, by its deliberate award, what the present age has approved, as an act of undisputed justice.

"But," continues Story, "I confess that I dwell with even more pleasure upon the entirety of a life adorned by consistent principles, and filled up in the discharge of virtuous duty; where there is nothing to regret, and nothing to conceal; no friendships broken; no confidence betrayed; no timid surrenders to popular clamor; no eager reaches for popular favor. Who does not listen with conscious pride to the truth, that the disciple, the friend, the biographer of Washington, still lives, the uncompromising advocate of his principles?"[1551]

Excepting only the time of his wife's death, the saddest hours of his life were, perhaps, those when he opened the last two sessions of the Supreme Court over which he presided. When, on January 13, 1834, the venerable Chief Justice, leading his associate justices to their places, gravely returned the accustomed bow of the bar and spectators, he also, perforce, bowed to temporary events and to the iron, if erratic, rule of Andrew Jackson. He bowed, too, to time and death. Justice Washington was dead, Johnson was fatally ill, and Duval, sinking under age and infirmity, was about to resign.

Republicans as Johnson and Duval were, they had, generally, upheld Marshall's Nationalism. Their places must soon be filled, he knew, by men of Jackson's choosing--men who would yield to the transient public pressure then so fiercely brought to bear on the Supreme Court. Only Joseph Story could be relied upon to maintain Marshall's principles. The increasing tendency of Justices Thompson, McLean, and Baldwin was known to be against his unyielding Constitutional philosophy. It was more than probable that, before another year, Jackson would have the opportunity to appoint two new Justices--and two cases were pending that involved some of Marshall's dearest Constitutional principles.

The first of these was a Kentucky case[1552] in which almost precisely the same question, in principle, arose that Marshall had decided in Craig _vs._ Missouri.[1553] The Kentucky Bank, owned by the State, was authorized to issue, and did issue, bills which were made receivable for taxes and other public dues. The Kentucky law furthermore directed that an endorsement and tender of these State bank notes should, with certain immaterial modifications, satisfy any judgment against a debtor.[1554] In short, the Legislature had authorized a State currency--had emitted those bills of credit, expressly forbidden by the National Constitution.

Another case, almost equally important, came from New York.[1555] To prevent the influx of impoverished foreigners, who would be a charge upon the City of New York, the Legislature had enacted that the masters of ships arriving at that port should report to the Mayor all facts concerning passengers. The ship captain must remove those whom the Mayor decided to be undesirable.[1556] It was earnestly contended that this statute violated the commerce clause of the Constitution.

Both cases were elaborately argued; both, it was said, had been settled by former decisions--the Kentucky case by Craig _vs._ Missouri, the New York case by Gibbons _vs._ Ogden and Brown _vs._ Maryland. The court was almost equally divided. Thompson, McLean, and Baldwin thought the Kentucky and New York laws Constitutional; Marshall, Story, Duval, and Johnson believed them invalid. But Johnson was absent because of his serious illness. No decision, therefore, was possible.

Marshall then announced a rule of the court, hitherto unknown by the public: "The practice of this court is not (except in cases of absolute necessity) to deliver any judgment in cases where constitutional questions are involved, unless four judges concur in opinion, thus making the decision that of a majority of the whole court. In the present cases four judges do not concur in opinion as to the constitutional questions which have been argued. The court therefore direct these cases to be re-argued at the next term, under the expectation that a larger number of the judges may then be present."[1557]

The next term! When, on January 12, 1835, John Marshall for the last time presided over the Supreme Court of the United States, the situation, from his point of view, was still worse. Johnson had died and Jackson had appointed James M. Wayne of Georgia in his place. Duval had resigned not long before the court convened, and his successor had not been named. Again the New York and Kentucky cases were continued, but Marshall fully realized that the decision of them must be in opposition to his firm and pronounced views.[1558]

It is doubtful whether history shows more than a few examples of an aged man, ill, disheartened, and knowing that he soon must die, who nevertheless continued his work to the very last with such scrupulous care as did Marshall. He took active part in all cases argued and decided and actually delivered the opinion of the court in eleven of the most important.[1559] None of these are of any historical interest; but in all of them Marshall was as clear and vigorous in reasoning and style as he had been in the immortal Constitutional opinions delivered at the height of his power. The last words Marshall ever uttered as Chief Justice sparkle with vitality and high ideals. In Mitchel _et al. vs._ The United States,[1560] a case involving land titles in Florida, he said, in ruling on a motion to continue the case: "Though the hope of deciding causes to the mutual satisfaction of parties would be chimerical, that of convincing them that the case has been fully and fairly considered ... may be sometimes indulged. Even this is not always attainable. In the excitement produced by ardent controversy, gentlemen view the same object through such different media that minds, not infrequently receive therefrom precisely opposite impressions. The Court, however, must see with its own eyes, and exercise its own judgment, guided by its own reason."[1561]

At last Marshall had grave intimations that his life could not be prolonged. Quite suddenly his health declined, although his mind was as strong and clear as ever. "Chief Justice Marshall still possesses his intellectual powers in very high vigor," writes Story during the last session of the Supreme Court over which his friend and leader presided. "But his physical strength is manifestly on the decline; and it is now obvious, that after a year or two, he will resign, from the pressing infirmities of age.... What a gloom will spread over the nation when he is gone! His place will not, nay, it cannot be supplied."[1562]

As the spring of 1835 ripened into summer, Marshall grew weaker. "I pray God," wrote Story in agonies of apprehension, "that he may long live to bless his country; but I confess that I have many fears whether he can be long with us. His complaints are, I am sure, incurable, but I suppose that they may be alleviated, unless he should meet with some accidental cold or injury to aggravate them. Of these, he is in perpetual danger, from his imprudence as well as from the natural effects of age."[1563]

In May, 1835, Kent went to Richmond in order to see Marshall, whom "he found very emaciated, feeble & dangerously low. He injured his Spine by a Post Coach fall & oversetting.... He ... made me _Promise to see him at Washington next Winter_."[1564]

Kent wrote Jeremiah Smith of New Hampshire that Marshall must soon die. Smith was overwhelmed with grief "because his life, at this time especially, is of incalculable value." Marshall's "views ... of our national affairs" were those of Smith also. "Perfectly just in themselves they now come to us confirmed by the dying attestation of one of the greatest and best of men."[1565]

Marshall's "incurable complaint," which so distressed Story, was a disease of the liver.[1566] Finding his health failing, he again repaired to Philadelphia for treatment by Dr. Physick. When informed that the prospects for his friend's recovery were desperate, Story was inconsolable. "Great, good and excellent man!" he wrote. "I shall never see his like again! His gentleness, his affectionateness, his glorious virtues, his unblemished life, his exalted talents, leave him without a rival or a peer."[1567]

At six o'clock in the evening of Monday, July 6, 1835, John Marshall died, in his eightieth year, in the city where American Independence was proclaimed and the American Constitution was born--the city which, a patriotic soldier, he had striven to protect and where he had received his earliest national recognition. Without pain, his mind as clear and strong as ever, he "met his fate with the fortitude of a Philosopher, and the resignation of a Christian," testifies Dr. Nathaniel Chapman, who was present.[1568] By Marshall's direction, the last thing taken from his body after he expired was the locket which his wife had hung about his neck just before she died.[1569] The morning after his death, the bar of Philadelphia met to pay tribute to Marshall, and at half-past five of the same day a town meeting was held for the same purpose.[1570]

Immediately afterward, his body was sent by boat to Richmond. The bench, bar, and hundreds of citizens of Philadelphia accompanied the funeral party to the vessel. During the voyage a transfer was made to another craft.[1571] A committee, consisting of Major-General Winfield Scott, of the United States Army, Henry Baldwin, Associate Justice of the Supreme Court, Richard Peters, formerly Judge for the District of Pennsylvania, John Sergeant, Edward D. Ingraham, and William Rawle, of the Philadelphia bar, went to Richmond.

In the late afternoon of July 9, 1835, the steamboat Kentucky, bearing Marshall's body, drew up at the Richmond wharf. Throughout the day the bells had been tolling, the stores were closed, and, as the vessel came within sight, a salute of three guns was fired. All Richmond assembled at the landing. An immense procession marched to Marshall's house,[1572] where he had requested that his body be first taken, and then to the "New Burying Ground," on Shockoe Hill. There Bishop Richard Channing Moore of the Episcopal Church read the funeral service, and John Marshall was buried by the side of his wife.

When his ancient enemy and antagonist, the Richmond _Enquirer_, published the news of Marshall's death, it expressed briefly its true estimate of the man. It would be impossible, said the _Enquirer_, to over-praise Marshall's "brilliant talents." It would be "a more grateful incense" to his memory to say "that he was as much beloved as he was respected.... There was about him so little of 'the insolence of office,' and so much of the benignity of the man, that his presence always produced ... the most delightful impressions. There was something irresistibly winning about him." Strangers could hardly be persuaded that "in the plain, unpretending ... man who told his anecdote and enjoyed the jest--they had been introduced to the Chief Justice of the United States, whose splendid powers had filled such a large space in the eye of mankind."[1573]

The Richmond _Whig and Public Advertiser_ said that "no man has lived or died in this country, save its father George Washington alone, who united such a warmth of affection for his person, with so deep and unaffected a respect for his character, and admiration for his great abilities. No man ever bore public honors with so meek a dignity ... It is hard ... to conceive of a more perfect character than his, for who can point to a vice, scarcely to a defect--or who can name a virtue that did not shine conspicuously in his life and conduct?"[1574]

The day after the funeral the citizens of Richmond gathered at and about the Capitol, again to honor the memory of their beloved neighbor and friend. The resolutions, offered by Benjamin Watkins Leigh, declared that the people of Richmond knew "better than any other community can know" Marshall's private and public "virtues," his "wisdom," "simplicity," "self-denial," "unbounded charity," and "warm benevolence towards all men." Since nothing they can say can do justice to "such a man," the people of Richmond "most confidently trust, to History alone, to render due honors to his memory, by a faithful and immortal record of his wisdom, his virtues and his services."[1575]

All over the country similar meetings were held, similar resolutions adopted. Since the death of Washington no such universal public expressions of appreciation and sorrow had been witnessed.[1576] The press of the country bore laudatory editorials and articles. Even Hezekiah Niles, than whom no man had attacked Marshall's Nationalist opinions more savagely, lamented his death, and avowed himself unequal to the task of writing a tribute to Marshall that would be worthy of the subject. "'A great man has fallen in Israel,'" said Niles's _Register_. "Next to WASHINGTON, only, did he possess the reverence and homage of the heart of the American people."[1577]

One of the few hostile criticisms of Marshall's services appeared in the _New York Evening Post_ over the name of "Atlantic."[1578] This paper had, by now, departed from the policy of its Hamiltonian founder. "Atlantic" said that Marshall's "political doctrines ... were of the ultra federal or aristocratic kind.... With Hamilton" he "distrusted the virtue and intelligence of the people, and was in favor of a strong and vigorous General Government, at the expense of the rights of the States and of the people." While he was "sincere" in his beliefs and "a good and exemplary man" who "truly loved his country ... he has been, all his life long, a stumbling block ... in the way of democratic principles.... His situation ... at the head of an important tribunal, constituted in utter defiance of the very first principles of democracy, has always been ... an occasion of lively regret. That he is at length removed from that station is a source of satisfaction."[1579]

The most intimate and impressive tributes came, of course, from Virginia. Scarcely a town in the State that did not hold meetings, hear orations, adopt resolutions. For thirty days the people of Lynchburg wore crape on the arm.[1580] Petersburg honored "the Soldier, the Orator, the Patriot, the Statesman, the Jurist, and above all, the good and virtuous man."[1581] Norfolk testified to his "transcendent ability, perfect integrity and pure patriotism."[1582] For weeks the Virginia demonstrations continued. That at Alexandria was held five weeks after his death. "The flags at the public square and on the shipping were displayed at half mast; the bells were tolled ... during the day, and minute guns fired by the Artillery"; there was a parade of military companies, societies and citizens, and an oration by Edgar Snowden.[1583]

The keenest grief of all, however, was felt by Marshall's intimates of the Quoit Club of Richmond. Benjamin Watkins Leigh proposed, and the club resolved, that, as to the vacancy caused by Marshall's death, "there should be no attempt to fill it ever; but that the number of the club should remain one less than it was before his death."[1584]

Story composed this "inscription for a cenotaph":

"To Marshall reared--the great, the good, the wise;
Born for all ages, honored in all skies;
His was the fame to mortals rarely given,
Begun on earth, but fixed in aim on heaven.
Genius, and learning, and consummate skill,
Moulding each thought, obedient to the will;
Affections pure, as e'er warmed human breast,
And love, in blessing others, doubly blest;
Virtue unspotted, uncorrupted truth,
Gentle in age, and beautiful in youth;--
These were his bright possessions. These had power
To charm through life and cheer his dying hour.
Are these all perished? No! but snatched from time,
To bloom afresh in yonder sphere sublime.
Kind was the doom (the fruit was ripe) to die,
Mortal is clothed with immortality."[1585]

Upon his tomb, however, were carved only the words he himself wrote for that purpose two days before he died, leaving nothing but the final date to be supplied:

JOHN MARSHALL

The son of Thomas and Mary Marshall
Was born on the 24th of
September, 1755; intermarried
with Mary Willis Ambler
the 3d of January, 1783;
departed this life the 6th day
of July, 1835.

FOOTNOTES:

[1390] Marshall to Story, June 26, 1831, _Proceedings, Mass. Hist. Soc. 2d_ Series, XIV, 344-45.

[1391] Same to same, Oct. 12, 1831, _ib._ 346-48.

[1392] Marshall to Story, Oct. 12, 1831, _Proceedings, Mass. Hist. Soc._ 2d Series, XIV, 347. A rumor finally got about that Marshall contemplated resigning. (See Niles, XL, 90.)

[1393] The resolutions of the bar had included the same idea, and Marshall emphasized it by reiterating it in his response.

[1394] Hazard's _Pennsylvania Register_, as quoted in Dillon, III, 430-33. The artist referred to was either Thomas Sully, or Henry Inman, who had studied under Sully. During the following year, Inman painted the portrait and it was so excellent that it brought the artist his first general recognition. The original now hangs in the rooms of the Philadelphia Law Association. A reproduction of it appears as the frontispiece of this volume.

[1395] Randolph: _A Memoir on the Life and Character of Philip Syng Physick, M.D._ 97-99.

[1396] Marshall to Story, Nov. 10, 1831, _Proceedings, Mass. Hist. Soc._ 2d Series, XIV, 348-49.

[1397] Story to Peters, Oct. 29, 1831, Story, II, 70.

[1398] Marshall to his wife, Oct. 6, 1831, MS.

[1399] This is the only indication in any of Marshall's letters that his wife had written him.

[1400] Mrs. Marshall had a modest fortune of her own, bequeathed to her by her uncle. She invested this quite independently of her husband. (Leigh to Biddle, Sept. 7, 1837, McGrane, 289.)

[1401] Marshall to his wife, Nov. 8, 1831, MS.

[1402] Terhune, 98. This locket is now in the possession of Marshall's granddaughter, Miss Emily Harvie of Richmond.

[1403] Story to his wife, March 4, 1832, Story, II, 86-87.

Soon after the death of his wife, Marshall made his will "entirely in [his] ... own handwriting." A more informal document of the kind seldom has been written. It is more like a familiar letter than a legal paper; yet it is meticulously specific. "I owe nothing on my own account," he begins. (He specifies one or two small obligations as trustee for women relatives and as surety for "considerable sums" for his son-in-law, Jacquelin B. Harvie.) The will shows that he owns bank and railroad stock and immense quantities of land. He equally divides his property among his children, making special provision that the portion of his daughter Mary shall be particularly safeguarded.

One item of the will is curious: "I give to each of my grandsons named John one thousand acres, part of my tract of land called Canaan lying in Randolph county. If at the time of my death either of my sons should have no son living named John, then I give the thousand acres to any son he may have named Thomas, in token for my love for my father and veneration for his memory. If there should be no son named John or Thomas, then I give the land to the eldest son and if no sons to the daughters."

He makes five additions to his will, three of which he specifically calls "codicils." One of these is principally "to emancipate my faithful servant Robin and I direct his emancipation if he _chuses_ to conform to the laws on that subject, requiring that he should leave the state or if permission can be obtained for his continuing to reside in it." If Robin elects to go to Liberia, Marshall gives him one hundred dollars. "If he does not go there I give him fifty dollars." In case it should be found "impracticable to liberate" Robin, "I desire that he may choose his master among my sons, or if he prefer my daughter that he may be held in trust for her and her family as is the other property bequeathed in trust for her, and that he may always be treated as a faithful and meritorious servant." (Will and Codicils of John Marshall, Records of Henrico County, Richmond, and Fauquier County, Warrenton, Virginia.)

[1404] Meade, II, footnote to 222. It would seem that Marshall showed this tribute to no one during his lifetime except, perhaps, to his children. At any rate, it was first made public in Bishop Meade's book in 1857.

[1405] Statements to the author by Miss Elizabeth Marshall of "Leeds Manor," and by Judge J. K. N. Norton of Alexandria, Va.

[1406] Statement to the author by Miss Emily Harvie. Most of Marshall's letters to Story during these years were written from Richmond.

[1407] Story to Sumner, Feb. 6, 1833, Story, II, 120.

[1408] See _infra_, 540-51.

[1409] See Catterall, 407, 421-22, 467; and see especially Parton: _Jackson_, III, 257-58.

[1410] Catterall, Appendix IX, 508.

[1411] _Ib._ chaps. V and VII. Biddle was appointed director of the Bank by President Monroe in 1819, and displayed such ability that, in 1823, he was elected president of the institution. Not until he received information that Jackson was hostile to the Bank did Biddle begin the morally wrong and practically unwise policy of loaning money without proper security to editors and members of Congress.

[1412] Parton: _Jackson_, III, 260.

[1413] Richardson, II, 462.

[1414] _Ib._ 528-29

[1415] See Catterall, 235. For account of the fight for the Bank Bill see _ib._ chap. X.

[1416] Richardson, II, 580-82.

[1417] _Ib._ 582-83.

[1418] Richardson, II, 584.