The Life of John Marshall, Volume 4

Volume Iv

THE BUILDING OF THE NATION

1815-1835

BOSTON AND NEW YORK HOUGHTON MIFFLIN COMPANY The Riverside Press Cambridge

COPYRIGHT, 1919, BY ALBERT J. BEVERIDGE

ALL RIGHTS RESERVED

CONTENTS

I. THE PERIOD OF AMERICANIZATION 1

War and Marshall's career--Federalists become British partisans--Their hatred of France--Republicans are exactly the reverse--The deep and opposite prejudices of Marshall and Jefferson--Cause of their conflicting views--The people become Europeanized--They lose sight of American considerations--Critical need of a National American sentiment--Origin of the War of 1812--America suffers from both European belligerents--British depredations--Jefferson retaliates by ineffective peaceful methods--The Embargo laws passed--The Federalists enraged--Pickering makes sensational speech in the Senate--Marshall endorses it--Congress passes the "Force Act"--Jefferson practices an autocratic Nationalism-- New England Federalists propose armed resistance and openly advocate secession--Marshall rebukes those who resist National authority--The case of Gideon Olmstead--Pennsylvania forcibly resists order of the United States Court--Marshall's opinion in U.S. vs. Judge Peters--Its historical significance--The British Minister repeats the tactics of Genêt--Federalists uphold him--Republicans make great gains in New England-- Marshall's despondent letter--Henry Clay's heroic speeches-- War is declared--Federalists violently oppose it: "The child of Prostitution"--Joseph Story indignant and alarmed-- Marshall proposed as Presidential candidate of the peace party--Writes long letter advocating coalition of "all who wish peace"--Denounces Napoleon and the Decree of St. Cloud-- He heads Virginia Commission to select trade route to the West--Makes extended and difficult journey through the mountains--Writes statesmanlike report--Peace party nominates Clinton--Marshall criticizes report of Secretary of State on the causes of the war--New England Federalists determine upon secession--The Administration pamphlet on expatriation--John Lowell brilliantly attacks it--Marshall warmly approves Lowell's essay--His judicial opinions on expatriation--The coming of peace--Results of the war--The new America is born.

II. MARSHALL AND STORY 59

Marshall's greatest Constitutional decisions given during the decade after peace is declared--Majority of Supreme Court becomes Republican--Marshall's influence over the Associate Justices--His life in Richmond--His negligent attire--Personal anecdotes--Interest in farming--Simplicity of habits--Holds Circuit Court at Raleigh--Marshall's devotion to his wife--His religious belief--His children--Life at Oak Hill--Generosity-- Member of Quoit Club--His "lawyer dinners"--Delights in the reading of poetry and fiction--Familiarity and friendliness-- Joseph Story first meets the Chief Justice--Is captivated by his personality--Marshall's dignity in presiding over Supreme Court--Quickness at repartee--Life in Washington--Marshall and Associate Justices live together in same boarding-house--His dislike of publicity--Honorary degrees conferred--Esteem of his contemporaries--His personality--Calmness of manner--Strength of intellect--His irresistible charm--Likeness to Abraham Lincoln--The strong and brilliant bar practicing before the Supreme Court--Legal oratory of the period--Length of arguments--Joseph Story--His character and attainments-- Birth and family--A Republican--Devotion to Marshall--Their friendship mutually helpful--Jefferson fears Marshall's influence on Story--Edward Livingston sues Jefferson for one hundred thousand dollars--Circumstances leading to Batture litigation--Jefferson's desire to name District Judge in Virginia--Jefferson in letter attacks Marshall--He dictates appointment of John Tyler to succeed Cyrus Griffin--Death of Justice Cushing of the Supreme Court--Jefferson tries to name Cushing's successor--He objects to Story--Madison wishes to comply with Jefferson's request--His consequent difficulty in filling place--Appointment of Story--Jefferson prepares brief on Batture case--Public interest in case--Case is heard-- Marshall's opinion reflects on Jefferson--Chancellor Kent's opinion--Jefferson and Livingston publish statements--Marshall ascribes Jefferson's animosity in subsequent years to the Batture litigation.

III. INTERNATIONAL LAW 117

Marshall uniformly upholds acts of Congress even when he thinks them unwise and of doubtful constitutionality--The Embargo, Non-Importation, and Non-Intercourse laws--Marshall's slight knowledge of admiralty law--His dependence on Story--Marshall is supreme only in Constitutional law--High rank of his opinions on international law--Examples: The Schooner Exchange; U.S. vs. Palmer; The Divina Pastora; The Venus; The Nereid-- Scenes in the court-room--Appearance of the Justices--William Pinkney the leader of the American bar--His learning and eloquence--His extravagant dress and arrogant manner--Story's admiration of him--Marshall's tribute--Character of the bar-- Its members statesmen as well as lawyers--The attendance of women at arguments--Mrs. Smith's letter--American Insurance Co. et al. vs. David Canter--Story delivers the opinion in Martin vs. Hunter's Lessee--Reason for Marshall's declining to sit in that case--The Virginia Republican organization-- The great political triumvirate, Roane, Ritchie, and Taylor-- The Fairfax litigation--The Marshall purchase of a part of the Fairfax estate--Separate purchases of James M. Marshall--The Marshall and Virginia "compromise"--Virginia Court of Appeals decides in favor of Hunter--National Supreme Court reverses State court--The latter's bold defiance of the National tribunal--Marshall refuses to sit in the case of the Granville heirs--History of the Granville litigation--The second appeal from the Virginia Court in the Fairfax-Martin-Hunter case--Story's great opinion in Fairfax's Devisee vs. Hunter's Lessee--His first Constitutional pronouncement--Its resemblance to Marshall's opinions--The Chief Justice disapproves one ground of Story's opinion--His letter to his brother--Anger of the Virginia judges at reversal of their judgment--The Virginia Republican organization prepares to attack Marshall.

IV. FINANCIAL AND MORAL CHAOS 168

February and March, 1819, mark an epoch in American history-- Marshall, at that time, delivers three of his greatest opinions--He surveys the state of the country--Beholds terrible conditions--The moral, economic, and social breakdown--Bad banking the immediate cause of the catastrophe--Sound and brilliant career of the first Bank of the United States-- Causes of popular antagonism to it--Jealousy of the State banks--Jefferson's hostility to a central bank--John Adams's description of State banking methods--Opposition to rechartering the National institution--Congress refuses to recharter it--Abnormal increase of State banks--Their great and unjustifiable profits--Congress forced to charter second Bank of the United States--Immoral and uneconomic methods of State banks--Growth of "private banks"--Few restrictions placed on State and private banks and none regarded by them--Popular craze for more "money"--Character and habits of Western settlers--Local banks prey upon them--Marshall's personal experience--State banks control local press, bar, and courts--Ruthless foreclosures of mortgages and incredible sacrifices of property--Counterfeiting and crime--People unjustly blame Bank of the United States for their financial misfortunes--It is, at first, bad, and corruptly managed--Is subsequently well administered--Popular demand for bankruptcy laws--State "insolvency" statutes badly drawn and ruinously executed--Speculators use them to escape the payment of their liabilities while retaining their assets--Foreclosures and sheriff's sales increase--Demand for "stay laws" in Kentucky--Marshall's intimate personal knowledge of conditions in that State--States begin to tax National Bank out of existence--Marshall delivers one of his great trilogy of opinions of 1819 on contract, fraud, and banking--Effect of the decision of the Supreme Court in Sturges vs. Crowninshield.

V. THE DARTMOUTH COLLEGE CASE 220

The Dartmouth College case affected by the state of the country--Marshall prepares his opinion while on his vacation--His views well known--His opinion in New Jersey vs. Wilson--Eleazar Wheelock's frontier Indian school--The voyage and mission of Whitaker and Occom--Funds to aid the school raised in England and Scotland--The Earl of Dartmouth-- Governor Wentworth grants a royal charter--Provisions of this document--Colonel John Wheelock becomes President of the College--The beginnings of strife--Obscure and confused origins of the Dartmouth controversy, including the slander of a woman's reputation, sectarian warfare, personal animosities, and partisan conflict--The College Trustees and President Wheelock become enemies--The hostile factions attack one another by means of pamphlets--The Trustees remove Wheelock from the Presidency--The Republican Legislature passes laws violative of the College Charter and establishing Dartmouth University--Violent political controversy--The College Trustees and officers refuse to yield--The famous suit of Trustees of Dartmouth College vs. Woodward is brought--The contract clause of the Constitution is but lightly considered by Webster, Mason, and Smith, attorneys for the College--Supreme Court of New Hampshire upholds the acts of the Legislature-- Chief Justice Richardson delivers able opinion--The case appealed to the Supreme Court of the United States--Webster makes his first great argument before that tribunal--He rests his case largely on "natural right" and "fundamental principles," and relies but little on the contract clause--He has small hopes of success--The court cannot agree--Activity of College Trustees and officers during the summer and autumn of 1818--Chancellor James Kent advises Justices Johnson and Livingston of the Supreme Court--William Pinkney is retained by the opponents of the College--He plans to ask for a reargument and makes careful preparation--Webster is alarmed--The Supreme Court opens in February, 1819--Marshall ignores Pinkney and reads his opinion to which five Associate Justices assent--The joy of Webster and disgust of Pinkney--Hopkinson's comment-- The effect of Marshall's opinion--The foundations of good faith--Comments upon Marshall's opinion--The persistent vitality of his doctrine as announced in the Dartmouth College case--Departures from it--Recent discussions of Marshall's theory.

VI. VITALIZING THE CONSTITUTION 282

The third of Marshall's opinions delivered in 1819--The facts in the case of M'Culloch vs. Maryland--Pinkney makes the last but one of his great arguments--The final effort of Luther Martin--Marshall delivers his historic opinion--He announces a radical Nationalism--"The power to tax involves the power to destroy"--Marshall's opinion is violently attacked--Niles assails it in his Register--Declares it "more dangerous than foreign invasion"--Marshall's opinion more widely published than any previous judicial pronouncement--The Virginia Republican organization perceives its opportunity and strikes--Marshall tells Story of the coming assault--Roane attacks in the Richmond Enquirer--"The people must rouse from the lap of Delilah to meet the Philistines"--The letters of "Amphyction" and "Hampden"--The United States is "as much a league as was the former confederation"--Marshall is acutely alarmed by Roane's attacks--He writes a dull and petulant newspaper defense of his brilliant opinion--Regrets his controversial effort and refuses to permit its republication-- The Virginia Legislature passes resolutions denouncing his opinion and proposing a new tribunal to decide controversies between States and the Nation--The slave power joins the attack upon Marshall's doctrines--Ohio aligns herself with Virginia--Ohio's dramatic resistance to the Bank of the United States--Passes extravagantly drastic laws--Adopts resolutions denouncing Marshall's opinions and defying the National Government--Pennsylvania, Tennessee, Indiana, Illinois also demand a new court--John Taylor "of Caroline" writes his notable book, Construction Construed--Jefferson warmly approves it--Declares the National Judiciary to be a "subtle corps of sappers and miners constantly working underground to undermine the foundations of our confederated fabric."

Continue reading The Life of John Marshall, Volume 4 free in the Wunder reader →