ЖИЗНЬ ДЖОНА МАРШАЛЛА
Стандартное библиотечное издание
В ЧЕТЫРЕХ ТОМАХ
ТОМ IV
JOHN MARSHALL
From the portrait by Henry Inman
ЖИЗНЬ ДЖОНА МАРШАЛЛА
АЛЬБЕРТ Дж. БЕВЕРИДЖ
Том IV
СОЗИДАНИЕ НАЦИИ 1815–1835
БОСТОН И НЬЮ-ЙОРК HOUGHTON MIFFLIN COMPANY The Riverside Press Cambridge
АВТОРСКОЕ ПРАВО, 1919, АЛЬБЕРТ Дж. БЕВЕРИДЖ ВСЕ ПРАВА ЗАЩИЩЕНЫ
CONTENTS
I.THE PERIOD OF AMERICANIZATION1 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 STORY59 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 LAW117 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 CHAOS168 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 CASE220 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 CONSTITUTION282 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." VII.THREATS OF WAR340 Relation of slavery and Marshall's opinions—The South threatens war: "I behold a brother's sword crimsoned with a brother's blood"—Northern men quail—The source and purpose of Marshall's opinion in Cohens vs. Virginia—The facts in that case—A trivial police court controversy—The case probably "arranged"—William Pinkney and David B. Ogden appear for the Cohens—Senator James Barbour, for Virginia, threatens secession: "With them [State Governments], it is to determine how long their [National] government shall endure"—Marshall's opinion is an address to the American people—The grandeur of certain passages: "A Constitution is framed for ages to come and is designed to approach immortality"—The Constitution is vitalized by a "conservative power" within it—Independence of the Judiciary necessary to preservation of the Republic—Marshall directly replies to the assailants of Nationalism: "The States are members of one great empire"—Marshall originates the phraseology, "a government of, by, and for the people"—Publication of the opinion in Cohens vs. Virginia arouses intense excitement—Roane savagely attacks Marshall under the nom de guerre of "Algernon Sidney"—Marshall is deeply angered—He writes Story denouncing Roane's articles—Jefferson applauds and encourages attacks on Marshall—Marshall attributes to Jefferson the assaults upon him and the Supreme Court—The incident of John E. Hall and his Journal of American Jurisprudence—John Taylor again assails Marshall's opinions in his second book, Tyranny Unmasked—He connects monopoly, the protective tariff, internal improvements, "exclusive privileges," and emancipation with Marshall's Nationalist philosophy—Jefferson praises Taylor's essay and declares for armed resistance to National "usurpation": "The States must meet the invader foot to foot"—Senator Richard M. Johnson of Kentucky, in Congress, attacks Marshall and the Supreme Court—Offers an amendment to the Constitution giving the Senate appellate jurisdiction from that tribunal—Roane asks the Virginia Legislature to demand an amendment to the National Constitution limiting the power of the Supreme Court—Senator Johnson makes bold and powerful speech in the Senate—Declares the Supreme Court to be a denial of the whole democratic theory—Webster sneers at Johnson's address—Kentucky and the Supreme Court—The "Occupying Claimant" laws—Decisions in Green vs. Biddle—The Kentucky Legislature passes condemnatory and defiant resolutions—Justice William Johnson infuriates the South by an opinion from the Circuit Bench—The connection of the foregoing events with the Ohio Bank case—The alignment of economic, political, and social forces—Marshall delivers his opinion in Osborn vs. The Bank of the United States—The historical significance of his declaration in that case. VIII.COMMERCE MADE FREE397 Fulton's experiments on the Seine in Paris—French scientists reject his invention—The Livingston-Fulton partnership—Livingston's former experiments in New York—Secures monopoly grants from the Legislature—These expire—The Clermont makes the first successful steamboat voyage—Water transportation revolutionized—New York grants monopoly of steamboat navigation to Livingston and Fulton—They send Nicholas J. Roosevelt to inspect the Ohio and Mississippi Rivers—His romantic voyage to New Orleans—Louisiana grants exclusive steamboat privileges to Livingston and Fulton—New Jersey retaliates on New York—Connecticut forbids Livingston and Fulton boats to enter her waters—New York citizens defy the steamboat monopoly—Livingston and Fulton sue James Van Ingen—New York courts uphold the steamboat monopoly, and assert the right of the State to control navigation on its waters—The opinion of Chief Justice Kent—The controversy between Aaron Ogden and Thomas Gibbons—Ogden, operating under a license from Livingston and Fulton, sues Gibbons—State courts again sustain the monopoly acts—Gibbons appeals to the Supreme Court—Ogden retains William Pinkney—The case is dismissed, refiled, and continued—Pinkney dies—Argument not heard for three years—Several States pass monopoly laws—Prodigious development of steamboat navigation—The demand for internal improvements stimulated—The slave interests deny power of Congress to build roads and canals—The daring speech of John Randolph—Declares slavery imperiled—Threatens armed resistance—Remarkable alignment of opposing forces when Gibbons vs. Ogden is heard in Supreme Court—Webster makes the greatest of his legal arguments—Marshall's opinion one of his most masterful state papers—His former opinion on the Circuit Bench in the case of the Brig Wilson anticipates that in Gibbons vs. Ogden—The power of Congress over interstate and foreign commerce absolute and exclusive—Marshall attacks the enemies of Nationalism—The immediate effect of Marshall's opinion on steamboat transportation, manufacturing, and mining—Later effect still more powerful—Railway development incalculably encouraged—Results to-day of Marshall's theory of commerce—Litigation in New York following the Supreme Court's decision—The whole-hearted Nationalism of Chief Justice Savage and Chancellor Sanford—Popularity of Marshall's opinion—The attack in Congress on the Supreme Court weakens—Martin Van Buren, while denouncing the "idolatry" for the Supreme Court, pays an exalted tribute to Marshall: "The ablest judge now sitting on any judicial bench in the world"—Senator John Rowan of Kentucky calls the new popular attitude toward the Supreme Court "a judicial superstition"—The case of Brown vs. Maryland—Marshall's opinion completes his Constitutional expositions of the commerce clause—Taney's remarkable acknowledgment. IX.THE SUPREME CONSERVATIVE461 Marshall's dislike for the formal society of Washington—His charming letters to his wife—He carefully avoids partisan politics—Refrains from voting for twenty years—Is irritated by newspaper report of partisanship—Writes denial to the Richmond Whig—Clay writes Marshall—The Chief Justice explains incident to Story—Marshall's interest in politics—His letter to his brother—Permits himself to be elected to the Virginia Constitutional Convention of 1829-30—His disgust at his "weakness"—Writes Story amusing account—Issues before the convention deeply trouble him—He is frankly and unshakably conservative—The antiquated and undemocratic State Constitution of 1776 and the aristocratic system under it—Jefferson's brilliant indictment of both in a private letter—His alarm and anger when his letter is circulated—He tries to withdraw it—Marshall's interest in the well-being of the people—His prophetic letter to Charles F. Mercer—Marshall's only public ideal that of Nationalism—His views on slavery—Letters to Gurley and Pickering—His judicial opinions involving slavery and the slave trade: The Antelope; Boyce vs. Anderson—Extreme conservatism of Marshall's views on legislation and private property—Letter to Greenhow—Opinions in Ogden vs. Saunders and Bank vs. Dandridge—Marshall's work in the Virginia convention—Is against any reform—Writes Judiciary report—The aristocratic County Court system—Marshall defends it—Impressive tributes to Marshall from members of the convention—His animated and powerful speeches on the Judiciary—He answers Giles, Tazewell, and Cabell, and carries the convention by an astonishing majority—Is opposed to manhood suffrage and exclusive white basis of representation—He pleads for compromise on the latter subject and prevails—Reasons for his course in the convention—He probably prevents civil strife and bloodshed in Virginia—The convention adjourns—History of Craig vs. Missouri—Marshall's stern opinion—The splendid eloquence of his closing passage—Three members of the Supreme Court file dissenting opinions—Marshall's melancholy comments on them—Congressional assaults on the Supreme Court renewed—They are astonishingly weak, and are overwhelmingly defeated, but the vote is ominous. X.THE FINAL CONFLICT518 Sadness of Marshall's last years—His health fails—Contemplates resigning—His letters to Story—Goes to Philadelphia for surgical treatment—Remarkable resolutions by the bar of that city—Marshall's response—Is successfully operated upon by Dr. Physick—His cheerfulness—Letters to his wife—Mrs. Marshall dies—Marshall's grief—His tribute to her—He is depressed by the course of President Jackson—The warfare on the Bank of the United States—Congress recharters it—Jackson vetoes the Bank Bill and assails Marshall's opinions in the Bank cases—The people acclaim Jackson's veto—Marshall is disgusted—His letters to Story—He is alarmed at the growth of disunion sentiment—Causes of the recrudescence of Localism—Marshall's theory of Constitutional construction and its relation to slavery—The tariff—The South gives stern warnings—Dangerous agitation in South Carolina—Georgia asserts her "sovereignty" in the matter of the Cherokee Indians—The case of George Tassels—Georgia ignores the Supreme Court and rebukes Marshall—The Cherokee Nation vs. Georgia—The State again ignores the Supreme Court—Marshall delivers his opinion in that case—Worcester vs. Georgia—The State defies the Supreme Court—Marshall's opinion—Georgia flouts the Court and disregards its judgment—Jackson supports Georgia—Story's melancholy letter—The case of James Graves—Georgia once more defies the Supreme Court and threatens secession—South Carolina encouraged by Georgia's attitude—Nullification sentiment grows rapidly—The Hayne-Webster debate—Webster's great speech a condensation of Marshall's Nationalist opinions—Similarity of Webster's language to that of Marshall—The aged Madison repudiates Nullification—Marshall, pleased, writes Story: "Mr. Madison is himself again"—The Tariffs of 1828 and 1832 infuriate South Carolina—Scenes and opinion in that State—Marshall clearly states the situation—His letters to Story—South Carolina proclaims Nullification—Marshall's militant views—Jackson issues his Nullification Proclamation—It is based on Marshall's theory of the Constitution and is a triumph for Marshall—Story's letter—Hayne replies to Jackson—South Carolina flies to arms—Virginia intercedes—Both parties back down: South Carolina suspends Nullification and Congress passes Tariff of 1833—Marshall describes conditions in the South—His letters to Story—He almost despairs of the Republic—Public appreciation of his character—Story dedicates his Commentaries to Marshall—Marshall presides over the Supreme Court for the last time—His fatal illness—He dies at Philadelphia—The funeral at Richmond—Widespread expressions of sorrow—Only one of condemnation—The long-continued mourning in Virginia—Marshall's old club resolves never to fill his place or increase its membership—Story's "inscription for a cenotaph" and the words Marshall wrote for his tomb. WORKS CITED IN THIS VOLUME595 INDEX613