The Life of John Marshall Volume IV Part 32

[747] 4 Wheaton, 635-36.

[748] _Ib._ 636.

[749] 4 Wheaton, 637.

[750] 4 Wheaton, 638-39.

[751] _Ib._ 639-40.

[752] 4 Wheaton, 640-41.

[753] _Ib._ 641.

[754] _Ib._ 642-43.

[755] 4 Wheaton, 643.

[756] 4 Wheaton, 644.

[757] 4 Wheaton. 645.

[758] _Ib._ 646-47.

[759] 4 Wheaton, 647-48.

[760] _Ib._ 650.

[761] _Ib._ 651.

[762] 4 Wheaton, 652-53.

[763] _Ib._ 654.

[764] Webster "in court" to his brother, Feb. 2, 1819, _Priv. Corres._ Webster, I, 300.

[765] Webster to Brown, Feb. 2, 1819, _ib._

[766] Webster to Mason, Feb. 4, 1819, Hillard, 213-14. Webster adds: "Some of the other judges, I am told, have drawn opinions with more reference to authorities." (_Ib._ 214.)

[767] Hopkinson to Brown, Feb. 2, 1819, _Priv. Corres._: Webster, I, 301.

[768] Webster to Mason, April 13, 1819, Hillard, 223.

[769] Marshall to Story, May 27, 1819, _Proceedings, Ma.s.s. Hist. Soc._ 2d Series, XIV, 324-25.

[770] 4 Wheaton, 666-713.

[771] Livingston to Story, Jan. 24, 1819, Story, I, 323. This important letter discredits the rumor that Story at first thought the College Acts valid.

Story sent copies of his opinion to eminent men other than his a.s.sociates on the Supreme Bench, among them William Prescott, father of the historian, a Boston lawyer highly esteemed by the leaders of the American bar. "I have read your opinion with care and great pleasure,"

writes Prescott. "In my judgment it is supported by the principles of our const.i.tutions, and of all free governments, as well as by the authority of adjudged cases. As one of the public, I thank you for establishing a doctrine affecting so many valuable rights and interests, with such clearness and cogency of argument, and weight of authority as must in all probability prevent its ever being again disturbed, I see nothing I should wish altered in it. I hope it will be adopted without diminution or subtraction. You have placed the subject in some strong, and to me, new lights, although I had settled my opinion on the general question years ago." (Prescott to Story, Jan. 9, 1819, _ib._ 324.)

[772] For instance, the watchful Niles does not even mention it in his all-seeing and all-recording _Register_. Also see Warren, 377.

[773] _North American Review_ (1820), X, 83.

[774] Fiske: _Essays, Historical and Literary_, I, 379.

[775] Maine: _Popular Government_, 248.

[776] Story to Kent, Aug. 21, 1819, Story, I, 331.

[777] See Cooley: _Const.i.tutional Limitations_ (6th ed.), footnote to 335.

[778] Butchers' Union, etc. _vs._ Crescent City, etc. 111 U.S. 750.

[779] Beer Company _vs._ Ma.s.sachusetts, 97 U.S. 25; and see Fertilizing Co. _vs._ Hyde Park, _ib._ 659.

[780] Stone _vs._ Mississippi, October, 1879, 11 Otto (101 U.S.) 816.

[781] The Binghamton Bridge, December, 1865, 3 Wallace, 73.

[782] Pearsall _vs._ Great Northern Railway, 161 U.S. 660.

[783] More has been written of Marshall's opinion in this case than of any other delivered by him except that in Marbury _vs._ Madison.

For recent discussions of the subject see Russell: "Status and Tendencies of the Dartmouth College Case," _Am. Law Rev._ x.x.x, 322-56, an able, scholarly, and moderate paper; Doe: "A New View of the Dartmouth College Case," _Harvard Law Review_, VI, 161-81, a novel and well-reasoned article; Trickett: "The Dartmouth College Paralogism,"

_North American Review_, XL, 175-87, a vigorous radical essay; Hall: "The Dartmouth College Case," _Green Bag_, XX, 244-47, a short but brilliant attack upon the a.s.sailants of Marshall's opinion; Jenkins: "Should the Dartmouth College Decision be Recalled," _Am. Law Rev._ LI, 711-51, a bright, informed, and thorough treatment from the extremely liberal point of view. A calm, balanced, and convincing review of the effect of the Dartmouth decision on American economic and social life is that of Professor Edward S. Corwin in his _Marshall and the Const.i.tution_, 167-72. When reading these comments, however, the student should, at the same time, carefully reexamine Marshall's opinion.

CHAPTER VI

VITALIZING THE CONSt.i.tUTION

The crisis is one which portends destruction to the liberties of the American people. (Spencer Roane.)

The const.i.tutional government of this republican empire cannot be practically enforced but by a fair and liberal interpretation of its powers. (William Pinkney.)

The Judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. (Jefferson.)

The government of the Union is emphatically and truly a government of the people. In form and substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them and for their benefit. (Marshall.)

Although it was the third of the great causes to be decided by the Supreme Court in the memorable year, 1819, M'Culloch _vs._ Maryland was the first in importance and in the place it holds in the development of the American Const.i.tution. Furthermore, in his opinion in this case John Marshall rose to the loftiest heights of judicial statesmanship. If his fame rested solely on this one effort, it would be secure.

To comprehend the full import of Marshall's opinion in this case, the reader must consider the state of the country as described in the fourth chapter of this volume. While none of his expositions of our fundamental law, delivered in the critical epoch from 1819 to 1824, can be entirely understood without knowledge of the National conditions that produced them, this fact must be especially borne in mind when reviewing the case of M'Culloch _vs._ Maryland.