The Life of John Marshall Volume IV Part 34

It is, then, "the unanimous and decided opinion" of the court that the Bank Act is Const.i.tutional. So is the establishment of the branches of the parent bank. Can States tax these branches, as Maryland has tried to do? Of course the power of taxation "is retained by the states," and "is not abridged by the grant of a similar power to the government of the Union." These are "truths which have never been denied."

With sublime audacity Marshall then declares that "such is the paramount character of the const.i.tution that its capacity to withdraw any subject from the action of even this power, is admitted."[838] This a.s.sertion fairly overwhelms the student, since the States then attempting to tax out of existence the branches of the National Bank did not admit, but emphatically denied, that the National Government could withdraw from State taxation any taxable subject whatever, except that which the Const.i.tution itself specifically withdraws.

"The States," argues Marshall, "are expressly forbidden" to tax imports and exports. This being so, "the same paramount character would seem to restrain, as it certainly may restrain, a state from such other exercise of this [taxing] power, as is in its nature incompatible with, and repugnant to, the const.i.tutional laws of the Union. A law, absolutely repugnant to another, as entirely repeals that other as if express terms of repeal were used."

In this fashion Marshall holds, in effect, that Congress can restrain the States from taxing certain subjects not mentioned in the Const.i.tution as fully as though those subjects were expressly named.

It is on this ground that the National Bank claims exemption "from the power of a state to tax its operations." Marshall concedes that "there is no express provision [in the Const.i.tution] for the case, but the claim has been sustained on a principle which so entirely pervades the const.i.tution, is so intermixed with the materials which compose it, so interwoven with its web, so blended with its texture, as to be incapable of being separated from it without rendering it into shreds."[839]

This was, indeed, going far--the powers of Congress placed on "a principle" rather than on the language of the Const.i.tution. When we consider the period in which this opinion was given to the country, we can understand--though only vaguely at this distance of time--the daring of John Marshall. Yet he realizes the extreme radicalism of the theory of Const.i.tutional interpretation he is thus advancing, and explains it with scrupulous care.

"This great principle is that the const.i.tution and the laws made in pursuance thereof are supreme; that they control the const.i.tution and laws of the respective states, and cannot be controlled by them. From this, which may be almost termed an axiom, other propositions are deduced as corollaries, on the truth or error of which ... the cause is supposed to depend."[840]

That "cause" was not so much the one on the docket of the Supreme Court, ent.i.tled M'Culloch _vs._ Maryland, as it was that standing on the docket of fate ent.i.tled Nationalism _vs._ Localism. And, although Marshall did not actually address them, everybody knew that he was speaking to the disunionists who were increasing in numbers and boldness. Everybody knew, also, that the Chief Justice was, in particular, replying to the challenge of the Virginia Republican organization as given through the Court of Appeals of that State.[841]

The corollaries which Marshall deduced from the principle of National supremacy were: "1st. That a power to create implies a power to preserve. 2d. That a power to destroy, if wielded by a different hand, is hostile to, and incompatible with these powers to create and to preserve. 3d. That where this repugnancy exists, that authority which is supreme must control, not yield to that over which it is supreme."[842]

It is "too obvious to be denied," continues Marshall that, if permitted to exercise the power, the States can tax the Bank "so as to destroy it." The power of taxation is admittedly "sovereign"; but the taxing power of the States "is subordinate to, and may be controlled by the const.i.tution of the United States. How far it has been controlled by that instrument must be a question of construction. In making this construction, no principle not declared can be admissible, which would defeat the legitimate operations of a supreme government. It is of the very essence of supremacy to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments as to exempt its own operations from their own influence.

This effect need not be stated in terms. It is so involved in the declaration of supremacy, so necessarily implied in it, that the expression of it could not make it more certain. We must, therefore, keep it [the principle of National supremacy] in view while construing the const.i.tution."[843]

Unlimited as is the power of a State to tax objects within its jurisdiction, that State power does not "extend to those means which are employed by Congress to carry into execution powers conferred on that body by the people of the United States ... powers ... given ... to a government whose laws ... are declared to be supreme.... The right never existed [in the States] ... to tax the means employed by the government of the Union, for the execution of its powers."[844]

Regardless of this fact, however, can States tax instrumentalities of the National Government? It cannot be denied, says Marshall, that "the power to tax involves the power to destroy; that the power to destroy may defeat ... the power to create; that there is a plain repugnance, in conferring on one government a power to control the const.i.tutional measures of another, which other, with respect to those very measures, is declared to be supreme over that which exerts the control."[845]

Here Marshall permits himself the use of sarcasm, which he dearly loved but seldom employed. The State Rights advocates insisted that the States can be trusted not to abuse their powers--confidence must be reposed in State Legislatures and officials; they would not destroy needlessly, recklessly. "All inconsistencies are to be reconciled by the magic of the word CONFIDENCE," says Marshall. "But," he continues, "is this a case of 'confidence'? Would the people of any one state trust those of another with a power to control the most insignificant operations of their state government? We know they would not."

By the same token the people of one State would never consent that the Government of another State should control the National Government "to which they have confided the most important and most valuable interests.

In the legislature of the Union alone, are all represented. The legislature of the Union alone, therefore, can be trusted by the people with the power of controlling measures which concern all, in the confidence that it will not be abused. This, then, is not a case of confidence."[846]

The State Rights theory is "capable of arresting all the measures of the government, and of prostrating it at the foot of the states." Instead of the National Government being "supreme," as the Const.i.tution declares it to be, "supremacy" would be transferred "in fact, to the states"; for, "if the states may tax one instrument, employed by the government in the execution of its powers, they may tax any and every other instrument.

They may tax the mail; they may tax the mint; they may tax patent-rights; they may tax the papers of the custom-house; they may tax judicial process; they may tax all the means employed by the government, to an excess which would defeat all the ends of government. This was not intended by the American people. They did not design to make their government dependent on the states."

The whole question is, avows Marshall, "in truth, a question of supremacy." If the anti-National principle that the States can tax the instrumentalities of the National Government is to be sustained, then the declaration in the Const.i.tution that it and laws made under it "shall be the supreme law of the land, is empty and unmeaning declamation."[847]

Maryland had argued that, since the taxing power is, at least, "concurrent" in the State and National Governments, the States can tax a National bank as fully as the Nation can tax State banks. But, remarks Marshall, "the two cases are not on the same reason." The whole American people and all the States are represented in Congress; when they tax State banks, "they tax their const.i.tuents; and these taxes must be uniform. But, when a state taxes the operations of the government of the United States, it acts upon inst.i.tutions created, not by their own const.i.tuents, but by people over whom they claim no control. It acts upon the measures of a government created by others as well as themselves, for the benefit of others in common with themselves.

"The difference is that which always exists, and always must exist, between the action of the whole on a part, and the action of a part on the whole--between the laws of a government declared to be supreme, and those of a government which, when in opposition to those laws, is not supreme.... The states have no power, by taxation or otherwise, to r.e.t.a.r.d, impede, burden, or in any manner control the operations of the const.i.tutional laws enacted by Congress to carry into execution the powers vested in the general government."[848]

For these reasons, therefore, the judgment of the Supreme Court was that the Maryland law taxing the Baltimore branch of the National Bank was "contrary to the const.i.tution ... and void"; that the judgment of the Baltimore County Court against the branch bank "be reversed and annulled," and that the judgment of the Maryland Court of Appeals affirming the judgment of the County Court also "be reversed and annulled."[849]

In effect John Marshall thus rewrote the fundamental law of the Nation; or, perhaps it may be more accurate to say that he made a written instrument a living thing, capable of growth, capable of keeping pace with the advancement of the American people and ministering to their changing necessities. This greatest of Marshall's treatises on government may well be ent.i.tled the "Vitality of the Const.i.tution."

Story records that Marshall's opinion aroused great political excitement;[850] and no wonder, since the Chief Justice announced, in principle, that Congress had sufficient power to "emanc.i.p.ate every slave in the United States" as John Randolph declared five years later.[851]

Roane, Ritchie, Taylor, and the Republican organization of Virginia had antic.i.p.ated that the Chief Justice would render a Nationalist opinion; but they were not prepared for the bold and crushing blows which he rained upon their fanatically cherished theory of Localism. As soon as they recovered from their surprise and dismay, they opened fire from their heaviest batteries upon Marshall and the National Judiciary. The way was prepared for them by a preliminary bombardment in the _Weekly Register_ of Hezekiah Niles.

This periodical had now become the most widely read and influential publication in the country; it had subscribers from Portland to New Orleans, from Savannah to Fort Dearborn. Niles had won the confidence of his far-flung const.i.tuency by his honesty, courage, and ability. He was the prototype of Horace Greeley, and the _Register_ had much the same hold on its readers that the _Tribune_ came to have thirty years later.

In the first issue of the _Register_, after Marshall's opinion was delivered, Niles began an attack upon it that was to spread all over the land. "A deadly blow has been struck at the _sovereignty of the states_, and from a quarter so far removed from the people as to be hardly accessible to public opinion," he wrote. "The welfare of the union has received a more dangerous wound than fifty _Hartford_ conventions ...

could inflict." Parts of Marshall's opinion are "_incomprehensible_. But perhaps, as some people tell us of what _they_ call the _mysteries_ of religion, the _common people_ are not to understand them, such things being reserved only for the _priests_!!"[852]

The opinion of the Chief Justice was published in full in Niles's _Register_ two weeks after he delivered it,[853] and was thus given wider publicity than any judicial utterance previously rendered in America. Indeed, no p.r.o.nouncement of any court, except, perhaps, that in Gibbons _vs._ Ogden,[854] was read so generally as Marshall's opinion in M'Culloch _vs._ Maryland, until the publication of the Dred Scott decision thirty-eight years later. Niles continues his attack in the number of the _Register_ containing the Bank opinion:

It is "more important than any ever before p.r.o.nounced by that exalted tribunal--a tribunal so far removed from the people, that some seem to regard it with a species of that awful reverence in which the inhabitants of Asia look up to their princes."[855] This exasperated sentence shows the change that Marshall, during his eighteen years on the bench, had wrought in the standing and repute of the Supreme Court.[856] The doctrines of the Chief Justice amount to this, said Niles--"congress may grant _monopolies_" at will, "if the _price_ is paid for them, or without any pecuniary consideration at all." As for the Chief Justice personally, he "has not added ... to his stock of reputation by writing it--_it is excessively labored_."[857]

Papers throughout the country copied Niles's bitter criticisms,[858] and public opinion rapidly crystallized against Marshall's Nationalist doctrine. Every where the principle a.s.serted by the Chief Justice became a political issue; or, rather, his declaration, that that principle was law, made sharper the controversy that had divided the people since the framing of the Const.i.tution.

In number after number of his _Register_ Niles, pours his wrath on Marshall's matchless interpretation. It is "far more dangerous to the union and happiness of the people of the United States than ... _foreign invasion_.[859] ... Certain nabobs in Boston, New York, Philadelphia and Baltimore, ... to secure the pa.s.sage of an act of _incorporation_, ...

fairly purchase the souls of some members of the national legislature with _money_, as happened in Georgia, or secure the votes of others by making them _stockholders_, as occurred in New York, and the act is pa.s.sed.[860]... We call upon the people, the honest people, who hate _monopolies_ and _privileged orders_, to arise in their strength and purge our political temple of the _money-changers_ and those who sell _doves_--causing a reversion to the original purity of our system of government, that the faithful centinel may again say, 'ALL'S WELL!'"[861]

Extravagant and demagogical as this language of Niles's now seems, he was sincere and earnest in the use of it. Copious quotations from the _Register_ have been here made because it had the strongest influence on American public opinion of any publication of its time. Niles's _Register_ was, emphatically, the mentor of the country editor.[862]

At last the hour had come when the Virginia Republican triumvirate could strike with an effect impossible of achievement in 1816 when the Supreme Court rebuked and overpowered the State appellate tribunal in Martin _vs._ Hunter's Lessee.[863] n.o.body outside of Virginia then paid any attention to that decision, so obsessed was the country by speculation and seeming prosperity. But in 1819 the collapse had come; poverty and discontent were universal; rebellion against Nationalism was under way; and the vast majority blamed the Bank of the United States for all their woes. Yet Marshall had upheld "the monster." The Virginia Junto's opportunity had arrived.

No sooner had Marshall returned to Richmond than he got wind of the coming a.s.sault upon him. On March 23, 1819, the _Enquirer_ published his opinion in full. The next day the Chief Justice wrote Story: "Our opinion in the Bank case has aroused the sleeping spirit of Virginia, if indeed it ever sleeps. It will, I understand, be attacked in the papers with some asperity, and as those who favor it never write for the publick it will remain undefended & of course be considered as _d.a.m.nably heretical_."[864] He had been correctly informed. The attack came quickly.

On March 30, Spencer Roane opened fire in the paper of his cousin Thomas Ritchie, the _Enquirer_,[865] under the _nom de guerre_ of "Amphictyon."

His first article is able, calm, and, considering his intense feelings, fair and moderate. Roane even extols his enemy:

"That this opinion is very able every one must admit. This was to have been expected, proceeding as it does from a man of the most profound legal attainments, and upon a subject which has employed his thoughts, his tongue, and his pen, as a politician, and an historian for more than thirty years. The subject, too, is one which has, perhaps more than any other, heretofore drawn a broad line of distinction between the two great parties in this country, on which line no one has taken a more distinguished and decided rank than the judge who has thus expounded the supreme law of the land. It is not in my power to carry on a contest upon such a subject with a man of his gigantic powers."[866]

Niles had spoken to "the plain people"; Roane is now addressing the lawyers and judges of the country. His essay is almost wholly a legal argument. It is based on the Virginia Resolutions of 1799 and gives the familiar State Rights arguments, applying them to Marshall's opinion.[867] In his second article Roane grows vehement, even fiery, and finally exclaims that Virginia "never will _employ force to support her doctrines till other measures have entirely failed_."[868]

His attacks had great and immediate response. No sooner had copies of the _Enquirer_ containing the first letters of Amphictyon reached Kentucky than the Republicans of that State declared war on Marshall. On April 20, the _Enquirer_ printed the first Western response to Roane's call to arms. Marshall's principles, said the Kentucky correspondent, "must raise an alarm throughout our widely extended empire.... The people must rouse from the lap of Delilah and prepare to meet the Philistines.... No mind can compa.s.s the extent of the encroachments upon State and individual rights which may take place under the principles of this decision."[869]

[Ill.u.s.tration: SPENCER ROANE]

Even Marshall, a political and judicial veteran in his sixty-fifth year, was perturbed. "The opinion in the Bank case continues to be denounced by the democracy in Virginia," he writes Story, after the second of Roane's articles appeared. "An effort is certainly making to induce the legislature which will meet in December to take up the subject & to pa.s.s resolutions not very unlike those which were called forth by the alien & sedition laws in 1799. Whether the effort will be successful or not may perhaps depend in some measure on the sentiments of our sister states. To excite this ferment the opinion has been grossly misrepresented; and where its argument has been truly stated it has been met by principles one would think too palpably absurd for intelligent men.

"But," he gloomily continues, "prejudice will swallow anything. If the principles which have been advanced on this occasion were to prevail the const.i.tution would be converted into the old confederation."[870]

As yet Roane had struck but lightly. He now renewed the Republican offensive with greater spirit. During June, 1819, the _Enquirer_ published four articles signed "Hampden," from Roane's pen. Ritchie introduced the "Hampden" essays in an editorial in which he urged the careful reading of the exposure "of the alarming errors of the Supreme Court.... Whenever State rights are threatened or invaded, Virginia will not be the last to sound the tocsin."[871]

Are the people prepared "to give _carte blanche_ to our federal rulers"?

asked Hampden. Amendment of the Const.i.tution by judicial interpretation is taking the place of amendment by the people. Infamous as the methods of National judges had been during the administration of Adams, "the most abandoned of our rulers," Marshall and his a.s.sociates have done worse. They have given "a _general_ letter of attorney to the future legislators of the Union.... That man must be a deplorable idiot who does not see that there is no ... difference" between an "_unlimited_ grant of power and a grant limited in its terms, but accompanied with _unlimited_ means of carrying it into execution.... The crisis is one which portends destruction to the liberties of the American people."

Hampden scoldingly adds: "If Mason or Henry could lift their patriot heads from the grave, ... they would almost exclaim, with Jugurtha, 'Venal people! you will soon perish if you can find a purchaser.'"[872]

For three more numbers Hampden pressed the Republican a.s.sault on Marshall's opinion. The Const.i.tution is a "_compact_, to which the _States_ are the parties." Marshall's argument in the Virginia Convention of 1788 is quoted,[873] and his use of certain terms in his "Life of Washington" is cited.[874] If the powers of the National Government ought to be enlarged, "let this be the act of the _people_, and not that of subordinate agents."[875] The opinion of the Chief Justice repeatedly declares "that the general government, though limited in its powers, is supreme." Hampden avows that he does "not understand this jargon.... The _people_ only are supreme.[876]... Our general government ... is as much a ... 'league' as was the former confederation." Therefore, the Virginia Court of Appeals, in Hunter _vs._ Fairfax, declared an act of Congress "unconst.i.tutional, although it had been sanctioned by the opinion of the Supreme Court of the United States." Pennsylvania, too, had maintained its "sovereignty."[877]

Hampden has only scorn for "_some_ of the judges" who concurred in the opinion of the Chief Justice. They "had before been accounted republicans.... Few men come out from high places, as pure as they went in."[878] If Marshall's doctrine stands, "the triumph over our liberties will be ... easy and complete." What, then, could "arrest this calamity"? Nothing but an "appeal" to the people. Let this majestic and irresistible power be invoked.[879]

That he had no faith in his own theory is proved by the rather dismal fact that, more than two months before Marshall "violated the Const.i.tution" and "endangered the liberties" of the people by his Bank decision, Roane actually arranged for the purchase, as an investment for his son, of $4900 worth of the shares of the Bank of the United States, and actually made the investment.[880] This transaction, consummated even before the argument in M'Culloch _vs._ Maryland, shows that Roane, the able lawyer, was sure that Marshall would and ought to sustain the Bank in its controversy with the States that were trying to destroy it.

Moreover, Dr. John Brockenbrough, President of the Bank of Virginia, actually advised the investment.[881]

It is of moment, too, to note at this point the course taken by Marshall, who had long owned stock in the Bank of the United States. As soon as he learned that the suit had been brought which, of a certainty, must come before him, the Chief Justice disposed of his holdings.[882]

So disturbed was Marshall by Roane's attacks that he did a thoroughly uncharacteristic thing. By way of reply to Roane he wrote, under the _nom de guerre_ of "A Friend of the Union," an elaborate defense of his opinion and, through Bushrod Washington, procured the publication of it in the _Union_ of Philadelphia, the successor of the _Gazette of the United States_, and the strongest Federalist newspaper then surviving.

On June 28, 1819, the Chief Justice writes Washington: "I expected three numbers would have concluded my answer to Hampden but I must write two others which will follow in a few days. If the publication has not commenced I could rather wish the signature to be changed to 'A Const.i.tutionalist.' A Friend of the Const.i.tution is so much like a Friend of the Union that it may lead to some suspicion of ident.i.ty.... I hope the publication has commenced unless the Editor should be unwilling to devote so much of his paper to this discussion. The letters of Amphyction & of Hampden have made no great impression in Richmond but they were designed for the country [Virginia] & have had considerable influence there. I wish the refutation to be in the hands of some respectable members of the legislature as it may prevent some act of the a.s.sembly [torn--probably "both"] silly & wicked. If the publication be made I should [like] to have two or three sets of the papers to hand if necessary. I will settle with you for the printer."[883]