The Life of John Marshall Volume IV Part 39

[919] _State Doc. Fed. Rel._: Ames, 90; and see Niles, XVI, 97, 132.

[920] Pennsylvania House of Representatives, _Journal, 1819-20_, 537; _State Doc. Fed. Rel._: Ames, footnote to 90-91.

[921] _Ib._

[922] _Ib._ 91.

[923] See _infra_, chap. X.

[924] _State Doc. Fed. Rel._: Ames, 92-103.

[925] _Ib._ 92, 101-03.

[926] _Ib._ 91.

[927] See _infra_, chap. X.

[928] See vol. II, 397, of this work.

[929] Taylor: _Construction Construed, and Const.i.tutions Vindicated_, 9.

[930] Taylor: _Construction Construed_, 11-12. Taylor does not, of course, call Marshall by name, either in this book or in his other attacks on the Chief Justice.

[931] _Ib._ 15.

[932] _Ib._ 16.

[933] _Ib._ 18.

[934] _Ib._ 25-26.

[935] _Ib._ 28.

[936] Taylor: _Construction Construed_, 77.

[937] _Ib._ 79.

[938] _Ib._ 84.

[939] _Ib._ 87.

[940] Taylor: _Construction Construed_, 89.

[941] _Ib._ 161.

[942] _Ib._ 233.

[943] _Ib._ 237.

It is interesting to observe that Taylor brands the protective tariff as one of the evils of Marshall's Nationalist philosophy. "It destroys the division of powers between federal and state governments, ... it violates the principles of representation, ... it recognizes a sovereign power over property, ... it destroys the freedom of labour, ... it taxes the great ma.s.s of capital and labour, to enrich the few; ... it increases the burden upon the people ... increases the ma.s.s of poverty; ... it impoverishes workmen and enriches employers; ... it increases the expenses of government, ... it deprives commerce of the freedom of exchanges, ... it corrupts congress ... generates the extremes of luxury and poverty." (Taylor: _Construction Construed_, 252-53.)

[944] See _infra_, 340-42; and see _infra_, chap. X.

[945] Taylor: _Construction Construed_, 314.

[946] Jefferson to Ritchie, Dec. 25, 1820, _Works_: Ford, XII, 176-78.

He declined, however, to permit publication of his endors.e.m.e.nt of Taylor's book. (_Ib._)

CHAPTER VII

THREATS OF WAR

Cannot the Union exist unless Congress and the Supreme Court shall make banks and lotteries? (John Taylor "of Caroline.")

If a judge can repeal a law of Congress, by declaring it unconst.i.tutional, is not this the exercise of political power?

(Senator Richard M. Johnson.)

The States must shield themselves and meet the invader foot to foot. (Jefferson.)

The United States ... form a single nation. In war we are one people. In making peace we are one people. In all commercial regulations we are one and the same people. (Marshall.)

The crisis has arrived contemplated by the framers of the Const.i.tution. (Senator James Barbour.)

The appeals of Niles, Roane, and Taylor, and the defiant att.i.tude toward Nationalism of Virginia, Ohio, Pennsylvania, and other States, expressed a widespread and militant Localism which now manifested itself in another and still more threatening form. The momentous and dramatic struggle in Congress over the admission of Missouri quickly followed these attacks on Marshall and the Supreme Court.

Should that Territory come into the Union only on condition that slavery be prohibited within the new State, or should the slave system be retained? The clamorous and prophetic debate upon that question stirred the land from Maine to Louisiana. A division of the Union was everywhere discussed, and the right of a State to secede was boldly proclaimed.

In the House and Senate, civil war was threatened. "I fear this subject will be an ignited spark, which, communicated to an immense ma.s.s of combustion, will produce an explosion that will shake this Union to its centre.... The crisis has arrived, contemplated by the framers of the Const.i.tution.... This portentous subject, twelve months ago, was a little speck scarcely visible above the horizon; it has already overcast the heavens, obscuring every other object; materials are everywhere acc.u.mulating with which to render it darker."[947] In these bombastic, yet serious words Senator James Barbour of Virginia, when speaking on the Missouri question on January 14, 1820, accurately described the situation.

"I behold the father armed against the son, ... a brother's sword crimsoned with a brother's blood, ... our houses wrapt in flames,"

exclaimed Senator Freeman Walker of Georgia. "If Congress ... impose the restriction contemplated [exclusion of slavery from Missouri], ...

consequences fatal to the peace and harmony of this Union will ...

result."[948] Senator William Smith of South Carolina asked "if, under the misguided influence of fanaticism and humanity, the impetuous torrent is once put in motion, what hand short of Omnipotence can stay it?"[949] In picturing the coming horrors Senator Richard Mentor Johnson of Kentucky declared that "the heart sickens, the tongue falters."[950]

In the House was heard language even more sanguinary. "Let gentlemen beware!" exclaimed Robert Raymond Reid of Georgia; for to put limits on slavery was to implant "envy, hatred, and bitter reproaches, which

'Shall grow to clubs and naked swords, To murder and to death.'...

Sir, the firebrand, which is even now cast into your society, will require blood ... for its quenching."[951]

Only a few Northern members answered with spirit. Senator Walter Lowrie of Pennsylvania preferred "a dissolution of this Union" rather than "the extension of slavery."[952] Daniel Pope Cook of Illinois avowed that "the sound of disunion ... has been uttered so often in this debate, ...

that it is high time ... to adopt measures to prevent it.... Such declarations ... will have no ... effect upon me.... Is it ... the intention of gentlemen to arouse ... the South to rebellion?"[953] For the most part, however, Northern Representatives were mild and even hopeful.[954]

Such was the situation concerning which John Marshall addressed the American people in his epochal opinion in the case of Cohens _vs._ Virginia. The n.o.ble pa.s.sages of that remarkable state paper were inspired by, and can be understood only in the light of, the crisis that produced them. Not in the mere facts of that insignificant case, not in the precise legal points involved, is to be found the inspiration of Marshall's transcendent effort on this occasion. Indeed, it is possible, as the Ohio Legislature and the Virginia Republican organization soon thereafter charged, that Cohens _vs._ Virginia was "feigned" for the purpose of enabling Marshall to a.s.sert once more the supremacy of the Nation.