The Life of John Marshall Volume IV Part 61

"We show our wisdom most strikingly in approving the veto on the harbor bill also," Marshall writes Story. "That bill contained an appropriation intended to make Richmond a seaport, which she is not at present, for large vessels fit to cross the Atlantic. The appropriation was whittled down in the House of Representatives to almost nothing.... Yet we wished the appropriation because we were confident that Congress when correctly informed, would add the necessary sum. This too is vetoed; and for this too our sagacious politicians are thankful. We seem to think it the summit of human wisdom, or rather of American patriotism, to preserve our poverty."[1424]

During the Presidential campaign of 1832, Marshall all but despaired of the future of the Republic. The autocracy of Jackson's reign; the popular enthusiasm which greeted his wildest departures from established usage and orderly government; the state of the public mind, indicated everywhere by the encouragement of those whom Marshall believed to be theatrical and adventurous demagogues--all these circ.u.mstances perturbed and saddened him.

And for the time being, his fears were wholly justified. Triumphantly reelected, Jackson pursued the Bank relentlessly. Finally he ordered that the Government funds should no longer be deposited in that hated inst.i.tution. Although that desperate act brought disaster on business throughout the land, it was acclaimed by the mult.i.tude. In alarm and despair, Marshall writes Story: "We [Virginians] are insane on the subject of the Bank. Its friends, who are not numerous, dare not, a few excepted, to avow themselves."[1425]

But the sudden increase and aggressiveness of disunion sentiment oppressed Marshall more heavily than any other public circ.u.mstance of his last years. The immediate occasion for the recrudescence of Localism was the Tariff. Since the Tariff of 1816 the South had been discontented with the protection afforded the manufacturers of the North and East; and had made loud outcry against the protective Tariff of 1824. The Southern people felt that their interests were sacrificed for the benefit of the manufacturing sections; they believed that all that they produced had to be sold in a cheap, unprotected market, and all that they purchased had to be bought in a dear, protected market; they were convinced that the protective tariff system, and, indeed, the whole Nationalist policy, meant the ruin of the South.

Moreover, they began to see that the power that could enact a protective tariff, control commerce, make internal improvements, could also control slavery--perhaps abolish it.[1426] Certainly that was "the spirit" of Marshall's construction of the Const.i.tution, they said. "Sir," exclaimed Robert S. Garnett of Virginia during the debate in the House on the Tariff of 1824, "we must look very little to consequences if we do not perceive in the spirit of this construction, combined with the political fanaticism of the period, reason to antic.i.p.ate, at no distant day, the usurpation, on the part of Congress, of the right to legislate upon a subject which, if you once touch, will inevitably throw this country into revolution--I mean that of slavery.... Can whole nations be mistaken? When I speak of nations, I mean Virginia, the Carolinas, and other great Southern commonwealths."[1427]

John Carter of South Carolina warned the House not to pa.s.s a law "which would, as to this portion of the Union, be registered on our statute books as a dead letter."[1428] James Hamilton, Jr., of the same State, afterwards a Nullification Governor, asked: "Is it nothing to weaken the attachment of one section of this confederacy to the bond of Union?...

Is it nothing to sow the seeds of incurable alienation?"[1429]

The Tariff of 1828 alarmed and angered the Southern people to the point of frenzy. "The interests of the South have been ... shamefully sacrificed!" cried Hayne in the Senate. "Her feelings have been disregarded; her wishes slighted; her honest pride insulted!"[1430] So enraged were Southern Representatives that, for the most part, they declined to speak. Hamilton expressed their sentiments. He disdained to enter into the "chaffering" about the details of the bill.[1431] "You are coercing us to inquire, whether we can afford to belong to a confederacy in which severe restrictions, tending to an ultimate prohibition of foreign commerce, is its established policy.[1432]... Is it ... treason, sir, to tell you that there is a condition of public feeling throughout the southern part of this confederacy, which no prudent man will treat with contempt, and no man who loves his country will not desire to see allayed?[1433]... I trust, sir, that this cup may pa.s.s from us.... But, if an adverse destiny should be ours--if we are doomed to drink 'the waters of bitterness,' in their utmost woe, ...

South Carolina will be found on the side of those principles, standing firmly, on the very ground which is canonized by that revolution which has made us what we are, and imbued us with the spirit of a free and sovereign people."[1434]

Retaliation, even forcible resistance, was talked throughout the South when this "Tariff of Abominations," as the Act of 1828 was called, became a law. The feeling in South Carolina especially ran high. Some of her ablest men proposed that the State should tax all articles[1435]

protected by the tariff. Pledges were made at public meetings not to buy protected goods manufactured in the North. At the largest gathering in the history of the State, resolutions were pa.s.sed demanding that all trade with tariff States be stopped.[1436] Nullification was proposed.[1437] The people wildly acclaimed such a method of righting their wrongs, and Calhoun gave to the world his famous "Exposition," a treatise based on the Jeffersonian doctrine of thirty years previous.[1438]

A little more than a year after the pa.s.sage of the Tariff of 1824, and the publication of Marshall's opinions in Osborn _vs._ The Bank and Gibbons _vs._ Ogden, Jefferson had written Giles of the "encroachments"

by the National Government, particularly by the Supreme Court and by Congress. How should these invasions of the rights of the States be checked? "Reason and argument? You might as well reason and argue with the marble columns encircling them [Congress and the Supreme Court]....

Are we then _to stand to our arms_?... No. That must be the last resource." But the States should denounce the acts of usurpation "until their acc.u.mulation shall overweigh that of separation."[1439]

Jefferson's letter, written only six months before his death, was made public just as the tide of belligerent Nullification was beginning to rise throughout the South.[1440]

At the same time defiance of National authority came also from Georgia, the cause being as distinct from the tariff as the principle of resistance was identical. This cause was the forcible seizure, by Georgia, of the lands of the Cherokee Indians and the action of the Supreme Court in cases growing out of Georgia's policy and the execution of it.

By numerous treaties between the National Government and the Cherokee Nation, the Indians were guaranteed protection in the enjoyment of their lands. When Georgia, in 1802, ceded her claim to that vast territory stretching westward to the Mississippi, it had been carefully provided that the lands of the Indians should be preserved from seizure or entry without their consent, and that their rights should be defended from invasion or disturbance. The Indian t.i.tles were to be extinguished, however, as soon as this could be done peaceably, and without inordinate expense.

In 1827, these Georgia Cherokees, who were highly civilized, adopted a const.i.tution, set up a government of their own modeled upon that of the United States, and declared themselves a sovereign independent nation.[1441] Immediately thereafter the Legislature of Georgia pa.s.sed resolutions declaring that the Cherokee lands belonged to the State "absolutely"--that the Indians were only "tenants at her will"; that Georgia had the right to, and would, extend her laws throughout her "conventional limits," and "coerce obedience to them from all descriptions of people, be they white, red, or black."[1442]

Deliberately, but without delay, the State enacted laws taking over the Cherokee lands, dividing them into counties, and annulling "all laws, usages and customs" of the Indians.[1443] The Cherokees appealed to President Jackson, who rebuffed them and upheld Georgia.[1444] Gold was discovered in the Indian country, and white adventurers swarmed to the mines.[1445] Georgia pa.s.sed acts forbidding the Indians to hold courts, or to make laws or regulations for the tribe. White persons found in the Cherokee country without a license from the Governor were, upon conviction, to be imprisoned at hard labor for four years. A State guard was established to "protect" the mines and arrest any one "detected in a violation of the laws of this State."[1446] Still other acts equally oppressive were pa.s.sed.[1447]

On the advice of William Wirt, then Attorney-General of the United States, and of John Sergeant of Philadelphia, the Indians applied to the Supreme Court for an injunction to stop Georgia from executing these tyrannical statutes. The whole country was swept by a tempest of popular excitement. South and North took opposite sides. The doctrine of State Rights, in whose name internal improvements, the Tariff, the Bank, and other Nationalist measures had been opposed, was invoked in behalf of Georgia.

The Administration tried to induce the Cherokees to exchange their farms, mills, and stores in Georgia for untamed lands in the Indian Territory. The Indians sent a commission to investigate that far-off region, which reported that it was unfit for agriculture and that, once there, the Cherokees would have to fight savage tribes.[1448] Again they appealed to the President; again Jackson told them that Georgia had absolute authority over them. Angry debates arose in Congress over a bill to send the reluctant natives to the wilds of the then remote West.[1449]

Such was the origin of the case of The Cherokee Nation _vs._ The State of Georgia.[1450] At Wirt's request, Judge Dabney Carr laid the whole matter before Marshall, Wirt having determined to proceed with it or to drop it as the Chief Justice should advise. Marshall, of course, declined to express any opinion on the legal questions involved: "I have followed the debate in both houses of Congress, with profound attention and with deep interest, and have wished, most sincerely, that both the executive and legislative departments had thought differently on the subject. Humanity must bewail the course which is pursued, whatever may be the decision of policy."[1451]

Before the case could be heard by the Supreme Court, Georgia availed herself of an opportunity to show her contempt for the National Judiciary and to a.s.sert her "sovereign rights." A Cherokee named George Ta.s.sels was convicted of murder in the Superior Court of Hall County, Georgia, and lay in jail until the sentence of death should be executed.

A writ of error from the Supreme Court was obtained, and Georgia was ordered to appear before that tribunal and defend the judgment of the State Court.

The order was signed by Marshall. Georgia's reply was as insulting and belligerent as it was prompt and spirited. The Legislature resolved that "the interference by the chief justice of the supreme court of the U.

States, in the administration of the criminal laws of this state, ... is a flagrant violation of her rights"; that the Governor "and every other officer of this state" be directed to "disregard any and every mandate and process ... purporting to proceed from the chief justice or any a.s.sociate justice of the supreme court of the United States"; that the Governor be "authorised and required, with all the force and means ...

at his command ... to resist and repel any and every invasion from whatever quarter, upon the administration of the criminal laws of this state"; that Georgia refuses to become a party to "the case sought to be made before the supreme court"; and that the Governor, "by express,"

direct the sheriff of Hall County to execute the law in the case of George Ta.s.sels.[1452]

Five days later, Ta.s.sels was hanged,[1453] and the Supreme Court of the United States, powerless to vindicate its authority, defied and insulted by a "sovereign" State, abandoned by the Administration, was humiliated and helpless.

When he went home on the evening of January 4, 1831, John Quincy Adams, now a member of Congress, wrote in his diary that "the resolutions of the legislature of Georgia setting at defiance the Supreme Court of the United States are published and approved in the Telegraph, the Administration newspaper at this place.... The Const.i.tution, the laws and treaties of the United States are prostrate in the State of Georgia.

Is there any remedy for this state of things? None. Because the Executive of the United States is in League with the State of Georgia.... This example ... will be imitated by other States, and with regard to other national interests--perhaps the tariff.... The Union is in the most imminent danger of dissolution.... The ship is about to founder."[1454]

Meanwhile the Cherokee Nation brought its suit in the Supreme Court to enjoin the State from executing its laws, and at the February term of 1831 it was argued for the Indians by Wirt and Sergeant. Georgia disdained to appear--not for a moment would that proud State admit that the Supreme Court of the Nation could exercise any authority whatever over her.[1455]

On March 18, 1831, Marshall delivered the opinion of the majority of the court, and in it he laid down the broad policy which the Government has unwaveringly pursued ever since. At the outset the Chief Justice plainly stated that his sympathies were with the Indians,[1456] but that the court could not examine the merits or go into the moralities of the controversy, because it had no jurisdiction. The Cherokees sued as a foreign nation, but, while they did indeed const.i.tute a separate state, they were not a foreign nation. The relation of the Indians to the United States is "unlike that of any other two people in existence." The territory comprises a "part of the United States."[1457]

In our foreign affairs and commercial regulations, the Indians are subject to the control of the National Government. "They acknowledge themselves in their treaties to be under the protection of the United States." They are not, then, foreign nations, but rather "domestic dependent nations.... They are in a state of pupilage." Foreign governments consider them so completely under our "sovereignty and dominion" that it is universally conceded that the acquisition of their lands or the making of treaties with them would be "an invasion of our territory, and an act of hostility." By the Const.i.tution power is given Congress to regulate commerce among the States, with foreign nations, and with Indian tribes, these terms being "entirely distinct."[1458]

The Cherokees not being a foreign nation, the Supreme Court has no jurisdiction in a suit brought by them in that capacity, said Marshall.

Furthermore, the court was asked "to control the Legislature of Georgia, and to restrain the exertion of its physical force"--a very questionable "interposition," which "savors too much of the exercise of political power to be within the proper province of the judicial department." In "a proper case with proper parties," the court might, perhaps, decide "the mere question of right" to the Indian lands. But the suit of the Cherokee Nation against Georgia is not such a case.

Marshall closes with a reflection upon Jackson in terms much like those with which, many years earlier, he had so often rebuked Jefferson: "If it be true that the Cherokee Nation have rights, this is not the tribunal in which those rights are to be a.s.serted. If it be true that wrongs have been inflicted, and that still greater are to be apprehended, this is not the tribunal which can redress the past or prevent the future."[1459]

In this opinion the moral force of Marshall was displayed almost as much as in the case of the Schooner Exchange.[1460] He was friendly to the whole Indian race; he particularly detested Georgia's treatment of the Cherokees; he utterly rejected the State Rights theory on which the State had acted; and he could easily have decided in favor of the wronged and harried Indians, as the dissent of Thompson and Story proves. But the statesman and jurist again rose above the man of sentiment, law above emotion, the enduring above the transient.

As a "foreign state" the Indians had lost, but the const.i.tutionality of Georgia's Cherokee statutes had not been affirmed. Wirt and Sergeant had erred as to the method of attacking that legislation. Another proceeding by Georgia, however, soon brought the validity of her expansion laws before the Supreme Court. Among the missionaries who for years had labored in the Cherokee Nation was one Samuel A. Worcester, a citizen of Vermont. This brave minister, licensed by the National Government, employed by the American Board of Commissioners for Foreign Missions, appointed by President John Quincy Adams to be postmaster at New Echota, a Cherokee town, refused, in company with several other missionaries, to leave the Indian country.

Worcester and a Reverend Mr. Thompson were arrested by the Georgia guard. The Superior Court of Gwinnett County released them, however, on a writ of habeas corpus, because, both being licensed missionaries expending National funds appropriated for civilizing Indians, they must be considered as agents of the National Government. Moreover, Worcester was postmaster at New Echota. Georgia demanded his removal and inquired of Jackson whether the missionaries were Government agents. The President a.s.sured the State that they were not, and removed Worcester from office.[1461]

Thereupon both Worcester and Thompson were promptly ordered to leave the State. But they and some other missionaries remained, and were arrested; dragged to prison--some of them with chains around their necks;[1462] tried and convicted. Nine were pardoned upon their promise to depart forthwith from Georgia. But Worcester and one Elizur Butler sternly rejected the offer of clemency on such a condition and were put to hard labor in the penitentiary.

From the judgment of the Georgia court, Worcester and Butler appealed to the Supreme Court of the United States. Once more Marshall and Georgia confronted each other; again the Chief Justice faced a hostile President far more direct and forcible than Jefferson, but totally lacking in the subtlety and skill of that incomparable politician. Thrilling and highly colored accounts of the treatment of the missionaries had been published in every Northern newspaper; religious journals made conspicuous display of soul-stirring narratives of the whole subject; feeling in the North ran high; resentment in the South rose to an equal degree.

This time Georgia did more than ignore the Supreme Court as in the case of George Ta.s.sels and in the suit of the Cherokee Nation; she formally refused to appear; formally denied the right of that tribunal to pa.s.s upon the decisions of her courts.[1463] Never would Georgia so "compromit her dignity as a sovereign State," never so "yield her rights as a member of the Confederacy." The new Governor, Wilson Lumpkin, avowed that he would defend those rights by every means in his power.[1464] When the case of Worcester _vs._ Georgia came on for hearing before the Supreme Court, no one answered for the State. Wirt, Sergeant, and Elisha W. Chester appeared for the missionaries as they had for the Indians.[1465] Wirt and Sergeant made extended and powerful arguments.[1466]

Marshall's opinion, delivered March 3, 1832, is one of the n.o.blest he ever wrote. "The legislative power of a State, the controlling power of the Const.i.tution and laws of the United States, the rights, if they have any, the political existence of a once numerous and powerful people, the personal liberty of a citizen, are all involved," begins the aged Chief Justice.[1467] Does the act of the Legislature of Georgia, under which Worcester was convicted, violate the Const.i.tution, laws, and treaties of the United States?[1468] That act is "an a.s.sertion of jurisdiction over the Cherokee Nation."[1469]

He then goes into a long historical review of the relative t.i.tles of the natives and of the white discoverers of America; of the effect upon these t.i.tles of the numerous treaties with the Indians; of the acts of Congress relating to the red men and their lands; and of previous laws of Georgia on these subjects.[1470] This part of his opinion is the most extended and exhaustive historical a.n.a.lysis Marshall ever made in any judicial utterance, except that on the law of treason during the trial of Aaron Burr.[1471]

Then comes his condensed, unanswerable, brilliant conclusion: "A weaker power does not surrender its independence, its rights to self-government, by a.s.sociating with a stronger, and taking its protection. A weak state, in order to provide for its safety, may place itself under the protection of one more powerful, without stripping itself of the right of self-government, and ceasing to be a state....

The Cherokee Nation ... is a distinct community, occupying its own territory ... in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter but with the a.s.sent of the Cherokees themselves, or in conformity with treaties, and with the acts of Congress. The whole intercourse between the United States and this nation is by our Const.i.tution and laws vested in the government of the United States."

The Cherokee Acts of the Georgia Legislature "are repugnant to the const.i.tution, laws and treaties of the United States. They interfere forcibly with the relations established between the United States and the Cherokee Nation." This controlling fact the laws of Georgia ignore.

They violently disrupt the relations between the Indians and the United States; they are equally antagonistic to acts of Congress based upon these treaties. Moreover, "the forcible seizure and abduction" of Worcester, "who was residing in the nation with its permission and by authority of the President of the United States, is also a violation of the acts which authorize the chief magistrate to exercise this authority."

Marshall closes with a pa.s.sage of eloquence almost equal to, and of higher moral grandeur than, the finest pa.s.sages in M'Culloch _vs._ Maryland and in Cohens _vs._ Virginia. So the decision of the court was that the judgment of the Georgia court be "reversed and annulled."[1472]

Congress was intensely excited by Marshall's opinion; Georgia was enraged; the President agitated and belligerent. In a letter to Ticknor, written five days after the judgment of the court was announced, Story accurately portrays the situation: "The decision produced a very strong sensation in both houses; Georgia is full of anger and violence....

Probably she will resist the execution of our judgement, & if she does I do not believe the President will interfere.... The Court has done its duty. Let the nation do theirs. If we have a government let its commands be obeyed; if we have not it is as well to know it at once, & to look to consequences."[1473]

Story's forecast was justified. Georgia scoffed at Marshall's opinion, flouted the mandate of the Supreme Court. "Usurpation!" cried Governor Lumpkin. He would meet it "with the spirit of determined resistance."[1474] Jackson defied the Chief Justice. "John Marshall has made his decision:--_now let him enforce it_!" the President is reported to have said.[1475] Again the Supreme Court found itself powerless; the judgment in Worcester _vs._ Georgia came to nothing; the mandate was never obeyed, never heeded.[1476]

For the time being, Marshall was defeated; Nationalism was prostrate; Localism erect, strong, aggressive. Soon, however, Marshall and Nationalism were to be sustained, for the moment, by the man most dreaded by the Chief Justice, most trusted by Marshall's foes. Andrew Jackson was to astound the country by the greatest and most illogical act of his strange career--the issuance of his immortal Proclamation against Nullification.

Georgia's very first a.s.sertion of her "sovereignty" in the Indian controversy had strengthened South Carolina's fast growing determination to resist the execution of the Tariff Law. On January 25, 1830, Senator Robert Young Hayne of South Carolina, in his brilliant challenge to Webster, set forth the philosophy of Nullification: "Sir, if, the measures of the Federal Government were less oppressive, we should still strive against this usurpation. The South is acting on a principle she has always held sacred--resistance to unauthorized taxation."[1477]

Webster's immortal reply, so far as his Const.i.tutional argument is concerned, is little more than a condensation of the Nationalist opinions of John Marshall stated in popular and dramatic language.

Indeed, some of Webster's sentences are practically mere repet.i.tions of Marshall's, and his reasoning is wholly that of the Chief Justice.

"We look upon the States, not as separated, but as united under the same General Government, having interests, common, a.s.sociated, intermingled.

In war and peace, we are one; in commerce, one; because the authority of the General Government reaches to war and peace, and to the regulation of commerce."[1478]