The Life of John Marshall Volume IV Part 63

"The party seems to be divided. Those who are still true to their President pa.s.s by his denunciation of all their former theories; and though they will not approve the sound opinions avowed in his proclamation are ready to denounce nullification and to support him in maintaining the union. This is going a great way for them--much farther than their former declarations would justify the expectation of, and much farther than mere love of union would carry them.

"You have undoubtedly seen the message of our Governor and the resolutions reported by the committee to whom it was referred--a message and resolutions which you will think skillfully framed had the object been a civil war. They undoubtedly hold out to South Carolina the expectation of support from Virginia; and that hope must be the foundation on which they have constructed their plan for a southern confederacy or league.

"A want of confidence in the present support of the people will prevent any direct avowal in favor of this scheme by those whose theories and whose secret wishes may lead to it; but the people may be so entangled by the insane dogmas which have become axioms in the political creed of Virginia, and involved so inextricably in the labyrinth into which those dogmas conduct them, as to do what their sober judgement disapproves.

"On Thursday these resolutions are to be taken up, and the debate will, I doubt not, be ardent and tempestuous enough. I pretend not to antic.i.p.ate the result. Should it countenance the obvious design of South Carolina to form a southern confederacy, it may conduce to a southern league--never to a southern government. Our theories are incompatible with a government for more than a single State. We can form no union which shall be closer than an alliance between sovereigns.

"In this event there is some reason to apprehend internal convulsion.

The northern and western section of our State, should a union be maintained north of the Potowmack, will not readily connect itself with the South. At least such is the present belief of their most intelligent men. Any effort on their part to separate from Southern Virginia and unite with a northern confederacy may probably be punished as treason.

'We have fallen on evil times.'"

Story had sent Marshall, Webster's speech at Faneuil Hall, December 17, 1832, in which he declared that he approved the "general principles" of Jackson's Proclamation, and that "nullification ... is but another name for civil war." "I am," said Webster, "for the Union as it is; ... for the Const.i.tution as it is." He pledged his support to the President in "maintaining this Union."[1530]

Marshall was delighted: "I thank you for M^r Webster's speech.

Entertaining the opinion he has expressed respecting the general course of the administration, his patriotism is ent.i.tled to the more credit for the determination he expressed at Faneuil Hall to support it in the great effort it promises to make for the preservation of the union. No member of the then opposition avowed a similar determination during the Western Insurrection, which would have been equally fatal had it not been quelled by the well timed vigor of General Washington.

"We are now gathering the bitter fruits of the tree even before that time planted by M^r Jefferson, and so industriously and perseveringly cultivated by Virginia."[1531]

Marshall's predictions of a tempestuous debate over the Virginia resolutions were fulfilled. They were, in fact, "debated to death,"

records Niles. "It would seem that the genuine spirit of 'ancient _dominionism_' would lead to a making of speeches, even in 'the cave of the Cyclops when forging thunderbolts,' instead of striking the hammers from the hands of the workers of iniquity. Well--the matter was debated, and debated and debated.... The proceedings ... were measured by the _square yard_." At last, however, resolutions were adopted.

These resolutions "respectfully requested and entreated" South Carolina to rescind her Ordinance of Nullification; "respectfully requested and entreated" Congress to "modify" the tariff; reaffirmed Virginia's faith in the principles of 1798-99, but held that these principles did not justify South Carolina's Ordinance or Jackson's Proclamation; and finally, authorized the appointment of one commissioner to South Carolina to communicate Virginia's resolutions, expressing at the same time, however, "our sincere good will to our sister state, and our anxious solicitude that the kind and respectful recommendations we have addressed to her, may lead to an accommodation of all the difficulties between that state and the general government."[1532] Benjamin Watkins Leigh was unanimously elected to be the amba.s.sador of accommodation.[1533]

So it came about that South Carolina, anxious to extricate herself from a perilous situation, yet ready to fight if she could not disentangle herself with honor, took informal steps toward a peaceful adjustment of the dispute; and that Jackson and Congress, equally wishing to avoid armed conflict, were eager to have a tariff enacted that would work a "reconciliation." On January 26, 1833, at a meeting in Charleston, attended by the first men of the State of all parties, resolutions, offered by Hamilton himself, were adopted which, as a practical matter, suspended the Ordinance of Nullification that was to have gone into effect on February 1. Vehement, spirited, defiant speeches were made, all ending, however, in expressions of hope that war might be avoided.

The resolutions were as ferocious as the most bloodthirsty Secessionist could desire; but they accepted the proposed "beneficial modification of the tariff," and declared that, "pending the process" of reducing the tariff, "all ... collision between the federal and state authorities should be sedulously avoided on both sides."[1534]

The Tariff Bill of 1833--Clay's compromise--resulted. Jackson signed it; South Carolina was mollified. For the time the storm subsided; but the net result was that Nullification triumphed[1535]--a National law had been modified at the threat of a State which was preparing to back up that threat by force.

Marshall was not deceived. "Have you ever seen anything to equal the exhibition in Charleston and in the far South generally?" he writes Story. "Those people pursue a southern league steadily or they are insane. They have caught at Clay's bill, if their conduct is at all intelligible, not as a real accommodation, a real adjustment, a real relief from actual or supposed oppression, but as an apology for avoiding the crisis and deferring the decisive moment till the other States of the South will unite with them."[1536] Marshall himself was for the compromise Tariff of 1833, but not because it afforded a means of preventing armed collision: "Since I have breathed the air of James River I think favorably of Clay's bill. I hope, if it can be maintained, that our manufactures will still be protected by it."[1537]

The "settlement" of the controversy, of course, satisfied n.o.body, changed no conviction, allayed no hostility, stabilized no condition.

The South, though victorious, was nevertheless morose, indignant--after all, the principle of protection had been retained. "The political world, at least our part of it, is surely moved _topsy turvy_," Marshall writes Story in the autumn of 1833. "What is to become of us and of our const.i.tution? Can the wise men of the East answer that question? Those of the South perceive no difficulty. Allow a full range to state rights and state sovereignty, and, in their opinion, all will go well."[1538]

Placid as was his nature, perfect as was the co-ordination of his powers, truly balanced as were his intellect and emotions, Marshall could not free his mind of the despondency that had now settled upon him. Whatever the subject upon which he wrote to friends, he was sure to refer to the woeful state of the country, and the black future it portended.

Story informed him that an abridged edition of his own two volumes on the Const.i.tution would soon be published. "I rejoice to hear that the abridgement of your Commentaries is coming before the public," wrote Marshall in reply, "and should be still more rejoiced to learn that it was used in all our colleges and universities. The first impressions made on the youthful mind are of vast importance; and, most unfortunately, they are in the South all erroneous. Our young men, generally speaking, grow up in the firm belief that liberty depends on construing our Const.i.tution into a league instead of a government; that it has nothing to fear from breaking these United States into numerous petty republics. Nothing in their view is to be feared but that bugbear, consolidation; and every exercise of legitimate power is construed into a breach of the Const.i.tution. Your book, if read, will tend to remove these prejudices."[1539]

A month later he again writes Story: "I have finished reading your great work, and wish it could be read by every statesman, and every would-be statesman in the United States. It is a comprehensive and an accurate commentary on our Const.i.tution, formed in the spirit of the original text. In the South, we are so far gone in political metaphysics, that I fear no demonstration can restore us to common sense. The word 'State Rights,' as expounded by the resolutions of '98 and the report of '99, construed by our legislature, has a charm against which all reasoning is vain.

"Those resolutions and that report const.i.tute the creed of every politician, who hopes to rise in Virginia; and to question them, or even to adopt the construction given by their author [Jefferson] is deemed political sacrilege. The solemn ... admonitions of your concluding remarks[1540] will not, I fear, avail as they ought to avail against this popular frenzy."[1541]

He once more confides to his beloved Story his innermost thoughts and feelings. Story had sent the Chief Justice a copy of the _New England Magazine_ containing an article by Story ent.i.tled "Statesmen: their Rareness and Importance," in which Marshall was held up as the true statesman and the poor quality of the generality of American public men was set forth in scathing terms.

Marshall briefly thanks Story for the compliment paid him, and continues: "It is in vain to lament, that the portrait which the author has drawn of our political and party men, is, in general, true. Lament it as we may, much as it may wound our vanity or our pride, it is still, in the main, true; and will, I fear, so remain.... In the South, political prejudice is too strong to yield to any degree of merit; and the great body of the nation contains, at least appears to me to contain, too much of the same ingredient.

"To men who think as you and I do, the present is gloomy enough; and the future presents no cheering prospect. The struggle now maintained in every State in the Union seems to me to be of doubtful issue; but should it terminate contrary to the wishes of those who support the enormous pretensions of the Executive, should victory crown the exertions of the champions of const.i.tutional law, what serious and lasting advantage is to be expected from this result?

"In the South (things may be less gloomy with you) those who support the Executive do not support the Government. They sustain the personal power of the President, but labor incessantly to impair the legitimate powers of the Government. Those who oppose the violent and rash measures of the Executive (many of them nullifiers, many of them seceders) are generally the bitter enemies of a const.i.tutional government. Many of them are the avowed advocates of a league; and those who do not go the whole length, go great part of the way. What can we hope for in such circ.u.mstances? As far as I can judge, the Government is weakened, whatever party may prevail. Such is the impression I receive from the language of those around me."[1542]

During the last years of Marshall's life, the country's esteem for him, slowly forming through more than a generation, manifested itself by expressions of reverence and affection. When he and Story attended the theater, the audience cheered him.[1543] His sentiment still youthful and tender, he wept over f.a.n.n.y Kemble's affecting portrayal of Mrs.

Haller in "The Stranger."[1544] To the very last Marshall performed his judicial duties thoroughly, albeit with a heavy heart. He "looked more vigorous than usual," and "seemed to revive and enjoy anew his green old age," testifies Story.[1545]

It is at this period of his career that we get Marshall's account of the course he pursued toward his malignant personal and political enemy, Thomas Jefferson. Six years after Jefferson's death,[1546] Major Henry Lee, who hated that great reformer even more than Jefferson hated Marshall, wrote the Chief Justice for certain facts, and also for his opinion of the former President. In his reply Marshall said:

"I have never allowed myself to be irritated by M^r Jeffersons unprovoked and unjustifiable aspersions on my conduct and principles, nor have I ever noticed them except on one occasion[1547] when I thought myself called on to do so, and when I thought that declining to enter upon my justification might have the appearance of crouching under the lash, and admitting the justice of its infliction."[1548]

Intensely as he hated Jefferson, attributing to him, as Marshall did, most of the country's woes, the Chief Justice never spoke a personally offensive word concerning his radical cousin.[1549] On the other hand, he never uttered a syllable of praise or appreciation of Jefferson.

Even when his great antagonist died, no expression of sorrow or esteem or regret or admiration came from the Chief Justice. Marshall could not be either hypocritical or vindictive; but he could be silent.

Holding to the old-time Federalist opinion that Jefferson's principles were antagonistic to orderly government; convinced that, if they prevailed, they would be destructive of the Nation; believing the man himself to be a demagogue and an unscrupulous if astute and able politician--Marshall, nevertheless, said nothing about Jefferson to anybody except to Story, Lee, and Pickering; and, even to these close friends, he gave only an occasional condemnation of Jefferson's policies.

The general feeling toward Marshall, especially that of the bench and bar, during his last two years is not too strongly expressed in Story's dedication to the Chief Justice of his "Commentaries on the Const.i.tution of the United States." Marshall had taken keen interest in the preparation of Story's masterpiece and warned him against haste.

"Precipitation ought carefully to be avoided. This is a subject on which I am not without experience."[1550]

Story begins by a tribute "to one whose youth was engaged in the arduous enterprises of the Revolution; whose manhood a.s.sisted in framing and supporting the national Const.i.tution; and whose maturer years have been devoted to the task of unfolding its powers, and ill.u.s.trating its principles." As the expounder of the Const.i.tution, "the common consent of your countrymen has admitted you to stand without a rival. Posterity will a.s.suredly confirm, by its deliberate award, what the present age has approved, as an act of undisputed justice.

"But," continues Story, "I confess that I dwell with even more pleasure upon the entirety of a life adorned by consistent principles, and filled up in the discharge of virtuous duty; where there is nothing to regret, and nothing to conceal; no friendships broken; no confidence betrayed; no timid surrenders to popular clamor; no eager reaches for popular favor. Who does not listen with conscious pride to the truth, that the disciple, the friend, the biographer of Washington, still lives, the uncompromising advocate of his principles?"[1551]

Excepting only the time of his wife's death, the saddest hours of his life were, perhaps, those when he opened the last two sessions of the Supreme Court over which he presided. When, on January 13, 1834, the venerable Chief Justice, leading his a.s.sociate justices to their places, gravely returned the accustomed bow of the bar and spectators, he also, perforce, bowed to temporary events and to the iron, if erratic, rule of Andrew Jackson. He bowed, too, to time and death. Justice Washington was dead, Johnson was fatally ill, and Duval, sinking under age and infirmity, was about to resign.

Republicans as Johnson and Duval were, they had, generally, upheld Marshall's Nationalism. Their places must soon be filled, he knew, by men of Jackson's choosing--men who would yield to the transient public pressure then so fiercely brought to bear on the Supreme Court. Only Joseph Story could be relied upon to maintain Marshall's principles. The increasing tendency of Justices Thompson, McLean, and Baldwin was known to be against his unyielding Const.i.tutional philosophy. It was more than probable that, before another year, Jackson would have the opportunity to appoint two new Justices--and two cases were pending that involved some of Marshall's dearest Const.i.tutional principles.

The first of these was a Kentucky case[1552] in which almost precisely the same question, in principle, arose that Marshall had decided in Craig _vs._ Missouri.[1553] The Kentucky Bank, owned by the State, was authorized to issue, and did issue, bills which were made receivable for taxes and other public dues. The Kentucky law furthermore directed that an endors.e.m.e.nt and tender of these State bank notes should, with certain immaterial modifications, satisfy any judgment against a debtor.[1554]

In short, the Legislature had authorized a State currency--had emitted those bills of credit, expressly forbidden by the National Const.i.tution.

Another case, almost equally important, came from New York.[1555] To prevent the influx of impoverished foreigners, who would be a charge upon the City of New York, the Legislature had enacted that the masters of ships arriving at that port should report to the Mayor all facts concerning pa.s.sengers. The ship captain must remove those whom the Mayor decided to be undesirable.[1556] It was earnestly contended that this statute violated the commerce clause of the Const.i.tution.

Both cases were elaborately argued; both, it was said, had been settled by former decisions--the Kentucky case by Craig _vs._ Missouri, the New York case by Gibbons _vs._ Ogden and Brown _vs._ Maryland. The court was almost equally divided. Thompson, McLean, and Baldwin thought the Kentucky and New York laws Const.i.tutional; Marshall, Story, Duval, and Johnson believed them invalid. But Johnson was absent because of his serious illness. No decision, therefore, was possible.

Marshall then announced a rule of the court, hitherto unknown by the public: "The practice of this court is not (except in cases of absolute necessity) to deliver any judgment in cases where const.i.tutional questions are involved, unless four judges concur in opinion, thus making the decision that of a majority of the whole court. In the present cases four judges do not concur in opinion as to the const.i.tutional questions which have been argued. The court therefore direct these cases to be re-argued at the next term, under the expectation that a larger number of the judges may then be present."[1557]

The next term! When, on January 12, 1835, John Marshall for the last time presided over the Supreme Court of the United States, the situation, from his point of view, was still worse. Johnson had died and Jackson had appointed James M. Wayne of Georgia in his place. Duval had resigned not long before the court convened, and his successor had not been named. Again the New York and Kentucky cases were continued, but Marshall fully realized that the decision of them must be in opposition to his firm and p.r.o.nounced views.[1558]

[Ill.u.s.tration: a.s.sociate Justices at the last session of the Supreme Court over which John Marshall presided: McLEAN, THOMPSON, STORY, WAYNE, BALDWIN]

It is doubtful whether history shows more than a few examples of an aged man, ill, disheartened, and knowing that he soon must die, who nevertheless continued his work to the very last with such scrupulous care as did Marshall. He took active part in all cases argued and decided and actually delivered the opinion of the court in eleven of the most important.[1559] None of these are of any historical interest; but in all of them Marshall was as clear and vigorous in reasoning and style as he had been in the immortal Const.i.tutional opinions delivered at the height of his power. The last words Marshall ever uttered as Chief Justice sparkle with vitality and high ideals. In Mitchel _et al. vs._ The United States,[1560] a case involving land t.i.tles in Florida, he said, in ruling on a motion to continue the case: "Though the hope of deciding causes to the mutual satisfaction of parties would be chimerical, that of convincing them that the case has been fully and fairly considered ... may be sometimes indulged. Even this is not always attainable. In the excitement produced by ardent controversy, gentlemen view the same object through such different media that minds, not infrequently receive therefrom precisely opposite impressions. The Court, however, must see with its own eyes, and exercise its own judgment, guided by its own reason."[1561]

At last Marshall had grave intimations that his life could not be prolonged. Quite suddenly his health declined, although his mind was as strong and clear as ever. "Chief Justice Marshall still possesses his intellectual powers in very high vigor," writes Story during the last session of the Supreme Court over which his friend and leader presided.

"But his physical strength is manifestly on the decline; and it is now obvious, that after a year or two, he will resign, from the pressing infirmities of age.... What a gloom will spread over the nation when he is gone! His place will not, nay, it cannot be supplied."[1562]

As the spring of 1835 ripened into summer, Marshall grew weaker. "I pray G.o.d," wrote Story in agonies of apprehension, "that he may long live to bless his country; but I confess that I have many fears whether he can be long with us. His complaints are, I am sure, incurable, but I suppose that they may be alleviated, unless he should meet with some accidental cold or injury to aggravate them. Of these, he is in perpetual danger, from his imprudence as well as from the natural effects of age."[1563]

In May, 1835, Kent went to Richmond in order to see Marshall, whom "he found very emaciated, feeble & dangerously low. He injured his Spine by a Post Coach fall & oversetting.... He ... made me _Promise to see him at Washington next Winter_."[1564]

Kent wrote Jeremiah Smith of New Hampshire that Marshall must soon die.

Smith was overwhelmed with grief "because his life, at this time especially, is of incalculable value." Marshall's "views ... of our national affairs" were those of Smith also. "Perfectly just in themselves they now come to us confirmed by the dying attestation of one of the greatest and best of men."[1565]

Marshall's "incurable complaint," which so distressed Story, was a disease of the liver.[1566] Finding his health failing, he again repaired to Philadelphia for treatment by Dr. Physick. When informed that the prospects for his friend's recovery were desperate, Story was inconsolable. "Great, good and excellent man!" he wrote. "I shall never see his like again! His gentleness, his affectionateness, his glorious virtues, his unblemished life, his exalted talents, leave him without a rival or a peer."[1567]