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 Constitution, 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 anticipate, 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 pass 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 pass 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 passed 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 passage 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 accumulation 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 titles 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 constitution, 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 passed 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 passed 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 passed.[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 assert her "sovereign rights." A Cherokee named George Tassels 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 associate 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 Tassels.[1452] Five days later, Tassels 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 Constitution, 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 constitute 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 Constitution 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 asserted. 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 constitutionality 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 assured 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 Tassels and in the suit of the Cherokee Nation; she formally refused to appear; formally denied the right of that tribunal to pass 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 noblest he ever wrote. "The legislative power of a State, the controlling power of the Constitution 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 Constitution, laws, and treaties of the United States?[1468] That act is "an assertion of jurisdiction over the Cherokee Nation."[1469] He then goes into a long historical review of the relative titles of the natives and of the white discoverers of America; of the effect upon these titles 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 analysis 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 associating 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 assent 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 Constitution and laws vested in the government of the United States." The Cherokee Acts of the Georgia Legislature "are repugnant to the constitution, 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 passage of eloquence almost equal to, and of higher moral grandeur than, the finest passages 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 assertion 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 Constitutional 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 repetitions 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, associated, 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] What is the capital question in dispute? It is this: "Whose prerogative is it to decide on the constitutionality or unconstitutionality of the laws?"[1479] Can States decide? Can States "annul the law of Congress"? Hayne, expressing the view of South Carolina, had declared that they could. He had based his argument upon the Kentucky and Virginia Resolutions--upon the theory that the States, and not the people, had created the Constitution; that the States, and not the people, had established the General Government. But is this true? asked Webster. He answered by paraphrasing Marshall's words in M'Culloch _vs._ Maryland: "It is, sir, the people's constitution, the people's Government; made for the people; made by the people; and answerable to the people.[1480] The people ... have declared that this Constitution shall be the supreme law....[1481] Who is to judge between the people and the Government?"[1482] The Constitution settles that question by declaring that "the judicial power shall extend to all cases arising under the Constitution and laws."[1483] Because of this the Union is secure and strong. "Instead of one tribunal, established by all, responsible to all, with power to decide for all, shall constitutional questions be left to four and twenty popular bodies, each at liberty to decide for itself, and none bound to respect the decisions of others?"[1484] Then Webster swept grandly forward to that famous peroration ending with the words which in time became the inspiring motto of the whole American people: "Liberty _and_ Union, now and forever, one and inseparable!"[1485] Immediately after the debate between Hayne and Webster, Nullification gathered force in South Carolina. Early in the autumn of 1830, Governor Stephen Decatur Miller spoke at a meeting of the Sumter district of that State. He urged that a State convention be called for the purpose of declaring null and void the Tariff of 1828. Probably the National courts would try to enforce that law, he said, but South Carolina would "refuse to sustain" it. Nullification involved no danger, and if it did, what matter!--"those who fear to defend their rights, have none. Their property belongs to the banditti: they are only tenants at will of their own firesides."[1486] Public excitement steadily increased; at largely attended meetings ominous resolutions were adopted. "The attitude which the federal government continues to assume towards the southern states, calls for decisive and unequivocal resistance." So ran a typical declaration of a gathering of citizens of Georgetown, South Carolina, in December, 1830.[1487] In the Senate, Josiah Stoddard Johnston of Louisiana, but Connecticut-born, made a speech denouncing the doctrine of Nullification, asserting the supremacy of the National Government, and declaring that the Supreme Court was the final judge of the constitutionality of legislation. "It has fulfilled the design of its institution; ... it has given form and consistency to the constitution, and uniformity to the laws."[1488] Nullification, said Johnston, means "either disunion, or civil war; or, in the language of the times, disunion and blood."[1489] The Louisiana Senator sent his speech to Marshall, who answered that "it certainly is not among the least extraordinary of the doctrines of the present day that such a question [Nullification] should be seriously debated."[1490] All Nullification arguments were based on the Kentucky and Virginia Resolutions. Madison was still living, and Edward Everett asked him for his views. In a letter almost as Nationalist as Marshall's opinions, the venerable statesman replied at great length and with all the ability and clearness of his best years. The decision by States of the constitutionality of acts of Congress would destroy the Nation, he wrote. Such decision was the province of the National Judiciary. While the Supreme Court had been criticized, perhaps justly in some cases, "still it would seem that, with but few exceptions, the course of the judiciary has been hitherto sustained by the predominant sense of the nation." It was absurd to deny the "supremacy of the judicial power of the U. S. & denounce at the same time nullifying power in a State.... A law of the land" cannot be supreme "without a supremacy in the exposition & execution of the law." Nullification was utterly destructive of the Constitution and the Union.[1491] This letter, printed in the _North American Review_,[1492] made a strong impression on the North, but it only irritated the South. Marshall read it "with peculiar pleasure," he wrote Story: "M^r Madison ... is himself again. He avows the opinions of his best days, and must be pardoned for his oblique insinuations that some of the opinions of our Court are not approved. Contrast this delicate hint with the language M^r Jefferson has applied to us. He [Madison] is attacked ... by our Enquirer, who has arrayed his report of 1799 against his letter. I never thought that report could be completely defended; but M^r Madison has placed it upon its best ground, that the language is incautious, but is intended to be confined to a mere declaration of opinion, or is intended to refer to that ultimate right which all admit, to resist despotism, a right not exercised under a constitution, but in opposition to it."[1493] At a banquet on April 15, 1830, in celebration of Jefferson's birthday, Jackson had given a warning not to be misunderstood except by Nullifiers who had been blinded and deafened by their new political religion. "The Federal Union;--it must be preserved," was the solemn and inspiring toast proposed by the President. Southern leaders gave no heed. They apparently thought that Jackson meant to endorse Nullification, which, most illogically, they always declared to be the only method of preserving the Union peaceably. Their denunciation of the Tariff grew ever louder; their insistence on Nullification ever fiercer, ever more determined. To a committee of South Carolina Union men who invited him to their Fourth of July celebration at Charleston in 1831, Jackson sent a letter which plainly informed the Nullifiers that if they attempted to carry out their threats, the National Government would forcibly suppress them.[1494] At last the eyes of the South were opened. At last the South understood the immediate purpose of that enigmatic and self-contradictory man who ruled America, at times, in the spirit of the Czars of Russia; at times, in the spirit of the most compromising of opportunists. Jackson's outgiving served only to enrage the South and especially South Carolina. The Legislature of that State replied to the President's letter thus: "Is this Legislature to be schooled and rated by the President of the United States? Is it to legislate under the sword of the Commander-in-Chief?... This is a confederacy of sovereign States, and each may withdraw from the confederacy when it chooses."[1495] Marshall saw clearly what the outcome was likely to be, but yielded slowly to the despair so soon to master him. "Things to the South wear a very serious aspect," he tells Story. "If we can trust appearances the leaders are determined to risk all the consequences of dismemberment. I cannot entirely dismiss the hope that they may be deserted by their followers--at least to such an extent as to produce a pause at the Rubicon. They undoubtedly believe that Virginia will support them. I think they are mistaken both with respect to Virginia and North Carolina. I do not think either State will embrace this mad and wicked measure. New Hampshire and Maine seem to belong to the tropics. It is time for New Hampshire to part with Webster and Mason. She has no longer any use for such men."[1496] As the troubled weeks passed, Marshall's apprehension increased. Story, profoundly concerned, wrote the Chief Justice that he could see no light in the increasing darkness. "If the prospects of our country inspire you with gloom," answered Marshall, "how do you think a man must be affected who partakes of all your opinions and whose geographical position enables him to see a great deal that is concealed from you? I yield slowly and reluctantly to the conviction that our constitution cannot last. I had supposed that north of the Potowmack a firm and solid government competent to the security of rational liberty might be preserved. Even that now seems doubtful. The case of the south seems to me to be desperate. Our opinions are incompatible with a united government even among ourselves. The union has been prolonged thus far by miracles. I fear they cannot continue."[1497] Congress heeded the violent protest of South Carolina--perhaps it would be more accurate to say that Congress obeyed Andrew Jackson. In 1832 it reduced tariff duties; but the protective policy was retained. The South was infuriated--if the principle were recognized, said Southern men, what could they expect at a later day when this capitalistic, manufacturing North would be still stronger and the unmoneyed and agricultural South still weaker? South Carolina especially was frantic. The spirit of the State was accurately expressed by R. Barnwell Smith at a Fourth of July celebration: "If the fire and the sword of war are to be brought to our dwellings, ... let them come! Whilst a bush grows which may be dabbled with blood, or a pine tree stands to support a rifle, let them come!"[1498] At meetings all over the State treasonable words were spoken. Governor James Hamilton, Jr., convened the Legislature in special session and the election of a State convention was ordered. "Let us act, next October, at the ballot box--next November, in the state house--and afterwards, should any further action be necessary, let it be where our ancestors acted, _in the field of battle_";[1499] such were the toasts proposed at banquets, such the sentiments adopted at meetings. On November 24, 1832, the State Convention, elected[1500] to consider the new Tariff Law, adopted the famous Nullification Ordinance which declared that the Tariff Acts of 1828 and 1832 were "null, void, and no law"; directed the Legislature to take measures to prevent the enforcement of those acts within South Carolina; forbade appeal to the Supreme Court of the United States from South Carolina courts in any case where the Tariff Law was involved; and required all State officers, civil and military, to take oath to "obey, execute and enforce this Ordinance, and such act or acts of the Legislature as may be passed in pursuance thereof." The Ordinance set forth that "we, the People of South Carolina, ... _Do further Declare_, that we will not submit to the application of force, on the part of the Federal Government, to reduce this State to obedience; but that we will consider" any act of the National Government to enforce the Tariff Laws "as inconsistent with the longer continuance of South Carolina in the Union: and that the People of this State ... will forthwith proceed to organize a separate Government, and to do all other acts and things which sovereign and independent States may of right do."[1501] Thereupon the Convention issued an address to the people.[1502] It was long and, from the Nullification point of view, very able; it ended in an exalted, passionate appeal: "Fellow citizens, the die is now cast. NO MORE TAXES SHALL BE PAID HERE.... Prepare for the crisis, and ... meet it as becomes men and freemen.... Fellow citizens, DO YOUR DUTY TO YOUR COUNTRY, AND LEAVE THE CONSEQUENCES TO GOD."[1503] Excepting only at the outbreak of war could a people be more deeply stirred than were all Americans by the desperate action of South Carolina. In the North great Union meetings were held, fervid speeches made, warlike resolutions adopted. The South, at first, seemed dazed. Was war at hand? This was the question every man asked of his neighbor. A pamphlet on the situation, written by some one in a state of great emotion, had been sent to Marshall, and Judge Peters had inquired about it, giving at the same time the name of the author. "I am not surprised," answered Marshall, "that he [the author] is excited by the doctrine of nullification. It is well calculated to produce excitement in all.... Leaving it to the courts and the custom house will be leaving it to triumphant victory, and to victory which must be attended with more pernicious consequences to our country and with more fatal consequences to its reputation than victory achieved in any other mode which rational men can devise."[1504] If Nullification must prevail, John Marshall preferred that it should win by the sword rather than through the intimidation of courts. Jackson rightly felt that his reëlection meant that the country in general approved of his attitude toward Nullification as well as that toward the Bank. He promptly answered the defiance of South Carolina. On December 10, 1832, he issued his historic Proclamation. Written by Edward Livingston,[1505] Secretary of State, it is one of the ablest of American state papers. Moderate in expression, simple in style, solid in logic, it might have been composed by Marshall himself. It is, indeed, a restatement of Marshall's Nationalist reasoning and conclusions. Like the argument in Webster's Reply to Hayne, Jackson's Nullification Proclamation was a repetition of those views of the Constitution and of the nature of the American Government for which Marshall had been fighting since Washington was made President. As in Webster's great speech, sentences and paragraphs are in almost the very words used by Marshall in his Constitutional opinions, so in Jackson's Proclamation the same parallelism exists. Gently, but firmly, and with tremendous force, in the style and spirit of Abraham Lincoln rather than of Andrew Jackson, the Proclamation makes clear that the National laws will be executed and resistance to them will be put down by force of arms.[1506] The Proclamation was a triumph for Marshall. That the man whom he distrusted and of whom he so disapproved, whose election he had thought to be equivalent to a dissolution of the Union, should turn out to be the stern defender of National solidarity, was, to Marshall, another of those miracles which so often had saved the Republic. His disapproval of Jackson's rampant democracy, and whimsical yet arbitrary executive conduct, turned at once to hearty commendation. "Since his last proclamation and message," testifies Story, "the Chief Justice and myself have become his warmest supporters, and shall continue so just as long as he maintains the principles contained in them. Who would have dreamed of such an occurrence?"[1507] Marshall realized, nevertheless, that even the bold course pursued by the President could not permanently overcome the secession convictions of the Southern people. The Union men of South Carolina who, from the beginning of the Nullification movement, had striven earnestly to stay its progress, rallied manfully.[1508] Their efforts were futile--disunion sentiment swept the State. "With ... indignation and contempt," with "defiance and scorn," most South Carolinians greeted the Proclamation[1509] of the man who, only three years before, had been their idol. To South Carolinians Jackson was now "a tyrant," a would-be "Cæsar," a "Cromwell," a "Bonaparte."[1510] The Legislature formally requested Hayne, now Governor, to issue a counter-proclamation,[1511] and adopted spirited resolutions declaring the right of any State "to secede peaceably from the Union." One count in South Carolina's indictment of the President was thoroughly justified--his approval of Georgia's defiance of Marshall and the Supreme Court. Jackson's action, declared the resolutions, was the more "extraordinary, that he has silently, and ... with entire approbation, witnessed our sister state of Georgia avow, act upon, and carry into effect, even to the taking of life, principles identical with those now denounced by him in South Carolina." The Legislature finally resolved that the State would "repel force by force, and, relying upon the blessing of God, will maintain its liberty at all hazards."[1512] Swiftly Hayne published his reply to the President's Proclamation. It summed up all the arguments for the right of a State to decide the constitutionality of acts of Congress, that had been made since the Kentucky Resolutions were written by Jefferson--that "great Apostle of American liberty ... who has consecrated these principles, and left them as a legacy to the American people, recorded by his own hand." It was Jefferson, said Hayne, who had first penned the immortal truth that "NULLIFICATION" of unconstitutional acts of Congress was the "RIGHTFUL REMEDY" of the States.[1513] In his Proclamation Jackson had referred to the National Judiciary as the ultimate arbiter of the constitutionality of National laws. How absurd such a claim by such a man, since that doctrine "has been denied by none more strongly than the President himself" in the Bank controversy and in the case of the Cherokees! "And yet when it serves the purpose of bringing odium on South Carolina, 'his native State,' the President has no hesitation in regarding the attempt of a State to release herself from the control of the Federal Judiciary, in a matter affecting her sovereign rights, as a violation of the Constitution."[1514] In closing, Governor Hayne declares that "the time has come when it must be seen, whether the people of the several States have indeed lost the spirit of the revolution, and whether they are to become the willing instruments of an unhallowed despotism. In such a sacred cause, South Carolina will feel that she is not striking for her own, but the liberties of the Union and the RIGHTS OF MAN."[1515] Instantly[1516] the Legislature enacted one law to prevent the collection of tariff duties in South Carolina;[1517] another authorizing the Governor to "order into service the whole military force of this State" to resist any attempt of the National Government to enforce the Tariff Acts.[1518] Even before Hayne's Proclamation was published, extensive laws had been passed for the reorganization of the militia, and the Legislature now continued to enact similar legislation. In four days fourteen such acts were passed.[1519] The spirit and consistency of South Carolina were as admirable as her theory was erroneous and narrow. If she meant what she had said, the State could have taken no other course. If, moreover, she really intended to resist the National Government, Jackson had given cause for South Carolina's militant action. As soon as the Legislature ordered the calling of the State Convention to consider the tariff, the President directed the Collector at Charleston to use every resource at the command of the Government to collect tariff duties. The commanders of the forts at Charleston were ordered to be in readiness to repel any attack. General Scott was sent to the scene of the disturbance. Military and naval dispositions were made so as to enable the National Government to strike quickly and effectively.[1520] Throughout South Carolina the rolling of drums and blare of bugles were heard. Everywhere was seen the blue cockade with palmetto button.[1521] Volunteers were called for,[1522] and offered themselves by thousands; in certain districts "almost the entire population" enlisted.[1523] Some regiments adopted a new flag, a banner of red with a single black star in the center.[1524] Jackson attempted to placate the enraged and determined State. In his fourth annual Message to Congress he barely mentioned South Carolina's defiance, but, for the second time, urgently recommended a reduction of tariff duties. Protection, he said, "must be ultimately limited to those articles of domestic manufacture which are indispensable to our safety in time of war.... Beyond this object we have already seen the operation of the system productive of discontent."[1525] Other Southern States, although firmly believing in South Carolina's principles and sympathetic with her cause, were alarmed by her bold course. Virginia essayed the rôle of mediator between her warlike sister and the "usurping" National Government. In his Message to the Legislature, Governor John Floyd stoutly defended South Carolina--"the land of Sumpter [_sic_] and of Marion." "Should force be resorted to by the federal government, the horror of the scenes hereafter to be witnessed cannot now be pictured.... What surety has any state for her existence as a sovereign, if a difference of opinion should be punished by the sword as treason?" The situation calls for a reference of the whole question to "the PEOPLE of the states. On you depends in a high degree the future destiny of this republic. It is for you now to say whether the brand of civil war shall be thrown into the midst of these states."[1526] Mediative resolutions were instantly offered for the appointment of a committee "to take into consideration the relations existing between the state of South Carolina and the government of the United States," and the results to each and to Virginia flowing from the Ordinance of Nullification and Jackson's Proclamation. The committee was to report "such measures as ... it may be expedient for Virginia to adopt--the propriety of recommending a general convention to the states--and such a declaration of our views and opinions as it may be proper for her to express in the present fearful impending crisis, for the protection of the right of the states, the restoration of harmony, and the preservation of the union."[1527] Only five members voted against the resolution.[1528] The committee was appointed and, on December 20, 1832, reported a set of resolutions--"worlds of words," as Niles aptly called them--disapproving Jackson's Proclamation; applauding his recommendation to Congress that the tariff be reduced; regretting South Carolina's hasty action; deprecating "the intervention of arms on either side"; entreating "our brethren in S. Carolina to pause in their career"; appealing to Jackson "to withstay the arm of force"; instructing Virginia Senators and requesting Virginia Representatives in Congress to do their best to "procure an immediate reduction of the tariff"; and appointing two commissioners to visit South Carolina with a view to securing an adjustment of the dispute.[1529] With painful anxiety and grave alarm, Marshall, then in Richmond, watched the tragic yet absurd procession of events. Much as the doings and sayings of the mediators and sympathizers with Nullification irritated him, serious as were his forebodings, the situation appealed to his sense of humor. He wrote Story an account of what was going on in Virginia. No abler or more accurate statement of the conditions and tendencies of the period exists. Marshall's letter is a document of historical importance. It reveals, too, the character of the man. It was written in acknowledgment of the receipt of "a proof sheet" of a page of Story's "Commentaries on the Constitution of the United States," dedicating that work to Marshall. "I am ... deeply penetrated," says Marshall, "by the evidence it affords of the continuance of that partial esteem and friendship which I have cherished for so many years, and still cherish as one of the choicest treasures of my life. The only return I can make is locked up in my own bosom, or communicated in occasional conversation with my friends." He congratulates Story on having finished his "Herculean task." He is sure that Story has accomplished it with ability and "correctness," and is "certain in advance" that he will read "every sentence with entire approbation. It is a subject on which we concur exactly. Our opinions on it are, I believe, identical. Not so with Virginia or the South generally." Marshall then relates what has happened in Richmond: "Our legislature is now in session, and the dominant party receives the message of the President to Congress with enthusiastic applause. Quite different was the effect of his proclamation. That paper astonished, confounded, and for a moment silenced them. In a short time, however, the power of speech was recovered, and was employed in bestowing on its author the only epithet which could possibly weigh in the scales against the name of 'Andrew Jackson,' and countervail its popularity. "Imitating the Quaker who said the dog he wished to destroy was mad, they said Andrew Jackson had become a Federalist, even an ultra Federalist. To have said he was ready to break down and trample on every other department of the government would not have injured him, but to say that he was a Federalist--a convert to the opinions of Washington, was a mortal blow under which he is yet staggering. "The party seems to be divided. Those who are still true to their President pass 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 anticipate 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 Constitution 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 entitled 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 ambassador 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 nobody, 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 constitution? 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 Constitution 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 Constitution 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 Constitution. 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 Constitution, 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 constitute 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 entitled "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 constitutional 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 constitutional 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 circumstances? 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 Fanny 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 Constitution 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 assisted in framing and supporting the national Constitution; and whose maturer years have been devoted to the task of unfolding its powers, and illustrating its principles." As the expounder of the Constitution, "the common consent of your countrymen has admitted you to stand without a rival. Posterity will assuredly 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 associate 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 Constitutional 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 Constitutional 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 endorsement 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 Constitution. 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 passengers. 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 Constitution. 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 Constitutional; 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 constitutional 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 constitutional 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 pronounced views.[1558] [Illustration: Associate 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 Constitutional 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 titles 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 God," 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] At six o'clock in the evening of Monday, July 6, 1835, John Marshall died, in his eightieth year, in the city where American Independence was proclaimed and the American Constitution was born--the city which, a patriotic soldier, he had striven to protect and where he had received his earliest national recognition. Without pain, his mind as clear and strong as ever, he "met his fate with the fortitude of a Philosopher, and the resignation of a Christian," testifies Dr. Nathaniel Chapman, who was present.[1568] By Marshall's direction, the last thing taken from his body after he expired was the locket which his wife had hung about his neck just before she died.[1569] The morning after his death, the bar of Philadelphia met to pay tribute to Marshall, and at half-past five of the same day a town meeting was held for the same purpose.[1570] Immediately afterward, his body was sent by boat to Richmond. The bench, bar, and hundreds of citizens of Philadelphia accompanied the funeral party to the vessel. During the voyage a transfer was made to another craft.[1571] A committee, consisting of Major-General Winfield Scott, of the United States Army, Henry Baldwin, Associate Justice of the Supreme Court, Richard Peters, formerly Judge for the District of Pennsylvania, John Sergeant, Edward D. Ingraham, and William Rawle, of the Philadelphia bar, went to Richmond. In the late afternoon of July 9, 1835, the steamboat Kentucky, bearing Marshall's body, drew up at the Richmond wharf. Throughout the day the bells had been tolling, the stores were closed, and, as the vessel came within sight, a salute of three guns was fired. All Richmond assembled at the landing. An immense procession marched to Marshall's house,[1572] where he had requested that his body be first taken, and then to the "New Burying Ground," on Shockoe Hill. There Bishop Richard Channing Moore of the Episcopal Church read the funeral service, and John Marshall was buried by the side of his wife. When his ancient enemy and antagonist, the Richmond _Enquirer_, published the news of Marshall's death, it expressed briefly its true estimate of the man. It would be impossible, said the _Enquirer_, to over-praise Marshall's "brilliant talents." It would be "a more grateful incense" to his memory to say "that he was as much beloved as he was respected.... There was about him so little of 'the insolence of office,' and so much of the benignity of the man, that his presence always produced ... the most delightful impressions. There was something irresistibly winning about him." Strangers could hardly be persuaded that "in the plain, unpretending ... man who told his anecdote and enjoyed the jest--they had been introduced to the Chief Justice of the United States, whose splendid powers had filled such a large space in the eye of mankind."[1573] The Richmond _Whig and Public Advertiser_ said that "no man has lived or died in this country, save its father George Washington alone, who united such a warmth of affection for his person, with so deep and unaffected a respect for his character, and admiration for his great abilities. No man ever bore public honors with so meek a dignity ... It is hard ... to conceive of a more perfect character than his, for who can point to a vice, scarcely to a defect--or who can name a virtue that did not shine conspicuously in his life and conduct?"[1574] The day after the funeral the citizens of Richmond gathered at and about the Capitol, again to honor the memory of their beloved neighbor and friend. The resolutions, offered by Benjamin Watkins Leigh, declared that the people of Richmond knew "better than any other community can know" Marshall's private and public "virtues," his "wisdom," "simplicity," "self-denial," "unbounded charity," and "warm benevolence towards all men." Since nothing they can say can do justice to "such a man," the people of Richmond "most confidently trust, to History alone, to render due honors to his memory, by a faithful and immortal record of his wisdom, his virtues and his services."[1575] All over the country similar meetings were held, similar resolutions adopted. Since the death of Washington no such universal public expressions of appreciation and sorrow had been witnessed.[1576] The press of the country bore laudatory editorials and articles. Even Hezekiah Niles, than whom no man had attacked Marshall's Nationalist opinions more savagely, lamented his death, and avowed himself unequal to the task of writing a tribute to Marshall that would be worthy of the subject. "'A great man has fallen in Israel,'" said Niles's _Register_. "Next to WASHINGTON, only, did he possess the reverence and homage of the heart of the American people."[1577] One of the few hostile criticisms of Marshall's services appeared in the _New York Evening Post_ over the name of "Atlantic."[1578] This paper had, by now, departed from the policy of its Hamiltonian founder. "Atlantic" said that Marshall's "political doctrines ... were of the ultra federal or aristocratic kind.... With Hamilton" he "distrusted the virtue and intelligence of the people, and was in favor of a strong and vigorous General Government, at the expense of the rights of the States and of the people." While he was "sincere" in his beliefs and "a good and exemplary man" who "truly loved his country ... he has been, all his life long, a stumbling block ... in the way of democratic principles.... His situation ... at the head of an important tribunal, constituted in utter defiance of the very first principles of democracy, has always been ... an occasion of lively regret. That he is at length removed from that station is a source of satisfaction."[1579] The most intimate and impressive tributes came, of course, from Virginia. Scarcely a town in the State that did not hold meetings, hear orations, adopt resolutions. For thirty days the people of Lynchburg wore crape on the arm.[1580] Petersburg honored "the Soldier, the Orator, the Patriot, the Statesman, the Jurist, and above all, the good and virtuous man."[1581] Norfolk testified to his "transcendent ability, perfect integrity and pure patriotism."[1582] For weeks the Virginia demonstrations continued. That at Alexandria was held five weeks after his death. "The flags at the public square and on the shipping were displayed at half mast; the bells were tolled ... during the day, and minute guns fired by the Artillery"; there was a parade of military companies, societies and citizens, and an oration by Edgar Snowden.[1583] The keenest grief of all, however, was felt by Marshall's intimates of the Quoit Club of Richmond. Benjamin Watkins Leigh proposed, and the club resolved, that, as to the vacancy caused by Marshall's death, "there should be no attempt to fill it ever; but that the number of the club should remain one less than it was before his death."[1584] [Illustration: _The Grave of John Marshall_] Story composed this "inscription for a cenotaph": "To Marshall reared--the great, the good, the wise; Born for all ages, honored in all skies; His was the fame to mortals rarely given, Begun on earth, but fixed in aim on heaven. Genius, and learning, and consummate skill, Moulding each thought, obedient to the will; Affections pure, as e'er warmed human breast, And love, in blessing others, doubly blest; Virtue unspotted, uncorrupted truth, Gentle in age, and beautiful in youth;-- These were his bright possessions. These had power To charm through life and cheer his dying hour. Are these all perished? No! but snatched from time, To bloom afresh in yonder sphere sublime. Kind was the doom (the fruit was ripe) to die, Mortal is clothed with immortality."[1585] Upon his tomb, however, were carved only the words he himself wrote for that purpose two days before he died, leaving nothing but the final date to be supplied: JOHN MARSHALL The son of Thomas and Mary Marshall Was born on the 24th of September, 1755; intermarried with Mary Willis Ambler the 3d of January, 1783; departed this life the 6th day of July, 1835. FOOTNOTES: [1390] Marshall to Story, June 26, 1831, _Proceedings, Mass. Hist. Soc. 2d_ Series, XIV, 344-45. [1391] Same to same, Oct. 12, 1831, _ib._ 346-48. [1392] Marshall to Story, Oct. 12, 1831, _Proceedings, Mass. Hist. Soc._ 2d Series, XIV, 347. A rumor finally got about that Marshall contemplated resigning. (See Niles, XL, 90.) [1393] The resolutions of the bar had included the same idea, and Marshall emphasized it by reiterating it in his response. [1394] Hazard's _Pennsylvania Register_, as quoted in Dillon, III, 430-33. The artist referred to was either Thomas Sully, or Henry Inman, who had studied under Sully. During the following year, Inman painted the portrait and it was so excellent that it brought the artist his first general recognition. The original now hangs in the rooms of the Philadelphia Law Association. A reproduction of it appears as the frontispiece of this volume. [1395] Randolph: _A Memoir on the Life and Character of Philip Syng Physick, M.D._ 97-99. [1396] Marshall to Story, Nov. 10, 1831, _Proceedings, Mass. Hist. Soc._ 2d Series, XIV, 348-49. [1397] Story to Peters, Oct. 29, 1831, Story, II, 70. [1398] Marshall to his wife, Oct. 6, 1831, MS. [1399] This is the only indication in any of Marshall's letters that his wife had written him. [1400] Mrs. Marshall had a modest fortune of her own, bequeathed to her by her uncle. She invested this quite independently of her husband. (Leigh to Biddle, Sept. 7, 1837, McGrane, 289.) [1401] Marshall to his wife, Nov. 8, 1831, MS. [1402] Terhune, 98. This locket is now in the possession of Marshall's granddaughter, Miss Emily Harvie of Richmond. [1403] Story to his wife, March 4, 1832, Story, II, 86-87. Soon after the death of his wife, Marshall made his will "entirely in [his] ... own handwriting." A more informal document of the kind seldom has been written. It is more like a familiar letter than a legal paper; yet it is meticulously specific. "I owe nothing on my own account," he begins. (He specifies one or two small obligations as trustee for women relatives and as surety for "considerable sums" for his son-in-law, Jacquelin B. Harvie.) The will shows that he owns bank and railroad stock and immense quantities of land. He equally divides his property among his children, making special provision that the portion of his daughter Mary shall be particularly safeguarded. One item of the will is curious: "I give to each of my grandsons named John one thousand acres, part of my tract of land called Canaan lying in Randolph county. If at the time of my death either of my sons should have no son living named John, then I give the thousand acres to any son he may have named Thomas, in token for my love for my father and veneration for his memory. If there should be no son named John or Thomas, then I give the land to the eldest son and if no sons to the daughters." He makes five additions to his will, three of which he specifically calls "codicils." One of these is principally "to emancipate my faithful servant Robin and I direct his emancipation if he _chuses_ to conform to the laws on that subject, requiring that he should leave the state or if permission can be obtained for his continuing to reside in it." If Robin elects to go to Liberia, Marshall gives him one hundred dollars. "If he does not go there I give him fifty dollars." In case it should be found "impracticable to liberate" Robin, "I desire that he may choose his master among my sons, or if he prefer my daughter that he may be held in trust for her and her family as is the other property bequeathed in trust for her, and that he may always be treated as a faithful and meritorious servant." (Will and Codicils of John Marshall, Records of Henrico County, Richmond, and Fauquier County, Warrenton, Virginia.) [1404] Meade, II, footnote to 222. It would seem that Marshall showed this tribute to no one during his lifetime except, perhaps, to his children. At any rate, it was first made public in Bishop Meade's book in 1857. [1405] Statements to the author by Miss Elizabeth Marshall of "Leeds Manor," and by Judge J. K. N. Norton of Alexandria, Va. [1406] Statement to the author by Miss Emily Harvie. Most of Marshall's letters to Story during these years were written from Richmond. [1407] Story to Sumner, Feb. 6, 1833, Story, II, 120. [1408] See _infra_, 540-51. [1409] See Catterall, 407, 421-22, 467; and see especially Parton: _Jackson_, III, 257-58. [1410] Catterall, Appendix IX, 508. [1411] _Ib._ chaps. V and VII. Biddle was appointed director of the Bank by President Monroe in 1819, and displayed such ability that, in 1823, he was elected president of the institution. Not until he received information that Jackson was hostile to the Bank did Biddle begin the morally wrong and practically unwise policy of loaning money without proper security to editors and members of Congress. [1412] Parton: _Jackson_, III, 260. [1413] Richardson, II, 462. [1414] _Ib._ 528-29 [1415] See Catterall, 235. For account of the fight for the Bank Bill see _ib._ chap. X. [1416] Richardson, II, 580-82. [1417] _Ib._ 582-83. [1418] Richardson, II, 584. [1419] Jackson's veto message was used with tremendous effect in the Presidential campaign of 1832. There cannot be the least doubt that the able politicians who managed Jackson's campaign and, indeed, shaped his Administration, designed that the message should be put to this use. These politicians were William B. Lewis, Amos Kendall, Martin Van Buren, and Samuel Swartwout. [1420] Richardson, II, 590-91. [1421] Marshall to Story, Aug. 2, 1832, _Proceedings, Mass. Hist. Soc._ 2d Series, XIV, 349-51. [1422] Richardson, II, 638. There was a spirited contest in the House over this bill. (See _Debates_, 22d Cong. 1st Sess. 2438-44, 3248-57, 3286.) It reached the President at the end of the session, so that he had only to refuse to sign it, in order to kill the measure. [1423] In fact Jackson did send a message to Congress on December 6, 1832, explaining his reasons for having let the bill die. (Richardson, II, 638-39.) [1424] Marshall to Story, Aug. 2, 1832, _Proceedings, Mass. Hist. Soc._ 2d Series, XIV, 350. [1425] Marshall to Story, Dec. 3, 1834, _Proceedings, Mass. Hist. Soc._ 2d Series, XIV, 359. The outspoken and irritable Kent expressed the conservatives' opinion of Jackson almost as forcibly as Ames stated their views of Jefferson: "I look upon Jackson as a detestable, ignorant, reckless, vain and malignant Tyrant.... This American Elective Monarchy frightens me. The Experiment, with its foundations laid on universal Suffrage and an unfettered and licentious Press is of too violent a nature for our excitable People. We have not in our large cities, if we have in our country, moral firmness enough to bear it. _It racks the machine too much._" (Kent to Story, April 11, 1834, Story MSS. Mass. Hist. Soc.) In this letter Kent perfectly states Marshall's convictions, which were shared by nearly every judge and lawyer in America who was not "in politics." [1426] See _supra_, 420. [1427] _Annals_, 18th Cong. 1st Sess. 2097. [1428] _Annals_, 18th Cong. 1st Sess. 2163. [1429] _Ib._ 2208. [1430] _Debates_, 20th Cong. 1st Sess. 746. [1431] _Ib._ 2431. [1432] _Ib._ 2434. [1433] _Ib._ 2435. [1434] _Debates_, 20th Cong. 1st Sess. 2437. [1435] This was the plan of George McDuffie. Calhoun approved it. (Houston: _A Critical Study of Nullification in South Carolina_, 70-71.) [1436] _Ib._ [1437] _Ib._ 75. [1438] Calhoun's "Exposition" was reported by a special committee of the South Carolina House of Representatives on December 19, 1828. It was not adopted, however, but was printed, and is included in _Statutes at Large of South Carolina_, edited by Thomas Cooper, I, 247-73. [1439] Jefferson to Giles, Dec. 26, 1825, _Works_: Ford, XII, 425-26. [1440] Niles, XXV, 48. [1441] See Phillips: _Georgia and State Rights_, in _Annual Report, Am. Hist. Ass'n_ (1901), II, 71. [1442] Resolution of Dec. 27, 1827, _Laws of Georgia, 1827_, 249; and see Phillips, 72. [1443] Act of Dec. 20, _Laws of Georgia, 1828_, 88-89. [1444] Parton: _Jackson_, III, 272. [1445] Phillips, 72. [1446] Act of Dec. 22, _Laws of Georgia, 1830_, 114-17. [1447] Act of Dec. 23, _ib._ 118; Dec. 21, _ib._ 127-43; Dec. 22, _ib._ 145-46 [1448] Wirt to Carr, June 21, 1830, Kennedy, II, 292-93. [1449] See _Debates_, 21st Cong. 1st Sess. 309-57, 359-67, 374-77, 994-1133. For the text of this bill as it passed the House see _ib._ 1135-36. It became a law May 28, 1830. (_U.S. Statutes at Large_, IV, 411.) For an excellent account of the execution of this measure see Abel: _The History of the Events Resulting in Indian Consolidation West of the Mississippi River, Annual Report, Am. Hist. Ass'n_, 1906, I, 381-407. This essay, by Dr. Anne Héloise Abel, is an exhaustive and accurate treatment of the origin, development, and execution of the policy pursued by the National and State Governments toward the Indians. Dr. Abel attaches a complete bibliography and index to her brochure. [1450] 5 Peters, 1. [1451] Marshall to Carr, 1830, Kennedy, II, 296-97. As a young man Marshall had thought so highly of Indians that he supported Patrick Henry's plan for white amalgamation with them. (See vol. I, 241, of this work.) Yet he did not think our general policy toward the Indians had been unwise. They were, he wrote Story, "a fierce and dangerous enemy whose love of war made them sometimes the aggressors, whose numbers and habits made them formidable, and whose cruel system of warfare seemed to justify every endeavour to remove them to a distance from civilized settlements. It was not until after the adoption of our present government that respect for our own safety permitted us to give full indulgence to those principles of humanity and justice which ought always to govern our conduct towards the aborigines when this course can be pursued without exposing ourselves to the most afflicting calamities. That time, however, is unquestionably arrived, and every oppression now exercised on a helpless people depending on our magnanimity and justice for the preservation of their existence impresses a deep stain on the American character. I often think with indignation on our disreputable conduct (as I think) in the affair of the Creeks of Georgia." (Marshall to Story, Oct. 29, 1829, _Proceedings, Mass. Hist. Soc._ 2d Series, XIV, 337-38.) [1452] Niles, XXXIX, 338. [1453] _Ib._ 353. [1454] _Memoirs, J. Q. A._: Adams, VIII, 262-63. [1455] The argument for the Cherokee Nation was made March 12 and 14, 1831. [1456] 5 Peters, 15. [1457] 5 Peters, 16-17. [1458] _Ib._ 17-18. [1459] 5 Peters, 20. Justice Smith Thompson dissented in an opinion of immense power in which Story concurred. These two Justices maintained that in legal controversies, such as that between the Cherokees and Georgia, the Indian tribe must be treated as a foreign nation. (_Ib._ 50-80.) Thompson's opinion was as Nationalist as any ever delivered by Marshall. It well expressed the general opinion of the North, which was vigorously condemnatory of Georgia as the ruthless despoiler of the rights of the Indians and the robber of their lands. [1460] See _supra_, 121-25. [1461] Phillips, 79. [1462] See McMaster, VI, 47-50. [1463] Phillips, 81. [1464] _Ib._ 80-81. [1465] 6 Peters, 534-35. [1466] Story to his wife, Feb. 26, 1832, Story, II, 84. [1467] 6 Peters, 536. [1468] _Ib._ 537-42. [1469] _Ib._ 542. [1470] _Ib._ 542-61 [1471] See vol. III, 504-13, of this work. [1472] 6 Peters, 561-63. [1473] Story to Ticknor, March 8, 1832, Story, II, 83. [1474] Lumpkin's Message to the Legislature, Nov. 6, 1832, as quoted in Phillips, 82. [1475] Greeley: _The American Conflict_, I, 106; and see Phillips, 80. [1476] When the Georgia Legislature first met after the decision of the Worcester case, acts were passed to strengthen the lottery and distribution of Cherokee lands (Acts of Nov. 14, 22, and Dec. 24, 1832, _Laws of Georgia, 1832_, 122-25, 126, 127) and to organize further the Cherokee territory under the guise of protecting the Indians. (Act of Dec. 24, 1832, _ib_. 102-05.) Having demonstrated the power of the State and the impotence of the highest court of the Nation, the Governor of Georgia, one year after Marshall delivered his opinion, pardoned Worcester and Butler, but not without protests from the people. Two years later, Georgia's victory was sealed by a final successful defiance of the Supreme Court. One James Graves was convicted of murder; a writ of error was procured from the Supreme Court; and a citation issued to Georgia as in the case of George Tassels. The high spirit of the State, lifted still higher by three successive triumphs over the Supreme Court, received the order with mingled anger and derision. Governor Lumpkin threatened secession: "Such attempts, if persevered in, will eventuate in the dismemberment and overthrow of our great confederacy," he told the Legislature. (Governor Lumpkin's Special Message to the Georgia Legislature, Nov. 7, 1834, as quoted in Phillips, 84.) The Indians finally were forced to remove to the Indian Territory. (See Phillips, 83.) Worcester went to his Vermont home. [1477] _Debates_, 21st Cong. 1st Sess. 58. The debate between Webster and Hayne occurred on a resolution offered by Senator Samuel Augustus Foot of Connecticut, "that the Committee on Public Lands be instructed to inquire into the expediency of limiting for a certain period the sales of public lands," etc. (_Ib._ 11.) The discussion of this resolution, which lasted more than three months (see _ib._ 11-302), quickly turned to the one great subject of the times, the power of the National Government and the rights of the States. It was on this question that the debate between Webster and Hayne took place. [1478] _Ib._ 64. Compare with Marshall's language in Cohens _vs._ Virginia, _supra_, 355. [1479] _Debates_, 21st Cong. 1st Sess. 73. [1480] See Marshall's statement of this principle, _supra_, 293, 355. [1481] _Debates_, 21st Cong. 1st Sess. 74. This was the Constitutional theory of the Nationalists. As a matter of fact, it was not, perhaps, strictly true. There can be little doubt that a majority of the people did not favor the Constitution when adopted by the Convention and ratified by the States. Had manhood suffrage existed at that time, and had the Constitution been submitted directly to the people, it is highly probable that it would have been rejected. (See vol. I, chaps, IX-XII, of this work.) [1482] _Debates_, 21st Cong. 1st Sess. 76. See chap, III, vol. III, of this work. [1483] _Debates_, 21st Cong. 1st Sess. 78. [1484] _Ib._ See Marshall's opinion in Cohens _vs._ Virginia, _supra_, 347-57. [1485] _Debates_, 21st Cong. 1st Sess. 80. [1486] Niles, XXXIX, 118. [1487] _Ib._ 330. [1488] _Debates_, 21st Cong. 1st Sess. 287. [1489] _Ib._ 285. [1490] Marshall to Johnston, May 22, 1830, MSS. "Society Collection," Pa. Hist. Soc. [1491] Madison to Everett, Aug. 28, 1830, _Writings_: Hunt, IX, 383-403. [1492] _North American Review_ (1830), XXXI, 537-46. [1493] Marshall to Story, Oct. 15, 1830, _Proceedings, Mass. Hist. Soc._ 2d Series, XIV, 342-43. [1494] Jackson to the Committee, June 14, 1831, Niles, XL, 351. [1495] _State Doc. Fed. Rel._: Ames, 167-68. [1496] Marshall to Story, Aug. 2, 1832, _Proceedings, Mass. Hist. Soc._ 2d Series, XIV, 350. [1497] Same to same, Sept. 22, 1832, _ib._ 351-52. [1498] Niles, XLII, 387. [1499] _Ib._ 388. [1500] Under Act of Oct. 26, 1832, _Statutes at Large of South Carolina_: Cooper, I, 309-10. [1501] _Statutes at Large of South Carolina_: Cooper, I, 329-31. [1502] _Ib._ 434-45. [1503] _Ib._ 444-45; also Niles, XLIII, 219-20. [1504] Marshall to Peters, Dec. 3, 1832, Peters MSS. Pa. Hist. Soc. [1505] See _supra_, footnote to 115. [1506] Richardson, II, 640-56; Niles, XLIII, 260-64. [1507] Story to his wife, Jan. 27, 1838, Story, II, 119. [1508] Niles, XLIII, 266-67. [1509] _Ib._ 287. [1510] _Ib._ [1511] _Statutes at Large of South Carolina_: Cooper, I, 355. [1512] _Ib._ 356-57. [1513] _Statutes at Large of South Carolina_: Cooper, I, 362. [1514] _Ib._ 360. [1515] _Ib._ 370. [1516] December 20, the same day that Hayne's Proclamation appeared. [1517] _Statutes at Large of South Carolina_: Cooper, I, 271-74. [1518] _Ib._ VIII, 562-64. [1519] _Ib._ 562-98. [1520] Parton: _Jackson_, III, 460-61, 472; Bassett: _Life of Andrew Jackson_, 564; MacDonald: _Jacksonian Democracy_, 156. [1521] Parton: _Jackson_, III, 459. [1522] Niles, XLIII, 312. [1523] _Ib._ 332. [1524] Parton: _Jackson_, III, 472. [1525] Richardson, II, 598-99. [1526] Niles, XLIII, 275. [1527] _Ib._ [1528] _Ib._ 276. [1529] Niles, XLIII, 394-96. The resolutions, as adopted, provided for only one commissioner. (See _infra_, 573.) [1530] _Writings and Speeches of Daniel Webster_ (Nat. ed.) XIII, 40-42. [1531] Marshall to Story, Dec. 25, 1832, _Proceedings_, _Mass. Hist. Soc._ 2d Series, XIV, 352-54. [1532] Niles, XLIII, 396-97; also _Statutes at Large of South Carolina_: Cooper, I, 381-83. [1533] Niles, XLIII, 397. For the details of Leigh's mission see _ib._ 377-93; also _Statutes at Large of South Carolina_: Cooper, I, 384-94. [1534] Niles, XLIII, 380-82. [1535] See Parton: _Jackson_, III, 475-82. [1536] Marshall to Story, April 24, 1833, _Proceedings, Mass. Hist. Soc._ 2d Series, XIV, 356-57. [1537] _Ib._ [1538] Same to same, Nov. 16, 1833, _ib._ 358. [1539] Marshall to Story, June 3, 1833, _Proceedings, Mass. Hist. Soc._ 2d Series, XIV, 358. [1540] Story ends his _Commentaries on the Constitution of the United States_ by a fervent, passionate, and eloquent appeal for the preservation, at all hazards, of the Constitution and the Union. [1541] Marshall to Story, July 31, 1833, Story, II, 135-36. [1542] Marshall to Story, Oct. 6, 1834, Story, II, 172-73. [1543] Story to his wife, Jan. 20, 1833, _ib._ 116. [1544] _Ib._ 117. [1545] Story to his wife, Jan. 20, 1833, Story, II, 116. [1546] July 4, 1826. [1547] Jefferson's attacks on Marshall in the X. Y. Z. affair. (See vol. II, 359-63, 368-69, of this work.) [1548] Marshall to Major Henry Lee, Jan. 20, 1832, MSS. Lib. Cong. In no collection, but, with a few unimportant letters, in a portfolio marked "M," sometimes referred to as "Marshall Papers." [1549] _Green Bag_, VIII, 463. [1550] Marshall to Story, July 3, 1829, _Proceedings, Mass. Hist Soc._ 2d Series, XIV, 340. [1551] Story to Marshall, January, 1833, Story, II, 132-33. This letter appears in Story's _Commentaries on the Constitution_, immediately after the title-page of volume I. Story's perfervid eulogium did not overstate the feeling--the instinct--of the public. Nathan Sargent, that trustworthy writer of reminiscences, testifies that, toward the end of Marshall's life, his name had "become a household word with the American people implying greatness, purity, honesty, and all the Christian virtues." (Sargent, I, 299.) [1552] Briscoe _vs._ The Commonwealth's Bank of the State of Kentucky, 8 Peters, 118 _et seq._ [1553] See _supra_, 509-13. [1554] Act of Dec. 25, _Laws of Kentucky, 1820_, 183-88. [1555] The Mayor, Aldermen and Commonalty of the City of New York _vs._ Miln, 8 Peters, 121 _et seq._ [1556] 11 Peters, 104. This was the first law against unrestricted immigration. [1557] 8 Peters, 122. [1558] These cases were not decided until 1837, when Roger Brooke Taney of Maryland took his seat on the bench as Marshall's successor. Philip Pendleton Barbour of Virginia succeeded Duval. Of the seven Justices, only one disciple of Marshall remained, Joseph Story. In the New York case the court held that the State law was a local police regulation. (11 Peters, 130-43; 144-53.) Story dissented in a signally able opinion of almost passionate fervor. "I have the consolation to know," he concludes, "that I had the entire concurrence ... of that great constitutional jurist, the late Mr. Chief Justice Marshall. Having heard the former arguments, his deliberate opinion was that the act of New York was unconstitutional, and that the present case fell directly within the principles established in the case of Gibbons v. Ogden." (_Ib._ 153-61.) In the Kentucky Bank case, decided immediately after the New York immigrant case, Marshall's opinion in Craig _vs._ Missouri was completely repudiated, although Justice McLean, who delivered the opinion of the court (_ib._ 311-28), strove to show that the judgment was within Marshall's reasoning. Story, of course, dissented, and never did that extraordinary man write with greater power and brilliancy. When the case was first argued in 1834, he said, a majority of the court "were decidedly of the opinion" that the Kentucky Bank Law was unconstitutional. "In principle it was thought to be decided by the case of Craig v. The State of Missouri." Among that majority was Marshall--"a name never to be pronounced without reverence." (_Ib._ 328.) In closing his great argument, Story says that the frankness and fervor of his language are due to his "reverence and affection" for Marshall. "I have felt an earnest desire to vindicate his memory.... I am sensible that I have not done that justice to his opinion which his own great mind and exalted talents would have done. But ... I hope that I have shown that there were solid grounds on which to rest his exposition of the Constitution. _His saltem accumulem donis, et fungar inani munere._" (11 Peters, 350.) [1559] Lessee of Samuel Smith _vs._ Robert Trabue's Heirs, 9 Peters, 4-6; U.S. _vs._ Nourse, _ib._ 11-32; Caldwell _et al. vs._ Carrington's Heirs, _ib._ 87-105; Bradley _vs._ The Washington, etc. Steam Packet Co. _ib._ 107-16; Delassus _vs._ U.S. _ib._ 118-36; Chouteau's Heirs _vs._ U.S. _ib._ 137-46; U.S. _vs._ Clarke, _ib._ 168-70; U.S. _vs._. Huertas, _ib._ 171-74; Field et _al. vs._ U.S. _ib._ 182-203; Mayor, etc. of New Orleans _vs._ De Armas and Cucullo, _ib._. 224-37; Life and Fire Ins. Co. of New York _vs._ Adams, _ib._ 571-605. [1560] _Ib._ 711-63. [1561] 9 Peters, 723. [1562] Story to Fay, March 2, 1835, Story, II, 193. [1563] Story to Peters, May 20, 1835, _ib._ 194. [1564] Kent's Journal, May 16, 1835, Kent MSS. Lib. Cong. [1565] Smith to Kent, June 13, 1835, Kent MSS. Lib. Cong. [1566] Randolph: _Physick_, 100-01. [1567] Story to Peters, June 19, 1835, Story, II, 199-200. [1568] Chapman to Brockenbrough, July 6, 1835, quoted in the Richmond _Enquirer_, July 10, 1835. Marshall died "at the Boarding House of Mrs. Crim, Walnut street below Fourth." (Philadelphia _Inquirer_, July 7, 1835.) Three of Marshall's sons were with him when he died. His eldest son, Thomas, when hastening to his father's bedside, had been killed in Baltimore by the fall upon his head of bricks from a chimney blown down by a sudden and violent storm. Marshall was not informed of his son's death. [1569] Terhune, 98. [1570] Philadelphia _Inquirer_, July 7, 1835. [1571] Niles, XLVIII, 322. [1572] Richmond _Enquirer_ July 10, 1835. [1573] _Ib._ [1574] Richmond _Whig and Public Advertiser_, July 10, 1835. [1575] Richmond _Enquirer_, July 14, 1835. [1576] See Sargent, I, 299. If the statements in the newspapers and magazines of the time are to be trusted, even the death of Jefferson called forth no such public demonstrations as were accorded Marshall. [1577] Niles, XLVIII, 321. [1578] Undoubtedly William Leggett, one of the editors. See Leggett: _A Collection of Political Writings_, II, 3-7. [1579] As reprinted in _Richmond Whig and Public Advertiser_, July 14, 1835. [1580] Richmond _Enquirer_, July 21, 1835. [1581] _Ib._ [1582] _Ib._ July 17, 1835. [1583] Alexandria _Gazette_, Aug. 13, 1835, reprinted in the Richmond _Enquirer_, Aug. 21, 1835. [1584] Magruder: _John Marshall_, 282. [1585] Story, II, 206. THE END WORKS CITED IN THIS VOLUME WORKS CITED IN THIS VOLUME _The material given in parentheses and following certain titles indicates the form in which those titles have been cited in the footnotes._ ABEL, ANNIE HÉLOISE. 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Branch Historical Papers. _American Colonization Society._ Annual Reports, 1-72. 1818-89. _American Historical Review._ Managing Editor, J. Franklin Jameson. Vols. 1-24. New York. 1896-1919. (_Am. Hist. Rev._) _American Jurist and Law Magazine._ 28 vols. Boston. 1829-43. _American Law Journal._ Edited by John E. Hall. 6 vols. Baltimore. 1808-17. _American State Papers._ Documents, Legislative and Executive, of the Congress of the United States. Selected and edited under the Authority of Congress. 38 vols. Washington. 1832-61. [Citations in this work are from "Foreign Relations" (_Am. State Papers, For. Rel._); and "Finance" (_Am. State Papers, Finance_).] _American Turf Register and Sporting Magazine._ Edited by J. S. Skinner. 7 vols. Baltimore. 1830-40. AMES, FISHER. Works. Edited by Seth Ames. 2 vols. Boston. 1854. (_Ames_: Ames.) AMES, HERMAN VANDENBURG, _editor_. State Documents on Federal Relations: The States and the United States. Philadelphia. 1906. (_State Doc. Fed. Rel._: Ames.) ANDERSON, DICE ROBINS. William Branch Giles: A Study in the Politics of Virginia and the Nation, from 1790-1830. Menasha, Wis. 1914. (Anderson.) BABCOCK, KENDRIC CHARLES. Rise of American Nationality, 1811-1819. New York. 1906. [Volume 13 of _The American Nation: A History_.] (Babcock.) BANCROFT, GEORGE. _See_ Howe, M. A. De Wolfe. BARSTOW, GEORGE. History of New Hampshire. Concord, 1842. (Barstow.) BASSETT, JOHN SPENCER. Life of Andrew Jackson. 2 vols. New York. 1911. BAYARD, JAMES ASHETON. Papers from 1796 to 1815. Edited by Elizabeth Donnan. [Volume 2 of _Annual Report of the American Historical Association_ for 1913.] (_Bayard Papers_: Donnan.) BIDDLE, ALEXANDER. _See_ Old Family Letters. BIDDLE, NICHOLAS. Correspondence. Edited by Reginald C. McGrane. Boston. 1919. BLANE, WILLIAM NEWNHAM. An Excursion through the United States and Canada during the Years 1822-23. By an English Gentleman. London. 1824. _Branch Historical Papers._ _See_ Dodd, W. E. BROCKENBROUGH, JOHN W., _reporter_. Reports of Cases decided by the Honourable John Marshall, in the Circuit Court of the United States, for the District of Virginia and North Carolina, from 1802 to 1833 inclusive. 2 vols. Philadelphia. 1837. (Brockenbrough.) BROWN, SAMUEL GILMAN. Life of Rufus Choate. Boston. 1870. (Brown.) BRYAN, WILHELMUS BOGART. A History of the National Capital 2 vols. New York. 1914-16. (Bryan.) CABOT, GEORGE. _See_ Lodge, Henry Cabot. CALL, DANIEL. Reports of the Court of Appeals, Virginia [1779-1818]. 6 vols. Richmond. 1801-33. CARTWRIGHT, PETER. Autobiography of Peter Cartwright, the Backwoods Preacher. Edited by W. P. Strickland. New York. 1856. CATTERALL, RALPH CHARLES HENRY. Second Bank of the United States. Chicago. 1903. [Decennial Publications of the University of Chicago.] (Catterall.) CHANNING, EDWARD. A History of the United States. Vols. 1-4. New York. 1905-17. (Channing: _U.S._) ---- Jeffersonian System, 1801-1811. New York. 1906. [Volume 12 of _The American Nation: A History_.] (Channing: _Jeff. System_.) CHASE, FREDERICK. A History of Dartmouth College, and the Town of Hanover, New Hampshire. Edited by John King Lord. 2 vols. [Vol. 2: A History of Dartmouth College, 1815-1909. By John King Lord.] Cambridge.