The Life of John Marshall Volume IV Part 36

The Chief Justice is a master of the "science of verbality" by which the Const.i.tution may be rendered "as unintelligible, as a single word would be made by a syllabick dislocation, or a jumble of its letters; and turn it into a reservoir of every meaning for which its expounder may have occasion."

Where does Marshall's "artifice of verbalizing" lead?[941] To an "artificially reared, a monied interest ... which is gradually obtaining an influence over the federal government," and "craftily works upon the pa.s.sions of the states it has been able to delude" [on the slavery question], "to coerce the defrauded and discontented states into submission." For this reason talk of civil war abounds. "For what are the states talking about disunion, and for what are they going to war among themselves? To create or establish a monied sect, composed of privileged combinations, as an aristocratical oppressor of them all."[942] Marshall's doctrine that Congress may bestow "exclusive privileges" is at the bottom of the Missouri controversy. "Had the motive ... never existed, the discussion itself would never have existed; but if the same cause continues, more fatal controversies may be expected."[943]

Finally Taylor hurls at the Nation the challenge of the South, which the representatives of that section, from the floor of Congress, quickly repeated in threatenings of civil war.[944] "There remains a right, anterior to every political power whatsoever, ... the natural right of self-defence.... It is allowed, on all hands, that danger to the slave-holding states lurks in their existing situation, ... and it must be admitted that the right of self-defence applies to that situation....

I leave to the reader the application of these observations."[945]

Immediately upon its publication, Ritchie sent a copy of Taylor's book to Jefferson, who answered that he knew "before reading it" that it would prove "orthodox." The attack upon the National courts could not be pressed too energetically: "The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric.... An opinion is huddled up in conclave, perhaps by a majority of one, delivered as if unanimous, and with the silent acquiescence of lazy and timid a.s.sociates, by a crafty chief judge, who sophisticates the law to his mind, by the turn of his own reasoning."[946]

FOOTNOTES:

[784] These penalties were forfeits of $500 for every offense--a sum that would have aggregated hundreds of thousands, perhaps millions of dollars, in the case of the Baltimore branch, which did an enormous business. The Maryland law also provided that "every person having any agency in circulating" any such unauthorized note of the Bank should be fined one hundred dollars. (Act of Feb. 11, 1818, _Laws of Maryland_, 174.)

[785] Story to White, March 3, 1819, Story, I, 325.

[786] Webster always dressed with extreme care when he expected to make a notable speech or argument. For a description of his appearance on such an occasion see Sargent: _Public Men and Events_, I, 172.

[787] 4 Wheaton, 323.

[788] _Ib._ 324.

[789] _Ib._ 327.

[790] _Ib._ 328.

[791] 4 Wheaton, 330 _et seq._

[792] _Ib._ 362 _et seq._

[793] _Ib._ 272-73.

[794] _Ib._ 374.

[795] Tyler: _Memoir of Roger Brooke Taney_, 141.

[796] The student should carefully examine Pinkney's argument. Although the abstract of it given in Wheaton's report is very long, a painstaking study of it will be helpful to a better understanding of the development of American Const.i.tutional law. (4 Wheaton, 377-400.)

[797] Story to White, March 3, 1819, Story, I, 324-25.

[798] 4 Wheaton, 426.

[799] See _supra_, chap. V.

[800] Webster to Mason, Feb. 24, 1819, Van Tyne, 78-79.

[801] Webster to Smith, Feb. 28, 1819, _ib._ 79-80.

[802] From February 22 to February 27 and from March 1 to March 3, 1819.

[803] February 18, 1819. See _Annals_, 15th Cong. 2d Sess. 1240.

[804] _Ib._ 1242.

[805] _Annals_, 15th Cong. 2d Sess. 1249-50.

[806] _Ib._ 1254.

[807] _Ib._ 1286.

[808] _Ib._ 1311.

[809] _Ib._ 1404-06.

[810] "Marshall's opinion in M'Culloch _vs._ Maryland, is perhaps the most celebrated Judicial utterance in the annals of the English speaking world." (_Great American Lawyers_: Lewis, II, 363.)

[811] As the biographer of Was.h.i.+ngton, Marshall had carefully read both Hamilton's and Jefferson's Cabinet opinions on the const.i.tutionality of a National bank. Compare Hamilton's argument (vol. II, 72-74, of this work) with Marshall's opinion in M'Culloch _vs._ Maryland.

[812] 4 Wheaton, 400.

[813] _Ib._ (Italics the author's.)

[814] 4 Wheaton, 400-02.

[815] "In discussing this question, the counsel for the state of Maryland have deemed it of some importance, in the construction of the const.i.tution, to consider that instrument not as emanating from the people, but as the act of sovereign and independent states. The powers of the general government, it has been said, are delegated by the states, who alone are truly sovereign; and must be exercised in subordination to the states, who alone possess supreme dominion.

"It would be difficult to sustain this proposition. The convention which framed the const.i.tution was indeed elected by the state legislatures.

But the instrument, when it came from their hands, was a mere proposal, without obligation, or pretensions to it. It was reported to the then existing Congress of the United States, with a request that it might 'be submitted to a convention of delegates, chosen in each state, by the people thereof, under the recommendation of its legislature, for their a.s.sent and ratification.' This mode of proceeding was adopted; and by the convention, by Congress, and by the state legislatures, the instrument was submitted to the people.

"They acted upon it in the only manner in which they can act safely, effectively, and wisely, on such a subject, by a.s.sembling in convention.

It is true, they a.s.sembled in their several states--and where else should they have a.s.sembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding the American people into one common ma.s.s. Of consequence, when they act, they act in their states. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the state governments. From these conventions the const.i.tution derives its whole authority." (4 Wheaton, 402-03.)

[816] 4 Wheaton, 403-04.

[817] _Ib._ 405.

[818] The Nationalist ideas of Marshall and Lincoln are identical; and their language is so similar that it seems not unlikely that Lincoln paraphrased this n.o.ble pa.s.sage of Marshall and thus made it immortal.

This probability is increased by the fact that Lincoln was a profound student of Marshall's Const.i.tutional opinions and committed a great many of them to memory.

The famous sentence of Lincoln's Gettysburg Address was, however, almost exactly given by Webster in his Reply to Hayne: "It is ... the people's Government; made for the people; made by the people; and answerable to the people." (_Debates_, 21st Cong. 1st Sess. 74; also Curtis, I, 355-61.) But both Lincoln and Webster merely stated in condensed and simpler form Marshall's immortal utterance in M'Culloch _vs._ Maryland.

(See also _infra_, chap. X.)

[819] 4 Wheaton, 405-06.

[820] 4 Wheaton, 406-07. (Italics the author's.)

[821] _Ib._, 407-08.

[822] See vol. I, 72, of this work.