The Life of John Marshall Volume IV Part 57

Thereupon the subject was furiously debated. Thomas H. Crawford of Pennsylvania considered Section 25 of the Judiciary Act, to be as "sacred" as the Const.i.tution itself.[1384] Henry Daniel of Kentucky a.s.serted that the Supreme Court "stops at nothing to obtain power." Let the "States ... prepare for the worst, and protect themselves against the a.s.saults of this gigantic tribunal."[1385]

William Fitzhugh Gordon of Virginia, recently elected, but already a member of the Judiciary Committee, stoutly defended the report of the majority: "When a committee of the House had given to a subject the calmest and maturest investigation, and a motion is made to print their report, a gentleman gets up, and, in a tone of alarm, denounces the proposition as tantamount to a motion to repeal the Union." Gordon repudiated the very thought of dismemberment of the Republic--that "palladium of our hopes, and of the liberties of mankind."

As to the const.i.tutionality of Section 25 of the Judiciary Act--"could it be new, especially to a Virginia lawyer"? when the Virginia Judiciary, with Roane at its head, had solemnly proclaimed the illegality of that section. And had not Georgia ordered her Governor to resist the enforcement of that provision of that ancient act of Congress? "I declare to G.o.d ... that I believe nothing would tend so much to compose the present agitation of the country ... as the repeal of that portion of the judiciary act." Gordon was about to discuss the nefarious case of Cohens _vs._ Virginia when his emotions overcame him--"he did not wish ... to go into the merits of the question."[1386]

Thomas F. Foster of Georgia said that the Judiciary Committee had reported under a "galling fire from the press"; quoted Marshall's unfortunate language in the Convention of 1788;[1387] and insisted that the "vast and alarming" powers of the Supreme Court must be bridled.[1388]

But the friends of the court overwhelmed the supporters of the bill, which was rejected by a vote of 138 to 51.[1389] It was ominous, however, that the South stood almost solid against the court and Nationalism.

FOOTNOTES:

[1269] Marshall to his wife, March 12, 1826, MS.

[1270] Nevertheless he watched the course of politics closely. For instance: immediately after the House had elected John Quincy Adams to the Presidency, Marshall writes his brother a letter full of political gossip. He is surprised that Adams was chosen on the first ballot; many think Kremer's letter attacking Clay caused this unexpectedly quick decision, since it "was & is thought a sheer calumny; & the resentment of Clay's friends probably determined some of the western members who were hesitating. It is supposed to have had some influence elsewhere.

The vote of New York was not decided five minutes before the ballots were taken."

Marshall tells his brother about Cabinet rumors--Crawford has refused the Treasury and Clay has been offered the office of Secretary of State.

"It is meer [_sic_] common rumor" that Clay will accept. "Mr. Adams will undoubtedly wish to strengthen himself in the west," and Clay is strong in that section unless Kremer's letter has weakened him. The Chief Justice at first thought it had, but "on reflection" doubts whether it will "make any difference." (Marshall to his brother, Feb. 14, 1825, MS.) Marshall here refers to the letter of George Kremer, a Representative in Congress from Pennsylvania. Kremer wrote an anonymous letter to the _Columbian Observer_ in which he a.s.serted that Clay had agreed to deliver votes to Adams as the price of Clay's appointment to the office of Secretary of State. After much bl.u.s.ter, Kremer admitted that he had no evidence whatever to support his charge; yet his accusation permanently besmirched Clay's reputation. (For an account of the Kremer incident see Sargent, I, 67-74, 123-24.)

Out of the Kremer letter grew a distrust of Clay which he never really lived down. Some time later, John Randolph seized an opportunity to call the relation between President Adams and his Secretary of State "the coalition of Blifil and Black George--the combination, unheard of till then, of the Puritan with the blackleg." The bloodless, but not the less real duel, that followed, ended this quarrel, though the unjust charges never quite died out. (Schurz: _Henry Clay_, I, 273-74.)

[1271] Baltimore _Marylander_, March 22, 1828.

[1272] _Enquirer_, April 4, 1828.

[1273] Meaning Jackson. Clay to Marshall, April 8, 1828, MS.

[1274] Marshall to Story, May 1, 1828, _Proceedings, Ma.s.s. Hist. Soc._ 2d Series, XIV, 336-37.

[1275] See chap. I of this volume.

[1276] Thomas, whose wife died Feb. 2, 1829. (Paxton, 92.)

[1277] Marshall to his wife, March 5 [1829], MS.

[1278] Same to same, Feb. 1, 1829, MS.

[1279] Jacquelin B. Harvie, who married Marshall's daughter, Mary.

[1280] Marshall to his wife, March 5 [1829], MS.

[1281] Marshall to Story, June 11, 1829, _Proceedings, Ma.s.s. Hist. Soc._ 2d Series, XIV, 338-39.

[1282] See vol. I, 216-17, of this work.

[1283] Jefferson to Kercheval, July 12, 1816, _Works_: Ford, XII, 3-15.

[1284] Same to same, Oct. 8, 1816, _ib._ footnote to 17.

[1285] At the time of the convention the eastern part of the State paid, on the average, more than three times as much in taxes per acre as the west. The extremes were startling--the trans-Alleghany section (West Virginia) paid only 92 cents for every $8.43 paid by the Tidewater.

(_Proceedings and Debates of the Virginia State Convention of 1829-30_, 214, 258, 660-61.)

[1286] Marshall to Story, July 3, 1829, _Proceedings, Ma.s.s. Hist. Soc._ 2d Series, XIV, 340-41.

[1287] Pickering to Marshall, Dec. 26, 1828, Pickering MSS. Ma.s.s. Hist.

Soc.; see also Story, I, 386-96.

[1288] Marshall to Mercer, April 7, 1827, Chamberlain MSS. Boston Pub.

Lib.

[1289] Lincoln to Greeley, Aug. 22, 1862, _Complete Works of Abraham Lincoln_: Nicolay and Hay, II, 227-28.

[1290] Marshall to Pickering, March 20, 1826, _Proceedings, Ma.s.s. Hist.

Soc._ 2d Series, XIV, 321.

[1291] _Fifteenth Annual Report, Proceedings, American Colonization Society._ The abolitionists, later, mercilessly attacked the Colonization Society. (See Wilson: _Rise of the Slave Power_, I, 208 _et seq._)

[1292] _Fourteenth Annual Report, Proceedings, American Colonization Society._

[1293] His wife's illness. She died soon afterwards. See _infra_, 524-25.

[1294] Marshall to Gurley, Dec. 14, 1831, _Fifteenth Annual Report, Proceedings, American Colonization Society_, pp. vi-viii.

In a letter even less emotional than Marshall's, Madison favored the same plan. (_Ib._ pp. v, vi.) Lafayette, with his unfailing floridity, says that he is "proud ... of the honor of being one of the Vice Presidents of the Society," and that "the progressing state of our Liberia establishment is ... a source of enjoyment, and the most lively interest" to him. (_Ib._ p. v.)

At the time of his death, Marshall was President of the Virginia branch of the Society, and his ancient enemy, John Tyler, who succeeded him in that office, paid a remarkable tribute to the goodness and greatness of the man he had so long opposed. (Tyler: _Tyler_, I, 567-68.)

[1295] 10 Wheaton, 114.

[1296] _Ib._ 115. Marshall delivered this opinion March 15, 1825.

[1297] _Ib._ 114.

[1298] _Ib._ 118-19.

[1299] _Ib._ 122-23.

[1300] 2 Peters, 150-56.

[1301] Marshall to Greenhow, Oct. 17, 1809, MSS. "Judges and Eminent Lawyers," Ma.s.s. Hist. Soc.

[1302] See _supra_, 209-18, of this volume.

[1303] 12 Wheaton, 214 _et seq._ John Saunders, a citizen of Kentucky, sued George M. Ogden, a citizen of Louisiana, on bills of exchange which Ogden, then a citizen of New York, had accepted in 1806, but which were protested for non-payment. The defendant pleaded a discharge granted by a New York court under the insolvent law of that State enacted in 1801.

(_Ib._) On the ma.n.u.script records of the Supreme Court, Saunders is spelled _Sanders_. After the case was filed, the death of Ogden was suggested, and his executors, Charles Harrod and Francis B. Ogden, were subst.i.tuted.

[1304] Was.h.i.+ngton, Johnson, Thompson, and Trimble each delivered long opinions supporting this view. (12 Wheaton, 254-331, 358-369.)