Giles "had, however, such high respect" for Marshall"s standing, "that he always doubted his own opinion when put in opposition" to that of the Chief Justice. He had not intended, he avowed, "to throw reproach upon the Judges in office." Far be it from him to reflect "in the least degree on their honour and integrity." His point was that, by Marshall"s plan, "responsibility was rather avoided than sought to be secured."
Giles was willing to risk his liberty thus far--"if a Judge became odious to the people, let him be removed from office."[1348]
The debate continued upon another amendment by Thompson. Viewing the contest as a sheer struggle of minds, the conservatives were superior to the reformers,[1349] and steadily they gained votes.[1350]
Again Marshall spoke, this time crossing swords with Benjamin W. S.
Cabell and James Madison, over a motion of the former that judges whose courts were abolished, and to whom the Legislature a.s.signed no new duties, should not receive salaries: "There were upwards of one hundred Inferior Courts in Virginia.... No gentleman could look at the dockets of these courts, and possibly think" that the judges would ever have no business to transact.
Cabell"s amendment "stated an impossible case," said Marshall,--a "case where there should be no controversies between man and man, and no crimes committed against society. It stated a case that could not happen--and would the convention encounter the real hazard of putting almost every Judge in the Commonwealth in the power of the Legislature, for the sake of providing for an impossible case?"[1351] But in spite of Marshall"s opposition, Cabell"s amendment was adopted by a vote of 59 to 36.[1352] Two weeks later, however, the convention reversed itself by two curious and contradictory votes.[1353] So in the end Marshall won.
The subject of the Judiciary did not seriously arise again until the vote on the adoption of the entire const.i.tution was imminent. As it turned out, the const.i.tution, when adopted, contained, in substance, the Judiciary provisions which Marshall had written and reported at the beginning of that body"s deliberations.[1354]
The other and the commanding problem, for the solution of which the contention had been called, was made up of the a.s.sociated questions of suffrage, taxation, and representation. Broadly speaking, the issue was that of white manhood suffrage and representation based upon the enumeration of whites, as against suffrage determined by property and taxation, representation to be based on an enumeration which included three fifths of the slave population.[1355]
In these complex and tangled questions the State and the convention were divided; so fierce were the contending factions, and so diverse were opinions on various elements of the confused problem, especially among those demanding reform, that at times no solution seemed possible. The friends of reform were fairly well organized and cooperated in a spirit of unity uncommon to liberals. But, as generally happens, the conservatives had much better discipline, far more harmony of opinion and conduct. The debate on both sides was able and brilliant.[1356]
Finally the convention seemingly became deadlocked. Each side declared it would not yield.[1357] Then came the inevitable reaction--a spirit of conciliation mellowed everybody. Sheer human nature, wearied of strife, sought the escape that mutual accommodation alone afforded. The moment came for which Marshall had been patiently waiting. Rising slowly, as was his wont, until his great height seemed to the convention to be increased, his soothing voice, in the very gentleness of its timbre, gave a sense of restfulness and agreement so grateful to, and so desired by, even the sternest of the combatants.
"No person in the House," began the Chief Justice, "can be more truly gratified than I am, at seeing the spirit that has been manifested here to-day; and it is my earnest wish that this spirit of conciliation may be acted upon in a fair, equal and honest manner, adapted to the situation of the different parts of the Commonwealth, which are to be affected."
The warring factions, said Marshall, were at last in substantial accord. "That the Federal numbers [the enumeration of slaves as fixed in the National Const.i.tution] and the plan of the white basis shall be blended together so as to allow each an equal portion of power, seems to be very generally agreed to." The only difference now was that one faction insisted on applying this plan to both Houses of the Legislature, while the other faction would restrict the white basis to the popular branch, leaving the Senate to be chosen on the combined free white and black slave enumeration.
This involves the whole theory of property. One gentleman, in particular, "seems to imagine that we claim nothing of republican principles, when we claim a representation for property." But "republican principles" do not depend on "the naked principle of numbers." On the contrary, "the soundest principles of republicanism do sanction some relation between representation and taxation.... The two ought to be connected.... This was the principle of the revolution....
This basis of Representation is ... so important to Virginia" that everybody had thought about it before this convention was called.
"Several different plans were contemplated. The basis of white population alone; the basis of free population alone; a basis of population alone; a basis compounded of taxation and white population, (or which is the same thing, a basis of Federal numbers:).... Now, of these various propositions, the basis of white population, and the basis of taxation alone are the two extremes." But, "between the free population, and the white population, there is almost no difference: Between the basis of total population and the basis of taxation, there is but little difference."
Frankly and without the least disguise of his opinions, Marshall admitted that he was a conservative of conservatives: "The people of the East," of whom he avowed himself to be one, "thought that they offered a fair compromise, when they proposed the compound basis of population and taxation, or the basis of the Federal numbers. We thought that we had republican precedent for this--a precedent given us by the wisest and truest patriots that ever were a.s.sembled: but that is now past.
"We are now willing to meet on a new middle ground." Between the two extremes "the majority is too small to calculate upon.... We are all uncertain as to the issue. But all know this, that if either extreme is carried, it must leave a wound in the breast of the opposite party which will fester and rankle, and produce I know not what mischief." The conservatives were now the majority of the convention, yet they were again willing to make concessions. Avoiding both extremes, Marshall proposed, "as a compromise," that the basis of representation "shall be made according to an exact compound of the two principles, of the white basis and of the Federal numbers, according to the Census of 1820."[1358]
Further debate ensued, during which animosity seemed about to come to life again, when the Chief Justice once more exerted his mollifying influence. "Two propositions respecting the basis of Representation have divided this Convention almost equally," he said. "The question has been discussed, until discussion has become useless. It has been argued, until argument is exhausted. We have now met on the ground of compromise." It is no longer a matter of the triumph of either side. The only consideration now is whether the convention can agree on some plan to lay before the people "with a reasonable hope that it may be adopted.
Some concession must be made on both sides.... What is the real situation of the parties?" Unquestionably both are sincere. "To attempt now to throw considerations of principle into either scale, is to add fuel to a flame which it is our purpose to extinguish. We must lose sight of the situation of parties and state of opinion, if we make this attempt."
The convention is nearly evenly balanced. At this moment those favoring a white basis only have a trembling majority of two. This may change--the reversal of a single vote would leave the House "equally divided."
The question must be decided "one way or the other"; but, if either faction prevails by a bare majority, the proposed const.i.tution will go to the people from an almost equally divided convention. That means a tremendous struggle, a riven State. Interests in certain parts of the Commonwealth will surely resist "with great force" a purely white basis of representation, especially if no effective property qualification for suffrage is provided. This opposition is absolutely certain "unless human nature shall cease to be what it has been in all time."
No human power can forecast the result of further contest. But one thing is certain: "To obtain a just compromise, concession must not only be mutual--it must be equal also.... Each ought to concede to the other as much as he demands from that other.... There can be no hope that either will yield more than it gets in return."
The proposal that white population and taxation "mixed" with Federal numbers in "equal proportions" shall "form the basis of Representation in both Houses," is equal and just. "All feel it to be equal." Yet the conservatives now go still further--they are willing to place the House on the white basis and apply the mixed basis to the Senate only. Why refuse this adjustment? Plainly it will work well for everybody: "If the Senate would protect the East, will it not protect the West also?"
Marshall"s satisfaction was "inexpressible" when he heard from both sides the language of conciliation. "I hailed these auspicious appearances with as much joy, as the inhabitant of the polar regions hails the re-appearance of the sun after his long absence of six tedious months. Can these appearances prove fallacious? Is it a meteor we have seen and mistaken for that splendid luminary which dispenses light and gladness throughout creation? It must be so, if we cannot meet on equal ground. If we cannot meet on the line that divides us equally, then take the hand of friendship, and make an equal compromise; it is vain to hope that any compromise can be made."[1359]
The basis of representation does not appear in the const.i.tution, the number of Senators and Representatives being arbitrarily fixed by districts and counties; but this plan, in reality, gave the slaveholding sections almost the same preponderance over the comparatively non-slaveholding sections as would have resulted from the enumeration of three fifths of all slaves in addition to all whites.[1360]
While the freehold principle was abandoned, as Marshall foresaw that it would be, the principle of property qualification as against manhood suffrage was triumphant.[1361] With a majority against them, the conservatives won by better management, a.s.sisted by the personal influence of the Chief Justice, to which, on most phases of the struggle, was added that of Madison and Giles.
Nearly a century has pa.s.sed since these happenings, and Marshall"s att.i.tude now appears to have been that of cold reaction; but he was as honest as he was outspoken in his resistance to democratic reforms. He wanted good government, safe government. He was not in the least concerned in the rule of the people as such. Indeed, he believed that the more they directly controlled public affairs the worse the business of government would be conducted.
He feared that sheer majorities would be unjust, intolerant, tyrannical; and he was certain that they would be untrustworthy and freakishly changeable. These convictions would surely have dictated his course in the Virginia Const.i.tutional Convention of 1829-30, had no other considerations influenced him.
But, in addition to his long settled and ever-petrifying conservative views, we must also take into account the conditions and public temper existing in Virginia ninety years ago. Had the convention reached any other conclusion than that to which Marshall gently guided it, it is certain that the State would have been torn by dissension, and it is not improbable that there would have been bloodshed. All things considered, it seems unsafe to affirm that Marshall"s course was not the wisest for that immediate period and for that particular State.
Displaying no vision, no aspiration, no devotion to human rights, he merely acted the uninspiring but necessary part of the practical statesman dealing with an existing and a very grave situation. If Jefferson could be so frightened in 1816 that he forbade the public circulation of his perfectly sound views on the wretched Virginia Const.i.tution of 1776,[1362] can it be wondered at that the conservative Marshall in 1830 wished to compose the antagonisms of the warring factions?
The fact that the Nation was then facing the possibility of dissolution[1363] must also be taken into account. That circ.u.mstance, indeed, influenced Marshall even more than did his profound conservatism. There can be little doubt that, had either the radicals or the conservatives achieved an outright victory, one part of Virginia would have separated from the other and the growing sentiment for disunion would have received a powerful impulse.
Hurrying from Richmond to Washington when the convention adjourned, Marshall listened to the argument of Craig _vs._ Missouri; and then delivered one of the strongest opinions he ever wrote--the only one of his Const.i.tutional expositions to be entirely repudiated by the Supreme Court after his death. The case grew out of the financial conditions described in the fourth chapter of this volume.
When Missouri became a State in 1821, her people found themselves in desperate case. There was no money. Banks had suspended, and specie had been drained to the Eastern commercial centers. The simplest business transactions were difficult, almost impossible. Even taxes could not be paid. The Legislature, therefore, established loan offices where citizens, by giving promissory notes, secured by mortgage or pledge of personal property, could purchase loan certificates issued by the State.
These certificates were receivable for taxes and other public debts and for salt from the State salt mines. The faith and resources of Missouri were pledged for the redemption of the certificates which were negotiable and issued in denominations not exceeding ten dollars or less than fifty cents. In effect and in intention, the State thus created a local circulating medium of exchange.
On August 1, 1822, Hiram Craig and two others gave their promissory notes for $199.99 in payment for loan certificates. On maturity of these notes the borrowers refused to pay, and the State sued them; judgment against them was rendered in the trial court and this judgment was affirmed by the Supreme Court of Missouri. The case was taken, by writ of error, to the Supreme Court of the United States, where the sole question to be decided was the const.i.tutionality of the Missouri loan office statutes.
Marshall"s a.s.sociates were now Johnson, Duval, Story, Thompson, McLean, and Baldwin; the last two recently appointed by Jackson. It was becoming apparent that the court was growing restive under the rigid practice of the austere theory of government and business which the Chief Justice had maintained for nearly a generation. This tendency was shown in this case by the stand taken by three of the a.s.sociate Justices. Marshall was in his seventy-sixth year, but never did his genius shine more resplendently than in his announcement of the opinion of the Supreme Court in Craig _vs._ Missouri.[1364]
He held that the Missouri loan certificates were bills of credit, which the National Const.i.tution prohibited any State to issue. "What is a bill of credit?" It is "any instrument by which a state engages to pay money at a future day; thus including a certificate given for money borrowed.... To "emit bills of credit" conveys to the mind the idea of issuing paper intended to circulate through the community, for its ordinary purposes, as money, which paper is redeemable at a future day."[1365] The Chief Justice goes into the history of the paper money evil that caused the framers of the Const.i.tution to forbid the States to "emit bills of credit."
Such currency always fluctuates. "Its value is continually changing; and these changes, often great and sudden, expose individuals to immense loss, are the sources of ruinous speculations, and destroy all confidence between man and man." To "cut up this mischief by the roots ... the people declared, in their Const.i.tution, that no state should emit bills of credit. If the prohibition means anything, if the words are not empty sounds, it must comprehend the emission of any paper medium by a state government, for the purpose of common circulation."[1366]
Incontestably the Missouri loan certificates are just such bills of credit. Indeed, the State law itself "speaks of them in this character."
That the statute calls them certificates instead of bills of credit does not change the fact. How absurd to claim that the Const.i.tution "meant to prohibit names and not things! That a very important act, big with great and ruinous mischief, which is expressly forbidden ... may be performed by the subst.i.tution of a name." The Const.i.tution is not to be evaded "by giving a new name to an old thing."[1367]
It is nonsense to say that these particular bills of credit are lawful because they are not made legal tender, since a separate provision applies to legal tender. The issue of legal tender currency, and also bills of credit, is equally and separately forbidden: "To sustain the one because it is not also the other; to say that bills of credit may be emitted if they be not made a tender in payment of debts; is ... to expunge that distinct, independent prohibition."[1368]
In a well-nigh perfect historical summary, Marshall reviews experiments before and during the Revolution in bills of credit that were made legal tender, and in others that were not--all "productive of the same effects," all equally ruinous in results.[1369] The Missouri law authorizing the loan certificates, for which Craig gave his promissory note, is "against the highest law of the land, and ... the note itself is utterly void."[1370]
The Chief Justice closes with a brief paragraph splendid in its simple dignity and power. In his argument for Missouri, Senator Thomas H.
Benton had used violent language of the kind frequently employed by the champions of State Rights: "If ... the character of a sovereign State shall be impugned," he cried, "contests about civil rights would be settled amid the din of arms, rather than in these halls of national justice."[1371]
To this outburst Marshall replies: The court has been told of "the dangers which may result from" offending a sovereign State. If obedience to the Const.i.tution and laws of the Nation "shall be calculated to bring on those dangers ... or if it shall be indispensable to the preservation of the union, and consequently of the independence and liberty of these states; these are considerations which address themselves to those departments which may with perfect propriety be influenced by them. This department can listen only to the mandates of law; and can tread only that path which is marked out by duty."[1372]
In this n.o.ble pa.s.sage Marshall is not only rebuking Benton; he is also speaking to the advocates of Nullification, then becoming clamorous and threatening; he is pointing out to Andrew Jackson the path of duty.[1373]
Justices Johnson, Thompson, and McLean afterwards filed dissenting opinions, thus beginning the departure, within the Supreme Court, from the stern Const.i.tutional Nationalism of Marshall. This breach in the court deeply troubled the Chief Justice during the remaining four years of his life.
Johnson thought "that these certificates are of a truly amphibious character." The Missouri law "does indeed approach as near to a violation of the Const.i.tution as it can well go without violating its prohibition, but it is in the exercise of an unquestionable right, although in rather a questionable form." So, on the whole, Johnson concluded that the Supreme Court had better hold the statute valid.[1374]
"The right of a State to borrow money cannot be questioned," said Thompson; that is all the Missouri scheme amounts to. If these loan certificates are bills of credit, so are "all bank notes, issued either by the States, or under their authority."[1375] Justice McLean pointed out that Craig"s case was only one of many of the same kind. "The solemn act of a State ... cannot be set aside ... under a doubtful construction of the Const.i.tution.[1376]... It would be as gross usurpation on the part of the federal government to interfere with State rights by an exercise of powers not delegated, as it would be for a State to interpose its authority against a law of the Union."[1377]
In Congress attacks upon Marshall and the Supreme Court now were renewed--but they grew continuously feebler. At the first session after the decision of the Missouri loan certificate case, a bill was introduced to repeal the provision of the Judiciary Act upon which the National powers of the Supreme Court so largely depended. "If the twenty-fifth section is repealed, the Const.i.tution is practically gone,"
declared Story. "Our wisest friends look with great gloom to the future."[1378]
Marshall was equally despondent, but his political vision was clearer.
When he read the dissenting opinions of Johnson, Thompson, and McLean, he wrote Story: "It requires no prophet to predict that the 25th section [of the Judiciary Act] is to be repealed, or to use a more fashionable phrase to be nullified by the Supreme Court of the United States."[1379]
He realized clearly that the great tribunal, the power and dignity of which he had done so much to create, would soon be brought under the control of those who, for some years at least, would reject that broad and vigorous Nationalism which he had steadily and effectively a.s.serted during almost a third of a century. One more vacancy on the Supreme Bench and a single new appointment by Jackson would give the court to the opponents of Marshall"s views. Before he died, the Chief Justice was to behold two such vacancies.[1380]
On January 24, 1831, William R. Davis of South Carolina presented the majority report of the Judiciary Committee favoring the repeal of that section of the Judiciary Act under which the Supreme Court had demolished State laws and annihilated the decisions of State courts.[1381] James Buchanan presented the minority report.[1382] A few minutes" preliminary discussion revealed the deep feeling on both sides.
Philip Doddridge of Virginia declared that the bill was of "as much importance as if it were a proposition to repeal the Union of these States." William W. Ellsworth of Connecticut avowed that it was of "overwhelming magnitude."[1383]