Volume IV Part 63 (2/2)
Haller in ”The Stranger.”[1544] To the very last Marshall performed his judicial duties thoroughly, albeit with a heavy heart. He ”looked more vigorous than usual,” and ”seemed to revive and enjoy anew his green old age,” testifies Story.[1545]
It is at this period of his career that we get Marshall's account of the course he pursued toward his malignant personal and political enemy, Thomas Jefferson. Six years after Jefferson's death,[1546] Major Henry Lee, who hated that great reformer even more than Jefferson hated Marshall, wrote the Chief Justice for certain facts, and also for his opinion of the former President. In his reply Marshall said:
”I have never allowed myself to be irritated by M^r Jeffersons unprovoked and unjustifiable aspersions on my conduct and principles, nor have I ever noticed them except on one occasion[1547] when I thought myself called on to do so, and when I thought that declining to enter upon my justification might have the appearance of crouching under the lash, and admitting the justice of its infliction.”[1548]
Intensely as he hated Jefferson, attributing to him, as Marshall did, most of the country's woes, the Chief Justice never spoke a personally offensive word concerning his radical cousin.[1549] On the other hand, he never uttered a syllable of praise or appreciation of Jefferson.
Even when his great antagonist died, no expression of sorrow or esteem or regret or admiration came from the Chief Justice. Marshall could not be either hypocritical or vindictive; but he could be silent.
Holding to the old-time Federalist opinion that Jefferson's principles were antagonistic to orderly government; convinced that, if they prevailed, they would be destructive of the Nation; believing the man himself to be a demagogue and an unscrupulous if astute and able politician--Marshall, nevertheless, said nothing about Jefferson to anybody except to Story, Lee, and Pickering; and, even to these close friends, he gave only an occasional condemnation of Jefferson's policies.
The general feeling toward Marshall, especially that of the bench and bar, during his last two years is not too strongly expressed in Story's dedication to the Chief Justice of his ”Commentaries on the Const.i.tution of the United States.” Marshall had taken keen interest in the preparation of Story's masterpiece and warned him against haste.
”Precipitation ought carefully to be avoided. This is a subject on which I am not without experience.”[1550]
Story begins by a tribute ”to one whose youth was engaged in the arduous enterprises of the Revolution; whose manhood a.s.sisted in framing and supporting the national Const.i.tution; and whose maturer years have been devoted to the task of unfolding its powers, and ill.u.s.trating its principles.” As the expounder of the Const.i.tution, ”the common consent of your countrymen has admitted you to stand without a rival. Posterity will a.s.suredly confirm, by its deliberate award, what the present age has approved, as an act of undisputed justice.
”But,” continues Story, ”I confess that I dwell with even more pleasure upon the entirety of a life adorned by consistent principles, and filled up in the discharge of virtuous duty; where there is nothing to regret, and nothing to conceal; no friends.h.i.+ps 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 Was.h.i.+ngton, still lives, the uncompromising advocate of his principles?”[1551]
Excepting only the time of his wife's death, the saddest hours of his life were, perhaps, those when he opened the last two sessions of the Supreme Court over which he presided. When, on January 13, 1834, the venerable Chief Justice, leading his a.s.sociate justices to their places, gravely returned the accustomed bow of the bar and spectators, he also, perforce, bowed to temporary events and to the iron, if erratic, rule of Andrew Jackson. He bowed, too, to time and death. Justice Was.h.i.+ngton was dead, Johnson was fatally ill, and Duval, sinking under age and infirmity, was about to resign.
Republicans as Johnson and Duval were, they had, generally, upheld Marshall's Nationalism. Their places must soon be filled, he knew, by men of Jackson's choosing--men who would yield to the transient public pressure then so fiercely brought to bear on the Supreme Court. Only Joseph Story could be relied upon to maintain Marshall's principles. The increasing tendency of Justices Thompson, McLean, and Baldwin was known to be against his unyielding Const.i.tutional philosophy. It was more than probable that, before another year, Jackson would have the opportunity to appoint two new Justices--and two cases were pending that involved some of Marshall's dearest Const.i.tutional principles.
The first of these was a Kentucky case[1552] in which almost precisely the same question, in principle, arose that Marshall had decided in Craig _vs._ Missouri.[1553] The Kentucky Bank, owned by the State, was authorized to issue, and did issue, bills which were made receivable for taxes and other public dues. The Kentucky law furthermore directed that an endors.e.m.e.nt and tender of these State bank notes should, with certain immaterial modifications, satisfy any judgment against a debtor.[1554]
In short, the Legislature had authorized a State currency--had emitted those bills of credit, expressly forbidden by the National Const.i.tution.
Another case, almost equally important, came from New York.[1555] To prevent the influx of impoverished foreigners, who would be a charge upon the City of New York, the Legislature had enacted that the masters of s.h.i.+ps arriving at that port should report to the Mayor all facts concerning pa.s.sengers. The s.h.i.+p captain must remove those whom the Mayor decided to be undesirable.[1556] It was earnestly contended that this statute violated the commerce clause of the Const.i.tution.
Both cases were elaborately argued; both, it was said, had been settled by former decisions--the Kentucky case by Craig _vs._ Missouri, the New York case by Gibbons _vs._ Ogden and Brown _vs._ Maryland. The court was almost equally divided. Thompson, McLean, and Baldwin thought the Kentucky and New York laws Const.i.tutional; Marshall, Story, Duval, and Johnson believed them invalid. But Johnson was absent because of his serious illness. No decision, therefore, was possible.
Marshall then announced a rule of the court, hitherto unknown by the public: ”The practice of this court is not (except in cases of absolute necessity) to deliver any judgment in cases where const.i.tutional questions are involved, unless four judges concur in opinion, thus making the decision that of a majority of the whole court. In the present cases four judges do not concur in opinion as to the const.i.tutional questions which have been argued. The court therefore direct these cases to be re-argued at the next term, under the expectation that a larger number of the judges may then be present.”[1557]
The next term! When, on January 12, 1835, John Marshall for the last time presided over the Supreme Court of the United States, the situation, from his point of view, was still worse. Johnson had died and Jackson had appointed James M. Wayne of Georgia in his place. Duval had resigned not long before the court convened, and his successor had not been named. Again the New York and Kentucky cases were continued, but Marshall fully realized that the decision of them must be in opposition to his firm and p.r.o.nounced views.[1558]
[Ill.u.s.tration: a.s.sociate Justices at the last session of the Supreme Court over which John Marshall presided: McLEAN, THOMPSON, STORY, WAYNE, BALDWIN]
It is doubtful whether history shows more than a few examples of an aged man, ill, disheartened, and knowing that he soon must die, who nevertheless continued his work to the very last with such scrupulous care as did Marshall. He took active part in all cases argued and decided and actually delivered the opinion of the court in eleven of the most important.[1559] None of these are of any historical interest; but in all of them Marshall was as clear and vigorous in reasoning and style as he had been in the immortal Const.i.tutional opinions delivered at the height of his power. The last words Marshall ever uttered as Chief Justice sparkle with vitality and high ideals. In Mitchel _et al. vs._ The United States,[1560] a case involving land t.i.tles in Florida, he said, in ruling on a motion to continue the case: ”Though the hope of deciding causes to the mutual satisfaction of parties would be chimerical, that of convincing them that the case has been fully and fairly considered ... may be sometimes indulged. Even this is not always attainable. In the excitement produced by ardent controversy, gentlemen view the same object through such different media that minds, not infrequently receive therefrom precisely opposite impressions. The Court, however, must see with its own eyes, and exercise its own judgment, guided by its own reason.”[1561]
At last Marshall had grave intimations that his life could not be prolonged. Quite suddenly his health declined, although his mind was as strong and clear as ever. ”Chief Justice Marshall still possesses his intellectual powers in very high vigor,” writes Story during the last session of the Supreme Court over which his friend and leader presided.
”But his physical strength is manifestly on the decline; and it is now obvious, that after a year or two, he will resign, from the pressing infirmities of age.... What a gloom will spread over the nation when he is gone! His place will not, nay, it cannot be supplied.”[1562]
As the spring of 1835 ripened into summer, Marshall grew weaker. ”I pray G.o.d,” wrote Story in agonies of apprehension, ”that he may long live to bless his country; but I confess that I have many fears whether he can be long with us. His complaints are, I am sure, incurable, but I suppose that they may be alleviated, unless he should meet with some accidental cold or injury to aggravate them. Of these, he is in perpetual danger, from his imprudence as well as from the natural effects of age.”[1563]
In May, 1835, Kent went to Richmond in order to see Marshall, whom ”he found very emaciated, feeble & dangerously low. He injured his Spine by a Post Coach fall & oversetting.... He ... made me _Promise to see him at Was.h.i.+ngton next Winter_.”[1564]
Kent wrote Jeremiah Smith of New Hamps.h.i.+re 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]
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