Volume IV Part 68 (1/2)

[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 pa.s.sionate fervor.

”I have the consolation to know,” he concludes, ”that I had the entire concurrence ... of that great const.i.tutional jurist, the late Mr. Chief Justice Marshall. Having heard the former arguments, his deliberate opinion was that the act of New York was unconst.i.tutional, 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 unconst.i.tutional. ”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 p.r.o.nounced 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 Const.i.tution. _His saltem acc.u.mulem 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 Was.h.i.+ngton, etc. Steam Packet Co.

_ib._ 107-16; Dela.s.sus _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.