MARSHALL'S DECISIONS IMPREGNABLE.

513

instrument ever prevailed.1 And it still remains true that our knowledge of the law of the Constitution is chiefly derived from his exposition of it. So indelible was the impress of his mind upon the interpretation of the Constitution that the remarkable change in the personnel of the Court, which occurred shortly before the time of his death, and which transformed it into a school of interpreters whose opinions were almost antithetic to his own, could not obliterate his work. He had laid down the law of the Constitution forever. His distinguished successor, Chief-Justice Taney,2 during the fifteen years which intervened from Marshall's death till the adoption of the great Compromise, handed down no decision which seriously controvened the law of the Constitution as Marshall had expounded it. There were minor adverse decisions which indicated the attitude of the Court toward this law, but these could not supplant the great decisions of Marshall which had preceded them. A distinguished American jurist has well said of him, that his reasoning was lucid and suitable; his political insight profound; his courage splendid and tempered by judicial caution; his patriotism exalted; his character majestic.1

There were other forces, however, interpreting the law of the Constitution during these years, and these found utterance in the platforms of political parties. From an early day they appealed to the Constitution as their guide, but did not hesitate to put their own interpretation upon its meaning. Thus, in 1836, the New York Democrats, who supported the nomination of Martin Van Buren for

1 Ogden vs. Saunders, 12 Wheaton, 332.

2 Chief Justice, 1836-1864.

8 E. G. Briscoe vs. The Bank of Kentucky, 11 Peters, 257 (1837). 4 Henry Hitchcock, LL. D.; The Constitutional Development in

the United States as Influenced by Chief Justice Marshall.

514

STRICT CONSTRUCTION POLITICS.

President, declared their unqualified hostility to bank notes and paper money as a circulating medium, "because gold and silver are the only safe and constitutional currency." They declared their hostility to monopolies, “because they violate the equal rights of the people, and hostility to the dangerous and unconstitutional creation, the vested rights or prerogatives by legislation," meaning thereby the United States Bank, which, it was declared, no legislature had a right to charter. But applying the principle of a common law, the act of 1861, incorporating the bank could be repealed by Congress and should be repealed when required by a majority of the people. Four years later at Baltimore, the party again nominated VanBuren, and declared that the Federal government was one of limited powers which should be strictly construed; that the Constitution did not confer upon the general government the power to commence and carry on a system of internal improvements, neither did it authorize it to assume the debts of the States or to foster one branch of industry to the detriment of another nor to charter a United States bank, and it asserted with great energy that Congress had no power under the Constitution to interfere with, or to control the domestic institutions of the States, meaning slavery.1

These principles were reaffirmed four years later at the nomination of Polk and Dallas, with the addition that it was unconstitutional to distribute the proceeds of the public lands2 among the States, but that they should be

1 Platform of the Baltimore Convention, May 5, 1840.

2 A curious case growing out of the Legislature of Maine of March 8, 1837, for distributing the surplus of the public money derived from the sale of land by the National Government; act of June 23, 1836, Statutes at Large, 552; came before the Supreme Judicial Court of the State in Hooper vs. Emery et al., 14 Maine, 375. The share assigned to Mainę was apportioned by its Legis

THE LIBERTY PARTY.

515

applied to the national objects specified in the national Constitution,1 and were all repeated in 1848, at the time of the nomination of Cass and Butler.2

In the preceding year the first attack on the Constitution in a party platform was made by the Liberty party in nominating James G. Birney and Thomas Morris. The provisions of the Constitution which conferred external political powers on the owners of slaves and made two hundred and fifty thousand slave holders a privileged autocracy; and the provision for the reclamation of fugitive slaves from service were pronounced anti-republican in character and dangerous to the liberties of the people, and the party did not hesitate to demand that they be abrogated. It utilized McLean's recent dissenting opinion in the Supreme Court,3 that the fugitive slave act of 1793, was unconstitutional, and demanded its immediate repeal. The party boldly asserted that it should treat the fugitive slave clause of the Constitution as utterly null and void, and as forming no part of the supreme law. The party further declared that the power given to Congress by the Constitution to provide for calling out the militia to suppress insurrections, did not make it the duty of the government to maintain slavery by military

lature among the towns of the State to be divided among the inhabitants of each town according to families. The question before the court was, whether the town of Biddeford could legally make such a distribution of its portion of the fund. The court held that the distribution under the act of the Legislature could only be recorded as a division of the money to the inhabitants of the town according to families, and that, by a division according to families must be understood a division per capita or by members. This distribution was ultimately made, the law being maintained in the following year in conformity with the decision. 1 Baltimore Convention, May 27-29, 1844.

2 Platform, Democratic Convention, Baltimore, May 22-26, 1848. * In Prigg vs. Pennsylvania, 16 Peters, 539 (1842).

516

WHIGS, DEMOCRATS, FREE-SOILERS.

force, much less did it make it the duty of citizens to form a part of such a force.1 The revolutionary character of these declarations is apparent when they are compared with the decision of the American courts and the constitutions and laws in force at the time.

The Liberty party seemed to both Whigs and Democrats, as a party sworn to destroy the government. Its members were looked upon as the anarchists of their day. In 1848, they declared that river and harbor improvements were objects of national concern and within the constitutional powers of Congress to make. Their antislavery statement was less revolutionary than before namely, that slavery in the States depended upon State laws alone, which could not be repealed or modified by the Federal government, and for which it was not responsible, therefore, the party proposed "no interference by Congress with slavery within the limits of any State." But they affirmed that the history of the country clearly showed that it was the settled policy of the Nation, as indicated by the adoption of the Ordinance of 1787, not to extend, nationalize or encourage, but to limit and localize and discourage slavery, to which policy the government ought to return. On this platform Van Buren and Charles Francis Adams were nominated for President and Vice-President.2

The Whigs at this time nominated Taylor and Fillmore, and devoted most of their platform to a eulogy of Taylor, but interpolated the declaration that the party stood "on the broad and firm platform of the Constitution, braced up by all its inviolable and sacred guarantees and compromises.3

1 Buffalo, August 30, 1833.

2 Buffalo, Free Soil Convention, August 10-11, 1848.

3 Platform of the Whig Convention, Philadelphia, June 7-8,

THE THREE GREAT ISSUES.

517

It is well not to impute too much importance to the ingenious sophisms of party platforms, but most of them bear unconscious testimony to the dominant notions of their day. Each party was seeking to give administrative utterance to the law of the Constitution, and when successful at the polls, interpreted its clauses as an exposition of a party policy. Its interpretation may be read, in part, in the statute book. The three great questions which arose during the first sixty years of the Constitution,-the tariff, the bank and internal improvements were included in Marshall's decisions, and the constitutionality of each was sustained. It is forgotten now, when these three issues have long been settled and have become a part of the fixed public policy of the country, that at one time they were mere propositions, abstract questions of right under the Constitution, and later, great issues between great parties. The practice of the country has sustained the principle at the base of each of them as laid down by Marshall. The enemies of the bank, of the protective system and of internal improvements would undoubtedly be amazed, could they return to the scene of their activities and witness the triumph of ideas which they so bitterly opposed. The Nemesis of politics at last overtook the cherished policy of the opponents of these distinctive features of American political institutions. More amazing was the fate of slavery, which delayed during the strident years, from the Revolution to the great Compromise, was only the more sudden when it came.

Our review of the law of the Constitution as laid down from the inception of the government to the adoption of the Compromise of 1850 prepares the way for the account of the repeal of that compromise and the events which led up to the abolition of slavery.