THE SOVEREIGN STATES
Notes of a Citizen of Virginia

by James Jackson Kilpatrick

NOTES

1.
Jonathan Elliot (ed.), The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Washington, 1836), III, 301.
2.
Capitalization, punctuation, and spelling have been followed in this section as in Charles E. Tansill (ed.), Documents Illustrating the Formation of the Union Washington, 1927).
3.
Paul Leicester Ford (ed.), The Writings of Thomas Jefferson (New York, 1882-99), V, 461.
4.
Ware v. Hylton, 3 Dallas 199 (1796).
5.
McIlvaine vs. Coxe’s Lessee, 4 Cranch 209, 212 (1808).
6.
Sturges vs. Crowninshield, 4 Wheaton 122 (1819).
7.
Graves, et al, vs. New York, ex rel O’Keefe, 306 U.S. 466, 488 (1939).
8.
James Brown Scott, Sovereign States and Suits Before Arbitral Tribunals and Courts of Justice (New York, 1925), pp. 37ff.
9.
Texas vs. White, 7 Wallace 700 (1869).
10.
Cherokee Nation vs. Georgia, 5 Peters 1 (1831).
11.
Scott, Sovereign States, p. 18.
12.
John Taylor, New Views on the Constitution (Washington, 1823), Section VIII.
13.
See Cohens vs. Virginia; 6 Wheaton 264, “The people made the Constitution, and the people can unmake it. It is a creature of their will and lives only by their will.” Then Marshall fell into obvious error when he continued: “But this supreme and irresistible power to make or to unmake resides only in the whole body of the people, not in any subdivision of them.” The fallacy in this statement is made apparent by the merest reading of Article V. The power to make or unmake does not lie in 51 per cent of the people, or in any fraction of the whole body of the people. It lies in not fewer than three-fourths of the States.
14.
William Blackstone, Commentaries on the Laws of England (Philadelphia, 1825) I, 33-56.
15.
Penhallow vs. Doane, 3 Dallas 54, at 92-93 (1795).
16.
The text here is from Tansill (ed.), Documents on the Formation of the Union, pp. 27-37.
17.
Interestingly enough, the Articles contained a clause that many a Postmaster General, laboring against his postal deficit, must often wish had been retained in the Constitution itself: The Congress was to exact “such postage on the papers passing through the same as may be requisite to defray the expenses of the said office.” It is perhaps worth noting, also, that Article Eleven provided for the admission of Canada into the Confederation, should it wish to accede.
18.
John C. Calhoun, Reports and Public Letters, ed. Richard Crallé (New York, 1855), II, 231-32.
19.
He really didn’t expect any.
20.
Elliot, Debates, III, 28.
21.
Ibid., p. 37.
22.
Ibid., p. 94.
23.
Ibid., p. 42.
24.
Ibid., p. 29.
25.
The rest of the paragraph has not been ignored; it will be quoted elsewhere.
26.
This provision was not changed by the Seventeenth Amendment.
27.
The Federalist, No. 43.
28.
August O. Spain, The Political Theory of John C. Calhoun (New York, 1951), p. 195.
29.
The word “nations” appears twice, in Article I, Section 8: once in authorizing Congress to regulate commerce with foreign nations; again, in authorizing Congress to define and punish offenses against the law of nations.
30.
The Federalist, No. 33.
31.
The Federalist, No. 78.
32.
The Federalist, No. 9.
33.
The Federalist, No. 39.
34.
The Federalist, No. 17.
35.
The Federalist, No. 46.
36.
The Federalist, No. 32.
37.
McCulloch vs. Maryland, 4 Wheaton 316; 403 (1819).
38.
The Supreme Court ultimately was to forget this, too. See United States vs. Butler, 297 U.S. 1 (1936).
39.
McCulloch vs. Maryland, 4 Wheaton 407.
40.
David Robertson, Debates and Other Proceedings of the Convention of Virginia (Richmond, 1805), p. 27.
41.
Ibid., p. 32.
42.
Elliot, Debates, III, 30.
43.
Ibid., p. 40.
44.
Ibid., p. 53-54.
45.
Ibid., p. 87.
46.
Ibid., p. 94.
47.
Ibid., p. 107.
48.
Ibid., p. 137.
49.
Ibid., p. 156.
50.
Ibid., p. 258.
51.
Ibid., p. 301.
52.
Ibid., p. 323.
53.
Ibid., p. 563.
54.
Ibid., p. 565.
55.
Ibid., p. 521-522.
56.
Ibid., p. 553.
57.
Ibid., p. 555.
58.
Albert J. Beveridge, The Life of John Marshall (Boston, 1916), I, 325.
59.
Tansill (ed.), Documents on Formation of the Union, p. 1,018.
60.
Ibid., p. 1,023.
61.
Ibid., pp. 1,034-35.
62.
Ibid., p. 1,037.
63.
Ibid., p. 1,047.
64.
Ibid., p. 1,052.
65.
Ibid., p. 1,056.
66.
United States vs. Sprague, 282 U.S. 716 (1931).
67.
United States vs. Darby, 312 U.S. 100 (1941).
68.
Ullman vs. United States, 24 L.W. 4147 (1956).
1.
Beveridge, Marshall, I, 250-66.
2.
Charles Warren, Jacobin and Junto (Cambridge, Mass., 1931), Introduction.
3.
Georgia vs. Brailsford, 2 Dallas 402 (1792).
4.
The Federalist, No. 81.
5.
Hening, Statutes at Large, XIII, pp. 630-31.
6.
Herman V. Ames, State Documents on Federal Relations (Philadelphia, 1911), p. 7.
7.
Chisholm vs. Georgia, 2 Dallas 419 (1793).
8.
Ames, State Documents, p. 9.
9.
Ibid., p. 10.
10.
See Hollingsworth vs. Virginia, 3 Dallas 378 (1798).
11.
Hening, Statutes at Large, XIII, 1790, pp. 238-39.
12.
Charles Warren, The Supreme Court in United States History (Boston, 1924), I, 63.
13.
Ames, State Documents, pp. 11-13.
14.
Ibid., p. 13.
15.
Penhallow vs. Doane’s Administrators, 3 Dallas 54 (1795).
16.
James Morton Smith, Freedom’s Fetters (Ithaca, N.Y., 1956), p. 10.
17.
John C. Miller, Crisis in Freedom (Boston, 1951), p. 7.
18.
Ibid., p. 13.
19.
Smith, Freedom’s Fetters, p. 283.
20.
Burk fled to Amelia County, Virginia, where he became principal of a college, later turned up in Petersburg, in time became an historian of some reputation, and ultimately died in a duel with a Frenchman when he made the mistake—he was drunk at the time—of denouncing all French as “a pack of rascals.”
21.
Frederick Trevor Hill, Decisive Battles of the Law (New York, 1906), p. 4.
22.
David Robertson, The Trial of James Robertson Callender (Petersburg, Va., 1804).
23.
The sequel to the story is that Callender spent his time in jail writing fresh calumnies against Adams in the form of a new book, which he offered for sale from the jail itself at seventy-five cents a copy. In time, Jefferson contributed fifty dollars toward payment of his fine, but the gesture gained Jefferson nothing. Callender turned on his benefactor, charged him with fatherhood of the mulattoes at Monticello, and otherwise lived up to Adams’ description of him as “not only a repulsive pedant, a gross hypocrite, and an unprincipled oppressor, but . . . in private life, one of the most egregious fools upon the continent.” (Miller, Crisis in Freedom, p. 217.) Callender died, a suicide, drunk, in July, 1803, when he waded into the James River and drowned himself.
24.
Smith (Freedom’s Fetters, pp. 270-71) and Nathan Schachner in The Founding Fathers (New York, 1954), p. 483, quote Baldwin as saying he did not care if the cannonball went “through” the President’s arse, but this homely phrase hasn’t changed in one hundred fifty years; the proper preposition is “up.”
25.
Ethelbert Dudley Warfield, The Kentucky Resolution of 1798, an Historical Study (New York, 1894), pp. 140 ff.
26.
Ibid., p. 95.
27.
The text quoted here, with inconsequential modifications in capitalization and punctuation, is from Samuel Shepherd’s Statutes at Large of Virginia, December, 1798, II, pp. 192-93.
28.
As Taylor introduced the resolution, the Assembly would have declared the acts “unconstitutional, and not law, but utterly null, void, and of no force or effect.” The italicized language was eliminated, with Taylor’s consent, on December 21. He regarded the words, as did Madison in his report in 1799, as surplusage. If an act were unconstitutional, it followed inevitably, without the necessity of any recital, that it also was null and void and of no force or effect.
29.
Henry H. Simms, Life of John Taylor (Richmond, 1932), p. 3.
30.
Russell Kirk, Randolph of Roanoke (Chicago, 1941), p. 53.
31.
Simms, John Taylor, p. 210.
32.
Beveridge, Marshall, II, 397.
33.
The Virginia Report of 1799-1800, together with the Virginia Resolutions of December 21, 1798, the Debate and Proceedings Thereon (Richmond, 1850), p. 74.
34.
Simms, John Taylor, p. 72.
35.
Virginia Report, p. 112.
36.
Ibid.
37.
Ibid., p. 113.
38.
Ibid., p. 114.
39.
Ibid., p. 59.
40.
Text from William McDonald, Select Documents Illustrative of the History of the United States, 1776-1861 (New York, 1899), pp. 158-60.
41.
41. See, for example, Madison’s letter of August, 1830, to Everett. It is fairly representative of at least a dozen such letters he wrote, attempting to refute the very arguments he had advanced in 1799.
42.
United States vs. Butler, 297 U.S. 1 (1936).
43.
Ford (ed.), Writings of Jefferson, X, 141 (letter to Spencer Roane) and 199 (to James Pleasants).
44.
This was tried only once, in Ex parte McCardle, 6 Wallace 318 (1868).
45.
The Federalist, No. 78.
46.
The Federalist, No. 45.
1.
Annals of Congress, 11th Congress, 2nd Session, p. 2,254.
2.
131 U.S. Appndx. xxix-xxxiv.
3.
Annals, 11th Congress, and Session, p. 2,261.
4.
Penhallow vs. Doane, 3 Dallas 54 (1795).
5.
Ross et al vs. Rittenhouse, 2 Dallas 163 (April term 1792).
6.
Ames, State Documents, p. 12.
7.
3 Dallas 81-82.
8.
3 Dallas 90.
9.
3 Dallas 94.
10.
United States vs. Judge Peters, 5 Cranch 136.
11.
This account is taken largely from Thomas Lloyd, A Report of the Whole Trial of General Michael Bright and others before Washington and Peters, in the Circuit Court of the United States, in and for the District of Pennsylvania (Philadelphia, 1809), and from William H. Egle, An Illustrated History of the Commonwealth of Pennsylvania (Harrisburg, 1876).
12.
Ames, State Documents, p. 47.
13.
Annals, 11th Congress, 2nd Session, p. 2,263.
14.
Ames, State Documents, p. 48.
15.
The Olmsted Case, Brightly’s Reports (Philadelphia, 1851), p. 14.
16.
Acts of General Assembly of Virginia, 1809-10, p. 102.
17.
Warren, Supreme Court, I, 63.
18.
Dictionary of American Biography.
19.
It reflects no great credit on Judge McKean that he had earlier appeared as a witness against Cobbet in the same case.
20.
Respublica vs. Cobbet, 3 Dallas 467.
21.
No. 39.
22.
Elliot, Debates, III, 94.
23.
15 Virginia 1.
24.
Fairfax’s Devisee vs. Hunter’s Lessee, 7 Cranch 603 (1813).
25.
Hunter vs. Martin’s Devisees, etc., 4 Munford 3.
26.
Martin vs. Hunter, 1 Wheaton 304 (1816).
27.
Ames, State Documents, p. 26.
28.
See, generally, Louis Martin Sears, Jefferson and the Embargo (Durham, N.C., 1927), esp. pp. 170-86.
29.
Beveridge, Marshall, IV, 15.
30.
Ames, State Documents, p. 370.
31.
Ibid., p. 28.
32.
Ibid., p. 30.
33.
Ibid., pp. 31-33.
34.
Ibid., p. 34.
35.
Ibid., p. 41.
36.
Ibid., p. 41.
37.
Ibid., pp. 43-44.
38.
Annals, April, 1910, p. 1,702.
39.
Quoted by Beveridge, Marshall, p. 427.
40.
William Edward Buckley, Notes on the Hartford Convention (New Haven, Conn., 1934), p. 7.
41.
Ames, State Documents, p. 58.
42.
Ibid., p. 61.
43.
Ibid., p. 64.
44.
Ames, State Documents, pp. 71-72.
45.
Richard N. Current, Daniel Webster and the Rise of National Conservatism (Boston, 1955), p. 17.
46.
Ames, State Documents, p. 76.
47.
Current, Daniel Webster, p. 16.
48.
Buckley, Hartford Convention, p. 7.
49.
Ibid., p. 10.
50.
Ibid., p. 19.
51.
See Otis’ Letters in Defense of the Hartford Convention and the People of Massachusetts (Boston, 1824).
52.
Ibid., p. 16.
53.
Ralph C. H. Catterall, The Second Bank of the United States (Chicago, 1903), p. 6.
54.
Ibid., pp. 30 ff.
55.
McCulloch was an interesting fellow. He started as a penniless clerk, but applied himself so diligently to the arts of fraud that in time, by sheer industry, he managed to embezzle nearly half a million dollars from the bank. In 1823 he was tried for conspiracy to defraud, but strangely enough was acquitted. (Catterall, Second Bank, p, 79.)
56.
Catterall, Second Bank, p. 69.
57.
Ibid., p. 64.
58.
4 Wheaton 316.
59.
Ibid., at 421-22.
60.
Marshall actually was Adams’ second choice. The appointment first went to John Jay, but Jay had no love for circuit riding and declined. Marshall was confirmed January 27, 1801, at the age of forty-five.
61.
The quotation, and those that follow, are taken from Roane’s letters to the Richmond Enquirer, over the signature of “Hampden,” as they are set forth in the John P. Branch Historical Papers, Randolph-Macon College, Vol. I, pp. 357-73, and Vol. II, pp. 51-121.
62.
Ibid., II, 56-57.
63.
See Bank of United States vs. the Planters Bank of Georgia, 9 Wheaton 904 (1824).
64.
Warren, Supreme Court, I, 528.
65.
Catterall, Second Bank, p. 90.
66.
These excerpts and those that follow are from Ames, State Documents, pp. 97-100.
67.
Osborn et al vs. Bank of United States, 9 Wheaton 738, 869 (1824). Also see Warren, Supreme Court, I, 534.
68.
Bank of United States vs. Deveaux et al, 5 Cranch 61, 87 (1809).
69.
9 Wheaton 845-46.
70.
Branch Papers, II, 119.
71.
Ames, State Documents, p. 113.
72.
Catterall, Second Bank, pp. 340-43
73.
Ames, State Documents, p. 137.
74.
Ibid., p. 139.
75.
Jefferson to Madison, Dec. 24, 1825, Ford (ed.), Writings of Jefferson, X, 348.
76.
Ibid., p. 350
77.
Ibid., p. 301.
78.
Jefferson to Albert Gallatin, ibid., p. 91, following Madison’s veto of an act for internal improvements.
79.
Madison, Letters and Other Writings (Philadelphia, 1865), III, 511-44.
80.
Laws of Maryland, 1825-26, p. 236.
81.
Green et al vs. Biddle, 8 Wheaton 1 at 100 (1823).
82.
Ibid., p. 102.
83.
Ibid., pp. 12, 17.
84.
Acts of Kentucky, 1821, pp. 456 ff.
85.
8 Wheaton 100.
86.
Journal of the Senate of Kentucky, 1823, pp. 10-12.
87.
Acts of Kentucky, 1823-24, pp. 488 ff.
88.
Acts of Kentucky, 1824-25, pp. 520-52.
89.
Ibid., p. 225.
90.
Ibid., p. 233.
91.
Bodley vs. Gaither, 3 T. B. Monroe’s Reports 58.
92.
Niles Register, XXIX, 228, 229.
93.
Ames, State Documents, p. 111.
94.
Article 1, Section 10.
95.
Fletcher vs. Peck, 6 Cranch 87 at 131 (1810).
96.
H. von Holst, The Constitutional and Political History of the United States (Chicago, 1889). See also, generally, E. Merton Coulter, Short History of Georgia (Chapel Hill, N. C., 1947).
97.
Von Holst, Constitutional History, p. 446.
98.
Ames, State Documents, p. 122.
99.
Von Holst puts the date at December 28, but no matter; it was not a merry Christmas for Mr. Tassels.
100.
Cherokee Nation vs. Georgia, 5 Peters 1 (1831).
101.
Ibid., at 20.
102.
Worcester vs. Georgia, 6 Peters 515 (1832).
103.
All the students say Jackson never said this, but it certainly does sound like him.
104.
I Statutes 24.
105.
See Hampton and Company vs. United States, 276 U.S. 394 (1928).
106.
Frederic Bancroft, Calhoun and the South Carolina Nullification Movement (Baltimore, 1928), p. 12.
107.
Margaret L. Coit, John C. Calhoun, American Portrait (New York, 1950), p. 249.
108.
Acts of South Carolina, 1825, p. 88.
109.
Acts of Virginia, 1825-26, p. 114.
110.
Acts of South Carolina, 1827-28, pp. 69-78.
111.
Acts of Georgia, 1827, pp. 203-14.
112.
Ames, State Documents, pp. 149-50.
113.
Acts of Alabama, 1827-28, pp. 171-72.
114.
Ames, State Documents, p. 152.
115.
Coit, Calhoun, p. 181.
116.
Ibid., pp. 177-91; and for a detailed account of Cooper’s trial, see Smith, Freedom’s Fetters, pp. 307 ff.
117.
Bancroft, Calhoun and Nullification, p. 39.
118.
Calhoun, Reports and Public Letters, VI, 1-57.
119.
Ames, State Documents, pp. 152-58.
120.
Acts of Kentucky, 1829-30, pp. 287-300.
121.
See Madison, Letters and Other Writings, Vol. IV, notably Madison’s letters to Edward Everett, April, 1830, page 72; to Edward Livingston, May 8, 1830, page 80; to Joseph C. Cabell, May 31, 1830, page 87; to Everett, August 1830 pages 95-106; to Cabell, September, 1831, page 195; to Trist, December, 1831, pages 204-11, and 228; to C. E. Haynes, August, 1832, page 224; to Andrew Stevenson, February, 1833, page 269; and Madison’s memorandum on nullification (1835-36), pages 395-425. The trouble was that Madison had done too good a job in 1799; he had reasoned himself to certain sound conclusions then, and could not wiggle out of his argument thirty years later.
122.
Ames, State Documents, pp. 164 ff.
123.
Ibid.
124.
Calhoun, Reports and Public Letters, VI, 144-93.
125.
State Papers on Nullification (Boston, 1834), especially pp. 1-74.
126.
Ironically enough, this act was first to be invoked against Ohio some years later, to protect a U.S. Marshal seized by State officials in a fugitive slave case.
127.
Even Bancroft, no nullifier, concedes this. (Calhoun and Nullification, p. 167.)
128.
The point is ably argued in Calhoun’s Disquisition on Government; Works, I, 7 ff.
129.
136 U.S. 211.
130.
Constitution of the United States of America, ed. Edward S. Corwin (Washington, 1953), p. 585.
131.
United States vs. California, 332 U.S. 19 (1947); United States vs. Louisiana, 339 U.S. 699 (1950); and United States vs. Texas, 339 U.S. 707 (1950).
132.
United States vs. Texas, 143 U.S. 621 (1892).
133.
United States vs. Minnesota, 270 U.S. 181 (1926) and United States vs. Utah, 283 U.S. 64 (1931).
134.
Littleton Tazewell Waller, Review of President Jackson’s Proclamation (Norfolk, 1888), p. 103.
135.
Congressional Debates, 1829-30, pp. 269-70.
136.
Quoted by Calhoun in the Fort Hill address.
137.
An Exposition of the Virginia Resolution of 1798, by “Locke,” attributed to Abel Parker Upshur (Philadelphia, 1833).
138.
But it is. A certain carpetbagger by the name of Haldore Hanson (see Hearings of the Subcommittee of the Committee on Foreign Relations, U.S. Senate, 81st Congress, pursuant to S. Res. 231, Part I, pages 73-83, and 241-71) not long ago wrote a piece for the New Republic in which he deliberately made it appear that the author of these notes sought to defend slavery.
139.
Elliot, Debates, III, 82.
140.
Ibid., pp. 269-70, 452.
141.
Ibid., p. 270.
142.
Statutes at Large, I, 302.
143.
Ames, State Documents, p. 195.
144.
Ibid., p. 196.
145.
Hillary A. Herbert, The Abolition Crusade and Its Consequences (New York, 1912), p. 58.
146.
Georgia, outraged at Garrison, put up a $5,000 reward for his capture in an effort to try him for violation of a State law against inflammatory material in the mails.
147.
Resolutions of South Carolina, 1835; Ames, State Documents, pp. 216-17.
148.
Message of Governor Troup of Georgia (1825), Ames, State Documents, p. 208.
149.
Ames, State Documents, p. 206.
150.
Warren, Supreme Court, II, 283.
151.
Elkison vs. Deliesseline, 8 Federal Cases. No. 4366 (1823).
152.
To the mild amusement of John Marshall. “Our brother Johnson,” he wrote Story, “I perceive, has hung himself on a Democratic snag in a hedge composed entirely of thorny State-rights in South Carolina, and will find some difficulty, I fear, in getting off into smooth, open ground. . . . You have, it is said, some laws in Massachusetts not very unlike in principles to that which our brother has declared unconstitutional. We have its twin brother in Virginia; a case has been brought before me in which I might have considered its constitutionality (The Brig Wilson, 1 Brock 423), had I chosen to do so; but it was not absolutely necessary, and as I am not fond of butting against a wall in sport, I escaped on the construction of the act.” (Warren, Supreme Court, II, 86.)
153.
Acts of December 19, 1835.
154.
Ames, State Documents, p. 238, and see reference cited.
155.
Herbert, Abolition Crusade, pp. 9, 115.
156.
For typical laws, see Massachusetts, Acts of 1843, P. 33; Pennsylvania, Acts of 1847, p. 206; and Rhode Island, Acts of 1848, p. 12.
157.
Prigg vs. Pennsylvania, 16 Peters 539 (1842) was the most notable case.
158.
Acts of Virginia, 1839-40, pp. 168-69.
159.
Ibid., 1840-41, pp. 79-82.
160.
Report of the Select Committee of the House of Delegates of Virginia on the controversy with New York, 1840 (Richmond, 1841).
161.
The act was later held null. See Warren, Supreme Court, II, 1445.
162.
Except, oddly enough, as to Accomack County, on Virginia’s Eastern shore. (Acts of Virginia, 1845).
163.
Atticus had a long life; a citizen of Maine, visiting in Savannah in 1902, found him still working around the docks, aged eighty-seven. A skilled shipcaulker, Atticus was valued by his owners at $600 at the time of his trip to Maine.
164.
Constitution, Article I, Section 10:3.
165.
Much of this account has been put together from the various acts, resolutions, and committee reports of the legislatures of Maine and Georgia from 1837 through 1840: See also E. Merton Coulter, Short History of Georgia (Chapel Hill, 1933); an article, “A Fugitive Slave Case in Maine,” by Harry S. Burrage, in Maine’s Historical Memorials, August [?], 1922; and Historical Sketch and Roster of the Aroostook War 1839 (Augusta, 1904).
166.
Laws of Connecticut, 1845, p. 21.
167.
Laws of Maryland, 1844-45, P. Res. No. 25.
168.
Laws of Ohio, 1844-45, P. 437.
169.
Laws of Vermont, 1842, p. 97; 1843, P. 32; 1844, p. 28; 1845, p. 36; and 1846, p. 48. Vermont was really upset about this thing.
170.
Massachusetts, Acts and Resolutions, 1843, p. 68; see also 1844, p. 319.
171.
Ibid., 1845, p. 598.
172.
Prigg vs. Pennsylvania, 16 Peters 539 (1842). For an interesting discussion of Pennsylvania’s reliance upon a right of “interposition,” see the argument of her attorney general Johnson at 607.
173.
Massachusetts, Acts, 1843, Chapter 69.
174.
Kentucky vs. Dennison, 24 Howard 66 (1861).
175.
Sandford later went insane and never figured in the case at all; see Warren, Supreme Court, III, 3.
176.
See, for example, Elbert William R. Ewing, Legal and Historical Status of the Dred Scott Decision (Washington, 1909).
177.
Edward S. Corwin, “The Dred Scott Decision in the Light of Contemporary Legal Doctrine,” American Historical Review, XVII (1911), pp. 52 ff.
178.
Warren, Supreme Court, III, pp. 38-39.
179.
Warren’s compendium of newspaper comment in his chapter on the Dred Scott case is enough to reduce the protests of Southern newspapers against the Supreme Court’s school decree to the merest spring zephyrs; a number of Northern newspaper editors, who so strenuously deplore “disrespect” for the Court, should read what their predecessors had to say.
180.
Resolves of the General Assembly of Vermont, October, 1858, pp. 67-68.
181.
Resolutions of Maine, 1857, p. 6.
182.
Massachusetts, Resolves, March 27, 1858.
183.
3 Wisconsin Reports 1.
184.
Ableman vs. Booth, 21 Howard 506 (1859).
185.
General Laws of Wisconsin, 1859, pp. 247-48.
186.
Fletcher vs. Peck, 6 Cranch 87 (1810).
187.
Trustees of Dartmouth College vs. Woodward, 4 Wheaton 518, 624 (1819).
188.
Providence Bank vs. Billings, 4 Peters 514 (1830).
189.
Ogden vs. Saunders, 12 Wheaton 213 (1827). Bushrod Washington found it unsettling to disagree with Marshall.
190.
Mechanics and Traders Branch, etc., vs. Debolt, 1 Ohio State 591 (1853).
191.
Ibid.
192.
Knoop, Treasurer, etc., vs. Piqua Branch, 1 Ohio State 603 (1853).
193.
Piqua Branch, etc., vs. Knoop, 16 Howard 369 (1854).
194.
See Warren, Supreme Court, II, 524.
195.
Ohio Life Insurance and Trust Company vs. Debolt, 16 Howard 416 (1854).
196.
Dodge vs. Woolsey, 18 Howard 331 (1856).
197.
7 Howard 1; 52 (1849). The case grew out of events in Rhode Island that led to Dorr’s Rebellion in 1841-42. For an interesting discussion, see Warren, Supreme Court, II, 460 ff.
198.
See State of Ohio vs. Moore, 5 Ohio State 444; Ross County Bank, etc., vs. Lewis, 5 Ohio State 447; and on an interesting corollary question, involving a newly levied State tax on property of Ohio University which fifty years earlier had been “forever exempted from all State taxes,” see Matheny vs. Golden, 5 Ohio State 361.
199.
Sandusky City Bank vs. Wilbor, 7 Ohio State 481.
200.
Skelly vs. Jefferson Bank, 9 Ohio State 606 (1859).
201.
Jefferson Branch Bank vs. Shelly, 1 Black 436 (1862).
202.
Some three hundred cases involving municipal bonds reached the Supreme Court in the period immediately following the Civil War, more than half of them from Illinois and Missouri; see Warren, Supreme Court, III, 254.
203.
1 Wallace 175 (1864).
204.
Riggs vs. Johnson County, 6 Wallace 166, at 195, cited by Warren in an article, “Federal and State Court Interference,” 43 Harvard Law Review, 345 at 378.
205.
See Amy vs. Supervisors, 11 Wallace 136.
206.
See New Orleans Waterworks vs. Louisiana Sugar Company, 125 U.S. 18 (1888). This thirty-year fight over State impairment of contracts has probably been treated too briefly here. For two significant cases, see Meyer vs. Muscatine, 1 Wallace 384, and United States vs. Muscatine, 8 Wallace 575. See, too, Fred Rodell’s Nine Men (New York, 1955), P. 153.
207.
Texas vs. White, 7 Wallace 700 (1869).
208.
Knox vs. Lee, 12 Wallace 457 (1871).
209.
Dean Alfange, The Supreme Court and the National Will (Garden City, N. Y., 1937), p. 88.
210.
Gray was an awesome fellow. He married at sixty-one, for the first time, and interestingly enough, married a daughter of Judge Matthews. Gray was only four years younger than his father-in-law, who sat down the bench from him. This has nothing to do with State sovereignty.
211.
He entered Columbia College at thirteen and was graduated at seventeen.
212.
Marbury vs. Madison, 1 Cranch 137 (1803), voiding a section of the judiciary act of 1789; Scott vs. Sandford, 19 Howard 393 (1857), describing the Missouri Compromise as unconstitutional; Gordon vs. United States, 2 Wallace 561 (1865), dealing with appeals from decisions of the Court of Claims; and Ex parte Garland, 4 Wallace 333 (1867), voiding an act of 1865 which undertook to disbar all attorneys who had served in the Confederate cause.
213.
On the very day Chase read his opinion in Hepburn vs. Griswold, 8 Wallace 603, Grant sent to the Senate the nomination of Bradley and Strong, two justices who might be expected to reverse the decision. Fifteen months later, they did exactly that.
214.
United States vs. Dewitt, 9 Wallace 41 (1870).
215.
Justices vs. Murray, 9 Wallace 274 (1870).
216.
Five per cent on incomes above $1,000. Them were the days.
217.
Collector vs. Day, 11 Wallace 113 (1871).
218.
Dobbins vs. Commissioners of Erie County, 16 Peters 435 (1842).
219.
This held good until expressly overruled in 1939, Graves vs. O’Keefe, 306 U.S. 466 (1939).
220.
United States vs. Klein, 13 Wallace 128 (1872).
221.
Tarble’s Case, 13 Wallace 397 (1872).
222.
9 Wallace 579 (1870).
223.
16 Wallace 479 (1873).
224.
Bradwell vs. The State, 16 Wallace 130 (1873). That the Court was a little unsettled by Mrs. Bradwell’s petition may be judged by the fact that Miller wrote the Court’s opinion. Bradley wrote a separate opinion (“The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occasions of civil life. . . . The harmony, not to say the identity, of interests and views which belong, or should belong, to the family institution, is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband”). Swayne and Field concurred with Bradley. Chief Justice Chase dissented from the judgment of the Court, and from all the opinions.
225.
Hurtado vs. California, 110 U.S. 516 (1884).
226.
Powell vs. Pennsylvania, 127 U.S. 678 (1888).
227.
Bartemeyer vs. Iowa, 18 Wallace 129 (1874), and Mugler vs. Kansas, 123 U.S. 623 (1887).
228.
Stone vs. Farmers Loan and Trust Company, 116 U.S. 307 (1886).
229.
16 Wallace 36 (1873).
230.
Warren, Supreme Court, III, 257.
231.
Ibid., p. 268.
232.
92 U.S. 214.
233.
Ibid., at 542.
234.
106 U.S. 629 (1883).
235.
113 U.S. 27 (1885).
236.
New York vs. Miln, 11 Peters 102 (1837). The opinion did not last very long.
237.
Charles River Co. vs. Warren Bridge Co., 11 Peters 420 (1837).
238.
See Munn vs. Illinois, 94 U.S. 113 (1877); also at 155 and 180. California also fared well, for a time, in combat with the railroads.
239.
Beer Company vs. Massachusetts, 97 U.S. 25, and Stone vs. Mississippi, 101 U.S. 814 (1880).
240.
See Henderson vs. New York, 92 U.S. 259 (1876); Chy Lung vs. Freeman, 92 U.S. 275 (1876); California vs. Central Pacific Railroad, 127 U.S. 1 (1888); and, as to currency, Juilliard vs. Greenman, 110 U.S. 421 (1884).
241.
Hammer vs. Dagenhart, 247 U.S. 251, at 269 (1918).
242.
United States vs. Darby, 312 U.S. at 116 (1941). Much earlier, of course, this concept had been felt out in an act forbidding interstate slave trade. Groves vs. Slaughter, 15 Peters 449 (1841).
243.
Appalachian Coals, Inc., vs. United States, 288 U.S. 344, 372 (1933).
244.
Henderson vs. New York, 92 U.S. 259 (1876).
245.
Wabash, St. Louis, and Pacific Railway Company vs. Illinois, 118 U.S. 557 (1886).
246.
See Warren, Supreme Court, III, 419. The case was Leisy and Company vs. Hardin, 135 U.S. 100 (1890).
247.
Kidd vs. Pearson, 128 U.S. 1 (1888).
248.
United States vs. E. C. Knight Company, 156 U.S. 1 (1895).
249.
Pollock vs. Farmers Loan and Trust Company, 158 U.S. 601 (1895).
250.
3 Dallas 171 (1796).
251.
Alfange, The Supreme Court and the National Will, quoting Charles and Mary Beard.
252.
In re Debs, 158 U.S. 564 (1895).
253.
Reagan vs. Farmers Loan and Trust Company, 154 U.S. 362 (1894), and Baltimore and Ohio Railroad vs. Baugh, 149 U.S. 368 (1893).
254.
United States vs. Gettysburg Electric Railway Company, 160 U.S. 668 (1896).
255.
Adair vs. United States, 208 U.S. 161 (1908). This was the start of the circle that came full in 1956 in the Hanson Case. From ruling that a railroad had a right not to hire union men, the Court came in time to rule that a railroad had no right to hire non-union men.
256.
Champion vs. Ames, 188 U.S. 321 (1903).
257.
Hippolite Egg Company vs. United States, 220 U.S. 45.
258.
United States vs. Jin Fuey May, 241 U.S. 394.
259.
Hoke vs. United States, 227 U.S. 308 (1913). The Court extended its ban even to an indignant polygamist, peacefully transporting his wives not for public profit, but for private enjoyment. Cleveland vs. United States, 329 U.S. 14 (1946).
260.
Ex parte Young, 209 U.S. 123 (1908).
261.
Ibid., at 125.
262.
Houston Electric and Water Company vs. United States, 234 U.S. 342 (1914).
263.
United States vs. Chandler-Dunbar Company, 229 U.S. 53 (1913); and see also Arizona vs. California, 283 U.S. 423 (1931); Ashwander vs. TVA, 297 U.S. 288 (1936); and United States vs. Appalachian Electric Power Company, 311 U.S. 377 (1940).
264.
United States vs. Ohio Oil Company, 234 U.S. 548; see also Oklahoma vs. Kansas Natural Gas Company, 221 U.S. 229; Eureka Pipe Line Company vs. Hallanan, 257 U.S. 265; United Fuel Gas Company vs. Hallanan, 257 U.S. 277; Missouri ex rel Barrett vs. Kansas Natural Gas Company, 265 U.S. 298; Federal Power Commission vs. National Gas Pipeline Company, 315 U.S. 575, in which Federal authority was asserted over the prices at which natural gas could be sold to distribution companies); Colorado-Wyoming Company vs. Commission, 324 U.S. 626; Cities Service Company vs. Peerless Company, 340 U.S. 179; and finally, of course, the famed Phillips Case (347 U.S. 672), which overturned the Peerless Company Case and asserted Federal authority over the price on gas at the wellhead. These are merely guidepost cases, but they are representative of the engulfing trend of Federal domination of an entire industry.
265.
Hammer vs. Dagenhart, 247 U.S. 251 (1918).
266.
Stafford vs. Wallace, 258 U.S. 495 (1922).
267.
Chicago Board of Trade vs. Olsen, 262 U.S. 1 (1923).
268.
Address by Senator A. Willis Robertson of Virginia in the Senate, March 23, 1956.
269.
Rhode Island vs. Palmer, 253 U.S. 350 (1920).
270.
Archibald E. Stevenson, States Rights and National Prohibition (New York, 1927).
271.
Ibid., p. 6.
272.
Ibid.
273.
A.L.A. Schechter Poultry Corporation vs. United States, 295 U.S. 495, 528 (1935).
274.
Ibid., at 553.
275.
United States vs. Butler, 297 U.S. 1 (1936).
276.
Ibid., at 77.
277.
Ibid., at 64-66.
278.
298 U.S. 238 at 291.
279.
Ibid., at 295-96.
280.
Owen J. Roberts, The Court and the Constitution (Cambridge, Mass., 1951), p. 49.
281.
NLRB vs. Jones and Laughlin Steel Corporation, 301 U.S. 1. See also NLRB vs. Friedman-Harry Marks, 301 U.S. 58, and NLRB vs. Fruehauf Trailer Company, 301 U.S. 49, all decided the same day.
282.
Charles C. Steward Machine Company vs. Davis, 301 U.S. 548, at 599 (1937).
283.
Ibid., at 616.
284.
312 U.S. 100, at 124 (1941).
285.
Roberts, The Court and the Constitution, p. 56.
286.
United States vs. Wrightwood Dairy Company, 315 U.S. 110, at 118-119 (1942).
287.
Wickard vs. Filburn, 317 U.S. 111 (1942).
1.
Brown vs. Board of Education of Topeka, Shawnee County, Kansas, 347 U.S. 483 (1954).
2.
Missouri ex rel Games vs. Canada, 305 U.S. 337 (1938).
3.
McLaurin vs. Oklahoma State Regents, 339 U.S. 637 (1950).
4.
Sweatt vs. Painter, 339 U.S. 629 (1950).
5.
See, for example, Horace E. Flack’s “The Adoption of the Fourteenth Amendment,” Johns Hopkins Studies (Baltimore, 1908); Joseph F. Ingham’s “Unconstitutional Amendments,” Dickinson Law Review XXXIII (March, 1929), 161-68; and Walter J. Suthon’s “The Dubious Origin of the Fourteenth Amendment,” Tulane Law Review, XVIII (December, 1953), 22-24.
6.
Joseph B. James, The Forming of the Fourteenth Amendment (Urbana, Ill., 1956), pp. 37-38.
7.
Ibid., p. 155.
8.
Georgia vs. Stanton, 6 Wallace 50 (1868).
9.
Ex parte McCardle, 6 Wallace 318 (1868).
10.
Coleman vs. Miller, 307 U.S. 433 (1939).
11.
Walton H. Hamilton, “Constitutionalism,” Encyclopedia of the Social Sciences (New York, 1937), IV, 255.
12.
Congressional Globe, 39th Congress, 1st Session (1866), p. 211.
13.
Ibid., p. 500.
14.
Ibid., p. 475.
15.
Ibid., p. 1,117.
16.
Ibid., pp. 806, 813.
17.
Ibid., p. 2,467.
18.
Ibid., p. 2,459.
19.
James, Fourteenth Amendment, pp. 29-30.
20.
Ibid., p. 30.
21.
See comments of Boyer and Broomall, Congressional Globe, 39th Congress, 1st Session, pp. 2,467 and 2,498.
22.
Ibid., p. 3,144.
23.
James, Fourteenth Amendment, p. 163.
24.
Ibid., p. 167.
25.
Ibid., p. 180,
26.
14 Statutes at Large 343; see also 13. Statutes 191.
27.
Message, 1867.
28.
Kansas, General Statutes (1868), Chapter 18.
29.
Report of Commission of Common Schools of Ohio (1867), p. 477, Table B.
30.
163 U.S. 537; 544 (1896).
31.
Cumming vs. Board of Education, 175 U.S. 528 (1899).
32.
275 U.S. 78; 86 (1927).
33.
West Coast Hotel vs. Parrish, 300 U.S. 379 at 403 (1937).
34.
Carter vs. Carter Coal Company, 298 U.S. 238 (1936).
35.
See Calhoun’s Fort Hill Address.
36.
Address of Chief Justice Walter Clark, of the North Carolina Supreme Court, Cooper Union, New York City, January 27, 1914 (2nd Edition), pp. 10-11.
37.
281 U.S. 586, at 595 (1930).
38.
Adamson vs. California, 332 U.S. 46 (1947).
39.
346 U.S. 249 (1953).
40.
William O. Douglas, “Stare Decisis,” 49 Columbia Law Review.
41.
Letter to Thomas Ritchie (1820), Ford (ed.), Writings of Jefferson, X, 170.
42.
Smith vs. Allwright, 321 U.S. 649 (1944). For a tabulation of Court reversals, see Brandeis’ dissenting opinion in Burnet vs. Coronado Oil and Gas Company, 285 U.S. 393, at 406-07 (1932); also the Douglas article previously cited, and a tabulation in the Congressional Record, June 18, 1953, at 7,090.
43.
Congressional Globe, 42nd Congress, 2nd Session (1872), p. 3,189.
44.
Constitutional Limitations (6th Ed.), p. 704, quoted in People vs. Bray, 105 California 344.
45.
Thomas Cooley, The General Principles of Constitutional Law (Boston, 1880), p. 49. See Barbier vs. Connolly, 113 U.S. 27 (1885).
46.
State vs. Mamlock, 109 Pacific 47, quoting from State vs. Wise, 70 Minnesota 99.
47.
United States vs. California, 332 U.S. 19 (1947).
48.
Ibid., at 43.
49.
Ibid., at 44.
50.
United States vs. Louisiana, 339 U.S. 699 (1950).
51.
United States vs. Texas, 339 U.S. 707, 724 (1950).
52.
346 U.S. 485.
53.
348 U.S. 61.
54.
Pennsylvania vs. Nelson, 24 L.W. 4165.
55.
24 L.W. 4209.
56.
347 U.S. 672.
57.
Slochower vs. Board of Higher Education, etc., 24 L.W. 4178.
58.
Railway Employees’ Department, etc., vs. Hanson, 24 L.W. 4251, at 4253.
59.
Brief Inquiry into the Nature and Character of the Federal Government (Petersburg, Va., 1840), p. 130.
60.
Williams vs. Georgia, 348 U.S. 854; Williams vs. State, 211 Ga. 763.

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