This was the opinion of a unanimous court, in which five out of the
seven judges had been nominated by a Republican President. But it caused
great excitement at the South. On March 24, 1819, Marshall wrote from
Richmond to Judge Story: “Our opinion in the bank case has roused the
sleeping spirit of Virginia, if indeed it ever sleeps. It will, I
understand, be attacked in the papers with some asperity, and as those
who favor it never write for the public it will remain undefended, and
of course be considered as _damnably heretical_.” Again, two months
later, “The opinion in the bank case continues to be denounced by the
Democracy of Virginia.... If the principles which have been advanced on
this occasion were to prevail the Constitution would be converted into
the old Confederation.”
Another great opinion, of the same class, and also bitterly attacked,
was given in the case of Cohens _v._ Virginia, in 1821. This case came
up on a writ of error from a local court at Norfolk. Cohens had been
convicted of selling lottery tickets there, contrary to the statute of
Virginia. He had set up as a defense an act of Congress providing for
drawing lotteries in the city of Washington, and insisted that this
authorized his selling tickets in Virginia. When the case reached the
Supreme Court of the United States, the counsel for the State first
denied the jurisdiction of that court, on the ground, among others, that
the Constitution allowed no such appeal from a state court, and that the
Judiciary Act of 1789 was unconstitutional in purporting to authorize
it. In an elaborate opinion by Marshall, one of his greatest efforts,
these contentions were negatived. When afterwards, the case came to be
argued on the merits, the decision below was sustained, on the ground
that the act of Congress did not purport to authorize the sale of
tickets in any State which forbade the sale of them.
Here again the court was unanimous; and it was composed of the same
judges who decided McCulloch _v._ Maryland. But the reception of Cohens
_v._ Virginia at the South was even worse than that accorded the other
case. Judge Roane, of the Court of Appeals in Virginia, attacked the
opinion anonymously in the newspapers, with what Marshall called
“coarseness and malignity.” Jefferson, also, bitterly objected to it.
Public-domain text, read in full here on John Shaqi.
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