THE LIFE OF JOHN MARSHALL

Standard Library Edition

IN FOUR VOLUMES

VOLUME IV

JOHN MARSHALL
From the portrait by Henry Inman

THE LIFE
OF
JOHN MARSHALL

BY
ALBERT J. BEVERIDGE

Volume IV

THE BUILDING OF THE NATION

1815-1835

BOSTON AND NEW YORK
HOUGHTON MIFFLIN COMPANY
The Riverside Press Cambridge

COPYRIGHT, 1919, BY ALBERT J. BEVERIDGE
ALL RIGHTS RESERVED

CONTENTS

[I.]THE PERIOD OF AMERICANIZATION[1]
War and Marshall's career—Federalists become British partisans—Theirhatred of France—Republicans are exactly the reverse—Thedeep and opposite prejudices of Marshall and Jefferson—Causeof their conflicting views—The people become Europeanized—Theylose sight of American considerations—Critical need ofa National American sentiment—Origin of the War of 1812—Americasuffers from both European belligerents—British depredations—Jeffersonretaliates by ineffective peaceful methods—TheEmbargo laws passed—The Federalists enraged—Pickeringmakes sensational speech in the Senate—Marshall endorses it—Congresspasses the "Force Act"—Jefferson practices an autocraticNationalism—New England Federalists propose armed resistanceand openly advocate secession—Marshall rebukes thosewho resist National authority—The case of Gideon Olmstead—Pennsylvaniaforcibly resists order of the United States Court—Marshall'sopinion in U.S. vs. Judge Peters—Its historical significance—TheBritish Minister repeats the tactics of Genêt—Federalistsuphold him—Republicans make great gains in New England—Marshall'sdespondent letter—Henry Clay's heroic speeches—Waris declared—Federalists violently oppose it: "The child of Prostitution"—JosephStory indignant and alarmed—Marshall proposedas Presidential candidate of the peace party—Writes longletter advocating coalition of "all who wish peace"—DenouncesNapoleon and the Decree of St. Cloud—He heads Virginia Commissionto select trade route to the West—Makes extended and difficultjourney through the mountains—Writes statesmanlike report—Peaceparty nominates Clinton—Marshall criticizes report of Secretaryof State on the causes of the war—New England Federalistsdetermine upon secession—The Administration pamphlet on expatriation—JohnLowell brilliantly attacks it—Marshall warmlyapproves Lowell's essay—His judicial opinions on expatriation—Thecoming of peace—Results of the war—The new America isborn.
[II.]MARSHALL AND STORY[59]
Marshall's greatest Constitutional decisions given during the decadeafter peace is declared—Majority of Supreme Court becomesRepublican—Marshall's influence over the Associate Justices—Hislife in Richmond—His negligent attire—Personal anecdotes—Interestin farming—Simplicity of habits—Holds Circuit Courtat Raleigh—Marshall's devotion to his wife—His religious belief—Hischildren—Life at Oak Hill—Generosity—Member of QuoitClub—His "lawyer dinners"—Delights in the reading of poetryand fiction—Familiarity and friendliness—Joseph Story firstmeets the Chief Justice—Is captivated by his personality—Marshall'sdignity in presiding over Supreme Court—Quickness at repartee—Lifein Washington—Marshall and Associate Justices livetogether in same boarding-house—His dislike of publicity—Honorarydegrees conferred—Esteem of his contemporaries—His personality—Calmnessof manner—Strength of intellect—His irresistiblecharm—Likeness to Abraham Lincoln—The strong andbrilliant bar practicing before the Supreme Court—Legal oratory ofthe period—Length of arguments—Joseph Story—His characterand attainments—Birth and family—A Republican—Devotionto Marshall—Their friendship mutually helpful—Jefferson fearsMarshall's influence on Story—Edward Livingston sues Jeffersonfor one hundred thousand dollars—Circumstances leading toBatture litigation—Jefferson's desire to name District Judgein Virginia—Jefferson in letter attacks Marshall—He dictatesappointment of John Tyler to succeed Cyrus Griffin—Death of JusticeCushing of the Supreme Court—Jefferson tries to name Cushing'ssuccessor—He objects to Story—Madison wishes to complywith Jefferson's request—His consequent difficulty in filling place—Appointmentof Story—Jefferson prepares brief on Batture case—Publicinterest in case—Case is heard—Marshall's opinionreflects on Jefferson—Chancellor Kent's opinion—Jefferson andLivingston publish statements—Marshall ascribes Jefferson's animosityin subsequent years to the Batture litigation.
[III.]INTERNATIONAL LAW[117]
Marshall uniformly upholds acts of Congress even when he thinksthem unwise and of doubtful constitutionality—The Embargo,Non-Importation, and Non-Intercourse laws—Marshall's slightknowledge of admiralty law—His dependence on Story—Marshallis supreme only in Constitutional law—High rank of his opinionson international law—Examples: The Schooner Exchange;U.S. vs. Palmer; The Divina Pastora; The Venus; The Nereid—Scenesin the court-room—Appearance of the Justices—WilliamPinkney the leader of the American bar—His learning and eloquence—Hisextravagant dress and arrogant manner—Story's admirationof him—Marshall's tribute—Character of the bar—Itsmembers statesmen as well as lawyers—The attendance of womenat arguments—Mrs. Smith's letter—American Insurance Co.et al. vs. David Canter—Story delivers the opinion in Martin vs.Hunter's Lessee—Reason for Marshall's declining to sit in thatcase—The Virginia Republican organization—The great politicaltriumvirate, Roane, Ritchie, and Taylor—The Fairfax litigation—TheMarshall purchase of a part of the Fairfax estate—Separatepurchases of James M. Marshall—The Marshall and Virginia "compromise"—VirginiaCourt of Appeals decides in favor of Hunter—National SupremeCourt reverses State court—The latter's bold defianceof the National tribunal—Marshall refuses to sit in the caseof the Granville heirs—History of the Granville litigation—Thesecond appeal from the Virginia Court in the Fairfax-Martin-Huntercase—Story's great opinion in Fairfax's Devisee vs. Hunter's Lessee—Hisfirst Constitutional pronouncement—Its resemblance toMarshall's opinions—The Chief Justice disapproves one ground ofStory's opinion—His letter to his brother—Anger of the Virginiajudges at reversal of their judgment—The Virginia Republicanorganization prepares to attack Marshall.
[IV.]FINANCIAL AND MORAL CHAOS[168]
February and March, 1819, mark an epoch in American history—Marshall,at that time, delivers three of his greatest opinions—Hesurveys the state of the country—Beholds terrible conditions—Themoral, economic, and social breakdown—Bad banking the immediatecause of the catastrophe—Sound and brilliant career ofthe first Bank of the United States—Causes of popular antagonismto it—Jealousy of the State banks—Jefferson's hostility to a centralbank—John Adams's description of State banking methods—Oppositionto rechartering the National institution—Congress refusesto recharter it—Abnormal increase of State banks—Theirgreat and unjustifiable profits—Congress forced to charter secondBank of the United States—Immoral and uneconomic methodsof State banks—Growth of "private banks"—Few restrictionsplaced on State and private banks and none regarded by them—Popularcraze for more "money"—Character and habits of Westernsettlers—Local banks prey upon them—Marshall's personal experience—Statebanks control local press, bar, and courts—Ruthlessforeclosures of mortgages and incredible sacrifices of property—Counterfeitingand crime—People unjustly blame Bank of theUnited States for their financial misfortunes—It is, at first, bad, andcorruptly managed—Is subsequently well administered—Populardemand for bankruptcy laws—State "insolvency" statutes badlydrawn and ruinously executed—Speculators use them to escape thepayment of their liabilities while retaining their assets—Foreclosuresand sheriff's sales increase—Demand for "stay laws" inKentucky—Marshall's intimate personal knowledge of conditionsin that State—States begin to tax National Bank out of existence—Marshalldelivers one of his great trilogy of opinions of 1819on contract, fraud, and banking—Effect of the decision of theSupreme Court in Sturges vs. Crowninshield.
[V.]THE DARTMOUTH COLLEGE CASE[220]
The Dartmouth College case affected by the state of the country—Marshallprepares his opinion while on his vacation—His viewswell known—His opinion in New Jersey vs. Wilson—EleazarWheelock's frontier Indian school—The voyage and mission ofWhitaker and Occom—Funds to aid the school raised in Englandand Scotland—The Earl of Dartmouth—Governor Wentworthgrants a royal charter—Provisions of this document—ColonelJohn Wheelock becomes President of the College—The beginningsof strife—Obscure and confused origins of the Dartmouthcontroversy, including the slander of a woman's reputation, sectarianwarfare, personal animosities, and partisan conflict—TheCollege Trustees and President Wheelock become enemies—Thehostile factions attack one another by means of pamphlets—TheTrustees remove Wheelock from the Presidency—The RepublicanLegislature passes laws violative of the College Charter and establishingDartmouth University—Violent political controversy—TheCollege Trustees and officers refuse to yield—The famous suit ofTrustees of Dartmouth College vs. Woodward is brought—The contractclause of the Constitution is but lightly considered by Webster,Mason, and Smith, attorneys for the College—Supreme Court ofNew Hampshire upholds the acts of the Legislature—Chief JusticeRichardson delivers able opinion—The case appealed to theSupreme Court of the United States—Webster makes his first greatargument before that tribunal—He rests his case largely on "naturalright" and "fundamental principles," and relies but little on thecontract clause—He has small hopes of success—The court cannotagree—Activity of College Trustees and officers during the summerand autumn of 1818—Chancellor James Kent advises JusticesJohnson and Livingston of the Supreme Court—William Pinkneyis retained by the opponents of the College—He plans to ask for areargument and makes careful preparation—Webster is alarmed—TheSupreme Court opens in February, 1819—Marshall ignoresPinkney and reads his opinion to which five Associate Justices assent—Thejoy of Webster and disgust of Pinkney—Hopkinson's comment—Theeffect of Marshall's opinion—The foundations of goodfaith—Comments upon Marshall's opinion—The persistent vitalityof his doctrine as announced in the Dartmouth College case—Departuresfrom it—Recent discussions of Marshall's theory.
[VI.]VITALIZING THE CONSTITUTION[282]
The third of Marshall's opinions delivered in 1819—The facts inthe case of M'Culloch vs. Maryland—Pinkney makes the last butone of his great arguments—The final effort of Luther Martin—Marshalldelivers his historic opinion—He announces a radicalNationalism—"The power to tax involves the power to destroy"—Marshall'sopinion is violently attacked—Niles assails it in hisRegister—Declares it "more dangerous than foreign invasion"—Marshall'sopinion more widely published than any previous judicialpronouncement—The Virginia Republican organization perceivesits opportunity and strikes—Marshall tells Story of thecoming assault—Roane attacks in the Richmond Enquirer—"Thepeople must rouse from the lap of Delilah to meet thePhilistines"—The letters of "Amphyction" and "Hampden"—TheUnited States is "as much a league as was the former confederation"—Marshallis acutely alarmed by Roane's attacks—Hewrites a dull and petulant newspaper defense of his brilliant opinion—Regretshis controversial effort and refuses to permit its republication—TheVirginia Legislature passes resolutions denouncinghis opinion and proposing a new tribunal to decide controversies betweenStates and the Nation—The slave power joins the attackupon Marshall's doctrines—Ohio aligns herself with Virginia—Ohio'sdramatic resistance to the Bank of the United States—Passesextravagantly drastic laws—Adopts resolutions denouncingMarshall's opinions and defying the National Government—Pennsylvania,Tennessee, Indiana, Illinois also demand a newcourt—John Taylor "of Caroline" writes his notable book, ConstructionConstrued—Jefferson warmly approves it—Declares theNational Judiciary to be a "subtle corps of sappers and minersconstantly working underground to undermine the foundations ofour confederated fabric."
[VII.]THREATS OF WAR[340]
Relation of slavery and Marshall's opinions—The South threatenswar: "I behold a brother's sword crimsoned with a brother'sblood"—Northern men quail—The source and purpose of Marshall'sopinion in Cohens vs. Virginia—The facts in that case—Atrivial police court controversy—The case probably "arranged"—WilliamPinkney and David B. Ogden appear forthe Cohens—Senator James Barbour, for Virginia, threatens secession:"With them [State Governments], it is to determine howlong their [National] government shall endure"—Marshall's opinionis an address to the American people—The grandeur of certainpassages: "A Constitution is framed for ages to come and isdesigned to approach immortality"—The Constitution is vitalizedby a "conservative power" within it—Independence of theJudiciary necessary to preservation of the Republic—Marshalldirectly replies to the assailants of Nationalism: "The States aremembers of one great empire"—Marshall originates the phraseology,"a government of, by, and for the people"—Publicationof the opinion in Cohens vs. Virginia arouses intense excitement—Roanesavagely attacks Marshall under the nom de guerre of"Algernon Sidney"—Marshall is deeply angered—He writesStory denouncing Roane's articles—Jefferson applauds and encouragesattacks on Marshall—Marshall attributes to Jeffersonthe assaults upon him and the Supreme Court—The incident ofJohn E. Hall and his Journal of American Jurisprudence—JohnTaylor again assails Marshall's opinions in his second book,Tyranny Unmasked—He connects monopoly, the protectivetariff, internal improvements, "exclusive privileges," and emancipationwith Marshall's Nationalist philosophy—Jeffersonpraises Taylor's essay and declares for armed resistance to National"usurpation": "The States must meet the invader foot tofoot"—Senator Richard M. Johnson of Kentucky, in Congress,attacks Marshall and the Supreme Court—Offers an amendmentto the Constitution giving the Senate appellate jurisdictionfrom that tribunal—Roane asks the Virginia Legislature to demandan amendment to the National Constitution limiting thepower of the Supreme Court—Senator Johnson makes bold andpowerful speech in the Senate—Declares the Supreme Court tobe a denial of the whole democratic theory—Webster sneers atJohnson's address—Kentucky and the Supreme Court—The"Occupying Claimant" laws—Decisions in Green vs. Biddle—TheKentucky Legislature passes condemnatory and defiant resolutions—JusticeWilliam Johnson infuriates the South by anopinion from the Circuit Bench—The connection of the foregoingevents with the Ohio Bank case—The alignment of economic,political, and social forces—Marshall delivers his opinionin Osborn vs. The Bank of the United States—The historicalsignificance of his declaration in that case.
[VIII.]COMMERCE MADE FREE[397]
Fulton's experiments on the Seine in Paris—French scientists rejecthis invention—The Livingston-Fulton partnership—Livingston'sformer experiments in New York—Secures monopolygrants from the Legislature—These expire—The Clermontmakes the first successful steamboat voyage—Water transportationrevolutionized—New York grants monopoly of steamboatnavigation to Livingston and Fulton—They send Nicholas J.Roosevelt to inspect the Ohio and Mississippi Rivers—His romanticvoyage to New Orleans—Louisiana grants exclusivesteamboat privileges to Livingston and Fulton—New Jerseyretaliates on New York—Connecticut forbids Livingston andFulton boats to enter her waters—New York citizens defythe steamboat monopoly—Livingston and Fulton sue JamesVan Ingen—New York courts uphold the steamboat monopoly,and assert the right of the State to control navigation on its waters—Theopinion of Chief Justice Kent—The controversy betweenAaron Ogden and Thomas Gibbons—Ogden, operatingunder a license from Livingston and Fulton, sues Gibbons—Statecourts again sustain the monopoly acts—Gibbons appealsto the Supreme Court—Ogden retains William Pinkney—Thecase is dismissed, refiled, and continued—Pinkneydies—Argument not heard for three years—Several Statespass monopoly laws—Prodigious development of steamboatnavigation—The demand for internal improvements stimulated—Theslave interests deny power of Congress to build roads andcanals—The daring speech of John Randolph—Declaresslavery imperiled—Threatens armed resistance—Remarkablealignment of opposing forces when Gibbons vs. Ogden is heard inSupreme Court—Webster makes the greatest of his legal arguments—Marshall'sopinion one of his most masterful statepapers—His former opinion on the Circuit Bench in the case ofthe Brig Wilson anticipates that in Gibbons vs. Ogden—Thepower of Congress over interstate and foreign commerce absoluteand exclusive—Marshall attacks the enemies of Nationalism—Theimmediate effect of Marshall's opinion on steamboat transportation,manufacturing, and mining—Later effect still morepowerful—Railway development incalculably encouraged—Resultsto-day of Marshall's theory of commerce—Litigation inNew York following the Supreme Court's decision—The whole-heartedNationalism of Chief Justice Savage and ChancellorSanford—Popularity of Marshall's opinion—The attack in Congresson the Supreme Court weakens—Martin Van Buren, whiledenouncing the "idolatry" for the Supreme Court, pays an exaltedtribute to Marshall: "The ablest judge now sitting on any judicialbench in the world"—Senator John Rowan of Kentucky calls thenew popular attitude toward the Supreme Court "a judicialsuperstition"—The case of Brown vs. Maryland—Marshall'sopinion completes his Constitutional expositions of the commerceclause—Taney's remarkable acknowledgment.
[IX.]THE SUPREME CONSERVATIVE[461]
Marshall's dislike for the formal society of Washington—Hischarming letters to his wife—He carefully avoids partisan politics—Refrainsfrom voting for twenty years—Is irritated bynewspaper report of partisanship—Writes denial to the RichmondWhig—Clay writes Marshall—The Chief Justice explains incidentto Story—Marshall's interest in politics—His letter to hisbrother—Permits himself to be elected to the Virginia ConstitutionalConvention of 1829-30—His disgust at his "weakness"—WritesStory amusing account—Issues before the conventiondeeply trouble him—He is frankly and unshakably conservative—Theantiquated and undemocratic State Constitution of 1776and the aristocratic system under it—Jefferson's brilliant indictmentof both in a private letter—His alarm and anger when hisletter is circulated—He tries to withdraw it—Marshall's interestin the well-being of the people—His prophetic letter to CharlesF. Mercer—Marshall's only public ideal that of Nationalism—Hisviews on slavery—Letters to Gurley and Pickering—Hisjudicial opinions involving slavery and the slave trade: The Antelope;Boyce vs. Anderson—Extreme conservatism of Marshall'sviews on legislation and private property—Letter to Greenhow—Opinionsin Ogden vs. Saunders and Bank vs. Dandridge—Marshall'swork in the Virginia convention—Is against any reform—WritesJudiciary report—The aristocratic County Courtsystem—Marshall defends it—Impressive tributes to Marshallfrom members of the convention—His animated and powerfulspeeches on the Judiciary—He answers Giles, Tazewell, and Cabell,and carries the convention by an astonishing majority—Isopposed to manhood suffrage and exclusive white basis of representation—Hepleads for compromise on the latter subject andprevails—Reasons for his course in the convention—He probablyprevents civil strife and bloodshed in Virginia—The conventionadjourns—History of Craig vs. Missouri—Marshall'sstern opinion—The splendid eloquence of his closing passage—Threemembers of the Supreme Court file dissenting opinions—Marshall'smelancholy comments on them—Congressional assaultson the Supreme Court renewed—They are astonishinglyweak, and are overwhelmingly defeated, but the vote is ominous.
[X.]THE FINAL CONFLICT[518]
Sadness of Marshall's last years—His health fails—Contemplatesresigning—His letters to Story—Goes to Philadelphia forsurgical treatment—Remarkable resolutions by the bar of thatcity—Marshall's response—Is successfully operated upon byDr. Physick—His cheerfulness—Letters to his wife—Mrs. Marshalldies—Marshall's grief—His tribute to her—He is depressedby the course of President Jackson—The warfare on theBank of the United States—Congress recharters it—Jacksonvetoes the Bank Bill and assails Marshall's opinions in the Bankcases—The people acclaim Jackson's veto—Marshall is disgusted—Hisletters to Story—He is alarmed at the growth of disunionsentiment—Causes of the recrudescence of Localism—Marshall'stheory of Constitutional construction and its relation toslavery—The tariff—The South gives stern warnings—Dangerousagitation in South Carolina—Georgia asserts her "sovereignty"in the matter of the Cherokee Indians—The case ofGeorge Tassels—Georgia ignores the Supreme Court and rebukesMarshall—The Cherokee Nation vs. Georgia—The State againignores the Supreme Court—Marshall delivers his opinion in thatcase—Worcester vs. Georgia—The State defies the Supreme Court—Marshall'sopinion—Georgia flouts the Court and disregards itsjudgment—Jackson supports Georgia—Story's melancholy letter—Thecase of James Graves—Georgia once more defies the SupremeCourt and threatens secession—South Carolina encouragedby Georgia's attitude—Nullification sentiment grows rapidly—TheHayne-Webster debate—Webster's great speech a condensationof Marshall's Nationalist opinions—Similarity of Webster'slanguage to that of Marshall—The aged Madison repudiates Nullification—Marshall,pleased, writes Story: "Mr. Madison is himselfagain"—The Tariffs of 1828 and 1832 infuriate South Carolina—Scenesand opinion in that State—Marshall clearly statesthe situation—His letters to Story—South Carolina proclaimsNullification—Marshall's militant views—Jackson issues hisNullification Proclamation—It is based on Marshall's theory ofthe Constitution and is a triumph for Marshall—Story's letter—Haynereplies to Jackson—South Carolina flies to arms—Virginiaintercedes—Both parties back down: South Carolinasuspends Nullification and Congress passes Tariff of 1833—Marshalldescribes conditions in the South—His letters to Story—Healmost despairs of the Republic—Public appreciation of his character—Storydedicates his Commentaries to Marshall—Marshallpresides over the Supreme Court for the last time—His fatalillness—He dies at Philadelphia—The funeral at Richmond—Widespreadexpressions of sorrow—Only one of condemnation—Thelong-continued mourning in Virginia—Marshall's old club resolvesnever to fill his place or increase its membership—Story's"inscription for a cenotaph" and the words Marshall wrote forhis tomb.
[WORKS CITED IN THIS VOLUME][595]
[INDEX][613]

ILLUSTRATIONS

JOHN MARSHALL[Colored Frontispiece]
From the portrait painted in 1832 by Henry Inman, in the possessionof The Law Association of Philadelphia. A copy was presented to theConnecticut State Library by Senator Frank B. Brandegee and waschosen by the Secretary of the Treasury out of all existing portraits tobe engraved on steel for use as a vignette on certain government bondsand treasury notes.
TIMOTHY PICKERING[50]
From a painting by Stuart, owned by Mr. Robert M. Pratt, Boston.
JOSEPH STORY[96]
From a crayon drawing by his son, William Wetmore Story, in the possessionof the family.
WILLIAM PINKNEY[132]
From the original painting by Charles Wilson Peale, in the possessionof Pinkney's grandson, William Pinkney Whyte, Esq., Baltimore,Maryland.
JOHN MARSHALL[210]
From the bust in the Court Room of the United States Supreme Court.
JOSEPH HOPKINSON[254]
From a portrait owned by Dartmouth College.
ASSOCIATE JUSTICES SITTING WITH MARSHALL INTHE CASE OF M'CULLOCH VERSUS MARYLAND:BUSHROD WASHINGTON, WILLIAM JOHNSON,BROCKHOLST LIVINGSTON, THOMAS TODD,JOSEPH STORY, GABRIEL DUVAL[282]
From etchings by Max and Albert Rosenthal in Hampton L. Carson'shistory of The Supreme Court of the United States, reproducedthrough the courtesy of the Lawyers' Coöperative Publishing Company,Rochester, New York. The etchings were made from originalsas follows: Washington, from a painting by Chester Harding in thepossession of the family; Johnson, from a painting by Jarvis in the possessionof the New York Historical Society; Livingston, from a paintingin the possession of the family; Todd, from a painting in the possessionof the family; Story, from a drawing by William Wetmore Story inthe possession of the family; Duval, from a painting in the Capitol atWashington. Mr. Justice Todd is included as a member of the Courtat that time, although absent because of illness.
SPENCER ROANE[314]
From a painting in the Court of Appeals at Richmond, Virginia.
JOHN TAYLOR OF CAROLINE[336]
From a painting in the possession of the Virginia State Library,Richmond.
JOHN MARSHALL[412]
From a portrait painted by J. B. Martin and presented to the Universityof Virginia in 1901 by John L. Williams, Esq., of Richmond, Virginia.
SILHOUETTE OF JOHN MARSHALL[462]
From the original found in the desk of Mr. Justice Story.
LEEDS MANOR[528]
From a photograph. This was the principal house in the Fairfax Purchaseand was the home of Marshall's son James Keith Marshall. Thewing on the left was built especially for the use of Chief Justice Marshall,who expected to spend his declining years there. Many of hisbooks and papers were kept in this house.
ASSOCIATE JUSTICES AT THE LAST SESSION OF THESUPREME COURT OVER WHICH JOHN MARSHALLPRESIDED: JOSEPH STORY, SMITH THOMPSON,JOHN McLEAN, HENRY BALDWIN, JAMES M.WAYNE[584]
From etchings by Max and Albert Rosenthal in Hampton L. Carson'shistory of The Supreme Court of the United States, reproduced by thecourtesy of the Lawyers' Coöperative Publishing Company, Rochester,New York. The etchings were made from originals as follows:Story, from a drawing by William Wetmore Story in the possession ofthe family; Smith Thompson from a painting by Dumont in the possessionof Smith Thompson, Esq., Hudson, New York; McLean, froma painting by Ives, in the possession of Mr. Justice Brown; Baldwin,from a painting by Lambdin in the possession of the family; Wayne,from a photograph by Brady in the possession of Mr. Justice Field.
THE GRAVE OF JOHN MARSHALL[592]
From a photograph of the graves of Marshall and his Wife in theShockoe Hill Cemetery, Richmond, Virginia.

LIST OF ABBREVIATED TITLES MOST FREQUENTLY CITED

All references here are to the List of Authorities at the end of this volume

Adams: U.S. See Adams, Henry. History of the United States.

Ambler: Ritchie. See Ambler, Charles Henry. Thomas Ritchie: A Study in Virginia Politics.

Ames: Ames. See Ames, Fisher. Works.

Anderson. See Anderson, Dice Robins. William Branch Giles.

Babcock. See Babcock, Kendric Charles. Rise of American Nationality, 1811-1819.

Bayard Papers: Donnan. See Bayard, James Asheton. Papers from 1796 to 1815. Edited by Elizabeth Donnan.

Branch Historical Papers. See John P. Branch Historical Papers.

Catterall. See Catterall, Ralph Charles Henry. Second Bank of the United States.

Channing: Jeff. System. See Channing, Edward. Jeffersonian System, 1801-1811.

Channing: U.S. See Channing, Edward. History of the United States.

Curtis. See Curtis, George Ticknor. Life of Daniel Webster.

Dewey. See Dewey, Davis Rich. Financial History of the United States.

Dillon. See Dillon, John Forrest. John Marshall: Life, Character, and Judicial Services.

E. W. T.: Thwaites. See Thwaites, Reuben Gold. Early Western Travels.

Farrar. See Farrar, Timothy. Report of the Case of the Trustees of Dartmouth College against William H. Woodward.

Hildreth. See Hildreth, Richard. History of the United States of America.

Hunt: Livingston. See Hunt, Charles Havens. Life of Edward Livingston.

Kennedy. See Kennedy, John Pendleton. Memoirs of the Life of William Wirt.

King. See King, Rufus. Life and Correspondence. Edited by Charles R. King.

Lodge: Cabot. See Lodge, Henry Cabot. Life and Letters of George Cabot.

Lord. See Lord, John King. A History of Dartmouth College, 1815-1909.

McMaster. See McMaster, John Bach. A History of the People of the United States.

Memoirs, J. Q. A.: Adams. See Adams, John Quincy. Memoirs. Edited by Charles Francis Adams.

Morison: Otis. See Morison, Samuel Eliot. Life and Letters of Harrison Gray Otis.

Morris. See Morris, Gouverneur. Diary and Letters. Edited by Anne Cary Morris.

N.E. Federalism: Adams. See Adams, Henry. Documents relating to New-England Federalism, 1800-1815.

Parton: Jackson. See Parton, James. Life of Andrew Jackson.

Plumer. See Plumer, William, Jr. Life of William Plumer.

Priv. Corres.: Webster. See Webster, Daniel. Private Correspondence. Edited by Fletcher Webster.

Quincy: Quincy. See Quincy, Edmund. Life of Josiah Quincy of Massachusetts.

Randall. See Randall, Henry Stephens. Life of Thomas Jefferson.

Records Fed. Conv.: Farrand. See Records of the Federal Convention of 1787. Edited by Max Farrand.

Richardson. See Richardson, James Daniel. A Compilation of the Messages and Papers of the Presidents, 1789-1897.

Shirley. See Shirley, John M. The Dartmouth College Causes and the Supreme Court of the United States.

Story. See Story, Joseph. Life and Letters. Edited by William Wetmore Story.

Sumner: Hist. Am. Currency. See Sumner, William Graham. A History of American Currency.

Sumner: Jackson. See Sumner, William Graham. Andrew Jackson. As a Public Man.

Tyler: Tyler. See Tyler, Lyon Gardiner. Letters and Times of the Tylers.

Works: Ford. See Jefferson, Thomas. Works. Edited by Paul Leicester Ford.

Writings: Adams. See Gallatin, Albert. Writings. Edited by Henry Adams.

Writings: Hunt. See Madison, James. Writings. Edited by Gaillard Hunt.

THE LIFE OF JOHN MARSHALL

THE LIFE OF JOHN MARSHALL

CHAPTER I

THE PERIOD OF AMERICANIZATION

Great Britain is fighting our battles and the battles of mankind, and France is combating for the power to enslave and plunder us and all the world. (Fisher Ames.)

Though every one of these Bugbears is an empty Phantom, yet the People seem to believe every article of this bombastical Creed. Who shall touch these blind eyes. (John Adams.)

The object of England, long obvious, is to claim the ocean as her domain. (Jefferson.)

I am for resistance by the sword. (Henry Clay.)

Into the life of John Marshall war was strangely woven. His birth, his young manhood, his public services before he became Chief Justice, were coincident with, and affected by, war. It seemed to be the decree of Fate that his career should march side by side with armed conflict, and that the final phase of that career should open with a war—a war, too, which brought forth a National consciousness among the people and demonstrated a National strength hitherto unsuspected in their fundamental law.

Yet, while American Nationalism was Marshall's one and only great conception, and the fostering of it the purpose of his life, he was wholly out of sympathy with the National movement that led to our second conflict with Great Britain, and against the continuance of it. He heartily shared the opinion of the Federalist leaders that the War of 1812 was unnecessary, unwise, and unrighteous.

By the time France and England had renewed hostilities in 1803, the sympathies of these men had become wholly British. The excesses of the French Revolution had started them on this course of feeling and thinking. Their detestation of Jefferson, their abhorrence of Republican doctrines, their resentment of Virginia domination, all hastened their progress toward partisanship for Great Britain. They had, indeed, reverted to the colonial state of mind, and the old phrases, "the mother country," "the protection of the British fleet,"[1] were forever on their lips.

These Federalists passionately hated France; to them France was only the monstrous child of the terrible Revolution which, in the name of human rights, had attacked successfully every idea dear to their hearts—upset all order, endangered all property, overturned all respectability. They were sure that Napoleon intended to subjugate the world; and that Great Britain was our only bulwark against the aggressions of the Conqueror—that "varlet" whose "patron-saint [is] Beelzebub," as Gouverneur Morris referred to Napoleon.[2]

So, too, thought John Marshall. No man, except his kinsman Thomas Jefferson, cherished a prejudice more fondly than he. Perhaps no better example of first impressions strongly made and tenaciously retained can be found than in these two men. Jefferson was as hostile as Marshall was friendly to Great Britain; and they held exactly opposite sentiments toward France. Jefferson's strongest title to immortality was the Declaration of Independence; nearly all of his foreign embroilments had been with British statesmen. In British conservatism he had found the most resolute opposition to those democratic reforms he so passionately championed, and which he rightly considered the manifestations of a world movement.[3]

And Jefferson adored France, in whose entrancing capital he had spent his happiest years. There his radical tendencies had found encouragement. He looked upon the French Revolution as the breaking of humanity's chains, politically, intellectually, spiritually.[4] He believed that the war of the allied governments of Europe against the new-born French Republic was a monarchical combination to extinguish the flame of liberty which France had lighted.

Marshall, on the other hand, never could forget his experience with the French. And his revelation of what he had endured while in Paris had brought him his first National fame.[5] Then, too, his idol, Washington, had shared his own views—indeed, Marshall had been instrumental in the formation of Washington's settled opinions. Marshall had championed the Jay Treaty, and, in doing so, had necessarily taken the side of Great Britain as opposed to France.[6] His business interests[7] powerfully inclined him in the same direction. His personal friends were the ageing Federalists.

He had also become obsessed with an almost religious devotion to the rights of property, to steady government by "the rich, the wise and good,"[8] to "respectable" society. These convictions Marshall found most firmly retained and best defended in the commercial centers of the East and North. The stoutest champions of Marshall's beloved stability of institutions and customs were the old Federalist leaders, particularly of New England and New York. They had been his comrades and associates in bygone days and continued to be his intimates.

In short, John Marshall had become the personification of the reaction against popular government that followed the French Revolution. With him and men of his cast of mind, Great Britain had come to represent all that was enduring and good, and France all that was eruptive and evil. Such was his outlook on social and political life when, after these traditional European foes were again at war, their spoliations of American commerce, violations of American rights, and insults to American honor once more became flagrant; and such continued to be his opinion and feeling after these aggressions had become intolerable.

Since the adoption of the Constitution, nearly all Americans, except the younger generation, had become re-Europeanized in thought and feeling. Their partisanship of France and Great Britain relegated America to a subordinate place in their minds and hearts. Just as the anti-Federalists and their successors, the Republicans, had been more concerned in the triumph of revolutionary France over "monarchical" England than in the maintenance of American interests, rights, and honor, so now the Federalists were equally violent in their championship of Great Britain in her conflict with the France of Napoleon. Precisely as the French partisans of a few years earlier had asserted that the cause of France was that of America also,[9] the Federalists now insisted that the success of Great Britain meant the salvation of the United States.

"Great Britain is fighting our battles and the battles of mankind, and France is combating for the power to enslave and plunder us and all the world,"[10] wrote that faithful interpreter of extreme New England Federalism, Fisher Ames, just after the European conflict was renewed. Such opinions were not confined to the North and East. In South Carolina, John Rutledge was under the same spell. Writing to "the head Quarters of good Principles," Boston, he avowed that "I have long considered England as but the advanced guard of our Country.... If they fall we do."[11] Scores of quotations from prominent Federalists expressive of the same views might be adduced.[12] Even the assault on the Chesapeake did not change or even soften them.[13] On the other hand, the advocates of France as ardently upheld her cause, as fiercely assailed Great Britain.[14]

Never did Americans more seriously need emancipation from foreign influence than in the early decades of the Republic—never was it more vital to their well-being that the people should develop an American spirit, than at the height of the Napoleonic Wars.

Upon the renewal of the European conflict, Great Britain announced wholesale blockades of French ports,[15] ordered the seizure of neutral ships wherever found carrying on trade with an enemy of England;[16] and forbade them to enter the harbors of immense stretches of European coasts.[17] In reply, Napoleon declared the British Islands to be under blockade, and ordered the capture in any waters whatsoever of all ships that had entered British harbors.[18] Great Britain responded with the Orders in Council of 1807 which, in effect, prohibited the oceans to neutral vessels except such as traded directly with England or her colonies; and even this commerce was made subject to a special tax to be paid into the British treasury.[19] Napoleon's swift answer was the Milan Decree,[20] which, among other things, directed all ships submitting to the British Orders in Council to be seized and confiscated in the ports of France or her allies, or captured on the high seas.

All these "decrees," "orders," and "instructions" were, of course, in flagrant violation of international law, and were more injurious to America than to all other neutrals put together. Both belligerents bore down upon American commerce and seized American ships with equal lawlessness.[21] But, since Great Britain commanded the oceans,[22] the United States suffered far more severely from the depredations of that Power.[23] Under pressure of conflict, Great Britain increased her impressment[24] of American sailors. In effect, our ports were blockaded.[25]

Jefferson's lifelong prejudice against Great Britain[26] would permit him to see in all this nothing but a sordid and brutal imperialism. Not for a moment did he understand or consider the British point of view. England's "intentions have been to claim the ocean as her conquest, & prohibit any vessel from navigating it but on ... tribute," he wrote.[27] Nevertheless, he met Great Britain's orders and instructions with hesitant recommendations that the country be put in a state of defense; only feeble preliminary steps were taken to that end.

The President's principal reliance was on the device of taking from Great Britain her American markets. So came the Non-Importation Act of April, 1806, prohibiting the admission of those products that constituted the bulk of Great Britain's immensely profitable trade with the United States.[28] This economic measure was of no avail—it amounted to little more than an encouragement of successful smuggling.

When the Leopard attacked the Chesapeake,[29] Jefferson issued his proclamation reciting the "enormity" as he called it, and ordering all British armed vessels from American waters.[30] The spirit of America was at last aroused.[31] Demands for war rang throughout the land.[32] But they did not come from the lips of Federalists, who, with a few exceptions, protested loudly against any kind of retaliation.

John Lowell, unequaled in talent and learning among the brilliant group of Federalists in Boston, wrote a pamphlet in defense of British conduct.[33] It was an uncommonly able performance, bright, informed, witty, well reasoned. "Despising the threats of prosecution for treason," he would, said Lowell, use his right of free speech to save the country from an unjustifiable war. What did the Chesapeake incident, what did impressment of Americans, what did anything and everything amount to, compared to the one tremendous fact of Great Britain's struggle with France? All thoughtful men knew that Great Britain alone stood between us and that slavery which would be our portion if France should prevail.[34]

Lowell's sparkling essay well set forth the intense conviction of nearly all leading Federalists. Giles was not without justification when he branded them as "the mere Anglican party."[35] The London press had approved the attack on the Chesapeake, applauded Admiral Berkeley, and even insisted upon war against the United States.[36] American Federalists were not far behind the Times and the Morning Post.

Jefferson, on the contrary, vividly stated the thought of the ordinary American: "The English being equally tyrannical at sea as he [Bonaparte] is on land, & that tyranny bearing on us in every point of either honor or interest, I say, 'down with England' and as for what Buonaparte is then to do to us, let us trust to the chapter of accidents, I cannot, with the Anglomen, prefer a certain present evil to a future hypothetical one."[37]

But the President did not propose to execute his policy of "down with England" by any such horrid method as bloodshed. He would stop Americans from trading with the world—that would prevent the capture of our ships and the impressment of our seamen.[38] Thus it was that the Embargo Act of December, 1807, and the supplementary acts of January, March, and April, 1808, were passed.[39] All exportation by sea or land was rigidly forbidden under heavy penalties. Even coasting vessels were not allowed to continue purely American trade unless heavy bond was given that landing would be made exclusively at American ports. Flour could be shipped by sea only in case the President thought it necessary to keep from hunger the population of any given port.[40]

Here was an exercise of National power such as John Marshall had never dreamed of. The effect was disastrous. American ocean-carrying trade was ruined; British ships were given the monopoly of the seas.[41] And England was not "downed," as Jefferson expected. In fact neither France nor Great Britain relaxed its practices in the least.[42]

The commercial interests demanded the repeal of the Embargo laws,[43] so ruinous to American shipping, so destructive to American trade, so futile in redressing the wrongs we had suffered. Massachusetts was enraged. A great proportion of the tonnage of the whole country was owned in that State and the Embargo had paralyzed her chief industry. Here was a fresh source of grievance against the Administration and a just one. Jefferson had, at last, given the Federalists a real issue. Had they availed themselves of it on economic and purely American grounds, they might have begun the rehabilitation of their weakened party throughout the country. But theirs were the vices of pride and of age—they could neither learn nor forget; could not estimate situations as they really were, but only as prejudice made them appear to be.

As soon as Congress convened in November, 1808, New England opened the attack on Jefferson's retaliatory measures. Senator James Hillhouse of Connecticut offered a resolution for the repeal of the obnoxious statutes. "Great Britain was not to be threatened into compliance by a rod of coercion," he said.[44] Pickering made a speech which might well have been delivered in Parliament.[45] British maritime practices were right, the Embargo wrong, and principally injurious to America.[46] The Orders in Council had been issued only after Great Britain "had witnessed ... these atrocities" committed by Napoleon and his plundering armies, "and seen the deadly weapon aimed at her vitals." Yet Jefferson had acted very much as if the United States were a vassal of France.[47]

Again Pickering addressed the Senate, flatly charging that all Embargo measures were "in exact conformity with the views and wishes of the French Emperor, ... the most ruthless tyrant that has scourged the European world, since the Roman Empire fell!" Suppose the British Navy were destroyed and France triumphant over Great Britain—to the other titles of Bonaparte would then "be added that of Emperor of the Two Americas"; for what legions of soldiers "could he not send to the United States in the thousands of British ships, were they also at his command?"[48]

As soon as they were printed, Pickering sent copies of these and speeches of other Federalists to his close associate, the Chief Justice of the United States. Marshall's prompt answer shows how far he had gone in company with New England Federalist opinion.

"I thank you very sincerely," he wrote "for the excellent speeches lately delivered in the senate.... If sound argument & correct reasoning could save our country it would be saved. Nothing can be more completely demonstrated than the inefficacy of the embargo, yet that demonstration seems to be of no avail. I fear most seriously that the same spirit which so tenaciously maintains this measure will impel us to a war with the only power which protects any part of the civilized world from the despotism of that tyrant with whom we shall then be ravaged."[49]

Such was the change that nine years had wrought in the views of John Marshall. When Secretary of State he had arraigned Great Britain for her conduct toward neutrals, denounced the impressment of American sailors, and branded her admiralty courts as habitually unjust if not corrupt.[50] But his hatred of France had metamorphosed the man.

Before Marshall had written this letter, the Legislature of Massachusetts formally declared that the continuance of the Embargo would "endanger ... the union of these States."[51] Talk of secession was steadily growing in New England.[52] The National Government feared open rebellion.[53] Only one eminent Federalist dissented from these views of the party leaders which Marshall also held as fervently as they. That man was the one to whom he owed his place on the Supreme Bench. From his retirement in Quincy, John Adams watched the growing excitement with amused contempt.

"Our Gazettes and Pamphlets," he wrote, "tell us that Bonaparte ... will conquer England, and command all the British Navy, and send I know not how many hundred thousand soldiers here and conquer from New Orleans to Passamaquoddy. Though every one of these Bugbears is an empty Phantom, yet the People seem to believe every article of this bombastical Creed and tremble and shudder in Consequence. Who shall touch these blind eyes?"[54]

On January 9, 1809, Jefferson signed the "Force Act," which the Republican Congress had defiantly passed, and again Marshall beheld such an assertion of National power as the boldest Federalist of Alien and Sedition times never had suggested. Collectors of customs were authorized to seize any vessel or wagon if they suspected the owner of an intention to evade the Embargo laws; ships could be laden only in the presence of National officials, and sailing delayed or prohibited arbitrarily. Rich rewards were provided for informers who should put the Government on the track of any violation of the multitude of restrictions of these statutes or of the Treasury regulations interpretative of them. The militia, the army, the navy were to be employed to enforce obedience.[55]

Along the New England coasts popular wrath swept like a forest fire. Violent resolutions were passed.[56] The Collector of Boston, Benjamin Lincoln, refused to obey the law and resigned.[57] The Legislature of Massachusetts passed a bill denouncing the "Force Act" as unconstitutional, and declaring any officer entering a house in execution of it to be guilty of a high misdemeanor, punishable by fine and imprisonment.[58] The Governor of Connecticut declined the request of the Secretary of War to afford military aid and addressed the Legislature in a speech bristling with sedition.[59] The Embargo must go, said the Federalists, or New England would appeal to arms. Riots broke out in many towns. Withdrawal from the Union was openly advocated.[60] Nor was this sentiment confined to that section. "If the question were barely stirred in New England, some States would drop off the Union like fruit, rotten ripe," wrote A. C. Hanson of Baltimore.[61] Humphrey Marshall of Kentucky declared that he looked to "Boston ... the Cradle, and Salem, the nourse, of American Liberty," as "the source of reformation, or should that be unattainable, of disunion."[62]

Warmly as he sympathized with Federalist opinion of the absurd Republican retaliatory measures, and earnestly as he shared Federalist partisanship for Great Britain, John Marshall deplored all talk of secession and sternly rebuked resistance to National authority, as is shown in his opinion in Fletcher vs. Peck,[63] wherein he asserted the sovereignty of the Nation over a State.

Another occasion, however, gave Marshall a better opportunity to state his views more directly, and to charge them with the whole force of the concurrence of all his associates on the Supreme Bench. This occasion was the resistance of the Legislature and Governor of Pennsylvania to a decree of Richard Peters, Judge of the United States Court for that district, rendered in the notable and dramatic case of Gideon Olmstead. During the Revolution, Olmstead and three other American sailors captured the British sloop Active and sailed for Egg Harbor, New Jersey. Upon nearing their destination, they were overhauled by an armed vessel belonging to the State of Pennsylvania and by an American privateer. The Active was taken to Philadelphia and claimed as a prize of war. The court awarded Olmstead and his comrades only one fourth of the proceeds of the sale of the vessel, the other three fourths going to the State of Pennsylvania, to the officers and crew of the State ship, and to those of the privateer. The Continental Prize Court reversed the decision and ordered the whole amount received for sloop and cargo to be paid to Olmstead and his associates.

This the State court refused to do, and a litigation began which lasted for thirty years. The funds were invested in United States loan certificates, and these were delivered by the State Judge to the State Treasurer, David Rittenhouse, upon a bond saving the Judge harmless in case he, thereafter, should be compelled to pay the amount in controversy to Olmstead. Rittenhouse kept the securities in his personal possession, and after his death they were found among his effects with a note in his handwriting that they would become the property of Pennsylvania when the State released him from his bond to the Judge.

In 1803, Olmstead secured from Judge Peters an order to the daughters of Rittenhouse who, as his executrixes, had possession of the securities, to deliver them to Olmstead and his associates. This proceeding of the National court was promptly met by an act of the State Legislature which declared that the National court had "usurped" jurisdiction, and directed the Governor to "protect the just rights of the state ... from any process whatever issued out of any federal court."[64]

Peters, a good lawyer and an upright judge, but a timorous man, was cowed by this sharp defiance and did nothing. The executrixes held on to the securities. At last, on March 5, 1808, Olmstead applied to the Supreme Court of the United States for a rule directed to Judge Peters to show cause why a mandamus should not issue compelling him to execute his decree. Peters made return that the act of the State Legislature had caused him "from prudential ... motives ... to avoid embroiling the government of the United States and that of Pennsylvania."[65]

Thus the matter came before Marshall. On February 20, 1809, just when threats of resistance to the "Force Act" were sounding loudest, when riots were in progress along the New England seaboard, and a storm of debate over the Embargo and Non-Intercourse laws was raging in Congress, the Chief Justice delivered his opinion in the case of the United States vs. Peters.[66] The court had, began Marshall, considered the return of Judge Peters "with great attention, and with serious concern." The act of the Pennsylvania Legislature challenged the very life of the National Government, for, "if the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery, and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals."

These clear, strong words were addressed to Massachusetts and Connecticut no less than to Pennsylvania. They were meant for Marshall's Federalist comrades and friends—for Pickering, and Gore, and Morris, and Otis—as much as for the State officials in Lancaster. His opinion was not confined to the case before him; it was meant for the whole country and especially for those localities where National laws were being denounced and violated, and National authority defied and flouted. Considering the depth and fervor of Marshall's feelings on the whole policy of the Republican régime, his opinion in United States vs. Judge Peters was signally brave and noble.

Forcible resistance by a State to National authority! "So fatal a result must be deprecated by all; and the people of Pennsylvania, not less than the citizens of every other state, must feel a deep interest in resisting principles so destructive of the Union, and in averting consequences so fatal to themselves." Marshall then states the facts of the controversy and concludes that "the state of Pennsylvania can possess no constitutional right" to resist the authority of the National courts. His decision, he says, "is not made without extreme regret at the necessity which has induced the application." But, because "it is a solemn duty" to do so, the "mandamus must be awarded."[67]

Marshall's opinion deeply angered the Legislature and officials of Pennsylvania.[68] When Judge Peters, in obedience to the order of the Supreme Court, directed the United States Marshal to enforce the decree in Olmstead's favor, that official found the militia under command of General Bright drawn up around the house of the two executrixes. The dispute was at last composed, largely because President Madison rebuked Pennsylvania and upheld the National courts.[69]

A week after the delivery of Marshall's opinion, the most oppressive provisions of the Embargo Acts were repealed and a curious non-intercourse law enacted.[70] One section directed the suspension of all commercial restrictions against France or Great Britain in case either belligerent revoked its orders or decrees against the United States; and this the President was to announce by proclamation. The new British Minister, David M. Erskine, now tendered apology and reparation for the attack on the Chesapeake and positively assured the Administration that, if the United States would renew intercourse with Great Britain, the British Orders in Council would be withdrawn on June 10, 1809. Immediately President Madison issued his proclamation stating this fact and announcing that after that happy June day, Americans might renew their long and ruinously suspended trade with all the world not subject to French control.[71]

The Federalists were jubilant.[72] But their joy was quickly turned to wrath—against the Administration. Great Britain repudiated the agreement of her Minister, recalled him, and sent another charged with rigid and impossible instructions.[73] In deep humiliation, Madison issued a second proclamation reciting the facts and restoring to full operation against Great Britain all the restrictive commercial and maritime laws remaining on the statute books.[74] At a banquet in Richmond, Jefferson proposed a toast: "The freedom of the seas!"[75]

Upon the arrival of Francis James Jackson, Erskine's successor as British Minister, the scenes of the Genêt drama[76] were repeated. Jackson was arrogant and overbearing, and his instructions were as harsh as his disposition.[77] Soon the Administration was forced to refuse further conference with him. Jackson then issued an appeal to the American people in the form of a circular to British Consuls in America, accusing the American Government of trickery, concealment of facts, and all but downright falsehood.[78] A letter of Canning to the American Minister at London[79] found its way into the Federalist newspapers, "doubtless by the connivance of the British Minister," says Joseph Story. This letter was, Story thought, an "infamous" appeal to the American people to repudiate their own Government, "the old game of Genêt played over again."[80]

Furious altercations arose all over the country. The Federalists defended Jackson. When the elections came on, the Republicans made tremendous gains in New England as well as in other States,[81] a circumstance that depressed Marshall profoundly. In December an acrimonious debate arose in Congress over a resolution denouncing Jackson's circular letter as a "direct and aggravated insult and affront to the American people and their Government."[82] Every Federalist opposed the resolution. Josiah Quincy of Massachusetts declared that every word of it was a "falsehood," and that the adoption of it would call forth "severe retribution, perhaps in war" from Great Britain.[83]

Disheartened, disgusted, wrathful, Marshall wrote Quincy: "The Federalists of the South participate with their brethren of the North in the gloomy anticipations which your late elections must inspire. The proceedings of the House of Representatives already demonstrate the influence of those elections on the affairs of the Union. I had supposed that the late letter to Mr. Armstrong,[84] and the late seizure [by the French] of an American vessel, simply because she was an American, added to previous burnings, ransoms, and confiscations, would have exhausted to the dregs our cup of servility and degradation; but these measures appear to make no impression on those to whom the United States confide their destinies. To what point are we verging?"[85]

Nor did the Chief Justice keep quiet in Richmond. "We have lost our resentment for the severest injuries a nation ever suffered, because of their being so often repeated. Nay, Judge Marshall and Mr. Pickering & Co. found out Great Britain had given us no cause of complaint,"[86] writes John Tyler. And ever nearer drew the inevitable conflict.

Jackson was unabashed by the condemnation of Congress, and not without reason. Wherever he went, more invitations to dine than he could accept poured in upon him from the "best families"; banquets were given in his honor; the Senate of Massachusetts adopted resolutions condemning the Administration and upholding Jackson, who declared that the State had "done more towards justifying me to the world than it was possible ... that I or any other person could do."[87] The talk of secession grew.[88] At a public banquet given Jackson, Pickering proposed the toast: "The world's last hope—Britain's fast-anchored isle!" It was greeted with a storm of cheers. Pickering's words sped over the country and became the political war cry of Federalism.[89] Marshall, who in Richmond was following "with anxiety" all political news, undoubtedly read it, and his letters show that Pickering's words stated the opinion of the Chief Justice.[90]

Upon the assurance of the French Foreign Minister that the Berlin and Milan Decrees would be revoked after November 1, 1810, President Madison, on November 2, announced what he believed to be Napoleon's settled determination, and recommended the resumption of commercial relations with France and the suspension of all intercourse with Great Britain unless that Power also withdrew its injurious and offensive Orders in Council.[91]

When at Washington, Marshall was frequently in Pickering's company. Before the Chief Justice left for Richmond, the Massachusetts Senator had lent him pamphlets containing part of John Adams's "Cunningham Correspondence." In returning them, Marshall wrote that he had read Adams's letters "with regret." But the European war, rather than the "Cunningham Correspondence," was on the mind of the Chief Justice: "We are looking with anxiety towards the metropolis for political intelligence. Report gives much importance to the communications of Serrurier [the new French Minister],[92] & proclaims him to be charged with requisitions on our government, a submission to which would seem to be impossible.... I will flatter myself that I have not seen you for the last time. Events have so fully demonstrated the correctness of your opinions on subjects the most interesting to our country that I cannot permit myself to believe the succeeding legislature of Massachusetts will deprive the nation of your future services."[93]

As the Federalist faith in Great Britain grew stronger, Federalist distrust of the youthful and growing American people increased. Early in 1811, the bill to admit Louisiana was considered. The Federalists violently resisted it. Josiah Quincy declared that "if this bill passes, the bonds of this Union are virtually dissolved; that the States which compose it are free from their moral obligations, and that, as it will be the right of all, so it will be the duty of some, to prepare definitely for a separation—amicably if they can, violently if they must."[94] Quincy was the embodiment of the soul of Localism: "The first public love of my heart is the Commonwealth of Massachusetts. There is my fireside; there are the tombs of my ancestors."[95]

The spirit of American Nationalism no longer dwelt in the breasts of even the youngest of the Federalist leaders. Its abode now was the hearts of the people of the West and South; and its strongest exponent was a young Kentuckian, Henry Clay, whose feelings and words were those of the heroic seventies. Although but thirty-three years old, he had been appointed for the second time to fill an unexpired term in the National Senate. On February 22, 1810, he addressed that body on the country's wrongs and duty: "Have we not been for years contending against the tyranny of the ocean?" We have tried "peaceful resistance.... When this is abandoned without effect, I am for resistance by the sword."[96] Two years later, in the House, to which he was elected immediately after his term in the Senate expired, and of which he was promptly chosen Speaker, Clay again made an appeal to American patriotism: "The real cause of British aggression was not to distress an enemy, but to destroy a rival!"[97] he passionately exclaimed. Another Patrick Henry had arisen to lead America to a new independence.

Four other young Representatives from the West and South, John C. Calhoun, William Lowndes, Langdon Cheves, and Felix Grundy were as hot for war as was Henry Clay.[98]

Clay's speeches, extravagant, imprudent, and grandiose, had at least one merit: they were thoroughly American and expressed the opinion of the first generation of Americans that had grown up since the colonies won their freedom. Henry Clay spoke their language. But it was not the language of the John Marshall of 1812.

Eventually the Administration was forced to act. On June 1, 1812, President Madison sent to Congress his Message which briefly, and with moderation, stated the situation.[99] On June 4, the House passed a bill declaring war on Great Britain. Every Federalist but three voted against it.[100] The Senate made unimportant amendments which the House accepted;[101] and thus, on June 18, war was formally declared.

At the Fourth of July banquet of the Boston Federalists, among the toasts, by drinking to which the company exhilarated themselves, was this sentiment: "The Existing War—The Child of Prostitution, may no American acknowledge it legitimate."[102] Joseph Story was profoundly alarmed: "I am thoroughly convinced," he wrote, "that the leading Federalists meditate a severance of the Union."[103] His apprehension was justified: "Let the Union be severed. Such a severance presents no terrors to me," wrote the leading Federalist of New England.[104]

While opposition to the war thus began to blaze into open and defiant treason in that section,[105] the old-time Southern Federalists, who detested it no less, sought a more practical, though more timid, way to resist and end it. "Success in this War, would most probably be the worst kind of ruin," wrote Benjamin Stoddert to the sympathetic James McHenry. "There is but one way to save our Country ... change the administration—... this can be affected by bringing forward another Virgn. as the competitor of Madison." For none but a Virginian can get the Presidential electors of that State, said Stoddert.

"There is, then, but one man to be thought of as the candidate of the Federalists and of all who were against the war. That man is John Marshall." Stoddert informs McHenry that he has written an article for a Maryland Federalist paper, the Spirit of Seventy-Six, recommending Marshall for President. "This I have done, because ... every body else ... seems to be seized with apathy ... and because I felt it sacred duty."[106]

Stoddert's newspaper appeal for Marshall's nomination was clear, persuasive, and well reasoned. It opened with the familiar Federalist arguments against the war. It was an "offensive war," which meant the ruin of America. "Thus thinking ... I feel it a solemn duty to my countrymen, to name John Marshall, as a man as highly gifted as any other in the United States, for the important office of Chief Magistrate; and more likely than any other to command the confidence, and unite the votes of that description of men, of all parties, who desire nothing from government, but that it should be wisely and faithfully administered....

"The sterling integrity of this gentleman's character and his high elevation of mind, forbid the suspicion, that he could descend to be a mere party President, or less than the President of the whole people:—but one objection can be urged against him by candid and honorable men: He is a Virginian, and Virginia has already furnished more than her full share of Presidents—This objection in less critical times would be entitled to great weight; but situated as the world is, and as we are, the only consideration now should be, who amongst our ablest statesmen, can best unite the suffrages of the citizens of all parties, in a competition with Mr. Madison, whose continuance in power is incompatible with the safety of the nation?...

"It may happen," continues Stoddert, "that this our beloved country may be ruined for want of the services of the great and good man I have been prompted by sacred duty to introduce, from the mere want of energy among those of his immediate countrymen [Virginians], who think of his virtues and talents as I do; and as I do of the crisis which demands their employment.

"If in his native state men of this description will act in concert, & with a vigor called for by the occasion, and will let the people fairly know, that the contest is between John Marshall, peace, and a new order of things; and James Madison, Albert Gallatin and war, with war taxes, war loans, and all the other dreadful evils of a war in the present state of the world, my life for it they will succeed, and by a considerable majority of the independent votes of Virginia."

Stoddert becomes so enthusiastic that he thinks victory possible without the assistance of Marshall's own State: "Even if they fail in Virginia, the very effort will produce an animation in North Carolina, the middle and Eastern states, that will most probably secure the election of John Marshall. At the worst nothing can be lost but a little labour in a good cause, and everything may be saved, or gained for our country." Stoddert signs his plea "A Maryland Farmer."[107]

In his letter to McHenry he says: "They vote for electors in Virga. by a general ticket, and I am thoroughly persuaded that if the men in that State, who prefer Marshall to Madison, can be animated into Exertion, he will get the votes of that State. What little I can do by private letters to affect this will be done." Stoddert had enlisted one John Davis, an Englishman—writer, traveler, and generally a rolling stone—in the scheme to nominate Marshall. Davis, it seems, went to Virginia on this mission. After investigating conditions in that State, he had informed Stoddert "that if the Virgns. have nerve to believe it will be agreeable to the Northern & E. States, he is sure Marshall will get the Virga. votes."[108]

Stoddert dwells with the affection and anxiety of parentage upon his idea of Marshall for President: "It is not because I prefer Marshall to several other men, that I speak of him—but because I am well convinced it is vain to talk of any other man, and Marshall is a Man in whom Fedts. may confide—Perhaps indeed he is the man for the crisis, which demands great good sense, a great firmness under the garb of great moderation." He then urges McHenry to get to work for Marshall—"support a cause [election of a peace President] on which all that is dear to you depends."[109] Stoddert also wrote two letters to William Coleman of New York, editor of the New York Evening Post, urging Marshall for the Presidency.[110]

Twelve days after Stoddert thus instructed McHenry, Marshall wrote strangely to Robert Smith of Maryland. President Madison had dismissed Smith from the office of Secretary of State for inefficiency in the conduct of our foreign affairs and for intriguing with his brother, Senator Samuel Smith, and others against the Administration's foreign policy.[111] Upon his ejection from the Cabinet, Smith proceeded to "vindicate" himself by publishing a dull and pompous "Address" in which he asserted that we must have a President "of energetic mind, of enlarged and liberal views, of temperate and dignified deportment, of honourable and manly feelings, and as efficient in maintaining, as sagacious in discerning the rights of our much-injured and insulted country."[112] This was a good summary of Marshall's qualifications.

When Stoddert proposed Marshall for the Presidency, Smith wrote the Chief Justice, enclosing a copy of his attack on the Administration. On July 27, 1812, more than five weeks after the United States had declared war, Marshall replied: "Although I have for several years forborn to intermingle with those questions which agitate & excite the feelings of party, it is impossible that I could be inattentive to passing events, or an unconcerned observer of them." But "as they have increased in their importance, the interest, which as an American I must take in them, has also increased; and the declaration of war has appeared to me, as it has to you, to be one of those portentous acts which ought to concentrate on itself the efforts of all those who can take an active part in rescuing their country from the ruin it threatens.

"All minor considerations should be waived; the lines of subdivision between parties, if not absolutely effaced, should at least be convened for a time; and the great division between the friends of peace & the advocates of war ought alone to remain. It is an object of such magnitude as to give to almost every other, comparative insignificance; and all who wish peace ought to unite in the means which may facilitate its attainment, whatever may have been their differences of opinion on other points."[113]

Marshall proceeds to analyze the causes of hostilities. These, he contends, were Madison's subserviency to France and the base duplicity of Napoleon. The British Government and American Federalists had, from the first, asserted that the Emperor's revocation of the Berlin and Milan Decrees was a mere trick to entrap that credulous French partisan, Madison; and this they maintained with ever-increasing evidence to support them. For, in spite of Napoleon's friendly words, American ships were still seized by the French as well as by the British.

In response to the demand of Joel Barlow, the new American Minister to France, for a forthright statement as to whether the obnoxious decrees against neutral commerce had or had not been revoked as to the United States, the French Foreign Minister delivered to Barlow a new decree. This document, called "The Decree of St. Cloud," declared that the former edicts of Napoleon, of which the American Government complained, "are definitively, and to date from the 1st day of November last [1810], considered as not having existed [non avenus] in regard to American vessels." The "decree" was dated April 28, 1811, yet it was handed to Barlow on May 10, 1812. It expressly stated, moreover, that Napoleon issued it because the American Congress had, by the Act of May 2, 1811, prohibited "the vessels and merchandise of Great Britain ... from entering into the ports of the United States."[114]

General John Armstrong, the American Minister who preceded Barlow, never had heard of this decree; it had not been transmitted to the French Minister at Washington; it had not been made public in any way. It was a ruse, declared the Federalists when news of it reached America—a cheap and tawdry trick to save Madison's face, a palpable falsehood, a clumsy afterthought. So also asserted Robert Smith, and so he wrote to the Chief Justice.

Marshall agreed with the fallen Baltimore politician. Continuing his letter to Smith, the longest and most unreserved he ever wrote, except to Washington and to Lee when on the French Mission,[115] the Chief Justice said: "The view you take of the edict purporting to bear date of the 28tḥ of April 1811 appears to me to be perfectly correct ... I am astonished, if in these times any thing ought to astonish, that the same impression is not made on all." Marshall puts many questions based on dates, for the purpose of exposing the fraudulent nature of the French decree and continues:

"Had France felt for the United States any portion of that respect to which our real importance entitles us, would she have failed to give this proof of it? But regardless of the assertion made by the President in his Proclamation of the 2ḍ of Novṛ 1810, regardless of the communications made by the Executive to the Legislature, regardless of the acts of Congress, and regardless of the propositions which we have invariably maintained in our diplomatic intercourse with Great Britain, the Emperor has given a date to his decree, & has assigned a motive for its enactment, which in express terms contradict every assertion made by the American nation throughout all the departments of its government, & remove the foundation on which its whole system has been erected.

"The motive for this offensive & contemptuous proceeding cannot be to rescue himself from the imputation of continuing to enforce his decrees after their formal repeal because this imputation is precisely as applicable to a repeal dated the 28tḥ of April 1811 as to one dated the 1st of November 1810, since the execution of those decrees has continued after the one date as well as after the other. Why then is this obvious fabrication such as we find it? Why has Mṛ Barlow been unable to obtain a paper which might consult the honor & spare the feelings of his government? The answer is not to be disguised. Bonaparte does not sufficiently respect us to exhibit for our sake, to France, to America, to Britain, or to the world, any evidence of his having receded one step from the position he had taken.

"He could not be prevailed on, even after we had done all he required, to soften any one of his acts so far as to give it the appearance of his having advanced one step to meet us. That this step, or rather the appearance of having taken it, might save our reputation was regarded as dust in the balance. Even now, after our solemn & repeated assertions that our discrimination between the belligerents is founded altogether on a first advance of France—on a decisive & unequivocal repeal of all her obnoxious decrees; after we have engaged in a war of the most calamitous character, avowedly, because France had repealed those decrees, the Emperor scorns to countenance the assertion or to leave it uncontradicted.

"He avers to ourselves, to our selected enemy, & to the world, that, whatever pretexts we may assign for our conduct, he has in fact ceded nothing, he has made no advance, he stands on his original ground & we have marched up to it. We have submitted, completely submitted; & he will not leave us the poor consolation of concealing that submission from ourselves. But not even our submission has obtained relief. His cruizers still continue to capture, sink, burn & destroy.

"I cannot contemplate this subject without excessive mortification as well at the contempt with which we are treated as at the infatuation of my countrymen. It is not however for me to indulge these feelings though I cannot so entirely suppress them as not sometimes though rarely to allow them a place in a private letter." Marshall assures Smith that he has "read with attention and approbation" the paper sent him and will see to its "republication."[116]

From reading Marshall's letter without a knowledge of the facts, one could not possibly infer that America ever had been wronged by the Power with which we were then at war. All the strength of his logical and analytical mind is brought to bear upon the date and motives of Napoleon's last decree. He wrote in the tone and style, and with the controversial ability of his state papers, when at the head of the Adams Cabinet. But had the British Foreign Secretary guided his pen, his indictment of France and America could not have been more unsparing. His letter to Smith was a call to peace advocates and British partisans to combine to end the war by overthrowing the Administration.

This unfortunate letter was written during the long period between the adjournment of the Supreme Court in March, 1812, and its next session in February of the following year. Marshall's sentiments are in sharp contrast with those of Joseph Story, whose letters, written from his Massachusetts home, strongly condemn those who were openly opposing the war. "The present," he writes, "was the last occasion which patriotism ought to have sought to create divisions."[117]

Apparently the Administration did not know of Marshall's real feelings. Immediately after the declaration of war, Monroe, who succeeded Smith as Secretary of State, had sent his old personal friend, the Chief Justice, some documents relating to the war. If Marshall had been uninformed as to the causes that drove the United States to take militant action, these papers supplied that information. In acknowledging receipt of them, he wrote Monroe:

"On my return to day from my farm where I pass a considerable portion of my time in laborious relaxation, I found a copy of the message of the President of the 1st inst accompanied by the report of the Committee of foreign relations & the declaration of war against Great Britain, under cover from you.

"Permit me to subjoin to my thanks for this mark of your attention my fervent wish that this momentous measure may, in its operation on the interest & honor of our country, disappoint only its enemies. Whether my prayer be heard or not I shall remain with respectful esteem," etc.[118]

Cold as this letter was, and capable as it was of double interpretation, to the men sorely pressed by the immediate exigencies of combat, it gave no inkling that the Chief Justice of the United States was at that very moment not only in close sympathy with the peace party, but was actually encouraging that party in its efforts to end the war.[119]

Just at this time, Marshall must have longed for seclusion, and, by a lucky chance, it was afforded him. One of the earliest and most beneficial effects of the Non-Importation, Embargo, and Non-Intercourse laws that preceded the war, was the heavily increased migration from the seaboard States to the territories beyond the Alleghanies. The dramatic story of Burr's adventures and designs had reached every ear and had turned toward the Western country the eyes of the poor, the adventurous, the aspiring; already thousands of settlers were taking up the new lands over the mountains. Thus came a practical consideration of improved means of travel and transportation. Fresh interest in the use of waterways was given by Fulton's invention, which seized upon the imagination of men. The possibilities of steam navigation were in the minds of all who observed the expansion of the country and the growth of domestic commerce.

Before the outbreak of war, the Legislature of Virginia passed an act appointing commissioners "for the purpose of viewing certain rivers within this Commonwealth,"[120] and Marshall was made the head of this body of investigators. Nothing could have pleased him more. It was practical work on a matter that interested him profoundly, and the renewal of a subject which he had entertained since his young manhood.[121]

This tour of observation promised to be full of variety and adventure, tinged with danger, into forests, over mountains, and along streams and rivers not yet thoroughly explored. For a short time Marshall would again live over the days of his boyhood. Most inviting of all, he would get far away from talk or thought of the detested war. Whether the Presidential scheming in his behalf bore fruit or withered, his absence in the wilderness was an ideal preparation to meet either outcome.

In his fifty-seventh year Marshall set out at the head of the expedition, and a thorough piece of work he did. With chain and spirit level the route was carefully surveyed from Lynchburg to the Ohio. Sometimes progress was made slowly and with the utmost labor. In places the scenes were "awful and discouraging."

The elaborate report which the commission submitted to the Legislature was written by Marshall. It reads, says the surveyor of this division of the Chesapeake and Ohio Railway,[122] "as an account of that survey of 1869, when I pulled a chain down the rugged banks of New River." Practicable sections were accurately pointed out and the methods by which they could best be utilized were recommended with particular care.

Marshall's report is alive with far-seeing and statesmanlike suggestions. He thinks, in 1812, that steamboats can be run successfully on the New River, but fears that the expense will be too great. The velocity of the current gives him some anxiety, but "the currents of the Hudson, of the Mohawk, and of the Mississippi, are very strong; and ... a practice so entirely novel as the use of steam in navigation, will probably receive great improvement."

The expense of the undertaking must, he says, depend on the use to be made of the route. Should the intention be only to assist the local traffic of the "upper country down the James river," the expense would not be great. But, "if the views of the legislature shall extend to a free commercial intercourse with the western states," the route must compete with others then existing "or that may be opened." In that case "no improvement ought to be undertaken but with a determination to make it complete and effectual." If this were done, the commerce of Kentucky, Ohio, and even a part of Southwestern Pennsylvania would pour through Virginia to the Atlantic States. This was a rich prize which other States were exerting themselves to capture. Moreover, such "commercial intercourse" would bind Virginia to the growing West by "strong ties" of "friendly sentiments," and these were above price. "In that mysterious future which is in reserve, and is yet hidden from us, events may occur to render" such a community of interest and mutual regard "too valuable to be estimated in dollars and cents."

Marshall pictures the growth of the West, "that extensive and fertile country ... increasing in wealth and population with a rapidity which baffles calculation." Not only would Virginia profit by opening a great trade route to the West, but the Nation would be vastly benefited. "Every measure which tends to cement more closely the union of the eastern with the western states" would be invaluable to the whole country. The military uses of "this central channel of communication" were highly important: "For the want of it, in the course of the last autumn, government was reduced to the necessity of transporting arms in waggons from Richmond to the falls of the Great Kanawha," and "a similar necessity may often occur."[123]

When Marshall returned to Richmond, he found the country depressed and in turmoil. The war had begun dismally for the Americans. Our want of military equipment and training was incredible and assured those disasters that quickly fell upon us. The Federalist opposition to the war grew ever bolder, ever more bitter. The Massachusetts House of Representatives issued an "Address" to the people, urging the organization of a "peace party," adjuring "loud and deep ... disapprobation of this war," and demanding that nobody enlist in the army.[124] Pamphlets were widely circulated, abusing the American Government and upholding the British cause. The ablest of these, "Mr. Madison's War," was by John Lowell of Boston.

The President, he said, "impelled" Congress to declare an "offensive" war against Great Britain. Madison was a member of "the French party." British impressment was the pursuance of a sound policy; the British doctrine—once a British subject, always a British subject—was unassailable. The Orders in Council were just; the execution of them "moderation" itself. On every point, in short, the British Government was right; the French, diabolical; the American, contemptible and wrong. How trivial America's complaints, even if there was a real basis for them, in view of Great Britain's unselfish struggle against "the gigantic dominion of France."

If that Power, "swayed" by that satanic genius, Napoleon, should win, would she not take Nova Scotia, Canada, Louisiana, the Antilles, Florida, South America? After these conquests, would not the United States, "the only remaining republic," be conquered. Most probably. What then ought America to do?" In war offensive and unjust, the citizens are not only obliged not to take part, but by the laws of God, and of civil society, they are bound to abstain." What were the rights of citizens in war-time? To oppose the war by tongue and pen, if they thought the war to be wrong, and to refuse to serve if called "contrary to the Constitution."[125]

Such was the Federalism of 1812-15, such the arguments that would have been urged for the election of Marshall had he been chosen as the peace candidate. But the peace Republicans of New York nominated the able, cunning, and politically corrupt De Witt Clinton; and this man, who had assured the Federalists that he favored an "honourable peace" with England,[126] was endorsed by a Federalist caucus as the anti-war standard-bearer,[127] though not without a swirl of acrimony and dissension.

But for the immense efforts of Clinton to secure the nomination, and the desire of the Federalists and all conservatives that Marshall should continue as Chief Justice,[128] it is possible that he might have been named as the opponent of Madison in the Presidential contest of 1812. "I am far enough from desiring Clinton for President of the United States," wrote Pickering in the preceding July; "I would infinitely prefer another Virginian—if Judge Marshall could be the man."[129]

Marshall surely would have done better than Clinton, who, however, carried New York, New Jersey, Delaware, Maryland, and all the New England States except Vermont. The mercantile classes would have rallied to Marshall's standard more enthusiastically than to Clinton's. The lawyers generally would have worked hard for him. The Federalists, who accepted Clinton with repugnance, would have exerted themselves to the utmost for Marshall, the ideal representative of Federalism. He was personally very strong in North Carolina; the capture of Pennsylvania might have been possible;[130] Vermont might have given him her votes.

The Federalist resistance to the war grew more determined as the months wore on. Throughout New England the men of wealth, nearly all of whom were Federalists, declined to subscribe to the Government loans.[131] The Governors of the New England States refused to aid the National Government with the militia.[132] In Congress the Federalists were obstructing war measures and embarrassing the Government in every way their ingenuity could devise. One method was to force the Administration to tell the truth about Napoleon's pretended revocation of his obnoxious decree. A resolution asking the President to inform the House "when, by whom, and in what manner, the first intelligence was given to this Government" of the St. Cloud Decree, was offered by Daniel Webster,[133] who had been elected to Congress from New Hampshire as the fiercest youthful antagonist of the war in his State.[134] The Republicans agreed, and Webster's resolution was passed by a vote of 137 yeas to only 26 nays.[135]

In compliance the President transmitted a long report. It was signed by the Secretary of State, James Monroe, but bears the imprint of Madison's lucid mind. The report states the facts upon which Congress was compelled to declare war and demonstrates that the Decree of St. Cloud had nothing to do with our militant action, since it was not received until more than a month after our declaration of war. Then follow several clear and brilliant paragraphs setting forth the American view of the causes and purposes of the war.[136]

Timothy Pickering was not now in the Senate. The Republican success in Massachusetts at the State election of 1810 had given the Legislature to that party,[137] and the pugnacious Federalist leader was left at home. There he raged and intrigued and wrote reams of letters. Monroe's report lent new fury to his always burning wrath, and he sent that document, with his malediction upon it, to John Marshall at Richmond. In reply the Chief Justice said that the report "contains a labored apology for France but none for ourselves. It furnishes no reason for our tame unmurmuring acquiescence under the double insult of withholding this paper [Decree of St. Cloud] from us & declaring in our face that it has been put in our possession.

"The report is silent on another subject of still deeper interest. It leaves unnoticed the fact that the Berlin & Milan decrees were certainly not repealed by that insidious decree of April since it had never been communicated to the French courts and cruizers, & since their cruizers had at a period subsequent to the pretended date of that decree received orders to continue to execute the offensive decrees on American vessels.

"The report manifests no sensibility at the disgraceful circumstances which tend strongly to prove that this paper was fabricated to satisfy the importunities of Mr. Barlow, was antedated to suit French purposes; nor at the contempt manifested for the feelings of Americans and their government, by not deigning so to antedate it as to save the credit of our Administration by giving some plausibility to their assertion that the repeal had taken place on the 1st of Novr—But this is a subject with which I dare not trust myself."

The plight of the American land forces, the splendid and unrivaled victories of the American Navy, apparently concerned Marshall not at all. His eyes were turned toward Europe; his ears strained to catch the sounds from foreign battle-fields.

"I look with anxious solicitude—with mingled hope & fear," he continues, "to the great events which are taking place in the north of Germany. It appears probable that a great battle will be fought on or near the Elbe & never had the world more at stake than will probably depend on that battle.

"Your opinions had led me to hope that there was some prospect for a particular peace for ourselves. My own judgement, could I trust it, would tell me that peace or war will be determined by the events in Europe."[138]

Tim Pickering

The "great battle" which Marshall foresaw had been fought nearly eight weeks before his letter was written. Napoleon had been crushingly defeated at Leipzig in October, 1813, and the British, Prussian, and other armies which Great Britain had combined against him, were already invading France. When, later, the news of this arrived in America, it was hailed by the Federalists with extravagant rejoicings.[139]

Secession, if the war were continued, now became the purpose of the more determined Federalist leaders. It was hopeless to keep up the struggle, they said. The Administration had precipitated hostilities without reason or right, without conscience or sense.[140] The people never had favored this wretched conflict; and now the tyrannical Government, failing to secure volunteers, had resorted to conscription—an "infamous" expedient resorted to in brutal violation of the Constitution.[141] So came the Hartford Convention which the cool wisdom of George Cabot saved from proclaiming secession.[142]

Of the two pretenses for war against Great Britain, the Federalists alleged that one had been removed even before we declared war, and that only the false and shallow excuse of British impressment of American seamen remained. Madison and Monroe recognized this as the one great remaining issue, and an Administration pamphlet was published asserting the reason and justice of the American position. This position was that men of every country have a natural right to remove to another land and there become citizens or subjects, entitled to the protection of the government of the nation of their adoption. The British principle, on the contrary, was that British subjects could never thus expatriate themselves, and that, if they did so, the British Government could seize them wherever found, and by force compel them to serve the Empire in any manner the Government chose to direct.

Monroe's brother-in-law, George Hay, still the United States Attorney for the District of Virginia, was selected to write the exposition of the American view. It seems probable that his manuscript was carefully revised by Madison and Monroe, and perhaps by Jefferson.[143] Certainly Hay stated with singular precision the views of the great Republican triumvirate. The pamphlet was entitled "A Treatise on Expatriation." He began: "I hold in utter reprobation the idea that a man is bound by an obligation, permanent and unalterable, to the government of a country which he has abandoned and his allegiance to which he has solemnly adjured."[144]

Immediately John Lowell answered.[145] Nothing keener and more spirited ever came from the pen of that gifted man. "The presidential pamphleteer," as Lowell called Hay, ignored the law. The maxim, once a subject always a subject, was as true of America as of Britain. Had not Ellsworth, when Chief Justice, so decided in the famous case of Isaac Williams?[146] Yet Hay sneered at the opinion of that distinguished jurist.[147]

Pickering joyfully dispatched Lowell's brochure to Marshall, who lost not a moment in writing of his admiration. "I had yesterday the pleasure of receiving your letter of the 8th accompanying Mr Lowell's very masterly review of the treatise on expatriation. I have read it with great pleasure, & thank you very sincerely for this mark of your recollection.

"Could I have ever entertained doubts on the subject, this review would certainly have removed them. Mingled with much pungent raillery is a solidity of argument and an array of authority which in my judgement is entirely conclusive. But in truth it is a question upon which I never entertained a scintilla of doubt; and have never yet heard an argument which ought to excite a doubt in any sound and reflecting mind. It will be to every thinking American a most afflicting circumstance, should our government on a principle so completely rejected by the world proceed to the execution of unfortunate, of honorable, and of innocent men."[148]

Astonishing and repellent as these words now appear, they expressed the views of every Federalist lawyer in America. The doctrine of perpetual allegiance was indeed then held and practiced by every government except our own,[149] nor was it rejected by the United States until the Administration became Republican. Marshall, announcing the opinion of the Supreme Court in 1804, had held that an alien could take lands in New Jersey because he had lived in that State when, in 1776, the Legislature passed a law making all residents citizens.[150] Thus he had declared that an American citizen did not cease to be such because he had become the subject of a foreign power. Four years later, in another opinion involving expatriation, he had stated the law to be that a British subject, born in England before 1775, could not take, by devise, lands in Maryland, the statute of that State forbidding aliens from thus acquiring property there.[151] In both these cases, however, Marshall refrained from expressly declaring in terms against the American doctrine.

Even as late as 1821 the Chief Justice undoubtedly retained his opinion that the right of expatriation did not exist,[152] although he did not say so in express terms. But in Marshall's letter on Lowell's pamphlet he flatly avows his belief in the principle of perpetual allegiance, any direct expression on which he so carefully avoided when deciding cases involving it.

Thus the record shows that John Marshall was as bitterly opposed to the War of 1812 as was Pickering or Otis or Lowell. So entirely had he become one of "the aristocracy of talents of reputation, & of property," as Plumer, in 1804, had so accurately styled the class of which he himself was then a member,[153] that Marshall looked upon all but one subject then before the people with the eyes of confirmed reaction. That subject was Nationalism. To that supreme cause he was devoted with all the passion of his deep and powerful nature; and in the service of that cause he was soon to do much more than he had already performed.

Our second war with Great Britain accomplished none of the tangible and immediate objects for which it was fought. The British refused to abandon "the right" of impressment; or to disclaim the British sovereignty of the oceans whenever they chose to assert it; or to pay a farthing for their spoliation of American commerce. On the other hand, the British did not secure one of their demands.[154] The peace treaty did little more than to end hostilities.

But the war achieved an inestimable good—it de-Europeanized America. It put an end to our thinking and feeling only in European terms and emotions. It developed the spirit of the new America, born since our political independence had been achieved, and now for the first time emancipated from the intellectual and spiritual sovereignty of the Old World. It had revealed to this purely American generation a consciousness of its own strength; it could exult in the fact that at last America had dared to fight.

The American Navy, ship for ship, officer for officer, man for man, had proved itself superior to the British Navy, the very name of which had hitherto been mentioned only in terror or admiration of its unconquerable might. In the end, raw and untrained American troops had beaten British regulars. American riflemen of the West and South had overwhelmed the flower of all the armies of Europe. An American frontier officer, Andrew Jackson, had easily outwitted some of Great Britain's ablest and most experienced professional generals. In short, on land and sea America had stood up to, had really beaten, the tremendous Power that had overthrown the mighty Napoleon.

Such were the feelings and thoughts of that Young America which had come into being since John Marshall had put aside his Revolutionary uniform and arms. And in terms very much like those of the foregoing paragraph the American people generally expressed their sentiments.

Moreover, the Embargo, the Non-Intercourse and Non-Importation Acts, the British blockades, the war itself, had revolutionized the country economically and socially. American manufacturing was firmly established. Land travel and land traffic grew to proportions never before imagined, never before desired. The people of distant sections became acquainted.

The eyes of all Americans, except those of the aged or ageing, were turned from across the Atlantic Ocean toward the boundless, the alluring West—their thoughts diverted from the commotions of Europe and the historic antagonism of foreign nations, to the economic conquest of a limitless and virgin empire and to the development of incalculable and untouched resources, all American and all their own.

The migration to the West, which had been increasing for years, now became almost a folk movement. The Eastern States were drained of their young men and women. Some towns were almost depopulated.[155] And these hosts of settlers carried into wilderness and prairie a spirit and pride that had not been seen or felt in America since the time of the Revolution. But their high hopes were to be quickly turned into despair, their pride into ashes; for a condition was speedily to develop that would engulf them in disaster. It was this situation which was to call forth some of the greatest of Marshall's Constitutional opinions. This forbidding future, however, was foreseen by none of that vast throng of home-seekers crowding every route to the "Western Country," in the year of 1815. Only the rosiest dreams were theirs and the spirited consciousness that they were Americans, able to accomplish all things, even the impossible.

It was then a new world in which John Marshall found himself, when, in his sixtieth year, the war which he so abhorred came to an end. A state of things surrounded him little to his liking and yet soon to force from him the exercise of the noblest judicial statesmanship in American history. From the extreme independence of this new period, the intense and sudden Nationalism of the war, the ideas of local sovereignty rekindled by the New England Federalists at the dying fires that Jefferson and the Republicans had lighted in 1798, and from the play of conflicting interests came a reaction against Nationalism which it was Marshall's high mission to check and to turn into channels of National power, National safety, and National well-being.

FOOTNOTES:

[1] "The navy of Britain is our shield." (Pickering: Open Letter [Feb. 16, 1808] to Governor James Sullivan, 8; infra, 5, 9-10, 25-26, 45-46.)

[2] Diary and Letters of Gouverneur Morris: Morris, ii, 548.

[3] Jefferson to D'Ivernois, Feb. 6, 1795, Works of Thomas Jefferson: Ford, viii, 165.

[4] Jefferson to Short, Jan. 3, 1793, ib. vii, 203; same to Mason, Feb. 4, 1791, ib. vi, 185.

[5] See vol. ii, 354, of this work.

[6] Ib. 133-39.

[7] The Fairfax transaction.

[8] The phrase used by the Federalists to designate the opponents of democracy.

[9] See vol. ii, 24-27, 92-96, 106-07, 126-28, of this work.

[10] Ames to Dwight, Oct. 31, 1803, Works of Fisher Ames: Ames, i, 330; and see Ames to Gore, Nov. 16, 1803, ib. 332; also Ames to Quincy, Feb. 12, 1806, ib. 360.

[11] Rutledge to Otis, July 29, 1806, Morison: Life and Letters of Harrison Gray Otis, i, 282.

[12] The student should examine the letters of Federalists collected in Henry Adams's New-England Federalism; those in the Life and Correspondence of Rufus King; in Lodge's Life and Letters of George Cabot; in the Works of Fisher Ames and in Morison's Otis.

[13] See Adams: History of the United States, iv, 29.

[14] Once in a long while an impartial view was expressed: "I think myself sometimes in an Hospital of Lunaticks, when I hear some of our Politicians eulogizing Bonaparte because he humbles the English; & others worshipping the latter, under an Idea that they will shelter us, & take us under the Shadow of their Wings. They would join, rather, to deal us away like Cattle." (Peters to Pickering, Feb. 4, 1807, Pickering MSS. Mass. Hist. Soc.)

[15] See Harrowby's Circular, Aug. 9, 1804, American State Papers, Foreign Relations, iii, 266.

[16] See Hawkesbury's Instructions, Aug. 17, 1805, ib.

[17] Fox to Monroe, April 8 and May 16, 1806, ib. 267.

[18] The Berlin Decree, Nov. 21, 1806, ib. 290-91.

[19] Orders in Council, Jan. 7 and Nov. 11, 1807, Am. State Papers, For. Rel. iii, 267-73; and see Channing: Jeffersonian System, 199.

[20] Dec. 17, 1807, Am. State Papers, For. Rel. iii, 290.

[21] Adams: U.S. v, 31.

[22] "England's naval power stood at a height never reached before or since by that of any other nation. On every sea her navies rode, not only triumphant, but with none to dispute their sway." (Roosevelt: Naval War of 1812, 22.)

[23] See Report, Secretary of State, July 6, 1812, Am. State Papers, For. Rel. iii, 583-85.

"These decrees and orders, taken together, want little of amounting to a declaration that every neutral vessel found on the high seas, whatsoever be her cargo, and whatsoever foreign port be that of her departure or destination, shall be deemed lawful prize." (Jefferson to Congress, Special Message, March 17, 1808, Works: Ford, xi, 20.)

"The only mode by which either of them [the European belligerents] could further annoy the other ... was by inflicting ... the torments of starvation. This the contending parties sought to accomplish by putting an end to all trade with the other nation." (Channing: Jeff. System, 169.)

[24] Theodore Roosevelt, who gave this matter very careful study, says that at least 20,000 American seamen were impressed. (Roosevelt, footnote to 42.)

"Hundreds of American citizens had been taken by force from under the American flag, some of whom were already lying beneath the waters off Cape Trafalgar." (Adams: U. S. iii, 202.)

See also Babcock: Rise of American Nationality, 76-77; and Jefferson to Crawford, Feb. 11, 1815, Works: Ford, XI, 451.

[25] See Channing: Jeff. System, 184-94. The principal works on the War of 1812 are, of course, by Henry Adams and by Alfred Mahan. But these are very extended. The excellent treatments of that period are the Jeffersonian System, by Edward Channing, and Rise of American Nationality, by Kendric Charles Babcock, and Life and Letters of Harrison Gray Otis, by Samuel Eliot Morison. The latter work contains many valuable letters hitherto unpublished.

[26] But see Jefferson to Madison, Aug. 27, 1805, Works: Ford, x, 172-73; same to Monroe, May 4, 1806, ib. 262-63; same to same, Oct. 26, 1806, ib. 296-97; same to Lincoln, June 25, 1806, ib. 272; also see Adams: U.S. iii, 75. While these letters speak of a temporary alliance with Great Britain, Jefferson makes it clear that they are merely diplomatic maneuvers, and that, if an arrangement was made, a heavy price must be paid for America's coöperation.

Jefferson's letters, in general, display rancorous hostility to Great Britain. See, for example, Jefferson to Paine, Sept. 6, 1807, Works: Ford, x, 493; same to Leib, June 23, 1808, ib. xi, 34-35; same to Meigs, Sept. 18, 1813, ib. 334-35; same to Monroe, Jan. 1, 1815, ib. 443.

[27] Jefferson to Dearborn, July 16, 1810, ib. 144.

[28] Annals, 9th Cong. 1st Sess. 1259-62; also see "An Act to Prohibit the Importation of Certain Goods, Wares, and Merchandise," chap. 29, 1806, Laws of the United States, iv, 36-38.

[29] See vol. iii, 475-76, of this work.

[30] Jefferson's Proclamation, July 2, 1807, Works: Ford, x, 434-47; and Messages and Papers of the Presidents: Richardson, i, 421-24.

[31] "This country has never been in such a state of excitement since the battle of Lexington." (Jefferson to Bowdoin, July 10, 1807, Works: Ford, x, 454; same to De Nemours, July 14, 1807, ib. 460.)

For Jefferson's interpretation of Great Britain's larger motive for perpetrating the Chesapeake crime, see Jefferson to Paine, Sept. 6, 1807, ib. 493.

[32] Adams: U.S. iv, 38.

[33] Lowell: Peace Without Dishonor—War Without Hope: by "A Yankee Farmer," 8. The author of this pamphlet was the son of one of the new Federal judges appointed by Adams under the Federalist Judiciary Act of 1801.

[34] See Peace Without Dishonor—War Without Hope, 39-40.

[35] Giles to Monroe, March 4, 1807; Anderson: William Branch Giles—A Study in the Politics of Virginia, 1790-1830, 108.

Thomas Ritchie, in the Richmond Enquirer, properly denounced the New England Federalist headquarters as a "hot-bed of treason." (Enquirer, Jan. 24 and April 4, 1809, as quoted by Ambler: Thomas Ritchie—A Study in Virginia Politics, 46.)

[36] Adams: U.S. iv, 41-44, 54.

[37] Jefferson to Leiper, Aug. 21, 1807, Works: Ford, x, 483-84.

Jefferson tenaciously clung to his prejudice against Great Britain: "The object of England, long obvious, is to claim the ocean as her domain.... We believe no more in Bonaparte's fighting merely for the liberty of the seas, than in Great Britain's fighting for the liberties of mankind." (Jefferson to Maury, April 25, 1812, ib. xi, 240-41.) He never failed to accentuate his love for France and his hatred for Napoleon.

[38] "During the present paroxysm of the insanity of Europe, we have thought it wisest to break off all intercourse with her." (Jefferson to Armstrong, May 2, 1808, ib. 30.)

[39] "Three alternatives alone are to be chosen from. 1. Embargo. 2. War. 3. Submission and tribute, &, wonderful to tell, the last will not want advocates." (Jefferson to Lincoln, Nov. 13, 1808, ib. 74.)

[40] See Act of December 22, 1807 (Annals, 10th Cong. 1st Sess. 2814-15); of January 9, 1808 (ib. 2815-17); of March 12, 1808 (ib. 2839-42); and of April 25, 1808 (ib. 2870-74); Treasury Circulars of May 6 and May 11, 1808 (Embargo Laws, 19-20, 21-22); and Jefferson's letter "to the Governours of Orleans, Georgia, South Carolina, Massachusetts and New Hampshire," May 6, 1808 (ib. 20-21).

Joseph Hopkinson sarcastically wrote: "Bless the Embargo—thrice bless the Presidents distribution Proclamation, by which his minions are to judge of the appetites of his subjects, how much food they may reasonably consume, and who shall supply them ... whether under the Proclamation and Embargo System, a child may be lawfully born without a clearing out at the Custom House." (Hopkinson to Pickering, May 25, 1808, Pickering MSS. Mass. Hist. Soc.)

[41] Professor Channing says that "the orders in council had been passed originally to give English ship-owners a chance to regain some of their lost business." (Channing: Jeff. System, 261.)

[42] Indeed, Napoleon, as soon as he learned of the American Embargo laws, ordered the seizure of all American ships entering French ports because their captains or owners had disobeyed these American statutes and, therefore, surely were aiding the enemy. (Armstrong to Secretary of State, April 23, postscript of April 25, 1808, Am. State Papers, For. Rel. iii, 291.)

[43] Morison: Otis, ii, 10-12; see also Channing: Jeff. System, 183.

[44] Annals, 10th Cong. 2d Sess. 22.

The intensity of the interest in the Embargo is illustrated by Giles's statement in his reply to Hillhouse that it "almost ... banish[ed] every other topic of conversation." (Ib. 94.)

[45] Four years earlier, Pickering had plotted the secession of New England and enlisted the support of the British Minister to accomplish it. (See vol. iii, chap. vii, of this work.) His wife was an Englishwoman, the daughter of an officer of the British Navy. (Pickering and Upham: Life of Timothy Pickering, i, 7; and see Pickering to his wife, Jan. 1, 1808, ib. iv, 121.) His nephew had been Consul-General at London under the Federalist Administrations and was at this time a merchant in that city. (Pickering to Rose, March 22, 1808, New-England Federalism: Adams, 370.) Pickering had been, and still was, carrying on with George Rose, recently British Minister to the United States, a correspondence all but treasonable. (Morison: Otis, ii, 6.)

[46] Annals, 10th Cong. 2d Sess. 175, 177-78.

[47] Annals, 10th Cong. 2d Sess. 193.

[48] Ib. 279-82.

[49] Marshall to Pickering, Dec. 19, 1808, Pickering MSS. Mass. Hist. Soc.

[50] See vol. ii, 509-14, of this work.

[51] Morison: Otis, ii, 3-4.

[52] "The tories of Boston openly threaten insurrection." (Jefferson to Dearborn, Aug. 9, 1808, Works: Ford, xi, 40.) And see Morison: Otis, ii, 6; Life and Correspondence of Rufus King: King, v, 88; also see Otis to Quincy, Dec. 15, 1808, Morison: Otis, ii, 115.

[53] Monroe to Taylor, Jan. 9, 1809, Branch Historical Papers, June, 1908, 298.

[54] Adams to Rush, July 25, 1808, Old Family Letters, 191-92.

[55] Annals, 10th Cong. 2d Sess. iii, 1798-1804.

[56] Morison: Otis, ii, 10. These resolutions denounced "'all those who shall assist in enforcing on others the arbitrary & unconstitutional provisions of this [Force Act]' ... as 'enemies to the Constitution of the United States and of this State, and hostile to the Liberties of the People.'" (Boston Town Records, 1796-1813, as quoted in ib.; and see McMaster: History of the People of the United States, iii, 328.)

[57] McMaster, iii, 329.

[58] McMaster, iii, 329-30; and see Morison: Otis, ii, 4.

The Federalist view was that the "Force Act" and other extreme portions of the Embargo laws were "so violently and palpably unconstitutional, as to render a reference to the judiciary absurd"; and that it was "the inherent right of the people to resist measures fundamentally inconsistent with the principles of just liberty and the Social compact." (Hare to Otis, Feb. 10, 1814, Morison: Otis, ii, 175.)

[59] McMaster, iii, 331-32.

[60] Morison: Otis, ii, 3, 8.

[61] Hanson to Pickering, Jan. 17, 1810, N.E. Federalism: Adams, 382.

[62] Humphrey Marshall to Pickering, March 17, 1809, Pickering MSS. Mass. Hist. Soc.

[63] See vol. iii, chap. x, of this work.

[64] 5 Cranch, 133.

[65] Ib. 117.

[66] 5 Cranch, 135.

[67] 5 Cranch, 136, 141. (Italics the author's.)

[68] The Legislature of Pennsylvania adopted a resolution, April 3, 1809, proposing an amendment to the National Constitution for the establishment of an "impartial tribunal" to decide upon controversies between States and the Nation. (State Documents on Federal Relations: Ames, 46-48.) In reply Virginia insisted that the Supreme Court, "selected from those ... who are most celebrated for virtue and legal learning," was the proper tribunal to decide such cases. (Ib. 49-50.) This Nationalist position Virginia reversed within a decade in protest against Marshall's Nationalist opinions. Virginia's Nationalist resolution of 1809 was read by Pinkney in his argument of Cohens vs. Virginia. (See infra, chap. vi.)

[69] See Madison to Snyder, April 13, 1809, Annals, 11th Cong. 2d Sess. 2269; also McMaster, v, 403-06.

[70] Annals, 10th Cong. 2d Sess. 1824-30.

[71] Erskine to Smith, April 18 and 19, 1809, Am. State Papers, For. Rel. iii, 296.

[72] Adams: U.S. v, 73-74; see also McMaster, iii, 337.

[73] Adams: U.S. v, 87-89, 112.

[74] Proclamation of Aug. 9, 1809, Am. State Papers, For. Rel. iii, 304.