THE LIFE OF JOHN MARSHALL
Standard Library Edition
IN FOUR VOLUMES
VOLUME IV
[Illustration: 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
[Illustration]
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--Their hatred of France--Republicans are exactly
the reverse--The deep and opposite prejudices of Marshall
and Jefferson--Cause of their conflicting views--The
people become Europeanized--They lose sight of American
considerations--Critical need of a National American
sentiment--Origin of the War of 1812--America suffers from
both European belligerents--British depredations--Jefferson
retaliates by ineffective peaceful methods--The Embargo laws
passed--The Federalists enraged--Pickering makes sensational
speech in the Senate--Marshall endorses it--Congress passes the
"Force Act"--Jefferson practices an autocratic Nationalism--
New England Federalists propose armed resistance and openly
advocate secession--Marshall rebukes those who resist National
authority--The case of Gideon Olmstead--Pennsylvania forcibly
resists order of the United States Court--Marshall's opinion
in U.S. _vs._ Judge Peters--Its historical significance--The
British Minister repeats the tactics of Genêt--Federalists
uphold him--Republicans make great gains in New England--
Marshall's despondent letter--Henry Clay's heroic speeches--
War is declared--Federalists violently oppose it: "The child
of Prostitution"--Joseph Story indignant and alarmed--
Marshall proposed as Presidential candidate of the peace
party--Writes long letter advocating coalition of "all who
wish peace"--Denounces Napoleon and the Decree of St. Cloud--
He heads Virginia Commission to select trade route to the
West--Makes extended and difficult journey through the
mountains--Writes statesmanlike report--Peace party nominates
Clinton--Marshall criticizes report of Secretary of State on
the causes of the war--New England Federalists determine upon
secession--The Administration pamphlet on expatriation--John
Lowell brilliantly attacks it--Marshall warmly approves
Lowell's essay--His judicial opinions on expatriation--The
coming of peace--Results of the war--The new America is born.
II. MARSHALL AND STORY 59
Marshall's greatest Constitutional decisions given during the
decade after peace is declared--Majority of Supreme Court
becomes Republican--Marshall's influence over the Associate
Justices--His life in Richmond--His negligent attire--Personal
anecdotes--Interest in farming--Simplicity of habits--Holds
Circuit Court at Raleigh--Marshall's devotion to his wife--His
religious belief--His children--Life at Oak Hill--Generosity--
Member of Quoit Club--His "lawyer dinners"--Delights in the
reading of poetry and fiction--Familiarity and friendliness--
Joseph Story first meets the Chief Justice--Is captivated by
his personality--Marshall's dignity in presiding over Supreme
Court--Quickness at repartee--Life in Washington--Marshall and
Associate Justices live together in same boarding-house--His
dislike of publicity--Honorary degrees conferred--Esteem of his
contemporaries--His personality--Calmness of manner--Strength
of intellect--His irresistible charm--Likeness to Abraham
Lincoln--The strong and brilliant bar practicing before
the Supreme Court--Legal oratory of the period--Length of
arguments--Joseph Story--His character and attainments--
Birth and family--A Republican--Devotion to Marshall--Their
friendship mutually helpful--Jefferson fears Marshall's
influence on Story--Edward Livingston sues Jefferson for one
hundred thousand dollars--Circumstances leading to Batture
litigation--Jefferson's desire to name District Judge in
Virginia--Jefferson in letter attacks Marshall--He dictates
appointment of John Tyler to succeed Cyrus Griffin--Death of
Justice Cushing of the Supreme Court--Jefferson tries to name
Cushing's successor--He objects to Story--Madison wishes to
comply with Jefferson's request--His consequent difficulty in
filling place--Appointment of Story--Jefferson prepares brief
on Batture case--Public interest in case--Case is heard--
Marshall's opinion reflects on Jefferson--Chancellor Kent's
opinion--Jefferson and Livingston publish statements--Marshall
ascribes Jefferson's animosity in subsequent years to the
Batture litigation.
III. INTERNATIONAL LAW 117
Marshall uniformly upholds acts of Congress even when he thinks
them unwise and of doubtful constitutionality--The Embargo,
Non-Importation, and Non-Intercourse laws--Marshall's slight
knowledge of admiralty law--His dependence on Story--Marshall
is supreme only in Constitutional law--High rank of his
opinions on international law--Examples: The Schooner Exchange;
U.S. _vs._ Palmer; The Divina Pastora; The Venus; The Nereid--
Scenes in the court-room--Appearance of the Justices--William
Pinkney the leader of the American bar--His learning and
eloquence--His extravagant dress and arrogant manner--Story's
admiration of him--Marshall's tribute--Character of the bar--
Its members statesmen as well as lawyers--The attendance of
women at 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 that case--The Virginia Republican organization--
The great political triumvirate, Roane, Ritchie, and Taylor--
The Fairfax litigation--The Marshall purchase of a part of the
Fairfax estate--Separate purchases of James M. Marshall--The
Marshall and Virginia "compromise"--Virginia Court of Appeals
decides in favor of Hunter--National Supreme Court reverses
State court--The latter's bold defiance of the National
tribunal--Marshall refuses to sit in the case of the Granville
heirs--History of the Granville litigation--The second
appeal from the Virginia Court in the Fairfax-Martin-Hunter
case--Story's great opinion in Fairfax's Devisee _vs._ Hunter's
Lessee--His first Constitutional pronouncement--Its resemblance
to Marshall's opinions--The Chief Justice disapproves one
ground of Story's opinion--His letter to his brother--Anger of
the Virginia judges at reversal of their judgment--The Virginia
Republican organization 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--He surveys the state of the country--Beholds terrible
conditions--The moral, economic, and social breakdown--Bad
banking the immediate cause of the catastrophe--Sound and
brilliant career of the first Bank of the United States--
Causes of popular antagonism to it--Jealousy of the State
banks--Jefferson's hostility to a central bank--John Adams's
description of State banking methods--Opposition to
rechartering the National institution--Congress refuses to
recharter it--Abnormal increase of State banks--Their great and
unjustifiable profits--Congress forced to charter second Bank
of the United States--Immoral and uneconomic methods of State
banks--Growth of "private banks"--Few restrictions placed on
State and private banks and none regarded by them--Popular
craze for more "money"--Character and habits of Western
settlers--Local banks prey upon them--Marshall's personal
experience--State banks control local press, bar, and
courts--Ruthless foreclosures of mortgages and incredible
sacrifices of property--Counterfeiting and crime--People
unjustly blame Bank of the United States for their financial
misfortunes--It is, at first, bad, and corruptly managed--Is
subsequently well administered--Popular demand for bankruptcy
laws--State "insolvency" statutes badly drawn and ruinously
executed--Speculators use them to escape the payment of
their liabilities while retaining their assets--Foreclosures
and sheriff's sales increase--Demand for "stay laws" in
Kentucky--Marshall's intimate personal knowledge of conditions
in that State--States begin to tax National Bank out of
existence--Marshall delivers one of his great trilogy of
opinions of 1819 on contract, fraud, and banking--Effect of the
decision of the Supreme Court in Sturges _vs._ Crowninshield.
V. THE DARTMOUTH COLLEGE CASE 220
The Dartmouth College case affected by the state of the
country--Marshall prepares his opinion while on his
vacation--His views well known--His opinion in New Jersey _vs._
Wilson--Eleazar Wheelock's frontier Indian school--The voyage
and mission of Whitaker and Occom--Funds to aid the school
raised in England and Scotland--The Earl of Dartmouth--
Governor Wentworth grants a royal charter--Provisions of this
document--Colonel John Wheelock becomes President of the
College--The beginnings of strife--Obscure and confused origins
of the Dartmouth controversy, including the slander of a
woman's reputation, sectarian warfare, personal animosities,
and partisan conflict--The College Trustees and President
Wheelock become enemies--The hostile factions attack one
another by means of pamphlets--The Trustees remove Wheelock
from the Presidency--The Republican Legislature passes laws
violative of the College Charter and establishing Dartmouth
University--Violent political controversy--The College Trustees
and officers refuse to yield--The famous suit of Trustees of
Dartmouth College _vs._ Woodward is brought--The contract
clause of the Constitution is but lightly considered by
Webster, Mason, and Smith, attorneys for the College--Supreme
Court of New Hampshire upholds the acts of the Legislature--
Chief Justice Richardson delivers able opinion--The case
appealed to the Supreme Court of the United States--Webster
makes his first great argument before that tribunal--He
rests his case largely on "natural right" and "fundamental
principles," and relies but little on the contract clause--He
has small hopes of success--The court cannot agree--Activity
of College Trustees and officers during the summer and autumn
of 1818--Chancellor James Kent advises Justices Johnson and
Livingston of the Supreme Court--William Pinkney is retained by
the opponents of the College--He plans to ask for a reargument
and makes careful preparation--Webster is alarmed--The Supreme
Court opens in February, 1819--Marshall ignores Pinkney and
reads his opinion to which five Associate Justices assent--The
joy of Webster and disgust of Pinkney--Hopkinson's comment--
The effect of Marshall's opinion--The foundations of good
faith--Comments upon Marshall's opinion--The persistent
vitality of his doctrine as announced in the Dartmouth College
case--Departures from it--Recent discussions of Marshall's
theory.
VI. VITALIZING THE CONSTITUTION 282
The third of Marshall's opinions delivered in 1819--The facts
in the case of M'Culloch _vs._ Maryland--Pinkney makes the
last but one of his great arguments--The final effort of Luther
Martin--Marshall delivers his historic opinion--He announces a
radical Nationalism--"The power to tax involves the power to
destroy"--Marshall's opinion is violently attacked--Niles
assails it in his _Register_--Declares it "more dangerous than
_foreign_ invasion"--Marshall's opinion more widely published
than any previous judicial pronouncement--The Virginia
Republican organization perceives its opportunity and
strikes--Marshall tells Story of the coming assault--Roane
attacks in the Richmond _Enquirer_--"The people must rouse
from the lap of Delilah to meet the Philistines"--The letters
of "Amphyction" and "Hampden"--The United States is "as much
a league as was the former confederation"--Marshall is acutely
alarmed by Roane's attacks--He writes a dull and petulant
newspaper defense of his brilliant opinion--Regrets his
controversial effort and refuses to permit its republication--
The Virginia Legislature passes resolutions denouncing his
opinion and proposing a new tribunal to decide controversies
between States and the Nation--The slave power joins the
attack upon Marshall's doctrines--Ohio aligns herself with
Virginia--Ohio's dramatic resistance to the Bank of the
United States--Passes extravagantly drastic laws--Adopts
resolutions denouncing Marshall's opinions and defying the
National Government--Pennsylvania, Tennessee, Indiana, Illinois
also demand a new court--John Taylor "of Caroline" writes his
notable book, _Construction Construed_--Jefferson warmly
approves it--Declares the National Judiciary to be a "subtle
corps of sappers and miners constantly working underground to
undermine the foundations of our confederated fabric."
VII. THREATS OF WAR 340
Relation of slavery and Marshall's opinions--The South
threatens war: "I behold a brother's sword crimsoned with a
brother's blood"--Northern men quail--The source and purpose
of Marshall's opinion in Cohens _vs._ Virginia--The facts
in that case--A trivial police court controversy--The case
probably "arranged"--William Pinkney and David B. Ogden appear
for the Cohens--Senator James Barbour, for Virginia, threatens
secession: "With them [State Governments], it is to determine
how long their [National] government shall endure"--Marshall's
opinion is an address to the American people--The grandeur of
certain passages: "A Constitution is framed for ages to come
and is designed to approach immortality"--The Constitution is
vitalized by a "conservative power" within it--Independence
of the Judiciary necessary to preservation of the Republic--
Marshall directly replies to the assailants of Nationalism:
"The States are members of one great empire"--Marshall
originates the phraseology, "a government of, by, and for
the people"--Publication of the opinion in Cohens _vs._
Virginia arouses intense excitement--Roane savagely attacks
Marshall under the _nom de guerre_ of "Algernon Sidney"--
Marshall is deeply angered--He writes Story denouncing
Roane's articles--Jefferson applauds and encourages attacks on
Marshall--Marshall attributes to Jefferson the assaults upon
him and the Supreme Court--The incident of John E. Hall and his
_Journal of American Jurisprudence_--John Taylor again assails
Marshall's opinions in his second book, _Tyranny Unmasked_--
He connects monopoly, the protective tariff, internal
improvements, "exclusive privileges," and emancipation
with Marshall's Nationalist philosophy--Jefferson praises
Taylor's essay and declares for armed resistance to National
"usurpation": "The States must meet the invader foot to
foot"--Senator Richard M. Johnson of Kentucky, in Congress,
attacks Marshall and the Supreme Court--Offers an amendment to
the Constitution giving the Senate appellate jurisdiction from
that tribunal--Roane asks the Virginia Legislature to demand
an amendment to the National Constitution limiting the power
of the Supreme Court--Senator Johnson makes bold and powerful
speech in the Senate--Declares the Supreme Court to be a denial
of the whole democratic theory--Webster sneers at Johnson's
address--Kentucky and the Supreme Court--The "Occupying
Claimant" laws--Decisions in Green _vs._ Biddle--The Kentucky
Legislature passes condemnatory and defiant resolutions--
Justice William Johnson infuriates the South by an opinion from
the Circuit Bench--The connection of the foregoing events with
the Ohio Bank case--The alignment of economic, political, and
social forces--Marshall delivers his opinion in Osborn _vs._
The Bank of the United States--The historical significance of
his declaration in that case.
VIII. COMMERCE MADE FREE 397
Fulton's experiments on the Seine in Paris--French scientists
reject his invention--The Livingston-Fulton partnership--
Livingston's former experiments in New York--Secures monopoly
grants from the Legislature--These expire--The Clermont makes
the first successful steamboat voyage--Water transportation
revolutionized--New York grants monopoly of steamboat
navigation to Livingston and Fulton--They send Nicholas J.
Roosevelt to inspect the Ohio and Mississippi Rivers--His
romantic voyage to New Orleans--Louisiana grants exclusive
steamboat privileges to Livingston and Fulton--New Jersey
retaliates on New York--Connecticut forbids Livingston and
Fulton boats to enter her waters--New York citizens defy
the steamboat monopoly--Livingston and Fulton sue James Van
Ingen--New York courts uphold the steamboat monopoly, and
assert the right of the State to control navigation on its
waters--The opinion of Chief Justice Kent--The controversy
between Aaron Ogden and Thomas Gibbons--Ogden, operating under
a license from Livingston and Fulton, sues Gibbons--State
courts again sustain the monopoly acts--Gibbons appeals to the
Supreme Court--Ogden retains William Pinkney--The case is
dismissed, refiled, and continued--Pinkney dies--Argument not
heard for three years--Several States pass monopoly laws--
Prodigious development of steamboat navigation--The demand for
internal improvements stimulated--The slave interests deny
power of Congress to build roads and canals--The daring speech
of John Randolph--Declares slavery imperiled--Threatens armed
resistance--Remarkable alignment of opposing forces when
Gibbons _vs._ Ogden is heard in Supreme Court--Webster makes
the greatest of his legal arguments--Marshall's opinion one of
his most masterful state papers--His former opinion on the
Circuit Bench in the case of the Brig Wilson anticipates that
in Gibbons _vs._ Ogden--The power of Congress over interstate
and foreign commerce absolute and exclusive--Marshall attacks
the enemies of Nationalism--The immediate effect of Marshall's
opinion on steamboat transportation, manufacturing, and
mining--Later effect still more powerful--Railway development
incalculably encouraged--Results to-day of Marshall's theory of
commerce--Litigation in New York following the Supreme Court's
decision--The whole-hearted Nationalism of Chief Justice Savage
and Chancellor Sanford--Popularity of Marshall's opinion--The
attack in Congress on the Supreme Court weakens--Martin Van
Buren, while denouncing the "idolatry" for the Supreme Court,
pays an exalted tribute to Marshall: "The ablest judge now
sitting on any judicial bench in the world"--Senator John Rowan
of Kentucky calls the new popular attitude toward the Supreme
Court "a judicial superstition"--The case of Brown _vs._
Maryland--Marshall's opinion completes his Constitutional
expositions of the commerce clause--Taney's remarkable
acknowledgment.
IX. THE SUPREME CONSERVATIVE 461
Marshall's dislike for the formal society of Washington--His
charming letters to his wife--He carefully avoids partisan
politics--Refrains from voting for twenty years--Is irritated
by newspaper report of partisanship--Writes denial to the
Richmond _Whig_--Clay writes Marshall--The Chief Justice
explains incident to Story--Marshall's interest in politics--
His letter to his brother--Permits himself to be elected to the
Virginia Constitutional Convention of 1829-30--His disgust at
his "weakness"--Writes Story amusing account--Issues before the
convention deeply trouble him--He is frankly and unshakably
conservative--The antiquated and undemocratic State
Constitution of 1776 and the aristocratic system under
it--Jefferson's brilliant indictment of both in a private
letter--His alarm and anger when his letter is circulated--He
tries to withdraw it--Marshall's interest in the well-being of
the people--His prophetic letter to Charles F. Mercer--
Marshall's only public ideal that of Nationalism--His views on
slavery--Letters to Gurley and Pickering--His judicial opinions
involving slavery and the slave trade: The Antelope; Boyce
_vs._ Anderson--Extreme conservatism of Marshall's views on
legislation and private property--Letter to Greenhow--Opinions
in Ogden _vs._ Saunders and Bank _vs._ Dandridge--Marshall's
work in the Virginia convention--Is against any reform--Writes
Judiciary report--The aristocratic County Court system--
Marshall defends it--Impressive tributes to Marshall from
members of the convention--His animated and powerful speeches
on the Judiciary--He answers Giles, Tazewell, and Cabell,
and carries the convention by an astonishing majority--
Is opposed to manhood suffrage and exclusive white basis
of representation--He pleads for compromise on the latter
subject and prevails--Reasons for his course in the
convention--He probably prevents civil strife and bloodshed
in Virginia--The convention adjourns--History of Craig _vs._
Missouri--Marshall's stern opinion--The splendid eloquence
of his closing passage--Three members of the Supreme Court
file dissenting opinions--Marshall's melancholy comments on
them--Congressional assaults on the Supreme Court renewed--
They are astonishingly weak, and are overwhelmingly defeated,
but the vote is ominous.
X. THE FINAL CONFLICT 518
Sadness of Marshall's last years--His health fails--
Contemplates resigning--His letters to Story--Goes to
Philadelphia for surgical treatment--Remarkable resolutions by
the bar of that city--Marshall's response--Is successfully
operated upon by Dr. Physick--His cheerfulness--Letters to his
wife--Mrs. Marshall dies--Marshall's grief--His tribute to
her--He is depressed by the course of President Jackson--The
warfare on the Bank of the United States--Congress recharters
it--Jackson vetoes the Bank Bill and assails Marshall's
opinions in the Bank cases--The people acclaim Jackson's veto--
Marshall is disgusted--His letters to Story--He is alarmed at
the growth of disunion sentiment--Causes of the recrudescence
of Localism--Marshall's theory of Constitutional construction
and its relation to slavery--The tariff--The South gives stern
warnings--Dangerous agitation in South Carolina--Georgia
asserts her "sovereignty" in the matter of the Cherokee
Indians--The case of George Tassels--Georgia ignores the
Supreme Court and rebukes Marshall--The Cherokee Nation _vs._
Georgia--The State again ignores the Supreme Court--Marshall
delivers his opinion in that case--Worcester _vs._ Georgia--The
State defies the Supreme Court--Marshall's opinion--Georgia
flouts the Court and disregards its judgment--Jackson supports
Georgia--Story's melancholy letter--The case of James Graves--
Georgia once more defies the Supreme Court and threatens
secession--South Carolina encouraged by Georgia's attitude--
Nullification sentiment grows rapidly--The Hayne-Webster
debate--Webster's great speech a condensation of Marshall's
Nationalist opinions--Similarity of Webster's language to that
of Marshall--The aged Madison repudiates Nullification--
Marshall, pleased, writes Story: "Mr. Madison is himself
again"--The Tariffs of 1828 and 1832 infuriate South Carolina--
Scenes and opinion in that State--Marshall clearly states the
situation--His letters to Story--South Carolina proclaims
Nullification--Marshall's militant views--Jackson issues his
Nullification Proclamation--It is based on Marshall's theory of
the Constitution and is a triumph for Marshall--Story's
letter--Hayne replies to Jackson--South Carolina flies to
arms--Virginia intercedes--Both parties back down: South
Carolina suspends Nullification and Congress passes Tariff
of 1833--Marshall describes conditions in the South--His
letters to Story--He almost despairs of the Republic--
Public appreciation of his character--Story dedicates
his _Commentaries_ to Marshall--Marshall presides over the
Supreme Court for the last time--His fatal illness--He dies at
Philadelphia--The funeral at Richmond--Widespread expressions
of sorrow--Only one of condemnation--The long-continued
mourning in Virginia--Marshall's old club resolves never to
fill his place or increase its membership--Story's "inscription
for a cenotaph" and the words Marshall wrote for his 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
possession of The Law Association of Philadelphia. A copy was
presented to the Connecticut State Library by Senator Frank B.
Brandegee and was chosen by the Secretary of the Treasury out of
all existing portraits to be engraved on steel for use as a
vignette on certain government bonds and 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
possession of the family.
WILLIAM PINKNEY 132
From the original painting by Charles Wilson Peale, in the
possession of 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 IN THE 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's
history of _The Supreme Court of the United States_, reproduced
through the courtesy of the Lawyers' Coöperative Publishing
Company, Rochester, New York. The etchings were made from
originals as follows: Washington, from a painting by Chester
Harding in the possession of the family; Johnson, from a
painting by Jarvis in the possession of the New York Historical
Society; Livingston, from a painting in the possession of the
family; Todd, from a painting in the possession of the family;
Story, from a drawing by William Wetmore Story in the possession
of the family; Duval, from a painting in the Capitol at
Washington. Mr. Justice Todd is included as a member of the
Court at 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
University of 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
Purchase and was the home of Marshall's son James Keith
Marshall. The wing on the left was built especially for the use
of Chief Justice Marshall, who expected to spend his declining
years there. Many of his books and papers were kept in this
house.
ASSOCIATE JUSTICES AT THE LAST SESSION OF THE SUPREME COURT OVER
WHICH JOHN MARSHALL PRESIDED: JOSEPH STORY, SMITH THOMPSON, JOHN
McLEAN, HENRY BALDWIN, JAMES M. WAYNE 584
From etchings by Max and Albert Rosenthal in Hampton L. Carson's
history of _The Supreme Court of the United States_, reproduced
by the courtesy 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 of the family; Smith Thompson from a painting by
Dumont in the possession of Smith Thompson, Esq., Hudson, New
York; McLean, from a 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 the
Shockoe 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 28^{th.} 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 2^{d.} of Nov^{r.} 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 28^{th.} of April 1811 as to one dated
the 1^{st} 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 M^{r.} 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 1^{st} 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 1^{st} of Nov^r--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]
[Illustration: 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 M^r 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.
[75] Tyler: _Letters and Times of the Tylers_, I, 229. For an expression
by Napoleon on this subject, see Adams: _U.S._ V, 137.
[76] See vol. II, 28-29, of this work.
[77] "The appointment of Jackson and the instructions given to him might
well have justified a declaration of war against Great Britain the
moment they were known." (Channing: _Jeff. System_, 237.)
[78] Circular, Nov. 13, 1809, _Am. State Papers, For. Rel._ III, 323;
_Annals_, 11th Cong. 2d Sess. 743.
[79] Canning to Pinkney, Sept. 23, 1808, _Am. State Papers, For. Rel._
III, 230-31.
[80] Story to White, Jan. 17, 1809, _Life and Letters of Joseph Story_:
Story, I, 193-94. There were two letters from Canning to Pinkney, both
dated Sept. 23, 1808. Story probably refers to one printed in the
_Columbian Centinel_, Boston, Jan. 11, 1809.
"It seems as if in New England the federalists were forgetful of all the
motives for union & were ready to destroy the fabric which has been
raised by the wisdom of our fathers. Have they altogether lost the
memory of Washington's farewell address?... The riotous proceedings in
some towns ... no doubt ... are occasioned by the instigation of men,
who keep behind the curtain & yet govern the wires of the puppet shew."
(Story to his brother, Jan. 3, 1809, Story MSS. Mass. Hist. Soc.)
"In New England, and even in New York, there appears a spirit hostile to
the existence of our own government." (Plumer to Gilman, Jan. 24, 1809,
Plumer: _Life of William Plumer_, 368.)
[81] Adams: _U.S._ V, 158.
[82] _Annals_, 11th Cong. 2d Sess. 481.
[83] _Ib._ 943. The resolution was passed over the strenuous resistance
of the Federalists.
[84] Probably that of Madison, July 21, 1808, _Annals_, 10th Cong. 2d
Sess. 1681.
[85] Marshall to Quincy, April 23, 1810, Quincy: _Life of Josiah
Quincy_, 204.
[86] Tyler to Jefferson, May 12, 1810, Tyler: _Tyler_, I, 247; and see
next chapter.
[87] Adams: _U.S._ V, 212-14; and see Morison: _Otis_, II, 18-19.
[88] Turreau, then the French Minister at Washington, thus reported to
his Government: "To-day not only is the separation of New England openly
talked about, but the people of those five States wish for this
separation, pronounce it, openly prepare it, will carry it out under
British protection"; and he suggests that "perhaps the moment has come
for forming a party in favor of France in the Central and Southern
States, whenever those of the North, having given themselves a separate
government under the support of Great Britain, may threaten the
independence of the rest." (Turreau to Champagny, April 20, 1809, as
quoted in Adams: _U.S._ V, 36.)
[89] For account of Jackson's reception in Boston and the effects of it,
see Adams: _U.S._ 215-17, and Morison: _Otis_, 20-22.
[90] On the other hand, Jefferson, out of his bottomless prejudice
against Great Britain, drew venomous abuse of the whole British nation:
"What is to restore order and safety on the ocean?" he wrote; "the death
of George III? Not at all. He is only stupid;... his ministers ...
ephemeral. But his nation is permanent, and it is that which is the
tyrant of the ocean. The principle that force is right, is become the
principle of the nation itself. They would not permit an honest
minister, were accident to bring such an one into power, to relax their
system of lawless piracy." (Jefferson to Rodney, Feb. 10, 1810, _Works_:
Ford, XI, 135-36.)
[91] Champagny, Duke de Cadore, to Armstrong, Aug. 5, 1810 (_Am._ _State
Papers, For. Rel._ III, 386-87), and Proclamation, Nov. 2, 1810 (_ib._
392); and see Adams: _U.S._ V, 303-04.
[92] Adams: _U.S._ V, 346.
[93] Marshall to Pickering, Feb. 22, 1811, Pickering MSS. Mass. Hist.
Soc.
[94] _Annals_, 11th Cong. 3d Sess. 525.
Daniel Webster was also emphatically opposed to the admission of new
States: "Put in a solemn, decided, and spirited Protest against making
new States out of new Territories. Affirm, in direct terms, that New
Hampshire has never agreed to favor political connexions of such
intimate nature, with any people, out of the limits of the U.S. as they
existed at the time of the compact." (Webster to his brother, June 4,
1813, _Letters of Daniel Webster_: Van Tyne, 37.)
[95] _Annals_, 11th Cong. 3d Sess. 542.
[96] _Ib._ 1st and 2d Sess. 579-82.
[97] _Annals_, 12th Cong. 1st Sess. 601; also see Adams: _U.S._ V,
189-90.
[98] Adams: _U.S._ V, 316.
[99] Richardson, I, 499-505; _Am. State Papers, For. Rel._ III, 567-70.
[100] _Annals_, 12th Cong. 1st Sess. 1637. The Federalists who voted for
war were: Joseph Kent of Maryland, James Morgan of New Jersey, and
William M. Richardson of Massachusetts.
Professor Channing thus states the American grievances: "Inciting the
Indians to rebellion, impressing American seamen and making them serve
on British war-ships, closing the ports of Europe to American commerce,
these were the counts in the indictment against the people and
government of Great Britain." (Channing: _Jeff. System_, 260.) See also
_ib._ 268, and Jefferson's brilliant statement of the causes of the war,
Jefferson to Logan, Oct. 3, 1813, _Works_: Ford, XI, 338-39.
"The United States," says Henry Adams, "had a superfluity of only too
good causes for war with Great Britain." (Adams: _Life of Albert
Gallatin_, 445.) Adams emphasizes this: "The United States had the right
to make war on England with or without notice, either for her past
spoliations, her actual blockades, her Orders in Council other than
blockades, her Rule of 1756, her impressments, or her attack on the
'Chesapeake,' not yet redressed,--possibly also for other reasons less
notorious." (Adams: _U.S._ V, 339.) And see Roosevelt, chaps, I and II.
[101] _Annals_, 12th Cong. 1st Sess. 1675-82.
[102] Salem _Gazette_, July 7, 1812, as quoted in Morison: _Otis_, I,
298.
[103] Story to Williams, Aug. 24, 1812, Story, I, 229.
[104] Pickering to Pennington, July 12, 1812, _N.E. Federalism_: Adams,
389.
[105] Of course the National courts were attacked: "Attempts ... are
made ... to break down the Judiciary of the United States through the
newspapers, and mean and miserable insinuations are made to weaken the
authority of its judgments." (Story to Williams, Aug. 3, 1813, Story, I,
247.) And again: "Conspirators, and traitors are enabled to carry on
their purposes almost without check." (Same to same, May 27, 1813, _ib._
244.) Story was lamenting that the National courts had no common-law
jurisdiction. Some months earlier he had implored Nathaniel Williams,
Representative in Congress from Story's district, to "induce Congress
to give the Judicial Courts of the United States power to punish all
crimes ... against the Government.... Do not suffer conspiracies to
destroy the Union." (Same to same, Oct. 8, 1812, _ib._ 243.)
Jefferson thought the people were loyal: "When the questions of
separation and rebellion shall be nakedly proposed ... the Gores and the
Pickerings will find their levees crowded with silk stocking gentry, but
no yeomanry." (Jefferson to Gerry, June 11, 1812, _Works_: Ford, XI,
257.)
[106] Stoddert to McHenry, July 15, 1812, Steiner: _Life and
Correspondence of James McHenry_, 581-83.
[107] "To the Citizens of the United States," in the _Spirit of
Seventy-Six_, July 17, 1812.
[108] Stoddert refers to this person as "Jo Davies." By some this has
been thought to refer to Marshall's brother-in-law, "Jo" Daveiss of
Kentucky. But the latter was killed in the Battle of Tippecanoe,
November 7, 1811.
While the identity of Stoddert's agent cannot be established with
certainty, he probably was one John Davis of Salisbury, England, as
described in the text. "Jo" was then used for John as much as for
Joseph; and Davis was frequently spelled "Davies." A John or "Jo" Davis
or Davies, an Englishman, was a very busy person in America during the
first decade of the nineteenth century. (See Loshe: _Early American
Novel_, 74-77.) Naturally he would have been against the War of 1812,
and he was just the sort of person that an impracticable man like
Stoddert would have chosen for such a mission.
[109] Stoddert to McHenry, July 15, 1812, Steiner, 582.
[110] See King, V, 266.
[111] Adams: _U.S._ V, 375-78.
[112] Smith: _An Address to the People of the United States_, 42-43.
[113] Marshall to Smith, July 27, 1812, Dreer MSS. "American Lawyers,"
Pa. Hist. Soc.
[114] _Am. State Papers, For. Rel._ III, 603; and see Charming: _U.S._
IV, 449.
[115] See vol. II, 243-44, 245-47, of this work.
[116] Marshall to Smith, July 27, 1812, Dreer MSS. "American Lawyers,"
Pa. Hist. Soc.
A single quotation from the letters of Southern Federalists will show
how accurately Marshall interpreted Federalist feeling during the War of
1812: "Heaven grant that ... our own Country may not be found
ultimately, a solitary friend of this great Robber of Nations."
(Tallmadge to McHenry, May 30, 1813, Steiner, 598.) The war had been in
progress more than ten months when these words were written.
[117] Story to Williams, Oct. 8, 1812, Story, I, 243.
[118] Marshall to Monroe, June 25, 1812, Monroe MSS. Lib. Cong.
[119] Marshall, however, was a member of the "Vigilance Committee" of
Richmond, and took an important part in its activities. (_Virginia
Magazine of History and Biography_, VII, 230-31.)
[120] _Report of the Commissioners appointed to view Certain Rivers
within the Commonwealth of Virginia_, 5.
[121] A practicable route for travel and transportation between Virginia
and the regions across the mountains had been a favorite project of
Washington. The Potomac and James River Company, of which Marshall when
a young lawyer had become a stockholder (vol. I, 218, of this work), was
organized partly in furtherance of this project. The idea had remained
active in the minds of public men in Virginia and was, perhaps, the one
subject upon which they substantially agreed.
[122] Much of the course selected by Marshall was adopted in the
building of the Chesapeake and Ohio Railway. In 1869, Collis P.
Huntington made a trip of investigation over part of Marshall's route.
(Nelson: _Address--The Chesapeake and Ohio Railway_, 15.)
[123] _Report of the Commissioners appointed to view Certain Rivers
within the Commonwealth of Virginia_, 38-39.
[124] Niles: _Weekly Register_, II, 418.
[125] Lowell: _Mr. Madison's War_: by "A New England Farmer."
A still better illustration of Federalist hostility to the war and the
Government is found in a letter of Ezekiel Webster to his brother
Daniel: "Let gamblers be made to contribute to the support of this war,
which was declared by men of no better principles than themselves."
(Ezekiel Webster to Daniel Webster, Oct. 29, 1814, Van Tyne, 53.)
Webster here refers to a war tax on playing-cards.
[126] Harper to Lynn, Sept. 25, 1812, Steiner, 584.
[127] See McMaster, IV, 199-200.
[128] Morison: _Otis_, I, 399.
[129] Pickering to Pennington, July 22, 1812, _N.E. Federalism_: Adams,
389.
[130] The vote of Pennsylvania, with those cast for Clinton, would have
elected Marshall.
[131] Babcock, 157; and see Dewey: _Financial History of the United
States_, 133.
[132] For an excellent statement of the conduct of the Federalists at
this time see Morison: _Otis_, II, 53-66. "The militia of Massachusetts,
seventy thousand in enrolment, well-drilled, and well-equipped, was
definitely withdrawn from the service of the United States in September,
1814." (Babcock, 155.) Connecticut did the same thing. (_Ib._ 156.)
[133] _Annals_, 13th Cong. 1st Sess. 302.
[134] See McMaster, IV, 213-14.
[135] _Annals_, 13th Cong. 1st Sess. 302
[136] _Am. State Papers, For. Rel._ III, 609-12.
[137] The Republican victory was caused by the violent British
partisanship of the Federalist leaders. In spite of the distress the
people suffered from the Embargo, they could not, for the moment,
tolerate Federalist opposition to their own country. (See Adams: _U.S._
V, 215.)
[138] Marshall to Pickering, Dec. 11, 1813, Pickering MSS. Mass. Hist
Soc.
[139] Morison: _Otis_, II, 54-56.
[140] "CURSE THIS GOVERNMENT! I would march at 6 days notice for
Washington ... and I would swear upon the _altar_ never to return till
Madison was buried under the ruins of the capitol." (Herbert to Webster,
April 20, 1813, Van Tyne, 27.)
[141] The Federalists frantically opposed conscription. Daniel Webster,
especially, denounced it. "Is this [conscription] ... consistent with
the character of a free Government?... No, Sir.... The Constitution is
libelled, foully libelled. The people of this country have not
established ... such a fabric of despotism....
"Where is it written in the Constitution ... that you may take children
from their parents ... & compel them to fight the battles of any war, in
which the folly or the wickedness of Government may engage it?... Such
an abominable doctrine has no foundation in the Constitution."
Conscription, Webster said, was a gambling device to throw the dice for
blood; and it was a "horrible lottery." "May God, in his compassion,
shield me from ... the enormity of this guilt." (See Webster's speech on
the Conscription Bill delivered in the House of Representatives,
December 9, 1814, Van Tyne, 56-68; see also Curtis: _Life of Daniel
Webster_, I, 138.)
Webster had foretold what he meant to do: "Of course we shall oppose
such usurpation." (Webster to his brother, Oct. 30, 1814, Van Tyne, 54.)
Again: "The conscription has not come up--if it does it will cause a
storm such as was never witnessed here" [in Washington]. (Same to same,
Nov. 29, 1814, _ib._ 55.)
[142] See Morison: _Otis_, II, 78-199. Pickering feared that Cabot's
moderation would prevent the Hartford Convention from taking extreme
measures against the Government. (See Pickering to Lowell, Nov. 7, 1814,
_N.E. Federalism_: Adams, 406.)
[143] Some sentences are paraphrases of expressions by Jefferson on the
same subject. For example: "I hold the right of expatriation to be
inherent in every man by the laws of nature, and incapable of being
rightfully taken from him even by the united will of every other person
in the nation." (Jefferson to Gallatin, June 26, 1806, _Works_: Ford, X,
273.) Again: "Our particular and separate grievance is only the
impressment of our citizens. We must sacrifice the last dollar and drop
of blood to rid us of that badge of slavery." (Jefferson to Crawford,
Feb. 11, 1815, _ib._ XI, 450-51.) This letter was written at Monticello
the very day that the news of peace reached Washington.
[144] Hay: _A Treatise on Expatriation_, 24.
[145] Lowell: _Review of 'A Treatise on Expatriation'_: by "A
Massachusetts Lawyer."
[146] See vol. III, chap. I, of this work.
[147] See _Review of 'A Treatise on Expatriation_,' 6.
[148] Marshall to Pickering, April 11, 1814, Pickering MSS. Mass. Hist.
Soc.
[149] See Channing: _Jeff. System_, 170-71.
[150] M'Ilvaine _vs._ Coxe's Lessee, 4 Cranch, 209.
[151] Dawson's Lessee _vs._ Godfrey, 4 Cranch, 321.
[152] Case of the Santissima Trinidad _et al._, 1 Brockenbrough, 478-87;
and see 7 Wheaton, 283.
[153] Plumer to Livermore, March 4, 1804, Plumer MSS. Lib. Cong.
[154] For example, the British "right" of impressment must be formally
and plainly acknowledged in the treaty; an Indian dominion was to be
established, and the Indian tribes were to be made parties to the
settlements; the free navigation of the Mississippi was to be guaranteed
to British vessels; the right of Americans to fish in Canadian waters
was to be ended. Demands far more extreme were made by the British press
and public. (See McMaster, IV, 260-74; and see especially Morison:
_Otis_, II, 171.)
[155] McMaster, IV, 383-88.