The Life of John Marshall (Volume 2 of 4)

368

American Remembrancer, i, 27.

369

See infra, chap. v.

370

Ames to Gore, March 11, 1796; Works: Ames, i, 189.

371

Annals, 4th Cong., 1st Sess., 1033-34.

372

Ib., 1063. See Anderson, 41-43. As one of the purchasers of the Fairfax estate, Marshall had a personal interest in the Jay Treaty, though it does not appear that this influenced him in his support of it.

373

The voting was viva voce. See infra, chap. x.

374

Undoubtedly this gentleman was one of the perturbed Federalist managers.

375

North American Review, xxvi, 22. While this story seems improbable, no evidence has appeared which throws doubt upon it. At any rate, it serves to illustrate Marshall's astonishing popularity.

376

Carrington's reports to Washington were often absurd in their optimistic inaccuracy. They are typical of those which faithful office-holding politicians habitually make to the appointing power. For instance, Carrington told Washington in 1791 that, after traveling all over Virginia as United States Marshal and Collector of Internal Revenue, he was sure the people were content with Assumption and the whiskey tax (Washington's Diary: Lossing, footnote to 166), when, as a matter of fact, the State was boiling with opposition to those very measures.

377

The mingling, in the Republican mind, of the Jay Treaty, Neutrality, unfriendliness to France, and the Federalist Party is illustrated in a toast at a dinner in Lexington, Virginia, to Senator Brown, who had voted against the treaty: "The French Republic – May every power or party who would attempt to throw any obstacle in the way of its independence or happiness receive the reward due to corruption." (Richmond and Manchester Advertiser, Oct. 15, 1795.)

378

Carrington to Washington, Nov. 10, 1795; MS., Lib. Cong.

379

Ib., Nov. 13, 1795; MS.; Lib. Cong.

[381] The resolution "was warmly agitated three whole days." (Randolph to Jefferson, Nov. 22, 1795; Works: Ford, viii, footnote to 197.)

380

Carrington to Washington, Nov. 20, 1795; MS., Lib. Cong.

381

See debates; Annals, 4th Cong., 1st Sess., 423-1291; also see Petersburg Resolutions; American Remembrancer, i, 102-07.

382

Thompson's address, Aug. 1, 1795, at Petersburg; ib., 21 et seq.

383

Carrington to Washington, Nov. 20, 1795; MS., Lib. Cong.

384

Randolph to Jefferson, Nov. 22, 1795; Works: Ford, viii, footnote to 197.

385

Randolph to Jefferson, Nov. 22, 1795; Works: Ford, viii, footnote to 197.

386

Ib.

387

Ib. See Hamilton's dissertation on the treaty-making power in numbers 36, 37, 38, of his "Camillus"; Works: Lodge, vi, 160-97.

388

Marshall to Hamilton, April 25, 1796; Works: Hamilton, vi, 109.

389

Randolph to Jefferson, Nov. 22, 1795; Works: Ford, viii, 198.

390

Journal, H.D. (Nov. 20, 1795), 27-28.

391

Journal, H.D. (Nov. 20, 1795), 28.

392

Carrington to Washington, Nov. 20, 1795; MS., Lib. Cong.

393

The italics are mine. "The word 'wisdom' in expressing the confidence of the House in the P.[resident] was so artfully introduced that if the fraudulent design had not been detected in time the vote of the House, as to its effect upon the P. would have been entirely done away… A resolution so worded as to acquit the P. of all evil intention, but at the same time silently censuring his error, was passed by a majority of 33." (Letter of Jefferson's son-in-law, enclosed by Jefferson to Madison; Works: Ford, viii, footnote to 198.)

394

Journal, H.D. (Nov. 21, 1795), 29.

395

Ib.

396

Journal, H.D. (Nov. 21, 1795), 29.

397

Jefferson to Madison, Nov. 26, 1795; Works: Ford, viii, 197-98.

398

Randall, ii, 36.

399

Journal, H.D. (1795), 72.

400

Journal, H.D. (1795), 50.

401

Ib., 53.

402

Ib., 79.

403

Ib., 90.

404

Ib., 91-92.

405

Carrington to Washington, Dec. 6, 1795; MS., Lib. Cong.

406

Journal, H.D. (Dec. 12, 1795), 91-92.

407

Carrington to Washington, Feb. 24, 1796; MS., Lib. Cong.

408

Dodd, 39.

409

Lee to Washington, July 7, 1796; Writings: Sparks, xi, 487.

410

Washington to Marshall, July 8, 1796; Washington MSS., Lib. Cong.

411

Marshall to Washington, July 11, 1796; ib.

412

Washington to Marshall, July 15, 1796; Washington's Private Letter Book; MS., Lib. Cong.

413

Washington to Marshall, Oct. 10, 1796; ib.

414

Marshall to Washington, Oct. 12, 1796; Washington MSS., Lib. Cong.

415

Genêt's successor as French Minister to the United States.

416

Interesting State Papers, 48 et seq.

417

Interesting State Papers, 55.

418

For able defense of Randolph see Conway, chap. xxiii; but contra, see Gibbs, i, chap. ix.

419

Patterson of New Jersey, Johnson of Maryland, C. C. Pinckney of South Carolina, Patrick Henry of Virginia, and Rufus King of New York. (Washington to Hamilton, Oct. 29, 1795; Writings: Ford, xiii, 129-30.) King declined because of the abuse heaped upon public officers. (Hamilton to Washington, Nov. 5, 1795; ib., footnote to 130.)

420

Washington to Hamilton, Oct. 29, 1795; Writings: Ford, xiii, 131.

421

For debate see Annals, 4th Cong., 1st Sess., 423-1291.

422

Carrington to Washington, May 9, 1796; MS., Lib. Cong.

423

Oliver Wolcott to his father, Feb. 12, 1791; Gibbs, i, 62.

424

Hamilton to King, June 20, 1795; Works: Lodge, x, 103.

425

Washington to Knox, Sept. 20, 1795; Writings: Ford, xiii, 105-06.

426

Carrington to the President, April 22, 1796; Writings: Ford, xiii, footnote to 185.

427

Washington to Carrington, May 1, 1796; ib., 185.

428

Ib., 186.

429

Story, in Dillon, iii, 352.

430

Senator Stephen Thompson Mason wrote privately to Tazewell that the Fairfax purchasers and British merchants were the only friends of the treaty in Virginia. (Anderson, 42.)

431

Alexander Campbell. (See infra, chap. v.)

432

Randolph to Madison, Richmond, April 25, 1796; Conway, 362. Only freeholders could vote.

433

Marshall to Hamilton, April 25, 1796; Works: Hamilton, vi, 109.

434

Author unknown.

435

Richmond and Manchester Advertiser, April 27, 1796.

436

Carrington to the President, April 27, 1796; MS., Lib. Cong.

437

Marshall to King, April 25, 1796; King, ii, 45-46.

438

Washington to Thomas Pinckney, May 22, 1796; Writings: Ford, xiii, 208.

439

Robert Morris to James M. Marshall, May 1, 1796; Morris's Private Letter Book; MS., Lib. Cong.

440

Story, in Dillon, iii, 350.

441

Marshall to King, April 19, 1796; Hamilton MSS., Lib. Cong. Hamilton, it seems, had also asked Marshall to make overtures to Patrick Henry for the Presidency. (King, ii, footnote to 46.) But no correspondence between Hamilton and Marshall upon this subject has been discovered. Marshall's correspondence about Henry was with King.

442

Marshall to King, May 24, 1796; King, ii, 48.

443

For an accurate description of the unparalleled abuse of Washington, see McMaster, ii, 249-50, 289-91, 302-06.

444

Marshall, ii, 391-92. Also see Washington to Pickering, March 3, 1797; Writings: Ford, xiii, 378-80; and to Gordon, Oct. 15; ib., 427.

445

Journal, H.D. (1796), 46-47; MS. Archives, Va. St. Lib.

446

Journal, H.D. (1796), 153; MS. Archives, Va. St. Lib.

447

Ib.

448

Ib. This amendment is historically important for another reason. It is the first time that the Virginia Legislature refers to that Commonwealth as a "State" in contra-distinction to the country. Although the Journal shows that this important motion was passed, the manuscript draft of the resolution signed by the presiding officer of both Houses does not show the change. (MS. Archives, Va. St. Lib.)

449

Story, in Dillon, iii, 355. Marshall's account was inaccurate, as we have seen. His memory was confused as to the vote in the two contests (supra), a very natural thing after the lapse of twenty years. In the first contest the House of Delegates voted overwhelmingly against including the word "wisdom" in the resolutions; and on the Senate amendment restored it by a dangerously small majority. On the second contest in 1796, when Marshall declares that Washington's friends won "by a very small majority," they were actually defeated.

450

Journal, H. D., 153-90.

451

Aurora, Monday, March 5, 1797. This paper, expressing Republican hatred of Washington, had long been assailing him. For instance, on October 24, 1795, a correspondent, in the course of a scandalous attack upon the President, said: "The consecrated ermine of Presidential chastity seems too foul for time itself to bleach." (See Cobbett, i, 411; and ib., 444, where the Aurora is represented as having said that "Washington has the ostentation of an eastern bashaw.") From August to September the Aurora had accused Washington of peculation. (See "Calm Observer" in Aurora, Oct. 23 to Nov. 5, 1795.)

452

Henry to his daughter, Aug. 20, 1796; Henry, ii, 569-70. Henry was now an enemy of Jefferson and his dislike was heartily reciprocated.

453

Washington to Jefferson, July 6, 1796; Writings: Ford, xiii, 230-31. This letter is in answer to a letter from Jefferson denying responsibility for the publication of a Cabinet paper in the Aurora. (Jefferson to Washington, June 19, 1796; Works: Ford, viii, 245; and see Marshall, ii, 390-91.) Even in Congress Washington did not escape. In the debate over the last address of the National Legislature to the President, Giles of Virginia declared that Washington had been "neither wise nor firm." He did not think "so much of the President." He "wished him to retire … the government of the United States could go on very well without him." (Annals, 4th Cong., 2d Sess. (Dec. 14, 1796), 1614-18.) On the three roll-calls and passage of the address Giles voted against Washington. (Ib., 1666-68.) So did Andrew Jackson, a new member from Tennessee. (Ib.)

The unpopularity of Washington's Administration led to the hostile policy of Bache's paper, largely as a matter of business. This provident editor became fiercely "Republican" because, as he explained to his relative, Temple Franklin, in England, he "could not [otherwise] maintain his family," and "he had determined to adopt a bold experiment and to come out openly against the Administration. He thought the public temper would bear it." (Marshall to Pickering, Feb. 28, 1811, relating the statement of Temple Franklin to James M. Marshall while in England in 1793.)

454

Southern Literary Messenger, 1836, ii, 181-91; also see Howe, 266.

455

Southern Literary Messenger, ii, 181-91; also Howe, 266. Apparently the older lawyer had been paid the one hundred dollars, for prepayment was customary in Virginia at the time. (See La Rochefoucauld, iii, 76.) This tale, fairly well authenticated, is so characteristic of Marshall that it is important. It visualizes the man as he really was. (See Jefferson's reference, in his letter to Madison, to Marshall's "lax, lounging manners," supra, 139.)

456

Story, in Dillon, iii, 363.

457

Wirt: The British Spy, 110-12.

458

Mazzei's Recherches sur les États-Unis, published in this year (1788) in four volumes.

459

Marshall himself could not read French at this time. (See infra, chap. vi.)

460

In this chapter of Marshall's receipts and expenditures all items are from his Account Book, described in vol. i, chap. v, of this work.

461

Marshall's third child, Mary, was born Sept. 17, of this year.

462

La Rochefoucauld, iii, 75-76.

463

Records, Henrico County, Virginia, Deed Book, iii, 74.

464

In 1911 the City Council of Richmond presented this house to the Association for the Preservation of Virginia Antiquities, which now owns and occupies it.

465

Mordecai, 63-70; and ib., chap. vii.

466

La Rochefoucauld, iii, 63. Negroes made up one third of the population.

467

Ib., 64; also Christian, 30.

468

This celebrated French playwright and adventurer is soon to appear again at a dramatic moment of Marshall's life. (See infra, chaps. vi to viii.)

469

Marshall's bill in equity in the "High Court of Chancery sitting in Richmond," January 1, 1803; Chamberlin MSS., Boston Public Library. Marshall, then Chief Justice, personally drew this bill. After the Fairfax transaction, he seems to have left to his brother and partner, James M. Marshall, the practical handling of his business affairs.

470

Memorial of William F. Ast and others; MS. Archives, Va. St. Lib.

471

Christian, 46.

472

This company is still doing business in Richmond.

473

Christian, 46.

474

The enterprise appears not to have filled the public with investing enthusiasm and no subscriptions to it were received.

475

See infra, chap. x.

476

Marshall to James M. Marshall, April 3, 1799; MS. This was the only one of Marshall's sisters then unmarried. She was twenty years of age at this time and married Major George Keith Taylor within a few months. He was a man of unusual ability and high character and became very successful in his profession. In 1801 he was appointed by President Adams, United States Judge for a Virginia district. (See infra, chap. xii.) The union of Mr. Taylor and Jane Marshall turned out to be very happy indeed. (Paxton, 77.)

Compare this letter of Marshall with that of Washington to his niece, in which he gives extensive advice on the subject of love and marriage. (Washington to Eleanor Parke Custis, Jan. 16, 1795; Writings: Ford, xiii, 29-32.)

477

Marshall to Everett, July 22, 1833.

478

Christian, 28.

479

Richmond and Manchester Advertiser, Sept. 24, 1795.

480

Proceedings of the M. W. Grand Lodge of Ancient York Masons of the State of Virginia, from 1778 to 1822, by John Dove, i, 144; see also 121, 139.

481

See infra, chap. x.

482

See vol. i, chap. v, of this work.

483

Gilmer, 23-24.

484

Gustavus Schmidt, in Louisiana Law Journal (1841), 81-82.

485

For a list of cases argued by Marshall and reported in Call and Washington, with title of case, date, volume, and page, see Appendix I.

486

A good illustration of a brilliant display of legal learning by associate and opposing counsel, and Marshall's distaste for authorities when he could do without them, is the curious and interesting case of Coleman vs. Dick and Pat, decided in 1793, and reported in 1 Washington, 233. Wickham for appellant and Campbell for appellee cited ancient laws and treaties as far back as 1662. Marshall cited no authority whatever.

487

See Stevens vs. Taliaferro, Adm'r, 1 Washington, 155, Spring Term, 1793.

488

Johnson vs. Bourn, 1 Washington, 187, Spring Term, 1793.

489

Ib.

490

Marshall to Archibald Stuart, March 27, 1794; MS., Va. Hist. Soc.

491

Ib., May 28, 1794.

492

Munford, 326-38.

493

See vol. iii of this work.

494

Constitution of the United States, article vi.

495

Ib., article iii, section 2.

496

The Fairfax deal; see infra, 203 et seq.

497

Henry, ii, 475.

498

Howe, 221-22.

499

3 Dallas, 256-57, and footnote. In his opinion Justice Iredell decided for the debtors. When the Supreme Court of the United States, of which he was a member, reversed him in Philadelphia, the following year, Justice Iredell, pursuant to a practice then existing, and on the advice of his brother justices, placed his original opinion on record along with those of Justices Chase, Paterson, Wilson, and Cushing, each of whom delivered separate opinions in favor of the British creditors.