The Life of John Marshall (Volume 2 of 4)

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.

500

For Marshall's argument in the British Debts case before the Supreme Court, see 3 Dallas, 199-285.

501

King to Pinckney, Oct. 17, 1797; King, ii, 234-35. King refers to the British Debts case, the only one in which Marshall had made an argument before the Supreme Court up to this time.

502

See infra, chap. xi.

503

Kennedy, ii, 76. Mr. Wirt remembered the argument well; but twenty-four years having elapsed, he had forgotten the case in which it was made. He says that it was the Carriage Tax case and that Hamilton was one of the attorneys. But it was the British Debts case and Hamilton's name does not appear in the records.

504

Kennedy, ii, 66. Francis W. Gilmer was then the most brilliant young lawyer in Virginia. His health became too frail for the hard work of the law; and his early death was universally mourned as the going out of the brightest light among the young men of the Old Dominion.

505

Gilmer, 23-24.

506

Wirt: The British Spy, 112-13.

507

La Rochefoucauld, iii, 120. Doubtless La Rochefoucauld would have arrived at the above conclusion in any event, since his estimate of Marshall is borne out by every contemporary observer; but it is worthy of note that the Frenchman while in Richmond spent much of his time in Marshall's company. (Ib., 119.)

508

Ib., 75. "The profession of a lawyer is … one of the most profitable… In Virginia the lawyers usually take care to insist on payment before they proceed in a suit; and this custom is justified by the general disposition of the inhabitants to pay as little and as seldom as possible."

509

Jefferson to Monroe, Feb. 8, 1798; Works: Ford, viii, 365. Marshall was in France at the time. (See infra, chaps. vi to viii inclusive.)

510

Story, in Dillon, iii, 354. Ware vs. Hylton was argued Feb. 6, 8, 9, 10, 11, and 12. The fight against the bill to carry out the Jay Treaty did not begin in the National House of Representatives until March 7, 1796.

511

Morris to Marshall, May 3, 1796; Morris's Private Letter Book; MS., Lib. Cong. The stock referred to in this correspondence is probably that of the Bank of the United States.

512

Morris to Marshall, June 16, 1796; Morris's Private Letter Book; MS., Lib. Cong.

513

Morris to Marshall, Aug. 24, 1796; ib.

514

The commission failed and war was narrowly averted by the payment of a lump sum to Great Britain. It is one of the curious turns of history that Marshall, as Secretary of State, made the proposition that finally concluded the matter and that Jefferson consummated the transaction. (See infra, chap. xii.)

515

Lee means a debtor under the commission. Marshall was a debtor to Fairfax. (See infra.)

516

Lee to Washington, March 20, 1796; Cor. Rev.: Sparks, iv, 481-82.

517

William Bingham of Philadelphia was reputed to be "the richest man of his time." (Watson: Annals of Philadelphia i. 414.) Chastellux estimates Morris's wealth at the close of the Revolution at 8,000,000 francs. (Chastellux, 107.) He increased his fortune many fold from the close of the war to 1796.

The operations of Robert Morris in land were almost without limit. For instance, one of the smaller items of his purchases was 199,480 acres in Burke County, North Carolina. (Robert Morris to James M. Marshall, Sept. 24, 1795; Morris's Private Letter Book; MS., Lib. Cong.)

Another example of Morris's scattered and detached deals was his purchase of a million acres "lying on the western counties of Virginia … purchased of William Cary Nicholas… I do not consider one shilling sterling as one fourth the real value of the lands… If, therefore," writes Morris to James M. Marshall, "a little over £5000 Stg. could be made on this security it would be better than selling especially at 12ḍ per acre." (Robert Morris to James M. Marshall, Oct. 10, 1795; ib.)

Morris owned at one time or another nearly all of the western half of New York State. (See Oberholtzer, 301 et seq.) "You knew of Mr. Robert Morris's purchase … of one million, three hundred thousand acres of land of the State of Massachusetts, at five pence per acre. It is said he has sold one million two hundred thousand acres of these in Europe." (Jefferson to Washington, March 27, 1791; Cor. Rev.: Sparks, iv, 365.)

Patrick Henry acquired considerable holdings which helped to make him, toward the end of his life, a wealthy man. Washington, who had a keen eye for land values, became the owner of immense quantities of real estate. In 1788 he already possessed two hundred thousand acres. (De Warville, 243.)

518

Oberholtzer, 266 et seq. Hester Morris, at the time of her marriage to John Marshall's brother, was the second greatest heiress in America.

519

Grigsby, i, footnote to 150.

520

Deed of Lieutenant-General Phillip Martin (the Fairfax heir who made the final conveyance) to Rawleigh Colston, John Marshall, and James M. Marshall; Records at Large, Fauquier County (Virginia) Circuit Court, 200 et seq. At the time of the contract of purchase, however, the Fairfax estate was supposed to be very much larger than the quantity of land conveyed in this deed. It was considerably reduced before the Marshalls finally secured the title.

521

Lee is mentioned in all contemporary references to this transaction as one of the Marshall syndicate, but his name does not appear in the Morris correspondence nor in the deed of the Fairfax heir to the Marshall brothers and Colston.

522

Jṣ Marshall to – [Edmund Randolph] Jan. 21, 1794; MS. Archives Department of State. Marshall speaks of dispatches which he is carrying to Pinckney, then American Minister to Great Britain. This letter is incorrectly indexed in the Archives as from John Marshall. It is signed "Jṣ Marshall" and is in the handwriting of James M. Marshall. John Marshall was in Richmond all this year, as his Account Book shows.

523

Morris to John Marshall, Nov. 21, 1795; and Aug. 24, 1796; Morris's Private Letter Book; MS., Lib. Cong.

524

Morris to Colston, Nov. 11, 1796; ib.

525

Robert Morris to James M. Marshall, Dec. 3, 1796; Morris's Private Letter Book; MS., Lib. Cong. By the expression "Washington Lotts" Morris refers to his immense real estate speculations on the site of the proposed National Capital. Morris bought more lots in the newly laid out "Federal City" than all other purchasers put together. Seven thousand two hundred and thirty-four lots stood in his name when the site of Washington was still a primeval forest. (Oberholtzer, 308-12.) Some of these he afterwards transferred to the Marshall brothers, undoubtedly to make good his engagement to furnish the money for the Fairfax deal, which his failure prevented him from advancing entirely in cash. (For account of Morris's real estate transactions in Washington see La Rochefoucauld, iii, 622-26.)

526

This Hottenguer soon appears again in John Marshall's life as one of Talleyrand's agents who made the corrupt proposals to Marshall, Pinckney, and Gerry, the American Commissioners to France in the famous X.Y.Z. transaction of 1797-98. (See infra, chaps. vi to viii.)

527

Robert Morris to John Marshall, Dec. 30, 1796; Morris's Private Letter Book; MS., Lib. Cong.

528

Morris to John Marshall, Jan. 23, 1797; Morris's Private Letter Book; MS., Lib. Cong.

529

Hening, ix, chap. ix, 377 et seq.; also ib., x, chap. xiv, 66 et seq.; xi, chap. xliv, 75-76; xi, chap. xlv, 176 et seq.; xi, chap. xlvii, 81 et seq.; xi, chap. xxx, 349 et seq.

530

Such effect of these treaties was not yet conceded, however.

531

Morris to James M. Marshall, March 4, 1796; Morris's Private Letter Book; MS., Lib. Cong.

532

Hunter vs. Fairfax, Devisee, 3 Dallas, 303, and footnote.

533

Originals in Archives of Virginia State Library. Most of the petitions were by Germans, many of their signatures being in German script. They set forth their sufferings and hardships, their good faith, loss of papers, death of witnesses, etc.

534

Laws of Virginia, Revised Code (1819), i, 352.

535

Laws of Virginia, Revised Code (1819), i, 352. Marshall's letter accepting the proposal of compromise is as follows: —

"Richmond, November 24th, 1796.

"Sir, being one of the purchasers of the lands of Mr. Fairfax, and authorized to act for them all, I have considered the resolution of the General Assembly on the petitions of sundry inhabitants of the counties of Hampshire, Hardy, and Shenandoah, and have determined to accede to the proposition it contains.

"So soon as the conveyance shall be transmitted to me from Mr. Fairfax, deeds extinguishing his title to the waste and unappropriated lands in the Northern Neck shall be executed, provided an act passes during this session, confirming, on the execution of such deeds, the title of those claiming under Mr. Fairfax the lands specifically appropriated and reserved by the late Thomas Lord Fairfax, or his ancestors, for his or their use.

"I remain Sir, with much respect and esteem,

"Your obedient servant,John Marshall.

"The Honorable, the Speaker of the House of Delegates."

(Laws of Virginia.)

536

Morris to John Marshall, Dec. 30, 1796; Morris's Private Letter Book; MS., Lib. Cong.

537

Morris to James M. Marshall, Feb. 10, 1797; Morris's Private Letter Book; MS., Lib. Cong. Morris adds that "I mortgaged to Colọ Hamilton 100,000 acres of Genesee Lands to secure payment of $75,000 to Mr. Church in five years. This land is worth at this moment in Cash two Dollars pr Acre."

538

Morris to Colston, Feb. 25, 1797; ib.

539

Morris to James M. Marshall, April 27, 1797; ib.

540

MS. The entry was made in Amsterdam and Morris learned of the loan three months afterwards.

541

Records at Large in Clerk's Office of Circuit Court of Fauquier County, Virginia, 200 et seq. The deed was not filed until 1806, at which time, undoubtedly, the Marshalls made their last payment.

542

See infra, chap. viii. It was probably this obligation too, that induced Marshall, a few years later, to undertake the heavy task of writing the Life of Washington, quite as much as his passionate devotion to that greatest of Americans. (See vol. iii of this work.)

543

"Anas," March 21, 1800; Works: Ford, i, 355.

544

Ib. Misleading as Jefferson's "Anas" is, his information in this matter was indisputably accurate.

545

See infra, chap. vi. A short time before the place on the French mission was tendered Marshall, his father in Kentucky resigned the office of Supervisor of Revenue for the District of Ohio. In his letter of resignation Thomas Marshall gives a résumé of his experiences as an official under Washington's Administrations. Since this is one of the only two existing letters of Marshall's father on political subjects, and because it may have turned Adams's mind to John Marshall, it is worthy of reproduction: —

Sir,

Having determined to resign my Commission as Supervisor of the Revenue for the district of Ohio, on the 30th day of June next, which terminates the present fiscal year, I have thought it right to give this timely notice to you as President of the United States, in whom the nomination and appointment of my successor is vested; in order that you may in the meantime select some fit person to fill the office. You will therefore be pleased to consider me as out of office on the first day of July ensuing.

It may possibly be a subject of enquiry, why, after holding the office during the most critical & troublesome times, I should now resign it, when I am no longer insulted, and abused, for endeavoring to execute the Laws of my Country – when those Laws appear to be, more than formerly, respected – and when the probability is, that in future they may be carried into effect with but little difficulty?

In truth this very change, among other considerations, furnishes a reason for the decision I have made. For having once engaged in the business of revenue I presently found myself of sufficient importance with the enemies of the Government here to be made an object of their particular malevolence – and while this was the case, I was determined not to be driven from my post.

At this time, advanced in years and declining in health, I find myself unfit for the cares, and active duties of the office; and therefore cheerfully resign a situation, which I at first accepted and afterwards held, more from an attachment to the Government, than from any pecuniary consideration, to be filled by some more active officer, as still more conducive to the public service.

To the late President I had the honor of being known, and combined, with respect and veneration for his public character, the more social and ardent affections of the man, and of the friend.

You Sir I have not the honor to know personally, but you have filled too many important stations in the service of your country; & fame has been too busy with your name to permit me to remain ignorant of your character; for which in all its public relations permit me to say, I feel the most entire respect and esteem: Nor is it to me among the smallest motives for my rejoicing that you are the President; and of my attachment to your administration to know that you have ever been on terms of friendship with the late President – that you have approved his administration, – and that you propose to yourself his conduct as an example for your imitation.

On this occasion I may say without vanity that I have formerly and not infrequently, given ample testimony of my attachment to Republican Government, to the peace, liberty and happiness of my country and that it is not now to be supposed that I have changed my principles – or can esteem those who possess different ones.

And altho' I am too old [Thomas Marshall was nearly sixty-five years of age when he wrote this letter] and infirm for active services, (for which I pray our country may not feel a call) yet my voice shall ever be excited in opposition to foreign influence, (from whence the greatest danger seems to threaten, as well as against internal foes) and in support of a manly, firm, and independent, exercise of those constitutional rights, which belong to the President, and Government of the United States. And, even opinions, have their effect.

John Adams, Esq.

President of the

United States.

I am Sir with the mostentire respect and esteemYour very humble Servt,T. Marshall.

(Thomas Marshall to Adams, April 28, 1797; MS., Dept. of State.)

546

See infra, chaps. xi and xii.

547

Marshall to his wife, July 2, 1797; MS.

548

Sedgwick to King, June 24, 1797; King, ii, 192.

549

Marshall to his wife, July 5, 1797; MS.

550

Marshall to Washington, July 7, 1797; MS., Lib. Cong.

551

Marshall to his wife, July 11, 1797; MS.

552

This, of course, was untrue, at that time. Marshall probably listened with polite interest to Adams, who was a master of the subject, and agreed with him. Thus Adams was impressed, as is the way of human nature.

553

Adams to Gerry, July 17, 1797; Works: Adams, viii, 549.

554

Aurora, July 17, 1797.

555

Aurora, July 19, 1797. For documents given envoys by the Government, see Am. St. Prs., For. Rel., Class I, ii, 153.

556

Marshall to Secretary of State, July 10, 1797; Memorandum by Pickering; Pickering MSS., in Proc., Mass. Hist. Soc., xxi, 177.

557

Marshall to his wife, "The Bay of Delaware," July 20, 1797; MS.

558

Washington's remarks on Monroe's "View"; Writings: Ford, xiii, 452.

559

See McMaster, ii, 257-59, 319, 370. But Monroe, although shallow, was well meaning; and he had good excuse for over-enthusiasm; for his instructions were: "Let it be seen that in case of a war with any nation on earth, we shall consider France as our first and natural ally." (Am. St. Prs., For. Rel., Class I, ii, 669.)

560

"View of the Conduct of the Executive of the United States, etc.," by James Monroe (Philadelphia, Bache, Publisher, 1797). This pamphlet is printed in full in Monroe's Writings: Hamilton, iii, as an Appendix.

Washington did not deign to notice Monroe's attack publicly; but on the margin of Monroe's book answered every point. Extracts from Monroe's "View" and Washington's comments thereon are given in Washington's Writings: Ford, xiii, 452-90.

Jefferson not only approved but commended Monroe's attack on Washington. (See Jefferson to Monroe, Oct. 25, 1797; Works: Ford, viii, 344-46.) It is more than probable that he helped circulate it. (Jefferson to Eppes, Dec. 21, 1797; ib., 347; and to Madison, Feb. 8, 1798; ib., 362; see also Jefferson to Monroe, Dec. 27; ib., 350. "Your book was later coming than was to have been wished: however it works irresistibly. It would have been very gratifying to you to hear the unqualified eulogies … by all who are not hostile to it from principle.")

561

Ticknor, ii, 113.

562

For a condensed but accurate and impartial statement of Monroe's conduct while Minister, see Gilman: James Monroe (American Statesmen Series), 36-73.

563

Paine to editors of the Bien-Informé, Sept. 27, 1797; Writings: Conway, iii, 368-69.

564

Am. St. Prs., For. Rel., ii, 55-63.

565

See condensed summary of the American case in instructions to Pinckney, Marshall, and Gerry; ib., 153-57.

566

Ib., 64; and for numerous other examples see ib., 28-64.

567

Ticknor, ii, 113.

568

Pinckney to Secretary of State, Amsterdam, Feb. 18, 1797; Am. St. Prs., For. Rel., vii, 10.

569

See Barras's speech in Am. St. Prs., For. Rel., ii, 12.

570

See Allen: Naval War with France, 31-33.

571

Adams, Message to Congress, May 16, 1797; Richardson, i, 235-36; also, Works: Adams, ix, 111-18.

572

Gibbs, ii, 171-72.

573

Hamilton proposed Jefferson or Madison. (Hamilton to Pickering, March 22, 1797; Lodge: Cabot, 101.)

574

Works: Adams, ix, 111-18.

575

Ib.

576