The Life of John Marshall (Volume 2 of 4)

896

See Jefferson's "Rough Draught" and "Fair Copy" of the Kentucky Resolutions; and the resolutions as the Kentucky Legislature passed them on Nov. 10, 1798; Works: Ford, viii, 458-79. See examination of Marshall's opinion in Marbury vs. Madison, vol. iii of this work.

897

Jefferson to Madison, Nov. 17, 1798; Works: Ford, viii, 457.

898

Writings: Hunt, vi, 326-31.

899

Davie to Iredell, June 17, 1799; quoting from a Virginia informant – very probably Marshall; McRee, ii, 577.

900

Iredell to Mrs. Iredell; Jan. 24, 1799; McRee, ii, 543.

901

Murray to J. Q. Adams, April 1, 1799; quoting Marshall to Sykes, Dec. 18, 1798; Letters: Ford, 534.

902

Writings: Hunt, vi, 332-40.

903

For Marshall's defense of the liberty of the press, quoted by Madison, see supra, chap. viii.

904

Address of the General Assembly to the People of the Commonwealth of Virginia, Journal, H.D. (Dec., 1798), 88-90.

905

Sedgwick to Hamilton, Feb. 7, 1799; Works: Hamilton, vi, 392-93; and to King, March 20, 1799; King, ii, 581. And Murray to J. Q. Adams, April 5, 1799; Letters: Ford, 536.

906

Address of the Minority: Journal, H.D. (Dec., 1798), 88-90. Also printed as a pamphlet. Richmond, 1798.

907

Journal, H.D. (1799), 90.

908

Callender: Prospect Before Us, 91.

909

Ib., 112 et seq.

910

Sedgwick to King, March 20, 1799; King, ii, 581.

911

Murray to J. Q. Adams, April 5, 1799; Letters: Ford, 536.

912

Mordecai, 202; also Sedgwick to King, Nov. 15, 1799; King, iii, 147-48.

913

Jefferson to Pendleton, Feb. 14, 1799; Works: Ford, ix, 46; and to Madison, Jan. 30, 1799; ib., 31.

914

Jefferson to Bishop James Madison, Feb. 27, 1799; ib., 62.

915

Marshall to Washington, Jan. 8, 1799; Washington MSS., Lib. Cong.

916

Hamilton to Dayton, 1799; Works: Lodge, x, 330. The day of the month is not given, but it certainly was early in January. Mr. Lodge places it before a letter to Lafayette, dated Jan. 6, 1799.

917

Hamilton to Sedgwick, Feb. 2, 1799; Works: Lodge, x, 340-42.

918

This was probably true; it is thoroughly characteristic and fits in perfectly with his well-authenticated conduct after he became Chief Justice. (See vol. iii of this work.)

919

Callender: Prospect Before Us, 90 et seq.

920

See Hildreth, v, 104, 210, 214, 340, 453-55.

921

Wood, 261-62. This canard is an example of the methods employed in political contests when American democracy was in its infancy.

922

Marshall to his brother James M., April 3, 1799; MS. Marshall uses the word "faction" in the sense in which it was then employed. "Faction" and "party" were at that time used interchangeably; and both words were terms of reproach. (See supra, chap. ii.) If stated in the vernacular of the present day, this doleful opinion of Marshall would read: "Nothing, I believe, more debases or pollutes the human mind than partisan politics."

923

Jefferson to Pendleton, April 22, 1799; Works: Ford, ix, 64-65.

924

Henry to Blair, Jan. 8, 1799; Henry, ii, 591-94.

925

Henry to Blair, Jan. 8, 1799; Henry, ii, 595.

926

Virginia Herald (Fredericksburg), March 5, 1799.

927

This was true in most of the States at that period.

928

This method of electing public officials was continued until the Civil War. (See John S. Wise's description of a congressional election in Virginia in 1855; Wise: The End of An Era, 55-56. And see Professor Schouler's treatment of this subject in his "Evolution of the American Voter"; Amer. Hist. Rev., ii, 665-74.)

929

This account of election day in the Marshall-Clopton contest is from Munford, 208-10. For another fairly accurate but mild description of a congressional election in Virginia at this period, see Mary Johnston's novel, Lewis Rand, chap. iv.

930

Henry, ii, 598.

931

Randall, ii, 495.

932

Washington to Marshall, May 5, 1799; Writings: Ford, xiv, 180.

933

As a matter of fact, they were not far wrong. Marshall almost certainly would have been made Secretary of State if Washington had believed that he would accept the portfolio. (See supra, 147.) The assertion that the place actually had been offered to Marshall seems to have been the only error in this campaign story.

934

Marshall to Washington, May 1, 1799; Writings: Ford, xiv, footnote to 180-81; also Flanders, ii, 389.

935

Washington to Marshall, May 5, 1799; Writings: Ford, xiv, 180.

936

Marshall to Washington, May 16, 1799; Washington MSS., Lib. Cong.

937

Pickering to King, May 4, 1799; King, iii, 13.

938

Sedgwick to King, July 26, 1799; King, iii, 69.

939

Sedgwick to King, July 26, 1799; King, iii, 69.

940

Murray to J. Q. Adams, June 25, 1799; Letters: Ford, 566.

941

Murray to J. Q. Adams, July 1, 1799; ib., 568.

942

Jefferson to Stuart, May 14, 1799; Works: Ford, ix, 67.

943

Jefferson to Coxe, May 21, 1799; Works: Ford, ix, 69-70.

944

Ib., 70.

945

For instances of these military letters, see Marshall to Washington, June 12, 1799; Washington MSS., Lib. Cong.

946

See Morison, i, 156-57; also Hudson: Journalism in the United States, 160. Party newspapers and speakers to-day make statements, as a matter of course, in every political campaign much more violent than those for which editors and citizens were fined and imprisoned in 1799-1800. (See ib., 315; and see summary from the Republican point of view of these prosecutions in Randall, ii, 416-20.)

947

Adams to Pickering, July 24, 1799; Works: Adams, ix, 3.

948

Adams to Pickering, Aug. 1, 1799; ib., 5; and same to same. Aug. 3, 1799; ib., 7.

949

Professor Washington, in his edition of Jefferson's Writings, leaves a blank after "apostle." Mr. Ford correctly prints Marshall's name as it is written in Jefferson's original manuscript copy of the letter.

950

Jefferson to Wilson Cary Nicholas, Sept. 5, 1799; Works: Ford, ix, 79-81.

951

Marshall to Pickering, Aug. 25, 1799; Pickering MSS., Mass. Hist. Soc. Marshall had not yet grasped the deadly significance of Jefferson's States' Rights and Nullification maneuver.

952

Supra.

953

Talleyrand to Pichon, Aug. 28, and Sept. 28; Am. St. Prs., ii, 241-42; Murray to Adams, Appendix of Works: Adams, viii. For familiar account of Pichon's conferences with Murray, see Murray's letters to J. Q. Adams, then U.S. Minister to Berlin, in Letters: Ford, 445, 473, 475-76; and to Pickering, ib., 464.

954

"Murray, I guess, wanted to make himself a greater man than he is by going to France," was Gallatin's shrewd opinion. Gallatin to his wife, March 1, 1799; Adams: Gallatin, 227-28.

955

Ib.

956

Ames to Dwight, Feb. 27, 1799; Works: Ames, i, 252.

957

Cabot to King, March 10, 1799; King, ii, 551.

958

Cabot to King, Feb. 16, 1799; ib., 543.

959

Ames to Pickering, March 12, 1799; Works: Ames, i, 253.

960

Ames to Pickering, Oct. 19, 1799; ib., 257.

961

Uriah Tracy to McHenry, Sept. 2, 1799; Steiner, 417.

962

Ames to Pickering, Nov. 5, 1799; Works: Ames, i, 260-61.

963

Ames to Pickering, March 12, 1799; Works: Ames, i, 254.

964

"Men of principal influence in the Federal party … began to entertain serious doubts about his [Adams's] fitness for the station, yet … they thought it better to indulge their hopes than to listen to their fears, [and] … determined to support Mr. Adams for the Chief Magistracy." ("Public Conduct, etc., John Adams"; Hamilton: Works: Lodge, vii, 318.)

965

Ames to Dwight, Feb. 27, 1799; Works: Ames, i, 252.

966

Ames to Pickering, Nov. 5, 1799; ib., 260.

967

Cabot to King, March 10, 1799; King, ii, 552.

968

Higginson to Pickering, April 16, 1800; Pickering MSS., Mass. Hist. Soc., printed in An. Rept., Amer. Hist. Assn., 1896, i, 836.

969

For an excellent summary of this important episode in our history see Allen: Our Naval War with France.

970

Pickering to King, March 6, 1799; King, ii, 548-49.

971

Ames to Pickering, March 12, 1799; Works: Ames, i, 254.

972

Ames to Dwight, Oct. 20, 1799; ib., 259.

973

Ames to Pickering, Oct. 19, 1799; ib., 257.

974

Wolcott to Ames, Aug. 10, 1800; Gibbs, ii, 403.

975

Jefferson to Pendleton, Feb. 19, 1799; Works: Ford, ix, 54.

976

Lee to Adams, March 14, 1799; Works: Adams, viii, 628.

977

Adams to Lee, March 29, 1799; ib., 629.

978

Cabinet to President, Sept. 7, 1799; Works: Adams, ix, 21-23; and same to same, May 20, 1799; ib., 59-60.

979

Adams to Lee, May 21, 1800; ib., 60. For account of Fries's Rebellion see McMaster, ii, 435-39. Also Hildreth, v, 313.

980

Pickering to Cabot, June 15, 1800; Lodge: Cabot, 275.

981

"Public Conduct, etc., John Adams"; Hamilton: Works: Lodge, vii, 351-55; and see Gibbs, ii, 360-62.

982

See Hamilton's arraignment of the Fries pardon in "Public Conduct, etc., John Adams"; Works: Lodge, vii, 351-55.

983

McRee, ii, 551.

984

"The Aurora, in analyzing the reasons upon which Fries, Hainy, and Getman have been pardoned brings the President forward as, by this act, condemning: 1. The tax law which gave rise to the insurrection; 2. The conduct of the officers appointed to collect the tax; 3. The marshal; 4. The witnesses on the part of the United States; 5. The juries who tried the prisoners; 6. The court, both in their personal conduct and in their judicial decisions. In short, every individual who has had any part in passing the law – in endeavoring to execute it, or in bringing to just punishment those who have treasonably violated it." (Gazette of the United States, reviewing bitterly the comment of the Republican organ on Adams's pardon of Fries.)

985

Many Federalists regretted that Fries was not executed by court-martial. "I suppose military execution was impracticable, but if some executions are not had, of the most notorious offenders – I shall regret the events of lenity in '94 & '99 – as giving a fatal stroke to Government… Undue mercy to villains, is cruelty to all the good & virtuous. Our people in this State are perfectly astonished, that cost must continually be incurred for insurrections in Pennsylvania for which they say they are taxed & yet no punishment is inflicted on the offenders. I am fatigued & mortified that our Govt. which is weak at best, would withhold any of its strength when all its energies should be doubled." (Uriah Tracy to McHenry, on Fries, May 6, 1799; Steiner, 436.) And "I am in fear that something will occur to release that fellow from merited Death." (Same to same, May 20, 1790; ib.)

986

"Public Conduct, etc., John Adams"; Hamilton: Works: Lodge, vii, 351-55.

987

Ames to Pickering, Nov. 23, 1799; Works: Ames, i, 270.

988

Troup to King, May 6, 1799; King, iii, 14.

989

Adams's home, now Quincy, Massachusetts.

990

Troup to King, June 5, 1799; King, iii, 34.

991

Sedgwick to King, Dec. 29, 1799; King, iii, 163.

992

Cabot to King, Jan. 20, 1800; ib., 184.

993

Annals, 6th Cong., 1st Sess., 187.

994

Wolcott to Ames, Dec. 29, 1799; Gibbs, ii, 314.

995

Annals, 6th Cong. 1st Sess., 194. The speech as reported passed with little debate.

996

Wolcott to Ames, Dec. 29, 1799; Gibbs, ii, 314. And see McMaster, ii, 452.

997

Levin Powell to Major Burr Powell, Dec. 11, 1799; Branch Historical Papers, ii, 232.

998

Annals, 6th Cong., 1st Sess., 194.

999

Annals, 6th Cong., 1st Sess., 194-97.

1000

Ib., 194.

1001

Wolcott to Ames, Dec. 29, 1799; Gibbs, ii, 314.

1002

Annals, 6th Cong., 1st Sess., 198.

1003

The Federalists called the Republicans "Democrats," "Jacobins," etc., as terms of contempt. The Republicans bitterly resented the appellation. The word "Democrat" was not adopted as the formal name of a political party until the nomination for the Presidency of Andrew Jackson, who had been Jefferson's determined enemy.

1004

Marshall to James M. Marshall, Philadelphia, Dec. 16, 1799; MS.

1005

Annals, 6th Cong., 1st Sess., 203.

1006

Marshall appears to have been the first to use the expression "the American Nation."

1007

The word "empire" as describing the United States was employed by all public men of the time. Washington and Jefferson frequently spoke of "our empire."

1008

Annals, 6th Cong., 1st. Sess., 203-04.

1009

Ib., 204.

1010

Marshall to Charles W. Hannan, of Baltimore, Md., March 29, 1832; MS., N.Y. Pub. Lib.; also Marshall, ii, 441.

1011

These were: On the bill to enable the President to borrow money for the public (Annals, 6th Cong., 1st Sess., 632); a bill for the relief of Rhode Island College (ib., 643); a salt duty bill (ib., 667); a motion to postpone the bill concerning the payment of admirals (ib., 678); a bill on the slave trade (ib., 699-700); a bill for the additional taxation of sugar (ib., 705).

1012

Ib., 521-22.

1013

Annals, 6th Cong., 1st Sess., House, 522-23, 527, 626; Senate, 151.

1014

Ib., 633-34.

1015

Ib., 662. See ib., Appendix ii, 495, 496. Thus Marshall was the author of the law under which the great "Western Reserve" was secured to the United States. The bill was strenuously resisted on the ground that Connecticut had no right or title to this extensive and valuable territory.

1016

Ib., 532. On this vote the Aurora said: "When we hear such characters as General Lee calling it innovation and speculation to withhold from the Executive magistrate the dangerous and unrepublican power of proroguing and dissolving a legislature at his pleasure, what must be the course of our reflections? When we see men like General Marshall voting for such a principle in a Government of a portion of the American people is there no cause for alarm?" (Aurora, March 20, 1800.)

1017

Annals, 6th Cong., 1st Sess., 504-06.

1018

Annals, 6th Cong., 1st Sess., 623-24.

1019

See infra, 458 et seq.

1020

"Copy of a letter from a gentleman in Philadelphia, to his friend in Richmond, dated 13th March, 1800," printed in Virginia Gazette and Petersburg Intelligencer, April 1, 1800.

1021

Annals, 6th Cong., 1st Sess., 668-69.

1022

Ib., 229.

1023

Ib., 231.

1024

Ib., 230-32.

1025

Annals, 6th Cong., 1st Sess., 233.

1026

Ib., 234.

1027

Ib., 235.

1028

Ib., 240.

1029

Ib., 245.

1030

Concerning a similar effort in 1790, Washington wrote: "The memorial of the Quakers (and a very malapropos one it was) has at length been put to sleep, and will scarcely awake before the year 1808." (Washington to Stuart, March 28, 1790; Writings: Ford, xi, 474.)

1031

Annals, 6th Cong., 1st Sess., Resolution and debate, ii, 404-19.

1032

Bassett, 260.

1033

Ellsworth to Pickering, Dec. 12, 1798; Flanders, ii, 193.

1034

Adams: Gallatin, 211. And see Federalist attacks on Marshall's answers to "Freeholder," supra.

1035

Annals, 6th Cong., 1st Sess., 29.

1036

James Keith Marshall.

1037

Annals, 6th Cong., 1st Sess., 520, 522.

1038

At this period the Senate still sat behind closed doors and its proceedings were secret.

1039

Annals, 6th Cong., 1st Sess., 105. This led to one of the most notably dramatic conflicts between the Senate and the press which has occurred during our history. For the prosecution of William Duane, editor of the Aurora, see ib., 105, 113-19, 123-24. It was made a campaign issue, the Republicans charging that it was a Federalist plot against the freedom of the press. (See Aurora, March 13 and 17, 1800.)

1040

Ib., 146.

1041

For a review of this astonishing bill, see McMaster, ii, 462-63, and Schouler, i, 475.

1042

Annals, 6th Cong., 1st Sess., 670.

1043

Marshall's substitute does not appear in the Annals.

1044

Annals, 6th Cong., 1st Sess., 674.

1045

Ib., 678.

1046

Annals, 6th Cong., 1st Sess., 691-92.

1047

Ib., 687-710.

1048

Ib., 179.

1049

Ib., 182.

1050

Jefferson to Livingston, April 30, 1800; Works: Ford, ix, 132.

1051

Sedgwick to King, May 11, 1800; King, iii, 237-38.

1052

Adams: Gallatin, 232.

1053

United States vs. Nash alias Robins, Bee's Reports, 266.

1054

Jefferson to Charles Pinckney, Oct. 29, 1799; Works: Ford, ix, 87.

1055

Aurora, Feb. 12, 1800.

1056

Annals, 6th Cong., 1st Sess., 511.

1057

Ib., 515-18. Nash himself confessed before his execution that he was a British subject as claimed by the British authorities and as shown by the books of the ship Hermione.

1058

Ib., 526.

1059

The Republicans, however, still continued to urge this falsehood before the people and it was generally believed to be true.

1060

Annals, 6th Congress, 1st Sess., 532-33.

1061

Ib., 541-47.

1062

Ib., 548.

1063

Annals, 6th Cong., 1st Sess., 558.

1064

This, in fact, was the case.

1065

Annals, 6th Cong., 1st Sess., 565.

1066

Marshall to James M. Marshall, Feb. 28, 1800; MS.

1067

Annals, 6th Cong., 1st Sess., 595-96.

1068

Pickering to James Winchester, March 17, 1800; Pickering MSS., Mass. Hist. Soc. Also Binney, in Dillon, iii, 312.

1069

See Moore: American Eloquence, ii, 20-23. The speech also appears in full in Annals, 6th Cong., 1st Sess., 596-619; in Benton: Abridgment of the Debates of Congress; in Bee's Reports, 266; and in the Appendix to Wharton: State Trials, 443.

1070

Pickering to Hamilton, March 10, 1800; Pickering MSS., Mass. Hist. Soc.

1071

Aurora, March 10, 1800.

1072

Aurora, March 14, 1800.

1073

Marshall's speech on the Robins case shows some study, but not so much as the florid encomium of Story indicates. The speeches of Bayard, Gallatin, Nicholas, and others display evidence of much more research than that of Marshall, who briefly refers to only two authorities.

1074

Story, in Dillon, iii, 357-58.

1075

Grigsby, i, 177; Adams: Gallatin, 232.

1076

Annals, 6th Cong., 1st Sess., 619.

1077

Jefferson to Madison, March 8, 1800; Works: Ford, ix, 121. In sending the speeches on both sides to his brother, Levin Powell, a Virginia Federalist Representative, says: "When you get to Marshall's it will be worth a perusal." (Levin Powell to Major Burr Powell, March 26, 1800; Branch Historical Papers, ii, 241.)

1078

Annals, 6th Cong., 1st Sess., 247-50.

1079

Ib., 252.

1080

Annals, 6th Cong., 1st Sess., 253-54.

1081

Ib.

1082

Annals, 6th Cong., 1st Sess., 254, 255.

1083

Marshall to Dabney, Jan. 20, 1800; MS. Colonel Charles Dabney of Virginia was commander of "Dabney's Legion" in the Revolution. He was an ardent Federalist and a close personal and political friend of Marshall.