The Life of John Marshall Volume III Part 1

The Life of John Marshall.

Volume 3.

by Albert J. Beveridge.

PREFACE

Marshall's great Const.i.tutional opinions grew out of, or were addressed to, serious public conditions, national in extent. In these volumes the effort is made to relate the circ.u.mstances that required him to give to the country those marvelous state papers: for Marshall's opinions were nothing less than state papers and of the first rank. In order to understand the full meaning of his deliverances and to estimate the just value of his labors, it is necessary to know the historical sources of his foremost expositions of the Const.i.tution, and the historical purposes they were intended to accomplish. Without such knowledge, Marshall's finest p.r.o.nouncements become mere legal utterances, important, to be sure, but colorless and unattractive.

It is worthy of repet.i.tion, even in a preface, that the history of the times is a part of his greatest opinions; and that, in the treatment of them a resume of the events that produced them must be given. For example, the decision of Marbury _vs._ Madison, at the time and in the manner it was rendered, was compelled by the political situation then existing, unless the principle of judicial supremacy over legislation was to be abandoned. The Judiciary Debate of 1802 in Congress--one of the most brilliant as well as most important legislative engagements in parliamentary history--can no more be overlooked by the student of American Const.i.tutional development, than the opinion of Marshall in Marbury _vs._ Madison can be disregarded.

Again, in Cohens _vs._ Virginia, the Chief Justice rises to heights of exalted--almost emotional--eloquence. Yet the case itself was hardly more than a police court controversy. If the trivial fine of itinerant peddlars of lottery tickets were alone involved, Marshall's splendid pa.s.sages become unnecessary and, indeed, pompous rhetoric. But when the curtains of history are raised, we see the heroic part that Marshall played and realize the meaning of his powerful language. While Marshall's opinion in M'Culloch _vs._ Maryland, even taken by itself, is a major treatise on const.i.tutional government, it becomes a fascinating chapter in an engaging story, when read in connection with an account of the situation which compelled that outgiving.

The same thing is true of his other historic utterances. Indeed, it may be said that his weightiest opinions were interlocking parts of one great drama.

Much s.p.a.ce has been given to the conspiracy and trials of Aaron Burr.

The combined story of that adventure and of those prosecutions has not hitherto been told. In the conduct of the Burr trials, Marshall appears in a more intimate and personal fashion than in any other phase of his judicial career; the entire series of events that make up that page of our history is a striking example of the manipulation of public opinion by astute politicians, and is, therefore, useful for the self-guidance of American democracy. Most important of all, the culminating result of this dramatic episode was the definitive establishment of the American law of treason.

In narrating the work of a jurist, the temptation is very strong to engage in legal discussion, and to cite and comment upon the decisions of other courts and the opinions of other judges. This, however, would be the very negation of biography; nor would it add anything of interest or enlightenment to the reader. Such information and a.n.a.lysis are given fully in the various books on Const.i.tutional law and history, in the annotated reports, and in the encyclopaedias of law upon the shelves of every lawyer. Care, therefore, has been taken to avoid making any part of the _Life of John Marshall_ a legal treatise.

The ma.n.u.script of these volumes has been read by Professor Edward Channing of Harvard; Professor Max Farrand of Yale; Professor Edward S.

Corwin of Princeton; Professor William E. Dodd of Chicago University; Professor Clarence W. Alvord of the University of Illinois; Professor James A. Woodburn of Indiana University; Professor Charles H. Ambler of the University of West Virginia; Professor Archibald Henderson of the University of North Carolina; Professor D. R. Anderson of Richmond (Va.) College; and Dr. H. J. Eckenrode of Richmond, Virginia.

The ma.n.u.script of the third volume has been read by Professor Charles A.

Beard of New York; Dr. Samuel Eliot Morison of Harvard; and Mr. Harold J. Laski of Harvard. The ma.n.u.script of both the third and fourth volumes has been read, from the lawyer's point of view, by Mr. Arthur Lord of Boston, President of the Ma.s.sachusetts Bar a.s.sociation, and by Mr.

Charles Martindale of Indianapolis.

The chapters on the Burr conspiracy and trials have been read by Professor Walter Flavius McCaleb of New York; Professor Isaac Joslin c.o.x of the University of Cincinnati; and Mr. Samuel H. Wandell of New York.

Chapter Three of Volume Three (Marbury _vs._ Madison) has been read by the Honorable Oliver Wendell Holmes, a.s.sociate Justice of the Supreme Court of the United States; by the Honorable Philander Chase Knox, United States Senator; and by Mr. James M. Beck of New York. Other special chapters have been read by the Honorable Henry Cabot Lodge, United States Senator; by Professor J. Franklin Jameson of the Department of Historical Research of the Carnegie Inst.i.tution of Washington; by Professor Charles H. Haskins of Harvard; by Dr. William Draper Lewis of Philadelphia, former Dean of the Law School of the University of Pennsylvania; and by Mr. W. B. Bryan of Washington.

All of these gentlemen have made valuable suggestions of which I have availed myself, and I gratefully acknowledge my indebtedness to them.

The responsibility for everything in these volumes, however, is, of course, exclusively mine; and, in stating my appreciation of the comment and criticism with which I have been favored, I do not wish to be relieved of my burden by allowing the inference that any part of it should be a.s.signed to others.

I also owe it to myself again to express my heavy obligation to Mr.

Worthington Chauncey Ford, Editor of the Ma.s.sachusetts Historical Society. As was the case in the preparation of the first two volumes of this work, Mr. Ford has extended to me the resources of his ripe scholarship; while his wise counsel, steady encouragement, and unselfish a.s.sistance, have been invaluable in the prosecution of a long and exacting task.

I also again acknowledge my indebtedness to Mr. Lindsay Swift, Editor of the Boston Public Library, who has read with critical care not only the many drafts of the ma.n.u.script, but also the proofs of the entire work.

Mr. Swift has given, unstintedly, his rare literary taste and critical accomplishment to the examination of these pages.

I also tender my hearty thanks to Dr. Gardner Weld Allen of Boston, who has generously directed the preparation of the bibliography and personally revised it.

Mr. David Maydole Matteson of Cambridge, Ma.s.sachusetts, has made the index of these volumes as he made that of the first two volumes, and has combined both indexes into one. In rendering this service, Mr. Matteson has also searched for points where text and notes could be made more accurate; and I wish to express my appreciation of his kindness.

My thanks are also owing to the staff of The Riverside Press, and particularly to Mr. Lanius D. Evans, to whose keen interest and watchful care in the production of this work I am indebted for much of whatever exact.i.tude it may possess.

The ma.n.u.script sources have been acknowledged, in all instances, in the footnotes where references to them have been made, except in the case of the letters of Marshall to his relatives, for which I again thank those descendants and connections of the Chief Justice named in the preface to Volumes One and Two. The Hopkinson ma.n.u.scripts are in the possession of Mr. Edward Hopkinson of Philadelphia, to whom I am indebted for the privilege of inspecting this valuable source and for furnishing me with copies of important letters.

In preparing these volumes, Mr. A. P. C. Griffin, a.s.sistant Librarian, and Mr. John Clement Fitzpatrick, of the Ma.n.u.script Division of the Library of Congress, have been even more obliging, if possible, than they were in the preparation of the first part of this work. The officers and their a.s.sistants of the Boston Public Library, the Boston Athenaeum, the Ma.s.sachusetts State Library, the Ma.s.sachusetts Historical Society, the Pennsylvania Historical Society, the Virginia State Library, the Indiana State Library, and the Indianapolis City Library, have a.s.sisted whole-heartedly in the performance of my labors; and I am glad of the opportunity to thank all of them for their interest and help.

ALBERT J. BEVERIDGE

CHAPTER I

DEMOCRACY: JUDICIARY

Rigorous law is often rigorous injustice. (Terence.)

The Federalists have retired into the Judiciary as a stronghold, and from that battery all the works of republicanism are to be battered down. (Jefferson.)

There will be neither justice nor stability in any system, if some material parts of it are not independent of popular control. (George Cabot.)

A strange sight met the eye of the traveler who, aboard one of the little river sailboats of the time, reached the stretches of the sleepy Potomac separating Alexandria and Georgetown. A wide swamp extended inland from a modest hill on the east to a still lower elevation of land about a mile to the west.[1] Between the river and mora.s.s a long flat tract bore clumps of great trees, mostly tulip poplars, giving, when seen from a distance, the appearance of "a fine park."[2]

Upon the hill stood a partly constructed white stone building, mammoth in plan. The slight elevation north of the wide slough was the site of an apparently finished edifice of the same material, n.o.ble in its dimensions and with beautiful, simple lines,[3] but "surrounded with a rough rail fence 5 or 6 feet high unfit for a decent barnyard."[4] From the river nothing could be seen beyond the groves near the banks of the stream except the two great buildings and the splendid trees which thickened into a seemingly dense forest upon the higher ground to the northward.[5]

On landing and making one's way through the underbrush to the foot of the eastern hill, and up the gullies that seamed its sides thick with trees and tangled wild grapevines,[6] one finally reached the immense unfinished structure that attracted attention from the river. Upon its walls laborers were languidly at work.

Cl.u.s.tered around it were fifteen or sixteen wooden houses. Seven or eight of these were boarding-houses, each having as many as ten or a dozen rooms all told. The others were little affairs of rough lumber, some of them hardly better than shanties. One was a tailor shop; in another a shoemaker plied his trade; a third contained a printer with his hand press and types, while a washerwoman occupied another; and in the others there was a grocery shop, a pamphlets-and-stationery shop, a little dry-goods shop, and an oyster shop. No other human habitation of any kind appeared for three quarters of a mile.[7]

A broad and perfectly straight clearing had been made across the swamp between the eastern hill and the big white house more than a mile away to the westward. In the middle of this long opening ran a roadway, full of stumps, broken by deep mud holes in the rainy season, and almost equally deep with dust when the days were dry. On either border was a path or "walk" made firm at places by pieces of stone; though even this "extended but a little way." Alder bushes grew in the unused s.p.a.ces of this thoroughfare, and in the depressions stagnant water stood in malarial pools, breeding myriads of mosquitoes. A sluggish stream meandered across this avenue and broadened into the marsh.[8]

A few small houses, some of brick and some of wood, stood on the edge of this long, broad embryo street. Near the large stone building at its western end were four or five structures of red brick, looking much like ungainly warehouses. Farther westward on the Potomac hills was a small but pretentious town with its many capacious brick and stone residences, some of them excellent in their architecture and erected solidly by skilled workmen.[9]

Other openings in the forest had been cut at various places in the wide area east of the main highway that connected the two princ.i.p.al structures already described. Along these forest avenues were scattered houses of various materials, some finished and some in the process of erection.[10] Here and there unsightly gravel pits and an occasional brick kiln added to the raw unloveliness of the whole.

Such was the City of Washington, with Georgetown near by, when Thomas Jefferson became President and John Marshall Chief Justice of the United States--the Capitol, Pennsylvania Avenue, the "Executive Mansion" or "President's Palace," the department buildings near it, the residences, shops, hostelries, and streets. It was a picture of sprawling aimlessness, confusion, inconvenience, and utter discomfort.

When considering the events that took place in the National Capital as narrated in these volumes,--the debates in Congress, the proclamations of Presidents, the opinions of judges, the intrigues of politicians,--when witnessing the scenes in which Marshall and Jefferson and Randolph and Burr and Pinckney and Webster were actors, we must think of Washington as a dismal place, where few and unattractive houses were scattered along muddy openings in the forests.

There was on paper a harmonious plan of a splendid city, but the realization of that plan had scarcely begun. As a situation for living, the Capital of the new Nation was, declared Gallatin, a "hateful place."[11] Most of the houses were "small miserable huts" which, as Wolcott informed his wife, "present an awful contrast to the public buildings."[12]

Aside from an increase in the number of residences and shops, the "Federal City" remained in this state for many years. "The _Chuck_ holes were not _bad_," wrote Otis of a journey out of Washington in 1815; "that is to say they were none of them much deeper than the Hubs of the hinder wheels. They were however exceedingly frequent."[13]

Pennsylvania Avenue was, at this time, merely a stretch of "yellow, tenacious mud,"[14] or dust so deep and fine that, when stirred by the wind, it made near-by objects invisible.[15] And so this street remained for decades. Long after the National Government was removed to Washington, the carriage of a diplomat became mired up to the axles in the sticky clay within four blocks of the President's residence and its occupant had to abandon the vehicle.

John Quincy Adams records in his diary, April 4, 1818, that on returning from a dinner the street was in such condition that "our carriage in coming for us ... was overset, the harness broken. We got home with difficulty, twice being on the point of oversetting, and at the Treasury Office corner we were both obliged to get out ... in the mud.... It was a mercy that we all got home with whole bones."[16]

Fever and other malarial ills were universal at certain seasons of the year.[17] "No one, from the North or from the high country of the South, can pa.s.s the months of August and September there without intermittent or bilious fever," records King in 1803.[18] Provisions were scarce and Alexandria, across the river, was the princ.i.p.al source of supplies.[19]

"My G.o.d! What have I done to reside in such a city," exclaimed a French diplomat.[20] Some months after the Chase impeachment[21] Senator Plumer described Washington as "a little village in the midst of the woods."[22] "Here I am in the wilderness of Washington," wrote Joseph Story in 1808.[23]

Except a small Catholic chapel there was only one church building in the entire city, and this tiny wooden sanctuary was attended by a congregation which seldom exceeded twenty persons.[24] This absence of churches was entirely in keeping with the inclination of people of fashion. The first Republican administration came, testifies Winfield Scott, in "the spring tide of infidelity.... At school and college, most bright boys, of that day, affected to regard religion as base superst.i.tion or gross hypocricy."[25]