The Life of John Marshall Volume IV Part 1

The Life of John Marshall.

Volume 4.

by Albert J. Beveridge.

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 pa.s.sionately 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 t.i.tle 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 pa.s.sionately 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 inst.i.tutions and customs were the old Federalist leaders, particularly of New England and New York. They had been his comrades and a.s.sociates 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 Const.i.tution, 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 a.s.serted 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 a.s.sault 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 a.s.sailed Great Britain.[14]

Never did Americans more seriously need emanc.i.p.ation 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 princ.i.p.al 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 const.i.tuted 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 pa.s.sed.[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. Ma.s.sachusetts 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 princ.i.p.ally 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 va.s.sal 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 t.i.tles 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 a.s.sociate, 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 Ma.s.sachusetts 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 Pa.s.samaquoddy. 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 pa.s.sed, and again Marshall beheld such an a.s.sertion 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 mult.i.tude 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 pa.s.sed.[56] The Collector of Boston, Benjamin Lincoln, refused to obey the law and resigned.[57] The Legislature of Ma.s.sachusetts pa.s.sed a bill denouncing the "Force Act" as unconst.i.tutional, 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 a.s.serted 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 a.s.sociates 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 a.s.sociates.