The Life of John Marshall Volume IV Part 2

"On my return to day from my farm where I pa.s.s a considerable portion of my time in _laborious relaxation_, I found a copy of the message of the President of the 1^{st} inst accompanied by the report of the Committee of foreign relations & the declaration of war against Great Britain, under cover from you.

"Permit me to subjoin to my thanks for this mark of your attention my fervent wish that this momentous measure may, in its operation on the interest & honor of our country, disappoint only its enemies. Whether my prayer be heard or not I shall remain with respectful esteem," etc.[118]

Cold as this letter was, and capable as it was of double interpretation, to the men sorely pressed by the immediate exigencies of combat, it gave no inkling that the Chief Justice of the United States was at that very moment not only in close sympathy with the peace party, but was actually encouraging that party in its efforts to end the war.[119]

Just at this time, Marshall must have longed for seclusion, and, by a lucky chance, it was afforded him. One of the earliest and most beneficial effects of the Non-Importation, Embargo, and Non-Intercourse laws that preceded the war, was the heavily increased migration from the seaboard States to the territories beyond the Alleghanies. The dramatic story of Burr's adventures and designs had reached every ear and had turned toward the Western country the eyes of the poor, the adventurous, the aspiring; already thousands of settlers were taking up the new lands over the mountains. Thus came a practical consideration of improved means of travel and transportation. Fresh interest in the use of waterways was given by Fulton's invention, which seized upon the imagination of men. The possibilities of steam navigation were in the minds of all who observed the expansion of the country and the growth of domestic commerce.

Before the outbreak of war, the Legislature of Virginia pa.s.sed an act appointing commissioners "for the purpose of viewing certain rivers within this Commonwealth,"[120] and Marshall was made the head of this body of investigators. Nothing could have pleased him more. It was practical work on a matter that interested him profoundly, and the renewal of a subject which he had entertained since his young manhood.[121]

This tour of observation promised to be full of variety and adventure, tinged with danger, into forests, over mountains, and along streams and rivers not yet thoroughly explored. For a short time Marshall would again live over the days of his boyhood. Most inviting of all, he would get far away from talk or thought of the detested war. Whether the Presidential scheming in his behalf bore fruit or withered, his absence in the wilderness was an ideal preparation to meet either outcome.

In his fifty-seventh year Marshall set out at the head of the expedition, and a thorough piece of work he did. With chain and spirit level the route was carefully surveyed from Lynchburg to the Ohio.

Sometimes progress was made slowly and with the utmost labor. In places the scenes were "awful and discouraging."

The elaborate report which the commission submitted to the Legislature was written by Marshall. It reads, says the surveyor of this division of the Chesapeake and Ohio Railway,[122] "as an account of that survey of 1869, when I pulled a chain down the rugged banks of New River."

Practicable sections were accurately pointed out and the methods by which they could best be utilized were recommended with particular care.

Marshall's report is alive with far-seeing and statesmanlike suggestions. He thinks, in 1812, that steamboats can be run successfully on the New River, but fears that the expense will be too great. The velocity of the current gives him some anxiety, but "the currents of the Hudson, of the Mohawk, and of the Mississippi, are very strong; and ...

a practice so entirely novel as the use of steam in navigation, will probably receive great improvement."

The expense of the undertaking must, he says, depend on the use to be made of the route. Should the intention be only to a.s.sist the local traffic of the "upper country down the James river," the expense would not be great. But, "if the views of the legislature shall extend to a free commercial intercourse with the western states," the route must compete with others then existing "or that may be opened." In that case "no improvement ought to be undertaken but with a determination to make it complete and effectual." If this were done, the commerce of Kentucky, Ohio, and even a part of Southwestern Pennsylvania would pour through Virginia to the Atlantic States. This was a rich prize which other States were exerting themselves to capture. Moreover, such "commercial intercourse" would bind Virginia to the growing West by "strong ties" of "friendly sentiments," and these were above price. "In that mysterious future which is in reserve, and is yet hidden from us, events may occur to render" such a community of interest and mutual regard "too valuable to be estimated in dollars and cents."

Marshall pictures the growth of the West, "that extensive and fertile country ... increasing in wealth and population with a rapidity which baffles calculation." Not only would Virginia profit by opening a great trade route to the West, but the Nation would be vastly benefited.

"Every measure which tends to cement more closely the union of the eastern with the western states" would be invaluable to the whole country. The military uses of "this central channel of communication"

were highly important: "For the want of it, in the course of the last autumn, government was reduced to the necessity of transporting arms in waggons from Richmond to the falls of the Great Kanawha," and "a similar necessity may often occur."[123]

When Marshall returned to Richmond, he found the country depressed and in turmoil. The war had begun dismally for the Americans. Our want of military equipment and training was incredible and a.s.sured those disasters that quickly fell upon us. The Federalist opposition to the war grew ever bolder, ever more bitter. The Ma.s.sachusetts House of Representatives issued an "Address" to the people, urging the organization of a "_peace party_," adjuring "loud and deep ...

disapprobation of this war," and demanding that n.o.body enlist in the army.[124] Pamphlets were widely circulated, abusing the American Government and upholding the British cause. The ablest of these, "Mr.

Madison's War," was by John Lowell of Boston.

The President, he said, "impelled" Congress to declare an "offensive"

war against Great Britain. Madison was a member of "the _French_ party."

British impressment was the pursuance of a sound policy; the British doctrine--once a British subject, always a British subject--was una.s.sailable. The Orders in Council were just; the execution of them "moderation" itself. On every point, in short, the British Government was right; the French, diabolical; the American, contemptible and wrong.

How trivial America's complaints, even if there was a real basis for them, in view of Great Britain's unselfish struggle against "the gigantic dominion of France."

If that Power, "swayed" by that satanic genius, Napoleon, should win, would she not take Nova Scotia, Canada, Louisiana, the Antilles, Florida, South America? After these conquests, would not the United States, "the only remaining republic," be conquered. Most probably. What then ought America to do?" In war offensive and unjust, the citizens are not only obliged not to take part, but by the laws of G.o.d, and of civil society, they are bound to abstain." What were the rights of citizens in war-time? To oppose the war by tongue and pen, if they thought the war to be wrong, and to refuse to serve if called "contrary to the Const.i.tution."[125]

Such was the Federalism of 1812-15, such the arguments that would have been urged for the election of Marshall had he been chosen as the peace candidate. But the peace Republicans of New York nominated the able, cunning, and politically corrupt De Witt Clinton; and this man, who had a.s.sured the Federalists that he favored an "honourable peace" with England,[126] was endorsed by a Federalist caucus as the anti-war standard-bearer,[127] though not without a swirl of acrimony and dissension.

But for the immense efforts of Clinton to secure the nomination, and the desire of the Federalists and all conservatives that Marshall should continue as Chief Justice,[128] it is possible that he might have been named as the opponent of Madison in the Presidential contest of 1812. "I am far enough from desiring Clinton for President of the United States,"

wrote Pickering in the preceding July; "I would infinitely prefer another Virginian--if Judge Marshall could be the man."[129]

Marshall surely would have done better than Clinton, who, however, carried New York, New Jersey, Delaware, Maryland, and all the New England States except Vermont. The mercantile cla.s.ses would have rallied to Marshall's standard more enthusiastically than to Clinton's. The lawyers generally would have worked hard for him. The Federalists, who accepted Clinton with repugnance, would have exerted themselves to the utmost for Marshall, the ideal representative of Federalism. He was personally very strong in North Carolina; the capture of Pennsylvania might have been possible;[130] Vermont might have given him her votes.

The Federalist resistance to the war grew more determined as the months wore on. Throughout New England the men of wealth, nearly all of whom were Federalists, declined to subscribe to the Government loans.[131]

The Governors of the New England States refused to aid the National Government with the militia.[132] In Congress the Federalists were obstructing war measures and embarra.s.sing the Government in every way their ingenuity could devise. One method was to force the Administration to tell the truth about Napoleon's pretended revocation of his obnoxious decree. A resolution asking the President to inform the House "when, by whom, and in what manner, the first intelligence was given to this Government" of the St. Cloud Decree, was offered by Daniel Webster,[133]

who had been elected to Congress from New Hampshire as the fiercest youthful antagonist of the war in his State.[134] The Republicans agreed, and Webster's resolution was pa.s.sed by a vote of 137 yeas to only 26 nays.[135]

In compliance the President transmitted a long report. It was signed by the Secretary of State, James Monroe, but bears the imprint of Madison's lucid mind. The report states the facts upon which Congress was compelled to declare war and demonstrates that the Decree of St. Cloud had nothing to do with our militant action, since it was not received until more than a month after our declaration of war. Then follow several clear and brilliant paragraphs setting forth the American view of the causes and purposes of the war.[136]

Timothy Pickering was not now in the Senate. The Republican success in Ma.s.sachusetts at the State election of 1810 had given the Legislature to that party,[137] and the pugnacious Federalist leader was left at home.

There he raged and intrigued and wrote reams of letters. Monroe's report lent new fury to his always burning wrath, and he sent that doc.u.ment, with his malediction upon it, to John Marshall at Richmond. In reply the Chief Justice said that the report "contains a labored apology for France but none for ourselves. It furnishes no reason for our tame unmurmuring acquiescence under the double insult of withholding this paper [Decree of St. Cloud] from us & declaring in our face that it has been put in our possession.

"The report is silent on another subject of still deeper interest. It leaves unnoticed the fact that the Berlin & Milan decrees were certainly not repealed by that insidious decree of April since it had never been communicated to the French courts and cruizers, & since their cruizers had at a period subsequent to the pretended date of that decree received orders to continue to execute the offensive decrees on American vessels.

"The report manifests no sensibility at the disgraceful circ.u.mstances which tend strongly to prove that this paper was fabricated to satisfy the importunities of Mr. Barlow, was antedated to suit French purposes; nor at the contempt manifested for the feelings of Americans and their government, by not deigning so to antedate it as to save the credit of our Administration by giving some plausibility to their a.s.sertion that the repeal had taken place on the 1^{st} of Nov^r--But this is a subject with which I dare not trust myself."

The plight of the American land forces, the splendid and unrivaled victories of the American Navy, apparently concerned Marshall not at all. His eyes were turned toward Europe; his ears strained to catch the sounds from foreign battle-fields.

"I look with anxious solicitude--with mingled hope & fear," he continues, "to the great events which are taking place in the north of Germany. It appears probable that a great battle will be fought on or near the Elbe & never had the world more at stake than will probably depend on that battle.

"Your opinions had led me to hope that there was some prospect for a particular peace for ourselves. My own judgement, could I trust it, would tell me that peace or war will be determined by the events in Europe."[138]

[Ill.u.s.tration: Tim Pickering]

The "great battle" which Marshall foresaw had been fought nearly eight weeks before his letter was written. Napoleon had been crushingly defeated at Leipzig in October, 1813, and the British, Prussian, and other armies which Great Britain had combined against him, were already invading France. When, later, the news of this arrived in America, it was hailed by the Federalists with extravagant rejoicings.[139]

Secession, if the war were continued, now became the purpose of the more determined Federalist leaders. It was hopeless to keep up the struggle, they said. The Administration had precipitated hostilities without reason or right, without conscience or sense.[140] The people never had favored this wretched conflict; and now the tyrannical Government, failing to secure volunteers, had resorted to conscription--an "infamous" expedient resorted to in brutal violation of the Const.i.tution.[141] So came the Hartford Convention which the cool wisdom of George Cabot saved from proclaiming secession.[142]

Of the two pretenses for war against Great Britain, the Federalists alleged that one had been removed even before we declared war, and that only the false and shallow excuse of British impressment of American seamen remained. Madison and Monroe recognized this as the one great remaining issue, and an Administration pamphlet was published a.s.serting the reason and justice of the American position. This position was that men of every country have a natural right to remove to another land and there become citizens or subjects, ent.i.tled to the protection of the government of the nation of their adoption. The British principle, on the contrary, was that British subjects could never thus expatriate themselves, and that, if they did so, the British Government could seize them wherever found, and by force compel them to serve the Empire in any manner the Government chose to direct.

Monroe's brother-in-law, George Hay, still the United States Attorney for the District of Virginia, was selected to write the exposition of the American view. It seems probable that his ma.n.u.script was carefully revised by Madison and Monroe, and perhaps by Jefferson.[143] Certainly Hay stated with singular precision the views of the great Republican triumvirate. The pamphlet was ent.i.tled "A Treatise on Expatriation." He began: "I hold in utter reprobation the idea that a man is bound by an obligation, permanent and unalterable, to the government of a country which he has abandoned and his allegiance to which he has solemnly adjured."[144]

Immediately John Lowell answered.[145] Nothing keener and more spirited ever came from the pen of that gifted man. "The presidential pamphleteer," as Lowell called Hay, ignored the law. The maxim, once a subject always a subject, was as true of America as of Britain. Had not Ellsworth, when Chief Justice, so decided in the famous case of Isaac Williams?[146] Yet Hay sneered at the opinion of that distinguished jurist.[147]

Pickering joyfully dispatched Lowell's brochure to Marshall, who lost not a moment in writing of his admiration. "I had yesterday the pleasure of receiving your letter of the 8th accompanying M^r Lowell's very masterly review of the treatise on expatriation. I have read it with great pleasure, & thank you very sincerely for this mark of your recollection.

"Could I have ever entertained doubts on the subject, this review would certainly have removed them. Mingled with much pungent raillery is a solidity of argument and an array of authority which in my judgement is entirely conclusive. But in truth it is a question upon which I never entertained a scintilla of doubt; and have never yet heard an argument which ought to excite a doubt in any sound and reflecting mind. It will be to every thinking American a most afflicting circ.u.mstance, should our government on a principle so completely rejected by the world proceed to the execution of unfortunate, of honorable, and of innocent men."[148]

Astonishing and repellent as these words now appear, they expressed the views of every Federalist lawyer in America. The doctrine of perpetual allegiance was indeed then held and practiced by every government except our own,[149] nor was it rejected by the United States until the Administration became Republican. Marshall, announcing the opinion of the Supreme Court in 1804, had held that an alien could take lands in New Jersey because he had lived in that State when, in 1776, the Legislature pa.s.sed a law making all residents citizens.[150] Thus he had declared that an American citizen did not cease to be such because he had become the subject of a foreign power. Four years later, in another opinion involving expatriation, he had stated the law to be that a British subject, born in England before 1775, could not take, by devise, lands in Maryland, the statute of that State forbidding aliens from thus acquiring property there.[151] In both these cases, however, Marshall refrained from expressly declaring in terms against the American doctrine.

Even as late as 1821 the Chief Justice undoubtedly retained his opinion that the right of expatriation did not exist,[152] although he did not say so in express terms. But in Marshall's letter on Lowell's pamphlet he flatly avows his belief in the principle of perpetual allegiance, any direct expression on which he so carefully avoided when deciding cases involving it.

Thus the record shows that John Marshall was as bitterly opposed to the War of 1812 as was Pickering or Otis or Lowell. So entirely had he become one of "the aristocracy of talents of reputation, & of property,"

as Plumer, in 1804, had so accurately styled the cla.s.s of which he himself was then a member,[153] that Marshall looked upon all but one subject then before the people with the eyes of confirmed reaction. That subject was Nationalism. To that supreme cause he was devoted with all the pa.s.sion of his deep and powerful nature; and in the service of that cause he was soon to do much more than he had already performed.

Our second war with Great Britain accomplished none of the tangible and immediate objects for which it was fought. The British refused to abandon "the right" of impressment; or to disclaim the British sovereignty of the oceans whenever they chose to a.s.sert it; or to pay a farthing for their spoliation of American commerce. On the other hand, the British did not secure one of their demands.[154] The peace treaty did little more than to end hostilities.

But the war achieved an inestimable good--it de-Europeanized America. It put an end to our thinking and feeling only in European terms and emotions. It developed the spirit of the new America, born since our political independence had been achieved, and now for the first time emanc.i.p.ated from the intellectual and spiritual sovereignty of the Old World. It had revealed to this purely American generation a consciousness of its own strength; it could exult in the fact that at last America had dared to fight.

The American Navy, ship for ship, officer for officer, man for man, had proved itself superior to the British Navy, the very name of which had hitherto been mentioned only in terror or admiration of its unconquerable might. In the end, raw and untrained American troops had beaten British regulars. American riflemen of the West and South had overwhelmed the flower of all the armies of Europe. An American frontier officer, Andrew Jackson, had easily outwitted some of Great Britain's ablest and most experienced professional generals. In short, on land and sea America had stood up to, had really beaten, the tremendous Power that had overthrown the mighty Napoleon.

Such were the feelings and thoughts of that Young America which had come into being since John Marshall had put aside his Revolutionary uniform and arms. And in terms very much like those of the foregoing paragraph the American people generally expressed their sentiments.

Moreover, the Embargo, the Non-Intercourse and Non-Importation Acts, the British blockades, the war itself, had revolutionized the country economically and socially. American manufacturing was firmly established. Land travel and land traffic grew to proportions never before imagined, never before desired. The people of distant sections became acquainted.

The eyes of all Americans, except those of the aged or ageing, were turned from across the Atlantic Ocean toward the boundless, the alluring West--their thoughts diverted from the commotions of Europe and the historic antagonism of foreign nations, to the economic conquest of a limitless and virgin empire and to the development of incalculable and untouched resources, all American and all their own.