II. MARSHALL AND STORY…

II. MARSHALL AND STORY

Either the office was made for the man or the man for the office. (George S. Hillard.)

I am in love with his character, positively in love. (Joseph Story.)

In the midst of these gay circles my mind is carried to my own fireside and to my beloved wife. (Marshall.)

Now the man Moses was very meek, above all the men which were upon the face of the earth. (Numbers XII, 3.)

"It will be difficult to find a character of firmness enough to preserve his independence on the same bench with Marshall."[156] So wrote Thomas Jefferson one year after he had ceased to be President. He was counseling Madison as to the vacancy on the Supreme Bench and one on the district bench at Richmond, in filling both of which he was, for personal reasons, feverishly concerned.

We are now to ascend with Marshall the mountain peaks of his career. Within the decade that followed after the close of our second war with Great Britain, he performed nearly all of that vast and creative labor, the lasting results of which have given him that distinctive title, the Great Chief Justice. During that period he did more than any other one man ever has done to vitalize the American Constitution; and, in the performance of that task, his influence over his associates was unparalleled.[157]

When Justices Chase and Cushing died and their successors Gabriel Duval[158] and Joseph Story were appointed, the majority of the Supreme Court, for the first time, became Republican. Yet Marshall continued to dominate it as fully as when its members were of his own political faith and views of government.[159] In the whole history of courts there is no parallel to such supremacy. Not without reason was that tribunal looked upon and called "Marshall's Court." It is interesting to search for the sources of his strange power.

These sources are not to be found exclusively in the strength of Marshall's intellect, surpassing though it was, nor yet in the mere dominance of his will. Joseph Story was not greatly inferior to Marshall in mind and far above him in accomplishments, while William Johnson, the first Justice of the Supreme Court appointed by Jefferson, was as determined as Marshall and was "strongly imbued with the principles of southern democracy, bold, independent, eccentric, and sometimes harsh."[160] Nor did learning give Marshall his commanding influence. John Jay and Oliver Ellsworth were his superiors in that respect; while Story so infinitely surpassed him in erudition that, between the two men, there is nothing but contrast. Indeed, Marshall had no "learning" at all in the academic sense;[161] we must seek elsewhere for an explanation of his peculiar influence.

This explanation is, in great part, furnished by Marshall's personality. The manner of man he was, of course, is best revealed by the well-authenticated accounts of his daily life. He spent most of his time at Richmond, for the Supreme Court sat in Washington only a few weeks each year. He held circuit court at Raleigh as well as at the Virginia Capital, but the sessions seldom occupied more than a fortnight each. In Richmond, then, his characteristics were best known; and so striking were they that time has but little dimmed the memory of them.

Marshall, the Chief Justice, continued to neglect his dress and personal appearance as much as he did when, as a lawyer, his shabby attire so often "brought a blush" to the cheeks of his wife,[162] and his manners were as "lax and lounging" as when Jefferson called them proofs of a "profound hypocrisy."[163] Although no man in America was less democratic in his ideas of government, none was more democratic in his contact with other people. To this easy bonhomie was added a sense of humor, always quick to appreciate an amusing situation.

When in Richmond, Marshall often did his own marketing and carried home the purchases he made. The tall, ungainly, negligently clad Chief Justice, ambling along the street, his arms laden with purchases, was a familiar sight.[164] He never would hurry, and habitually lingered at the market-place, chatting with everybody, learning the gossip of the town, listening to the political talk that in Richmond never ceased, and no doubt thus catching at first hand the drift of public sentiment.[165] The humblest and poorest man in Virginia was not more unpretentious than John Marshall.

No wag was more eager for a joke. One day, as he loitered on the outskirts of the market, a newcomer in Richmond, who had never seen Marshall, offered him a small coin to carry home for him a turkey just purchased. Marshall accepted, and, with the bird under his arm, trudged behind his employer. The incident sent the city into gales of laughter, and was so in keeping with Marshall's ways that it has been retold from one generation to another, and is to-day almost as much alive as ever.[166] At another time the Chief Justice was taken for the butcher. He called on a relative's wife who had never met him, and who had not been told of his plain dress and rustic manners. Her husband wished to sell a calf and she expected the butcher to call to make the trade. She saw Marshall approaching, and judging by his appearance that he was the butcher, she directed the servant to tell him to go to the stable where the animal was awaiting inspection.[167]

It was Marshall's custom to go early every morning to a farm which he owned four miles from Richmond. For the exercise he usually walked, but, when he wished to take something heavy, he would ride. A stranger coming upon him on the road would have thought him one of the poorer small planters of the vicinity. He was extremely fond of children and, if he met one trudging along the road, he would take the child up on the horse and carry it to its destination. Often he was seen riding into Richmond from his farm, with one child before and another behind him.[168]

Bishop Meade met Marshall on one of these morning trips, carrying on horseback a bag of clover seed.[169] On another, he was seen holding on the pommel a jug of whiskey which he was taking out to his farmhands. The cork had come out and he was using his thumb as a stopper.[170] He was keenly interested in farming, and in 1811 was elected President of the Richmond Society for Promotion of Agriculture.[171]

The distance from Richmond to Raleigh was, by road, more than one hundred and seventy miles. Except when he went by stage,[172] as he seldom did, it must have taken a week to make this journey. He traveled in a primitive vehicle called a stick gig, drawn by one horse which he drove himself, seldom taking a servant with him.[173] Making his slow way through the immense stretches of tar pines and sandy fields, the Chief Justice doubtless thought out the solution of the problems before him and the plain, clear, large statements of his conclusions which, from the bench later, announced not only the law of particular cases, but fundamental policies of the Nation. His surroundings at every stage of the trip encouraged just such reflection--the vast stillness, the deep forests, the long hours, broken only by some accident to gig or harness, or interrupted for a short time to feed and rest his horse, and to eat his simple meal.

During these trips, Marshall would become so abstracted that, apparently, he would forget where he was driving. Once, when near the plantation of Nathaniel Macon in North Carolina, he drove over a sapling which became wedged between a wheel and the shaft. One of Macon's slaves, working in an adjacent field, saw the predicament, hurried to his assistance, held down the sapling with one hand, and with the other backed the horse until the gig was free. Marshall tossed the negro a piece of money and asked him who was his owner. "Marse Nat. Macon," said the slave. "He is an old friend," said Marshall; "tell him how you have helped me," giving his name. When the negro told his master, Macon said: "That was the great Chief Justice Marshall, the biggest lawyer in the United States." The slave grinned and answered: "Marse Nat., he may be de bigges' lawyer in de United States, but he ain't got sense enough to back a gig off a saplin'."[174]

At night he would stop at some log tavern on the route, eat with the family and other guests, if any were present, and sit before the fireplace after the meal, talking with all and listening to all like the simple and humble countryman he appeared to be. Since the minor part of his time was spent in court, and most of it about Richmond, or on the road to and from Raleigh, or journeying to his Fauquier County plantation and the beloved mountains of his youth where he spent the hottest part of each year, it is doubtful whether any other judge ever maintained such intimate contact with people in the ordinary walks of life as did John Marshall.

The Chief Justice always arrived at Raleigh stained and battered from travel.[175] The town had a population of from three hundred to five hundred.[176] He was wont to stop at a tavern kept by a man named Cooke and noted for its want of comfort; but, although the inn got worse year after year, he still frequented it. Early one morning an acquaintance saw the Chief Justice go to the woodpile, gather an armful of wood and return with it to the house. When they met later in the day, the occurrence was recalled. "Yes," said Marshall, "I suppose it is not convenient for Mr. Cooke to keep a servant, so I make up my own fires."[177]

The Chief Justice occupied a small room in which were the following articles: "A bed, ... two split-bottom chairs, a pine table covered with grease and ink, a cracked pitcher and broken bowl." The host ate with his guests and used his fingers instead of fork or knife.[178] When court adjourned for the day, Marshall would play quoits in the street before the tavern "with the public street characters of Raleigh," who were lovers of the game.[179]

He was immensely popular in Raleigh, his familiar manners and the justice of his decisions appealing with equal force to the bar and people alike. Writing at the time of the hearing of the Granville case,[180] John Haywood, then State Treasurer of North Carolina, testifies: "Judge Marshall ... is greatly respected here, as well on account of his talents and uprightness as for that sociability and ease of manner which render all happy and pleased when in his company."[181]

In spite of his sociability, which tempted him, while in Richmond, to visit taverns and the law offices of his friends, Marshall spent most of the day in his house or in the big yard adjoining it, for Mrs. Marshall's affliction increased with time, and the Chief Justice, whose affection for his wife grew as her illness advanced, kept near her as much as possible. In Marshall's grounds and near his house were several great oak and elm trees, beneath which was a spring; to this spot he would take the papers in cases he had to decide and, sitting on a rustic bench under the shade, would write many of those great opinions that have immortalized his name.[182]

Mrs. Marshall's malady was largely a disease of the nervous system and, at times, it seemingly affected her mind. It was a common thing for the Chief Justice to get up at any hour of the night and, without putting on his shoes lest his footfalls might further excite his wife, steal downstairs and drive away for blocks some wandering animal--a cow, a pig, a horse--whose sounds had annoyed her.[183] Even upon entering his house during the daytime, Marshall would take off his shoes and put on soft slippers in the hall.[184]

She was, of course, unequal to the management of the household. When the domestic arrangements needed overhauling, Marshall would induce her to take a long drive with her sister, Mrs. Edward Carrington, or her daughter, Mrs. Jacquelin B. Harvie, over the still and shaded roads of Richmond. The carriage out of sight, he would throw off his coat and vest, roll up his shirt-sleeves, twist a bandanna handkerchief about his head, and gathering the servants, lead as well as direct them in dusting the walls and furniture, scrubbing the floors and setting the house in order.[185]

Numerous incidents of this kind are well authenticated. To this day Marshall's unselfish devotion to his infirm and distracted wife is recalled in Richmond. But nobody ever heard the slightest word of complaint from him; nor did any act or expression of countenance so much as indicate impatience.

In his letters Marshall never fails to admonish his wife, who seldom if ever wrote to him, to care for her health. "Yesterday I received Jacquelin's letter of the 12^{th} informing me that your health was at present much the same as when I left Richmond," writes Marshall.[186] "John [Marshall's son] passed through this city a day or two past, & although I did not see him I had the pleasure of hearing from Mr. Washington who saw him ... that you were as well as usual."[187] In another letter Marshall says: "Do my dearest Polly let me hear from you through someone of those who will be willing to write for you."[188] Again he says: "I am most anxious to know how you do but no body is kind enough to gratify my wishes.... I looked eagerly for a letter to day but no letter came.... You must not fail when you go to Chiccahominy [Marshall's farm near Richmond] ... to carry out blankets enough to keep you comfortable. I am very desirous of hearing what is doing there but as no body is good enough to let me know how you do & what is passing at home I could not expect to hear what is passing at the farm."[189] Indeed, only one letter of Marshall's has been discovered which indicates that he had received so much as a line from his wife; and this was when, an old man of seventy-five, he was desperately ill in Philadelphia.[190] Nothing, perhaps, better reveals the sweetness of his nature than his cheerful temper and tender devotion under trying domestic conditions.[191]

His "dearest Polly" was intensely religious, and Marshall profoundly respected this element of her character.[192] The evidence as to his own views and feelings on the subject of religion, although scanty, is definite. He was a Unitarian in belief and therefore never became a member of the Episcopal church, to which his parents, wife, children, and all other relatives belonged. But he attended services, Bishop Meade informs us, not only because "he was a sincere friend of religion," but also because he wished "to set an example." The Bishop bears this testimony: "I can never forget how he would prostrate his tall form before the rude low benches, without backs, at Coolspring Meeting-House,[193] in the midst of his children and grandchildren and his old neighbors." When in Richmond, Marshall attended the Monumental Church where, says Bishop Meade, "he was much incommoded by the narrowness of the pews.... Not finding room enough for his whole body within the pew, he used to take his seat nearest the door of the pew, and, throwing it open, let his legs stretch a little into the aisle."[194]

It is said, however, that his daughter, during her last illness, declared that her father late in life was converted, by reading Keith on Prophecy, to a belief in the divinity of Christ; and that he determined to "apply for admission to the communion of our Church ... but died without ever communing."[195] There is, too, a legend about an astonishing flash of eloquence from Marshall--"a streak of vivid lightning"--at a tavern, on the subject of religion.[196] The impression said to have been made by Marshall on this occasion was heightened by his appearance when he arrived at the inn. The shafts of his ancient gig were broken and "held together by withes formed from the bark of a hickory sapling"; he was negligently dressed, his knee buckles loosened.[197]

In the tavern a discussion arose among some young men concerning "the merits of the Christian religion." The debate grew warm and lasted "from six o'clock until eleven." No one knew Marshall, who sat quietly listening. Finally one of the youthful combatants turned to him and said: "Well, my old gentleman, what think you of these things?" Marshall responded with a "most eloquent and unanswerable appeal." He talked for an hour, answering "every argument urged against" the teachings of Jesus. "In the whole lecture there was so much simplicity and energy, pathos and sublimity, that not another word was uttered." The listeners wondered who the old man could be. Some thought him a preacher; and great was their surprise when they learned afterwards that he was the Chief Justice of the United States.[198]

His devotion to his wife illustrates his attitude toward women in general, which was one of exalted reverence and admiration. "He was an enthusiast in regard to the domestic virtues," testifies Story. "There was ... a romantic chivalry in his feelings, which, though rarely displayed, except in the circle of his most intimate friends, would there pour out itself with the most touching tenderness." He loved to dwell on the "excellences," "accomplishments," "talents," and "virtues" of women, whom he looked upon as "the friends, the companions, and the equals of man." He tolerated no wit at their expense, no fling, no sarcasm, no reproach. On no phase of Marshall's character does Story place so much emphasis as on his esteem for women.[199] Harriet Martineau, too, bears witness that "he maintained through life and carried to his grave, a reverence for woman as rare in its kind as in its degree."[200] "I have always believed that national character as well as happiness depends more on the female part of society than is generally imagined," writes Marshall in his ripe age to Thomas White.[201]

Commenting on Story's account, in his centennial oration on the first settlement of Salem, of the death of Lady Arbella Johnson, Marshall expresses his opinion of women thus: "I almost envy the occasion her sufferings and premature death have furnished for bestowing that well-merited eulogy on a sex which so far surpasses ours in all the amiable and attractive virtues of the heart,--in all those qualities which make up the sum of human happiness and transform the domestic fireside into an elysium. I read the passage to my wife who expressed such animated approbation of it as almost to excite fears for that exclusive admiration which husbands claim as their peculiar privilege. Present my compliments to M^{rs} Story and say for me that a lady receives the highest compliment her husband can pay her when he expresses an exalted opinion of the sex, because the world will believe that it is formed on the model he sees at home."[202]

Ten children were born to John Marshall and Mary Ambler, of whom six survived, five boys and one girl.[203] By 1815 only three of these remained at home; Jacquelin, twenty-eight years old, James Keith, fifteen, and Edward, ten years of age. John was in Harvard, where Marshall sent all his sons except Thomas, the eldest, who went to Princeton.[204] The daughter, Mary, Marshall's favorite child, had married Jacquelin B. Harvie and lived in Richmond not far from Marshall's house.[205] Four other children had died early.

"You ask," Marshall writes Story, "if M^{rs} Marshall and myself have ever lost a child. We have lost four, three of them bidding fairer for health and life than any that have survived them. One, a daughter about six or seven ... was one of the most fascinating children I ever saw. She was followed within a fortnight by a brother whose death was attended by a circumstance we can never forget.

"When the child was supposed to be dying I tore the distracted mother from the bedside. We soon afterwards heard a voice in the room which we considered as indicating the death of the infant. We believed him to be dead. [I went] into the room and found him still breathing. I returned [and] as the pang of his death had been felt by his mother and [I] was confident he must die, I concealed his being alive and prevailed on her to take refuge with her mother who lived the next door across an open square from her.

"The child lived two days, during which I was agonized with its condition and with the occasional hope, though the case was desperate, that I might enrapture his mother with the intelligence of his restoration to us. After the event had taken place his mother could not bear to return to the house she had left and remained with her mother a fortnight.

"I then addressed to her a letter in verse in which our mutual loss was deplored, our lost children spoken of with the parental feeling which belonged to the occasion, her affection for those which survived was appealed to, and her religious confidence in the wisdom and goodness of Providence excited. The letter closed with a pressing invitation to return to me and her children."[206]

All of Marshall's sons married, settled on various parts of the Fairfax estate, and lived as country gentlemen. Thomas was given the old homestead at Oak Hill, and there the Chief Justice built for his eldest son the large house adjacent to the old one where he himself had spent a year before joining the army under Washington.[207] To this spot Marshall went every year, visiting Thomas and his other sons who lived not far apart, seeing old friends, wandering along Goose Creek, over the mountains, and among the haunts where his first years were spent.

Here, of course, he was, in bearing and appearance, even less the head of the Nation's Judiciary than he was in Richmond or on the road to Raleigh. He was emphatically one of the people among whom he sojourned, familiar, interested, considerate, kindly and sociable to the last degree. Not one of his sons but showed more consciousness of his own importance than did John Marshall; not a planter of Fauquier, Warren, and Shenandoah Counties, no matter how poorly circumstanced, looked and acted less a Chief Justice of the United States. These characteristics, together with a peculiar generosity, made Marshall the most beloved man in Northern Virginia.

Once, when going from Richmond to Fauquier County, he overtook one of his Revolutionary comrades. As the two rode on together, talking of their war-time experiences and of their present circumstances, it came out that this now ageing friend of his youth was deeply in debt and about to lose all his possessions. There was, it appeared, a mortgage on his farm which would soon be foreclosed. After the Chief Justice had left the inn where they both had stopped for refreshments, an envelope was handed to his friend containing Marshall's check for the amount of the debt. His old comrade-in-arms quickly mounted his horse, overtook Marshall, and insisted upon returning the check. Marshall refused to take it back, and the two friends argued the matter, which was finally compromised by Marshall's agreeing to take a lien upon the land. But this he never foreclosed.[208]

This anecdote is highly characteristic of Marshall. He was infinitely kind, infinitely considerate. Bishop Meade, who knew him well, says that he "was a most conscientious man in regard to some things which others might regard as too trivial to be observed." On one of Meade's frequent journeys with Marshall between Fauquier County and the "lower country," they came to an impassable stretch of road. Other travelers had taken down a fence and gone through the adjoining plantation, and the Bishop was about to follow the same route. Marshall refused--"He said we had better go around, although each step was a plunge, adding that it was his duty, as one in office, to be very particular in regard to such things."[209]

When in Richmond the one sport in which he delighted was the pitching of quoits. Not when a lawyer was he a more enthusiastic or regular attendant of the meetings of the Quoit Club, or Barbecue Club,[210] under the trees at Buchanan's Spring on the outskirts of Richmond, than he was when at the height of his fame as Chief Justice of the United States. More personal descriptions of Marshall at these gatherings have come down to us than exist for any other phase of his life. Chester Harding, the artist, when painting Marshall's portrait during the summer of 1826, spent some time in the Virginia Capital, and attended one of the meetings of the Quoit Club. It was a warm day, and presently Marshall, then in his seventy-second year, was seen coming, his coat on his arm, fanning himself with his hat. Walking straight up to a bowl of mint julep, he poured a tumbler full of the liquid, drank it off, said, "How are you, gentlemen?" and fell to pitching quoits with immense enthusiasm. When he won, says Harding, "the woods would ring with his triumphant shout."[211]

James K. Paulding went to Richmond for the purpose of talking to the Chief Justice and observing his daily life. He was more impressed by Marshall's gayety and unrestraint at the Quoit Club than by anything else he noted. "The Chief-Justice threw off his coat," relates Paulding, "and fell to work with as much energy as he would have directed to the decision of ... the conflicting jurisdiction of the General and State Governments." During the game a dispute arose between two players "as to the quoit nearest the meg." Marshall was agreed upon as umpire. "The Judge bent down on one knee and with a straw essayed the decision of this important question, ... frequently biting off the end of the straw" for greater accuracy.[212]

The morning play over, the club dinner followed. A fat pig, roasted over a pit of coals, cold meats, melons, fruits, and vegetables, were served in the old Virginia style. The usual drinks were porter, toddy,[213] and the club punch made of "lemons, brandy, rum, madeira, poured into a bowl one-third filled with ice (no water), and sweetened."[214] In addition, champagne and other wines were sometimes provided.[215] At these meals none of the witty company equaled Marshall in fun-making; no laugh was so cheery and loud as his. Not more was John Marshall the chief of the accomplished and able men who sat with him on the Supreme Bench at Washington than, even in his advancing years, he was the leader of the convivial spirits who gathered to pitch quoits, drink julep and punch, tell stories, sing songs, make speeches, and play pranks under the trees of Richmond.

Marshall dearly loved, when at home, to indulge in the giving of big dinners to members of the bench and bar. In a wholly personal sense he was the best-liked man in Richmond. The lawyers and judges living there were particularly fond of him, and the Chief Justice thoroughly reciprocated their regard. Spencer Roane, Judge of the Virginia Court of Appeals, seems to have been the one enemy Marshall had in the whole city. Indeed, Roane and Jefferson appear to have been the only men anywhere who ever hated him personally. Even the testy George Hay reluctantly yielded to his engaging qualities. When at the head of the Virginia bar, Marshall had been one of those leading attorneys who gave the attractive dinners that were so notable and delightful a feature of life in Richmond. After he became Chief Justice, he continued this custom until his "lawyer dinners" became, among men, the principal social events of the place.

Many guests sat at Marshall's board upon these occasions. Among them were his own sons as well as those of some of his guests. These dinners were repetitions within doors of the Quoit Club entertainments, except that the food was more abundant and varied, and the cheering drinks were of better quality--for Marshall prided himself on this feature of hospitality, especially on his madeira, of which he was said to keep the best to be had in America. Wit and repartee, joke, story and song, speech and raillery, brought forth volleys of laughter and roars of applause until far into the morning hours.[216] Marshall was not only at the head of the table as host, but was the leader of the merriment.[217]

His labors as Chief Justice did not dull his delight in the reading of poetry and fiction, which was so keen in his earlier years.[218] At the summit of his career, when seventy-one years old, he read all of Jane Austen's works, and playfully reproved Story for failing to name her in a list of authors given in his Phi Beta Kappa oration at Harvard. "I was a little mortified," he wrote Story, "to find that you had not admitted the name of Miss Austen into your list of favorites. I had just finished reading her novels when I received your discourse, and was so much pleased with them that I looked in it for her name, and was rather disappointed at not finding it. Her flights are not lofty, she does not soar on eagle's wings, but she is pleasing, interesting, equable, and yet amusing. I count on your making some apology for this omission."[219]

Story himself wrote poetry, and Marshall often asked for copies of his verses.[220] "The plan of life I had formed for myself to be adopted after my retirement from office," he tells Story, "is to read nothing but novels and poetry."[221] That this statement genuinely expressed his tastes is supported by the fact that, among the few books which the Chief Justice treasured, were the novels of Sir Walter Scott and an extensive edition of the British poets.[222] While his chief intellectual pleasure was the reading of fiction, Marshall liked poetry even better; and he committed to memory favorite passages which he quoted as comment on passing incidents. Once when he was told that certain men had changed their opinions as a matter of political expediency, he repeated Homer's lines:

"Ye gods, what havoc does ambition make 'Mong all your works."[223]

During the six or eight weeks that the Supreme Court sat each year, Marshall was the same in manner and appearance in Washington as he was among his neighbors in Richmond--the same in dress, in habits, in every way. Once a practitioner sent his little son to Marshall's quarters for some legal papers. The boy was in awe of the great man. But the Chief Justice, detecting the feelings of the lad, remarked: "Billy, I believe I can beat you playing marbles; come into the yard and we will have a game." Soon the Chief Justice of the United States and the urchin were hard at play.[224]

If he reached the court-room before the hour of convening court, he sat among the lawyers and talked and joked as if he were one of them;[225] and, judging from his homely, neglected clothing, an uninformed onlooker would have taken him for the least important of the company. Yet there was about him an unconscious dignity that prevented any from presuming upon his good nature, for Marshall inspired respect as well as affection. After their surprise and disappointment at his ill attire and want of impressiveness,[226] attorneys coming in contact with him were unfailingly captivated by his simplicity and charm.

It was thus that Joseph Story, when a very young lawyer, first fell under Marshall's spell. "I love his laugh," he wrote; "it is too hearty for an intriguer,--and his good temper and unwearied patience are equally agreeable on the bench and in the study."[227] And Marshall wore well. The longer and more intimately men associated with him, the greater their fondness for him. "I am in love with his character, positively in love," wrote Story after twenty-four years of close and familiar contact.[228] He "rises ... with the nearest survey," again testified Story in a magazine article.[229]

When, however, the time came for him to open court, a transformation came over him. Clad in the robes of his great office, with the Associate Justices on either side of him, no king on a throne ever appeared more majestic than did John Marshall. The kindly look was still in his eye, the mildness still in his tones, the benignity in his features. But a gravity of bearing, a firmness of manner, a concentration and intentness of mind, seemed literally to take possession of the man, although he was, and appeared to be, as unconscious of the change as he was that there was anything unusual in his conduct when off the bench.[230]

Marshall said and did things that interested other people and caused them to talk about him. He was noted for his quick wit, and the bar was fond of repeating anecdotes about him. "Did you hear what the Chief Justice said the other day?"--and then the story would be told of a bright saying, a quick repartee, a picturesque incident. Chief Justice Gibson of Pennsylvania, when a young man, went to Marshall for advice as to whether he should accept a position offered him on the State Bench. The young attorney, thinking to flatter him, remarked that the Chief Justice had "reached the acme of judicial distinction." "Let me tell you what that means, young man," broke in Marshall. "The acme of judicial distinction means the ability to look a lawyer straight in the eyes for two hours and not hear a damned word he says."[231]

Wherever he happened to be, nothing pleased Marshall so much as to join a convivial party at dinner or to attend any sort of informal social gathering. On one occasion he went to the meeting of a club at Philadelphia, held in a room at a tavern across the hall from the bar. It was a rule of the club that every one present should make a rhyme upon a word suddenly given. As he entered, the Chief Justice observed two or three Kentucky colonels taking their accustomed drink. When Marshall appeared in the adjoining room, where the company was gathered, he was asked for an extemporaneous rhyme on the word "paradox." Looking across the hall, he quickly answered:

"In the Blue Grass region, A 'Paradox' was born, The corn was full of kernels And the 'colonels' full of corn."[232]

But Marshall heartily disliked the formal society of the National Capital. He was, of course, often invited to dinners and receptions, but he was usually bored by their formality. Occasionally he would brighten his letters to his wife by short mention of some entertainment. "Since being in this place," he writes her, "I have been more in company than I wish.... I have been invited to dine with the President with our own secretaries & with the minister of France & tomorrow I dine with the British minister.... In the midst of these gay circles my mind is carried to my own fireside & to my beloved wife."[233]

Again: "Soon after dinner yesterday the French Chargé d'affaires called upon us with a pressing invitation to be present at a party given to the young couple, a gentleman of the French legation & the daughter of the secretary of the navy who are lately married. There was a most brilliant illumination which we saw and admired, & then we returned."[234] Of a dinner at the French Legation he writes his wife, it was "rather a dull party. Neither the minister nor his lady could speak English and I could not speak French. You may conjecture how far we were from being sociable. Yesterday I dined with M^r Van Buren the secretary of State. It was a grand dinner and the secretary was very polite, but I was rather dull through the evening. I make a poor return for these dinners. I go to them with reluctance and am bad company while there. I hope we have seen the last, but I fear we must encounter one more.[235] With the exception of these parties my time was never passed with more uniformity. I rise early, pour [sic] over law cases, go to court and return at the same hour and pass the evening in consultation with the Judges."[236]

Chester Harding relates that, when he was in Washington making a full-length portrait of the Chief Justice,[237] Marshall arrived late for the sitting, which had been fixed for eight o'clock in the evening. He came without a hat. Congressman Storrs and one or two other men, having seen Marshall, bare-headed, hurrying by their inn with long strides, had "followed, curious to know the cause of such a strange appearance." But Marshall simply explained to the artist that the consultation lasted longer than usual, and that he had hurried off without his hat. When the Chief Justice was about to go home, Harding offered him a hat, but he said, "Oh, no! it is a warm night, I shall not need one."[238]

No attorney practicing in the Supreme Court was more unreserved in social conversation than was the Chief Justice. Sometimes, indeed, on a subject that appealed to him, Marshall would do all the talking, which, for some reason, would occasionally be quite beyond the understanding of his hearer. Of one such exhibition Fisher Ames remarked to Samuel Dexter: "I have not understood a word of his argument for half an hour." "And I," replied the leader of the Massachusetts bar, "have been out of my depth for an hour and a half."[239]

The members of the Supreme Court made life as pleasant for themselves as they could during the weeks they were compelled to remain in "this dismal" place, as Daniel Webster described the National Capital. Marshall and the Associate Justices all lived together at one boarding-house, and thus became a sort of family. "We live very harmoniously and familiarly,"[240] writes Story, one year after his appointment. "My brethren are very interesting men," he tells another friend. We "live in the most frank and unaffected intimacy. Indeed, we are all united as one, with a mutual esteem which makes even the labors of Jurisprudence light."[241]

Sitting about a single table at their meals, or gathered in the room of one of them, these men talked over the cases before them. Not only did they "moot every question as" the arguments proceeded in court, but by "familiar conferences at our lodgings often come to a very quick, and ... accurate opinion, in a few hours," relates that faithful chronicler of their daily life, Joseph Story.[242] Story appears to have been even more impressed by the comradery of the members of the Supreme Court than by the difficulty of the cases they had to decide.

None of them ever took his wife with him to Washington, and this fact naturally made the personal relations of the Justices peculiarly close. "The Judges here live with perfect harmony," Story reiterates, "and as agreeably as absence from friends and from families could make our residence. Our intercourse is perfectly familiar and unconstrained, and our social hours when undisturbed with the labors of law, are passed in gay and frank conversation, which at once enlivens and instructs."[243]

This "gay and frank conversation" of Marshall and his associates covered every subject--the methods, manners, and even dress of counsel who argued before them, the fortunes of public men, the trend of politics, the incident of the day, the gossip of society. "Two of the Judges are widowers," records Story, "and of course objects of considerable attraction among the ladies of the city. We have fine sport at their expense, and amuse our leisure with some touches at match-making. We have already ensnared one of the Judges, and he is now (at the age of forty-seven) violently affected with the tender passion."[244]

Thus Marshall, in his relation with his fellow occupants of the bench, was at the head of a family as much as he was Chief of a court. Although the discussion of legal questions occurred continuously at the boarding-house, each case was much more fully examined in the consultation room at the Capitol. There the court had a regular "consultation day" devoted exclusively to the cases in hand. Yet, even on these occasions, all was informality, and wit and humor brightened the tediousness. These "consultations" lasted throughout the day and sometimes into the night; and the Justices took their meals while the discussions proceeded. Amusing incidents, some true, some false, and others a mixture, were related of these judicial meetings. One such story went the rounds of the bar and outlived the period of Marshall's life.

"We are great ascetics, and even deny ourselves wine except in wet weather," Story dutifully informed his wife. "What I say about the wine gives you our rule; but it does sometimes happen that the Chief Justice will say to me, when the cloth is removed, 'Brother Story, step to the window and see if it does not look like rain.' And if I tell him that the sun is shining brightly, Judge Marshall will sometimes reply, 'All the better, for our jurisdiction extends over so large a territory that the doctrine of chances makes it certain that it must be raining somewhere.'"[245]

When, as sometimes happened, one of the Associate Justices displeased a member of the bar, Marshall would soothe the wounded feelings of the lawyer. Story once offended Littleton W. Tazewell of Virginia by something said from the bench. "On my return from court yesterday," the Chief Justice hastened to write the irritated Virginian, "I informed M^r Story that you had been much hurt at an expression used in the opinion he had delivered in the case of the Palmyra. He expressed equal surprize and regret on the occasion, and declared that the words which had given offense were not used or understood by him in an offensive sense. He assented without hesitation to such modification of them as would render them in your view entirely unexceptionable."[246]

As Chief Justice, Marshall shrank from publicity, while printed adulation aggravated him. "I hope to God they will let me alone 'till I am dead," he exclaimed, when he had reached that eminence where writers sought to portray his life and character.[247]

He did, however, appreciate the recognition given from time to time by colleges and learned societies. In 1802 Princeton conferred upon him the honorary degree of LL.D.; in 1806 he received the same degree from Harvard and from the University of Pennsylvania in 1815. In 1809, as we have seen, he was elected a corresponding member of the Massachusetts Historical Society; on January 24, 1804, he was made a member of the American Academy of Arts and Sciences; and, in 1830, was elected to the American Philosophical Society. All these honors Marshall valued highly.

This, then, was the man who presided over the Supreme Court of the United States when the decisions of that tribunal developed the National powers of the Constitution and gave stability to our National life. His control of the court was made so easy for the Justices that they never resented it; often, perhaps, they did not realize it. The influence of his strong, deep, clear mind was powerfully aided by his engaging personality. To agree with him was a pleasure.

Marshall's charm was as great as his intellect; he was never irritable; his placidity was seldom ruffled; not often was his good nature disturbed. His "great suavity, or rather calmness of manner, cannot readily be conceived," testifies George Bancroft.[248] The sheer magnitude of his views was, in itself, captivating, and his supremely lucid reasoning removed the confusion which more complex and subtle minds would have created in reaching the same conclusion. The elements of his mind and character were such, and were so combined, that it was both hard and unpleasant to differ with him, and both easy and agreeable to follow his lead.

Above all other influences upon his associates on the bench, and, indeed, upon everybody who knew him, was the sense of trustworthiness, honor, and uprightness he inspired.[249] Perhaps no public man ever stood higher in the esteem of his contemporaries for noble personal qualities than did John Marshall.

When reviewing his constructive work and marveling at his influence over his judicial associates, we must recall, even at the risk of iteration, the figure revealed by his daily life and habits--"a man who is tall to awkwardness, with a large head of hair, which looked as if it had not been lately tied or combed, and with dirty boots,"[250] a body that seemed "without proportion," and arms and legs that "dangled from each other and looked half dislocated," dressed in clothes apparently "gotten from some antiquated slop-shop of second-hand raiment ... the coat and breeches cut for nobody in particular."[251] But we must also think of such a man as possessed of "style and tones in conversation uncommonly mild, gentle, and conciliating."[252] We must think of his hearty laughter, his "imperturbable temper,"[253] his shyness with strangers, his quaint humor, his hilarious unreserve with friends and convivial jocularity when with intimates, his cordial warm-heartedness, unassuming simplicity and sincere gentleness to all who came in contact with him--a man without "an atom of gall in his whole composition."[254] We must picture this distinctive American character among his associates of the bench in the Washington boarding-house no less than in court, his luminous mind guiding them, his irresistible personality drawing from them a real and lasting affection. We must bear in mind the trust and confidence which so powerfully impressed those who knew the man. We must imagine a person very much like Abraham Lincoln.

Indeed, the resemblance of Marshall to Lincoln is striking. Between no two men in American history is there such a likeness. Physically, intellectually, and in characteristics, Marshall and Lincoln were of the same type. Both were very tall men, slender, loose-jointed, and awkward, but powerful and athletic; and both fond of sport. So alike were they, and so identical in their negligence of dress and their total unconsciousness of, or indifference to, convention, that the two men, walking side by side, might well have been taken for brothers.

Both Marshall and Lincoln loved companionship with the same heartiness, and both had the same social qualities. They enjoyed fun, jokes, laughter, in equal measure, and had the same keen appreciation of wit and humor. Their mental qualities were the same. Each man had the gift of going directly to the heart of any subject; while the same lucidity of statement marked each of them. Their style, the simplicity of their language, the peculiar clearness of their logic, were almost identical. Notwithstanding their straightforwardness and amplitude of mind, both had a curious subtlety. Some of Marshall's opinions and Lincoln's state papers might have been written by the same man. The "Freeholder" questions and answers in Marshall's congressional campaign, and those of Lincoln's debate with Douglas, are strikingly similar in method and expression.

Each had a genius for managing men; and Marshall showed the precise traits in dealing with the members of the Supreme Court that Lincoln displayed in the Cabinet.

Both were born in the South, each on the eve of a great epoch in American history when a new spirit was awakening in the hearts of the people. Although Southern-born, both Marshall and Lincoln sympathized with and believed in the North; and yet their manners and instinct were always those of the South. Marshall was given advantages that Lincoln never had; but both were men of the people, were brought up among them, and knew them thoroughly. Lincoln's outlook upon life, however, was that of the humblest citizen; Marshall's that of the well-placed and prosperous. Neither was well educated, but each acquired, in different ways, a command of excellent English and broad, plain conceptions of government and of life. Neither was a learned man, but both created the materials for learning.

Marshall and Lincoln were equally good politicians; but, although both were conservative in their mental processes, Marshall lost faith in the people's steadiness, moderation, and self-restraint; and came to think that impulse rather than wisdom was too often the temporary moving power in the popular mind, while the confidence of Lincoln in the good sense, righteousness, and self-control of the people became greater as his life advanced. If, with these distinctions, Abraham Lincoln were, in imagination, placed upon the Supreme Bench during the period we are now considering, we should have a good idea of John Marshall, the Chief Justice of the United States.

It is, then, largely the personality of John Marshall that explains the hold, as firm and persistent as it was gentle and soothing, maintained by him upon the Associate Justices of the Supreme Court; and it is this, too, that enables us to understand his immense popularity with the bar--a fact only second in importance to the work he had to do, and to his influence upon the men who sat with him on the bench.

For the lawyers who practiced before the Supreme Court at this period were most helpful to Marshall.[255] Many of them were men of wide and accurate learning, and nearly all of them were of the first order of ability. No stronger or more brilliant bar ever was arrayed before any bench than that which displayed its wealth of intellect and resources to Marshall and his associates.[256] This assertion is strong, but wholly justified. Oratory of the finest quality, though of the old rhetorical kind, filled the court-room with admiring spectators, and entertained Marshall and the other Justices, as much as the solid reasoning illuminated their minds, and the exhaustive learning informed them.

Marshall encouraged extended arguments; often demanded them. Frequently a single lawyer would speak for two or three days. No limit of time was put upon counsel.[257] Their reputation as speakers as well as their fame as lawyers, together with the throngs of auditors always present, put them on their mettle. Rhetoric adorned logic; often encumbered it. A conflict between such men as William Pinkney, Luther Martin of Maryland, Samuel Dexter of Massachusetts, Thomas Addis Emmet of New York, William Wirt of Virginia, Joseph Hopkinson of Pennsylvania, Jeremiah Mason of New Hampshire, Daniel Webster, Henry Clay, and others of scarcely less distinction, was, in itself, an event. These men, and indeed all the members of the bar, were Marshall's friends as well as admirers.

The appointment of Story to the Supreme Bench was, like the other determining circumstances in Marshall's career, providential.

Few characters in American history are more attractive than the New England lawyer and publicist who, at the age of thirty-two, took his place at Marshall's side on the Supreme Bench. Handsome, vivacious, impressionable, his mind was a storehouse of knowledge, accurately measured and systematically arranged. He read everything, forgot nothing. His mental appetite was voracious, and he had a very passion for research. His industry was untiring, his memory unfailing. He supplied exactly the accomplishment and toilsomeness that Marshall lacked. So perfectly did the qualities and attainments of these two men supplement one another that, in the work of building the American Nation, Marshall and Story may be considered one and the same person.

Where Marshall was leisurely, Story was eager. If the attainments of the Chief Justice were not profuse, those of his young associate were opulent. Marshall detested the labor of investigating legal authorities; Story delighted in it. The intellect of the older man was more massive and sure; but that of the youthful Justice was not far inferior in strength, or much less clear and direct in its operation. Marshall steadied Story while Story enriched Marshall. Each admired the other, and between them grew an affection like that of father and son.

Story's father, Elisha Story, was a member of the Republican Party, a rare person among wealthy and educated men in Massachusetts at the time Jefferson founded that political organization. The son tells us that he "naturally imbibed the same opinions," which were so reprobated that not "more than four or five lawyers in the whole state ... dared avow themselves republicans. The very name was odious."[258]

Joseph Story was born in Marblehead, Massachusetts, September 18, 1779, one of a family of eighteen children, seven by a first wife and eleven by a second. He was the eldest son of the second wife, who had been a Miss Pedrick, the daughter of a rich merchant and shipowner.[259]

No young member of the Massachusetts bar equaled Joseph Story in intellectual gifts and acquirements. He was a graduate of Harvard, and few men anywhere had a broader or more accurate education. His personality was winning and full of charm. Yet, when he began practice at Salem, he was "persecuted" with "extreme ... virulence" because of his political opinions.[260] He became so depressed by what he calls "the petty prejudices and sullen coolness of New England, ... bigoted in opinion and satisfied in forms," where Federalism had "persecuted ... [him] unrelentingly for ... [his] political principles," that he thought seriously of going to Baltimore to live and practice his profession. He made headway, however, in spite of opposition; and, when the growing Republican Party, "the whole" of which he says were his "warm advocates,"[261] secured the majority of his district, Story was sent to Congress. "I was ... of course a supporter of the administration of Mr. Jefferson and Mr. Madison," although not "a mere slave to the opinions of either." In exercising what he terms his "independent judgment,"[262] Story favored the repeal of the Embargo, and so earned, henceforth, the lasting enmity of Jefferson.[263]

Because of his recognized talents, and perhaps also because of the political party to which he belonged, he was employed to go to Washington as attorney for the New England and Mississippi Company in the Yazoo controversy.[264] It was at this period that the New England Federalist leaders began to cultivate him. They appreciated his ability, and the assertion of his "independent principles" was to their liking. Harrison Gray Otis was quick to advise that seasoned politician, Robert Goodloe Harper, of the change he thought observable in Story, and the benefit of winning his regard. "He is a young man of talents, who commenced Democrat a few years since and was much fondled by his party," writes Otis. "He discovered however too much sentiment and honor to go all lengths ... and a little attention from the right sort of people will be very useful to him & to us."[265]

The wise George Cabot gave Pickering the same hint when Story made one of his trips to Washington on the Yazoo business. "Though he is a man whom the Democrats support," says Cabot, "I have seldom if ever met with one of sounder mind on the principal points of national policy. He is well worthy the civil attention of the most respectable Federalists."[266]

It was while in the Capital, as attorney before Congress and the Supreme Court in the Georgia land controversy, that Story, then twenty-nine years old, met Marshall; and impulsively wrote of his delight in the "hearty laugh," "patience," consideration, and ability of the Chief Justice. On this visit to Washington the young Massachusetts lawyer took most of his meals with the members of the Supreme Court.[267] At that time began the devotion of Joseph Story to John Marshall which was to prove so helpful to both for more than a generation, and so influential upon the Republic for all time.

That Story, while in Washington, had copiously expressed his changing opinions, as well as his disapproval of Jefferson's Embargo, is certain; for he was "a very great talker,"[268] and stated his ideas with the volubility of his extremely exuberant nature. "At this time, as in after life," declares Story's son, "he was remarkable for fulness and fluency of conversation. It poured out from his mind ... sparkling, and exhaustless. Language was as a wide open sluice, through which every feeling and thought rushed forth.... It would be impossible to give an idea of his conversational powers."[269]

It was not strange, then, that Jefferson, who was eager for all gossip and managed to learn everything that happened, or was said to have happened, in Washington, heard of Story's association with the Federalists, his unguarded talk, and especially his admiration for the Chief Justice. It was plain to Jefferson that such a person would never resist Marshall's influence.

In Jefferson's mind existed another objection to Story which may justly be inferred from the situation in which he found himself when the problem arose of filling the place on the Supreme Bench vacated by the death of Justice Cushing. Story had made a profound study of the law of real estate; and, young though he was, no lawyer in America equaled him, and few in England surpassed him, in the intricate learning of that branch of legal science. This fact was well known to the bar at Washington as well as to that of Massachusetts. Therefore, the thought of Story on the Supreme Bench, and under Marshall's influence, made Jefferson acutely uncomfortable; for the former President was then engaged in a lawsuit involving questions of real estate which, if decided against him, would, as he avowed, ruin him. This lawsuit was the famous Batture litigation. It was this predicament that led Jefferson to try to control the appointment of the successor to Cushing, whose death he declared to be "a Godsend"[270] to him personally; and also to dictate the naming of the district judge at Richmond to the vacancy caused by the demise of Judge Cyrus Griffin.

In the spring of 1810, Edward Livingston, formerly of New York and then of New Orleans, brought suit in the United States Court for the District of Virginia against Thomas Jefferson for damages to the amount of one hundred thousand dollars. This was the same Livingston who in Congress had been the Republican leader in the House when Marshall was a member of that body.[271] Afterwards he was appointed United States Attorney for the District of New York and then became Mayor of that city. During the yellow fever epidemic that scourged New York in 1803, Livingston devoted himself to the care of the victims of the plague, leaving the administration of the Mayor's office to a trusted clerk. In time Livingston, too, was stricken. During his illness his clerk embezzled large sums of the public money. The Mayor was liable and, upon his recovery, did not attempt to evade responsibility, but resigned his office and gave all his property to make good the defalcation. A heavy amount, however, still remained unpaid; and the discharge of this obligation became the ruling purpose of Livingston's life until, twenty years afterward, he accomplished his object.

His health regained, Livingston went to New Orleans to seek fortune anew. There he soon became the leader of the bar. When Wilkinson set up his reign of terror in that city, it was Edward Livingston who swore out writs of habeas corpus for those illegally imprisoned and, in general, was the most vigorous as well as the ablest of those who opposed Wilkinson's lawless and violent measures.[272] Jefferson had been displeased that Livingston had not shown more enthusiasm for him, when, in 1801, the Federalists had tried to elect Burr to the Presidency, and bitterly resented Livingston's interference with Wilkinson's plans to "suppress treason" in New Orleans.

One John Gravier, a lifelong resident of that city, had inherited from his brother Bertrand certain real estate abutting the river. Between this and the water the current had deposited an immense quantity of alluvium. The question of the title to this river-made land had never been raised, and everybody used it as a sort of common wharf front. Alert for opportunities to make money with which fully to discharge the defalcation in the New York Mayor's office, Livingston investigated the rightful ownership of the batture, as the alluvial deposit was termed; satisfied himself that the title was in Gravier; gave an opinion to that effect, and brought suit for the property as Gravier's attorney.[273] While the trial of Aaron Burr was in progress in Richmond, the Circuit Court in New Orleans rendered judgment in favor of Gravier,[274] who then conveyed half of his rights to his attorney, apparently as a fee for the recovery of the batture.

Livingston immediately began to improve his property, whereupon the people became excited and drove away his workmen. Governor Claiborne refused to protect him and referred the whole matter to Jefferson. The President did not direct the Attorney-General to bring suit for the possession of the batture--the obvious and the legal form of procedure. Indeed, the title to the property was not so much as examined. Jefferson did not even take into consideration the fact that, if Livingston was not the rightful owner of the batture, it might belong to the City of New Orleans. He merely assumed that it was National property; and, hastily acting under a law against squatters on lands belonging to the United States, he directed Secretary of State Madison to have all persons removed from the disputed premises. Accordingly, the United States Marshal was ordered to eject the "intruder" and his laborers. This was done; but Livingston told his men to return to their work and secured an injunction against the Marshal from further molesting them. That official ignored the order of the court and again drove the laborers off the batture.

Livingston begged the President to submit the controversy to arbitration or to judicial decision, but Jefferson was deaf to his pleas. The distracted lawyer appealed to Congress for relief.[275] That body ignored his petition.[276] He then brought suit against the Marshal in New Orleans for the recovery of his property. Soon afterward he brought another in Virginia against Jefferson for one hundred thousand dollars damages. Such, in brief outline, was the beginning of the famous "Batture Controversy," in which Jefferson and Livingston waged a war of pamphlets for years.

When he learned that Livingston had begun action against him in the Federal court at Richmond, Jefferson was much alarmed. In anticipation of the death of Judge Cyrus Griffin, Governor John Tyler had written Jefferson that, while he "never did apply for an office," yet "Judge Griffin is in a low state of health, and holds my old office." Tyler continues: "I really hope the President will chance to think of me ... in case of accidents, and if an opportunity offers, lay me down softly on a bed of roses in my latter days." He condemns Marshall for his opposition to the War of 1812, and especially for his reputed statement that Great Britain had done nothing to justify armed retaliation on our part.[277] "Is it possible," asks Tyler, "that a man who can assert this, can have any true sense of sound veracity? And yet these sort of folks retain their stations and consequence in life."[278]

Immediately Jefferson wrote to President Madison: "From what I can learn Griffin cannot stand it long, and really the state has suffered long enough by having such a cypher in so important an office, and infinitely the more from the want of any counter-point to the rancorous hatred which Marshall bears to the government of his country, & from the cunning & sophistry within which he is able to enshroud himself. It will be difficult to find a character of firmness enough to preserve his independence on the same bench with Marshall. Tyler, I am certain, would do it.... A milk & water character ... would be seen as a calamity. Tyler having been the former state judge of that court too, and removed to make way for so wretched a fool as Griffin,[279] has a kind of right of reclamation."

Jefferson gives other reasons for the appointment of Tyler, and then addresses Madison thus: "You have seen in the papers that Livingston has served a writ on me, stating damages at 100,000. D... I shall soon look into my papers to make a state of the case to enable them to plead." Jefferson hints broadly that he may have to summon as witnesses his "associates in the proceedings," one of whom was Madison himself.

He concludes this astounding letter in these words: "It is a little doubted that his [Livingston's] knolege [sic] of Marshall's character has induced him to bring this action. His twistifications of the law in the case of Marbury, in that of Burr, & the late Yazoo case shew how dexterously he can reconcile law to his personal biasses: and nobody seems to doubt that he is ready prepared to decide that Livingston's right to the batture is unquestionable, and that I am bound to pay for it with my private fortune."[280]

The next day Jefferson wrote Tyler that he had "laid it down as a law" to himself "never to embarrass the President with any solicitations." Yet, in Tyler's case, says Jefferson, "I ... have done it with all my heart, and in the full belief that I serve him and the public in urging the appointment." For, Jefferson confides to the man who, in case Madison named him, would, with Marshall, hear the suit, "we have long enough suffered under the base prostitution of the law to party passions in one judge, and the imbecility of another.

"In the hands of one [Marshall] the law is nothing more than an ambiguous text, to be explained by his sophistry into any meaning which may subserve his personal malice. Nor can any milk-and-water associate maintain his own independence, and by a firm pursuance of what the law really is, extend its protection to the citizens or the public.... And where you cannot induce your colleague to do what is right, you will be firm enough to hinder him from doing what is wrong, and by opposing sense to sophistry, leave the juries free to follow their own judgment."[281]

Upon the death of Judge Griffin in the following December, John Tyler was appointed to succeed him.

On September 13, 1810, William Cushing, Associate Justice of the Supreme Court, died. Only three Federalists now remained on the Supreme Bench, Samuel Chase, Bushrod Washington, and John Marshall. The other Justices, William Johnson of South Carolina, Brockholst Livingston of New York, and Thomas Todd of Kentucky, were Republicans, appointed by Jefferson. The selection of Cushing's successor would give the majority of the court to the Republican Party for the first time since its organization. That Madison would fill the vacancy by one of his own following was certain; but this was not enough to satisfy Jefferson, who wanted to make sure that the man selected was one who would not fall under Marshall's baleful influence. If Griffin did not die in time, Jefferson's fate in the batture litigation would be in Marshall's hands.

Should Griffin be polite enough to breathe his last promptly and Tyler be appointed in season, still Jefferson would not feel safe--the case might go to the jury, and who could tell what their verdict would be under Marshall's instructions? Even Tyler might not be able to "hinder" Marshall "from wrong doing"; for nothing was more probable than that, no matter what the issue of the case might be, it would be carried to the Supreme Court if any ground for appeal could be found. Certainly Jefferson would take it there if the case should go against him. It was vital, therefore, that the latest vacancy on the Supreme Bench should also be filled by a man on whom Jefferson could depend.

The new Justice must come from New England, Cushing having presided over that circuit. Republican lawyers there, fit for the place, were at that time extremely hard to find. Jefferson had been corresponding about the batture case with Gallatin, who had been his Secretary of the Treasury and continued in that office under Madison. The moment he learned of Cushing's death, Jefferson wrote to Gallatin in answer to a letter from that able man, admitting that "the Batture ... could not be within the scope of the law ... against squatters," under color of which Livingston had been forcibly ousted from that property. Jefferson adds: "I should so adjudge myself; yet I observe many opinions otherwise, and in defence against a spadassin it is lawful to use all weapons." The case is complex; still no unbiased man "can doubt what the issue of the case ought to be. What it will be, no one can tell.

"The judge's [Marshall's] inveteracy is profound, and his mind of that gloomy malignity which will never let him forego the opportunity of satiating it on a victim. His decisions, his instructions to a jury, his allowances and disallowances and garblings of evidence, must all be subjects of appeal.... And to whom is my appeal? From the judge in Burr's case to himself and his associate judges in the case of Marbury V. Madison.

"Not exactly, however. I observe old Cushing is dead.... The event is a fortunate one, and so timed as to be a Godsend to me. I am sure its importance to the nation will be felt, and the occasion employed to complete the great operation they have so long been executing, by the appointment of a decided Republican, with nothing equivocal about him. But who will it be?"

Jefferson warmly recommends Levi Lincoln, his former Attorney-General. Since the new Justice must come from New England, "can any other bring equal qualifications?... I know he was not deemed a profound common lawyer; but was there ever a profound common lawyer known in one of the Eastern States? There never was, nor never can be, one from those States.... Mr. Lincoln is ... as learned in their laws as any one they have."[282]

After allowing time for Gallatin to carry this message to the President, Jefferson wrote directly to Madison. He congratulates him on "the revocation of the French decrees"; abuses Great Britain for her "principle" of "the exclusive right to the sea by conquest"; and then comes to the matter of the vacancy on the Supreme Bench.

"Another circumstance of congratulation is the death of Cushing," which "gives an opportunity of closing the reformation [the Republican triumph of 1800] by a successor of unquestionable republican principles." Jefferson suggests Lincoln. "Were he out of the way," then Gideon Granger ought to be chosen, "tho' I am sensible that J.[ohn] R.[andolph] has been able to lessen the confidence of many in him.[283]... As the choice must be of a New Englander, ... I confess I know of none but these two characters." Of course there was Joseph Story, but he is "unquestionably a tory," and "too young."[284]

Madison strove to follow Jefferson's desires. Cushing's place was promptly offered to Lincoln, who declined it because of approaching blindness. Granger, of course, was impossible--the Senate would not have confirmed him. So Alexander Wolcott, "an active Democratic politician of Connecticut," of mediocre ability and "rather dubious ... character,"[285] was nominated; but the Senate rejected him. It seemed impossible to find a competent lawyer in New England who would satisfy Jefferson's requirements. John Quincy Adams, who had deserted the Federalist Party and acted with the Republicans, and who was then Minister to Russia, was appointed and promptly confirmed. Jefferson himself had not denounced Marshall so scathingly as had Adams in his report to the Senate on the proposed expulsion of Senator John Smith of Ohio.[286] It was certain that he would not, as Associate Justice, be controlled by the Chief Justice. But Adams preferred to continue in his diplomatic post, and refused the appointment.

Thus Story became the only possible choice. After all, he was still believed to be a Republican by everybody except Jefferson and the few Federalist leaders who had been discreetly cultivating him. At least his appointment would not be so bad as the selection of an out-and-out Federalist. On November 18, 1811, therefore, Joseph Story was made an Associate Justice of the Supreme Court of the United States. In Massachusetts his appointment "was ridiculed and condemned."[287]

Although Jefferson afterward declared that he "had a strong desire that the public should have been satisfied by a trial on the merits,"[288] he was willing that his counsel should prevent the case from coming to trial if they could. Fearing, however, that they would not succeed, Jefferson had prepared, for the use of his attorneys, an exhaustive brief covering his version of the facts and his views of the law. Spencer Roane, Judge of the Virginia Court of Appeals, and as hot a partisan of Jefferson as he was an implacable enemy of Marshall, read this manuscript and gave Tyler "some of the outlines of it." Tyler explains this to Jefferson after the decision in his favor, and adds that, much as Tyler wanted to get hold of Jefferson's brief, still, "as soon as I had received the appointment ... (which I owe to your favor in great measure), it became my duty to shut the door against every observation which might in any way be derived from either side, lest the impudent British faction, who had enlisted on Livingston's side, might suppose an undue influence had seized upon me."[289]

The case aroused keen interest in Virginia and, indeed, throughout the country. Jefferson was still the leader of the Republican Party and was as much beloved and revered as ever by the great majority of the people. When, therefore, he was sued for so large a sum of money, the fact excited wide and lively attention. That the plaintiff was such a man as Edward Livingston gave sharper edge to the general interest. Especially among lawyers, curiosity as to the outcome was keen. In Richmond, of course, "great expectation was excited."

When the case came on for hearing, Tyler was so ill from a very painful affliction that he could scarcely sit through the hearing; but he persisted because he had "determined to give an opinion." The question of jurisdiction alone was argued and only this was decided. Both judges agreed that the court had no jurisdiction, though Marshall did so with great reluctance. He wished "to carry the cause to the Supreme Court, by adjournment or somehow or other; but," says Tyler in his report to Jefferson, "I pressed the propriety of [its] being decided."[290]

Marshall, however, delivered a written opinion in which he gravely reflected on Jefferson's good faith in avoiding a trial on the merits. If the court, upon mere technicality, were prevented from trying and deciding the case, "the injured party may have a clear right without a remedy"; and that, too, "in a case where a person who has done the wrong, and who ought to make the compensation, is within the power of the court." The situation created by Jefferson's objection to the court's jurisdiction was unfortunate: "Where the remedy is against the person, and is within the power of the court, I have not yet discerned a reason, other than a technical one, which can satisfy my judgment" why the case should not be tried and justice done.

"If, however," continues Marshall, "this technical reason is firmly established, if all other judges respect it, I cannot venture to disregard it," no matter how wrong in principle and injurious to Livingston the Chief Justice might think it. If Lord Mansfield, "one of the greatest judges who ever sat upon any bench, and who has done more than any other, to remove those technical impediments which ... too long continued to obstruct the course of substantial justice," had vainly attempted to remove the very "technical impediments" which Jefferson had thrown in Livingston's way, Marshall would not make the same fruitless effort.

To be sure, the technical point raised by Jefferson's counsel was a legal fiction derived from "the common law of England"; but "this common law has been adopted by the legislature of Virginia"; and "had it not been adopted, I should have thought it in force." Thus Marshall, by innuendo, blames Jefferson for invoking, for his own protection, a technicality of that very common law which the latter had so often and so violently denounced. For the third time Marshall deplores the use of a technicality "which produces the inconvenience of a clear right without a remedy." "Other judges have felt the weight of this argument, and have struggled ineffectually against" it; so, he concluded, "I must submit to it."[291]

Thus it was that Jefferson at last escaped; for it was nothing less than an escape. What a decision on the merits of the case would have been is shown by the opinion of Chancellor Kent, stated with his characteristic emphasis. Jefferson was anxious that the public should think that he was in the right. "Mr. Livingston's suit having gone off on the plea to the jurisdiction, it's foundation remains of course unexplained to the public. I have therefore concluded to make it public thro' the ... press.... I am well satisfied to be relieved from it, altho' I had a strong desire that the public should have been satisfied by a trial on the merits."[292] Accordingly, Jefferson prepared his statement of the controversy and, curiously enough, published it just before Livingston's suit against the United States Marshal in New Orleans was approaching decision. To no other of his documents did he give more patient and laborious care. Livingston replied in an article[293] which justified the great reputation for ability and learning he was soon to acquire in both Europe and America.[294] Kent followed this written debate carefully. When Livingston's answer appeared, Kent wrote him: "I read it eagerly and studied it thoroughly, with a re-examination of Jefferson as I went along; and I should now be as willing to subscribe my name to the validity of your title and to the atrocious injustice you have received as to any opinion contained in Johnson's Reports."[295]

Marshall's attitude in the Batture litigation intensified Jefferson's hatred for the Chief Justice, while Jefferson's conduct in the whole matter still further deepened Marshall's already profound belief that the great exponent of popular government was dishonest and cowardly. Story shared Marshall's views; indeed, the Batture controversy may be said to have furnished that personal element which completed Story's forming antagonism to Jefferson. "Who ... can remember, without regret, his conduct in relation to the batture of New Orleans?" wrote Story many years afterward.[296]

The Chief Justice attributed the attacks which Jefferson made upon him in later years to his opinion in Livingston vs. Jefferson, and to the views he was known to have held as to the merits of that case and Jefferson's course in relation to it. "The Batture will never be forgotten," wrote the Chief Justice some years later when commenting on the attacks upon the National Judiciary which he attributed to Jefferson.[297] Again: "The case of the mandamus[298] may be the cloak, but the batture is recollected with still more resentment."[299]

Events thus sharpened the hostility of Jefferson and his following to Marshall, but drew closer the bonds between the Chief Justice and Joseph Story. Once under Marshall's pleasing, steady, powerful influence, Story sped along the path of Nationalism until sometimes he was ahead of the great constructor who, as he advanced, was building an enduring and practicable highway.

FOOTNOTES:

[156] Jefferson to Madison, May 25,1810, Works: Ford, XI, 140.Return to passage

"There is no man in the court that strikes me like Marshall.... I have never seen a man of whose intellect I had a higher opinion." (Webster to his brother, March 28, 1814, Private Correspondence of Daniel Webster: Webster, I, 244.)

[157] "In the possession of an ordinary man ... it [the office of Chief Justice] would be very apt to disgrace him." (Story to McLean, Oct. 12, 1835, Story, II, 208.)Return to passage

[158] Justice Duval's name is often, incorrectly, spelled with two "l's."Return to passage

[159] "No man had ever a stronger influence upon the minds of others." (American Jurist, XIV, 242.)Return to passage

[160] Ingersoll: Historical Sketch of the Second War between the United States and Great Britain, 2d Series, I, 74.Return to passage

[161] "He was not, in any sense of the word, a learned man." (George S. Hillard in North American Review, XLII, 224.)Return to passage

[162] See vol. I, 163, of this work; also Southern Literary Messenger, XVII, 154; and Terhune: Colonial Homesteads, 92.Return to passage

[163] See vol. II, 139, of this work.Return to passage

[164] Mordecai: Richmond in By-Gone Days, 64.Return to passage

[165] Terhune, 91.Return to passage

[166] Ib. 92; and see Howe: Historical Collections of Virginia, 266.Return to passage

[167] Green Bag, VIII, 486.Return to passage

[168] Personal experience related by Dr. William P. Palmer to Dr. J. Franklin Jameson, and by him to the author.Return to passage

[169] Meade: Old Churches, Ministers and Families of Virginia, II, 222.Return to passage

[170] Magazine of American History, XII, 70; also Green Bag, VIII, 486.Return to passage

[171] Anderson, 214.Return to passage

[172] The stage schedule was much shorter, but the hours of travel very long. The stage left Petersburg at 3 A.M., arrived at Warrenton at 8 P.M., left Warrenton at 3 A.M., and arrived at Raleigh the same night. (Data furnished by Professor Archibald Henderson.) The stage was seldom on time, however, and the hardships of traveling in it very great. Marshall used it only when in extreme haste, a state of mind into which he seldom would be driven by any emergency.Return to passage

[173] Mordecai, 64-65. Bishop Meade says of Marshall on his trips to Fauquier County, "Servant he had none." (Meade, II, 222.)Return to passage

[174] As related by M. D. Haywood, Librarian of the Supreme Court of North Carolina, to Professor Archibald Henderson and by him to the author; and see Harper's Magazine, LXX, 610; World's Work, I, 395.Return to passage

[175] Judge James C. MacRae in John Marshall--Life, Character and Judicial Services: Dillon, II, 68.Return to passage

[176] As late as April, 1811, the population of Raleigh was between six hundred and seven hundred. Nearly all the houses were of wood. By 1810 there were only four brick houses in the town.Return to passage

[177] Magazine of American History, XII, 69.Return to passage

[178] Account of eye-witness as related by Dr. Kemp P. Battle of Raleigh to Professor Henderson and by him to the author.Return to passage

Another tavern was opened about 1806 by one John Marshall. He had been one of the first commissioners of Raleigh, serving until 1797. He was no relation whatever to the Chief Justice. As already stated (vol. I, footnote to 15, of this work) the name was a common one.

[179] Mr. W. J. Peele of Raleigh to Professor Henderson.Return to passage

[180] See infra, 154-56.Return to passage

[181] Haywood to Steele, June 19, 1805. (MS. supplied by Professor Henderson.)Return to passage

[182] World's Work, I, 395. This statement is supported by the testimony of Mr. Edward V. Valentine of Richmond, who has spent many years gathering and verifying data concerning Richmond and its early citizens. It is also confirmed by the Honorable James Keith, until recently President of the Court of Appeals of Virginia, and by others of the older residents of Richmond. For some opinions thus written, see chaps, IV, V, and VI of this volume.Return to passage

[183] Green Bag, VIII, 484. Sympathetic Richmond even ordered the town clock and town bell muffled. (Meade, II, 222.)Return to passage

[184] Statements of two eye-witnesses, Dr. Richard Crouch and William F. Gray, to Mr. Edward V. Valentine and by him related to the author.Return to passage

[185] Accounts given Professor J. Franklin Jameson by old residents of Richmond, and by Professor Jameson to the author.Return to passage

[186] Marshall to his wife, Washington, Feb. 16, 1818, MS.Return to passage

[187] Same to same, March 12, 1826, MS.Return to passage

[188] Same to same, Feb. 19, 1829, MS.Return to passage

[189] Marshall to his wife, Washington, Jan. 30, 1831, MS.Return to passage

[190] See infra, chap. X.Return to passage

[191] Mrs. Marshall did not write to her children, it would seem. When he was in Richmond, the Chief Justice himself sent messages from her which were ordinary expressions of affection.Return to passage

"Your mother is very much gratified with the account you give from yourself and Claudia of all your affairs & especially of your children and hopes for its continuance. She looks with some impatience for similar information from John. She desires me to send her love to all the family including Miss Maria and to tell you that this hot weather distresses her very much & she wishes you also to give her love to John & Elizabeth & their children." (Marshall to his son James K. Marshall, Richmond, July 3, 1827, MS.)

[192] See vol. I, footnote to 189, of this work.Return to passage

[193] In Leeds Parish, near Oakhill, Fauquier County.Return to passage

[194] Meade, II, 221-22.Return to passage

[195] Green Bag, VIII, 487.Return to passage

[196] Howe, 275-76.Return to passage

[197] Ib.Return to passage

[198] This story was originally published in the Winchester Republican. The incident is said to have occurred at McGuire's hotel in Winchester. The newspaper account is reproduced in the Charleston (S.C.) edition (1845) of Howe's book, 275-76.Return to passage

[199] Joseph Story in Dillon, III, 364-66.Return to passage

[200] Martineau: Retrospect of Western Travels, I, 150.Return to passage

[201] North American Review, XX, 444-45.Return to passage

[202] Marshall to Story, Oct. 29, 1828, Proceedings, Massachusetts Historical Society, 2d Series, XIV, 337-38.Return to passage

[203] Thomas, born July 21, 1784; Jacquelin Ambler, born December 3, 1787; Mary, born September 17, 1795; John, born January 15, 1798; James Keith, born February 13, 1800; Edward Carrington, born January 13, 1805. (Paxton: Marshall Family, Genealogical Chart.)Return to passage

[204] Edward Carrington was the only son to receive the degree of A.B. from Harvard (1826).Return to passage

[205] Paxton, 100.Return to passage

[206] Marshall to Story, June 26, 1831, Proceedings, Mass. Hist. Soc. 2d Series, XIV, 344-46.Return to passage

[207] See vol. I, 55-56, of this work.Return to passage

[208] Howe (Charleston, S.C., ed. of 1845), 266.Return to passage

[209] Meade, II, 222.Return to passage

[210] Tyler: Tyler, I, 220; and see vol. II, 182-83, of this work.Return to passage

[211] White: A Sketch of Chester Harding, Artist, 195-96.Return to passage

[212] Lippincott's Magazine, II, 624. Paulding makes this comment on Marshall: "In his hours of relaxation he was as full of fun and as natural as a child. He entered into the spirit of athletic exercises with the ardor of youth; and at sixty-odd years of age was one of the best quoit-players in Virginia." (Ib. 626.)Return to passage

[213] American Turf Register and Sporting Magazine (1829), I, 41-42; and see Mordecai, 188-89.Return to passage

[214] Recipe for the Quoit Club punch, Green Bag, VIII, 482. This recipe was used for many years by the Richmond Light Infantry Blues.Return to passage

[215] See vol. II, 183, of this work.Return to passage

[216] On these occasions Mrs. Marshall spent the nights at the house of her daughter or sister.Return to passage

[217] For an extended description of Marshall's "lawyer dinners" see Terhune, 85-87.Return to passage

[218] See vol. I, 44-45, 153-54, of this work.Return to passage

[219] Marshall to Story, Nov. 26, 1826, Story, I, 506.Return to passage

[220] Story to his wife, Feb. 26, 1832, ib. II, 84.Return to passage

[221] Marshall to Story, Sept. 30, 1829, Proceedings, Mass. Hist. Soc. 2d Series, XIV, 341.Return to passage

[222] Statement of Miss Elizabeth Marshall of Leeds Manor to the author.Return to passage

[223] Meade, I, footnote to 99.Return to passage

[224] World's Work, I, 395.Return to passage

[225] Gustavus Schmidt in Louisiana Law Journal (1841), I, No. 1, 85-86. Mr. Schmidt's description is of Marshall in the court-room at Richmond when holding the United States Circuit Court at that place. Ticknor, Story, and others show that the same was true in Washington.Return to passage

[226] Quincy: Figures of the Past, 242-43.Return to passage

[227] Story to Fay, Feb. 25, 1808, Story, I, 166-67.Return to passage

[228] Story to Martineau, Oct. 8, 1835, Story, II, 205.Return to passage

[229] Ib. I, 522.Return to passage

[230] Gustavus Schmidt in Louisiana Law Journal (1841), I, No. 1, 85-86.Return to passage

[231] Related to the author by Mr. Sussex D. Davis of the Philadelphia bar.Return to passage

[232] Related to the author by Thomas Marshall Smith of Baltimore, a descendant of Marshall. Mr. Smith says that this story has been handed down through three generations of his family.Return to passage

[233] Marshall to his wife, Feb. 14, 1817, MS.Return to passage

[234] Same to same, Jan. 4, 1823, MS.Return to passage

[235] For excellent descriptions of Washington society during Marshall's period see the letters of Moss Kent, then a Representative in Congress. These MSS. are in the Library of Congress. Also see Story to his wife, Feb. 7, 1810, Story, I, 196.Return to passage

[236] Marshall to his wife, Jan. 30, 1831, MS.Return to passage

[237] This was painted for the Boston Athenæum. See frontispiece in vol. III. The other portrait by Harding, painted in Richmond (see supra, 76), was given to Story who presented it to the Harvard Law School.Return to passage

[238] White: Sketch of Chester Harding, 194-96.Return to passage

For the Chief Justice to lose or forget articles of clothing was nothing unusual. "He lost a coat, when he dined at the Secretary of the Navy's," writes Story who had been making a search for Marshall's missing garment. (Story to Webster, March 18, 1828, Story MSS. Mass. Hist. Soc.)

[239] Story, II, 504-05.Return to passage

[240] Story to Williams, Feb. 16, 1812, ib. I, 214.Return to passage

[241] Story to Fay, Feb. 24, 1812, ib. 215.Return to passage

[242] Ib.Return to passage

[243] Story to his wife, March 5, 1812, Story, I, 217.Return to passage

[244] Same to same, March 12, 1812, ib. 219.Return to passage

[245] Magazine of American History, XII, 69; and see Quincy: Figures of the Past, 189-90. This tale, gathering picturesqueness as it was passed by word of mouth during many years, had its variations.Return to passage

[246] Marshall to Tazewell, Jan. 20, 1827, MS.Return to passage

[247] Wirt to Delaplaine, Nov. 5, 1818, Kennedy: Memoirs of the Life of William Wirt, II, 85.Return to passage

[248] Bancroft to his wife, Jan. 23, 1832, Howe: Life and Letters of George Bancroft, I, 202.Return to passage

[249] Even Jefferson, in his bitterest attacks, never intimated anything against Marshall's integrity; and Spencer Roane, when assailing with great violence the opinion of the Chief Justice in M'Culloch vs. Maryland (see infra, chap, VI), paid a high tribute to the purity of his personal character.Return to passage

[250] Ticknor to his father, Feb. 1, 1815, Ticknor: Life, Letters, and Journals of George Ticknor, I, 33.Return to passage

[251] Description from personal observation, as quoted in Van Santvoord: Lives and Judicial Services of the Chief Justices, footnote to 363.Return to passage

[252] Ticknor to his father, as cited in note 1, supra.Return to passage

[253] Memoirs of John Quincy Adams: Adams, IX, 243.Return to passage

[254] Wirt to Carr, Dec. 30, 1827, Kennedy, 240. For Story's estimate of Marshall's personality see Dillon, III, 363-66.Return to passage

[255] "He was solicitous to hear arguments, and not to decide causes without hearing them. And no judge ever profited more by them. No matter whether the subject was new or old; familiar to his thoughts or remote from them; buried under a mass of obsolete learning, or developed for the first time yesterday--whatever was its nature, he courted argument, nay, he demanded it." (Story in Dillon, III, 377; and see vol. II, 177-80, of this work.)Return to passage

[256] See Story's description of Harper, Duponceau, Rawle, Dallas, Ingersoll, Lee, and Martin (Story to Fay, Feb. 16, 1808, Story, I, 162-64); and of Pinkney (notes supra); also see Warren: History of the American Bar, 257-63. We must remember, too, that Webster, Hopkinson, Emmet, Wirt, Ogden, Clay, and others of equal ability and accomplishments, practiced before the Supreme Court when Marshall was Chief Justice.Return to passage

[257] Story relates that a single case was argued for nine days. (Story to Fay, Feb. 16, 1808, Story, I, 162.)Return to passage

In the Charlestown Bridge case, argued in 1831, the opening counsel on each side occupied three days. (Story to Ashmun, March 10, 1831, ib. II, 51.)

Four years later Story writes: "We have now a case ... which has been under argument eight days, and will probably occupy five more." (Story to Fay, March 2, 1835, ib. 193.)

In the lower courts the arguments were even longer. "This is the fourteenth day since this argument was opened. Pinkney ... promised to speak only two hours and a half. He has now spoken two days, and is, at this moment, at it again for the third day." (Wirt to his wife, April 7, 1821, Kennedy, II, 119.)

[258] Story, I, 96.Return to passage

[259] Story, I, 2. Elisha Story is said to have been one of the "Indians" who threw overboard the tea at Boston; and he fought at Lexington. When the Revolution got under way, he entered the American Army as a surgeon and served for about two years, when he resigned because of his disgust with the management of the medical department. (Ib.)Return to passage

[260] Story to Duval, March 30, 1803, ib. 102.Return to passage

[261] Story to Williams, June 6, 1805, ib. 105-06.Return to passage

[262] Story, I, 128.Return to passage

[263] At first, Story supported the Embargo.Return to passage

[264] See vol. III, chap, X, of this work.Return to passage

[265] Otis to Harper, April 19, 1807, Morison: Otis, I, 283.Return to passage

[266] Cabot to Pickering, Jan. 28, 1808, Lodge: Cabot, 377.Return to passage

[267] Story to Fay, Feb. 16, 1808, Story, I, 162.Return to passage

[268] Moss Kent to James Kent, Feb. 1, 1817, Kent MSS. Lib. Cong.Return to passage

[269] Story, I, 140.Return to passage

[270] Jefferson to Gallatin, Sept. 27, 1810, Works: Ford, XI, footnote to 152-54.Return to passage

[271] See vol. II, 461-74, of this work.Return to passage

[272] See vol. III, chap, VI, of this work.Return to passage

[273] Hunt: Life of Edward Livingston, 138.Return to passage

[274] Ib. 140.Return to passage

[275] Annals, 10th Cong. 2d Sess. 702.Return to passage

[276] Annals, 11th Cong. 1st and 2d Sess. 323, 327-49, 418-19, 1373, 1617-18, 1694-1702.Return to passage

[277] See supra, 25, 35-41.Return to passage

[278] Tyler to Jefferson, May 12, 1810, Tyler: Tyler, I, 246-47.Return to passage

[279] Cyrus Griffin was educated in England; was a member of the first Legislature of Virginia after the Declaration of Independence; was a delegate to the Continental Congress in 1778-81, and again in 1787-88, and was President of that body during the last year of his service. He was made President of the Supreme Court of Admiralty, and held that office until the court was abolished. When the Constitution was adopted, and Washington elected President, one of his first acts, after the passage of the Ellsworth Judiciary Law, was to appoint Judge Griffin to the newly created office of Judge of the United States Court for the District of Virginia. It is thus evident that Jefferson's statement was not accurate.Return to passage

[280] Jefferson to Madison, May 25, 1810, Works: Ford, XI, 139-41.Return to passage

[281] Jefferson to Tyler, May 26, 1810, Tyler: Tyler, I, 247-48; also Works: Ford, XI, footnote to 141-43.Return to passage

[282] Jefferson to Gallatin, Sept. 27, 1810, Works: Ford, XI, footnote to 152-54.Return to passage

[283] Gideon Granger, as Jefferson's Postmaster-General, had lobbied on the floor of the House for the Yazoo Bill, offering government contracts for votes. He was denounced by Randolph in one of the most scathing arraignments ever heard in Congress. (See vol. III, 578-79, of this work.)Return to passage

[284] Jefferson to Madison, Oct. 15, 1810, Works: Ford, XI, 150-52. Granger was an eager candidate for the place, and had asked Jefferson's support. In assuring him that it was given, Jefferson tells Granger of his "esteem & approbation," and adds that the appointment of "a firm unequivocating republican" is vital. (Jefferson to Granger, Oct. 22, 1810, ib. footnote to 155.)Return to passage

[285] Hildreth: History of the United States, VI, 241; and see Adams: U.S. V, 359-60.Return to passage

[286] See vol. III, 541-43, of this work.Return to passage

[287] Story, I, 212.Return to passage

[288] Jefferson to Wirt, April 12, 1812, Works: Ford, XI, 227.Return to passage

[289] Tyler to Jefferson, May 17, 1812, Tyler: Tyler, I, 263.Return to passage

[290] Tyler to Jefferson, May 17, 1812, Tyler: Tyler, I, 263-64.Return to passage

[291] 1 Brockenbrough, 206-12.Return to passage

[292] Jefferson to Wirt, April 12, 1812, Works: Ford, XI, 226-27. On the Batture controversy see Hildreth, VI, 143-48.Return to passage

[293] The articles of both Jefferson and Livingston are to be found in Hall's American Law Journal (Philadelphia, 1816), vol. V, 1-91, 113-289. A brief but valuable summary of Livingston's reply to Jefferson is found in Hunt: Livingston, 143-80. For an abstract of Jefferson's attack, see Randall: Life of Thomas Jefferson, III, 266-68.Return to passage

[294] See Hunt: Livingston, 276-80.Return to passage

[295] Kent to Livingston, May 13, 1814, Hunt: Livingston, 181-82. Kent was appointed Chancellor of the State of New York, Feb. 25, 1814. His opinions are contained in Johnson's Chancery Reports, to which he refers in this letter.Return to passage

For twenty years Livingston fought for what he believed to be his rights to the batture, and, in the end, was successful; but in such fashion that the full value of the property was only realized by his family long after his death.

Notwithstanding Jefferson's hostility, Livingston grew in public favor, was elected to the Louisiana State Legislature and then to Congress, where his work was notable. Later, in 1829, he was chosen United States Senator from that State; and, after serving one term, was appointed Secretary of State by President Jackson. In this office he prepared most of the President's state papers and wrote Jackson's great Nullification Proclamation in 1832.

Livingston was then sent as Minister to France and, by his brilliant conduct of the negotiations over the French Spoliation Claims, secured the payment of them. He won fame throughout Europe and Spanish America by his various works on the penal code and code of procedure. In the learning of the law he was not far inferior to Story and Kent.

Aside from one or two sketches, there is no account of his life except an inadequate biography by Charles H. Hunt.

[296] Story, I, 186.Return to passage

[297] Marshall to Story, Sept. 18, 1821, Proceedings, Mass. Hist. Soc. 2d series, XIV, 330; and see infra, 363-64.Return to passage

[298] Marbury vs. Madison.Return to passage

[299] Marshall to Story, July 13, 1821, Proceedings, Mass. Hist. Soc. 2d series, XIV, 328-29.Return to passage

III. INTERNATIONAL LAW

It was Marshall's lot in more than one case to blaze the way in the establishment of rules of international conduct. (John Bassett Moore.)

The defects of our system of government must be remedied, not by the judiciary, but by the sovereign power of the people. (Judge William H. Cabell of the Virginia Court of Appeals.)

I look upon this question as one which may affect, in its consequences, the permanence of the American Union. (Justice William Johnson of the Supreme Court.)

While Marshall unhesitatingly struck down State laws and shackled State authority, he just as firmly and promptly upheld National laws and National authority. In Marbury vs. Madison he proclaimed the power of National courts over Congressional legislation so that the denial of that power might not be admitted at a time when, to do so, would have yielded forever the vital principle of Judiciary supervision.[300] But that opinion is the significant exception to his otherwise unbroken practice of recognizing the validity of acts of Congress.

He carried out this practice even when he believed the law before him to be unwise in itself, injurious to the Nation, and, indeed, of extremely doubtful constitutionality. This course was but a part of Marshall's Nationalist policy. The purpose of his life was to strengthen and enlarge the powers of the National Government; to coördinate into harmonious operation its various departments; and to make it in fact, as well as in principle, the agent of a people constituting a single, a strong, and efficient Nation.

A good example of his maintenance of National laws is his treatment of the Embargo, Non-Importation, and Non-Intercourse Acts. The hostility of the Chief Justice to those statutes was, as we have seen, extreme; the political party of which he was an ardent member had denounced them as unconstitutional; his closest friends thought them invalid. He himself considered them to be, if within the Constitution at all, on the periphery of it;[301] he believed them to be ruinous to the country and meant as an undeserved blow at Great Britain upon whose victory over France depended, in his opinion, the safety of America and the rescue of imperiled civilization.

Nevertheless, not once did Marshall, in his many opinions, so much as suggest a doubt of the validity of those measures, when cases came before him arising from them and requiring their interpretation and application. Most of these decisions are not now of the slightest historical importance.[302] His opinions relating to the Embargo are, indeed, tiresome and dull, with scarcely a flash of genius to brighten them. Now and then, but so rarely that search for it is not worth making, a paragraph blazes with the statement of a great principle. In the case of the Ship Adventure and Her Cargo, one such statesmanlike expression illuminates the page. The Non-Intercourse Law forbade importation of British goods "from any foreign port or place whatever." The British ship Adventure had been captured by a French frigate and given to the master and crew of an American brig which the Frenchmen had previously taken. The Americans brought the Adventure into Norfolk, Virginia, and there claimed the proceeds of ship and cargo. The United States insisted that ship and cargo should be forfeited to the Government because brought in from "a foreign place." But, said Marshall on this point: "The broad navigable ocean, which is emphatically and truly termed the great highway of nations, cannot ... be denominated 'a foreign place.'... The sea is the common property of all nations. It belongs equally to all. None can appropriate it exclusively to themselves; nor is it 'foreign' to any."[303]

Where special learning, or the examination of the technicalities and nice distinctions of the law were required, Marshall did not shine. Of admiralty law in particular he knew little. The preparation of opinions in such cases he usually assigned to Story who, not unjustly, has been considered the father of American admiralty law.[304] Also, in knowledge of the intricate law of real estate, Story was the superior of Marshall and, indeed, of all the other members of the court. Story's preëminence in most branches of legal learning was admitted by his associates, all of whom gladly handed over to the youthful Justice more than his share of work. Story was flattered by the recognition. "My brethren were so kind as to place confidence in my researches,"[305] he tells his friend Judge Samuel Fay.

During the entire twenty-four years that Marshall and Story were together on the Supreme Bench the Chief Justice sought and accepted the younger man's judgment and frankly acknowledged his authority in every variety of legal questions, excepting only those of international law or the interpretation of the Constitution. "I wish to consult you on a case which to me who am not versed in admiralty proceedings has some difficulty," Marshall writes to Story in 1819.[306] In another letter Marshall asks Story's help on a "question of great consequence."[307] Again and again he requests the assistance of his learned junior associate.[308] Sometimes he addresses Story as though that erudite Justice were his superior.[309] Small wonder that John Marshall should declare that Story's "loss would be irreparable" to the Supreme Bench, if he should be appointed to the place made vacant by the death of Chief Justice Parker of Massachusetts.[310]

Only in his expositions of the Constitution did Marshall take supreme command. If he did anything preëminent, other than the infusing of life into that instrument and thus creating a steadying force in the rampant activities of the young American people, it was his contributions to international law, which were of the highest order.[311]

The first two decades of his labors as Chief Justice were prolific in problems involving international relations. The capture of neutral ships by the European belligerents; the complications incident to the struggle of Spanish provinces in South America for independence; the tangle of conflicting claims growing out of the African slave trade--the unsettled questions arising from all these sources made that period of Marshall's services unique in the number, importance, and novelty of cases requiring new and authoritative announcements of the law of nations. An outline of three or four of his opinions in such cases will show the quality of his work in that field of legal science and also illustrate his broad conception of some of the fundamentals of American statesmanship in foreign affairs.

His opinion in the case of the Schooner Exchange lays down principles which embrace much more than was involved in the question immediately before the court[312]--a practice habitual with Marshall and distinguishing him sharply from most jurists. The vessel in controversy, owned by citizens of Maryland, was, in 1810, captured by a French warship, armed, and taken into the French service. The capture was made under one of the decrees of Napoleon when the war between Great Britain and France was raging fiercely. This was the Rambouillet Decree of March 23, 1810, which because of the Non-Intercourse Act of March 1, 1809, ordered that American ships, entering French ports, be seized and sold.[313] The following year the Exchange, converted into a French national war-craft under the name of the Balaou, manned by a French crew, commanded by a French captain, Dennis M. Begon, put into the port of Philadelphia for repairs of injuries sustained in stress of weather. The former owners of the vessel libeled the ship, alleging that the capture was illegal and demanding their property.

In due course this case came before Marshall who, on March 3, 1812, delivered a long and exhaustive opinion, the effect of which is that the question of title to a ship having the character of a man-of-war is not justiciable in the courts of another country. The Chief Justice begins by avowing that he is "exploring an unbeaten path" and must rely, mainly, on "general principles." A nation's jurisdiction within its own territory is "necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself." The nation itself must consent to any restrictions upon its "full and complete power ... within its own territories."

Nations are "distinct sovereignties, possessing equal rights and equal independence"; and, since mutual intercourse is for mutual benefit, "all sovereigns have consented" in certain cases to relax their "absolute and complete jurisdiction within their respective territories.... Common usage, and ... common opinion growing out of that usage" may determine whether such consent has been given.[314] Even when a nation has not expressly stipulated to modify its jurisdiction, it would be guilty of bad faith if "suddenly and without previous notice" it violated "the usages and received obligations of the civilized world."

One sovereign is not "amenable" to another in any respect, and "can be supposed to enter a foreign territory only under an express license, or in the confidence that the immunities belonging to his independent sovereign station, though not expressly stipulated, are reserved by implication, and will be extended to him." From the facts that sovereigns have "perfect equality and absolute independence," and that mutual intercourse and "an interchange of good offices with each other" are to their common advantage, flows a class of cases in which all sovereigns are "understood to waive the exercise of a part of that complete exclusive territorial jurisdiction" which is "the attribute of every nation."

One of these cases "is admitted to be the exemption of the person of the sovereign from arrest or detention within a foreign territory. If he enters that territory with the knowledge and license of its sovereign, that license, although containing no stipulation exempting his person from arrest, is universally understood to imply such stipulation."[315] The protection of foreign ministers stands "on the same principles." The governments to which they are accredited need not expressly consent that these ministers shall receive immunity, but are "supposed to assent to it." This assent is implied from the fact that, "without such exemption, every sovereign would hazard his own dignity by employing a public minister abroad.... Therefore, a consent to receive him, implies a consent" that he shall be exempt from the territorial jurisdiction of the nation to which he is sent.[316]

The armies of one sovereign cannot pass through the territory of another without express permission; to do so would be a violation of faith. Marshall here enters into the reasons for this obvious rule. But the case is far otherwise, he says, as to "ships of war entering the ports of a friendly power." The same dangers and injuries do not attend the entrance of such vessels into a port as are inseparable from the march of an army through a country. But as to foreign vessels, "if there be no prohibition," of which notice has been given, "the ports of a friendly nation are considered as open to the public ships of all powers with whom it is at peace, and they are supposed to enter such ports and to remain in them while allowed to remain, under the protection of the government of the place."[317] Marshall goes into a long examination of whether the rule applies to ships of war, and concludes that it does. So the Exchange, now an armed vessel of France, rightfully came into the port of Philadelphia and, while there, is under the protection of the American Government.

In this situation can the title to the vessel be adjudicated by American courts? It cannot, because the schooner "must be considered as having come into the American territory under an implied promise, that while necessarily within it, and demeaning herself in a friendly manner, she should be exempt from the jurisdiction of the country."[318]

Over this general question there was much confusion and wrangling in the courts of various countries, but Marshall's opinion came to be universally accepted, and is the foundation of international law on that subject as it stands to-day.[319]

Scarcely any other judicial act of Marshall's life reveals so clearly his moral stature and strength. He was, as he declared, "exploring an unbeaten path," and could have rendered a contrary decision, sustaining it with plausible arguments. Had he allowed his feelings to influence his judgment; had he permitted his prejudices to affect his reason; had he heeded the desires of political friends--his opinion in the case of the Exchange would have been the reverse of what it was.

In the war then desolating Europe, he was an intense partisan of Great Britain and bitterly hostile to France.[320] He hated Napoleon with all the vigor of his being. He utterly disapproved of what he believed to be the Administration's truckling, or, at least, partiality, to the Emperor. Yet here was a ship, captured from Americans under the orders of that "satanic" ruler, a vessel armed by him and in his service. The emotions of John Marshall must have raged furiously; but he so utterly suppressed them that clear reason and considerations of statesmanship alone controlled him.

In the South American revolutions against Spain, American sailors generally and, indeed, the American people as a whole, ardently sympathized with those who sought to establish for themselves free and independent governments. Often American seamen took active part in the conflicts. On one such occasion three Yankee mariners, commissioned by the insurrectionary government of one of the revolting provinces, attacked a Spanish ship on the high seas, overawed the crew, and removed a large and valuable cargo. The offending sailors were indicted and tried in the United States Court for the District of Massachusetts.

Upon the many questions arising in this case, United States vs. Palmer,[321] the judges, Story of the Supreme Court, and John Davis, District Judge, disagreed and these questions were certified to the Supreme Court for decision. One of these questions was: What, in international law, is the status of a revolting province during civil war?[322] In an extended and closely reasoned opinion, largely devoted to the construction of the act of Congress on piracy, the Chief Justice lays down the rule that the relation of the United States to parts of countries engaged in internecine war is a question which must be determined by the political departments of the Government and not by the Judicial Department. Questions of this kind "belong ... to those who can declare what the law shall be; who can place the nation in such a position with respect to foreign powers as to their own judgment shall appear wise; to whom are entrusted all its foreign relations.... In such contests a nation may engage itself with the one party or the other; may observe absolute neutrality; may recognize the new state absolutely; or may make a limited recognition of it.

"The proceeding in courts must depend so entirely on the course of the government, that it is difficult to give a precise answer to questions which do not refer to a particular nation. It may be said, generally, that if the government remains neutral, and recognizes the existence of a civil war, its courts cannot consider as criminal those acts of hostility which war authorizes, and which the new government may direct against its enemy. To decide otherwise, would be to determine that the war prosecuted by one of the parties was unlawful, and would be to arraign the nation to which the court belongs against that party. This would transcend the limits prescribed to the judicial department."[323] So the Yankee "liberators" were set free.

Another instance of the haling of American citizens before the courts of the United States for having taken part in the wars of South American countries for liberation was the case of the Divina Pastora. This vessel was captured by a privateer manned and officered by Americans in the service of the United Provinces of Rio de la Plata. An American prize crew was placed on board the Spanish vessel which put into the port of New Bedford in stress of weather and was there libeled by the Spanish Consul. The United States District Court awarded restitution, the Circuit Court affirmed this decree, and the case was appealed to the Supreme Court.

Marshall held that the principle announced in the Palmer case governed the question arising from the capture of the Divina Pastora. "The United States, having recognized the existence of a civil war between Spain and her colonies, but remaining neutral, the courts of the Union are bound to consider as lawful those acts which war authorizes." Captures by privateers in the service of the revolting colonies are "regarded by us as other captures, jure belli, are regarded," unless our neutral rights or our laws or treaties are violated.[324]

The liberal statesman and humanitarian in Marshall on matters of foreign policy is often displayed in his international utterances. In the case of the Venus,[325] he dissented from the harsh judgment of the majority of the court, which clearly stated the cold law as it existed at the time, "that the property of an American citizen domiciled in a foreign country became, on the breaking out of war with that country, immediately confiscable as enemy's property, even though it was shipped before he had knowledge of the war."[326] Surely, said Marshall, that rule ought not to apply to a merchant who, when war breaks out, intends to leave the foreign country where he has been doing business. Whether or not his property is enemy property depends not alone on his residence in the enemy country, but also on his intention to remain after war begins. But it is plain that evidence of his intention can seldom, if ever, be given during peace and that it can be furnished only "after the war shall be known to him." Of consequence, "justice requires that subsequent testimony shall be received to prove a pre-existing fact."[327]

It is not true that extended residence in a foreign country in time of peace is evidence of intention to remain there permanently. "The stranger merely residing in a country during peace, however long his stay, ... cannot ... be considered as incorporated into that society, so as, immediately on a declaration of war, to become the enemy of his own."[328] Even the ancient writers on international law concede this principle. But modern commerce has sensibly influenced international law and greatly strengthened the common sense and generally accepted considerations just mentioned. All know, as a matter of everyday experience, that "merchants, while belonging politically to one society, are considered commercially as the members of another."[329] The real motives of the merchant should be taken into account.

Of the many cases in which Marshall rendered opinions touching upon international law, however, that of the Nereid[330] is perhaps the best known. The descriptions of the arguments in that controversy, and of the court when they were being made, are the most vivid and accurate that have been preserved of the Supreme Bench and the attorneys who practiced before it at that time. Because of this fact an account of the hearing in this celebrated case will be helpful to a realization of similar scenes.

The burning of the Capitol by the British in 1814 left the Supreme Court without its basement room in that edifice; at the time the case of the Nereid was heard, and for two years afterward,[331] that tribunal held its sessions in the house of Elias Boudinot Caldwell, the clerk of the court, on Capitol Hill.[332] Marshall and the Associate Justices sat "inconveniently at the upper end" of an uncomfortable room "unfit for the purpose for which it is used."[333] In the space before the court were the counsel and other lawyers who had gathered to hear the argument. Back of them were the spectators. On the occasion of this hearing, the room was well filled by members of the legal profession and by laymen, for everybody looked forward to a brilliant legal debate.

Nor were these expectations vain. The question was as to whether a certain cargo owned by neutrals, but found in an enemy ship, should be restored. The claimants were represented by J. Ogden Hoffman of New York and the universally known and talked of Thomas Addis Emmet, the Irish patriot whose pathetic experiences, not less than his brilliant talents, appealed strongly to Americans of that day. For the captors appeared Alexander J. Dallas of Pennsylvania and that strangest and most talented advocate of his time, William Pinkney of Maryland, exquisite dandy and profound lawyer,[334] affected fop and accomplished diplomat, insolent as he was able, haughty[335] as he was learned.

George Ticknor gives a vivid description of the judges and lawyers. Marshall's neglected clothing was concealed by his flowing black robes, and his unkempt hair was combed, tied, and "fully powdered." The Associate Justices were similarly robed and powdered, and all "looked dignified." Justice Bushrod Washington, "a little sharp-faced gentleman with only one eye, and a profusion of snuff distributed over his face," did not, perhaps, add to the impressive appearance of the tribunal; but the noble features and stately bearing of William Johnson, the handsome face and erect attitude of young Joseph Story, and the bald-headed, scholarly looking Brockholst Livingston, sitting beside Marshall, adequately filled in the picture of which he was the center.

Opinions were read by Marshall and Story, but evidently they bored the nervous Pinkney, who "was very restless, frequently moved his seat, and, when sitting, showed by the convulsive twitches of his face how anxious he was to come to the conflict. At last the judges ceased to read, and he sprang into the arena like a lion who has been loosed by his keepers on the gladiator that awaited him." This large, stout man wore "corsets to diminish his bulk," used "cosmetics ... to smooth and soften a skin growing somewhat wrinkled and rigid with age," and dressed "in a style which would be thought foppish in a much younger man."[336] His harsh, unmusical voice, grating and high in tone, no less than his exaggerated fashionable attire, at first repelled; but these defects were soon forgotten because of "his clear and forcible manner" of speaking, "his powerful and commanding eloquence, occasionally illuminated with sparkling lights, but always logical and appropriate, and above all, his accurate and discriminating law knowledge, which he pours out with wonderful precision."[337]

Aloof, affected, overbearing[338] as he was, Pinkney overcame prejudice and compelled admiration "by force of eloquence, logic and legal learning and by the display of naked talent," testifies Ticknor, who adds that Pinkney "left behind him ... all the public speaking I had ever heard."[339] Emmet, the Irish exile, "older in sorrows than in years," with "an appearance of premature age," and wearing a "settled melancholy in his countenance," spoke directly to the point and with eloquence as persuasive as that of Pinkney was compelling.[340] Pinkney had insulted Emmet in a previous argument, and Marshall was so apprehensive that the Irish lawyer would now attack his opponent that Justice Livingston had to reassure the Chief Justice.[341]

The court was as much interested in the oratory as in the arguments of the counsel. Story's letters are rich in comment on the style and manner of the leading advocates. At the hearing of a cause at about the same time as that of the Nereid, he tells his wife that Pinkney and Samuel Dexter of Massachusetts "have called crowded houses; all the belles of the city have attended, and have been entranced for hours." Dexter was "calm, collected, and forcible, appealing to the judgment." Pinkney, "vivacious, sparkling, and glowing," although not "as close in his logic as Mr. Dexter," but "step[ping] aside at will from the path, and strew[ing] flowers of rhetoric around him."[342]

The attendance of women at arguments before the Supreme Court had as much effect on the performance of counsel at this period as on the oratory delivered in House and Senate. One of the belles of Washington jotted down what took place on one such occasion. "Curiosity led me, ... to join the female crowd who throng the court room. A place in which I think women have no business.... One day Mr. Pinckney [sic] had finished his argument and was just about seating himself when Mrs. Madison and a train of ladies enter'd,--he recommenced, went over the same ground, using fewer arguments, but scattering more flowers. And the day I was there I am certain he thought more of the female part of his audience than of the court, and on concluding, he recognized their presence, when he said, 'He would not weary the court, by going thro a long list of cases to prove his argument, as it would not only be fatiguing to them, but inimical to the laws of good taste, which on the present occasion, (bowing low) he wished to obey."[343]

This, then, is a fairly accurate picture of the Supreme Court of the United States when the great arguments were made before it and its judgments delivered through the historic opinions of Marshall--such the conduct of counsel, the appearance of the Justices, the auditors in attendance. Always, then, when thinking of the hearings in the Supreme Court while he was Chief Justice, we must bear in mind some such scene as that just described.

William Pinkney, the incomparable and enigmatic, passed away in time; but his place was taken by Daniel Webster, as able if not so accomplished, quite as interesting from the human point of view, and almost as picturesque. The lively, virile Clay succeeded the solid and methodical Dexter; and a procession of other eminent statesmen files past our eyes in the wake of those whose distinction for the moment had persuaded their admirers that their equals never would be seen again. It is essential to an understanding of the time that we firmly fix in our minds that the lawyers, no less than the judges, of that day, were publicists as well as lawyers. They were, indeed, statesmen, having deep in their minds the well-being of their Nation even more than the success of their clients.

Briefly stated, the facts in the case of the Nereid were as follows: More than a year after our second war with Great Britain had begun, one Manuel Pinto of Buenos Aires chartered the heavily armed British merchant ship, the Nereid, to take a cargo from London to the South American city and another back to the British metropolis. The Nereid sailed under the protection of a British naval convoy. The outgoing cargo belonged partly to Pinto, partly to other Spaniards, and partly to British subjects. When approaching Madeira an American privateer attacked the Nereid and, after a brief fight, captured the British vessel and took her to New York as a prize. The British part of the cargo was condemned without contest. That part belonging to Pinto and the other Spaniards was also awarded to the captors, but over the earnest opposition of the owners, who appealed to the Supreme Court. The arguments before the Supreme Court were long and uncommonly able. Those of Pinkney and Emmet, however, contained much florid "eloquence."[344]

Space permits no summary of these addresses; the most that can be given here is the substance of Marshall's very long and tedious opinion which is of no historical interest, except that part of it dealing with international law. The Chief Justice stated this capital question: "Does the treaty between Spain and the United States subject the goods of either party, being neutral, to condemnation as enemy property, if found by the other in a vessel of an enemy? That treaty stipulates that neutral bottoms shall make neutral goods, but contains no stipulation that enemy bottoms shall communicate the hostile character to the cargo. It is contended by the captors that the two principles are so completely identified that the stipulation of the one necessarily includes the other."

It was, said Marshall, "a part of the original law of nations" that enemy goods in friendly vessels "are prize of war," and that friendly goods in enemy vessels must be restored if captured. The reason of this rule was that "war gives a full right to capture the goods of an enemy, but gives no right to capture the goods of a friend." Just as "the neutral flag constitutes no protection to enemy property," so "the belligerent flag communicates no hostile character to neutral property." The nature of the cargo, therefore, "depends in no degree" upon the ship that carries it.[345]

Unless treaties expressly modified this immemorial law of nations there would, declared Marshall, "seem to be no necessity" to suppose that an exception was intended. "Treaties are formed upon deliberate reflection"; if they do not specifically designate that a particular item is to be taken out of the "ancient rule," it remains within it. "The agreement [in the Spanish treaty] that neutral bottoms shall make neutral goods is ... a concession made by the belligerent to the neutral"; as such it is to be encouraged since "it enlarges the sphere of neutral commerce, and gives to the neutral flag a capacity not given to it by the law of nations."

On the contrary, a treaty "stipulation which subjects neutral property, found in the bottom of an enemy, to condemnation as prize of war, is a concession made by the neutral to the belligerent. It narrows the sphere of neutral commerce, and takes from the neutral a privilege he possessed under the law of nations." However, a government can make whatever contracts with another that it may wish to make. "What shall restrain independent nations from making such a compact" as they please?[346]

Suppose that, regardless of "our treaty with Spain, considered as an independent measure, the ordinances of that government would subject American property, under similar circumstances, to confiscation." Ought Spanish property, for that reason, to be "condemned as prize of war"? That was not a question for courts to decide: "Reciprocating to the subjects of a nation, or retaliating on them its unjust proceedings towards our citizens, is a political, not a legal measure. It is for the consideration of the government, not of its courts. The degree and the kind of retaliation depend entirely on considerations foreign to this tribunal."

The Government is absolutely free to do what it thinks best: "It is not for its courts to interfere with the proceedings of the nation and to thwart its views. It is not for us to depart from the beaten track prescribed for us, and to tread the devious and intricate path of politics." He and his associates had no difficulty, said Marshall, in arriving at these conclusions. "The line of partition" between "belligerent rights and neutral privileges" is "not so distinctly marked as to be clearly discernible."[347] Nevertheless, the neutral part of the Nereid's cargo must "be governed by the principles which would apply to it had the Nereid been a general ship." That she was armed, that she fought to resist capture, did not charge the cargo with the belligerency of the ship, since the owners of the cargo had nothing to do with her armed equipment or belligerent conduct.

It is "universally recognized as the original rule of the law of nations" that a neutral may ship his goods on a belligerent vessel. This right is "founded on the plain and simple principle that the property of a friend remains his property wherever it may be found."[348] That it is lodged in an armed belligerent ship does not take it out of this universal rule. The plain truth is, declares Marshall, that "a belligerent has a perfect right to arm in his own defense; and a neutral has a perfect right to transport his goods in a belligerent vessel." Such merchandise "does not cease to be neutral" because placed on an armed belligerent ship, nor when that vessel exercises the undoubted belligerent right forcibly to resist capture by the enemy.

Shipping goods on an armed belligerent ship does not defeat or even impair the right of search. "What is this right of search? Is it a substantive and independent right wantonly, and in the pride of power, to vex and harass neutral commerce, because there is a capacity to do so?" No! It is a right "essential ... to the exercise of ... a full and perfect right to capture enemy goods and articles going to their enemy which are contraband of war.... It is a mean justified by the end," and "a right ... ancillary to the greater right of capture."

For a neutral to place "his goods in the vessel of an armed enemy" does not connect him with that enemy or give him a "hostile character." Armed or unarmed, "it is the right and the duty of the carrier to avoid capture and to prevent a search." Neither arming nor resistance is "chargeable to the goods or their owner, where he has taken no part" in either.[349] Pinkney had cited two historical episodes, but Marshall waved these aside as of no bearing on the case. "If the neutral character of the goods is forfeited by the resistance of the belligerent vessel, why is not the neutral character of the passengers," who did not engage in the conflict, "forfeited by the same cause?"[350]

In the case of the Nereid, the goods of the neutral shipper were inviolable. Pinkney had drawn a horrid picture of the ship, partly warlike, partly peaceful, displaying either character as safety or profit dictated.[351] But, answers Marshall, falling into something like the rhetoric of his youth,[352] "the Nereid has not that centaur-like appearance which has been ascribed to her. She does not rove over the ocean hurling the thunders of war while sheltered by the olive branch of peace." Her character is not part neutral, part hostile. "She is an open and declared belligerent; claiming all the rights, and subject to all the dangers of the belligerent character." One of these rights is to carry neutral goods which were subject to "the hazard of being taken into port" in case of the vessel's capture--in the event of which they would merely be "obliged to seek another conveyance." The ship might lawfully be captured and condemned; but the neutral cargo within it remained neutral, could not be forfeited, and must be returned to its owners.[353]

But Marshall anoints the wounds of the defeated Pinkney with a tribute to the skill and beauty of his oratory and argument: "With a pencil dipped in the most vivid colors, and guided by the hand of a master, a splendid portrait has been drawn exhibiting this vessel and her freighter as forming a single figure, composed of the most discordant materials of peace and war. So exquisite was the skill of the artist, so dazzling the garb in which the figure was presented, that it required the exercise of that cold investigating faculty which ought always to belong to those who sit on this bench, to discover its only imperfection; its want of resemblance."[354]

Such are examples of Marshall's expositions of international law and typical illustrations of his method in statement and reasoning. His opinion in the case of the Nereid is notable, too, because Story dissented[355]--and for Joseph Story to disagree with John Marshall was a rare event. Justice Livingston also disagreed, and the British High Court of Admiralty maintained the contrary doctrine. But the principle announced by Marshall, that enemy bottoms do not make enemy goods and that neutral property is sacred, remained and still remains the American doctrine. Indeed, by the Declaration of Paris in 1856, the principle thus announced by Marshall in 1815 is now the accepted doctrine of the whole world.

Closely akin to the statesmanship displayed in his pronouncements upon international law, was his assertion, in Insurance Co. vs. Canter,[356] that the Nation has power to acquire and to govern territory. The facts of this case were that a ship with a cargo of cotton, which was insured, was wrecked on the coast of Florida after that territory had been ceded to the United States and before it became a State of the Union. The cotton was saved, and taken to Key West, where, by order of a local court acting under a Territorial law, it was sold at auction to satisfy claims for salvage. Part of the cotton was purchased by one David Canter, who shipped it to Charleston, South Carolina, where the insurance companies libeled it. The libelants contended, among other things, that the Florida court was not competent to order the auction sale because the Territorial act was "inconsistent" with the National Constitution. After a sharp and determined contest in the District and Circuit Courts of the United States at Charleston, in which Canter finally prevailed, the case was taken to the Supreme Court.[357]

Was the Territorial act, under which the local court at Key West ordered the auction sale, valid? The answer to that question, said Marshall, in delivering the opinion of the court, depends upon "the relation in which Florida stands to the United States." Since the National Government can make war and conclude treaties, it follows that it "possesses the power of acquiring territory either by conquest or treaty.... Ceded territory becomes a part of the nation to which it is annexed"; but "the relations of the inhabitants to each other [do not] undergo any change." Their allegiance is transferred; but the law "which regulates the intercourse and general conduct of individuals remains in force until altered by the newly created power of the state."[358]

The treaty by which Spain ceded Florida to the United States assures to the people living in that Territory "the enjoyment of the privileges, rights, and immunities" of American citizens; "they do not however, participate in political power; they do not share in the government till Florida shall become a state. In the meantime Florida continues to be a Territory of the United States, governed by virtue of that clause in the Constitution which empowers Congress 'to make all needful rules & regulations respecting the territory or other property belonging to the United States.'"[359]

The Florida salvage act is not violative of the Constitution. The courts upon which that law confers jurisdiction are not "Constitutional Courts; ... they are legislative Courts, created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations respecting the territory belonging to the United States.... Although admiralty jurisdiction can be exercised, in the States, in those courts only" which are authorized by the Constitution, the same limitation does not extend to the Territories. In legislating for them, Congress exercises the combined powers of the general and of a state government.[360]

Admirable and formative as were Marshall's opinions of the law of nations, they received no attention from the people, no opposition from the politicians, and were generally approved by the bar. At the very next term of the Supreme Court, after the decision in the case of the Nereid, an opinion was delivered by Story that aroused more contention and had greater effect on the American Nation than had all the decisions of the Supreme Court on international law up to that time. This was the opinion in the famous case of Martin vs. Hunter's Lessee.

It was Story's first exposition of Constitutional law and it closely resembles Marshall's best interpretations of the Constitution. So conspicuous is this fact that the bench and bar generally have adopted the view that the Chief Justice was, in effect, the spiritual author of this commanding judicial utterance.[361] But Story had now been by Marshall's side on the Supreme Bench for four years and, in his ardent way, had become more strenuously Nationalist, at least in expression, than Marshall.[362]

That the Chief Justice himself did not deliver this opinion was due to the circumstance that his brother, James M. Marshall, was involved in the controversy; was, indeed, a real party in interest. This fact, together with the personal hatred of Marshall by the head of the Virginia Republican organization, had much to do with the stirring events that attended and followed this litigation.

At the time of the Fairfax-Hunter controversy, Virginia was governed by one of the most efficient party organizations ever developed under free institutions. Its head was Spencer Roane, President of the Court of Appeals, the highest tribunal in the State, an able and learned man of strong prejudices and domineering character. Jefferson had intended to appoint Roane Chief Justice of the United States upon the expected retirement of Ellsworth.[363] But Ellsworth's timely resignation gave Adams the opportunity to appoint Marshall. Thus Roane's highest ambition was destroyed and his lifelong dislike of Marshall became a personal and a virulent animosity.

Roane was supported by his cousin, Thomas Ritchie, editor of the Richmond Enquirer, the most influential of Southern newspapers, and, indeed, one of the most powerful journals in the Nation. Another of the Virginia junto was John Taylor of Caroline County, a brilliant, unselfish, and sincere man. Back of this triumvirate was Thomas Jefferson with his immense popularity and his unrivaled political sagacity. These men were the commanding officers of a self-perpetuating governmental system based on the smallest political unit, the County Courts. These courts were made up of justices of the peace appointed by the Governor. Vacancies in the County Courts were filled only on the recommendation of the remaining members.[364] These justices of the peace also named the men to be sent to the State Legislature which appointed the Governor and also chose the members of the Court of Appeals who held office for life.[365] A perfect circle of political action was thus formed, the permanent and controlling center of which was the Court of Appeals.

These, then, were the judge, the court, and the party organization which now defied the Supreme Court of the United States. By one of those curious jumbles by which Fate confuses mortals, the excuse for this defiance of Nationalism by Localism arose from a land investment by Marshall and his brother. Thus the fact of the purchase of the larger part of the Fairfax estate[366] is woven into the Constitutional development of the Nation.

Five years before the Marshall syndicate made this investment,[367] one David Hunter obtained from Virginia a grant of seven hundred and eighty-eight acres of that part of the Fairfax holdings known as "waste and ungranted land."[368] The grant was made under the various confiscatory acts of the Virginia Legislature passed during the Revolution. These acts had not been carried into effect, however, and in 1783 the Treaty of Peace put an end to subsequent proceedings under them.

Denny Martin Fairfax, the devisee of Lord Fairfax, denied the validity of Hunter's grant from the State on the ground that Virginia did not execute her confiscatory statutes during the war, and that all lands and property to which those laws applied were protected by the Treaty of Peace. In 1791, two years after he obtained his grant and eight years after the ratification of the treaty, Hunter brought suit in the Superior Court at Winchester[369] against Fairfax's devisee for the recovery of the land. The action was under the ancient form of legal procedure still practiced, and bore the title of "Timothy Trititle, Lessee of David Hunter, vs. Denny Fairfax," Devisee of Thomas, Lord Fairfax.[370] The facts were agreed to by the parties and, on April 24, 1794, the court decided against Hunter,[371] who appealed to the Court of Appeals at Richmond.[372] Two years later, in May, 1796, the case was argued before Judges Roane, Fleming, Lyons, and Carrington.[373] Meanwhile the Jay Treaty had been ratified, thus confirming the guarantees of the Treaty of Peace to the holders of titles of lands which Virginia, in her confiscatory acts, had declared forfeited.

At the winter session, 1796-97, of the Virginia Legislature, Marshall, acting for his brother and brother-in-law, as well as for himself, agreed to execute deeds to relinquish their joint claims "to the waste and unappropriated lands in the Northern Neck" upon condition that the State would confirm the Fairfax title to lands specifically appropriated[374] by Lord Fairfax or by his devisee. But for the statement made many years later by Judges Roane and Fleming, of the Court of Appeals, that this adjustment covered the land claimed by Hunter, it would appear that Marshall did not intend to include it in the compromise,[375] even if, as seems improbable, it was a part of the Marshall syndicate's purchase; for the decision of the court at Winchester had been against Hunter, and after that decision and before the compromise, the Jay Treaty had settled the question of title.

On October 18, 1806, the Marshall syndicate, having finally made the remaining payments for that part of the Fairfax estate purchased by it--fourteen thousand pounds in all--Philip Martin, the devisee of Denny M. Fairfax, executed his warranty to John and James M. Marshall and their brother-in-law, Rawleigh Colston; and this deed was duly recorded in Fauquier, Warren, Frederick, and Shenandoah Counties, where the Fairfax lands were situated.[376] Nearly ten years before this conveyance, James M. Marshall separately had purchased from Denny Martin Fairfax large quantities of land in Shenandoah and Hardy Counties where the Hunter grant probably was situated.[377]

It would seem that James M. Marshall continued in peaceful possession of the land, the title to which the Winchester court had decreed to be in the Fairfax devisee and not in Hunter. When Denny M. Fairfax died, he devised his estate to his younger brother[378] Major-General Philip Martin. About the same time he made James M. Marshall his administrator, with the will annexed, apparently for the purpose of enabling him to collect old rents.[379] For thirteen years and six months the case of Hunter vs. Fairfax's Devisee slumbered in the drowsy archives of the Virginia Court of Appeals. In the autumn of 1809, however, Hunter demanded a hearing of it and, on October 25, of that year, it was reargued.[380] Hunter was represented by John Wickham, then the acknowledged leader of the Virginia bar, and by another lawyer named Williams.[381] Daniel Call appeared for the Fairfax devisee.

The following spring[382] the Court of Appeals decided in favor of Hunter, reversing the judgment of the lower court rendered more than sixteen years before. In his opinion Roane, revealing his animosity to Marshall, declared that the compromise of 1796 covered the case. "I can never consent that the appellees,[383] after having got the benefit thereof, should refuse to submit thereto, or pay the equivalent; the consequence of which would be, that the Commonwealth would have to remunerate the appellant for the land recovered from him! Such a course cannot be justified on the principles of justice and good faith; and, I confess, I was not a little surprised that the objection should have been raised in the case before us."[384]

To this judgment the Fairfax devisee[385] obtained from the Supreme Court of the United States[386] a writ of error to the Virginia court under Section 25 of the Ellsworth Judiciary Act, upon the ground that the case involved the construction of the Treaty of Peace with Great Britain and the Jay Treaty, the Virginia court having held against the right claimed by Fairfax's devisee under those treaties.[387]

The Supreme Court now consisted of two Federalists, Washington and Marshall, and five Republicans, Johnson, Livingston, Story, and Duval; and Todd, who was absent from illness at the decision of this cause. Marshall declined to sit during the arguments, or to participate in the deliberations and conclusions of his associates. Indeed, throughout this litigation the Chief Justice may almost be said to have leaned backward. It was with good reason that Henry S. Randall, the biographer and apologist of Jefferson, went out of his way to laud Marshall's "stainless private character" and pay tribute to his "austere public and private virtue."[388]

Eight years before the Hunter-Fairfax controversy was first brought to the Supreme Court, the case of the Granville heirs against William R. Davie, Nathaniel Allen, and Josiah Collins, was tried at the June term, 1805, of the United States Court at Raleigh, North Carolina. Marshall, as Circuit Judge, sat with Potter, District Judge. The question was precisely that involved in the Fairfax title. The grant to Lord Granville[389] was the same as that to Lord Fairfax.[390] North Carolina had passed the same confiscatory acts against alien holdings as Virginia.[391] Under these statutes, Davie, Allen, and Collins obtained grants to parts of the Granville estate[392] identical with that of Hunter to a part of the Fairfax estate in Virginia.

Here was an excellent opportunity for Marshall to decide the Fairfax controversy once and for all. Nowhere was his reputation at that time higher than in North Carolina, nowhere was he more admired and trusted.[393] That his opinion would have been accepted by the State authorities and acquiesced in by the people, there can be no doubt.[394] But the Chief Justice flatly stated that he would take no part in the trial because of an "opinion ... formed when he was very deeply interested (alluding to the cause of Lord Fairfax in Virginia). He could not consistently with his duty and the delicacy he felt, give an opinion in the cause."[395]

The case of Fairfax's Devisee vs. Hunter's Lessee was argued for the former by Charles Lee of Richmond and Walter Jones of Washington, D.C. Robert Goodloe Harper of Baltimore appeared for Hunter. On both sides the argument was mainly upon the effect on the Fairfax title of the Virginia confiscatory laws; of the proceedings or failure to proceed under them; and the bearing upon the controversy of the two treaties with Great Britain. Harper, however, insisted that the court consider the statute of Virginia which set forth and confirmed the Marshall compromise.

On March 15, 1813, Story delivered the opinion of the majority of the court, consisting of himself and Justices Washington, Livingston, Todd, and Duval. Johnson, alone, dissented. Story held that, since Virginia had not taken the prescribed steps to acquire legal possession of the land before the Treaty of Peace, the State could not do so afterward. "The patent of the original plaintiff [Hunter] ... issued improvidently and passed no title whatever." To uphold Virginia's grant to Hunter "would be selling suits and controversies through the whole country."[396] It was not necessary, said Story, to consider the Treaty of Peace, since "we are well satisfied that the treaty of 1794[397] completely protects and confirms the title of Denny Fairfax."[398]

In his dissenting opinion Justice Johnson ignored the "compromise" of 1796, holding that the grant by the State to Hunter extinguished the right of Fairfax's devisee.[399] He concurred with Story and Washington, however, in the opinion that, on the face of the record, the case came within Section 25 of the Judiciary Act; that, therefore, the writ of error had properly issued, and that the title must be inquired into before considering "how far the ... treaty ... is applicable to it."[400] Accordingly the mandate of the Supreme Court was directed to the judges of the Virginia Court of Appeals, instructing them "to enter judgment for the appellant, Philip Martin [the Fairfax devisee]." Like all writs of the Supreme Court, it was, of course, issued in the name of the Chief Justice.[401]

Hot was the wrath of Roane and the other judges of Virginia's highest court when they received this order from the National tribunal at Washington. At their next sitting they considered whether to obey or to defy the mandate. They called in "the members of the bar generally," and the question "was solemnly argued" at Richmond for six consecutive days.[402] On December 16, 1815, the decision was published. The Virginia judges unanimously declined to obey the mandate of the Supreme Court of the United States. Each judge rendered a separate opinion, and all held that so much of Section 25 of the National Judiciary Act as "extends the appellate jurisdiction of the Supreme Court to this court, is not in pursuance of the constitution of the United States."[403]

But it was not only the Virginia Court of Appeals that now spoke; it was the entire Republican partisan machine, intensively organized and intelligently run, that brought its power to bear against the highest tribunal of the Nation. Beyond all possible doubt, this Republican organization, speaking through the supreme judiciary of the State, represented public sentiment, generally, throughout the Old Dominion. Unless this political significance of the opinions of the Virginia judges be held of higher value than their legal quality, the account of this historic controversy deserves no more than a brief paragraph stating the legal point decided.

The central question was well set forth by Judge Cabell thus: Even where the construction of a treaty is involved in the final decision of a cause by the highest court of a State, that decision being against the title of the party claiming under the treaty, can Congress "confer on the Supreme Court of the United States, a power to re-examine, by way of appeal or writ of error, the decision of the state Court; to affirm or reverse that decision; and in case of reversal, to command the state Court to enter and execute a judgment different from that which it had previously rendered?"[404]

Every one of the judges answered in the negative. The opinion of Judge Cabell was the ablest, and stated most clearly the real issue raised by the Virginia court. Neither State nor National Government is dependent one upon the other, he said; neither can act "compulsively" upon the other. Controversies might arise between State and National Governments, "yet the constitution has provided no umpire, has erected no tribunal by which they shall be settled." Therefore, the National court could not oblige the State court to "enter a judgment not its own."[405] The meaning of the National "Constitution, laws and treaties, ... must, in cases coming before State courts, be decided by the State Judges, according to their own judgments, and upon their own responsibility."[406] National tribunals belong to one sovereignty; State tribunals to a different sovereignty--neither is "superior" to the other; neither can command or instruct the other.[407]

Grant that this interpretation of the Constitution results in conflicts between State and Nation and even deprives the "general government ... of the power of executing its laws and treaties"; even so, "the defects of our system of government must be remedied, not by the judiciary, but by the sovereign power of the people." The Constitution must be amended by the people, not by judicial interpretation;[408] yet Congress, in Section 25 of the Judiciary Act, "attempts, in fact, to make the State Courts Inferior Federal Courts." The appellate jurisdiction conferred on the Supreme Court, and the word "supreme" itself, had reference to inferior National courts and not to State courts.[409]

Judge Roane's opinion was very long and discussed extensively every phase of the controversy. He held that, in giving National courts power over State courts, Section 25 of the Ellsworth Judiciary Act violated the National Constitution. If National courts could control State tribunals, it would be a "plain case of the judiciary of one government correcting and reversing the decisions of that of another."[410] The Virginia Court of Appeals "is bound, to follow its own convictions ... any thing in the decisions, or supposed decisions, of any other court, to the contrary notwithstanding." Let the court at Winchester, therefore, be instructed to execute the judgment of the State Court of Appeals.[411]

Such was the open, aggressive, and dramatic defiance of the Supreme Court of the United States by the Court of Appeals of Virginia. Roane showed his opinion to Monroe, who approved it and sent it to Jefferson at Monticello. Jefferson heartily commended Roane,[412] whereat the Virginia judge was "very much flattered and gratified."[413]

Promptly Philip Martin, through James M. Marshall, took the case to the Supreme Court by means of another writ of error. It now stood upon the docket of that court as Martin vs. Hunter's Lessee. Again Marshall refused to sit in the case. St. George Tucker of Virginia, one of the ablest lawyers of the South, and Samuel Dexter, the leader of the Massachusetts bar, appeared for Hunter.[414] As Harper had done on the first appeal, both Tucker and Dexter called attention to the fact that the decision of the Virginia Court of Appeals did not rest exclusively upon the Treaty of Peace, which alone in this case would have authorized an appeal to the Supreme Court.[415]

Story delivered the court's opinion, which was one of the longest and ablest he ever wrote. The Constitution was not ordained by the States, but "emphatically ... by 'the people of the United States.'[416]... Its powers are expressed in general terms, leaving to the legislature, from time to time, to adopt its own means to effectuate legitimate objects, and to mold and model the exercise of its powers, as its own wisdom and the public interests should require."[417] Story then quotes Sections 1 and 2 of Article III of the Constitution,[418] and continues: Thus is "the voice of the whole American people solemnly declared, in establishing one great department of that government which was, in many respects, national, and in all, supreme." Congress cannot disregard this Constitutional mandate. At a length which, but for the newness of the question, would be intolerable, Story demonstrates that the Constitutional grant of judiciary powers is "imperative."[419]

What, then, is the "nature and extent of the appellate jurisdiction of the United States"? It embraces "every case ... not exclusively to be decided by way of original jurisdiction." There is nothing in the Constitution to "restrain its exercise over state tribunals in the enumerated cases.... It is the case, ... and not the court, that gives the jurisdiction."[420] If the appellate power does not extend to State courts having concurrent jurisdiction of specified cases, then that power does "not extend to all, but to some, cases"--whereas the Constitution declares that it extends to all other cases than those over which the Supreme Court is given original jurisdiction.[421]

With great care Story shows the "propriety" of this construction.[422] Then, with repetitiousness after the true Marshall pattern, he reasserts that the Constitution acts on States as well as upon individuals, and gives many instances where the "sovereignty" of the States are "restrained." State judges are not independent "in respect to the powers granted to the United States";[423] and the appellate power of the Nation extends to the State courts in cases prescribed in Section 25 of the Judiciary Act; for the Constitution does not limit this power and "we dare not interpose a limitation where the people have not been disposed to create one."[424]

The case decided on the former record, says Story, is not now before the court. "The question now litigated is not upon the construction of a treaty, but upon the constitutionality of a statute of the United States, which is clearly within our jurisdiction." However, "from motives of a public nature," the Supreme Court would "re-examine" the grounds of its former decision.[425] After such reëxamination, extensive in length and detail, he finds the first decision of the Supreme Court to have been correct.

Story thus notices the Marshall adjustment of 1796: "If it be true (as we are informed)" that the compromise had been effected, the court could not take "judicial cognizance" of it "unless spread upon the record." Aside from the Treaty of Peace, the Fairfax title "was, at all events, perfect under the treaty of 1794."[426] In conclusion, Story announces: "It is the opinion of the whole court that the judgment of the Court of Appeals of Virginia, rendered on the mandate in this cause, be reversed, and the judgment of the District Court, held at Winchester, be, and the same is hereby affirmed."[427]

It has been commonly supposed that Marshall practically dictated Story's two opinions in the Fairfax-Hunter controversy, and certain writers have stated this to be the fact. As we have seen, Story himself, fifteen years afterwards, declared that the Chief Justice had "concurred in every word of the second opinion"; yet in a letter to his brother concerning the effect of Story's opinion upon another suit in the State court at Winchester, involving the same question, Marshall says: "The case of Hunter & Fairfax is very absurdly put on the treaty of 94."[428]

Justice Johnson dissented in an opinion as inept and unhappy as his dissent in Fletcher vs. Peck.[429] He concurs in the judgment of his brethren, but, in doing so, indulges in a stump speech in which Nationalism and State Rights are mingled in astounding fashion. The Supreme Court of the United States, he says, "disavows all intention to decide on the right to issue compulsory process to the state courts." To be sure, the Supreme Court is "supreme over persons and cases as far as our judicial powers extend," but it cannot assert "any compulsory control over the state tribunals." He views "this question as one ... which may affect, in its consequences, the permanence of the American Union," since the Nation and "one of the greatest states" are in collision. The "general government must cease to exist" if the Virginia doctrine shall prevail, but "so firmly" was he "persuaded that the American people can no longer enjoy the blessings of a free government, whenever the state sovereignties shall be prostrated at the feet of the general government," that he "could borrow the language of a celebrated orator, and exclaim: 'I rejoice that Virginia has resisted.'"[430] Nevertheless, Johnson agrees with the judgment of his associates and, in doing so, delivers a Nationalist opinion, stronger if possible than that of Story.[431]

The public benefits and the historic importance of the decision was the assertion of the supremacy of the Supreme Court of the Nation over the highest court of any State in all cases where the National Constitution, laws and treaties--"the supreme law of the land"--are involved. The decision of the Supreme Court in Martin vs. Hunter's Lessee went further than any previous judicial pronouncement to establish the relation between National courts and State tribunals which now exists and will continue as long as the Republic endures.

When the news of this, the first Constitutional opinion ever delivered by Story, got abroad, he was mercilessly assailed by his fellow Republicans as a "renegade."[432] Congress refused to increase the salaries of the members of the Supreme Court,[433] who found it hard to live on the compensation allowed them,[434] and Story seriously considered resigning from the bench and taking over the Baltimore practice of Mr. Pinkney, who soon was to be appointed Minister to Russia.[435] The decision aroused excitement and indignation throughout Virginia. Roane's popularity increased from the Tide Water to the Valley.[436] The Republican organization made a political issue of the judgment of the National tribunal at Washington. Judge Roane issued his orders to his political lieutenants. The party newspapers, led by the Enquirer, inveighed against the "usurpation" by this distant Supreme Court of the United States, a foreign power, an alien judiciary, unsympathetic with Virginia, ignorant of the needs of Virginians.

This conflict between the Supreme Court of the United States and the Court of Appeals of Virginia opened another phase of that fundamental struggle which war was to decide--a fact without knowledge of which this phase of American Constitutional history is colorless.

Not yet, however, was the astute Virginia Republican triumvirate ready to unloose the lightnings of Virginia's wrath. That must be done only when the whole South should reach a proper degree of emotion. This time was not long to be delayed. Within three years Marshall's opinion in M'Culloch vs. Maryland was to give Roane, Ritchie, and Taylor their cue to come upon the stage as the spokesmen of Virginia and the entire South, as the champions, indeed, of Localism everywhere throughout America. Important were the parts they played in the drama of Marshall's judicial career.

FOOTNOTES:

[300] See vol. III, chap. III, of this work.Return to passage

[301] This is a fair inference from the statement of Joseph Story in his autobiography: "I have ever considered the embargo a measure, which went to the utmost limit of constructive power under the Constitution. It stands upon the extreme verge of the Constitution, being in its very form and terms an unlimited prohibition, or suspension of foreign commerce." (Story, I, 185-86.) When it is remembered that after Story was made Associate Justice his views became identical with those of Marshall on almost every subject, it would seem likely that Story expressed the opinions of the Chief Justice as well as his own on the constitutionality of the Embargo.Return to passage

[302] See, for instance, the case of William Dixon et al. vs. The United States, 1 Brockenbrough, 177; United States vs. ----, ib. 195; the case of the Fortuna, ib. 299; the case of the Brig Caroline, ib. 384; Thomson and Dixon vs. United States (case of the Schooner Patriot), ib. 407.Return to passage

[303] 1 Brockenbrough, 241.Return to passage

[304] See Warren, 279.Return to passage

[305] Story to Fay, April 24, 1814, Story, I, 261.Return to passage

[306] Marshall to Story, May 27, 1819, Proceedings, Mass. Hist. Soc. 2d Series, XIV, 325. This was the case of the Little Charles.Return to passage

[307] Same to same, July 13, 1819, ib. 326.Return to passage

[308] Same to same, June 15, 1821, ib. 327; Sept. 18, 1821, ib. 331; Dec. 9, 1823, ib. 334; June 26, 1831, ib. 344.Return to passage

[309] Same to same, July 2, 1823, ib. 331-33.Return to passage

[310] Same to same, Oct. 15, 1830, ib. 342.Return to passage

[311] John Bassett Moore, in his Digest of International Law, cites Marshall frequently and often uses passages from his opinions. Henry Wheaton, in his Elements of International Law, sometimes quotes Marshall's language as part of the text.Return to passage

[312] Professor John Bassett Moore, in a letter to the author, says that he considers Marshall's opinion in this case his greatest in the realm of international law.Return to passage

[313] Am. State Papers, For. Rel. III, 384.Return to passage

[314] 7 Cranch, 136.Return to passage

[315] 7 Cranch, 137.Return to passage

[316] Ib. 138-39.Return to passage

[317] Ib. 141.Return to passage

[318] 7 Cranch, 147.Return to passage

[319] See John Bassett Moore in Dillon, I, 521-23.Return to passage

[320] See supra, chap. I.Return to passage

[321] 3 Wheaton, 610-44.Return to passage

[322] Ib. 614.Return to passage

[323] 3 Wheaton, 634-35.Return to passage

[324] 4 Wheaton, 63-64.Return to passage

[325] 8 Cranch, 253-317.Return to passage

[326] John Bassett Moore in Dillon, I, 524.Return to passage

[327] 8 Cranch, 289.Return to passage

[328] Ib. 291-92.Return to passage

[329] Ib. 293.Return to passage

[330] 9 Cranch, 388 et seq.Return to passage

[331] Until the February session of 1817. This room was not destroyed or injured by the fire, but was closed while the remainder of the Capitol was being repaired. In 1817, the court occupied another basement room in the Capitol, where it continued to meet until February, 1819, when it returned to its old quarters in the room where the library of the Supreme Court is now situated. (Bryan: History of the National Capital, II, 39.)Return to passage

[332] Ib., I, 632. Mr. Bryan says that this house still stands and is now known as 204-06 Pennsylvania Avenue, S.E.Return to passage

[333] Ticknor to his father, Feb. 1815, Ticknor, I, 38.Return to passage

[334] "His opinions had almost acquired the authority of judicial decisions." (Pinkney: Life of William Pinkney, quotation from Robert Goodloe Harper on title-page.)Return to passage

[335] "He has ... a dogmatizing absoluteness of manner which passes with the million, ... for an evidence of power; and he has acquired with those around him a sort of papal infallibility." (Wirt to Gilmer, April 1, 1816, Kennedy, I, 403.)Return to passage

Wirt's estimate of Pinkney must have been influenced by professional jealousy, for men like Story and Marshall were as profoundly affected by the Maryland legal genius as were the most emotional spectators. See the criticisms of Wirt's comments on Pinkney by his nephew, Rev. William Pinkney, in his Life of William Pinkney, 116-22.

[336] Ticknor to his father, Feb. [day omitted] 1815, Ticknor, I, 38-40.Return to passage

[337] Story to Williams, Feb. 16, 1812, Story, I, 214; and March 6, 1814, ib. 252.Return to passage

[338] "At the bar he is despotic and cares as little for his colleagues or adversaries as if they were men of wood." (Wirt to Gilmer, April 1, 1816, Kennedy, I, 403.)Return to passage

The late Roscoe Conkling was almost the reincarnation of William Pinkney. In extravagance of dress, haughtiness of manner, retentiveness of memory, power and brilliancy of mind, and genuine eloquence, Pinkney and Conkling were well-nigh counterparts.

[339] Ticknor to his father, Feb. 21, 1815, Ticknor, I, 40.Return to passage

[340] Ib. Feb. 1815, 39-40.Return to passage

[341] Pinkney, 100-01.Return to passage

[342] Story to his wife, March 10, 1814, Story, I, 253.Return to passage

[343] Mrs. Samuel Harrison Smith to Mrs. Kirkpatrick, March 13, 1814, First Forty Years of Washington Society: Hunt, 96.Return to passage

Pinkney especially would become eloquent, even in an argument of dry, commercial law, if women entered the court-room. "There were ladies present--and Pinkney was expected to be eloquent at all events. So, the mode he adopted was to get into his tragical tone in discussing the construction of an act of Congress. Closing his speech in this solemn tone he took his seat, saying to me, with a smile--'that will do for the ladies.'" (Wirt to Gilmer, April 1, 1816, Kennedy, I, 404.)

The presence of women affected others no less than Pinkney. "Webster, Wirt, Taney ... and Emmet, are the combatants, and a bevy of ladies are the promised and brilliant distributors of the prizes," writes Story of an argument in the Supreme Court many years later. (Story to Fay, March 8, 1826, Story, I, 493.)

[344] This is illustrated by the passage in Pinkney's argument to which Marshall in his opinion paid such a remarkable tribute (see infra, 141).Return to passage

[345] 9 Cranch, 418-19.Return to passage

[346] 9 Cranch, 419-20.Return to passage

[347] Ib. 422-23.Return to passage

[348] 9 Cranch, 425.Return to passage

[349] 9 Cranch, 426-29.Return to passage

[350] Ib. 428-29.Return to passage

[351] "We ... have Neutrality, soft and gentle and defenceless in herself, yet clad in the panoply of her warlike neighbours--with the frown of defiance upon her brow, and the smile of conciliation upon her lip--with the spear of Achilles in one hand and a lying protestation of innocence and helplessness unfolded in the other. Nay, ... we shall have the branch of olive entwined around the bolt of Jove, and Neutrality in the act of hurling the latter under the deceitful cover of the former....Return to passage

"Call you that Neutrality which thus conceals beneath its appropriate vestment the giant limbs of War, and converts the charter-party of the compting-house into a commission of marque and reprisals; which makes of neutral trade a laboratory of belligerent annoyance; which ... warms a torpid serpent into life, and places it beneath the footsteps of a friend with a more appalling lustre on its crest and added venom in its sting." (Wheaton: Some Account of the Life, Writings, and Speeches of William Pinkney, 463, 466.)

Pinkney frankly said that his metaphors, "hastily conceived and hazarded," were inspired by the presence of women "of this mixed and (for a court of judicature) uncommon audience." (Ib. 464-65.)

Except for this exhibition of rodomontade his address was a wonderful display of reasoning and erudition. His brief peroration was eloquence of the noblest order. (See entire speech, Wheaton: Pinkney, 455-516.)

[352] See vol. I, 72, 195, of this work.Return to passage

[353] 9 Cranch, 430-31.Return to passage

[354] Ib. 430.Return to passage

[355] "Never in my whole life was I more entirely satisfied that the Court were wrong in their judgment. I hope Mr. Pinkney will ... publish his admirable argument ... it will do him immortal honor." (Story to Williams, May 8, 1815, Story, I, 256.)Return to passage

Exactly the same question as that decided in the case of the Nereid was again brought before the Supreme Court two years later in the case of the Atalanta. (3 Wheaton, 409.) Marshall merely stated that the former decision governed the case. (Ib. 415.)

[356] The American Insurance Company et al. vs. David Canter, 1 Peters, 511-46.Return to passage

[357] 1 Peters, 511-46.Return to passage

[358] Ib. 542.Return to passage

[359] 1 Peters, 542.Return to passage

[360] Ib. 546.Return to passage

[361] Story wrote George Ticknor that Marshall "concurred in every word of it." (Story to Ticknor, Jan. 22, 1831, Story, II, 49.)Return to passage

[362] "Let us extend the national authority over the whole extent of power given by the Constitution. Let us have great military and naval schools; an adequate regular army; the broad foundations laid of a permanent navy; a national bank; a national system of bankruptcy; a great navigation act; a general survey of our ports, and appointments of port-wardens and pilots; Judicial Courts which shall embrace the ... justices of the peace, for the commercial and national concerns of the United States. By such enlarged and liberal institutions, the Government of the United States will be endeared to the people.... Let us prevent the possibility of a division, by creating great national interests which shall bind us in an indissoluble chain." (Story to Williams, Feb. 22, 1815, ib. I, 254.)Return to passage

Later in the same year Story repeated these views and added: "I most sincerely hope that a national newspaper may be established at Washington." (Story to Wheaton, Dec. 13, 1815, ib. 270-71.)

[363] Professor William E. Dodd, in Am. Hist. Rev. XII, 776.Return to passage

[364] For fuller description of the Virginia County Court system, see chap. IX of this volume.Return to passage

[365] On the Virginia Republican machine, Roane, Ritchie, etc., see Dodd in Am. Hist. Rev. XII, 776-77; and in Branch Hist. Papers, June, 1903, 222; Smith in ib. June, 1905, 15; Thrift in ib. June, 1908, 183; also Dodd: Statesmen of the Old South, 70 et seq.; Anderson, 205; Turner: Rise of the New West, 60; Ambler: Ritchie, 27, 82.Return to passage

[366] Several thousand acres of the Fairfax estate were not included in this joint purchase. (See infra, 150.)Return to passage

[367] 1793-94. See vol. II, 202-11, of this work.Return to passage

[368] April 30, 1789. See Hunter vs. Fairfax's Devisee, 1 Munford, 223.Return to passage

[369] For the district composed of Frederick, Berkeley, Hampshire, Hardy, and Shenandoah Counties.Return to passage

[370] Order Book, Superior Court, No. 2, 43, Office of Clerk of Circuit Court, Frederick Co., Winchester, Va.Return to passage

[371] The judges rendering this decision were St. George Tucker and William Nelson, Jr. (Ib.)Return to passage

[372] In making out the record for appeal the fictitious name of Timothy Trititle was, of course, omitted, so that in the Court of Appeals and in the appeals to the Supreme Court of the United States the title of the case is Hunter vs. Fairfax's Devisee, instead of "Timothy Trititle, Lessee of David Hunter," vs. Fairfax's Devisee, and Martin vs. Hunter's Lessee.Return to passage

[373] 1 Munford, 223.Return to passage

[374] See vol. II, footnote to 209, of this work.Return to passage

[375] The adjustment was made because of the memorial of about two hundred settlers or squatters (mostly Germans) on the wild lands who petitioned the Legislature to establish title in them. David Hunter was not one of these petitioners. Marshall agreed to execute deeds "extinguishing" the Fairfax title "so soon as the conveyance shall be transmitted to me from Mr. Fairfax." (Marshall to the Speaker of the House of Delegates, Va., Nov. 24, 1796. See vol. II, footnote to 209, of this work.) The Fairfax deed to the Marshalls was not executed until ten years after this compromise. (Land Causes, 1833, 40, Records in Office of Clerk of Circuit Court, Fauquier Co., Va.)Return to passage

[376] Two years later, on October 5, 1808, the Marshall brothers effected a partition of the estate between themselves on the one part and their brother-in-law on the other part, the latter receiving about forty thousand acres. (Deed Book 36, 302, Records in Office of Clerk of Circuit Court, Frederick Co., Va.)Return to passage

[377] On August 30, 1797, Denny Martin Fairfax conveyed to James M. Marshall all the Fairfax lands in Virginia "save and except ... the manor of Leeds." (See Marshall vs. Conrad, 5 Call, 364.) Thereafter James M. Marshall lived in Winchester for several years and made many conveyances of land in Shenandoah and Berkeley Counties. For instance, Nov. 12, 1798, to Charles Lee, Deed Book 3, 634, Records in Office of Clerk of Circuit Court, Frederick County, Va.; Jan. 9, 1799, to Henry Richards, ib. 549; Feb. 4, 1799, to Joseph Baker, Deed Book 25, ib. 561; March 30, 1799, to Richard Miller, Deed Book 3, ib. 602, etc.Return to passage

All of these deeds by James M. Marshall and Hester, his wife, recite that these tracts and lots are parts of the lands conveyed to James M. Marshall by Denny Martin Fairfax on August 30, 1797. John Marshall does not join in any of these deeds. Apparently, therefore, he had no personal interest in the tract claimed by Hunter.

In a letter to his brother Marshall speaks of the Shenandoah lands as belonging to James M. Marshall: "With respect to the rents due Denny Fairfax before the conveyance to you I should suppose a recovery could only be defeated by the circumstance that they passed to you by the deed conveying the land." (Marshall to his brother, Feb. 13, 1806, MS.)

At the time when the Fairfax heir, Philip Martin, executed a deed to the Marshall brothers and Rawleigh Colston, conveying to them the Manor of Leeds, the lands involved in the Hunter case had been owned by James M. Marshall exclusively for nearly ten years.

After the partition with Colston, October 5, 1808, John and James M. Marshall, on September 5, 1809, made a partial division between themselves of Leeds Manor, and Goony Run Manor in Shenandoah County, the latter going to James M. Marshall.

These records apparently establish the facts that the "compromise" of 1796 was not intended to include the land claimed by Hunter; that James M. Marshall personally owned most of the lands about Winchester; and that John Marshall had no personal interest whatever in the land in controversy in the litigation under review.

This explains the refusal of the Supreme Court, including even Justice Johnson, to take notice of the compromise of 1796. (See infra, 157.)

[378] When Lord Fairfax devised his Virginia estate to his nephew, Denny Martin, he required him to take the name of Fairfax.Return to passage

[379] Order Book, Superior Court of Frederick Co. Va., III, 721.Return to passage

[380] 1 Munford, 223. The record states that Judge Tucker did not sit on account of his near relationship to a person interested.Return to passage

[381] It should be repeated that David Hunter was not one of the destitute settlers who appealed to the Legislature in 1796. From the records it would appear that he was a very prosperous farmer and land-owner who could well afford to employ the best legal counsel, as he did throughout the entire litigation. As early as 1771 we find him selling to Edward Beeson 536 acres of land in Frederick County. (Deed Book 15, 213, Office of Clerk of Circuit Court, Frederick County, Va.) The same Hunter also sold cattle, farming implements, etc., to a large amount. (Deeds dated Nov. 2, 1771, Deed Book cited above, 279, 280.)Return to passage

These transactions took place eighteen years before Hunter secured from Virginia the grant of Fairfax lands, twenty-five years before the Marshall compromise of 1796, thirty-eight years before Hunter employed Wickham to revive his appeal against the Fairfax devisee, forty-two years prior to the first arguments before the Supreme Court, and forty-five years before the final argument and decision of the famous case of Martin vs. Hunter's Lessee. So, far from being a poor, struggling, submissive, and oppressed settler, David Hunter was one of the most well-to-do, acquisitive, determined, and aggressive men in Virginia.

[382] April 23, 1810.Return to passage

[383] By using the plural "appellees," Roane apparently intimates that Marshall was personally interested in the case; as we have seen, he was not. There was of record but one appellee, the Fairfax devisee.Return to passage

[384] 1 Munford, 232.Return to passage

The last two lines of Roane's language are not clear, but it would seem that the "objection" must have been that the Marshall compromise did not include the land claimed by Hunter and others, the title to which had been adjudged to be in Fairfax's devisee before the compromise. This is, indeed, probably the meaning of the sentence of Roane's opinion; otherwise it is obscure. It would appear certain that the Fairfax purchasers did make just this objection. Certainly they would have been foolish not to have done so if the Hunter land was not embraced in the compromise.

[385] Since James M. Marshall was the American administrator of the will of Denny M. Fairfax, and also had long possessed all the rights and title of the Fairfax heir to this particular land, it doubtless was he who secured the writ of error from the Supreme Court.Return to passage

[386] 1 Munford, 238.Return to passage

[387] 7 Cranch, 608-09, 612. The reader should bear in mind the provisions of Section 25 of the Judiciary Act, since the validity and meaning of it are involved in some of the greatest controversies hereafter discussed. The part of that section which was in controversy is as follows:Return to passage

"A final judgment or decree in any suit, in the highest court of law or equity of a state in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favor of such their validity; or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said constitution, treaty, statute or commission, may be re-examined and reversed or affirmed in the supreme court of the United States upon a writ of error."

[388] Randall, II, 35-36.Return to passage

[389] For a full and painstaking account of the Granville grant, and the legislation and litigation growing out of it, see Henry G. Connor in University of Pennsylvania Law Review, vol. 62, 671 et seq.Return to passage

[390] See vol. I, 192, of this work.Return to passage

[391] Connor in Univ. of Pa. Law Rev. vol. 62, 674-75.Return to passage

[392] Ib. 676.Return to passage

[393] See supra, 69.Return to passage

[394] This highly important fact is proved by the message of Governor David Stone to the Legislature of North Carolina in which he devotes much space to the Granville litigation and recommends "early provision to meet the justice of the claim of her [North Carolina's] citizens for remuneration in case of a decision against the sufficiency of the title derived from herself." The "possibility" of such a decision is apparent "when it is generally understood that a greatly and deservedly distinguished member of that [the Supreme] Court, has already formed an unfavorable opinion, will probably enforce the consideration that it is proper to make some eventual provision, by which the purchasers from the State, and those holding under that purchase, may have justice done them." (Connor in Univ. of Pa. Law Rev. vol. 62, 690-91.)Return to passage

From this message of Governor Stone it is clear that the State expected a decision in favor of the Granville heirs, and that the Legislature and State authorities were preparing to submit to that decision.

[395] Raleigh Register, June 24, 1805, as quoted by Connor in Univ. of Pa. Law Rev. vol. 62, 689.Return to passage

The jury found against the Granville heirs. A Mr. London, the Granville agent at Wilmington, still hoped for success: "The favorable sentiments of Judge Marshall encourage me to hope that we shall finally succeed," he writes William Gaston, the Granville counsel. Nevertheless, "I think the Judge's reasons for withdrawing from the cause partakes more of political acquiescence than the dignified, official independence we had a right to expect from his character. He said enough to convince our opponents he was unfavorable to their construction of the law and, therefore, should not have permitted incorrect principles to harass our clients and create expensive delays. Mr. Marshall had certainly no interest in our cause, he ought to have governed the proceedings of a Court over which he presided, according to such opinion--it has very much the appearance of shirking to popular impressions."

London ordered an appeal to be taken to the Supreme Court of the United States, remarking that "it is no doubt much in our favor what has already dropt from the Chief Justice." (London to Gaston, July 8, 1805, as quoted by Connor in Univ. of Pa. Law Rev. vol. 62, 690.)

He was, however, disgusted with Marshall. "I feel much chagrin that we are put to so much trouble and expense in this business, and which I fear is in great degree to be attributed to the Chief Justice's delivery." (Same to same, April 19, 1806, as quoted by Connor in ib. 691.)

For more than ten years the appeal of the Granville heirs from the judgment of the National Court for the District of North Carolina reposed on the scanty docket of the Supreme Court awaiting call for argument by counsel. Finally on February 4, 1817, on motion of counsel for the Granville heirs, the case was stricken from the docket. The reason for this action undoubtedly was that William Gaston, counsel for the Granville heirs, had been elected to Congress, was ambitious politically, was thereafter elected judge of the Supreme Court of North Carolina; none of these honors could possibly have been achieved had he pressed the Granville case.

[396] 7 Cranch, 625.Return to passage

[397] The Jay Treaty. See vol. II, 113-15, of this work.Return to passage

[398] 7 Cranch, 627.Return to passage

[399] Ib. 631.Return to passage

[400] Ib. 632.Return to passage

[401] For mandate see 4 Munford, 2-3.Return to passage

[402] March 31, April 1 to April 6, 1814. (4 Munford, 3.)Return to passage

[403] Ib. 58.Return to passage

[404] 4 Munford, 7.Return to passage

[405] Ib. 8-9.Return to passage

[406] Ib. 11.Return to passage

[407] Ib. 12.Return to passage

[408] 4 Munford, 15.Return to passage

[409] Ib. 133.Return to passage

[410] Ib. 38.Return to passage

[411] Ib. 54.Return to passage

[412] Jefferson to Roane, Oct. 12, 1815, Works: Ford, XI, 488-90.Return to passage

[413] Roane to Jefferson, Oct. 28, 1815, Branch Hist. Papers, June, 1905, 131-32.Return to passage

[414] The employment of these expensive lawyers is final proof of Hunter's financial resources.Return to passage

[415] 1 Wheaton, 317, 318.Return to passage

[416] Ib. 324.Return to passage

[417] Ib. 326-27.Return to passage

[418] The sections of the Constitution pertaining to this dispute are as follows:Return to passage

"Article III, Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.

"Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects."

[419] 1 Wheaton, 328.Return to passage

[420] Ib. 337-38.Return to passage

[421] Ib. 339.Return to passage

[422] Ib. 341.Return to passage

[423] 1 Wheaton, 343-44.Return to passage

[424] Ib. 351.Return to passage

[425] Ib. 355.Return to passage

[426] Ib. 360.Return to passage

[427] 1 Wheaton, 362.Return to passage

[428] Marshall to his brother, July 9, 1822, MS.Return to passage

Parts of this long letter are of interest: "Although Judge White [of the Winchester court] will, of course, conform to the decision of the court of appeals against the appellate jurisdiction of the Supreme court, & therefore deny that the opinion in the case of Fairfax & Hunter is binding, yet he must admit that the supreme court is the proper tribunal for expounding the treaties of the United States, & that its decisions on a treaty are binding on the state courts, whether they possess the appellate jurisdiction or not.... The exposition of any state law by the courts of that state, are considered in the courts of all the other states, and in those of the United States, as a correct exposition, not to be reexamined.

"The only exception to this rule is when the statute of a state is supposed to violate the constitution of the United States, in which case the courts of the Union claim a controuling & supervising power. Thus any construction made by the courts of Virginia on the statute of descents or of distribution, or on any other subject, is admitted as conclusive in the federal courts, although those courts might have decided differently on the statute itself. The principle is that the courts of every government are the proper tribunals for construing the legislative acts of that government.

"Upon this principle the Supreme court of the United States, independent of its appellate jurisdiction, is the proper tribunal for construing the laws & treaties of the United States; and the construction of that court ought to be received every where as the right construction. The Supreme court of the United States has settled the construction of the treaty of peace to be that lands at that time held by British subjects were not escheatable or grantable by a state.... I refer particularly to Smith v The State of Maryland 6th Cranch Jackson v Clarke 3 Wheaton & Orr v Hodgson 4 Wheaton. The last case is explicit & was decided unanimously, Judge Johnson assenting.

"This being the construction of the highest court of the government which is a party to the treaty is to be considered by all the world as its true construction unless Great Britain, the other party, should controvert it. The court of appeals has not denied this principle. The dicta of Judge Roane respecting the treaty were anterior to this constitutional construction of it."

[429] See vol. III, chap. X, of this work.Return to passage

[430] 1 Wheaton, 362-63.Return to passage

[431] Johnson's opinion was published in the National Intelligencer, April 16, 1816, as an answer to Roane's argument. (Smith in Branch Hist. Papers, June, 1905, 23.)Return to passage

[432] Story, I, 277.Return to passage

[433] Annals, 14th Cong. 1st Sess. 194, 231-33.Return to passage

A bill was reported March 22, 1816, increasing the salaries of all government officials. The report of the committee is valuable as showing the increased cost of living. (Ib.)

[434] Nearly three years after the decision of Martin vs. Hunter's Lessee, Story writes that the Justices of the Supreme Court are "starving in splendid poverty." (Story to Wheaton, Dec. 9, 1818, Story, I, 313.)Return to passage

[435] Story to White, Feb. 26, 1816, Story, I, 278; and see Story to Williams, May 22, 1816, ib. 279.Return to passage

[436] Ambler: Sectionalism in Virginia, 103.Return to passage