User:Jengod/John Marshall/Flanders

Title: The lives and times of the chief justices of the Supreme court of the United States. By Henry Flanders. Author: Flanders, Henry, 1826-1911. Collection: Making of America Books

THE LIFE OF JOHN MARSHALL. CHAPTER I. HIS AN C EST RY. JOHN MARSIALL, the grandfather of Chief Justice Marshall, was a native of Wales, and emigrated to America about the year. 1730. He settled in Westmoreland County, which, not inaptly, has been termed'the Athens of Virginia' - Washington, Monroe, and the Lees having been born there. Here he married Elizabeth Markham, a native of England, who bore him four sons and five daughters. John Marshall was a planter, but does not appear to have been a very prosperous one. His estate, called'Forest,' though consisting of several hundred acres, was comparatively unproductive. It was inherited by his eldest son, Thomas, who subsequently removed to Fauquier County. He settled at a place called Gernantown, and resided there for several years. Thomas Marshall and Washington were born in the same neighborhood, were companions in boyhood, and friends ever after. Both became practical surveyors, and in the pursuits of a common profession, and after(279)

280 LIFE OF JOHN MARSHALL. wards, in the service of a common country, their friendship and association were preserved. On the outbreak of the Revolution, Thomas Marshall was placed in command of the third Virginia regiment, serving as Continental troops, and in that capacity performed arduous and meritorious service. He was at Trenton and Brandywine, and in the latter battle bore a conspicuous part. The natural abilities of Thomas Marshall were uncommonly vigorous, and were improved, not only by observation and reflection, but by extensive acquaintance with books. Though his means were limited, and his early advantages of education slight, he had purchased and made himself familiar with most of the standard works of English literature. By his neighbors and acquaintance he was held in the highest estimation for sound sense, and general ability. By his children he was equally beloved and admired.' I have myself,' says Judge Story,' often heard the Chief Justice speak of him in terms of the deepest affection and reverence. I do not here refer to his public remarks; but to his private and familiar conversations with me, when there was no other listener. Indeed, he never named his father, on these occasions, without dwelling on his character with a fond and winning enthusiasm. It was a theme on which he broke out with a spontaneous eloquence; and, in the spirit of the most persuasive confidence, he would delight to expatiate upon his virtues and talents. " My father," (would he say, with kindled feelings and emphasis,) "my father was a far abler man than any of his sons. To him I owe the solid foundation of all my own success in life."' 1 Discourse upon the Life, &c., of John Marshall.

HIS ANCESTRY. 281 About the time of his removal from Westrnoreland to Fauquier County, Thomas Marshall married Miss Mary Keith, respecting whom we have been able to obtain only one or two trifling particulars. If, however, the character and talents of her children may be taken as the reflection of her own, she must have possessed great rnm:it and understanding.

282 LIFE OF JOHN MARSHALL. CHAPTER IL 1755- 1775. HIS BIRTH AND EDUCATION. JOHN MARSHALL, the eldest of fifteen children, was the son of Thomas and Mary Marshall, and born at a locality called Germantown, in Fauquier County, Virginia, on the 24th day of September, 1755. When he was quite young, the family moved to Goose's Creek, under Manassa's Gap, near the Blue Ridge, and still later to Oak Hill, where they were living at the commencement of the Revolution.' His father, a planter and surveyor like his friend Colonel Washington, led a very retired life, owing no doubt to the narrowness of his fortune, and the studiousness of his disposition. The region of country, too, in which he lived, was very sparsely settled; there were no schools in the neighborhood, and the duty of instructing his children chiefly devolved on him. How cheerfully and faithfully he performed it, the remark of the Chief Justice, which we have already quoted, that to his father he owed the solid foundation of all his success in life, is an ample testimony. To him he was indebted for that love of literature, which continued fresh and warm down to the very closing scenes of his life.'At the age of twelve [he] Howe's Virginia Historical Collections, page 262.

HIS BIRTI AND EDUCATION. 283 had transcribed the whole of Pope's Essay on Man, and some of his mQral essays, and had committed to memory many of the most interesting passages of that distinguished poet. The love of poetry, thus awakened in his warm and vigorous mind, soon exerted a commanding influence over it. He became enamored of the classical writers of the old English school, of Milton, and Shakspeare, and Dryden, and Pope; and was instructed by their solid sense, and beautiful imagery, In the enthusiasm of youth, he often indulged himself in poetical compositions, and freely gave up his leisure hours to those dreamings with the muses, which (say what we may) constitute with many the purest source of pleasure in the gayer scenes of life, and the sweetest consolation in the hours of adversity.' 1 In study, in healthful sports, and amidst the genial and virtuous influence of his home, the early boyhood of John Marshall passed happily away. He was particularly fortunate in being reared among numerous brothers and sisters. It has been often remarked that children growing up, under such circumstances, are the more apt, on that account, to make good men and women. They constitute a little community among themselves, and learn betimes that respect for social rights and duties, that mutual accommodation and forbearance, which fit them for useful and pleasant association in those corporate communities in which their lives are to be passed. At fourteen, he was sent to Westmoreland, a hun. dred miles away, where he commenced the study of Latin. His teacher was the Rev. Mr. Campbell, E very respectable clergyman, with whom he remainec a year. One of his fellow-students, a lad of far infe Discourse on the Life, &c., of John Marshall, by Joseph Story.

284 LIFE OF JOHN MARSHALL. rior capacity, but who afterwards became President of the United States, was James Monroe. On his return home, which was about the time of his father's removal to Oak Hill, young Marshall continued the study of Latin another year, under the Rev. Mr. Thompson, a Scotch clergyman, who had just settled in the parish, and resided in his father's family. This was all the aid he ever received from teachers in his study of the classics. With Mr. Thompson he had begun the reading of Horace and Livy; but how far his own unassisted efforts subsequently carried him, I am unable to say. As his stock of classical lore, however, was never very extensive, we may, perhaps, presume that, in the absence of classical tuition, he turned with more ardor to the study of English literature. Here he had the assistance and sympathy of his father, who was not only the kind and considerate parent, but the friend and companion of his son.' My father,' thus he wrote long after,'superintended the English part of my education, and to his care I am indebted for any thing valuable which I may have acquired in my youth. He was my only intelligent companion, and was both a watchful parent, and an affectionate, instructive friend. The young men within my reach were entirely uncultivated; and the time passed with them was devoted to hardy, athletic exercises. But not to study alone, nor to the companionship of such a father, is the eminence of John Marshall to be solely attributed. In addition to the native vigor of his faculties much was owing to the circumstances amid which he grew up. In a thinly populated region of country, he had, necessarily, but little society, his mind was thrown upon itself, and his lonely meditations created and confirmed habits of thought and reflection. The wild and mountainous scenery, too, that

HIS BIRTH AND EDUCATION. 285 surrounded him, could not fail to affect a mind like his; reverent, and impressible to the varied charms of nature. The simple style of living, too, then common in that part of Virginia, the easy and friendly footing on which all social intercourse was conducted, were not lost on Marshall. Both were afterwards perceptible in his characteristic simplicity, and ready sympathy with humanity, in all its relations, without regard to rank or fortune, which, with his other qualities, so endeared him to his countrymen.'He ever recurred with fondness to that primitive mode of life, when he partook, with a keen relish, balm tea and mush, and when the females used thorns for pins.' He was fond of athletic exercises, and, naturally enough in a region abounding in game, of field sports also. These tastes and -labits gave him a firm, robust constitution, and, even in his years, he exhibited the vigor and freshness of youth. Having selected the law as his future profession, he began the study of it about the time he was entering on the eighteenth year of his age. He had not, however, made much progress in the perusal of Blackstone's Commentaries, before the threatening aspect of public affairs withdrew and concentrated his energies upon very different pursuits. In the next chapter, we shall view the future Chief Justice as a soldier. Howe's Virginia Historical Collections, page 263.

286 LIFE OF JOHN MARSHALL. CHAPTER III. 1775- 1780. HIS MILITARY SERVICES. TIMES of Revolution are necessarily times of great intellectual activity. All minds are alert, anxiotss, and inquiring. Whether the cause of Revolution be political or religious, discussion and investigation are presupposed. Mankind are not apt to change existing establishments without very thorough conviction of the necessity of such clIange. And that conviction is not wrought in a day. Fixed habits, inherited attachments, interest in the past, and hopes in the future, all plead against innovation. When, therefore, all the various considerations that urge men to submit to the present order of things are overpowered by the weight of opposing considerations, it may readily be supposed that, in the conflict that has taken place, the minds of men have been thoroughly aroused, abstracted from ordinary pursuits, and fixed on objects of a larger and more comprehensive character. It was in the midst of the fermentation and excitenent immediately preceding actual hostilities between Great Britain and her American colonies, that John Marshall received his first lessons in practical politics. His father was a staunch Whig, who believed that the pretensions of Great Britain, if submitted to, would

HIS MILITARY SERVICES, 287 result in the political enslavement of himself and posterity. The son could hardly fail to catch the tone and partake the sentiments of his father. But, whatever his natural bias, yet not blindly, nor with unreasoning facility, did he espouse the prevailing opinions. He investigated the grounds of the controversy. The various political essays of the day he read attentively. Full of youthful ardor, and looking forward to the time when discussion would give way to arms, he enrolled himself in a company of volunteers, in order to learn something of the rudiments of military science. In the spring of 1775 he was appointed Lieutenant in a militia company of the neighborhood, and, soon after, first Lieutenant in a company of minute-men. In this latter capacity, as we shall presently see, he was called into active service. On the 20th of April, Lord Dunmore, in consequence of the hostile attitude of the Virginians, had the powder in the magazine at Williamsburg removed on board a man-of-war. This proceeding produced a feeling of great exasperation throughout Virginia, and was increased by the threat of Dunmore that he would fire Williamsburg, and proclaim freedom to the slaves, if injury should befall himself, or the officers who had acted in the execution of his orders. It was in the midst of the prevailing excitement, when the whole body of the people were fully aroused, that news arrived of the action at Lexington. This startling intelligence increased the ferment. An appeal to arms and the God of Hosts seemed now to be inevitable. It is at this critical moment that we have our first view of John Marshall. It is now that we get our first distinct impression of his youthful appearance. His company had assembled, according to previous notice, about ten miles from his father's residence. A kins

288 LIFE OF JOHN MARSHALL. man and cotemporary, who was present at their place of meeting, has thus described him as he then and there appeared:-'It was in May, 1775. He was then a youth of nineteen. The muster-field was some twenty miles distant from the Court-house, and in a section of country peopled by tillers of the earth. Rumors of the occurrences near Boston had circulated with the effect of alarm and agitation, but without the means of ascertaining the truth, for not a newspaper was printed nearer than Williamsburg, nor was one taken within the bounds of the militia company, though large. The Captain had called the company together, and was expected to attend, but did not. John Marshall had been appointed Lieutenant to it. His father had formerly commanded it. Soon after Lieutenant Marshall's appearance on theground, those who knew him clustered about him to greet him, others from curiosity and to hear the news.'He proceeded to inform the company that the Captain would not be there, and that he had been appointed Lieutenant instead of a better; that he had come to meet them as fellow-soldiers, who were likely to be called on to defend their country, and their own rights and liberties, invaded by the British; that there had been a battle at Lexington, in Massachusetts, between the British and Americans, in which the Americans were victorious, but that more fighting was expected; that soldiers were called for, and that it was time to brighten their fire-arms, and learn to use them in the field; and that, if they would fall into a single line, he would show them the new manual exercise, for which purpose he had brought his guns-bringing it up to his shoulder. The sergeants

HIS MILITARY SERVICES. 2.89 put the men in line, and their fugleman presented himself in front to the right.'His figure, says his venerable kinsman,'I have now before me. He was about six feet high, straight and rather slender, of dark complexion, showing little if any rosy red, yet good health, the outline of the face nearly a circle, and within that, eyes dark to blackness, strong and penetrating, beaming with intelligence and good nature; an upright forehead, rather low, was terminated in a horizontal line by a mass of ravenblack hair of unusual thickness and strength; the features of the face were in harmony with this outline, and the temples fully developed. The result of this combination was interesting and very agreeable. The body and limbs indicated agility, rather than strength, in which, however, he was by no means deficient. lie wore a purple or pale blue hunting shirt, and trowsers of the same material, fringed with white. A round black hat, mounted with the buck's-tail for a cockade, crowned the figure and the man. He went through the manual exercise by word and motion, deliberately pronounced and performed, in the presence of the company, before he required the men to imitate him; and then proceeded to exercise them, with the most perfect temper. Never did man possess a temper more happy, or, if otherwise, more subdued or better disciplined.' After a few lessons, the company were dismissed, and informed that, if they wished to hear more about the war, and would form a circle around him, he would tell them what he understood about it. The circle was formed, and he addressed the company for something like an hour. I remember, for I was near him, that he spoke, at the close of his speech, of the minute battalion, about to be raised, and said he was VOL. II.- 19

290 LIFE OF JOHN MARSHALL. going into it, and expected to be joined by many of his hearers. He then challenged an acquaintance to a game of quoits, and they closed the day with footraces and other athletic exercises, at which there was no betting. He had walked ten miles to the musterfield, and returned the same distance on foot to his father's house at Oak Hill, where he arrived a little after sunset.' Thus and so was John Marshall, in the freshness of youth, and thus, in the main, did he continue through life. The same simplicity, naturalness, good nature, happy temperament, open, manly, and sincere disposition, were at all times remarked, and secured to him the unaffected love of his countrymen. They could admire the exhibition of his pre-eminent talents, but qualities like these were needed to attract and fix the affection of their hearts. The occurrences to the northward, and the hostile attitude of parties at home, the liability and expectation of being called into immediate service, induced the volunteers of Culpepper, Orange, and Fauquier Counties, to constitute themselves a regiment of minute men. This was, doubtless, the organization to which young Marshall referred, in his address to the militia, as about to be formed. They were the first minute rmen raised in Virginia, and numbered about three hundred and fifty men. Lawrence Taliaferro was chosen their Colonel, Edward Stevens, Lieutenant-Colonel, and Thomas Marshall, the father of the Chief Justice, Major. The future Chief Justice himself received the appointment of first Lieutenant in one of the companies of this regiment. Eulogy on John Marshall by Horace Binney, pp. 22-24.

HIS MILITARY SERVICES. 291 These were the citizen soldiery, who, John Randolph said in the Senate of the United States, in one of his discursive speeches,'were raised in a minute, armed in a minute, marched in a minute, fought in a minute, and vanquished in a minute.' Their appearance was calculated to strike terror into the hearts of an enemy. They were dressed in green hunting-shirts,'home-spun, home-woven, and home-made,' with the words,'Liberty or Death,' in large white letters, on their bosoms.'They wore in their hats buck-tails, and in their belts, tomahawks and scalping-knives. Their savage, warlike appearance, excited the terror of the inhabitants as they marched through the country to Williamsburg.'' Lord Dunmore told his troops before the action at the Great Bridge, which we shall presently describe, that if they fell into the hands of the shirt-men, they would be scalped; an apprehension, it is said, which induced several of them to prefer death to captivity. To the honor of the shirt-mcen, however, it should be observed, that they treated the British prisoners with great kindness- a kindness which was felt and gratefully acknowledged. Early in June, Lord Dunmore, apprehensive of his personal safety, fled on board a man-of-war. With the British shipping, off the coast of Virginia, at his command, he possessed the means of annoying the Virginians, without being able to strike any very effective blow. Through the summer and autumn of 1775, both parties were kept upon the alert, but nothing of a very serious character occurred. At length, on the 7th of November, Dunmore proclaimed martial law, denounced as traitors all who were capable of bearing arms and did not resort to His Majesty's standard,' Howe's Virginia Historical Collections, p. 238.

292 LIFE OF JOHN MARSHALL. and offered freedom to all slaves appertaining to rebels' who would join His Majesty's troops. He set up his standard in Norfolk and Princess Anne, prescribed an oath of allegiance, and, from among the Loyalists, received a considerable accession to his force. At Suffolk, eighteen miles south-west of Norfolk, the Virginians had collected provisions for their troops. To capture these provisions was an object of importance to Lord Dunmore. To prevent it, was an object of equal importance to the Virginians. The Provisional Government had kept a steady eye on his lordship's movements, and clearly perceived the danger of permitting him to retain a foothold at Norfolk. They despatched Colonel Woodford, with a detachment of minute men, including Marshall's company, to protect the provisions at Suffolk, and relieve Norfolk from the presence of the enemy. The engagement which we are now to relate, was the result. About twelve miles from Norfolk, on the only practicable road to Suffolk, was the Great Bridge, as it was termed, and built over the southern branch of Elizabeth River. Here Dunmore, apprised of Woodford's movements, erected a stockade fort, and supplied it with a numerous artillery. The position was a strong one, surrounded on all sides by water and marshes, and only accessible by a long dike. This was commanded by his cannon, as well as the bridge and the causeway on the other side, over which the Americans must pass. The Governor's troops, however, were not equal to his intrenchments. They consisted of two hundred regulars, a corps of Norfolk Loyalists, and'a shapeless mass of varlets of every color.'' Botta.

HIS MILITARY SERVICES. 293 When Woodford arrived at the bridge, he threw up a breastwork at the extremity of the causeway on his side. Neither party seemed disposed to begin the attack. Several days passed, without any serious movement on either side. In numbers and character, the Virginians were much superior to the enemy. True, for the most part, they were unused to warfare, but being chiefly young men, they were full of enthusiasm, alid ready for action. It was here and now, that Lieutenant Marshall had his first experience of war. In the action which ensued, he is said to have borne an honorable part. The enemy were induced to begin the attack by stratagem. A servant of Major Marshall's, after being instructed in the part he was to play, deserted to the enemy, and reported that there were not at the bridge more than three hundred shirt-men. This tale Lord Dunmore believed, and accordingly despatched his regular troops, together with about three hundred blacks and Loyalists, to drive the Virginians from their position. The attack was made on the 9th of December. Captain Fordyce, a brave and accomplished officer, led the attacking party. As they advanced along the causeway to storm the breastwork, they were exposed to the deadly fire of the American riflemen. The effect was overwhelming. The action did not last more than twenty or thirty minutes; but the enemy were totally routed. Lord Dunmore abandoned his intrenchments, spiked his cannon, and again fled to his ships. On the fourteenth, the Americans entered Norfolk. Here Marshall remained with his corps, until the town was bombarded and burned by the British shipping, on the 1st of January following. In July, 1776, he was appointed first Lieutenant in

294 LIFE OF JOHN MARSHIALL the eleventh Virginia regiment, and, in the following winter, joined the army in camp at Morristown. That arny, notwithstanding the successes at Trenton atid Princeton, was in the most wretched condition, both as to numbers and mnateriel. Washington's letter to the Governor and Council of Connecticut, describing tie actual state of affairs, is said to have drawn tears from those who heard it read.''Nothing but a good face and false appearances,' he subsequently wrote, have enabled us hitherto to deceive the enemy respecting our strength.'2 It was the fortune of young Marshall to follow the standard of his country in the gloomiest period of the war; a period, when patient endurance of suffering was Ithe highest quality the soldier could display. In May, when the campaign of 1777 was about opening, he received the appointment of Captain. In this subordinate post he was not in a position to attract the eye of the historian, and, consequently, we are without any detailed account of his actual conduct in the field. Suffice it to say, therefore, that he was engiaged in the action at Iron Hill, which preluded the Battle of Brandywine% when the corps to which he was attached did memorable service. Indeed, the Virginia troops behaved, in -this battle, with the greatest gallantry, and merited universal praise. But the victory, or the results of victory, remained with the Britisho In the course of a few days, General Howe made his triumphal entry into Philadelphia.3 Then followed the Battle of Germantown,4 a battle which would have resulted in favor of the Americans, had not victory been snatched from their grasp, in I Gordon, vol. ii., p. 170. Ibid., p. 198. September 26th, 1777. 4October 3d, 1777.

IRIS MILITARY SERVICES. 295 the manner thus described by one of the American Generals.'At Germantown,' he says,'fortune smiled on our arms for hours. The enemy were broke, dispersed, and flying on all quarters; we were in possession of their whole encampment, together with their artillery park, &c. A wind-mill attack was made on a house into which six light companies had thrown themselves to avoid our bayonets; this gave time to the enemy to rally; our troops were deceived by this attack; taking it for something formidable, they fell back to assist in what they deemed a serious matter. The enemy finding themselves no further pursued, and believing it to be a retreat, followed. Confusion ensued, and we ran away from the arms of victory ready to receive us.' Marshall was with the column that halted to attack Chew's House - an attack to which the ill success of the day is undoubtedly attributable. No further serious engagement took place between the two armies during this campaign; and on the 19th of December, Washington, with his exhausted troops, went into winter quarters at Valley Forge. The cold was extreme; yet his men were without clothes to cover their nakedness, without blankets to lie on, and without shoes, so that their marches could be traced by the blood from their feet. They were as often without provisions as with. But these men, taking up their winter quarters within a day's march of the enemy, without a house or hut to cover them, till they could be built, pinched by hunger, and stiffened by cold, submitted to hardships and privations like these without a murmur. Well might Washington declare without arrogance, or the smallest deviation from truth,'that no history, now extant, Gordon, vol. i., p. 235.

296 LIFE OF JOHN MARSHALL. can furnish an instance of an army's suffering such uncommonio hardships as ours has done, and bearing them with the same patience and fortitude.'7 Marshall's mess-mates, during this memorable winter, were Lieutenant Robert Porterfield, Captain Charles Porterfield, Captain Johnson, and Lieutenant Philip Slaughter. The latter has described the sufferings they endured from want of food and clothing. c Most of the officers gave to their almost naked soldiers nearly the whole of their clothing, reserving only that they themselves had on. Slaughter was reduced to a single shirt. While this was being washed, he wrapped himself in a blanket. From the breast of his only shirt he had wrist-bands and a collar made, to complete his uniform for parade. Many of his brother officers were still worse off, having no under garment at all; and not one soldier in five had a blanket. They all lived in rude huts, and the snow was knee-deep the whole winter. Washington daily invited the officers, in rotation, to dine with hin at his private table; but, for want of decent clothing, few were enabled to attend. Slaughter being so much better provided, frequently went in place of others, that, as he said,' his regiment might be represented." While in this starving condition, the country people brought food to the camp. Often the Dutch women were seen riding in, sitting on bags on their horses' backs, holding two or three bushels each of apple pies, baked sufficiently hard to be thrown across the room without breaking. These were purchased eagerly, eaten with avidity, and considered a great luxury.' Slaughter says,' Marshall was the best-tempered man he ever knew. During their sufferings at Valley W ashington's Writings, vol. v., pp. 321, 329.

298 LIFE OF JOHN MARSHALL. differences, or animated by debate, often submitted the contested points to his judgment, which, being in writing, and accompanied, as it commonly was, by sound reasons in support of his decision, obtained general acquiescence.' 1 He was often employed, during this period of his military life, as Deputy Judge Advocate. The performance of the duties of this post extended his acquaintance among the officers of the army. It was now that he became acquainted with Colonel Hamilton, who was acting as aid-de-camp of the Cornmander-in-chief.'Of Hamilton,' says Judge Story,'he always spoke in the most unreserved manner, as a soldier and statesman of consummate ability; and, in point of comprehensiveness of mind, purity of patriotism, and soundness of principles, as among the first that had ever graced the councils of any nation. His services to the American Republic he deemed to have been of inestimable value, and such as had eminently conduced to its stability, its prosperity, and its true glory.' But, notwithstanding the deep respect he always entertained for Hamtilton,'whtose unreserved friendship, at a subsequent period of his life, he familiarly enjoyed,' we shall hereafter see that, when the man by whose hand he had fallen, was brought before him on a charge of treason, he held the scales of justice with so nice -a poise, he held up before the prisoner the shield of the law with so firm a hand, that if it did not excite the surprise, at least, provoked the indignation of the Chief Executive Magistrate, who pressed the conviction of Burr with a zeal that seemingly had its root in vindictiveness. North American Review for January, 1828, p. 8. 2 Story's Discourse on the Life, &c., of John Marshall, p. 16

HIS MILITARY SERVICES. 299 The possession of Philadelphia promised so little advantage to the Royal forces, and, indeed, exposed them to such danger, that the British Ministry sent out orders, in the spring of 1778, for its speedy evacuation. These orders reached Sir Henry Clinton, who had superseded Sir William Howe, early in June. Hie immediately addressed himself to the task of executing them. In the night of the 18th, the city was evacuated. The American army was immediately put in motion, with the view to harass and impede the progress of the enemy. Marshall was in the Battle of Monmouth, which succeeded. He remained with the army through the campaign, as well as during the following winter. In the campaign of 1779, it was his fortune to be connected with or engaged in two of the most brilliant actions that distinguished it. He was with Wayne at the assault of Stony Point, on the night of the 16th of June, and with the detachment to cover the retreat of Major Lee, after his surprise of the enemy's post at Powle's Hook, on the 19th of July; an enterprise which threw a lustre upon the American arms. He continued with the army until the close of the year, when a part of the Virginia line was sent to South Carolina, to co-operate in the defence of that State. It so happened, that he was attached to the other part, whose term of enlistment now expired. Being thus without command, he, with other supernumeraries, was directed to return home, in order to take charge of such men as-the State might raise for them. No further opportunity for active military service occurred, until the arrival in Virginia of the British army under General Leslie, in October, 1780. Captain Marshall now joined the small force under Baron Steuben, who had been left by General Greene, (while

300 LIFE OF JOHN MARSHALL. on his way to assume the command of the Southern Larmiy,) to direct the defence of the State. General Leslie, however, finding that Lord Cornwallis could not effect a junction with him, an object which was essential to the success of the plan for the reduction of Virginia, finally sailed for Charleston. Late in December, the State was again invaded by Arnold. Marshall joined the forces collected to oppose him, and continued in service until Arnold retired to Portsmouth, in the latter part of the following Jan uary. As there was still a redundancy of officers in the Virginia line, he now resigned his commission; and for the future we shall view himn in a different walk of life.

HIS PRACTICE AT THE BAR. 301 CHAPTER IV. HIS PRACTICE AT THE BAR. 1781- 1799. DURING the season of inaction following his return to Virginia, in the winter of 1779-80, Marshall resumed the study of the law. He attended, at William and Mary's College, a course of law lectures by Mr. Wythe, better known afterwards as Chancellor Wythe, and lectures upon natural philosophy by Mr. Madison, then President of the College, and subsequently Bishop of Virginia. le was connected with the institution until the summer vacation of 1780, and soon after was admitted to the Bar. But, in the tumult of war, the courts of law were suspended in Virginia, and not reopened until after the capture of Cornwallis, in October, 1781. From the termination of Arnold's invasion, when he resigned his commission, until he began his practice upon the re-opening of the Courts, Marshall devoted himself, with unremitting attention, to the study of his future profession. It was at this period of his life, either in the summer of 1780 or 1781, that he undertook a journey to Philadelphia on foot, in order to be inoculated for the small-pox. He walked at the rate of thirty-five miles a day. On his arrival, such was his shabby appearance, that he was refused admission into one of the hotels; his long beard, and worn-out garments, proba

302 LIFE OF JOHN MARSHALL. bly suggesting the idea that his purse was not adequate to his entertainment.' But to the man who had undergone the hardships of Morristown and Valley Forge, who had been reduced almost to nakedness, any garb that served the purpose of a covering, must have seemed sufficient for any occasion. In truth, he was at all times careless of his dress, particularly in early life; and once, as we shall presently relate, lost a generous fee in consequence. He began his professional career in Fauquier, his native county; but, in the course of two years, removed to Richmond, where he continued to reside until his death. His stock of legal knowledge, as we may infer from the short time he had devoted to its acquisition, was not very extensive; but it was said of the Virginians, more than a hundred and fifty years ago, that, being naturally of good parts, they neither require nor admire as much learning as they do in Britain.2 At any rate, such was the felicity of Marshall's understanding, that on a slender foundation of legal science he soon raised himself to the highest reputation in his profession. He attributed his early success at the Bar to the friendship of his old comnSouthern Literary Messenger, vol. ii., p. 183. 2 ( The Present State of Virginia; by Hugh Jones, A.M., Chaplain to the Honorable Assembly, and lately Minister of Jamestown, in Virginia.' The Reverend author seems to have been charmed with his residence among the Virginians, and thus asserts their superiority over all the other colonists -'If New England,' he says,'be called a receptacle of Dissenters, and an Amsterdam of religion, Pennsylvania a nursery of Quakers, Maryland the retirement of Roman Catholics, North Carolina the refuge of runaways, and South Carolina the delight of Buccaneers and Pyrates, Virginia may be justly esteemed the happy retreat of true Britons, ahd true churchmen for the most part; neither soaring too high, nor dropping too low, consequently should merit the greater esteem and encouragement.'

HIS PRACTICE AT THE BAR. 303 panions in arms.'They knew,' he would say, that I felt their wrongs, and sympathized in their sufferings, and had partaken of their labors, and that I vindicated their claims upon their country with a warm and constant earnestness.' We have seen how strong was their attachment to him.'I myself,' says Judge Story, have often heard him spoken of by some of these veterans in terms of the warmest praise. In an especial manner the Revolutionary officers of the Virginia line (now "few and faint, but fearless still") appeared almost to idolize him, as an old friend and companion in arms, enjoying their unqualified confidence.' 2 They knew his abilities, his integrity, and loved him for the goodness of his heart. Strangers, on the contrary, judging from external appearances, might not so readily have given him credit for qualities that would insure success at the Bar. For,, though easy, frank, friendly, and cordial in his manners, and social in his habits, he was yet negligent in his dress, not very studious, and with nothing in his exterior to attract clients. The following anecdote is characteristic of his rustic appearance, at a time when his comprehension and grasp of mind had already attracted the attention of the Bench and Bar, and he was advancing with sure steps to thehead of his profession. He was one morning strolling through the streets of Richmond, attired in a plain linen roundabout and shorts, with his hat under his arm, from which he was eating cherries, when he stopped in the porch of the Eagle hotel, indulged in some little pleasantry with the landlord, and then passed on. Mr. P., an elderly New York Review, vol. iii., p. 333. 2 Discourse upon the Life, &c., of John Marshall, p. 16.

304 LIFE OF JOHN MARSHALL. gentleman fiom the country, then present, who had a case coming on before the Court of Appeals, was referred by the landlord to Marshall, as the best advocate for him to employ; but the careless, languid air of the young lawyer had so prejudiced Mr. P., that he refused to engage him. On entering Court, Mr. P. was a second time referred by the Clerk of the Court, and a second time he declined. At this moment entered Mr. V., a venerable-looking legal gentleman, in a powdered wig and black coat, whose dignified appearance produced such an impression on Mr. P. that he at once engaged him. In the first case which came on, Marshall and Mr. V. each addressed the Court. The vast inferiority of his advocate was so apparent, that, at the close of the case, Mr. P. introduced himself to young Marshall, frankly stated the prejudice which had caused him, in opposition to advice, to employ Mr. V.; that he extremely regretted his error, but knew not how to remedy it. He had come into the city with one hundred dollars, as his lawyer's fee, which he had paid, and had but five left, which, if Marshall chose, he would cheerfully give him, for assisting in the case. Marshall, pleased with the incident, accepted the offer, not, however, without passing a sly joke at the onMipotence of a powdered wig and black coat." Marshall's rise at the Bar was rapid. Once placed in the line of employment, his extraordinary talents could hardly fail to make the same impression on whoever witnessed their display, as on Mr. P.. For, without possessing scarcely a single attribute that we naturally ascribe to the orator, without beauty of style, melody of voice, grace of person, or charm of manner, he, nevertheless, was as distinguished as an advocate, Howe's Virginia Historical Collections, p. 266.

HIS PRACTICE AT THE BAR. 305 as he afterwards became as a judge. The qualities that gave hin such pre-eminence at the Bar are thus delineated by the graceful pen of Mr. Wirt:-'This extraordinary man' says Mr. Wirt,'without the aid of fancy, without the advantages of person, voice, attitude, gesture, or any of the ornaments of an orator, deserves to be considered as one of the most eloquent men in the world; if eloquence may be said to consist in the power of seizing the attention with irresistible force, and never permitting it to elude the grasp, until the hearer has received the conviction which the speaker intends. His voice is dry and hard; his attitude, in his most effective orations, was often extremely awkward; while all his gesture proceeded from his right arm, and consisted merely in a perpendicular swing of it, from about the elevation of his head to the bar, behind which he was accustomed to stand. As to fancy, if she hold a seat in his mind at all, his gigantic genius tramples with disdain on all her flower-decked plats and blooming parterres. How then, you will ask, how is it possible, that such a. man can hold the attention of an audience enchained through a speech of even ordinary length? I will tell you. i He possesses one original, and almost supernatural faculty; the faculty of developing a subject by a single glance of his mind, and detecting at once the very point on which every controversy depends. No matter what the question; though ten times more knotty than " the gnarled oak," the lightning of heaven is not more rapid, or more resistless, than his astonishing penetration. Nor does the exercise of it seem to cost him an effort. On the contrary, it is as easy as vision. I am persuaded, that his eyes do not fly over a landscape, and take in its various objects VOL. II.- 20

306 LIFE OF JOHN MARSHALL. with more promptitude and facility, than his mind embraces and analyzes the most complex subject.'Possessing, while at the Bar, this intellectual elevation, which enabled him to look down and comprehend the whole ground at once, he determined immediately, and without difficulty, on which side the question might be most advantageously approached and assailed. In a bad cause, his art consisted in laying his premises so remotely from the point directly in debate, or else in terms so general and so specious, that the hearer, seeing no consequence which could be drawn from them, was just as willing to admit them as not; but, his premises once admitted, the demonstration, however distant, followed as certainly, as cogently, as inevitably, as any demonstration in Euclid. All his eloquence consists in the apparently deep self-conviction, and emphatic earnestness of his manner; the correspondent simplicity and energy of his style; the close and logical connection of his thoughts; and the easy gradations by which he opens his lights on the attentive minds of his hearers. The audience are never permitted to pause for a moment. There is no stopping to weave garlands of flowers, to hang in festoons around a favorite argument. On the contrary, every sentence is progressive; every idea sheds new light on the subject; the listener is kept perpetually in that sweetly pleasurable vibration, with which the mind of man always receives new truths; the dawn advances with easy but unremitting pace; the subject opens gradually on the view; until, rising, in high relief, in all its native colors and proportions, the argument is consummated, by the conviction of the delighted hearer.'' 1 The British Spy, pp. 178-181.

HIS PRACTICE AT TlE BAR. 307 If Marslhall, as lie first appeared at the Bar, cid not bear a finished resemblance to the picture thus sketched by Mr. Wirt nearly a quarter of a century after, he certainly possessed the more striking outlines of it. Strength, cogency of reasoning, was the characteristic excellence of all his intellectual displays. His naximn seems always to have been,'aim exclusively at strength.' Of eloquence, in the usual sense, he evidently was n.ot emulous, and, perhaps, not capable. His object was to convince, and he sought to do this in the most direct and simple manner. It was always remarkable of him, says Wirt,' that he almost invariably seized one strong point only, the pivot of the controversy; this point he would enforce with all his powers, never permitting his own mind to waver, nor obscuring those of his hearers by a cloud of inferior. unimportant considerations.'1 This'convincing eloquence' which he so pre-eminently possessed, is infinitely more serviceable to its possessor than the most florid harangue, or the most pathetic tones that can be imagined; and the man who is thoroughly convinced himself, who understands his subject, and the language be speaks in, will be more apt to silence opposition, than he who studies the force of his periods, and fills our ears with sounds, while our minds are destitute of conviction.'2 The period succeeding the Revolutionary War witnessed a great accession of business in the Courts. Outstanding debts, unfulfilled contracts, together with the mutations property had undergone amid the conflicts of a long war, were fruitful sources of litigation.'Does not every gentleman here know' demanded Marshall in the Virginia Convention of 1788, when' The British Spy, p. 211. 2 The Bee, No. VI.

308 LIFE OF JOHN MARSIALL. Inaintaining the necessity of a Federal Judiciary,'that the causes in our Courts are more numerous than they can decide, according to their present construction? Look at the dockets. You will find them crowded with suits, which the life of man will not see determined. If some of these suits be carried to other Courts, will it be wrong? They will still have business enough.' It was a period not only of profitable employment to the Bar, but a period calculated to stimulate the highest energies of their minds. The fair fabric of American jurisprudence was yet unreared. The law was in an unsettled state. Questions of novel character occupied the attention of the Courts; questions to be settled, not by the weight of authority, but by the light of reason. It was in the investigation and argument of causes like these, where the advocate was neither aided nor impeded by precedents; where he was compelled to rely on the unassisted powers of his own mind; to support his own thoughts, rather thla quote the thoughts of others, that the great abilities of Marshall found an adequate theatre for their employment and display. When the Federal Judiciary was established, the sphere of his practice was enlarged. Several of the causes in which he was engaged possessed great public interest, and attracted universal attention. The fame of his arguments spread through the Union. WIare versUs Hylton, familiarly known as the British debt case, was one of the causes in which he particularly distinguished himself. It came on for trial at the Circuit Court of the United States at Richmond, in 1793; Chief Justice Jay, Judge Iredell, and Griffin, the Judge of the District Court, holding the term. Patrick Henry, Marshall, Alexander Campbell, and James

HIS PRACTICE AT THE BAR. 309 Itlis, appeared for the American debtors; and Andrew Ronald, Johln'Wickham,' the eloquent, the witty, and thFie graceful," and Starke, and Baker, for the English creditors. The question was, whether the treaty of peace, which. provided that creditors on either side should meet with no latftal impediment to the recovery of the full value of all hona fide debts theretofore contracted, revived debts which had been sequestered during the war by an act of the Virginia Legislature. The eminence of the counsel, as well as the extensive interests to be affected by the decision of the Court, brought together an eager and expectant audience. The Countess of Huntington, then in this country, was present during the trial, and remarked, after hearing the several speakers,'that if every one of tliem had spoken in Westminster Hall, they would have been honored with a peerage.'1' The cause,' said Judge Iredell, has been spoken to, at the Bar, with a degree of ability equal to any occasion. However painfully I may at any time reflect on the inadequacy of iy own talents, I shall, as long as I live, remember with pleasure and respect the arguments which I have heard in this case. They have discovered an ingenuity, a depth of investigation, and a power of reasoning fully equal to any thing I have ever witnessed, and some of them have been adorned with a splendor of eloquence surpassing what I have ever felt before. Fatigue has given way under its influence, and the heart has been warmed, while the understanding has been instructed. 2 Patrick Henry shone, on this occasion, with unsurHowe's Virginia Historical Collections, p. 221. 2 Dallas' Reports, vol. iii., p. 257.

310 LIFE OF JOHN MARSHALL. passed splendor. His vivid feelings, that irresistible charm of his eloquence, were fully aroused, and enlisted in the cause. He made unwonted preparation for the trial; shutting himself up in his office for three days, during which time he did not see even his family; his food being handed by a servant through the office-door.' His argument occupied the attention of the Court during three days. He had a diamond ring on his finger, and, while he was speaking, the Countess of Huntington exclaimed to Judge Iredell, who had never before heard him,'The diamond is blazing!' Gracious God!' replied he, he is an orator indeed.' In this cause he injured his voice so that it never recovered its original power.2 We have no abstract of Marshall's argument on this occasion, and shall not attempt to supply its place by resorting to conjecture. Its character, however, may be surmised by his subsequent argument before the Supreme Court of the United States, whither the cause was carried by writ of error. His colleague in the trial before the latter tribunal was Alexander Campbell. It was, doubtless, to the arguments on this occasion to which Wirt refers in the following extract of a letter to his friend Gilmer. He speaks of them, however, as having been made in the cause which turned on the constitutionality of the carriage tax, a cause, indeed, which was heard at the same term of the Court; but Marshall was not one of the counsel.' From what I have heard of Campbell,' says girt,'I believe that, for mere eloquence, his equal has never been seen in the United States. He and the 1 Virgihia Historical Collections, supra. 2 Ibid. See also Wirt's Patrick Henry, for abstract of his argument

HIS PRACTICE AT THE BAR. 311 Chief Justice went to Philadelphia to argue a causoe which turned on the constitutionality of the carriage tax. It was somewhere about 1795 or 1796. They were opposed by Hamilton, Lewis, and others. Campbell played off his Appollonian airs; but they were lost. Marshall spoke, as he always does, to the judgment merely, and for the simple purpose of convincing. Marshall was justly pronounced one of the greatest men of the country. He was followed by crowds, looked upon, and courted with every evidence of admiration and respect for the great powers of his mind. Campbell was neglected and slighted, and came home in disgust. Marshall's maxim seems always to have been, aim exclusively at strength;" and from his eminent success, I say, if I had my life to go over again, I would practice on his maxim with the most rigorous severity, until the character of my mind was established.' Marshall's argument, as preserved in the report of the case, will now claim our attention:-'The case resolves itself, said he,'into two general propositions. First, That the Act of Assembly of Virginia is a bar to the recovery of the debt, independent of the treaty. Secondly, That the treaty does not remove the bar.'That the Act of Assembly of Virginia is a bar to the recovery of the debt, introduces two subjects for consideration:'First, Whether the Legislature had power to extinguish the debt? Secondly, Whether the Legislature had exercised that power?'Kennedy's Wirt, vol. ii., p. 83.

312 LIFE OF JOHN rMARS.HALL' First. It has been conceded, that independent nations have, in general, the right of confiscation; and that Virginia, at the time of passing her law, was an independent nation. But, it is contended, that, from the peculiar circumstances of the war, the citizens of each of the contending nations having been members of the same government, the general right of confiscation did not apply, and ought not to be exercised. It is not, however, necessary for the defendant in error to show a parallel case in history; since it is incumbent on those who wish to impair the sovereignty of Virginia, to establish, on principle, or precedent, the justice of their exception. That State being engaged in a war, necessarily possessed the powers of war; and confiscation is one of those powers, weakeningl the party against whom it is employed, and strengthening the party that employs it. War, indeed, is a state of force; and no tribunal can decide between the belligerent powers. Buut did not Virginia hazard as much by the war, as if- she had never been a member of the British empire? Did she not hazard more, from the very circumstance of its being a civil war? It will be allowed, that nations have equal powers; aund that America, in her own tribunals at least, must, firom the 4th of July, 1776, be considered as independent a nation as Great Britain. Then, whav t woui(l have been thle situation of Amnerican property, had Great Britain been triunlphant in the conflict? Sequestration, confiscation, and proscription would have followed in the train of that event; and why should the confiscation of British property be deemed less just in the event of the American triumph? The rights of war clearly exist between members of the same empire, engaged in a civil war. But, suppose a suit had been brought, during the

HIS PRACTICE AT THE BAR. 313 war, by a British sulject against an American citizen, it could not have been supported; and, if there was a power to suspend the recovery, there must have been a power to extinguish the debt. They are, indeed, portions of the same power, emanating from the same sourie. The legislative authority of any country can only be restrained by its own municipal constitution. This is a principle that springs from the very nature of society; and the judicial authority can have no righlt to question the validity of a law, unless such a jurisdiction is expressly given by the Constitution. It is not necessary to inquire how the judicial authority sho!uld act, if the Legislature were evidently to violate any of the laws of God; but property is the creature of civil society, and subject, in all respects, to the disposition and control of civil institutions...'But it is now to be considered, whether, if the Legislature of Virginia had the po\wer of confiscation, they have exercised it? Thie third section of the Act of Assembly discharges the debtor; and, on the plain import of the term, it may be asked, if he is dischtrged, how can he remain charged? The expression is, he shall be discharged from the debt; and yet, it is contended he shall remain liable to the debt. Suppose the law h:ad said, that the debtor should be discharged frorn the Commonwealth, but not firom his creditor, wu1ld not the Legislature have betrayed the extreinest folly in such a proposition? and what man in his senses would have paid a farthing into the treasury under suchl a law? Yet, in violation of the expressions of the Act, this is the construction which is now attempted. It is, likewise, contended, that the Act of Assembly does not amount to a confiscation of the debts paid into the treasury; and that the Legislature had. no

314 LIFE OF JOHN MARSHALL. power, as between creditors and debtors, to make a substitution, or commutation, in the mode of payment. But, what is a confiscation? The substance, and not the form, is to be regarded. The State had a right either to make the confiscation absolute, or to modify it as she pleased. If she had ordered the debtor to pay the money into the treasury, to be applied to public uses, would it not have been, in the eye of reason, a perfect confiscation? She has thought proper, however, only to authorize the payment, to exonerate the debtor from his creditor, and to retain the money in the treasury, subject to her own discretion, as to its future appropriation. As far as the arrangement has been made, it is confiscatory in its nature, and must be binding on the parties; though, in the exercise of her discretion, the State might choose to restore the whole, or any part, of the money to the original creditor. Nor is it. sufficient to say, that the payment was voluntary; in order to defeat the confiscation. A law is an expression of the public will; which, when expressed, is not the less obligatory, because it imposes no penalty.. GHaving thus, then, establised that, at the time of entering into the treaty of 1783, the defendant owed nothing to the plaintiff, it is next to be inquired, whether th(t treaty revived the debt in favor of the plaintiff, and removed the bar to a recovery, which the law of Virginia had interposed? The words of the fourth article of the treaty are, " that creditors on either side shall meet with no lawful impediment to the recovery of the full value, in sterling money, of all bona fide debts heretofore contracted." Now, it may be asked, who are creditors? There cannot be a creditor where there is not a debt; and British debts were extinguished by the act of confiscation. The articles, there

HIS PRACTICE AT THE BAR. 315 fore, must be construed with reference to those creditors who had bona fice debts subsisting, in legal force, at the time of making the treaty; and the word recovery can have no effect to create a debt, where none previously existed. Without discussing the power of Congress to take away a vested right by treaty, the fair and rational construction of the instrument itself is sufficient for the defendant's cause. The words ought, surely, to be very plain, that shall work so evident a hardship, as to compel a man to pay a debt which he had before extinguished. The treaty itself does not point out any particular description of persons who were to be deemed debtors; and it must be expounded in relation to the existing state of things.'It is not true, that the fourth article can have no meaning, unless it applies to cases like the present. For instance - there was a law of Virginia,.which prohibited the recovery of British debts, that had not been paid into the treasury. These were bonac fide subsisting debts; and the prohibition was a legal impediment to the. recovery, which the treaty was intended to remove. So, likewise, in several other States, laws had been passed authorizi'ng a discharge of British debts in paper money, or by a tender of property at a valuation, and the treaty was calculated to guard against such impediments to the recovery of the sterling value of those debts. It appears, therefore, that, at the time of making the treaty, the state or things was such, that Virginia had exercised her sovereign right of confiscation, and had actually received the money from the British debtors. If debts thus paid were within the scope of the fourth article, those who framed the article knew of the payment; and, upon every principle of equity and law, it ought to be presumed, that the recovery, which they contemplated,

316 LIFE OF JOHN MARSHALL. was intended against the receiving State, not against the paying debtor. Virginia possessing the right of compelling a payment for her own use, the payment to her, upon her requisition, ought to be considered as a payment to the attorney, or agent, of the British creditor. Nor is such a substitution a novelty in legal proceedings; a foreign attachment is founded upon the same principle.'This Act of Virginia must have been known to the American and British Commissioners; and, therefore, cannot be repealed without plain and explicit expressions directed to that object. Besides, the public faith ought to be preserved. The public faith was plighted by the Act of Virginia; and, as a revival of the debt in question would be a shameful violation of the faith of the State to her own citizens, the tretty should receive any possible interpretation to avoid so dishonorable and so pernicious a consequence. It is evident, that the power of the Government to take away a vested right, was questionable in the minds of the American Commissioners, since they would not exercise that power in restoring confiscated real estate; and confiscated debts, or other personal estate, must come within the same rule, &c. The abstract of an argument like this of Marslall's, must necessarily give the reader an imperfect idea of its power. Nevertheless, he cannot fail to be imprlessed with the vigor, rigorous analysis, and close reasoni:ng that mark every sentence of it. We have seen that it elicited great admiration at the time of its delivery, and enlarged the circle of his reputation. EHis practice, for 8everal years before his final withdrawal from the Bar, was more extensive than that of any other lawyer in Virginia. The Duke de Liancourt, who was

HIS PRACTICE AT TI1E BAR. 317 in Richmond, in 1797, speaking of Edmund Randolph, the ex-Secretary of State, says that'he lhas great practice, and stands, in that respect, nearly on a par with Mr. J. Marshall, the most esteemed and celebrated counsellor in this town. The profession of a lawyer is here, as in every other part of America, one of the most profitable. But, though the employlment be here more constant than in Carolina, the practitioner's emoluments are very far from being equally considerable. Mr. Marshall does not, from his practice, derive above four or five thousand dollars per annzuZm, and not even that sum every year.'1 Mr. J. Marshall,' says the Duke, after a more faniliar acquaintance with the public characters at the capital of Virginia,'conspicuously eminent as a professor of the law, is, beyond all doubt, one of those who rank highest in the public opinion at Pichmond. He is what is termed a Federalist, and perhaps, at times, somewhat warm in support of his opinions, but never exceeding the bounds of propriety, which a man of his goodness, and prudence, and knowledge, is incable of transgressing. IHe may be considered as a distinguished character in the United States. His political eiemries allow him to possess great talents, but accuse him of ambition. I know not whether the charge be well or ill-grounded, or whether that ambition might ever be able to impel him to a dereliction of his principles - a conduct of which I am inclined to disbelieve the possibility on his part. -Ie has already refused several employments under the General Government, preferring the income derived from his professional labors (which is more than sufficient Travels, vol. ii., p. 38.

318 LIFE OF JOHN MARSHALL. for his moderate system of economy), together with a life of tranquil ease in the midst of his faimily, and in his native town.' Even by his friends he is taxed with some little propensity to indolence; but, even if this reproach were well-founded, he, nevertheless, displays great superiority in his profession when he applies his mind to business.'2 We shall see, in the following chapters, that Marshall never sought office; that, in most instances, he accepted it with reluctance, and always returned to his profession with renewed interest, and a determina. tion to pursue it with undivided attention. His ambi tion, if that sentiment held any place in his mind at all, sought its gratification in the triumphs of the Bar. Though warmly and earnestly attached to the politi. c'al principles of the Federal party, he seems to have had a repugnance to a political career. His nature was not sufficiently eager and aspiring to seek or covet its honors. When lie engaged in the public service, it was, for.the most part, for some special purpose, and on some special occasion. In truth, the insinuation that selfish ambition influenced either his sentiments or conduct finds no support in any act of his life.'Even by his friends he is taxed with some little propensity to indolence,' says the Duke de Liancourt; and his friends, we suspect, were not unjust to him. In truth, he was something of a truant. But such were the vigor and comprehension of his mind, that he could better afford, than most men, to indulge a fondness for social, and even convivial enjoyment. This is a mistake; Marshall being a native of Fauquier County. a Travels, vol. ii., p. 62.

HIS PRACTICE AT THE BAR. 319 It was hardly possible for a lawyer of Marshall's conceded abilities, and great personal popularity, to keep aloof from public life during the eventful period in which he lived. Having, therefore, seen what success crowned his exertions at the Bar, we shall now proceed to trace his various services to the public, at home and abroad.

320 LIFE OF JOHN MARSHALL, CHAPTER V. 1782 -1788. MEMBER OF THE VIRGINIA LEGISLATURE. THE political career of John Marshall is prominently distinguished for his devotion to the Union of the States, and a government competent to maintain it. He early perceived the inadequacy of the Confederation, and the absolute necessity of a more comprehensive and vigorous central authority. He belonged, from the outset, to the party who would strengthen the General Government, and enable it to execute the powers with which it might be invested, independently of the several States. Virginia was the State of his birth, and the home of his affections; but the UnitecI States constituted his country-a country dearer and mnore comprehensive than the local limits within which he was born. His attachment to the Union was formed early, and fostered by the circumstances that attended his outset in life. When I recollect' thus he wrote long after to a friend, 6 the wild and enthusiastic notions with which my political opinions of that day were tinctured, I amn disposed to ascribe my devotion to the Union, and to a governinent competent to its preservation, at least, as much to casual circumstances as to judgment. I had grown up at a time when the love of the Union,

MEMBER OF VIRGINIA LEGISLATURE. 321 and the resistance to the claims of Great Britain, were the inseparable inmates of the same bosom; when patriotism and a strong fellow-feeling with our suffering fellow-citizens of Boston were identical; when the maxim, " United we stand; divided we fall," was the maxim of every orthodox American. And I had imbibed these sentiments so thoroughly, that they constituted a part of my being. I carried them with me into the army, where I found myself associated with brave men from different States, who were risking life and everything valuable, in a common cause, believed by all to be most precious; and where I was in the habit of considering America as my country, and Congress as my government.' These sentiments were confirmed by the progress of events, and his experience in the Assembly of Virginia. He was elected a member of that body in the I/pring of 1782, and in the autumn a member of the Executive Council. He knew what hardships the army had endured; he had partaken their sufferings, and'my immediate entrance into the State Legislature,' said he in the letter from which the preceding extract is taken,'opened to my view the causes which had been chiefly instrumental in augmenting those sufferings; and the general tendency of State politics convinced me, that no safe and permanent remedy could be found, but in a more efficient and better organized General Government.'2 At this time, the Federal treasury was destitute of money, and the army without pay, provisions or clothrng. The non-compliance of the States with the requisitions of Congress threatened the most disastrous conStory's Discourse on the Life, &c., of John Marshall. 2 Ibid. VOL. II. — 21

322 LIFE OF JOHN MARSHIALL. sequences. We have seen, in the Life of Rutledge, that that body sent a deputation to the Eastern and Southern States, to explain the condition of public affairs, and the danger to which the country was exposed by the delinquency of the several members of the Confederacy.' Rutledge and Clymer, who were deputed to visit the Southern States, were permitted to make a personal address to the Virginia Assembly.2 Of this Assembly Marshall was a member; and a steady advocate of all measures that tended to strengthen the Federal authority, and enable it to perform.its obligations to the army, and the public creditors. His vindications of the claims of the army upon the country were constant and earnest, and awakened their gratitude. But so feeble was the Confederacy, and so languid and exhausted the States, that he clearly perceived the impossibility of reviving the public spirit, and restoring the public credit, without the establishment of a more vigorous and comprehensive system of government. This was the leading idea of his scheme of politics. On the 3d of January, 1783, he was married to Mary Willis Ambler, a daughter of Jacqueline Ambler, then Treasurer of Virginia. Ile had become attached to this lady before he left the army; an attachment which continued with unabated fervor to the end of his days. She died several years before him; but he cherished her memory with unaffected tenderness, and in his will described her as a sainted spirit that had fled from the sufferings of life. About the time of his rmarriage, he fixed his residence in Richmond. Desirous of devoting himself more closely to his profession, he resigned his seat in Vol. i., p. 591. 2 On the 14th of June, 1782.

MEMBER OF VIRGINIA LEGISLATURE. 323 the Executive Council. But he was not permitted thus to withdraw from public life. His old friends, neighbors, and former constituents of Fauquier County, immediately after his resignation, namely, in the spring of 1784, again elected him a member of the Assembly. Three years later, Henrico, his adopted county, paid him the same tribute of respect. At the time of this last electron, the affairs of the United States were fast sinking into utter disorder and confusion. Reflecting minds beheld the progress of events with the most gloomy forebodings. They saw that immediate and effectual reform alone could arrest the downward tendency of things. To accomplish that object they now earnestly addressed themselves. Shall the arm of the Federal Government be strengthened; shall it be invested with larger and more effectual powers over the commerce, the money, the foreign and mutual relations of the States; shall it have a revenue independent of them, and authority to carry into effect its measures without their instrumentality? These were the questions that now awakened and agitated the public mind. Marshall's judgment, reflection, and experience, alike concurred in giving them an affirmative answer. But in all the States, and particularly in Virginia, there was a party who were actuated by an extreme jealousy of national sovereignty. Although it was notorious that the Articles of Confederation had proved totally inadequate to all the purposes of a government, they insisted that, with some slight modifications, they conferred on the central authority all the power with which it was either prudent or safe to invest it. Rather than give it more, they would risk a dissolution of the Union; believing that a consolidated government was more

324 LIFE OF JOHN MARSHALL. to be dreaded, than the possible separation of the States.' Against notions like these, Marshall earnestly protested. Ile believed that the salvation of his country depended on the prevalence of more enlarged views, and more solid principles. In the Assembly, in popular meetings, he maintained the necessity of a more vigorous scheme of government, not only to preserve the Union, but to insure its benefits. The doctrines he now advocated formed the basis of his political creed through life. He adhered to them when they were in the ascendant, and after they had fallen into disfavor. From first to last, he was a Federalist.'Among innumerable false, unmov'd, Unshaken, unsedue'd, unterrified; His loyalty he kept, his love, his zeal.' He hailed the call of the Federal Convention as an auspicious event; and, without hesitation, vindicated the result of its labors. Judge Story has said that'the question, whether the Union ought to be continued, or dissolved by a total separation of the States, was freely discussed,' in the halls of the Virginia Legislature;' and either side of it was maintained, not only without reproach, but with an uncompromising fearlessness of consequences.' Discourse on Marshall, p. 25. In this the learned Judge is, probably, in error. There were in Virginia, as in every other State, enemies of the Union; bul they were not to be found, we apprehend, among her public men, Many of these, indeed, protested against conferring on the Genera Government what they considered dangerous powers; but they pro fessed great attachment to the Union of the States. Said Georg{ Mason in the Virginia Convention, I have never, in my whole life heard one single man deny the necessity and propriety of the Union. And Governor Randolph, on the same occasion, spoke of a dissolu tion of the Union, as that deplorable thing' which no mn a yet ha dared openly to advocate.'

'4EMBER OF VIRGINIA LEGISLATURE. 325'In the course of the session of 1788,' be says, the increasing efforts of the enemies of the Constitution made a deep impression; and before its close, a great majority showed a decided hostility to it. I took an active part in the debates on this question, and was uniform in support of the proposed Constitution.' With these sentiments, he was elected a member of the Virginia Convention, and in the next chapter we shall see the part he took in its deliberations.

326 LIFE OF JOHN MARSHALL. CHAPTER VI. 1788. MEMBER OF THE VIRGINIA CONVENTION. PERSONALLY, Marshall was the most popular of men. His serene and joyous temper, his kind and generous heart, his exemption from pride and affectation, his moderation, candor, and integrity, attracted and fixed the regards of men. Though party spirit might run high, and the principles he espoused be little in favor, he never failed, when a candidate, to secure his election. A conspicuous instance of this personal weight and influence was his election as a member of the Virginia Convention, which met to decide on the ratification of the Federal Constitution. The current of opinion had set strongly against that instrument throughout Virginia. A majority of the voters of Henrico County were supposed to be hostile to it. Nevertheless, Marshall, with his well-known opinions, came forward as a candidate for the Convention. The questions,' he said afterwards,'which were perpetually recurring in the State Legislatures; anc which brought annually into doubt principles which I thought most sacred; which proved, that everything was afloat, and that we had no safe anchorage ground; gave a high value, in my estimation, to that article in the Constitution which imposes restrictions on the

MEMBER OF VIRGINIA CONVENTION. 327 States. I was, consequently, a determined advocate for its adoption, and became a candidate for the Convention.' His opinions constituted the only obstacle to his election; and the determined effort that was made, on that ground, to defeat him, signally failed.'Parties, as he subsequently said,'had not yet become so bitter as to extinguish the private affections;' and he was elected by a, considerable majority. The Convention assembled at Richmond on the 2d day of June, 1788. It was composed of the best abilities of Virginia. The fame of the speakers, and the magnitude of the question that was to engage their powers, created a vast expectation.'Industry deserted its pursuits, and even dissipation gave up its objects, for the superior enjoyments which were presented by the hall of the Convention. Not only the people of the t own and neighborhood, but gentlemen from every quarter of the State, were seen thronging to the metropolis, and speeding their eager way to the building in which the Convention held its meetings. Day after day, from morninlg till night, the galleries of the house were continually filled with an anxious crowd, who forgot the inco.nvenience of their situation in the excess of their enjoyment; and far from giving any interruption to the course of the debate, increased its interest and solemnity by their silence and attention. No bustle, no motion, no sound, was heard among them, save only a slight movement, when some new speaker arose, whom they were all eager to see as well as to hear; or when somte masterstroke of eloquence shot thrilling along their nerves, and extorted an involuntary and inarticulate murmur. Story's Discourse, p. 28.

328 LIFE OF JOHN MARSHALL. Day after day was this banquet of the mind and of the heart spread before them, with a delicacy and va,riety which could never cloy' 1 Conspicuous among those who opposed the ratification of the Constitution were Patrick Henry, George Mason, and William Grayson; a combination of eloquence, vigor, and genius, not often surpassed, and seldom equalled. Foremost among those who supported it were James Madison and Edmund Randolph. On the same side were arrayed, among other distinguished names, the venerable Edmund Pendleton, who presided over the deliberations of the Convention; James Innis, the Attorney-General of Virginia, a gentleman of great eloquence,'eloquence,' said Patrick Henry,'splendid, magnificent, and sufficient to shake the human mind' George and William Nicholas, and John Marshall. The after-acquired renown of the latter gives a sort of retroactive interest to his efforts on this occasion; but, even disconnected with his subsequent career, they will be found to possess sufficient merit to foreshow great reputation as a debater. That perfect exemption from needless incurnbrance of matter or ornament, which has been pointed out as characteristic of all his intellectual displays, and as the effect, in some degree, of an aversion to the labor of thinking, is equally evinced in the speeches we are about to lay before the reader. We could wish, at the same time, to give him an accurate idea of the speaker's manner in public debate. That manner was peculiar, but effective. In nothing, perhaps, did it emulate the unrivalled oratorical qualities of Patrick Henry. Indeed, 1 Life of Patrick Henry, p. 293.

MEMBER OF VIRGINIA CONVENTION. 329 a greater contrast could hardly be conceived than between these two men. The one had passion, fire, impetuosity, and, as shown by these debates, vigorous conceptions and clear ideas. The other depended on reason alone, and yet, when in full career, held the attention of his audience with as firm a grasp as his more eloquent opponent. His exordium, however, was little calculated to create expectation, or awaken sympathy. So great a mind, perhaps, like large bodies in the physical world, is with difficulty set in motion. That this is the case with Mr. Marshall's is manifest, from his mode of entering on an argument, both in conversation and in public debate. It is difficult to rouse his faculties: he begins with reluctance, hesitation, and vacancy of eye: presently, his articulation becomes less broken, his eye more fixed, until, finally, his voice is full, clear, and rapid, his manner bold, and his whole face lighted up with the mingled fires of genius and passion: and he pours forth the unbroken stream of eloquence in a current deep, majestic, smooth, and strong. He reminds one of some great bird, which flounders and flounces on the earth for awhile, before it acquires impetus to sustain its soaring flight.'1 Marshall's first speech in the Convention was on the power of taxation; but as the debate had been discursive, he did not confine his attention exclusively to that topic, and replied to many of the objections' Sketches and Essays of Public Characters,' by Francis W. Gilmer.

330 LIFE OF JOHN MARSHALL. that had been urged against the Constitution as a whole.'I conceive' said he, cthat the object of the discussion now before us is, whether democracy or despotism be most eligible. I am sure that those who framed the system submitted to our investigation, and those who now support it, intend the establishment and security of the former. The supporters of the Constitution claim the title of being firm friends of the liberty and the rights of mankind. They say that they consider it as the best means of protecting liberty. We, Sir, idolize democracy. Those who oppose it have bestowed eulogiums on monarchy. We prefer this system to any monarchy, because we are convinced that it has a greater tendency to secure our liberty, and promote our happiness. We admire it, because we think it a well-regulated democracy. It is recommended to the good people of this country; they are, through us, to declare whether it be such a plan of government as will establish and secure their freedom.. Permit me to attend to what the honorable gentleman [Patrick Henry] has said. He has expatiated on the necessity of a due attention to certain maxims; to certain fundamental principles, from which a free people ought never to depart. I concur with him in the propriety of the observance of such maxims. They are necessary in any government, but more essential to a democracy than to any other. What are the fiavorite maxins of democracy? A strict observance of justice and public faith, and a steady adherence to virtue. These, Sir, are the principles of a good government. No mischief, no misfortune, ought to deter us from a strict observance of justice and public faith. Would to Heaven that these principles had been ob

MEMBER OF VIRGINIA CONVENTION. 331 served under the present government! Had this been the case, the friends of liberty would not be so willing now to part with it. Can we boast that our governinent is founded on these maxims? Can we pretend to the enjoymlent of political fieedom or security, when we are told that a man has been, by an Act of Assembly, struck out of existence without a trial by jury, without examination, without being confronted with his accusers and witnesses, without the benefits of the law of the land? Where is our safety, when we are told that this act was justifiable, because the person was not a Socrates? What has become of the worthy member's maxims? Is this one of them? Shall it be a maxim, that a man shall be deprived of his life without the benefit of law? Shall such a deprivation of life be justified by answering, that the man's life was not taken seclndzm arqtem because he was a bad man? Shall it be a maxim, that government ought not to be empowered to protect virtue?'' Marshall here refers to the case of Josiah Phillips, which had been adduced by Governor Randolph as an instance of gross departure from national principles, as well as.a violation of the Constitution of Virginia. The facts of the case were thus stated by Randolph:-' From mere reliance on general reports, a gentleman in the House of Delegates informed the House, that a certain man (Phillips) had committed several crimes, and was running at large, perpetrating other crimes. He, therefore, moved for leave to attaint him; he obtained that leave instantly; no sooner did he obtain it, than he drew from his pocket a bill ready written for that effect; it was read three times in one day, and carried to the Senate. I will not say that it passed the same day through the Senate; but he was attainted very speedily and precipitately, without any proof better than vague reports. Without being confronted with his accusers and witnesses, without the privilege of calling for evidence in his behalf, he was sentenced to death, and was afterwards actually executed. Was this arbitrary deprivation of life, the dearest gift of God to man, consistent with the genius of a republican government? Is this compatible with the

332 LIFE OF JOHN MARSHALL.' ie says, we wish to have a strong, energetic, powerful government. We contend for a well-regulated democracy. He insinuates that the power of the government has been enlarged by the Convention, and that we may apprehend it will be enlarged by others. The Convention did not, in fact, assume any power. spirit of freedom? This, Sir, has made the deepest impression on my heart, and I cannot contemplate it without horror.'-Elliott's Debates, vol. iii., p. 66. Patrick Henry thus replied:-'The honorable gentleman has given you an elaborate account of what he judges tyrannical legislation, and an ex post facto law, in the case of Josiah Phillips. He has misrepresented the facts. That man was not executed by a tyrannical stroke of power. Nor was he a Socrates. He was a fugitive murderer, and an outlaw; a man who commanded an infamous banditti, and at a time when the war was at the most perilous stage. He committed the most cruel and shocking barbarities. He was an enemy to the human name. Those who declare war against the human race may be struck out of existence as soon as they are apprehended. He was not executed according to those beautiful legal ceremonies which are pointed out by the laws in criminal cases. The enormity of his crimes did not entitle him to it. I am truly a friend to legal forms and methods; but, Sir, in this case the occasion warranted the measure. A pirate, an outlaw, or a common enemy to all mankind, may be put to death at any time. It is justified by the laws of nature and nations.'-Ibid., p. 140. When this act of attainder passed, Henry was the Governor of Virginia, and Jefferson a member of the Assembly. Randolph, who had been hard pressed by Henry in debate, and arraigned for inconsistency in now supporting the Constitution, when, as a member of the Federal Convention, he had refused -to sign it, brought forward the case of Phillips as a means of retaliation. But Jefferson says that Phillips was not executed under the act of attainder; that he was indieted at common law for either robbery or murderj was regularly tried, convicted, and executed. No use, he says, was ever made of the act of attainder. Governor Randolph acted for the Commonwealth in the prosecution; he being, at that time, Attorney-General. Jefferson supposes that there must have been some mistake in the report of Randolph's statement of the case in the Convension, as well as in Henry's reply.-See Jefferson's Works, vol. vi., pp 369, 440.

MEMBER OF VIRGINIA CONVENTION. 333 They have proposed to our consideration a scheme of government which they thought advisable. We are not bound to adopt it, if we disapprove of it. Had not every individual in this community a right to tender that scheme which he thought most conducive to the welfare of his country? Have not several gentlemen already demonstrated that the Convention did not exceed their powers? But the Congress have the power of making bad laws, it seems. The Senate, with the President, he informs us, may make a treaty which shall be disadvantageous to us; and that, if they be not good men, it will not be a good Constitution. I shall ask the worthy member only, if the people at large, and they alone, ought to make laws and treaties? Has any man this in contemplation? You cannot exercise the powers of government personally yourselves. You must trust to agents. If so, will you dispute giving them the power of acting for you, from an existing possibility that they may abuse it? As long as it is impossible for you to transact your business in person, if you repose no confidence in delegates, because there is a possibility of their abusing it, you can have no government; for the power of doing good'is inseparable from that of doing some evil.''Let me pay attention to the observation of the gentleman who was last up [Mr. Monroe], that the power of taxation ought not to be given to Congress. This subject requires the undivided attention of this House. This power I think essentially necessary; for, without it, there will be no efficiency in the government. We have had a sufficient demonstration of the vanity of depending on requisitions. How, then, can the General Government exist without this power? The possibility of its being abused is urged as an argument against its expediency. To very little purpose did

334 LIFE OF JOHN MARSHALL. Virginia discover the defects in the old system; to little purpose, indeed, did she propose improvements; and to no purpose is this plan constructed for the promotion of our happiness, if we refuse it now, because it is possible it may be abused. The Confederation has nominal powers, but no means to carry them into effect. If a system of government were devised by more than human intelligence, it would not be effectual if the means were not adequate to the power. All delegated powers are liable to be abused. Arguments drawn from this source go in direct opposition to the government, and in recommendation of anarchy. The friends of the Constitution are as tenacious of liberty as its enemies. They wish to give no power that will endanger it. They wish to give the government powers to secure and protect it. Our inquiry here must be, whether the power of taxation be necessary to perform the objects of the Constitution, and whether it be safe, and as well guarded as human wisdom can do it? What are the objects of the national government? To protect the United States, and to promote the general welfare. Protection, in time of war, is one of its principal objects. Until mankind shall cease to have ambition and avarice, wars will arise.''There must be men and money to protect us. How are armies to be raised? Must we not have money for that purpose? But the honorable geitleman says that we need not be afraid of war. Look at history, which has been so often quoted. Look at the great volume of human nature. They will foretell you that a defenceless country cannot be secure. The nature of man forbids us to conclude that we are in no danger from war. The passions of men stimulate them to avail themselves of the weakness of others. The Powers of Europe are jealous of us. It is our interest

MEMBER OF VIRGINIA CONVENTION. 335 to watch their conduct, and guard against them. They must be pleased with our disunion. If we invite them, by our weakness, to attack us, will they not do it? If we add debility to our present situation, a partition of America may take place. It is, then, necessary to give the government that power, in time of peace, which the necessity of war will render indispensable, or else we shall be attacked unprepared. The experience of the world, a knowledge of human nature, and our own particular experience, will confirm this truth. When danger shall come upon us, may we not do what we were on the point of doing once already; that is, appoint a dictator..... We may now regulate and frame a plan that will enable us to repel attacks, and render a recurrence to dangerous expedients unnecessary. It' we be prepared to defend ourselves, there will be little inducement to attack us. But, if we defer giving the necessary power to the General Government till the moment -of danger arrives, we shall give it then, and with an un9sparing ha7znd.''I defy you to produce a single instance where requisitions on several individual States, composing a Confederacy, have been honestly complied with. Did gentlemen expect to see such punctuality complied with in America? If they did, our own experience shows the contrary.''A bare sense of duty, or a regard to propriety, is too feeble to idlduce men to comply with obligations. We deceive ourselves, if we expect any efficacy from these. If requisitions will not avail, the government must have the sinews of war some other way. Requisitions cannot be effectual. They will be productive of delay, and will ultimately be inefficient. By direct taxation, the necessities of the government will be supplied in a peaceable manner, without irritating the minds of the peoule. But

336 LIFE OF JOHN MARSHALL. requisitions cannot be rendered efficient without a civil war; without great, expense of money, and the blood of our citizens.9'Is the system so organized as to make taxation dangerous?.. I conceive its organization to be sufficiently satisfactory to the warmest friend of freedom. No tax can be laid without the consent of the Iouse of Representatives. If there be no impropriety in the mode of electing the Representative, can any danger be apprehended? They are elected by those who can elect Representatives in the State Legislature. How can the votes of the electors be influenced? By nothing but the character and conduct of the men they vote for.''If they are to be chosen for their wisdom, virtue and integrity, what inducement have they to infringe on our freedom? We are told that they may abuse their power. Are there strong motives to prompt them to abuse it? Will not such abuse militate against their own interest? Will not they, and their friends, feel the effects of iniquitous measures? Does the Representative remain in office for life? Does he transmit his title of Representative to his son? Is he secured from the burden imposed on the community? To procure their re-election, it will be necessary for them to confer with the people at large, and convince them that the taxes laid are for their good. If I am able to judge on the subject, the power of taxation now before us is wisely conceded, and the Representatives wisely elected.''The extent of the country is urged as another objection, as being too great for a republican government. This objection has been handed from author to author, and has been certainly misunderstood and misapplied. To what does it owe its source? To observations and criticisms on governments, where repre

MEMBER OF VIRGINIA CONVENTION. 337 sentation did not exist. As to the legislative power, was it ever supposed inadequate to any extent? Extent of country may render it difficult to execute the laws, but not to legislate. Extent of country does not extend the power. What will be sufficiently energetic and operative in a small territory, will be feeble when extended over a wide-extended country. The gentleman tells us there are no checks in this plan. What has become of his enthusiastic eulogium on the American spirit. We should find a check and control, when oppressed, from that source. In this country, there is no exclusive personal stock of interest. The interest of the community is blended and inseparably connected with that of the individual. When he promotes his own, he promotes that of the community. When we consult the common good, we consult our own. When he desires such checks as these, he will find them abundantly here. They are the best checks. What has become of his eulogium on the Virginia Constitution? Do the checks in this plan appear less excellent than those of the Constitution of Virginia? If the checks in the Constitution be compared to the checks in the Virginia Constitution, he will find the best security in the former.' "The worthy member [Patrick Henry] has coneluded his observations by many eulogiums on the British Constitution. It matters not to us whether it be a wise one or not. I think that, for America at least, the government on your table is very much superior to it. I ask you, if your House of Representatives would be better than it is, if a hundredth part of the people were to elect a majority of them, if your Senators were for life, would they be more agreeable to you? If your President were not accountable to you for his conduct-if it were a constitutional maxim, VoL. II.- 22

338 LIFE OF JOHN MARSHALL. that he could do no wrong -would you be safer than you are now? If you can answer, Yes, to these questions, then adopt the British Constitution. If not, then, good as that government may be, this is better.' The worthy gentleman who was last up [Monroe], said the confederacies of ancient and modern times were not similar to ours, and that, consequently, reasons which applied against them could not be urged against it. Do they not hold out one lesson very useful to us? However unlike in other respects, they resemble it in its total inefficacy. They warn us to shun their calamities, and place in our government those necessary powers, the want of which destroyed them. I hope we shall avail ourselves of their misfortunes, without experiencing them. There was something peculiar in one observation he made. He said that those who governed the cantons of Switzerland were purchased by foreign powers, which was the cause of their uneasiness and trouble. How does this apply to us? If we adopt such a government as theirs, will it not be subject to the same inconvenience? Will not the same cause produce the same effect? What shall protect us from it? What is our security? Hie then proceeded to say, the causes of war are removed from us; that we are separated by the sea from the powers of Europe, and need not be alarmed. Sir, the sea makes them neighbors to us. Though an immense ocean divides us, we may speedily see them with us. What dangers may we not apprehend to our conmerce? Does not our naval weakness invite an attack on our commerce? May not the Algerines seize our vessels? Cannot they, and every other predatory or maritime nation, pillage our ships, and destroy our commerce, without subjecting themselves to any inconvenience? lie would, he said, give the General Gov

MEMBER OF VIRGINIA CONVENTION. 33!) eminent all necessary powers. If anything be necessary, it must be so to call forth the strength of the Union when we may be attacked, or when the general purposes of America require it. The worthy gentleman then proceeded to show, that our present exigencies are greater than they ever will be again. W-ho can penetrate into futurity? How can any man pretend to say that our future exigencies will be less than our present? The exigencies of nations have been generally commensurate to their resources. It would be the utmost impolicy to trust to a mere possibility of not being attacked, or obliged to exert the strength of the community.''He then told you that your continental government will call forth the virtue and talents of America. This being the case, will they encroach on the power of the State governments? Will our most virtuous and able citizens wantonly attempt to destroy the liberty of the people? Will the most virtuous act the most wickedly? I differ in opinion from, the worthy gentleman. I think the virtue and talents of the members of the General Government will tend to the security, instead of the destruction, of our liberty. I think that the power of direct taxation is essential to the existence of the General Government, and that it is safe to grant it. If this power be not necessary, and as safe from abuse as any delegated power can possibly be, then, I say that the plan before you is unnecessary; for it imports not what system we have, unless it have the power of protecting us in time of peace and war.' Marshall next addressed the Convention in support of that clause of the Constitution which gives Congress power to provide for arming, organizing, and disciplining the militia, and governing those in the actual

8340 LIFE OF JOHN MARSHALL. service of the Union. It had been attacked by Patrick Henry as a very alarming power. He declared that, as the clause expressly vested the General Government with power to call out the militia to suppress insurrections, &c., it appeared to him, most decidedly, that the power of suppressing insurrections was exclusively given to Congress. If it remained in the States, it was by implication. Marshall asked, in reply, if gentlemen were serious when they asserted that, if the State governments had power to interfere with the militia, it was by inplication. I If they were, he asked the Committee whether the least attention would not show that they were mistaken. The State governments did not derive their powers from the General Government; but each government derived its powers from the people, and each was to act according to the powers given to it. Would any gentleman deny this? He demanded if powers not given were retained by implication. Could any man say so? Could any man say that this power was not retained by the States, as they had not given it away? For, says he, does not a power remain until it is given away? The State Legislatures had power to command and govern their militia before, and have it still, undeniably, unless there be something in this Constitution that takes it away.''The truth is, that when power is given to the General Legislature, if it was in the State Legislature before, both shall exercise it; unless there be an incompatibility in the exercise by one to that by the other, or negative words precluding the State governments from it.. But there are no negative words here. It rests, therefore, with the States. To me it appears, then, unquestionable that the State governments can call forth the militia, in case the Constitution should be adopted, in the

MEMBER OF' VIRGINIA CONVENTION. 341 same manner as they would have done before its adoption. When the government is drawn from the people, and depending on the people for its continuance, rppressive measures will not be attempted, as they will certainly draw on their authors the resentment of those on whom they depend. On this government, thus depending on ourselves for its existence, I will rest my safety, notwithstanding the danger depicted by the honorable gentleman. I cannot help being surprised that the worthy member thought this power so dangerous. What government is able to protect you in time of war? Will any State depend on its own exertions? The consequence of such dependence, and withholding this power from Congress, will be, that State will fall after State, and be a sacrifice to the want of power in the General Government. United we are strong, divided we fall. Will you prevent the General Government from drawing the militia of one State to another, when the consequence would be, that every State must depend on itself? The enemy, possessiln the water, can quickly go from one State to another. No State will spare to another its militia, which it conceives necessary for itself. It requires a superintending power in order to call forth thle resources of all to protect all. If this be not done, each State will fall a sacrifice. This system merits the highest applause in this respect. The honorable gentleman sa(i that a general regulation may be made to inflict punishments. Does he imagine that a militia law is to be ingrafted on the scheme of government, so as to render it incapable of being changed? The idea of the worthy member supposes that men renounce their own interests. This would produce general inconveniences throughout the Union, and would be equally opposed

342 LIFE OF JOHN MARSHALL. by all the States. But the worthy member fears, that in one part of the Union they will be regulated and disciplined, and in another neglected. This danger is enhanced by leaving this power to each State; for some States may attend to their militia, and others may neglect them. If Congress neglect our militia, we can arm them ourselves. Cannot Virginia import arms? Cannot she put them into the hands of her militia men? The judicial power bestowed on the General Government by the Constitution, was denounced by the opponents of that instrument with great earnestness. It was said that its exercise might destroy the dearest rights of the community; that the effect and operation of the Federal Courts would go to the destruction of the State governments. To arguments like these, and of a similar strain, Marshall thus replied:-' Mr. Chairman, this part of the plan before us is a great improvement on that instrument from which we are now departing. Here are tribunals appointed for the decision of controversies, which were before either not at all, or improperly, provided for. That many benefits will result from this to the members of the collective society, every one confesses. Unless its organization be defective, and so constructed as to injure, instead of accommodating, the convenience of the people, it merits our approbation. After such a candid and fair discussion by those gentlemen who support itafter the very able manner in which they have investigated and examined it -I conceived it would be no longer considered as so very defective, and that those who opposed it would be convinced of the impropriety of some of their objections. But I perceive that they

MEMBER OF VIRGINIA CONVENTION. 343 still continue the same opposition. Gentlemen have gone on an idea that the Federal Courts will not determine the causes which may come before them, with the same fairness and impartiality with which other Courts decide. What are the reasons of this supposition? Do they draw them from the manner in which the judges aie chosen, or the tenure of their office? Wihat is it that makes us trust our judges? Their independence in office, and manner of appointment. Are not the judges of the Federal Court chosen with as miUchl wisdom as the judges of the State governments? Are they not equally, if not more independent? If so, shall we not conclude that they will decide with equal impartiality and candor? If there be as much wisdom and knowledge in the United States as in a particular State, shall we conclude that that wisdom and knowledge will not be equally exercised in the selection of judges?''With respect to its cognizance [the cognizance of the Federal judiciary] in all cases arising under the Constitution and the laws of the.United States, he [George Mason] says that the laws of the United St-ates being paramount to the laws of the particular State, there is no case, but what this will extend to. Has the Government of the United States power to make laws on every subject? Does he understand it so? Can they make laws affecting the mode of transferring property, or contracts, or claims, between citizens of the same State? Can they go beyond the delegated powers? If they were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard. They would not consider such a law as coming under their jurisdiction. They would declare it void.'

344 LIFE OF JOHN MARSHALL. How disgraceful is it, that the State Courts cannot be trusted, says the honorable gentleman. What is the language of the Constitution? Does it take away their jurisdiction? Is it not necessary that the Federal Courts should have cognizance of cases arising under the Constitution and the laws of the United States? What is the service or purpose of a judiciary, but to execute the laws in a peaceable, orderly nmanner, without shedding blood, or creating a contest, or availing yourselves of force? If this be the case, where can its jurisdiction be more necessary than here?' I With respect to disputes between a State, and the citizens of another State, its jurisdiction has been decried with unusual vehemence. I hope that no gentlemian will think that a State will be called at the bar of the Federal Court.1 Is there no such case at present? Are there not many cases in which the Legislature of Virginia is a party, and yet the State is not sued? It is not rational to suppose that the sovereign power should be dragged. before a court. The intent is, to enable States to recover claims of individuals residing in other States. I contend that this construction is warranted by the words; but, say they, there will be partiality in it, if a State cannot be defendant' -if an individual cannot proceed to obtain judgment against a State, though he may be sued by a State. It is necessary to be so, and cannot be avoided. I see a difficulty in making a State defendant, which does not prevent its being plaintiff. If this be only what cannot be avoided, why object to the system on that 1 This, however, was actually done in the case of Chisholm v. Georgia. See vol. i., p. 385 et seq. The decision of the Court in that case led to an amendment of the Constitution, forbidding such an excise of authority.

MEMBER OF VIRGINIA CONVENTION. 345 account? If an individual has a just claim against any particular State, is it to be presumed that, on application, he will not obtain satisfaction? But how could a State recover any claim from a citizen of another State, without the establishment of these tribunals?'The honorable member objects to suits being instituted in the Federal Courts, by the citizens of one State, against the citizens of another State. Were I to contend that this was necessary in all cases, and that the government, without it, would be defective, I should not use my own judgment. But are not the objections to it carried too far? Though it may not, in general, be absolutely necessary, a case may happen, as has been observed, in which a citizen of one State ought to be able to recur to this tribunal, to recover a claim from the citizen of another State. What is the evil which this can produce? Will he get more than justice there? The independence of the judges forbids it. What has he to get? Justice. Shall we object to this, because the citizen of another State can obtain justice without applying to out State Courts? It may be necessary, with respect to the laws and regulations of commerce, which Congress may make. It may be necessary in cases of debt, and some other controversies. In claims for land, it is not necessary, but it is not dangerous. In the Court of which State will it be instituted? said the honorable gentleman. It will be instituted in the Court of the State where the defendant resides, where the law can come at him, and no where else. By the laws of which State will it be determined? said he. By the laws of the State where the contract was made. According to those laws, and those only, can it be decided. Is this a novelty? No; it is a principle in the jurisprudence

346 LIFE OF JOHN MARSHALL. of this Commonwealth. If a man contracted a debt in the East Indies, and it was sued for here, the decision must be consonant to the laws of that country. Such was the line of argument adopted by Marshall in support of the Federal Constitution. His speeches were evidently not premeditated; but made on the spur of the occasion, and in reply to objections brought forward by his opponents. If not as comprehensive in their scope as the speeches of Madison, they were, nevertheless, vigorous, pointed, and adapted to the end he had in view. They were, chiefly, in answer to the arguments of Patrick Henry and George Mason. How they were estimated by the former may be inferred from his brief, but generous eulogium. I have,' said he, the highest veneration and respect for the honorable gentleman, and I have experienced his candor on all occasions.' After an earnest debate of twenty-five days, a debate illustrated by an extraordinary display of eloquence and ability, the Convention accepted the Constitution by a majority of ten votes.. The result, it has been thought, would have been different, had not the news arrived, while the Convention was yet in session, that nine States had already given their voice in its favor, and thus insured its success. The Constitution adopted, we shall see, in the following chapters, that Marshall gave an earnest support to the government organized in accordance with its provisions, and to the principles on which that government was conducted by the Administrations of Washington and Adams.

MEMBER OF VIRGINIA LEGISLATURE. 347 CHAPTER VII. 1788 -1797. MEMBER OF THE VIRGINIA LEGISLATURE. THE high professional reputation to which Marshall had attained, seemed naturally to invite an exclusive devotion of his talents to the labors of the Bar. A narrow fortune and growing family were impelling motives to that line of conduct. Accordingly, he now determined to relinquish public life, and adhere, for the future, to his profession. But the opposition the Constitution had already encountered in Virginia, and the hostility that still existed against that instrument, indicated that the government which was now to be organized in pursuance of its provisions, would be likely to meet with very lukewarm support from the State Legislature, if the anti-Federalists should secure an ascendency in that body. It was, therefore, the obvious policy of the Federalists to effect, if possible, a different result; under such circumstances Marshall was prevailed upon to forego his determination to quit public life, and become a candidate for the Legislature. HIe was elected, and continued to serve in that body until the spring of 1791. The anti-Federalists, however, had the majority, and sent to the Senate of the United States, William Grayson and Richard Henry Lee, who had opposed the Constitution, in preference

"318 LIFE OF JOHN M3ARSHALL. to Madison and Pendleton, who had supported it. All the leading measures of the Administration were freely criticised and discussed in the Virginia Legislature, and their tendency regarded with a jealous watchfulness. Marshall, who had the greatest confidence in tile wisdom of Washington, and naturally inclined to favor a line of policy that would impart vigor and efficiency to the new system, supported with all his powers those measures which most excited the animadversion, and aroused the hostility, of the party who had originally opposed the Constitution as fraught with danger to liberty, and now thought they perceived, in the action of the government, the approaching realization of their fears. The funding system, the assumption of the State debts, and the creation of a national bank, were regarded as violative of the powers conferred on the General Government, and leading directly to consolidation. These grave questions were reviewed, criticised, and discussed in the halls of the Virginia Legislature, with abilities equal to the topics, and the occasion. Marshall participated in these debates, and asserted the constitutionality as well as the policy of the measures thus assailed; but the current was too strong to be resisted. The predominant party in Virginia were opposed to nearly every important measure of Washington's Administration, and took no pains to conceal their disapprobation and disgust. In 1792, Marshall declined a re-election, and for the next three years was immersed in the business of his profession. He was engaged, on one side or the other, in nearly all the important causes in the State and Federal Courts. These were, probably, the most active years of his professional life. But, extensive as were his engagements at the Bar, it was impossible for

MEMBER OF VIRGINIA LEGISLATURE. 349 a man of his abilities, and avowed opinions, in the stirring times in which he lived, to withdraw himself entirely from politics. Assailed as was the domestic policy of the government, its foreign policy was even more fiercely denounced. The President's celebrated Proclamation of Neutrality1 inflamed the elements of discontent, stimulated the zeal, and increased the strength of the opposition. On this occasion, Marshall came forward in support of the President's course, and at a meeting of the citizens of Richmond obtained a considerable majority in favor of resolutions approving it. But lie paid the usual penalty, rigorously inflicted upon all who, with whatever purity of motive, actively participate in political discussions; he was assailed by the opposite party with great bitterness. Bold reproaches and witty malice were studiously employed to weaken his influence, and detract from the merit of his arguments. He was denounced as an advocate of aristocratic principles; as a loyalist and an enemy of republicanism. But these attacks failed of their aim. In Richmond, where his character, political sentiments, and manner of life were well understood, the assaults upon him proved perfectly harmless. In 1795, he was again elected a member of the State Legislature; but against his wishes, and without his consent. The circumstances, however, seemed to justify this step. It was doubtful, so nearly equally were parties divided, whether the regular candidate of the Federalists, an intimate personal friend of Marshall's, could be elected. Accordingly, a poll was opened for Marshall, while he was engaged in one of the Courts, (notwithstanding he had declined being a candidate, and declared that his feelings and honor were engaged Ante, vol. i., p. 390; and vol. ii., p. 168.

350 LIFE OF JOHN MARSHALL. for his friend,) and he was again returned as a member of the Legislature. The Jay treaty, as we have elsewhere seen, had, at this time, created throughout the country an unparalelled ferment and excitement.1 In Virginia, it was attacked with unsparing zeal and bitterness. At a meeting of the citizens of Richmond, at which the venerable Chancellor Wythe presided, resolutions were adopted, denouncing it'as insulting to the dignity, injurious to the interest, dangerous to the security, and repugnant to the Constitution of the United States.' At a subsequent meeting of the same citizens, Marshall introduced resolutions of a contrary tenor, and supported them in a speech of great power. His resolutions were adopted; but, marked as was his success on this occasion, it was in the Legislature that he received the most gratifying proofs of the vigor and effect of his arguments. There, both the expediency and constitutionality of the treaty were warmly denied. Inasmuch as the power to regulate commerce was bestowed on Congress, it was maintained, with great confidence, that the Executive had no constitutional right to negotiate a commercial treaty. Marshall's reply to this position has been considered as one of the most memorable displays of his genius. His speech, however, was not reported; but the traditional account is, that, for cogency of reasoning, and comprehensive knowledge of the whole subject matter of the debate, it was altogether admirable. He dtmonstrated so clearly the competency of the Executive to make the treaty, that all objection to it on constitutional grounds was abandoned. And even the resolution of the House approving the conduct of the VirVol. i., pp. 412, 633.

MEMBER OF VIRGINIA LEGISLATURE. 351 ginia Senators in voting against the treaty, expressed confidence in the patriotism and wisdom of the President, and declared that it was not intended to censure his motives in ratifying it. The fame of this great argument of Marshall's extended beyond the limits of Virginia. It made his nmne familiar throughout the country. When he visited Philadelphia a few months after, to argue the British debt case,' he was an object of marked attention. I then became acquainted,' he says, in a letter to a friend,'with Mr. Cabot, Mr. Ames, Mr. Dexter, and Mr. Sedgwick of Massachusetts, Mr. Wadsworth of Connecticut, and Mr. King of New York. I was delighted with these gentlemen. The particular subject [the British treaty] which introduced me to their noticee was at that time so interesting, and a Virginian, who supported, with any sort of reputation, the measures of the Government, was such a rcara avis, that I was received by them all with a degree of kindness, which I had not anticipated. I was particularly intimate with Mr. Ames, and could scarcely gain credit with him, when I assured him that the appropriations would be seriously opposed in Congress.' 2 The death of Mr. Bradford, the Attorney-General, in the summer of 1795, gave Washington an opportunity to mark his appreciation of the character and abilities of Marshall, by tendering him the vacant post. Ante, p. 310. 2 Story's Discourse, p. 40. See Marshall's Letter to Hamilton, of April 25th, 1796, (Hamilton's Works, vol. vi.,) giving an account of a public meeting in Richmond, at which a resolution was carried declaring the validity of the treaty, and its binding effect on Congress.

352 LIFE OF JOHN MARSHALL.'The salary annexed thereto,' said the President's letter,'and the prospect of a lucrative practice in this city [Philadelphia], the present seat of the General Government, must be as well known to you, better, perhaps, than they are to me, and, therefore, I shall say nothing concerning them.' This offer he declined upon the ground that it would interfere with his engagements at the Bar in Virginia. In the following summer, Washington again called upon Marshall to enter the public service, as successor of Monroe at Paris; but he declined, on the ground that the crisis of his affairs rendered it impossible for him to leave the United States.'Otherwise,' he added,'such is my conviction of the importance of that duty which you would confide to me, and, pardon me if I add, of the fidelity with which I should attempt to perform it, that I would certainly forego any consideration not decisive with respect to future fortunes, and would surmount that just diffidence I have ever entertained of myself, to make an effort to convey truly and faithfully to the Government of France those sentiments which.I have ever believed to be entertained by that of the United'States.'2 At this time, he thought his determination to remain at the Bar unalterable.'My situation at the Bar,' said he,'appeared to me to be more independent, and not less honorable, than any other; and my preference for it was decided.' 3 In the next chapter, we shall see the occasion that induced him to change his determination, and first engaged him in the service of the General Government. In the meantime he continued a member of the Virginia Legislature; but rarely participated in the dei Washington's Writings, vol. xi., p. 62. August 25th, 1796. 2 Ibid., p. 143. July 11th, 1796. s Story's Discourse, p. 41.

MEMBER OF VIRGINIA LEGISLATURE. 353 hates, except to vindicate the measures of the Federal Administration. One of these debates he has thus described -'It was, I think, says the Chief Justice,'in the session of 1796, that I was engaged in a debate, which called forth all the strength and violence of party. Some Federalist moved a resolution, expressing the hiigh confidence of the House in the virtue, patriotism, and wisdom of the President of the United States. A motion was made to strike out the word wisdom. In the debate the whole course of the Administration was reviewed, and the whole talent of each party wIas brought into action. Will it be believed, that the word was retained by a very small majority? A very small majority of the Legislature of Virginia acknowledged the wisdom of General Washington!' In the next chapter we shall view the course of Marshall and his colleagues in their endeavors to adjust the difficulties with France, and witness the admirable temper which marked his conduct throughout his disagreeable stay at Paris. Story's Discourse, p. 41. VOL. II.-23

354 LIFE OF JOHN M ARSHALL. CHAPTER VIII. 1797 - 1798. ENVOY EXTRAORDINARY TO FRANCE. WE have seen, in the preceding chapter, that when Monroe was recalled from France, for causes which we have elsewhere explained,' the vacant post was offered to Marshall. When he declined it, the appointment was conferred on Charles Cotesworth Pinckney. The result of his mission we have already seen; the French Government not only refused to receive him, but finally ordered him to leave the country. He then proceeded to Amsterdam, and awaited instructions from home. In this conjuncture, the Administration determined to send out an Extraordinary Commission to renew negotiations with France, and thus, if possible, avoid the alternative of war. Accordingly, on the 31st of May, 1797, President Adams nominated, as Envoys Extraordinary to that country, Charles Cotesworth Pinckney, John Marshall, and Francis Dana. The latter declining the appointment, it was conferred on Elbridge Gerry. Marshall accepted the post which was thus assigned him with reluctance; but the occasion was so interesting, and the exigency so great, that lie did not feel at liberty to decline it. He arranged his affairs at home' Ante, Life of Ellsworth, p. 213.

?NVOY EXTRA.ORDINARY TO FRANCE. 355 with all convenient despatch, and by July was ready to embark for Europe. On his departure from Richmond, he was attended, for several miles, by a large cavalcade of his fellow-citizens, who, on this, as on all occasions, invariably evinced the greatest attachment to his person, and respect for his character. However assailed he might be by political opponents, and however his political sentiments might be questioned, that attachment and respect were never wanting. He embarked at Pliiladelphia for Amsterdam, in tlhe ship Grace, Captain Willis, on the 17th of July, 1797. On the same day, the President, in a letter to Gerry, thus describes him: -' He is a plain man, very sensible, cautious, guarded, and learned in the law of nations. I think you will be pleased with him."' Naturally, very great solicitude was felt as to the reception that awaited him and his colleagues at Paris; and that solicitude was increased by the long interval which elapsed before any communication was received from them. Owing to the delays incident to a winter's voyage, their first official letter did not reach tile Secretary of State until the 4th of March, 1798. That letter dissipated all hope that they would be officially recognized, or the objects of their mission be accoimplished. This mission constitutes a curious chapter in the history of diplomacy, and the circumstances that marked its progress and result are full of interest. The Envoys arrived at Paris on the evening of October 4th, 1797. The next day, verbally and unoffi. cially, they informed M. Talleyrand, the Minister of Foreign Affairs, of their arrival, and desired to knon wlen he would be at leisure to receive one of theih' Adams' Works, vol. viii., p. 549.

356 LIFE OF JOHN MARSHALL. Secretaries with the official notification. He appointed the next day at two o'clock; when their letter of credence was duly presented to him. On the 8th, they waited upon him at his house, where he kept his office. He informed them that the Directory had required him to make a report relative to the situation of the United States with regard to France, which he was then about, and which would be furnished in a few days, when he would let them know what steps were to follow. They asked if cards of hospitality were, in the meantime, necessary. He said they were, and should be delivered to them. The next day they were sent, and in a style suitable to their official character. Thus far appearances indicated that they would be received, and the negotiation proceed; but on the 14th, Major Mountflorence, Chancellor of the Ameriaun Consulate at Paris, informed General Pinckney that he had had a conversation with Talleyrand's private and confidential Secretary, who told him that the Directory were greatly exasperated at some parts of the President's speech at the opening of the late session of Congress, and would require an explanation of them from the American Ministers. In another conversation, the Secretary informed Mountflorence that M. Talleyrand had told him that it was probable they would not have a public audience of the Directory till their negotiation was finished; that, in the meantime, persons might be appointed to treat with them, but they would report to Talleyrand, who would have the direction of the negotiation. On the 18th, M. Hottinguer, who had been described to General Pinckney, as a gentleman of considerable credit and reputation, called on the General, and informed him that he had a message from M.'Tal

ENVOY EXTRAORDINARY TO FRANCE. 357 leyrand to communicate; that he was sure M. Talleyrand had a great regard for America and its citizens: and was very desirous that there should be a reconciliation between the two countries. To accomplish this, he was ready, if it was thought proper, to suggest a plan, confidentially, which M. Talleyrand expected would answer the purpose. General Pinckney said he should be glad to hear it. M. Hottinguer replied, that the Directory, and particularly two of them, were exceedingly irritated at some passages of the President's speech, and desired that they should be softtened; that this step would be necessary previous to their reception; and besides this, a sum of money was required for the pocket of the Directory, which would be at the disposal of M. Talleyrand, and that a loan would also be insisted on. M. Hottinguer said, these measures acceded to, M. Talleyrand had no doubt that the differences with France might be accommodated. The particular passages of the President's speech that had given offence he could not point out, nor the quanturn of the loan, but the douceeu for the Directory, he said, was twelve hundred thousand livres, about ~50,000 sterling. General Pinckney told him, that he and his colleagues, from their arrival in Paris, had been treated with great slight and disrespect; that they wished for peace with France, and had been entrusted with great powers to accomplish it, on honorable terms; but with regard to the propositions communicated by M. Hottinguer, he would not consider them before he had disclosed them to his colleagues; that having done so, M. Hottinguer should hear from him. On communicating to his colleagues the purport of M. Hottinguer's visit, it was agreed, that General Pinckney should request him to make his propositions

358 LIFE OF JOHN MARSHALL. to them all, and, to avoid mistakes or misapprehension, reduce the heads of them to writing. Accordingly, on the next day, General Pinckney called on M. Hottinguer, who consented to see the Envoys in the evening. He came at the appointed time, and left with them a set of propositions in writing. He had informed General Pinckney, however, that his communication was not directly with M. Talleyrand, but through another gentleman, in whom M. Talleyrand had great confidence. This afterwards proved to be M. Bellamy, of Hamburg. On the morning of the 20th, M. Hottinguer called, and informed the Envoys, that M. Bella my, the confidential friend of M. Talleyrand, would see them himself, and make the necessary explanations. He came in the evening, and was received in General Marshall's room. He mentioned the favorable impressions of M. Talleyrand towards the United States, impressions which were made by the kindness and civilities lie had personally received while there; and that he was solicitous to repay those kindnesses, and was willing to aid the Envoys in their negotiatiation by his good offices with the Directory, who were extremely irritated on account of passages in the President's speech, and who had neither acknowledged nor received them, and, consequently, had not authorized M. Talleyrand to hafve any communications with them. In consequence, he could not see them himself, but had authorized M. Bellamy to communicate to them certain propositions, and receive their answers. But, in the same breath, as it were, he declared that he was no diplomatic character, was clothed with no authority, and was merely the friend of M. Talleyrand, and trusted by him. He then pointed out the objectionable passages of the President's speech, and made a series of

ENVOY EXTRAORDINARY TO FRANCE. 0759 propositions as the basis of the negotiation. These propositions referred to certain disavowals and reparations which were to be preliminary to a treaty. The treaty itself was to place France, with respect to the United States, on the same footing as they stood with England in consequence of the Jay Treaty. It was also to contain a secret article stipulating a loan to France. M. Bellamy dilated very much on the keenness of the resentment the President's speech had produced, and expatiated largely on the satisfaction indispensably necessary as a preliminary to negotiation.'But,' said he,' gentlemen, I will not disguise from you, that this satisfaction being made, the essential part of the treaty remains to be adjusted. II faut de l'argent-il faut beaucoup d'argent; you must pay money, you must pay a great deal of money.' The next morning M. Bellamy and M. Hottinguer breakfasted with the Envoys at Mr. Gerry's. The former did not come until ten o'clock, having passed the morning with M. Talleyrand. He represented that both M. Talleyrand and himself were extremely sensible of the pain the Envoys must feel in disavowing the obnoxious passages of the President's speech; but that they must consider such disavowal as an indispensable preliminary to their reception, unless they could find means to change the determination of the Directory. He said he was not authorised to suggest those means; but, as a private individual, he would express the opinion that, with money, they would be able to succeed. He stated the sum which he believed would be satisfactory, and an eligible mode of giving it. There were, he said, thirty-two millions of Dutch rescriptions, worth ten shillings in the pound, which might be assigned to the United States at twenty shillings in the pound. In

360 LIFE OF JOHN MARSHALL. the end they would lose nothing, for, after a peace, the Dutch Government would certainly repay them the amount. Hence, he said, the only operation of the measure would be an advance to France of thirty-two millions, on the credit of the Government of Holland. When asked if the douceur to the Directory must be in addition to this sum, he answered in the affirmative. The Envoys told him that their powers were ample to negotiate a treaty; but the proposition of a loan in any form exceeded the limits of their instructions. That one of their number would return to the United States in order to consult the Government respecting it, provided the Directory would suspend furither captures of American vessels, and proceedings on those already captured, &c. At this offer Mo Bellamy was evidently disappointed. Hle said they treated the proposition of a loan as if it came from the Directory, whlereas it did not proceed from them, nor even from M. Talleyrand, but was only a suggestion from himself, as a substitute to be proposed by the Envoys, in lieu of the painful disavowal that the Directory had determined to demand of them. They replied that they understood the matter perfectly; that the proposition in form was to come fron them, but, substantially, it.proceeded from the Minister. M. Bellamy expressed himself vehemently on the resentment of France; complained that the Envoys, instead of proposing a substitute for the reparations demanded of them, were stipulating conditions to be performed by the Directory itself; that he could not take charge of their offers, and that the Directory would persist in demanding a disavowal of the offensive passages of the President's speech. They replied, that they could not help it; that the Directory must determine what the

ENVOY EXTRAORDINARY TO FRANCE. 361 honor and interests of France required them to do; but for themselves they must guard the honor and interests of the United States. That tie idea of disavowing the President's speech could not be treated by them in a serious light; that an attempt to do it would merely make themr ridiculous to the Government a-nd people they represented. M. Bellamy said, they certainly would not be received, and seemed to shudder at the consequences. About the 27th of October, news reached Paris that the definitive articles of peace between France antd Austria had been signed, and on that day the Envoys received another visit from M. Hottinguer. He said some proposals had been expected friom them; that the Directory were becomring impatient, and would take a decided course towards America, unless they could be softened. He spoke of the different position France occupied in consequence of the peace, as warranting the expectation of a change in the system of the Envoys. They replied that that position they had anticipated, and it would not in any degree affect their conduct. He urged that, since the peace, the Directory hlad taken a higher and more decided tone with respect to the United States and all other neutral nations than ever before, and were determined that all nations should aid them or be treated as enemies. They answered, that they had anticipated as much when tley refused the propositions that had been made to them. M. Hottinguer, after expatiating on the power and violence of France, returned once more to the subject of money. Said he, Gentlemen, you do not speak to the point; it is money. It is expected that you will offer money.' They said they had already given a very explicit answer to that point.'No,' said he,'you have not. What is your answer?' They

362 LIFE OF JOHN MARSHALL. replied,'It is no; no; Jnot a sisxpence.' The conversation continued for nearly two hours; and the public and private advance of rmoey was pressed and repressed in a variety of forms. M. Hottinguer then said he would communicate, as nearly as he could, the substance of what had passed, either to the Minister, or to M. Bellamy, who would make the commnunication. Thus far the Envoys had no proof whatever that M. Hottinguer and M. Bellamy were acting by direction of M. Talleyrand, except their own assertions to that effect, the nature of their propositions, and the respectability of their characters. These left no doubt on their minds that they were authorised to confer with them. With M. Talleyrand himself they had held no direct communication, and had seen him but once, and that only on a formal occasion, and for a few moments. We shall now see that M. Talleyrand directly committed himself, and furnished conclusive evidence that the propositions and suggestions, which had been made to the Envoys, proceeded directly from himself. On the 22d of October, M. Hautval, a French gentleman of respectable character, informed Mr. Gerry that M. Talleyrand had expected to have seen the American Ministers frequently in their private capacities, and to have conferred with them individually on the objects of their mission; and had authorised him to make this communication to Mr. Gerry. The latter sent for his colleagues, and a conference was held with M. Hautval on the subject. Pinckney and Marshall said, as they were not acquainted with M. Talleyrand, they could not, with propriety, call on him; but, according to the custom of France, he might expect this of Gerry from a previous acquaintance in the

ENVOY EXTRAORDINARY TO FRANCE. 363 United States. Thle next day Gerry, with great reluctance, however, called on M. Talleyrand, in company with M. Hautval; but the Minister not being at his office, appointed the 28th for the interview. On that occasion, after the first introduction, M. Talleyrand began the conference. He said the Directory had passed an arrete, in which they demanded of the Envoys an explanation of some parts of the President's speech at the opening of the extra session of Congress, and a reparation for other parts. He said he was sensible that difficulties would exist on the part of the Envoys relative to this demand; but on their offering money he thought he could prevent the effect of the arrete. Mr. Gerry requested M. Hautval to inform the Minister that the Envoys had no power to offer money. In that case, replied M. Talleyrand, they canl take a power on themselves; and proposed that they should make a loan. Mr. Gerry, in answer to the observations of M. Talleyrand, said, that the uneasiness of the Directory respecting the President's speech was unconnected with the object of the mission; that they had no instructions with regard to it, and no powers whatever to make a loan. If it was deemed expedient, however, one of their number could return for instructions on that point, provided the other objects of the negotiation could be discussed and adjusted. Mr. Gerry then expressed his wish that M. Talleyrand would confer with his colleagues. M. Talleyrand, in answer, said, he should be glad to confer with the other Envoys individually, but that this matter about the monely mu'ast be settled directly, without secdilng to America; that he would not communicate the arrete for a week; and that, if they could adjust the difficulty respecting the speech, an application would, nevertheless, go to the United States for a loan.

364 LIFE OF JOHN lIARSHALL. The reader will not fail to observe the complete corn respondence between I. Talleyrand's propositions to Mr. Gerry, and the propositions made by M. Hottinguer and 5M. Bellamy. The money which M. Talleyrand said must be settled directly, referred to the 7do0ceur of ~50,000, and he knew full well that the credit of the Envoys could command it. Indeed, a mercantile house, one of whose members introduced M. Hottinguer to General Pinckney, had offered to answer their draughts; a circumstance, doubtless, well known to M. Talleyrand. Another visit from M. Hottinguer and M. Bellamy succeeded Mr. Gerry's interview with Talleyrand. The same propositions that had hitherto formed the burden of their communications, were substantially repeated, and enforced by high and threatening language. If the offers of Talleyrand were rejected, and war ensued, the fate of Venice mighlt befall the United Stlates, &c. sPerhaps, said M. Bellamy,'you believe that, in returning, and exposing to your countrymen the unreasonableness of the demands of this Government, you will unite them in their resistance to those demands. You are mistaken. You ought to know that the diplomatic skill of France, and the means she possesses in your country, are sufficient to enable her, with the French party in America, to throw the bltame which will attend the rupture of the negotiations on the Federalists, as you term yourselves, but on the British party, as France terms you; and you may assure yourselves this will be done.' Such was the haughty style adopted by these unofficial agents, and it produced its natural result. The Envoys now determined to hold no more indirect intercourse with the French Government; and notling but an anxious solicitude to preserve peace with

ENVOY EXTRAORDINARY TO FRANCE. 365 France induced them to remain longer at Paris, unreceived as they were, and treated with personal neglect and contempt. They informed the agents of M. Talleyrand that they would receive no more propositions from persons without acknowledged authority to treat with them; but, notwithstanding this, frequent and urgent attempts were made to inveigle them into an unofficial negotiation. Beaumarchais, through John A. Chevallie, his agent at Richmond, had employed Marshall as his advocate in a suit against the State of Virginia for military stores, &c., furnished during the Revolution. Very naturally, Beaumarchais invited Marshall and his colleagues to dine with him, and they reciprocated the attention. Beaumarchais was an intriguer, almost by profession, and an exceedingly clever one. The sort of intimacy existing between him and the Envoys was a source of hope to M. Bellamy. M. de Beaumarchais entered into his views at once. He had obtained a judgment for one hundred and forty-five thousand pounds sterling in his suit against Virginia,; but from this judgment an appeal was pending, and the final result was very uncertain. On the 17th of December, M. Bellamy informed Marshall that Beaumarchais had consented, provided his claim could be established, to sacrifice ~50,000 sterling of it, as the private gratification which had been required of the Envoys, so that the payment of that sum would not be any actual loss to the American Government. But the Envoys considered this proposition as a renewal of the old system of indirect, unauthorized negotiation, and would not entertain it.' Having been originally the counsel of M. de Beaumarchais,' says Marshall,'I had determined, and so I

366 LIFE OF JOHN MARSHALL. had informed General Pinckney, that I would not, by my voice, establish any agreement in his favor; but that I would positively oppose any admission of the claim of any French citizen, if not accompanied with the admission of the claims of the American citizens for property captured and condemned for want of a role d'eq2uiptye.' On the 17th of December, Mr. Gerry accompanied M. Bellamy on a visit to Talleyrand, who received them politely. Mr. Gerry observed to him, that M. Bellamy had stated to him that morning some propositions as coming from M. Talleyrand (referring to the gratuity of ~50,000 sterling, and the purchase of the Dutch rescriptions, as the means of restoring friendship between the two countries), respecting which he could give no opinion. M. Talleyrand said the information M. Bellamy had given him was just, and might always be relied on; but that he would reduce to writing his propositions, which he did, and after showing them to Mr. Gerry, he burnt the paper. His propositions related to the purchase-of the Dutch rescriptions; but M. Talleyrand, on this occasion, did not mention the gratuity. That he left to the management of his agents. In this stage of the business, the Envoys came to the determination to prepare a letter to M. Talleyrand, stating the object of their mission, and discussing the subjects of difference between the two nations, in the same manner as if they had actually been received; and to close the letter with requesting the Governmtent to open the negotiation with them, or grant tlem their 1 Marshall's Journal. Wait's American State Papers, vol. iii., p. 214. We should observe that the despatches of the Envoys detailing the history of their mission were prepared, for the most part, by Marshall; and from them the narrative in the text is chiefly derived.

ENVOY EXTRAORDINARY TO FRANCE. 367 passports. This letter was prepared by Marshall, and has always been regarded as one of the most admirable of our State papers. For clearness of statement, cogency of argument, and dignified moderation, it deserves unqualified praise.' Talleyrand, in his reply of the 18th of March, complained that it reversed the known order of facts,'so that it would appear,' he said, from that exposition, as partial as unfaithful, that the French Republic has no real grievance to substtltiate, no legitimate reparation to demand, whilst the United States should alone have a right to cornplain, should alone be entitled to claim satisfaction.' This testimony to the ability with which the vindication of the United States was conducted, was rather enhanced by the failure of Talleyrand to substantiate the demerits which he attributed to it. Indeed, if the United States had the right, consistently with their treaty of alliance with France, to observe a fair and honest neutrality, and that right, said Marshall, cis not recollected ever to have been questioned, and is believed not to admit of doubt,' then all the general charges of an unfriendly disposition, made against them by M. Talleyrand, really amounted to nothing, because the facts which he adduced to support them grew inevitably out of that situation. On the 18th of January, 1798, the French Government passed a decree subjecting to capture all neutral vessels laden in part or whole with the manufactures or productions of England or its possessions. This decree convinced the Envoys that it was entirely impracticable to effect the objects of their mission. They determined, therefore, to write Talleyrand another letSee this letter in Wait's State Papers, vol. iii., p. 219. We regret that our space forbids us to make extracts from it. It was dated January 17th, 1798.

368 LIFE OF JOHN MIARSHALL. ter, state their objections to the decree, and announce their purpose to return to the United States. This letter was prepared, but, before sending it, and denanding their passports, they deemed it expedient to know of Talleyrand if he had any reply to make to their previous letter, which thus far remained unnoticed. He informed their Secretary, on the 19th of February, that he had no answer to make, as the Directory had taken no order on the subject; but when they did, the Envoys should be informed of it. Anxious to hear explicitly from Talleyrand before sending their final letter, whether they possessed the means to accommodate the differences with France, they solicited a personal interview with him. Ile appointed a day to receive them. Accordingly, they waited upon him. The particulars of this interview it is unnecessary to state. The substance of what M. Talleyrand said was, that the Directory would require some proof of a friendly disposition on the part of the United States previous to a treaty, and he alluded very intelligibly to a loan as the means of furnishing that proof. To this it was replied that they had no power to make a loan; that such an act would violate the neutrality of the United States, and involve them in war with Great Britain. Talleyrand, in answer, said that persons in their situation must often use their discretion, and exceed their powers for the public good. That a loan could be so disguised, as effectually to prevent any interference with the neutral position of the United States; that if they desired to effect the thing, they would have no difficulty in finding the means. Mr. Gerry had already received a proposition from Talleyrand's Secretary, to stipulate a loan to the French Government now, payable after the war, in

ENVOY EXTRAORDINARY TO FRANCE. 369 supplies of American produce for St. Domingo, and the French islands. He was in favor, it would seem, of negotiating a treaty on the basis of such a loan, which he thought might be so guarded, as not to violate our neutrality.' Accordingly, he now observed, that Dutrimond had suggested a loan of this character, and Talleyrand sigt nified that the proposed mode of payment was a means of covering it. If they were only sincere in their wish, said he, it would be easy to bring about the end. Marshall told Talleyrand, among other things, that for the United States to furnish money to France was, in fact, to make war; which they could not consent to do; that they could not make a stipulation of the kind, because it would absolutely transcend their powers; that, with respect to supplies to St. Domingo, no doubt could be entertained that American merchants would furnish them very abundantly, if France would permit the commerce; and a loan really payable after the war might then be negotiated.2 But I Federal Administrations, vol. ii., p. 35. 2 As the commerce would be a perfectly lawful one with respect to the belligerents, Marshall's idea seems to have been, although not very clearly expressed, that a loan to France, payable after the war, and limited to a specific object, namely, to pay for these very supplies, might be negotiated with perfect propriety. It was not furnishing France with the means of raising money for immediate use, but enabling her at a definite time, viz., after the war, to pay for supplies which it was lawful for the merchants of a neutral nation to send to her ports. Gerry, on the contrary, as it would appear, was in favor of stipulating a loan to France, subject only to two conditions, namely, that it should be payable after the war, and in supplies. If France could raise money on such a loan for present use, she was at liberty to do so. However disguised such a stipulation might be, it would, without doubt, have violated the neutral position of the United States. The only difference between furnishing the loan in money VOL. II.- 24

370 LIFE OF JOHN MARSHALL. Talleyrand insisted that, to prove the friendship of the United States, there must be some immediate aid, or something which might avail France. He complained that the Envoys had not visited him, and said that, because the Directory had not given them an audience, was no reason why they should not have seen him often, and endeavored to remove the obstacles to a mutual approach. Marshall told him that their seeing the Directory, or not, was an object of no sort of concern to them; that they were perfectly independent with regard to it; but they conceived that, until their public character was in some degree recognized, and they were treated as the Ministers and representatives of their Government, they could not take upon themselves to act as Ministers; because, by doing so, they might subject themselves to some injurious circumstance to which they could not submit. At a subsequent interview, General Pinckney told him that the Envoys considered the propositions he had suggested to them when they had previously seen him, as substantially the same as had been made to them by M. Hottinguer and M. Bellamy, and they had no power to accede to them. M. Talleyrand, without at all disavowing M. Hottinguer and M. Bellamy, proceeded to argue that it would be no departure from neutrality, to stipulate a loan after the war; but Marshall replied that any act of the American Government, on which one of the belligerent powers could raise money for immediate use, would be furnishing aid to that power, and would be taking part in the war; that he could not say what his Government and in supplies, so far as it might affect France, would be, that she could raise money more readily and advantageously in the former case than in the latter.

ENVOY EXTRAORDINARY TO FRANCE. 371 would do if on the spot, but he was perfectly clear that, without additional orders, they could not do what France desired. About two weeks after this last interview, namely, on the 18th of March, M. Talleyrand transmitted to the Envoys his answer to their letter of the 17th of January, which we have described on a previous page. He said it was disagreeable to be obliged to think that the instructions, under which they acted, had not been drawn up with the sincere intention of attaining pacific results;' because, far from proceeding, in their memorial, upon some avowed principles and acknowledged facts, they have inverted and confounded both, so as to be enabled to impute to the Republic all the misfortunes of a rupture, which they seem willing to produce by such a course of proceedings. It is evident that the desire, plainly declared, of supporting, at every hazard, the treaty of London, which is the principal grievance of the Republic, of adhering to the spirit in which this treaty was formed and executed, and of not granting to the Republic any of the means of reparation, which she has proposed, through the medium of the undersigned, have dictated those instructions.' The undersigned does not hesitate to believe, that the American nation, like the French nation, sees this state of things with regret, and does not consider its consequences without sorrow.''It is, therefore, only in order to smooth the way of discussions, that he declares to the Commissioners and Envoys Extraordinary, that, notwithstanding the kind of prejudice which has been entertained with respect to them, the Executive Directory is disposed to treat with that one of the three, whose opinions, presumed to be more impartial, promise, in the course of the explanations, more of that reciprocal confidence, which

372 LIFE OF JOHN MARSHALL. is indispensable.' The Minister intended, by this language, to designate Gerry, whose views respecting a, loan were supposed to be more favorable to France than those of his colleagues. To this letter of M. Talleyrand, the Envoys presented a reply on the 3d of April. It proceeded from the pen of Marshall, and is characterized by the same ability, candor, and. moderation, that distinguished his first letter. You contend, citizen Minister,' say the Envoys, I that the priority of complaint is on the side of France, and that those measures, which have so injured and oppressed the people of the United States, have been produced by the previous conduct of their Government. To this the undersigned will now only observe, that if France can justly complain of any act of the Government of the United States, whether that act be prior or subsequent to the wrongs received by that Government, a disposition and a wish to do in the case what justice and friendship may require, is openly avowed, and will continue to be manifested.' A full and searching reply to all the complaints urged against the United States by M. Talleyrand, demonstrates how insubstantial was the basis upon which they rested. The reply to two of Talleyrand's specifications of an unfriendly disposition on the part of the United States, we shall venture, at the risk of some little prolixity, to quote at length. M. Talleyrand, in pointing out the Jay Treaty as an object of complaint on the part of France, said, that the small majority by which it was sanctioned in the two Houses of Congress, and the number of respectable voices raised against it in the nation, deposed honorably in favor of the opinion which the French Government entertained of it.

TNVOY EXTRAORDINARY TO FRANCE. 373'You must be sensible, citizen Minister' was the reply,'that the criterion by which you ascertain the merits of the instrument in question, is by no means infallible, nor can it warrant the inference you draw from it. In a republic like that of the United States, where no individual fears to utter what his judgment or his passions may dictate, where an unrestrained press conveys alike to the public eye the labors of virtue, and the efforts of particular interests, no subject which agitates and interests the public mind can unite the public voice, or entirely escape public censure. In pursuit of the same objects a difference of opinion will arise in the purest minds, from the different manner in' which those objects are viewed; and there are situations in which a variety of passions combine to silence the voice of reason, and to betray the soundest judgments. In such situations, if the merit of an instrument is to be decided, not by itself, but by the approbation or disapprobation it may experience, it would surely be a safer rule to take as a guide the decision of a majority, however small that majority may be, than to follow the minority. A treaty, too, may be opposed as injurious to the United States, though it should not contain a single clause which could prejudice the interests of France. It ought not to be supposed that a treaty would, for that reason, be offensive to this Republic.... It is considered as having been demonstrated, that this treaty leaves the neutrality of the United States, with respect both to France and England, precisely in its former situation, and that it contains no concessions which are either unusual, or derogatory, from their alliance with this Republic. But if, in forming this judgment, the American Government has deceived itself, still it ought to be remenm bered that it has ever manifested a readiness to place

374 LIFE OF JOHN BMARSHALL. France on the footing of England, with respect to the articles complained of.' Ailother allegation of M. Talleyrand was, t that the journals known to be indirectly under the control of the Cabinet, have redoubled their invectives and calumnies against the Republic, its magistrates and its Envoys; and that pamphlets openly paid for by the Minister of Great Britain have reproduced, under every form, those insults and calumnies, without having ever drawn the attention of the Government to a state of things so scandalous, and which it might have repressed.' The Envoys replied thus: The genius of the Constituiibon and the opinions of the people of the United States, cannot be overruled by those who administer the Government. Among those principles deemed sacred in America - among those sacred rights considered as forming the bulwark of their liberty, which the Government contemplates with awful reverence, and would approach only with the most cautious circumspection, there is no one, of which the importance is more deeply inpressed on the public mind, than the liberty of the press. That this liberty is often carried to excess, that it has sometimes degenerated into licentiousness, is seen and lamented; but the remedy has not yet been discovered. Perhaps it is an evil inseparable from the good with which it is allied; perhaps it is a shoot which cannot be stripped from the stalk, without wounding vitally the plant from which it is torn. However desirable those measures might be, which might correct without enslaving the press, they have never yet been devised in America. No regulations exist which enable the Government to suppress whatP

ENVOY EXTRAORDINARY TO FRANCE. 375 ever calumnies and invectives any individual may choose to offer to the public eye;'or to punish suchl calumnies and invectives, otherwise than by a legal prosecution in courts, which are alike open to all who consider themselves as injured. Without doubt, this abuse of a valuable privilege is matter of peculiar regret when it is extended to the Government of a foreign nation. The undersigned are persuaded, it never has been so extended with the approbation of the Government of the United States. Discussions respecting the conduct of foreign powers, especially in prints respecting the rights and interests of America. are unavoidably made in a nation where public measures are the results of public opinion, and certainly do not furnish cause for reproach; but it is believed that calumny and invective have never been substituted for the manly reasoning of an enlightened and injured people, without giving pain to those who administer the affairs of the Union. Certainly this offence, if it be deemed by France of sufficient magnitude to be worthy of notice, has not been confined to this Republic. It has been. still more profusely lavished on its enemies, and has even been bestowed with an unsparing hand on the Federal Government itself. Nothing can be more notorious than the calumnies and invectives with which the wisest measures, and the most virtuous characters of the United States, have been pursued and traduced. It is a calamity occasioned by, and incident to, the nature of liberty, and which can produce no serious evil to France. It is a calamity occasioned neither by the direct nor indirect influence of the American Government. In fact, that Government is believed to exercise no influence over any press.'You must be sensible, citizen Minister, with how

376 LIFE OF JOHN MARSHALL. much truth the same complaint might be urged on the part of the United'States. You must know well, what degrading and unworthy calumnies against their Government, its principles and its officers, have been published to the world by French journalists and in French pamphlets. That Government has even been charged with betraying the best interests of the nation, with having put itself under the guidance, nay, more, with having sold itself to a foreign court. But these calumnies, atrocious as they are, have never constituted a subject of complaint against France. Had not other causes, infinitely more serious and weighty, interrupted the harmony of the two republics, it would still have remained unimpaired, and the mission of the undersigned would never have been rendered necessary.' To the suggestion of M. Talleyrand that the Executive Directory was disposed to treat with one of the Envoys, they answered that no one of them was authorized to take upon himself a negotiation evidently intrusted, by the tenor of their powers and instructions, to the whole; nor could any two of them propose to withdraw themselves from the task committed to them by their Government, whilst a possibility remained of their performing it. They concluded their letter by requesting that, if they had failed to dissipate the prejudices which had been conceived against them, and it should be the will of the Directory to order passports for the whole, or any number of them, M. Talleyrand would accompany such passports with letters of safe conduct, which would protect the vessels in which they might respectively sail, from French cruisers. It was, doubtless, the hope and expectation of M.

ENVOY EXTRAORDINARY TO FRANCE. 377 Talleyrand that Pinckney and Marshall would voluntarily leave France, upon receiving his letter of the 18th of March, in which he made the offensive distinction between them and their colleague Gerry, on the ground that the opinions' of the latter were more'impartial' than theirs. In a letter to Gerry, of April 3d, he said,'I suppose, Sir, that Messrs. Pinckney and Marshall have thought it useful and proper, in consequence of the intimations which the end of my note of the 18th of March last presents, to quit the territory of the Republic.' As the Envoys, however, had previously made a conditional application for their passports, this hint to them was quite unnecessary. The truth is, the Directory wished to get rid of Pinckney and Marshall, but, at the same time, to avoid the odium of sending them away. Having done all they could, consistently with self-respect and the honor of their country, to accomplish the objects of their mission, and having failed, without any fault on their part, they were anxious to return to the United States. But they would not leave Paris on the mere intimation of the French Minister, nor without those protections which the law of nations entitled them to demand. Marshall told Talleyrand that this was not the manner in which a foreign Minister ought to be treated. He replied that Marshall was not a foreign Minister, but was to be considered as a private American citizen; and must obtain his passports, like others, through the Consul. To this it was answered, that he was a foreign Minister, and that the French Government could not deprive him of that character, which was conferred on him, not by Talleyrand, but by the United States; and, though the Directory might refuse to receive or to treat with him, still his country had

378 LIFE OF JOHN MARSHALL. clothed him with the requisite powers, which he held independently of France; that if he was not acceptable to the French Government, and, in consequence, they determined to send him away, still he ought to be sent away like a Minister; that he ought to have his passports, with letters of safe conduct, which would protect him from the cruisers of France. Talleyrand replied, that, if Marshall wished for a passport, he must give in his name, stature, age, complexion, &c., to the American Consul, who would obtain one for him; that, with respect to a letter of safe conduct, it was unnecessary, as no risk from the cruisers would be incurred.' Treated with studied indignities, Pinckney and Marshall, nevertheless, persisted in their demands, and passports were finally sent to them. The latter left Paris on the 12th of April, and France on the 16th; but General Pinckney obtained permission, with great difficulty, however, to remain for two or three months, on account of the critical state of his daughter's health. Gerry, who, according to Talleyrand, had manifested' himself more disposed to lend a favorable ear to everything which might reconcile the two Republics,' was induced, by threats of immediate war against the United States, to separate from his colleagues, and stay in Paris. EIe steadily refused, however, to enter into a formal negotiation, and in August sailed for the United States. With fair intentions, doubtless, his conduct, nevertheless, was marked by several instances of weakness, and provoked severe criticisms. The despatches of the Envoys, containing the facts narrated in this chapter, were published in the United Mvarshall's Journal. Wait's American State Papers, vol. iii., p. 394.

ENVOY EXTRAORDINARY TO FRANCE. 379 States, and republished in England. They reached Paris the latter part of May, and, naturally enough, attracted eager attention. Talleyrand hastened to dissipate the impressions they were calculated to make. Col. Pickering, the Secretary of State, had substituted the initials X. Y. Z. XYZ Affair for the names of M. Hottinguer, M. Bellamy, and M. Hautval, in consequence of a promise by the Envoys that they should, in no event, be made public. Talleyrand affected an entire ignorance of the persons thus designated, and, with cool effrontery, addressed a note to Mr. Gerry, requesting their names. I cannot observe without surprise,' he said, I that intriguers have profited of the insulated condition in which the Envoys of the United States have kept themselves, to make proposals and hold conversations, the object of which was evidently to deceive you.' And this was addressed to Mr. Gerry, who had Talleyrand's own assurance, that M. Bellamy might always e reelied on; to Mr. Gerry, who hiad heard the propositions of the agents substantially repeated by the Minister, and was present when General Pinckney told him that his suggestions were considered by the Envoys as, in effect, the same that had been made by M. Hottinguer and M. Bellamy, the men he now styled intriguers, but then did not venture to disavow.1 On the 7th of June, The Redactetr, the official ga~zette, contained Talleyrand's observations on the despatches of the Envoys. They were drawn up with infinite art; and were calculated to produce an impression favorable to the purity of the French Directory. He described tihe despatches as a'deplorable monument of credulity and contradictions,' and a proAnte, pp. 370.

380 LIFE OF JOHN MARSHALL. vocation'visibly suggested by the British Government.' Pinckney and Marshall, he said, manifested against France prejudices brought from America, or imbibed from the nature of the connections which they lost no time in forming at Paris; but Gerry had announced more impartiality.'From this ill-suited union, which disclosed dispositions not very conciliatory, there must needs result, and there has, in fact, resulted a crooked and embarrassed career on the part of those Commissioners; hence their constant aversion to do what might reconcile, their eagerness to write what might disgust.' To come at some accommodation, some friendly explanation, frequent comnmunications with the Minister of the Exterior were necessary. The latter complained publicly that he did not see them, and they avowed that he caused them to be often informed of this reproach; but two of the Commissioners, shielding themselves under ceremony, refused to comply with the desire. Mr. Gerry, at length, resolved to go, spoke twice with the Minister;.. said but little; and did not venture to decide on any thing.' In the meantime, says Talleyrand,'they thought themselves bound to transmit to the President a very voluminous account of their negotiation; an account necessarily filled'with the despicable manoeuvres of all the intriguers.''It will be for ever inconceivable, that men, authorized to represent the United States near the French Republic, could have been for an instant deceived by manoeuvres so evidently counterfeit, and that there should exist a temptation to convert the error in this respect into bad faith.' We have not space to follow the ingenious turns and cool assurance of Talleyrand, through this curious performance. So disguised are his artifices, and so bold his criminations, that one is almost inclined to

ENVOY EXTRAORDINARY TO FRANCE. 381 believe that that the Envoys had been'most strangely deceived' by'the incoherent prating of two intriguers.' It is only by again recurring to the facts that the reader is disabused of the impression that M. Talleyrand is a martyr in the cause of honor and innocence. Apprehensions were entertained that the Envoys might remain in France until after the arrival there of their despatches.'In that case' wrote Cabot to Wolcott, they must give up their lives, or contradict their communications, or, according to the order of the day, pay a deal of money.'1 But Pinckney had left Paris on the 19th of April, Gerry it suited the Directory to treat with a show of civility, and Marshall arrived at New York on the 17th of June. HIe found a high and general indignation among the people at the treatment himself and colleagues had received at Paris. He was received, wherever he appeared, with warmth and enthusiasm. These demonstrations Jefferson, naturally enough, viewed with extreme jealousy. The late events had visibly increased the strength of the Federalists, and diiniished that of the Republicans. In a letter to Madison, he mentions the arrival of Marshall at New York, says that he has postponed his own departure from Philadelphia, in order to see if that circumstance would produce any new projects, and thus proceeds: - No doubt he there received more than hints from Hamilton as to the tone required to be assumed, yet I apprehend he is not hot enough for his friends. Livingston came with him from New York. Marshall told him they had no idea, in France, of a war with us. That Talleyrand sent passports to him and Pinckney, but none to Gerry. Upon this Gerry staid, without explaining to' Federal Administrations, vol. ii., pp 47, 48.

382 LIFE OF JOHN MARSHALL. them the reason.' He wrote, however, to the President by Marshall, who knew nothing of the contents of the letter. So that there must have been a previous understanding between Talleyrand and Gerry.'Marshall was received here [Philadelphia] with the utmost eclat. The Secretary of State and many carriages, with all the city cavalry, went to Frankford to meet him, and, on his arrival here in the evening, the bells rung till late in the night, and immrense crowds were collected to see and make part of the show, which was circuitously paraded through the streets before he was set down at the city tavern. All this,' Jefferson characteristically adds, I was to secure him to their views, that he might say nothing which would oppose the game they have been playing. Since his arrival, I can hear nothing directly from him, while they are disseminating through the town things, as from him, diametrically opposite to what he said to Livingston.' 2 Congress being at this time in session, a public dinner was given to him by members of both Houses,'as an evidence of affection for his person, and of their grateful approbation of the patriotic firmness with which he sustained the dignity of his country during his important mission.' Marshall now returned to Virginia, (where he was received with every demonstration of respect,) and re-' Marshall could not have told Livingston this, because Gerry had agreed with Talleyrand to remain, had told his colleagues that he intended to remain, and this, too, before the passports were sent. His not receiving a passport had nothing to do with his staying. It would have been sent, had he demanded it. 2Jefferson's Works, vol. iv., p. 249.'June 21st, 1798. We have quoted Jefferson's letter for the facts which it contains; his conjectures are not so important.

ENVOY - YTRAORDINARY TO FRANCE. 383 surned his labors at the Bar. But his determination to withdraw from political life was overcome by the clouded state of affairs, and the earnest appeals that were made to him, to come forward, at such a juncture, and engage in the public service. In the next chapter we shall view him as a member of Congress.